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Matter of Mathew L. (Beryl P.-Zenaida A.)


Slip Op 07087

October 27, 2017

This is regarding an order for disposition regarding four children, entered on August 2014, and brings up an issue of a fact-finding order. It was concluded that the father (respondent) had neglected the children, which was affirmed. The order was affirmed to the degree that it was found that the father had neglected a fifth child. A subsequent appeal on this issue was dismissed.

The finding that the father had neglected the children was confirmed by the evidence that was offered in court. It was shown that the father had committed acts of violence against the mother in front of the children. It was also shown that the father carried out acts of corporal punishment against the children Family Court Act 1012 [f][i][B].

The mother provided testimony regarding numerous incidents where the respondent had become violent in front of the children. These acts of violence included dragging the mother by her hair and kicking her.

A caseworker testified out of court that the children experienced many acts of domestic violence as well as excessive corporeal punishment. Some of these incidents included hitting the children, pulling their hair, hitting them with a belt, as well as with his hands (Matter of Tavene H. [William G. 139 AD 3d 633, 634 [1st Department 2016]). The testimony was corroborated between all the children on separate occasions. These incidents were also confirmed by the mother’s testimony. This information was confirmed by the father’s testimony as well, stating that he had pulled the children’s ears and hair (Matter of Clarence S. [Anthony H.] 135 AD 3d 436, [1st Dept. 2016].

The record stated that it was determined that the father’s conduct went way above and beyond what is considered normal parenting behavior. The petitioner agency was not required to present evidence of actual injuries (Matter of Christopher S. [Deborah D.]; 129 AD3d 1110 [2] [1st Dept. 2014]. There appears to be no adequate reason to change the court’s original determination of credibility (Matter of Irene O., 38 NY2d 776, 777 [1975].

The court doesn’t find the defendant’s additional arguments noteworthy.

This constitutes the final decision of the Supreme Court, Appellate Division, 1st Department.

Domestic violence is a serious matter. It can affect your marriage and the custody of your children in the event of a divorce.

In New York, if the parents can’t agree on custody of a child, the judge will decide for you. The judge always determines what is the best for the child. In New York, unlike other states, there is no set list of things that the judge must consider. The court will look at the facts and circumstances of each case. Courts may consider for instance:

  • The willingness of the parents to have a relationship
  • The child’s physical and mental health
  • Each parent’s ability to care for the child
  • Whether there is any domestic violence or child abuse

In New York, the law says that domestic violence or abuse must be considered (NY Dom Rel. Sec. 240).


The court will consider domestic violence by other parties as well (the child doesn’t have to be directly involved). Any evidence must be proven by a preponderance of the evidence.


Domestic violence is a pattern of abusive behavior in the same family, household, or an intimate relationship used by one person to gain power over another. These intimate relationships include:

Spouses and former spouses

Persons related by blood or by marriage

Parents and their children

People who previously resided together

People who are in a dating relationship (NY Fam Ct. Act 812)


Domestic violence is just of the factors that a judge will consider when deciding custody. Because it is only one of many factors, it is possible to for an abuser to be awarded custody. In many instances, a judge will award visitation because it is generally accepted that a child benefits from a relationship with both parents.


If it can be proven that this visitation time could be harmful to the child, it could be that the party will receive supervised visitation.


Domestic violence and child abuse are very serious matters. If you are involved in a custody batter, or a relationship where child abuse has occurred, it is important to seek legal assistance as soon as possible. Contact Stephen Bilkis and Associates for guidance at 1-800-NYNYLAW.

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