Generally, a contested proceeding would take a year or two. It could be longer now because of the pandemic. Remember, at this point, the courts in the matrimonial department have not been having trials in the courtroom. We’ve been having virtual trials, and it’s something which quite candidly is necessary, but I’m not necessarily in favor of it. One of the reasons I give is while you and I are looking at each other, you see me from mid-chest up, if I’m being examined and if I have my cellphone in my hand, I can be texting with my attorney who can be feeding me answers or telling me how to answer questions. That, you don’t attempt to have in a live situation in a courtroom. Plus, when you do things virtually now, we have to file with the court the exhibits that we will question the witnesses about, and we can advance and serve it on our adversary. When we used to have trials in the courtroom, you would stand up, present the documents to the witness, and hand a copy to the witness’s attorney at that time.
So, while we presume that witnesses will take the oath and be honorable to honor their oath and tell the truth, you don’t know what’s happening. You’ve also given a great deal of information to the adversary before you start questioning them by filing your exhibits before the day of the virtual hearing. But in New York, the judges who handle matrimonial are answerable to their administrative judges, and they look at the cases based on the index number. Behind every index number, there’s the year that the claim was filed. So, if the case is in front of a judge and has a 2019 index number, that judge knows they must move that case forward because it has been present for too long.
There is pressure on the judges to move the cases along, but ordinarily, you could expect a year to two years for a contested matrimonial case. However, in the uncontested case, if the parties sign an agreement consistent with the statutory requirements, you file the papers, go through the clerk’s office, get assigned to a judge, sign the judgment, enter, and it could have been a couple of months.
How Is Custody Generally Determined In New York When A Couple Is Divorcing Or The Parents Are Not Raising The Child Together?
Let’s assume that they are unable, for whatever reason, to reach a custody agreement. Then, the court has to make the determination. Among the factors the court considers are the child’s best interest. Best interest is somewhat of a moving target because it’s not the same for every child. It depends upon the parent’s relationship with the child, and the courts appoint an attorney who acts as the attorney for the children. In short, we call them the AFC. The reason for that is courts want the child or children to have a voice in the proceeding. If the child or children are very young, the AFC will speak for them. For older children, their voices will typically need to be heard.
The courts also tend to appoint forensic evaluators who are either psychologists or psychiatrists who have experience in marital situations where parents are divorcing. They’ll evaluate the situation, meet with the children and the parents and anyone else who is consistently in the child’s life. All evidence is presented to the court at the time of the hearing, where the actual testimony is taken, and then the court will decide what is best for the children, both in terms of custody and joint custody. If the parents are at such divergent ends with one another, the court will not award a joint custody arrangement because it’s clear they can’t agree on anything. That would generally make one parent the custodial parent to make the significant decisions for the child.
There are certain unique cases where the court can make special considerations. For example, let’s assume one of the parents is an educator. The court may say that one parent will have a more prominent part in some decisions like health and education if the parents are exceptionally knowledgeable in the field. So the court can break up the decision-making process, but ultimately, the court will decide who will make the decisions for the children.
On many occasions, the court will also place what’s called the PC or Parent Coordinator. This gives the parents a vehicle when they can’t agree on something to meet with the professional, who is generally a psychiatrist or psychologist, to help them resolve the conflict. This controls the costs, and it also relieves some of the burden for the courts. With the aid of a parent coordinator, can resolve a dispute, it stops the parent from running into court on every minor issue, which ties up the court system unnecessarily. The use of a parent coordinator is used to a great extent, and the courts appoint them on many occasions when we negotiate settlements. We will put in place a decision-making process, which includes the parent coordinator to help the parents before they run into court.
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