Due Process and Custody : Legal steps upheld by the law

July 13, 2016 in Uncategorized by nydfl

divorce custody Law Offices of Russell MarnellChild custody matters are particularly challenging in divorce cases where filed charges of domestic violence and orders of protection exist. Judges presiding over such cases must take into consideration all facts to legally and properly assign sole or joint custody arrangements.

A recent case where a mother initially lost custody of her children (after having set fire to her ex-husband’s clothes and broken out windows of the family home), provided sufficient evidence in the court’s mind to grant sole temporary custody to the father. Not long after, the mother’s visitation was suspended as a therapist reported that it would not be in the best interest of the children to allow visitation until the mother entered an anger management program. The mother in this case was also being charged in three (3) pending cases of domestic violence.

Several months later and without a custody hearing, the father was granted sole custody by the court. When granting sole custody to the father, the presiding judge declared, “while custody decisions are generally only made following a comprehensive evidentiary hearing, no hearing is necessary when the court possess adequate relevant information to enable it to make an informed and provident decision as to the child’s best interest,” citing the 2004 ruling in Matter of Hom v. Zullo, 6 AD3d 536.

However, on June 9, 2016, the Court of Appeals unanimously reversed the Second Department’s decision.

Judge Michael Garcia wrote for the court, “While there should be no one-size-fits-all rule mandating a hearing in every custody case, custody decisions should generally be made after a full and plenary hearing.”

In support of the mother in this case, a coalition of advocacy groups argued that it is assumed there will be a full hearing prior to the issuance of a final custody decree. However, the Second Department has occasionally and historically made final custodial determinations without evidentiary hearings when “adequate relevant information” standards are met. The advocacy groups opine that such determinations and failing to hold hearings, ultimate infringe upon a parent’s constitutional rights.     child custody NY divorce lawyer

This argument supports the existing legal due process for child custody matters which outlines final child custody decisions should be made only after a hearing, at which all admissible evidence can be considered.

More details of the case can be found at: http://www.newyorklawjournal.com/id=1202759918961?keywords=Andrew+Denney

*The information contained in this blog is presented as general information and is not to be construed as legal advice to apply to any person or particular situation. Please keep in mind that the law is constantly changing and therefore you should always consult an attorney for legal advice based on the individual circumstances of your situation.*