New York Criminal Lawyer Blog
The parties were both born in Albania. Plaintiff first moved to the United States on 14 December 1989, after receiving a green card through the American Embassy in Belgrade, Yugoslavia. He became a United States citizen in 1997. Plaintiff lived and worked in the United States continuously from late 1989 until the date of the commencement of the herein divorce action, only returning to Albania for brief vacations over the years (approximately the first six years of the marriage). Plaintiff is 48 years of age and defendant is 36 years of age.
A New York Criminal Lawyer said the court is called upon to determine custody of five (5) minor children and whether defendant is entitled to a five (5) year stay away order of protection against plaintiff. The court has bifurcated the issues of custody, visitation and order of protection.
The matter was tried on an expedited basis given the seriousness of the allegations. Defendant-wife (hereinafter referred to as defendant) against plaintiff-husband (hereinafter referred to as plaintiff) was issued a temporary order of protection in Family Court, Kings County on 4 December 2007, the Family Court petitions were consolidated into the instant divorce action by order of this court dated 2 January 2008. The court has bifurcated the issues of custody and visitation and a final order of protection.
On the issue of Order of Protection:
In Supreme Court, the court may issue an order of protection pursuant to Domestic Relations Law. That order of protection, once granted, can provide certain conditions which require the enjoined party to obey.
In as much as the Family Court petitions were consolidated into the Supreme Court matrimonial action, herein, the Supreme Court is a court of general jurisdiction, this court has the authority to determine the issue of the order of protection in the context of the consolidated divorce action.
The court finds defendant’s testimony of acts of violence, threats and intimidation are credible and plaintiff’s denial not credible.
The court note that not only was the testimony of defendant both credible and compelling, the corroborating testimony of the witness described an atmosphere of fear, actual threats, domestic violence and intimidation of an ongoing nature. Defendant was subjected to curses, taunts, physical violence, being spat on and a victim of overt violence and degradation through the marriage. A Nassau County Criminal Lawyer said the tape recording admitted into evidence provided the court with the actual opportunity to hear plaintiff’s threats and intimidation as well as the emotional distress his actions caused defendant as well as her responses and heart wrenching pleas to see the children.
Under the foregoing circumstances and pursuant to Domestic Relations Law, a final order of protection in favor of defendant is granted. It is abundantly clear that plaintiff poses an imminent and ongoing danger to defendant and therefore granting defendant a final order of protection for a period of five (5) years is appropriate
The defendant is granted a five (5) year final order of protection effective 15 August 2008 to expire on 15 August 2013; that plaintiff shall not harass annoy, strike, menace or intimidate defendant, and shall refrain from any criminal offense; that he shall cease and desist from any communication in any language except by e-mail or letter, which is limited to issues concerning the children’s well-being and or health and education; that he shall not telephone defendant and he shall stay away from her home, place of business and place of employment; and that any exchange of children must occur at a police precinct.
On the issue of Custody:
It is well established that the trial court is given great deference to assess the character and credibility of the parties. In determining a child’s custody, the court is to act as parens patriae and must base its determination on “child’s best interests”. In doing so, the court must make a decision based upon the totality of the circumstances, which includes evaluating which parent will best provide for the child’s “emotional and intellectual development, the quality of the home environment, and the parental guidance to be provided.”
It must be noted that there is overwhelming authority that children’s exposure to violence can have lasting effects such as severe psychological injury. Moreover, exposing children to this behavior can lead the child to learn a dangerous and morally depraved lesson that abusive behavior is not only acceptable, but may even be rewarded.
Another significant factor in the determination of custody is which parent will assure that the child maintains a meaningful relationship with the other parent. The court recognizes that an “interference with the relationship between a child and a noncustodial parent by the custodial parent has been said to be so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as custodial parent”.
This court must determine what is in the best interest of the child and what custody situation will promote the child’s greatest welfare and happiness. While a child’s preference is not determinative of the court’s decision, it is a factor in the totality of circumstances.
Here, plaintiff has engaged in a pattern of behavior which clearly culminated in the filing of a false petition in Kings County Family Court, seeking custody of the children when plaintiff learned that defendant gained access to the United States and was seeking to regain custody. When plaintiff could not gain custody of the children in Albania, he utilized the New York Family Court and systematically continued on his quest to isolate defendant from the children.
It is clear that plaintiff would say and do anything, including falsely accusing defendant of engaging in an adulterous affair and utilizing drugs, in an effort to discredit her not only to his family but these children and defendant’s own family as well. Plaintiff’s utter hatred towards defendant and her family which has for many years resulted in defendant’s forced alienation from her own family is disturbing to this court.
While the court is mindful of and extremely sensitive to the cultural identities of parties and the customs and practices that may vary in different parts of the world, it cannot close its eyes to the brute domestic and emotional violence imparted upon the defendant, which resulted not only in physical pain but emotional pain, and power exerted over her more than anyone should be subjected to. Plaintiff’s explosive and volatile conduct created a hostile environment.
Moreover, the physical surrounding of plaintiff’s residence does not convince the court that he will offer a better environment for the children than defendant. They live in a relatively close living space with plaintiff’s brother and his parents. While plaintiff claims he is responsible for all of their support, the court can only recognize the support obligation to defendant and children. Clearly, defendant will more readily allow plaintiff access to the children than plaintiff would allow defendant. The court negatively views any attitude or actions that limit access to the child or that appears to demean the other parent to the child.
Certainly joint custody is not an appropriate remedy here. There needs to be clear lines of authority so plaintiff knows and understands that he cannot treat defendant or influence the children in the manner he is accustomed. The level of acrimony is far too great to justify such an award and, given the limits imposed on communications herein, would be impracticable. Similarly, plaintiff’s request for structured family counseling is denied given the level of domestic violence and the existence of the order of protection.
Accordingly, defendant is awarded full custody of all of the infant children of the marriage while visitation rights were awarded to plaintiff.
If you want to know more about your rights in cases of domestic violence,or have been charged with sex crimes, theft or gun possession, contact Stephen Bilkis & Associates. Ask for a legal advice from our skilled New York City Domestic Violence Lawyers. For the prosecution of criminal actions, you may also speak with our expert New York City Criminal Lawyers.