New York Family Law Blog
The order appealed from is unanimously reversed on the law without costs, the petition is granted and the matter is remitted to Family Court for further proceedings in accordance with the Memorandum that Family Court erred in determining that the petitioner mother failed to prove by a preponderance of the evidence that the children who are the subject of the proceeding are neglected children based upon domestic violence between the respondent father and the mother of the children and in therefore dismissing the petition. The court notes at the outset that the respective Attorneys for the Children did not take an appeal from the order, and thus to the extent that their briefs raise contentions not raised by the petitioner mother, they have not been considered.
A New York Family Lawyer said that upon review of the record, the petitioner established by a preponderance of the evidence that the children were in imminent danger of emotional impairment based upon the alleged incidents of domestic violence between the children’s mother and the respondent. In connection with her admission in the separate neglect proceeding brought against her, the mother admitted that she and the respondent had several disagreements and arguments in the presence of the children and that sometimes the children were afraid. The respondent father failed to appear at the instant fact-finding hearing, and thus the court draw the strongest inference against her that the opposing evidence permits based upon her failure to testify at the hearing.
According to the evidence presented at the fact-finding hearing, when the police responded to the residence on a specified date, both the mother and the respondent admitted that they had been engaged in a loud argument in the living room, during which they struck each other. The police officer observed a scratch on the mother’s neck, which the mother admitted she received while she and the respondent were fighting. The police officer further observed that the one-year-old child (younger child) was crying in a bedroom, and he described the child as shook up and scared. The court conclude that the younger child’s proximity to the physical and verbal fighting that occurred in the living room, together with the evidence of a pattern of ongoing domestic violence in the home, placed him in imminent risk of emotional harm.
A New York Custody Lawyer said that although the hearing court’s determinations are entitled to great deference, the court’s determination that the statements of the five-year-old child (older child) were not corroborated is not supported by a sound and substantial basis in the record. Corroboration, for purposes of article 10 proceedings, is defined to mean any other evidence tending to support the reliability of the previous statements’ of the child, and that the older child’s statements were sufficiently corroborated.
A Nassau County Family Lawyer said the caseworker for Child Protective Services testified at the fact-finding hearing that the body language of the older child changed when he spoke about his mother and the respondent, and that he refused to talk to her while he was at his mother’s house. While at his father’s house, however, the older child explained to the caseworker that he did not want to speak with her at his mother’s house because his mother repeatedly entered and then left the room. He told the caseworker that his mother and the respondent fought often; that the respondent had locked them out of the house; and that he was afraid of the respondent. He demonstrated with the use of two Barbie dolls a physical fight that involved hair-pulling and pushing, which ended with the intervention of a male doll represented a police officer. Furthermore, the evidence at the fact-finding hearing established that the police responded to the home of the respondent father and the mother on several occasions for reports of domestic violence. A neighbor testified that she heard loud fighting between the respondent and the mother on a weekly basis and that she observed the police responding to those fights at least once per month. The neighbor further testified that she had seen that the mother had been locked out of the house by the respondent on more than one occasion. The child care provider for the children testified that the older child told her on several occasions that the respondent hurt his mother, and the child care provider in fact observed a large bruise on the mother’s face. When she questioned the mother about the bruise, the mother explained that it had happened in a bar, but after his mother left the house the older child told the child care provider that the respondent did it. The ongoing pattern of domestic violence also placed the older child in imminent risk of emotional harm, thus compelling the conclusion that both children are neglected based upon the actions of the respondent.
A Nassau County Custody Lawyer said the Appellate Court reversed the order, grant the petition, and remit the matter to Family Court for a dispositional hearing.
When couples find it impossible to reconcile their differences, their children are the ones who bear the consequences of their separation and their inability to live with each other harmoniously. If you want to protect children from their parent’s dispute, consult a Nassau County Domestic Violence Lawyer or a Nassau County Order of Protection Attorney. You can also speak with a Nassau County Family Attorney from Stephen Bilkis and Associates to assist you with your legal problems.