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Court Decides Custody Battle


The father, who is thirty-two (32) years of age, and the mother, who is thirty (30) years of age, were married in New York in May 2002. A New York Family Lawyer said that while married, the father worked as a first grade teacher and the mother worked as a mandarin interpreter. The parties knew each other for only a short time prior to their marriage, at which point, the mother became pregnant with the parties’ child. In December 2002, the mother gave birth to a son. At the time of the son’s birth the parties were living separately; however, during the early days of the marriage, the parties lived at the mother’s relative’s residence in Brooklyn. A great amount of the parties’ marriage can be characterized as tumultuous and there were incidents of domestic violence.

On default this court awarded plaintiff-father full custody of the parties’ child whom is five (5) years of age. In August 2005, during a contested divorce proceeding, defendant-mother removed the parties’ child to California. A New York Custody Lawyer said the father commenced a divorce action on October 31, 2003, alleging cruel and inhuman treatment. Initially, the mother appeared pro se but later retained counsel. The mother was allegedly served with the summons with notice in an action for divorce on November 3, 2003, at Kings County Family Court.

A New York Child Custody Lawyer said that, in support of her request that she be awarded full legal custody of the child, the mother alleges that the father is merely trying to avoid paying child support and that he does not really care about custody. She argues that, until recently, the father lacked involvement with the child since the child was conceived. The mother contends that the father demanded a paternity test to prove his relationship to the child, but even after paternity was established, the father had little to do with the child. The mother avers that, as recently as 2005, the father was willing to forego custody of the child, in favor of the mother.

A Westchester County Family Lawyer said that, on December 2, 2003, the father filed an order to show cause seeking visitation with the party’s minor child which was granted. The matrimonial proceeding was stayed on February 6, 2004, when the father was deployed to Iraq. Thereafter, upon his return, the parties entered into a written stipulation on the issues of shared custody and visitation on August 12, 2004, which the court “so ordered”. The parties’ stipulation resolved the issues of custody and visitation and provided that the mother would have physical custody of the child and that she could relocate with the child to California.

A New York Order of protection Lawyer said that, in late December 2004, while in the mother’s custody, the child returned from a visit with the father with redness around his penis. On December 30, 2004, allegedly concerned about the child’s well-being, the mother took him to the emergency room. At the hospital, a doctor filed an Administration for Children’s Services (ACS) report questioning whether the child had been sexually abused. It is un-refuted that, fearing that the child would be taken away, the mother cut the child’s hospital security bracelet, and took him to Connecticut, after learning that ACS was investigating both parents. Thereafter, ACS placed the child with the paternal grandparents, and both parents were named as respondents in an Article 10 abuse proceeding.

A Westchester County Custody Lawyer said that, in response to the ACS petition, an Article 1028 hearing was held in Kings County Family Court, where the judge initially issued an order, inter alia, restricting the child’s removal from the State of New York. Thereafter, the parties appeared in this court but the divorce action was stayed until the Article 10 proceeding was concluded. Additionally, this court issued an order restricting the child’s removal from the State of New York. On March 14, 2005, the Judge issued a decision and order granting the mother’s 1028 application. In his decision, Judge stated: At the conclusion of this heavily contested hearing, the court concludes that the child’s medical condition on or about December 30, 2004, was not an injury.

A New York Child Support Lawyer said that, on September 22, 2005, the father asked this court for an order of temporary custody and moved to suspend child support. After the father’s counsel allegedly sent a notice of inquest to the mother’s last known address, an inquest was held on October 6, 2005. During this proceeding, the father was granted full custody, on default, and the mother was ordered to pay child support in the amount of $25.00 per month. The judgment of divorce was signed on December 15, 2005. On July 26, 2007, the father filed a writ of habeas corpus in the Supreme Court, Kings County.

The issue in this case is who would be a better parent and, therefore, who should be awarded legal custody.

The child has spent most of his life in his mother’s custody and, from all accounts, he appears to have a very strong relationship with her and to be very affectionate towards her. The court also notes that the child has spent the last year with his father and is bonding with him as well. During the proceeding, there was a substantial amount of testimony on both sides concerning who cares more about their child’s well-being and who would provide him with a more nurturing home environment and with a brighter future. Furthermore, it is evident from the in camera interview that the child loves both parents.

It is well established that the trial court is given great deference to assess the character and credibility of the parties. In determining a child’s custody, the court is to act as parens patriae and must base its determination on “child’s best interests”. In doing so, the court must make a decision based upon the totality of the circumstances, which includes evaluating which parent will best provide for the child’s “emotional and intellectual development, the quality of the home environment, and the parental guidance to be provided.”

In one case it was held that, there is “no prima facie right to the custody of the child in either parent”.” Factors to be considered include the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child’s emotional and intellectual development, the financial status and the ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of full custody to one parent might have on the child’s relationship with the other parent”.

The Supreme Court properly identified the factors that were to be considered in rendering its custody determination. It also properly concluded that an award of sole custody to one parent, rather than joint custody to both parents, was in the best interests of the child given the level of acrimony between the parties and their inability to function together in a manner necessary for a joint arrangement. It is also well established that the court must take into account any incidents of domestic violence when making a custody determination. The court cannot minimize the domestic violence that both parties admit. The court is especially concerned about the incident when the mother fell down the stairs when she was pregnant and the mother’s use of pepper spray on the father before the child was born and while the parties were still married and living together.

While the court cannot determine who was the initial aggressor in the incident of domestic violence testified to, the court finds credible the mother’s sister’s testimony, that she saw the father engaged in throwing the mother, while pregnant, down the stairs and that the father prevented the mother from calling 9-1-1. The mother’s sister reports that she herself is a child protection caseworker in California.

It appears that both of the parents have engaged in a pattern of purposefully limiting the access that the other has with the child. This must stop. The court is concerned with the mother’s manipulative tactics to prevent the father and child from having a meaningful relationship. The mother denied the father access for 23 months when she took the child to California. The court does not find credible the father’s claim that he did not know the child was in California; however, this does not excuse the mother’s conduct of leaving during the course of the proceeding. During the course of the instant trial, while the child was in the father’s custody, the father was not sensitive about making up his son’s missed supervised visits with the mother caused by his work schedule and he did not promptly complete the forensic evaluations. In fact, it appears to the court that the father at times sought to delay the completion of the forensic evaluation thereby prolonging the litigation. Additionally, it is undisputed that the father denied the maternal aunt access to the child, when she visited from California, even though her visit would not have interfered with the father’s plans with the child.

It is clear from the testimony that both parties have good intentions in raising the child; however, the court finds it of some concern that the father places expectations on the child that may be beyond his age and capacity. While the father is understandably proud of his son’s progress in becoming independent while he has lived with him, the court questions whether the child’s growing independence is more a result of natural maturation than a reflection of the father’s parenting techniques. Alternatively, the court recognizes that under the mother’s care, the child is not held to impractical standards for his age, but that she may, in some ways, overindulge the child and that she may tend to overprotect him.

This court must determine what is in the best interest of the child and what custody situation will promote the child’s greatest welfare and happiness. While a child’s preference is not determinative of the court’s decision, it is a factor in the totality of circumstances. This court recognizes that the child wishes to live with his mother and to continue to see his father, but the child is only five (5) years of age. This decision narrowly comes down in favor of the mother at this juncture, so long as she understands that she cannot limit the father’s access to the child. The mother has been the parent who has met all of the child’s emotional and developmental needs until the writ of habeas corpus was granted giving the father custody on default. The child thrived in her presence and she has devoted herself unconditionally to his nurturing, care and progress. The father’s inappropriate aggression and belief that he can pull a telephone out of a wall to prevent the police from being called are of grave concern to the court.

Thus, the court held that the mother’s application for custody, which is supported by the attorney for the child, is granted.

In determining the best interests of the child, the court must also consider which parent will provide for the child’s emotional and intellectual development. In granting child custody, the court must take in consideration the best interest of a child; seek the representation of a New York Child Custody Attorney or New York Family Attorney at Stephen Bilkis and Associates. Call us for free legal advice.

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