NEW YORK DIVORCE - CUSTODY & DOMESTIC VIOLENCE

Sometimes an abused spouse will have mental health issues and the abuser may raise this issue in a child custody matter. A forensic evaluator is appointed and the abused spouse's mental issues are highlighted. This is what happened in a recent case.

IN THE MATTER OF XIOMARA M. v. ROBERT M., 9074 (1st Dept 1-29-2013)
2013 NY Slip Op 00414
In re Xiomara M., Petitioner-Respondent, v. Robert M., Jr.,
Respondent-Appellant.

Appellate Division of the Supreme Court of New York, First Department.
Decided on January 29, 2013

Order, Family Court, Bronx County (Myrna Martinez-Perez, J.), entered on or
about November 15, 2011, awarding petitioner mother sole legal and physical
custody of the parties' children, subject to respondent father's right of
visitation, unanimously affirmed, without costs.

Andrew J. Baer, New York, for appellant.

Karen P. Simmons, The Children's Law Center, Brooklyn (Susan M. Cordaro of
counsel), attorney for the children.

ANDRIAS, J.P., SWEENY, DeGRASSE, FREEDMAN, RICHTER, JJ.

The record supports the court's determination that the totality of the
circumstances warrants awarding custody of the children to petitioner (see
Eschbach v Eschbach, 56 NY2d 167 [1982]). In determining the best interests
of the children, the court considered the appropriate factors, including
that petitioner had always been the primary care giver and made sure that
the children received the educational and medical attention they required
(see e.g. Matter of Battista v Fasano, 41 AD3d 712 [2nd Dept 2007], lv
denied9 NY3d 818 [2008]), that she was more likely to foster a relationship
between respondent and the children than he was to foster a relationship
between petitioner and the children (see Matter of Lionel E. v Shaquana
R.B., 73 AD3d 434 [1st Dept 2010]), and the history of domestic violence at
the hands of respondent (seeDomestic Relations Law 240[1][a]).

The court reasonably rejected the recommendation of its appointed forensic
psychologist (see Matter of Kozlowski v Mangialino, 36 AD3d 916 [2nd Dept
2007]). The court fairly found, inter alia, that the expert did not
sufficiently weigh the impact of domestic violence on petitioner's emotional
and psychic state, perhaps causing her depression and the other difficulties
she faced. The court fairly concluded that the expert disproportionately
blamed petitioner for problems in the parties' relationship while ignoring
her explanations, and relied too heavily on the reports of the paternal
grandparents, who had themselves made false reports of abuse and neglect
against petitioner.

The court properly considered the wishes of the children as one of many
factors in its determination. There is no support for respondent's
contention that the court treated the children's wishes as determinative.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE
DIVISION, FIRST DEPARTMENT.