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What’s the format of a child custody trial or parenting time trial in New York?

May 14, 2018

One of the most difficult aspects of settling a divorce case is making custody arrangements. When a compromise and agreement cannot be reached through mediation or closed-door litigation, a custody trial may be initiated. Custody trials are part of both divorce proceedings and post-divorce judgments. These cases can be judged by both the Family Court and the New York State Supreme Court. The process of the trial will remain relatively unchanged regardless of which court it takes place in.

There are two main categories of custody trial: modification of a prior order and initial custody determination. Both types of case require a judge or mediator to finalize the decisions on what living arrangements suit the child’s best interests. When a modification of custody proceeding is initiated, there is a primary obstacle that isn’t present in initial custody determination. To initiate a modification of custody proceeding, the party requesting the modification needs to provide proof that circumstances have changed substantially enough to affect the child’s well being. The requesting party and their attorney should both keep this in mind and gather compelling evidence. Usually evidence is presented through a presentation that is concise and doesn’t include superfluous material. The state of New York never has jury trials regarding custody arrangements, so the custody trial will be a “bench trial.” This means that the judge serves both as the decision-maker and the audience.

The petitioning party will be allowed to speak first. At this point, the attorney will give an opening statement. After this, the responding party is allowed to make their own opening statement. Oftentimes the child in question will have an attorney, who is also permitted to make an opening statement. In certain cases, self-represented parties or attorneys will waive the right to an opening statement and use this time to bring out evidence. Alternatively, they may waive an opening statement and let the lack of substantial evidence speak to the judge. Opening statements are not considered evidence in a trial; instead, they’re a way of reciting the evidence that will be presented, similar to an introduction paragraph in an essay. Attorneys will decide whether to make an opening statement, and how to do so, based on the unique facts of the case and the evidence available. Opening statements should be considered carefully when a party needs to prove that there has been a circumstantial change. All parties should also try not to lose focus on the best interests of the child in the proceeding.

When presenting evidence in a modification custody trial, generally there is a relevant time period that begins after the date that the previous custody arrangement was established. All evidence must have taken place within this time period. Evidence that lies outside this time period may not be admissible. In an initial custody proceeding, however, generally the parties will have a larger time period from which they can compile their supporting evidence. When initially determining custody, usually the time period lasts from the child’s birth to the present day. Sometimes even pregnancy information becomes relevant. If an attorney objects that a particular piece of evidence is irrelevant, the judge should sustain the objection and discard the evidence when they determine the case.

Making objections is important, as this is a way of preserving the court record. Having records of the proceeding is necessary especially if the judge does not rule in your favor, as these records will be useful should you appeal the case. If your attorney doesn’t object to improper evidence at the trial, then you might lose the right to have this same issue reviewed during an appeal. For this reason, having a divorce attorney is a much better idea than self-representing in custody cases, as divorce attorneys are familiar with the law and objectionable evidence. We are New York lawyers who can help with your custody arrangements.

After all parties have made or waived their opening statements, the court proceeding will move on to the presentation of evidence. Usually evidence is provided through witness testimony. The first witnesses will be those of the plaintiff party. All witnesses should be knowledgeable about the relevant custody information and be competent to present information in an admissible format. The parties in the case may also testify and have witnesses testify on their behalf. Direct examination should be done through non-leading questions.

After a witness has been directly examined, the attorneys for the other involved parties have the chance to cross-examine the witness. During cross-examination, leading questions are allowed. Depending on the complexity of the case, re-cross and redirect examinations might also be included. Once the first witness has been both examined and cross-examined, they will be excused. The next witness will be called by the current party, and the cycle will repeat. The judge is also permitted to ask questions of the witnesses during this time. The court may bring witnesses including forensic experts. Sometimes the judge will obtain information from the children by meeting with them in a private room and videotaping it for the court.

When the presenting party closes their case, the opposing attorney has the opportunity to make a motion to dismiss the case if they believe that insufficient evidence was provided. If there is no dismissal granted, the defendant party will be permitted to call their witnesses, and the proceeding will continue with the same cycle. After this testimony is finished, the attorneys will be permitted to make their closing arguments. Closing arguments are usually a summation of the evidence displayed at trial and a reiteration of the reasons the judge should side with their client’s position.

After all of this is over, the judge will make a decision. In some cases, the decision is made immediately after the trial’s close. In other cases, the court will “reserve” the decision, which means they will review the facts of the case and make the decision later.

Appeals and enforcement proceedings all occur after the judge gives their decision. They will not be part of the initial custody trial process.

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