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Divorce Lawyer. New York child custody, Manhattan child custody, Brooklyn child custody Lawyer.
Divorce Lawyer. New York child custody, Manhattan child custody, Brooklyn child custody Lawyer.

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What is a Forensic Evaluation in a custody battle?
March 21, 2018

In many child custody cases in family court or in a divorce case, often times where there are important issues as a to relative fitness of the parties the trial court will order forensic evaluations of the parties where the parties and their children are interviewed and tested by a court ordered psychologist or psychiatrist.  Often times the parents are required to pay for these interviews and more importantly the courts tend to rely upon the results of these evaluations.

In an important recent case promulgated by the New York State Supreme Court, Appellate Division, Third Department in November 2017 the court gave New York divorce attorneys a new perspective on how the trial courts should handle these reports in child custody cases and how they should persuade the court to give due, but not absolute, deference to these report in arriving at their ultimate decision as to custody and visitation.  

In the case of Montoya v. Davis, 156 A.D.3d 132 (2017) the Court held, in pertinent part that ”…. We emphasize that “[t]he recommendations of court[-]appointed experts are but one factor to be considered” and, although entitled to some weight, such recommendations are not determinative and should not usurp the trial court’s independent impressions of the evidence and conclusions drawn from that evidence (Matter of Nikolic v. Ingrassia, 47 A.D.3d at 821, 850 N.Y.S.2d 539…” In doing so the Court reversed the lower court decision for relying too heavily on the psychological report, which it found to be biased,  holding that “…the court improperly delegated its fact-finding role and ultimate determination to the forensic evaluator (see generally Matter of Millett v. Millett, 270 A.D.2d 520, 522, 703 N.Y.S.2d 596 [2000]….”

This is an important holding since historically divorce and family law lawyers have relied in large part on these reports in order to settle cases. Now, from this decision, and similar decisions before this one, it is re-confirmed and shown that it is equally important for the court not to rely solely on these reports at all, but rather to rely on the evidence at trial as well and consider all of the factors that go into a best interest’s analysis. In fact, the decision expressly warns against lower courts delegating its fact-funding to a forensic evaluator.   Included in this best interest’s analysis, is the courts need to weigh many different factors and render a decision based upon these factors. Some of these factors are the parties’ ability to foster a good relationship between the noncustodial spouse and the child, each parent’s past performance as a parent, the home environment each parent can or has provided, the financial ability to care for the child, the ability of each parent to provide guidance and to promote the intellectual, emotional and psychological needs of the child, and who was the primary caregiver for the child. Other factors the Court will consider, but are not bound by, is the existence of any prior agreement or custodial order entered into by the parties, the parties and to foster the stability of the child in the continuance of prior orders or agreements. These factors can be proven by the testimony of the witnesses and the documentary evidence adduced at trial such as school records and medical records.

This above information is important because if you are undergoing a custody matter and if the court is leaning in the direction of appointing an independent psychological expert to conduct an evaluation it is important for your attorney to review the qualifications of the forensic evaluator before consenting to have that particular person conduct the evaluation because in all evaluations there is room for human error and subjectivity. May evaluators are held in high esteem, however, and a seasoned practitioner might have past experience or knowledge of that expert’s reputation so it is important to ask these questions if you are engaged in a custody battle.


By Lisa Beth Older

Your New York Divorce and Child Custody Lawyer


This is no legal advice and is just informational in nature. Consult your own divorce or matrimonial lawyer in New York before attempting to represent yourself as these are complex issues.