Opinion
Index No. 23229/2009
11-08-2021
J.S., Plaintiff, v. J.D., Defendant.
Judith Berger-Eforo, Esq. Attorney for the plaintiff Howard B. Felcher, Esq Attorney for the defendant John C. Guttridge, Esq. Guttridge & Cambareri, P.C. Attorney for the children
Unpublished Opinion
Judith Berger-Eforo, Esq.
Attorney for the plaintiff
Howard B. Felcher, Esq
Attorney for the defendant
John C. Guttridge, Esq.
Guttridge & Cambareri, P.C.
Attorney for the children
HON. ROBERT S. ONDROVIC, J.S.C.
On August 2, 3 and 4, 2021, the Court conducted a hearing, during which the parties presented testimony and evidence in support of their respective motions seeking, among other things, sole legal and physical custody of the subject children. After considering the testimony of the parties, the documents and audio recordings admitted into evidence, the closing arguments, and the procedural history of this case, the Court hereby makes the following findings of fact and reaches the following conclusions of law:
FACTUAL AND PROCEDURAL HISTORY
The parties were married in 1999 and are the parents of N. (DOB XX/XX/XX) and A. (XX/XX/XX) (hereinafter together the children). Pursuant to a so-ordered stipulation dated April 12, 2011, which was incorporated but not merged into the parties' judgment of divorce entered April 24, 2013, the parties agreed that they would have joint legal custody of the children, with the defendant J.D. (hereinafter the mother) having primary residential custody and the plaintiff J.S. (hereinafter the father) having parental access, and that the mother would have final decision-making authority (hereinafter the stipulation). In December 2013, the parties entered into an agreement pursuant to which the father was obligated to, among other things, pay child support to the mother in the amount of $1,000 per month commencing on January 1, 2014 (hereinafter the modification agreement), Prior to February 2021 - when this matter was assigned to this Court - the parties engaged in a flurry of motion practice, many aspects of which were referred to a hearing. In June 2018, the mother moved by motion sequence number 9, inter alia, to modify the custody provisions of the stipulation so as to award her sole legal and physical custody of the children, and to limit the father to supervised visitation, and to hold the father in contempt for his willful failure to pay child support. In a supporting affidavit, the mother averred, among other things, that the father suffers from bipolar disorder, has a history of drug abuse, and alienates the children from her. She asserted that the father disparages her to the children and uses vulgar language, as demonstrated by alleged text messages between him and the children that were attached as exhibits to the motion.
Shortly thereafter, the Court appointed Jo-Ann Cambereri, Esq. as attorney for the children (hereinafter the AFC), and Dominic Ferro, M.D., to conduct a neutral forensic evaluation of the parties and the children.
In November 2018, the AFC moved by motion sequence number 10, inter alia, to award temporary sole legal and physical custody of the children to the father pending a hearing and determination. In a supporting affirmation, the AFC asserted that the relationship between the mother and the children has deteriorated, that she has met with the children on numerous occasions, and that they have consistently stated that they wish to live with the father. The AFC stated that on November 2, 2018, she was informed by N. that the mother slapped her on the arm during a verbal dispute, leaving a "red mark." The AFC noted that the forensic evaluation had not yet been completed, and opined that the mother's conduct toward the children "borders on emotional and mental abuse." By motion sequence number 11, the AFC moved to hold the mother in civil contempt for her alleged failure to comply with an order placed on the record on November 7, 2018, directing the parties to refrain from discussing the litigation with the children and from using profanity when speaking to the children.
In May 2019, the father moved by motion sequence number 14, inter alia, for sole legal and physical custody of the children, and to limit the mother to supervised visitation . In a supporting affidavit, the father alleged that the mother's "behavior has become increasingly erratic, out of control and violent." He stated that an incident occurred between the mother and A. on April 28, 2019, which resulted in A. calling 911. The father attached, as exhibits to the motion, a letter written by A. to the Court describing the incident and photographs allegedly depicting bruises on A.'s arms.
Although the father, by motion sequence number 14, moved for an award of temporary sole legal and physical custody of the children, at this stage of the litigation, the Court elects to treat the motion, which was filed 2 ½ years ago, as seeking a final disposition of custody. No interim order of custody was issued in this case.
The mother opposed the father's motion and cross-moved by motion sequence number 15 for temporary custody of the children. In her affidavit, the mother alleged that the father "orchestrated the events that allegedly occurred on... April 28, 2019." She averred that she had grabbed A.'s cell phone out of her hand after observing that she was still on the phone with the father at 12:30 a.m. She stated that when the police arrived at her home after A. called 911, the police observed that "[A.] was not in fear of me and that no injuries were present." The mother asserted that the father fails to ensure that the children arrive on time for school and is unfit to act as the custodial parent. According to the mother, the bruising on A.'s arms occurred while she was in the father's care. She denied attacking or injuring A.
Thereafter, in July 2019, the father moved by motion sequence number 16 to, inter alia, modify the modification agreement by terminating his child support obligation and suspending enforcement of the arrears owed by him pending a hearing in this matter, and for an award of pendente lite child support. In a supporting affidavit, the father averred that A. has refused to see the mother since April 2019, and has been residing exclusively with him since that time, and that N. predominantly resides with him. The father asserted that, as a result, there has been a significant increase in his child care expenses. In August 2019, the father moved by motion sequence number 17, inter alia, to have final decision-making authority on all major decisions regarding the children. In his affidavit, the father contended that the children have been in his exclusive care for the last two months, that the children are not enrolled in school for the 2019-2020 academic year, and that it is the children's preference to attend public school in Port Chester, as opposed to a private religious school .
The children ultimately enrolled in the Port Chester School District and, according to the AFC, wish to continue learning in that school system. The mother testified at the hearing that she would not consider moving to Port Chester if she was awarded custody of the children in order for them to continue attending school in that district.
The previous judge who was assigned to this matter conducted in camera interviews with the children on July 11, 2018 and April 25, 2019. Dr. Ferro prepared two reports dated January 3, 2019, and July 8, 2019. This Court, after it was assigned this case in February 2021, conducted updated in camera interviews with the children on April 16, 2021, and May 3, 2021. Thereafter, this Court granted the plaintiff's unopposed motion, inter alia, to vacate a prior order directing Dr. Ferro to prepare an updated forensic evaluation after it was agreed upon by the parties and the AFC that it would not be in the best interests of the children to subject them to a further evaluation and the Court determined that it possessed sufficient information to render an informed decision regarding custody consistent with the children's best interests.
Dr. Ferro's reports were admitted into evidence at the ensuing trial held on August 2, 3 and 4, 2021
ANALYSIS
Although "parents have a fundamental right to custody of their children... [i]n child custody determinations, neither parent has a 'prima facie right to the custody of the child'" (S.L. v J.R., 27 N.Y.3d 558, 562 [2016] [internal citations omitted], quoting Domestic Relations Law § 70[a]). "The interests of the children are always paramount and the rights of their parents must, in the case of conflict, yield to that superior demand" (S.L. v J.R., 27 N.Y.3d at 563 [internal quotation marks omitted]). Joint custody is encouraged "as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion" (Braiman v Braiman, 44 N.Y.2d 584, 589-590 [1978]; see Matter of Hreat v Hreat, 189 A.D.3d 1237, 1238 [2d Dept. 2020]). However, joint custody is inappropriate where "the parties are antagonistic towards each other, do not communicate at all, and have demonstrated an inability to cooperate on matters concerning the child" (Matter of Connell-Charleus v Charleus, 192 A.D.3d 890, 891 [2d Dept. 2021]; see Matter of Laura A.K. v Timothy M., 204 A.D.2d 325, 326 [2d Dept. 1994]).
"'Modification of a court-approved stipulation setting forth terms of custody or [parental access] is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the best interests and welfare of the child'" (Walter v Walter, 178 A.D.3d 991, 992 [2d Dept. 2019], quoting Greenberg v Greenberg, 144 A.D.3d 625, 629 [2d Dept. 2016]).
"Parental alienation of a child from the other parent, including willful interference with his or her [parental access] rights, is 'an act 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'" (E.V. v R.V., 165 A.D.3d 736, 737 [2d Dept. 2018], quoting Entwistle v Entwistle, 61 A.D.2d 380, 384-385 [2d Dept. 1978]). "Inasmuch as custody determinations depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded to the hearing court's findings in this regard" (R.K. v R.G., 169 A.D.3d 892, 894 [2d Dept. 2019]), and "[t]he court's findings will not be disturbed unless they lack a sound and substantial basis in the record" (id. at 894; see Eschbach v Eschbach, 56 N.Y.2d 167, 173-174 [1982]).
Here, the parties are overtly antagonistic towards each other and have demonstrated an inability to cooperate on any matters concerning the children. The teenaged children have been residing with the father for approximately 2 ½ years, and their relationship with the mother is estranged. Under these circumstances, the record soundly and substantially supports the existence of changed circumstances and that modification of a joint custodial arrangement between the parties is in the best interests of the children (see Matter of Shu Jiao Zhao v Wei Rong, 183 A.D.3d 895, 896-897 [2d Dept. 2020]). This Court, then, is faced with the unenviable task of having to decide which parent is more likely to promote stability in the children's lives and foster a relationship with the noncustodial parent, and is better able to provide for the children's overall well-being. This is especially difficult where, as here, both parties have contributed to the family's profound dysfunction and exhibit significant character flaws and a lack of insight.
The father, who is highly educated and previously worked in the music industry, has been unable to maintain gainful employment for many years and relies on financial support from his parents and girlfriend to care for himself and the children. During the hearing, the father mused that he was considering taking the LSAT and attending law school. The father suffers from bipolar disorder, however, he testified that he is compliant with medication and treatment, and his condition is seemingly stable. Although the father loves the children and appears attuned to their emotional needs, the record is replete with evidence of his flawed parental judgment, as evidenced by, among other things, his continued use of vulgar and inappropriate language with the children, his difficulty in setting appropriate boundaries for the children, and his eccentric beliefs and behavior. While the father professes a desire and willingness to aid the children in rekindling their relationship with the mother, the evidence demonstrates that the father, by his actions and inactions, embolden the children to remain estranged from the mother.
The mother works as a real estate broker and, given the father's unemployment, has been the primary wage earner of the family. Although the mother loves the children and certainly presents as the more sensible, responsible parent, her testimony at the hearing reflects a continued refusal to acknowledge how her rigid and dismissive parenting style has contributed to the deterioration of her relationship with the children. The record is replete with evidence that the mother denigrated the father to the children, placed her disdain for the father over the interests of the children, and was unnecessarily combative with the children. Although the father has, to some degree, influenced the children's feelings of hostility toward the mother, the record does not support the conclusion that the father bears sole responsibility for the estranged relationship between the mother and the children. The record demonstrates that, over the years, both parents have interfered with the other's relationship with the children. The mother's testimony that the father orchestrated the incident that occurred on April 28, 2019, between her and A. is not supported by the evidence. Her staunch refusal to accept responsibility for her role in what transpired, which resulted in a complete breakdown of her relationship with A. and the children not wanting to live in her home, is but one example of her inability to recognize her own character flaws and to ably provide for the children's emotional well-being. In addition, in those instances where the father has attempted to facilitate contact between the mother and the children, the mother unreasonably views the father as acting as a "gatekeeper," versus an attempt by him to improve her relationship with the children.
The children, who are now 13 and 16 years old, have been living with the father for approximately 2 ½ years, have little communication with the mother, and have expressed an unequivocal desire to reside with the father. In weighing the children's expressed custody preference, "the court must consider the age and maturity of the child and the potential for influence having been exerted on the child" (Eschbach v Eschbach, 56 N.Y.2d at 173; see Matter of Lopez v Reyes, 195 A.D.3d 846, 848 [2d Dept. 2021]; Matter of Newton v McFarlane, 174 A.D.3d 67, 83 [2d Dept. 2019]). In this case, the children have endured years of emotional distress resulting from the high level of dysfunction caused by the parties and this custody litigation. They are intelligent and very articulate. It is clear that the children prefer the more indulgent parenting style of the father, as compared to the more structured constraints imposed by the mother. It is equally clear that the children feel loved and supported by their father, and are bonded to him, whereas they feel rejected by the mother.
While the Court has accorded some weight to the opinions and recommendations of Dr. Ferro, "they are not determinative and do not usurp the judgment of the trial judge" (Neuman v Neuman, 19 A.D.3d 383, 384 [2d Dept. 2005]; see Matter of Pritchard v Coelho, 177 A.D.3d 887, 888 [2d Dept. 2019]). Here, the mother relies almost exclusively on the reports of Dr. Ferro to support her position with respect to custody. In the first report, dated January 3, 2019, Dr. Ferro opined, inter alia, that although the father's bipolar disorder has been reasonably stable, the father has impaired cognitive functioning, poor insight, and lacks substantial discipline. Dr. Ferro opined that the father is incapable of setting limits for the children, and displays smug satisfaction that the children's relationship with the mother has become so tumultuous. With respect to the mother, Dr. Ferro noted that although her expectations for parental authority are high, that she raises her voice at the children, and "did some smacking," the conflict between the mother and the children was developmentally appropriate. Dr. Ferro recommended that the mother should be awarded sole legal and physical custody of the children, and that visitation with the father should be limited.
In the second report, dated July 8, 2019, Dr. Ferro noted that the children are fully alienated from the mother and that the father is contributing more positively to the children's development. Dr. Ferro stated, however, that the father is a limited parent, delegates parenting responsibility to the paternal grandfather, and is an impaired caregiver. Dr. Ferro noted that the mother blames the father for influencing the children's custody preference, but fails to fully appreciate the impact of her dismissiveness as a parent, and that she has been physical with the children and harsh in her tone. Dr. Ferro stated that transferring custody back to the mother would be hugely disruptive to the children given that their relationship is now estranged. He recommended that the parties and the children engage in family therapy and that the mother seek intensive individual therapy, noting that she has handled the situation poorly, does not manage her emotions well, and will not be in a position to provide guidance to the children if she does not improve her parenting capacity.
Although the Court finds some credence to Dr. Ferro's assessment of the parties and the situation, the utility of the reports in this case is somewhat diminished given the passage of time. This Court conducted in camera interviews with the children nearly two years after the issuance of Dr. Ferro's last report, and the children's desire to continue residing with the father remains resolute. The evidence demonstrates that the children's needs are being met while they are in the exclusive care of the father, and that they view the father's home environment, though unconventional, as stable and secure. The Court is not without concern about the limited discipline and structure of the father's home, however, it is readily apparent that too much time has elapsed for the Court to simply turn back the clock and undo the fractured relationship between the mother and the children.
The mother places great emphasis on the father's bipolar disorder as a basis for a finding that it is not in the best interests of the children to award him sole legal and physical custody. However, the evidence demonstrates that she was fully aware of the father's diagnosis and mental health issues when she entered into the stipulation in 2013, pursuant to which she agreed to permit the plaintiff to have unsupervised access and overnight visitation with the children and, thereafter, permitted the plaintiff to have increased visitation with the children. Moreover, the evidence demonstrates that the father's condition is stable and, though he certainly has character and personality flaws that impact his parenting capabilities, the father is not an unfit parent.
Accordingly, after observing the demeanor and hearing the testimony of the parties, considering the reports of the court-appointed forensic evaluator, and the documents and audio recordings admitted into evidence, and interviewing the children in camera, the Court finds that it is in the best interests of the children to award sole legal and physical custody to the father (see Goudreau v Corvi, 197 A.D.3d 463, 465 [2d Dept. 2021]; Cole v Cole, 172 A.D.3d 680, 681 [2d Dept. 2019]). The father is directed to consult with the mother prior to exercising his final-decision making authority for the children (see Matter of Marino v Sanfilippo, 190 A.D.3d 974, 976-977 [2d Dept. 2021]).
With respect to access, "a noncustodial parent should have reasonable rights of visitation, and the denial of those rights to a natural parent is a drastic remedy which should only be invoked when there is substantial evidence that visitation would be detrimental to the child" (Matter of Ottaviano v Ippolito, 132 A.D.3d 681, 683 [2d Dept. 2015]). "An access provision which is conditioned on the desires of the children tends to defeat the right of parental access" (Matter of Mondschein v Mondschein, 175 A.D.3d 686, 687 [2d Dept. 2019]; see Matter of Madelyn E.P. [Christine L.-B. Kevin O.], 196 A.D.3d 489, 491 [2d Dept. 2021]). Here, although the situation is far from ideal, and the mother's relationship with the children is strained, the Court finds that therapeutic supervised visitation between the mother and the children, as was suggested by Dr. Ferro more than two years ago, is in the best interests of the children (see Matter of LaChere v Maliszweski, 157 A.D.3d 696, 697 [2d Dept. 2018]; Matter of Tecza v Alija, 138 A.D.3d 872, 873 [2d Dept. 2016]; Cervera v Bressler, 90 A.D.3d 803, 806-807 [2d Dept. 2011]). Although the children indicated that they only wish to see the mother when they are ready to do so, the children also expressed that they want to have a relationship with her. It is the opinion of this Court that therapeutic intervention is necessary to restore a meaningful, nurturing relationship between the mother and the children after so many years of hurt and mistrust. The AFC contends that the mother should first engage in individual therapy, however, this Court cannot condition the mother's visitation upon her participation in counseling (see e.g. Matter of Rice v Wightman, 167 A.D.3d 1529, 1530 [4th Dept. 2018]; Matter of Maureen H. v Byron I., 140 A.D.3d 1408, 1411 [3d Dept. 2016]). The therapeutic supervised visitation is to occur with Claudette E. Lamelle, LMSW, a minimum of twice a month, to be arranged by the parties and Ms. Lamelle. Based on the parties' conduct in this case, they are each directed to pay 50% of the expenses associated therewith.
To the extent that the mother moved in 2018, by motion sequence number 9, to hold the father in contempt, alleging that he willfully violated the modification agreement by failing to pay child support since August 2017, that request is denied inasmuch as the mother failed to make any argument at the hearing or in summation with respect to that branch of her motion. Motion sequence number 11, which was filed by the AFC in December 2018, seeking to hold the mother in civil contempt for her alleged failure to comply with an order placed on the record on November 7, 2018, is similarly denied.
That branch of motion sequence number 16 which was to modify the modification agreement by terminating the father's obligation to pay child support in the amount of $1,000 per month is granted, retroactive to the date the motion was filed, inasmuch as the father has been the custodial parent since around April 2019 (see Matter of Morandi v Noorani, 163 A.D.3d 570, 570 [2d Dept. 2018]). The remaining branches of the motion are denied. The evidence before the Court in connection with the father's request for an order directing the mother to pay child support is stale and the Court cannot, on the record before it, make any determination regarding the parties' incomes, including whether or not it is appropriate to impute income to either party, their pro rata share of the combined parental income, or the needs/standard of living of the children (see Domestic Relations Law § 240[1-b]). Contrary to the mother's contention, however, the evidence adduced at the hearing failed to demonstrate that the father's conduct rose to the level of active interference or deliberate frustration so as to warrant the suspension or termination of any obligation by her to pay child support to the father (see Cervera v Bressler, 90 A.D.3d 803, 807 [2d Dept. 2011]; Resnick v Zoldan, 134 A.D.2d 246, 248 [2d Dept. 1987]). Finally, the father failed to set forth an adequate basis for this Court to modify the modification agreement by vacating, or substantially reducing, his obligation to pay child support arrears in the amount of $39,787.
Accordingly, it is, ORDERED that motion sequence number 9 is denied; and it is further, ORDERED that the branch of motion sequence number 10 which was for an award of temporary sole legal and physical custody of the children to the father pending a hearing and determination is denied as moot; and it is further, ORDERED that motion sequence number 11 is denied; and it is further, ORDERED that the branches of motion sequence number 14 which were for an award of sole legal and physical custody of the children to the father and to limit the mother to supervised visitation is granted to the extent that the father is awarded sole legal and physical custody of the children and the mother is awarded therapeutic supervised visitation with the children; and it is further, ORDERED that the branch of motion sequence number 16 which was to modify the modification agreement by terminating the father's obligation to pay child support in the amount of $1,000 per month is granted and the remaining branches of the motion are denied; and it is further, ORDERED that motion sequence number 17 is granted; and it is further, ORDERED that all other relief requested and not decided herein is denied.