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What impact should domestic violence have on a custody determination? Wissink v. Wissink, 749 N.Y.S.2d 550 (App. Div. 2002)


In Wissink v. Wissink, there was conclusive evidence that the father physically abused the mother.  However, there was also conclusive evidence that the father never physically abused the daughter and that the daughter wanted to live with him.  The issue that the Appellate Division considered was the impact of a finding of abuse should have on a determination of custody?

Defendant David Wissink and Plaintiff Jane Wissink were married and have a teenage daughter named Andrea, born on June 21, 1986. She is the biological child of the Jane and David. Jane also has a daughter, Karin, by a prior marriage. The parties have had a turbulent relationship marked by numerous episodes of physical violence, police intervention, and Family Court orders of protection. It is clear that David frequently battered Jane. However, he never directly mistreated Andrea, and Andrea favored him over her mother.

Jane commenced a family offense proceeding and a proceeding for custody of Andrea. The father cross-petitioned for custody. The Family Court assigned a law guardian and ordered a mental health study. A hearing was held at which the parties, Karin, and other witnesses testified. The Family Court also examined Andrea in camera during which she downplayed the father’s culpability in abusing her other and expressed her clear preference for living with him. The trial court awarded custody of Andrea to David. Jane appealed.

Children exposed to domestic violence are often secondary victims, experiencing psychological harms. Courts must carefully consider these issues when making a custody determination in those cases. Andrea’s preference for her father and her closely bonded relationship to him were confirmed by her law guardian and the social worker who interviewed her. David was significantly involved with Andrea’s school work and her extracurricular activities. They had many common interests that they enjoyed together such as movies, shopping, building a barn, and horseback riding. He also provided her with material things such as a television set, clothing, a horse, and a trip to Europe. He is loving and affectionate and referred to her as his “princess.” In contrast, Jane has not been significantly involved in her school work or her extracurricular activities, and Andrea does not enjoy her company or their relationship.

Were it not for the documented history of domestic violence confirmed by the court after a hearing, we would have unanimously affirmed the Family Court’s award of custody to the father in accordance with Andrea’s expressed preference and the evidence documenting their positive relationship. However, the fact of domestic violence should have been considered more than superficially, particularly in this case where Andrea expressed her unequivocal preference for the abuser, while denying the very existence of the domestic violence that the court found she witnessed.

Although the trial court stated that it had considered David’s history of domestic violence in making its custody determination, its consideration was cursory and inadequate. The court-ordered mental-health evaluation of Andrea consisted only of two 45-minute interviews. To discharge its duty of considering the effect of the domestic violence upon Andrea’s best interests, the trial court should have ordered a comprehensive psychological evaluation which would have  included a clinical evaluation, psychological testing, and analysis of records from outside sources. Key to concluding that the trial court’s review of all of the evidence related to Andrea’s mental health evaluation and in camera testimony was the fact that Andrea denied that any domestic abuse occurred—even though there was evidence that she witnessed it. In fact, in a June 24, 1999 incident during a dispute over tax returns, the father tried to get the papers the mother held in her teeth by squeezing her face in his hands and enlisting the assistance of Andrea by directing her to hold Jane’s nose so she can’t breathe.

Pursuant to Domestic Relations Law § 240(1), in any action concerning custody or visitation where domestic violence is alleged, the court must consider the effect of the domestic violence upon the best interests of the child, together with other factors that the court deems relevant in making an award of custody. The judgment of the trial court is reversed, and the case is remanded for a new custody hearing after a comprehensive psychological evaluation of David, Jane, and Andrea. In the interim, the court permitted David to continue to have custody of Andrea under the terms of the trial court’s order.




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