Domestic violence in the post-pandemic era continues to be at the forefront of divorce practice. This author has written previously on the need—for the sake of the many victims—to expand our views of domestic violence beyond physical violence, as domestic violence can and does take many different forms.
One of those forms derives from the use of language in communications, be it by email, text message, or, as was the case in L.W. v. J.U., 2024 NY Slip Op 50879(U) (Sup. Ct. Westchester County, July 9, 2024) (Justice James L. Hyer), communications sent on the Our Family Wizard application “which is intended to serve as a mode of communication between parties involved in high conflict custody matters.”
In custody disputes, divorce lawyers may be asked by clients something along the lines of “under what circumstances can I get sole custody?”
A mere difference in parenting styles (e.g., Mom believes in “no screens” and Dad is more lenient with “screen time”; Dad prepares a continental breakfast for the children whereas Mom throws frozen waffles in the toaster for the children) is unlikely to warrant an award (or discussion) of sole custody.
To be in sole custody territory, the conduct of one of the parents needs to be closer to what a reasonable person would consider extreme such that it puts a child’s physical and/or emotional wellbeing in patent jeopardy.
In L.W., following a hearing, the court found the conduct of the defendant-father to be so extreme as to warrant an award of sole physical and legal custody of the parties’ one child to the plaintiff-mother, together with an order of protection in favor of both the mother and the child.
The parties in L.W. had entered into a Parenting Agreement on Consent providing for joint legal custody of their son. The L.W. decision recounts in detail the testimony of each parent in a manner that illustrates why witness credibility is so impactful in domestic relations matters to the outcome of a case.
Of particular import regarding the defendant-father’s testimony was the following:
• When asked about a message sent to the mother stating “to think I care about anything with the court is a joke,” the father did not deny writing the message but said it was “taken out of context”;
• The father confirmed that he sent a message to the mother stating “please don’t think for one minute that you or the court have any relevance”;
• The father confirmed that he recalled a message to the mother stating “fuck you, if I don’t talk to [the child] I will call the troopers and CPS [Child Protective Services] again, your grave is dug, you have dug your own hole, it will be nice when we get to kick dirt on it and be done with you for good”; and
• The father confirmed that he sent a message to the mother stating “You are a disgusting human, if you in any way fuck with my getting away from you and your toxic life, I will walk into the superintendent’s office and destroy you, don’t you dare fuck with me [], one game from you and I will be unstoppable in my commitment to destroy you..
There is more, including that the father testified that in the three successive years after the parties settled custody of their son, he made complaints to CPS, all of which were determined to be unfounded. The mother testified that she had been contacted by CPS in 2022 and 2023 regarding allegations of sexual abuse by her against the child—all of which, she testified, were unfounded.
In finding that the father was not a credible witness, the court stated the following:
while defendant’s testimony at trial included a statement that he had not read the Parenting Agreement, this is refuted by defendant’s sworn statements within the parenting agreement, stipulation of settlement, and stipulation of settlement affidavits, wherein he confirmed that he had done so. As this testimony of defendant has been determined to be demonstrably false the court has determined it appropriate to invoke the doctrine of maxim falsus in uno falsus in omnibus, finding it appropriate to discredit or disbelieve other testimony given by defendant.
The court proceeded to deny the father’s claims that the mother had engaged in disorderly conduct, menacing in the third degree, and/or strangulation in the first degree. In contrast, the court found that the father’s “abusive Our Family Wizard messages” constituted harassment in the second degree. There is no doubt, having read the L.W. decision, that the “unrefuted evidence of multiple unfounded Child Protective Services complaints” made against the mother were part of the reason why the mother was granted sole custody.
Importantly, while the decision indicates that the child wanted to reside with the father, “The court believes that one of the most important factors to be considered when making a custody determination is to question which parent will be situated to instill in the subject child or children a strong sense of integrity, morals, and ethics. Considering the conduct of defendant, including a pattern of domestic violence and parental alienation against plaintiff by defendant, this court concludes that plaintiff is the parent better able to provide [the child] with a more stable home environment, where he will be safe and offered the opportunity to develop integrity, morals, and ethics” (emphasis added).
As to the father’s parenting time, the court modified the regular access schedule to a maximum of two visits per week, no longer than two hours each, to be supervised by a court-appointed therapeutic access supervisor. The father’s telephone access with the child was also terminated. The court did, however, find that the passage of four months of the father’s completion of therapeutic visitation would be “deemed a change in circumstances” permitting him to request a modification of the court’s decision and order.
The post-pandemic era is seeing an escalation of domestic violence on an alarming level. Whether it is the horrifying crossbow killings in the United Kingdom, the extreme deprivation of women’s rights in Afghanistan, a little known conflict in the Congo that is seeing a surge in sexual violence, or an overall increase in domestic violence in this country following the lockdown, domestic violence remains a scourge on society. If you are keeping up with the news, you may well be numb at this point. With that in mind, what can we do to stop this?
I wish I had the answers. One thing I do know, however, is this: the court’s decision in L.W. correctly determined that domestic violence comes in many forms. For that reason, I believe the decision merits attention and praise from divorce lawyers. As to the family involved, I hope they can find peace in the future, however difficult that may be to achieve.
"A Divorce Court’s Primer on Requesting Sole Custody," by Alan R. Feigenbaum, was published in the New York Law Journal on August 21, 2024.
Reprinted with permission from the August 21, 2024, edition of the New York Law Journal © 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.