Under the circumstances, the best course of action is to simultaneously file a petition to modify custody along with a contempt petition.
In New York, as criminal attorneys in buffalo in new york know, to establish civil contempt based upon a violation of a court order, the petitioner (person filing the petition) must show that (1) a lawful court order was in effect at the time of the violation; (2) the order stipulated a clear condition that must be followed; (3) and the person alleged to have violated the order had actual knowledge of the terms. A willful violation of a Family Court order must be established by clear and convincing evidence
With regards to a petition to modify an existing custody order, New York courts have clarified that an existing custody order may be modified where petitioner establishes by a preponderance of the evidence that there has been a change in circumstances and that modification is necessary to ensure the best interests of the children.
In New York, criminal attorneys in buffalo ny know, when determining if a “substantial change in circumstances is present” the court focuses on the following factors: (a) the quality of each party’s home environment, (b) each parent’s past performance and stability, (c) each parent’s fitness and ability to guide and provide for the children’s emotional and intellectual development; (d) the length of time the custodial arrangement has been in place; (e) how faithful each party has been to the original order; (f) and the wishes of the children.
Here, in New York, as a criminal attorney in buffalo ny may predict, a court will likely find a substantial change in circumstances is present given that the father has repeatedly violated the order and due to the deterioration of the relationship between the parents. Under the circumstances, a court in New York would likely find the circumstances justify a finding that continuing joint custody would be against the child’s best interest.