Domestic abuse is a significant problem that can have an impact on a lot of different areas of your life, including who gets to decide who gets to be the parent of your child. This article explores how child custody determinations in New York are impacted by domestic violence. If you have specific concerns regarding a custody dispute, you should get guidance from an accomplished family law expert. If you are a victim of domestic abuse, you should seek help right once to get to safety and legal help to defend your rights. There are numerous groups in New York that provide assistance to victims of domestic violence. In this article, Eastcoastlaws.com will outline all you need to know about how domestic violence affects child custody in New York.
How Do Domestic Violence Laws Works In New York
In New York, domestic violence laws are designed to protect individuals who are victims of abuse or threatened abuse by a family or household member. Domestic violence can take many forms, including physical abuse, sexual abuse, emotional abuse, and economic abuse.
Under New York law, a family or household member includes a spouse, former spouse, parent, child, any other relative, or any person who is or has been in an intimate relationship with the victim.
Victims of domestic violence in New York can seek protection through the criminal justice system by filing a criminal complaint against the abuser, or through the civil justice system by seeking an order of protection.
If a victim files a criminal complaint, the abuser may be arrested and charged with a crime. If convicted, the assailant may face imprisonment and fines, as well as other penalties such as a loss of firearms or other privileges.
Victims can also seek protection through the civil justice system by filing for an order of protection. An order of protection is a court order that prohibits the defendant from contacting the victim, entering the victim’s home, or otherwise engaging in behavior that would threaten or intimidate the victim. An order of protection may also include provisions for temporary child custody, support, and other forms of relief.
In New York, a victim can obtain an order of protection through the criminal court or the family court. An order of protection obtained through the criminal court is typically issued as a result of an arrest, while an order of protection obtained through the family court is typically sought as a standalone case.
It is important to note that an order of protection is not a guarantee of protection, but rather a court order that requires the defendant to follow certain rules. If the defendant violates the terms of an order of protection, they may be subject to arrest and criminal charges.
How Judges Decide Custody
If you and the other parent of your kid cannot agree on a custody plan in New York, you may submit a petition (formal request) to the court, and the judge will decide for you. The judge must consider what is in the “best interests of the kid” before making a custody judgment. In New York, unlike many other states, there is no set of criteria that the court must take into account while deciding what is in the child’s best interests. Instead, the court must take into account all pertinent information in each 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 take into account parental accusations of domestic violence and child abuse. In fact, according to the law, while deciding on custody, the court must take domestic violence into account in weighing the child’s best interests. (N.Y. Dom. Rel. § 240). The court will also take into account domestic abuse committed by one person against anyone else, not only you or your child. However, you must demonstrate that an act of domestic violence was committed “by a preponderance of the evidence” if you claim that the other parent of your kid did it. This implies that you must persuade the judge that the domestic violence incident occurred more often than not.
The Complexities Of Domestic Violence
In a dispute over custody in New York, the court must take domestic violence into account before deciding who should have custody. Domestic abuse, however, is a complex problem that isn’t always simple to recognize. What precisely is domestic violence then? Domestic violence is a pattern of violent behavior used by one person to acquire power and control over another person, whether it occurs within the same family, home, or “intimate relationship.”
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)
New York law makes several attempts to protect victims of domestic violence and bring perpetrators accountable. For instance, the criminal court may impose a temporary order of protection if the abuser is the subject of a criminal investigation. The abuser may receive a final order of protection from the court if they are found guilty of the offense. A criminal protection order restricts the abuser’s access to you and their ability to contact you. The Integrated Domestic Violence Court will resolve both your criminal and family law issues if you share a child with your abuser and have both a criminal case and a custody or visitation case ongoing.
Domestic abuse victims in New York may also apply for a civil order of protection through the family court. You can also seek the supreme court to issue a civil order of protection if you and your spouse are going through a divorce. Similar to criminal orders of protection, civil protection orders attempt to shield you from more wrongdoing. Civil protection orders might order your abuser to cease bothering you, stop coming to your house, or keep away from you. Civil restraining orders may be issued for a period of one to five years, and in exceptional cases, they may be extended even further.
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
Domestic abuse is simply one of the factors the judge takes into account when determining what is best for the child and whether to give her or the other parent custody. Keep in mind that domestic violence does not necessarily occur between you and the child’s other parent. The judge will also take into account, for instance, whether you had an abusive relationship with someone else after the other parent of your child. Any aggression committed towards the kid by you or the other parent will also be taken into account by the judge.
It is feasible for a judge to award custody to a parent who used domestic violence because it is just one of several considerations the judge takes into account when deciding who should have custody of the child. Furthermore, except in unusual situations, your abuser will typically continue to have some type of visitation (commonly known as “parenting time”) even if you are granted custody. This is due to the fact that, even when one parent engaged in domestic violence, it is typically in a child’s best interests to have a relationship with both parents.
The judge may restrict parenting time or order it to take place only under specific circumstances if you can convince them that giving the other parent parenting time will be harmful to your child’s physical, mental, or emotional well-being. For instance, the court may mandate “supervised visitation,” in which a third party, such as a social worker or an adult relative, oversees the parenting time. However, supervised visitation is typically only permitted while waiting for the court to rule that unsupervised visitation is safe.
What Makes A Parent Unfit In NY?
In New York, a parent may be deemed “unfit” if they are unable to provide adequate care, protection, and support for their child. This determination is made in the context of a child custody or child welfare case and is based on the best interests of the child.
There are several factors that may contribute to a finding of parental unfitness in New York, including:
- Substance abuse: A history of substance abuse, particularly if it affects a parent’s ability to care for their child, may result in a finding of unfitness.
- Mental illness: A serious and persistent mental illness that interferes with a parent’s ability to care for their child may be grounds for a finding of unfitness.
- Physical abuse or neglect: Evidence of physical abuse or neglect of a child, or a history of such abuse or neglect, may result in a finding of unfitness.
- Criminal behavior: Conviction for a crime, particularly if it is a violent crime or involves children, may be considered evidence of unfitness.
- Failure to provide financial support: Failure to provide financial support for a child may be grounds for a finding of unfitness.
- Abandonment: A history of abandonment or neglect of a child may be considered evidence of unfitness.
It is important to note that a finding of parental unfitness does not necessarily result in the termination of parental rights. Instead, the court may limit or restrict a parent’s rights and responsibilities, such as awarding custody to the other parent, ordering supervised visits, or requiring the parent to participate in treatment or therapy.