In November 1998, a review of the documents of the Dominican proceedings confirms that the mother and father separated. At that time, the father consented to the terms of an order of protection, agreeing to refrain from assaulting the mother verbally or physically, and to vacate the family home until the mother was able to find other housing. He agreed to pay child support, and was given regular visitations as long as he behaves appropriately.
A New York Family Lawyer said the mother left the Dominican Republic in December 1999, leaving the children with her mother, and remarried in June 2000. Five weeks later, while the mother was still in the United States, the father filed a claim for child custody. The maternal grandmother, who had physical custody of the children at the time, was named as defendant in the matter.
The subject children are the couple’s twin sons, born in 1997 in the Dominican Republic. It is undisputed that the father obtained a default order of custody there, an order appealed by the mother and affirmed by the Dominican court, a month after she had brought the boys to the United States. In quick succession, the IDV Court—which has jurisdiction over both criminal and family law matters—received a criminal prosecution against the father based on his alleged 2002 threats to kill the mother; a writ of habeas corpus filed by the father seeking enforcement of the Dominican custody order; a petition for custody of the two boys filed by the mother on 2002 and a family offense petition filed the same day by the mother alleging additional acts of violence.
A law guardian assigned on November 2002 to represent the children reported an extensive history of violence at home. Based upon this information, a New York Custody Lawyer said the court assumed temporary emergency jurisdiction and directed the Administration for Children’s Services to interview both parents and the children.
In a forensic report submitted to the Dominican District Court, the evaluator—who had interviewed only the father, as the mother was not in the country—concluded that he should have custody as the mother is both physically and emotionally absent, and that the other family ties, according to the father, are not the most adequate for the children’s emotional or intellectual development. In this case, the father figure would be of vital importance and suggest beginning individual and family therapy to address some of the previously reported issues.
In the midst of the Dominican judicial proceeding, the mother temporarily ceded custody of their sons to the father, in a document known as a friendly agreement, signed before the law guardian. The custody dispute thus came to a halt.
In 2002, the father reactivated the Dominican custody proceeding. In his request for a hearing he alleged that the amicable agreement between the parties is not being adhered to. The nature of the violation that prompted the father’s action was not specified. By that time, however, the mother apparently lived in the United States and had regular, though intermittent, contact with the boys.
A Nassau County Family Lawyer said the proof of service by mail to an address not specified in the part of the Dominican court record was submitted to the Dominican court. The mother did not appear for the custody proceeding. In a decision the District Court found respondent in default for nonappearance and awarded full custody to the petitioner. Noting that the children had now been with their father for over a year, the court declined to move them again, citing the need for stability and security in the future. The law guardian in the proceeding took the position that custody should be awarded to the father, noting that the mother ceded custody of said children by means of an amicable agreement and urged adherence to that agreement.
The mother, who asserts that she learned of the renewed custody proceeding only when she appeared in the Dominican Republic for a visit with the children, filed an appeal and inquiry was held in that court. In a decision, the Appellate Court affirmed the grant of custody to the father.
Two weeks after the Dominican appellate decision, the father was arrested for threatening to kill the mother. He asserted to the Criminal Justice Agency (CJA), which interviews criminal defendants prior to arraignment for the purpose of advising the court on bail, that he had been self-employed full time as an entrepreneur in the Bronx for the past two years. He gave his address in New York. He represented that he had lived alone at that address during the prior year. He gave a different New York address to the arresting officer. At the arraignment, a full protection order was issued in favor of the mother. Based in part on the father’s representations of community ties, he was released on his own recognizance and remains at liberty.
Almost immediately upon release, the father brought a petition for writ of habeas corpus in Bronx County Family Court alleging that the mother removed the children from the Dominican Republic in contravention of the final order of custody issued by the Family Court and affirmed on appeal. A law guardian was assigned to represent the children, and the matter was made returnable for the following day, in the Integrated Domestic Violence (IDV) Court, where the criminal matter was also now pending.
In response to the writ of habeas corpus, a Queens Family Lawyer said the mother appeared in the IDV Court with the children. Given the allegations of violence at home and the lack of official, translated court documents from the Dominican proceeding, the children were allowed to remain with their mother pending further inquiry.
The mother filed a petition for custody with Bronx County Family Court. In that petition she alleged that, after she fled without the children to the United States to escape violence at home, the petitioner took their children from her mother’s home without her permission and obtained a default order of custody from a court in the Dominican Republic. She also filed a family offense petition alleging again that the father had threatened her life the day after he filed the writ of habeas corpus and that he had displayed a gun, threatening to shoot her and the children.
The parties again appeared in Court and the law guardian had now interviewed the children, and reported an extensive history of violence in the family. The court assumed temporary emergency jurisdiction of the proceedings and stayed enforcement of the Dominican custody decree. The children were again allowed to remain with the mother.
In a report to the court, a child protective services worker recounted a history of severe violence during the parties’ marriage in the Dominican Republic. The mother had medical records corroborating her claim of injuries at the hands of the father, and stated that the Dominican court had issued a protection order in her favor.
The Dominican court placed no weight on the violence in the family, awarding full custody to the father despite the existence of protection order. Moreover, this court now has pending before it a domestic violence criminal matter in which the father twice allegedly threatened to kill the mother, and a family offense petition in which the mother alleges additional death threats against her and the children—in violation of the court’s criminal court protection order—as well as menacing with a gun. Certainly enough information has been presented to the court to warrant consideration of the exemption.
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