The parties were both born in Albania. Plaintiff first moved to the United States in 1989, after receiving a green card through the American Embassy in Belgrade, Yugoslavia. He became a United States citizen in 1997. Plaintiff lived and worked in the United States continuously from late 1989 until the date of the commencement of this divorce action, only returning to Albania for brief vacations over the years approximately the first six years of the marriage.
A Kings County Family lawyer said that plaintiff first returned to Albania in 1992, at which time the parties began to date. The parties became engaged when plaintiff returned to Albania for a six week visit in 1993. The parties were married in September 1995 in a civil ceremony in Albania after a two year engagement. Defendant lived with plaintiff’s family after the marriage, but plaintiff returned to the United States where he was working six weeks after the marriage. In 2001, defendant came to the United States as a permanent resident. The parties have five (5) children of the marriage.
Defendant gave birth to the parties’ first child in Albania in December 1996. Plaintiff first met his son in or about February 1997 during a six week visit. The child was two (2) months old at the time. Plaintiff became a United States citizen in 1997.
Plaintiff alleged that during the early years of the parties’ marriage they had a “good relationship” and averred that they “didn’t have any problem”. He further alleges that he spoke with defendant every week during the months when she lived in Albania and he lived in the United States.
In or about 1999, plaintiff had the oldest child circumcised when he was almost three (3) years old. At that time, defendant and the children were living with plaintiff’s parents, his brother and the brother’s wife and their two (2) children. Defendant testified that due to the circumcision, the child wanted to make frequent visits to the bathroom, which was located outside of the home where the parties were living. She testified that plaintiff told her not to take their son to the bathroom because the son was lying about his need to use the bathroom. Despite plaintiff’s warning, defendant took the child to the bathroom and plaintiff became very angry and, in front of their child, smashed her head into a wall. She alleges that this incident resulted in a black eye and hearing problems and bruises that lasted for two (2) to three (3) weeks. Defendant did not seek medical attention, averring that she wanted to keep the nature of her relationship with plaintiff private and that she was embarrassed, not wanting people to know. She further testified that the parties’ oldest child was “traumatized” by the incident and that he stayed “very, very close” to her after the incident and that after the incident plaintiff refused to acknowledge her when she directly addressed him. Plaintiff denies that this incident ever occurred.
Plaintiff returned to the United States and did not visit Albania again until 2001. That same year, defendant and the parties child, along with plaintiff’s parents and younger brother, moved to the United States. Defendant testified, that after they came to the United States, plaintiff worked and that when he had extra time he would spend it with his friends and not help her with the household or child care responsibilities.
Plaintiff denies that he ever went out with his friends and insisted that he always went home after he finished working for the day. He contends that he only visited with his family and that defendant was always with him during those visits. Plaintiff alleges that he had a “very good” relationship with defendant during this time and that they were “in very good love” and had a “good partnership with the kids and with life” and denies seeing anything wrong with their relationship. He further asserted that he felt like the “king of the Brooklyn” during this time.
When questioned at trial regarding his personal practice of Albanian culture, plaintiff asserted that he followed more traditional American ways because he had lived in the United States for many, many years.
Plaintiff stated that traditionally in Albania there was only one “boss” in a family, which was usually plaintiff or the older relatives in a family, and that everyone else had to obey that person’s decisions. Plaintiff avers that he believed that defendant had a good life when she lived with his family in Albania during the early years of their marriage because he never heard of any problems between his parents and defendant.
Defendant alleges that during the summer of 2001, in Albania, the oldest child tore a letter that had arrived in the mail and that when asked about it by plaintiff, defendant said that she tore the letter in order to keep the blame away from their son. She posits that she took the blame for the torn letter because she was afraid that plaintiff would “scream” at their son. She alleges that plaintiff, in front of their young son, grabbed her by the hair and pushed her so that she hit a wall and table as she fell. Defendant was six (6) months pregnant at the time of this alleged incident. Defendant further testified that several members of plaintiff’s immediate family witnessed the incident and did nothing. When questioned about the reaction of the parties’ young son who allegedly witnessed the incident, defendant testified that after the incident the child remained “very, very close” to her. Plaintiff testified that the incident never occurred.
During the time that the parties were before the Albanian court defendant testified that she saw plaintiff hit one of the children. She alleges that she went into a car with plaintiff to go to court and that one of the children started crying and did not want her to leave so plaintiff got out of the car, took the child back to the house and slapped him and asked why he was crying for “that stupid b-“. It appears that the court in Albania refused to accept the agreement because of defendant’s refusal and some of the children were United States citizens.
In or about June 2007, plaintiff alleges that the parties’ second oldest child told him that he wanted to return to the United States with him. Plaintiff alleges that he asked the mother whether she agreed to allow that child to return with plaintiff and that she did agree to the arrangement.
In December 2007, defendant was supposed to take the children to school the day following the visitation, but they did not have their backpacks with them. The oldest child said that he wanted to get his backpack from plaintiff’s house, which was right across from the child’s school and defendant followed him there to make sure that nothing happened to him.
In Supreme Court, the court may issue an order of protection pursuant to Domestic Relations Law section 240 . That order of protection, once granted, can provide certain conditions which require the enjoined party to obey. Additionally Domestic Relations Law section 252  [b] provides:
An order of protection entered pursuant to this subdivision may be made in the final judgment in any matrimonial action, or by one or more orders from time before or subsequent to final judgment, or by both such order or orders and the final judgment. The order of protection may remain in effect after entry of a final matrimonial judgment and during the minority of any child whose custody or visitation is the subject of a provision of a final judgment or any order. An order of protection may be entered notwithstanding that the criminal court for any reason whatsoever, other than lack of jurisdiction, refuses to grant the relief requested in the action or proceeding.
The court finds defendant’s testimony of acts of violence threats and intimidation are credible and plaintiff’s denial not credible.
Under these circumstances and pursuant to Domestic Relations Law section 240  and 252 a final order of protection in favor of defendant is granted. It is abundantly clear that plaintiff poses an imminent and ongoing danger to defendant and therefore granting defendant a final order of protection for a period of five (5) years is appropriate. Thus, defendant is granted a five (5) year final order of protection. Plaintiff shall not harass annoy, strike, menace or intimidate defendant, and shall refrain from any criminal offense. He shall cease and desist from any communication in any language except by e-mail or letter, which is limited to issues concerning the children’s well being and or health and education. He shall not telephone defendant and he shall stay away from her home, place of business and place of employment. Any exchange of children must occur at a police precinct.
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.”.
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 the sole custody to one parent, rather than joint custody to both parents, was in the best interest 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. This court will not minimize the domestic violence that occurred between these parties. The court is concerned with plaintiff’s overwhelming acts of physical, emotional and verbal abuse such as when plaintiff smashed defendant’s head in the wall when she attempted to bring her son outside to the bathroom or when he grabbed her by the hair and pushed her into a wall when she attempted to protect her son. Plaintiff has also engaged in verbal abuse towards defendant including constant cursing and verbal threats in front of the children.
There is overwhelming authority that children’s exposure to violence can have lasting effects such as severe psychological injury. Moreover, exposing children to this behavior can lead the child to learn “a dangerous and morally depraved lesson that abusive behavior is not only acceptable, but may even be rewarded”. The court fears that, at some point, the children themselves may either become victims of plaintiff’s explosive actions or develop similar patterns of abuse.
Another significant factor in the determination of custody is which parent will assure that the child maintains a meaningful relationship with the other parent. The court recognizes that an “interference with the relationship between a child and a noncustodial parent by the custodial parent has been said to be so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as custodial parent”
The 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 oldest child wishes to live with plaintiff, but must view that desire in the context of what he has been told and his immersion by plaintiff and plaintiff’s family in a family dispute designed to denigrate and humiliate defendant, and isolate her from her children.
While this court is mindful of extremely sensitive to the cultural identities of parties and the customs and practices that may vary in different parts of the world, this court, cannot close its eyes to the brute domestic and emotional violence imparted upon this defendant, which resulted not only in physical pain but emotional pain, and power exerted over her more than anyone should be subjected to. Plaintiff’s explosive and volatile conduct created a hostile environment.
The physical surrounding of plaintiff’s residence does not convince this court that he will offer a better environment for the children than defendant. They live in a relatively close living space with plaintiff’s brother and his parents. While plaintiff claims he is responsible for all of their support, the court can only recognize the support obligation to defendant and children. It is clear to this court that defendant will more readily allow plaintiff access to the children than plaintiff would allow defendant. The court negatively views any attitude or actions that limit access to the child or that appears to demean the other parent to the child. No drug was found.
Certainly joint custody is not an appropriate remedy here. There needs to be clear lines of authority so plaintiff knows and understands that he cannot treat defendant or influence the children in the manner he is accustomed. The level of acrimony is far to great to justify such an award and, given the limits imposed on communications herein, would be impracticable. Similarly, plaintiff’s request for structured family counseling is denied given the level of domestic violence and the existence of the order of protection.
As such, defendant is awarded full custody of all of the infant children of the marriage. The children’s passports, presently in the possession of the Clerk of the Family Court, shall be released to defendant, forthwith. She is also authorized to obtain any other passports seized by the United States Department of State. Absent court permission or the written consent of defendant, plaintiff shall not remove the children from the United States.
The children shall have parenting time with plaintiff, every other weekend, to be picked up from school on Friday at the end of the school day and returned to school on Monday morning. Due to the domestic violence concerns and history, and the fact that defendant does not have a car to drive, mid-week visitation is at this point impracticable.
Settle an interlocutory judgment, on notice together with a copy of this decision with notice of entry within 30 days. The final order of protection is being entered herein effective immediately is being entered by separate order.
The New York City Police Department shall assist in service of the final order of protection, if necessary. Defendant is authorized to register the children in appropriate schools for fall 2008 except the other child who shall be registered by defendant in an appropriate school for the January 2009 term. In the fall 2008 term he shall attend his present school.
Violence among spouses affects the growth of their children when seen by them. Here in Stephen Bilkis and Associates, we render service to the victim spouses. We have our Kings County Domestic Violence attorneys who will assist you in filing the proper petition in court to stop this form of abuse. We also have our Kings County Order of Protection lawyers who will help you obtain said Order during the pendency of the case.