When Should Courts Dismiss Child Custody Modification Requests without a Hearing?
Child custody issues represent some of the most challenging in divorce and post-divorce proceedings brought in New York Family Courts each year. The stark reality is that parents can continue to be at odds in regard to child custody issues long after the final divorce decree is issued.
If you are contemplating filing a motion to change custody that will be contested by the other parent, you need to have a basic understanding of the process. This includes having an appreciation of how and why a court might dismiss a motion to change custody without a hearing.
Failure to Establish a Material Change of Circumstances
Changing custody is more complicated than establishing it in the first instance. Not only must the proposed change of custody be in the best interests of a child, if the motion to alter custody is contested, you also must demonstrate a material change of circumstances.
A material change of circumstances that warrants an alteration of the custodial arrangement cannot be something insignificant. For example, if the custodial parent has contracted some sort of serious illness or disease that impairs his or her ability to effectively care for a child, that may rise to the level of a material change of circumstances. If a demonstration can be made that the custodial parent has a substance abuse issue, that also might constitute a material change of circumstances I the court’s eyes.
If the motion, or request, filed by a parent fails to demonstrate what can be considered a material change of circumstances, the court is highly likely to dismiss the motion without a hearing. If a parent persists in filing this type of motion without demonstrating a material change of circumstances, a court may seek to sanction a parent that takes this type of step more than once. This can include a monetary penalty in the form of requiring the person who filed the motion to pay the other party’s attorney fees.
Insufficient Passing of Time from Last Custody Order
The public policy of New York requires stability in custodial arrangements. Family courts will not permit frequent changes to custodial arrangements. This is even the case if parents reach agreements regarding these custodial alterations.
The passing of an insufficient amount of time is another reason why a court may dismiss a motion to change custody without a hearing. If the person filing the motion does allege a real emergency, and a threat to the welfare of a child, the court will overlook the time issue and proceed to a hearing. In the final analysis, the best interests of a child trumps all in a custodial proceeding of any type.
Mistakes in Paperwork and Court Process
A common reason why a parent is denied a hearing to change custody is because he or she did not retain legal counsel, does not fully understand what he or she is doing, and makes mistakes. Although a court may “cut you some slack” when unrepresented by legal counsel, you will still be required to generally follow applicable law and court procedures when seeking a change of custody.
If you elect to go it alone in seeking a change of custody, and make a mistake in doing so, a judge is likely to give you an opportunity to correct the error and to retain legal counsel. If you fail to get the case properly on course, and if you elect not to retain legal representation, a court is quite likely to dismiss you request to alter child custody without a hearing.
Using Court Process to Harass the Other Parent
Sadly, there are situations in which one parent attempts to take advantage of the New York Family Court to harass the other parent. Each year, in Long Island and elsewhere in the state of New York, motions to change custody are filed which in actuality are designed only to harass the other parent.
These types of motions do face the prospect of dismissal without a hearing. However, if a case is made in opposition to the motion that the request was filed solely to harass the custodial parent, a court may schedule a hearing. The hearing will not focus on changing custody, but on sanctioning the party that appears to be abusing the judicial system.
Retain Legal Representation
Child custody is an emotionally charged and legally complex area of New York family law. Attempts to change custody can be particularly challenging. If you are considering this type of legal action, you definitely need to contemplate retaining legal counsel.
You can arrange for an initial consultation with a New York child custody lawyer. During this meeting, a skilled, qualified New York child custody attorney will provide an overview and evaluation of your case. Legal counsel will explain the process and what you will need to demonstrate in order to obtain a hearing and ultimately an order to alter an existing custody arrangement. As a matter of general practice among New York custody attorneys, no fee is charged for an initial consultation with legal counsel.