Custody trials can be a challenging part of a divorce or post-judgment divorce case in the Supreme Court where there is a disagreement over the custody and parenting time of a child. A custody and visitation (parenting time) case can also proceed to trial in the Family Court. Although the procedures to get to trial and other aspects of the case might have differences between the Supreme Court and Family Court, the actual trial on the custody and visitation of the children fundamentally will be the same in the two New York courts. I am a Long Island Child Custody Attorney and have experience handling Supreme Court and Family Court child custody cases all around New York City and Long Island.
There are two general categories of custody trials that I am going to discuss in this blog entry. The two are an initial custody determination and a modification of a prior order (writs of habeas corpus, contempt and enforcement proceedings will be discussed in later entries). In both categories, the Judge or Trier of Fact (sometimes called a Referee), must make the final decision on what is in the children’s best interests. However, in a modification of custody proceeding there is an additional first obstacle that needs to be surmounted. The requesting party must first prove that there is a substantial change of circumstances that requires the best interests of the child(ren) to be weighed. It is important for the lawyer and the parties to keep these standards in mind throughout a trial in order to present the most compelling and relevant information to the court. The judge on your case will appreciate a focused presentation that does not include too much superfluous information or irrelevant material. There are no jury trials for custody issues in New York so the hearing is what is called a bench trial. The judge is the audience and the person who decides the case.
The petitioning or moving party goes first and will be given the opportunity to make an opening statement. The responding party or other side of the case will be given a chance to make their opening statement afterwards. Often their will be an attorney for the child or children that will also have the chance to make a statement. Sometimes lawyers, or self-represented parties, will waive their right to make an opening statement and choose instead to let the evidence brought out, or the lack of evidence, speak for itself. That is because the opening statements are not actually evidence. They are a recitation of what might be brought out in evidence. Stylistic preferences, and the facts of the case, will influence whether to make an opening statement or how to do it. It is important to keep those aforementioned standards in mind, specifically, if a substantial change of circumstances needs to be first shown. Also, everyone should never lose sight that ultimately what is in the best interests of the child(ren) is most important.
The relevant time period for the presentation of evidence in a modification of custody or parenting time case is usually limited to after the date of the last custody order. It is expected that there will be a wider range of time permissible to present evidence about in an initial custody determination. The birth of the child to the present will usually be fair game in the initial determination cases. Some information about the pregnancy and background history might be relevant to the case. Ultimately, however, the judge decides at the trial what is relevant and not. Objections to irrelevant evidence should be sustained and the information should not be considered in determining the case.
It is important to make objections at trial, to preserve the record, in case the trial is not decided in your favor. The issue that the objection is about can then be brought up on appeal. The failure to object to something improper at trial might waive the right to have the issue reviewed on appeal. Evidence must be competent and relevant. The rules of evidence are tricky and it even takes lawyers years to gain mastery of them. Because the rules of evidence apply at trials, it is recommended to use an experienced trial attorney in your custody case. Even if the facts are on a parties’ side, the facts are not very useful if they are not brought into evidence. More details on the rules of evidence will be a topic of a future blog entry.
After opening statements, it is time for the presentation of evidence which usually comes in the form of testimony from witnesses. When each side has their turn to call witnesses this is their direct case. The witnesses should have knowledge about the relevant topics to be presented in admissible form. Parties to the case can testify and other witnesses can be called to testify on behalf of all the parties. Non-leading questions should be asked on direct examination. After the direct examination of a witness, the lawyers for the other parties (including the attorney for the children) will get to cross-examine the witness. Leading questions are permitted on cross. Redirect exams and re-cross exams might come into play depending on the case. After the first witness has completed this cycle, they are excused and any other witnesses can be called by the presenting party who then are examined by everyone. The judge might have their own questions for any witnesses and might ask them in the middle of their testimony or at the end of the others questions. The court might have their own witness(es), such as a forensic expert, who will then be examined by the other lawyers or parties. An “in-camera” interview is sometimes done in which the Judge meets with the child(ren) in his or her chambers and gets information from the children
At the close of the presenting party’s case, a trial motion to dismiss may be made for failure to present what is called a prima facie case. This could come into play, for example, if it is a modification of custody case and the claim is that the moving party did not present a substantial change of circumstances to allow the case to go further. Assuming the case is not dismissed at the close of the petitioner’s or plaintiff’s case, the other parties will be able to present their cases through the introduction of witnesses and evidence. At the close of testimony, closing arguments will be made. The closing arguments can be a summary of what was shown or not shown at trial and why the facts viewed in light of the applicable precedents and laws dictate the outcome that is desired. The court will then make its decision. Sometimes a decision will be made right away at the close of the trial, or the court might “reserve” decision which means they will send a decision at a later time.
Appeals, motions to reargue, enforcement, contempt and modification proceedings all might come into play after the decision is handed down. Feel free to call for a free initial consultation about your custody and parenting time issues. It will be our pleasure to speak with you about it.