James Nolletti is a New York attorney who provides his clients peace of mind. Assertive and client-centered, Mr. Nolletti and his team of professionals are dedicated to providing prompt, efficient, and exceptional legal services. In this podcast James answers questions regarding forensic custody evaluations and explains the differences between legal and physical custody in New York.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: James Nolletti is a White Plains divorce lawyer and founder of Nolletti Law Group. James has over 30 years of experience in providing excellent service to individuals going through divorce who have complex divorce issues and significant assets.
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Read the Transcript of this Podcast Below.
Is there a difference between physical custody and legal custody in New York? What rights and responsibilities come with each?
There is a difference between physical custody and legal custody. Physical custody meaning just that, which of the parents will have the child physically residing with that parent within their physical custody and control. Legal custody relates to whether or not the parental responsibility will be joint or sole.
So, generally when one hears the term joint custody and sole custody they’re really referring to a legal custody concept because one parent can have physical custody but the parents can have joint responsibility for the children. Sole custody is basically a situation where one parent, to the detriment of the other if you will, has full control to make decisions and to raise this child or children as they see fit without the input from the other parent.
It also is an arrangement where the parent who does not have sole custody loses some parental rights such as access to information from medical providers or the educational system and those types of things. On the other hand joint custody, which is generally the preferred type of legal custody, is where the parents agree that although the day to day simple and easy decisions; what time do you go to sleep, what are we going to have for dinner, are made by them when the child is within their physical custody, which is either access time or their regular living arrangement.
When it comes to more important decisions that affect the children’s education, health, welfare and the like, the parents agree that they will confer with one another in advance of these major decisions in an effort to listen to one another and make a better decision for the children because of the dual input. And that’s important, a lot of the child psychologists will tell you that children seem to do better when parents have joint custody because they play more of a role in so far as the children’s lives.
Sometimes there can be a deadlock and the question comes up as to who can resolve the deadlock and that is often done by a provision in an agreement that settles this issue where one parent has the final say on an issue which they call veto power. It could also be done where parents are given different topics for the final say. For example if mom’s a teacher, mom might have the final say on the educational issues if the parties can’t agree. If dad’s a physician, perhaps dad will have the final say on medical issues.
If the parties are not able to agree that they’re going to do either of those two things a third party is sometimes appointed to help the parents get through the issues. And of course there’s always the court as the last recourse if they can’t agree to have the judge make the decision.
Can an attorney prepare a client for participation in a forensic custody evaluation? And are psychological tests administered in forensic custody evaluations?
Well, yes. If we just step back for one moment when parents can’t agree and the custody aspect of their case has to go to court for determination, there are basically two types of child custody litigation cases. One would be the unfitness case and that’s a relatively easier one of the two. It’s a battle of the experts where one parent says that the other parent is not fit to parent this other child because of a mental condition, a chemical dependency or those type of things.
The other category is the comparative case, that’s the more difficult one of the two because that’s where one parent says well, the other parent is not unfit but it’s in the children’s best interest comparatively to be with me as opposed to the other parent. And that’s one where sometimes family gets involved in third parties and it could be a very emotional time for the parents and the children.
When they have these types of situations courts often will order a forensic custody evaluation. That’s when usually a child psychologist or psychiatrist is appointed by the court as a neutral to conduct these types of evaluations. That leads us to the question about the preparation of a client for these types of custody evaluations.
Lawyers are charged with the obligation of properly preparing their clients for each step and each aspect of litigation. And a forensic custody evaluation is something that is a process within litigation. It’s important for the lawyers to appropriately, as opposed to inappropriately, prepare their client. There’s been a lot of debate over the past few years about their propriety of this type of preparation. For example telling the client what is involved in the process and helping the client understand it may help to reduce some of the anxiety that a parent might have in going through this.
But what would be inappropriate would be to try to coach the client into presenting themselves as someone they may not be, someone different than they are. Awhile back I had written an article about this very topic, I co-authored it with a psychologist, Dr. Jonathon Gould, it was published in the Journal of the American Academy of Matrimonial Lawyers. It was a call for a critical examination about preparing clients for these evaluations.
I think the interesting part is that many of the psychologists had issues with preparation, whereas the lawyers understood their obligation and didn’t. And as a lawyer I had to question the concern which was by preparing them; maybe the examiner can be fooled and from my mind if they can be fooled that easily then you have to question that entire process. But on the other hand those evaluators who really know what they’re doing will pick up on issues like this and they will rely upon third parties, what they call collateral sources to get to the heart of the matter. To reinforce the credibility of the report because it’s not just coming from someone who’s a party in the action.
I know you deal with a lot of high-net-worth divorcing people, what if one spouse lacks courage, knowledge or the funds to fight the very wealthy spouse for custody of their children. How would you help someone in this situation obtain primary or joint custody of their children?
Well, in New York we are not supposed to have a situation where in a divorce with not only with respect to children, but with all the issues in a case where there’s not a level playing field when it comes to financial resources.
The real problem cases are the cases where there are insufficient financial resources for both parties to go through some of the important processes like a forensic evaluation, because the parties pay for those even if the court appoints a neutral.
But in the case of a high-net-worth individual or affluent parents, which are the cases that I typically are involved in, courts will issue orders. Sometimes we don’t even need an order, sometimes the attorneys who know the lay of the land will resolve the issue by getting the moneyed parent to pay for the litigation costs in a contested custody proceeding on behalf of the non-moneyed spouse.
If they don’t agree to it they will spend time and money on motion practice. And at the end of the day the courts will generally issue an order directing the higher earning or moneyed spouse to pay those costs. So, it can be done the easy way or the hard way I guess.