Determining Custody – The Procedure

Understanding The Procedure in New York For Determining Custody

When custody is disputed between the parents, courts will often appoint an attorney for the child (“AFC”) to give voice to the child’s wishes in the courtroom. People often mistakenly believe that the AFC will do what is best for the child. The AFC, however, is not a psychologist or social worker, only a lawyer. Like every lawyer, the AFC is duty-bound to make the best case possible for the outcome the child instructs, even if the AFC knows that that outcome is not in the child’s best interest. [Unfortunately, courts still imbue AFCs with an aura of being impartial and a court investigator and therefore give them great deference. While that was not true even when courts appointed guardians ad litem (“GAL”) for children, it is certainly not true for AFCs who are no more impartial than any other lawyer representing a client. This poses particular challenges for the advocate representing a parent disfavored by the GAL and particular skill is required to overcome it.] The AFC, like every other lawyer in the case, must be present at each court hearing and has the right to call, examine and cross-examine witnesses. A good AFC will try to help the parents reach an understanding to avoid a forensic evaluation or a full-blown custody battle if such a deal is appropriate. Generally, the court directs how the AFC is paid, typically apportioned between the parents, subject to reallocation at the end of the trial once the court has decided the financial issues.

If a child does not have sufficient maturity to make informed decisions, an AFC may notify the court that the AFC is using “substituted judgment.” The court is thereby informed that the position the AFC is aking is not the child’s positions, but only the AFCs personal thoughts as to what the right result will be. Unless the children are really young where, perhaps, no AFC should have been appointed to begin with, it is unusual and infrequent that an AFC uses substituted judgment.

To further help the court and provide the court with the science concerning the psychological issues implicated in the case, the court might appoint a neutral forensic evaluator, usually a psychologist or, at least, a clinical social worker.. [There is great controversy among the authorities about the proper role and methodologies of psychological custody evaluators. Here, we will outline the best practices.] There are several functions that a court may want a forensic evaluator to perform:

• Data gathering – interview the parents and get from each their side of the story; interview collateral sources and obtain verification of the stories of one or the other parent; confront the parents with the claims of the other and any inconsistent accounts and seek their explanations and/or admissions from them;
• Identify the psychological issues affecting the parents and children and educate the court on the effects of those psychological conditions;
• Identify the strengths and weaknesses of each parent and the emotional, psychological, and developmental needs of each child and consider the interactions of
  the parent’s strengths and weaknesses with the needs of each child;
• Perhaps, if the parents wish, help them broker a custodial/parenting-time arrangement that is agreeable to them both;

Specifically, and though many judges request it, forensic evaluations are not authorized or supposed to opine about the ultimate issue–which parent should have custody– because that decision belongs to the judge alone after the judge has heard all the evidence. Similarly, it is not the function of the forensic evaluator to determine which witness is being truthful and which not. It is the judge that has the role of ascertaining the truth-teller. Rather the forensic’s role is to assemble evidence and provide the science and knowledge developed within the psychological field so that the court has it all when it makes the decision of what is in the best interests of the child.