In re the Custody of Luis

18 Misc. 3d 650
CourtNew York City Family Court
DecidedDecember 10, 2007
StatusPublished
Cited by2 cases

This text of 18 Misc. 3d 650 (In re the Custody of Luis) is published on Counsel Stack Legal Research, covering New York City Family Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Custody of Luis, 18 Misc. 3d 650 (N.Y. Super. Ct. 2007).

Opinion

OPINION OF THE COURT

Paula J. Hepner, J.

Before the court are cross petitions for custody of Luis M., the first filed by the father on March 1, 2007 and the second filed by the mother on March 13, 2007. Trial of the issues began on October 24, 2007 and concluded on October 25, 2007. Each of the parties testified in their own behalf and Victor M. called his mother, Antonia R., as a witness. In addition the mother introduced into evidence 11 photographs consisting of pictures of her mother’s home in Florida, where she would reside for the immediate future, and pictures of various family members with the child taken at the second birthday party they had for him this summer.

Because the child was 20 months old at the time the petitions were filed and neither party expressed concerns regarding the other’s mental health or fitness,1 the parties waived the appointment of a law guardian2 and a forensic evaluation.3 The appellate rulings in this Department and others hold that the ap[652]*652pointment of a law guardian is discretionary, not mandatory (Matter of Weis v Rivera, 29 AD3d 812 [2d Dept 2006]; Matter of Cole v Reynolds, 8 AD3d 703 [3d Dept 2004]; Matter of Cinquemani v Guarino, 243 AD2d 562 [2d Dept 1997]). The Court of Appeals held in Richard D. v Wendy P. (47 NY2d 943, 944-945 [1979]), a case involving a three-year-old child, that “[t]here is no requirement that the court invariably appoint a Law Guardian for the child in every case where parents who are unmarried, divorced or separated, seek a judicial determination of child custody and there is no indication that the child’s interests [would be] prejudiced in any way.” Failure to appoint a law guardian where the children were the tender ages of two and four did not warrant a reversal of the court’s custody determination when no demonstrable prejudice was shown (Lee v Halayko, 187 AD2d 1001, 1002 [4th Dept 1992]). The rulings of the Second Department are consistent with this principle (Jackson v Jackson, 31 AD3d 386 [2d Dept 2006]; Matter of Smith v DiFusco, 282 AD2d 753 [2d Dept 2001]).

Just as the Second Department has recognized that the appointment of a law guardian is not required in all cases, so has it recognized that forensic evaluations may not be necessary in all custody and visitation litigation (Guevara v Guevara, 132 AD2d 596 [2d Dept 1987]). The decision of “whether to direct a social or psychological evaluation in custody and visitation matters is within the sound discretion of the court” (Matter of Sassower-Berlin v Berlin, 31 AD3d 771, 772 [2d Dept 2006]; Matter of Salamone-Finchum v McDevitt, 28 AD3d 670 [2d Dept 2006]). The Family Court is not required sua sponte to order psychological assessments (Matter of Thompson v Yu-Thompson, 41 AD3d 487 [2d Dept 2007]; Matter of Panetta v Ruddy, 18 AD3d 662 [2d Dept 2005]; Lee v Halayko, 187 AD2d at 1002).

Notwithstanding the parties’ waiver, the court independently assessed the information available pretrial to determine whether a law guardian should be appointed sua sponte. The court’s analysis suggested that a law guardian would not be critical in this case because the child is preverbal, does not have special medical or health-related needs, is not developmentally delayed and in need of therapeutic interventions or special education services, the parties have been cooperating in jointly raising the child despite the demise of their relationship and no issues pertaining to inadequate supervision and guardianship, impaired judgment, mental health or domestic violence were raised by either party. The court also independently assessed the informa[653]*653tion available pretrial to determine whether a forensic evaluation should be ordered sua sponte (Matter of Panetta v Ruddy, 18 AD3d at 662). After analyzing the circumstances of the parties and noting the absence of particular issues that might otherwise warrant a more in-depth inquiry, the court concluded that a forensic evaluation was not essential to make the custody determination herein (Matter of Hernandez v Rodriguez, 42 AD3d 498 [2d Dept 2007]) since neither the parties nor the child displayed emotional problems that would render the assistance of a court-appointed psychologist necessary (Mascoli v Mascoli, 132 AD2d 653 [2d Dept 1987]), there are no factual allegations that warrant ordering a forensic evaluation (Guevara, 132 AD2d at 596), and the evaluation was not requested by the parties nor was it “necessary in order for the court to resolve the custody issue” (Matter of Diaz v Santiago, 8 AD3d 562, 563 [2d Dept 2004]).

At the end of the trial, counsel delivered oral summations on behalf of their clients and submitted case law in support of each party’s position. Decision was reserved in order to give the court an opportunity to review the testimonial and documentary evidence in the record and to consider the points and authorities cited by counsel.

Findings of Fact

The court, having had the unique opportunity to hear the testimony of the witnesses, observe their demeanor, and assess their veracity, now makes the following findings of fact based on the material, relevant, credible and competent evidence in the record.

The mother was born and raised in Tampa, Florida, where she lived with her mother and father until she was 17 or 18 when her parents divorced. She continued to live with her father until she was 22 and got her own apartment. The father was born in Puerto Rico and raised in the Bronx. He has been living in New York for the past 10 years. At present they are each in their mid-twenties. The parties met on line in 2002 and corresponded for a short while until they exchanged phone numbers and began talking on the phone a few times a week. This continued for a few months until they actually met in person when the mother came with a friend to New York in May 2002 on a four- or five-day vacation. According to the father they “met up one night to hang out, have a couple of drinks” after which “she went her way and I went mine.” After the [654]*654mother returned to Florida, the parties continued to speak over the telephone. In May 2004, the mother invited the father down to Florida for the weekend and he went. According to the mother they “hit it off’ and their relationship became intimate. Between May 2004 and January 2005, the mother came to New York three or four times to visit the father. They would have drinks, go to the movies and spend time together. Over one Christmas holiday, she met the father’s mother and brother. At some point during their relationship, the parties made the decision to have a child together.

In October 2004 the mother learned she was pregnant. That same month, the father took his two-week vacation and went to Florida to be with the mother. He brought his daughter Victoria with him. They discussed the possibility of him moving to Florida so, while he was there, he looked for a job in maintenance by posting his resume on a Web site and checking the local newspapers. The father got a “couple of calls back” but when he went to be interviewed with the Hillsboro County schools for a job as a locksmith, he was told he was “too overqualified” when they saw he was making $17 an hour at his job in New York4 and they were offering only $10 an hour. Though he said he would start at any entry level, he was not offered the job.

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Related

Pember v. Shapiro
2011 ND 31 (North Dakota Supreme Court, 2011)
Matter of Victor M. v. Nicole W.
2007 NY Slip Op 27519 (Kings Family Court, 2007)

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Bluebook (online)
18 Misc. 3d 650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-custody-of-luis-nycfamct-2007.