CHILD CUSTODY - YES IT CAN GET THIS BAD

The stuff that nightmares are made of.

Matter of Eddie S. v. Sylvia S, . NYLJ March 23, 2020, Date filed: 2020-02-26, Court: Family Court, Bronx, Judge: Judge Aija Tingling:

"This decision renders a conclusion to a long-standing modification of custody battle centering on conduct constituting severe and persistent parental alienation by Respondent against Petitioner. “A petition to modify an existing order requires a two-part inquiry; whether or not there is a change in circumstances so as to warrant an inquiry into whether the best interests of the children would be served by modifying the existing custody arrangement.”¹ Once a change in circumstances has been demonstrated, “the parent then must show that modification of the underlying order is necessary to ensure the child’s continued best interests.”² This court previously determined in a lengthy decision that Petitioner established a change in circumstances based on parental alienation by Respondent. See E.S. v. S.S., 63 Misc. 3d 1206(A) (N.Y. Fam. Ct. 2019). However, lacking sufficient information as to whether a change in custody would serve and promote the best interests of the children, this court ordered a best interest hearing. The hearing was held on October 22, 2019, December 19, 2019 and December 23, 2019.

Summary of Best Interest Arguments:

Petitioner argues that Respondent has no intention of including him in the children’s lives. Although it has been a long time since he has seen the children, the situation does not have to remain that way. Petitioner believes the children are torn between loving him and disobeying the maternal grandmother, whom Respondent is financially dependent upon.

Respondent argues that the children wish to remain with her and do not want a relationship with Petitioner. Additionally, Petitioner has not enlisted professional assistance or put forth any plan or strategy to reduce the trauma to the children should custody be changed, which would be a drastic remedy. Therefore, the petition for modification should be dismissed.

Attorney for the child (AFC) argues that Petitioner’s request for sole custody is unrealistic and not in the best interests of the children. Petitioner has a final order for parenting time and has neglected to take advantage of it. Petitioner has made no preparation to reunite with the children and his only action has been coming to court. As such, his petition should be dismissed with prejudice.

Testimony

Both parties advanced the same arguments made during the first phase of the trial as to why Petitioner should or should not be granted sole custody of the children. Neither party introduced any new testimony or evidence supporting their contention that they are better suited to promote the best interests of the children.

Law and Analysis:

Turning now to the best interest analysis, the factors to consider include but are not limited to the quality of the home environment, financial status and ability of each parent to provide for the children, fitness of the parents, length of time current arrangement has been in effect, the effect an award of custody may have on the noncustodial parent, stability, and the preferential wishes of the child.

“Although stability is an important consideration in determinations as to change of custody and has been found to be in children’s best interests, it cannot be the decisive factor; ‘that change in custody may prove temporarily disruptive to children is not determinative, for all changes in custody are disruptive.’”³ While children may express their preference for living with one parent, this is but a factor to be considered and not determinative to the court’s overall custody determination.⁴

Discussion

This court does not, under the circumstances herein, find that it serves the best interests of the children to modify the prior order of custody to award Petitioner sole legal and physical custody of them. Despite Respondent’s alienation of the children from Petitioner, given the passage of time since he has had any contact with them, the age and bond between the siblings, their lifestyle and religious upbringing, the bond between Respondent and the children and Petitioner’s own lack of affirmative action, the children would not benefit if custody was transferred to Petitioner.

It is important to distinguish that the underlying issue in this case is not one solely of custody; but preserving the relationship and bond between a parent and child. The Family Court best interest standard very rarely dictates equity between the parties. While it is the court’s job to assist where possible in seeking what is fair and equitable for parents who start off with equal rights to raise a child, all while promoting the child’s best interest, the court alone cannot accomplish this goal. Too often parents come to court seeking assistance, but are unwilling to take the necessary steps, if any, to accomplish the relief they are seeking and instead expect the court to just make it so. Court is a process, and the parties themselves must also be willing participants, even where one parent is unable or unwilling to do so.

In this matter, Petitioner had ample opportunity to combat Respondent’s actions in separating and ultimately alienating the children from him. In the early stages of litigation, Petitioner engaged in dilatory behaviors, that contributed to the demise of his relationship with the children. The parties have an order of joint legal custody, but Petitioner made no efforts to ascertain any information concerning the children’s educational or medical well-being. He was unaware that they have been homeschooled during most of the pendency of this matter, is unaware of who their doctors are, or virtually anything about them all while having the legal authority to independently obtain the information.

Petitioner consistently and voluntarily decreased his parenting time with the children from eight hours to four hours to two hours to one hour, one a day week, and eventually to supervised visitation. By the time supervised visitation was ordered by the court, the children refused to be in the same room with Petitioner. Petitioner’s reasoning for decreasing his time with them was that the children were refusing to eat and/or get out of the car during his parenting time and he did not want them to suffer. After the supervised visits did not occur, Petitioner has had no contact with the children, and made no further efforts to have any communication with them, which remained the status quo for over five years. Even during the interim of the conclusion of the change of circumstances hearing and the best interest hearing, Petitioner failed to make any attempts to enforce his parenting time rights under the original parenting agreement, which remained in effect.

While Respondent contends that she always adhered to court orders, she certainly did not. The court credited Petitioner’s testimony that on several occasions, he required the assistance of the police to enforce his parenting time with the children. As was demonstrated throughout the proceedings, Respondent utilized evasive tactics in adhering to orders of this court; refusing to sign for Petitioner to have parenting time through Safe Horizon forcing the court to utilize a different court ordered supervised visitation agency; “supplying” the children for visits after coaching and coercing them not to participate; refusing to provide her signature for release of the children’s school records, by just marking an “x” on the spot, stating she had many different signatures which change all the time, or; refusing to read documents to refresh her recollection or even merely look at a piece of paper to identify her signature. Respondent also failed to readily comply with the court ordered forensics examination which were ordered when this petition was filed 5 years ago. Only under caution of contempt directly from the court or some authoritative directive did Respondent minimally comply with orders of this court, indicating that Respondent could be made to comply with court orders if faced with contempt and any of the remedies available thereunder.

Yet, despite Respondent’s actions, the results of which could have been reversible at one point in time and which Petitioner had occasion to observe himself, Petitioner refused to seek contempt against Respondent, an immediate change of custody, or any of the other remedies available to him. His reasoning being fear of “getting Respondent in trouble” or having the children removed from Respondent’s care despite seeing the effects of her actions on his relationship with the children. Instead, Petitioner blamed the court for not “helping” him, while refusing to take any affirmative action to maintain his relationship with the children, other than appearing in court.

Looking forward, Petitioner has made no preparations for the children to be in his care, other than to coerce the children to accept living with him, eat, play, study and communicate with him as a condition precedent to maintaining a relationship with Respondent. He has sought no assistance from any source on how the exchange would take place, how to reintroduce himself to the children, how to communicate with the children, how to address the alienation of the children, or how to transition them from homeschool to public school. At one point, despite all that has occurred, he was still willing to allow the children to remain with Respondent but maintain sole legal custody of them.

It is not incumbent upon a parent seeking physical custody to demonstrate that they have made every imaginable arrangement in preparation for the children to come into their care, especially when the outcome of a custody dispute is uncertain. However, given that a change in custody would remove the children from everything they know and have known for the past seven years, being kept in a tiny community consisting of merely their mother, maternal grandmother, maternal aunt who is disabled and other church members, and alienated from Petitioner and society as a whole, under these circumstances, it would have been more than prudent for the Petitioner to have considered and outlined a plan of action to combat and reverse the effects of the alienation. This is crucial not only for the children, but for Petitioner, as a parent, seeking to take on the daily responsibility of children who have been indoctrinated to regard him as nothing more than a stranger in the street. As desperate as the father is to regain a relationship with them, the acute trauma the children would suffer by changing custody, which may have severe ramifications concerning their well-being, outweighs the long term effects of the children remaining in the care of Respondent until they become adults and self-sufficient.

As Petitioner, he maintained the burden of demonstrating that the children’s best interests would be served in his custody and care; not to merely regurgitate the conclusions of the forensic expert of the existence of alienation. Once alienation was determined, Petitioner should have demonstrated the steps to be taken to combat and reverse the effects of the alienation, in a manner promoting the children’s best interests, should he obtain physical custody of them.

The children are now ages 16 and 13. The older child B.S., is old enough to express a preference which must be considered by the court, but not necessarily relied upon. Her position has been consistent; that she does not want contact with Petitioner. The preference of the younger child H.S., although impressionable, mirrors that of her sister, in wanting no contact with Petitioner. The court acknowledges that the position of the children in not wanting to acknowledge or have any contact with Petitioner is derived solely from the actions and sentiment of Respondent, under normal circumstances, the court would not give any weight to the preferences of the children. However, theses are not normal circumstances, given the age of the children, passage of time there has been any contact between them and Petition and the cult-like nature of their relationship with Respondent and maternal grandmother, the court gives weight to the children’s position because of the potential trauma and danger of separating the children from Respondent.

Courts are reluctant to separate siblings, and the sibling relationships should not be disrupted where there is no overwhelming need to do so.⁵ The court does not find that separating the siblings would be in their best interest at this time.

Holding

Based on the foregoing, the court does not find it to be in the best interests of the children to award Petitioner sole legal and physical custody of them. This decision should not be misconstrued as court or societal acceptance of or acquiescence to parental alienation. Instead, it should serve as a sharp example and warning that parental alienation exists, and when signs are present, both the court and the parents must be proactive in desisting any alienating behaviors early on, before it becomes so pervasive and unyielding that the parent child relationship is completely eradicated. If not, then parental alienation only serves to reward the alienating parent for the actions, sending a resounding message that alienated parents have no hope of a relationship with their children."

Footnotes

1. Robert OO. v. Sherrell PP., 143 A.D.3d 1083, 39 N.Y.S.3d 541 (3rd Dept. 2016); Sergei P. v. Sofia M., 44 A.D.3d 490, 843 N.Y.S.2d 603 (1st Dept. 2007).
2. Schmitz v. Schmitz, 139 A.D.3d 1123, 31 N.Y.S.3d 295 (3rd Dept. 2016); Christopher H. v. Taiesha R., 166 A.D.3d 548, 88 N.Y.S.3d 181 (1st Dept. 2018).
3. J.F. v. L.F., 181 Misc. 2d 722, 694 N.Y.S.2d 592 (Fam. Ct.1999) (quoting, Nehra v. Uhlar, 43 N.Y.2d 242, 372 N.E.2d 4, 401 N.Y.S.2d 168 (1977); Young v. Young, 212 A.D.2d 114, 628 N.Y.S.2d 957 (2nd Dept. 1995).
4. Melissa C. D. v. Rene I. D., 117 A.D.3d 407, 985 N.Y.S.2d 28 (1st Dept. 2014); Young v. Young, supra.
5. Salerno v. Salerno, 273 A.D.2d 818, 708 N.Y.S.2d 539 (2000).