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EV v RV NY Slip Op 05994


E.V. v R.V.

NY Slip Op. 05994

August 2, 2017


The plaintiff appeals from an order and decision from the Supreme Court. The order denied the plaintiff’s motion to strike a forensic mental health report, or for leave to cross examine the court appointed forensic expert regarding the mental health report. The order granted defendant’s motion to modify orders of support and visitation to award him sole legal custody.

The court order is modified deleting the portion denying the plaintiff’s motion to cross examine the forensic expert on the mental health report. The matter was remitted to the supreme court to allow for the cross examination and the submission of a report setting forth the findings.

The defendant and plaintiff are parents of the subject child. In an order from 2/14, the supreme court granted the part of the cross-motion from the defendant to modify his custody and visitation. On appeal, the court reversed their holding that the court had not conducted an on-camera interview of the child, and relied on a forensic report that was 2 years old (E.V. v R.V. 130 AD3d 920). This court remitted to Westchester supreme court and opened a hearing solely for receiving an updated health report.

A forensic evaluation provided a new mental health evaluation. The plaintiff moved to strike the report, or for leave to cross examine the mental health professional. The supreme court denied the motion. Later the supreme court granted the defendant a cross motion to modify custody and visitation. The plaintiff appeals.

The court properly denied the plaintiff’s motion to strike the new report because the plaintiff failed to prove there was any deficiency in the new report that would call for that remedy (A. v. Barry S., 135 AD3d 743,744, Lieberman v Lieberman 142 AD3d 1144, 1145.

The court declined to reopen the change of custody hearing (S.L. v. J.R. 27 NY 3d 558*, the matter was remitted for the sole reason to update the report (E.V. v. R.V. 130 AD3d 921). However, the supreme court should have allowed the plaintiff to cross examine the mental health professional (22 NYCRR 202.16 [g][2], Ekstra v Ekstra 49 AD3d 594, 595.

The plaintiff’s remaining issue on appeal are without merit.

The matter is remitted to the supreme court for the purpose of cross examining the mental health professional. The court will produce a report from the findings of the cross examination.

In New York, the court can rule on custody issues until the child is 18 years old. The decision of custody is based on what is best for the child under the circumstances. If there isn’t a formal custody agreement, both parents have equal rights to custody.

A custody order gives the responsibility of the child to one of the parents, or someone else. There are two kinds of custody, physical and legal.

The parent with legal custody can make important decisions about the child’s care and upbringing. If both parents are awarded custody, both parents must participate in decisions made for the child’s behalf.

When the court decides what is best for the child, they look at:

  • Each parent’s ability to raise the child;
  • Each parent’s mental and physical health;
  • Each parent’s work schedules;
  • What the child wants (depending on age);
  • Ability of the parents to work together for the good of the child.

Conventionally, it used to be assumed that the mother would automatically gain custody, however, these laws have long changed. Each case is not decided on a case by case basis.

There is no particular age where a child’s preference will be taken into account. The court will also consider all factors to make a decision. Usually, one factor alone will not be enough alone to base their decision. If, however, the child has been living with one parent and doing well, the court will be reluctant to change that.

Custody arrangements can be emotional and stressful for all concerned, particularly the children. If you have a custody issue, it is best not to take matters into your own hands and speak with Stephen Bilkis and Associates to ensure that your legal rights are protected. They have offices throughout New York to assist you. Call them today for a free consultation at 1-80-NYNYLAW.

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