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Court Determines Child Custody Where Domestic Violence Present


The couple was married in December 1989 and had always resided in New York during their marriage and their only child was born in July 1990. The parties resided in the City of Glens Falls. The husband was employed by an architectural firm and the wife remained at home to care for their son.

A New York Crirminal Lawyer said in June 1991, after the husband was laid off, the couple moved in with the husband’s brother in Rensselaer County. It was uncontested that the brother has suffered mental illness for many years and being treated with tranquilizers and has been hospitalized on numerous occasions. The husband admitted that his brother’s apartment was cramped, dirty, dangerous and had fleas which bit the child. Marital problems by and between the parties were intensified by their living conditions.

In August 1991, the wife left New York and took their son to Puerto Rico with her. She testified that she escaped to Puerto Rico in desperation due to her inability to acquire a safe environment in New York and the necessary medical care for her son. Because her mother and father both resided in Puerto Rico, the wife contended that she needed to live there in order to receive the emotional and financial support of her family.

The wife contended in the custody proceedings that challenge her relocation, that her husband abused alcohol and marihuana and that she was the victim of continued domestic violence. She further alleges that she had entered a domestic violence shelter on one occasion. One expert forensic evaluator, a mental health consultant, opined that the wife was fit to have custody and that the husband should be afforded liberal visitation. The expert further opined that the husband’s violence toward his wife may well have been a result of an alcohol problem. A certified alcohol counselor conducted an alcohol evaluation and diagnosed the husband as alcohol dependent-provisional, subject to further evaluation which the husband chose not to complete.

The husband also denied going to bars on a regular basis, denied that he had an alcohol problem and denied that he had smoked marihuana since his college years. A Staten Island Criminal Lawyer said with regard to allegations of domestic violence, he admitted to striking his wife on only one occasion. In the context of forensic examinations, the husband admitted that it would be best for his wife to have the custody but the parties should remain in New York or within a reasonable geographic location so that the father/son relationship could be fostered.

At the time of the fact-finding hearing, the husband was unemployed and receiving approximately $256 weekly in unemployment compensation. If granted custody, the husband testified that he would support his son through food stamps and Medicaid in addition to his unemployment allowance. The wife testified that she was employed in Puerto Rico as a teacher earning approximately $1,000 per month and that she resided in a home owned by her father free of charge. In support of her contention that exceptional circumstances existed to cause Family Court to grant her custody and permit her to reside in Puerto Rico, the wife testified that she was unable to obtain a teaching position in New York because she lacked certification. She testified that she applied for positions in New York City, Albany, Rochester and Florida. The evidence clearly reflects that although her efforts to complete these applications were meager, she would have to complete additional courses and become certified before a teaching position in New York would be a viable career.

After a five-day hearing, the Law Guardian recommended joint custody with physical custody to the wife provided that she returned with the child to New York or to a contiguous state. Family Court found exceptional circumstances to exist which justified the wife’s departure to Puerto Rico and determined that because the wife offered a more stable, nurturing environment, she should have sole custody of the child.

After determining that the move to Puerto Rico would deprive the husband, the noncustodial parent, of regular and meaningful access and that extraordinary circumstances exist to permit such relocation, Family Court correctly determined that relocation was in the child’s best interest. Noting that Family Court’s determination should not be disturbed unless it is not supported by any fair interpretation of the evidence, the court find that such determination has a sound and substantial basis in the record. It is noted that the wife has been the child’s primary caretaker and, with the assistance of her family in Puerto Rico, she can ensure a stable home environment which is free from domestic violence, as compared to the uncertain and volatile living arrangements in place before the parties’ separation. A NY Crimnal Lawyer said the court therefore, finds that the wife has made a sufficient showing that relocation was warranted, despite the contrary recommendation by the Law Guardian.

Whenever husband and wife fights, it is always the children that suffer the most. Any parent with sound mind would want a violence and crime free environment for their children. When you know of children who suffer from violence, feel free to call the office of Stephen Bilkis and Associates and speak with the members of NY Domestic Violence Lawyers. For your crime related actions, consult any member of the New York Criminal Attorneys.

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