Matter of Stephen S. v Linda E.
Annotate this CaseDecided on June 4, 2010
Family Court, Suffolk County
In the Matter of a Custody/Visitation Proceeding Stephen S., Petitioner,
against
Linda E., Respondent.
xx/10
For petitioner-father: Erin Kowtna, Esq. and Karen Golden, Esq.
For respondent-mother: Bridget Fleming, Esq. and Marc Roberts, Esq.
Attorney for child: Karen Caggiano, Esq.
Barbara Lynaugh, J.
By petition dated 1/6/09, petitioner-father Stephen S. seeks to modify an order of this court, dated 10/20/08, which, on consent of the parties, granted respondent-mother Linda .E custody of the parties' only child John Henry E. ("Jack"), born 5/2/05, with specified visitation to father. Father now seeks custody of Jack, alleging that mother has made false allegations that father is sexually and physically abusing the child.
The parties have brought various other applications. By petition dated 7/20/09, father seeks an order restraining mother from bringing Jack to any new therapist. By petition dated 7/23/09, mother seeks an order finding father in violation of the 10/20/08 order, alleging the use of corporal punishment on the child and an order directing that father have only supervised visitation with the child. Mother brought a similar modification petition on 12/8/08 and withdrew it on 1/8/09. Father also brought a contempt petition, dated 7/23/09, alleging mother's wilful denial of visitation and seeking other relief, including a referral to the District Attorney's office for falsely reporting an incident.
On 7/22/09, the attorney for the child submitted her own petition, seeking supervised visitation for father. Given the fact that the attorney for the child is now recommending that father be awarded sole custody of Jack and mother's visitation be supervised, this petition is deemed withdrawn.
Having heard the evidence offered at the hearing, having conducted an in camera interview with the child and his two half siblings, ages 12 and 18, who reside with father, having reviewed the post trial memoranda of counsel as well as the voluminous forensic evidence, [*2]having reviewed the position of the attorney for the child, and with thorough and careful consideration, the court makes the following findings and conclusions.
The parties were never married. They resided together, prior to the birth of the subject child, from early 2003 through November 2004. The parties resided with father's child Kendall, now age 12, who joined the household at the end of 2003. Mother was instrumental in helping father gain custody of Kendall. The parties ended their relationship in November 2004, and father and Kendall moved out. Mother was pregnant with Jack at the time.
Jack was born 5/2/05, and the parties have been litigating practically since this child was a newborn. The litigation, from early on, has centered on father's efforts to have reasonable access to Jack and mother's efforts to restrict father's access. At first, mother would only allow father to visit Jack at her home. Then mother set conditions with which father had to comply to exercise visitation. Father, who admittedly has a significant history of substance abuse at a time prior to the parties' relationship, has had to undergo drug screening and anger management counseling in order to see his son.
The initial stipulation, providing for visitation at mother's home, became unworkable because of the extremely high level of conflict between the parties, a reality that unfortunately remains to this day. In October 2005, the parties modified this initial stipulation and agreed to visitation under the auspices of the court supervised visitation program. This arrangement did not last long because mother found it to be "a terrible place."
In January 2006, the parties arranged for father to have supervised visitation with Jack at father's home with Jack's nanny (mother's employee) acting as a supervisor. Throughout these early years, mother insisted that father have only supervised visitation with Jack. Mother felt that father's past history of substance abuse and his alleged anger management issues posed a danger to the child. These were realities that were in existence when the parties decided to have a child together and when mother made significant efforts to assist father in obtaining custody of his then five-year-old daughter Kendall in 2003. Although father did not feel his visitation needed to be supervised, he agreed to mother's conditions because he wanted access to his son.
Eventually, after two full years of supervised visitation, father found these arrangements to be too restrictive. In the Fall of 2007, through counsel, father sought unsupervised visitation with Jack. Mother refused. In March 2008, father brought a proceeding seeking unsupervised visits. Mother opposed the application. An attorney for the child was appointed, as was a forensic evaluator, Barbara Burkhardt, PhD. The parties eventually reached a stipulation on October 20, 2008. Pursuant to this stipulation, father was to have unsupervised visitation for the very first time with his then three-year-old son.
The stipulation provided father with, inter alia, unsupervised visitation for a few hours on Tuesdays and Thursdays and overnight visitation on alternate weekends. The agreement called for the parents to coordinate their parenting of Jack with the involvement of Rebecca DiSunno, [*3]the therapist mother had Jack seeing since he was two years old, and Joanna Comasca, a parent coordinator.
On December 1, 2008, less than six weeks after father's unsupervised visitation began, mother made the first of several allegations that father had sexually abused Jack during visitation. Father was visited by a Suffolk County deputy sheriff and advised that mother had alleged that father touched Jack's penis and licked his bottom. Father denied the allegations.
Mother alleged that this incident occurred during a Thanksgiving visit with father's extended family in Texas. Mother was concerned about Jack's behavior during and after the visit (mother insisted on going with Jack to Texas and staying in a nearby hotel.) After what mother now concedes was inappropriate questioning of the child upon their return to New York, Jack allegedly made some sexualized statements to mother. This caused mother to have a "moment of realization" when "it all came together," and led mother to conclude that father had been sexually abusing Jack. On 12/1/08, mother took photographs of the child's genitalia and called the police to report that Jack had been sexually abused by his father. This led to an investigation by Child Protective Services (CPS) — the first of many — which ultimately failed to find any credible evidence of abuse or neglect.
A week after mother reported this incident to the police, she sought an order of protection from this court to keep father away from Jack, alleging sexual abuse. A temporary order was granted restricting father to supervised visitation while the CPS investigation was pending. Mother also brought an order to show cause on the return date of the family offense proceeding seeking to terminate all visitation, again alleging sexual abuse.
On 12/17/08, the results of the court ordered investigation pursuant to FCA §1034 were received. Mother's allegations of sexual abuse were unsubstantiated. The temporary order of protection was vacated, and father's unsupervised visitation was restored. On 1/6/09, father filed the instant petition seeking custody of Jack. On 1/8/09, facing a possible change of custody, mother withdrew her applications seeking to restrict father's access to the child.
With the custody modification application before the court, an updated forensic evaluation with Dr. Burkhardt was ordered on 1/21/09. It was about this time that mother hired a private investigator, retired detective Richard Lia — at a cost of some $17,000 — to investigate what was happening during father's visitation with Jack. Mother also had secret recording devices ("nanny cams") installed throughout her home during this period of time in the hopes of capturing Jack's alleged behaviors and disclosures to corroborate mother's firmly held belief that Jack was still being sexually abused by his father.
In late March 2009, Jack came home from visitation with his father. Later that night, after Jack took a shower, mother observed that the child's penis was reddened along the underside and very sore. Mother again took photographs. After more questioning by mother, Jack purportedly disclosed that his father had hurt his penis. Father denied any injury to the child [*4]and stated that Jack did not complain of discomfort to his penis while the child was in his care. Mother felt that this was the most significant sign of sexual injury to the child, but she decided not to report the incident and not to seek any medical attention for Jack for fear that doing so would have an adverse impact on her case in court.
In late April 2009, Jack came home from a visit with his father and began scratching his bottom. Mother again questioned the child and then brought Jack into the living room. This was the location of one of the nanny cams, and mother was hopeful that, with questioning, the child would make a disclosure against father. Mother gave a recording of this incident to her attorney, who presented it to the Sex Crimes Unit of the Suffolk County District Attorney's office.
Another investigation ensued, along with another report to CPS. Father denied the allegations and was unaware of any injury to the child. Jack was interviewed and physically examined at the Child Advocacy Center, the agency utilized by Suffolk County to investigate allegations of sexual abuse. The District Attorney failed to bring any criminal charges against father. Once again, CPS failed to find any credible evidence of abuse or neglect.
On 5/8/09, mother brought an application before this court based on the above incident again asking for supervised visitation and seeking the appointment of a validator. The request for supervised visitation was denied. On 5/14/09, the court appointed Dr. Eileen Treacy to validate mother's allegations of sexual abuse.
In July 2009, while the validation process was under way, Jack came home with a reddened bottom with scratch marks. After questioning by mother, the child allegedly made some statements indicating that his father had injured him. Mother again took photographs of the child's naked bottom. Father denied any injury to the child and was unaware of Jack's reddened bottom. Father explained that the child had been scratching himself at the beach.
Mother brought the child to see Bobbi Kaufman, an art therapist who holds herself out to be an expert of some kind in child sexual abuse. Mother learned of Ms. Kaufman at the Child Advocacy Center. Rebecca DiSunno, the child's regular therapist was on vacation, and mother felt this was another emergency. After speaking to mother and Jack, Ms. Kaufman, concluded that Jack had been injured by his father and contacted CPS. Ms. Kaufman never contacted father because she claimed to be fearful of him.
At trial, the court found that Ms. Kaufman, as an art therapist, was not qualified to give any kind of an expert opinion in that she is not licensed to make or render diagnoses or prognoses. Her testimony was widely speculative, conclusory, and clearly biased against father. Ms. Kaufman's testimony lacked any measure of reliability.
In any event, Ms. Kaufman's report to CPS led to this child being interviewed and examined for a third time. Upon the conclusion of its investigation, CPS again failed to find any credible evidence of abuse or neglect. [*5]
Dr. Eileen Treacy, well known throughout the state as a leading expert in the area of child sexual abuse, was appointed by the court to validate mother's repeated allegations of sexual abuse. Dr. Treacy completed a comprehensive investigation, including several interviews and cognitive testing of Jack, and interviews with mother and father. After the extensive testing and interviews, Dr Treacy concluded that Jack's behavior is not consistent with that of a sexually abused child.
Dr. Treacy viewed the photographs that mother had taken of the alleged injuries to Jack's genitalia and bottom. She viewed the DVD's from mother's nanny cams and noted that mother's questioning of Jack about his visits with his father were very leading and suggestive. Dr. Treacy advised mother to stop questioning Jack, noting that Jack is "very suggestible." She further found that Jack is not a "reliable reporter." Dr. Treacy noted that what mother has been interpreting as behavioral indications of sexual abuse are merely normative development in a child of Jack's age. She found Jack to be a child suffering from anxiety because of the heightened level of conflict between his parents.
Dr. Barbara Burkhardt was first appointed to conduct a forensic evaluation of the parties in May 2008, during the visitation modification proceeding, and again in February 2009 during the instant custody modification proceeding. Dr. Burkhardt testified at length and was deemed an expert in clinical psychology. She conducted extensive clinical testing and interviews with both parties.
Dr. Burkhardt found mother to be primarily focused on father's parenting; mother did not understand why she had to be evaluated herself. Mother was found to be very over-protective of Jack and very anxious about father's ability to care for the child. Dr. Burkhardt noted that mother's own anxieties caused her to process information and react to situations on an emotional and not a cognitive basis. She further found that mother views normally occurring behaviors in her child as pathological and in need of professional intervention.
Dr. Burkhardt noted that it not recommended to have a young child in therapy unless it is for the purpose of treating a specific trauma or diagnosis. She indicated that this makes the child believe there is something wrong with him and to view himself as the source of all problems. Jack, who described himself as "a very sick child" at the age of three, has been in therapy since the age of two. Father noted that during Jack's early preschool years, the child attended therapy more than he attended school. Dr. Burkhardt indicated that Jack did not attend enough school to get properly acclimated and learn how to take direction, and that this led to his behavioral problems in school.
Dr. Burkhardt found that mother continues to view father as a danger to Jack and that mother is very distrustful of father. She is anxious about being a mother and overreacts to quirky childhood behaviors. Due to mother's distrust of father and her "hyper-vigilant over-reactivity," Dr. Burkhardt concluded that this case remains at "high risk" for continued false allegations of abuse against father. [*6]
A similar conclusion was reached by mother's own expert, Dr. Stephen Honor, a board certified forensic and clinical neuropsychologist.Dr. Honor found that mother had an "adjustment disorder," which he described as a "high level of emotionality regarding a particular set of circumstances." Dr. Honor, who did not interview father, noted that mother "does have the belief that her son is not safe with the father. She believes that her child is being abused in some way." Dr. Honor concluded that mother may indeed make "another report which may turn out to be untrue," i.e., another false allegation of sexual abuse.
The court found it interesting that mother had failed to disclose to Dr. Honor the results — or even the existence — of the second and third CPS investigations. He reached the above conclusion after mother had only made him aware of the results of the first investigation. Equally significant was mother's failure to disclose to Dr. Honor the presence of the secret video cameras she had installed in her home. Dr. Honor found the use of these cameras to be "questionable if the purpose was to question the child about physical and sexual abuse." If the cameras were installed for the "purpose of gathering evidence" against father (their expressed purpose), Dr. Honor explained, "this becomes not normal."
Dr. Honor concluded that mother's persistence in believing that father had abused Jack was "not reasonable" given the negative findings of the validator. He further noted that should mother continue to pursue this belief, that this could be "damaging" to Jack.
On November 10, 2009, mother brought Jack to school and alerted his teacher Maria Goncalves that she had had a difficult morning with Jack regarding the issue of visitation with father which was to occur after school that day. When father came to the school, Jack did not want to leave with his father. Ms. Goncalves called mother, mother spoke to Jack, and Jack then made some statements to his teacher about his father hurting him. The school social worker called CPS, and another investigation began. Father denied the allegations. Once again, CPS failed to find any credible evidence of abuse or neglect.
To date, there have been a total of four investigations by Child Protective Services which have failed to substantiate any of mother's allegations that Jack has been either sexually or physically abused by his father. A video recording of the child's purported disclosures and alleged behavioral manifestations of abuse have been presented to the Sex Crimes Unit of the Suffolk County District Attorney's Office, and no criminal proceedings were commenced against father.
The entire constellation of allegations has been thoroughly examined and evaluated by a leading expert in the field of child sexual abuse validation, and Jack's behavior has been found to be inconsistent with that of a sexually abused child. Mother has taken the extreme measures of hiring a private investigator to uncover father's alleged acts of abuse, and installing hidden video cameras in her home to record Jack's purported disclosures and alleged behavioral manifestations of abuse. Neither the private investigator nor the recordings have substantiated mother's allegations. [*7]
The overwhelming weight of the evidence in this matter leads to the inescapable conclusion that mother has knowingly and repeatedly made false allegations of sexual and physical abuse against father in an attempt to disrupt the relationship Jack has with his father.
The court appointed forensic evaluator has found, after psychological testing and extensive interviews, that mother is at high risk of making false allegation of abuse. Mother's own expert has found that that mother's persistence in believing that Jack had been abused by his father was "not reasonable" given the negative findings of the validator. He further noted that should mother continue to pursue this belief, that this could be "damaging" to Jack.
It is clear that mother continues to pursue her misguided belief that Jack has been abused by his father. This is most evident in mother's continued refusal to withdraw her petition seeking to have father's visitation supervised. She believes father is a danger to the child, even with all the forensic and investigatory evidence to the contrary.
Mother's credibility throughout this proceeding was questionable at best. Her demeanor on the stand was often tentative, as if attempting to search for the correct answers. Mother often appeared to the court to be emotionally fragile and unstable. Mother was frequently hyper-anxious and melodramatic, causing the court to question the validity of many of mother's perceptions and conclusions.
The most pressing example of this, of course, is mother's perception that father is somehow a danger to Jack. She bases most of this conclusion on factors which preceded the child's birth, such as father's history of substance abuse, factors which were all in existence when mother decided to have a child with the man she now claims is unfit to parent. These factors also existed at the time mother assisted father in obtaining custody of then five-year-old Kendall.
The court also questions the validity of mother's perceptions and conclusions as to the cause of Jack's many behavioral disturbances. The child appeared quite normal, calm, and communicative during the in camera interview and while leaving the courthouse that day with his father. Mother paints quite a different picture. She reports a child who exhibits frequent uncontrollable temper tantrums, nail biting, bed wetting, and stuttering while in her care, and acts of physical aggression both at home and in school. Father reports a few tantrums while Jack is in his care, but indicates that they are quickly and easily controlled. Mother reports that Jack frequently has these tantrums when it is time to visit father. Father has not had this experience when picking up Jack for visitation after school.
Mother feels that Jack's behaviors are directly related to visitation with his father. Mother indicates that when father's visitation was interrupted, i.e., whenever another report was made to CPS, Jack's behavioral problems abated. The court sees a child who is caught in the midst of a high degree of conflict between his parents. This is a child who is being profoundly affected by his mother's own extreme level of anxiety regarding the child's continued relationship with his father. This anxiety was repeatedly demonstrated throughout mother's testimony. Unfortunately, [*8]mother is completely lacking in insight into how her own anxieties are dramatically and adversely impacting this very young child.
In her defense, mother argues that she was not directly responsible for the numerous CPS investigations in that she did not initiate any of the reports herself. This argument is of no moment. It is disingenuous at best; at worst, it demonstrates a total lack of insight into how her own actions have contributed to the investigations that followed. It further demonstrates mother's total lack of appreciation of the tremendous disruptions she has caused in Jack's life.
Mother admitted that she has questioned the child inappropriately on many occasions.This was verified by Dr. Treacy when she viewed the recordings mother provided to her. Mother's questioning of Jack was described as "leading and suggestive." Dr. Burkhardt indicated that mother's anxiousness "sets up the child" to give mother the answers she's looking for. Jack's statements, made after this inappropriate questioning by his mother, led to many of the investigations. Mother continues to question the child whenever he returns home from a visit with his father. Maternal grandmother Mikaela H. testified that mother has undressed Jack several times after visitation with father to look for evidence of abuse.
Mother contacted the police on 12/1/08 to report her allegations that Jack had been sexually abused. Her protestations to the contrary notwithstanding, mother had to have known that the police would be contacting CPS. The second CPS investigation occurred in late April 2009 when mother gave a recording of Jack to her attorney who then presented it to the Suffolk County Sex Crimes Unit. This subjected the child to further interviews and examinations. It was mother's own actions that set the stage for this investigation.
The third instance of CPS involvement took place in July 2009 when mother brought Jack to Bobbi Kaufman because he had a red bottom with scratch marks on it. Mother had learned of Bobbi Kaufman, a self-proclaimed — but unqualified — expert in child sexual abuse, after the investigation by the Sex Crimes Unit. By this time, mother acknowledged that she had done much research into CPS and sexual abuse investigations. Not wanting to be faulted for calling CPS herself, mother brought the child to someone she knew to be a mandated reporter.
The fourth CPS investigation took place in November 2009. The report was made by the school social worker after Jack reported that he did not want to visit with his father because his father had hurt him. When she brought Jack to school that day, mother alerted Jack's teacher of the difficult morning she had had with Jack regarding the visitation with his father which was to take place later that day. This may have been mother's most indirect involvement in initiating an investigation, but she set the wheels in motion by relaying to Jack's teacher that there was a problem with visitation between Jack and his father.
Father is not without his own issues. He has a past history of significant drug addiction, and the court has given this a great deal of consideration. Father describes himself during this period of his life as having been "extremely toxic in my mind." He used cocaine, heroin, and [*9]"crystal meth" in large quantities for a substantial amount of time. His drug addiction was so severe that it caused the termination of his parental rights to child Paolo in 1997 due to father's admitted inability to care for the child.
After struggling with his addiction for many years, father eventually completed a treatment program. He has remained drug free for over seven years. Father was convicted of driving under the influence in November 2005, and attended Alcoholics Anonymous following this incident. There is no indication that father is an alcoholic.
As evidence of his successful rehabilitation, father has had custody of daughters Brittany, age 18, and Kendall, age 12, for many years. He has had Kendall since the age of 5. Father has maintained a loving and nurturing home for them, and the girls are both safe, healthy, and thriving in his care. They report no concerns about father's alleged "anger management" issues. Brittany and Kendall are each closely bonded to their brother Jack and support father's application for custody. The girls have been profoundly impacted by the repeated investigations to which they have been subjected each time mother has made a new allegation of abuse against father.
"In determining whether a custody agreement should be modified, the paramount issue before the court is whether, under the totality of the circumstances, a modification of custody is in the best interest of the children." Johnson v. Johnson, 309 AD2d 750, 765 NYS2d 271 (2nd Dept., 2003).
Moreover, "where parents enter into an agreement concerning custody it will not be set aside unless there is a sufficient change of circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interests of the children.'" Smoczkiewicz v. Smoczkiewicz, 2 AD3d 705, 770 NYS2d 101 (2nd Dept., 2003), citing Gaudette v. Gaudette, 262 AD2d 804, 691 NYS2d 681 (3rd Dept., 1999).
In the case at bar, mother has knowingly and repeatedly made false allegations of sexual and physical abuse against father in an attempt to disrupt the relationship Jack has with his father. Through these continuing fabricated allegations of abuse, mother has exhibited a persistent and unyielding pattern of behavior that is not only emotionally damaging to this young child but tremendously disruptive to the relationship Jack shares with his father.
Mother's malicious, disruptive, and harmful behavior and her irrational attempt to sabotage Jack's relationship with his father serve as a sufficient change of circumstances so as to warrant an examination into whether continued custody with mother would be in Jack's best interests.
As with any determination of custody, the sole concern of the court is which resolution will best serve the interests of the subject child by promoting the child's welfare, happiness, and optimum development. Eschbach v. Eschbach, 56 NY2d 167, 451 NYS2d 658 (1982); [*10]Friederwitzer v Friederwitzer, 55 NY2d 89, 447 NYS2d 893 (1982); Nehra v. Ulhar, 43 NY2d 242, 401 NYS2d 168 (1977). Among the factors to be considered in ascertaining the child's best interests are:
(1) the demonstrated parenting ability and relative fitness of the parties;
(2) the love, affection, and nurturing given by each party to the child, the emotional bond between the child and each party, and the willingness and ability of each party to put the child's needs ahead of his/her own;
(3) the length of time the child has lived in a stable and satisfactory environment, the desirability of maintaining the current custodial residence, and the stability of the proposed custodial residence;
(4) the ability of each party to provide for the child's emotional, intellectual, and moral development;
(5) the financial resources available to each party and the ability of each party to provide the child with food, clothing, housing, and medical care;
(6) the individual needs and expressed desires of the child and the degree to which the custodial determination would either continue or interrupt the various elements of the child's day-to-day life;
(7) the willingness and ability of each party to facilitate and encourage a close and optimum relationship between the child and the other party; and
(8) any other factor deemed relevant to a particular custody dispute; e.g., false allegations of abuse and its impact on the child.
Both parties are possessed of superior financial resources. Neither party needs to work and each is available for this child on a full-time basis. Each has a home environment which is more than adequate to meet Jack's needs. While mother has provided a physically stabile home environment for Jack, she has failed this child in many of the other categories. Mother's own anxieties have rendered her unable — or unwilling — to promote a healthy relationship between Jack and his father. This is a child at high risk of emotional damage should he continue in the custody of his mother.
The overwhelming factor to be considered herein is mother's firm belief that father is somehow a danger to Jack and all of its resultant ramifications. It serves as an insidious and pervasive sickness that has sadly permeated every aspect of this child's life. Mother claims to be motivated solely by her desire to protect her child from harm. She refuses to see just how much harm she has caused this child herself. Mother is totally devoid of any insight into how her own [*11]actions have victimized her child. Mother's actions have repeatedly disrupted this child's life and have interfered with his relationship with his father.
Should Jack remain in the custody of his mother, his relationship with his father will be destroyed. There will be more false allegations of sexual abuse. Jack will again be subjected to examinations and evaluations. He will again be confronted by mother's irrational and disturbed belief that his father is some kind of a monster.
Mother's repeated false allegations of sexual and physical abuse, the tremendous amount of disruption they have brought into the life of this young child, mother's persistent belief that father is a danger to this child despite all the evidence to the contrary, and mother's total lack of insight into the damage she has caused are acts so inconsistent with the bests interests of this child as to render mother an unfit parent.Honeywell v. Honeywell, 39 AD3d 857, 835 NYS2d 327 (2nd Dept., 2007); Gordon v. Green, 7 AD3d 528, 776 NYS2d 73 (2nd Dept., 2004); Lattuca v. Natale-Lattuca, 293 AD2d , 740 NYS2d (3rd Dept., 2002); Carl J.B. v. Dorothy T., 186 AD2d , 589 NYS2d 53 (2nd Dept., 1992).
Given the totality of the circumstances herein, the court finds that it would be in Jack's best interests for custody to be transferred to his father. This is the only way to truly protect this child and to ensure his emotional safety and well being.
The court further finds that mother's actions make it absolutely necessary to restrict her access to Jack to that which can take place in a supervised setting. "Supervised visitation is not considered a deprivation of meaningful access to a child." Abranko v. Vargas, 26 AD3d 490, 810 NYS2d 509 (2nd Dept., 2006); Graham v. White, 16 AD3d 583, 790 NYS2d 876 (2nd Dept., 2005). While such visitation is restrictive, it is absolutely necessary under the circumstances herein to safeguard this child's emotional health.
Such a finding was made under strikingly similar circumstances in Carl J.B. v. Dorothy T., 186 AD2d , 589 NYS2d 53 (2nd Dept., 1992). In that matter, father had been the custodial parent by agreement between the parties. The court found that father "consistently attempted to undermine, if not eradicate, the child's relationship with her mother, and to portray the mother as a child abuser." During the pendency of the custody proceeding, the father "demonstrated his unwillingness for the child to have a relationship with her mother." The court ordered father to have supervised visitation once per week predicated solely upon father's behavior in this regard.
In the case at bar, mother persists in her belief that father has sexually abused Jack, despite the overwhelming evidence to the contrary. Were her access to this child left unsupervised, she would surely continue to question the child inappropriately and suggestively and would continue to fabricate allegations of sexual and physical abuse. There is nothing this court could possibly put into place, no order it could fashion, short of an order of supervised visitation, which would control mother's behavior and safeguard this child. [*12]
Accordingly, mother's visitation with Jack shall occur once per week and shall be monitored by the court Supervised Visitation Program, on a schedule to be established by the Program, with periodic reports to the court and the attorney for the child. The parties may agree to utilize a similar facility closer to their respective residences, upon approval of the court. This schedule shall continue until such time as mother can demonstrate, through appropriate therapeutic intervention (should she choose to avail herself of same), that she understands what it means to co-parent a child in a positive, constructive, and emotionally healthy fashion.
In view of the foregoing, father's petition seeking to modify the order dated 10/20/08 is granted, and custody is awarded to father. The remaining petitions are dismissed.
Separate orders will enter.
Dated: June 4, 2010
BARBARA LYNAUGH
JUDGE OF THE FAMILY COURT
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
