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Family Court Act article 6

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Kings County, which, after a hearing, granted the father’s petition for sole custody of the subject child.

The court’s paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child. “Factors to be considered in determining the child’s best interests 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 ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child’s relationship with the other parent”.

Any custody determination depends to a great extent upon the hearing court’s assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties. Therefore, its findings are accorded great deference and will not be disturbed unless they lack a sound and substantial basis in the record.

Moreover, where domestic violence is alleged, the court must consider the effect of such domestic violence upon the child.

Upon weighing the appropriate factors, the Family Court correctly determined that the best interests of the child would be served by awarding custody to the father. Although the mother accused the father of being the aggressor in certain altercations they had, he denied those allegations, and the Family Court resolved the conflicting testimony in favor of the father. On this record, there is no basis to disturb the Family Court’s credibility determination. Moreover, the mother admitted to certain allegations of her own violent behavior against the father. Evidence of the mother’s acts of domestic violence demonstrates that she possesses a character which is “ill-suited to the difficult task of providing her young child with moral and intellectual guidance”

In another case, an eight related child protective proceedings pursuant to Family Court Act article 10, the petitioner and the Law Guardian separately appeal from an order of the Family Court, Kings, which, after a fact-finding hearing, found no evidence of neglect and dismissed the neglect petitions insofar as asserted against the mother.

The Court ORDERED that the order is reversed, on the law and the facts, without costs and disbursements, so much of the order as dismissed the neglect petitions for the failure to protect the children from witnessing domestic violence and from the use of excessive corporal punishment is vacated, those branches of the petitions are reinstated, the petitions to adjudicate the children as neglected are granted, and the matter is remitted to the Family Court, Kings County, for a dispositional hearing.

The Criminal Court properly dismissed the branches of the neglect petitions alleging that the mother neglected the subject child and derivatively neglected the other children in allowing the child to fall out of a window in her apartment. The petitioner Children’s Services failed to establish by a preponderance of the evidence that the mother knew, or should have known, that the child the subject child was not being properly supervised when she took a nap.

The Family Court erred, however, in dismissing the branches of the neglect petitions alleging that the mother failed to protect the children from witnessing domestic violence. Petitioner established by a preponderance of the evidence that there was a 12-year history of domestic violence between the mother and the respondent which was witnessed by the children, and which often required the intervention of the children.

Moreover, there was sufficient evidence to establish that the children were present, when respondent fought with the mother, and struck her with a cooking pot. This evidence was sufficient to support a finding of neglect against the mother. Evidence of acts of severe violence between parents in the presence of their children is sufficient to show that the children’s physical, mental, or emotional conditions are in imminent danger of becoming impaired within the meaning of Family Court Act ยง 1012[f][i][B].

Further, the Family Court erroneously dismissed the branches of the neglect petitions alleging that the mother failed to protect the children from the excessive use of corporal punishment by respondent. Petitioner established by a preponderance of the evidence that respondent used excessive corporal punishment on the children. Petitioner also established by a preponderance of the evidence that the mother should have known about the use of excessive corporal punishment. This evidence was sufficient to support a finding of neglect against the mother for the failure to protect the children from excessive use of corporal punishment.

One of the traumatic things that a child can see during his tender age is seeing her own father doing acts of violence to her mother. Here in Stephen Bilkis and Associates, we help these helpless mothers to file a case against this aggressive father. Through our Kings County Domestic Violence attorneys, we will file a case against these heartless husbands. We also have our Kings County Family lawyers for your other concerns. Call us now to know your rights against these aggressors.

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