NY appeals court: Protection order not always a bar to child custody

March 05, 2013

NY appeals court: Protection order not always a bar to child custody

Article provided by DeRoberts Law Firm
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According to a recent decision by a New York appellate court, parents in New York may be granted child custody even if a criminal court has barred them from having contact with their children.

On December 26, 2012, the New York Appellate Division, Second Department, ruled unanimously that judges in the state's family courts may override a criminal order of protection against a child's parent as long as the protection order includes language indicating that it may be amended.

Child endangerment

The appellate court ruling reverses a May 2012 decision to deny unsupervised visitation to a mother who had been barred from having contact with her son after she was convicted of physically abusing him. In February 2012, the woman pleaded guilty in a New York criminal court to endangering the welfare of a child and was barred from having contact with her son for five years, Reuters reported.

However, after the woman completed court-ordered courses in parenting and anger management, the criminal court amended the order of protection in May to include the words "subject to family court." A family court judge later determined that it would be in the best interests of the boy and his sister to be returned to the custody of their mother, but, believing that she lacked the authority to override the criminal court's order of protection, the judge nevertheless awarded sole custody to the children's father.

The mother filed an appeal of that decision, and the appellate court ruled that judges in New York family courts have the power to override a criminal order of protection if doing so is in the best interests of the child, as long as the protection order is subject to amendment. In its written opinion, the appellate court explained that family courts are in a better position than criminal courts to make decisions about child custody matters because they tend to have more information about the fitness of the parents and the wishes of the children.

Determining the best interests of the child

In New York, judges in family court are required to resolve matters of child custody according to the best interests of the children involved. In order to determine the child's best interests, a New York family court judge may consider a wide variety of factors, including:
-The child's existing relationship with each parent
-Whether there is a history of domestic violence by either parent
-Each parent's strengths and weaknesses as a caregiver
-The mental and physical health of each parent
-The ability of each parent to provide for the physical and emotional needs of the child
-Each parent's ability to cooperate and encourage a healthy relationship between the child and the other parent

When dealing with disputes over the custody of a child, parents in New York are encouraged to seek help and advice from a lawyer with experience in child custody cases. A knowledgeable family law attorney can help parents understand their rights and legal options, and will work hard to achieve a favorable result for parents and their children.