Lawyers Manual - Unified Court System

60 Kim Susser
For example, a victim may re-enact her adaptations to living in a hostile environment
when she is in court by “becoming agitated, over-emotional or stupefied into
silence. Attorneys as well as judges frequently react negatively to such behavior,
particularly if the abusive partner appears calm, collected and sure of himself.” 2
For these reasons a custody trial can be arduous and challenging. Attorneys
must carefully consider whether a decision to proceed to trial is in the client’s
interest. Early on, moreover, attorneys for domestic violence victims should
consider carefully whether even initiating a custody case is the best course of
action. If the victim has de facto custody of her children and the abuser is not
likely to disrupt the arrangement, it may not be necessary or a good idea to file for
legal custody. And, of course, be sure that paternity has been legally established
before seeking custody; if the child’s father has no standing to pursue custody,
your client is the legal custodian of the child and need not endure the rigors of a
custody proceeding. Finally, consider whether initiating a family offense case may
prompt the abuser to file a retaliatory petition for custody or visitation. This could
lock your client in a time-consuming and exhausting court battle that drags on for
years and forces her into contact with the very person she wants to escape.
The Legal Context
In New York State, the legal standard for both custody and visitation is
“the best interest of the child.” Therefore, custody and visitation issues will be
addressed together in this article. The broadly interpreted best interest standard
guides the way in which courts consider the issues emerging from domestic violence
in custody and visitation matters. Courts have generated a large body of case law
regarding the factors to be weighed in making best interest determinations. These
factors include the child’s preference; the parent’s stability; primary caretaker;
parental fitness, including abandonment, neglect and substance or alcohol abuse,
and mental illness; willful interference with visitation rights; nature of the
parent-child relationship; religious beliefs; and the parties’ relative financial
positions. Although some consideration of domestic violence is now inevitable,
until 1996, the consideration of domestic violence was left to the discretion of the
court and courts rarely paid much attention to it.
In 1996, the NYS Legislature attempted to afford protection to domestic
violence victims and their children involved in custody disputes by requiring courts
to consider proof of domestic violence in custody and visitation cases. The statute
states, in pertinent part, that where there are allegations of domestic violence in any