New York Family Law Blog
The Facts
The parties were both born in Albania. On 14 December 1989, plaintiff first moved to the United States after receiving a green card through the American Embassy in Belgrade, Yugoslavia. In 1997, he became a United States citizen. Plaintiff lived and worked in the United States continuously from late 1989 until the date of the commencement of the herein action, only returning to Albania for brief vacations over the years, approximately the first six years of the marriage. A New York Criminal Lawyer said the plaintiff is 48 years of age and defendant is 36 years of age. 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.
Sometime in September 1995, the parties got married 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; child-one was born on December 1996 in Albania, child-two was born on January 2002 in New York, child-three was born on April 2003 in New York, child-four was born on October 2004 in New York, and child-five was born on March 2006 in Albania.
Subsequently, a divorce action has been filed and plaintiff has petitioned for custody.
On 4 December 2007, defendant-wife (hereinafter referred to as defendant) against plaintiff-husband (hereinafter referred to as plaintiff) was issued a temporary order of protection in Family Court, Kings County for acts of violence, threats and intimidation; a five (5) year stay away order of protection against plaintiff. Thus, a Nassau County Family Lawyer said the court is called upon to determine custody of five (5) minor children and whether defendant is entitled to the order of protection.
The Family Court petitions were consolidated into the instant divorce action; issues of custody, visitation and a final order of protection.
The Ruling:
On the issue of Order of Protection:
The Supreme Court is a court of general jurisdiction and has the authority to determine the issue of the order of protection in the context of the herein consolidated divorce action. The Supreme Court may issue an order of protection pursuant to Domestic Relations Law. That order of protection, once granted, can provide certain conditions which require the enjoined party to obey. Additionally, a Queens Family Lawyer said an order of protection entered 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.
Here, the court finds the defendant’s testimony of acts of violence, threats and intimidation credible and plaintiff’s denial not credible. Moreover, 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.
Thus, a final order of protection in favor of defendant is warranted. 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.
On the issue of Custody:
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 the 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. Also, the court must take into account any incidents of domestic violence.
There is overwhelming authority that children’s exposure to violence can have lasting effects such as severe psychological injury. Moreover, exposing children to this behavior can lead the child to learn a dangerous and morally depraved lesson that abusive behavior is not only acceptable, but may even be rewarded.
Here, the children have already begun to show signs that they are harmed by the incidents where, among others, the three and half year old child tried to echo plaintiff’s words and giggling afterwards. The court fears that, at some point, the children themselves may either become victims of plaintiff’s explosive actions or develop similar patterns of abuse.
Moreover, another 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 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. The 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.
In the instant case, the oldest child wishes to live with plaintiff. However, the court 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. Plaintiff has engaged in a pattern of behavior which clearly culminated in the filing of a false petition in Kings County Family Court, seeking custody of the children when plaintiff learned that defendant gained access to the United States and was seeking to regain custody. When plaintiff could not gain custody of the children in Albania, he utilized the New York Family Court and systematically continued on his quest to isolate defendant from the children.
Obviously, plaintiff would say and do anything, including falsely accusing defendant of engaging in an adulterous affair and utilizing drugs, in an effort to discredit her not only to his family but these children and defendant’s own family as well. The plaintiff’s hatred towards defendant and her family, which has for many years resulted in defendant’s forced alienation from her own family, is disturbing. Moreover, plaintiff alone is not the caretaker of the children but his extended family who have participated in assisting him and allowing the children to curse their mother, make fun of her and degrade her in vile and inappropriate ways that no parent or anyone should ever be subjected to. Plaintiff, until now, has not been an appropriate role model.
Clearly, joint custody is not an appropriate remedy. There needs to be clear lines of authority so plaintiff knows and understands that he cannot treat defendant or influence the children in the manner he is accustomed. The level of acrimony is far too great to justify such an award and, given the limits imposed on communications, would be impracticable. Similarly, plaintiff’s request for structured family counseling is denied given the level of domestic violence and the existence of the order of protection.
Thus, defendant is awarded full custody of all children. The fact that plaintiff agreed in his summation to a limited order of protection is a start to his realization that his behavior is inappropriate.
On the issue of Visitation:
Plaintiff is granted certain parenting time with the children.
If you have a family matter, speak to Stephen Bilkis and Associate for advice. Schedule a free consultation today.
For the best legal professionals in the country, get in touch with Stephen Bilkis & Associates. We have the most competitive and most brilliant lawyers with extensive experience in litigation. Contact us and consult with our Kings County Family Lawyers, specifically, Kings County Child Custody Lawyers, among others. Our consultations are free of charge.