Articles Posted in Child Custody

In many cases in which a couple with a child divorces, absent an agreement, the court will issue an order granting one parent primary physical custody and award the other parent parental access. Custody orders are not permanent, however, but can be modified upon a showing that a modification is necessary due to a change in circumstances. Recently, a New York appellate court once again discussed what constitutes a sufficient change in circumstances to warrant a modification in a case in which a mother appealed the dismissal of a petition to modify custody. If you wish to seek a modification of an existing custody order, it is in your best interest to meet with an experienced New York child custody attorney to help you seek an arrangement that is in the best interest of your child.

Facts and Procedure

It is reported that the mother and the father divorced in 2013. Initially, the mother was awarded physical custody of the couple’s sole child. Custody was then modified via a consent order in December 2015, which granted father physical custody and awarded the mother parental access. Subsequently, in April 2018, the mother filed a petition to modify the 2015 order to grant her physical custody of the child. Following a hearing, the father moved to dismiss the petition, arguing that the mother failed to establish a change of circumstances sufficient to warrant a modification. The court granted the father’s motion, dismissing the mother’s petition. The mother appealed.

Evidence of a Change in Circumstances

Under New York law, an order establishing custody or parental access will only be modified if the party seeking the modification establishes that there has been a change of circumstances that requires a modification to meet the best interests of the child. A court will review the entirety of the facts and circumstances presented in determining what is in a child’s best interests. Further, in determining whether to dismiss a petition for failure to establish a prima facie case, the court is required to accept the evidence presented by the petitioner as true and grant the petition every favorable inference that can be drawn from the evidence.

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In many marriages, one spouse will hold strong religious beliefs and will provide religious guidance to any children born of the marriage, while the other spouse will not actively practice religion. Accordingly, when a couple with such differing religious beliefs decides to divorce, the issue of what religious upbringing the couple’s children will have is often a point of contention. Recently, a New York appellate court discussed what role religion should have in determining what custody arrangement is in the best interest of a child in a case involving the divorce of a mixed-faith couple. If you and your child’s co-parent have different religious beliefs, it is advisable to speak with a proficient New York child custody attorney to discuss how those beliefs may affect your custody arrangement.

Facts of the Case

Allegedly, the husband and the wife were married in 2009 and had two children shortly thereafter. The husband and the wife both practiced Hasidic Judaism when they were married, but at some point, the husband became non-religious. The couple subsequently separated, and the wife filed for divorce. The court ultimately awarded the wife sole legal custody of the children and granted the husband parental access. The court also directed the husband to attempt to only provide the children with kosher food and to make reasonable efforts to ensure that the children complied with the requirements of the Hasidic religion. The husband appealed, arguing that the trial court erred in granting the wife sole legal custody and that it was unconstitutional to impose religious obligations on him.

Religion as a Factor in Determining Custody

In any case, in which a court must determine custody, the court’s main concern is what is in the best interest of the child or children involved. The court will assess several factors in determining what is in a child’s best interest, including the health of the parents and child, which parent can better provide for the child, and if a child has existing ties to a religious community, which parent can better serve the child’s religious needs. Religion alone cannot be the determining factor in deciding a custody arrangement, however.

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