Lawyers Manual - Unified Court System

64 Kim Susser
them. The factor of stability can also create difficulties for battered mothers who
gave their abusers or a third party custody of the child while they were attempting
to secure their own safety and locate a new home for their child. In both of
these situations, the attorney representing the victim must elicit testimony about
the reasons behind her decision to move or temporarily surrender custody.
The preference for maintaining a stable environment with custodial continuity
is not absolute. 31 In Rohan v Rohan, the Appellate Division held that, given the
father’s history of domestic violence, the Family Court’s reliance upon the
factor of maintaining stability as the principle ground for granting physical
custody to the father was misplaced. 32 The court concluded that, in light of the
father’s egregious acts of spousal abuse, his claim that the mother consented to
his assumption of custody was “unworthy of belief.” 33 The court also noted that
the family court’s award of custody had the undesirable effect of rewarding the
father’s abusive conduct. 34
Children’s Wishes
Although not controlling, the express wishes of the child should be
accorded considerable weight when the child is of a sufficient age and maturity
to articulate his or her needs and preferences to the court. 35 (See discussion of
Law Guardians.) The wishes of the child, even a child of more than sufficient
age and maturity, are not dispositive, however, when those wishes appear to be
the result of domestic violence.
In Wissink v Wissink, 36 the Appellate Division gave a thorough and important
analysis of the weight courts should give a child’s wishes when there is domestic
violence in the home. In that case, the law guardian supported the father as the
custodial parent, despite ample evidence of his violence against the child’s mother,
because that was what his sixteen-year-old client said she wanted. The Appellate
Division found that, given the findings of domestic violence, the law guardian
had a duty to further examine the underlying reasons for the child’s wishes.
Prior Agreement
Prior agreement of the parties is another factor courts consider in deciding
custody. It is not uncommon for a victim of domestic violence to agree to a
custodial arrangement that is not in the child’s interest, or in her own, in an attempt
to placate the abuser. In this situation, the victim’s attorney must argue that she
ought not be bound to any agreement that occurred without representation, or under
duress, or that is not in the child’s best interest. The parties cannot bind the court to
an agreement that does not comport with the child’s best interest. 37