Domestic Violence and Custody Under New York Law: What A Litigant Needs to Know

For many New Yorkers, one of the biggest issues in a divorce or other separation is custody. Under New York law, there are numerous factors that the Court will consider under the “best interests of the child” standard. One of these factors, which can create numerous challenges, is whether domestic violence has taken place between the parents, or been committed by either parent against the children or another person (such as a new significant other).

Under the law, New York courts are required to consider any allegations of domestic violence in making a custody determination. Therefore, if there are any substantiated claims of domestic violence, a court is likely to restrict the violent parent’s access to the children. In determining whether or not there has been domestic violence committed by one of the parents, New York courts use a “preponderance of the evidence” standard. In other words, the party claiming that domestic violence took place must establish that it is more likely than not what they say happened did in fact occur.

If you are making a claim that your ex committed domestic violence against yourself or your children or another individual (such as a new boyfriend or girlfriend, or extended family member like a parent) it is imperative that you speak with your lawyer or attorney regarding any documentation you have. Evidence can include photographs of injuries, video, recordings, threatening text messages and emails, police reports, any existing or prior orders of protection or family offense petitions against the person you are alleging is violent, and, if needed, sworn statements from people who witnesses or were aware of the abuse occurring.

To be clear, domestic violence isn’t necessarily just physical abuse, and it is not just between significant others or their children.

Under New York law, domestic violence is between:

  1. Persons related by blood or marriage;
  2. Spouses or former spouses;
  3. Parents and their children;
  4. Persons not related by blood or marriage, but who reside or previously resided together (such as roommates);
  5. Persons who have a child in common, whether or not they were ever married or ever resided together; and
  6. Persons who were ever in a dating or intimate relationship, even if they are or were both minors and regardless of whether or not they are of the same sex.

In addition to physical and sexual abuse, New York law defines domestic violence as:

  1. Emotional abuse;
  2. Economic abuse (not letting the other person work, not letting them have any financial control in the relationship in order to keep them dependent on the abuser); and
  3. Psychological abuse such as threats (of physical, economic, or legal harm) or stalking.

It is important to note that even if there is domestic violence, since it is one of many factors considered, a parent who has committed an act falling under the umbrella may still get custody of the child(ren). Additionally, although the non-violent parent is more likely to be awarded custody, unless they can establish that the party who has committed an act or acts of domestic violence poses a threat to the child(ren)’s physical, mental, or emotional health, the other parent will still get visitation with the children. This is because even where domestic violence occurs, barring very extreme circumstances, New York courts generally believe that it is in the best interests of most children to have some kind of relationship with their parents, even where domestic violence has occurred.

Under these circumstances, the victim parent can have their lawyer or attorney ask the court to make all visitation between the child(ren) and the other parent be supervised (by someone other than the victim parent, as this lends more credibility to the fact that the victim parent feels threatened by the other party), until a judge determines that unsupervised visits are safe. It is important that attorneys for both parties (especially if you are the parent accused of committing the violence) specify when and the conditions under which supervised visits would end.

Additionally, it can be specified in the parenting plan that pick up and drop off of the child(ren) occur at a safe, neutral location such as a police precinct or fast food restaurant or other public location.

However, when making allegations regarding domestic violence in a custody matter, it is extremely important you speak with a lawyer or attorney who is experienced with New York custody law and cases involving domestic violence. If you are the victim parent, they will help you present the best possible case to prove your allegations and protect you and your children as much as possible. If you are the parent accused of violence, a lawyer or attorney will help you put forward the best possible case to disprove the allegations or show that what occurred was not to the extent that is being alleged. Additionally, they can work on your behalf to get as much possible time with your children with the least restrictions under the circumstances.

Overall, in a New York custody case where domestic violence plays a role, it is important to establish though your lawyer or attorney why your position is in the best interests of the health, happiness and safety of the children you’re fighting for.

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