Lawyers Manual - Unified Court System

Primary Caretaker
Litigating Custody and Visitation 65
Courts place considerable emphasis on the stability and continuity a parent
offers her children by virtue of her role as primary caretaker. 38 Since the victim
of domestic violence is often the primary caretaker of the children, if the court
is reluctant to address the issue of domestic violence, it may help to rely on the
primary caretaker factor. Whether or not your client was the primary caretaker,
you should always elicit testimony about this issue. Testimony should either
describe your client’s role as the primary caretaker or explain why she was
prevented from performing this role.
Spousal Abuse and Parental Unfitness
In addition to being a factor in determining the best interest of the child,
spousal abuse must also be considered in assessing parental fitness. In a 1986
report, the New York Task Force on Women in the Courts urged legislators to
enact a law making domestic violence evidence of parental unfitness a basis
for visitation termination or a supervised visitation requirement. Courts have
repeatedly found spousal abuse indicative of parental unfitness. 39
Friendly Parent
Whether the parent encourages the child’s relationship with the other parent is
a weighty factor in custody determinations. A plethora of court decisions have held
that it is inimical to the child’s best interest to interfere with the visitation rights of
the non-custodial parent. 40 The “friendly parent” factor is also applied to the noncustodial
parent. For example, an attorney may try to use this factor to limit the
child’s visitation with a parent who disparages the custodial parent to the child.
More often, however, the “friendly parent” factor is used against domestic violence
victims who want to restrict the other parent’s visitation because they are aware of
that parent’s propensity for violence. (See discussion below of parental alienation.)
Trial Practice
Joint Custody
Courts have long held that an award of joint custody to parents with an
antagonistic and embattled relationship is improper and contrary to the child’s best
interest. 41 Courts often pressure parties to agree to joint custody in an attempt
to resolve the case quickly. Attorneys representing domestic violence victims in