Modifying Stipulations with Respect to Custody and Visitation

Many times couples who are in litigation over either custody, visitation, or relocation of children to a distant residence, do so without sufficient thought of entering a settlement stipulation and having the court "so order" or direct compliance with its terms. You must be aware that an initial agreement by the parties will not be easy to modify or reverse on appeal unless fraud duress or overreaching can be shown. At times, an application to modify can even be denied without ordering a trial or hearing, which is a drastic result, but nevertheless a reasonable expectation where no remarkable change of circumstances has occurred.

A good example of such result is the recent case of McMahon v. McMahon in the Second Department 2013 BNY Slip Op 00312 (2013) in which the parties agreed that the father, who had received sole custody of his children, could relocate to Florida at the end of the school year. Four months later the mother moved the court to modify this provision to prevent the father from doing so. Apparently, the mother and her counsel believed that they would have the opportunity to have a trial to produce evidence to make this change. They were sadly mistaken. Their papers failed to show a sufficient or major change in circumstances during the past four months to prove that a modification in this provision was in the best interests of the children.

Instead the trial court held that the mother's request had to be denied without a trial or hearing and the father was able to relocate according to the terms of their agreement. On appeal to the appellate court, the lower courts decision was affirmed, implicitly holding that only where the initial papers had a reasonable basis to show the children would be better off remaining in New York could this relief be granted

The rule to remember is that entering stipulations will normally have a far reaching effect and could well prevent you from obtaining a hearing. Any application to do so, in a proper case, can be denied without a hearing and be dismissed on the contents of the papers alone.