WHAT HAPPENS WHEN A PARTY CHANGES HIS MIND ABOUT CUSTODY AFTER THE STIPULATION IS EXECUTED AND INCORPORATED INTO A JUDGMENT OF DIVORCE?
In the very recent case of Chichra v. Chichra, decided March 15, 2017, the Second Department affirmed the lower court’s decision that the father’s petition was improper as he had failed to demonstrate a viable cause of action.
In the stipulation of settlement that was incorporated, but not merged, into the judgment of divorce, the parties agreed that the mother would have sole legal and residential custody of the children, and that the father would have visitation with the children on the third weekend of every month, as well as on certain holidays. The father also consented to the mother relocating with the children to Pennsylvania.
About a year and a half later, the father went to court to petition for, among other things, sole custody of the children. The Family Court denied the petition, without a hearing, stating that the father failed to state a cause of action, as the father did not demonstrate a change of circumstances sufficient to warrant a hearing. The father appealed.
In affirming the Family Court decision, the Appellate Division, Second Department, declared that a party seeking modification of a custodial arrangement is not automatically entitled to a hearing but must make some evidentiary showing of a change in circumstances sufficient to warrant a hearing. Conclusory and nonspecific allegations relating to a change in circumstances are insufficient to justify a hearing on the issue of whether a change in custody would be in the best interests of the child.
It is imperative to know your rights before signing any documents, as well as your rights should you change your mind and try to modify a stipulation with regard to custody.
Read the decision here.