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Wissink v. Wissink

Appellate Division of the Supreme Court of the State of New York
749 N.Y.S.2d 550, 301 AD2d 36 (2002)
ELI5:

Rule of Law:

When a child has witnessed domestic violence perpetrated by one parent against the other and expresses a strong preference to live with the abuser, a court must order a comprehensive psychological evaluation before awarding custody to ensure the decision is in the child's best interest.


Facts:

  • A mother and father, parents of a teenage daughter named Andrea, had a tumultuous relationship marked by numerous incidents of the father's physical violence against the mother.
  • The father's documented abuse included hitting, kicking, choking, and on one occasion, holding a knife to the mother’s throat while Andrea sat on her lap.
  • During one altercation over tax papers, the father enlisted Andrea's assistance, telling her to 'hold [the mother’s] nose so she can’t breathe.'
  • Despite the abuse directed at the mother, the father never physically mistreated Andrea and maintained a very close, loving, and involved relationship with her.
  • Andrea provided for materially by her father, who she called her 'princess' and 'best girl.'
  • Andrea expressed a clear and unequivocal preference to live with her father.
  • In court proceedings, Andrea downplayed her father’s culpability and denied the existence of the domestic violence that she had witnessed.

Procedural Posture:

  • The mother initiated a family offense proceeding and a proceeding for custody of her daughter, Andrea, in the Family Court.
  • The father filed a cross-petition seeking custody of Andrea.
  • The Family Court assigned a law guardian for the child and ordered a mental health study, which the appellate court later found to be deficient.
  • After a hearing, the Family Court awarded sole custody of Andrea to the father.
  • In a separate order, the Family Court sustained the mother’s family offense petitions and ordered the father to complete a domestic violence program.
  • The mother (appellant) appealed the Family Court's order awarding custody to the father (appellee) to the intermediate appellate court.

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Issue:

Does a trial court err in awarding custody of a child to a parent with a documented history of domestic violence against the other parent, based largely on the child's preference, without first ordering a comprehensive psychological evaluation?


Opinions:

Majority - S. Miller, J.

Yes. A trial court errs by awarding custody to a parent with a history of domestic violence without ordering a comprehensive psychological evaluation, especially when the child expresses a preference for the abuser. New York's Domestic Relations Law § 240(1) requires a court to meaningfully consider the effect of domestic violence upon the best interest of the child. The trial court's consideration in this case was 'sorely inadequate' because the child’s preference for the abuser, coupled with her denial of the abuse she witnessed, is a significant red flag requiring deeper inquiry. The court reasoned that a child living in a home with domestic violence becomes a 'secondary victim' who is likely to suffer psychological injury and learn the dangerous lesson that abusive behavior is acceptable. Therefore, a comprehensive forensic evaluation is mandatory in such circumstances to properly assess the psychological dynamics and determine what is truly in the child's best interest.



Analysis:

This decision reinforces that a child's stated preference in a custody case is not determinative, particularly in the complex context of domestic violence. It establishes a heightened duty for family courts to investigate the potential psychological harm to a child who has witnessed spousal abuse, even if the child was not a direct victim. By mandating comprehensive psychological evaluations in these specific circumstances, the ruling creates a procedural safeguard, shifting the focus from the child's stated wishes to a deeper, forensic analysis of the child's actual best interest and the potential for long-term psychological damage.

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