Matter of W.K. v J.K.Annotate this Case
Decided on April 10, 2018
Family Court, Erie County
In the Matter of a Proceeding Under Article 6 of the Family Court Act W.K., Petitioner
J.K., Respondent. In the Matter of a Proceeding Under Article 6 of the Family Court Act W.K., Petitioner J.K., Respondent.
In the Matter of a Proceeding Under Article 6 of the Family Court Act W.K., Petitioner v
BRIAN RICHARD WELSH, ESQ.
Attorney for Father, W. K.
ROSS STUART GELBER, ESQ.
Attorney for Mother, J. K.
DAVID SCOTT SARCOVICS, ESQ.
Attorney for Child, JOHN (15)
Mary G. Carney, J.
Before the Court are (2) petitions filed by W.K. (hereinafter referred to as "Father") against J.K. (hereinafter referred to as "Mother"). The petitions are entitled "Amended Petition Visitation/Emancipation" (Docket No. V-17849-14/17D) and "Second Amended Petition — Custody/Visitation/Emancipation" (Docket No. V-17849-14/17E). Both seek modification of a prior court order or alternatively emancipation of the parties' son, John (hereinafter referred to as "John"). Some examination of the parties' tormented, protracted procedural history is necessary to fully describe this family's deeply painful story.
The parties divorced in or around October 2014. A Property Settlement & Separation Agreement (incorporated but not merged into their Judgment of Divorce — Petitioner's Exhibit 1) provided in relevant part that they would share joint custody of John designating Mother his primary residential parent and setting forth Father's access as follows: "[ ] [John] shall continue in counseling with Bernadette M., who will also be engaged by the parties for therapeutic reunification counseling between Father and son. [ ] At such time as [John] completes counseling the parties shall discuss and agree upon a reasonable and liberal access schedule. [ ] If the parties cannot agree on an access arrangement, either party may petition a court of competent jurisdiction for a determination of same."
Just two (2) months after entry of their divorce, in or around December 2014, Father commenced litigation in Erie County Family Court seeking reunification with John. A Family Court Order was issued on the parties' consent in or around July 2015 that changed John's counselor to Rose B., LCSW-R and provided "[ ] in the event that reunification has not occurred and there is no access schedule, [Father] may re-file his petition in six months without prejudice." Nearly six (6) months to the day, in or around January 2016, Father filed a Petition seeking modification of that order under Docket No. V-17849-14/17B. Mother filed a modification petition too, Docket No. V-17849-14/17C.
These petitions were withdrawn in or around August 2016 in favor of a stipulation received on Father's Amended Petition (Docket No. V-17849-14/17D) — the same one that is pending now. To resolve all matters before the court at that time, the parties agreed that Mother would have sole custody of John and Father would forego all parenting time until or unless John were to seek same from him, on the condition that Mother would forego all child support. Petitioner's Exhibit 5 in evidence is the transcript from that August 3, 2016 proceeding.
In or around November 2016, Father moved the court pursuant to CPLR § 5015(a)(3) to vacate the August 2016 consent order. Said motion was granted and Father's Amended Petition (Docket No. V-17849-14/17D) was restored to the calendar. Father filed his Second Amended Petition (Docket No. V-17849-14/17E) in or around January 2017. More motion practice ensued, and after contested argument, the court granted an order for expert services appointing Dr. Frank A. as the court appointed expert to conduct a custodial evaluation.
Testimony was heard across the span of seven (7) days, specifically: August 27, 2017, August 29, 2017, August 31, 2017, September 11, 2017, September 12, 2017, November 21, 2017 and December 1, 2017. The court heard from three (3) witnesses in support of Father's requested relief, to wit: Father, Dr. Frank A. (court appointed expert), and Ashley (John's sister). In opposition to Father's requested relief the court heard from four (4) witnesses: Mother, Michelle (John's oldest sister), Thomas (John's brother) and Dr. David N. (Mother's retained expert).
In or around August 2017, the parties consented to a temporary order of access whereupon Father was granted parenting time with John on Sundays. John did not comply with any court ordered access during the pendency of the trial.
On the second to last day of trial (November 21, 2017) a motion was made pursuant to DRL § 241 seeking suspension of maintenance payments due to Mother's interference with the temporary order of access. That motion was granted and Mother's maintenance was suspended pending further order of the court.
Maintenance payments have been held in escrow by Mother's attorney since on or around December 1, 2017.Additional motion practice ensued, seeking to re-open the proof and seeking to lift the suspension of maintenance. Both motions were denied on or around February 16, 2018.
The Court held an in camera conference with John on February 26, 2018. Thereafter, counsel submitted Closing Arguments to support their relative positions on or about March 16, 2018. This Court has had the unique opportunity to evaluate and observe the demeanor, temperament and sincerity of the witnesses and weigh their respective character and credibility. This Court has further considered the pending petitions, all documentary exhibits received in evidence, the in camera conference with John together with the applicable statutory and case law and now makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
The parties were married for 27 years before they separated and divorced. They have four children together - Michelle, Thomas, Ashley and John. At the heart of this family is their profound devotion to the Catholic faith, which was central to the parties' marriage and children's upbringing both in practice (regularly praying the rosary together, attending mass weekly) and principle (abiding by Christ's teachings, leading a Catholic life).
John was eleven (11) years old and his siblings were in their early twenties when their parents' marriage dissolved. Father openly admitted that his unhappiness in the marriage led to adultery — a mortal sin according to Catholic teachings. Though Father was a very involved, attentive, devoted parent who enjoyed a close, loving relationship with all his children during the marriage, none of them (except Ashley) have spoken to him since the parties' divorce in 2014. John's refusal to have any contact with Father has confounded nearly every professional associated with this family, but evidently not Father, who refuses to give up on reunification with him at all costs.
Witness — Father
Father is 53 years old, and employed full time as a Lieutenant Detective Police Officer. He has been so employed for 24 years. He resides with the parties' daughter, Ashley (25), in a home that he owns. The court found Father to be a very reliable and credible witness. He presents as sincere, patient, remorseful and genuinely heartbroken over the current state of his family.
The separation experience for Father was marked by severe guilt, depression and confusion. Though he only moved out of the home once, he testified there were nights in the weeks that preceded his final departure when he stayed away, slept in his car or came home very late to avoid contact with Mother. His vacillation between staying in the marriage and going became the basis of a constructed story, a refrain repeated several times by Mother and John that Father left them "five (5) times."
Examples of this "five (5) times" narrative were woven throughout the testimony at trial and several documents received in evidence. Petitioner's Exhibit 7, Mother's 12/10/14 email to Father reads, "Bill, I will tell you again [ ] John does not want to see you because YOU left him five times I had nothing to do with that he says he believes in forgiveness but he forgave you five times." Petitioner's Exhibit 3, John's 5/12/15 letter to Father reads, "I don't trust you because you came and left 5 times and each time promised you were staying for good." The narrative continued in John's interviews with Dr. A.; examples of this are found in Petitioner's Exhibit 11 at pages 29 and 32, "He came back and I was happy. He did it five times. After the fifth time, I didn't want to be hurt anymore. The door has been closed for three years and now I don't even think about it" [ ] "I gave him mercy five times. There is a difference between being forgiving and being stupid. You have to know when to stop."
Father was remorseful in acknowledging that his leaving "crushed John" and demonstrated appropriate empathy towards Mother and John in this regard. Father testified that his intention had been to leave an unhappy marriage, not his children. He admitted that had he known this unrelenting rejection was what was coming, he would have stayed in his marriage and endured the unhappiness. After their separation, Father became extremely depressed. Riddled with guilt and sadness over his decision and his family's rejection, he became suicidal.
In or around March 2014, Father drafted a suicide note to Ashley, told Mother to tell the children he was dead to them and prepared a closet in his house with items he needed to hang himself. (Petitioner's Exhibit 11, Pages 25 — 26). Before he could carry out his plan Ashley called the police station number he left on the note. He was [*2]apprehended by the authorities and hospitalized for ten (10) days.
Even though Father was suicidal when he made the fateful statement that his children should consider him dead, he was shown no mercy by the family. Dr. A. confirmed that Father's statement was not intended to hurt the children, but rather prepare them for loss and create distance for himself to garner the courage to kill himself. Still, its effect was devastating. As the statement passed through Mother to the children it became twisted into something false and far more sinister — that his children were dead to him. No one offered Father compassion after this incident; in fact, the rejection intensified.
Around this same time, Mother had taken John to meet with a psychologist, Dr. Bernadette M. to address her concerns about his adjustment to his "father's departure from the family home." Dr. M. offered her opinion in a letter drafted to Mother (Petitioner's Exhibit 10). Just a few months later, the parties entered into their Property Settlement Agreement without an Attorney for the Child being involved.
The parties' divorce judgement (Petitioner's 1) provides that Dr. M. was to be further "engaged by the parties for therapeutic reunification counseling between Father and son." Father testified that this never got off the ground. It was uncontroverted that the sum total of the court ordered therapeutic reunification therapy amounted to a single 15-minute meeting between Father and Dr. M., who advised John needed more time to sort out his feelings.
A second letter from Dr. M. is referenced in Dr. A.'s report (Petitioner's Exhibit 11, pages 45-46) recommending that the relationship between John and Father be mended, but beyond mentioning this she did nothing further to help achieve reattachment. To this end, Dr. M. recommended Mother and Father seek co-parenting therapy. Father testified that he has asked for this several times, but Mother did not respond to his requests. Father testified that Mother engages in little to no communication with him.
Father took appropriate steps to overcome his depression. He appeared mentally healthy at trial, despite continued rejection by his family. He testified that he has remained in counseling since March 2014, and is not prescribed any medication. A letter dated March 19, 2015 from Father's counselor is attached to Petitioner's Exhibit 6.
Since the divorce, Father has offered genuine, heartfelt apologies to his children without response. He has made continual, sincere efforts to reconnect with John only to be thwarted at every turn. He attends his sporting events locally and out of town and cheers for him though he is completely ignored or criticized (Petitioner's Exhibit 3, John's letter to Father). Cards and letters that he has written to John were thrown in the garbage or sent back marked "return to sender" (Petitioner's Exhibit 2). Birthday and Christmas gifts are returned or thrown away. Almost all attempts to see John in person end with the door slammed in his face. All attempts to see John through the courts have failed.
No follow-up counseling was sought until Father commenced subsequent litigation in Erie County Family Court in or around December 2014. This round of litigation lasted eight (8) months and led to more counseling for John, but not reunification. Rose B. LCSW-R, a social worker of Mother's choosing, met with John for six (6) sessions. She opined in a letter to the Attorney for the Child (Petitioner's Exhibit 4) that John "takes full responsibility" for refusing to have contact with his Father and "has not been coerced by his Mother in this decision-making process." With the parting line "perhaps as an adult he will be able to re-visit this situation," Rose B. closed her case. Again, Father was left with no remedy or relief in forging a relationship with John.
By the next round of litigation in the summer of 2016, Father testified that Mother made an offer to end everything — she would give up her child support if he would give up trying to see John. Father testified that his lawyer at the time recommended this was the best outcome, that nothing else could be done. According to Father he was "flattened" stating, "I didn't see any hope, so I agreed to it." Petitioner's Exhibit 5 in evidence is the transcript from that August 3, 2016 proceeding.
Because Mother failed to hold up her end of the agreement by continuing to seek child support, Father [*3]moved to have his petition restored to the calendar testifying, "I just want to see my son. I'd pay anything to see him." Father made it clear that his stated alternative form of relief, emancipation, was not ever what he really wanted. In seeking this form of relief, Father exhibited sheer frustration and helplessness in trying to have contact with John.
Witness — Dr. Frank A. ("Dr. A.")
By stipulation of counsel, Dr. A. was qualified as an expert witness. He was appointed by the court to conduct a forensic evaluation of the family. His report and findings were received in evidence as Petitioner's Exhibit 11. Dr. A. testified twice in this matter, once in Father's case in chief and again as a rebuttal witness after the court heard from Mother's retained expert, Dr. David N.
At all times, the court found Dr. A. to be a very sound, reliable and credible witness. His findings were comprehensive and thoroughly explored at trial. His thoughtful and considered opinions appear consistent with the preponderance of the evidence in this matter.
Dr. A. described John as an alienated child who is not as "well-adjusted" as previous professionals have reported or as his grades and activities would make him seem. In responding to questions about how his opinion diverged from recommendations made by Dr. M. and Rose B., Dr. A. pointed out that neither professional had explored the prospect of whether John was capable of knowing and considered judgment in expressing a preference to have no contact with Father. Furthermore, neither professional considered John's developmental level though they both concluded that he was "happy, mature, well-adjusted" (see, Petitioner's 4) and "much more thoughtful than the typical eleven-year-old" (see, Petitioner's 10).
For instance, Dr. M.'s letter (Petitioner's 10) states, "John is a devout Catholic who aspires to become a priest," but she did not investigate why. Dr. A. did question John (who is now 15 years old) about this aspiration asking, "Do you remember having a calling?" to which John responded, "Kind of — yes. Well I wanted a dog and didn't want a wife who didn't want a dog. So, I thought of being a priest." This clearly speaks to his lack of maturity at that time. Dr. A. concluded he is still as immature now, not fully grasping the implications of his statements.
Dr. M.'s March 2014 letter (Petitioner's 10) indicated that John was already referring to Father as "a hypocrite," and someone who "completely abandoned his faith and values," "left his mother for another woman after 27 years of marriage," "feels he is a stranger to him," "has no plans or desire to interact with Father." In hindsight, this letter should have sounded the alarm bells that immediate therapeutic or judicial intervention was necessary, but the divorce proceeded without any sense of urgency, as did subsequent family court litigation.
Dr. A. found Mother and John to be "in lock step" with their opinion that Father was not a person of merit — a "scoundrel, a cheater, a fake." In this regard, they have established an enmeshed dynamic wherein they act as one another's "protector." Mother acts as John's protector in that she assumes a gate-keeping position asserting that contact with Father will be dangerous to John and upend his wonderful life. Mother also assumes the role of Father's victim and engages John as her protector. Dr. A. confirmed that John takes the position that Father is pursuing access with him only as a means to hurt Mother.
John and Mother shun Father "in the name of religion" both stating that they have forgiven Father, but that forgiveness does not require reconciliation. (Petitioner's 11, pages 7, 9, 32). Theologically, this may be accurate but in the instant case John and Mother's religious reasoning is incongruent with scripture. True evidence of genuine forgiveness is personal freedom from a vindictive or vengeful response (Romans 12:17-21), but not always an automatic restoration of relationship. Here, Mother and John speak negatively of Father. They each refer to him as a "liar" who is unworthy of their attention. John is quoted as saying, "I don't feel anything (towards him). He is just another person out there. I don't want to see him. It's a personality thing. It's not what he did. It's who he is. He is a liar. He is not trustworthy. He yelled a lot. Every time he came back, he said it was for good and he would leave again" (Petitioner's 11, page 29).
Mother's references to Father as a "liar" were overt, but at the same time subtle. In commending John's moral character at page 24 of Petitioner's 11, she stated to Dr. A., "I am so glad you met my son. You can see he has his own ideas. He knows who he is. When he was 4 years old a kid down the street wanted to play with John. John would not play with him. He said, 'because he is a liar'. He always had a moral sense."
Despite Mother saying that she supported a relationship between John and Father, Dr. A. found no evidence to corroborate her assertion. Inconsistencies in her demeanor, actions and statements proved troublesome. For instance, even though she professed to want John and Father to reunite, she repeatedly stated that John should not be forced to see Father (Petitioner's 11, pages 7, 24 and 34). Although Father has made several sincere apologies and gestures of love to John, Mother still maintains, "He has done nothing to get back with John. He just wants to get out of child support" (Petitioner's 11, page 12). Despite hard, credible evidence to the contrary, including this very litigation, Mother holds, "Bill has never tried. Never came to the door. He abandoned John" (Petitioner's 11, page 18).
Dr. A. found Mother's assertion that she never speaks negatively of Father in the presence of the children to be false. Mother's persistent denigration and vilification of Father pervades her relationship with John as well as her adult children. Mother could not even refrain from denigrating Father in the presence of John during a 30-minute interview with Dr. A. In this joint session Mother stated, "The church teaches that there are certain people you should stay away from. And it wasn't just me. It was the unit. He left all of us." (Petitioner's 11, page 33)
Several references of Mother's disdain for Father are made in Dr. A.'s report. For example, though she agreed that he was an involved and loving parent, she could not think of one responsible decision Father had made in 27 years of marriage. Saying to Dr. A., "I'm just trying to think of one decision he made. Putting Ashley on too many teams was not responsible. I had to stop that. Making Tom go to St. Joe's was not responsible. Making Ashley go with that creep coach was not good. He is trying to drain me financially. That is not responsible." (Petitioner's 11, page 11). Mother also provided Dr. A. with her written Annulment Application which was replete with contempt for Father. In that document, Dr. A. found descriptions of Father as "a liar," "an emotional abuser," "evil," "a predator who wore a mask concealing his true character," "devoid of empathy," and someone who has "done nothing to make amends with his children." (Petitioner's 11, pages 49-50).
Dr. A. found that John's home environment is not free from false allegations and denigration of Father. As a result, John does not differentiate his Father leaving his marriage and leaving him. He described "porous boundaries" between Mother and John, which was evidenced by John's knowledge of Father's infidelity and these court proceedings. See Petitioner's 11 (page 29), where John's opening statements to Dr. A. reflect complete alignment with Mother: "He left. We tried to get him back. We gave up trying. We just moved on and now we don't think about it anymore."
Dr. A. pointed to Mother's offer to Father to be relieved of child support if he would agree to her relocation as an example of her subversive manipulation and influence. He testified that Mother refashioned the proposal she made to John as an expression of Father's abandonment — "your Father does not care for you. He will let you move away and not pay for you." It is undisputed that John presently vilifies Father for bringing the instant petitions before the court which seek alternate relief in the form of emancipation. (See, Petitioner's 11, page 29 — noting that John is under the false impression that [Father] "wants to officially remove me from his life by not paying child support it hurts. I am his son.")
Dr. A. observed Mother did nothing to guide John into complying with even the directive to meet with him and Father in a joint session. (see, Petitioner's 11, page 34). She simply sat by silently and allowed him to make the decision not to go. This lack of guidance was a common theme for John's access with Father as well. Dr. A. found that Mother abdicated her parental authority to John in making the decision as to whether he would see his Father, starting at age 11. This has continued unabated to the present day. As such, Mother's parental capacity was severely compromised by her failure to guide John into compliance with court ordered access (see, Petitioner's 11, page 20).
At the conclusion of Dr. A.'s original testimony (in or around August 2017), he opined that this was an atypical presentation of alienation but alienation nonetheless. It was atypical in that John had not yet exhibited overtly hateful behavior to Father other than sending Petitioner's 3 addressed "Dear Bill" and refusing contact with [*4]him. By December 1, 2017 when Dr. A. was called as a rebuttal witness, circumstances had changed. Because John was refusing to abide by the terms of the court's order regarding access, Dr. A. opined that things were worse than he originally thought. He concluded that John was a severely alienated child describing him as emotionally brittle, defiant and rigid. When asked if there was any doubt in his mind whether Mother was to blame for John's behavior and outlook, he responded "None - no doubt in my mind."
Dr. A. recommended that the parenting plan that most likely to restore John's relationship with Father and extricate him from the unhealthy elements of his relationship with Mother would be for the court to grant Father sole custody. Dr. A. cited research to support his opinion that alienated children recover their relationship with the targeted parent in a relatively short period of time when under that parent's care. To give the relationship the psychological space it needs to grow, he recommended Mother limited supervised contact for a period of six (6) to twelve (12) months. (see, Petitioner's 11, page 62). He further recommended a course of intensive in-patient psychotherapy as well as intensive outpatient aftercare therapy.
Dr. A. testified that John's interests are best served by protecting him from the unhealthy parent-child relationship with Mother.He made it abundantly clear that children left in alienating situations without intervention suffer higher rates of substance abuse, depression, suicide, have multiple marriages, and ironically can become an alienated parent. (See also, Petitioner's 11, page 58).
Witness — Ashley ("Ashley")
The parties third child, Ashley, is 24 years old and resides with Father. Though obviously uncomfortable and reluctant to say anything that might hurt Mother, Father or John, Ashley stood out as the most credible and reliable of her siblings. She gracefully braved insensitive cross examination intended to impeach her character. Ashley openly admitted that she is in recovery from heroin addiction and participating in the Amherst Drug Court. She presented as sensitive, honest, and thoughtful.
She testified credibly that Father was very close to all the children during the parties' marriage and described him as an involved, supportive and good parent stating particularly that "Dad and John were best friends [ ] they really did a lot together." Ashley acknowledged that Mother and her siblings have denigrated and vilified Father since the divorce and have essentially shunned him. Though she was careful to say that John is "usually" not present, it was clear to the court that he is acutely aware of the family culture and participates in the same behavior as his older siblings.
Dr. A. met with Ashley as a collateral resource in his forensic evaluation and found that she corroborated the family pattern of shunning and Mother's use of the older children to further the alienation. In a telling comment to Dr. A., Ashley remarked, "They act like my dad was dead when he left. My older brother says he is a father to John now. It is all under the surface. When I lived at my moms and wanted to talk to dad, she said it's okay. Then she called my brother and sister and cried and they would call me. She says 'you are not one of us' so it feels like the family is divided. [ ] In my family right is right and wrong is wrong My little brother follows what they do." (see, Petitioner's 11, page 52).
At a recent Christmas gathering, Ashley recalled leaving prior to her scheduled departure because as she put it, "they started talking about dad and I just get — I have a limit — I just get sick of talking about it." The court found this statement noteworthy in that Ashley was the only witness to articulate how her Mother and siblings remain focused on their version of the past even now.
The old story of "Father the Cheater, Father the Liar, Father the Abandoner" — constructed only from Mother's perspective — haunts this family like a ghost. The story is cycled and recycled without ever considering Father's perspective to complete it. Lost in this story is the whole truth. There is no prospect of redemption. There seems to be no consideration for the actual, present world we are living in today — a world where Father has been trying desperately to connect with his children, who remain stuck in their pain and the past with their Mother.
[*5]Witness — Mother
Mother is 53 years old. Though she did not testify to her educational or work background, Petitioner's Exhibit 11 indicates that she has a Master's in Education and teaches part-time at a parochial school. She did not testify to her income. Mother resides with the parties' son, John.
The court did not find Mother to be a very reliable or credible witness. She presented as self-righteous, misguided and insincere. Her testimony demonstrated a total lack of insight as to what role she played in the demise of her marriage and in Father's current estrangement from John and his older siblings. She was generally a defensive, non-responsive and evasive witness. Her testimony lacked credibility and important context because of things she refused to admit.
Take, for instance, the issue of how to assign blame for the family's current predicament. While Father addressed this issue with regret and remorse and acknowledged his own failings, Mother side-stepped the issue of accountability and even lauded her efforts to protect John from "being [Father's] victim again." In avoiding culpability, she either flat out blamed Father or stated, "It is what it is. There's no blame. It's just what evolved." When asked if she was even slightly to blame, Mother took an extraordinarily long pause and finally responded, "Maybe I am somewhat because no one is perfect."
Mother's behavior at trial was consistent with Dr. A.'s findings that she assumes no responsibility for the breakup of the marriage, stating that "she has been a faithful and devoted wife and mother." (see, Petitioner's 11, page 6). She also viewed herself as not having made any significant parenting mistakes. (see, Petitioner's 11, page 17). Though she idealized and proudly described her family of origin as exemplary with a reputation for good character and strong Roman Catholic values, Dr. A. found her characterization was offset by certain factual inconsistencies. (see, Petitioner's 11, page 21).
For example, Mother stated two of her sisters were sexually abused by her brother. Out of the nine (9) children in her family of origin, five (5) are divorced. Her sister was shot (non-fatally) by her husband. The most moving of all her disclosures was Mother's description of her family's manner of dealing with disapproval — shunning. Mother herself described being mercilessly shunned by her own sister who engaged her other siblings in shunning her as well. (see, Petitioner's 11, page 6, 21-22).
Mother refused to admit that she harbors any resentment towards Father, which the court found incredulous based on her tone, demeanor and actions. Dr. A. found that Mother's psychological testing revealed that she recorded the highest possible score for closed-mindedness and concealing discordant attitudes. Dr. A. found that Mother off-sets any self-doubt by aligning herself with the church— an authority that cannot be questioned. (see, Petitioner's 11, page 39).
When challenged on the witness stand, she would often dismiss her own actions as necessary based on the circumstances; for example, when asked if she shared details of the court proceeding with John she stated, "I had to [ ]. I said, 'You not seeing dad is going to hurt us. We need that money.'"
Mothers testimony was often subtly contradictory, shifting between direct and cross examination. For example, she testified on direct exam that Father has not done enough to try to win back John's affections, and on cross complained that he is not giving John enough time and space to heal by making repeated attempts to see him through the courts. Mother could offer not one single shred of credible evidence that she affirmatively did anything to encourage John's relationship with Father.
In her own words when asked by John's attorney what she has done to encourage John's relationship she replied, "I just kept telling him you have to go." She adamantly asserted that she tries "her best" to get John to go, but he just will not budge. As evidence of her "best" efforts, Mother made an audio recording received in evidence as Petitioner's Exhibit 17. She testified that she made this recording to show that she complied with the court's temporary order of access.
Petitioner's 17 demonstrates two failed attempts by Father to exercise his court ordered access, once on [*6]September 3, 2017 and again on September 10, 2017. Both times, Mother is heard doing nothing more than saying in a somewhat flat and uninspiring tone, "John you need to go. John, you have to go. John, I'm not kidding you have to go. John I'm telling you, you have to go we talked about this, you have to go. Come on, John, let's go." After the failed access attempt, when Father attempted to engage her in conversation about John's sport activities for the fall and what they can do to help the present state of affairs, she evades him and obstructs any meaningful conversation from occurring. To Father's direct questions about when they could get together and discuss things Mother replied, "I'm not sure. [ ] I don't know. I don't know when. [ ] Right now, I have to worry about today."
Mother admitted that she is comfortable with John's decision to reject Father, "because of the suffering I saw him go through" but still maintained that she wanted John to have a good relationship with Father. Despite that her observations of John's suffering, Mother has done nothing to help guide him through it to a healthy relationship with Father. She refuses to entertain co-parenting counseling which sends a clear message to John that Father is not welcome in her or John's life.
Of significance in this entire family culture is that Mother has controlled the narrative from the moment Father left the marital residence. Though she vehemently maintains that she never told John to shun Father, she cannot deny that he does and has done so since their separation without guidance or repercussion from her. In fact, Mother champions John's decision and "right" to reject Father — as it seems abundantly clear in her narrative that he is the sinner, and she is the saint. In remarking on her failure to support and endorse John's relationship with Father, Dr. A. quoted Mother as saying, "I want John to live in peace — to have a normal childhood and he does. He says he has a wonderful life. If his dad wants to join his life someday, that's a beautiful thing, but John had no say in his father's leaving and he should have some say now." (see, Petitioner's 11, page 15).
It is difficult to ascertain the level of Mother's control, influence and obstruction; but there is no question that it exists and is felt pervasively throughout the family. Her contempt for Father and manipulation of the narrative has spread and infected her children like a malignant cancer. She has excluded her children from knowing their Father in the present tense, from giving him love and receiving his love in return. Their life before the divorce — the good times — were hard for them to remember and articulate. Evidence of this came through witnesses, Michelle, Thomas and John.
Witness — Michelle ("Michelle")
The parties first born, Michelle, is 28 years old and resides with her husband and two children. She is employed full time as a Pharmacist. Michelle's credibility was severely undermined by her alignment with Mother and clear disdain for Father. She presented as misinformed, hurt, defensive and at times evasive.
Michelle was hypercritical of Father. She reluctantly described a good life and good relationship with him when the parties were together, but she testified that she wants nothing to do with him anymore. She admitted that she has thrown away cards and letters he has sent to her. An example of one of Father's letters to Michelle was received in evidence as Petitioner's Exhibit 12, an impassioned plea to not take sides in the divorce and let him remain in her life as a father. Michelle rejected this plea along with other gestures of love, sending back gifts he has sent to her daughter, denying him any relationship with her children as well.
Michelle complained that Father tried to manipulate her during the parties' separation; however, it was clear to the court that she rejected all Father's explanations for leaving the marriage and adopted her Mother's entire perspective. Most disturbing was Michelle's opinion that Mother would not speak negatively of Father "other than the truth." Michelle regarded "the truth" to be facts that she learned from her Mother.
For example, she testified that the most negative thing Father did was to say, "tell the children I'm dead to them." While this is true, Michelle testified that she was unaware Father was on the verge of suicide when that statement was made. The fact that he was suicidal made little difference in her opinion. Michelle also believed that [*7]Father was "starving" John and Mother by not supporting them. She testified that Mother told her that he was not paying any child support, and she adopted this as "the truth" when in fact he never missed a single payment.
Michelle's judgmental and negative attitude toward Father was disproportionate to even her own version of his transgressions. She justified her total rejection of Father by stating, "He is manipulative to me and he always has been. I could not take the emotional torment any longer." When challenged with evidence to the contrary, she sidestepped just like Mother. For example, when reminded that she authored a letter to Father stating her wish for her own husband to be the type of husband and father he had been, she dismissed it; stating, "I remember feeling that way. I don't feel that way now." In a similar rejection of her sister, Ashley, who resides with Father she described her as "lost" and "confused" and having "no sense of direction she has no goals."
Though Michelle was called to the witness stand to support Mother's position, her strong alliance with Mother and reluctance to acknowledge Father's positive influence on her life ultimately served to damage Mother's case more than help it. Her testimony clearly demonstrated how Mother's narrative has cruelly turned her heart against Father.
Witness — Thomas ("Thomas")
The parties' second child, Thomas, is 27 years old and employed as a resident physician. He also testified in support of Mother and like his sister, Michelle, Thomas' credibility was severely undermined by his disdain for Father. He presented as rigid, hostile, arrogant and uncompromising.
Thomas offered his opinion that he saw nothing in his parents' marriage that would have made his Father unhappy. Upon cross examination, he grudgingly admitted that perhaps there were details of their relationship that they did not discuss with their children. He admitted both of his parents involved him in conversations about their marital difficulties early on, but that he stopped speaking with Father in or around February or March 2014.
Since then, Mother has exclusively shared her perspective with him that Father lies and is manipulative. Thomas testified he agrees with Mother because he has witnessed Father's manipulation himself. He could not offer a single example of Father's manipulative character; however, he ironically testified that if Father were to break up "with the woman he cheated on my mother with" and if he expressed "true remorse" and gave "our family time to heal," they might reconcile with him.
Thomas admitted Mother discussed the details of Father's affair with him and shared private texts and emails with him that were unflattering to Father. One such email was Petitioner's Exhibit 9, in which Father uses very foul language. The record was silent as to whether Thomas was aware Father was responding to an email from Mother advising him to "Distance yourself 4,000 miles and come back from California. Keep your selfish evil ways there and take your mistress with you. Distance yourself from all of us and let us live in peace." (See, Petitioner's 9).
Thomas demonstrated complete alignment with Mother by using phrases like "he's been taking us to court" and "we've been under attack by him." He became very uncomfortable and red in the face during cross examination when he could not disagree that Father provided a good home and did a myriad of positive things to shape him into the man he has become. Ultimately, he could not bring himself to admit that it was important for his brother John to have Father in his life, responding "I think it's important for John to have male role models in his life."
Like his sister, Michelle, Thomas injured Mother's position in this matter by demonstrating close alignment and unreasonable condemnation of Father. His testimony clearly demonstrated a systemic culture of shunning that emanates from Mother and works through the older children by proxy to keep John from Father.
Witness — Dr. David N. ("Dr. N.")
By stipulation of counsel, Dr. N. was qualified as an expert witness. He was retained by Mother and the [*8]Attorney for the Child to review Dr. A.'s report and findings and offer his own expert opinion as to its validity and reliability. Dr. N. admitted that when he was retained, he understood "the climate" of his role would to be to "challenge Dr. A.'s findings."
Dr. N. agreed that Dr. A. used reliable methods and principals and gathered sufficient facts and data; yet, his opinion diverged significantly from Dr. A.'s findings. He offered credibility assessments without interviewing the parties or reviewing any supporting raw data, notes, testing or test results relied upon by Dr. A. Interestingly, Dr. N. did meet with John and his attorney in preparation for his testimony. While he agreed with Dr. A. that John was not as well-adjusted as he seemed having not processed his anger, confusion and disappointment over his parents' separation, he opined that he should be left alone and allowed to reject Father.
While Dr. N. was a credible witness, his reliability here was lacking. First, the court did not find his opinion consistent with the preponderance of the credible evidence. Furthermore, his reliability was limited by the scope and methodology of his review process. Dr. N. admitted that professional guidelines prohibit him from serving in a dual role as reviewer/evaluator or reviewer/consultant; however, his testimony frequently went beyond the scope of reviewer into an evaluator role. Because his approach and assessment were flawed, the court accorded little weight to his opinion in this matter.
In Camera - John
The court conducted in camera conference with John on February 26, 2018. He is a handsome, intelligent, polite and charming young man, who also presented as immature and hollowed out by heartbreak. When discussing school and sports or his career aspirations, his demeanor was light and affable. If that was all that was discussed, the court would have concluded that John is a sharp, well-adjusted boy with a bright future ahead of him.
As the conversation shifted to Father or his family, John's demeanor completely changed to one of almost no affect. Obviously devastated by his parents' divorce and ongoing legal battle, John became rigid, closed-minded, uncompromising and unapologetically defiant. He could offer the court no reasonable explanation for taking such an intense oppositional posture, but it was clear that he has repressed his pain. In this regard, the court found Dr. A.'s description of John as "emotionally brittle" to be fitting. If his relationship with Father was all that was discussed, the court would have concluded that John is a boy in trouble, suffering in an apparent disassociated emotional state. He has developed neither the emotional sophistication nor language to express any feelings on this subject.
Taking the conversation as a whole and in light of all that was put before the court regarding John, the court concluded that John's character is absolutely divided — like a mirror-image of his family. He has internalized the family culture of shunning. Although he professes that his rejection of Father is his own decision, not influenced by Mother, John lacks any insight or capacity to critically evaluate his parents' divorce and how it affected him.
Given his close bond with Father prior to the divorce, John's sweeping condemnation and repudiation of Father is unreasonable and appears profoundly influenced by Mother. Even giving due consideration to Father's actions in having an extramarital affair and ending his marriage, John's scorn and rejection of him are not justified. As described by both experts in this matter, John appears angry and entrenched. Instead of processing his feelings, it appears quite clear that he has buried them.
CONCLUSIONS OF LAW
This case cannot help but call to mind the immortal words of the Court of Appeals, "Like Humpty Dumpty, a family, once broken by divorce, cannot be put back together in precisely the same way." Tropea v. Tropea, 87 NY2d 727, at 740 (1996). This once happy and close-knit family manifests a most complex restoration mission for the court. Can a family so bitterly divided and devastated by parental alienation and protracted litigation ever be put back together at all? This court believes they can, but the restoration process will likely hurt as all growth often [*9]does.
A party seeking a change in an established custody arrangement must demonstrate a change in circumstances that reflects a real need for change to ensure the best interests of the child. Gross v. Gross, 119 AD3d 1453 (4th Dept. 2014) Horn v. Horn, 74 AD3d 1848 (4th Dept. 2010). Father met his burden of demonstrating a change in circumstances sufficient to warrant an inquiry into whether a change in custody is in the best interests of the child. Miller v. Miller, 141 AD3d 1117, (4th Dept. 2016).
It was undisputed that John's once close and loving relationship with Father has been allowed to completely disintegrate in Mother's custody. There was credible expert testimony that John's psychological health has deteriorated to a point that, if left in the custody of Mother without judicial and therapeutic intervention, will lead to lifelong damage. There was significant, credible evidence that John is an alienated child who is unable presently to give and receive love from Father. Mother's prolonged and intentional interference with Father's parental rights, failure to communicate with him, and failure to appreciate the importance of Father in John's life put John at risk of lifelong emotional harm. Green v. Bontzolakes, 111 AD3d 1282 (4th Dept. 2013) All of these facts, form the basis of a change in circumstances in this matter sufficient to warrant a best interests analysis. O'Connell v. O'Connell, 105 AD3d 1367 (4th Dept. 2013); see also Dorsa v. Dorsa, 90 AD3d 1046 (2nd Dept. 2011)
Although the parents agreed to share joint custody of John, it was clear that Mother has acted as his de facto sole custodian since the parties' divorce in 2014. She has not involved Father in a single parenting decision since entering into that agreement. It was undisputed that Mother is essentially unable or unwilling to communicate and discuss important issues related to John. These parties cannot and have not made decisions jointly for John since their separation.
Every single witness at trial agreed that prior to their separation, John had a wonderfully close and loving relationship with Father. Since remaining in his Mother's sole care, that relationship has been extinguished and discarded as garbage, just as the many cards and letters of Father have been. John vilifies his Father, refuses court ordered access and even refused a joint session with Dr. A. without any retribution from Mother.
Facts adduced at trial bear out that despite every method of court intervention, Mother continues to support and perpetuate John's condemnation and rejection of Father. All prior attempts at counseling have failed. A forensic expert was appointed to evaluate this family and make recommendations, and no changes ensued in the dynamic. Mother's maintenance payments pursuant to DRL§ 241 were suspended in an effort to motivate Mother to adjust her behavior, and no changes ensued in the dynamic. In fact, the information was shared with John whose rejection intensified. Very simply, Dr. A. was asked "Can she stop?" relative to Mother's ability to end the shunning on her own — to which he replied, "I saw no indication of that."
In determining whether a custody agreement should be modified, the paramount issue is whether, under the totality of the circumstances, a modification of custody is in the best interest of the child. Perry v. Korman, 63 AD3d 1564 (4th Dept. 2009); citing Maher v Maher, 1 AD3d 987, 988-989 (4th Dept. 2003). There is no one factor that is determinative of whether there should be a change, including the existence of a prior custody agreement. The prior agreement is just one of the factors to be considered.
No agreement of the parties can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child's best interest. Friederwitzer v. Friederwitzer, 55 NY2d 89 (1982). In addition, the court in Friederwitzer noted that the weight to be given to the prior agreement depends on whether there was a full hearing before the trial court or it was merely the uncontested stipulation of the parties incorporated into the court's judgment. See also, Maher v. Maher, 1 AD3d 987, (4th Dept. 2003).
In determining the child's best interest, the factors to be considered include: (1) The quality of the home environment and the parental guidance the custodial parent provides for the child. (2) The financial status and the ability of each parent to provide for the child. (3) The ability of each parent to provide for the child's emotional and intellectual development. (4) The demonstrated parenting ability and demonstrated fitness of the parties. (5) 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 or her own. (6) The willingness and [*10]ability of each party to facilitate and encourage a close and optimum relationship between the child and the other party. (7) The individual needs of the child or the desires and preferences of the child. (8) Any other factors deemed relevant to a particular custody dispute; e.g., domestic violence and its impact on the child. Friederwitzer v. Friederwitzer, 55 NY2d 89 (1982); Eschbach v. Eschbach, 56 NY2d 167 (1982); Fox v. Fox, 177 AD2d 209 (4th Dept. 1992).
With respect to the following factors — quality of the home environment, financial status, parental guidance, each parent's ability to provide for John's emotional development, demonstrated parenting ability and fitness, each party's willingness to put John's needs ahead of his or her own and each party's willingness and ability to facilitate and encourage a close and optimum relationship between John and the other party — all weigh heavily in favor of Father.
The quality of Father's home environment was found to be superior to Mother's. Father can provide a neutral, loving environment where John would be free from manipulation. Father intends to move into John's school district should he be granted custody to spare John any anxiety about changing schools. He supports John's extracurricular activities including his involvement in the church and sports. Most importantly, his willing to guide John into a healthy relationship with Mother by attending co-parenting and other intensive therapy to repair the malignancy that has infected the family.
The preponderance of the evidence supported a finding that Mother's home environment is not free from denigration of Father, even false allegations of denigration as Dr. A. described Mother's "re-fashioning" of the truth to John to satisfy her own feelings of vengeance. This undermines the quality of her home environment significantly. Furthermore, Mother abdicated her role as parent to John himself and granted him sole decision-making authority over whether to have contact with Father. In this regard, Mother has failed to meet her parental obligation to nurture and guide John into a healthy relationship with Father post-divorce.
Neither parent offered significant testimony regarding their financial status or income. Nevertheless, Father testified that he pays approximately $46,000.00 annually in maintenance and child support. He also testified that he has long standing full-time income as a police detective. As a part-time parochial school teacher, Mother relies significantly on maintenance and child support from Father to supplement her income and support John. Based on these facts, this factor weighed more heavily in favor of Father. The court finds that Father is more capable of sufficiently providing for John.
There is no question that John is an extremely bright, accomplished student. Both parties appear equally equipped to support and foster John's intellectual development and love of school. This factor did not weigh heavily in favor of either party.
With respect to each parent's ability to provide for John's emotional development, the parties reveal clear differences. Father testified competently about John's strengths as a maturing young man and supported his participation in church and extracurricular activities of his choosing. He testified lovingly about John's positive attributes and demonstrated a clear desire to nurture his strengths. Father clearly displayed a greater sensitivity to John's maturing emotional and psychological needs.
In contrast, Mother's decisions concerning John's emotional development appeared to be centered solely on her own interests and not John's. She has allowed John to shun Father and denigrate him, and has not made any effort to guide him past the psychological pain he carries from the divorce. In fact, Mother champions John's efforts to reject Father asserting that "John had no say in his father's leaving and he should have some say now." (see, Petitioner's 11, page 15).
Dr. A. described this pattern as being categorically unhealthy for John's emotional development. If left unchecked, John will suffer lifelong damage to his psyche and relationships. It is well settled that a concerted effort by one parent to interfere with the other parent's contact with the child is so inimical to the best interests of the child ... as to, per se, raise a strong probability that the interfering parent is unfit to act as custodial parent. Viscuso v. Viscuso, 129 AD3d 1679 (4th Dept. 2015) citing, Amanda B. v. Anthony B., 13 AD3d 1126 (4th Dept. 2004); Avdic v. Avdic, 125 AD3d 1534 (4th Dept. 2015); Marino v. Marino, 90 AD3d 1694 (4th Dept. 2011).
The court finds that Mother's actions, demeanor and inaction demonstrate a significant lack of parental [*11]fitness. Even assuming arguendo that John's rejection and denigration of Father were independent of Mother's manipulation, her compliance in allowing it to continue without restraint or intervention is tantamount to abuse. John has become Mother's ultimate means of revenge, using him to punish Father for his sins, all without regard to how this traumatizes John. The boy that once adored his Father has been devoured by Mother's narrative, leaving only faint, fragments of him in its wake.
No one can question either parent's love and affection for John. Without diminishing Mother's love of her son which is clear, the court is convinced that she breached every duty she owed as his custodial parent to nurture his once strong feelings of love and respect for Father. She does nothing whatsoever to encourage an optimum relationship between John and Father. Quite to the contrary, Mother has cruelly destroyed John's relationship with Father, and fostered his estrangement by corrupting John's reality and reinforcing a sense of "us" versus "him."
Father acknowledged a sincere desire and intention to support John's relationship with Mother should he be granted custody. He demonstrated an understanding of the significant role Mother plays in John's life and supported her decisions by planning to maintain John's current religious, education and medical providers.
Currently, the emotional bond between John and Father appears severed; however, it once was indisputably strong, which holds out hope that it could be restored. Though John appears to be completely united with Mother, Dr. A. noted that their bond is an unhealthy attachment reflecting "porous boundaries" which deprive him of an independent relationship with Father. Appropriate parent-child boundaries were found to be so blurred that Dr. A. determined Mother and John to be "in lock step", sharing the same "5 times" narrative that Father left them.
Perhaps the only factor that weighed in Mother's favor was John's individual need and preference. The Fourth Department has held that a child's preference should be considered keeping in mind the child's age and level of maturity. "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." Stevenson v. Stevenson, 70 AD3d 1515 (4th Dept. 2010).
In this particular case, the Attorney for John strenuously presented John's adamant position to spend no time at all with his Father. It was never explored by counsel whether John was capable of knowing and considered judgment in expressing this preference, therefore his attorney did not substitute judgment. Again, as with the other factors, the child's desires should not be considered determinative. In weighing this factor, the court must consider the potential for influence having been exerted on the child. Eschbach v. Eschbach, 56 NY2d 167 (1982); Friederwitzer v. Friederwitzer, 55 NY2d 89 (1982); Nehra v. Uhlar, 43 NY2d 242 (1977); Matter of Bryan K.B. v. Destiny S.B., 43 AD3d 1448, (4th Dept. 2007); Maher v. Maher, 1 AD3d 987; (4th Dept. 2003); Amy L.W. v. Brendan K.H., 37 AD3d 1060, (4th Dept. 2007).
Here, the court finds John to be profoundly influenced by Mother, so much so that he cannot perceive a difference between Father leaving his marriage and Father leaving him. When it comes to his Father, he is emotionally brittle, immature and defiant — in effect, Mother has locked him in a prison precisely the size of his own body removing his ability to give or receive love from Father.
Though an intelligent young man, John presents as immature and incapable of independent considered judgment. To follow John's wishes would be tantamount to amputating his relationship with Father forever, which would clearly be contrary to his best interests. Mother's persistent and pervasive pattern of alienating John from Father is likely to result in a substantial risk of imminent, serious harm to the child. Viscuso v. Viscuso, 129 AD3d 1679 (4th Dept. 2015)
Based on the totality of the circumstances, the court finds Father has met his burden of proof to show that Mother is less fit than Father to act as John's primary custodial parent. While Mother competently attends to John's medical and educational needs, she appeared totally incapable of tending to his emotional and psychological growth. She has been unable or unwilling to curb her own or John's behavior since the parties separated despite numerous attempts by the court and psychological professionals to effect change. Mother's denigration of Father and acquiescence in John's total rejection of him make her ill-suited to act as his primary care giver.
This court recognizes the risks associated with the following decision, but believes the risks associated with not making it are far worse for John. This court has exhausted every measure in attempting to effect a transformation of this family thus far to no avail — all warnings to stop have been ignored, leading us to this moment of reckoning.
It was made clear at trial and corroborated in camera that John will not abide by the terms of this order. Historically, [*12]he has not abided by any prior court order. Nevertheless, this decision is an emphatic expression of care for John. It will no doubt cause temporary pain and upheaval in his life, but this is a small price to pay to prevent a host of lifelong problems for him if not addressed in this fashion right here and now.
Regardless of John's defiance, Mother and Father are bound by the unequivocal mandates contained herein. Father must be patient and gentle with the process. Mother must repent and be willing to come apart for the sake of John, for the sake of transformation. Engage the change and the necessary unraveling that follows, rather than continue the same old resistance. No clearer message can be delivered to this family that the time to let go and move on is now. This decision lays out a path for John to bloom, but to bloom he must first be a seed. "For seed to achieve its greatest expression, it must come completely undone. The shell cracks, its insides come out and everything changes. To someone who doesn't understand growth, it would look like complete destruction."[FN1]
Because religion is so central to this family's identity, the court invites them to seek guidance from scripture during their transformation. Of particular relevance is Matthew 18:21-22, the Parable of the Unmerciful Servant, when Peter asked Jesus "Lord, how oft shall my brother sin against me, and I forgive him? Seven (7) times?" It might be important for John to know that Jesus did not say, "No, Peter, just "five (5) times. You have to know when to stop." Jesus told Peter, "No, not seven (7) times but seventy (70) times seven (7)."
Perhaps a joint meditation on these words and a sincere effort to put them into practice will ease this family into their new normal: "Let all bitterness and wrath and anger and clamor and slander be put away from you, along with all malice. And be kind to one another, tender-hearted, forgiving each other, just as God in Christ also has forgiven you. Therefore, be imitators of God, as beloved children; and walk in love, just as Christ also loved you, and gave himself up for us, an offering and a sacrifice to God" (Ephesians 4:31-5:2).DECISION
The court after a review of all the evidence and being in a position to observe the demeanor and credibility of the witnesses finds that, in the totality of the circumstances, the best interests of John are served by modifying custody in this matter to designate Father to be John's sole custodian. In modifying the parties' custodial arrangement, the court has carefully weighed all factors, including giving special weight to the child's express position, in determining this modification to be in John's best interests.
NOW, THEREFORE, the Court having searched the statewide registry of orders of protection, the sex offender registry and the Family Court's child protective records, and having notified the parties and the attorney for the child of the results of these searches; and the Court having considered and relied upon the results of these searches in making this decision it is hereby:
ORDERED that Father's First Amended Petition seeking Modification of Custody & Visitation/Emancipation (Docket No. V-17849-14/17D) is hereby dismissed with prejudice in favor of the order below; and it is further
ORDERED that Father's Second Amended Petition seeking Modification of Custody & Visitation/Emancipation (Docket No. V-17849-14/17D) is hereby granted as follows:
Father is granted sole legal and physical custody of John. Father is directed to move into the W. School District before the commencement of the 2018-19 school year so as to maintain consistency in John's education.
As a component of the within order, Mother's parenting time with John shall be suspended for a period of ninety (90) days to commence simultaneously to the commencement [*13]of the Families Moving Forward Program set forth below with the exception of any therapeutic intervention as set forth in this order. This includes any and all electronic access including social media contact.
As a component of the within order, John shall have no access with his siblings Michelle or Thomas for a period of ninety (90) days to commence simultaneously to the commencement of the Families Moving Forward Program set forth below.
As a component of the within order, and prior to John's transition into his household, Father shall immediately enroll himself and John in the Families Moving Forward Rejected Parent and Child ("inpatient") Multi-Day Intervention Program found at www.familiesmovingforward.ca by contacting DR. BARBARA FIDLER (416) 481-2046 or any other provider in her practice. Contact with Families Moving Forward Program shall occur within seven (7) days of the date of this order to arrange a clinical intake consult. John and Father shall engage in and complete this program as soon as the availability of the program will allow.
As a further component of the within order, Mother shall immediately enroll herself in the Families Moving Forward Favored Parent Intervention Program found at www.familiesmovingforward.ca by contacting DR. BARBARA FIDLER (416) 481-2046 or any other provider in her practice. Contact with Families Moving Forward Program shall occur within seven (7) days of the date of this order to arrange a clinical intake consult. Mother shall engage in and complete this program as soon as the availability of the program will allow.
Should the Families Moving Forward Program determine that this family is ineligible after completing the clinical intake consults, then the parties and John are directed to enroll immediately in the Overcoming Barriers Program found at www.overcomingbarriers.org and follow through with the clinical intake consults and enroll in this alternate inpatient program if accepted.
As a further component of the within order, regardless of which inpatient therapy is done, both parents and John are directed to engage in aftercare therapy which may include but not be limited to co-parenting therapy as well as re-integration therapy. Both parents shall immediately contact DR. DREW MESSER Phone: (716) 961 - 9435 to arrange weekly aftercare [*14]("outpatient") multi-faceted Family Therapy to commence immediately following Families Moving Forward inpatient therapy. Contact with Dr. Messer and his associates shall occur within seven (7) days of the date of this order to arrange a clinical intake consult.
As a further component of the within parenting plan Father, Mother and John shall participate in all elements of the inpatient therapy and outpatient aftercare program as directed by the team of therapists.
Mother shall be responsible for the cost of said programs. As such, all maintenance payments being held in escrow as of the date of this decision shall be surrendered to Father (through counsel) to be used for payment of the inpatient therapy and aftercare program. Any costs associated with the programs beyond the amount held in escrow, shall be paid for equally by the parties after any applicable deduction for health insurance (i.e. parties shall split the co-pays for treatment equally).
As of the date of this order, all child support and maintenance payments shall be suspended pending Mother's full compliance with the terms of this order. Once Mother has substantially complied with the terms of the within order by participating in the Families Moving Forward Program (or other like inpatient therapy) and seeing John's transition into Father's household through, maintenance payments shall be restored to her in full, less what has been held in escrow up to the date of this order.
All professionals treating this family associated with the Families Moving Forward Program and subsequent outpatient therapy including but not limited to the Messer Group shall be provided a copy of Dr. A.'s report and recommendation (Petitioner's 11) as well as a copy of this Decision & Order. Mother and Father are hereby directed to execute any and all authorizations to allow Dr. A. and all treating professionals to consult and confer and obtain follow-up written reports if necessary.
Both parties shall have equal and independent access to all of John's educational and medical records and providers. Mother has an affirmative obligation to inform Father in writing (e-mail or text) within thirty (30) days of receipt of this Order of the names, addresses and phone numbers of each and every educational, medical, day care and extracurricular provider so that Father may avail himself of his rights of independent access. Said obligation is on-going and mutual should any providers change.
Both parties shall have a continuing obligation to keep the other informed of his or her current contact information at all times including physical address, telephone numbers and email addresses.
The passage of ninety (90) days and demonstrated, substantial compliance with the terms of the within order shall constitute a change in circumstances for Mother to seek regular parenting time.
This constitutes the Decision and Order of the Court. Submission of an Order by the Parties is not necessary.
Dated:April 10, 2018
Buffalo, New York.
HON. MARY G. CARNEY, J.F.C. Footnotes
Footnote 1: Cynthia Occelli, Author