181 Misc. 2d 722, *; 694 N.Y.S.2d 592, **;
1999 N.Y. Misc. LEXIS 357, ***
In the Matter of J. F., Petitioner, v. L. F., Respondent.
99-408
FAMILY COURT OF NEW YORK,
181 Misc. 2d 722; 694 N.Y.S.2d 592; 1999 N.Y. Misc. LEXIS 357
June 25, 1999, Decided
CASE SUMMARY
PROCEDURAL POSTURE: Petitioner father applied for an order to transfer
custody of his children from respondent mother to him by an order to show cause
for willful interference with petitioner father's visitation and for parental
alienation.
OVERVIEW: Parties were married and produced two children. When they
divorced, petitioner father had unsupervised custody and visitation rights
procured with the assistance of police. Respondent mother's animosity toward
petitioner was open and obvious to the point that she succeeded in causing
parental alienation of the children from him, such that they wished no longer
to have frequent and regular visitation. Given this parental interference,
petitioner father petitioned the court on whether it was in the best interests
of the children to modify the custody order and grant petitioner sole custody.
The court granted the petition and found that the children had been alienated
from petitioner by respondent in a negative and distorted manner. The court
held that respondent had a duty to protect and nurture the children's
relationship with petitioner, and to ensure access by him, which she failed to
do, and the best interests of the children were not served by respondent's
efforts to emotionally alienate the children from petitioner.
OUTCOME: The court granted petitioner father's request for change of
custody and awarded custody of the children to him because respondent mother
had a duty to protect and nurture the children's relationship with petitioner,
and to ensure access by him. Thus, it was not in the best interests of the
children for her to continue to undermine his visitation rights by her
continued contact with the children.
CORE TERMS: custody, visitation, parental, recommended, emotional,
therapy, therapist, Law Guardian, alienation, psychiatrist, noncustodial
parent, change of custody, custodial parent, sole custody, alienated,
psychiatric, recommendation, mental health, in camera, court-appointed,
interfered, interview, long-term, paranoid, upset, traits, physical custody,
extended family, divorce action, custody order
LexisNexis(R) Headnotes Hide
Headnotes
Family Law > Child Custody > Awards
HN1 With respect to any determination as to a change of custody, the
paramount consideration must be the best interests of the children. Among the
factors to be considered are the quality of the home environment and the
parental guidance the custodial parent provides for the child, the ability of
each parent to provide for the child's emotional and intellectual development,
the financial status and ability of each parent to provide for the child, the
relative fitness of the respective parents, and the length of time the present
custody arrangement has been in effect. Another proper and relevant
consideration for a custody award is the effect that an award of custody to one
parent might have on the child's relationship with the other parent. More Like This Headnote | Shepardize:
Restrict By Headnote
Family Law > Child Custody > Awards
Family Law > Child Custody > Enforcement & Modification
HN2 The natural right of visitation jointly enjoyed by the noncustodial
parent and the child is more precious than any property right and that the best
interests of the child would be furthered by the child being nurtured and
guided by both of the natural parents. Indeed, a custodial parent's
interference with the relationship between a child and a noncustodial parent
has been said to be an act so inconsistent with the best interests of the child
as to per se raise a strong probability that the offending party is unfit to
act as a custodial parent. More Like
This Headnote | Shepardize: Restrict By Headnote
Hide Headnotes / Syllabus
HEADNOTES: Parent and Child - Custody - Change in Custody - Parental
Alienation Syndrome
In a custody proceeding in which the mother, the physical custodial
parent, has caused parental alienation of the children from their father, such
that they no longer wish to have frequent and regular visitation or anything
much else to do with him, it is in the long-term emotional best interests of
the children to modify the custody order and grant the father sole custody. The
custody order that the father seeks to modify specifically states that
"should any further parental interference with the rights of the other
parent be demonstrated to the satisfaction of this court, the court after a
hearing shall use its power to terminate the joint-custody arrangement and
award sole custody to one party under the appropriate circumstances." The
independent court psychiatrist, the court-appointed psychologist, petitioner's
child psychiatry expert and the Law Guardian all agree that the children have
been alienated from their father by their mother. While they did not all
recommend that custody be awarded to the father, the court is not required to
follow their recommendations. The short-term consequences to the children of a
change in custody, including foreseeable emotional upset and possible trauma,
are outweighed by the long-term consequences of allowing physical custody to
remain with the mother, which likely will result in the children having
pathological personality traits which would interfere with their ability to
establish whole relationships not only with their father but also with peers,
future spouses or significant others, extended family members, employers and
co-workers, and which may result in their passing down a jaundiced and paranoid
view of life to their own children.
COUNSEL: [***1]
Joel Martin Aurnou,
JUDGES: SANDRA B. EDLITZ, J.
OPINIONBY: SANDRA B. EDLITZ
OPINION: [*723] [**593]
Sandra B. Edlitz, J.
The parents in this custody proceeding have had a long, tortured
history in the courts regarding custody and visitation issues, heard before
numerous Judges over the course of a decade. The animosity that the mother, the
physical "custodial" parent, n1 has long harbored for the father has
not lessened with time. As predicted by the mental health professionals at the
inception of these matters, the mother has succeeded in causing parental
alienation n2 [**594] of the children from their father, such that
they wish no longer to have frequent and regular visitation or anything much
else to do with him. Given this parental interference, the issue before this
court is whether it is in the best interests of the subject children, now 11
and 13 years of age, to modify the custody order and to grant the father sole
custody. Ultimately, with much deliberation, this court has determined that the
long-term [***2] emotional best
interests of these children mandate a change of custody to the father.
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n1 The parties have joint custody, and the mother has physical custody,
pursuant to a Family Court order entered on October 16, 1995 (Braslow, J.).
n2 Both expert witnesses testified that the Parental Alienation
Syndrome (PAS) exists in this case. The psychologist who evaluated the children
and provided a written report to the court found that PAS was "clear"
and "definite" with both children. Parental Alienation Syndrome
occurs when "one parent uses his/her influence with his/her child to
undermine the relationship between the child and the other parent. It typically
arises when the parents are engaged in divorce proceedings or a custody
dispute." (See, People v Loomis, 172 Misc 2d 265, 267.) The Parental
Alienation Syndrome theory was developed by Dr. Richard Gardner, and is
described by him as a disturbance in which "children are not merely
systematically and consciously 'brainwashed' but are also subconsciously and
unconsciously 'programmed' by one parent against the other." (Note, The
Parental Alienation Syndrome: A Dangerous Aura of Reliability, 27 Loy LA L Rev
1367, 1370 [June 1994], quoting Gardner, The Parental Alienation Syndrome: A
Guide For Mental Health and Legal Professionals [1992]; see also, Note,
Parental Alienation Is Open Heart Surgery: It Needs More than a Band-Aid To Fix
It, 34 Cal W L Rev 567 [1998].) The theory is controversial. According to the
testimony of Dr. Lessow, the syndrome is not approved as a term by the American
Psychiatric Society, and it is not in the DSM IV as a psychiatric diagnosis.
Generally the
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[***3] [*724]
BACKGROUND HISTORY
The parties were married. There are two children of the marriage, J.
F., born on May 26, 1986, and C. F., born on March 8, 1988. In or around July
22, 1990, the parties separated. The Westchester County Supreme Court granted
the father an order of visitation entered on April 5, 1991 in which the father
was granted unsupervised visitation with the children, with the police to
assist in "procuring" this visitation for the father. The parties'
divorce action was tried before a Judicial Hearing Officer who rendered a
decision dated January 21, 1993 providing, in part, for custody of the children
"to continue" with their mother. The judgment of divorce was filed on
October 3, 1994, and granted the mother sole custody. An order, on consent, was
entered on October 16, 1995, which provided, inter alia, that the parties shall
have joint custody, with primary physical residence with the mother, and for a
visitation schedule for the father. The following wording of that order is the
subject of this proceeding: "should any further parental interference with
the rights of the other parent be demonstrated to the satisfaction of this
court, the court [***4] after a hearing shall use its power to
terminate the joint-custody arrangement and award sole custody to one party
under the appropriate circumstances and to incarcerate a parent for any willful
interference." (Emphasis added.)
THE SUBJECT PETITIONS
On August 13, 1998, the petitioner father, by order to show cause
against respondent mother, applied for an order transferring custody to him,
directing that the children be evaluated by Dr. Daniel Feinberg (a psychiatrist
who was appointed by the Supreme Court in the parties' divorce action and who
testified before the Family Court in 1995), holding the mother in contempt of
this court's order entered on October 16, 1995, suspending child support
payments, and for other relief. Annexed to the order to show cause is an
affidavit of the psychiatrist, Dr. Daniel Feinberg. In his affidavit, Dr.
Feinberg recommended a change of custody to the father. An affidavit of the
father, along with an extensive exhibit, provided a summary of the mother's
alleged willful interference with visitation, and examples of ways in which the
mother allegedly alienated [**595] the children from their father during the
years 1996, 1997 and 1998. [***5]
The court conducted a continued hearing over the course of 15 days. The
court conducted in camera interviews of both children [*725]
on March 26, 1999, and of C. F. on June 1, 1999. The court withheld
rendering a decision until June 25, 1999 when the school term was over for the
children, with the consent of the parties, and in their best interests, so as
not to disrupt their lives any more than is necessary. Both parties were
represented by counsel. The Law Guardian, who represented the children during
the parties' divorce action, and thereafter, in all Family Court proceedings, again
represented them.
The court had an opportunity to observe the children closely during the
extensive in camera interviews. They are both highly intelligent and articulate
and, in many ways, engaging and charming. They also show a resilience and ability
to adapt to situations. Yet, particularly when discussing their father and his
family, they present themselves at times in a surreal way with a
pseudo-maturity which is unnatural and, even, strange. They seem like
"little adults." This court finds that they live a somewhat
sheltered, cloistered existence with their mother, emotionally [***6] and socially. They do not have friends to
their home on a regular basis, and they do not go to other children's homes
with any frequency. They do not have friends in their mother's neighborhood.
The loving way in which the children perceive their mother, and the way
in which they uncritically describe her as being perfect, stands in stark
contrast to their descriptions of their father. Their opinions about their father
are unrealistic, misshapen and cruel. They speak about and to him in a way
which seems, at times, to be malicious in its quality. Nothing in the father's
behavior warranted that treatment. The psychiatrists testified that the
children are aligned in an unhealthy manner with the mother and her family.
This is evidenced not only in the testimony of the father but also in the in
camera interview. They repeatedly refer to the mother's family as "my
family," but they do not refer to the father or his family that way. Both
children used identical language in dismissing the happy times they spent with
their father as evidenced in the videotape and picture album as "Kodak
moments." They deny anything positive in their relationship with their
father to an unnatural [***7] extreme.
The court carefully considered all of the testimony, the in camera
interviews, the current forensic reports and the voluminous exhibits entered
into evidence. This evidence included two videotapes, one from 1994 which
involved the children speaking with their father's now current wife about
alleged mistreatment at the hands of their mother, and one [*726]
which is representative, allegedly, of the visits over the years of the
children with their father. Petitioner entered into evidence a photograph album
of pictures of the children with their father.
FORENSIC REPORTS AND TESTIMONY
This court is convinced that the subject children have been alienated
from their father by their mother. Their negative view of their father is out
of all proportion to reality. The children, by their conduct, have demonstrated
that they do not wish to visit with their father. The predictions of the mental
health evaluators have unfortunately come true. All three of the experts agree
that the children have been alienated from their father by their mother.
Dr. Herbert Lessow, a Board-certified psychiatrist (not a child
psychiatrist), has served as the independent court psychiatrist [***8] in this matter at least since 1994, again in
1995, and for the instant proceeding. In 1994 and 1995 Dr. Lessow recommended a
change in custody to the father.
In connection with this proceeding, pursuant to order of this court,
Dr. Lessow conducted psychiatric evaluations of the parents and children and
submitted reports [**596] dated October 16, 1998 and January 21, 1999.
In his preliminary report dated October 16, 1998, and in his testimony, he
reported that the father has no evidence of any psychiatric disorder in the
area of "thinking, affect, or behavior." He did not find evidence
that the father had attempted to alienate the children from their mother, and
he testified that the father had "insight." He further reported that
the mother continued to have a DSM IV psychiatric diagnosis of
"moderate-to-severe Personality Disorder, NOS, with Borderline, Obsessive,
and Passive-Aggressive features. The possibility of paranoid traits may still
be entertained." With regard to the mother, he stated that "the
issues that were present ... have clearly continued and are probably even more
severe in regards to Parental Alienation of the children from their natural
father." He stated, [***9] in part, that "[M]other has clearly won
the war over the children's minds and hearts and the father is generally
helpless to offset that. Children, likewise, are deeply attached in a symbiotic
fashion with their mother ... Father is painted in a highly derogatory and
negative fashion, way out of proportion to any possible deficiencies that he
may have. This is clearly a borderline mental device within the mother's
psychology which has been clearly duplicated in the children. The overall
prognosis for any [*727] major change in their attitude would appear
to be quite limited at this time, even with expert psychiatric
assistance." (Emphasis added.) Dr. Lessow did not recommend a change in
custody in that he was concerned about the near term and intermediate effect on
both children, but he remained "extremely concerned" about the
over-all prognosis with either decision.
The court-appointed psychologist, Melvin Sinowitz, Ph D, concluded in
his reports dated December 1, 1998, that the Parental Alienation Syndrome is
"clear" and "definite" with both children. He found that if
C. F. is separated from the mother, she will become "increasingly anxious,
she will be depressed, [***10] and her oppositionalism will become her mode
of dealing with her difficulties." Dr. Sinowitz did not see her as
decompensating more than he suggested, and he did not fear that she would
become psychotic. As to J. F., Dr. Sinowitz concluded that, as with his sister,
the reality deficits are circumscribed and encapsulated around the
"Parental Alienation Syndrome." If he is removed from his mother's
home, the doctor did not believe that he will decompensate, and that it is more
likely that he will become more paranoid, and that he will begin to "act
out."
Dr. Feinberg, petitioner's expert, submitted a report to the court
dated December 18, 1998. He is a diplomate in psychiatry and neurology, a
member of the
OTHER TESTIMONY
The father testified at great length, both on his own behalf, and as
respondent's witness, about the ways in which the mother had allegedly
interfered with his relationship with the children. n3 The mother did not
testify, but attempted, through her attorney, to show that [***12] she had not contributed in any way to the
children's view of their father, that she had encouraged them to have a good
relationship with their father, that she did not interfere with their
relationship with the father, and that it was the father's lack of concern,
inattention, insensitivity and poor parenting that resulted in the current
position of the children.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 Some of the alleged examples were the father's testimony that the
mother interfered with his summer vacations in 1996 and 1998, that the mother
told the children that petitioner was "disowning them" by requesting
a religious annulment from her, that the mother did not allow the father a
chance to talk to C. at her communion in the spring of 1997, that she discussed
financial issues in front of the children, that she made the children return to
their father's home mementoes of trips and presents that the father gave to
them, that the mother sent the children with inappropriate clothing to the
father's home, that the mother put the fear of going to Portugal in the
children's heads and did nothing about the children's behavior towards him in
May of 1998.
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[***13]
APPLICABLE LAW
The general rules regarding a change of custody have been long
established in
Another proper and relevant consideration is "the effect that an
award of custody to one parent might have on the child's relationship with the
other parent." (Bliss v Ach, 56 NY2d 995, 998; Young v Young, 212 AD2d
114, 118.) With regard to the father's right of visitation herein, the
custodial parent has a duty to protect and to nurture the child's relationship
with the noncustodial parent, and to ensure access by the noncustodial parent.
(Daghir v Daghir, 82 AD2d 191, affd 56 NY2d 938.) This court recognizes that in
the instant case, the [**598] parents have joint custody, and therefore
neither party is the sole custodial parent. However, even though there is a
difference in nomenclature, it is submitted that the principles in these cases
apply herein. [***15] The Appellate Division, Second Department,
has stated that " HN2'[t]he natural right of visitation jointly enjoyed by
the noncustodial parent and the child is more precious than any property right'
(Resnick v Zoldan, 134 AD2d 246, 247) and that 'the best interests of the child
would be furthered by the child being nurtured and guided by both of the
natural parents' (Bostinto v Bostinto, 207 AD2d 471, 472). Indeed, a custodial
parent's interference with the relationship between a child and a noncustodial
parent has been said to be 'an act so inconsistent with the best interests of
the child as to per se raise a strong probability that the offending party is
unfit to act as a custodial parent' (Maloney v Maloney, 208 AD2d 603,
603-604)." (Young v Young, 212 AD2d 114, 115; see also, Entwistle v
Entwistle, 61 AD2d 380, 384-385, appeal dismissed 44 NY2d 851; Leistner v
Leistner, 137 AD2d 499, 500.)
As in Young (supra), in this case the mother's interference
[***16] with the relationship between
the children and the father is not an outright denial of visitation by making
the children physically unavailable at the appointed time. Rather, the mother's
interference here "involves a more subtle and insidious form of
interference, a form of interference which, in many respects, has the potential
for greater and more permanent damage to the emotional psyche of a young child
than other forms of interference; namely, the psychological poisoning of a
young person's mind to turn him or her away from the noncustodial parent."
(Young v Young, 212 AD2d 114, 115; see also, Matter of Gago v Acevedo, 214 AD2d
565, 566, lv denied [*730] 86 NY2d 706 [which combined many types of
interference with visitation, in which the Appellate Division, Second
Department, gave custody to the father, where the mother "persistently
interfered with the father's visitation rights by making unfounded allegations
of child abuse against the father, by coaching the child to make false
allegations of abuse, and by causing disruption to the child's visitation and
vacation plans with his father."].)
In the instant matter, as [***17]
in Young (supra, at 115), if the children were to be left with the
mother "the children would have no relationship with their father given
the mother's constant and consistent single-minded teaching of the children
that their father is dangerous. She has demonstrated that she is unable and
unwilling to support the father's visitation." Custody was changed to the
father in Young. (See also, other Appellate Division, Second Department, cases
in which the custodial parent interfered with the noncustodial parent's right
to visitation, which conduct led the Court to change custody: Matter of Muller
v Muller, 221 AD2d 635, 636; Matter of Carl J. B. v Dorothy T., 186 AD2d 736;
Matter of Sandra C. v Christian D., 244 AD2d 551; Matter of Notley v Schmeid,
220 AD2d 509.)
In the instant case, the children do not want to visit with their
father. With the passage of time, these children have become "staunch
corroborators" of their mother's ill opinion of the father. They call
their father names, they make fun of his personal appearance, they treat him as
though he were incompetent, and they speak [***18] of and treat his wife similarly. n4 Yet [**599]
the research on the effects of separation and divorce, as reflected in
the case law, indicates that children are healthier when they maintain a close
relationship with both parents, and that the loss of one parent is detrimental
to the child. (See, Young v Young, 212 AD2d 114, 115, supra.) Even though the
children have expressed a preference for living with their mother, while it is
a factor to be considered, it is not determinative. (See, Young v Young, 212
AD2d 114, 123, citing Darema-Rogers v
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n4 See, Walden v Walden, 112 AD2d 1035, 1037; see also, R.B. v S.B.,
NYLJ, Mar. 31, 1999, at 29, col 5, in which the Supreme Court, New York County,
in the context of a matrimonial action, reduced spousal support on the basis
that the wife had "so vilified" her husband to her son that the boy
had refused to see his father for nearly four years.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***19]
The children in this case have always resided with the mother. This
court is mindful that although stability is an
[*731] important consideration
and has been found to be in children's best interests, it cannot be the
decisive factor. " 'That a change in custody may prove temporarily
disruptive to the children is not determinative, for all changes in custody are
disruptive' (Matter of Nehra v Uhlar, supra, at 248)." (Young v Young,
supra, at 124.) In this case, the children's emotional stability will benefit
from a change of custody, despite the fact that they have always resided with
their mother.
The Law Guardian recommended that custody remain with the mother based
solely on the stated positions of her clients. The Law Guardian was not making
a recommendation based on the best interests of the children, which she
conceded. With respect to the weight to be afforded the recommendations of
court-appointed experts, the Appellate Division, Second Department, has stated
that the court is not required to follow the recommendations of the
court-appointed experts. (Matter of
FINDINGS AND [***20] DECISION
The court, after a review of all of the evidence, and being in the
unique position to observe the demeanor and credibility of the witnesses,
cannot accept the mother's position in this matter. The mother's view of the father
has been completely adopted by the children and she has done nothing to promote
their relationship with him. After having done the damage, she cannot now sit
back and pretend that none of this is of her making. Neither parent
communicates effectively with the other. If they did, these involved and
constant proceedings before the court would not have been necessary. The father
has continued to keep fighting to have access to his children over the years,
despite the clear attempts on the part of the mother to undermine his
relationship with them. The court recognizes that the father is not without
faults. However, it is this court's belief that with therapeutic assistance,
any issues of parenting will be addressed.
This court is faced with unanimous conclusions on the part of the three
forensic evaluators, Dr. Lessow, Dr. Sinowitz and Dr. Feinberg, as well as the
stated view of the Law Guardian, that these children have been alienated from
their [***21] father by their mother.
Where the opinions diverge is whether or not to change custody. This court
accepts and adopts the reports and testimony of the mental health professionals
to the extent that they indicate that the mother alienated the children from
the father. She psychologically poisoned their minds, despite her [*732]
love for and devotion to them. The court finds that the children will
have no relationship with the father if left in the custody of their mother.
The court finds, further, that they will continue to be psychologically damaged
if they remain living with the mother. She is
[**600] apparently unwilling or
unable to control her behaviors.
The court has struggled mightily with this decision, balancing the
short-term consequences to the children of a change of custody, including foreseeable
emotional upset and possible trauma, against the long-term consequences of
allowing physical custody to remain with the mother, which likely will result
in the children having pathological personality traits which would interfere
with their ability to establish whole relationships not only with their father
but also with peers, future spouses or significant others, [***22]
with extended family members, with employers and co-workers, and with
the risk of their passing down a jaundiced and paranoid view of life to their
own children. The mother has "poisoned" their childhood. The poison
must be purged to restore them to a healthy state. This court seeks to restore
normalcy to their lives and give them a chance to have a better childhood and a
healthy adolescence and adulthood.
Thus, in light of the totality of the circumstances, the court has
concluded that the best interests of these children are served by awarding
custody to the father. The court acts with a weighty awareness of the gravity
of its decision. The court has considered at length less drastic approaches,
such as granting the father summer visitation and ordering immediate therapy
for the children and parties. The court has concluded that such remedies would
be ineffective. Although the children may be upset, angry and disappointed and
may grieve, the court has faith that in the long run, the children's
resiliency, lust for life and underlying goodness and purity will bring them to
a place where they can love and be loved by both parents. To this end, the
court directs that the children [***23]
be in therapy with an appropriate therapist with experience in parental
alienation and that the parents cooperate in such therapy. While it is only
precatory, the court urges the stepmother to participate in such therapy to the
extent recommended by the therapist.
This court ordered, inter alia, that sole custody of the parties' two
children be transferred to the father, that the mother's contact with the
children be suspended until otherwise recommended by the children's therapist,
that the father expeditiously
[*733] enroll the children in
therapy with a therapist familiar with and experienced in treating cases
involving parental interference or alienation, the choice of such therapist to
be approved by the Law Guardian, that the parties cooperate with the children's
therapy and participate in such therapy to the extent recommended by the
therapist and that both parties participate in their own individual therapy, if
recommended, that the Law Guardian shall provide reports to the court regarding
the children, and that the father's motion to hold the mother in contempt be
denied.
[Portions of opinion omitted for purposes of publication.]