Changing an Order That No Longer Fits
A family court order does not change when life does. It changes when a court changes it. This guide covers how that works in New York for custody, visitation and child support, and why those two run differently.
The order stays in force until a court changes it
Until a judge signs a new order, the old one is the one that counts. That stays true if both parents agree it no longer fits, and it stays true while a request to change it is waiting to be heard.
For child support, this has a cost that cannot be fixed later. Payments due under the old order keep adding up. A court that later lowers the amount cannot reduce support that came due before the change was asked for. The day a petition is filed is the line.
For custody and visitation, the old schedule is still the one a court will enforce if the other parent stops following it.
What a court means by "things have changed"
A request to change an order does not argue that the first order was wrong. It asks the court to look at what has changed since the order was made.
For custody and visitation, the court asks two questions: have circumstances changed since the order, and would changing it be best for the child. Wanting a different arrangement is not, on its own, a change in circumstances.
Legal aid organizations give examples such as a parent moving, a new risk to the child's safety, or a parent becoming able to spend more time with the child. Whether a particular change is enough is for the court to decide, one case at a time.
Support and custody changes work differently
Custody and visitation turn on what is best for the child, so the court weighs the whole situation. Child support is a calculation, so the law names specific grounds for doing it again.
A court can change a child support order if any one of these is true:
- There has been a substantial change in circumstances. Being incarcerated does not count as choosing not to work, and it does not rule out a change.
- Three years have passed since the order was made, last changed or last adjusted.
- Either parent's gross income has changed by 15 percent or more since then. A drop in income only counts if it was involuntary and the parent made real efforts to find comparable work.
The last two apply to orders that took effect on or after October 13, 2010. They do not apply if the parents signed an agreement that specifically opted out of them.
One kind of change needs no court at all. Orders handled by the state's Child Support Program are reviewed every two years for a cost-of-living adjustment, which raises the amount when prices have gone up 10 percent or more. Each parent is notified and can object in writing. The state explains how it works on its Modify Order page.
Agreeing is not the same as a court order
Parents often work out a new schedule or a new amount between themselves. An arrangement the court has not approved does not change the order.
If a support payment is lowered by agreement, the full amount in the order is still what is owed, and the difference builds up as arrears. If a custody schedule changes by agreement, the old schedule is still the one a court would enforce if the arrangement falls apart.
When parents do agree, they can put the change in writing and submit it to the court for approval. Once a judge approves it, it is the order.
What your binder already holds
The case binder has a case type for changing a custody or visitation order. It lists what the court asks for: a copy of the current order, the other parent's name and address, each child's name, address and date of birth, a dated timeline of what has changed, records that show the change, anything filed since the order, and how the other parent will be served.
The first three are the same three things the court's own petition program asks you to have with you before you start.
For child support, the binder's child support case type includes the existing order when you are asking for a change, alongside the financial disclosure affidavit and the income records the calculation runs on.
Where to file
Start with the clerk of the court that made the order.
For custody or visitation, New York's free Custody/Visitation Modification Petition Program fills out the petition with you. It works when the order was signed by a New York judge, only the two parents are on it, and the child is not in foster care.
For child support, the petition is filed in Family Court, in the county where the order was made or where you or the child live. That includes a support order that was part of a divorce in Supreme Court. The court's free Support Modification and Enforcement/Violation Program fills out that petition with you.
If the order came from another state, which court can change it depends on where each of you lives now. Ask the clerk before you file.
In a custody case, a parent who cannot afford a lawyer has the right to one assigned by the court. The judge must tell you this at your first appearance.
Where Jethro Justice fits. We help you understand the process and get organized. For advice about your specific case, or to be represented in court, we will help you connect with a licensed attorney. Find a lawyer or legal aid →