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What constitutes spousal abuse, and does it have a bearing on who gets custody in a separation?

Elmira, NY |

The husband has physically abused the wife in the past, and continues to emotionally and verbally abuse her. The husband kicked her out this weekend because he suspected she was having an affair because she was talking to and texting a male co-worker. Nothing has happened between them other than this. They were both advised to seek emergency custody, and when the wife submitted her complaint, she was strongly urged by the court clerk to hotline the husband. She did, was interviewed by a male operator, who took the complaint and passed it on, but not without telling her that so far nothing she told him constituted abuse but showed bad parenting instead. This man said that it wasn't relevant as long as the children didn't witness the abuse. They were in the house and heard her crying.

Attorney Answers 5


  1. She should file for emergency custody and possibly and Order of Protection if she is in fear for her safety or the safety of the children. I am hoping that she took the children with her when she left? If not, and if there are no court orders granting the father custody, she has just as much right to take the children as the husband. A history of domestic violence, especially if the abuse extended to the children or was witnessed by the children, can have an impact on the Judge's decision regarding custody. You should contact a local family/matrimonial attorney to discuss the specifics of your situation.


  2. Spousal abuse if there is an order of protection granted after a trial is something the courts have to consider when making a custody order. Short of that anything else that goes on or went on is something for the judge to consider as part of the entire matter.

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  3. I agree with the other attorneys who have answered and urged you to consider emergency measures. It is also true that for purposes of determining child custody, bad behavior that occurs when the children are not present may not be considered by the court unless it can be shown that it indirectly affected the children in a negative way, which can often be hard to "prove" without expert testimony and other costly litigation tactics. Nevertheless, I suggest you consult with a local attorney to review all your rights, options and obligations before you take any further action.

    You can find contact information here on Avvo for an attorney who can help you. Good luck!

    Ms. Brown may be reached at 718-878-6886 during regular business hours, or anytime by email at: marykatherinebrown@hotmail.com. All of Ms. Brown’s responses to questions posted on AVVO are intended as general information based upon the facts stated in the question, and are provided for educational purposes of the public, not any specific individual, and her response to the question above is not legal advice and it does not create an attorney-client relationship. Ms. Brown is licensed to practice law in New York. If you would like to obtain specific legal advice about this issue, you must contact an attorney who is licensed to practice law in your state.


  4. Your situation really calls for an in person consultation with a matrimonial attorney. Advice over the web is no substitute for what you need. The steps you take early on in this process can have far reaching impacts and should be undertaken with the experienced guidance an attorney can provide.

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  5. Spousal abuse absolutely has a bearing on custody. The Wife needs to obtain advice from a lawyer; not a hotline.

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