New York Family Law Blog

A husband filed a petition seeking an order of protection against his spouse, based upon the sole ground that she smokes cigarettes in the presence of himself and the children, causing harm to them.

A New York Family Lawyer said that the records of the case showed that the wife commenced an Action for Divorce on the grounds of domestic violence and cruel and inhuman treatment. The husband brought on an order to show cause in which he seeks a protection order against the wife prohibiting her from smoking cigarettes in the presence of himself and their children, together with other requests. The husband is a physician and claims that his wife’s smoking is causing harmful effects upon their children. He describes his wife as a “chain smoker” who smokes at least three packages each day. He claims that she smokes all over the marital residence. The husband argued that, pursuant to relevant provisions of family laws, the court not only is empowered, but is required to step in and protect the welfare of adults or children wherever they are subjected to any form of harmful or abusive conduct.

The wife contended that she is not a “chain smoker.” However, the wife did not reveal how much she does in fact smoke, nor did she indicate whether she ever smokes in the presence of the children. A New York Custody Lawyer said that the wife said her cigarette smoking is confined to a small T.V. room on the ground floor of the marital residence. She also indicates that she does not smoke in the upstairs area of the house.

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The parties were married on 1992 and on 2005, the Mother filed for divorce. The couple resolved the issues arising from their marriage and agreed to joint custody of the two subject children, a daughter age 12 and a son age 14. The children would have visitation with each parent pursuant to the detailed schedule set forth and as mutually agreed to by and between the parties. Since then, the children have been spending Mon-Tues with Father, Wed-Thurs with Mother and alternating weekends with each parent. With the exception of Thanksgiving, all holidays are shared equally. The parties agreed that they would alternate Thanksgiving as follows: two years to Mother and one year to Father. Both children excel academically. Neither child is alleged to have special needs.

Petitioner Father is 43 years old. He lives alone with two dogs. He has been engaged since February 2006 to his girlfriend who he intends to marry when the case is over. After his marriage, the Father told his ex-wife he intends to relocate where his fiancé lives and works. As of the time of his trial testimony, the children had met the Father’s fiance approximately six times.

The Father is self employed as a real estate agent and an insurance salesman. He was employed as a Vice President at a division of a Bank, for about eighteen months, but is no longer employed there. A New York Family Lawyer said that no evidence was introduced as to the Father’s current income. The Mother said that she believed her ex-husband may be supporting himself by selling marijuana and using equity from the home. The Mother alleges that their daughter five bags of illegal drugs in his Father’s cellar. The Father admitted that he was arrested for marijuana possession when he was 32 years old.

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In November 1998, a review of the documents of the Dominican proceedings confirms that the mother and father separated. At that time, the father consented to the terms of an order of protection, agreeing to refrain from assaulting the mother verbally or physically, and to vacate the family home until the mother was able to find other housing. He agreed to pay child support, and was given regular visitations as long as he behaves appropriately.

A New York Family Lawyer said the mother left the Dominican Republic in December 1999, leaving the children with her mother, and remarried in June 2000. Five weeks later, while the mother was still in the United States, the father filed a claim for child custody. The maternal grandmother, who had physical custody of the children at the time, was named as defendant in the matter.

The subject children are the couple’s twin sons, born in 1997 in the Dominican Republic. It is undisputed that the father obtained a default order of custody there, an order appealed by the mother and affirmed by the Dominican court, a month after she had brought the boys to the United States. In quick succession, the IDV Court—which has jurisdiction over both criminal and family law matters—received a criminal prosecution against the father based on his alleged 2002 threats to kill the mother; a writ of habeas corpus filed by the father seeking enforcement of the Dominican custody order; a petition for custody of the two boys filed by the mother on 2002 and a family offense petition filed the same day by the mother alleging additional acts of violence.

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