Lawyers Manual - Unified Court System

Litigating Custody and Visitation 75
visitation after the case has been decided, argue that modification of the custody
or visitation order requires a showing of change of circumstances. In David W. v
Julia W., 66 the court held that to “automatically grant a hearing to a non-custodial
parent would simply facilitate a disgruntled party in harassing his or her spouse
compelling the latter to expend considerable time, money, and emotional
anguish in resisting the loss of custody.”
Conclusion
Although the New York State legislature and appellate courts require
factfinders to give significant weight to domestic violence in custody and
visitation matters, litigating these cases continues to pose challenges to lawyers
representing victims. In spite of this powerful legal precedent and the social
science research that supports it, victims and their advocates still encounter
lawyers, judges, and experts who downplay the significance of domestic
violence, who fail to understand its impact, and who stereotype or blame
victims. Attorneys for domestic violence victims can overcome these challenges
by educating themselves about the new developments in domestic violence law
and social science literature, by understanding how domestic violence implicates
the traditional “best interest” factors in custody law, by developing strategies to
bring information about domestic violence and the law to the key decision
makers, and by helping their clients negotiate a court system that too often is
confusing and insensitive to victims. While the effective representation of
domestic violence victims in custody and visitation cases requires knowledge,
sensitivity, and hard work, such litigation can be uniquely rewarding. Just as the
threatened loss of her child often instills the greatest fear in the battered mother,
preventing such a loss may constitute the greatest gift.