Pinocchio female.jpgLast month, recognizing Domestic Violence Month, we reviewed the Second Department decision in Costigan v. Renner  which affirmed the granting of custody to a father because of domestic violence by the mother.  Indeed, since 1996, consideration of domestic violence has been mandated in custody and visitation cases.  Section 240(1) of the Domestic Relations Law provides in part:

Where either party to an action concerning custody of or a right to visitation with a child alleges in a sworn petition or complaint or sworn answer, cross-petition, counterclaim or other sworn responsive pleading that the other party has committed an act of domestic violence against the party making the allegation or a family or household member of either party, as such family or household member is defined in article eight of the family court act, and such allegations are proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the best interests of the child, together with such other facts and circumstances as the court deems relevant in making a direction pursuant to this section and state on the record how such findings, facts and circumstances factored into the direction.

Two recent decisions suggest that the Legislature should also give weight to the making of false allegations of domestic violence.

In Williams, the Third Department on November 4, 2010 affirmed a Broome County award of sole custody to the father of a 9-year-old daughter and 6-year-old son where the mother’s allegations of domestic violence were discredited.

Similarly, on October 21, 2010, in Jeker, the Third Department affirmed a modification of a prior joint custody award and granted sole custody to the father, substantially on the basis of the mother’s elaborate plan to falsely accuse the father of physical assaults upon her.  The record was devoid of evidence to support the mother’s claims of abuse; rather the evidence demonstrated that she had lied under oath.

Indeed, in 2008, the Second Department in Mohen recognized the substantial effects that false allegations of spousal violence may have on parenting.  The court noted:

[E]vidence of false allegations of physical abuse which interfere with parental rights, is so inconsistent with the best interests of the child that it raises, by itself, a strong probability that the offending party is unfit to act as a custodial parent.

In Mohen, the court reversed an order of custody to the mother where the mother had made numerous false charges against the father, including four accusations of physical abuse by the father against the mother. The court specifically noted that as a result of the accusations, a temporary order of protection was issued against the father that prevented contact between the father and the child for approximately one month.

In Maine, the custody statutes recognize that such willful misuse of court remedies to gain tactical advantages may tend to show a lessened ability and willingness of the accusing parent to cooperate and work with the other parent in shared responsibilities for the children.  Accordingly such misuse of the courts is to be considered by the court in making a custodial award.

The seriousness of spousal abuse, and domestic violence in general, cannot be understated.  Breaking the inter-generational cycle of abuse and protecting children from exposure to violence is a vital goal of the judicial process.  However, numbing true claims of domestic of violence by tolerating false claims without sanction does a substantial disservice to all victims of domestic violence.  Without giving equal consideration in custody matters to the making false claims simply invites a race to Family Court and calls to the police.  D.R.L. §240(1) should be amended to emphasize the damage to the family and the judicial process caused by willful false accusations.