ALLEGATIONS FATHER DID NOT ABIDE BY THE VISITATION TERMS AND USED DRUGS DURING VISITATION SUPPORTED MOTHER’S PETITION FOR A MODIFICATION OF CUSTODY BASED UPON CHANGED CIRCUMSTANCES (THIRD DEPT).

The Third Department, reversing Family Court, determined mother’s custody modification petition should not have been dismissed. Mother’s allegations that father had not abided by the visitation terms (visits must be in a public place) and father used drugs during visitation adequately alleged a change in circumstances:

To establish a change in circumstances, the party must demonstrate “new developments or changes that have occurred since the previous custody order was entered” … . Testimony at the fact-finding hearing established, by a preponderance of the evidence … that the father was not abiding by the visitation terms as set forth in the prior order…. . Specifically, although the prior order required that the father’s visitation occur in a public place, the preponderance of the proof demonstrated that much of it was occurring in private residences or hotels. Moreover, there was also testimony that the father was using drugs during the child’s visits. Given the circumstances of this case, the father’s failure to comply with the visitation terms as set forth in the prior order constitute a change in circumstances … . Matter of Harvey P. v Contrena Q., 2023 NY Slip Op 00257, Third Dept 1-19-23

Practice Point: Failure to abide by visitation terms can constitute a change in circumstances which will support a modification of custody.