Domestic violence is a very serious matter that can play a pivotal role in divorce and child custody proceedings in New York State. Judges take allegations of abuse, whether it be to a spouse, child, or third party, very seriously. A family court judge must examine all allegations and reports prior to issuing their final ruling on child custody or visitation.
What is Domestic Abuse?
Domestic violence is not limited to a spouse, partner, or child. A victim does not need to be blood related, or romantically involved, with the accused abuser. In fact, domestic violence can occur between roommates.
Contrary to popular belief, domestic abuse doesn’t always mean physical or sexual violence. Emotional, psychological, and economic abuse (where one spouse controls all finances and income) can all be considered domestic abuse in a court of law.
How is Child Custody Determined?
Child custody is determined in the child’s best interest, and not necessarily the wishes of each parent. There are many factors that can determine custody, including the child’s relationship with each parent, the child and both parent’s health, as well as the ability of each party to provide for the child. Depending on the age of the child, a judge will take into consideration their wishes regarding which parent they would like to reside with.
How Does Domestic Abuse Help Determine Custody?
There are two forms of child custody: residential, and legal custody. Residential custody refers to where a child lives, whereas legal custody addresses parental decision making, such as where the child attends school, medical decisions, etc. Each form of custody can be either sole custody, which is when one parent retains all custodial rights, or joint custody, which means both parents share custodial rights.
As discussed previously, custody is determined in the best interest of the child, and there are many factors that help a judge decide that that best interest is. Even though domestic abuse is a very pressing issue, allegations won’t automatically mean the accused will lose their custodial rights. The court prefers that children maintain healthy and positive relationships with both parents, so it is common for a judge to issue an order that helps foster this kind of relationship.
Child custody actions are very case specific, so it is difficult to determine exactly how a judge will rule. The severity of abuse allegations and findings will affect a custody judgment, but will vary on a case by case basis. For instance, a Defendant who is found to have physically abused his or her spouse and child will most likely not be awarded residential custody. It is likely that a judge will award residential custody to the victim, but still allow both parents to retain their legal custody rights.
Supervised Visitation and Domestic Abuse
Oftentimes, a victim of domestic violence or abuse will ask the court to order supervised visitation between the accused parent and child. To be successful in this kind of request, the petitioner will have to prove that their child’s mental, emotional, or physical health would be at risk if traditional parenting time were awarded to the other parent. If this is granted, then the parent will be required to have a neutral third party present during all visits with the child. A neutral third party can be another family member, friend, or social worker. In some cases, other alternative forms of visitation will be ordered if parties are unable to comply with supervised visitation.
Protection for Victims
If the issue of domestic abuse has been brought to the attention of the court, then the petitioner will be awarded a Temporary Order of Protection (TOP). A TOP can be awarded in both Supreme and Family Courts in New York City, and will usually be renewed throughout the duration of a divorce or child custody proceeding. These orders are designed to limit contact between parties, with the intention of preserving the petitioner’s safety and preventing the abusive behavior from continuing.
Some cases warrant a more permanent form of protection, in which case an Order of Protection or Restraining Order will be issued. It is a crime to violate an Order of Protection, so the party who did not comply with the order’s stipulations will be subject to prosecution.
Get Help for Domestic Abuse
If you are a victim of domestic violence, please know that you do not need to suffer through the emotional and physical torment alone. There are a number of hotlines and organizations in the New York City Area that help to protect victims and their children, and shield them from their abusers. For more information, and a list of emergency help centers, click here, or call 311.If your spouse is in violation of an Order of Protection, contact an attorney immediately.
Sensitive Cases Require Expert Representation
Divorce and child custody cases involving domestic violence are urgent matters that require immediate attention from a qualified attorney. The law firm of Brian D. Perskin & Associates P.C. represent New York City residents in a variety of matrimonial and family law cases, including those with domestic abuse components. For more information on how to protect yourself from your abusive spouse, contact Brian and his team to schedule a free and confidential consultation.