When Should a New York Court Order Forensics in Child Custody Cases?

childChild custody and time-sharing arrangements in New York are determined based on the children’s best interests. In some cases, a forensic evaluation is ordered. This may include general and specialized psychological testing and clinical interviews of the parents and children. In some cases, collateral information is also gathered, and home visits are made.

Forensic evaluations are not always necessary, but they may be appropriate in cases in which there are sharp factual disputes that affect the final determination of where a child will live and which kind of custody, parenting time or visitation arrangement is in the child’s best interest. Generally, the court will look at the circumstances of the parents and child and see whether there are particular issues that would warrant an in-depth inquiry. The court is supposed to order forensic evaluations sua sponte (on its own motion), even if neither party expressly requests it. The evaluator is typically appointed based on recommendations.

Issues that might necessitate a forensic evaluation may include relocation issues, a parent or a child’s emotional problems, allegations of alcohol abuse, or facts that indicate a custodial parent might undermine the relationship between a child and the other non-custodial parent. In Matter of Shanika M. v. Stephanie G., for example, Stephanie was the aunt of a child that her domestic partner, Shanika, and she were taking care of but never formally adopted. The parties separated when the child was two years old, and the child continued to live with Stephanie.

The parents entered into a voluntary visitation arrangement, until at some point they fought, and Stephanie refused to let Shanika have any more contact with the child. Shanika filed a petition for custody and guardianship, as did Stephanie. Without ordering forensic evaluations, the Family Court denied Shanika’s petition and granted Stephanie’s petition, naming Stephanie as the child’s sole guardian. The appellate court explained that deciding the issue of guardianship in this case without the aid of forensic evaluations was in error. It explained that under the circumstances, the record was inadequate to determine the child’s best interests, since there was no expert assessment of the psychological impact of separating the child from Shanika.

Also affecting the appellate court’s ruling were Stephanie’s allegations of alcohol abuse by Shanika and Shanika’s allegation of alienation by Stephanie and her new partner. The court found it proper to have a forensic evaluation of both mothers and the child to help rule on the factual issues and determine guardianship.

Some parents might be concerned about whether a forensic evaluation violates their right to privacy. However, under New York Civil Practice Laws and Rules 3121, when the mental or physical condition of a party is in controversy, the other party can serve notice and require a physical or mental examination by a designated doctor. It is generally accepted that when you engage in a contested custody proceeding, you place your child’s and your own physical and mental condition at issue, such that a psychiatric or other forensic evaluation may be appropriate.

For more information about child custody arrangements in New York, schedule a free initial appointment with Darren M. Shapiro. Mediating couples are invited to come together for their free consultation. You can access us by filling out our online form or contacting us via phone at 516-333-6555.

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