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Matrimonial Matters: Change in circumstances and best interest

Sara Stout Ashcraft

Two recent appellate cases emphasize the necessity of applying the two-part test to determine whether a change in child custody provisions is required. In order for an existing custody arrangement to be changed, the party petitioning for the change must show a sufficient change in circumstances requiring a change in custody to ensure the best interest of the child.

For many years, it seemed that the courts put a greater emphasis on the change in circumstances part of the test than on the best interest part. Now there may be a shift in the other direction.

Carey v. Windover, 83 A.D.3d 1574 (4th Dept., 2011)

The father petitioned the family court for a modification of a prior order which gave the mother “physical custody” of the parties’ children. The family court found the “requisite change in circumstances” and determined that in the best interests of the children, the father be awarded physical custody. The mother appealed, and the appellate court found that the father had presented sufficient evidence to meet the best interests test by “introducing evidence establishing that the mother moved four times in the year prior to the filing of his petition and that she sometimes stayed in a residence for only two or three weeks. … Furthermore, the father presented evidence, including testimony from a court-appointed special advocate, establishing that the conditions in the mother’s new residence were not suitable for the children. In contrast, the evidence in the record establishes that the father had a stable residence with appropriate beds for the children and he was fully employed.”

Gasparro v. Edwards, 85 A.D.3d 1222 (3d Dept., 2011)

Interestingly, this Third Department case has a fact pattern similar to the one in Carey. The father petitioned the family court for a modification of a prior custody order, which gave the mother primary physical custody of the children and provided the father visitation, with the parties sharing joint legal custody.

The action began with the father claiming that he had been unable to contact the mother or the children for several days. Further, the guidance counselor at the children’s school told the father that the mother and children had moved to Massachusetts. The father also alleged that the mother had changed residences five times within five years, and that the children were failing in school.

After a hearing, the family court awarded the father primary physical custody, and the mother appealed. The appellate court affirmed the trial court’s order, stating, “Although petitioner did not establish that the mother moved with the children to Massachusetts, evidence of the children’s frequent absences from and tardiness to school, failing grades, and the instability of their living arrangements during the relevant time period demonstrated a sufficient change in circumstances reflecting a real need for change in order to insure the continued best interests of the children.”

The court also pointed toward related stability issues in regard to the children’s best interests: “While the mother had obtained employment and an apartment in the weeks immediately before the close of trial, her work history is sporadic and she had moved six times during the preceding five years. … The father, on the other hand, owns his own home where he lives with his wife, and has stable employment with flexible hours that allow him to work from home.”

The children’s school attendance and academic performance had also “improved markedly” when they were with the father. Interestingly, the fact that the father’s current wife “has a criminal record and was sentenced to a term of probation” did not dissuade the court from its decision: “Significantly, her conduct was an aberration and her treating psychologist indicated that she is not a threat to the children.” 


Although it is not directly addressed, an interesting facet in both of these cases is that the fathers who had residency switched to them appear to be in better financial circumstances than those of the mothers. While assets and income provide an underlying basis for stability, the courts have long embraced the concept that appropriate child support can help provide such stability.

In these two cases the appellate courts apparently looked beyond the financial issues to focus on more fundamental factors supporting the best interests of the children.

Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law.

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