## Facts

- The parents had a prolonged, volatile relationship involving repeated heated arguments, physical violence, police intervention, and Family Court orders of protection.
- After a serious altercation in 1999, the parents separated.
- The mother filed a family offense proceeding and a custody petition for their teenage daughter, Andrea; the father cross-petitioned for custody.
- Family Court appointed a law guardian, ordered a mental health study consisting of brief social-worker interviews, conducted a custody hearing, and interviewed Andrea in camera.
- Family Court awarded custody to the father and dismissed the mother’s custody petition.
- In separate orders, Family Court sustained the mother’s family offense petitions and directed the father to enter and complete a domestic-violence program.
- Andrea expressed a clear preference to live with the father, downplayed or denied the father’s abuse of the mother, and was described as closely bonded to him.
- Evidence showed the father was a batterer toward the mother, and Andrea had witnessed at least some of the abuse, though the father had not directly mistreated Andrea.
- The mother appealed the custody award to the father.

## Issues

1. Whether Family Court erred by awarding custody to a parent with a substantiated history of domestic violence against the other parent without first ordering comprehensive psychological/forensic evaluations of the parents and child.
2. How a mature child’s stated custodial preference should be weighed when the child witnessed domestic violence yet denies it and aligns with the abusive parent.

## Decision

- The Appellate Division reversed the order awarding custody to the father.
- The court remitted the matter for a new custody hearing to occur after an in-depth forensic psychological examination of the parents and the child.
- The court held that, given the substantiated domestic violence and the child’s denial/alignment, the Family Court’s record was inadequate to support a best-interests custody award to the father.

## Legal Principles

- The child’s best interests govern custody determinations, and substantiated domestic violence must be treated as a serious factor in that analysis.
- Domestic violence directed at one parent can materially affect a child’s welfare when the child is exposed to it, even if the child is not directly abused.
- A mature child’s custodial preference is relevant but not controlling, particularly where exposure to domestic violence may distort the child’s expressed wishes.
- When custody is sought by a parent with a documented history of domestic violence and the child has witnessed that violence, a superficial mental-health assessment may be insufficient; comprehensive forensic psychological evaluations may be required to assess risks to the child’s emotional and physical well-being before awarding custody.

## Conclusion

The appellate court required a more developed psychological record before custody could be awarded to a father found to have committed serious domestic violence against the mother, because the child’s strong preference for the father and denial of the violence raised concerns that could not be resolved without thorough forensic evaluations and a renewed best-interests hearing.


Wissink v. Wissink, 301 A.D.2d 36, 749 N.Y.S.2d 550 (N.Y. App. Div. 2d Dep’t 2002)