Case law, Domestic relations, Law, Legal advice, Legal instrument, New York, New York State Legislature Website, Several cases on the issue of modification of a Court ordered custody determination. (FOR EDUCATIONAL PURPOSE ONLY ...NOT TO BE USED IN LITIGATION), State of New York
“[A] custody [and visitation] determination is a matter entrusted primarily to the discretion of the trial court which is in the most advantageous position to evaluate the testimony, character, and sincerity of the parties” (Santoro v Santoro, 224 AD2d 510, 511; see Eschbach v Eschbach, 56 NY2d 167, 171).
“In determining whether a custody agreement should be modified, the paramount issue before the court is whether, under the totality of the circumstances, a modification of custody is in the best interests of the child” (Cuccurullo v Cuccurullo, 21 AD3d 983, 984; see Teuschler v Teuschler, 242 AD2d 289, 290; Kuncman v Kuncman, 188 AD2d 517).
“Along with the factors considered in any custody determination, the court must also consider the stability and continuity afforded by maintaining the present arrangement” (Gonzalez v Gonzalez, 17 AD3d 635, 636). “When . . . there is no indication that a change of [physical] custody will result in significantly enhancing the child’s welfare, it is generally considered in the child’s best interests not to disrupt his life” (Matter of Salvati v Salvati, 221 AD2d 541, 543; see Matter of Russell v Russell, 72 AD3d 973, 974-975).
“[A] noncustodial parent should have reasonable rights of visitation, and the denial of those rights to a natural parent is a drastic remedy which should only be invoked when there is substantial evidence that visitation would be detrimental to the child” (Matter of Mera v Rodriguez, [*3]73 AD3d 1069, 1069 [internal quotation marks omitted]; see Matter of Sinnott-Turner v Kolba, 60 AD3d 774, 775; Matter of Grisanti v Grisanti, 4 AD3d 471, 473). ” While not determinative, the child’s expressed preference is some indication of what is in the child’s best interests,'” provided that the court consider ” the age and maturity of the child and the potential for influence having been exerted on the child'” (Matter of Schouten v Schouten, 155 AD2d 461, 463, quoting Eschbach v Eschbach, 56 NY2d at 173).
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