When Should a New York Court Refrain From Ordering Forensics in Child Custody Cases?

babyIn an overwhelming number of cases, parents agree to a child custody arrangement without involving the court. However, some child custody cases are brought to court because parents are unable to agree. In those cases, the Supreme Court or Family Court is supposed to allocate to each parent decision-making, care-taking, and access to the child, making these determinations based on what would be in the best interests of the child.

Custody determinations related to best interests depend largely on the court’s assessment of the parties’ credibility, character, and temperament. The higher courts are not supposed to interfere with these determinations, made by a trial court, unless they lack a sound and substantial basis in the record.

Under New York Family Court Act § 251, the court can order anyone within its jurisdiction and the parent or other person legally responsible for the care of a child within its jurisdiction to be examined by a physician, psychologist, or psychiatrist designated for that purpose if the examination serves the purposes of the act. This person can provide a forensic evaluation that allows the court to determine which custody and visitation arrangement would be in the best interests of the child.

Once a forensic evaluator is appointed, an initial meeting is set up, and the evaluator meets individually with the parents and children, as well as other relevant collateral figures in the child’s life, such as friends, grandparents, neighbors, or teachers. However, the requirements related to the use of evaluators are not set forth in a detailed way by law. The law doesn’t put forth specific qualifications for appointment, and court orders are not uniform and in some cases are vague, such that the evaluator doesn’t know how to proceed.

Moreover, forensic evaluations are not always necessary. They are appropriate only when there are serious issues of fitness alleged. For example, when one parent alleges that the other parent has committed sexual abuse, domestic violence, or verbal or emotional abuse, or has problems with substance abuse, a forensic evaluation may be appropriate. The court may decide to order the evaluation even if neither party asks for it, when allegations of this nature are made. However, there are cases in which forensic evaluations would be overreaching.

For example, in Matter of Alfonso N. v. Iris R., a lower court ordered that a father’s motion asking that mental health consultants be appointed for the mother in order to determine child custody be denied without prejudice. The Family Court in that case had previously dismissed the father’s enforcement petition for a failure to comply with court orders that required him to get authorization from the court before filing further proceedings because he was a vexatious litigant (someone who sues others just to be a nuisance to them).

The appellate court affirmed the lower court’s order denying the motion for a forensic evaluation of the mother without a hearing because the paperwork didn’t include a basis for ordering the evaluation or modifying the final custody order. The appellate court noted that this was within the lower court’s discretion, and the lower court had considered the position of the child as advocated by his attorney.

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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