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Couples Battle for Custody in Light of Abuse Allegations


On 17 July 1997, plaintiff (husband) and defendant (wife) got married. The parties had two children: A who was born on 19 December 2002, and B who was born on 15 December 2004. On 30 June 2005, a matrimonial action was filed by plaintiff. The Court conducted a non-jury trial on March 17, 18, 19, 22, April 8, 9, 12, 13, 2010. A New York Family Lawyer said the plaintiff called one witness to testify at the trial while defendant called four witnesses to testify at the trial. At the request of the Attorney for the Children, the Court conducted in-camera interviews of the two children. 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 matter, based on criminal charges pending against both plaintiff and defendant, the physical custody of the children was changed by the Court twice. The defendant has had temporary physical custody of the children since 15 April 2008.

On the Findings of Fact:

A New York Custody Lawyer said the testimony of plaintiff was found not credible and was often false. Here, plaintiff was extremely combative on the witness stand; he was unable to follow simple Court directives regarding his conduct, demeanor, and decorum during the proceedings; his testimony often defied logic, reason, and common sense; he claimed that he was verbally and emotionally abused by defendant throughout the entire marriage, yet his examples of this alleged abuse consisted of defendant calling him a bum, saying that he did not care, and that he was not responsible; his testimony regarding his prior employment history and finances was vague and evasive; he was unable to provide a clear employment history; he was unable to explain why he has not worked in over six years; he provided no explanation whatsoever regarding why he has not paid the Court Ordered child support for over two years; his testimony regarding the problems which he experienced with supervised visitation was unsupported by the record; the three defense witnesses directly and consistently contradicted his accounts of the problems experienced during the supervised visitation; and each witness unequivocally indicated that it was him who caused all of the problems during visitation.

A Queens Family Lawyer said the testimony of defendant was found credible. Here, the defendant was open and forthcoming when testifying; her testimony regarding the history of the marriage and the problems with the supervised visitation were all supported by the record; and the testimonies of the three defense witnesses were all credible.

In sum, the court found that plaintiff did engage in cruel and inhuman treatment of defendant over the course of the marriage. Here, plaintiff engaged in a regular and cyclical pattern of domestic violence using verbal, emotional, mental and physical threats, and abuse; plaintiff provided defendant with absolutely no support or assistance with their 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; and 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.

On the Grounds for Divorce:

On 20 February 2007, the parties entered into a stipulation agreeing to a divorce based on Domestic Relations Law Section 170 (2), constructive abandonment. Thus, the plaintiff was granted a judgment of divorce on said grounds.

On Custody and Visitation:

A Queens Custody Lawyer said the plaintiff sought joint custody of the children with defendant; requests that all of the religious and educational decisions be made by him; and consents to defendant having liberal unsupervised visitation. Defendant, on the other hand, sought sole legal, physical, and residential custody of the children; and requests that any visitation by plaintiff be supervised and therapeutic with a monitoring process. The Attorney for the Children also recommends that defendant be granted sole legal, physical, and residential custody of the infant children; and recommends that plaintiff initially have therapeutic supervised visitation with the infant children, and then unsupervised visitation.

The Court conducted separate in-camera interviews with each of the children, with the Attorney of the Children present. The Court inquired into various aspects of the infant children’s experiences and desires; the Court 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; and equally troubling was plaintiff’s response to a Nassau County Family Court Order of Habeas Corpus requiring him to produce the children in Court in March of 2008, that is, 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.

As a rule, in deciding a custody dispute, it is the 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. Here, 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. After reviewing same, the Court found that the best interests of the children would be served by granting defendant sole custody.

Accordingly, the defendant was granted sole physical, legal, and residential custody of the children; the defendant was granted sole decision making authority over all matters concerning the infant children; the plaintiff was directed to engage in and complete a twenty-six (26) session Domestic Violence program within one (1) year of the date of the Order, and provide written proof of same, through his attorney, to the Court, to defendant’s attorney, and to the Attorney for the Children; the plaintiff was permitted the right to exercise therapeutic supervised visitation with the infant children at least once per week for one (1) hour per week through Visitation Alternatives, or any similar Agency providing therapeutic supervised visitation, or any other therapeutic visitation as agreed to by the parties and approved by the Attorney for the Children, for a continuous six (6) month period from the date of the Order; and upon completion of the six (6) month period, plaintiff was permitted non-therapeutic supervised visitation for two (2) hours per week for a continuous period of six (6) months to one (1) year from the date of the Order.

If and when plaintiff has completed the Domestic Violence Program, and the continuous therapeutic supervised visitation period, and the continuous supervised visitation period, and provided proof of the same to the Court, to defendant’s attorney, and to the Attorney for the Children, plaintiff shall have the right to exercise unsupervised visitation with the infant children as follows: regular visitation, holiday visitation, school recess visitation and summer vacation visitation; provided he complies with the terms and conditions of the same.

On Equitable Distribution:

Statutory factors which must be considered when rendering a determination regarding the equitable distribution of marital assets are set forth under the Domestic Relations Law.

Here, both plaintiff and defendant testified that they are currently unemployed, and have been unemployed for a number of years. The reason for the extended unemployment period of both plaintiff and defendant has been left a mystery to the Court. There was no testimony that either plaintiff or defendant has sought or is seeking employment. This is particularly surprising in light of the fact that they have two children to support. Both plaintiff and defendant appear to be in good health and capable of working. Both plaintiff and defendant have college educations. The Court finds that there is no valid reason for the unemployment of either plaintiff or defendant other than their unwillingness to work.

Moreover, the parties failed to satisfy their respective burdens of proof regarding their separate or marital assets. In light of this, the Court was unable to direct any specific distribution of assets. Pursuant to the ruling of the Appellate Division, where there is an absence of proof regarding the value of property or the reasons for treating property as marital property in a matrimonial action, the Court may refuse to consider any equitable distribution of those assets.

However, plaintiff and defendant do have bank accounts existing. With respect to these 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 June 30, 2005, the other party is entitled to an offset against amounts due from that party, excluding child support arrears; any amounts owing to either party after the offsets, must be paid within thirty (30) days of the Decision and Order; and any amounts due after thirty (30) days from the date of the Decision and Order may be reduced to a Judgment upon separate application to the Court by the aggrieved party.

Furthermore, any future Social Security awards received by either plaintiff or defendant with respect to the children for the period from August 2005 to June 2006, was ordered to be put in a trust account and held for the benefit of the children until they reach the age of twenty-one (21).

On Maintenance:

Well settled is the rule that the amount and duration of maintenance is a matter committed to the sound discretion of the Trial Court. A Court may Order maintenance in such amount as justice requires considering, inter alia, standard of living of the parties during the marriage, income and property of the parties, distribution of marital property, duration of the marriage, health of the parties, present and future earning capacity of both parties, ability of party seeking maintenance to become self-supporting, and reduced or lost lifetime earning capacity of the party seeking maintenance. An award of maintenance may be denied after considering the age and health of the parties, the duration of the marriage, the ability of each to be self-supporting and the fact that neither party was delayed or prevented from foregoing education or other career opportunities during the marriage.

Here, 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, and any pendente lite award regarding maintenance was vacated.

On Child Support:

As provided for under the Domestic Relations Law Section 240 (1-b), the Court is required 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.

Here, it must be noted that both parties are unemployed, and have been unemployed for an extended period of time. However, the parties’ unemployment were by reason of choice and not based on circumstance. Both parties have college degrees and plaintiff’s previous employment garnered him Twenty-Five Thousand ($25,000.00) Dollars, as set forth on his Net Worth Statement filed with the Court in 2006, while defendant testified that she was making approximately Six Hundred ($600.00) Dollars per week. Thus, the Court imputes a salary of Twenty-Five ($25,000.00) Dollars to both plaintiff and defendant. Based on the imputed salary, the combined imputed salary for both plaintiff and defendant is Fifty Thousand ($50,000.00) Dollars. The statutory obligation for two children is twenty-five (25%) percent; therefore, the total child support obligation based on the imputed combined salary is twenty-five (25%) percent of Fifty Thousand ($50,000.00) Dollars, which is Twelve Thousand Five Hundred ($12,500.00) Dollars. Plaintiff’s fifty (50%) percent share of the total child support is Six Thousand Two Hundred Fifty ($6,250.00) Dollars or One Hundred Twenty ($120.19) Dollars and Nineteen Cents per week. 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, 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 thus entitled to receive retroactive child support for the period that the infant children were in his custody, from June, 2006, to 15 March 2008, 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 Order. Plaintiff must receive a credit of Ten Thousand Eight Hundred Seventeen ($10,817.10) Dollars and ten cents and defendant shall receive a credit of Twelve Thousand Seven Hundred ($12,740.14) Dollars and fourteen cents. Therefore, defendant is awarded retroactive child support in the net amount of One Thousand Nine Hundred Twenty Three ($1,923.04) Dollars and four cents. This amount must be paid by plaintiff to defendant within sixty (60) days of the Order. If said amount remained outstanding after sixty (60) days, defendant may separately submit to the Court an application for a Judgment against plaintiff regarding same. Plaintiff was also ordered to pay fifty (50%) percent of the 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. Accordingly, the parties were directed to submit Findings of Fact and a Judgment of Divorce within sixty (60) days from the date of the Decision and Order.

Domestic violence issues are never easy specially when there are children involved. For advice on how to deal with these types of issues like the case mentioned above, get in touch with us at Stephen Bilkis & Associates. Nassau County Domestic Violence Attorneys, Nassau County Divorce Attorneys, Nassau County Criminal Attorneys, among others, at our firm are at your service, willing and able to help you with your legal concerns. Call us or visit any of our offices for free legal consultations.

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