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As stated herein the mother has, as it relates to custody and visitation, met the threshold of excusable default and a meritorious defense


The parties were married in New York in May 2002. While married, the father worked as a first grade teacher and the mother worked as a mandarin interpreter. The criminal parties knew each other for only a short time prior to their marriage, at which point, the mother became pregnant with the parties’ child. In December 2002, the mother gave birth to a son. At the time of the son’s birth the parties were living separately; however, during the early days of the marriage, the parties lived at the mother’s relative’s residence in Brooklyn. A great amount of the parties’ marriage can be characterized as tumultuous and there were incidents of domestic violence.

A Kings County Domestic violence lawyer said that In support of her request that she be awarded full legal custody of the child, the mother alleges that the father is merely trying to avoid paying child support and that he does not really care about custody. She argues that, until recently, the father lacked involvement with the child since the child was conceived. The mother contends that the father demanded a paternity test to prove his relationship to the child, but even after paternity was established, the father had little to do with the child. The mother avers that, as recently as 2005, the father was willing to forego custody of the child, in favor of the mother.

The mother argues that if the father is awarded custody, he will limit access between her and her child. The mother contends that the father will be influenced by his parents, who do not like her, and that they would encourage him to keep the child from her. The mother further contends that while the child was living with the father, her sister who was visiting from California called the father hoping to see the child. In contrast, the mother testifies that she will allow the father to see the child as she did in December 2004 when she complied with court orders and flew the child from California to New York to see his father.

The father acknowledges that he previously consented to the mother having full custody of the child on the condition that he would be allowed to have a substantial and meaningful relationship with the child but he contends this has not been the case. After returning from a two (2) year tour of duty in Iraq, the father claimed he saw the child briefly in December 2004, but that following this, the mother allowed him little contact with the child until August 2007. The father claims that the mother took the child to California in violation of court orders in August 2005 and that she hindered his ability to see the child for the next 23 months. The father asserts that he desperately sought the location of the child during this period, but that he could not find him until July 2007, when the mother sought court intervention on the issue of custody in California.

The mother argues that she has the child’s best interests at heart and that he is of the upmost importance in her life. She claims that in the past she has structured her work schedule in order to facilitate the child’s schedule and that she would do so again if she is granted custody. Additionally, she contends that she has always made it a priority to send the child to schools for gifted children and that she is concerned that the father does not encourage or nurture the child’s full academic potential.

The father argues that the mother is psychologically unstable and unfit to be a mother. He contends that her mental state is volatile and that it leads her to make bad decisions. He argues that the mother’s reactionary behavior led her to abscond with the child on various occasions, which repeatedly deprived him of his right to see his son for substantial periods of time.

Both parents agree that the child should be raised in accordance with Muslim religious beliefs and practices; however, the mother believes that the father does not practice these religious beliefs in strict accordance with religious principles.

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.”

Recently, in a case, the Appellate Division of the Second Department, held:
There is “no prima facie right to the custody of the child in either parent” Factors to be considered include the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child’s emotional and intellectual development, the financial status and the ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child’s relationship with the other parent”

The Supreme Court properly identified the factors that were to be considered in rendering its custody determination. It also properly concluded that an award of sole custody to one parent, rather than joint custody to both parents, was in the best interests of the child given the level of acrimony between the parties and their inability to function together in a manner necessary for a joint arrangement.

It is also well established that the court must take into account any incidents of domestic violence when making a custody determination. The court cannot minimize the domestic violence that both parties admit. The court is especially concerned about the incident when the mother fell down the stairs when she was pregnant and the mother’s use of pepper spray on the father before the child was born and while the parties were still married and living together.

While the court cannot determine who was the initial aggressor in the incident of domestic violence testified to, the court finds credible the mother’s sister’s testimony, that she saw the father engaged in throwing the mother, while pregnant, down the stairs and that the father prevented the mother from calling 9-1-1. The mother’s sister reports that she herself is a child protection caseworker in California.

The court finds credible the mother’s contention that the father’s parents apparent dislike for her will have an adverse affect on her relationship with her son if the father is awarded custody. The court does not find credible the paternal grandfather’s testimony that he liked the mother. Testimony establishes that he cursed at her and that he aligned himself with his son consistently throughout the proceeding and in ways that clearly undermined the credibility of his testimony.

In determining the best interests of the child, the court must also consider which parent will provide for the child’s emotional and intellectual development. The mother has gone to great lengths to provide the son with education alternatives. The father has shown more ambivalence about letting the child test for gifted schools. The court is concerned about the fathers explanation as to why he had sexual relations with the mother when she came to the Army base.

The 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. This court recognizes that the child wishes to live with his mother and to continue to see his father, but the child is only five (5) years of age.

This decision, narrowly comes down in favor of the mother at this juncture, so long as she understands that she cannot limit the father’s access to the child. The mother has been the parent who has met all of the child’s emotional and developmental needs until the writ of habeas corpus was granted giving the father custody on default.

The court recognizes that the mother feels that she was a victim of a husband who exerted power over her. She remains very sensitive to situations where she perceives, correctly or not, a power differential.10 It is crucial for the mother to think before she acts in stressful situations, especially when she feels overwhelmed, it is her obligation to provide the child with a stable parental influence and not to deny the father access to his child.

The mother’s judgment causes her to take rash action, such as sending letters to the forensic evaluator, cutting a security bracelet and removing the child from a hospital during an investigation and leaving for California in the middle of a trial, are all extreme reactions making the mother’s situation far worse than it needed to be. While this court does not condone many of the mother’s actions, it finds her to be credible when she testified that she would behave differently in the future.

Testimony reveals that the father is extremely angry and hostile towards the mother. He truly does not know what she will claim or what excuse that she will come up with to try to interfere with his access to the child.

The court will hold the mother to her testimony that she will reside in New York City as a requirement for retaining custody of the child. In doing so, the court finds that the mother is credible as to her intentions to provide meaningful contact between the child and father. The court recognizes that the mother has created a suitable home for the child to move into with a new room for the child. Under this scenario, the father will be able to have regular visits with the child.

The court recognizes that these two parties have very different parenting styles and very different outlooks on life. While each must respect the others parenting styles, they must understand that their child deserves, and must have, full cooperation of both parents in order to thrive. 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.

In determining custody, the court must not look upon this decision as a vehicle for punishing the mother, but must remember that the true test of determining custody between parents who have a significant negative history is what is in the best interests of the child.
The application to vacate the default judgment is granted as it relates to the issue of custody and visitation to the extent indicated herein. As stated herein the mother has, as it relates to custody and visitation, met the threshold of excusable default and a meritorious defense. Issues of custody and visitation should be decided on the merits.

The application related to the confirmation of the report on the balance of the default was not been made in an expeditious fashion and in order prevent further delay to the custody and visitation determination the application to confirm the report will be decided by a separate decision.

Persons who suffered violence from their own spouses should be protected against these assailants. Here in Stephen Bilkis and Associates, we protect the victims from abuse by filing a proper case in court. Through our Kings County Order of Protection attorneys, a protection writ will be prayed in court to free the victim spouse from abuse. We also have our Kings County Criminal lawyers who will file the necessary criminal action in court against the assailant.

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