Monday, May 09, 2005

FindLaw's Writ - Grossman: A New York High Court Decision on Domestic Violence

FindLaw's Writ - Grossman: A New York High Court Decision on Domestic Violence

Now that the Court of Appeals has brought NY into the Twenty first Century in its landmark decision Nicholson v. Scoppetta, 3 N.Y.3d 357, 787 N.Y.S.2d 196, (2004 ), We are beginning to see the effect in recent case law decisions interpreting the decision. So far things are looking good. In Nicholson, the court in answering a number of certified questions posed by the US Court of Appeals 2d circuit decided that the fact that a child was exposed to inter parental domestic violence did not any longer lead to the conclusion that the child was neglected by the victim parent without serious further findings of neglect.

That decision has stopped the Draconian practice of tearing children away from (usually) their mothers after the women has already been beaten by the father and even after she has taken steps to quell the abuse and the potential neglect where there is no further proof of neglect on the part of that victim/parent. The case appears to be the right decision in most cases. No longer are trial counsel in the Hobsian position of having to tell a victimized spouse that if she sought to report of otherwise tell of her abuse she risked her custody of her children. No one has to be frightened to expose domestic violence for fear of losing their custody.

However the decision does have important ramifications beyond the apparent humanitarian ones. Given the standard of the best interest of the child, how does a judge now decide in these cases whether to remove a child or let the abused parent remain in custody of a child she may not be able to protect. (See, In re Eryck N., 791 N.Y.S.2d 857, 858+, 2005 N.Y. Slip Op.02704 (3 Dept 2005) (NO. 94788).

Obviously the court is now going to need forensics in this type of case and cannot any longer rely on the presumption that where there is Domestic Violence (DV) there is per se neglect. The issue is then one of how far can these forensic psychologists go in their testimony. Of course the petitioner (usually CPS or Social Services) is going to put heavy stock into the testimony of the shrink. This however should fall short of a final decision of what is in the best interest of the child. Counsel defending the witness must be sure the court reserves to itself the final issue of best interest. ( See PANEL CLARIFIES NEW STANDARD FOR NEGLECT UNDER 'NICHOLSON', 4/12/2005 N.Y. L.J. 1, col. 3, 1, col. 3 {2005}) Further it is now a defense that if the child had no further harm to his body or psyche from witnessing the conduct that that would remit against removal. In cases where the danger was "imminent" the requirements are more stringent than where the contact was viewed directly by the child(ren).

Obviously that is going to require counsel to retain his own forensic or to encourage the mother who has not yet lost her child to get the child to a Psychologist of her (or her Lawyers) choosing. There is an excellent treatment at "LAW AND CHILDREN: "Nicholson': Defining 'Neglected Child,' Taking Child From Parents, 3/14/2005 N.Y. L.J. 3, col. 1, 3, col. 1 (2005) .

For now that's all folks . Want to reach me? Leave a comment here or write me at

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