Often, after a few appearances, when it does not appear that the case will be resolved by mutual agreement of the parties, one will hear the court order "forensics." The average layman will be confused at that point. "Aren't forensics what they do when someone dies?"
The court will then direct how the cost of forensics will be allocated. Fifty-fifty; One-third, One-third, One-third, etc. Psychiatrist, Psychologist or Social Worker? What does it all mean?
When you leave the courtroom, your attorney explains what just happened...and how much it will cost.
The Forensic Evaluation
These discussions will deal primarily with forensic evaluations conducted by Psychologists. Sometimes, evaluations are done by Psychiatrists, but these are rare. Other times, if the issues are less serious, the Court may order evaluations done by a Social Worker. These are more akin to a "home study" and generally report on the status and conditions of the respective homes, the general well being of the child, including progress in school, and the general relationship and interaction between the child and each parent. There isn't the in-depth look into to psychological makeup of the parties.
A typical child custody evaluation often includes general and specialized psychological testing, extensive clinical interviews of the parties, observation of child's interaction with each parent, the gathering of collateral information from relevant third parties and even home visits.
Collateral sources can be significant others, relatives living in the home, therapists, school personnel, pediatricians and any professionals that are involved with the parents and the child. In addition, custody evaluators typically review pertinent Court documents such as various petitions filed in Court and prior investigative reports.
Forensic evaluators are appointed by the Court and function as impartial evaluators. The Court often chooses the custody evaluators based on the recommendations from attorneys involved in the case. Typically, the attorney for the child (AFC) prepares an Order which is signed by the Judge or Referee. That Order contains the names of the parties to be interviewed, the apportionment of the costs, and the date that the report is due. The AFC maintains contact with the evaluator, provides any needed documents and gets updates on the progress of the interviews. Attorneys for the parents don't usually contact the evaluator.
Custody evaluations can be especially complex. The issues which the court needs addressed can range from parental fitness to drug and alcohol abuse, to mental health issues. Other specialized issues often addressed in custody evaluations can include the following:
Once the reports are completed, they are sent to the court and distributed to the attorneys. A court date is usually scheduled just for receipt of the forensic report and for possible settlement of the case. If there is no resolution, trial dates are selected. The forensic evaluator is on notice (language is contained in the Order) that he will testify.
Once common practice, forensic evaluators no longer make a recommendation in their report. Fact-finding, and the ultimate decision, is the province of the Judge. Recommendations of forensic evaluators, in the past, carried too much weight and removed the final decision from the Judge. The report is an information gathering vehicle.
It is well established in New York State that a custodial parent may not relocate without first obtaining permission from the court. Whether it is specified in the order or not, a custodial parent may not move out of State without first coming to court. Generally, custody orders will contain a clause that the parent may not relocate a particular distance away from their current location. The goal is to prevent the frustration of the non-custodial parent's visitation schedule.
Forensics are often ordered in relocation cases. In these evaluations the evaluator is asked to assess whether a petition (typically filed by the custodial parent), for geographical relocation is in the child’s best interest.
Tropea v. Tropea is the primary case in this area. The New York Court of Appeals stated that each case much be looked at individually. The trial court should use the best interest standard and, taking into account all of the relevant facts and circumstances to decide what outcome is most appropriate. While the rights of the parents are significant factors that must be considered, the child's rights and needs must be given the greatest weight.
Some of the factors considered include:
Economic and employment reasons are usually the reason given for the move. A move to New Jersey or Connecticut---even Maryland---may be easier to sell to the court than a move to Florida. The parent seeking to relocate with the child should be prepared to offer an extensive visitation schedule---school breaks and extensive Summer vacation---to the other parent. If the non-custodial parent doesn't exercise visitation on a regular basis, it is harder to argue that the court should not approve th move.
Parental Interference or Alienation
One of the issues which often comes up in Custody and Visitation cases is parental alienation. Namely, whether one parent's conduct is aimed at causing the child not to want a relationship with the other parent. These evaluations are designed to determine whether a particular parent (typically the custodial one) might undermine the relationship between the child and the other (non-custodial) parent. Sometimes it is through interference with the visitation. Or it may be by speaking ill of the other parent directly to, or in front of, the child.
Through the forensic process, we can get to the issue of whether a parent is either overtly or subtly sabotaging the relationship between the child and the other parent.
Courts take very seriously the issue of parental alienation. Sometimes, in the middle of a custody proceeding, the court will hold a hearing on a change in temporary custody due to evidence of parental alienation. Every lawyer, when he or she senses such inclination on the part of the client, will counsel the client not to engage in such conduct. Clients don't always heed the advice---resulting in an increasingly difficult case for the attorney.
The Law Office of Ralph Duthely - 153-01 Jamaica Ave., Suite 201, Jamaica,NY 11432 - (718) 725-0319 or (718)380-1602