GF-40: Petition for Modification of an Order of Custody/Visitation

Key cases

• Eschbach v. Eschbach, 56 N.Y.2d 167 (1982)

  New York custody and modification decisions turn on the best interests of the child under a totality-of-the-circumstances analysis with no rigid rules; a prior custody arrangement — even one set by the parties’ stipulation — may be changed where the circumstances as a whole show a change serves the child’s best interests.

• Matter of Caruso v. Cruz, 114 A.D.3d 769 (2d Dep't 2014)

  Applying Tropea, the Appellate Division held that a parent seeking leave to relocate with a child bears the burden of establishing by a preponderance of the evidence that the move would be in the child's best interests, that no single factor is dispositive, and that the move's impact on the child's relationship with the other parent remains a central concern. It reversed a denial of a 57-mile move and granted it because the move would not deprive the father of regular and meaningful access to the children, and although the move may not have been an economic necessity, the mother needed a new residence and her reasons for where to move were valid and not based on animus. The court also reversed the transfer of sole custody to the father, holding that the trial court gave undue weight to particular instances of conflict and to the mother's failure to consult the father before deciding to move, and too little weight to her role as the children's primary caregiver for their entire lives and to separating them from their younger brother. A relocation ruling stands only if it has a sound and substantial basis in the record, and the Appellate Division's authority in relocation cases is as broad as the hearing court's. The parties' divorce stipulation barred either parent from moving more than 100 miles away without written consent; the 57-mile move was within that radius. The court sent the case back to set a new visitation schedule and, in the meantime, ordered alternate weekends plus Tuesday evening visits for the father, with the mother driving the children at least half the distance for exchanges. The court also noted the mother had almost single-handedly handled the children's medical and educational needs, and the younger brother was a half-sibling from her second marriage.

• Matter of Tropea v. Tropea, 87 N.Y.2d 727 (1996)

  Rejecting the three-step “meaningful access / exceptional circumstances” test that lower courts had built on Weiss v. Weiss, the Court of Appeals held that each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis on what outcome is most likely to serve the child’s best interests; the parents’ rights are significant factors, but the children’s rights and needs get the greatest weight, the move’s impact on the child’s relationship with the noncustodial parent remains a central concern, and no single factor should be treated as dispositive or given such disproportionate weight as to predetermine the outcome. Relevant factors include, but are not limited to, each parent’s reasons for seeking or opposing the move, the quality of the child’s relationships with each parent, the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child’s lives may be enhanced economically, emotionally and educationally, and the feasibility of preserving the relationship with the noncustodial parent through suitable visitation, and the court decides, based on all the proof, whether it has been established by a preponderance of the evidence that the proposed relocation would serve the child’s best interests. The Court upheld the orders approving both moves before it.