LEGAL CUSTODY AND DECISIONMAKING
In New York, legal custody refers to which parent has the right to make major decisions related to the children, including but not limited decisions related to: education; medical treatment; psychiatric, psychological, mental health treatment, and therapy; extracurricular activities; and religious upbringing. There are many innovative ways parents make legal custody determinations.
If one parent is awarded “sole legal custody,” he or she is entitled to make all major decisions related to the child without regard to the other parent’s position on the issue. The sole legal custodian, however, must generally still inform the other parent of major decisions related to the child.
On the other hand, “joint legal custody” means that the parents make major decisions related to the children together. Joint legal custody arrangements are often governed by written parenting agreements, which provide clear decision-making procedures parents must follow when jointly making decisions. For example, many joint custody arrangements require that a parent provide the other parent written notification that a major decision has arisen and that parent’s position on how that issue should be resolved. The other parent would then have an opportunity to respond in writing within a set period of time. When parents are unable to agree on the correct course of action, many choose to engage a “parenting coordinator” who can attempt to mediate the dispute out of court and without the need for retaining lawyers. But if the parents are unable to reach a consensus after consulting with a parenting coordinator or other means of resolving the dispute, either parent may seek to modify the joint custody arrangement in court.
For several reasons, it is advisable that parents resolve issues of legal custody amicably. First, under New York law, the courts generally do not award joint legal custody after a trial. For joint legal custody to work, the parents must be able to communicate and cooperate with each other. The fact that they cannot resolve their disputes before a trial demonstrates that their relationship is not suitable for joint decisionmaking. Second, custody litigation is intrusive and emotionally grueling on both the parents and the child.
Notwithstanding this general advice, not all legal custody disputes can be resolved through settlement. This is particularly true when one parent suffers from mental illness, has a drug or alcohol problem, or is intentionally alienating children against the other parent.
In the event that custody litigation is necessary, the Court has the discretion to take several steps before trial:
- Appointment of an Attorney for the Child or Guardian Ad Litem: The Court may appoint an Attorney for the Child (AFC) who will represent the Child’s wishes in Court, except the AFC can substitute his or her judgment when the child’s wishes are not in his or her best interests. The Court also has discretion to appoint a Guardia Ad Litem (“GAL”) for young children. The GAL has authority similar to the AFC. In divorce actions, parents are required to pay the cost of the AFC or GAL, if they have the financial means to do so.
- Forensic Evaluator: The Court may also appoint a neutral forensic evaluator—who is generally a psychiatrist, psychologist, or licensed social worker specifically trained in forensic evaluations—to perform a thorough investigation into the family. The forensic will evaluate each party’s parental skills, home environment, each party's relationship with the children, and whether mental illness or deficits impact their ability to care for children. The forensic process is intrusive. The forensic meets with each parent and the child multiple times. Once the forensic is done investigating, he or she writes a comprehensive report, which is delivered to the court. The forensic report often contains highly personally and embarrassing information about the family. While parents are entitled to review the forensic report before trial, they will generally not be provided a copy. Again, parents will be responsible to pay for the forensic evaluator’s fees—which often costs tens of thousands of dollars.
- Lincoln Hearing: Courts generally do not require a minor child to testify in custody trials in New York. The court, however, may direct that the child meet with the judge outside the courtroom. In New York, this meeting is commonly referred to as a Lincoln hearing. During this meeting, a stenographer will record the conversation between the judge and child. But this transcript will remain sealed to the parties. The Lincoln hearing can be particularly traumatizing for young children.
Legal custody disputes are complex and can be emotionally challenging for the entire family. Andrew T. Coyle is an empathetic attorney who will ensure that the process goes as smoothly as possible.