Custody

If a parent committed domestic violence:
It is possible that a parent who has committed domestic violence will get custody or visitation if the judge determines that it is in the “best interest of the child” to do so.

Judges generally presume that it is in the child’s best interest to see both parents regularly, so they favor providing both parents with some form of custody or visitation.¹ Courts will generally only deny visitation when there is substantial evidence that it would be harmful to your child.

New York state law requires that the judge consider the effects of domestic violence when making a custody determination.  The domestic violence does not need to involve the child to be a factor.  If you can prove in court that the other parent has committed domestic violence against you, the child, or any other family or household member, the judge must consider the effect of such domestic violence on the best interests of the child.  The judge is not supposed to place a child in the custody of a parent who presents a “substantial risk of harm” to that child.  Furthermore, the judge must specifically explain how the domestic violence factored into his/her custody or visitation decision.¹ However, since domestic violence is only one factor considered by the judge, it is possible that even an abusive parent will be given visitation or custody.

If the other parent has abused your child or if you believe that your child is not safe with the other parent for another reason, you can request that the visitation be supervised.  The judge may award supervised visitation if the judge believes that it is in the best interest of your child.  See Should I start a court case to ask for supervised visitation? for more information about the types of supervised visitation generally available.

If a parent committed murder or sexual assault:

• If a parent has been convicted of 1st or 2nd degree murder of a parent, legal custodian, legal guardian, sibling, half-sibling, or step-sibling of any child who is the subject of the custody case, that parent cannot get custody or visitation.² 
   
• If a parent has been convicted of a sexual offense that resulted in the birth of the child, the judge must assume that it is not in the child’s best interests for that parent to have custody or visitation. However, the parent can try to prove that the judge should change his/her mind. The sexual offenses include: 1st or 2nd degree rape, 1st degree course of sexual conduct against a child, predatory sexual assault, or predatory sexual assault against a child.³
   
• Additionally, if a parent has been convicted a felony sex offense where the victim was the child, the judge must assume that it is not in the child’s best interests for that parent to have custody or unsupervised visitation. However, the parent can try to prove that the judge should change his/her mind.⁴ 

Note: There can be exceptions made if the child or his/her legal guardian consents to the visitation or custody or if the person convicted of murder can prove that s/he was the victim of domestic violence and killed the abuser, etc.)⁵

¹ NY Dom Rel § 240(1)(a); see also NYS Unified Court System website
² NY Dom Rel § 240(1–c)(a); NY Fam Ct § 1085
³ NY Dom Rel § 240(1–c)(b)(A)
⁴ NY Dom Rel § 240(1–c)(b)(B); NY Pen § 70.80
⁵ NY Dom Rel § 240(1–c)(c)