Brian D. Perskin & Associates

Child Custody: What you should Know

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 regard 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. Rather, 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 their sleeping space, whether safe conditions exist, if there is adequate food, etc. The worker will also interview each occupant who lives in the home in addition to the parent in an effort to get an insightful picture of how the child lives or would live if he or she were ordered to live or visit with that parent.

Another major tool used in 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, and 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 and physicians, along with treating mental health experts, family, friends and other relevant players in the child's life. The expert will also administer psychological testing to either or both parents and, in some instances, the child. Furthermore, some will make home visits and other types of visits deemed necessary to make a more complete assessment. The expert chosen to conduct the evaluation will be selected based on issues or concerns raised by either parent and/or the attorney for the child. 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, in some cases, several months to complete for a number of reasons. The interviews may need several sessions to accommodate all parties' schedules; the testing may need time to conduct and complete; and 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 does occasionally occur. It is because of this reason that some courts wish to forgo forensics, with 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, or explored it is advisable to implore the court to have forensics done. Although the costs for these evaluations may be borne by either or both parties, it can be a deal closer for the parent who really wants to highlight the inability or instability of the other parent to be a nurturing or loving parent.


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