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    First, look at the petition and see what it alleges.   A general allegation, such as  "the mother can give the son more love and spend more time with him" or "the father leaves the son with the grandmother when he goes out" will not suffice.  The petition must state facts to support a material change has occurred since the original custody order. It must describe the abuse or neglect with on or about dates it occurred, and even better, list witnesses to the events with affidavits. For example, a material change would be alleged by stating the child was seen by Dr. Smith on a certain date who found certain injuries, and the injuries would be described.  Another example would be on certain dates the custodial parent was seen smoking marijuana in front of the child as observed by certain witnesses named in the Petition.  

 

   If the allegations are not specific, then at the first court appearance you should make an oral motion at the first court appearance for a summary dismissal of the Petition.   You state to the Judge that you have an application to make, then state the petition should be dismissed because it does not allege a material change in circumstances. If you have case law supporting your position that a failure to make a specific allegation of a material chane warrants dismissal, then you should cite a few cases for the Judge.  For instance, if you are in New York, you can state "New York Appellate Court have upheld Family Courts' summarily dismissing cases at the first appearance, without a hearing, because the petition failed to allege a material change in circumstances in Hongach v. Hongach, 44 A.D.3d 664 and Matter of Walberg v. Rudden, 14 AD3d 572."  The Judge will review the petition and should dismiss it right there.  You should get a copy of the Judge's order and save it. 

 

    If your ex tries to refile the petition to modify custody after the summary dismissal order and he or she makes new allegations, then the next time appear in court with the order of dismissal and remind the judge that these new allegations were never alleged in the last modification petition.  Request a dismissal again based on the fact that the new allegations should have and could have been raised in the first petition to modify.  Also, consider filing a motion for sanctions and attorney fees after your dismissal request is granted. I do note this article is not intended to avoid real emergencies based on valid petitions to modify custody, but it is written to defend against the ex-spouse, ex-partner or anyone who abuses the court system by filing frivolous documents to harass, annoy or waste other people's time.

 

      Susan Chana Lask is a New York attorney with law offices in New York
City. She has over 20 years experience in State, Federal and Appellate Courts nationwide, handling civil, criminal and commercial litigation and appeals. She represents high profile cases and appears on all major
television, print and radio news media, earning the title "High-Powered" attorney. She can be reached at www.appellate-brief.com

This article is certainly not all inclusive and is intended only as a brief explanation of the legal issue presented. Not all cases are alike and it is strongly recommended that you consult an attorney if you have any questions with respect to any legal matters.

Any questions and/or comments with respect to this topic or any other topic, please call or write:

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