February 4, 2024
Amendment DRL240(1) (a) and its impact on Battered woman's Syndrome: Abuse as a Mandatory Factor in "Best Interests" analysis
In March 2011 the Domestic Relations law was amended in recognition of the impact spousal abuse has on the best interest of children, requiring that the court consider the factor and affect domestic violence has upon the best interests of the child analysis. The Hallmark of the DRL amendment appears to mandate that a lower Court consider allegations of abuse as a statutory factor in its "best interests" analysis. DRL Section 240(1); 12 N.Y.Prac. New York Law of Domestic Relations § 21:38. This statute has a precondition that said allegations be set forth in a pleading. DRL 240(1). In interpreting DRL 240 (1)(a) courts have held that when violence occurs on multiple occasions in the presence of a child it is proper to award sole custody to the other parent. Jasmine Gillo v. Williams, 2008 WL 8013230 (N.Y.Fam.Ct.), 2008 N.Y. Slip Op. 33607(U); also see Khaykin v. Kanayeva, 47 A.D.3d 817 [2d Dept 2008]; Drew v. Gillin, 17 A.D.3d 719 [3d Dept 2005]; Assini v. Assini, 11 A.D.3d 417 [2d Dept 2004]; Matter of Scott JJ, 280 A.D.2d 4[3d Dept 2001]).Violent threatening spouses denigrated a parent’s future abilities to provide appropriate guidance to children. In the case of Neail v. Deshane, 19 A.D.3d 758, 796 N.Y.S.2d 435 (3d Dep’t 2005) 5 N.Y.3d 711, 806 N.Y.S.2d 161, 840 N.E.2d 130 (2005) the Court awarded the Father custody due because the mother had serious anger management problems. In the case of COSTIGAN v. RENNER, 76 A.D.3d 1039 (2nd Dept. September 28, 2010) the Second Department held it is well settled that when a children reside in a residence of domestic violence they themselves become secondary victims and are likely to suffer psychological injury. The Court also held that the children thus learn morally challenged precepts that abusive behaviors are the a means to an acceptable end., citing to Matter of Wissink v. Wissink, 301 A.D.2d 36, 40, 749 N.Y.S.2d 550. It further held that acts of domestic violence against the perpetrator should not be awarded custody, citing to Matter of DeJesus v. Tinoco, 267 A.D.2d 308, 308, 699 N.Y.S.2d 905 and Matter of Wissink v. Wissink, 301 A.D.2d at 40, 749 N.Y.S.2d 550