In the Matter of Athena H.M. v. Samuel M. the Appellate Division, First Department, reversed the Family Court’s dismissal of the Mother’s amended petition for modification of custody, because the Appellate Division found that the mother provided sufficient proof of a substantial change of circumstances and also found that a child of 13 years had a right to be heard regarding the custody decision.
Here, the mother and father were divorced for approximately seven (7) years. Under the divorce agreement, the mother and father agreed to joint legal custody. They also agreed that the mother would have physical custody.
Six years after the divorce, the mother relinquished physical custody to the father, because she medically could not care for the children. Soon after mother relinquished physical custody, the father filed a petition to change the original divorce agreement, which awarded both mother and father joint legal custody, to give father sole legal custody. The mother, without the advice or representation of an attorney, agreed to the father having sole legal custody.
One year after mother gave up her right to sole legal custody, she, among other things, filed a petition to enforce visitation. The father consented to the mother amending the petition, but he then moved to dismiss the amended petition, on the grounds that the mother did not submit any evidence of her changed medical condition.
The mother opposed the motion and submitted evidence she was addressing her mental health concerns by seeking treatment for issues relating to a history of domestic violence that had led to her initial consent to relinquish custody to the father and that she obtained new living quarters for herself and the younger child. The child, presumably through the attorney appointed for her, supported the mother’s petition and asked for an in camera (or Lincoln) hearing. An in camera or Lincoln hearing is a meeting between the child, the child’s attorney and the judge. At that meeting the child may state her preference to live with either or both parents. The father, mother and their attorneys are not permitted to attend.
However, the family court, without meeting with the child, found that the mother did not provide sufficient evidence of change circumstances and dismissed the mother’s petition.
The Appellate Division reversed the Family Court. The Appellate Division found that the mother’s evidence was enough to warrant a hearing to determine “whether the totality of the circumstances warrants a modification of the custody order.” Moreover, the Appellate Division found that the Family Court should have held the in camera or Lincoln Hearing. The Appellate Division remanded the matter back to Family Court for a proceeding consistent with its holding.
The lesson to be learned from this case is that court proceedings involving modifications of existing custody order are extremely complex. You, as the party seeking the modification, have the burden of establishing sufficient facts in your petition to even warrant a hearing to determine a change of custody.
Given the complexities of this area of law, it is not advisable to represent yourself in a custody dispute. If you do not have enough money to pay for a private attorney, request that the court appoint an attorney to represent you. Based on your economic means the court may appoint a lawyer to you.