Cha-Kia B. v. Mustafa M.
| Decision Date | 11 December 2020 |
| Docket Number | O-12938-2018 |
| Citation | 136 N.Y.S.3d 865,70 Misc.3d 866 |
| Parties | In the Matter of a Family Offense Proceeding Under Article 8 of the Family Court Act, CHA-KIA B., Petitioner, v. MUSTAFA M., Respondent. |
| Court | New York County Court |
Mother was represented by Dana Kaufman and Allison Attanasio, Esqs. from Sanctuary for Families, 30 Wall Street, 8th Floor, New York, NY 10005, Tel. (212) 349-6009 x 350
Father was represented by Miechia L. Gulley, Esq., 26 Court St., Suite 1708, Brooklyn, NY 11242, Phone: (718) 530-0036
Child was represented by Leanna Duncan, Esq., The Children's Law Center, 44 Court St., Fl 11, Brooklyn, NY 11201, Phone: (646) 493-5591
This Court, having presided over the instant evidentiary Family Offense hearing for almost two years, having heard the parties and testifying witnesses, having examined the Petitions, motions and exhibits in evidence, and having perused counsels' written summations and arguments, hereby makes the following findings of fact deemed established by the evidence and reaches these conclusions of law.
Following a romantic relationship of several years after meeting on a New York City train in 2009, the Petitioner Cha-Kia B. (hereinafter "Mother") and Respondent Mustafa M. (hereinafter "Father") moved in and lived together in Brooklyn from November 2011 until May 17, 2018. They eventually got married in August 2015 and are the parents of one five-year old Child. Even before formalizing their union, Mother suffered from episodes of verbal, financial and physical abuse at the hands of the Father commencing in 2012. While there was at least one incident of domestic abuse per year, the severity and frequency of Father's attacks against Mother intensified in the year 2018, when their relationship ended.
As a result, by Petition dated May 17, 2018, the Mother commenced the instant Family Offense proceeding against Father pursuant to Family Court Act Article 8, alleging in her amended Petition that Father had committed the family offenses of attempted assault in the third degree, menacing, harassment in the second degree, sexual misconduct, forcible touching, strangulation and criminal obstruction of breathing or blood circulation, and alleging aggravating circumstances in seeking a long-term Order of Protection. Mother alleged that Father has engaged in a course of conduct and pattern of behavior which have caused increasing fear and injuries to both her and their Child. Based upon Mother's allegations, on May 17, 2018, the Family Court (Ross, J.H.O.) immediately issued a Temporary Order of Protection excluding the Father from the residence and directing him, among other things, to stay away from the Mother and the Child, her home and place of employment, refrain from harassing, assaulting, stalking, intimidating or committing any criminal offense against them, and to refrain from communicating with her.
Reflexively, by Petition dated May 22, 2018, the Father also commenced a Family Offense proceeding against the Mother, claiming that she has hit and slapped him and suffers from mental issues. Although Father initially obtained a Temporary Order of Protection (Waldeier, R.) against her, this Court vacated that Temporary Order of Protection on June 15, 2018. The parties have also filed cross Petitions for Custody, which are currently sub judice, resulting in Temporary Orders of Custody in Mother's favor with Father having overnight visitation with the Child on alternate weekends, vacations and holidays. This visitation was granted over the objection of the Attorney for the Child who initially preferred Father to only have supervised visitation. On at least two occasions, Mother had successfully applied for Writs of Habeas Corpus as a result of Father wrongfully retaining the Child without her permission and to her exclusion. This Court has continuously extended the full stay-away Temporary Orders of Protection against the Father. Since there was no agreement to settle the cross-Family Offense proceedings, the matter proceeded to a lengthy and contentious trial which spanned almost two years, and which required the appointment of three different County Law 18-b counsel for the Father.
At trial, the Mother testified credibly, consistently and emotionally during her case in chief to several episodes of domestic violence at the hands of Father which happened throughout the years of their relationship, several of which occurred in the presence of the infant Child. Even before they married, in the Fall of 2014, Mother testified about an incident during an argument between the parties in the hallway of their apartment wherein Father grabbed her by her hair, pulled "chunks of hair" and yanked her back and forth in a fit of anger — a type of assault which became the Father's modus operandi. As a result of this assault, the Mother described that her scalp was so tender that she was unable to comb it for five or six days, suffered from pain in her neck and her hair started to fall out. Further, the Mother was "embarrassed," "ashamed," and felt as if the father "didn't love [her]." However, Mother explained that Father "apologized" and "assured" her that such an incident would never happen again, and she believed him.
The Mother next testified to a particularly terrifying incident which occurred in March 2016, when, during an argument between the parties, the Father charged into the bedroom, wrapped his hands around her neck, applied pressure and pushed her onto the ground with his hand still around her neck. In particular, the Mother emotionally detailed that:
It felt like my throat was going to cave in and I was trying to do whatever I could to remove his fingers from around my neck. And I remember being just dizzy and not being able to breathe ... I felt as though he was going to kill me. I was afraid, very scared. Yeah, very—and very disappointed. And I felt alone ... I had a hard time breathing once he let go. I was seeing like stars. I was lightheaded. And his—his—the fingers' prints of his hands w[ere] actually around my neck.
Ultimately, Father let go of Mother when the infant Child, who had been asleep, woke up crying, and she went to retrieve him. She testified that the Father followed her, came from behind to grab her hair and pulled her down to the floor, while she was holding the four-month old Child. She testified that because of this incident her scalp hurt and that her hair was falling out both for about one week. Further, "discolored" marks from Father's fingerprints remained on the side of her neck for approximately a day.
Another incident happened in June 2016, the Mother testified that during another argument at their house, the Father called her a "bitch," came up from behind and grabbed her arms so hard that he left marks and bruises in her extremities, which injuries were visible that day by her friend and U.S. Postal Service co-worker, Krystal Victor-Gammon. Ms. Victor-Gammon corroborated this incident by testifying that she heard the parties having a serious dispute while she was on the telephone with Mother, heard a "slap," the phone got disconnected and she was scared that the Mother was hurt, so she called her back repeatedly. The witness further testified that the Mother called her back 45 minutes later sounding scared and crying, and that she picked her up after the incident and observed the red grabbing marks on the underside of Mother's arm, which she photographed. The Mother credibly testified that these incidents of domestic violence made her feel embarrassed and ashamed, and she was afraid of seeking medical attention or police intervention in fear that Father's behavior would only worsen or escalate.
Just two months elapsed after the June incident, when during a "misunderstanding" in their automobile in August 2016, Mother stated that the Father yelled at her, called her a "bitch," pointed his fingers at her face, poked her and repeatedly spat at her, while the Child was sleeping on the back seat. When she spat back at him, he reached out and forcefully punched her in the nose causing "blood [to] just start[ ] gushing like a fountain from [her] nose" and fall down her face into her blouse. When the Mother exited the car and went to the back door to retrieve the Child from the backseat to go to a nearby hospital, Mother testified that the Father unexpectedly drove the car off down the street. She proceeded to state that he then stopped the car and began running after her, leaving their nine-month old Child in the car by himself. After the parties returned home, Father forced the Mother to have "make up" sexual relations with him, despite her opposition and protestations. The next day, Mother sought medical attention for her nose at Interfaith Hospital and suffered from a swollen, bloody and red nose for about one week. This incident and the extent of her injuries were also corroborated by Ms. Victor-Gammon in her testimony.
The next year in August 2017, Mother testified to another heinous attack when, during another argument at their home, Father called her a "dyke-bitch," "bitch" and physically hurt her by pulling her hair, hitting her in the back, biting her shoulder and arm, digging his nails into her breast and her thighs and punching her in the arm. On that occasion, the Mother testified that her then two-year old Child was sleeping, woke up and intervened as Father was hitting and spitting on her, and jumped on top of the Mother to protect her and yelled "no, no, no" to the Father. Ms. Victor-Gammon testified that the Mother informed her of this incident where the Child intervened saying "no, stop, don't hit mommy." Into evidence were admitted photographs taken by Mother herself showing the injuries resulting from this assault, including scratches and bruises to her breast, thighs and arms which did not heal until weeks later as corroborated by Ms. Victor-Gammon, which saw them herself.
Although there was apparently...
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