Articles Posted in Trials

Many New York family law cases involve a child custody dispute. Most often, these disputes arise when the parents of a child or children go through a divorce and argue over who has primary custody of the children. However, in some cases, grandparents seek visitation or custody of a child. This may be after a divorce or even while the child’s parents are still together.

CounselorIn previous posts, we have discussed under which situations a court may award visitation or custody to grandparents. As previously noted, grandparents do not have a “right” to the custody of their grandchildren. Thus, custody will only be awarded to a grandparent if certain factors are present. Among others, a court must determine that awarding custody to a grandparent or grandparents is in the best interests of the child.

How Do Courts Determine What Is in the Best Interests of a Child?

Judges know the law. However, very few judges are trained in psychology, and fewer still are able to glean sufficient knowledge of a family’s dynamics through the evidence presented to the court. For example, much of the evidence presented in a New York custody case may be limited to text on a page, which may not provide a judge with much knowledge of the relationships between the parents, children, and grandparents. Additionally, any live-witness testimony has the potential to be biased or fabricated.

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A divorce case will often be an emotional and complicated time for everyone involved. Feelings are hurt, and in courtroom-898931_960_720-300x226some cases, sadness spurred by the end of a marriage can turn into anger, making the experience of litigation even harder to handle for those involved.  While I am a strong believer in alternative dispute resolution through processes like mediation or collaborative law for couples willing and able to go those routes, often, litigation is the process used.  As a divorce lawyer and child custody attorney, it’s my responsibility to help the people dealing with the complications of divorce to present their case as clearly, calmly, and effectively as possible in front of a New York judge. Often, this will mean telling a story on the behalf of the client, that begins with an opening statement, continues through to a body featuring witness testimonials, direct, and cross examination, and finishes with a closing statement.

From the very beginning when I start working with a client on their divorce case, we will discuss their circumstances in detail with them, and at times writing what I like to call “golden nuggets” of information down in the trial folder, so that we can refer to them later. This allows me to know what kind of story I want to tell throughout the course of the case, although it’s important to listen carefully to what the witnesses, and opposing lawyer says throughout the experience, as this can sometimes alter the considerations that need to be considered when presenting a divorce summation. Continue reading

Fair-Hearing-Pic-300x199Although the nature of divorce trials can change from one case to the next, it’s worth noting that divorce attorneys and child custody lawyers like myself often use a very specific set of techniques when presenting our case to the court. Those techniques allow us to create a story for the judge to follow, beginning with an opening statement that explains the nature of the state, then moving onto direct and cross examination. While direct examination is a process used by divorce attorneys to question our own witnesses and establish context within a trial, cross examination is a strategy that’s more focused on changing the perspective of the court to suit our specific client.

During a cross examination, divorce lawyers such as myself ask witnesses essential to our client’s case to provide an in-depth account of the facts that support the case presented by whichever party called the witness to begin with.  Cross examination allows opposing lawyers and perhaps the attorney for the children, if there is a custody dispute, to ask questions of the witness, in an attempt to reveal information that’s beneficial for their clients. For instance, as a cross-examiner in a divorce case, I might use carefully-worded questioning to draw light to points that present my client in a good light. For instance, I could ask the witness to reveal something positive that my client did, or draw more attention to the bad behavior of the opposing party. Continue reading

As a child custody lawyer, divorce attorney, and family law lawyer, I’ve been involved with several different divorceLawyerpinstripe-300x200 trials across Long Island and New York. While the specifics of these trials might change from couple to couple, it’s worth noting that the formats and many strategies attorneys typically use to present a case in front of a judge or jury have similarities. One of the most important elements involved in a divorce trial is the process of “direct examination”. This is the method that lawyers like myself use to outline facts and introduce exhibits, through our witnesses for the person we’re representing in any specific divorce case.

In the legal world, the concept of direct examination is used to refer to circumstances within a litigation trial, where the attorney questions his or her own witness to help give greater context and detail to a situation. After one side questions their witness on direct examination then the lawyers for the other parties, such as opposing counsel and sometimes the attorney for the child or children question the cross examination, where both attorneys can ask questions of the witness for the trial. I typically use direct examination as a way of getting to the bottom of the story with a witness, uncovering as much vital information as possible that can be used to support my client. Continue reading

A marriage is about joining two lives together at multiple Lawyer-with-Judge-300x200different touchpoints. When you agree to a marriage, you interweave almost every aspect of your life with your partner. For that reason, when a divorce takes place, it can be very complicated to untangle the situation, and make sure that both people come away feeling in-tact, and secure. While some cases of divorce can be handled with alternative dispute resolution strategies like mediation and collaborative law, some will eventually find themselves in front of the New York court. If your divorce requires litigation, then it’s worth understanding the different elements of a divorce trial, which you may need if your case does not settle ahead of time.

The opening statement for a divorce trial is basically the introduction to your case. It gives the judge context that they can use to understand the story behind your divorce. Petitioning parties in New York courts provide their opening statement to begin with, before the responding party has their opportunity. The important thing to remember about opening statements is that they’re generally not argumentative. Divorce lawyers like myself are not permitted to comment on the credibility of the other side during these statements, nor can we craft a story in an attempt to appeal to prejudice or passion. Continue reading

There are various elements involved in ensuring the best results fromJudgesbooks-300x200 a child custody case. Closing statements are one of the unique and valuable opportunities that child custody lawyers use when attempting to present their side of the story to the judge. Because managing a case with children involved can be particularly tricky, a summation or closing statement can provide a memorable way to draw all the facts of the case together into something that the judge can use to make their decision. Otherwise known as a “summation”, a closing statement, when performed by an effective child custody lawyer or divorce attorney, can sweep away any pre-existing feelings that the judge had, and replace their thoughts with a new insight into a custody case and why their clients desires are in the best interests of the child or children.  After all, that is what a child custody and parenting trial is all about.   

To some degree, a closing statement is similar to an opening statement. For instance, in both the opening and closing statements, the attorneys for both parties will have the opportunity to directly address the judge, and “discuss” the case, giving them a framework for understanding the role of each party in the case, and how the evidence should be considered. However, a closing statement can involve arguments that allow the child custody attorney to make their point more effectively, whereas an opening statement requires the lawyers for both sides to stick to the facts. Though arguments can be made about the evidence and how it was presented to help sway the judge or undermine the other party’s case, it’s worth noting that there are rules to follow. Continue reading

Child custody trials can be very challenging experiences for every individual Lawyer-Justice-Scales-226x300involved. After all, they require the court to consider the best interests of a child when moving forward after a divorce case. An important element to remember is that while many professional techniques are used during a child custody battle, no-one really “wins”. Instead, the best arrangement will be suggested based on the unique needs of the child, and the ability of a parent to provide the healthiest upbringing for that child.  It is very much preferred for parents to be able to make agreements as to what the custody and parenting time arrangements for their children will be.  Trials build the animosity between the parties and thereby are harmful to the children.  That being said, custody hearings and trials happen as people involved in a custody battle sometimes cannot or will not settle.

Opening statements represent the start of a custody trial.  Often times custody lawyers choose to waive opening statements as the trier of fact in the case is a judge (there are no jury custody trials in New York), not a jury, and the judge most likely would rather proceed to the testimony rather than hearing opening statements.  Opening statements are not evidence so a judge might actually appreciate the first witness being called who can provide evidence by their testimony, rather than hearing the musings of the child custody attorneys.  Continue reading

When it comes to pursuing the best interests of a child in the case of “child Kitchen-couple-fight-300x200custody” there are many different paths for an individual to choose. For instance, some partners considering divorce who must think about child custody concerns will decide to undergo a professional course of mediation, Mediation allows couples to negotiate over potential outcomes for their child, in a setting that allows each side to have their say, without the emotional hardship of litigation. On the other hand, there’s also a “middle-ground” between mediation and litigation that’s known as collaborative law, where spouses will work alongside divorce attorneys and other experts to make decisions regarding parenting time and visitation rights.

Of course, there will always be some cases in which the only option to truly outline the best interests of the child, will be to take the matter to court. In front of the New York Court, divorce attorneys and child custody lawyers will attempt to present a case that shows their client as being the care-provider who can offer the best future for the child in question. This will help the court to make a decision regarding the “best interests” standard for child custody. To present a case fully, attorneys like Mr. Shapiro will frequently use questioning in the form of direct examination, and cross examination.

The Difference Between Cross Examination and Direct Examination

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There are various ways to approach a child custody case. For some parents, the ChildGlasses-300x258best solution to negotiating things like parenting time, visitation, and custody, will be to consider an amicable approach featuring settlement negotiations, collaborative law or mediation. Indeed, many couples believe that mediation is a powerful option for cases regarding children, as it allows them to limit their risk of exposing the child to painful memories of their parents fighting or uncomfortable emotional experiences such as being interviewed by an Attorney for the Children, a forensic evaluator or a judge. However, avoiding court battles will not be possible for every case. In some instances, the only way to properly pursue the best interests of a child, will be to take the matter to a New York Family court or Supreme Court, and present it in front of a judge.

Litigation in family law is a complex, and often highly nuanced area. There are numerous skills, methods, and techniques that an attorney can use to sway the opinion of the judge, or potentially assist in outlining crucial points in a specific case. One common element of child custody cases, and indeed many litigation circumstances, is the use of “direct examination”. When properly done, direct examination in a child custody case can be used to demonstrate to the judge, or trier of fact, that a person’s request or plan for parenting time or custody is within the best interests of the child or children involved.

What is Direct Examination?

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detective desktopIn Anonymous v. Anonymous, a husband filed a motion for summary judgment to dismiss his wife’s petition alleging he’d violated an order of protection. The order of protection had been entered without a finding of fault and directed him to stay at least 1,000 feet away from the wife’s residence and job, except for court-ordered child visitation or to go to church on Sundays. It also ordered him not to commit a family or criminal offense against her.

The wife alleged that the husband had retained a private investigator. The PI recorded the wife, and the DVD showed she’d gone into a motel and had an affair with a priest at the church where she worked. The wife claimed the husband gave the DVD to her employers, and this forced her resignation.

She argued the husband had no legitimate purpose in sending a PI to follow her, and his goal was just to cause her to lose her job and humiliate her. She claimed this was a violation of the 2009 order of protection.

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