Weighing the Domestic Violence Factor in Custody Cases: Tipping the Scales in Favor of Protecting Victims and Their Children
34 Pages Posted: 1 Oct 2016
Date Written: 2000
In 1996, the New York State Legislature attempted to afford additional protection to domestic violence victims and their children involved in custody disputes by amending New York's Domestic Relations Law and the Family Court Act to mandate consideration of domestic violence when determining the best interests of the child in custody and visitation cases. Four years later, it is evident that the amendment failed to change the behavior of the courts or overcome the entrenched attitudes of many judges, attorneys and forensic evaluators regarding domestic violence.
The first Part of this Article contains a brief overview of the case law since the passage of the 1996 amendment and considers how courts applied the mandate to consider domestic violence as a factor in determining the best interests of the child. Part II addresses practical issues that arise when litigating custody cases where domestic violence is a factor. Part III uses three case studies to illustrate the failure of the amendment to create the necessary change intended by the Legislature and the need for legislative reform imposing a presumption against awarding custody to abusive parents. The final Part examines the inconsistency in the law between child protective cases and custody created by the amendment and policy initiatives in the area of domestic violence and custody.
Keywords: Domestic Violence, Custody, New York, Domestic Relations Law, Family Court Act
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