M.R. v J.M.

[*1] M.R. v J.M. 2006 NY Slip Op 52167(U) [13 Misc 3d 1238(A)] Decided on November 15, 2006 Supreme Court, New York County Visitacion-Lewis, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through November 24, 2006; it will not be published in the printed Official Reports.

Decided on November 15, 2006
Supreme Court, New York County

M.R., Plaintiff,

against

J.M., Defendant.



109418/06

Laura Visitacion-Lewis, J.

Plaintiff father files an order to show cause seeking an order: (a) granting him liberal visitation and telephone access with the parties' daughter, S.R.; (b) appointing a law guardian to represent S.R., with fees to be shared equally by the parties; and (c) directing that the parties and the law guardian submit a list of names of psychologists or psychiatrists to the court, so that the court may choose a mental health professional who will conduct joint therapy sessions with the plaintiff and S.R., with the fees to be shared equally by the parties, or, alternatively, appointing a forensic evaluator to conduct an examination of the parties and S.R., with the fees to be shared equally by the parties.

Pro se defendant mother files an affidavit in opposition. Brian Zimmerman, Esq., an attorney retained by S.R., who will turn 17 in January, 2007, files an affirmation in response to, and seeking dismissal of, plaintiff's order to show cause, and cross-moves for counsel fees in event that dismissal is denied.

Counsel for plaintiff files an affirmation and memorandum of law in reply and in opposition to Mr. Zimmerman's affirmation and cross-motion, and defendant files a supplemental affidavit in opposition to plaintiff's applications and in support of the positions taken by S.R.'s attorney.[FN1]

The court having heard oral argument from counsel for plaintiff, pro se defendant, and counsel for S.R. on September 14, 2006; and having held a Lincoln hearing with S.R. and her attorney on October 4, 2006; and having reviewed the submissions of plaintiff, defendant, and counsel for S.R., together with the exhibits annexed thereto, concludes that S.R.'s best interests [*2]will not be served by reviving this litigation.[FN2]

The court notes that S.R., who presented during the Lincoln hearing as an extremely mature, intelligent, well-adjusted, and self-possessed young woman qualities confirmed by her excellent academic performance at **** High School and her lead acting roles with the school's drama club continues to clearly and unequivocally express a desire not to see the plaintiff. As recently as March, 2006, S.R. became extremely distressed upon learning that plaintiff had come, uninvited and unannounced, to a school theater production in which she played the lead role. Reluctant to perform with him in the audience, she asked school officials to request that he leave. And, upon learning that plaintiff had filed the instant application, S.R. both telephoned and wrote to him, providing the first contact between them in approximately eight years, to entreat him not to revive this litigation. S.R.'s letter, dated September 8, 2006, which is attached as an exhibit to her response and cross-motion, powerfully expresses, in her own words, the degree to which she opposes plaintiff's efforts to do so:

Dear M.,

I called you two weeks ago to ask you to drop your case against

me and I am disappointed in your decision not to. I am hurt by your

decision, I am hurt by your disrespect, and I am also hurt by your inept

parenting abilities.

Forcing me to see you is not the way to get what you want. You

tell me you have tried every option and even if you had, that does not in

any way justify trying to utilize the legal system against me. Do you

really want to force me to see you? Is that how you want our relationship

to begin again? Your court actions are pitting me against you even more

than I already was. You are being forceful, disrespectful, and inconsiderate.

Not only are you suddenly intruding into my life, but you are intruding into

my life during my junior year. Maybe you are unaware, but not only am I

taking three AP courses, but I have to take the SATs and the SAT II's. I

don't have time to meet with three different psychiatrists a week. I don't

have time to deal with the emotional burden of a court case. This year

is going to be the busiest of my life and will determine my future. If you [*3]

cared about my future, you wouldn't have done this. Or maybe, you could

have tried a little harder when the time was ripe. I am not shallow enough

to accept a bag of gifts and then come see you. That just doesn't cut it,

M.

I am trying for the last time to get you to remove this court case. You

are ruining the chances of ever having a relationship with me. I am almost

seventeen and I simply will not see someone who thinks that forcing me to

see them is ethical. I am mature enough to make my own decision based on

past circumstances and current actions. Your decision to continue this court

case is just something else to add to my list of things that make me not want to

see you. I hope you remember that on the fourteenth. I hope you will keep that

in your mind when you suddenly try to see me again.

Your daughter,

S.R.

[signed]

On the basis of the documented history and S.R.'s current position, as unequivocally expressed by her, personally and through the attorney whom she has retained, the court concludes that S.R.'s decision not to see her father is the product of her own free will.[FN3] In the circumstances, the court finds no basis to compel this nearly 17-year-old young woman to see the plaintiff, or to direct that she attend therapy with him or once again be subjected to forensic evaluations and litigation. Rather, in light of S.R.'s age and maturity, the court accords great weight to her wishes, and denies plaintiff's motion in its entirety (see Koppenhoeffer v Koppenhoefer, 159 AD2d 113, 117 [2d Dept 1990] ["While the express wishes of children are not controlling, they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful"]; Sassower-Berlin v Berlin, 31 AD3d 771 [2d Dept 2006] [holding that forensic examinations should not be ordered where children opposed both resumption of visitation with non-custodial parent and submitting to additional forensic examinations]).

For all of these reasons, it is hereby

ORDERED, that plaintiff's application for visitation and telephone access with the parties' daughter is denied; and it is further

ORDERED, that plaintiff's related applications for joint therapy and the appointment of a law guardian and forensic evaluator are denied; and it is further

ORDERED, that this matter be, and it hereby is, dismissed with prejudice._______________________________

LAURA VISITACION-LEWIS, J.S.C. [*4] Footnotes

Footnote 1: The court rejects plaintiff's claim that defendant's supplemental submission is improperly filed and should not be accepted. Defendant's supplemental submission responds to plaintiff's newly raised argument that a hearing should be held and to his newly cited case law, and, in addition, is properly filed in response to the motion by S.R.'s attorney.

Footnote 2: The exhibits provide numerous documents, including decisions and orders of four prior judges in plaintiff's previous litigation seeking visitation with then eight-year-old S.R. That litigation necessitated the appointment of a guardian ad litem for S.R., a neutral family therapist, and two forensic evaluators. By letter dated December 9, 1998, from plaintiff's then attorney, Miriam M. Robinson, Esq., to Justice Bransten, plaintiff withdrew his application with an acknowledgment that the contentious litigation was causing S.R. pain and trauma, and indicated that he would not make any further applications seeking contact or visitation with her. Plaintiff nevertheless attempted to revive the litigation a few months later. By decision and order dated April 30, 1999, Justice Tolub dismissed plaintiff's petition, stating that his "change of heart . . . smacks of harassment."

Footnote 3:In this regard, the court notes that S.R.'s written expressions of disinclination to see the plaintiff and once again be pulled into a contentious litigation, are consistent with what she cogently expressed in person during the Lincoln hearing.