Yes, you definitely have every right to petition for physical custody, and if you can show that your spouse either lied, or can at least show a lack of evidence for cause for the domestic violence complaint, you stand a good chance of the court siding with you.
Because your kids currently live with you, the court will be predisposed to protect the status quo unless your spouse can show good cause to disrupt it.
The court will consider various factors in determining the best interest of your children.
While having two fighting parents won’t make the judge happy, if you can present a calm demeanor and show that you provide a safe and stable home, while your spouse can’t, then the domestic violence arrest may not stand in your way.
Call the attorneys at Zelenitz, Shapiro & D’Agostino today at 718-599-1111 for a free consultation.