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THE MODIFICATION OF CUSTODY PETITION WAS SUFFICIENT TO WITHSTAND THE MOTION TO DISMISS, CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing Family Court, determined the maternal grandmother, who has custody of the children, sufficiently alleged a change of circumstances which may warrant an modification of custody such that the children could choose to spend time with the maternal grandfather and the maternal grandmother and grandmother could live together. The petition for modification was based upon the ages of the children (late teens to age of majority) and the grandfather’s extended period of sobriety. The petition was deemed sufficient to withstand a motion to dismiss:

“In any modification proceeding, the threshold issue is whether there has been a change in circumstances since the prior custody order significant enough to warrant a review of the issue of custody to ensure the continued best interests of the children” … . “In assessing whether the petitioner has alleged the requisite change in circumstances, so as to withstand a motion to dismiss for failure to state a claim, Family Court must liberally construe the petition, accept the facts alleged in the petition as true, afford the petitioner the benefit of every favorable inference and resolve all credibility questions in favor of the petitioner” … .

The grandmother sustained this threshold burden. Matter of Christine X. v James Y., 2025 NY Slip Op 07060, Third Dept 12-18-25

Practice Point: Consult this decision for the analytical criteria for assessing whether a petition for a modification of custody is sufficient to withstand a motion to dismiss.

 

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DEFENDANT, WHO WAS CHARGED WITH FIRST DEGREE ROBBERY, PRESENTED NO EVIDENCE... FAMILY COURT DID NOT PROVIDE FATHER WITH EVERY REASONABLE INFERENCE AND RESOLVE...