A father asked a court to vacate an order of protection issued against the father and an order granting sole legal and physical custody of the father’s child to the child’s grandmother. According to the records of the case, the child’s mother left the child when the child was barely a month old. Until the time the orders were issued, the mother’s whereabouts are unknown. The child was left at the care of the father and the child’s paternal grandmother.
According to a New York Injury Lawyer, an action for child custody and for acts of domestic violence was filed by the child’s grandmother asking the court to grant her custody of the child. The request was granted, after the court considered credible testimony and evidence presented by the grandmother, as well as the father’s sister. According to their testimonies, the father is an alcoholic who drinks alcohol excessively from early morning through each evening. The witnesses also said the father is aggressive and threatening toward the child. The testimony also pointed out an instance when the father, who has already consumed significant amounts of alcohol, drove a vehicle with the child. The witnesses said the father is unable to properly care for the child with respect to food and clothing and housing due to his excessive and persistent use of alcohol.
During the inquest proceedings of the case, the law guardian for the child appeared but the father failed to make an appearance nor made any explanation with the court as to why he failed to appear. The father’s counsel, however, asked for the matter to be adjourned because his client could not attend the proceeding because he had been scheduled to start an outpatient program for alcoholic abuse rehabilitation at a hospital. The request for adjournment was denied at the objection of the grandmother and the child’s law guardian. They both asserted that further adjournment of the case is prejudicial and is detrimental to the child.
A Nassau County Personal Injury Lawyer said that based on the credible testimony and evidence, the Court found that it was in the best interest of the child for sole legal and physical custody to be awarded to the grandmother. The Court also found that the grandmother had established her burden of proof as to the family offense petition establishing that the father had committed harassment as against the grandmother and the child.
On the motion to vacate filed by the father, the court said that although courts have a liberal policy with respect to vacating defaults with respect to issues of custody, it does not apply the same liberality when it comes to family offense petitions and protection orders. The court explained that this is because the family law was created to attempt to stop violence, end family disruption and obtain protection.
The court pointed out that in this case, the issues behind the family offense and the custody petitions are inextricably intertwined. A Queens Personal Injury Lawyer said they have the same facts that the father was placing his child and the grandmother at risk and that he committed certain enumerated family offenses due to his excessive and pervasive abuse of alcohol. Because of the similarity of operative facts in the two cases, the court consolidated the two for evidence and testimony.
The court then concluded that if the custody order is vacated, it would also require a vacatur of the protection order. In this case, the court denied the motion to vacate.
The court explained that the father never gave any explanation why his non-appearance during the inquest proceedings was excusable. The court noted that the father gave conflicting explanations on his absence but all explanations are without merit.
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