Matter of E.S. v S.S.

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[*1] Matter of E.S. v S.S. 2019 NY Slip Op 50401(U) Decided on March 18, 2019 Family Court, Bronx County Tingling, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 18, 2019
Family Court, Bronx County

In the Matter of a Child Custody Proceeding Under Article 6 of the Family Court Act, E.S., Petitioner,


S.S., Respondent.


Elizabeth Johanns, Esq., Bronx, New York, for Petitioner

Monica Eskin, Esq., Bronx, New York, for Respondent

Katherine Tracey, Esq., Bronx, New York, for the Subject Children
Aija M. Tingling, J.

Petitioner, father of the subject children, filed a petition for modification of an order of custody under Article 6 of the Family Court Act. Respondent, mother of the subject children, contests Petitioner's modification request. Attorney for the children B.S. (10/10/03) and H.S. (04/28/06) does not support the petition for modification. The court conducted an in camera with the subject children on December 8, 2017 and trial was held on December 19, 2017, March 5, 2018, May 7, 2018 and May 11, 2018.[FN1]

Summary of Arguments:

Petitioner seeks to modify a prior order of joint custody, to grant him sole legal and physical custody of the children. Petitioner argues that Respondent is unfit to parent due to her interference with his relationship with the children, constituting parental alienation.[FN2] Petitioner acknowledges that although it may be traumatic to remove the children from Respondent's care, [*2]it would be more detrimental to them in the future if they remain in her care because they would not develop the psychological milestones or interpersonal skills essential to being functioning adults. Petitioner further argues that he believes Respondent and the children are in a "cult" under the maternal grandmother's rule and that this environment is not in the best interest of the children.

In opposition, Respondent contends that Petitioner failed to establish a change in circumstances as required to modify a prior order of custody.[FN3] Respondent argues that she complied with all court orders and produced the children for visits with Petitioner. However, that the children on their own decided they no longer wished to visit with Petitioner. Lastly, Respondent argues that a change of custody should only be made if the totality of the circumstances warrants a change in custody and such change is in the best interest of the children.[FN4] As the children have not seen Petitioner since 2015, removing them from Respondent's care would be traumatic and not in their best interests. Respondent requests that the court deny the modification of custody.

Attorney for the child (AFC) also opposes Petitioner's request for modification of custody on the basis that Petitioner has failed to allege (and prove) a change in circumstances. AFC argues that the demise of the relationship between Petitioner and the subject children is due to his own culpability by voluntarily reducing his parenting time, which he fails to recognize. AFC further argues that Petitioner provided no evidence of how he intends to repair his relationship with the children should his modification petition be granted and that given the circumstances, his request for sole custody is unrealistic and not in the best interests of the children.

Procedural History

The court issued orders of filiation for both children on September 15, 2010, after admission by both Petitioner and Respondent, acknowledging Petitioner as the father of the children. On March 28, 2011, the parties entered into a final order of custody on consent, granting them joint legal custody with primary physical custody to Respondent and parenting time to Petitioner. Per the agreement, Petitioner's parenting time was scheduled for Fridays 3PM to 8PM and Saturdays 12PM to 8PM, along with daily telephone contact, holiday parenting time and summer vacation.[FN5]

After filing the modification petition on October 20, 2014, due to work obligations, Petitioner voluntarily reduced his parenting time to alternate Fridays 3PM to 8PM and every Saturday from 12PM to 8PM. Thereafter, Respondent expressed opposition to any visits between Petitioner and the subject children but did not give any reason. Over the next 2 years, it became increasingly difficult for Petitioner to exercise his parenting time with the children and he [*3]voluntarily reduced his parenting time as follows: in June 2015, parenting time was reduced to Saturdays only from 12PM to 4PM; in September 2015, parenting time was reduced to Saturdays only from 12PM to 3PM, and; in January 2016, parenting time was reduced to Saturdays only from 12PM to 2PM. At that time, the court also ordered therapeutic visits with a social worker in addition to the Saturday visits; however, Respondent refused to sign the contract for the agency directed to supervise the visits and no visits were held.

Over the course of the next two years, Respondent became increasingly oppositional to court directives and orders both in and out of court, citing the children's wishes against visitation with Petitioner. Yet, Petitioner was opposed to seeking any recourse from the court in response to Respondent's actions, including the filing of a contempt motion or motion for temporary change in custody or extended visitation. All parenting time between Petitioner and the subject children was ceased in June 2016.

Factual Background

Petitioner's Testimony

Petitioner testified that he is the biological father of the subject children. He and Respondent agreed to have joint legal custody of the children and weekly parenting time for Petitioner. During his weekly parenting time, he would pick up the children from their home and take them to the movies, Chuck E. Cheese and to visit relatives. He would purchase clothing, toys, computer gadgets and other gifts for the children. Petitioner provided photographs of his parenting time with the children dating from 2011-2012 engaging various activities together.[FN6]

Petitioner testified that he began having issues with his parenting time in 2014. The maternal grandmother would not allow the children to keep the gifts that he purchased for them describing the children's demeanor as sad when they had to return the gifts. Thereafter, he was restricted from seeing the children altogether. He would arrive at Respondent's home to pick up the children, however no one would answer the door bell or the telephone. When this would occur, Petitioner would seek assistance from the police and make a report. On one occasion, when the police were called to the home, the maternal grandmother opened the door and the police interviewed the children. Observing that the children were crying, Petitioner canceled the visit because he felt it was "too much" for the children. On another occasion, when Petitioner arrived at the home, the maternal grandmother, Respondent and the children exited the home without word, entered a car and left the area. Petitioner again engaged the assistance of the police to enforce the order of visitation, by having them return to the home with the children. The totality of these incidents caused Petitioner to file the pending petitions.

After the filing of the instant petitions, the location for pickup and drop off of the children was changed to a precinct. Sometime in 2015, the children stopped speaking to Petitioner and refused to participate in any activities during their visits. The children would refuse to get out of the car, eat or drink for the duration of the visits which were scheduled from 12PM to 8PM. Petitioner further testified that the children would often dress in seasonally inappropriate clothing. For example, when the weather was warm, the children would be produced dressed in sweat suits or old clothing. At the last visit he had with the children, after they were dropped off at the precinct at start of his visit, they refused to leave the precinct with him. Petitioner has not had any parenting time with the children since approximately 2015 or [*4]2016.

On cross examination by Respondent's attorney, Petitioner acknowledged that Respondent produced the children per the court order. He also testified that he is aware the children want to remain in Respondent's care. However, despite not seeing the children since approximately 2016, he is still seeking sole legal and physical custody as he believes it is in their best interest.

On cross examination by the AFC, Petitioner testified that he had additional photographs of the children from 2013, 2014 and 2015 but did not provide those to the court as they did not depict the children as happy. He also testified that he believed the maternal grandmother is mean, violent and abusive to Respondent and that she has also threatened his life on numerous occasions.

Petitioner testified that if he was granted sole custody, each child would have their own bedroom and closet at his home, which is prepared for them. He would also enroll the children in therapy and provide Respondent with daily access to them. When probed about how he would encourage the children to eat and get out of the car as he has been unable to do so in the past, Petitioner testified that he would tell the children "if they want to see Respondent, they will eat and drink." Petitioner testified that the children were coached not to eat, drink or get out of his car, but if granted custody, he would no longer have those issues.

Respondent's Testimony

Respondent testified that she is a born-again Pentecostal Christian. She attends services with the subject children on Sundays at 10AM and 12PM and other various times depending on the week. She seeks to raise the subject children as God-fearing, virtuous, pure and educated.

Currently, the children are homeschooled through an accredited educational program, Calvert. B.S. (age 15) is in the 8th grade and studying pre-calculus, and H.S. (age 12) is in the 6th grade. The program provides textbooks for the children to use at home and has available online tutors. The subject children study from 8AM — 3PM and sometimes on Saturdays and the Respondent works with the children one on one. The subject children also take standardized exams and receive report cards and monthly progress reports.

Respondent testified that in addition to home-schooling, the children go to the library either once a week or once a month, attend youth groups at church and attend bible study, engage in community service activities and are learning to sew and knit. The subject children do not have friends outside of church. They dress modestly and wear sweat suits when they are going to play.

Respondent and the subject children have resided in the home of the maternal grandmother since 2011. Respondent refused to answer any questions about the 2011 mediated agreement and custody order, testifying only that she "could not" answer whether there was an agreement made between herself and Petitioner. She admitted to appearing in court then, but "does not recall" signing any documents. Respondent refused to have her recollection refreshed by reviewing the document or at least her signature at the end of the document. Thereafter, the court took judicial notice of the mediated parenting agreement with her signature and Respondent was held in contempt.[FN7]

Respondent testified that the court ordered her to produce the children for visitation with Petitioner and that she always complied. She testified that she explained to the subject children that she was required to comply with the court order. However, when questioned whether Respondent instructed the children not to visit with Petitioner, Respondent did not provide a response to the question. Respondent testified that she has never seen Petitioner bring gifts for the subject children that were not allowed into the home. Furthermore, Respondent testified she was unaware of whether the maternal grandmother prevented the children to receive gifts from Petitioner.

When questioned whether Petitioner was the father of the children, Respondent testified that she does not know Petitioner or anything about him. She further testified that Petitioner is not the father of the children. Respondent testified the subject children's only biological, and spiritual father, is God, Jesus, the Holy Spirit.[FN8] Respondent testified that she is opposed to everything concerning Petitioner, but she has complied with all court orders.

Expert Testimony

Petitioner called Peter F. Wolf, PhD. as an expert in forensic psychology and the parties stipulated to his qualifications as an expert. Dr. Wolf testified that he completed his forensic evaluation of the family two years prior to his testimony and had not received any further information on the family warranting any additional or updated evaluation of the parties.[FN9]

Dr. Wolf provided testimony based upon his review of various petitions, court documents, interviews and observations of the parties. Dr. Wolf met with Petitioner first in Fall of 2015. Dr. Wolf testified that Petitioner reported that the parties met at age fifteen and were together for approximately five years. The maternal grandmother was an obstacle in the parties' relationship and as a result the parties had to sneak around.

When the oldest child B.S. was born, Petitioner went to the hospital, however, the maternal grandmother would not allow him to see the child. He first saw B.S. when she was two months old, at a pediatric medical appointment. He and Respondent would continue to sneak and see each other in secret, and he would only see Respondent and/or B.S. at medical appointments when Respondent was allowed out of the maternal grandmother's home.

At some point in their relationship, Respondent left the maternal grandmother's home and moved in with Petitioner for approximately two months. Little to no testimony was provided concerning the conception and birth of the second child H.S. and thus it is unclear whether H.S. was born at this time. To provide for the family, Petitioner worked at night; while Respondent worked during the day. However, Respondent wanted him to stay home with her and the baby at night, threatening to leave him if he did not quit his job. One night, while Petitioner was at work, Respondent left with the subject child B.S. and returned to the maternal grandmother's home.

Once Respondent returned to the maternal grandmother's home, the parties' relationship continued to deteriorate and Petitioner's visits with her and the children were reduced. It became [*5]more difficult for them to see each other, even having to sneak around as Respondent was being restricted by the maternal grandmother.

In 2010, Petitioner came to the court for assistance and a mediated agreement was reached, granting Petitioner weekend parenting time with the subject children. Petitioner was able to have meaningful access with the children and develop a relationship with them until approximately 2014. They would spend time with him and family members until it became difficult for him to retrieve them from the home for visits. When Petitioner began having issues, he would get the police involved to have the order enforced. Thereafter, Petitioner sought assistance from the court again. The children began to slowly withdraw from Petitioner and stopped eating and drinking during their eight-hour visit. As a result, Petitioner requested his parenting time be decreased but even with the reduced parenting time, the subject children continued to withdraw and refused to get out of the car during the visits.

Dr. Wolf described his interaction with Respondent as bizarre. During his interview of Respondent, she repeatedly denied the very existence of Petitioner as a person, former paramour or father of the subject children. Dr. Wolf testified that Respondent deflected or avoided any questions posed regarding Petitioner, their relationship or his relationship with the children. Respondent would only acknowledge that court orders were made, with which she complied. Dr. Wolf's assessment of Respondent was that she did not have "a mind of her own," appeared robotic and that the maternal family appeared to be like a "cult."

Dr. Wolf also interviewed the subject child B.S. and the maternal grandmother. Dr. Wolf assessed that the family is run by the maternal grandmother and that the entire family system is destructive for the subject children. Dr. Wolf testified that he is concerned that the subject children would fail to develop fuller personalities, have individual thoughts or function as independent adults. Dr. Wolf also testified that home-schooling the children further prevents them from having a relationship with the outside world and persons outside of their family.

Dr. Wolf testified that was unable to make a conclusive recommendation for the family given the circumstances. He testified that while it would be acutely traumatic to remove the children from Respondent's care and place them with Petitioner, in the long run, it would be beneficial for the children in becoming functioning independent adults. However, Dr. Wolf was unable to state with any certainty whether the acute trauma of removing the children would outweigh the harm if the children remain in Respondent's care. Dr. Wolf testified that he believed the only way the children would be helped in this situation is if Respondent moves out of the maternal grandmother's home and the children engage in intensive therapy. However, Respondent is financially dependent on the maternal grandmother and is not likely leave her home.

In Camera

The court had the opportunity to assess the credibility, demeanor and maturity of the subject children, ages 15 and 12. The children could not recall any positive interactions with Petitioner, despite having successful visits with him from 2011 through 2014 when the original parental agreement was in effect. The children, who were interviewed separately, appeared to have been coached by someone. They parroted each other's sentiments about Petitioner, refusing to acknowledge him, appearing to have adopted the Respondent's view of him.

Law and Analysis:

A petition to modify an existing order requires a two-part inquiry. The first or "controlling 'material fact' is whether or not there is a change in circumstances so as to warrant [*6]an inquiry into whether the best interests of the children would be served by modifying the existing custody arrangement." Robert OO. v. Sherrell PP., 143 AD3d 1083, 39 N.Y.S.3d 541 (3rd Dept. 2016); Sergei P. v. Sofia M., 44 AD3d 490, 843 N.Y.S.2d 603 (1st Dept. 2007). Once a change in circumstances has been demonstrated, "the parent then must show that modification of the underlying order is necessary to ensure the child's continued best interests." Schmitz v. Schmitz, 139 AD3d 1123, 31 N.Y.S.3d 295 (3rd Dept. 2016); Christopher H. v. Taiesha R., 166 AD3d 548, 88 N.Y.S.3d 181 (1st Dept. 2018).

Change in Circumstances

A change in circumstances may be demonstrated in a variety of forms, including but not limited to, changes concerning the financial, residential, educational, physical, mental, and emotional status in the life of a parent and/or child. It may also be demonstrated by evidence of the parties' inability or unwillingness to communicate resulting in a breakdown or cessation of communication with each other concerning the welfare of a child, such that joint custody may no longer be feasible in promoting the child's best interests. G.D. v. D.D., 52 Misc 3d 1220[A], 43 N.Y.S.3d 767, 2016 NY Slip Op 51228[U], at 22 (Sup. Ct. Westchester Cty. 2016); Matter of Carter v. Carter, 111 AD3d 715, 974 N.Y.S.2d 545(2nd Dept. 2013); Fowler v. Rivera, 296 AD2d 409, 745 N.Y.S.2d 457 (2d Dept. 2002). For example, see Sequeira v. Sequeira, 121 AD3d 406, 993 N.Y.S.2d 309 (1st Dept. 2014)(parties filing of nine motions over five years concerning issues relating to the child along with father's apparent disdain for the mother evidenced a complete breakdown in communication warranting modification of prior custody order); see also West v. Vanderhorst, 92 AD3d 615, 939 N.Y.S.2d 378 (1st Dept. 2012)(incident of domestic violence witnessed by the child and mother's failure to notify father of child's hospital admissions demonstrated complete breakdown in communication rendering a prior order of joint custody no longer feasible.)[FN10]

Evidence of interference by the custodial parent in the relationship between the subject child and non-custodial parent, can also constitute a change in circumstances sufficient to modify an existing order.[FN11] This type of interference is also known as "parental alienation" a highly controversial term in Family and Matrimonial Law. Parental alienation was first introduced as a diagnosis or syndrome (PAS), which focuses on the behaviors of the child.[FN12] First coined by Dr. Richard Gardner over 20 years ago, he defined PAS as "the programming of the child[/children] by one parent, into a campaign of denigration directed against the other. And the second component is the child's own contributions that dovetail and complement the contributions of the programming parent. It is this combination of both factors that warrants the [*7]term parental alienation syndrome." Zafran v. Zafran, 191 Misc 2d 60, 740 N.Y.S.2d 596 (Sup. Ct. 2002)(quoting People v. Fortin, 184 Misc 2d 10, 706 N.Y.S.2d 611 [2000], affd 289 AD2d 590, 735 N.Y.S.2d 819 [2001], lv denied 97 NY2d 754, 742 N.Y.S.2d 614, 769 N.E.2d 360 [2002].

PAS, essentially dismissed as "junk science", is not generally accepted in the scientific community, as it is not an approved term or diagnosis in the field of psychiatry and no New York court has allowed the admission of testimony concerning PAS. See J.F. v. L.F., supra; J.F. v. D.F., 61 Misc 3d 1226(A) (NY Sup. Ct. 2018); People v. Fortin, supra; see also Montoya v. Davis, 156 AD3d 132, 66 N.Y.S.3d 350 (3rd Dept. 2017)("In the criminal context, 'parental alienation syndrome' has been rejected as not being generally accepted in the scientific community"); People v. Loomis, 172 Misc 2d 265, 658 N.Y.S.2d 787 (Co. Ct. 1997); People v. Bimonte, 185 Misc 2d 390, 712 N.Y.S.2d 829 (Crim. Ct. 2000)(expert testimony regarding parental alienation syndrome was deemed inadmissible in a criminal case).

However, New York Courts have embraced parental alienation as a concept. In recognizing that parental alienation can exist, some courts have loosely defined it as a custodial parent's active interference with or deliberate and unjustified frustration of the non-custodial parents' reasonable right of access to the child. J.F. v. D.F., supra. In attempts to elaborate on the concept without accepting the syndrome, New York courts have held that as the custodial parent, one of the primary responsibilities "is to assure meaningful contact between the children and the noncustodial parent, and the willingness of a parent to assure such meaningful contact between the children and the other parent is a factor to be considered in making a custody determination." Alvarez v. Alvarez, 114 AD3d 889, 980 N.Y.S.2d 583 (2nd Dept. 2014); see also Matter of Vasquez v Ortiz, 77 AD3d 962, 909 N.Y.S.2d 155 (2nd Dept. 2010); Matter of Honeywell v. Honeywell, 39 AD3d 857, 835 N.Y.S.2d 327 (2nd Dept. 2007); Cuccurullo v Cuccurullo, 21 AD3d 983, 801 N.Y.S.2d 360 (2nd Dept. 2005). "[E]vidence that the custodial parent intentionally interfered with the noncustodial parent's relationship with the [children] is so inconsistent with the best interests of the [children] as to, per se, raise a strong probability that [the offending party] is unfit to act as custodial parent".) See In re Gerber, 133 AD3d 1133, 21 N.Y.S.3d 386 (3rd Dept. 2015). As explained in Young v. Young, supra:

"Interference with the relationship between a child and a noncustodial parent can take many forms, the obvious being the outright denial of visitation by making the child physically unavailable at the appointed time. However, the instant case involves a more subtle and insidious form of interference, a form of interference which, in many respects, has the potential for greater and more permanent damage to the emotional psyche of a young child than other forms of interference; namely, the psychological poisoning of a young person's mind to turn him or her away from the noncustodial parent." Id. at 2, 628 N.Y.S.2d at 929.

Parental alienation as a concept focuses on the actions of the custodial parent. Yet there are no guidelines or factors to assess when determining whether parental alienation exists. Courts have been proceeding on a case by case basis, enlisting their own factors and assessing the totality of the circumstances to determine if alienation exists. [FN13] Overall, it appears that in [*8]analyzing the concept of parental alienation, when examining the actions of the parents, New York Courts are also examining the resulting actions of the children, actions which are very similar to the "symptoms" [FN14] of PAS. For example: discounting any good times with or refusing positive comments about other parent without reason;[FN15] refusing to engage in normal activities with the non-custodial parent;[FN16] adopting a negative view of non-custodial parent;[FN17] child/children recalls incidents that never occurred or that occurred at a time when they were not or could not have been present;[FN18] child has the belief that one parent is all good and the other is all bad.[FN19] Given this analysis, courts should look at the combined actions of both the custodial parent and child to determine whether alienation exists and the extent to which it has disrupted the relationship between the non-custodial parent and child.

In the case at bar, both Attorney for Respondent and AFC argue that Petitioner has failed to establish a change in circumstances. However, it is undisputed that despite an order of joint legal custody, the parties do not communicate in any manner, due to Respondent's bizarre refusal to acknowledge Petitioner. [FN20] Since the entry of the 2011 order, Respondent has not discussed with Petitioner or informed Petitioner of any decisions she has made concerning the children, including removing the children from school to be homeschooled or their religious upbringing.

What is more concerning to the court however, it is the Respondent's total disengagement from Petitioner's existence, her complete and utter refusal to communicate with him, and her unexplained refusal to acknowledge Petitioner in the flesh or as the father of the children in the absence of any abuse or traumatic event between them.

Respondent has consistently stated throughout the course of litigation and during the trial that she does not know Petitioner or anything about him; that he is not the father of the children, and; the only biological and spiritual father of the children is God, Jesus, and the Holy Spirit. The court observed that Respondent kept her head down during the entirety of Petitioner's testimony, refusing to look in his direction and shaking her head "no" during the testimony of [*9]Petitioner and Dr. Wolf, concerning the past relationship between the parties. Respondent's view of Petitioner evidences a complete breakdown in communication between the parties, making the order joint legal custody no longer viable.[FN21] This alone is evidence that joint custody is no longer feasible between the parties and constitutes a change in circumstances.[FN22]

The evidence further demonstrates that, the children have been gradually and systematically cut off from everything outside of their immediate residential family unit. The children inexplicably have no relationship with Petitioner. The children were removed from school and are now being homeschooled. The children engage in their studies from 8AM until 3PM, Monday through Friday and some Saturdays. Other than attending church services and going to the library either once a week or once a month, the residential family unit does not interact with anyone outside the home. Further, the children do not have friends outside of their church group.

Respondent's view and attitude concerning Petitioner has been wholly adopted and parroted by the children.[FN23] From the court's assessment of the children from the in camera interview, and the mantralike tone and expression of their statements concerning Petitioner, it is clear they could not have independently developed or articulated such a view of the Petitioner; especially in light of the fact that the children had a healthy relationship with Petitioner from 2011 through 2014 [FN24] ; a relationship which deteriorated without reason over time. Neither the children nor Respondent could provide any plausible reason why Petitioner has been rejected in this manner, especially in the absence of any allegations of neglect, abuse or some other traumatic incident involving Petitioner.

It is unclear when, or why Respondent and the children's attitude toward Petitioner changed, except that at some point after the 2011 custody agreement was made, without any plausibly stated reason, Respondent and the subject children began a slow decline to a complete cessation of communication with Petitioner. By 2014, Respondent objected to any and all visitation between Petitioner and the subject children and when the court ordered therapeutic visits between the children and Petitioner, Respondent refused to sign the contract to enable the visits to occur.

The totality of the circumstances demonstrates that the children have been cut off from the entire outside world, except for the people in their household and church. It is also noted that the conclusions of the court are independent of the forensic report and based primarily on the testimony and demeanor of the parties. However, the statements and information gathered in the forensic report along with the testimony of Dr. Wolf provides further corroboration for the court's determination that alienation has occurred.

There is no question that the children have been completely alienated from the father by [*10]the mother. Respondent's actions towards and view or lack thereof toward Petitioner are so inconsistent with the best interests of the children in raising them to believe they do not have or need a father, that this raises a strong probability that she is unfit to act as custodial parent. However, this does not automatically trigger a change in custody.[FN25] Petitioner must still demonstrate that "that modification of the underlying order is necessary to ensure the child's continued best interests." Schmitz v. Schmitz, 139 AD3d 1123, 31 N.Y.S.3d 295 (3rd Dept. 2016); Christopher H. v. Taiesha R., 166 AD3d 548, 88 N.Y.S.3d 181 (1st Dept. 2018).

Best Interests

The court now turns to the best interest analysis. The factors to consider when conducting a best interest analysis are the same in any custody case, regardless of whether it is a modification or an initial custody petition, as there is "no prima facie right to the custody of the child in either parent." DRL § 70(a); see also Friederwitzwer, supra. Such factors include but are not limited to the quality of the home environment, financial status and ability of each parent to provide for the children, fitness of the parents, length of time current arrangement has been in effect, the effect an award of custody may have on the noncustodial parent, stability,[FN26] and the preferential wishes of the child.[FN27]

The children have expressed their strong desires to remain with the Respondent. The court recognizes that removing the children from the mother and placing them with the father could likely cause them trauma, as with any significant life changes. However, it is unclear whether that acute trauma will outweigh the future potential impact the children may face if they remain in the Respondent's care.


Based on the testimony presented, the in camera of the subject children and the Respondent's behavior and statements made in court, the court finds that Petitioner has established by a preponderance of the evidence a significant change in circumstances to warrant a best interest analysis of whether a modification of custody should be made herein.

However, there is no facile solution in the face of such severe parental alienation, and this court lacks sufficient information to determine whether a change in custody is in the best [*11]interests of the children.

IT IS HEREBY ORDERED that this case be scheduled for a best interest hearing; Petitioner is to be assigned new 18B Counsel as prior assigned counsel has retired from the panel. The court will notify counsel and all parties of the next court date.

Dated: March 18, 2019

Hon. Aija M. Tingling


Footnote 1:Petitioner also filed a violation petition alleging Petitioner prevented him from exercising his parenting time under dockets V-27327-10/14A and V-27328-10/14A. The petitions were dismissed without prejudice on March 17, 2015, but were subsequently restored on May 5, 2015. Trial was held on the modification petitions.

Footnote 2:Young v. Young, 212 AD2d 114, 628 N.Y.S.2d 957 (2nd Dept. 1995).

Footnote 3:Kerwin v. Kerwin, 39 AD3d 950, 833 N.Y.S.2d 694 (3rd Dept. 2007); Meyer v. Lerche, 24 AD3d 976, 807 N.Y.S.2d 151 (3rd Dept. 2005).

Footnote 4:Friederwitzer v. Friederwitzer, 55 NY2d 89, 432 N.E.2d 765 (Ct. App. 1982). See also, Lew v. Sobel, 46 AD3d 893, 849 N.Y.S.2d 586 (2nd Dept. 2007).

Footnote 5:See the mediated parenting agreement dated March 28, 2011 admitted into evidence as Court's Exhibit #2

Footnote 6:Photos admitted into evidence as Petitioner's #2-8.

Footnote 7:The contempt was vacated prior to a hearing upon Respondent's reconsideration to review the document, however, the court had already taken judicial notice of the document marked as court Exhibit #2.

Footnote 8:The court took judicial notice of Orders of filiation issued for both children wherein Respondent admitted Petitioner is the father of the children. Court Exhibits # 3 and 4.

Footnote 9:The parties consented to a redacted copy of the forensic report being admitted into evidence.

Footnote 10:See also Murphy v. Wells, 103 AD3d 1092, 958 N.Y.S.2d 560 (4th Dept. 2013)(change in circumstances found where the parents' relationship became so strained and acrimonious that communication between them was impossible, warranting modification of joint custody order).

Footnote 11:West v. Vanderhorst, supra (mother also prohibited contact between child and father); Murphy, supra.

Footnote 12:Kelly Schwartz, The Kids Are Not All Right: Using the Best Interest Standard to Prevent Parental Alienation and A Therapeutic Intervention Approach to Provide Relief, 56 B.C. L. Rev. 803 (2015).

Footnote 13:J.F. v. D.F., 61 Misc 3d 1226(A) (NY Sup. Ct. 2018)( In a recent decision, highlighting the absence of a firm definition of the concept of parental alienation, the court analyzed it by comparing it to the tort of intentional infliction of emotional distress [IIED], borrowing the elements of IIED to determine if alienation existed.)

Footnote 14:Kelly Schwartz, The Kids Are Not All Right: Using the Best Interest Standard to Prevent Parental Alienation and A Therapeutic Intervention Approach to Provide Relief, 56 B.C. L. Rev. 803 (2015); Palazzolo v. Mire, 2008-0075, 10 So. 3d 748, 772, [La. App. 4 Cir. 2009].

Footnote 15:In re Gerber, supra; J.F. v. L.F., supra.

Footnote 16:In re Gerber, supra.

Footnote 17:Greene v. Robarge, 104 AD3d 1073, 962 N.Y.S.2d 470 (3rd Dept. 2013); J.F. v. L.F., supra.

Footnote 18:Mark L. v. Gail S., 2006 NY Misc. LEXIS 4087, 235 N.Y.L.J. 103 (NY Sup. Ct. May 30, 2006).

Footnote 19:J.F. v. L.F., supra.

Footnote 20:See Sequeira v. Sequeira, supra; see also West v. Vanderhorst, supra.

Footnote 21:Greene v. Robarge, supra.

Footnote 22:West v. Vanderhorst, supra.

Footnote 23:Mark L. v. Gail S., supra; Greene v. Robarge, supra.

Footnote 24:Petitioner submitted photographs of the children with him and/or during his parenting time in 2011.

Footnote 25:"any court in considering questions of child custody must make every effort to determine 'what is for the best interest of the child, and what will best promote its welfare and happiness.'" Eschbach v. Eschbach, 56 NY2d 167, 436 N.E.2d 1260, 451 N.Y.S.2d 658 (1982) (quoting Domestic Relations Law § 70(a)).

Footnote 26:"Although stability is an important consideration in determinations as to change of custody and has been found to be in children's best interests, it cannot be the decisive factor; 'that change in custody may prove temporarily disruptive to children is not determinative, for all changes in custody are disruptive.'" J.F. v. L.F., 181 Misc 2d 722, 694 N.Y.S.2d 592 (Fam. Ct.1999) (quoting, Nehra v. Uhlar, 43 NY2d 242, 372 N.E.2d 4, 401 N.Y.S.2d 168 (1977); Young v. Young, supra.

Footnote 27:While children may express their preference for living with one parent, this is but a factor to be considered and not determinative to the court's overall custody determination. Melissa C. D. v. Rene I. D., 117 AD3d 407, 985 N.Y.S.2d 28 (1st Dept. 2014); Young v. Young, supra.

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