When Domestic Violence Shapes Custody Decisions: Understanding Wissink v. Wissink

When parents separate, one of the most difficult issues is deciding where their children should live. In New York, courts must base every custody decision on the best interests of the child. And when there is a history of domestic violence, that factor becomes especially important. The case of Wissink v. Wissink, a 2002 decision from the New York Appellate Division, is a leading example of how allegations of domestic violence can reshape a custody determination.

Background of the case

The parents in the Wissink case had a long and turbulent relationship that was marked by repeated episodes of physical violence by the father against the mother. These incidents weren’t isolated; the record contained years of conflict, calls to police, and orders of protection. Some of the most serious allegations included the father choking the mother and, in one instance, holding a knife to her throat while their daughter was present.

Despite this history, their teenage daughter expressed a strong preference to live with her father. The Family Court gave substantial weight to that preference and ultimately awarded the father custody. Although the father had never physically harmed the child, the mother appealed, arguing that the court failed to properly assess the risks posed by the father’s violent behavior.

The appeal

In this case, the Appellate Division reversed the custody award favoring the father and sent the case back for a new hearing. The judges made it clear that in cases involving domestic violence, the court must thoroughly examine how that violence could impact the child.

One key issue was the quality of the evaluation used by the Family Court. The custody recommendation had been based on a relatively brief assessment by a social worker who interviewed the child for under an hour and each parent for 45 minutes. The Appellate Court ruled that this was inadequate in light of the extensive history of domestic violence.

Under New York law (Domestic Relations Law § 240(1)(a)), courts are required to consider the impact of domestic violence when determining the best interests of the child. The appellate judges held that a more comprehensive, forensic-level psychological evaluation was necessary before awarding custody to a parent with a documented record of violence.

Why this case is important

One critical principle undergirds this case: A child’s preference cannot outweigh serious concerns about domestic violence.

Even when a child feels bonded to a parent, the court must assess whether exposure to violent behavior (directly or indirectly) could harm the child’s long-term well-being. Children who witness domestic violence often experience anxiety, trauma, behavioral issues, divided loyalty and more. Wissink also reinforces that courts must look at the bigger picture. That includes:

• The pattern and severity of the violence
• Whether the abusive behavior poses continuing risks
• The psychological needs of the child
• Each parent’s ability to provide a safe, stable home

Talk to a Westchester County, NY, Child Custody Attorney Today 

The Law Office of Robert S. Sunshine represents the interests of New York residents during custody hearings. Call our Westchester County family lawyers today to schedule an appointment, and we can begin discussing your next steps right away.

Source:

nycourts.gov/Reporter/3dseries/2004/2004_09304.htm