Lawyers Manual - Unified Court System

62 Kim Susser
domestic violence on children. The legislative history provides material for crossexamination
of experts: an expert’s credibility could be seriously undermined if he
or she is not familiar with the psycho-social research referenced in the legislative
findings. Finally, they can be cited in any written motion, answer or summation.
Court decisions that have been reported since the 1996 law entered into
effect indicate that judges deciding custody cases are giving considerable weight
to domestic violence. 7 In E.R. v G.S.R., for example, the court declined to accept
either the expert’s recommendation, because he “skims over the many episodes
of domestic violence,” or the Law Guardian’s, because she “discounted the
history of domestic violence.” 8 The Second Department has reversed and
remanded cases to the Family and Supreme Courts when courts failed to
consider the mother’s allegations of domestic violence perpetrated against her
by the father. 9
Appellate courts ruling since the passage of the 1996 domestic violence
custody law have consistently held that domestic violence witnessed by a child
is a significant factor in determining custody and visitation. 10 Courts have
considered acts of domestic violence in determining a parent’s fitness for
custody. 11 Domestic violence has been held to be a factor in relocation cases, 12
has been articulated as a basis for ordering supervised visitation, 13 and constitutes
“extraordinary circumstances” in cases in which a non-biological party seeks
custody. 14 Courts also view violence committed by a parent against a new spouse
as an important concern. 15 Recently, New York adopted the Uniform Child Custody
Jurisdiction Enforcement Act (UCCJEA) 16 elevating the importance of domestic
violence in determining jurisdiction over custody issues.
In 1998, the custody and visitation provisions of the New York State
Domestic Relations Law (DRL) and Family Court Act (FCA) were further
amended to prohibit courts from granting custody or visitation to any person
convicted of murdering the child’s parent. 17 Under this statute, the court is not
even permitted to order temporary visitation pending the final determination of
custody or visitation. 18 Exceptions include situations where a child of suitable
age and maturity consents to such an order and where the person convicted of
the murder can prove that it was causally related to self-defense against acts of
domestic violence perpetrated by the deceased. 19
While the statutory factor of domestic violence is being accorded increasing
weight by judges presiding over custody and visitation cases, it always is
considered in relation to the other “best interest” factors, sometimes in ways that
are helpful to victims and other times in ways that are decidedly problematic. It is
critical for attorneys representing victims of domestic violence to develop litigation