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When Should a New York Court Refrain From Ordering Forensics in Child Custody Cases?

January 4, 2018

We never marry with the idea that we might one day face a divorce. Unfortunately, the reality is that many marriages do end in divorce. In 2016, a study by the National Center for Family and Marriage Research revealed that 16.7 percent of marriages ended in divorce in the United States.

This is a sharp decline from the national divorce rate in the late 1980’s to 2010, however, some states such as Wyoming, exceeded the national rate at 26.3 percent of marriages ending in divorce, and New York falls under the national average divorce rate at 13.6 percent.

When couples divorce and there are children involved, the divorce can be both difficult as well as heartbreaking. Divorce for children regardless of whether it was an amicable divorce or a disruptive one, will cause emotional upheaval a child’s life.

The term forensics, in relation to child custody, refers to the use of professional investigators such as child psychologists, and social workers. The forensic evaluation is a comparative study of parental strengths and weaknesses compiled by these professionals which assists judges in determining child custody cases. If a court orders forensics, it means they need a professional evaluator’s testimony regarding the child and their situation in order to assist them in making determinations in the case.

The best outcome for children after any divorce would be to continue to have both parents in their lives communicating freely and on good terms, continuing to co-parent their children. In some cases, this is not possible. The parents may be unable or unwilling to agree upon custody and visitation rights with each other. There may be conflicts they cannot resolve or one parent may accuse the other parent of neglect, sexual abuse, or drug abuse.

Forensic evaluations can also be ordered in custody relocation cases. Evaluations are not always ordered for only for concerns of neglect or abuse. Either the judge may have concerns regarding a child’s relocation or a parent might request an evaluation through their attorney because they don’t think their child relocating is in the child’s best interest.

Each case of divorce and child custody is unique and only an experienced attorney can advise you whether the judge will order forensics in your case, what strategy they will use to get the best possible outcome for you, and any other element that might predict the outcome. In all cases of divorce, it is the court’s job to ensure the safety and welfare of any children from the marriage and it will make judgments based on the child’s best interests, not those of the parents.

According to ProPublica, an independent nonprofit that produces investigative journalism, in 2015, New York Family Court handled 225,000 cases. 11,000 cases involved forensic evaluations.

Forensic evaluations are done for a small percentage of custody cases and are sometimes used to “force” the parties into an agreement that benefits their child. Parents may first be offered mediation and if that fails, may be subject to a forensic evaluation. Although there are no statistics available, evaluations do appear to lead to settlement of child custody according to a 1994 Family Court Review.

A 2004 Family Court Review, in regards to custody evaluations, revealed that 86 percent of attorneys and 84 percent of judges believe that forensic evaluations work and should be recommended.

A 1998 book titled Impasses of Divorce by Janet Johnston and Linda Cambell, suggested that the reports in a forensic evaluation can reveal hidden stressors and emotional struggles of children going through custody cases and put spouses at ease in beliefs about the other spouse that may have been exaggerated or might be untrue due to the caustic nature of the divorce.

If the court has reason to believe there might be a situation of neglect, sexual or physical abuse, drug abuse by one or both parents, mental illness or domestic violence, a forensic evaluation will be ordered. The court’s only concern is the child and an evaluation can assist in determining if one parent or the other would be a harm to the child or cause a negative impact on their well-being.

Unless there is some reason that would impact a child custody case negatively and if both parents are able to communicate and reach a mutual agreement regarding custody, the judge doesn’t issue forensic evaluations. Of course, only your attorney can advise you on the matter of a forensic evaluation in your case as there are a lot of nuances to Family Law and each custody case is as unique as the family that is going through it.

A forensic evaluation is used by the court in highly contested custody cases and then not even in all cases, in order to determine the best situation for the child. It is in the interest of both parties in a divorce to keep communication open and respectful and to work toward a mutual agreement in regards to custody. Courts are eager for parents to work together for their child and forensic evaluations, although not rare, do not have to be used in amicable custody cases.

You should always consult an attorney immediately in cases of contested child custody as they are experts in the law and know the language and the process. Your attorney is the only person, knowing all the facts of your case, who can advise you on the matter of forensic evaluation.

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