## Facts

- The parents separated in 1988 and agreed to joint legal custody, with primary physical custody of both children to the mother and visitation to the father; the arrangement was incorporated into a 1991 divorce judgment.
- One child had asthma (diagnosed in 1986) and was later diagnosed with allergies including sensitivity to cigarette smoke (1990).
- The mother was a long-term smoker, including at the time of the divorce judgment and the established custody arrangement.
- In 1994, the father filed a Family Court Act article 6 petition seeking modification to transfer primary physical custody, asserting the mother exposed the asthmatic child to second-hand smoke and alleging health deterioration.
- The Family Court’s decision focused primarily on the smoking-related health concern.

## Issues

1. Whether a parent seeking to modify an existing custody arrangement must show a sufficient change in circumstances demonstrating a real need to change custody in the child’s best interests.
2. Whether the mother’s smoking in the presence of an asthmatic child, without record evidence of worsening health or other adverse effects, constituted a sufficient change in circumstances warranting transfer of primary physical custody.
3. Whether a court may modify custody based largely on a single factor without considering the full set of best-interests factors.

## Decision

- The Appellate Division reversed the Family Court order transferring primary physical custody to the father.
- The court held that modification of an established custody arrangement requires a threshold showing of sufficient changed circumstances.
- The court found the record did not establish a sufficient change in circumstances because the child’s asthma/allergies and the mother’s smoking predated the prior custody arrangement and there was no evidentiary support for claimed deterioration.
- The court concluded that smoking, on this record and standing alone, did not justify changing primary physical custody.
- Primary physical custody was reinstated with the mother, with the smoking-related health concern to be addressed through appropriate protective conditions rather than a custody transfer.

## Legal Principles

- A court should modify an established custody arrangement only upon a showing of sufficient changed circumstances demonstrating a real need for change to ensure the child’s best interests.
- Best-interests determinations require consideration of multiple factors, including the quality of the home environments, the duration of the existing arrangement, and each parent’s relative fitness and ability to support the child’s intellectual and emotional development.
- A custody modification should not be based solely on one factor when the evidence does not show a new or worsened condition or other facts indicating the existing arrangement no longer serves the child’s best interests.

## Conclusion

The Appellate Division held that a party seeking to alter an established custody order must prove changed circumstances and that the court must assess best interests through a multi-factor inquiry; because the mother’s smoking was longstanding and the record did not show deterioration or other harm, it was insufficient to justify transferring primary physical custody.


Matter of Lizzio v. Jackson, 226 A.D.2d 760 (N.Y. App. Div. 3d Dep’t 1996)