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Lawyers Manual - Unified Court System

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62 Kim Susser<br />

domestic violence on children. The legislative history provides material for crossexamination<br />

of experts: an expert’s credibility could be seriously undermined if he<br />

or she is not familiar with the psycho-social research referenced in the legislative<br />

findings. Finally, they can be cited in any written motion, answer or summation.<br />

<strong>Court</strong> decisions that have been reported since the 1996 law entered into<br />

effect indicate that judges deciding custody cases are giving considerable weight<br />

to domestic violence. 7 In E.R. v G.S.R., for example, the court declined to accept<br />

either the expert’s recommendation, because he “skims over the many episodes<br />

of domestic violence,” or the Law Guardian’s, because she “discounted the<br />

history of domestic violence.” 8 The Second Department has reversed and<br />

remanded cases to the Family and Supreme <strong>Court</strong>s when courts failed to<br />

consider the mother’s allegations of domestic violence perpetrated against her<br />

by the father. 9<br />

Appellate courts ruling since the passage of the 1996 domestic violence<br />

custody law have consistently held that domestic violence witnessed by a child<br />

is a significant factor in determining custody and visitation. 10 <strong>Court</strong>s have<br />

considered acts of domestic violence in determining a parent’s fitness for<br />

custody. 11 Domestic violence has been held to be a factor in relocation cases, 12<br />

has been articulated as a basis for ordering supervised visitation, 13 and constitutes<br />

“extraordinary circumstances” in cases in which a non-biological party seeks<br />

custody. 14 <strong>Court</strong>s also view violence committed by a parent against a new spouse<br />

as an important concern. 15 Recently, New York adopted the Uniform Child Custody<br />

Jurisdiction Enforcement Act (UCCJEA) 16 elevating the importance of domestic<br />

violence in determining jurisdiction over custody issues.<br />

In 1998, the custody and visitation provisions of the New York State<br />

Domestic Relations Law (DRL) and Family <strong>Court</strong> Act (FCA) were further<br />

amended to prohibit courts from granting custody or visitation to any person<br />

convicted of murdering the child’s parent. 17 Under this statute, the court is not<br />

even permitted to order temporary visitation pending the final determination of<br />

custody or visitation. 18 Exceptions include situations where a child of suitable<br />

age and maturity consents to such an order and where the person convicted of<br />

the murder can prove that it was causally related to self-defense against acts of<br />

domestic violence perpetrated by the deceased. 19<br />

While the statutory factor of domestic violence is being accorded increasing<br />

weight by judges presiding over custody and visitation cases, it always is<br />

considered in relation to the other “best interest” factors, sometimes in ways that<br />

are helpful to victims and other times in ways that are decidedly problematic. It is<br />

critical for attorneys representing victims of domestic violence to develop litigation

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