Matter of A.H. v C.B.

[*1] Matter of A.H. v C.B. 2012 NY Slip Op 51091(U) Decided on June 14, 2012 Family Court, Queens County Richardson-Mendelson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 14, 2012
Family Court, Queens County

In the Matter of a Custody/Visitation Proceeding A.H., Petitioner,

against

C.B., Respondent.



V-22491-10/10A



Susan Gerner for the petitioner, AH,

Sandra C. Mattessich for the respondent, CB, and

Alissa L. Van Horn, attorney for the child.

Edwina G. Richardson-Mendelson, J.

This petition was preceded by orders of the Orange County, New York, Family Court and Supreme Court. On July 17, 2002, the Orange County Family Court granted the mother, C. B., and the father, A. H., joint legal custody of the subject child, N, with physical custody awarded to the mother and supervised visitation granted to the father. On September 26, 2003, Orange County Supreme Court issued a judgment of divorce which granted the mother custody of the child and did not address visitation between the father and child. The Supreme Court did not retain exclusive jurisdiction to modify the judgment.

The mother and the child have since moved to Queens County, New York and currently live here. This petition to modify the custody terms of the Supreme Court judgment of divorce was filed by the father on October 27, 2010. Pursuant to section 652 of the Family Court Act, this court has jurisdiction to determine the father's application to modify the custody terms of the Supreme Court judgment.

The petition seeks to modify the existing Supreme Court custody determination by granting custody to the father. In later testimony, the father indicated that he would, in fact, like an order granting the mother and him joint legal custody with physical custody to the mother, and resumption of the liberal visitation that the father was permitted following the divorce. The change of circumstances that the father alleged as the basis for his petition for modification is that N reported to him that the mother engaged in abusive behavior toward her, and that since this report, he has not been allowed to have visits with N and has not been able to contact N. [*2]

The court finds that the mother should retain legal and physical custody of N. The father is to continue to have supervised visitation but the terms of the visitation shall henceforth be strictly limited as described infra.

N has had a close relationship with both of her parents. After her parents divorced, she enjoyed being with her father for frequent visits and enjoyed being with her father's entire family, especially her paternal grandmother who sometimes babysat for her. From 2003 to 2010, despite the existing order for supervised visitation, the father had liberal, unsupervised, overnight visits with N which were agreed-to by the mother. The growing contentiousness between the parents, however, disturbed N and although she enjoyed visiting with her father, she did not enjoy the times when he raised the subject of court proceedings or made disparaging remarks about her mother.

N is quite devoted to her mother but she sees the mother as controlling and feels pressure from her mother to do very well in school.

The mother did, in fact, bear all the responsibility for N's education. The mother did all the work involved in researching potential elementary schools for N and for grades K through 5, she brought N to school and picked her up every day. The father did not contest the mother's assertion that he did not know the names of N's teachers and did not attend many parent-teacher conferences. At one point, the father posed an obstacle to N's opportunity to enter a prestigious bilingual elementary school in Manhattan by refusing to attend a meeting with the principal.

The mother also claimed that the father did not participate in taking care of N's health. At one time, when N needed an MRI after falling from a playground slide, he did not join the mother at the hospital. In another incident, he did not join the mother at the school infirmary or her pediatrician's office when N was hit by a stone in her schoolyard, and he did not participate in petitioning the Schools Chancellor to remove the schoolyard rocks that caused N's injury. According to the mother's testimony, in late 2009 N's pediatrician referred N to psychotherapy and the therapist asked the father to join in family therapy, but the father attended only one session. When asked at trial, the father could not recall the name of N's pediatrician or of her dentist.

The father claimed that N told him that the mother would call her "a jackass" and "stupid" and that in conversations with N, the mother would disparage the father and his family. The father testified that he began to be concerned that the mother was mistreating N through "verbal abuse" and by putting extreme pressure on N to do well in school. He alleged that the mother slapped N and although he admitted that she did not physically abuse N, he believed the mother abused her mentally and emotionally. N refuted the allegations that her mother abused her.

Among the several incidents of inappropriate behavior alleged by the parents against each other, three incidents figure most prominently in the recent developments in this custody dispute.

Journal and Videos

In 2009, the father gave N a journal and encouraged her to write in it about her negative [*3]experiences with her mother. He also videotaped N talking about her mother in a negative way. N later told the forensic evaluator that she was coerced by her father to make these videos and that she felt manipulated by her father to betray her mother. The forensic evaluator reported that N tearfully told him that she didn't want to make the video but that for a long time, her father told her she had to. On October 27, 2010, the father went to N's school and tried to show the principal the videotape and the journal in which N had written.The mother testified that on October 27, 2010 she received a telephone call from the school principal notifying her that the father had come to the school. She testified that she was concerned about what the father had done and because of her concern, she arranged for another parent to accompany N and her to the train that day.

Telephone Calls to the Attorney for the Child

The father admitted that during one of the three unsupervised visits that took place during the pendency of this petition, N did not want to go home to her mother and that he gave his cell phone to N and had her call her attorney to complain of abusive treatment by the mother.N later indicated that her father coerced her to fabricate the stories about her mother by saying that if she didn't do it, he would have a heart attack.

Unauthorized Extension of Visiting Time

On the July 4th weekend in 2010, the father was scheduled to have N at his home for a visit. On this particular weekend, N's cousins on her father's side were visiting from Florida and she had an opportunity to visit with them. N was scheduled to leave town about two weeks later, on July 19, to make her annual trip to Trinidad to visit with her maternal relatives. Instead of returning N to her mother on July 5th, as agreed, the father returned her on July 6th. The father testified that he unilaterally decided to keep N overtime because he didn't agree with the mother's decision that the child go home, because he wanted N to have more time with her cousins from Florida and because he wanted to extend his time with her in light of her impending extended trip to Trinidad. He said he left a message for the mother saying he was keeping their daughter longer than planned, and said that he didn't remember whether the mother consented.

In a separate incident, the mother agreed to a daytime visit on July 17, 2010, so that the father could see N one more time before she left for Trinidad. The father was to return N by 9:00 P.M. July 17, but the father did not return N until the following afternoon at 1:00.P.M., and despite the mother's phone calls to find out what was happening, the father did not respond until the mother's paramour contacted him.

When N returned from her trip to Trinidad, the mother sharply curtailed the father's visitation. The father then instituted these custody proceedings.

On consent of all the parties, psychologist Dr. James R. Gries was engaged to conduct a forensic examination of the parties and the child and was deemed by the court at trial to be an expert witness in the area of custody and visitation disputes. Dr. Gries testified about the forensic evaluation he conducted of the parents and the subject child.

Dr. Gries's impression of the father was that he is "intense" and that he demonstrated a [*4]somewhat dysregulated and unstable mood. He reported that the father "can rapidly become angry, intense, expansive, and at other times dysthymic and tearful when discussing various aspects of the case." (Forensic report, p.27) The court notes that the father exhibited the same tendencies during these proceedings. The father would occasionally cry and become overwrought, making loud outbursts in the courtroom requiring that he be cautioned not to interrupt the proceedings. Dr. Gries found that the father and N have a positive relationship, a strong bond, and exhibit great love for each other, but the father was fixated on his belief that N was being abused by the mother and was intent on proving it. N was clearly conflicted because of her father's behavior. Dr. Gries was permitted to view the video that the father made of N and based upon N's appearance of being anxious and uncomfortable in the video, Dr. Gries's opinion was that the father clearly coached N in making the video — and the journal — and that this was all unhealthy for N, especially in view of her existing emotional problems. Dr. Gries's opinion was that the father believed that making the video was an appropriate measure to save N from maltreatment by the mother and that, for this reason, the father believed he was justified in doing it. But the experience was traumatizing and disturbing to N. Dr. Gries reported that the father had little insight into the impact his actions would have on his daughter's emotional well-being.

Dr. Gries found no evidence of abuse by the mother. Dr. Gries reported that the "evidence strongly indicates that N was not abused by her mother." (Forensic report p. 34.) His impression of the mother was that she focused too much on N's scholastic endeavors and he recommended that N not be enrolled with Kumon, a tutoring company that the mother believes is a priority for N.

Dr. Gries described N as initially guarded during his sessions with her, but she eventually opened up. He found that her thoughts and opinions were balanced. She had both positive and negative feelings about both parents. She did not appear to have been coached for any of his sessions with her. He found her to be a very intelligent child with a superior vocabulary.

Dr. Gries recommended therapeutic supervised visitation for the father because of relationship problems. He advised against supervision by any relative of the father because it would put the relative in an awkward position in light of the father's moods. He believed that supervision by a person related to the child but not related to the father would be appropriate.

Motion for In-camera Interview of the Child

On March 12, 2012, the father made a motion for this court to conduct an in-camera interview with N. The mother and the attorney for the child objected to an in-camera interview. The court denied the father's motion because there was sufficient basis in the evidence for the court to make a determination without conducting an in-camera interview with the child. In addition, the court considered the mother's testimony that N doesn't trust therapists (she believes they play games to gain trust) and that N dislikes speaking about her personal issues. It is clear from the interim therapeutic supervised visitation reports that N is disturbed by the court proceedings of which she is aware, and that she is guarded about them. Dr. Gries reported, "N appears genuinely overwhelmed by various family-related stressors that seem to originate from her parental relationships." (Forensic report, p. 13) Compelling her against her will to meet with yet another professional about the personal issues in her life would cause N further stress. Because [*5]an in-camera interview is unnecessary for the purpose of deciding this case, the court found it unadvisable to further burden N.

Decision

An award of child custody must be based on the best interests of the child. Friederwitzer v. Friederwitzer, 55 NY2d 89. In determining the best interests, factors to be considered by the court include the quality of the home environment and the parental guidance that the custodial parent is able to provide for the child. The court should also consider the financial status of the parents, their ability to provide for the child's emotional and intellectual development, the child's preference, and the ability of the child to live with siblings. (see, Friederwitzer v. Friederwitzer, 55 NY2d 89; Eschbach v. Eschbach, 56 NY2d 167; LaBow v. LaBow, 59 NY2d 956; Matter of Louise E.S. v. Stephen S., 64 NY2d 946). A modification of a custody award requires a significant change of circumstances.

After conducting a full hearing, the court finds by a fair preponderance of the evidence that there has been a significant change in circumstances in that the father has abused the loosely structured visitation awarded to him under the existing custody order and has shown himself to be unable to understand the deleterious effects that his actions can have on his daughter's emotional well-being. Pursuant to Family Court Act §467, the change in circumstances is sufficient to support a modification of the terms of the existing custody order requiring that the father's visitation be more strictly supervised. Zeis v. Slater, 57 AD3d 793, 870 N.Y.S.2d 382 (2nd Dept. 2008.) Williams v. Williams, 66 AD3d 1149, 887 N.Y.S.2d 382 (3rd Dept. 2009.)

The court has considered the recommendations of the forensic evaluator. Although the court is not required to follow them where, in its judgment, the best interest of the child would be served otherwise (Chait v. Chait, 215 AD2d 238, 638 N.Y.S.2d 426 [1st Dept., 1995]), it has relied heavily upon them and has given them substantial weight in arriving at a decision.

The court finds that the mother is the more stable of the two parents and that she should retain legal and physical custody of N. She is N's caretaker in all ways and provides for the child's needs. She is motivated to ensure that N has a good education and she provides N with a safe and structured home environment. The father has exhibited extremely poor judgment and has shown a lack of interest in N's medical care, education, and other aspects of her life. He admitted that he does not pay child support. He is clearly obsessed with proving that N's mother abused her. This court has found no evidence of abuse by the mother. The father should continue to have supervised visitation but the terms of the visitation shall henceforth be strictly limited.

Although Dr. Gries recommended therapeutic supervised visitation, the court finds that because of N's distrust of mental health professionals, her interest would be better served by non-therapeutic supervision. Also, although Dr. Gries recommended that supervision be provided by a non-relative of the father, in this case, the court finds that N's interest would be best served by appointing as supervisor her paternal aunt, K. M., whom N loves, trusts and enjoys being with. [*6]

The terms of the father's visitation shall be as follows: 1) all of the father's visits are to be strictly supervised at all times by paternal aunt K. M., 2) the visits are to be limited to weekly daytime visits on Sundays from 10:00 A.M. to 6:00 P.M., 3) on Mother's Day weekends, the father's visit is to be on Saturday, 4) this weekly visitation is suspended during the limited period each summer when N visits her maternal relatives in Trinidad, 5) any expansion of visitation beyond one weekly visit on Sundays is to be with the written and signed consent of both parents clearly stating the start and end time of the expanded visitation, and 6) any period of expanded visitation beyond one weekly visit on Sundays is to be supervised by K. M. or another supervisor consented-to in advance by the mother in writing.

In light of his clear mental health disturbance and lack of insight into the impact his behavior has had on his daughter, the father shall engage in individual mental health treatment as a component (although not as a condition) of his visitation. Matter of Smith v. Dawn F.B., 88 AD3d 729, 930 N.Y.S.2d 75 (2nd Dept., 2011.)

Although Dr. Gries recommended counseling for the mother and N, this court will not order such counseling in light of N's dislike of treatment and distrust of mental health providers. The mother should decide whether such counseling should be pursued.

This constitutes the decision and order of the court.

__________________________________________

Edwina G. Richardson-Mendelson

Judge of the Family Court

Dated:Jamaica, New York

June 14, 2012