In a New York child custody case entitled SL v. JR the trial court had held that the parties’ affidavits and the report prepared by the court-appointed forensic evaluator sufficiently demonstrated that the mother had admitted allegations regarding her emotionally destructive and sometimes violent behavior toward the father and the parties’ two children to support a child custody award to the father without an evidentiary hearing. The forensic mental health evaluator, who interviewed the parties and the children, concluded in a written report that the father was the more stable parent, and that he was able to make sound parenting decisions for the children. The attorney for the children also supported the award of custody to the father.
On the first level of appeal, to the Appellate Division Second Department, a unanimous bench affirmed the award of child custody to the father and stated that “no hearing is necessary where * * * the court possesses adequate relevant information to enable it to make an informed and provident determination as to the child’s best interest”; and therefore an alleged “sound and substantial basis in the record” existed to support” the trial Court’s award of child custody to the father.
Not so fast, held the New York Court of Appeals on June 9, 2016. The parents have a fundamental right to custody of their children. Given the goals of stability and permanency, as well as the weight of the interests at stake, the societal cost of even an occasional error in a child custody determination is sizeable. Child custody determinations therefore require a “careful and comprehensive evaluation of the material facts and circumstances”. The value of a plenary hearing is particularly pronounced in child custody cases in light of the subjective factors — such as the credibility and sincerity of the witnesses, and the character and temperament of the parents — which are often critical to the child custody court’s determination.
The New York Court of Appeals rejected the purported “adequate relevant information” standard, as ” undefined and imprecise” and capable of tolerating an unacceptably-high risk of yielding child custody determinations that do not conform to the best interest of a child. A decision regarding child custody should be based on admissible evidence. The Court of Appeals concluded that the “adequate relevant information” standard does not adequately protect the parent’s fundamental right “to control the upbringing of a child”. Hearsay statements and the conclusion of a court-appointed forensic evaluator whose opinions and credibility were untested by either party were inadequate.
In New York child custody litigations, as a general matter, custody determinations should be rendered only after a full and plenary hearing. Although the New York Court of Appeals declined to go further and state that a hearing is required in every child custody case in the State of New York, if a trial court does opt to forego a plenary hearing, great care must be taken to clearly articulate which factors were — or were not — material to the trial court’s determination, and the evidence supporting its decision.