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Court Rules on Domestic Violence

A wife and her husband filed their individual action for the child custody of their twin son. The twins were in the Dominican Republic and it is undisputed that the father obtained a default order of custody there in 2002.

A New York Criminal Lawyer said a review of the documents of the Dominican proceedings confirms that the mother and father separated. At that time, in accordance to an agreement signed before the assistant to the prosecutor, the father consented to the terms of an order of protection, agreeing to refrain from assaulting the mother verbally or physically, and to vacate the family home until the mother was able to find other housing. He agreed to pay child support, and was given regular visitations as long as he behaves appropriately.

The mother left the Dominican Republic in December 1999, leaving the children with her mother and remarrying in June 2000. Five weeks later, while the mother was still in the United States, the father filed a claim for custody of the two children in the Court of the First Instance for Children and Adolescents. The maternal grandmother, who had physical custody of the children at the time, was named as offender in the matter.

In a forensic report submitted to the Dominican District Court, the evaluator concluded that he should have custody since the mother is both physically and emotionally absent, and that the other family ties, according to the father, are not the most adequate for the children’s emotional or intellectual development. The father figure would be of vital importance, as such, the court suggest beginning individual and family therapy to address some of the previously reported issues.

In the midst of the Dominican judicial proceeding, the mother temporarily ceded custody of their sons to the father, in a document known as a friendly agreement, signed before the law guardian. The custody dispute thus came to a halt. The friendly agreement states that the care and custody of the children will be with the father given that the mother knows the address and phone number of the home and when she decides to come, she may have her children without any problems and abiding by school days. A Westchester County Criminal Lawyer said the agreement also states that the wife’s family may visit and telephone her twins and that if the twins are granted a green card, they may travel with her. She must also be informed of all the happenings of her children and they may visit their maternal grandmother during vacations. The agreement also requires the father to notify his wife if he decides to travel so she may keep closer contact with them and that they both keep an amicable relationship and respect each other’s private lives.

In February 2002, the father reactivated the Dominican custody proceeding. In his request for a hearing he alleged that the amicable agreement between the parties is not being adhered to. The nature of the violation that prompted the father’s action was not specified. By that time, however, the mother apparently lived in the United States and had regular, though intermittent, contact with the boys.

Proof of service by mail to an address not specified in the part of the Dominican court record before the court was submitted to the Dominican court. A Brooklyn Criminal Lawyer said the mother did not appear for the custody proceeding. In a decision, the District Court found the mother in default for nonappearance and awarded full custody to the father. Noting that the children had now been with their father for over a year, the court declined to move them again, citing the need for stability and security in the future. The law guardian in the proceeding took the position that custody should be awarded to the father, noting that the mother ceded custody of said children by means of an amicable agreement signed, and urged adherence to the agreement.

The mother, who asserts that she learned of the renewed custody proceeding only when she appeared in the Dominican Republic for a visit with the children, filed an appeal and an inquiry was held in that court. In a decision, the Appellate Court affirmed the grant of custody to the father.

Two weeks after the Dominican appellate decision, the father was arrested for threatening to kill the mother. He was charged with two counts of aggravated harassment in the second degree and related lesser offenses. He asserted to the Criminal Justice Agency, which interviews criminal offenders prior to arraignment for the purpose of advising the court on bail. He asserted that he had been self-employed, full time as an entrepreneur for the past two years. He gave his address and he represented that he had lived alone at that address during the prior year but he gave a different address to the arresting officer. At the arraignment, a full order of protection was issued in favor of the mother. Based in part on the father’s representations of community ties, he was released on his own recognizance and remains at liberty.

Almost immediately upon release, the father brought a petition for writ of habeas corpus, alleging that the mother removed the children from the Dominican Republic in contravention of the final order of custody issued by the Family Court in Santo Domingo and affirmed on appeal. A law guardian was assigned to represent the children, and the matter was made returnable for the following day, in the Integrated Domestic Violence (IDV) Court.

In response to the writ of habeas corpus, the mother appeared in the IDV Court with the children. Given the allegations of domestic violence and the lack of official, translated court documents from the Dominican proceeding, the children were allowed to remain with their mother pending further inquiry. The Dominican court documents were then sent for official translation.

On December 4, 2002, the mother filed a petition for custody with the County Family Court. In that petition she alleged that, after she fled without the children to the United States in December 1999 to escape domestic violence, her husband took their children from her mother’s home without her permission and obtained a default order of custody from a court in the Dominican Republic. She also filed a family offense petition which again alleges that her husband had threatened her life on the day after he filed the writ of habeas corpus and that he had displayed a gun, threatening to shoot her and the children.

The parties again appeared in the IDV Court and the law guardian interviewed the children, and reported an extensive history of domestic violence in the family. The court assumed temporary emergency jurisdiction of the proceedings, in accordance to Domestic Relations Law, and stayed enforcement of the Dominican custody decree. The children were again allowed to remain with the mother while a pending investigation is being made by the Administration for Children’s Services.

In a report to the court, an ACS child protective services worker recounted a history of severe domestic violence during the parties’ marriage in the Dominican Republic. The mother had medical records corroborating her claim of injuries at the hands of the father, and stated that the Dominican court had issued an order of protection in her favor.

The court assumes jurisdiction to modify the Dominican Republic custody order. As noted under Domestic Relations Law, modification does not necessarily mean a change in custody, only that the court’s order, whatever it may be, will replace that of the Dominican court. Any measures requested by the parties, in accordance to Domestic Relations Law to ease the difficulties of litigating a matter with history in two far-flung jurisdictions, will be readily entertained by the court and, when appropriate, granted. The court staff will assist in any way possible to implement the procedures.

When marriage falls apart, the children always suffer the most. Separation in couples are often associated with violence and sometimes, even crime. When your partner committed any form of domestic violence against you or any member of your family, feel free to contact the office of Stephen Bilkis and Associates to consult any of the New York Domestic Violence Attorneys. If things have gone out of hand, a NY Criminal Lawyer can provide you with a sound legal advice.