In child custody, visitation, and parenting time cases, a lot of issues can come to the surface. While any family law case can be a complicated and emotional experience for everyone involved, cases which include children are often particularly difficult, because everyone has strong opinions about how the case should be settled.
In many cases, I find that parents end up agreeing to their own idea of the perfect parenting time and visitation strategy through mediation with a professional like myself (when I am a mediator for the parties, I am neutral and meet and speak with the couple together from the outset and throughout). This agreement can then be given to the courts for their approval. However, in other circumstances, for couples that choose litigation as their divorce process, the case may need to go to the courts. In this bullet-point guide series, we’re looking at some of the major factors parents and other parties may need to know when addressing parenting and visitation time cases.
In this section, I’ll be talking about forensics, and when they might be ordered by the courts to help with making decisions about a child’s wellbeing.
When Do Courts Refrain from Ordering Forensics?
In many cases, parents agree to a child custody arrangement without getting the court involved at all except to make their agreement into an order. Courts always retain discretion when it comes to custody and parenting time agreements so the only way to know that the agreements are legally enforceable is when a court signs off on it and makes it into an order. However, there are some instances of child custody cases which do end up coming to the courts, because the parents cannot agree. In these scenarios, the family or supreme court will allocate primary physical custody to one parent or joint physical custody to parents, as well as making decisions about parenting time.
- Parenting time and custody arrangements are issued to parties in a child custody case based on the courts determination of what will be best for the children involved after presentations from the child custody attorneys in a case. The courts will need to assess a range of different factors here, including the credibility of the parties involved, their temperament, and their character. Appellate courts often do not overturn these determinations when made by a trial court as they believe that the discretion to assess these matters is best left to the trial courts
- New York family court act and Domestic Relations Law indicate that the court can require many people to be examined by psychiatrists, psychologists, physicians, and other medical professionals under appropriate circumstances. In the case of a forensic evaluation for a child custody and parenting time case, this person can provide information which helps the court in making decisions based on the best interests of the child. Once an evaluator has been appointed, the forensic professional will meet with the children and parents in each case, as well as relevant other people in the child’s life.
- Some jurists, practitioners, and parents might try to avoid forensic evalutions as they may feel that the process is disruptive to the psychological health and wellbeing of the child.
Forensic evaluations may be particularly important, though, when there are serious issues of alleged problems with the fitness of the parent in raising a child. For instance, when one parent alleges that the other has committed domestic violence, emotional or verbal abuse, or has a problem with substance abuse, it may be necessary to request evaluation. Forensic evaluations are often view as a valuable tool for a trier of fact to make a determination as to the best interests of children who have the training and experience to dig deep into the facts, psychological aspects, and underlying issues that might not be properly illuminated without this process.
Forensic Evaluations for Grandparent Custody
Sometimes, it’s not the parents of a child that are the focus of an evaluation in a child custody and visitation hearing, but the grandparents. Depending on the nature of the specific family dynamic, a court may consider a grandparent to be in need of primary custody, or specific visitation requirements. When this happens, there are cases where a forensic evaluation may be necessary.
- Unlike parents, grandparents don’t necessarily have a right to custody over their grandchildren as there is a presumption that a parent has the right to custody of their children over nonparents. That presumption can be overcome, however, when there are extraordinary circumstances. Absent consent, grandparents only have the standing to pursue custody when extraordinary circumstances exist. In these instances, then a court must determine that awarding custody rights to a grandparent is in the best interests of the child for a grandparent to prevail in a disputed case. Standing to pursue a visitation case for a grandparent is automatic only in certain narrow circumstances such as when there was death of that grandparent’s child. In other situations the court must feel that equity sees fit to intervene before giving standing for a grandparent visitation case. If there is standing then a court would consider the issue of what, if any, visitation is appropriate for a grandparent based on the best interests of the child standard. A lot of times the feeling is that a grandparent can see the child when the parents have parenting time and bring the child to see the grandparent.
- To determine what is in the best interests of any child, the court must consider a range of factors. While judges may know the law well, they don’t always know a great deal about psychology, and what might affect the child as they move through the rest of their life. It can be difficult to determine what should happen in a case of visitation and child custody because of this.
- This is why New York family law gives the courts the opportunity to appoint a professional to conduct evaluations of a forensic nature. This means that it is possible for a forensic evaluation be conducted in a grandparent custody/visitation case by a psychologist, social worker or even a psychiatrist, depending on the nature of the case. The decision of whether an evaluation is necessary is usually up to the discretion of the judge.
- The need for a forensic evaluation may arise in a case when a grandparent is seeking custody or visitation over a child, because grandparents may not always be in the best position to care for a child or look after a child when the parents are not able. Parents and grandparents don’t always get along, and the courts must look past this to determine what is best for the child.
- Forensic examinations might be viewed as particularly helpful in a case when serious allegations are present, such as allegations of neglect, abuse, or drug or alcohol use. In this case, the court may consider a forensic evaluation to ensure the safety of the child.
If you have any concerns about the topics listed above, or you are considering requesting a forensic evaluation as part of your case for custody, parenting time, and visitation, you can find more information on this website. To discuss your case in further detail, you can contact my office using the contact form on this website, or you can call 516-333-6555 to get on the calendar for a consultation. Initial consultations are free for up to 30 minutes.