In an interesting case the Third Department affirmed the Family Court Decision that the Mother had not made a sufficient showing to reduce the Father's parenting schedule even though it might have seemed sufficient when she made her application. Upon careful review the Appeals Court upheld the order of denial. Here's what happened:
The children were born in 2016 and 2019. In July 2024, the parents entered into a court order on consent that granted the Father daytime parenting time 3 weekends per month and that overnights would be reinstated when he obtained suitable housing with certain conditions imposed upon both parents which included communication regarding the children, transportation for parenting exchanges, and substance abuse and mental health evaluations.
Five months later the Mother stated that the Father failed to use his parenting time over the Christmas holiday and alleged that he violated the order. She also filed a custody modification request alleging the Father's criminal conduct, associations and lack of proper housing and transportation. The Father filed his violation petition stating that the Mother had since mid December denied him parenting time and communication with the children, failed to provide him required notice regarding the children's school events and medical appointments.
After a hearing the Family Court found both parents had violated the prior consent order and awarded the Father make-up parenting time while dismissing the Mother's petition. The court in denying the Mother's request stated that much of her proof concerned matters that predated and "were expressly contemplated" by the consent order "including the father's housing instability, transportation difficulties and concerns regarding substance abuse". Therefore, her allegations about those problems were not new developments. Even the Father's "arrest did not result in disruption of his parenting time, housing, employment or ability to care for the children" AND he was ultimately acquitted of all charges after a trial. The Mother failed to establish a change in circumstances.
The Mother admitted that she denied parenting time after the Christmas incident and also that she stopped providing the father with the required school and medical updates. Therefore, the Mother violated the order.
The Mother had also filed a request for an Order of Protection based upon an incident in which the Father was a passenger in a vehicle that allegedly approached the Mother. Her application was also denied as the Father was not the driver nor did the court credit the Mother's claim that the Father "encouraged" the driver to drive aggressively towards her and her father.
The decision is not clear as to how the Father violated the consent order but it appears to perhaps be related to an online social media post that the Father made about the Mother with his posting of a photograph of her residence with captions about her failure to exchange the children and his desire to confront her boyfriend. The court noted that it was a single communication while the Mother said it was "upsetting" it was more directed to the Mother's boyfriend.
What this case does tell us is that it is important that an application for a modification of an existing order must be based upon new and substantial changes of circumstances. The mere recitation of troubling events that were all considered and the reason for the framework and provisions of the existing order in a subsequent petition are not sufficient. So in this case alleging ongoing housing and transportation issues or mental health issues that are not new is not a basis for a change in the existing order. For further reference the case is: Matter of Lisa F. v Gregory F. (2026 NY Slip Op 04250 (Third Dept., July 2, 2026).