Some problems defy simple solution. This article has been germinating in my computer for more than three years as I've continued to contemplate how custody appeals can be processed more efficiently while ensuring that the findings of the Appellate Division are based on admissible evidence. Unfortunately, there is no easy answer—absent a dramatic overhaul of the judicial custody process, we will continue to experience delayed determinations which may be based on inadmissible hearsay and personal opinion. Since there is no definitive “solution,” it is especially important to consider how systematic delay, the growth and natural development of the children and/or a post-trial change in circumstances can be used by the non-custodial parent to obtain reconsideration of a custody determination.

'Matter of Michael B.'

While it is axiomatic that appellate courts are generally prohibited from considering matter dehors the record, commencing with the Court of Appeals' seminal decision in Matter of Michael B., 80 N.Y.2d 299 (1992), this prohibition was no longer strictly applied to custody-related cases. The Michael B. court permitted the Appellate Division to consider that the subject child's biological father had been “charged with and admitted” neglect of other children post-trial, holding that the record was “no longer sufficient” to determine parental fitness or custody. The expansion of this exception (and erosion of the underlying principle) has changed the dynamics of custody appeals.

Subsequent Appellate Division Cases

The increasing time span between the trial and determination of an appeal appear to have caused the Appellate Division to expand the post-trial facts it may consider. See, e.g., E.V. v. R.V., 130 A.D.3d 920 (2d Dept., 2015) (21-month delay between end of the hearing and decision and order of the Appellate Division); Fleishman v. Hall, 88 A.D.3d 1000 (2d Dept., 2011) (18-month delay between order on appeal and decision and order of Appellate Division); Matter of Wesley R., 307 A.D.2d 360 (2d Dept., 2006) (two-year delay between order on appeal and decision and order of Appellate Division). Where delay and/or changed circumstances have rendered the prior record “no longer sufficient” to determine custody, the court may take “judicial notice” of post-trial events and direct reconsideration of the issues. See, e.g., Matter of Nichols v. Nichols-Johnson, 78 A.D.3d 1679 (4th Dept., 2010); Matter of Antonette Alasha E., 8 A.D.3d 375 (2d Dept., 2004); Matter of Greenidge v. Henry, 70 A.D.3d 946 (2d Dept., 2010). The irony is inescapable—the “remedy” for extraordinary delay is to direct a retrial, further delaying finalization of the matter.

Some of the post-trial events which have been considered include: allegations of domestic violence (Matter of Greenidge v. Henry, 70 A.D.3d at 947); a criminal conviction of one of the parties (Matter of Chow v. Holmes, 63 A.D.3d 925 (2d Dept., 2009)); a change in the position of a child or children (Matter of Teshana Tracy T., 71 A.D.3d 1032 (2d Dept., 2010)); Matter of Samuel Farien G., 52 A.D.3d 713 (2d Dept., 2008)); a change in the position of one of the parents (Nichols v. Nichols-Johnson, 78 A.D.3d 1679 (4th Dept., 2010)); a change in the living situation of one of the parties (Matter of Gunn v. Gunn, 129 A.D.3d 1533 (4th Dept., 2015)); and, perhaps most significantly, the “pace of the psychological development of the child.” (E.V. v. R.V., 130 A.D.3d 920 (2d Dept., 2015)); Matter of Fleischman v. Hall, 88 A.D.3d 1000; Matter of Wesley R., 307 A.D.2d 360; see In re Evelyse Luz S., 62 A.D.3d 595 (1st Dept., 2009)). The inquiry is fundamentally fact-sensitive—the new information must be important enough to render the prior determination “no longer sufficient” to determine custody or parental fitness.

This willingness to consider important post-trial events appears to have facilitated consideration of lesser issues, including the frequency of post-trial contact between the children and the non-custodial parent. The seemingly innocent question at oral argument—“how's Johnny doing with mom (or dad) since the trial”—presents serious legal and ethical implications.

Dangers Posed by Delay in the Legal Process

While the time span between rendering a custody ruling and determining the appeal varies between the judicial departments, it is inescapable that the process often takes too long. There is no mechanism to obtain reliable, updated information on appeal. This systematic flaw forces the court to either: (1) rely exclusively upon potentially dated information adduced at trial; or (2) attempt to elicit post-trial information which is usually unsworn, untested by cross-examination. The inherent unreliability of such post-trial information, often obtained by the attorney for the child (AFC) from one of the parents, should call this practice into question.

The longer the delay between the trial and determination of the appeal, the greater the temptation to seek post-trial information. While a brief delay is unlikely to inspire inquiry, a delay of 18-24 months (or more), which can result in significant changed circumstances (especially for younger children), may induce judicial inquiry. Thus, the unsuccessful parent may use a lengthy delay as a tactical tool by claiming that the record is no longer sufficient to support the determination on appeal.

The Appellate Division's difficulties in obtaining updated information appear to have been exacerbated by the adoption of 22 NYCRR §7.2 (effective Oct. 17, 2007) which altered the name and function of attorneys representing children. The transformation of the law guardian from a “best interests” advisor to the court into an “AFC,” providing each child with a true “advocate” for the first time, made it increasingly difficult for the court to obtain reliable post-trial information. Any attempt to procure such information from the AFC can force the AFC to become an unsworn witness, creating an inherent conflict. Since the AFC is required to advocate on behalf of the child unless the child lacks the capacity for a knowing, voluntary and considered judgment (see 22 NYCRR §7.2; Venecia V. v. August V., 113 A.D.3d 122, 125-26 (1st Dept., 2013)), and is no longer a best interests advisor to the court, such an inquiry may be inconsistent with the standards governing AFC conduct. These inquiries are also problematic for appellate counsel who must be prepared to respond to any judicial inquiry or unsworn representations by the AFC (or opposing counsel) regarding post-trial circumstances (the source of which is often the custodial parent, especially where younger children are involved).

The Appellate Division's willingness to consider (and sometimes rely upon) such untested information is quietly ignored. While it is understandable that the court would prefer to obtain significant post-trial information, its consideration of more mundane post-trial facts (i.e., whether access is being provided) is troubling.

To establish reliability, we generally require information to be offered under oath, subject to cross examination. Thus, to obtain reliable evidence post-trial, it would be necessary to conduct a hearing for every custody-related appeal which was substantially delayed in the appellate process. Alternatively, the adoption of legislation permitting the appointment of an independent court evaluator (separate and distinct from the AFC), would enable the court to obtain presumably unbiased, updated information, without compromising the AFC's integrity or independence.

In comparable circumstances, in which the court must assess the mental capabilities of an alleged incapacitated person (AIC), the Legislature has provided for the judicial appointment of a “court evaluator,” a presumably reliable, unbiased source, who is duty-bound to interview the AIC, investigate the existing circumstances and provide the court with an impartial report. See MHL §81.09(c). Ironically, the court evaluator's role under the Mental Hygiene Law is in some ways similar to that of the law guardian before the changes set forth in 22 NYCRR §7.2 were implemented.

Suggested Improvements

This is a complex problem which is impacted by the volume of appeals in the system (and resulting delay in their determination), delays in the entry of an appealable paper and the mercurial nature of the respective parties' home circumstances. While there is no simple answer, some of these problems could be eliminated if custody appeals were processed immediately—within a few months of the lower court's determination.

To further this goal, appeals regarding custody, parental access and parental fitness should be granted a systematic preference. CPLR §5521 grants an appellate preference to certain specified proceedings under the Family Court Act while affording the Appellate Division “discretion” to grant such relief. CPLR §5521(a). The rules of the various Appellate Divisions generally mirror this discretion. See 22 NYCRR §600.12; §670.7(b); §100.10(d). They are also empowered to adopt an active case management system for custody matters. See, e.g., 22 NYCRR §670.4. However, at present, there is no law or rule granting a preference to all custody-related appeals. This should change. Our public policy should be clear—all custody-related appeals, whether rendered in a divorce action or an independent custody proceeding, should be heard on a preferred basis, within a designated, expedited time frame.

Additionally, in cases in which custody and divorce are tried together, the court should be required to enter an “interlocutory” custody judgment upon issuance of the decision after trial (as authorized by CPLR §5701). This will permit an immediate appeal of custody-related issues during the often lengthy interregnum between issuance of the decision after trial and entry of the judgment of divorce.

Glenn S. Koopersmith is a fellow of the American Academy of Matrimonial Lawyers, and practices in Garden City.