How Is a Child Custody Case Decided in New York?

I have handled a lot of Long Island child custody and visitation (aka parenting time) cases, particularly in Nassau, Suffolk, Queens, New York City and the surrounding areas.  I will discuss below how custody cases are decided in the Family Court and Supreme Court in contested child custody litigation or, what is aptly called a custody battle.  Mediation, collaborative law, and uncontested cases are alternative methods which will be addressed in other blog entries.

If a couple is not married, or they are married but there is not a divorce case pending, parents can consider using the Family Court for a custody case.  If a couple is married, living together, and co-parenting then the Family Court might decline to hear the case.  Parties should discuss with an experienced family law or matrimonial lawyer whether the Family Court would have jurisdiction in their particular situation.  Once a decision is made to file in Family Court or Supreme Court then appropriate papers must be drafted, filed, and served.  Although parties may represent themselves, it is advisable to use an attorney as navigating through a custody case in court can prove to be a tricky process.  The first court appearance is a conference date, whether in the Supreme Court or Family Court, in which the parties are free to consent to an agreement on what the custody terms and parenting time schedule will be for their children.

If an agreement is not made, often, an attorney to represent the child or children is appointed.  Usually, in the Family Court, the County will pay the fee for the attorney for the children.  In the Supreme Court, where a divorce must proceed in New York, usually the parties pay the costs for an attorney for the children.  The attorney for the children is required to advocate for the children’s’ desires.  In the case of very young children, sometimes it is appropriate for the attorney for the children to substitute their own judgment despite what the children are expressing.  This is determined on a case by case basis based, in part, on the maturity of each child.

If there are allegations of abuse or neglect of the children, the Court may order CPS (for Long Island cases) or ACS (in New York City) to investigate and report back to the court.  Home studies and other investigatory tools might be considered and ordered by the court.  Parties are wise to discuss these issues with their lawyer to consider appropriate requests to make to the court.  A very common order of the court, in a contested custody/parenting time case, is for a forensic investigation to be done.  A forensic investigation is usually made by a psychological professional that is an “expert” about children and custody and visitation or parenting time matters.  The forensic professional might be a psychiatrist, social worker or a psychologist.

If a forensic report is made and entered into evidence, it can be very influential to the Court that is deciding the case.  The forensic expert can be called as a witness at the trial as well.  The forensic recommendations are not necessarily determinative on what will be ordered by the court.  The trier of fact (Judge or Referee) has the final say about what will be ordered in any particular case.  Their decision is required to be what is in the children’s best interests.  A court can make an ultimate custody and parenting time order for a contested case only after a full evidentiary hearing in which both parties can testify and present other witnesses that have relevant information to give to the court.  Parties are free to make an agreement to settle the case at any time before a trial proceeds or is completed.

The court will issue an order according to what the court believes is in the children’s best interests.  If anyone is aggrieved by the court’s order they are entitled to make a timely appeal.  Modifications of custody and parenting time orders can be sought if there is a substantial change of circumstances from the time the last order is made.

Feel free to call to discuss what the various types of custody and parenting time arrangements are that are ordered or agreed upon.  The different types of custody and parenting time schedules will be subjects of other blog entries.

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