Case Status Update: Child Custody & Visitation Settlement Reached, Child Neglect Case Disposed.
Child Custody/ Visitation Settlement, Child Neglect portion disposed: Last week, Attorney Shaffer reached a settlement agreement in a case that began when our client, a native and citizen of Algeria, (hereinafter, Client "X"), was arrested for alleged domestic violence while he was waiting for his Naturalization Application to be adjudicated.
X entered the U.S. in October of 2010 as a Permanent Resident after winning the Diversity Lottery. A few years later, he married his wife, (hereinafter, "Y"), a native and citizen of Colombia. Then, in July 2015, X & Y welcomed their daughter into the world.
Unfortunately, even prior to the baby's birth, X and Y were having marital problems. Then, in April 2016, X and Y got into an argument and Y called the cops on X, alleging that he hit her in front of the couple's daughter, who was still less than 1 year old. X was arrested and charged with 2nd Degree Assault, Endangering the Welfare of a Child, Harassment and Forcible Touching. There were no witnesses or evidence, other than Y's statement. Attorney Shapiro was thus able to reach a favorable plea agreement with the District Attorney's office. X pled guilty to disorderly conduct, a violation, and a 2-Year Order of Protection was issued in Y's favor.
Despite the positive outcome in the criminal case, Y was subsequently notified that he was being charged with neglect of the couple's daughter in Family Court. In New York, "child neglect" includes an act of domestic violence committed in the presence of a child under the age of 18. Since Y alleged that X struck her in front of their daughter, the Administration of Child Services (ACS) filed the case against X in Family Court. Y concurrently filed a petition for custody of their daughter.
Cases without physical evidence or witnesses are always tough as the judge has to make a decision based strictly on the testimony of the parties involved. The decision on whether to proceed to trial or to accept a finding of neglect against you without any admission of guilt is not an easy decision. Essentially, you can never guarantee that your client will win in a "he said, she said" battle, and the consequences of losing after a hearing on the merits are far more severe than allowing the court to enter a finding of neglect against you without admitting wrongdoing and without any of the facts or testimony being entered on the record.
So, counsel advised X that based on the totality of the circumstances, noting that this was X's second arrest for alleged domestic violence (although the first charges were dismissed in X's favor) and Y kept her story fairly consistent in all written accounts, it was not in X's best interest to proceed to trial. X agreed and accepted the court's finding against him.
While this was all taking place, X successfully completed hi court-ordered anger-management counseling and parenting classes and participated in supervised visitation at ACS with his daughter twice a week. So, when we returned to court to reach a conclusion on the custody and visitation matters, the judge agreed to allow for unsupervised visitation and shared legal custody (which allows X to be notified about important things going on in his daughter's life and give input on things like education and medical decisions). ACS was dismissed from the case and the Neglect portion of the case was closed.
X was thrilled to be able to continue his relationship with his daughter and start moving on with his life to a better future. X is now waiting to reapply for his Naturalization, which was denied due to the arrest last year. Any arrest, regardless of the reason, can derail a meritorious Naturalization Applicant, as it can cut off your 5 years of good moral character, even if the charges against you are eventually dropped or the case is decided in your favor, and even if the offense that you are arrested for does not in itself disqualify you from obtaining your citizenship. X is confident that with this incident behind him, he is back on track to obtaining his 5 years good moral character and is looking forward to reapplying to become a United States Citizen.
(*please note that all identification information has been removed in order to protect our clients' privacy and in order to fully comply with attorney advertising rules and regulations*)