In the past, issues of domestic violence were not considered when the court determined custody or visitation. So, theoretically you could have an abusive spouse get unsupervised visitation or even custody of children, whom he/she routinely abused.

Pursuant to the 1996 Amendments of Domestic Relations Law §240 (1) the court is required to consider effects of domestic violence in families upon the best interests of the children in determining custody and visitation.

In order to have such incidents of domestic violence considered, you will need to be able to specifically plead such in a sworn statement. You will need to be able to specify date, time, place and the nature of the incident; and you will need to be able to corroborate same. The allegations of domestic violence must be proven by a preponderance of the evidence. Therefore, you should have as much proof as possible to back up what you are alleging.

Incidents of domestic violence, whether visited upon the wife, husband or children, often go unreported. Since the court is now forced to consider incidents of domestic violence when determining custody and visitation, it is incumbent upon the party who is abused to have such incidents documented.

It is also incumbent upon the parent of a child who has been abused to document such incidents. In order to document the incidents, you should call the police, get the name of the officers who appear, ask them to file a report, follow-up and request a copy of the report from the police precinct. Store the reports in a safe place or out of the home, so that you will have them when you need them.