Opinion
XXXXX
06-11-2013
WILLIAM I., Plaintiff, v. KATHLEEN K., Defendant.
Stephen M. Silpe, Esq. Cohen Goldstein Silpe LLC Attorney for Plaintiff 850 Third Avenue New York, New York 10022 Donald S. Campbell Attorney for Defendant One North Broadway Suite 1200 White Plains, NY 10601 Robin D. Carton, Esq. Attorney for the Children 5 Waller Avenue, 2nd Floor White Plains, New York 10601
Stephen M. Silpe, Esq. Cohen Goldstein Silpe LLC Attorney for Plaintiff 850 Third Avenue New York, New York 10022 Donald S. Campbell Attorney for Defendant One North Broadway Suite 1200 White Plains, NY 10601 Robin D. Carton, Esq. Attorney for the Children 5 Waller Avenue, 2nd Floor White Plains, New York 10601 Linda Christopher, J.
This matrimonial matter is before the Court for determination of custody, access, and the financial issues of the parties. The parties appeared for trial regarding custody and access beginning May 3, 2013 and continuing on May 6, 8, 9, 14, 15, 16, 17, 20, and 22. Both parties testified. The children's therapist, Dr. Kellner, testified as well as the Court Appointed Forensic Examiner, Dr. McKay, the children's pediatrician, Dr. Lester, Ms. K.'s psychiatrist, Dr. Empfield, and two friends of Ms. K., Kathleen C. and Janet B. The Court also reviewed and considered all testimony and documentary evidence. The Court conducted an in-camera conference with the subject children on May 31, 2013. Thereafter, the Court issued a temporary order of sole legal and physical custody to plaintiff, as well as a temporary order of protection in favor of the children, directing the mother to stay away from the children and have no contact with them except that defendant may text message M.T.I.
Each party is seeking custody of the unemancipated children who have lived exclusively with the plaintiff since January 4, 2011. Plaintiff alleges defendant has significantly traumatized the children through her emotional and physical abuse of them. Defendant alleges plaintiff has alienated the children from her.
Background
The parties were married on June 6 , 1987. They separated on January 1, 2010. This action for divorce commenced on November 11, 2010. The plaintiff initially commenced a divorce action against defendant in May, 2010 but instead of proceeding with a grounds trial, he withdrew his action and filed a new action on October 11, 2010, after the New York No Fault Law passed. The plaintiff's date of birth is — ?, 1960. (He is 53 years old.) The defendant's date of birth is — ?, 1965. (She is 47 years old.) There are four children of the marriage (two are emancipated and two remain unemancipated): M. E. I. is 24 years of age (D.O.B. —/—/1988); K. L. I. is 22 years of age (D.O.B. —/—/1990); M. T. I. is 16 years of age (D.O.B. —/—/1996); and D. F. I. is 14 years of age (D.O.B. —/—/1999).
The parties' unemancipated children reside with plaintiff. M. T. I. is a sophomore enrolled in — ?, a Catholic co-eductional vocational boarding school, located in ?, Rhode Island. D. F. I. is an eighth grader at — Middle School, Westchester County.
The parties reside in Westchester County, New York. Plaintiff is the President of — ?, where he was employed during the past 19 years. Defendant assisted her father with his substantial real estate business. The marriage had difficulties dating as far back as 15 years prior to commencement of this action. In 1996, plaintiff was unhappy with the way defendant was treating their children. The oldest child, M. E. I., was only about six (6) years old when, as she was getting ready for school, she spilled talcum powder. The mother began screaming at her and shaking her. When plaintiff got between them, defendant fell down. She called the State Police and subsequently locked plaintiff out by changing the locks. When plaintiff changed the locks back, defendant scratched his face. Both parties ended up going to jail. Thereafter, the parties reconciled with an agreement to go to intensive counseling. They bought a house closer to plaintiff's employment, so he was able to spend less time commuting to work. Plaintiff testified that things improved for a while as their finances improved and they were able to hire full time household help. But defendant never honored their agreement to engage in intensive therapy. Nevertheless, plaintiff enrolled and remained in therapy for many years.
As for the parties' roles regarding the children, plaintiff testified that he was the primary breadwinner, leaving the house around 7:00 a.m. when the family lived in — — as well as after they moved to — — in late 1996. Plaintiff helped somewhat to get the kids ready for school in the morning and later on, drove the older ones to school but he spent more time with the children in the evenings after arriving home around 6:00 - 7:00 p.m. He read to them almost every night. When the children were little, he would give them a bath and get them to bed. On weekends he devoted himself to the children. He did not have many other hobbies. They went on bike rides together, went hiking and did yard work. He was M. T. I. and D. F. I.'s soccer coach and did Tai Quan Do with them. He would take the children to his Presbyterian Church and with defendant to the Catholic Church. He helped D. F. I. with his baseball pitching and took the children skiing in Vermont.
Defendant was the primary caretaker, although she also worked in an office in the home and had a variety of help. When the children were little, she did all the household chores, shopped and cooked meals. She took the children to all their medical appointments, including routine checkups and sick visits, along with dental appointments until the children went to reside full time with the father. After they moved in with their father, he was in charge of all health appointments and took the children to the pediatrician and arranged for their therapy. This was confirmed by the testimony of the children's pediatrician and therapists.
Ms. K. arranged for their preschool, volunteered and met with the teachers. She continued to volunteer at their schools and meet with the children's teachers until the children left her home.
Ms. K. also arranged for and organized most of the children's extracurricular activities ranging from softball, soccer, cheerleading, lacrosse, tennis and theater.
Shortly after M. T. I. was born, the parties hired a full time nanny and housekeeper. Plaintiff testified that he wanted the nanny/housekeeper to relieve the stress on his wife but he also thought that defendant would be less likely to be angry at the children with another adult in the house.
In addition to the nanny who did some housework, the parties employed people to clean the house one to two times weekly, babysitters to help out and to drive the older children and people to help shop and cook.
Defendant became increasingly harsh and authoritative as the children got older. She had lots of rules and high expectations as to how they were to behave. As they got older, they began to become more assertive and defendant got harsher. When the children were younger, she would spank them and as they got older, she would slap them in their face. She would fly into a rage over a child accidentally breaking something. Defendant called the children names like, "little bitches" and "fucking bitches". The children reacted by appearing visibly saddened; their whole demeanor would change as they would shirk and sulk away. Plaintiff, for his part, would try to speak to the mother to calm her down and remind her of how much she loved the children and the amount of damage she was inflicting. Initially, she responded positively but as time progressed, she would get angry at plaintiff for trying to get her to stop her abusive behavior.
Plaintiff described how defendant's behavior got progressively more controlling and obsessive. The children and the therapists verified this. There were strict rules and routines. Children had to wash their shoes before coming into the house. Clothes had to be folded in a certain way. Clothes had to be hung with hangers facing a particular direction. When the children arrived home, they were made to sit at the kitchen table and do homework. They were not permitted to go to their rooms or play in the yard. They awaited their mother's instructions (while she was working in her office). The children's friends were also strictly controlled. If the children objected, their mother would fly into a rage. She governed them by her unpredictable rages, yelling and screaming, telling them they were "selfish little bitches", "a bad influence around the house" and "ruining her life". She forced one of the older girls to go to her senior prom with a boy K. L. I. knew but did not want to go with. Her mother thought it would be a nice thing for her to do, as he did not have a date. The fact that this was K. L. I.'s prom, that she was an outgoing, popular girl and that he was not her choice, did not seem to factor into the mother's thinking.
One of the defendant's favorite forms of punishment was to berate the children in front of their friends. She would criticize them, give them chores and propose things to them while their friends were present. If the children objected, she would embarrass them, call them "snotty little bitches", or tell them, "You God damn well are going to do this, you little bitch".
The environment was such that the family never knew when defendant would fly into a rage; they all walked on eggshells.
When the children gave their mother a Mother's Day gift in 2007 or 2008, defendant stormed out, after receiving the items, barely acknowledging them. D. F. I. asked his father, "Why does she hate us?".
Unable to tolerate the situation any longer, plaintiff moved out of the marital residence to a rental home 1400 feet away on January 1, 2010. Initially, defendant objected when the father wanted the children to spend nights with him. When he finally had the children overnights, defendant would give the children to plaintiff at 8:30 at night and would insist he bring them back to her by 7:30 a.m. the next morning. Eventually the children resided 50% of the time with each parent.
While the children were living back and forth between the two homes, their mother was very restrictive in allowing them access to their belongings. If they forgot something, they had to make an appointment to retrieve their items. Moreover, she would get very angry if the children left anything at their father's home.
Beginning in the fall, 2010, the children began to see therapists recommended by their attorney, Robin Carton. M. T. I. began with Lynn Kellner, Ph.D and D. F. I. with Suzanne Hanna. They share an office in Bedford Hills.
Plaintiff purchased a home in ———-, Westchester County around the time between the commencement of the first and second divorce in 2010. The parties were alternating their time with the children between them but the children were becoming more and more resistant and crying. In early December, 2010, plaintiff got a call from M. T. I. about one hour after her father dropped her off at her mother's. She demanded he pick her up immediately. When plaintiff arrived at the mother's home, M. T. I. was lying in the driveway. D. F. I. was storming around saying, "I'm not staying here!". He ran down the street and plaintiff ran after him. D. F. I. was extremely upset and angry with tears running down his face, fists clutched. Plaintiff kept the kids for a day or two hoping they would cool off and spoke to them about reconciling with their mother. He also supported the mother by telling the children that, essentially, they appeared to be overreacting.
On January 4, 2011, M. T. I. and her mother got into a serious altercation over M. T. I.'s use of her cell phone. M. T. I. was supposed to be getting ready for school and was not allowed to have the phone in her room. Nevertheless, M. T. I. brought the phone up to her room. When her mother discovered this, she became enraged and attempted to pull the phone out of M. T. I.'s hand. A physical struggle ensued and the mother scratched M. T. I.'s hand, causing it to bleed. D. F. I. heard the commotion, saw the injury and appeared terrified as he recounted the incident to his father. The mother decided, as a result, that the children were out of control and disrespectful to her. She complained to M. T. I.'s principal, who saw the cut on M. T. I.'s hand. The school called CPS, but CPS ultimately unfounded the case. This incident appears to have been the final straw of the proverbial "camel's back". The children went to their father's and for all intents, never returned to their mother's.
M. T. I. spent one night at her mother's in the spring of 2011. D. F. I. has not spent a night since the incident. He has, on one or two occasions, spent some time with his sisters at the mother's house. M. T. I. has been at the house, possibly five times since the incident.
As for the older two girls, they have spent little time with their mother since early 2010. Plaintiff did not think either had spent a night in the house except perhaps one night in early 2010. They both got new telephone numbers in July 2010 and did not give the numbers to their mother. M. T. I. and D. F. I. also got new numbers but plaintiff gave the numbers to their mother.
As recent as Mother's Day, 2012, plaintiff drove the children to defendant's home where flowers were left at her door.
Recent History
Plaintiff testified that he gets D. F. I. up and arranges breakfast, makes his lunch, and gets him on the bus. D. F. I. gets off the bus at 3:00 p.m. and does his homework. K. L. I., his older sister who is 22, lives with them. She works nearby for four to five hours daily. D. F. I. was involved in after school sports until he injured his shoulder, wrestling on January 18, 2013. After a misdiagnosis and a course of unsuccessful physical therapy, D. F. I. was finally properly diagnosed and had successful surgery. Plaintiff advised Ms. K. of the initial emergency room visit and the scheduled surgery.
M. T. I. is currently attending — — Boarding School in Rhode Island. She had gone to summer camp there and wanted to go in September, 2011 but changed her mind and enrolled in September, 2012. It has superior academics and M. T. I. was looking to get away from her parents' divorce and away from her mother, whose behavior is, apparently, an open secret in her home town. M. T. I. was looking for a fresh start.
However, this was not to be. When M. T. I. first moved into her room at — —, defendant arrived. M. T. I. had just moved in and defendant immediately began rearranging the furniture and objects her daughter had set out in her room. M. T. I. allowed for the intrusion. Eventually the mother left, only to return to the room after the time when parents were no longer to be in the rooms. M. T. I. told her mother she should leave. Flaunting the rules, the mother insisted on staying. Tensions rose, and defendant let it be known, in front of M. T. I.'s new roommates, that she did not think M. T. I. was ready for school away from home, she was not mature enough and should come home with her. M. T. I.'s chance for a fresh start was ruined.
Hence, M. T. I. did not want her mother to attend parents weekend and had arranged for a dinner with her father, brother, friends and their parents. During parents weekend, defendant inexplicably showed up in her old Holy Cross School uniform. As if this were not enough, she engaged in a screaming, shouting diatribe in the front of the dorm, in earshot of others, as to why she had not been invited to the dinner, that M. T. I. had arranged. She finished by storming away but only after telling plaintiff, that this was all his fault and he was "a great Christian!". This all occurred in front of M. T. I. and D. F. I. who appeared mortified and visibly disturbed.
It is important to note that Ms. K.'s father and brother both attended — — and her uncle is a monk there. Plaintiff supported M. T. I. going there for summer camp, knowing that defendant had a connection. He thought that defendant's connection with the school would cause her to support the children's attendance there.
M. T. I. has had a tough transition to boarding school. Not only is — — significantly more challenging, academically, than her prior public school, but M. T. I. has had tremendous emotional trauma to contend with, as set forth above. M. T. I. has described having anxiety attacks and trouble getting her work and tests done on time. As a result, M. T. I.'s grades dropped dramatically from when she attended — Public School. She received C's and D's at — — except for Art. She has a 2.63 GPA. Her mother believes this is evidence in support of her position against M. T. I. attending — — boarding School, despite the fact she executed the initial enrollment form.
D. F. I. also wants to attend — — . He maintains a 91 average and looks forward to the challenge.
Children's Therapists
M. T. I. has seen her therapist 28 times over the last 2-1/2 years and D. F. I. has seen his 24 times. Defendant complained that plaintiff had not been diligent in seeing to it that M. T. I. . and D. F. I. attended therapy on a more regular basis. However, M. T. I. was away attending summer camp and then boarding school, during this time. D. F. I. has been resistant to therapy. He said it was a waste of his time and it made him sad to talk about what happened between his mother and him. Plaintiff testified he continued to take D. F. I. to therapy because he thought it was important for him to deal with his issues and to have a healthy relationship with his mother.
Suzanne Hanna, D. F. I.'s initial therapist, recommended Dr. Grosso for therapeutic visitation between D. F. I. and his mother. It occurred in April, 2011. It was supposed to give D. F. I. an opportunity to tell his mother how he felt and for his mother to hear him and speak to him in a positive way. It had been about four months since D. F. I. had slept at his mother's house. The session was a disaster. Essentially defendant denied D. F. I.'s complaints of her and refused to validate his feelings or concerns. He was visibly upset after the session, quiet and angry. He said his mother was crazy and he did not want to see her.
Dr. Lynn Kellner, a clinical psychologist with a specialty that includes children and adolescents, worked with M. E. I., M. T. I. and D. F. I. She sees approximately 30 to 40 patients weekly ranging in ages from 10 to 25, but mostly children and adolescents. Ultimately, D. F. I. changed over from Suzanne Hanna to Dr. Kellner. She first saw M. T. I. in October, 2010. She described M. T. I. as very verbally articulate, able to access her emotions and quite bright. She diagnosed her as having an adjustment disorder with mixed depression and anxiety. She described her as struggling with this high conflict divorce and her very difficult relationship with her mother. M. T. I. was conflicted by the feeling of an obligation to have a relationship with her mother and the effect of, whenever they had contact, coming away feeling upset and controlled. She was very determined she wanted to live with her father where she had the ability to function autonomously. An example of her mother's controlling behavior was when she made the children sit at the kitchen table, unable to leave except to go to the bathroom or sharpen a pencil. They were made to stay there until their father came home. Dr. Kellner testified that M. T. I. was extremely upset and fearful when recounting her childhood. For example, she feared her mother's drawer inspections to determine if clothes had been folded properly. Dr. Kellner's opinion is that M. T. I.'s continued fear of her mother is well grounded.
Dr. Kellner tried to assist M. T. I. in getting in touch with her positive feelings about her mother. There were none that M. T. I. could come up with.
On the other hand, M. T. I.'s relationship with her father is good. She felt safe with him and protected by him. However, her father made her feel guilty for not seeing her mother and put pressure on her to have a relationship with her. Dr. Kellner opined that the father did not understand the amount of pressure he was placing on M. T. I.
Regarding her relationship with her mother, Dr. Kellner was clear. M. T. I. would like no contact with her mother. None. If M. T. I. were forced to have contact with her mother, it would be detrimental to M. T. I.'s mental health, according to Dr. Kellner. In the therapist's opinion, if the mother were to accept responsibility for the mistakes she made and allow M. T. I. to dictate the relationship, then rapprochement could be possible. When asked if defendant's recollection that during a phone call between Dr. Kellner and defendant outside the Courtroom immediately prior to the trial, Dr. Kellner had suggested that contact between defendant and M. T. I. would be fine, Dr. Kellner replied, absolutely not.
Dr. Kellner has seen D. F. I. 14 times, beginning June 27, 2012. Previously, he was seeing Dr. Grosso, beginning October, 2010. D. F. I. is extremely articulate and very bright, according to Dr. Kellner, but has trouble accessing his emotions. He has difficulty articulating his feelings other than anger and fear. He was angry for being forced to see Dr. Kellner and for being abused and controlled by his mother. He was so afraid to access his memories for the emotions they brought out, that he had blocked his memories. He spoke to Dr. Kellner of being terrified when he heard his sister screaming and then came upon her in her bedroom with her hand bloodied in January 2011. He was genuinely afraid of his mother. There were a number of incidents over his lifetime, some of which were relayed to the Court by Dr. Kellner. Most recently, D. F. I. related specifics of when he was alone with his mother from ages seven or eight until he left the house, when defendant systematically, physically abused him. She forced him to lie still and would scratch him in places that would not be seen depending on what time of year it was. D. F. I. was almost in a trance when he described the abuse. He has disassociated himself from his emotions. Dr. Kellner diagnosed D. F. I. as suffering from post traumatic stress disorder. His disclosures are often followed by bed wetting incidents. She, a mandated reporter, called CPS when D. F. I. disclosed the abuse to her on April 16, 2013. Inexplicably, CPS unfounded the report. His revelation to Dr. Kellner came only after she prodded him for specifics. He had blocked many of these memories. D. F. I. had indicated he wanted no relationship whatsoever with his mother, ever and no contact. In her opinion, D. F. I. will require life long therapy.
The Forensic Report
Dr. McKay's 47 page report of May 13, 2011 was accepted as Exhibit 1A in evidence (hereinafter, the Report). Dr. McKay is a psychologist with significant experience in conducting forensic evaluations and testifying in Courts throughout the New York Metropolitan area and Westchester regarding issues of custody and access as well as other areas such as abuse and neglect. She spent approximately five (5) hours with each party and one (1) hour with each child. Dr. McKay also spoke to Dr. Kellner, Dr. Schippo, Dr. Empfield, Dr. Grosso and Dr. Schiller as well as Ms. H. and Ms. O. (the housekeeper). Dr. McKay also reviewed collateral documents.
According to Dr. McKay, Mr. I. functions in the superior range of overall intellectual ability as compared to Ms. K., who functions in the average to high average range. Dr. McKay reported that Mr. I. "prompt in his appearance to each session and was fully cooperative with the evaluation process." Report at p. 12. This is contrasted with her report of Ms. K. who, "Though not overtly uncooperative with [the] evaluation, Ms. K. was difficult to engage in the evaluation process. She was expressly reluctant to appear initially, claiming uncertainty regarding the process and cancelled late with no apparent excuse. Ms. K. nevertheless did eventually comply fully with [the] evaluation." Report at p. 16.
"Ms. K.'s manner of relating was remarkable in a number of ways. In addition to demonstrating a number of atypicalities of non-verbal communication (poor and avoidant eye contact, physically facing in a different direction and slumping in her chair), she evinced marked mood shifts ranging from overtly expressed anger to overt emotional withdrawal and shame (like a scolded school girl) with the occasional tendency to "self-talk," i.e., mumbling barely audible remarks as an aside. At other times, she impressed as quite engaging and evincing of a pleasant mood." Report at p. 16 - 17.
Regarding Ms. K.'s history, it is significant that she suffered physical abuse from her adoptive mother. However, Dr. McKay wrote "Ms. K. demonstrated little if any insight regarding the manner in which this history [referring to her family dynamics] has affected her personal emotional and interpersonal functioning. Demonstrating markedly rigidity of thought, other than to assert herself as a victim or martyr, she demonstrated no capacity for self-scrutiny and limited capacity for empathy, demonstrating a persistent tendency to externalize and project blame." Report at p. 17.
Dr. McKay wrote regarding defendant's mental health, "Though not suggestive of a formal thought disorder, Ms. K. did display some feature thereof given demonstrated history of inappropriate suspiciousness and "paranoia" as well as "self-talk" (mumbling asides) and atypical interpersonal habits (poor eye contact, averting gaze, facing away from someone) as well as mood shifts." Report at p. 22.
Dr. McKay also met with M. T. I. She reported, "M. T. I. described living with her father as far more comfortable at present and explained, There's so much less stress; so much less stress for everything. He lets me go at my own pace.' Although indicating that the return to her mother's for a brief visit was tolerable, she related, I'm terrified to go back. If I stay too long, she can just snap. I don't know if she can change.'" Report at p. 34.
Regarding D. F. I., "Acknowledging somewhat there were positive aspects to his relationship with his mother, when asked explicitly, D. F. I. related, I guess [there were good aspects]. She wanted me to do whatever I wanted to do [in life].' Shifting quickly in both mood and content however, he continued, I really don't remember her comforting me. It was always my dad and sisters [who comforted me].' Indicating his experience of his mother as non-supportive, he added later, She never comforted me on big things. She never talked me through things, wouldn't discuss things.' D. F. I. reported further that Ms. K. was unwilling to discuss matters that were important to him and noted, She excluded me, said I'm too young, it's not my place to talk about that or she would say, I don't like your tone and I'm (sic) talking about this.....' D. F. I. reported that Ms. K. rarely spent time with him and claimed that she was more often preoccupied with her work and was always in her office, always has her cigarettes.'" Report at p. 37
Unfortunately Dr. McKay's report was submitted two years prior to the trial. As such, she was asked a number of hypothetical questions that were based on the facts of this case. Her answers were significant. Regarding Dr. Kellner's opinion that D. F. I. is a victim of Post Traumatic Stress Disorder, Dr. McKay testified it, "would affirm his vehement unwillingness to meet with the defendant and would require excessive caution for a reunion with his mother. Both parties would have to have the emotional stamina to enable treatment and foster the likelihood of success. If a person has significant symptoms of trauma, you risk retraumatizing them." She further opined that even if the fear was not based on reality, if he believed it was real, then his fear was real. In summary, Dr. McKay testified that if D. F. I. avid suffered physical abuse by his mother, it would change her opinion. Rather than liberal access, there needs to be caution regarding rapprochement. The defendant would need to be of sound mind so as not to retramautize the child. Defendant would require intense, ongoing therapy and review of the circumstances that led to the abuse. A trauma specialist should be employed.
Regarding M. T. I., after being questioned with information as to defendant's causing M. T. I. to feel humiliated by her mother's comments in front of peers and ruining her chance of a fresh start and other facts that have been proven at trial, Dr. McKay was of the opinion that the defendant poses a risk to M. T. I.'s safety and health.
Dr. McKay further testified that under the circumstances of this case, as presented by a hypothetical question, the father should not take a more proactive approach regarding the children's relationship with their mother. It would be unproductive and could be potentially harmful to the children.
Ms. K.'s Response
Generally, defendant denied most allegations against her. According to her, she never shook or screamed at M. E. I. for spilling talcum powder. She did not have a lot of rules and regulations. The children were not made to sit at the kitchen table. She denied making the children fold clothes without edges. Drawer inspection did not happen. Shoes were not required to be washed before coming into the house. She never physically abused the children, slapped them or ridiculed or berated them in front of their peers. There were no rigid rules on Christmas day. (Plaintiff testified she made the children wait to open presents until she had had her coffee and cigarette.) She never called them snotty little bastards. She never forced extracurricular activities upon her children. They all loved what she chose for them and the fact they never complained is proof positive of her claim. It is not true that she forced K. L. I. to attend her prom with a boy she did not want to go with. In fact, she testified, they both agreed it would be a nice thing to do for this boy. Defendant denied physically abusing D. F. I. and locking him in a closet. She defiantly explained that the parties do not have closets that lock. The children were not required to make appointments to retrieve items when the parties separated, she said. If a child spilled liquid, she would not yell at them. The incidents at M. T. I.'s boarding school simply did not occur, according to defendant, in the manner depicted. She did not dress her daughter down in front of her suite mates. Moreover, she denied raising her voice during the parents weekend incident. The Holy Cross Prep School outfit she wore, was only the kilt, she explained and perfectly appropriate.
Defendant was opposed to the children attending — ?, primarily because she felt they could get a good well-rounded education at — Public Schools and because they needed to be closer to her so they could work on their issues together. Defendant claimed plaintiff was negligent in getting the children to therapy. He allowed them to miss school and arrive tardy on occasions. He failed to keep her informed of medical issues and he and Court Referee Ratner forced her to consent to M. T. I. going to boarding school.
When asked about her therapeutic sessions with D. F. I., defendant complained that D. F. I. was ranting and raving at her. When asked if she might have made any mistakes as a parent, she admitted she did not sign him up in time for a camp he wanted to go to. She testified, plaintively, "I said I was sorry that he was on a waiting list and he had a right to be frustrated. It was a misunderstanding and daddy and I would do our best to clear it up." He complained about never being allowed play dates and being forced to do chores. She replied, regarding the play dates, "It was a misunderstanding. I'm sorry he felt that way."
Defendant denied ever getting flowers on Mother's Day, 2012. She got nothing, said she.
Describing her relationship with D. F. I., we were very close, she explained. He never held anything back, she said. "He was all girl and all boy." (!)
Defendant claimed that regarding the issues between her and the children, she was still "waiting for specifics". (This despite a 47 page forensic and days of testimony regarding the specific claims of her abuse!)
After being pushed for her to come up with an example of something she might have done wrong and after a great deal of thought and trying to understand the question, finally defendant pronounced, "I didn't fight hard enough when they were interested in a sport." When prodded by plaintiff's counsel for another example, she admitted, "I've lost track of what you're looking for."
When asked about how she proposed dealing with the children when she denied their allegations that she yelled, cursed, and abused them, dressed them down in front of friends, and embarrassed them in front of peers, she responded that she had been waiting and will wait to sit down in a professional setting to help her help D. F. I. and validate his true feelings. "D. F. I.'s brain needs to function. He just needs to function on these hot button topics." she explained. When asked how she would validate D. F. I.'s feelings if she did not believe what he said, her answer was "professionals". "Unfortunately my son was given misinformation. I believe subtle misdirection of his memory by his father." When asked if the father also subtly misdirected the three girls as well, she responded, "The agenda was quite strong."
In describing plaintiff's role regarding the children and sports, she said, what he did was wonderful, showing up and helping to pick up after the game and put away the equipment on occasion. She compared it to the church goer who shows up only on special holidays. She then denied making such a statement. She said it did not sound like something she would say.
Even Dr. Empfield, Ms. K.'s treating psychiatrist, dismissed the children's complaints and testified that her client was sorry for "whatever they [the children] feel is difficult about her behavior." Brushing aside the claims of emotional and physical abuse, Dr. Empfield testified that defendant felt she had been too strict about certain routines like making them brush their teeth and going to church. She diagnosed her client with suffering from major depression with anxiety with some obsessive features. She also testified that her client claimed to have been sexually abused by Mr. I.; a claim defendant also made to Dr. McKay, despite the evidence that she had complained of the lack of sexual interest on the part of Mr. I to an earlier family therapist. Defendant also complained that plaintiff was emotionally and verbally abusive.
In Dr. Empfield's opinion, without ever having met the children, it would be in their best interests to see their mother.
Dr. Lester
Defendant insisted Dr. Lester, the children's pediatrician, testify despite plaintiff's willingness to stipulate to the facts she testified about. She supported both parties positions regarding who brought the children to her office for well and sick visits. She also advised she never observed signs of physical abuse.
Conclusions and Law
The pivotal question to be answered by the Court in a custody proceeding is what is in the best interests of the child. Tropea v. Tropea, 87 NY2d 727 (1996). The sole concern of the Court is which resolution will best serve the interests of the subject children, promoting their welfare, happiness and optimum development. Eschbach v. Eschbach, 56 NY2d 167 (1982). The Court must evaluate the best interests in light of the totality of the circumstances. Friederwitzer v. Friederwitzer; 55 NY2d 89 (1982); Eschbach, 56 NY2d 167. Neither parent has a prima facie right to custody. The primary focus must be upon which of the parents is in a better position to provide for the child's emotional and intellectual development, the quality of the home environment and the parental guidance to be provided. Matter of Louise E.S. v. W. Stephens S., 64 NY2d 946 (1985).
Stability is a factor to be considered. Eschbach, 56 NY2d 167. While it is of paramount concern in assessing the best interests, the fact that change may be somewhat disruptive is not necessarily conclusive. Matter of Louise E. S., 64 NY2d 946.
The financial positions of the parents and who is better able to provide the child with material advantages should be considered. See, Wallinger v. Wallinger, 96 AD2d 988 (3rd Dept. 1983). However, this, as with any other single factor is not controlling. See, Eschbach, 56 NY2d 167.
Separation of siblings is a consideration to be taken into account by the Court when making a custody determination. See, Obey v. Degling, 37 NY2d 768 (1975). Generally, split custody of siblings will not be ordered unless clearly justified by the circumstances of the case. Ebert v. Ebert, 38 NY2d 700 (1976).
Wishes of the children, if of sufficient age and discretion, are a factor to consider. See, Bullotta v. Bullotta, 43 AD2d 847 (2nd Dept. 1974). Although not determinative, preferences of children of sufficient age and maturity should be given consideration. See, Ebert, 38 NY2d 700.Courts have held that the recommendations of court appointed experts are a factor to consider when making a custody determination. Young v. Young, 212 AD2d 114 (2nd Dept. 1995). The recommendations are entitled to some weight unless those opinions are contradicted by the record. In fact, in the case of Linda R. v. Richard E., 162 AD2d 48 (2nd Dept. 1990), the appellate division reversed a custody determination, in part due to the trial court's failure to consider or to adequately explain why it failed to consider the recommendations of neutral experts. The Courts have said that an evaluation by an independent expert should not be readily set aside. Rentschler v. Rentschler, 204 AD2d 60 (1st Dept. 1994).
Joint custody should not be imposed on parents who do not communicate. [ Matter of Diana W. v. Jose X., 296 AD2d 614 (3rd Dept. 2002); Matter of Heintz v. Heintz 275 AD2d 971 (4th Dept. 2000)], who are unwilling to cooperate [See, Amari v. Molloy, 293 AD2d 431 (2nd Dept. 2002)], and who are unwilling or unable to set aside their personal differences and work together for the good of the children [Matter of Meres v. Botsch, 260 AD2d 757 (3rd Dept. 1999)].
Also to be considered is the effect an award of custody to one parent might have on the children's relationship with the other parent. See, Mohen v. Mohen, 53 AD3d 471 (2nd Dept. 2008). Which parent will assure that the child maintains a meaningful relationship with the other parent is a significant factor to be considered. See, Tori v. Tori, 103 AD3d 654 (2nd Dept. 2013); Vasquez v. Ortiz, 77 AD3d 962 (2nd Dept. 2010).
In making its determination on the issue of custody, the Court is to evaluate the testimony, credibility, character, temperament, demeanor and sincerity of the parties and other witnesses. See, Matter of Rory H. v. Mary H., 13 AD3d 373 (2nd Dept. 2004); Matter of Dobbins v. Vartabedian, 304 AD2d 665 (2nd Dept. 2003).
"[T]he determination of visitation is within the sound discretion of the trial court based upon the best interests of the child, and its determination will not be set aside unless it lacks a sound and substantial basis in the record (citations omitted)." Sinnott-Turner v. Kolba, 60 AD3d 774 (2nd Dept. 2009). "Although a child's wishes are not determinative, his or her wishes, age, and maturity should be given considerable weight (citations omitted)." Id. While a noncustodial parent is entitled to meaningful visitation, "visitation will be denied where there is substantial evidence that such visitation would be detrimental to the child (citation omitted)." Morales v. Bruno, 29 AD3d 1001 (2nd Dept. 2006); Giannoulakis v. Kounalis, 97 AD3d 748 (2nd Dept. 2012).
In Krasner v. Krasner, 94 AD3d 763 (2nd Dept. 2012), the Second Department found that while visitation with the non-custodial parent is generally appropriate absent exceptional circumstances, under the circumstances presented, the best interests of the child would be served by termination of the mother's visitation. The court considered the child's vehement opposition to any form of visitation with the mother, as well as the recommendation of the court appointed forensic examiner that visitation be terminated. Id.
In Giannoulakis v. Kounalis, 97 AD3d 748 (2nd Dept. 2012), the Second Department upheld the decision of the Family Court denying the father modification of the visitation provision of a prior order that denied him visitation. The father had a history of abusive behavior, the forensic evaluator concluded among other things that the father had failed to take responsibility for his actions or rectify his behavior, the father's demeanor was offensive during the hearing, and the father was arrested for domestic violence while the proceeding was pending. Id.
Conclusion
Applying these legal principles to the facts of this case, based on a preponderance of the evidence presented and after reviewing and considering all of the evidence and testimony and assessing credibility of the witnesses, the Court finds it is in the children's best interests to award sole legal and residential custody to the father, Mr. I.
Defendant was the children's primary caretaker while they were growing up but based on her emotional abuse of the children and physical abuse of D. F. I., defendant would pose a significant risk to the children's health and safety. During the past 2-1/2 years, the children have lived exclusively with plaintiff. This is the status quo and should be continued.
Based on the testimony and evidence presented, the Court finds plaintiff's allegations of emotional and physical abuse of the subject children by defendant proven by preponderance of the evidence submitted.
Although the parties were willing to waive the Court's in-camera interview of the children, the Court insisted on the opportunity to meet with the children, despite the emotional upset it would undoubtedly cause them. The Court needed to be sure, despite all supporting evidence, that the claims made by plaintiff were, in fact, true. (Given that CPS had unfounded the report of physical abuse by the mother against D. F. I., the Court was pressed to assess his claim.) Both children impressed the Court as intelligent, articulate and thoughtful. They both genuinely fear their mother. Contrary to claims by defendant that D. F. I. was dramatic, his report of his mother's physical abuse was trancelike and chilling. Apparently he had blocked this abuse from his memory until recently. He detailed and clarified the abuse he endured.
Although M. T. I. was not physically abused herself, her in-camera testimony confirmed her very real fear of her mother, both physically and emotionally. This wonderful young lady suffered through her comments to the Court while dealing with stress induced hiccups and reciting the other stress related effects of her mother's contact, such as panic attacks and crying spells that she cannot control.
The defendant appears to have significant psychological issues that must be dealt with in order for her to have any success in working towards a better relationship with her children. The Court found her totally lacking in credibility, which coupled with her significant psychological issues, leaves little hope for a positive outcome.
The children, to their credit, are protecting themselves from further abuse by requesting no contact, except in M. T. I.'s case, she allowed that her mom may text her, if not too frequently.
Regarding defendant's claim that Plaintiff alienated the children against her, nothing could be further from the truth. If anything, plaintiff allowed the defendant too much latitude by not stopping the abuse sooner. His efforts to encourage the children to have a better relationship with their mother are laudable but under the circumstances and based on the opinion of the "professionals", not in the children's best interest.
The Court finds that defendant's acts of emotional and physical abuse and the harm she caused upon the children resulting in physical and emotional trauma rise to the level of extraordinary circumstances.Defendant, therefore, is to have no contact with the children including being at their school while school is in session or at their home or extracurricular events except she may text M. T. I. no more than once monthly. This shall continue until such time as defendant admits the physical abuse of D. F. I., that is, that she caused scratches upon his body from the age of seven (7) or eight (8) until he left the house by bringing him into her room, when no one was home and physically assaulting him. She must also admit the emotional abuse set forth in this decision. While defendant need not own up to each and every complaint of emotional abuse, her denial of each and every complaint shows no incite into her own behavior and, as the experts have advised, is detrimental to the children's well being. She must acknowledge her past behavior and the effect it has had on her children. Her lame attempts to claim that her that missteps as a parent were in not working hard enough to get D. F. I. into a camp or forcing the children to brush their teeth, are simply unacceptable. She must own up to her past abuse and apologize to the children. In addition defendant must engage in psychotherapy with a therapist who specializes in trauma and who is given a copy of this decision. The therapist should work toward assisting her in coming to terms with her past abusive behavior in an effort to modify her behavior in the future. Thus, she might be able to have a better relationship with her children. Upon engaging in this psychotherapy and acknowledging her past abuse, she may apply to a Court of competent jurisdiction for expanded access with her children.
The temporary order of protection is hereby vacated as there was no application made to the Court for same, without which the Court has no authority to make such an order on a permanent basis.
The foregoing constitutes the Decision of this Court.
Plaintiff shall prepare an order on notice. E N T E R Dated: June 11, 2013 White Plains, New York HON. LINDA CHRISTOPHER, J.S.C.