Family Law Corner: O’Reilly Didn’t Factor This In

Fox News’ Anchor, Bill O’Reilly, who regularly asserts that the crime rates in African-American communities are due to the “disintegration of the African-American family,” just lost “residential custody” of his children to his ex-wife, Maureen McPhilmy.  The website Gawker obtained transcripts of the Court’s proceeding, wherein O’Reilly’s eldest daughter (now 17 years old) reported to a court-appointed forensic examiner that she witnessed O’Reilly choking McPhilmy and dragging her down a staircase by her neck during the parties’ marriage.  Even after the parties divorced, O’Reilly proceeded to:

•    Have McPhilmy’s police detective boyfriend investigated by Internal Affairs
•    Put the “neutral” custody therapist on his payroll to serve as a full-time nanny and perform “virtually all of [his] parental duties,” according to a Nassau County Supreme Court Judge
•    Attempt to have McPhilmy excommunicated from the Catholic church, while at the same time seeking an annulment of their 15-year marriage.

In the State of New York (as in California) the court must consider the effect of domestic violence in making a determination of custody pursuant to New York Domestic Relations Law §240.  In California, Family Code §3020 states that it is the public policy of California that perpetrating child abuse or domestic violence in a household where a child resides is detrimental to the child for purposes of determining custody.  Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child.  See Family Code §3044.

However, it does not appear that the New York court relied on the allegations of domestic violence when it awarded sole residential custody to McPhilmy, but rather it relied upon the stated wishes of the parties’ teenage children, which is also how California would approach custody involving older children.  See Anonymous 2011-1 v. Anonymous 2011-2 (2015) and Family Code §3042. Unlike California, New York finds it against public policy to award joint custody to parents who are antagonistic toward one another.  See Irizarry v. Irizarry (2014) 115 AD3d 913; see also Braiman v. Braiman (1978) 44 NY 2d 584 (joint custody “could enhance familial chaos”).  Perhaps O’Reilly could enlighten his viewers about the disintegration of one particular upper class, white New York family.