New York courts prefer that divorcing parents resolve disputes over child custody and parenting time on their own. Accordingly, throughout the divorce process, the judge will continually take steps to encourage parents to come to an agreement. One way this is done is by appointing different types of experts to get involved in the case.
Attorney for the Child
If parents cannot settle their custody issues, the judge will first appoint an attorney to represent the child(ren). The attorney will meet with the children to determine their wishes and concerns, and report back to the judge. While the attorney doesn’t typically provide an opinion about custody in the report, he/she may substitute judgment after expressing the children’s wishes if he/she has serious concerns about the children’s choices or that their choices are not in their own best interests, whether it’s because of their age or because the attorney feels the children are being manipulated by either or both parents. This is decided on a case-by-case basis.
An attorney for the child also interviews the parents to understand their claims and determine whether they are legitimate and true.
Although what the attorney for the children says is not binding on the judge, it is influential. The attorney has a duty of loyalty to the child, and his/her statements are more likely to be neutral than the statements of the parents, regardless of whether the attorney provides his/her opinion.
Importantly, the attorney can be helpful in getting the parents to focus on their children’s concerns and best interests, so they can resolve their disputes.
Forensic Psychologist / Mental Health Professional
If the attorney for the children is unsuccessful in helping the parties settle their custody issues, and further efforts by the Court to encourage parents to settle fails, the next step is for the judge to order a forensic investigation. The judge appoints a forensic mental health professional to gather information, evaluate the situation, and provide a report to the judge. The mental health professional typically interviews the parents, children and other parties with relevant information, such as relatives, teachers and family friends.
The psychologist can offer an opinion on what is best for the children if the court requests it in its order of appointment. However, his/her opinion is not binding on the judge, who ultimately has the obligation to decide custody.
Neither party ever comes out 100% clean in the report, as it often times identifies the weaknesses and strengths in each party’s parenting skills. This should incentivize the parties to negotiate, rather than litigate and have a judge decide the dispute. If the parties still cannot settle and the case goes to trial, the psychologist’s report can be entered into evidence, and the psychologist can be called to testify in court.
Pros and Cons of Involving Custody Experts in Divorce
The attorney for the child and forensic psychologist can offer parents insights into their conflict that can help them come to an agreement. They can also highlight where a parent’s claims are unlikely to prevail. Often, parents have unrealistic ideas about what they can demand in custody and visitation. They are driven by emotion and may not fully consider the impact their disagreements are having on their children. These experts are neutral, experienced in handling these issues, and they can encourage parents to focus on what is in the best interests of their children.
The downside of forcing the judge to appoint experts is that the children are now actively brought into the divorce process. Both types of experts will interview the children, which may be upsetting to them. That’s why it is generally recommended that parents try to settle on their own if possible.
Settlement allows parents to resolve matters in a way that works best for them and their children. No one ever gets 100% of what they want. Instead, the goal is to find an agreement where the parties are equally satisfied or dissatisfied as the case may be. To the extent the parties can find a solution, it is more likely that they can continue to work together if disputes arise after the divorce, since they will need to communicate long afterward about their children.
If you are a parent considering divorce, it is important to hire a highly experienced attorney. Contact us today to discuss how we can help you find the best resolution for your divorce and custody issues.
