When obtaining a court order for child custody or visitation it is important to have the court include that the custodial parent is not to relocate out of the state or that they are to remain in a specified region.  This will limit the custodial parent’s ability to make unilateral decisions about where the child will live, even in sole custody cases.

          If you are the noncustodial parent living in New York and the child lives in another state if it crucial that you “register” any child custody or visitation orders in the state that your child lives in.  This will put that state on notice of the parameters of the order in the event you must seek enforcement or modification.

          The outcome of a family law case and a criminal case arising out of the same facts and circumstances may directly, or indirectly, affect each other.  A Family Court judge will want to know the District Attorney’s position on a companion criminal case, to help make a determination regarding issues ranging from child visitation to abuse/neglect.  And although the District Attorney’s office may not have such an interest, it is advisable to keep your attorney (as well as the prosecuting attorneys) aware of what is going on in the other case.  Additionally, it is ideal to have the same attorney representing you on both cases if possible in an effort to consider all possible resolutions.

           When finalizing a divorce, contested only,request that the divorce judgment specifically indicates that the Supreme Court should have “exclusive” jurisdiction in cases where there are intricate issues regarding child support and/or custody.  This will ensure that the original judge that decided the matter will hear violations, modifications and/or enforecement issues and not a Support Magistrate or Referee who has no knowledge or background of the case.

It is always better to seek out the help offered by the agencies throughout the state than to do nothing when you are dealing with an uncontrollable child.  If you have custody, guardianship or are otherwise responsible for that child, sending him or her to live with someone is not going to absolve you of your legal responsibility.   

If you are a non-parent seeking custody, be mindful of the fact that if your petition fails that the dissidence may occur as a result of the filing.  Unless you are almost certain of prevailing, try to foster a open and honest level of communication so that legitimate concerns about child rearing can be addressed directly with that parent.  Because subsequently filing a visitation petition may also be futile if  the natural parent has discord for you, because visitation rights of a non-parent are not inherent as parents’ and thus, any violations of court ordered visitation will be trivialized by most courts. 

Tip:  Before going to court on a child support matter, if you are the noncustodial parent and you have other children born before the subject child get a written agreement with the previous child(ren)’s mother if there is no court order for child support for them.  That written agreement should conform to the Child Support Standards Act (get a copy from Family Court) required amount of support in order to be considered by the current court. 

          In child custody and visitation cases there are several factors the courts will use to determine what is in “the best interests of the child”.  The parties are the primary source of information with regards to the weight the judge will give to each of these factors.  However, due to the highly charged nature, and thus, skewed view of the facts, the courts do not rely solely on the parties’ account of details the courts employ other entities and professionals to help them in this most delicate decision.  So, for instance, to gain insight into the home environment of each of the parties, the courts will employ the Dept. of Probation, or its equivalent, to conduct a homestudy.  A homestudy consists of an agency worker going out to each party’s home to check for safety, habitability and adequacy of the home.  The worker will check ther sleeping space, whether safe conditions exist, if there is adequate food, etc.  The worker will also interview each occupant that lives in the home, in addition to the parent  in an effort to get a insightful picture of how the child lives or would live if he or she were ordered to live or visit with either parent.

         Another major tool used  in the child custody litigation is the forensics evaluation.  Forensics is the utilization of a psychologist, psychiatrist or social worker to make an assessment and give testimony with respect to custody and visitation.  The court will first determine if forensics is needed, which will be based on the particular circumstances of the case.  This is crucial because without an expert’s opinion, the court can make a determination about custody and visitation on information provided mainly by the parties, and other sources that do not supplant the parties’ accounts accurately.  Although the authority to order forensics examination is granted by Section 251 of the Family Court Act, caselaw indicates that that decision is within the sound discretion of the court.  For example, where the court believes that there is no issue with respect to the emotional health or mental state of either parent or the child, it may rely on other evidence provided by the parties and their witnesses to make its ruling.  So although either party may request that forensics be conducted, if the court is not convinced that this evidence is necessary in helping it to reach a custody or visitation determination,  they may deny such a request. On the other hand, it has been held to be “reversible error” by the appellate courts,  where the court refuses to order forensics where custody was changed/modified without a hearing, where there were patent issues of abuse, neglect, domestic violence or other  psychological and emotional concerns, where there was parental alienation or where the child resists visitation (without justification).  In any of these circumstances either party, by his or her attorney, and the attorney for the child (the law guardian) may request forensics either orally or formally (by motion).  The latter method is preferred, this way, if the court still denies the request there is a record for appeal.

           Even in cases where an expert conducts an evaluation, his or her recommendation is not determinative of who will be awarded custody or if visitation will be granted.  The opinion of the expert is, in essence, but one factor of many to consider in the court’s decision as to what is in the best interest of the child.  The court will typically use the information gathered by the expert to help it to get a more comprehensive picture of all of the circumstances in the case, not to allow the expert to make the ultimate decision. The evaluation typically involves an interview with each party, an interview with the child, an observation of the child with each parent, contacting the school, physicians, treatwing mental health experts, family, friends and other relevant players in the child’s life.  He or she will also, administer psychological testing to either or both parents, and in some instances the child. Furthermore, some will make home visits and make other visits deemed necessary to make a more complete assessment.  The expert chosen to conduct the evaluation will be based on issues or concerns raised by either parent and/or the attorney for the child.  So for instance, in a case where the attorney for the child believes that there are some alienation issues, a psychologist may be employed to do the evaluation.  If the custody or visitation case is more of just a “fit vs. fit” test, a social worker may be suitable to conduct the evaluation.

         The evaluation may take up to several weeks, and some cases, several months to complete for a number of reasons. The interviews may need several sessions to accommodate all parties’ schedule, the testing may need time to conduct and complete, interviewing the collateral contacts, i.e. family, friends, etc. may be time consuming.  In fact, it is not uncommon for more than one evaluation to be conducted if the custody litigation takes several years, which is does occasionally occur.  It is because of this reason that some courts wish to forego forensics, their rationale being that prolonging child custody or visitation cases only serves to perpetuate conflict within families.  However, some courts merely want to expedite the process in an effort to address more protracted cases.

          In any case, where either parent is insistent that some serious concerns be uncovered, confirmed, explored it is advisable to implore the court to have forensics done.  Although the costs for these evaluations may be bourne by either or both parties, it can be deal closer for the parent who really wants to highlight the inability or instability of the other parent being a nurturing or loving parent.

          Feel free to contact my office to discuss your child custody or visitation, or other family law case.

TIP:  Forensics is very important when there is a sensitive issue you want to have addressed, if finances are an issue ask the court to direct that the state or the city picks up your portion of the forensics costs.