Opinion
Index No. I2016009945
07-23-2021
E.E.C., Plaintiff, v. S.S., Defendant.
SERCU & SERCU, LLP, Marilee G. Sercu, Esq., Attorneys for Plaintiff, Pittsford, New York UNDERBERG & KESSLER LLP, Jennifer A. Shoemaker, Esq., Attorneys for Defendant, Rochester, New York Eftihia Bourtis, Esq., Kyle Steinebach, Esq., Attorneys for the Children, Rochester, New York
SERCU & SERCU, LLP, Marilee G. Sercu, Esq., Attorneys for Plaintiff, Pittsford, New York
UNDERBERG & KESSLER LLP, Jennifer A. Shoemaker, Esq., Attorneys for Defendant, Rochester, New York
Eftihia Bourtis, Esq., Kyle Steinebach, Esq., Attorneys for the Children, Rochester, New York
Richard A. Dollinger, J. It's the same old song. The same refrain. But, it needs a new final verse.
This phrase is lifted from the Four Tops Motown tune of the same name circa 1965.
A couple have two children. They agree, after a long bitter dispute, on a residential/visitation plan for the children. In reaching that difficult decision, the agreement incorporates what the parents concur is in the best interests of their children. The children's best interests are best served by periodic exchanges with each child visiting the other parent.
When the time comes for visitation, both children complain to their residential parent, suggesting they do not want to go. Each residential parent "urges" them to go to see the other parent but they refuse. In this Court's experience, attempting to determine the sincerity of a parent's "urging" a children to visit another parent — especially a parent involved in a longstanding and bitter custody quarrel — is nigh impossible. The "urging" occurs between a parent — who at best, is sincerely trying to get the child to cooperate and at worst, just reciting the words so they can later tell their attorney — and the judge — "well, I tried to get them to go." This incantation from the witness stand is usually followed, almost instantaneously, with: "There was nothing I could do" or "What did you expect me to do?"
The child, as often the only witness to the favored parent's "urging," is in an even more suspicious posture. Eliciting any testimony that the favored residential parent "urged the child to go" would only occur in a Lincoln hearing. The child, under questioning in a Lincoln hearing, is, in essence, defending the favored parent and their own behavior. The response to a probing question from the Court, even in the seclusion of a Lincoln hearing, is easy: "Sure mom/dad "urged" me to go but I didn't want to and wouldn't." Given these insurmountable proof obstacles, how can a Court determine whether a parent was really "urging" the child to attend visitation or just mouthing their "urging" while smiling, winking or smirking to the reluctant child.
Lincoln v. Lincoln , 24 NY 270 (1969).
In seeking a judicial response to this oft-repeated challenge in visitation disputes, this Court recognizes a nuanced and complicated vortex of conflicting impulses. The Court acknowledges that any residential parent, seeking to obtain a child's compliance with an agreed visitation plan, faces Hobson's Choice: if they impose any penalty on the child for failing to follow their parents’ agreed visitation schedule, they risk alienating the same child who has expressed a desire to live with them and, perhaps for a wide assortment of issues, opposes visiting their other parent.
What parent would impose a discipline measure on a recalcitrant child when the parent, harboring recent animosity to their former spouse, really does not want the child to go to anyway? Why would a parent impose a discipline if the lack of discipline succeeds in achieving the parent's long fought over but now compromised goal — exercising control over the children and frustrating their former spouse's visitation? If the parent fails to impose any discipline for failing to follow what both parents, together, decided was the child's best interest, then the child reaches a common child-like conclusion: why do what their parents said was in their best interests when there is no penalty for failing to do so.
What does a Court do when a child disregards what their parents decided was their best interest and fails to follow the agreed visitation plan? Holding the child in contempt is unfathomable. But, can the Court take the parent out of the Hobson's Choice and simply order the parents to impose a form of discipline for failing to follow their parent's determination of their best interests?
Faced with that same old song and the same refrain, this Court now writes a concluding verse.
In this matter, two parents fought for more than a year over the visitation with their children. The fight has been bitter and spread across dozens of paragraphs in multi-paged affidavits. An attorney for the children (AFC) represented both children until just recently, when this Court appointed a new AFC solely for the child's son. The family has been in court-ordered counseling. There are allegations of abuse, verbal jousting, exchange of vulgar names and poor parenting decisions, allegations of unacceptable parental conduct and intervention of third-parties. Both parents have fingered the other for alienating the children and seeking to destroy the parental bond. Therapists have worked with the children and parents to seek a common ground. The Court held a hearing but, when partially completed, the Court pushed for a resolution and the parent's agreed to an order defining a new visitation schedule. Under the agreement, the children were split, each parent became the primary residential parent for one of the children. The parents charted a visitation schedule to exchange the children at certain intervals.
But, almost immediately, new allegations surfaced in an order to show cause and new affidavits, littered with an almost blow-by-blow but still highly-disputed account of the parent's interaction with children and with each other emerged. The children refused to follow the agreed visitation schedule. Each parent repeated the refrain: I urged them to go but they wouldn't go. The court, faced with innumerable contradictory allegations, has scheduled a new hearing date. But before holding a hearing, this Court, in response to the latest application for relief, which included the well-worn phrase seeking relief, now seeks to impose a set of house rules on both parents as part of what it sees as an essential part of the relief "which as to the Court may seem just and proper."
This Court has previously written on the topic of "house rules." See Matthew A. v. Jennifer A. , 2021 NY Misc. LEXIS 3708 (Sup. Ct. Monroe County 2021)(Dollinger, J.)(whether a Lincoln hearing should occur during a contempt hearing); Matthew A. v. Jennifer A. , 2021 NY Misc. LEXIS 1271 (Sup. Ct. Monroe County 2021)(Dollinger, J.)(Supplemental opinion on questions raised by imposition of the "house rules"); Matthew A. v. Jennifer A. , 2021 NY Misc. LEXIS 1273 (Sup. Ct. Monroe County 2021)(Dollinger, J.)(imposing house rules to require mother to enforce disciplinary rules if children fail to follow agreed visitation schedule); Matthew A. v. Jennifer A., 2020 NY Misc. LEXIS 6406 Sup.Ct. Monroe County 2021)(Dollinger, J.). Several of these opinions in one case are on appeal to the Appellate Division, Fourth Department. The house rules — nearly identical to those to be imposed in this instance — were ordered when the mother in that matter told the Court that she could not get her teenage and pre-teenage sons to visit with the father as their separation agreement dictated.
While New York has not considered whether courts can impose a form of "house rules" on parents and children in contested visitation matters, other state courts have discussed the impact of house rules on children and emphasized the importance of imposing limits on a child's behavior and consequences if they fail to abide by those rules. This Court is not alone in discussing or approving the notion of "house rules" as a means of disciplining children, including teenagers, who violate what their parents have agreed is conduct in the child's best interest. See e.g., Wauzynski v. Wauzynski , 2019 Minn. Dist. LEXIS 479 (Minn. Dist. Ct. 6th J.D. 2019)(discussion of parentally imposed "house rules" in dealing with children). In Shokanov v. Shokanova , 2019 Tex. Dist. LEXIS 16732 (Texas Dist Ct., 505th J.D. Ft. Bend Cty 2019), the court ordered a parenting plan that included a requirement that each parent inform the other by means of a written list of the basic expectations for behavior (house rules) with which the children are expected to comply when spending time with that parent. While the court did not devise the list — leaving it to the parents — nor the penalties for non-compliance, the Court still required that the children follow rules as a condition of parental residence and custody. See also Brandimarte v. Brandimarte , 2019 Mich. Cir. LEXIS 345 (6th J.C.C. Oakland Cty 2019) (court approved a parenting plan that required the parents to establish general house rules that respect and reinforce their mutual goal of raising the children to be responsible adults): Ex parte Cowart , 204 So. 3d 884 (Ala. 2016) (suggesting that a trial court has authority to impose "house rules" to protect a child); Simon v. Simon , 2013 Pa. Dist. & Cnty. Dec. LEXIS 25969 (Ct. Common Pleas, Alleghany Cty 2013)(finding that father's imposition of house rules was not a "negative" and supported his visitation rights). In this respect, these Courts acknowledge what parents have known for centuries: core household rules reflect a couple's values, structure, and moral authority. Lehman, Rules, Boundaries, and Older Children: How to Cope with an Adult Child Living at Home, https://www.empoweringparents.com/article/rules-boundaries-and-older-children-part-i/(last visited 7/21/2021).
In New York, these rules serve another, perhaps pre-eminent purpose. The New York appellate courts have repeatedly told trial courts that one parent's ability to foster a relationship between the children and the other parent is a primary — if not the most important — criteria to be analyzed in any custody determination. Matter of Copeland v. Brown , 189 A.D.3d 1396, 134 N.Y.S.3d 740 (2d Dept. 2020) ; Matter of Matthew DD. v. Amanda EE. , 187 A.D.3d 1382, 134 N.Y.S.3d 512 (3d Dept. 2020) ; Matter of Hermann v. Williams , 179 A.D.3d 1545, 118 N.Y.S.3d 877 (4th Dept. 2020). As a trial court recently intoned:
With regard to the Father's right to visitation ... 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. The Appellate Division, Second Department stated that:
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’
The Second Department has consistently held that a custodial parent's deliberate interference with the relationship between the children and the noncustodial parent, is an act so inconsistent with the best interests of the children as to per se raise a strong probability that the custodial parent is unfit to act as such.
E.K. v. P.K. , 2020 NYLJ LEXIS 31 (Sup. Ct. Nassau Cty 2020)(citations omitted).
How can any court evaluate a parent's commitment to foster a relationship with the other parent unless the residential parent, in the face of a child's refusal to follow a parent approved visitation plan, imposes some discipline on the child? A parent who does nothing when a child refuses to follow an agreed visitation plan undercuts the other parent's relationship by denying the child contact with the other parent and eviscerates the couple's determination, enshrined in their agreement, that visitation was in the child's best interest. A parent who permits a child to refuse agreed visitation without consequence is not fostering a relationship between the child and the other parent: instead, the residential parent is thwarting that relationship and hence, ignoring the courts’ command to parents to foster a relationship as an important condition of custody or primary residence.
Finally, in imposing the house rules this Court is ordering the parents to engage in actions that are designed to put teeth into what they have already agreed will be beneficial to their children. New York courts have imposed conduct requirements on custodial parents that require them to engage in certain activities — transport the children, assure attendance at school or doctor's appointments or insure the children take medications or abide by mental health protocols — and refrain from others — drug or alcohol use or smoking in the presence of the children. See Guy v. Guy , 147 A.D.3d 1305, 1306, 46 N.Y.S.3d 337 (4th Dept. 2017) (granting the father's motion to compel the mother to cooperate with collaborative counseling and suggesting that a contempt application, upon the mother's failure to do so should be considered); Cobb v. Cobb , 4 A.D.3d 747, 747, 771 N.Y.S.2d 476 (4th Dept. 2004) (contempt order appropriate because respondent was aware of order mandating that she and the parties’ child obtain counseling and that she willfully violated that order). In a similar vein, the New York courts have suggested contempt as a remedy for violations of orders restricting drinking alcohol in the presence of the child. Matter of Tylena S. v. Darin J. , 4 A.D.3d 568, 571, 771 N.Y.S.2d 592 (3d Dept. 2004) (father could be held in contempt for violating order prohibiting drinking alcohol in the presence of the children). The same conclusion — a possible contempt proceeding -- can involve violations of bans of smoking in the presence of children. Matter of Munson v. Fanning , 84 A.D.3d 1483, 1483-84, 922 N.Y.S.2d 613 (3d Dept. 2011). In this Court's view, the "house rules" proposed in this order simply requires the parents to engage in a disciplinary protocol to ensure that the children follow the agreed visitation plan. In Labanowski v. Labanowski, 4 A.D.3d 690, 772 N.Y.S.2d 734 (3d Dept. 2004), a court ordered the family to participate in therapeutic counseling. The Court found that one parent was unwilling to change the children's schedules to attend sessions, made no attempt to reschedule these dates when canceled, and allowed the children to decide whether to comply with the court order. The appellate court remitted the matter to the trial to consider an order of contempt against the parent, even though the parent argued that it was the child's determination not to attend. In short, a parent's failure to take actions, required by a court order determined by a court to be in the child's best interest, can not be defended by leaving compliance up to the child. The same logic compels the same conclusion here: no child should be permitted to decide whether to attend visitation without a consequence invoked in the household where they reside.
The rules proposed in this matter require that the parents discipline the children if they fail to follow their parent's agreed visitation schedule. The Court here orders both parents to impose discipline on the children and holds them accountable if they fail to impose that discipline. In short, the theory is that the Court removes the parent as the party responsible for the discipline and instead, inserts the Court. Neither parent can be blamed for the disciplinary measures: the blame rests with the Court. Neither parent runs the risk of alienating a child: the parent is not responsible for the discipline, the Court is. But, the message to the children is unmistakable: if you fail to follow your parent's agreed wishes, you suffer a penalty in the withdrawal of privileges and other options that a child would enjoy.
In this Court's view, the Court's imposition of the "house rules" is no different than what would occur if the couple were still married and sharing the same household. If a couple agreed that a child should go to school, for example, and the child refused, this Court has no doubt that the highly-educated, advanced-degree parents’ response in this case would be to impose a form of "house rules:" measures restricting the child's privileges until they complied with their parents’ direction and attended school.
This Court acknowledges that the rules are not universal and must be handled with parental discretion and compassion. For example, a child with mental health restrictions or under the care of a therapist or psychiatrist should not be subject to all the rules. Parents could easily devise another set of rules — appropriate in all contexts for such a child — and nothing this Court decrees should interfere with that parental choice, made in consultation with the child's professional.
However, to require the children to attend visitation consistent with their parents’ agreement, this Court orders both parents to impose the following house rules:
1. The children will both attend visitation as required by their parent's agreement.
2. In the event either child fails to attend visitation as their parent's agreement requires, then each parent shall take the following actions when the non-compliant child is within their household:
(A) no permission for extracurricular activities shall be granted by either parent and any permission for current extracurricular activities shall be immediately revoked;
(B) the child shall not be transported to any extracurricular activity;
(C) the child may not participate or attend any camp, summer program or other activities;
(D) any electronic devises, including but not limited to, computers, cell phones, tablets, watches, play stations or similar electronic devices or other internet communication devises shall be confiscated and removed from the child's use;
(E) the child shall not be permitted to have access to any social media tools, including Facebook, Instagram or any other such devices and the child may not review such social media or participate in any way in such activity;
(F) no friends or peers of the child may enter the child's primary residence and the child may not visit any other peer or friend away from the child's residence;
(G) the child may attend family events but only in their own residence and may not travel to any family member's residence without both parents’ permission;
(H) the child may not travel outside Monroe County for any purpose; and
(I) when the child returns to school, the child must return home immediately after the end of school and may not participate in any school-related activities or extracurriculars.
These "house rules" shall be placed in effect by each parent on each child until the child visits in accord with their parent's visitation agreement. Upon the child's compliance with the visitation schedule, the parents may suspend these rules but, if the child fails to comply in the future, each parent must reimpose the rules immediately. These rules bind the parents to take the actions described above if the children fail to follow the agreed best interests plan for visitation set forth by their parents. This Court was proffered an order after an appearance at special term. The Court declines to sign that order and requests that a revised order, consistent with this decision, be forwarded on notice to all parties.