Modification of an existing court-sanctioned custody or parental access arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child[ren]. The best interests of the children must be determined by a review of the totality of the circumstances. Furthermore, while the express wishes of the children are not controlling, they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful.
Here, we agree with the Family Court’s determination to award sole legal and physical custody of the children to the father. The deterioration in the children’s relationship with the mother and the children’s strong desire not to spend time with her constituted a change of circumstances warranting an inquiry into whether a modification of the custody arrangement was necessary to ensure the best interests of the children. Further, the totality of the circumstances supports a finding that it was in the children’s best interests to award sole legal and physical custody to the father.
However, the Family Court should have set forth a schedule for the mother’s parental access, rather than delegating the resolution of that issue to the parties by directing that the mother may have parenting time as the parties mutually agree and arrange, considering the wishes of the children.
Shah v. Shah, – NYS2d – (2nd Dep’t. 2020)