Cole v. Cole, 35 N.Y.3d 1012 (2020)

In Cole v. Cole, 35 N.Y.3d 1012 (2020), the New York Court of Appeals reviewed a mother’s challenge to a custody award favoring the father under Domestic Relations Law § 240(1)(a). The law mandates that if a party has alleged domestic violence in a sworn pleading and that allegation is proven by a preponderance of the evidence, the court must consider its effect on the best interests of the child. The mother argued that the trial court failed to address her sworn family-offense petition and related testimony of alleged abuse. The Court, however, held that the mother had not preserved the issue below, so the trial court never made the requisite findings. Because the foundation required to trigger § 240(1)(a) was not established, the Court affirmed the Appellate Division’s judgment affirming the custody award. The decision underscores that the statutory duty to consider domestic violence under § 240(1)(a) will only apply when properly preserved and litigated; meaning parties and courts must explicitly address whether the allegation was in a sworn document, whether the evidence proves it by a preponderance of the evidence, and how it factors into the child’s best-interests analysis.

Topics

• Domestic and intimate partner violence

Geographical location

• North America
• United States
• New York

Keywords

• best interest of the child
• child welfare
• child custody
• family law

Year

• 2020

External URL

• Cole v. Cole, 35 N.Y.3d 1012 (2020)

Court

• New York Court of Appeals

Type

• Domestic Case Law

Jurisdiction

• New York