Custody Ruling Addresses Reliance on Expert Opinions
"It seems apparent, in reviewing this record, that the ultimate decision as to the key issue in this case, i.e., whether to award custody to the father because of the mother's attempts to undermine his relationship with the children, was made on the basis of the experts' testimony. Courts should be ever mindful that, while the forensic expert may offer guidance and inform, the ultimate determination on any such issue is a judicial function, not one for the expert," Justice Joseph P. Sullivan wrote in a decision signed by Justice David B. Saxe, in John A. v. Bridget M., 4976.
"In this regard, it should be noted that there is an ongoing debate in both the legal community and the mental health profession as to the implications of expert psychological opinion in custody litigation, especially when the opinion is a conclusion as to the ultimate determination as to where to award custody so as to serve the child's best interest," Justice Sullivan added.
The decision marks the first time an appellate level court in New York has recognized the debate within the mental health community over whether "it is ethically proper" to give opinions on the best interests of the child "when there's no empirical base to support them," said matrimonial attorney and Albany Law School professor Timothy Tippins, who is also a Law Journal columnist.
Such opinions cannot be supported, he added, because psychologists and psychiatrists are unable to scientifically measure and predict the effects of different factors on the future well-being of a child. There is no way to ethically study, for example, the effect it would have on a child to place him in a home with schizophrenic parents.
Therefore, after a mental health expert offers opinions regarding the effects of, for instance, depression or spousal abuse, the judge should be the one to opine as to the child's best interest, Mr. Tippins said."
Information courtesy of Mark Fass, New York Law Journal, New York, New York, 2005..
Although I initially viewed this decision as a major victory for single mothers and their children, sadly, it appears to be far less. The court COULD have made a simple ruling to address and put a stop to these constant attempts by men, enabled by greedy lawyers and over-reaching Judges, to make an end-run around New York State custody laws. That’s what COULD have happened. Instead the court avoided the more fundamental issue and chose to make a more complicated ruling to wit: which “experts” should be allowed to make a custody decision. Should the expert come from the legal or the medical profession.
May I say, and I think I speak for many when I say it, that I am sick to death of these constant custody shenanigans, most instigated by men trying to change custody frequently to avoid paying child support. I am sick of them. The saddest part of the whole thing is that the appellate courts had an opportunity to make a strong statement AGAINST this constant flouting of New York State custody laws and instead chose to focus on which profession was better placed to make a custody decision, AFTER the laws are ignored.
The bottom line is that Bridget Marks had defacto custody of her children for three years while their father lived in California and visited them whenever he was in town. Their father John Aylsworth was perfectly content to leave the twins in the exclusive care, custody and control of their mother in New York for three years while he lived in California. Now, just because he changed his mind was NO reason for a Judge to entertain a change in custody that was not warranted by any substantial change in circumstances in the custodial mother’s household. PERIOD.
The key to settling the ‘problem’ of parents constantly using up the resources of our courts with these endless custody disputes is to enforce the laws we have on the books right now…To wit: a substantial change in circumstances is supposed to take place in the custodial parent’s house BEFORE custody can be changed…PERIOD.
The primary focus should NOT be whether a medical or legal expert is the proper person to decide on the change in custody. It misses the whole point of the Marks’ case, which is that the father here should NEVER have been allowed to bring this case to court to change custody. PERIOD…as no substantial change in circumstances had occurred in the custodial parent’s household.
Thus, the Marks ruling STILL does nothing about the bigger problem, which is NOT which experts should be deciding where our children will live. The real problem remains that basically anytime a ‘daddy come lately’ decides to, he can turn up even years after the fact, and turn upside down both a mother and her childrens’ lives by deciding he wants to change the custody arrangement that has been in place for years without any substantial change in circumstances taking place, as required by the New York State law…
That’s the real problem that needs to be addressed…as I guarantee you that this whole situation would NEVER have happened if the Judge involved had enforced the laws we ALREADY HAVE ON THE BOOKS as soon as the competing parties entered the courtroom.
We don’t need new laws or court rulings designating which experts from what professions should be empowered to make custody decisions. We need to ensure that the laws we already have on the books are strictly enforced and that parents, mainly fathers, understand that they do NOT have the right to throw their kids’ lives into an uproar just because they have decided they want to change the rules all of a sudden.