Nothing is more important in
custody litigation then to get what you have bargained for. Although at the time
of such negotiations you will be anxious to compromise and reach an agreement
in order to avoid the emotional trauma and expense that a trial will entail,
you must consider that unless you have provisions in the agreement to
accommodate a change in circumstances, you will have a tough time to convince
the court that a change is in the best interest of the
children and that a significant change has taken place.
When a prior agreement has been reached, and the provisions are incorporated
but not merged in the decree of divorce, the surviving agreement will
be treated as a binding contract, except the provisions relating to child
visitation which is subject to the court's determination that the initial agreement
was consistent with the children's best interest. Of course if fraud
is involved or the agreement is unconscionable on other equitable grounds
agreements may be set aside. Change is sparingly granted by the courts and the facts
presented must be persuasive and capable of but one outcome. Statistically,
less than 10% of such application will be set down for hearings and the
ultimate relief granted after trial.
With this knowledge in hand, and the fact that the courts will generally
give custody to the parent who was first awarded or obtained custody by
voluntary agreement or court order, before agreeing to such provisions
you must carefully consider the long term effect that these determinations
will have when a change of custody or visitation is sought. Without an
evidentiary showing sufficient to warrant ahearing, your application will be denied based upon the papers submitted. The
only remedy remaining would be to appeal the lower courts adverse determination
to an appellate court for review.
It is also to be noted that the appellate courts are loathe to make a change to a
pendente lite (pending trial) order inasmuch as they will normally hold that there must
exist exigent circumstances to consider doing so. The explanation given
is usually that any perceived inequities can be remedied by a speedy trial
where all circumstances can be fully explored.
Stock v. Stock, 2013 NY Slip Op 05307.