Supreme Court, Monroe County, November 5, 2018

Kevin Schoenl, defendant pro se.

Donald A. White, Rochester, for plaintiff.

Subsequent? Sufficient? Substantial? Unanticipated?

In this matter, the court addresses a common question in family law: what type of change of circumstances causes a court to reconsider the best interests of the children in changing an agreed custody or residency plan?

The parents in this matter have two children. In their separation agreement which was incorporated, but not merged into the judgment of divorce, the parties provided that they would have joint custody of their children with primary residence with the mother. The father had residential time on Mondays and Wednesdays through the afternoon into the early evenings and alternate weekends Friday evening to Sunday evening. The schedule was subsequently modified and the court order expanded the children's time with the father. The expanded time only included one child and was expanded to provide an additional overnight every other week. Furthermore, the modification order provided that the weekend visits with one of the two [*2]children was expanded to Monday morning. Despite the expansion of the time with his children, the mother alleges that the father did not avail himself of the additional time with the older child.

Subsequently, the father brought the pending motion for modification of the visitation/residency schedule. The father alleges two changes of circumstances. The first change is that he now owns a house less than one mile from the mother's home. Previously, the father owned a home in the same town which was four miles further away from the mother's home than his current home. The second asserted change is that the mother previously worked from home and now is employed away from the home which, the father alleges, reduces the time that the mother can care for the children. The father argues that he does not work and can therefore have both children at home with him when the mother is working during the day after school. The mother, in opposition to the modification petition, alleges that the fact that the father now owns a home closer to the mother's residence is not a sufficient change in circumstance{**62 Misc 3d at 569} to justify any modification. She also asserts that she works a combination of time in her office and in her home to accommodate her children. She asserts that she has always worked and balanced her working time and caring for the children even though the father has not worked. The mother cross-moved to dismiss the petition, arguing that the alleged change in circumstances was not "substantial" and did not constitute a beneficial change that impacted the children.

The test in this instance is whether the father has made a showing of a change in circumstance that reflects a real need for change in the residency to ensure the best interest of the children. (Matter of Nevin H. [Stephanie H.], 164 AD3d 1090 [4th Dept 2018]; Matter of Smith v Lopez, 163 AD3d 1406 [4th Dept 2018].) In examining this issue in detail, this court is struck by a lack of exacting terminology in dealing with changes of circumstances in this cluttered corner of New York's family law. First, the Family Court Act permits this court to modify a custodial arrangement upon a showing that there has been a subsequent change of circumstances and modification is required. (Family Ct Act § 467 [a], [b] [ii].)^[FN1] The statute uses the word "subsequent" as an adjective to describe the "change of circumstances" that would trigger an analysis of whether "modification is required." (Family Ct Act § 467 [b] [ii].) The modification analysis, linked to the best interests of the children involved, is, under a strict reading of the statute, permitted if there is simply a "subsequent" change, or, read literally, if any change occurs after the date of the prior court order. Thus, under this analysis, any change, provided it occurs after the prior order, would permit this court to leap into the best interests analysis, which would further require a contemporaneous re-balancing of the parental access to the children and an independent determination, by the court, of their welfare. Significantly, the legislature, in dealing with modification orders in other contexts, has utilized other adjectives to describe the circumstances that justify judicial intrusion into prior agreements or orders. For example, in section 451 (3) (a) of the Family Court Act, the legislature authorized courts to modify child support orders "upon a showing of a substantial change in circumstances." (Matter of Foster-Fisher v Foster-{**62 Misc 3d at 570}Fisher, 160 AD3d 951 [2d Dept 2018].) The legislature appears to have required a higher degree of proof to justify a change in a child support order than is required to [*3]merit an adjustment of a parenting order.

Although the statute seems to invoke a purely temporal consideration for courts in evaluating applications to modify parenting agreements, the New York courts have adopted a more restrictive test before permitting trial courts to modify agreements or orders and conduct a "best interests" analysis. The courts have substituted another adjective—the word "substantial"—to describe the necessary showing before a court can consider a best interests analysis. (Matter of Lupo v Rainsford, 162 AD3d 1032, 1033 [2d Dept 2018].) In Matter of Allen v Boswell (149 AD3d 1528, 1529 [4th Dept 2017]), the Court described the test for modification as involving a "substantial change of circumstances." (See also Matter of Cramer v Cramer, 143 AD3d 1264 [4th Dept 2016]; Matter of Smith v O'Donnell, 107 AD3d 1311 [3d Dept 2013] [the proof established a substantial change in circumstances rendering joint custody inappropriate]; Matter of D.T. v V.T., 48 Misc 3d 1222[A], 2015 NY Slip Op 51186[U], *11 [Fam Ct, Onondaga County 2015] [reciting the test as "a substantial change of circumstances"]; Matter of Juelle G. v William C., 96 AD3d 538 [1st Dept 2012] [no change in custody because no proof of a substantial change in circumstances].)

In other contexts, both the Second and the First Departments have used the "sufficient change" language to describe the burden assumed by a party seeking to modify custody or visitation. (Matter of Renee P.-F. v Frank G., 161 AD3d 1163, 1167 [2d Dept 2018]; McGinnis v McGinnis, 159 AD3d 475 [1st Dept 2018]; M.B. v J.B., 53 Misc 3d 1209[A], 2016 NY Slip Op 51490[U] [Sup Ct, Kings County 2016].) The Fourth Department has also chosen the "sufficient" adjective to describe the necessary change of circumstances. (Matter of Mathewson v Sessler, 94 AD3d 1487, 1489 [4th Dept 2012].) In one First Department case, the Court cited both standards: in referring to a rejected petition from one parent, the Court found that the petition failed to prove "a change in circumstances to warrant a hearing" and then, two sentences later, rejected allegations from the same party because they failed to establish a "substantial change of circumstances." (Matter of Benjamin Sze-Bin W. v Kerry S.W., 122 AD3d 473, 473 [1st Dept 2014].) The same interchangeability of the adjective to describe the{**62 Misc 3d at 571} necessary change in circumstances is present in Matter of Starkey v Ferguson (80 AD3d 799, 800 [3d Dept 2011]), in which the Court determined the lower court had found a "substantial" change in circumstances, but held the law simply required a "sufficient change in circumstances reflecting a real need for change in order to insure the continued best interest of the child." (See also Matter of Rue v Carpenter, 69 AD3d 1238 [3d Dept 2010]; Matter of Ortiz v Ortiz, 2 AD3d 1236 [3d Dept 2003].) The Fourth Department in Matter of Smith v Lopez (163 AD3d 1406 [4th Dept 2018]) seemingly mixed all three versions of the appropriate standard. In discussing the trial court determination, the Court stated that the trial court "failed to expressly determine whether there had been a sufficient change in circumstances to warrant an inquiry into the best interests of the child." (Id. at 1406.) The appellate court then held that the record demonstrated "a significant change in circumstance." (Id. at 1407.) The Court concluded by citing its prior holdings that did not provide any adjective before the critical phrase, concluding a party merely needed to prove a "change in circumstances [that] reflects a real need for change to ensure the best interest[s] of the child." (Id.)^[FN2]

In one other context, the Second Department made reference to an "unanticipated" change of circumstances, as a possible basis to modify the custody/residency provisions of an agreement. (Zaratzian v Abadir, 128 AD3d 953, 953 [2d Dept 2015].) But, the adjective "unanticipated" is most often referenced by courts when considering applications simply to modify child support obligations under section 451 of the Family Court Act. (Family Ct Act § 451 [3] [a]; Matter of Gallagher v Gallagher, 109 AD3d 1176 [4th Dept 2013]; see also Evans v Oliveira, 165 AD3d 543 [1st Dept 2018] [failure to find employment commensurate with wife's training and expertise does not constitute an unanticipated change in circumstances]; Matter of Brady v White, 158 AD3d 748 [2d Dept 2018] [father failed to satisfy his burden of establishing a substantial and unanticipated{**62 Misc 3d at 572} change in circumstances so as to warrant a downward modification].)^[FN3]

This court has previously wrestled with the varying standards for reviewing prior custody/visitation agreements and modification proposals. (M.B.E. v R.E., 39 Misc 3d 1220[A], 2013 NY Slip Op 50676[U] [Sup Ct, Monroe County 2013, Dollinger, J.].) However, in this court's view, the judicial use of the words "substantial" or "sufficient" to describe the types of circumstances suggests that not just any change in the parents' lives justifies a modification. It must be a change that significantly improves the lives of the children or, as the Second Department intoned, "implicates the fitness of the custodial parent, or affects the nature and quality of the relationship between the children and the noncustodial parent." (Matter of Miedema v Miedema, 125 AD3d 971, 971-972 [2d Dept 2015].) In short, when the change occurs is nowhere near as important as its impact on the lives of the children involved. The test for this court is not whether the parents have changed circumstances, but whether a parent's fitness has changed or the children's lives have been or would be changed.

Here, the father moved closer to his former wife's residence, a move that made transitions somewhat easier between the households. However, there is no evidence that other than the proximity of the father's residence, any aspect of the children's lives has changed or would be changed. There is no allegation that the mother is unfit to be the primary residential parent. The mere fact that the father has a new house "closer" to the children's primary residence does not constitute a basis to leap to some "best interests" analysis. The Fourth Department held that the purchase of a house closer to the residential parent or obtaining new employment that freed more time for a parent to interact with children were not "sufficient" changes. (Matter of Mathewson v Sessler, 94 AD3d 1487 [4th Dept 2012].) Furthermore, the fact that the father is not working and present in his home does not alone suggest that a modification of the visitation arrangements is in his children's best interests. While these circumstances give him some opportunity for greater access to his children, there is no evidence that any extra time with their [*4]father would result in any beneficial{**62 Misc 3d at 573} change for the children. The change in residence does not meet the test, regardless of whether the court invokes the "substantial" or "sufficient" language or even a combination of the two.

Finally, the fact that the mother no longer works exclusively at home also does not constitute a "substantial" or "sufficient" change in circumstances that impacts the children. The mother details that she worked outside the home occasionally at the time the original stipulation of settlement was entered and hence, the circumstances, as a general matter, remain unchanged. The fact that she works outside the home does not equate with any lack of fitness on her part and there is no evidence to suggest otherwise. The mother made arrangements for the children to be watched by the grandparents, an arrangement that existed when the stipulation was entered and there is no evidence that the grandparents' involvement is a new or changed circumstance in the children's lives.

In short, this court cannot find any allegation which, even if true, would constitute a "substantial" or "sufficient" or even "unanticipated" change in the circumstances of this case that would "establish a real need" for change in the visitation or custody of these children. The father's circumstances have changed: the children's have not. The parents, in their stipulation and subsequent modification agreements, decided the children's best interests and the facts alleged by the father do not justify modifying that agreed residence and visitation plan.

The father's application to modify the residency and visitation is denied and the mother's application to dismiss the petition is granted.