Our spousal abuse and child neglect lawyers help clients file family offense and/or neglect petitions in family court to make the abuse stop. In severe cases, a criminal complaint may be appropriate. Once you file a petition, you may obtain an order for protection (OFP) to make it illegal for the abuser to come close to you or your children. An OFP can last as long as five years.
Accused of Abuse? Know Your Legal Options
If you’ve been accused of abuse, it can be easy to forget that you also have rights that must be respected. By now, you may have already been served with an order for protection — follow that order to the letter. Orders of Protection (OOP) and Temporary Orders of Protection (TOOP) can last as long as 5 years. Violating these orders will hurt your future prospects dramatically and can even result in serious criminal charges.
Our domestic violence attorneys can defend you against family offense petitions. We can also defend against charges of abuse and/or neglect which are filed by the county.
How Does Domestic Violence Affect Custody Disputes?
If you and your spouse can’t agree on a custody arrangement, a judge will step in and decide the matter for you. Even in cases where a couple decides on a custody arrangement, a judge may determine that arrangement is not in the best interests of the children. The best interests of the children are, in essence, the single most important question that the court will answer.
While NY courts do not require judges to go through a list of important factors, NY judges are required by statute to consider the presence of domestic violence when deciding custody. The court will further consider domestic violence against former partners or their children and weight other forms of violence negatively against the spouse as well.
When a Spouse Tries to Terminate a Marriage Based on Domestic Violence
New York was one of the last states to permit no-fault divorces. In New York, either spouse can terminate a marriage on fault-based grounds. One of the most severe reasons that a spouse would want to terminate a marriage on fault grounds is domestic violence.
When one spouse accuses the other of physical, verbal, or psychological, or sexual abuse, they are forcing the court to consider an aspect of their character that very nearly precludes them of taking custody or having access to their children. While the spouse who is claiming abuse must prove their allegations in court, the standard of proof is not as high as it would be in a criminal case. A judge can make a determination based on the preponderance of the evidence. In cases where the abuse is recorded by hospital visits or police reports, the spouse accused of abuse has found themselves in a very difficult position.
Spouses who are the victims of abuse can use hospital records and police reports to their advantage in court even when the other spouse has not been convicted of any crime.
Contested Custody and Domestic Violence
As stated earlier, the court must consider domestic violence in a contested custody hearing. However, domestic violence has a specific definition under New York State law and the party who is alleging abuse needs to understand it. While there is a very long list of crimes (see: N.Y. Fam. Ct. Act § 812) that can be used to support a domestic violence claim, the person against whom the domestic violence order is made must victimize a person:
- Who is a blood relative,
- To whom they are married,
- With whom they have a child, or
- With whom they have an intimate relationship.
Proof of Domestic Violence Does Not Automatically Preclude Visitation
Case Study 1
It’s important to understand that, when determining custody, the court will consider domestic violence as one factor among many. Consider the following scenario:
Husband has a drinking problem and becomes violent toward wife and children. Husband is charged with domestic violence and vows to enter himself into alcohol and drug counseling. Wife says she’ll stand by husband if he remains sober. He does. For other reasons, there is a breakdown of the marriage. When custody is contested, wife alleges that husband has a history of domestic violence. Husband argues that he has been clean for however long and has not become violent since entering counseling. What will the judge do?
While the judge will take the situation very seriously, he will also take the husband’s commitment to remain sober seriously and consider whether or not there has been subsequent domestic violence. In this case, if wife is otherwise ill-suited to care for the children, husband may be awarded primary custody.
Keep reading to learn more from our Albany Domestic violence lawyers.
Case Study 2
Let’s say husband and wife are in a fight and the fight turns violent. Husband injures wife and faces charges of domestic assault. Wife immediately files for divorce and petitions the court for full custody of the children. Husband promises the court that he will enter himself into counseling and make all the necessary changes to his life to manage his temper.
In this case, the court might decide that husband’s promises are sincere. They may elect to award husband with monitored visitation.
You Need an Attorney to Advocate on Your Behalf
If you have been accused or convicted of domestic violence in court, it’s important to understand that this will negatively impact your standing in child custody arrangements.
If you have been abused by a former spouse, it is equally important to understand that it may not preclude your spouse from spending time with your children.
In either case, you need an Albany NY domestic violence attorney who understands your situation and can advocate on your behalf.
Consult With Experienced Albany NY Domestic Violence Lawyers
Whether you have been abused or accused of domestic violence, we can help. Our attorneys’ knowledge and experience with both sides of the law give us a broad perspective on these cases that other attorneys lack. For a consultation, call 518-462-4242 or fill out our contact form.