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ALTHOUGH A CHILD WAS PRESENT IN THE HOME WHEN FATHER STRUCK HIS PREGNANT GIRLFRIEND, THERE WAS NO EVIDENCE THE CHILD SAW OR HEARD THE INCIDENT AND NO EVIDENCE THE CHILD WAS UPSET BY THE INCIDENT; THE NEGLECT AND DERIVATIVE NEGLECT (OF THE THEN UNBORN CHILD) FINDINGS REVERSED (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence did not support the findings that father neglected a child and derivatively neglected a child who was not yet born at the time of the incident. The findings were based on an incident in which father struck his girlfriend, who was pregnant, while a child, Jolie M., was in the house. However, the evidence did not demonstrate Jolie M. witnessed or heard the incident:

The testimony of the father’s girlfriend and an ACS child protective specialist established that the father struck his girlfriend in the mouth while Jolie M. was in her nearby bedroom down the hallway. However, the testimony also indicated that Jolie M. did not see the incident or any resulting injuries, did not hear the father’s girlfriend’s plea for the father to stop hitting her, and was otherwise unaware that a domestic violence incident, as opposed to a mere verbal argument, was occurring … . Moreover, no evidence was offered to suggest that Jolie M. was frightened or upset by the incident, and the testimony established that, when recounting the events in a subsequent interview, the child presented a calm demeanor, interacted normally and comfortably with the father, and reportedly felt safe with the father … . In the absence of evidence that Jolie M.’s physical, mental, or emotional condition was impaired or in danger of becoming impaired by the father’s acts of violence against his girlfriend, the court’s finding that the father neglected that child is not supported by a preponderance of the evidence … .

Consequently, the Family Court’s further finding that the father derivatively neglected Jose M. based on the same domestic violence incident was not supported by a preponderance of the evidence … . Matter of Jose M. (Jose M.), 2025 NY Slip Op 04094, Second Dept 7-9-25

Practice Point: To prove neglect based upon domestic violence there must be proof the child saw or heard the incident and was upset by it.

 

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