In the Matter of J.A.S. v. G.P.S.
Before attempting to challenge an official court order in a family or matrimonial action, a litigant must be aware of what it will take to modify that order. For example, what if you are a party to a family/matrimonial action and subject to an unfavorable custody order? To modify such an order, you have to establish a "change in your circumstances."
This rule was recently discussed in Matter of J.A.S. v. G.P.S., 2008 N.Y. Slip Op 28408, 865 N.Y.S.2d 853 (Fam Ct, Nassau Co., 2008). In this case, the court considered a motion by respondent, G.P.S. (the former husband to a marriage), for an order dismissing the petition of petitioner, J.A.S. (the wife to said marriage). The parties' marriage terminated on August 31, 2001 through the issuance of a Judgment of Divorce. This judgment granted the parties joint legal custody of the parties' two children, but granted physical custody of the children to the petitioner-mother. However, by agreement of the parties, respondent-father was granted physical custody of the children. The petition sought to modify the November 2006 order by reverting physical custody of the children back to the petitioner-mother.
In making its determination, the court discussed how a modification of an order of custody requires an evidentiary showing by the petitioner of a "change in circumstances." What constitutes a "change in circumstances" is a factual determination to be made by the court following an evidentiary hearing. In addition, if the petitioner requests a hearing to determine whether a "change in circumstances" has occurred, the petitioner must also make an evidentiary showing that would indicate that such a hearing was warranted.
Based on petitioner's failure to make the requisite evidentiary showings of either a change in circumstances or the need for a hearing to determine a change in circumstances, the court granted respondent's motion to dismiss the petition. The court found that petitioner's unsubstantiated assertions that the November 2006 order was somehow "temporary," and that she was "putting her life back together," did not rise to the level of establishing a "change in circumstances." Accordingly, the petition was dismissed in its entirety, and the November 2006 order remained in effect.
The family/matrimonial attorneys at Robinson Brog Leinwand Greene Genovese & Gluck P.C. have extensive knowledge and an intimate understanding of New York matrimonial law. Our clients can be assured that our comfort and familiarity with this area of the law will result in providing them with superior and cost-effective legal representation.
