Custody Evaluations and Investigations in Erie County: What Parents Should Know

By Pieter G. Weinrieb, Esq. · Admitted NY 2005 · 42-hour certified family and divorce mediator · Published October 4, 2026

Who Orders a Forensic Evaluation, and Who Does It

In a custody or visitation case, the court “may appoint a forensic evaluator on behalf of the court to evaluate and investigate the parties and a child or children” (DRL §240(1)(a-3)). The evaluator must be a psychologist, social worker or psychiatrist licensed in New York who has completed the state’s required training within the last two years, and must show proof of that certification when appointed. In Family Court, the judge has similar power to order a parent or other person examined by a physician, psychiatrist or psychologist the court designates (Family Court Act §251).

The evaluator works for the court, not for either parent. In Supreme Court, the cost of a court-appointed mental health expert in a custody case “shall be paid by a party or parties as the court shall direct” (22 NYCRR 202.18). The split is often tied to each parent’s income, but the judge decides.

Not Every Custody Case Needs One

A forensic evaluation is not automatic. The Appellate Division, Fourth Department, which hears appeals from Erie and Niagara Counties, has said the question is whether the testimony of the parties and other witnesses is enough for the court to decide custody without one (Matter of Pontillo v Johnson-Kosiorek, 196 AD3d 1163 [4th Dept 2021]). Evaluations are most common where a parent’s mental health, substance use, a claim of abuse or alienation, or a child’s special needs is in dispute.

The Judge Decides, Not the Evaluator

The recommendation carries weight, but it does not bind the court. In an Erie County case, the Fourth Department said the opinion of a court-appointed expert “is not determinative,” and upheld a custody decision where the judge set out the reasons for disagreeing with parts of the expert’s findings (Matter of Alexandra H. v Raymond B.H., 37 AD3d 1125 [4th Dept 2007]). If a party objects, the evaluator generally must appear to testify: the Fourth Department upheld a court’s refusal to admit a written forensic report when the evaluator did not appear to testify and be cross-examined (Matter of Avdic v Avdic, 125 AD3d 1534 [4th Dept 2015]).

What the Process Usually Looks Like

The statute says only that the evaluator will evaluate and investigate the parents and the child; each evaluator sets the method. In our experience, most evaluations include separate interviews with each parent, time with the child, observation of each parent with the child, and conversations with or records from people who know the family, such as teachers, pediatricians and counselors. Some evaluators use psychological testing. The process usually takes weeks to months, and the report goes to the court and the lawyers.

Access to the written report is tightly controlled. Courts limit who may read it and commonly bar copying it or sharing it with anyone outside the case. Your lawyer will explain the rules the judge sets in your case, and a parent who is representing themselves may be limited to reviewing it at the courthouse.

How It Differs From a Custody Investigation or a CPS Investigation

• Probation custody investigation. Family Court can direct the probation service, or another disinterested person, to interview people and gather information to help decide a custody case (Family Court Act §653; 22 NYCRR 205.56). The written report is due within 30 days of the order, with up to 30 more days for good cause (22 NYCRR 205.56). It is a fact-gathering report, not a psychological evaluation.
• Child protective investigation. A Family Court judge can order the local child protective service to investigate and report (Family Court Act §1034). That is part of the child abuse and neglect system, not a custody evaluation, although its findings can matter in a custody case.
• Attorney for the Child. The Attorney for the Child is the child’s lawyer and must advocate the child’s position (22 NYCRR 7.2). The AFC is not a neutral evaluator and does not testify.

How to Prepare

• Talk about your child, not your spouse. Evaluators listen for which parent can describe the child’s routines, needs and friendships, and which parent supports the child’s relationship with the other parent.
• Be honest about problems. If there is a past issue, such as a DWI, counseling, or a hard period, it is better explained by you than discovered.
• Do not coach the child. Children say what they have been told, and evaluators are trained to notice it. Coaching is one of the fastest ways to lose credibility.
• Bring what supports your account. School and medical records, a calendar of who handled pickups and appointments, and the names of people who can speak to your parenting.
• Keep to the schedule. Missed appointments and late paperwork are noticed, and they are easy to avoid.

Frequently Asked Questions

Related Questions & Resources

• Child custody in Buffalo and Western New York
• Attorney for the Child in New York
• New York child custody laws
• Does the child get a say in custody?
• Parental alienation in New York custody cases
• Can my ex get my therapy records in a custody case?

This page is general information about New York law, not legal advice for your situation. Every family is different: if this question is live in your life, talk to a family law attorney before you act.