After a Parenting Time/Visitation Order is entered, as time goes, often there are variations in the parenting schedule. For example, the children’s activities or a parent’s work schedule may warrant modifications of parenting time between the parties. It is often mistaken that such variations may be enough to return to Court and obtain a switch in custodial parents. While true that a variation of the schedule may be considered a "changed circumstance", such variations may not be significant enough to warrant a change in custody.
In the recent unpublished Appellate Division decision of Picone v. LoSapio, the mother mistakenly assumed that because there were variations in parenting time and an increase of her time as compared to the actual schedule in the Court Order, the Court would award her custody of the children. At the time of the parties’ Final Judgment of Divorce, the mother was awarded extensive parenting time with the children albeit the father had more parenting time and was designated as the Parent of Primary Residence. After the Order was entered, by agreement of the parties, mother’s parenting time increased. Mother then filed an application with the Court arguing that she spent 51% of the time with the children and therefore she should be designated as the Parent of Primary Residence. Notably, the Trial Court sensed that the mother was placing way too much significance in counting the time she spent with the children noting that she "appears to be inordinately fixated on the time that she is spending with the [children], as if it has become an agenda in itself. This very fixation on the amount of time spent with the children, to the exclusion of all else, is the primary focus of the Court in rejecting her application, and denying even a plenary hearing at the time". The mother appealed the Trial Court’s denial. However, the Appellate Division agreed with the Trial Court’s findings and found that the mother had not met her burden that there exists a ‘substantial’ change in circumstances that affect the welfare of the children."
The moral of the story is that counting every minute with the children and comparing the minutes the children spend with the other parent does not necessarily get you points towards an award of custody. In fact, doing so, may backfire on you. In every application for a change in custody on the basis of a change in the parenting schedule, there must still be a showing of substantial changed circumstances and the focus is as the Appellate Division noted in Picone v. LoSapio whether the "increase of …parenting time affects the children’s safety, happiness, or welfare."
EDITOR’S NOTES: While the Appellate Division was critical in the counting of the days, the number of overnights may be relevant for at least two reasons. First, the number of overnights is considered in the child support guidelines. The person who has more than 50% is deemed the parent of primary residence. This could significantly impact support. In addition, pursuant to the case law, even where there is joint legal custody (decision making), in the case of a deadlock, the presumption of the final say usually goes to the primary custodial parent. ERIC S. SOLOTOFF