New York Family Law Blog
Before the Court are cross petitions filed by the father and the mother seeking custody of the child LJ born June 1, 1998. The father, LR, filed his petition on December 27, 2007. The mother, KR, filed her petition on December 31, 2007.
A New York Family Lawyer said the child is currently in the temporary custody of the Department of Social Services (hereinafter referred to as “DSS”) as the result of a removal pursuant to a neglect proceeding. He was placed by DSS with the paternal grandmother, EA, in January, 2006 pursuant to the Family Court Act.
Currently, the DSS is ready to return the child to a parent but has no position as to which parent. As each parent has filed for custody of the child, a hearing was held leaving that determination to be made by this Court.
The parties have a long and protracted history in the Family Court since January of 2007, the parties have been involved in numerous proceedings before the Nassau Family Court dating back to May, 2000.
A New York Custody Lawyer said any petitions were filed and abandoned including custody and support proceedings by the mother against the father. There is an extensive history of domestic violence between the parties and petitions seeking Orders of Protection were filed by both parties against the other, most of which were either dismissed or withdrawn. The mother did however have a stay away Order of Protection against the father, in 2000 and in 2006. There were a number of attempts at reconciliation by the parties.
Respondent mother has failed to provide said child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment, or by any other acts of a similarly serious nature. Respondent mother and respondent father have failed to provide said child with proper supervision or guardianship, and said child’s physical, mental and emotional health have been impaired as a result of the failure of respondent mother and respondent father to exercise a minimum degree of care.
A Queens Family Lawyer said on or about September 18, 2004, six-year-old LJ presented at Nassau University Medical Center with bruises on the back of both legs, the left thigh and the upper back, which appeared to be three to four days old. LJ disclosed to Children’s Protective Services (hereinafter referred to as “CPS”), hospital staff and a police officer that respondent mother caused the bruises by hitting him with a belt. Respondent mother was arrested in connection with the injuries caused to the child.
On the other hand, respondent father has repeatedly engaged respondent mother in domestic violence at the family residence. Respondent father was arrested twice in approximately the past four months for domestic violence perpetrated against respondent mother. Respondent father is also the subject of an active stay-away Order of Protection, which respondent father has repeatedly violated by living at the residence with respondent mother. Respondent father has created a hostile environment that places said child at risk. Respondent mother has repeatedly allowed respondent father in the residence despite the active stay-away Order of Protection.
A Queens Custody Lawyer said at the Preliminary proceeding, Orders of Protection were issued against each of the parents in their absence: that the mother refrain from assault, stalking, harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats or any criminal offense (general refrain) against the child as well as refrain from any acts of corporal punishment against the child.
An Order of Protection was issued against the father that he refrain from acts of corporal punishment and domestic violence against or in front of the child. The child was not removed from the custody of the parents at the initial filing of the neglect petition. Shortly thereafter, at the arraignment, the Order of Protection as against the mother was modified that she stay away from the child except for supervised visitation approved by DSS.
On March 30, 2005 the neglect petition against the father was adjourned in contemplation of dismissal for twelve months.
On the same date, the mother consented to a finding of neglect pursuant to § 1051 of the Family Court Act. A final Order of Supervision was entered for twelve months with a specific condition that she enroll in and complete an anger management program. A final Order of Protection on behalf of the child was also issued against the mother containing a general refrain. The issuance of this final order vacated the previous order which had only allowed for the mother to have supervised visitation.
Two months later, on May 27, 2005 DSS filed a Violation petition against the mother alleging that she threw several glasses at the father which shattered on the child’s bed while the child was sleeping, and additionally that she had not been consistent with the anger management counseling.
As a result, the Order of Protection against the mother was modified reinstating the stay away order on behalf of the child except for supervised visitation.
In January, 2006 DSS brought another Violation petition against the mother alleging that she was not complying with the stay away Order of Protection and that she was caring for the child in her home. As to the father, the DSS restored his adjournment in contemplation of dismissal based on allegations that he allowed the mother to care for the child in violation of the Order of Protection. It was alleged that both parties were not cooperating with DSS.
On January 25, 2006 the child was removed and placed in foster care. On January 31, 2006 the child was placed in the custody of his paternal grandmother, EA Orders of Protection were issued against both parents allowing only supervised visitation with the child. On May 31, 2006 the mother admitted to violating the previous Order of Disposition and the father consented to a finding of neglect pursuant to § 1051 of the Family Court Act. The Order of Protection against the mother was finalized allowing visitation as approved by DSS. The Order of Protection as to the father was finalized issuing a general refrain as well as no corporal punishment be used against the child.
It is at this time, in May, 2006, that the father moved into the home of his mother where the child had already been living.
In November, 2007 this Court modified the Order of Protection as to the mother, no longer requiring that visits be supervised. Thereafter, while the child remained in the custody of his paternal grandmother, and the father continued to live in that home, the mother began visitation on alternate weekends.
The custody petitions were filed by each parent in December, 2007. The parties attempted to resolve the issue through conferencing and mediation but were unable to do so.
A fact finding hearing on the issue of custody was held over a number of dates: December 12, 2008, December 16, 2008, January 6, 2009, January 22, 2009, February 2, 2009, February 10, 2009, May 7, 2009, June 3, 2009, July 6, 2009, July 27, 2009 and July 28, 2009.
The Court does not credit most of Ms. KR.’s testimony. Her actions over the many years of these proceedings indicate that she is calculating and manipulative. It is clear that she feels tremendous hostility toward Mr. LR. and as a result is not able to move forward. She has even chosen not to call her son by his given name which is the same name as her husband’s name. Throughout these proceedings only Ms.KR. and her mother referred to the child as Devin.
Ms.KR. made many allegations against Mr. LR. over the years, all of which were investigated and unfounded to wit: she reported that he used drugs and reported that the child watches pornography while in his care.
While Ms.KR. testified a second time for the sole purpose of reporting an incident where her son became sick in the care of the father, needing hospitalization, the Court does not find that this incident renders the father unfit.
The neglect proceedings began due to allegations of excessive corporal punishment committed by Ms.KR. Ms.KR. entered into a consent finding. During these proceedings she now claims that she knows about those allegations because she “was told” about them. She testified that Mr. LR. was the cause of the bruises on her son’s body.
When questioned on cross examination, Ms.KR. denied having thrown the statue in the direction of her son’s bed and stated that it was Mr. LR. who committed that act.
The Court has great difficulty believing anything that was testified to by Ms.KR. Even her friend HB. stated that Ms.KR. had told him that she was divorced, an apparent lie, which, she later indicated she may have told him.
It appears to this Court that the incident involving Mr. HB. was calculated and orchestrated by Ms.KR. It was clear from the testimony that Ms.KR. called both Mr. HB. and then the police for the sole purpose of having Mr. LR. arrested.
The Court listened to the 911 tape of her phone call where she is whispering to the operator, while knocking is heard in the background. The Court credits Mr. LR.’s version of events, that he was sleeping while attempting a reconciliation with his wife, when another man came climbing through his window. Moments later the police arrived and arrested him. When testifying during cross examination, Ms.KR. was unable to ger her story straight regarding this incident. She stated that she told the operator her husband was choking her. There was no such statement on the tape of the 911 call.
Additionally, the Court does not believe Ms.KR.’s claim that Mr. LR. refused to give her insurance information and hung up on her during the child’s recent hospitalization.
Rather, the Court credits Mr. LR.’s testimony that Ms.KR. failed to notify him in a timely manner that the child had been hospitalized. The Court also credits Mr. LR.’s testimony that the mother intentionally withheld information from him which would have enabled him to visit his son in the hospital and that he was unable to call her as he had no contact information for her. It is corroborated by the caseworker’s testimony that Ms.KR. often could not be contacted.
The mother’s manipulative conduct, consisting of numerous false allegations against the father must be considered. Such conduct demonstrates a purposeful placement of her self-interest above the interests of others and is so inconsistent with the best interests of the child that it raises, by itself, a strong probability that the offending party is unfit to act as a custodial parent.
The Court acknowledges the existence of Orders of Protection against the father on behalf of the mother. There is no indication however, that these acts of domestic violence took place in the presence of the child. On the other hand, there is testimony that Ms.KR. has demonstrated violent behavior when using excessive corporal punishment on the child and when throwing the statue which shattered in the child’s bed. The broken glass in the child’s bed was observed by the caseworker. Additionally, there has been no incident of domestic violence by Mr. LR. for over three years and the Court notes there was no physical violence toward Mr. HB. who Mr. LR. found in his home on three separate occasions.
Ms. KR. would have the Court believe that Mr. LR. is an unfit parent. Quite the contrary, the Court found that Mr. LR. demonstrated that he cares greatly for his son and has done whatever is necessary for him to thrive and succeed. In fact, while there has been alternate weekend visitation with LJ, Jr., Mr. LR. has permitted Ms.KR. to have Friday night and Saturday visits during his weekends, when it is necessary for him to work on Saturdays during his busy season.
It is clear that Mr. LR. has his son’s best interests in mind, and has been able to successfully move beyond his failed relationship with Ms.KR. Ms.KR. on the other hand is unable to do so.
The Court considered which parent will foster a relationship with the other parent. Mr. KR. has already demonstrated that he would facilitate visitation. He has allowed Ms.KR. to have parenting time while he is working, and there is no reason to believe that he would not continue to do so.
Based on her actions, if awarded custody, Ms.KR. would not facilitate visitation at all.
Based on the foregoing, the Court found that it is in the child’s best interests that custody of the child, LJ, Jr. be awarded to the father with alternate weekend visitation to the mother including telephone communications. Both parents are to refrain from denigrating the other parent to the child or from allowing anyone else to do so; and there shall be no use of corporal punishment of any kind by either parent.
Domestic violence usually gets worse in time. If you are a victim or know someone who is, do not wait until violence results to graver injuries. A Nassau County Domestic Violence Lawyer can discuss your legal and civil options to stop the abuse.
Stephen Bilkis & Associates with its team of highly skilled Nassau County Family Attorneys has convenient offices throughout the Nassau County area. Our Nassau County Family Attorneys can help you secure a restraining or protective order for your safety.
You need not remain clueless of your rights with the help of a Nassau County Criminal Lawyer
In addition to Nassau County Law, Stephen Bilkis and Associates can recommend a Nassau County Domestic Violence Lawyer in your area to help you understand that domestic violence in a nurturing relationship is not normal and no one needs to suffer unnecessarily.