Islip, NY asked in Civil Litigation, Family Law and Child Custody for New York

Q: Complex question in regard to citing case law on my affidavit in support of petition to modify custody & OSC filings…

In regard to change of circumstances factors for consideration, preponderance of evidence, relevant facts/evidence &affidavit in support of my petition to modify custody & OSC motion; I’m not sure how to articulate my question but here it goes: I have pending custody litigation for petition to mod. Custody(trial in may); & OSC that I’m in process of putting together. Is it admissible/credible/relevant evidence to provide custody case I was directly involved in decision/findings of fact in favor of my fiance/myself & granted custody (8/2023)? its stated in 26 pages in the findings of fact &decision that both of us had credible testimony, provide stable home/care for his two daughters, & presented the facts properly, etc. would this help my filings for custody/upcoming trial to include evidence exhibit of the court order& decision(diff jurisdiction)?foundation/reasons for filing were the same as why Im filing to mod-custody for my biological child(I meet criteria change in circumstances)

1 Lawyer Answer
Peter Christopher Lomtevas
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  • Divorce Lawyer
  • Schenectady, NY
  • Licensed in New York

A: This rather convoluted question points out quite simply that New York does not list factors for courts to use to determine either initial awards of custody or modifications to custody. Other states do use listings of factors that their appellate courts required in all orders of custody. New York does not.

New York uses judicial discretion as guided by case law. This makes a custody case in New York that much harder to implement. The asker admits that he is personally handling his own case and asks us how to best craft legal arguments using case law.

Justia's use agreement prohibits us from dispensing legal advice on specific cases. We do not know any of the facts and we do not know what case law applies if any. We do not know what cites will help the asker because facts drive the cites: no facts, no cites. The asker's recourse is to retain counsel.

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