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Oct 13, 2017

Can custody be addressed during our DVO hearing?

It is always in the best interest of the child for both parents to come to a mutual agreement regarding their child’s physical custody and other arrangements for their health and well-being. If there is no current court order for custody, both parents have equal rights to the physical and legal custody of any minor children.

Although the short answer is that it is possible for custody to be addressed at your domestic violence order hearing, each domestic violence case and custody case is unique and the answer can vary depending on many factors. Always seek the advice of a divorce attorney who understands the nature of your case and how the law can be applied.

Ultimately, a family court judge will decide legal custody. When ruling on custody, a judge does not favor one parent over another but looks at the family dynamic to determine the best interests of the child. There is no definitive legal definition of “best interests” but there are elements that help the judge decide where the child’s interest is best served such as:

  • What the child wants
    The older the child, the more vocal and less likely to fall victim to pressure from either parent in regards to their wishes. Judges are keen to signs of parental pressure
  • Whether the child has special needs
  • The physical and mental health of the parents
  • The parenting skills of each parent
  • The child’s relationship with members of the family
  • Which parent has been the main caregiver for the child
  • Whether there has been domestic violence in the family ¹

If you are in an abusive marriage and you are filing for divorce, the family court allows you to file an ex parte order. Ex parte is defined as a decision by a judge without requiring all parties to the matter to be present. It is usually granted based on information and testimony from the party filing for the order, and due to the party who is present also seeking an order of protection.

Ex parte orders are not usual and for the most part, are granted in extreme cases. You may fear immediate violence from your partner or fear a danger to your child(ren) or you may fear a parental kidnapping. The ex parte order is a temporary order. Once granted, the court will then notify the second party as quickly as possible in order to have them appear in court so the judge can hear their facts and information.

In 1980, Congress passed the Parental Kidnapping Prevention Act (PKPA). This Act addresses the many problems regarding state jurisdiction in regards to interstate child parental abduction. The key to the PKPA is to establish that the home state of the child is the standard jurisdiction and therefore takes precedence in criteria for establishing and legally addressing a parental abduction when a child has been taken across home state lines by one parent. ²

At the domestic violence order hearing, a judge will decide whether there is enough real evidence to issue protective orders. You can obtain a DVO in both Family and Criminal Court simultaneously. The judge may also order the custody of a child remain exclusively with the parent who is the victim, however, many elements make up the determining factors in each individual case.

If you feel you are in danger at any time, please contact 911, even if you have a protective order in place. The National Domestic Violence Hotline, 800-799-SAFE (7233) is always free, available, and they provide both advice and assistance. It is always wise to contact a divorce law attorney for domestic violence custody issues.

[1] O.(2017). New York State Unified Court System. Retrieved from https://www.nycourts.gov/index.shtml

[2] N. (n.d.). New York State Penal Law: Custodial Interference. Retrieved from http://www.criminaljustice.ny.gov/missing/graphics/nyspenallaw-custodialinterference.pdf

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