The parties were both born in Albania. Plaintiff first moved to the United States on December 14, 1989, after receiving a green card through the American Embassy in Belgrade, Yugoslavia. He became a United States citizen in 1997. A New York Family Lawyer said the 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). Plaintiff is 48 years of age and defendant is 36 years of age.
A New York Child Custody 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.
A Bronx Family Lawyer said that, in or about November 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 fronts 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.
A Bronx Child Custody Lawyer said that, the court is called upon to determine child custody of five (5) minor children and whether defendant is entitled to a five (5) year stay away order of protection against plaintiff. The court has bifurcated the issues of child custody, visitation and order of protection. This matter was tried on an expedited basis, on May 30, June 1, 11, 16, 23, 24, and 25, 2008, given the seriousness of the allegations. Defendant-wife against plaintiff-husband was issued a temporary order of protection in Family Court, Kings County on December 4, 2007, the Family Court petitions were consolidated into the instant divorce action by order of this court dated January 2, 2008. The court has bifurcated the issues of child custody and visitation and a final order of protection.
The issue in this case is whether the defendant is entitled to a five (5) year stay away order of protection against plaintiff.
In Supreme Court, the court may issue an order of protection pursuant to Domestic Relations Law section 240 [3]. That order of protection, once granted, can provide certain conditions which require the enjoined party to obey. Additionally Domestic Relations Law section 252 [3] [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 court for any reason whatsoever, other than lack of jurisdiction, refuses to grant the relief requested in the action or proceeding.
In as much as the Family Court petitions were consolidated into the Supreme Court matrimonial action, herein, the Supreme Court is a court of general jurisdiction, this court has the authority to determine the issue of the order of protection in the context of the consolidated divorce action.
The court finds defendant’s testimony of acts of violence, threats and intimidation are credible and plaintiff’s denial not credible. The court specifically finds that: 1-In November, 1999, plaintiff, while visiting defendant in Albania, caused defendant physical injury by smashing her head into a wall which resulted in a black eye, hearing problems and bruises to her ear. The bruises to her ear lasted for several weeks. This incident occurred in front of their child. 2-In the summer of 2001, plaintiff pushed defendant and grabbed her by the hair, which resulted in defendant hitting a wall and table causing defendant to have headaches and stomach aches. Defendant was six (6) months pregnant at that time, and this incident occurred in front of a child and others. 3-In early 2002, when defendant accidently dropped a dish cover, plaintiff caused physical injury which resulted in pain and numbness in defendant’s leg which lasted for several days when plaintiff kicked her in the leg below the knee with “great force”. 4-On January 2 and 3, 2006, plaintiff caused physical injury to defendant, by grabbing her by the throat with one hand, and hitting her on the shoulder with the other. Plaintiff put his hand in his pocket after striking defendant, intentionally placing or attempting to place defendant in fear of death, imminent serious physical injury or physical injury by a knife or gun. The incident woke up one of the children who was in the room and started to cry.5-The acts of July, 2007 which were tape recorded by defendant show that plaintiff communicated threats to defendant and did harass, annoy, and alarm defendant, threatening to strike her and subject her to physical contact. The court heard the threats and intimidating statements by plaintiff. 6-On January 4, 2008, plaintiff, with intent to harass, annoy, alarm defendant, followed defendant in the public place, and subjected defendant to physical contact. Plaintiff physically blocked defendant and her friend from leaving the school. The court finds that these incidents constitute violations of the temporary order of protection. 7-In late April, 2008, plaintiff told defendant, in vile terms, to eat or drink her excrement, comments then repeated by their five (5) year old child. This act was also a violation of the temporary of order of protection and constitutes aggravating circumstances pursuant to Family Court Act section 842. These acts complained of occurred, at times, in front of the children or other family members. Such acts clearly establish the existence of aggravating circumstances as defined by the statute.
The court notes that not only were the testimony of defendant both credible and compelling, the corroborating testimony of the witness described an atmosphere of fear, actual threats, physical violence and intimidation of an ongoing nature. Defendant was subjected to curses, taunts, physical violence, being spat on and a victim of overt violence and degradation through the marriage. The tape recording admitted into evidence provided the court with the actual opportunity to hear plaintiff’s threats and intimidation as well as the emotional distress his actions caused defendant as well as her responses and heart wrenching pleas to see the children.
Under these circumstances and pursuant to Domestic Relations Law section 240 [3] 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 effective August 15, 2008, to expire on August 15, 2013. 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 (chosen by defendant) or at the school.
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. The court finds the testimony of credible, particularly when she accompanied defendant to pick up the children from the precinct for visitation, plaintiff cursed at her in front of the children.
This 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.
Accordingly, the court held that 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.
A 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”. If you are involved in a similar case, seek the advice of a New York Child Custody Attorney and New York Order of Protection Attorney at Stephen Bilkis and Associates in order to divest the custody of the child to the abusive parent.