Custody 101: The Young Lawyer's Guide to Representing Clients in Custody Procedures - ABA YLD 101 Practice Series

By Colleen M. Richman

Child custody is probably one of the most contentious areas of Family Law and one that requires a young lawyer to be experienced before undertaking such representation. Therefore, during child custody proceedings it is imperative that a young lawyer be knowledgeable about the rules of evidence, trial strategy and cross examination in order to represent their client zealously, particularly where their client is the risk-averse parent.

Family court does not make a decision regarding custody without appointing a law guardian and a psychologist. The law guardian is supposed to represent the child's interests and the psychologist is appointed to evaluate the parents with the child(ren) and without the children and based on these evaluations the court will make a determination. Although in most jurisdictions the Court is not required to use the recommendations in making their determination. Because of the very serious nature of the litigation, a young lawyer should not participate alone in custody litigation if they are inexperienced.

The following is a brief overview of the most important areas for the young lawyer practicing family law.

Family Courts across the country apply the above, in every custody proceeding where custody is being determined between the biological parents. This standard requires the court to look at a variety of factors to determine the child's best interests and then based on some or all of these factors a decision is made. These factors may include: 1) the wishes of the child's parent or parents as to his custody; 2) the wishes of the child as to his custody. 3) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interest; 4) the child's adjustment to his home, school and community; and 5) the mental and physical health of all individuals involved. However, the courts are not limited to the factors specified above and different jurisdictions apply these factors differently. Thus, wherever you practice the young attorney must familiarize themselves with the factors the court looks at in their particular jurisdiction .

In every custody determination made in family courts across the country, the courts appoint a law guardian to represent the child(rens) interests. Additionally, Courts appoint a custody evaluator which is usually a psychologist, to interview the parents and the child, together and alone, to help the court determine what is in the child's best interest in making a determination of custody. Unfortunately personal bias is inherent in this process and a drawback to this is once a custody evaluator has made up their minds and decided which parent they most respect or admire, they then look to find evidence and distort every piece of the report to make what they assume is the better parent, look better to the judge. Therefore, it is critical that if you are representing the more risk-averse parent, the young lawyer must be knowledgeable in the rules of trial procedure and evidence as well as learned in the procedures that the custody evaluator employs. , the young lawyer needs to know how to introduce evidence to rebut the reports and cross-examine the custody evaluator on the procedures used to make their determination thereby impeaching their credibility, their reports and the tests the custody evaluators based their decisions on when they decide who is the fitter parent.


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About the Author

Colleen M. Richman works for the Administration for Children's Services in Bronx Family Court as an attorney intern representing the commissioner of social services in child protective proceedings. She graduated from the CUNY School of Law in 2001 where she was part of the Family Law Clinic and where she represented clients in custody proceedings. Additionally, she has personally experienced a litigious custody proceeding in Family Court.

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