Separation Agreements, Out‑of‑State Relocation, and Parental Interference in New York Custody Modifications: Commentary on Matter of Jennifer HH. v. Alavanh II.

Separation Agreements, Out‑of‑State Relocation, and Parental Interference in New York Custody Modifications:
Commentary on Matter of Jennifer HH. v. Alavanh II., 2025 NY Slip Op 06573 (3d Dept)

I. Introduction

This Third Department decision, Matter of Jennifer HH. v. Alavanh II., addresses three recurring and practically important issues in New York custody law:

  • What qualifies as a “change in circumstances” sufficient to reopen a custody arrangement for modification?
  • How does an out‑of‑state relocation intersect with a petition to modify physical custody?
  • How heavily will courts weigh a parent’s interference with the child’s relationship with the other parent?

The case arises from a post‑divorce dispute between divorced parents of a child born in 2013. Under a 2021 separation agreement, later incorporated (but not merged) into a 2022 judgment of divorce, the parents shared joint legal custody, with the father having primary physical custody and the mother enjoying substantial parenting time. After the mother relocated to Pennsylvania and alleged escalating interference with her relationship with the child, she petitioned for a modification of custody under Family Court Act article 6, seeking primary physical custody.

Family Court (Broome County, Young, J.) granted the mother primary physical custody, with scheduled parenting time to the father. On appeal, the father principally challenged (i) whether the mother had shown the threshold “change in circumstances,” given that her move occurred before the judgment of divorce, and (ii) whether the best‑interest determination was supported by the record. The Appellate Division, Third Department, affirmed.

The opinion is significant chiefly for:

  • Reaffirming that when a child’s relocation is intertwined with a modification request, relocation is analyzed within the general best‑interests framework, not as a freestanding issue.
  • Emphasizing that parental interference and efforts to “distance” the child from the other parent are powerful, potentially decisive factors in custody reallocation.
  • Clarifying, via footnote, how the timing of a relocation (after a separation agreement but before the judgment of divorce) can still support a finding of a post‑agreement change in circumstances.

II. Summary of the Opinion

The parents had a 2021 separation agreement granting joint legal custody, primary physical custody to the father, and “significant” parenting time to the mother. The agreement was later incorporated, without change, into a 2022 divorce judgment. In late 2021, the mother moved to Pennsylvania. In 2023 she petitioned to modify custody, alleging:

  • Her relocation to Pennsylvania had rendered the old schedule unworkable; and
  • The father was attempting to alienate the child from her, including by restricting contact and speaking negatively about her in the child’s presence.

After a fact‑finding hearing and a Lincoln hearing (an in‑camera interview with the child), Family Court found:

  1. A sufficient change in circumstances to re‑evaluate custody, grounded in the mother’s move and the father’s conduct limiting communication; and
  2. That the child’s best interests would be served by transferring primary physical custody to the mother, while providing the father with regular, meaningful parenting time (every other weekend and additional time during holidays and summer), with the mother responsible for transportation.

On appeal, the Third Department:

  • Held that the mother had established the required change in circumstances: the relocation to Pennsylvania (making the prior arrangement unworkable) and the father’s restrictions on communication.
  • Affirmed that Family Court properly undertook a best‑interests analysis that fully incorporated the relocation question.
  • Found a “sound and substantial basis” in the record for the conclusion that the child’s best interests were better served by the mother having primary physical custody, emphasizing:
    • The mother’s strong engagement with the child’s schooling and medical care;
    • Concerns about the father’s handling of health care, transportation (no driver’s license due to an alcohol‑related conviction), resumed alcohol consumption, and basic care (hygiene, clothing, and heating); and
    • Credible evidence of the father’s attempts to distance the child from the mother, including restricting communications and making disparaging remarks.
  • Rejected the father’s claim that the new parenting‑time schedule was inadequate, finding that it afforded “regular and meaningful access.”
  • Noted that the Attorney for the Child (AFC) supported primary custody with the mother and scheduled parenting time with the father.
  • In a footnote, rejected the father’s timing argument about the relocation, clarifying that although the mother moved before the divorce judgment, her move occurred after the custodial arrangement was negotiated in the separation agreement, which was later incorporated without change.

The order was affirmed, without costs.

III. Detailed Analysis

A. Procedural and Factual Background

The core procedural posture is a standard modification petition under Family Court Act article 6:

  • Original arrangement: April 2021 separation agreement:
    • Joint legal custody;
    • Primary physical custody with the father;
    • Substantial parenting time to the mother.
  • Divorce judgment: May 2022 judgment of divorce incorporating—but not merging—the 2021 separation agreement.
  • Relocation: Mother moved to Pennsylvania in late 2021, i.e., after the separation agreement but before the entry of the judgment of divorce.
  • Modification petition: Filed May 2023, seeking primary physical custody for the mother, with parenting time to the father.

The record contained evidence on:

  • The child’s good academic performance and supportive relationships with both parents;
  • Both parents’ extended families being involved and beneficial to the child;
  • The child’s ability to maintain half‑sibling relationships at the mother’s residence;
  • The mother’s consistent attendance at school events and medical appointments despite distance;
  • The father’s failure to bring the child to her regular pediatrician for over three years, relying instead on school physicals;
  • The father’s lack of a driver’s license due to a prior alcohol‑related driving conviction (over 10 years old), leaving him dependent on others for transportation to activities;
  • The father’s admission that he had resumed drinking about six months before the hearing;
  • The mother’s observations about the child’s occasional poor hygiene, inappropriate clothing for the weather, and concerns about inadequate heating in the child’s bedroom, which the father dismissed;
  • Most critically, the mother’s credible testimony that the father:
    • Spoke negatively about her in the child’s presence;
    • Took steps to restrict her access to the child at school; and
    • Restricted communications between her and the child, including blocking her from contacting him on his phone and social media, and failing to share the child’s new phone number.

The father disputed many of these points but admitted certain key facts (e.g., not bringing the child to her pediatrician, resuming alcohol use, restricting his own communications with the mother, not yet providing the child’s new number). Family Court explicitly credited the mother’s testimony over the father’s where their accounts diverged.

After a full evidentiary and Lincoln hearing, Family Court shifted primary physical custody to the mother, with regular, structured access to the father. The Third Department, applying its deferential standard of review, affirmed that outcome.

B. Doctrinal Framework Applied

1. Threshold: “Change in Circumstances”

New York custody modification jurisprudence has a two‑step structure. First, the moving parent must show a “change in circumstances” since the entry of the prior order sufficient to justify reopening the custody arrangement; only then may the court conduct a full best‑interests analysis.

The court restates this familiar rule (citing Matter of Mary N. v Scott M., 218 AD3d 890 [3d Dept 2023] and Matter of Barrett LL. v Melissa MM., 224 AD3d 942 [3d Dept 2024]):

“A parent seeking to modify an existing custody and parenting time order first must demonstrate that a change in circumstances has occurred since the entry thereof to warrant the court undertaking a best interests analysis.”

Two developments satisfied this threshold:

  • The mother’s relocation to Pennsylvania “rendered the prior custody arrangement unworkable,” which the father conceded.
  • The father took steps to restrict the mother’s communications with both him and the child.

By recognizing these developments as a sufficient “change in circumstances,” the court affirmed that:

  • A relocation which makes a prior schedule impracticable qualifies as a material change; and
  • Evidence of parental interference with the other parent’s contact with the child is itself a significant changed circumstance justifying re‑examination of custody.

The footnote is particularly instructive: although the father argued that the mother’s move pre‑dated the judgment of divorce, the court emphasized that the move came after the parties developed their custodial arrangement in the separation agreement, which the judgment later incorporated unchanged. By citing compare Matter of David BB. v Danielle CC., 216 AD3d 1281 (3d Dept 2023), the court signals that the baseline for “change” may be that agreement, not merely the formal judgment date, when the judgment simply adopts the pre‑existing arrangement.

2. Best‑Interests Analysis and Relocation

Once a change in circumstances is shown, the court applies the “best interests of the child” standard. The Third Department reiterates its standard list of factors, quoting Matter of Kelly AA. v Christopher AA., 240 AD3d 1011 (3d Dept 2025) and Matter of Jehrica K. v Erin J., 223 AD3d 1079 (3d Dept 2024):

“[C]ourts must consider a variety of factors, including the quality of the parents' respective home environments, the need for stability in the child's life, each parent's willingness to promote a positive relationship between the child and the other parent and each parent's past performance, relative fitness and ability to provide for the child's intellectual and emotional development and overall well‑being.”

Importantly, the court notes that where a modification effectively entails relocation of the child, relocation is not evaluated separately but folded into the best‑interests framework (citing Matter of Janaye D. v Zachary C., 240 AD3d 961 [3d Dept 2025] and Matter of Alicia SS. v Andrew RR., 224 AD3d 1207 [3d Dept 2024]):

“Where, as here, the practical effect of granting a modification petition is relocation of the child, relocation must be considered within the framework of what custodial arrangement would serve the child's best interests.”

The child’s preferences, while “not determinative,” remain relevant, depending on age, maturity, and susceptibility to influence, as the court notes by citing Matter of David JJ. v Tara KK., 240 AD3d 984 (3d Dept 2025).

3. Standard of Appellate Review

A recurring theme in custody appeals is the limited scope of appellate re‑weighing of evidence. The court reiterates its usual formulation, again quoting Barrett LL. and Matter of Matthew L. v Sierra N., 229 AD3d 866 (3d Dept 2024):

“This Court accords great deference to Family Court's factual findings and credibility determinations, and will not disturb its custodial determination if supported by a sound and substantial basis in the record.”

Because Family Court directly hears testimony and observes the parties, its credibility determinations and factual inferences will be upheld absent a clear lack of evidentiary support. The Third Department expressly relies on this principle to uphold the trial court’s decision to credit the mother’s testimony over the father’s.

C. Precedents Cited and Their Role

The opinion uses a series of prior Third Department decisions primarily to restate and reinforce existing doctrines. While the details of those decisions are not set out in this slip opinion, their doctrinal roles are clear from context.

1. Change in Circumstances Line of Cases

  • Matter of Mary N. v Scott M., 218 AD3d 890 (3d Dept 2023)
    Cited for the standard that a parent must first demonstrate a post‑order “change in circumstances” to justify a best‑interests analysis. It reinforces that the change‑in‑circumstances prerequisite is well settled and firmly applied.
  • Matter of Barrett LL. v Melissa MM., 224 AD3d 942 (3d Dept 2024), lv denied 42 NY3d 905 (2024)
    Again cited for the same threshold and for the appellate standard of “sound and substantial basis.” In Jennifer HH., Barrett LL. serves as a recent anchor for both (i) threshold requirements and (ii) appellate deference.
  • Matter of LaBaff v Dennis, 160 AD3d 1096 (3d Dept 2018) and Matter of Timothy N. v Gwendolyn N., 92 AD3d 1155 (3d Dept 2012)
    These cases are referenced for the proposition that a relocation rendering a prior custody arrangement impracticable can constitute a change in circumstances triggering a fresh best‑interests analysis. They situate the mother’s move to Pennsylvania within an established line of relocation‑as‑change‑in‑circumstances cases.

2. Best‑Interests Framework and Relocation

  • Matter of Kelly AA. v Christopher AA., 240 AD3d 1011 (3d Dept 2025) and Matter of Jehrica K. v Erin J., 223 AD3d 1079 (3d Dept 2024)
    Cited to restate the multi‑factor best‑interests framework—home environments, stability, willingness to foster the other parent’s relationship, past performance, and capacity to meet the child’s developmental and emotional needs.
  • Matter of Janaye D. v Zachary C., 240 AD3d 961 (3d Dept 2025) and Matter of Alicia SS. v Andrew RR., 224 AD3d 1207 (3d Dept 2024)
    These decisions frame the integration of relocation into the best‑interests analysis when the relief sought is a modification, not a stand‑alone relocation application. The court relies on them to reinforce that when changing custody necessarily shifts the child’s residence, the relocation question is assessed as part of the holistic best‑interests evaluation.
  • Matter of David JJ. v Tara KK., 240 AD3d 984 (3d Dept 2025)
    Cited for the principle that a child’s stated preferences are an “indication” of best interests but are not dispositive. The reference underscores the role of the Lincoln hearing in informing (but not controlling) the outcome.
  • Matter of Matthew L. v Sierra N., 229 AD3d 866 (3d Dept 2024), lv denied 42 NY3d 907 (2024)
    Used to reiterate appellate deference to Family Court’s best‑interests determination when supported by a “sound and substantial basis” in the record.

3. Parental Interference and Fostering Relationships

  • Matter of Joshua XX. v Stefania YY., 218 AD3d 893 (3d Dept 2023), along with Janaye D., Barrett LL., and Mary N.
    These cases collectively underpin the principle that a parent’s efforts to distance a child from the other parent—whether through disparagement, interference with access, or obstruction of communication—are powerful negative factors in a best‑interests analysis. In this opinion, they are cited to support the conclusion that the father was “less committed than the mother to fostering healthy parent‑child relationships,” justifying a shift in primary physical custody.

4. Parenting Time and “Meaningful Access”

  • Matter of Michael M. v Makiko M., 238 AD3d 1304 (3d Dept 2025)
    Cited for the proposition that a noncustodial parent must receive “regular and meaningful access” to the child, but not necessarily any particular schedule the parent prefers. Here, it supports the holding that alternate‑weekend visits, plus holiday and summer parenting time (with the custodial mother providing transportation), meet this standard.

5. Role of the Attorney for the Child

  • Matter of Carla UU. v Cameron UU., 227 AD3d 1257 (3d Dept 2024) and Matter of Tara DD. v Seth CC., 214 AD3d 1031 (3d Dept 2023)
    These cases clarify that while the Attorney for the Child’s recommendations are not binding, they are relevant and can lend support to the selected custodial arrangement. The court notes that in this case, the AFC endorsed the outcome (primary custody with the mother, structured time with the father).

6. Timing of Relocation vs. Judgment of Divorce

  • Matter of David BB. v Danielle CC., 216 AD3d 1281 (3d Dept 2023)
    Referenced in a “compare” citation in footnote 1, indicating that David BB. likely involved materially different timing or circumstances concerning a pre‑judgment move. The contrast is used here to justify treating the mother’s relocation as a post‑agreement change even though it pre‑dated the judgment of divorce, because the custody terms were formulated in the earlier separation agreement that the judgment later adopted without change.

D. The Court’s Legal Reasoning Applied to the Facts

1. Establishing a Change in Circumstances

The court’s analysis on this threshold question proceeds in two steps:

  1. Relocation making the prior schedule unworkable
    The mother’s move to Pennsylvania made the original custody and parenting‑time regimen—which assumed closer geographic proximity—impracticable. Importantly, the father “concede[d]” this point. The court accepts this concession and, consistent with prior case law, holds that such a development is sufficient to trigger a new best‑interests analysis.
  2. Communication restrictions as changed circumstances
    The court notes “efforts” by the father “to restrict the mother's communications with him and the child.” These are not merely discretionary choices but touched upon the core of parent‑child contact. Given that custody and parenting time were premised on cooperative joint legal custody, escalating restrictions by one parent can itself constitute a substantial change in circumstances.

Through this reasoning, the Third Department reaffirms that both physical circumstances (relocation) and relational/behavioral changes (interference with contact) can form the foundation for modifying an existing custody order.

The footnote addresses a subtle but important doctrinal point: the father’s argument that because the mother’s move preceded the judgment of divorce, it cannot be a “change” since the entry of that judgment. The court effectively looks behind the formal judgment date to the functional origin of the custody arrangement—the 2021 separation agreement:

  • The custodial terms were developed in 2021;
  • The move occurred after that agreement;
  • The judgment of divorce simply incorporated those terms “without alteration.”

Thus, the move was a change relative to the arrangement the parties had negotiated, even though it preceded the formal judgment. This is an important clarification for practitioners: when a judgment simply incorporates an existing separation agreement, courts may treat substantial post‑agreement developments as “changes in circumstances,” even if they occur before the judgment date.

2. Applying the Best‑Interests Factors

Having found a change in circumstances, the court engages in a multi‑factor best‑interests analysis.

a. Quality of Home Environments and Stability

The court recognizes:

  • Both parents are “loving and supportive” of the child’s interests.
  • Both homes involve extended family and appear generally positive for the child.
  • The child benefits from half‑siblings on the mother’s side and will be able to pursue her interests in Pennsylvania.

Thus, the case is not framed as one “good” and one “bad” environment in the broad sense. Instead, the court drills down into specific dimensions of care and parental functioning:

  • The mother undertook significant travel to attend school events and medical appointments, demonstrating engagement and reliability.
  • In contrast, the father:
    • Had not taken the child to her regular pediatrician in over three years, relying instead on school physicals;
    • Lacked a driver’s license due to an old alcohol‑related conviction, making him dependent on others for transportation to extracurricular and school activities;
    • Had resumed drinking about six months before the hearing.

While the opinion does not treat the old conviction as dispositive, the ongoing lack of a license and renewed alcohol consumption raise concerns about reliability and long‑term stability, particularly in fulfilling day‑to‑day parental responsibilities involving transportation and supervision.

Additionally, the mother’s testimony about the child sometimes being poorly clothed for the weather, lacking hygiene, and her concerns about inadequate heating (dismissed by the father) speak directly to the adequacy of daily care. The Third Department, deferring to Family Court’s credibility determinations, effectively accepts these concerns.

b. Medical and Educational Involvement

The court places discernible weight on the mother’s active involvement in medical and school matters, despite geographic distance, versus the father’s passivity:

  • The mother traveled “hours away” to attend school events and medical visits.
  • The father delegated routine annual physicals to the school and did not maintain regular pediatrician visits for over three years.

This contrast goes to “past performance” and “ability to provide for the child's intellectual and emotional development and overall well‑being.” It also signals that courts will credit concrete, documented involvement (e.g., attending appointments and events) more heavily than general claims of supportiveness.

c. Willingness to Foster the Child’s Relationship with the Other Parent

This is the fulcrum of the decision. The court identifies “credible evidence” that the father:

  • “Spoke poorly of [the mother] in the child's presence”; and
  • Acted “to restrict her access to the child in school and to communicate with him and the child for an extended period of time.”

Specific facts include:

  • Blocking the mother on his phone and social media, even if he claimed she could still contact the child;
  • Failing to provide the mother with the child’s new phone number, despite having had the new phone for about three weeks by the time of the hearing;
  • Allegations (which the court implicitly credits) that he kept the child home from school to avoid a planned lunchtime visit by the mother.

Against this, the father denied intentional interference but the trial court credited the mother’s version. The Third Department, applying its deferential standard, accepts those credibility determinations and draws the conclusion that the father was “less committed than the mother to fostering healthy parent‑child relationships.”

In custody law, a parent’s demonstrated willingness—or unwillingness—to encourage the child’s relationship with the other parent is often determinative. Here, the father’s pattern of restrictive behavior and disparagement outweighed his status as the original primary residential parent and the child’s academic success under his care.

d. The Child’s Wishes

The opinion notes that a Lincoln hearing was conducted but does not detail the child’s statements. By citing David JJ. v Tara KK., the court reinforces:

  • The child’s preferences are relevant but not controlling; and
  • The weight given depends on the child’s age, maturity, and vulnerability to parental influence.

Given that the child was born in 2013, she was about 10–11 years old at the time of the proceedings—old enough for her views to matter but young enough that undue influence remains a concern. The Third Department’s reliance on the “sound and substantial basis” standard suggests it found no reason to disturb whatever balance Family Court struck between the child’s wishes and other factors.

3. Crafting the Parenting‑Time Schedule: “Regular and Meaningful Access”

The father argued that the new schedule did not afford him adequate contact with the child. The Third Department rejected this claim, invoking Michael M. v Makiko M. to emphasize that:

  • A noncustodial parent is entitled to “regular and meaningful access,” not a particular configuration of days; and
  • Here, alternate‑weekend parenting time, combined with holidays and summer breaks—and facilitated by the mother’s obligation to provide transportation—met that standard.

The court’s finding that the schedule is adequate is particularly important given the interstate nature of the arrangement. It underscores that meaningful access does not require equal time, and that courts can tailor schedules in recognition of interstate travel demands while maintaining robust ongoing contact.

4. Role of the Attorney for the Child

The court notes that the Attorney for the Child supported awarding primary physical custody to the mother with structured, but potentially expandable, parenting time for the father (“with additional time to the father as the parties may agree”). By citing Carla UU. and Tara DD., the court indicates that while the AFC’s position is not binding, it is persuasive, especially where it aligns with the court’s assessment of the evidence.

The AFC’s stance likely reflects confidential insights gained from the child herself as well as from reviewing the broader record. The Third Department’s reference signals that its affirmance is consistent not only with the record but also with the considered view of the child’s independent counsel.

E. Impact and Future Significance

1. Clarifying the Timing of “Change in Circumstances” in Agreement‑Based Orders

The footnote concerning the timing of the mother’s move is the most doctrinally distinct feature of the opinion. It suggests that:

  • Where a custody arrangement is first set by a separation agreement and later incorporated (without change) into a judgment of divorce, the substantive baseline for “change in circumstances” may be the agreement’s date, not solely the judgment date; and
  • Substantial changes occurring after the agreement but before the judgment—such as a relocation—may be treated as post‑arrangement developments supporting modification.

This is particularly important because many New York divorces are structured around comprehensive separation agreements incorporated into later judgments. Parents and counsel should understand that “locking in” terms in an agreement does not immunize the arrangement from reconsideration where significant developments occur shortly thereafter, even before entry of judgment.

2. Continued Centrality of Parental Interference as a Deciding Factor

The opinion fits within a consistent, and increasingly explicit, line of cases in which the Third Department:

  • Treats evidence of intentional interference with the other parent’s relationship—through disparagement, obstruction of contact, or manipulative scheduling—as a serious strike against that parent;
  • Is willing to reallocate primary physical custody to the parent more committed to fostering the child’s relationship with both parents, even if that parent is moving the child to another state; and
  • Frames such interference as undermining the child’s emotional health and long‑term best interests.

Practically, this opinion sends a clear message: a parent who habitually impedes the other parent’s contact or denigrates the other parent in front of the child risks losing physical custody—even where the child is otherwise doing well academically and has an established residence with that parent.

3. Out‑of‑State Relocation within Modification Proceedings

Jennifer HH. reinforces and operationalizes the principle that when relocation is tied to a custody modification request, the court’s focus must remain on:

  • Which overall custodial arrangement—considering geography, parental functioning, and the child’s needs—best serves the child;
  • Whether the noncustodial parent can still receive “regular and meaningful access”; and
  • How the relocating parent has historically engaged in the child’s life (as here, through high‑effort participation in school and medical care despite distance).

The decision demonstrates that:

  • Relocation away from New York (to Pennsylvania) does not, by itself, count against the moving parent; and
  • The key question is whether the child’s overall well‑being is enhanced by living with the relocating parent and whether the relationship with the stay‑behind parent can be preserved and supported.

4. Emphasis on Concrete Parental Conduct Over Formal Status

Although the father was the original primary residential parent and the child was apparently doing well academically, the court looked beyond those surface indicators. It considered:

  • Actual patterns of medical care;
  • Daily care factors (hygiene, clothing, heating);
  • Transportation challenges and the father’s resumed alcohol use; and
  • Documented interference with the mother’s contact and relationship.

The outcome reinforces that primary physical custody is not a permanent entitlement; it can be revisited where ongoing conduct shows that the other parent is better positioned to meet the child’s comprehensive needs and foster both parent‑child relationships.

IV. Clarification of Complex Legal Concepts

Family Court Act Article 6
Article 6 of the New York Family Court Act governs custody and visitation proceedings. It allows parents, and in some situations others, to petition Family Court for initial custody orders or to modify existing ones. Matter of Jennifer HH. arises under this article as a post‑judgment modification proceeding.
“Change in Circumstances”
This is a threshold requirement for modifying an existing custody or parenting‑time order. The moving party must show that circumstances have materially changed since the prior arrangement was made (or order entered), such that re‑examining the child’s best interests is warranted. Examples include:
  • Significant relocation altering the practicality of the schedule;
  • Serious health, substance‑abuse, or criminal issues emerging in a parent’s life; or
  • Marked increases in conflict or interference affecting the child’s relationship with a parent.
Without such a showing, courts aim to preserve stability and avoid repeated re‑litigation.
Best Interests of the Child
This is the overarching standard in custody cases. It is not a single formula but a holistic evaluation of factors including:
  • Stability and continuity of the child’s home and school;
  • Quality and safety of each home environment;
  • Each parent’s mental and physical health;
  • Each parent’s past performance and reliability in caregiving;
  • Each parent’s willingness to support the child’s relationship with the other parent;
  • The child’s preferences, where age‑appropriate; and
  • Any evidence of abuse, neglect, or serious dysfunction.
Courts weigh these factors case‑by‑case, with no single factor automatically controlling (except, in practice, severe safety concerns).
Relocation within Custody Modification
When a parent’s move will change the child’s residence, courts often speak of “relocation.” In a pure relocation case, the focus is whether a relocating custodial parent may move with the child. In a modification case, as here, the relocation issue is embedded in the broader question: which custodial arrangement—considering one parent’s residence in another state—serves the child’s best interests? The Third Department treats relocation as one important factor within the overall best‑interests analysis, rather than as a separate test.
“Incorporated but Not Merged” Separation Agreement
A separation agreement may be:
  • Incorporated into the divorce judgment, meaning its terms become part of the judgment; and
  • Not merged, meaning the agreement remains a separate contract that can be enforced as such.
In Jennifer HH., the 2021 separation agreement’s custody provisions were incorporated, but not merged, into the 2022 judgment. The court’s footnote indicates that for change‑of‑circumstances analysis, it looked back to when the parties “developed” their custodial arrangement (the agreement), not just to the date of the judgment that later adopted it.
Lincoln Hearing
A Lincoln hearing is an in‑camera interview of the child by the judge, named after Lincoln v Lincoln. The goal is to obtain the child’s views, concerns, and preferences in a private, less intimidating setting, without forcing the child to testify in open court. The transcript is usually sealed and not shared with the parents. The judge considers the child’s wishes along with other best‑interests factors.
“Sound and Substantial Basis” Standard
This is the standard an appellate court uses when reviewing Family Court’s factual and discretionary determinations in custody cases. It means:
  • If Family Court’s decision has reasonable support in the record—testimony, documents, reports—it will be upheld;
  • The appellate court does not substitute its own view of the evidence or re‑assess witness credibility unless there is a clear lack of evidentiary support.
In Jennifer HH., the Third Department repeatedly emphasizes this deference in affirming Family Court’s choice to credit the mother’s testimony and to shift primary custody.

V. Conclusion

Matter of Jennifer HH. v. Alavanh II. is not a radical departure from existing New York custody law, but it meaningfully refines and reinforces several important points:

  • Timing of change in circumstances: Even when a relocation precedes the judgment of divorce, it can support a finding of change in circumstances where it occurs after the separation agreement that originally structured custody and where the judgment simply incorporates that agreement without change.
  • Relocation as part of best‑interests analysis: When modification of custody effectively entails relocation, the relocation is assessed as one factor within a comprehensive best‑interests framework, rather than as a separate or competing test.
  • Parental interference as a decisive factor: A parent’s efforts to restrict or undermine the other parent’s relationship with the child—through communication blocks, disparagement, or manipulating access—can outweigh that parent’s status as the current primary custodian and the child’s academic success, and can justify transferring primary physical custody.
  • Concrete caregiving conduct matters: Courts will scrutinize specific, verifiable behaviors—attendance at school and medical appointments, attention to hygiene and appropriate clothing, handling of transportation and substance use—rather than relying solely on broad characterizations such as “loving” or “supportive.”
  • Meaningful access for the noncustodial parent: Interstate realities notwithstanding, schedules providing regular weekend, holiday, and summer contact—especially where the custodial parent assumes transportation duties—can satisfy the requirement for “regular and meaningful access.”

For practitioners and parents, the decision underscores that custody arrangements, even when grounded in negotiated separation agreements and recent divorce judgments, remain subject to modification when real‑world circumstances and parental conduct shift in ways that materially affect the child’s best interests. In particular, persistent interference with the other parent’s relationship with the child is likely to carry heavy negative weight and can reconfigure even longstanding custody arrangements.

Case Details

Year: 2025
Court: Appellate Division of the Supreme Court, New York

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