A modification to any custody agreement must first, and foremostly, be supported by a substantial change in circumstances. This case is no different.

Plaintiff-Father and Defendant-Mother were married on March 22, 2014 in a civil ceremony. In 2015 the child, K.C., was born. In December of 2017 the parties agreed to the stipulation of settlement whereby Plaintiff and Defendant were to share physical and legal custody of the child with the Defendant having primary residential custody of the child.

Plaintiff and Defendant have a history of hostility which has made co-parenting especially challenging. In 2020, Defendant made an application to relocate with the child to Larchmont, New York; this request was denied by the previous jurist in prior proceedings.

Now, Plaintiff in motion sequence 001 moves this court to modify the custody agreement between himself and Defendant. Plaintiff also requests that if the custody agreement is to be modified and he be awarded primary physical and sole legal custody of the child, that child support payments be made by Defendant to Plaintiff in accordance with the Child Support Standards Act. Defendant filed a cross-motion asking this court to dismiss Plaintiff's request for a change in custody and for permission to relocate.

Plaintiff's request for a custody modification is hereby denied and as such, the request for [*2]a change in the child support agreement is also denied.

It is well established that it is within a court's power to modify an existing custody order where there is a showing of a substantial change in the circumstances since the prior award, and the change of circumstances relate to the best interests of the child (Friederwitzer v. Friederwitzer, 55 NY2d 89 [1982]). It is the burden of the Plaintiff to establish that a change of circumstance has occurred which will ultimately affect the best interest of the child if the current custody agreement is not modified.

Plaintiff argues that three main factors have contributed to a substantial change in circumstance: first, Defendant's wish to relocate; second, Defendant's hostility and inability to co-parent effectively and finally; Plaintiff's stable and flexible employment. However, none of these factors rise to the level of a substantial change in circumstance and as such, the original award of custody must remain in effect.

Defendant has withdrawn her request to relocate with K.C. from Riverdale in the Bronx to Larchmont, New York. As Defendant no longer wishes to relocate, this cannot be a consideration of the court. The child remaining in the Bronx presents no substantial change in circumstance, and as the circumstances will remain the same, the best interest of the child is for the current agreement to remain in effect.

Defendant's hostility, while a challenge to co-parenting, has remained constant, if not lessened, since the order from the previous jurist. Plaintiff argues that the mother's hostility toward him and her lack of willingness to co-parent are not in the best interest of the child. Plaintiff cites the case Deanna V. v. Michael C., which states that the willingness of each parent to foster a positive relationship with the other parent should be a factor of consideration in determining the best interests of the child in a custody matter. Deanna V. v. Michael C., 179 AD3d 445, 446 (1st Dept 2021). While both parents have ultimately struggled to foster a positive relationship and co-parent effectively, this is only a single factor for the Court's consideration. Defendant, despite having engaged in inappropriate communications, has substantially complied with the custody agreement. A modification of custody based on a substantial change in circumstance is based on the totality of the circumstances, a single factor which may indicate that the current agreement may not be in the best interest of the child is not sufficient on its own for a modification of the agreement, especially when there has been substantial compliance.

Finally, Plaintiff asserts that his stable job with flexible hours creates an optimal home life for the child. However, the standard for a modification of a custody agreement is a substantial change in circumstance. Plaintiff's stable job appears to be a factor which was in existence when the parties stipulated to the current custody agreement and as such this factor cannot be considered in an analysis for a substantial change in circumstance. In Mathewson v. Sessler the Court concluded that newfound employment with flexible hours was not enough to rise to the level of a change in circumstance. Mathewson v. Sessler, 94 AD3d 1487, 1489 (4th Dept 2012). Here, there has been no change in employment; both parents have simply remained stable in their positions since the start of this case. As the mother's employment is not coming into question and the father's employment has not changed, these stable factors cannot be considered a change in circumstance to warrant a modification of the custody agreement.

Overall, the child is thriving and regularly spending time with both parents, and thus any claims of "alienation" or failure to facilitate the Plaintiff's relationship with the child are unavailing and are not supported by the undisputed facts in this case.

Ultimately, Plaintiff has not met his burden to prove that there exists a substantial change in circumstance which warrants a hearing on the best interests of the child. Therefore, the motion to modify the custody agreement is denied.

As the motion to modify the custody agreement has been denied, there is no basis for the court to consider Plaintiff's application for a change in the child support award. Defendant shall remain the primary custodian of the child and therefore is entitled to child support payments, as agreed to by the parties. Thus, there is no need to modify child support at this time.

Accordingly, it is hereby ORDERED that motion sequence 001 for a modification of the custody agreement is denied, and the request for a modification of the child support award is also denied. The cross-motion filed by Defendant was previously withdrawn.

This constitutes the Decision and Order of the Court.