September 22, 2008

Good Faith Allegation of Abuse Cannot Be Held Against Accuser in Custody Proceeding

Hopefully this new law will help relieve some of the worries that come along with coming forth with evidence of abuse and domestic violence when in custody disputes.  This may not totally work to the child's best interest, but it is a step in the right direction.  This is something to keep an eye on, to see what ramifications this new law is having on cases.  If the outcome is desirable, this possibly something that other states should adopt.

Recently, in divorce and custody cases, the so-called parental alienation factor has become particularly prominent among the statutory criteria dealing with custody. The court decisions have described parental alienation in terms of failure to support the childs relationship with the non-custodial parent. This particular issue has carried a tremendous force in custody cases, and often was used to override the primary caregiver criterion. The significance of parental alienation can be explained as follows. If parental alienation is proven, it often has resulted in a change in custody despite the long-standing parenting arrangements that have been successful otherwise. The problem with claim of parental alienation is that in some cases judges have treated allegations of abuse and neglect that could not be proven as tantamount to false allegations maliciously brought to advance an agenda of alienation. This has placed concerned parents between the proverbial rock and the hard place. If they act in good faith to protect their child, they do so at risk of losing custody. If they dont act, they are abdicating their parental obligation to protect their child. The Legislature has acted in response to this problem and the Governor has signed into law an amendment to DRL § 240 to provide protection for litigating parents who report abuse or neglect in good faith and based on a reasonable belief that the allegation is legitimate. Domestic Relations Law § 240, subdivision 1 (a) was amended to provide that a good faith allegation of abuse cannot be held against the accuser in child custody proceedings. The amendment to the statute is intended to ensure that the accuser engaging in a good faith effort to protect or seek treatment for the child due to the child abuse or neglect cannot have these actions used against them when determining custody or visitation. If a parent makes a good faith allegation based on a reasonable belief which is supported by facts that the child is the victim of child abuse, child neglect, or the effects of domestic violence, and if that parent acts lawfully and in good faith in response to that reasonable belief to protect the child or seek treatment for the child, then that parent may not be deprived of custody, visitation or contact with the child, or restricted in custody, visitation or contact, based solely on that belief or the reasonable actions taken based on that belief. If an allegation that a child is abused is supported by a preponderance of the evidence, then the court must consider such evidence of abuse in determining the visitation arrangement that is in the best interest of the child, and the court may not place a child in the custody of a parent who presents a substantial risk of harm to that child. Laws of 2008, Ch 538, effective September 4, 2008.

Original Article:  Rochester Family Lawyer » Blog Archive » Good Faith Allegation of Abuse Cannot Be Held Against Accuser in Custody Proceeding

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