New York Criminal Lawyer Blog
A New York Sex Crimes Lawyer said that the defendant-mother (hereinafter referred to as mother) and plaintiff-father (hereinafter referred to as father) were married in December 1996 and in 2003 were physically separated when the mother left the marital residence alleging abuse against her and the children.
The mother moved for an order of custody and modification of prior orders of custody entered in the Family Court, on consent. There are two (2) children of this marriage ages 14 and 9.
On 27 June 2003 the father filed a petition for custody in Family Court, Kings County.
A New York Sex Crimes Lawyer said thereafter, on 21 October 2003, from the Family Court, joint custody was awarded on consent to both parties with the mother retaining primary custody and the father receiving weekend visitation. In accordance with the Family Court’s data entry records, shortly thereafter, on 30 October 2003, the mother, pro se, filed a family offense petition, which was dismissed the very same day without prejudice.
On 1 June 2005, the father filed a petition for a modification of an order of custody. In response, the mother also filed a petition on 28 July 2005 for a modification of an order of custody. The mother defaulted having failed to appear on 21 October 2005. Accordingly, the father’s petition was granted, awarding him custody.
Thereafter, the mother filed petitions dated January 6 and 9 February 2006, respectively. The mother sought to modify and to vacate the custody orders of 21 October 2005, alleging that the father threatened her life and the lives of their children were she to appear in court on that date in 2005. The mother’s petitions were denied in 2005 and the custody order remained unchanged until 22 October 2008. The parties consented in Family Court to the father retaining primary physical custody with clearly defined visitation rights for the mother.
On 17 December 2008, the father filed the within action for divorce and the Family Court matters were consolidated, on consent, by this court into the matrimonial action.
A Nassau County Sex Crimes Lawyer said on 6 August 2009, alleging a change in circumstances, the mother filed an “order to show cause” seeking custody of the children. At the conclusion of the oral argument for the order to show cause, it was clear that there was a sufficient change in circumstances, as alleged, to warrant a trial on the issue.
Should the custody arrangement be modified?
In order to determine whether a custody arrangement should be modified, the court must apply one of two (2) different standards depending on whether the arrangement was created by a court order or agreement of the parties. The first, and more lenient, standard applies to court ordered arrangements; to modify such an arrangement the court must find “a change of circumstances such that modification is required to protect the best interests of the child”. However, “where parents enter into an agreement concerning custody it will not be set aside unless there is a sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interests of the children'”
The Appellate Division, Second Department has recently held that “Where, as here, parents enter into an agreement concerning custody, that agreement will not be modified unless there is a sufficient change in circumstances since the time of the stipulation, and unless modification of the custody arrangement is in the best interests of the child.”
In the instant case, the parties consented to the custody decision of 22 October 2008. Therefore, the latter standard will be applied.
The court finds that there have been sufficient changes in circumstances since the last Family Court order on 22 October 2008. The court has conducted separate in camera interviews with each child. The court paid careful attention to those interviews. It is clear the children wanted to live with their father when the parties consented to the 2008 custody arrangement but now they want to live with their mother, as is argued by their attorney. The mother has now found a new residence and improved her work schedule to increase her availability for the children. Most importantly, it is apparent to this court that the children have experienced escalating violence in the home. These findings lead this court to believe that there is a sufficient change in circumstances that were not foreseen and it is in the best interests of the children that a modification of the custody and access schedule be granted.
A Queens Sex Crimes Lawyer said it is also important to note that the trial court, which had the opportunity to view the demeanor of the witnesses, was in the best position to gauge their credibility. The trial court’s assessment of the credibility of witnesses and evidence is afforded great weight on appeal.
The court finds the mother’s testimony of escalating violence credible and the father’s downplaying and denial of the violence not credible. The court specifically finds that: on 17 August 2009, the eldest child was punched by the father in the ribs after playing a video game he was forbidden to play; on 17 August 2009, the father made the eldest child ride the city bus until 1:00 a.m., and the child was not able to use the bathroom or eat until the father’s shift was over; on or about 14 September 2009, the paternal grandfather who resides in the apartment below the father punched the younger child in the leg; and on or about 9 October 2009, the father ripped up the law guardian’s business card in front of the children and then called her a “white devil”.
Furthermore, the record is replete with additional incidents of domestic violence reported by the mother, and supported by evidence and testimony by the maternal grandmother.
Moreover, pursuant to Domestic Relation Law the court must consider this history of domestic violence when making a custody determination. The statute provides that “In any action or proceeding brought to obtain the custody of or right to visitation with any child of a marriage where either party to an action concerning custody of or a right to visitation with a child alleges that the other party has committed an act of domestic violence against the party making the allegation or a family or household member of either party and such allegations are proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the best interests of the child, together with such other facts and circumstances as the court deems relevant in making a direction pursuant to this section and state on the record how such findings, facts and circumstances factored into the direction.”
In the case at bar, it is evident that, while the father is an involved parent who takes an active role in the children’s education, health, religion and extracurricular activities, they cannot overcome the level of fear, intimidation and physical violence.
Numerous incidents of domestic violence, which the court finds credible, override the positive qualities of the father’s parenting.
The prior custody agreement is different from the one herein in two ways. First, there was never a finding after trial rendered by a court. Rather, the parties either came to an agreement or withdrew prior petition for modification. Secondly, the new statutory scheme which was adopted in 2009 was certainly not in effect. The 2009 amendment to Domestic Relation Law now requires that the court “state on the record how such findings, facts and circumstances of domestic violence factored into the direction”. All of the prior custody determinations were predicated upon agreements which predated the statutory amendment.
The Court had an opportunity to observe the parties and hear extensive testimony as well as conduct in camera interviews separately with both children (twice each) during this proceeding. It is clear that the father’s conduct in dealing with the children is far more physical than the mother’s or that which is required to properly discipline children. He was disingenuous in his denial and inconsistent in his positions taken as it relates to discipline of the children or the events of violence. It is clear to this court that the physical nature of his interactions with the children has now led to physical altercations between his children themselves, him and the children and the younger child and the mother’s son from a previous relation. The court finds the claim of the maternal grandmother that the eldest child had black and blue marks credible. His testimony was condescending and at times, belittling. Simply put-there is too much of a stress on physical intervention and threats.
In addition to the threats on her and the children’s lives, the mother explained that she also agreed to the father having custody of the children in 2008 because she avers that her attorney advised her that it was unlikely that the children would be returned to her because she did not have her own apartment. The court finds credible the mother’s assertion that she believed that her living situation and space restraints were a basis for her to have to agree to the custody to the father. However misguided her belief may or may not have been, the court cannot in and of itself determine that her new plans for residential arrangements standing alone would be the basis for a change in custody based upon an unanticipated change in circumstance. It is not this court’s intention to act as appellate authority of past Family Court orders. It is well established though in making custody determination there is not only one factor but a host of factors that a court must consider including the history of violence and the new acts of violence.
The Appellate Division, Second Department recently held that: the essential consideration in determining custody is the best interests of the child. The factors to be considered in making a custody determination include the parental guidance provided by the custodial parent, each parent’s ability to provide for the child’s emotional and intellectual development, each parent’s ability to provide for the child financially, the relative fitness of each parent, and the effect an award of custody to one parent might have on the child’s relationship with the other parent. The existence or absence of any one factor cannot be determinative on appellate review since the court is to consider the totality of the circumstances.
This court acknowledges the father’s extensive involvement in the children’s lives. However, it is crystal clear to this court that he has not provided for the children’s emotional development. On the contrary, he has repeatedly thwarted efforts to promote their emotional stability. The incidents of domestic violence against the mother which were witnessed by the children, the corporal punishment used by the father resulting in black and blue bruises, pulling the children out of therapy after only eight (8) session immediately upon the completion of the Family Court matter, failing to sign the counseling form provided by the school, failing to advise the paternal father that corporal punishment is prohibited by court order yet leaving the children in his care on a regular basis is simply not acceptable. Such decisions and actions by the father have clearly had on impact on these children. The mother, the maternal grandmother and the mother’s son from a previous relation stated that the children have behavior issues. This court notes the impact on the younger child of the infant children that each parent has with other people.
It is also clear from observing the father’s action that he believes that his custodial authority extends to eliminating the mother from the children’s lives. An example of this belief is when he made arrangements for the baptism of their child without ever notifying the mother or even the maternal grandmother with whom he has regular contact. The father’s claim that the mother will not speak with him does have some merit, but notification itself does not have to be vital for the court to fault the mother for refusing to speak with the father.
The father explained his own behavior as a reflection of his “Hispanic culture”. The father cannot defer to an argument of cultural experience as an explanation for his behavior. While the court respects, honors and admires the diverse cultural experience of our nation of immigrants we cannot ignore the effects of violence and power in a family unit. It is also clear that, whenever the father speaks or testifies, the mother cannot even bring herself to look at him directly. She either looks down or to the side and her painful renditions of past violence towards her and her children and threats to others have caused the court to pause in concern.
The court does have additional concerns that the father does not truly appreciate the depth of the children’s needs. His denial of access to therapy for them, for example because parking is difficult or having children ride on a New York City Bus through the late hours on his route are of concern. Similarly the Court does not find credible the fathers explanation as to his acts towards the attorney for the children.
The court does find credible the mothers articulated fear of the father was overwhelming under these unique circumstances, but does recognize that the fear coupled with economic uncertainty and space limitations should not be a determining factor in making custody agreements.
The court also acknowledges the role that the grandparents have played in assisting both parents in their obligations. Economic necessity required and will still require grandparent involvement. There is a volatile relationship that the children have with their father and there have been some claims of physical violence between the children and the paternal grandfather which resulted in an order of the Family Court that there shall be no corporal punishment.
Accordingly, the violence upon the children after 22 October 2008, which has been corroborated, is a basis to change custody when the court considers the prior history of domestic violence testified to and the acts complained of after this date. The court cannot and will not second guess the previous agreements and orders predicated on them. It is in the best interest of these children that custody be awarded to the mother. The father is awarded access to the children.
We, at Stephen Bilkis & Associates, specialize in Domestic Violence. If you are a victim of domestic violence, similar with the above mentioned case, contact us for a free consultation. We have our well trained and experienced New York Domestic Violence Attorneys and New York Criminal Attorneys to advise you.