How Soon After A Divorce Is Finalized Can A Person Apply For Modification To Child Custody Or Child Support In New York?
In New York, there is no official rule about any particular amount of time that has to pass from the time a divorce is finalized before you can file to modify child custody, child visitation, or child support.
However, it is very difficult to get any of those orders changed if it has only been a short period of time since they were established. I have seen people file for modification within a month of the custody order. In my experience, the court will almost never grant those modification requests, unless there is some really strong unexpected and extraordinary reason for it that is also obviously in the best interest of the child or children.
As a rule, the shorter the time you wait to file for modification, the less likely you are to get it approved. On the other hand, the longer you wait to file for modification, the more likely you are to get it approved. Still, approval requires the same standards, no matter when you file for modification. You still have to show there’s been a significant change in circumstances that would justify changing the custody or visitation order, and that changing the order would be in the best interest of the child/children.
Does A Child Ever Have A Say In A Child Custody Situation As They Age?
Is There An Age Where Parents Can Take It To The Court And Say, “Hey, Our Child Is Now 14, 15, 16, He/She Doesn’t Want To Spend This Amount Of Time With Dad?”
There are absolutely circumstances in which children—especially older children—can have a say in how child custody is organized. I often have parents come in and ask me, “Is there ever a point where I can go to the court and tell them that my child is getting older—is now 14, 15, 16—and has expressed that they don’t want to spend as much time in visitation with their other parent?”
The answer is that each child does have a voice in any matter regarding custody or visitation, and that voice increases in agency and weight as the child gets older.
It should be noted that self-reported desire is never the absolute, decisive factor when it comes to child custody and visitation. The court’s first decisive factor is always the best interest of the child. The best interest of the child is always the standard the court uses to make its decisions, first and foremost. In some cases, what a child—especially a young teenager—feels that they want is not actually the thing that is in their best interest.
Still, the court will always consider the wants and desires of each child, and that consideration is taken much more seriously as the child gets older and can more clearly assert their own wishes. In many cases, a child saying that they do not want the custody and visitation arrangements that were put in place by agreement/court order is considered in and of itself a change in circumstances, which may merit a change of the order and arrangements.
Cases where an older child genuinely expresses their desire to modify custody/visitation arrangements often get past the first burden of proof (showing a change of circumstances) that is required to modify a custody or visitation order.
Then the court would have to move to the second burden of proof, which is showing that the modification would be in the best interest of the child. There does come an age—there is no exact age on the books, but there certainly comes an age—when the court will say, “I can’t force this teenager to visit weekends with their parent or to stay with their parent if they refuse to do so.” At that point, the court usually lets the child or children decide for themselves what they want.
When Might Alimony Or Spousal Support Be Modified In New York?
In New York, spousal support and alimony are two separate issues, so the rules and standards for modification are also separate.
- Spousal support is for couples that are still married. Normally, there’s no divorce filed at the time that you file for spousal support, though there is sometimes a divorce that comes later.
If one spouse successfully files for spousal support, there is a mathematical formula to determine how much money the other spouse will be required to pay. It is based upon several factors, including the relative incomes of each spouse. This is similar to the formula used to calculate child support payment amounts.
The process to request modification to spousal support is somewhat similar to the process to request modification to child support. If a paying party wanted to request downward modification, they would have to show that their income has gone down through no fault of their own. If a receiving party wanted to request upward modification, they would have to show that the other party’s income has gone up significantly.
- Alimony (which is actually called “maintenance” in New York) is something that comes after a divorce. It is normally an agreement between two divorcing parties that does not require the arbitration of the court. In cases where this is not possible, it may rarely be decided by a trial or hearing.
Normally, though, a standard divorce stipulation will cover alimony/maintenance, and will often set terms for modification. There are three common ways in which this plays out:
- The stipulation allows for maintenance to be modified, and sets/specifies terms for modification. If your divorce stipulation allows for maintenance to be modified and sets terms for modification, then filing for modification must be done in accordance with those terms.
- The stipulation allows for maintenance to be modified, but does not set/specify terms for modification. If your divorce stipulation allows for maintenance to be modified but does not set terms for modification, you can pursue modification through the normal court processes.
- The stipulation does not allow for modification of maintenance. If your divorce stipulation does not allow for maintenance modification at all, and you signed it, you will likely have a very hard time getting maintenance modified. A successful petition for modification would require you to show factors or changes in circumstance that are unforeseen or extraordinary in order to change the amount of the alimony.
If There Is No Evidence Regarding A Significant Change In Circumstances, Will New York Courts Dismiss Petitions For Alimony/Maintenance Modification?
Yes, successful petitions normally require the petitioner to present the requisite proofs. If you are trying to petition the court for alimony/maintenance modification (either upward or downward) and you can’t meet the burden of showing a significant, unforeseen, and/or extraordinary change in circumstances, then at some point, the petition will be dismissed.
Usually, the court will encourage the parties to come to some kind of an agreement on alimony/maintenance modification. However, if there is no agreement and if the party filing the petition can’t show a change in circumstances, then the proper outcome is for the petition to be dismissed.
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