Plaintiff (husband) and defendant (wife) were married on 17 July 1997. The parties have two (2) infant children. The above entitled divorce action was filed by plaintiff on 30 June 2005.
Both plaintiff and defendant blame each other for their failed marriage. Both plaintiff and defendant each allege that the other was verbally, emotionally, and physically abusive during the course of the marriage. During the pendency of the herein matter, based on criminal charges pending against both plaintiff and defendant, the physical custody of the infant children was changed by the Court twice. The defendant has had temporary physical custody of the infant children since 15 April 2008.
A New York Criminal Lawyer said that the Court conducted a non-jury trial with respect to the matrimonial action on March and April 2010. Plaintiff called one witness to testify at the trial while defendant called four witnesses. At the request of the Attorney for the Children, the herein Court conducted in-camera interviews of the two (2) infant children.
The Court finds that plaintiff engaged in cruel and inhuman treatment of defendant over the course of the marriage. Plaintiff engaged in a regular and cyclical pattern of domestic violence using verbal, emotional, mental and physical threats, and abuse. The herein Court finds that plaintiff provided defendant with absolutely no support or assistance with their infant children and intentionally allowed her mental state to deteriorate. Plaintiff then engaged in an alternating pattern of having defendant committed to mental hospitals and having her arrested without a valid basis. The Court finds that plaintiff intentionally frustrated the supervised visitation process when he was the custodial parent, and refused to properly engage in meaningful visitation when defendant was the custodial parent.
The parties entered into a stipulation dated 20 February 2007, agreeing to a divorce based on Domestic Relations Law, constructive abandonment. Accordingly, the plaintiff is granted a judgment of divorce on said grounds.
On Custody and Visitation:
The Court conducted separate in-camera interviews with each of the infant children, with the Attorney of the Children present. The Court inquired into various aspects of the infant children’s experiences and desires. The Court also inquired into the behavior of plaintiff and defendant during periods when each was the custodial parent and during visitation. The Court was disturbed by many of the infant children’s disclosures regarding plaintiff. In addition, equally troubling was plaintiff’s response to a Nassau County Family Court Order of Habeas Corpus requiring him to produce the infant children in Court in March of 2008; i.e., plaintiff absconded from New York State with the children and could not be found for several weeks. He also told the infant children and strangers that defendant was dead.
In deciding a custody dispute, it is this Court’s obligation to determine what is in the best interest of the children based on a consideration of all the relevant facts and circumstances. The Court has reviewed all of the relevant facts and circumstances, made a determination of the credibility of the witnesses, reflected upon the character, temperament, and sincerity of the parties, and has considered the quality of the home environment, the parental guidance the custodial parent provides for the children, the ability of each parent to provide for the children’s emotion and intellectual development, financial status and ability of each parent to provide for the child, relative fitness of the respective parents, and the effect an award of custody to one parent might have on the children’s relationship with the other parent. A Queens Family Lawyer said after reviewing same, the herein Court finds that the best interests of the children would be served by granting defendant sole custody of the infant children. On the other hand, conditional visitation rights were granted to plaintiff.
On equitable distribution:
Domestic Relations Law sets forth the statutory factors which must be considered when rendering a determination regarding the equitable distribution of marital assets.
In light of the parties’ complete failure to satisfy their respective burdens of proof regarding the parties’ separate or marital assets, the Court is unable to direct any specific distribution of assets. The Appellate Division has held that in a matrimonial action, where there is an absence of proof regarding the value of property or the reasons for treating property as marital property, the Court may refuse to consider any equitable distribution of those assets. However, with respect to the American Century and Interactive Brokers, LLC accounts, each party is entitled to fifty (50%) percent of the balances in said accounts as of 30 June 2005. To the extent that either party has received more than fifty (50%) percent of the balance in either account, as of 30 June 2005, the other party is entitled to an offset against amounts due from that party herein, excluding child support arrears, with right to offset amounts owing to either party.
On future Social Security awards received by either plaintiff or defendant with respect to the infant children for the period from August 2005 to June 2006, shall be put in a trust account and held for the benefit of the infant children until they reach the age of twenty-one (21).
It is well settled that the amount and duration of maintenance is a matter committed to the sound discretion of the Trial Court.
Based on the testimony adduced at trial, and the earning capacities of both plaintiff and defendant, the Court declines to award maintenance to either plaintiff or defendant.
On child support:
Domestic Relations Law requires the Court to follow a three step process for determining child support: calculate the combined parental income; multiplication of the combined parental income up to Eighty Thousand ($80,000.00) Dollars by the specified child support percentage, and allocation between the parties on a pro rata basis unless application of the percentage is deemed unjust or inappropriate.
In the case at bar, both parties are currently unemployed, and have been unemployed for an extended period of time. The herein Court finds that the parties are unemployed based on choice and not based on circumstance. Both parties have college degrees.
It is well settled that a proper award of child support is not necessarily based upon a parent’s actual income but may be based upon his or her earning potential.
Child support is retroactive to the date of the service of the pleadings, i.e., 30 June 2005. However, in the instant matter, the parties continued to reside together with the infant children until the issuance of a Stay Away Order of Protection in May 2006, against defendant in favor of plaintiff, wherein plaintiff received temporary custody of the infant children. Plaintiff is entitled to receive retroactive child support for the period that the infant children were in his custody, from June, 2006, to 15 March 2008. The Court is excluding the period when the plaintiff fled from New York State with the infant children in contravention of the Family Court Writ of Habeas Corpus. Defendant is entitled to receive retroactive child support from 15 April 2008, to the date of the herein Court’s Order.
In addition, plaintiff is required to pay fifty (50%) percent of the infant children’s past (retroactive to 15 April 2008), present and future: un-reimbursed medical and dental expenses or co-payments, school tuition (including college), summer camp tuition, and child care expenses.
Domestic violence between a husband and a wife doesn’t only result in emotional pain between the two. More often than not, the children are the real victims. It’s the children’s best interest that should be protected at all times. If you have been involved in a domestic violence matter, or have been charged with assault or sex crimes, contact Stephen Bilkis & Associates. Consult with our NY Domestic Violence Attorneys or our NY Criminal Attorneys.