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HERE THE PETITION FOR MODIFICATION OF CUSTODY SHOULD NOT HAVE BEEN DISMISSED “WITH PREJUDICE” BECAUSE A FUTURE CHANGE IN CIRCUMSTANCES MAY WARRANT MODIFICATION (SECOND DEPT).

The Second Department, modifying Family Court, determined mother’s petition for a modification of custody should not have been dismissed “with prejudice” because a future change in circumstances could warrant modification:

Family Court should not have provided that its dismissal of the mother’s petitions was with prejudice. This language could create confusion as to whether the mother could seek relief based upon a change in circumstances. Therefore, we delete that provision of the order appealed from and substitute therefor a provision dismissing the petitions without prejudice … . We note that child custody and parental access orders are not entitled to res judicata effect and are subject to modification based upon a showing of a change in circumstances. Thus, a new petition may be filed where there has been a sufficient change in circumstances since the order or judgment sought to be modified was made … . Matter of Blackman v Barge, 2025 NY Slip Op 00214, Second Dept 1-15-25

Practice Point: Here the petition for modification of custody should not have been dismissed “with prejudice” because a future change in circumstances may warrant modification.

 

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