Christina Brandt-Young, NYLAG Staff Attorney in the Matrimonial & Family Law Unit, won a unanimous reversal in the New York State Appellate Division, First Department, on behalf of an abused mother and her child. The case involved a custody dispute between two parents over their two-year-old son. The issue at hand was whether custody should be awarded to the father by default, despite the fact that the mother, NYLAG’s client, alleged serious domestic violence and showed reasonable excuse for her default.

The mother, Yamely, applied for an order of protection against her husband, Jose. Jose cross-petitioned for an order of protection and also for custody of their child, but then told his wife that they should settle their issues outside of court. Unaware of her husband’s custody petition and misled by his agreement to resolve the matter out of court, Yamely feared that a court proceeding would worsen the situation and dropped her case””“something that battered women commonly do,” according to Brandt-Young. She then failed to appear in court regarding either her own order of protection or Jose’s custody petition, and the Family Court Judge by default gave him custody of their son.

In Family Court, Yamely argued that her default should be vacated because she had never been served Jose’s papers. She also notified the court that Jose was not a fit father because of his long history of violence against her, alleging that he had punched her in the face and given her a black eye, hit her when she refused to provide her cell phone so he could look at her call log, and held a gun to her head when she came home later than he liked. “The Family Court judge was frustrated with the mother for filing for an order of protection and then changing her mind, not coming to court, misunderstanding the process, and for leaving the child with her parents in the Dominican Republic while dealing with the situation,” Brandt-Young explained. For this reason, the judge ruled that Yamely did not have a reasonable excuse for defaulting on the custody petition, maintaining custody of the boy to his father and denying reexamination of her case despite the fact that it had not been decided on its substance. This was unacceptable, according to Brandt-Young, as “there were serious allegations that the father was a batterer and there is a strong precedent for vacating defaults when children are concerned because the goal should be to protect them.”

The Appellate Division decided in favor of Yamely and sent the custody case back for a trial. “It was rewarding to see the child’s interests put at the center of the discussion, not the procedural mistakes the mother made,” said Brandt-Young. She also noted that the Appellate decision directs that the custody hearing take place in front of a different Family Court Judge, “which is a step the Appellate Division rarely takes.”

Sanctuary for Families Center for Battered Women’s Legal Services, represented the client in the Family Court case, and referred the case to NYLAG for the appeal.