Matter of C. F. v C. M.Annotate this Case
Decided on April 7, 2011
Family Court, New York County
In the Matter of a Custody/Visitation Proceeding Under Article 6 of the Family Court Act, C. F., Petitioner,
C. M., Respondent
Erica Razook, Esq. for Petitioner, C. F.
Keith Orenstein, Esq. for Respondent, C. M.
Rosemary Rivieccio, Esq., Attorney for the Child
Douglas E. Hoffman, J.
Following fact-finding the court sets forth its findings of fact and conclusions of law in this FCA Article 6 visitation proceeding. Petitioner father C. F. filed the instant visitation petition [FN1] seeking an order granting him a final order of visitation with his now 14 year-old daughter, C. H. Both respondent mother, C. M., and C. H.'s attorney vigorously oppose any visitation order.C. H. was born on August 4, 1996. The court is focused upon three primary five-year periods in the child's life as it relates to this litigation. A focal point of the father's presentation was the period of 1996 to 2001 during which, he testified, the mother inhibited his visitation with C. H. After Bronx County Family Court dismissed the father's petition concerning visitation and suspended the father's visitation in 2001, there was no visitation litigation for the second five-year period, spanning mid-2001 through mid-2006 when the instant petition was filed. The third period covers this litigation from mid-2006 to the present. The credible evidence reveals the following: [*2]
1996 - 2001
The parties resided together as a couple at the time of C. H.'s birth. Within several weeks C. M. and C. H. vacated the home and moved to New Jersey, where C. M. filed and obtained the equivalent of a temporary order of protection from a Camden, New Jersey court based upon alleged physical and verbal abuse by C. F. The parties have been engaged in nearly continuous litigation since C. H. was approximately eight weeks old, with the exception of the five year hiatus from 2001 to 2006.
According to C. F., after a hearing in which the New Jersey court "did not completely hear his side" of the events, the New Jersey court issued a restraining order and directed that C. F. pay compensation to the mother. C. F. was also ordered to pay child support, an order with which the father admittedly did not comply. According to the father's testimony, the mother did sue him successfully to enforce the child support order. What ultimately happened to the New Jersey order is not completely clear. The father averred that this order was reversed on appeal and that the parties were "bound over to Manhattan Family Court" because of "jurisdictional issues".
In January 1997, C. M. moved to The Bronx with C. H. After the New Jersey court adjudicated that proceeding without issuing a final order of custody, C. F. visited with C. H. sporadically for the next few years. The father's testimony concerning his contact with the subject child during the very early years of C. H.'s life appears inconsistent and somewhat puzzling. At one point, the father testified that from 1996 to 1998, he knew that C. H. resided with the mother in New Jersey. He stated that he did not file any court papers seeking visitation because he wanted visitation in New York City, but knew that he could not compel visitation in that location. In fact, the mother moved to The Bronx several months after temporarily residing in New Jersey in 1996. At another point, the father stated that he could not obtain the whereabouts of the mother and child, even through the internet, during this time. Not only was this testimony surprising in that the father was and is a sophisticated, resourceful person, but also because the testimony indicates that he visited with the child sporadically during this time.
From at least 1998 - 2001, the parties were regular litigants in court, concerning both visitation and child support issues. The parties filed multiple petitions and motions in an array of Family Court proceedings in Bronx County. By order dated November 5, 1998, Bronx County Family Court issued a limited order of visitation for the father. On January 6, 1999, the father filed an enforcement petition. The court issued another temporary order on January 20, 1999, with battles focused upon pick-up and drop-off issues. The parents entered into a stipulation of settlement on May 26, 1999 providing that the father would have visitation on alternate weekends and certain holidays.
Unfortunately, the visitation did not proceed entirely smoothly. From May 26, 1999 to June 2001, the father had significant visitation on weekends with C. H. The parties continued to spar over visitation. Through various motions, C. F. contended that C. M. prevented him from visiting with C. H. C. M. testified that she never impaired, impeded or otherwise interfered with the father exercising his visitation rights. During the weekends during which the father was scheduled for visitation, C. M. usually worked and the babysitter remained to conduct the exchange of the child for visitation. C. M. testified credibly that it was C. F. who missed numerous visitation appointments and who did not return the child, at times resulting in the mother calling the police to get the child back. The mother averred that the father would not pick up C. H. for weeks or months [*3]at a time. At times, the father would call the mother on the weekend and would state that he was not coming to take the child. The mother would have to call the babysitter on Long Island to return to The Bronx to take care of C. H., as C. M. had already been scheduled to work that weekend.
In support of his alienation claim, the father introduced into evidence a tape recording of a voice mail message the mother left on his answering machine on or about June 18, 2000. The mother angrily said that this was the last time that the father was seeing his daughter. Although this was presented as an example of the mother excluding the father from access to his daughter, the father later acknowledged that at this time the mother was compliant with perceived requirements to make C. H. available to the father. According to the mother, this voice message took place in the context of the Bronx County Family Court proceeding wherein the father had repeatedly failed to attend his visitation regularly.
The father introduced a video into evidence during the instant hearing concerning an August 2000 birthday party the father and his family held for C. H. The family appeared very celebratory, although the child's level of happiness did not appear to match the family enthusiasm. It was around this time that the father started to stockpile purported gifts for C. H. that he has apparently held for ten years, including toys, dolls, underwear and other items he allegedly wanted to give C. H. but could not because the mother would not allow him visitation. Despite this alleged lack of access, and no apparent communication to the child or mother that the father had these gifts, the father continued to accumulate these gifts, including clothing items that quickly became unusable in any case as the child continued to grow. This conduct, including the carefully photographed birthday party, gives rise to an inference that the father for this period of time and thereafter attempted to "make a case" of alienation of the child from the father.
Both parties agree that in September 2000, the mother filed a supplemental petition in Bronx County Family Court against the father alleging that the father again violated the 1999 order of visitation. The mother sought an order suspending the father's visitation because of his inconsistency with the scheduled visits, and asserted that the father's conduct was harming C. H. The presiding Referee issued an order on September 6, 2000, establishing very specific dates and times for visitation by the father. C. F. testified that this order compounded problems of paternal access to the child by compelling the father to adhere to dates and times with which C. F. could not comply.
At or about that time, the mother also filed a petition alleging that the father failed to comply with his child support obligations. During cross-examination of the father in the instant proceeding, the father grudgingly acknowledged that the Support Magistrate in the child support matter may have directed him to pay child support arrears, but disclaimed recollection of the hearing. With respect to the father's credibility, the court observed that C. F. appeared evasive and inconsistent through many parts of his testimony in this proceeding. The father's testimony that he kept detailed notes and documents concerning all of his court proceedings was undercut by his apparent inability to recall pertinent events during prior court hearings.
Bronx County Family Court appointed an experienced attorney to represent the child in the visitation matter. Based upon continued disputes as to alleged violations of the visitation order by the parents, the Referee in or about March 2001, apparently over the father's objection, directed that the attorney for the child serve as a liaison between the parties to arrange and monitor the visiting time for the father. This was at the joint suggestion of the mother and the attorney for the child. The father received correspondence from the attorney for the child concerning specified times and [*4]procedures for visitation. The father was to contact the attorney for the child to confirm that he intended to exercise his visitation rights. If the attorney for the child did not hear from the father in this regard, she would inform the mother and the mother could safely assume that the father was not going to pick up the child for visitation that weekend. It was the mother's belief that the father never contacted the attorney for the child. The father acknowledged upon cross-examination that he did not make the necessary contact to take advantage of visitation opportunities and thereby effectively forfeited that visitation time.
On May 30, 2001, C. F. filed a supplemental petition against the mother in Bronx County Family Court, alleging that the mother violated the May 1999 visitation order. The court scheduled a hearing upon the petition for June 19, 2001. Both the attorney for the child and C. M. joined in asking the court to suspend C. F.'s visitation order based upon his alleged non-compliance with court orders. Although C. F. asserts in the instant proceeding that he "instructed the [court] officer" to tell the Referee that he had to leave for a school examination, the order issued that day by Bronx County Family Court, corroborated by the testimony of the mother, indicates that C. F. defaulted that day. C. F. testified in the instant proceeding that after he left court on June 19, 2001, he did not know what happened to his petition. Upon cross-examination, C. F. acknowledged that by this time, over the course of five years of litigation, he was familiar with the law, but, incredibly, denied knowledge of court procedures and that if he were not present when the case was called, he would be in default. Upon default and upon the urging of the mother and the attorney for C. H., Bronx County Family Court issued an order dismissing the father's petition and suspending C. F.'s visitation order.
Even during the instant hearing, years later, the father insisted during cross-examination that the order itself was "dubious", as he had no idea whence it came. Through the current hearing, C. F. insisted that the order was invalid, although neither he nor his attorney ever prosecuted an appeal from this order, or ever sought to vacate or modify the order in Bronx County. The June 19, 2001 order suspended visitation by the father. Presented during cross-examination with this order, the father acknowledged that the mother was not in violation of this order. The court does not find credible the father's testimony that he thought that, upon dismissal of his supplemental petition on June 19, 2001, only his petition for supplemental visits was suspended or denied. C. H. was nearly five years old at this time.
THE NEXT FIVE YEARS
For the five years following suspension of the visitation order, C. F. never sought court intervention to facilitate or ensure visitation with his child. At one point in his direct testimony, the father stated that it was not until 2004-05 and later not until August 2006 that he received any notice that his visitation rights had been suspended. By this time, he had not seen the child for years. C. F. indicated that the Bronx County Family Court failed to notify him of the outcome of his case, although he was by then a frequent and sophisticated litigant in that court.
Once again demonstrating lack of consistency in his testimony, the father speculated that perhaps he had filed petitions during the 2001 - 2005 period, possibly in 2002 and then possibly in 2004, but then acknowledged upon further cross-examination that he had not done so. Confronted with his inconsistent and incredible testimony, the father then stated that he had filed for downward modification sometime prior to 2005. Of course, the downward modification petition related to his child support obligation, not a subject of the cross-examination, and not to the visitation petitions [*5]the father was attempting to claim that he may have filed during this period of time. Later, the father testified that he had filed a petition for downward modification of his child support obligations in March 2005 for the purpose of finding out where the mother lived and that he was not aware of facts that would have supported his petition. After he obtained the mother's address, the father did not pursue his petition for downward modification of child support and did not receive an order decreasing his support obligations. The only litigation, then, during this roughly five-year period concerned the father's child support obligations.
Not only did C. F. not seek any court assistance or make meaningful efforts to see his child from 2001 to the filing of this petition in 2006, but it was the mother who initiated further contact between C. H. and her father after the court suspended visitation in 2001. In November 2002, C. M. initiated a dinner among C. F., C. H. and herself, which was positive in nature, in an attempt to re-kindle a relationship between C. H. and C. F. Both parents testified that the mother had stated to the father that C. H. had wanted to see and speak with her father, leading to the mother contacting the father to arrange the dinner at a restaurant. C. F. testified that he brought his daughter a doll, and that the dinner went well, with the subject child warming to him and being physically affectionate with him. According to the father, at no point during the dinner did the mother disparage the father to the subject child. At no point, the father admitted, has he ever seen or heard the mother disparage the father to C. H.
That is the last time C. F. visited with C. H. The reasons for this are vigorously disputed. According to the mother, as the father made no reciprocal or even further effort to build upon this dinner, she made no further affirmative effort as well to have the father and C. H. engage in direct personal contact. C. F. stated that C. H. called his home on a few occasions thereafter, noting that she had enjoyed the dinner and asking her father for additional gifts. The father introduced into evidence the voice-mail message C. H. left for her father on December 15, 2002, professing her love for her father, inviting him to see a play in which she was performing, asking him to visit for Christmas and to bring her gifts.
Although he did not seek any court intervention to secure visitation from June 2001 to July 2006, the father alleges that he made other efforts to visit with his child. C. F. testified that on July 20, 2005, he sent a letter to the mother by certified mail in advance of his weekend "visitation dates", demanding that he be permitted to take C. H. for the weekend commencing July 22, 2005, although he had not seen C. H. for nearly three years. Although familiar with next day mail delivery service, the father declined to utilize that form of mailing. C. F. testified that he did not receive a response to this letter. The mother apparently received the letter on July 22, 2005, but declined to permit the weekend visit, in part because the father did not indicate where the child would be and with whom the child would stay. As respondent mother testified, as the father had not made any meaningful effort to see C. H. for years, that he was essentially a stranger to the child, and that the mother did not know where C. H. would be going or who else would be present, the mother declined simply to hand over C. H. that day for the weekend requested.
The court observes that this letter very closely followed the mother's filing of a petition against the father to enforce the father's child support obligations. If the father could show that the "right of reasonable access to the child has been unjustifiably frustrated by the custodial parent, child support payments may be suspended." Thompson v. Thompson, 78 AD3d 845, 846, 910 N.Y.S.2d 536, 537 (2d Dept. 2010)(citations omitted). To prevail on this issue, the non-custodial parent must [*6]show that the custodial parent deliberately frustrated or actively interfered with the visitation rights. Mazzola v. Lee, 76 AD3d 531, 906 N.Y.S.2d 83 (2d Dept. 2010)(citations omitted); Smith v. Graves, 305 AD2d 419, 758 N.Y.S.2d 506 (2d Dept. 2003). The court notes this issue as it may reflect upon the father's motive in sending this last-minute request for access at this time and in this manner.
The father testified further that he sent a second letter, again by certified mail, return receipt requested, on July 3, 2006, stating that he would appear to pick C. H. up for the weekend pursuant to his visitation rights. By this point, the father had not seen the child in nearly four years. The court cannot know for certain the father's motivation in taking this action at this time, but observes that the letter preceded by approximately one week the filing of the instant petition. During his initial testimony, the father averred that he did not have a return receipt, despite his professed meticulous recordkeeping. On the next trial date, the father testified that he had just found a copy of the purported return receipt. The testimony as to the alleged timing and manner of the father's receipt of this document makes clear that this form was altered in an attempt to show that he gave the mother timely or at least some advance notification of his intention to take C. H. It also appears to the court that the father gave false testimony in regard to the creation and retention of this receipt, reflecting poorly upon his credibility in general. The mother disclaimed receipt of this letter. The father acknowledged during cross-examination that from July 20, 2005, just before his child support hearing, through July 2006, when he filed the instant petition, he made no other attempt by letter to schedule any visitation.
Based upon the court's observation of the witnesses during testimony and, separately, upon the lack of logic and consistency of the father's testimony, the court does not credit C. F.'s testimony in many material respects, particularly where the testimony conflicted with that of the mother and where, as here, C. F. claimed that he appeared at times to take advantage of his purported visitation rights.
C. F. testified that he made other efforts during this five-year period to have contact with C. H. The father testified that he attempted to reach C. H. by telephone on a number of occasions thereafter without success, as no one would pick up the telephone or an answering machine would turn on. The father asserted that he left messages for the mother telling her that he would visit C. H. at a particular time, but received no response.
The court finds rather unusual C. F.'s testimony that he extensively researched and found out where C. H. attended school at this time, followed her to school and, together with a friend, observed C. H. enter and leave school. Despite apparently believing that he had the continued right to visitation and that his attempts to communicate with C. H. were being blocked by the mother or the babysitter, the father made no effort to make his presence known to or to communicate with C. H. in any manner. Although C. F. testified that he made no attempt to communicate with C. H. directly because he did not want to surprise her or make a scene at the school, the father did aver that over the years he would appear at the mother's home to take C. H. for a weekend pursuant to his visitation rights, even though he had not seen his daughter for years.
C. F. testified that over the years he sent messages through his sister, who was able to reach C. H. and speak with her, as well as messages through the paternal grandmother, to have C. H. call him or to ask the mother to allow the child to speak with and see the father. The father testified that he sent flowers to C. H. on her birthday on August 9, 2004, but did not receive any acknowledgment [*7]from the child. This testimony does appear to contradict the father's other statements set forth in a transcript of a child support proceeding against the father that he did not know C. H.'s whereabouts from June 19, 2001 through June 24, 2005. During that proceeding, the court denied the father's request for the mother's home telephone number. The father did, however, receive the mother's home telephone number during a court proceeding in 2006.
C. M. testified that the last time the father spoke with C. H. was on the child's ninth birthday in August 2005. The father called to wish C. H. a happy birthday and the mother gave the telephone to C. H. During the conversation, C. H. became upset and began crying, effectively ending the conversation.
The father testified that through the date of the purported July 3, 2006 letter to the mother stating that he would pick up C. H. for weekend visitation, he made numerous efforts to see C. H., but was unable to physically locate the mother's residence by car, even though he had the address. The father, although allegedly indigent, stated that he hired an attorney to assist him to locate physically the mother's residence. In short, the court found the father's testimony not credible in most material respects and that the mother did not interfere with paternal access to the child.
THE PRESENT PROCEEDING
It was not until July 12, 2006, five years after the 2001 suspension of the visitation order,
that C. F. filed the instant petition seeking a visitation order. By this time, the father had seen C. H. once in five years, professing that he had no idea why the mother stopped visitation. The father testified that he did not know until after he commenced the instant proceeding that the mother had thought that visitation had been suspended. C. F. testified without credibility that he was completely unaware that the attorney for C. H. in the Bronx County Family Court proceeding had sought suspension of his visitation.
The instant petition was referred primarily to various Referees who sought to adjudicate this matter. The proceedings were ultimately referred to the undersigned in March 2010. This court commenced this hearing in April 2010. The court notes that it is indeed unfortunate that this matter took years to be finally adjudicated. Review of the underlying file reveals trial and appellate motion practice, attempts at settlement, adjournments based upon availability of parties or their attorneys, and disputes over forensic evaluations and payment therefor.
While this proceeding was pending, the father had additional telephone contact with C. H. For the child's birthday in August 2006, the father telephoned the child at her residence. The mother answered and gave the telephone to C. H. C. F. testified that he tried to familiarize C. H. with the court proceedings, let her know that he had always loved her and had not abandoned her. The father testified further that he again called the child around Christmas 2008 at the same telephone number. Although the mother was in the car with C. H., she gave the child the telephone and let the father speak with C. H.
At this point, the father has not seen C. H. for the past nine years and only once in the past 10 years. Presently, C. H. adamantly refuses to have contact with her father, essentially asserting that he is a stranger to her and that she has done just fine without him in her life.
The court found its court-appointed forensic evaluator, Dr. Adam Bloom, a psychologist, to be a competent and credible witness, who was qualified as an expert in forensic psychology and child development. The impact of Dr. Bloom's conclusions were lessened, however, because the Referee [*8]then presiding over the case limited the scope of the forensic examination. Dr. Bloom was unable to complete a psychological assessment and was directed by the Referee to submit his report based upon the limited examination and evaluation he had conducted.
Dr. Bloom expressed concern that C. H. did not want to have contact with her father, despite the absence of physical abuse, psychological abuse, domestic violence or any other apparently justifiable reason, as he shared the general notion that a healthy relationship with both parents should be encouraged, where appropriate. Acknowledging frankly that he did not have sufficient information to offer definitive conclusions and that he did not know the basis for C. H.'s resistance to contact with her father or her internal conflicts, the forensic examiner suggested that C. H. exhibited a pattern of aligning with the mother and rejecting the father. Dr. Bloom recommended that C. H. begin work with a neutral therapist who was experienced in high conflict divorce, separation and adolescent issues. Dr. Bloom suggested further that the therapist work simultaneously with both parents. The forensic examiner correctly assumed that C. H. would be highly resistant to meeting with the therapist. The psychologist observed that the mother did not want to push C. H. to do what the child did not want to do. Dr. Bloom noted that it would be difficult to make a 14 year-old child attend therapy given her adamant refusal to do so and that a first step would be for the mother to offer focused encouragement to the child to attend therapy. Dr. Bloom testified in November 2010. His interview with C. H. took place about one year earlier and C. H. had not yet attended therapy.
Although the following action may have exceeded the formal scope of the role of the forensic examiner, Dr. Bloom prodded C. H. during the interview to have contact with her father by discussing the importance of a child enjoying a healthy relationship with both parents and offered several options leading to possible visitation with the father in a doctor's office. The subject child became so anxious and upset that she started crying to the extent that the doctor had to call the mother into the office to calm the child. Although Dr. Bloom was surprised that he could not convince the subject child to have at least one session in his office with the father, he acknowledged that C. H. is an intelligent, well-adjusted child with no symptoms of any behavioral/emotional disorder. C. H. participates in extensive extra-curricular activities. The doctor saw no overt concerns outside of the parent visitation issue. The expert witness also testified that it would be reasonable for a child not to want to visit with a parent who had been absent for seven years, although whether or not such a response on the part of the child would be considered "healthy" depended in part upon how the lengthy absence was explained to the child. Dr. Bloom did also acknowledge that a statement in his report that there was no justifiable reason for the child not to want to visit with her father was perhaps premature.
Based upon limited knowledge of the child's history with her father, together with the child's adamant refusal to see her father, Dr. Bloom opined that the only recourse would be for the child to engage in therapy with the goal of commencing therapeutic visitation with her father. The therapist could delve more deeply into the child's behavior and feelings so that the reunification process could begin. As Dr. Bloom noted, this would be a difficult process and many adolescents will not participate in therapy. At that point, it would be important for the parents to participate with an agreed-upon therapist to develop a plan through which the subject child could be convinced to attend therapy, with the ultimate goal of commencing therapeutic visitation between father and daughter.
Dr. Bloom testified that intensive work would be required to ascertain the reason or reasons [*9]why C. H. refuses to see her father. Only after such intensive treatment with a qualified mental health professional could it be determined whether or not C. H.'s relationship with her father is reparable. Stating that the mother should not physically compel the subject child to attend therapy, Dr. Bloom testified that he did not know how to force the child to attend therapy or visitation. If his suggestions were not successful, the forensic examiner stated that there may have to be a different plan, acknowledging again that there are some cases in which the relationship is not repaired and the schism exists into adulthood. In his report, Dr. Bloom concluded by stating that C. H. should not be mandated or ordered to meet with her father "pending approval by a qualified mental health professional who is experienced with high conflict divorce and custody matters."
Dr. Bloom's testimony was helpful to the court in framing certain questions that needed to be answered through further factual development and to suggest a procedure which, if appropriate under the specific facts of this case, could in certain cases eventually lead to a renewal of contact between a parent and a child.
While pretrial matters proceeded herein, and subsequent to C. H.'s meeting with Dr. Bloom, C. H. did attend a limited number of therapy sessions to which the mother brought her with the specific purpose of encouraging the child, if appropriate, to commence therapeutic visitation with her father. Despite these efforts by the mother and child, C. H. remained steadfast in opposition to resumed contact with her father and refused to attend further therapy sessions despite encouragement by the court, the mother, and the child's attorney to do so.
Toward the end of trial, the court conducted an in camera interview with the subject child pursuant to Lincoln v. Lincoln, 24 NY2d 270, 247 N.E.2d 659, 299 N.Y.S.2d 842 (1969), in the presence of the child's attorney. Attorneys submitted suggested questions for the child prior to the in camera interview. The interview was essentially confirmatory in nature. C. H. reacted strongly and tearfully to any suggestion that at present she visit with or resume any contact with her father.
PETITIONER'S ALIENATION CLAIM
In addition to the testimony noted above, the father's testimony was framed in a manner that sought to portray the mother as having "alienated" the subject child from the father. Alienation may be defined in various ways. See generally Zafran v. Zafran, 191 Misc 2d 60, 740 N.Y.S.2d 596 (Sup. Ct. Nassau Co. 2002). Regardless of the specific nomenclature employed, this court finds that respondent mother did not alienate C. H. from her father; to the contrary, it appears to this court that it was the father's absence of meaningful efforts from 2001 to 2006 that created an emotional break for the child in her relationship with her father. It was this five-year hiatus, it appears, that has created such anxiety and uncertainty on the part of the child concerning re-establishing her relationship with her father. The court will discuss this in further detail below.
With respect to his alienation claim, the father testified to his version of the events described above. The father, a former model, appears to have had a very limited employment history during C. H.'s life and apparently has been unemployed for a number of years. The court has already questioned aspects of this witness's credibility above.
The mother testified in her own behalf. C. M. works two jobs as a pediatric emergency room physician, including overnight hours. Since 1997, she has employed a long-term child care provider for C. H., S. L., when the mother is at work. C. H. is very close with both her mother and the child care provider. C. H. and her mother enjoy a very close, loving relationship, and the child has thrived [*10]in this long-term single parent household. C. H. attends a well-regarded suburban public high school, does well in school, socializes with various friends and participates in a number of extra-curricular activities, including softball, track, volleyball and the cheerleading squad. She is a happy, physically and mentally healthy young lady, who has never acted out in a serious manner. C. H. has never received any mental health services outside of this court case, where she participated in a therapy sessions at the behest of this court, her attorney and mother. During this past summer (2010), she participated in a service-oriented camp, teaching math and reading and working on a farm.
The mother testified credibly and consistently concerning the events described above and to her efforts to arrange visitation for the father and C. H. C. M. made clear that she never discouraged C. H. from having a relationship with her father. The mother testified that she did not discuss the specifics of this litigation with the child. The child did know that the mother attended various court dates. Of course, the child was required to participate in the forensic evaluation and to attend the in camera interview. C. M. stated that early in C. H.'s life, the child had love for her father, but was now indifferent to him, expressing that she has no feelings one way or the other toward C. F.
During the times the father called and left messages for C. H., the mother always conveyed this information, had C. H. listen to the messages and encouraged her to call back. C. M. testified that C. H. refused to return the father's telephone calls and that at some point she and C. H. discussed this. C. H. told her that her father is a stranger to her and that she does not know him. C. M. averred that she always told C. H. that her father loved her, as she did not want the child to think that she was different from other children and wanted to assure her that she had a father who loved her.
The mother asserted that she never failed to convey a gift to the child. She did state that she could not physically force the child to visit with the father. Although she encouraged C. H. to see the therapist during the course of this proceeding, the mother related that C. H. became particularly upset when another child from her school saw her going to therapy. C. H. indicated to the mother that she wanted to be left alone to participate in her normal teenage activities and did not want people to think that she was "crazy" by going to a therapist, not an atypical teenage response to the concept of therapy. C. M. testified that she told C. H. that of course she was not crazy, but that this therapy was something that she had to do. On the other hand, the mother did not discuss with C. H. the positive outcomes that could come through therapy.
C. M. did not believe that forced visitation would benefit the child as the father was always inconsistent with his visits and C. H. could not depend on him. To date, the mother added, the father has not demonstrated any behavior to indicate that C. H. would benefit from visiting with him. The mother asserted that she perceives her primary goal as a parent is to protect C. H. and to do what is best for her. If C. H. wanted contact with her father, C. M. stated that she would try to work out the contact.
As discussed infra, the court found that C. M. was a credible witness whose version of pertinent events is far more credible than that offered by petitioner. In any case, for events dating back ten years, the Bronx County Family Court orders defined in pertinent part the most salient facts, including that the father's petition was dismissed on default and that his visitation remained suspended through the filing date of the instant petition.
The court declines to apply a narrowly defined and pejorative term "alienation" to this matter. However reasonably broadly or narrowly defined, alienation did not occur here and there is no [*11]possible change of custody consistent with the best interests of this child. For the first five years of C. H.'s life, the parents disagreed as to whether the primary problem in maintaining regular visitation was that the mother obstructed, as opposed to prevented, visitation or rather that it was the father's failure to meet his responsibilities and obligations concerning visitation, or some combination thereof, that inhibited consistent visitation. Regardless of the problem, there was some level of visitation and there was a relationship between C. F. and C. H. at this time.
After the father's petition was dismissed and his visitation suspended in June 2001, he did not seek to restore the petition or petition the court for visitation for five years. The credible evidence establishes that the father made the barest of efforts to engage in contact with C. H. during this five-year period when she matured from five to ten years of age. It was this five year hiatus that appears to have caused the break in the emotional bond between C. H. and her father.
Petitioner must take responsibility for his own actions and appreciate that his virtual disappearance for five years had severe consequences for C. H. and for her relationship with him. As noted earlier, this court did not find credible the father's contrived attempts to show minimal efforts at maintaining or re-establishing contact with C. H. during this period. It is very clear that C. H. does not trust that if she permitted her father to re-enter her life, he would conduct himself in a consistent and positive manner.
The father has been trying throughout the course of this litigation to show that he was in no manner responsible for his absence from the child's life, but the credible evidence points to the contrary. There has been no indication that the father appreciates or wishes to consider C. H.'s actual emotional state or needs; rather, he seeks to show that he could not possibly be responsible for the lack of a meaningful relationship with his child.
Since filing the petition, the father's apparent position has been that he is now present after many years and that the child should be compelled to have a relationship with him. Toward that end, he has had his attorney subpoena the child to testify in court under threat of contempt of court if she did not comply, and has continued in an overtly hostile, from a legal perspective, relationship with the mother, to whom C. H. is very close and of whom C. H. appears protective. It is very clear that through the course of litigation here and in prior proceedings, the father consistently has attempted to portray the mother as the evil one, who has caused the child to be alienated from him.
Through the completion of this hearing, the father refused to acknowledge that this nearly 15 year-old could have feelings about her father independent of the mother's feelings toward him. Despite it being made clear at every court appearance that the child did not wish to have contact with her father, C. F. testified that he was not aware that C. H. did not want contact with him.
With respect to the mother's decision not to physically force or compel from a disciplinary or emotional standpoint C. H. to attend therapy, it is reasonable parenting for the mother to believe that her daughter's hurt and upset over the many years of the father's inconsistent and at times nonexistent visitation is a valid basis not to compel her daughter, whom she loves very much, to attend therapy against the child's wishes. This is not alienating behavior under the circumstances of this case.
Courts and commentators differ as to how to define alienation. Alienation typically describes a child's rejection of or strong resistance to a relationship with a parent that is disproportionate to that parent's behavior and is not consonant with the previous parent-child relationship. Further discussion of this term would not advance any meaningful discussion as to how to heal the fracture [*12]in the relationship between the father and C. H. and to provide a realistic future opportunity to re-start a relationship between the two. Under all the circumstances of this case, the court finds that alienation did not occur.
This finding does not conclude the analysis. Generally speaking, the determination as to whether or not a court should award visitation to a non-custodial parent lay within the sound discretion of the trial court, and must be based upon the best interests of the child. Matter of David V. v. Rosalind W., 62 AD3d 717, 879 N.Y.S.2d 484 (2d Dept. 2009)(Citations omitted). Most commonly, a child's best interest lay in being nurtured by both parents. Rought v. Palidar, 6 AD3d 1112, 775 N.Y.S.2d 678 (4th Dept. 2004). Parental access, commonly referred to as visitation, is an important right of the non-custodial parent and of the child. Weiss v. Weiss, 52 NY2d 170, 418 N.E.2d 377, 436 N.Y.S.2d 862 (1981). Visitation by a noncustodial parent is presumed to be in the child's best interest and should be denied only in exceptional circumstances, such as where substantial evidence reveals that visitation would be detrimental to the welfare of the child. Id. at 174-75 (analysis of non-custodial parent's visitation rights must not ignore the primacy of the child's welfare); Matter of David V., supra; Matter of Andrews v. Coryea, 21 AD3d 1350, 801 N.Y.S.2d 183 (4th Dept. 2005). The custodial parent should assure meaningful contact between the child and the other parent, but only when it is in the best interest of the child to do so. Kachelhofer v. Wasiak, 10 AD3d 366, 780 N.Y.S.2d 290 (2d Dept. 2004).
On the other hand, a parent's visitation should just as clearly be denied by a court where it harms the child by producing serious emotional strain or disturbance. Matter of Johnson v. Williams, 59 AD3d 445, 874 N.Y.S.2d 498 (2d Dept. 2009) and citations therein; Kachelhofer, supra; Hotze v. Hotze, 57 AD2d 85, 394 N.Y.S.2d 753 (4th Dept.), lv. app. den., 42 NY2d 805, 367 N.E.2d 660, 398 N.Y.S.2d 1027 (1977). See also Matter of Brett K. v. Brian L., 6 AD3d 349, 777 N.Y.S.2d 35 (1st Dept. 2004);MacEwen v. MacEwen, 214 AD2d 572, 625 N.Y.S.2d 75 (2d Dept. 1995); Nacson v. Nacson, 166 AD2d 510, 560 N.Y.S.2d 792 (2d Dept. 1990). Every child is unique. To inform the best interest analysis, the court must understand to the extent possible the basis for C. H. feeling so estranged from her father and so distraught at the prospect of participating in a process with the goal of having him re-enter her life. C. H.'s estrangement from her father and petitioner's lack of sensitivity to and his disconnect from C. H.'s emotional needs over a period of years have been discussed at some length above. Even during the instant proceeding, the father never even inquired of the forensic examiner how the subject child's mental health may be affected by compulsory visitation.
That being stated, the question remains as to what the court should do about the relationship. The court cannot immediately reconstruct a relationship, or lack thereof, that developed over the child's lifetime. During the course of this litigation, the child was pushed to engage in individual therapy with the goal of facilitating contact with her father. The forensic examiner had recommended this as well. C. H. attended therapy and refuses to attend further. She is a bright, articulate child who knows her own mind. The in camera interview with C. H. confirmed that her mother suggests to C. H. that she should return calls from her father and the paternal family, but that the child chooses not to do so. According to C. H., if her father cared for her, he would just leave her alone at this time. She will contact him when she is ready, whether that is next week, next month or some other time in the future. [*13]
C. H.'s wishes are entitled to substantial weight in the best interest analysis,[FN2] William-Torand v. Torand, 73 AD3d 605, 901 N.Y.S.2d 601 (1st Dept. 2010)(citations omitted), particularly where, as here, the subject child is mature enough to express them. Mohabir v. Singh, 78 AD3d 1056, 910 N.Y.S.2d 917 (2d Dept. 2010).; Koppenhoefer v. Koppenhoefer, 159 AD2d 113, 558 N.Y.S.2d 596 (2d Dept. 1990). On the other hand, the court should not simply delegate its decision to the wishes of the child, which should not be determinative. William-Torand v. Torand, supra. In the instant case, the court holds that it is not in C. H.'s best interest for her to be compelled to have in-person contact with her father at this time. C. H.'s wishes are entitled to substantial weight, but it is the reasons for her position, as well as the related detrimental impact upon her emotional state that most informs the best interest analysis here. The court had the opportunity not only to hear extensive testimony concerning C. H.'s emotional state and her reaction to the possibility of visitation with her father, but observed first-hand how fragile the child is at this stage with respect to the prospect of renewed visitation or other contact with her father, the reasons for this fragility, and how counterproductive pressure upon her to visit with her father would be, given the father's now nearly ten-year absence from her life.
It is noteworthy that C. H. does not appear to be suffering greatly in the absence of petitioner from her life; to the contrary, she is thriving. She excels at school, is very well adjusted with many friends, participates in a wide array of extracurricular and leadership activities and is living a healthy, happy life as a teenager in a close family unit. That family unit consists of C. H., her mother and her long-term child care provider, S. L.
C. H.'s mother has encouraged her to attend therapy, but at this point C. H. refuses to do so. Aside from the fact that the court does not believe that ordering C. H. to visit with her father would be in the child's best interest, it appears that C. H. would refuse to attend the visitation or engage in mandatory therapy. If an order is to be meaningful, the court would have to enforce it through all available and appropriate mechanisms, including the contempt sanction. Such an order would not only be futile, but counterproductive to the goal of having the child resume a relationship with her father. The emotional stress upon C. H. by forcing her to engage in visitation would likely be traumatic to her and, under the totality of circumstances, Eschbach v. Eschbach, 56 NY2d 167, 436 N.E.2d 1260, 451 N.Y.S.2d 658 (1982), not in her best interest. Matter of Johnson v. Williams, supra.
The court has considered compelling C. H. to engage in some constellation of individual and family therapy, or mandating that the mother engage in therapy, all with the goal of preparing the child for resumption of visitation. The court declines to do so. As discussed above, the individual therapy was unsuccessful and C. H. has stated adamantly that she will not engage in further therapy.
Similarly, ordering the mother to engage in individual therapy, so that she could prepare C. H. better to engage in therapy herself or to otherwise engage with the father, would be counterproductive under the circumstances of this case. Not only did the court find that the mother [*14]did not alienate her daughter from her father, but observed that C. H. is a very bright, aware, sharp teenager. She would understand that the reason her mother would be engaged in therapy pursuant to court order would be so that C. H. herself would be pushed, prodded or pressured into resuming visitation, a situation that again would be counterproductive in terms of facilitating the actual resumption of contact with her father and would pose a significant risk to the child's emotional health. The court understands that the father apparently wishes to resume a relationship with his daughter. As stated, in more common circumstances, such visitation would naturally be arranged or ordered. Here, however, it is the father's conduct that has caused the near severing of emotional ties between the father and child and has made the child apparently very fearful of resuming such ties given the long-term absence of meaningful contact over an extended number of years in this child's life.
To facilitate a gradual and voluntary resumption of a meaningful relationship between C. H. and C. F., which the court believes would be in the best interests of the subject child, the court will grant C. F.'s petitions to the extent of directing C. M. to communicate to C. H. that C. F. has sent her a card, letter, audiotape or videotape and let C. H. decide whether, when and how to read or view the message. See In Re Tristram K., 65 AD3d 894, 884 N.Y.S.2d 655 (1st Dept. 2009)(Appellate court noted trial court order permitting communication with child in a similar manner "to prepare for the time when there may again be direct visitation between them"). In this manner, C. H. may understand that C. F. does wish to resume a relationship in a manner that is not threatening to C. H. or those close to her and which does not pressure C. H. in a manner that would counterproductive at this time. It may well be that the passage of time is what C. H. needs to resume a relationship with her father and that her emotional well-being dictates that the method be gradual and non-traumatic.
The court is concerned that if the order is open-ended, the father will flood the home with letters, audiotapes and the like in an attempt to convince C. H. of his sincerity and also to maintain an opening for further litigation to ensure that his communications have been noted. Again, without a reasonable limitation on such communication, the court is concerned that C. H. would observe or sense further conflict between her biological parents, would experience that same pressure discussed above, and would react in a negative manner to further communication. The court believes that the appropriate balance is that there be a monthly communication from the father to C. H. and that the mother will inform C. H. of that communication.
This order sets a minimum level of communication. To be clear, the order is without prejudice to any further or alternative visitation or communication to which the father and the subject child mutually and voluntarily agree. This constitutes the decision and order of the court.
Dated:New York, New York____________________________________
April 7, 2011HON. DOUGLAS E. HOFFMAN, J.F.C. Footnotes
Footnote 1:There are two petitions presently pending. C. F. filed the first petition on July 12, 2006, seeking modification of an order of visitation, enforcement of an order of visitation, and modification of an order of another court. Petitioner filed the second petition on October 2, 2006, seeking modification of an order of visitation. This decision addresses both petitions.
Footnote 2:The court does find that there has been a change of circumstances warranting a renewed best interest analysis. The suspension of the father's visitation was ten years ago. The father has testified that he is ready and anxious to engage in a relationship with C. H.. In combination with the passage of ten years in C. H.'s life and the concomitant maturing of the child, there is a sufficient change of circumstances to warrant a renewed best interest analysis.