Path of a Custody and Visitation case in New York Family Court
Path of a Custody and Visitation case in New York Family Court
Just how quickly your Family Court case moves along is dependent upon a variety of factors, most of which are out of your control. However, the purpose of this article is to give a parent, guardian, or other custodian interested in filing for custody or visitation of a child an idea of what to expect throughout the process.
Filing Your Petition:
There is no requirement that you be represented by an attorney to bring your custody and visitation case to Family Court. Most judges will recommend that you obtain a lawyer, but there is no requirement. There are a variety of blank forms available at the Family Court Clerk’s window. They are also available online. Regardless of whether you complete the petition, or your attorney drafts it on your behalf, everything gets filed with the Clerk of the Family Court.
In cases of emergencies, many petitioners want their petition to be heard the same day it is filed. Often a request is made with the Clerk for an emergency hearing, but the likelihood of an emergency hearing is based upon the allegations made and the on-call judge’s schedule. Most emergency applications are not heard the same day they are filed.
Instead, the clerks will process the petition, assign it to a judge, and schedule the petition for an Initial Appearance. In larger counties with more judicial staff, the turnaround time is typically perhaps a month in between filing and the first court date. In some of the more rural counties, the delay is longer, as is the delay in between later court dates. This is a product of fewer judges available in these counties, or oftentimes the Family Court judge is also the Surrogate’s Court and County Court judge all at once, and has a congested calendar. There are other methods to get the case before a judge sooner, such as filing an Order to Show Cause when appropriate, but this would generally require consultation with an attorney.
Eventually, you will have your first appearance before the judge. If you have reached an agreement with the other party, in most cases, the judges may listen to the proposed agreement issue a final Order, with the case being completed without the need to appear again.
Where settlement is not immediately possible, the judge will inform both parties that they have a right to be represented by an attorney, and if they cannot afford an attorney, they may be assigned an attorney free of charge, assuming they are income eligible. If interested in an assigned attorney, the Court will provide the necessary paperwork to the parties.
Assuming there is no settlement agreement, the judge will then likely schedule the matter for a pretrial conference. Sometimes these conferences are scheduled with the judge, other times they are scheduled with the judge’s court attorney. This is dependent upon the judge’s preferences and calendar. If the judge feels there is no chance of a settlement, a trial may be scheduled instead, but a conference is usually scheduled before trial.
If an Attorney for Child (AFC) has already been assigned, the judge may look to the AFC for the child’s preferences and to confirm that there are no child protective concerns. If an AFC has not already been assigned, one will likely be assigned at that point. Depending on the facts of the case, the judge may entertain requests for temporary relief, whether from the parties’ counsel, the AFC, or unrepresented parties. It is often important to address concerns such as visitation or where a child will attend school during the Initial Appearance, as it may be weeks or months before you return again.
This is an opportunity to discuss whether a settlement is possible, and if so, the terms of that settlement. Ideally, the parties and counsel will have discussed settlement terms long before the pretrial conference, and the conference will be a formality.
The pretrial conference provides the parties another chance to conclude the matter without proceeding to trial. If the conference is with the judge, he or she will likely Order the agreement to take effect immediately. If the conference is with the court attorney, a stipulation of settlement may be drafted and signed by all of the parties. As the court attorney lacks the power to make an ‘Order’, they will present the stipulation to the judge who can issue an Order outside of the parties’ presence.
If settlement is not possible, the pretrial conference may focus on issues for trial. For instance, counsel might discuss how many witnesses they will present, or what type of discovery is necessary before trial commences. If the parties agree on one issue but not another, the parties or counsel may stipulate to reduce the number of issues to address at the actual trial.
If there is no settlement, the court will schedule a trial date. If the parties are close to a settlement, it is not uncommon for the Court to schedule additional conferences so as to allow the parties to continue to work out their differences.
If the parties cannot agree on a resolution, the final option is to have a judge make the decision for them. This is not preferable for several reasons. If the parties are willing to work out their own agreement, they can pick whatever terms they are comfortable with. The judge, however, will likely set forth a very basic Order which does not take into account the specific and individual needs or desires of the parties. Further, the judge barely knows anything about the parties. Instead, the judge will listen to the testimony, and make a decision that will impact the lives of the parties and children, after only seeing a snap shot of the family. A judge cannot possibly learn everything that makes a family special or unique through witness testimony alone.
Family Court trials can be ugly and in my opinion, should be avoided. In most instances, one party will present a case about how terrible the other party is, and then that party will present a case about how awful the first party is. This might go on for a couple hours, or even a couple of days. However, when the dust settles, both parties will still be in each other’s lives. No matter how bad the person appears, they are still going to walk out of the courtroom the children’s mother, father, or other custodian. For better or for worse, parties need to work with one another. As difficult as it may be to do in reality, parties need to put aside their differences and focus on what will keep the children’s lives as normal as possible.
If a party requests, or if the judge deems it necessary, the children may also participate in a “Lincoln Hearing.” A Lincoln Hearing is a way for the child to testify before the judge without the pressures of having to do so in front of Mom, Dad, or other custodian. Only the AFC, judge, child and other court staff will be present. The conversation will be recorded, but the testimony will not be given to the custodians or their attorneys. It remains sealed. In all likelihood, this hearing will occur on a separate date and time. Some judges mandate that a non-parent bring the children to Court, as the children should feel free to testify without any outside pressures from parents.
After the Court has heard all of the evidence and testimony from witnesses and children, it will render a decision. In most cases, the judge will reserve decision and provide the parties a written decision and order. This might take weeks, or even a month or two to receive. However, sometimes, the judge will provide their decision once the evidence is closed directly from the bench.
At that point, the decision is final, unless appealed. Assuming there is no appeal, the matter should not be brought back before the Court absent a substantial change in circumstances, requiring a new look at what is in the best interests of the children.