Opinion
000399/05.
Decided May 9, 2011.
Robert M. Wallack, Esq., Attorney for Plaintiff, The Wallack Firm, P.C., New York, New York.
Albert Adam Breud, Esq., Attorney for Defendant, Law Office of Albert Adam Breud, P.L.L.C., Commack, New York.
John Guttridge, Esq., Attorney for Children, Guttridge Cambareri, P.C., Tarrytown, New York.
The Court notes that there has been an extraordinary amount of litigation in the Matrimonial Part of this Court by the parties in this case. Pursuant to the April 13, 2010 decision of the Hon. Sam Walker, J.S.C., a hearing was ordered to address anew the issues of custody, access and final decision making.
Prior to ordering the instant hearing, Justice Walker granted joint custody of the couple's two children, nine year old Vladimir and seven year old Elizabeth (hereinafter the "Children"). Presently, the parties have joint custody with the Children residing with each parent on a one week on, one week off basis. The above-mentioned decision by Justice Walker revoked the father's liberal "make-up" time.
This Court conducted a lengthy hearing over the course of twenty-two (22) days. After testifying himself, the Plaintiff presented five (5) witnesses including a school administrator, a nanny and three (3) mental health professionals. The independent forensic evaluator, Dr. Stephen Herman testified midway through the hearing. In addition to her own testimony, the Defendant offered testimony from psychiatrist William J. Kaplan and two (2) school personnel.
In making the following determinations, the Court considered the testimony of the hearing witnesses, the oral arguments of counsel, the physical exhibits received into evidence including transcripts of conversations in Russian between Mrs. McMahan and her children and the post-hearing briefs submitted by each party. The Court also reviewed the court file including the various decisions of Justices Walker and Lubell. In addition, the Court met in camera with the two youngsters who are the subject of this proceeding. The Attorney for the Children, John Guttridge, Esq., actively participated in the hearing and zealously represented his clients.
At the outset, the Court recognizes that each parent obviously loves both children and each genuinely seems to have their best interests at heart. However, given their respective ages, backgrounds and cultural differences, the parents have dramatically different views on where those best interests might lie.
The Plaintiff is 72 years old and a sophisticated, successful international businessman with a stern countenance and, due to multiple prior marriages, a large extended family in the United States. The well-educated Defendant, age 40, was raised in the Ukraine, has a modest work history and strong family ties to her native country. Her demure appearance masks a calculating personality. Given the high intelligence of both Mr. and Mrs. McMahan, it is puzzling that they apparently cannot see how damaging it is to the Children when they continue to play out parenting issues in court.
SUMMARY OF HEARING TESTIMONY
The Plaintiff's testimony was received over a period of seven (7) days. Through his testimony and that of psychologists Juliet Lesser (Elizabeth's therapist), Allison Bell (Vladimir's therapist) and Amy J. L. Baker (alienation expert), the Plaintiff methodically demonstrated that the Defendant routinely engaged in behavior that alienated the Children from the Plaintiff. Dr. Baker categorized the alienation as "moderate" and offered specific examples. She testified that a series of eleven (11) taped conversations between the Defendant and her children, which were received into evidence, were rife with instances of parental alienation.
This theme of alienation by the Defendant continued during the testimony of Dr. Stephen Herman, the independent forensic expert. Dr. Herman is intimately familiar with the parties in this case, having authored three separate independent forensic evaluations of the McMahan family since 2007. He testified, in substance, that in sessions with him the Children often appeared coached or rehearsed in their denunciation of their father. The Court detected similar behavior on the part of the Children during its in camera session with them.
At least two of the above-mentioned medical health professionals commented negatively on the mother's disconcerting habit of lapsing into the use of the Russian language when conversing with the Children in front of them. Given the history of this case, such conduct could be construed as an effort by the mother to convey something improper to the Children. It should be noted here that, during the Lincoln hearing held in chambers, Vladimir, on several occasions spoke sotto voce in Russian to his sister prior to allowing her to answer questions about their father.
The defense called Dr. William Kaplan, a psychiatrist who had not interviewed the parties. His testimony was primarily confined to an unpersuasive critique of the work performed by independent forensic evaluator, Dr. Herman.
The Defendant's lengthy testimony included, but was not limited to, her upbringing in the Ukraine, the development and eventual deterioration of her relationship with the Plaintiff, the importance of religion in her life and her parenting philosophy. The Defendant's testimony was often confusing, contradictory and, at times, incredible. This Court is of the belief that the mother's affection for the Children is expressed in a suffocating, unhealthy overprotectiveness.
There can be no doubt that either consciously or not, the Defendant routinely disparaged the Plaintiff in front of the Children.
CONCLUSIONS OF LAW
It is clear that the custody arrangement currently in place is unworkable. It provides each parent custody of the Children on an alternating one week basis. Prior attempts by the Court to provide make-up time to the father, as a concession to his business travel and commitments, have been problematic. This Court rules that, absent a showing of an extraordinary circumstance, make-up time is abolished.
Since the parties cannot agree upon reasonable custody terms, it falls to the Court to fashion a custody agreement. The pivotal question in any child custody matter is what serves the best interest of the children. Their needs are paramount and the competing interests of any adult must be secondary. [See Tropea v. Tropea, 87 NY2d 727 (1996)].
The Plaintiff has met his burden of establishing a change of circumstances, viz., parental alienation on the part of the Defendant, warranting a modification of the custody agreement. [See Alexander v. Alexander , 62 AD3d 866 (2nd Dept., 2009); James M. v. Rosana R. , 69 AD3d 449 (1st Dept., 2010)]. Courts have long held that, above all else, the best interest of the children, viewed in the context of the totality of the circumstances, governs any modification in custody. Factors to be given substantial weight include the stated preferences of the children; the ability of each parent to foster a relationship between the children and the other parent; the quality of the home environment; and the ability to provide for the emotional and intellectual development of the children. [See Friederwitzer v. Friederwitzer, 55 NY2d 89 (1982)].
The Court finds that the Children in this case are too young and maternally influenced to meaningfully contribute to a resolution of the custody and other issues presented herein. [See Bullotta v. Bullotta, 43 AD2d 847 (1974)].
RESOLUTION OF ISSUES
CUSTODY
The Court finds that despite the Defendant's animosity toward the Plaintiff and her interference between the Plaintiff and the Children, the best interests of the Children do not warrant a complete change of custody. "A change in custody should not be permitted solely as a means of punishing a recalcitrant parent." [See Lauren R. v. Ted R., 27 Misc 3d 1227(A) (Sup. Ct., Nassau County, 2010)]. Therefore, the Court will modify the custody arrangement while directing that the parties continue to exercise joint custody.
The Court finds that the present one week on, one week off schedule is unwieldy and contributes to the confusion and anxiety experienced by the Children. The present schedule is disruptive to the Children and affords the parents too many opportunities to interact negatively with each other.
Therefore, commencing on Monday, June 6, 2011, the parties shall share the Children on a two week on and two week off basis with the exception of the month of August each year. In lieu of make-up time, the Plaintiff will have custody of the Children during the entire month of August.
The Court finds that the Children have and would continue to benefit from spending Christmas holidays with each parent. The Plaintiff and his extended family celebrate Christmas on December 25 each year, while the Defendant celebrated the Russian Orthodox Christmas on January 7 annually. The Court directs that absent a showing of extreme hardship, Vladimir and Elizabeth shall annually be with the Plaintiff during the week preceding December 25 inclusive and with the Defendant in the week leading up to January 7 inclusive. The parties are directed to work with each other to accommodate this Christmas scheduling whenever it conflicts with the two week on, two week off arrangement outlined supra.
It is believed that this new schedule will limit transition anxiety and permit the Children a chance to settle down and acclimate to the home of the respective parent without having to constantly shuttle back and forth each weekend.
PHONE ACCESS
The Children's best interest is served when there is frequent telephone contact with the parent with whom they are not residing during a given time period. However, both parties appear guilty of poor judgment in effectuating this telephone contact. Hanging up the phone prematurely or denying phone access entirely as the Plaintiff has done and using phone calls to disparage their father as the Defendant has done, is a tremendous disservice to two youngsters they profess to cherish. Accordingly, the Court directs and orders each parent to provide telephone access to the Children by the non-custodial parent on Mondays, Wednesdays and Fridays of each week for a thirty (30) minute period between the hours of 6:00 P.M. and 8:00 P.M. During these calls, both parents are directed to act courteously and to avoid any negative comments about their counterpart.
DECISION MAKING
This Court agrees with prior rulings awarding Dr. McMahan, the father, final decision making authority on the issues of education, medical care and summer camp. The rationale for such a decision can be found in the earlier decisions of Justice Walker and the report of the independent forensic examiner, Dr. Herman, and need not be repeated here.
TRAVEL
Both parents have the means and opportunity to travel with the Children outside the borders of the United States. The Defendant has, in fact, traveled in the past with the Children to her native Ukraine for an extended period. The Plaintiff raised bona fide concerns during this custody hearing that the Defendant might flee the jurisdiction with the Children and the Court finds that the Defendant is far more apt to abscond with the Children than the Plaintiff.
In order to allay such concerns, the Plaintiff shall maintain custody of the Children's passports until they reach eighteen (18) years of age and at which time the passports shall be given to Vladimir and Elizabeth respectively. Should either parent believe the other is unreasonably interfering with the Children's best interests by discouraging travel outside the United States, they should seek court intervention.
Any matters related to these parties not directly addressed in this Decision, Order and Judgment shall remain governed by the previous rulings and orders of Justices Walker and Lubell.
COMMENTARY
One hoped for benefit of this lengthy and, at times, tedious hearing is that the parents heard and understood the testimony of the various professionals when they testified about such topics as parental alienation and childhood anxiety. If the parents, even briefly, set aside their animosity and bruised egos and objectively examine their conduct with regard to the issue of custody, they may conclude that each engages in conduct that negatively impacts their children. One does not get a second chance to correct poor parenting. No court custody order can ever truly succeed unless the parents become genuinely vested in working in good faith within the framework of the order to serve the Children's best interests.
While falling short of ordering it, the Court agrees with Dr. Herman's stated position that the Defendant would benefit from therapy to gain insight about alienation and her over-protectiveness. Based upon the testimony of Dr. Herman and the in camera interview with the Children, the Court urges the Plaintiff to retain the services of a new nanny to help care for the Children when in his custody. There seems to be a disconnect between Ms. Sanchez, the present nanny, and the Children that could easily be corrected by replacing her. It should be clear this Court is not implying that Ms. Sanchez acted inappropriately at any time.
The alternative to working cooperatively for the Children's sake is continued protracted litigation that cannot but add to the youngsters' stress levels. Vladimir and Elizabeth have a difficult path ahead of them and this Court will react harshly to any violation of this Order that is proven to be willful.
This constitutes the opinion, decision, order and judgment of this Court.