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Court Decides Custody Arrangement in Light of Domestic Violence Incidents


A man and a woman lived together and had a child who was born on February 17, 1990. They were married five months later on May 7, 1990. They resided at an apartment on Fifth Avenue. During their stay at the apartment, the woman met and cultivated a friendship with another woman who resided on another floor of the same apartment building.

The friend saw the woman everyday and noticed bruises on her face and arms. She saw her with a split lip. One evening the woman came to her friend’s apartment asking for help. She was bleeding from a cut above her right eye. She was crying and shaking. The friend called the police and after that, the friend went up to the woman’s apartment on the 19th floor to get her baby. The friend recalls that the woman invariably told her that it was her husband who hurt her. She also confided in her that they were fighting all the time.

The woman applied for and was able to obtain a temporary order of protection against her husband from the Criminal court for domestic violence. Six months after the issuance of the order of protection, her husband was arrested for violating the order of protection. He pleaded guilty and was imprisoned for six months. A final order of protection was issued to the wife for a period of three years.

All in all, the husband had three criminal convictions between 1990 and 1996 and two misdemeanor convictions. The wife died in 1996 and in her will, she gave guardianship and custody over her son to her friend.

When the husband had fully served all of his prison sentences and was released from prison, he filed a petition for custody of his son. A Bronx Criminal Lawyer said at the family court, the woman’s friend objected to the granting of custody over the child to the father. She claimed that extraordinary circumstances exist that necessitates a hearing on the best interest of the child.

The friend testified as to the fact of domestic violence and how the woman suffered at least three documented beatings from her husband. She provided testimony and evidence of the arrest and conviction of the husband for assault and for violation of the order of protection.

On his part the husband never denied the turbulent and violent relationship with his wife. He excuses his violent behavior, however by alleging that his wife was using cocaine and this was what precipitated his anger toward her. He never denied having struck his wife. The only thing he denied was that he punched his wife. He claims that he slapped her but did not punch her. He also testified that he had only seen his son about three times during the period from 1990 until 1996. He has spoken to his son by telephone for only two times when the child was visiting the father’s parents. Since his parole in May 1996, he has lived in Albany and he has seen his son seven or eight times at the home of his own father ( the child’s grandfather).

The only question before the Court is whether or not there are extraordinary circumstances that necessitate a hearing on the best interest of the child.

The Court first held that the father is the child’s natural parent and he has a right to the custody of his son that is superior to any other person especially one who is not a relative of the child. The right to custody of one’s child may only be denied if there is a showing that the parent I unfit or if he has surrendered, abandoned or persistently neglected his child. For when the court determines that these extraordinary circumstances exist, then there must be an inquiry as to how the child’s best interest will be served.

The Court notes the lack of interest in the father to cultivate a relationship with his son during the period of his incarceration. A Manhattan Criminal Lawyer said the Court also notes that the contact between the father and his son since his release on parole is limited because of the distance between his present residence and the child’s. The Court has also noted that the child has developed a psychological bond with his present caretaker, his mother’s best friend. There is a potential emotional harm which may be caused to the child if custody were transferred from his mother’s best friend to his father.

The father also demonstrated his propensity for domestic violence. He has not been truthful to the court and has tried to evade and to minimize the severity of the abuse his wife suffered at his hands. The existence of domestic violence is a relevant factor when considering the custody of a child. Domestic violence negatively affects the emotional and psychological well-being of the child. The Legislature has determined that repeated and continuous acts of domestic violence and abuse constitute neglect.

The Court therefore finds that extraordinary circumstances exist to warrant a hearing to determine the best interest of the child.

A New York Criminal Lawyer will advise you that a criminal arrest and conviction for domestic violence or assault results in a finding of parental unfitness. A New York Domestic Violence attorney will also advice you that you may lose custody over your child with an arrest or conviction for domestic violence. Call Stephen Bilkis and Associates, speak and confer with any of their NYC Domestic Violence attorneys. Ask for the advice and assistance of their NY Domestic Violence Lawyers. Stephen Bilkis and Associates have accessible offices in the New York area.

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