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New York Appellate Court Affirms Award of Custody Without a Trial

Contested custody disputes are, without question, the most stressful of all family law cases. In every custody dispute, each parent faces the daunting prospect that a complete stranger will decide, based on limited information, the role that he or she will have in the life of their child.

In New York – as in other states – both parents have presumptively equal rights to seek custody, regardless of their gender. This principal is specifically set forth in Section 70(b) of New York’s Domestic Relations Law, which states that “there shall be no prima facie right to custody of the child in either parent, but the court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness, and make award accordingly.” This standard is commonly referred to by New York divorce attorneys as the “best interests” test. It is the Court’s duty to make an award of custody based solely on the best interests of the subject child. Generally, a decision regarding the child’s best interests can only be made by holding a trial, during which both of the parents are given the opportunity to present testimony and evidence. In many cases, an attorney is also appointed by the court to serve as the lawyer for the child. In some cases, testimony by experts (such as psychologists) is also presented.

In a decision issued on April 24, 2013, the New York Appellate Division for the Second Department held that sometimes, a court may decide custody without holding a trial. In the case Zaratzian v. Abadir, the Appellate Division affirmed the Family Court’s award of sole custody to the father without a hearing. In its decision, the court noted that although a “full and comprehensive hearing” is usually required for custody cases, there are exceptions. The Appellate Division concluded that the Family Court already had sufficient information to decide what was in the best interests of the subject children, and thus there was no need for a trial. The appellate decision does not offer the details of what led the Family Court to issue its decision. However, the decision does make reference to the fact that there were “numerous court dates”, during which the court obtained information about the parties and their relationship.

The basic lesson to be learned from the Zaratzian decision is a vital one for every parent who facing a custody or visitation case. The process of a “trial” in any family court matter really begins before a trial is even scheduled. In any custody, visitation or other family law matter, your conduct – both in and out of court – must reflect well on your ability to serve as a parent for your child. Every court appearance should be considered a “trial”. Otherwise, you risk alienating the judge, and thus losing the “trial” before the hearing even begins.

by Marc A. Rapaport
All Rights Reserved

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