A Child’s Standing to Seek a Modification of Custody

July 19, 2011
Louis Sternberg

Black’s Law Dictionary defines standing as “[a] party’s right to make a legal claim or seek judicial enforcement of a duty or right.”  Generally only a child’s parents or close-relations such as family members have standing to seek a change in custody or visitation.  The Otsego Family Court addressed this issue in Matter of Trosset v Susan A. (32 Misc.3d 198) and determined that the child himself had standing to petition the court seeking a modification of custody.

The court pointed out that “children are not specifically granted standing in any of the statutes which confer standing to parties in custody or visitation matters” but, regardless, held that “in the absence of a statute granting a child standing to sue, standing depends upon whether the party has alleged facts showing a disadvantage to themselves as individuals.”  As a result, the court looked to the facts stated in the child’s petition and ultimately upheld the child’s standing.  Of course, standing only enables the child to petition the court and does not guarantee that the court will rule in favor of the child.

While this decision is noteworthy, one must understand that the decision does not set binding precedent outside of Otsego County and therefore a court in another county may find that a child does not have standing.  Additionally, it is very likely that this issue will eventually litigated in the appellate courts  which may overturn the Otsego Family Court’s decision.  Additionally, the decision does not examine factors one might consider relevant such as the age, intellect or motivation of the child.