How Domestic Violence Affects Child Custody in New York

Learn more about domestic violence and how it can impact custody decisions in New York.

By , Attorney · University of Maryland School of Law
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Domestic violence is a serious issue that can impact many aspects of your life, including who should have custody of your child. This article discusses how domestic violence affects child custody decisions in New York. If you have specific questions about a custody case, you should contact an experienced family law attorney for advice.

If you are a victim of domestic violence, you should immediately seek assistance to get to safety as well as legal assistance to protect your rights. There are many organizations in New York that offer services to domestic violence victims. To find help throughout the state, check out the New York State Office for the Prevention of Domestic Violence website, which provides local resources and other information.

How Judges Decide Custody

In New York, if you and your child's other parent can't agree on a custody arrangement, you can file a petition (written request) in court, and a judge will make the decision for you. To make a custody decision, the judge has to look at what is in the "best interests of the child." Unlike many states, in New York, there is no list of factors that the court must consider to determine the best interests of the child. Instead, the court must consider all relevant facts and circumstances of each individual case.

Some examples of factors the court might consider include, but are not limited to:

  • the child's wishes
  • the willingness and ability of each parent to encourage a relationship between the child and the other parent
  • the child's and each party's health
  • the child's relationships with each parent and other family members, like siblings or step-parents, and
  • each parent's ability to care and provide for the child.

However, the court will always consider allegations of domestic violence and child abuse by the parents. In fact, by statute, the court must consider the effect of domestic violence on the child's best interests in order to make a determination of custody (N.Y. Dom. Rel. § 240).

Furthermore, the court will consider domestic violence committed by one party against anyone else, not just you or your child. However, if you allege that your child's other parent committed an act of domestic violence, you have to prove that it happened "by a preponderance of the evidence." This means that you have to convince the judge that the incident of domestic violence more likely than not occurred.

For more information about how the judge determines what's in a child's best interests, read the article Child Custody in New York: The Best Interests of the Child.

The Complexities of Domestic Violence

In a contested custody case in New York, the court must consider any occurrence of domestic violence before determining who should have custody. However, domestic violence is a complicated issue, which isn't always easy to identify.

So what exactly is domestic violence? Domestic violence is a pattern of abusive behavior in the same family, household or in an "intimate relationship" used by one person to gain power and control over another person.

New York law defines family, household or "intimate relationship" to include any of the following persons, regardless of their age:

  • persons related by blood or marriage
  • spouses or former spouses
  • parents and their children
  • persons not related by blood or marriage, but who reside or previously resided together (for example, roommates)
  • persons who have a child in common, regardless of whether they were ever married or lived together, and
  • persons who are currently or previously in a dating relationship, regardless of age and including both heterosexual and same-sex relationships (N.Y. Fam. Ct. Act § 812).

Furthermore, domestic violence includes many more actions than just hitting. Some examples of the actions that constitute domestic violence include, but are not limited to:

  • physical abuse
  • sexual abuse
  • emotional abuse
  • economic abuse (for example, controlling all of the finances within the relationship), and
  • psychological abuse (for example, threats, intimidation or stalking) (N.Y. Fam. Ct. Act § 821).

There are a number of ways that New York law tries to help keep victims of domestic violence safe and hold abusers accountable. For example, if a criminal case is brought against the abuser, the criminal court may order a temporary order of protection. If the abuser is found guilty of the crime, the court may give the victim a final order of protection. A criminal protective order limits the abuser's ability to come in contact or communicate with you. If you share a child with your abuser and have both a criminal case and a custody or visitation case pending, your cases may be combined and heard in the Integrated Domestic Violence Court, which will decide both your criminal and family law cases.

Victims of domestic violence in New York can also ask the family court for a civil order of protection. If you and your spouse are in the middle of a divorce proceeding, you can also ask the supreme court to issue a civil order of protection.

Civil orders of protection work just like criminal orders of protection by helping to protect you from further abuse. Civil orders of protection can require your abuser to leave the home, stay away from you, or stop contacting and harassing you. Civil restraining orders can last from one to five years and can be extended for even longer in some circumstances. More information about how to obtain a civil order of protection is available on the New York Courts' website.

Effect of Domestic Violence on Custody

As stated, domestic violence is just one factor that the judge considers when deciding what's in a child's best interests and granting you or your child's other parent custody. It's important to remember that domestic violence does not have to be between you and the child's other parent. For example, if you were in an abusive relationship with another person after your child's other parent, the judge will consider that too. The judge will also consider any violence by you or your child's other parent against the child.

Because domestic violence is only one of many factors that the judge considers in determining custody, it's possible for a judge to grant custody to a parent who committed domestic violence. Furthermore, even if you are awarded custody, your abuser will usually still receive some form of visitation (also called "parenting time"), except in extreme circumstances. This is because it is usually in a child's best interests to have a relationship with both parents, even when one parent committed domestic violence.

If you can prove to the judge that you're child's physical, mental, or emotional health would be in danger if parenting time were granted to the other parent, the judge may limit parenting time or require it to occur only under special conditions. For example, the judge may order "supervised visitation," where a third party, like a social worker or a responsible family member, supervises the parenting time. However, supervised visitation is usually temporary, lasting only until the judge determines that unsupervised visitation can occur safely.

If you're concerned about your own safety during pick up and drop off of your child, you can also ask the judge for exchanges of your child to occur at a police precinct, supervised exchange program (if one is available in your community) or at another safe, public place.

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