Help With Child Custody And Relocation Concerns

Under New York law, there is no "tender years" presumption or prima facie right of either parent to the custody of a child. The sole criterion is the "best interests" of the child. The court will assess the character, temperament and sincerity of the parents, and focus on nine factors:

  1. The quality of the home environment
  2. The quality of parental guidance
  3. Financial status
  4. Ability to provide for the child's emotional and intellectual development
  5. Individual needs of each child
  6. Desires of each child
  7. Age and maturity of each child
  8. Potential for influence on the child
  9. Keep siblings together

Mental Health Tests

The court will often appoint a separate lawyer for the children; and it may also appoint a mental health expert to interview all of the family members and, in certain cases, to make recommendations. The mental health expert may also administer psychological tests, such as the Minnesota Multiphasic Personality Inventory-2 (MMPI-2), which consists of 567 true-false questions, and the Rorschach Inkblot Test, in which the parent's perceptions of inkblots are recorded and then analyzed. The mental health expert will report on personality characteristics and find, or rule out, any underlying thought disorder as defined in the mental health experts' bible, the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition.

The presence of a thought disorder does not determine which parent gets child custody. I have won custody for parents with bipolar disorder, as well as working dads. Neither does sexual orientation nor sexual misconduct, as long as it does not interfere with the parent's child care responsibilities.

Lincoln Hearings

The court may also conduct what we New York divorce lawyers call a "Lincoln hearing" (after the case by that name). The child will be interviewed by the judge privately, with only the child's lawyer and a court reporter present. The record of the interview will then be sealed and transmitted to the appellate court if there is an appeal.

You Deserve Skilled Advocacy

Child custody is a very delicate subject. More than any other aspect of your divorce case, deft skill and experience in the courtroom really count here. The right of parental access with both parents is an important right of the child. In the turmoil of the divorce process, the parents sometimes lose sight of the way the world is viewed by the child. The correct decisions, for the child or for the court case, are often counterintuitive ones. The parent who is perceived by the court as impeding the child's access to the other parent may lose custody.

No parent is perfect. Children are not delivered with an instruction manual. And most parents did not get married with the plan or expectation of getting a divorce. Your divorce lawyer should be skilled and experienced enough to help you to avoid more damage to your children and mistakes that can be avoided. Your divorce lawyer should also be familiar with the methodology and the science used by the court-appointed mental health expert; able and prepared to cross examine that expert; and ready to call upon a cadre of mental health experts to conduct a peer review of the report and/or testify in your case. I have done that many times.

Enlightened child custody decisions do not treat this subject as an all or nothing proposition. When you think about it there are two concepts: parental access and decision making. More and more courts are carving up the decision making into zones, such as medical, religious, educational, recreational, and dividing responsibilities between the parents.

Contact Me, Robert G. Smith, For A Free Consultation

I am ready to answer your questions or discuss your concerns about child custody and relocation issues in your divorce or custody agreement. Either call my New York office at 212-499-0940 or contact me online for a free initial consultation.