Opinion
XXXXXXX.
Decided March 27, 2009.
John A. Craner, Esq., Scotch Plains, NJ, Attorney for Petitioner.
Irene Goldsmith, Esq., White Plains, NY, Attorney for Respondent.
Kelly Brady, Esq., Poughkeepsie, NY, Attorney for the child — O.
Joan McCarthy, Esq., Fishkill, NY, Attorney for the children — M. and J.
Petitioner, Isabel R., is the mother of M. (DOB: 4/26/1998) and J. (DOB: 6/13/2001). Respondent is the mother of these children's half-sibling, O. R. (DOB: 7/10/2002). Petitioner commenced this proceeding seeking visitation between her children and their half-sibling, O. Ruben R. (herein "father") is the father of all three children and is not a party to these proceedings.
Throughout these proceedings the parties have each been represented by retained counsel. The Court appointed one attorney to represent M. and J. and another attorney to represent O. A trial was held on February 6 and 26, 2009.
In addition, the Court conducted in camera interviews separately with each child in the presence of his/her attorney. O. was interviewed on February 20, 2009 and J. and M. on February 25, 2009. Prior to those interviews, each attorney was given an opportunity to submit written questions or areas of questioning which each wished the Court to consider during its discussion with the children. The Court considered those submissions in conducting the interviews.
At the trial the petitioner testified and called a co-worker, Gloria L., and a friend, Barbara B., in support of the petition. In opposition, the respondent testified and called Dr. Michael N., a psychologist; her mother, Eileen Mc.; a friend, Jenna M.; and her domestic partner, Michael S.
Additionally, the Court received in evidence the following: 12 photographs, the curriculum vitae of Dr. Michael N. and a page from the Law Guardian Resource Directory which lists Dr. N.At the conclusion of the trial, each attorney made an oral summation and each was given an opportunity to submit a written summation. The Court indicated that it would not draw an adverse inference if counsel did not submit a written summation. Counsel for petitioner indicated that because he would be out of New York State for the month of March he would not be filing a written summation but would rely on his oral summation. Written summations have been received from respondent's attorney and from the attorney for O. and J. which have been considered by the Court.
PROCEDURAL BACKGROUND
It is important to review the procedural history of this case because one of the issues raised by respondent is the lapse of time since the children have had any visitation and some of that period of time is attributable to the Court proceedings and beyond the control of petitioner.
This proceeding was commenced in Westchester County Family Court by petition filed on May 2, 2008 and was then transferred to Dutchess County where the respondent and O. reside. In Court on September 8, 2008 the respondent submitted a written motion to dismiss to which the attorneys were given time to respond. That motion was denied in a written decision (Amodeo, J.) dated October 15, 2008 and the proceeding was adjourned until November 6, 2008. At the request of counsel for the respondent, due to her vacation schedule, the proceeding was again adjourned. Counsel and the parties appeared before the Hon. Damian J. Amodeo on December 11, 2008 and the matter was scheduled for trial before the undersigned commencing on February 6, 2009.
The Hon. Damian J. Amodeo retired at the end of December 2008.
Judge Amodeo issued a bench order directing counsel to submit a list of witnesses each intended to call by January 6, 2009. That information was not provided to the Court until February 4 and 5, and then only in response to a letter sent to counsel from the Court on February 2, 2009.
TESTIMONY AND EVIDENCE
At the beginning of the trial the parties stipulated that: M. and J. are the half-siblings of O.; J. and M. live with their mother, the petitioner, in Huntington, Long Island; O. lives in Dutchess County, New York, with her mother, the respondent; the children's father, Ruben R., currently lives in the Bronx, New York; an order of protection was issued against Ruben R. by the Town of Cortland Court on November 17, 2006 which expired on November 17, 2008 and which directed that he stay away from the respondent but did not include O.; and, Dr. N. is a psychologist who is listed in the State of New York, Appellate Division, First and Second Department Law Guardian Program Resource Directory. It was also stipulated that the Court would take judicial notice of the entire Dutchess County Family Court record.
The Court, which is in the unique position of observing the demeanor of the witnesses and assessing their credibility, makes the following findings of fact:
J. and M. had a relationship with O. which began shortly after O. was born. Their mother, the petitioner, was aware that the children's father, Ruben R., had a relationship with the respondent, and petitioner herself developed a relationship with respondent. During the period of time when Mr. R. and respondent were together, there were times when either the father or respondent would pick up J. and M. for visitation and all three children would spend time together. Overnight visits began when O. was about a year and a half old, and then occurred about once or twice a month. One visit occurred at the home of respondent's mother, whom the children referred to as "Beenie".
Some of the times that O. spent overnight with petitioner and her siblings were social and others were for "baby-sitting" at the request of respondent while she was working at the power plant at Indian Point.
The visits between the children ended in September 2006 when the father's relationship with the respondent ended. It is undisputed that the visits were terminated by respondent. At the conclusion of the last visit, respondent went to petitioner's office to pick up O. after a weekend visit, which included an overnight.
The petitioner made efforts to continue the relationship between the children by calling the respondent, leaving messages and sending e-mail communications. Those efforts went unanswered by respondent.
In January 2008 petitioner initiated a telephone call to respondent, which lasted for 30 minutes, in which they discussed visitation. Respondent said she would think about it and call the petitioner back. She never did so.
Although her children were asking about their sister and wanted to see O., petitioner did not have the financial means until recently to bring a proceeding in Family Court to seek visitation.
Numerous pictures were entered into evidence which showed the three children together at various activities, including at an amusement park, at birthday parties, in a park and at J.'s "T-ball" game. In one of these photos, O. and M. are wearing matching jackets.
J. and M. refer to O. as their sister. O. refers to M. and J. as her brother and sister. O. calls the petitioner by her first name, I., and petitioner's children call the respondent Me.
During the time that Mr. R. and respondent were together, all three children would spend time with each other and their father and respondent. The father is still involved in J. and M.'s lives but has no contact with O.
Petitioner's witness, Gloria L., is her supervisor at work and the president of a local labor union, where petitioner is employed as the fund administrator. Ms. L. had seen O. at a birthday party and observed the three children as "bubbly" and happy together. She was present only at this one visit.
Barbara B. has been a friend of petitioner's for the past 14 years and met O. on several occasions, including when O. spent overnights at petitioner's home. She testified that the children got along well and that O. and respondent were present on the day that M. and J. were baptized.
Respondent testified that she is presently living with Michael S., with whom she has a child, M. She was previously married to Mr. R. and has known petitioner from before O. was born. At respondent's request, M. participated in respondent's wedding ceremony. By her own testimony, from 2002 until 2003 visits between the children occurred about once a month. She remembers being at M.'s birthday party and acknowledged that O. would spend overnights at petitioner's home. She would sometimes pick up J. and M. for visits with her and the father. She voluntarily transported the children. She testified to about six or seven overnight visits at her house. Ironically, after the father left her home, she said that her relationship with petitioner became "warmer".
Respondent unilaterally terminated visitation between the children. She did not explain to petitioner why she did so, but stated that it was her belief that petitioner might allow the children to see their father when they were all together. She did not feel that was appropriate. She was upset that M. and J. continued to see their father, but that he had nothing to do with O. She feels if O. sees J. and M. it will make her feel more abandoned by her father.
O. has a new little sister now, M., and respondent is content to have this be O.'s family. Respondent described O. as a bubbly and outgoing child. Although respondent asserts that O. is suffering from issues of abandonment, there was no evidence that O. has ever been treated by a psychologist to deal with these issues. She only took O. to a psychologist two weeks prior to the trial for purposes of generating trial testimony.
Respondent also confirmed that she had taken petitioner up on her offer to babysit for O. when she was working nights at Indian Point, but on only a few occasions.
Dr. Michael N., a psychologist, was called as a witness by respondent. He was retained by her for purposes of giving testimony at the trial and met O. on two occasions, January 19 and 26, 2009, a week or two before the trial. He described O. as a very bright child who did not recall much about her past but did remember seeing her father in 2006 at Chuck E Cheese. She seemed to be a happy child. He described her demeanor as unaffected when discussing M. and J. She was not upset about the prospect of seeing them. She told him she would like to change her name to Mc-S. so that her family will all have the same name. His services, including his fee for testifying, were paid for by respondent. He did not meet with or speak to the petitioner or M. or J.
Michael S., respondent's current "domestic partner", met respondent in July 2006 and has never met petitioner or J. or M. Respondent's mother, Eileen Mc., testified that she was never involved with visits among O., J. and M., and that J. and M. visited her home only once. Respondent's other witness, Jenna M., testified that she is like a sister to respondent, whom she has known for 22 years. She was not aware of contact between petitioner and respondent and did not know how many times the children visited. She was aware of at least two times that the children interacted after respondent and Mr. R. split up.
Counsel for respondent argues in her summation that O. feels abandoned by her father. She also states that it is respondent's opinion that allowing sibling visitation will undermine the "family foundation" she has created with her new "domestic partner," with whom she has a child. Counsel's legal argument is that the respondent has an absolute right to decide whether or not her child should visit with her half-siblings and that there has been no evidence that it is in O.'s best interests to have such visitation. Respondent asserts that visits between the children would be nothing more than a "play date" as among any children.
In his summation counsel for petitioner argues that respondent's refusal to allow visitation is based upon her own reasons, not what is best for the children. It was the respondent who broke off the relationship. If O. is struggling with the loss of her father, it will only make it worse for her to also suffer the loss of a relationship with her siblings. He asserts that this is a case where "equity sees fit to intervene." Petitioner is seeking monthly overnight visitation, from Friday to Sunday evening, which would give the children ample opportunity to be together. Petitioner would be willing to have half of the visits at the home of respondent and half at her home, subject to change as time goes on.
IN CAMERA INTERVIEWS
As noted above, the Court conducted in camera interviews with each child separately, in the presence of that child's attorney. While the Court will not disclose the particular details of its conversations with the children, the Court did place on the record on February 26, 2009 a general summary of the interviews. It is clear to the Court that O. does indeed remember J. and M.; she refers to them as her brother and sister. She readily recognized them in the photographs that had been admitted into evidence and which she was shown. She remembers activities she engaged in with them and showed no fear or concern about seeing them. Indeed, she expressed a desire to see and play with them.
M., the oldest of the three children and the most articulate, expressed a strong interest in having a relationship with O., whom she refers to as her sister. She has the strongest memories of her contact with both O. and the respondent, whom she refers to as Me. She very much wants to see her sister.
J, who was less verbal than either O. or M., does know who O. is and would like to see her again.
None of the children expressed any negative feelings about seeing each other.
ATTORNEYS FOR THE CHILDREN
Both attorneys for the children, who have taken an active part in this matter on behalf of their clients, urge the Court to grant sibling visitation. While the attorney for O. did not submit a written summation, at the conclusion of the trial she stated on the record that the three children did have a relationship and that there is no evidence that when the visits were taking place anything detrimental happened to O. She further stated that O. has fond memories of J. and M. and there was no evidence that the visits were anything but a positiveexperience. She urged the Court to especially consider O.'s in camera interview.
In both her written and oral summations, counsel for J. and M. requests that visits with O. be resumed forthwith and that the best interests of her clients will be served if the visits were to resume. The children do not regard the opportunity to see each other a merely a "play date", as characterized by respondent's counsel, but the children do recognize the "familial bond" they share with each other. They refer to each other as brother and sister. Counsel for J. and M. suggests that visits be commenced on a monthly basis, on a Saturday from 11:00 AM until 5:00 PM in a public place. Given the distance between the parties' homes, counsel suggests that the visits take place in Westchester County, a mid-point. After a period of six months, counsel suggests overnight visits at the home of petitioner, who has expressed a willingness to have O. visit overnight. If the parties agree, overnight visits could also take place at the home of respondent.
APPLICABLE LAW
The Family Court has the same jurisdiction as the Supreme Court to determine visitation of minors, including visitation between siblings (Family Court Act section 651, DRL section 71). DRL section 71 provides that "where circumstances show that conditions exist which equity would see fit to intervene, a brother or sister or a person on behalf of a child, whether by half or a whole blood, may apply to the family court [for visitation rights] as the best interest of the child may require."
Thus, in cases involving sibling visitation, like grandparent visitation, the Court must first determine whether equitable considerations grant a party standing to bring a petition and then, if so, whether it is in the best interests of the children to award such visitation ( see e.g. Matter of E.S. v. P.D., 8 NY3rd 150). The court in such a case is charged with determining what is in the best interests of all the children involved. ( State ex rel. Noonan v. Noonan, 145 Misc 2d 638.)The importance of sibling relationships has long been recognized by the courts of this state. ( Eschbach v. Eschbach, 56 NY2d 167.) This is manifested not only in preferring arrangements which allow siblings to live together ( Ruffin v. Ruffin, 166 AD2d 598), but also in ensuring that half-siblings have adequate contact with each other. ( Olivier A. v. Christina A. ,9 Misc 3d 1104 [A], 2005 NY Slip Op 51400[U] [2005].)
The State's recognition of the importance of siblings maintaining contact with each other is also manifested in Family Court Act § 1027-a, which provides that foster care placement of a child with his or her siblings or half-siblings is presumptively in the child's best interests. See also 18 NYCRR § 431.10, which provides that a social services district must make diligent efforts to place siblings or half-siblings in foster care with each other unless such placement is determined to be detrimental to their best interests.
DISCUSSION AND HOLDING
The evidence demonstrates that these children did indeed have a relationship until that relationship was unilaterally terminated by respondent after she and the children's father split up. Respondent conceded that she discontinued visitation because of the presence or possible presence of the children's father at such visits.
Respondent argues that she has an absolute and unfettered right to determine whether sibling visitation should take place and that any direction by this Court for sibling visitation would violate her constitutional rights. It is not clear to this Court whether respondent is arguing that the statute permitting a court to order sibling visitation is unconstitutional on its face or as applied to the facts of this case.
Domestic Relations Law § 71 permits the court to intervene in the lives of children and parents and order sibling visitation in cases in which "equity would see fit to intervene."Only if a court determines that the facts meet this standard does the court then go on to make a determination as to whether visitation is in the best interests of the children. This language is virtually identical to that of Domestic Relations Law § 72 which governs grandparent visitation. The Court of Appeals in Matter of E.S. v. P.D. ( 8 NY3d 150 , supra) held this statute to be constitutional both on its face and as applied to the facts of that case. The Court distinguished the New York statute from the State of Washington statute declared unconstitutional in Troxel v. Granville ( 530 US 57).
This Court recognizes the right of a fit parent to make decisions about what is best for his or her child and that it may only intervene where notions of equity justify it doing so. The Court also is cognizant that the right of sibling visitation is not automatic; that courts should not lightly interfere with a decision of a parent and that a parent's decision should be given deference. The Court must apply a two-tiered inquiry, first to determine if equitable circumstances grant standing to a petitioner and then, only if that test is met, does the Court go on to a best interests determination (Domestic Relations Law § 71).
Here, based upon the credible and virtually unrefuted evidence, the Court finds that notions of equity support a determination that petitioner has standing to petition for sibling visitation on behalf of her children. The three children had a meaningful relationship over a period of several years and despite the interruption in that relationship, to this day they refer to each other as brother and sisters. That relationship was suddenly interrupted by the respondent, who now seeks to rely on the fact that the children have not seen each other in some time to deny visitation to them. To allow that lapse of time to justify the denial of visitation now would unduly reward respondent's unilateral decision to refuse any further contact. Were it not for respondent's unilateral actions at a time when the children were enjoying visitation without any problems, the parties would not now be before this Court.
Additionally, the Court credits petitioner's testimony that she made efforts to restore visits and that those efforts were rejected or ignored by respondent. Thereafter petitioner did not have the finances to immediately seek judicial intervention. The Court notes that petitioner does not fall within the class of persons who have the right to an assigned attorney when they are unable to afford counsel (Family Ct Act § 262). Further, the Court finds credible petitioner's testimony that she commenced this proceeding because her children persisted in wanting to see O. and have been asking about her since visits were terminated. Such testimony is consistent with the Court's discussions with her children.
Having determined that petitioner has standing, the Court also finds that visitation would be in the best interests of all of the children. In determining the best interests of the children, the Court recognizes that many of the factors considered in determining petitioner's standing to bring this proceeding are also factors the Court must consider in determining the children's best interests.
In considering the children's best interests, the Court has considered, among other factors, their prior relationship, the reason visitation was stopped, the reasons given and basis for the respondent's decision to deny visitation at the present time, the views of the attorneys for the children, the future benefit to the children and the content of the Court's in camera interviews.
What is clear from observing the temperament and sincerity of respondent as she testified is that she is extremely angry at Mr. R. and does not trust that he will not be involved in visits. She has a new life now, with a new man and a new baby and wishes to close the previous chapter in her life — the chapter that involved Ruben R. There is not a scintilla of evidence that when respondent terminated visitation, there were any problems with the children visiting or that O. expressed any discomfort with the visitation. Respondent's determination was based on fear, anger and speculation.
Respondent is now completely estranged from Ruben R. and does not want O. to have any contact with anyone who might remind her of her father. Respondent in her own words has created a new family for O. and does not want her to be reminded of her past.
However, this case is not about Ruben R. He is not a party to this proceeding, has not petitioned for visitation and, as part of its order, the Court will direct that petitioner not allow him to be present during any visit. This case is about three children who had a very meaningful relationship which brought them a lot of pleasure and sense of family. These children deserve an opportunity to continue that relationship. A sibling bond, if allowed to continue to develop and be nurtured, is one that hopefully will last and be a source of support and joy the rest of the children's lives, beyond even that of their parents.
The Court also notes the proximity in ages of the three children. O. is slightly more than four years younger than M. and one year younger than J. This relative closeness in age suggests that the children have a good chance of having a constructive and meaningful relationship with each other.
The children do indeed wish to see each other and express no negative feelings about doing so; the children have fond memories of times they spent together and activities they did together. They all look forward to more activities of that nature. O. was so comfortable with the notion that she did not even indicate she would need other adults present.
Even respondent's own witness, Dr. N, testified that O. was not upset by the idea of visiting J. and M.
Unlike Matter of E.S. v. P.D. ( 8 NY3d 150 , supra), a grandparent visitation case, this is not a case which involves any issue of the potential for a usurpation of the role of respondent as O.'s parent. Respondent here makes no claim that petitioner, or her two children, will usurp her role as O.'s mother. Further, the visitation among the children will in no way involve the father of the children, the only person respondent has identified to be a potential problem with visitation. In deciding the type and frequency of the visitation which will occur, the Court is mindful of respondent's rights with respect to her own child, and has taken care not to unduly interfere with those rights.
Based upon the foregoing, the Court grants the petition.
Given the distance between the parties' residences, the Court is faced with the difficult question of how to implement visitation in a practical way and in a way that such visitation will not be unduly burdensome on either party. It is the hope of this Court that the parties will be able to communicate, either directly or through counsel and with the assistance of the attorneys for the children, to arrange the details of visitation within the following parameters:
Unless the parties agree otherwise, in the form of a consent order, visitation between the children shall be as follows:
1. During the 12-month period of April 1, 2009 until April 1, 2010, there shall be 6 scheduled visits (1 every other month) for a minimum period of 4 hours for each visit on either a Saturday or a Sunday. The visits shall take place in a public place in Westchester County or other location that is approximately mid-way between the parties residences. Each party shall provide transportation for their own child/children to the visit.Respondent may be present during the first two visits, and thereafter if the parties agree.
2. For each 12-month period thereafter, commencing April 1, 2010, there shall be 6 visits, of which 2 shall include an overnight at petitioner's residence, from Saturday morning until Sunday afternoon. Upon agreement of the parties, one of the overnight visits may instead be at respondent's residence. The parties shall share the transportation for such visit by meeting at a location half-way between their respective homes. This schedule shall continue unless modified by this Court, upon application of either party.
3. The children shall have such additional visitation as the parties may agree.
4. The children may have telephone contact on a weekly basis. Counsel shall communicate to arrange a day and time during which calls may be placed by petitioner on behalf of M. and J. to O. Respondent shall provide a telephone number where O. may be reached. The Court proposes Friday evening between the hours of 5:00 and 7:00 P.M., unless the parties agree otherwise.
5. Telephone contact is permitted on the children's birthdays.
6. Petitioner shall not allow Ruben R. to be present during any visit between the children.
7. The parties shall not discuss the details of this litigation with the children and shall not do or say anything which would tend to discourage the children from participating in the visits.
8. Counsel for the parties and the children shall communicate for the purpose of working out the details of the visitation directed herein. If either counsel wishes to submit a more detailed order, such order shall be submitted on notice to all attorneys on or before April 20, 2009. If the Court received conflicting orders, the Court will make the final determination. If the Court believes that a conference is appropriate counsel will be so notified.
9. The assignments of the attorneys for the children shall continue for 12 months from the date of this decision.
The foregoing shall constitute the decision and order of this Court.
SO ORDERED
NOTICE OF ENTRY
PLEASE TAKE NOTICE THAT the within is a true copy of an order entered in the office of the Clerk of the Family Court of the State of New York in the County of Dutchess on March 27, 2009.
NOTICE OF APPEAL
PLEASE TAKE NOTICE THAT the Family Court Act provides that an appeal may be taken from an order of this Court to the Appellate Division, Second Department. Section 1113 of the Family Court Act provides that the appeal must be taken no later than thirty (30) days after receipt of this order by appellant in court, 35 days from the date of mailing of the order to the appellant by the clerk of the court, or 30 days after service by a party or the law guardian upon the appellant, whichever is earliest