In a custody and visitation proceeding, the father appeals from an order of the County Family Court which awarded sole custody of the subject children to the mother and only awarded him visitation from Monday at 6 P.M. to Wednesday at 6 P.M. on alternate weeks, with additional visitation upon agreement of the parties.
An award of custody must be based upon the best interests of the child, and there is no prima facie right to the custody of the child in either parent. In considering questions of custody, the court must make every effort to determine what is in the best interest of the child, and what will promote the child’s welfare and happiness. The best interests of the child are determined by a review of the totality of the circumstances.
Factors to be considered include the quality of the home environment and parental guidance, the ability of each parent to provide for the child’s emotional and intellectual development, and the financial status and ability of each parent to provide for the child. The relative fitness of each parent, as well as the effect an award of custody to one parent might have on the child’s relationship with the other parent should be considered. In addition, consideration should be given to any prior award or agreement as to custody. While not determinative, the court should consider the child’s expressed preference as an indication of what is in the child’s best interest. Additionally, if criminal domestic violence is alleged, the court must consider the effects of such violence upon the child.
Since weighing the factors relevant to any custody determination requires an evaluation of the testimony and the sincerity of the parties involved, such an evaluation is best made by the trial court. Thus, a trial court’s determination regarding an award of custody should not be disturbed unless it lacks a sound and substantial basis in the record.
Here, the trial court, after having had the opportunity to evaluate the testimony, consider the recommendations of a forensic expert, interview the children in camera, and consider the position of the attorney for the child, determined that the children’s best interests would be served by an order awarding sole custody of the children to the mother and visitation to the father from Monday at 6 P.M. to Wednesday at 6 P.M. on alternate weeks. That determination is supported by the record, and should not be disturbed on appeal.
In this domestic violence prosecution, the defendant stands indicted for, among other things, burglary, assault and criminal contempt involving alleged assaults on his girlfriend at her home in violation of an order of protection.
It is alleged that the complainant has had a change of heart and is refusing to cooperate with the prosecution as a result of over 300 telephone calls placed to her by the defendant from jail. Because of this the People move to introduce the complainant’s grand jury testimony on their direct case. A Sirois hearing was held in order to determine whether such an order is warranted.
The Constitution guarantees to every citizen accused of crimes, the right to confront the witnesses against him, which of necessity, includes the right to cross-examination. In fact, cross-examination has been described as the principal means by which the believability of a witness and the truth of his testimony are tested, and that restrictions on the right to cross-examine “can deprive a defendant of an important means of combating inculpatory testimony or at least demonstrating the existence of reasonable doubt as to guilt.
Nevertheless, the law recognizes that when an accused procures the silence of a witness against him, he should not be permitted to gain from his wrong. Thus, if other competent testimony of the witness exists, it may be used to balance the wrongful action of the defendant who forfeits his right by his own conduct.
In this case the defense argues that the recorded conversations contain no threats of harm or efforts at intimidation sufficient to prove defendant’s intent to silence the witness. Although that is certainly the tenor of the calls, it is not only outright threats that can demonstrate the intent to stay a witness’ cooperation, but persuasion and control by a defendant.
The power, control, domination and coercion exercised in abusive relationships can be expressed in terms of violence certainly, but just as real in repeated calls sounding expressions of love and concern. Orders of Protection are therefore issued by courts as much to prevent assaults on the psyche of a vulnerable victim as to prevent assaults on her person.
The court has been shown, by clear and convincing evidence that the wrongdoing of the defendant has caused the victim to stop cooperating with the prosecution. Thus, in the event she fails to testify at trial, or her trial testimony is contrary to her grand jury testimony, the People shall be permitted to use the grand jury minutes as evidence on their direct case.
The home should be the first place where anyone feels safe and secure. If you feel otherwise because of domestic violence, contact the Kings County Domestic Violence Lawyer together with the Kings County Family Attorney from Stephen Bilkis and Associates. You can also get in touch with the Kings County Criminal Defense Lawyer if you need one.