Opinion
No. 10602/2007.
07-02-2014
E.V., Plaintiff, v. R.V., Defendant.
Collier, Halpern, Newberg, Nolletti & Bock, LLP, White Plains, for Plaintiff. Ronald J. Bavero, Esq., The Law Offices of Ronald J. Bavero, White Plains, for Defendant. Timothy M. Tippins, Esq. Of Counsel to Ronald J. Bavero, Esq., The Law offices of Timothy M. Tippens, East Greenbush, Janet Gutterman, Esq., White Plains, for the Child.
Collier, Halpern, Newberg, Nolletti & Bock, LLP, White Plains, for Plaintiff.
Ronald J. Bavero, Esq., The Law Offices of Ronald J. Bavero, White Plains, for Defendant.
Timothy M. Tippins, Esq. Of Counsel to Ronald J. Bavero, Esq., The Law offices of Timothy M. Tippens, East Greenbush, Janet Gutterman, Esq., White Plains, for the Child.
Opinion
JOHN P. COLANGELO, J.
In this post-judgment matrimonial action, the principal issue before the Court is custody of a nine year old child, G. (“G.” or the “Child”). At the time that the instant application to change custody was brought, G. was six years of age. The circumstances leading up to this custody dispute will be recounted in some detail in the course of this decision. For now, suffice it to say that Defendant father R.V. (“Defendant” or “R.”) and Plaintiff mother E. V., now E.R. (“Plaintiff” or “E.”) were divorced in June 2009. In September 2010, Plaintiff brought a proceeding in Family Court seeking to modify a Parenting and Visitation Schedule embodied in the January 23, 2009 Order of Family Court Judge David Klein A series of Family Court applications and responses to them followed hard upon.
In May 2011, Judge Klein appointed Dr. Stephen Herman to conduct a forensic evaluation. (Ct.Exh.III). Shortly thereafter, while the Family Court proceeding was pending, Plaintiff brought an Order to Show Cause in this Court seeking a money judgment for alleged child support arrears and other relief. Defendant filed a cross-motion seeking to remove the Family Court proceeding to this Court, suspend child support payments, and award Defendant sole legal and physical custody of G. By Decision and Order dated August 26, 2011, Acting Supreme Court Justice Robert Neary denied Plaintiff's request for a money judgment, denied Defendant's request to suspend child support pending a hearing, ordered the Family Court proceeding removed to this Court, and ordered a trial on all remaining issues including, most notably, the issue of custody. (The “Neary Order” or “Neary Decision”).
The hearing ordered by Justice Neary (the “Hearing”) began in April 2012 and lasted for 44 days. While certain ancillary issues remained extant as a result of the Neary Order—including, most notably, the issue of alleged medical expenses purportedly due to Plaintiff, the division of a wine and jewelry collection, suspension of child support payments, an upward modification of child support and the issue of attorneys fees—the predominant if not exclusive focus of the Hearing was the issue of the custody of G. This decision addresses that central issue.
The Hearing began with the testimony of the Court appointed forensic evaluator, Dr. Stephen Herman, and continued thereafter, albeit not on a day to day basis. Punctuated by various motions by Plaintiff to quash subpoenas or limit her document production and by Defendant with applications to enhance his interim access to G., the Hearing did not conclude until October 2013. By then, the Hearing had consumed forty-four days of testimony. Despite its considerable length, only three witnesses, aside from Dr. Herman, were called: Defendant R. testified on his own behalf and was Defendant's sole witness; Plaintiff testified on her own behalf—testimony that consumed approximately 25 days of direct and cross-examination—and called Dr. Daniel Lobel, G.'s treating psychologist, as her only other witness. In addition, each party introduced hundreds of pages of exhibits into evidence. After the Hearing concluded, the parties as well as the Attorney for the Child were permitted to and did each submit an extensive post-trial memorandum.
Upon review of the Hearing testimony and exhibits as well as the record in this case, and for the reasons set forth below and as described more fully below, the Court decides as follows with respect to the central issue of custody:
(1) G.'s father, Defendant R., is awarded sole legal custody of the Child with final decision making authority, subject only to the requirement that R. advise E. of such decisions promptly after they are made;
(2) R. is designated as the parent who has primary physical custody of the Child, subject to a regular access schedule by which the Child will reside with each parent on a 50/50 basis, with the Child residing with R. for one week, then E. for one week, etc.
(3) The vacation and holiday schedule of access shall remain as set forth in Judge Klein's Order of January 23, 2009.
Factual Background and Findings.
The parties were married twice and divorced twice. They are now both 44 years old. Their child G. was born on February 26, 2005 during their second marriage (Tr. 1593). Both parties are college educated, highly intelligent, and successful individuals (Tr. 1593–1595). E. was the valedictorian of her college class at Union college. (Tr. 2907).
References to the Hearing Transcripts will be designated “Tr.”, except with respect to the testimony of Dr. Herman, which was paginated separately. His Hearing Transcript references will be designated “H. Tr.”.
At all relevant times, R. has worked as a self-employed financial consultant and has invariably worked from home or at a client's site. From the time that G. was born until shortly after G. turned two years of age, R. was with G. on a daily basis. E. worked in the Human Resources Department at IBM and continued working at IBM following G.'s birth until March, 2012 when she stopped working. (Tr. 1595).
Shortly after G.'s second birthday, E. commenced an action for divorce in Supreme Court, Westchester County. At the same time, in or around April 2007, E. also brought a Family Offence proceeding against R. in the Family Court of Westchester County. (Deft.Exh.EEE). The Family Offense Petition was ultimately tried before Family Court Judge David Klein and all allegations against R. were dismissed (Tr. 18). The Child Protective Services Investigation, opened when the Family Court Petition was filed by E., also determined her allegations to be unfounded. (Ct. Exh. I, p. 17; Tr. 2741).
In August 2007, while the divorce action was pending, Family Court Judge Charles Devlin addressed the issue of custody and access; he ordered that the parents share time with the Child on an equal basis (Tr. 2656). E. promptly sought a stay of Judge Devlin's Order in the Appellate Division, Second Department, but to no avail. The issue of custody then proceeded to trial before Family Court Judge David Klein. By Order dated November 25, 2008, Judge Klein awarded “joint legal custody” to the parties “with final decision-making” to the Plaintiff (Deft. Exh. B at pp. 5–6).
Judge Klein then asked the parties and the Attorney for the Child, Janet Gutterman (then and now the Attorney for the Child), to submit proposed access schedules. The proposed schedule submitted by E., which would have essentially relegated R. to the role of an alternate weekend visitor (Deft.Exh.C1), was ultimately rejected by Judge Klein. Instead, the Court accepted R.'s proposal (Deft.Exh.C2)—a proposal virtually identical to that submitted by the Attorney for the Child (Deft.Exh.C3)—that would allow, in essence, an equal time sharing arrangement (Order of Judge Klein, dated January 23, 2009, Deft. Exh. D, hereinafter referred to as the “Equal Access Order” or “Judge Klein's Order”).Judge Klein's Equal Access Order was incorporated into the subsequent Judgment of Divorce granted in June 2009 (Tr. 14; Deft. Exhibit E).
Pursuant to the terms of the Equal Access Order, the parties were to enjoy an access schedule with the Child as follows: G. was to be in his father's care every Monday from 9:00 A.M. through Wednesday at 9:00 A.M.; he was then in E.'s care every Wednesday from 9:00 A.M. through Friday afternoon at 5:00 P.M.; the parties then alternated weekends from Friday at 5:00 P.M. to Monday at 9:00 A.M. (Deft.Exh.D, pp. 3–4). Holidays and vacations were also divided equally. Apart from creating an equal access schedule, the Equal Access Order limited the instances when either parent would be required to drop off G. to the other parent since almost all of the interchanges would take place at the Child's school or camp, except for two Fridays per month and some holiday access (Tr. 17–19).
However, E. consistently opposed the equal access schedule embodied in Judge Klein's Order and promptly appealed from it, requesting the Appellate Court to reduce R.'s time with the Child (Tr. 2667). In November 2009, the Second Department unanimously affirmed the Equal Access Order (Deft. Exh. GGG; Tr. 422–423); the Order has never been modified or vacated by any Court. (Tr. 2157–2158).
E. proved undaunted by the Appellate Division's ruling. Within days of the Second Department's decision, she renewed her efforts to overturn the equal access protocol. By early December 2009, she had retained new counsel—her current firm—for the purpose of continuing her effort to “Modify Custody/Visitation.” (Retainer Agreement, Deft. Exh. M). Part and parcel of her continued efforts involved using therapists and various mental health professionals to develop a psychological justification for reducing or eliminating R.'s role in G.'s life.
Initially, E. proposed and, after sufficiently hectoring R., obtained his consent to retain a mental health professional for the Child. After rejecting several therapists principally because they refused to accept E.'s demand that they potentially serve as a witness in an eventual custody proceeding, she settled on the psychologist Dr. Daniel Lobel, but only after leading R. to believe that he had been recommended by the Child's pediatrician. (See Deft. Exh. N). As it turns out, Dr. Lobel's principal champion was not a physician at all, but an attorney—E.'s counsel—who could vouch for Lobel's qualification as a witness; not surprisingly, Dr. Lobel expressed no qualms, then or thereafter, about wearing two hats—the child's therapist and one parent's paid expert witness. Indeed, Dr. Lobel reveled in the idea that he was hired because he knew his way around the courtroom (Deft. Exh. WW; Tr. 1373, 1382–1395)—this despite the concerns among his peers that such dual role created an unacceptable conflict. (See Herman Test., H. Tr. at 154; Deft. Exh. RRR; see also letter of Law Guardian, dated April 25, 2012, in which Ms. Gutterman stated that having Dr. Lobel testify would be “detrimental to his therapeutic relationship with [G..”] ).
However, Dr. Lobel proved unable to promptly coax out of G., during his sessions with him, any significant statements critical of his father, or the time spent with him. (See Tr. pp. 1087; 1111–1115; 1087; 1153). Instead, beginning in January 2010, G. discussed with Dr. Lobel his difficulties in adjusting to the changes in his young life that had been caused by E.—including her remarriage and changing homes on multiple occasions—and his anger directed not toward R., but toward his stepfather C. R., anger that resulted in at least three physical altercations with C. R.. (Tr. at 1064; 1074–1081; 1098–1110). However, Dr. Lobel soon justified E.'s selection of him. Based not upon the Child's reports to him or his direct observations of G., but upon E. and C. R.'s reports to Dr. Lobel of what G. purportedly told them and their alleged observations, Dr. Lobel provided a recommendation for a formal psychiatric evaluation of G. (Tr. 1122–1123; 3192). This was certainly music to E.'s ears; she responded to this siren song in June 2010 by retaining psychiatrist Dr. Donna Moreau with offices in New York City—50 miles from G.'s home—to perform the evaluation. Dr. Moreau in turn referred G. to another Manhattan based psychiatrist, Dr. Nakhle, for the purpose of administering various tests Dr. Moreau claimed she needed in order to diagnose the Child.
In retaining Dr. Moreau, E. rejected out of hand the two psychiatrists who had offices in her Northern Westchester region recommenced by Dr. Lobel, and instead followed the advice of her longtime personal therapist, Dr. Patricia Gallagher. Moreover, E. once again misrepresented to R. the source of a psychiatric referral, advising R.—falsely—that Dr. Lobel had recommended Dr. Moreau when he actually had never heard of her before. (Tr.2014.; Deft. Exh. Q). G. was soon subjected to a blizzard of appointments with health care professionals—over 20 appointments, mostly in Manhattan, over a three month period—all designed, as the evidence showed, to provide E. with a psychiatric report or reports that could be used to justify minimizing or, better still, eliminating R.'s role in G.'s life. (Deft. Exh. KKKK 1–3). During that same time period, E. also had over 22 appointments with her own mental health professionals. (Id. ). The desire by E. to obtain a report to support her effort to sever G.'s relationship with his father grew to a fever pitch after G.'s successful vacation week with R. in July 2010—a vacation during which, as even E. was forced to concede, G. appeared to be happy and enjoying himself, as the photos of those days reflect. (Tr. 3368–3378; photos, Deft. Exh. T). R..'s second vacation week with their Child was scheduled to begin on August 20, 2010. As her actions leading up to that day demonstrate, E. was determined to avoid a second enjoyable G. and R. vacation.
To set the stage, prior to the scheduled vacation “deadline” of August 20, E. adopted a routine for the transition of G. from her to R. which appeared calculated to make the exchange as traumatic as possible. Typically, E. would drive G. to meet R. in her car, accompanied by G.'s grandfather and/or grandmother, the Child's favorite toys, and his puppy. (Tr. 47–49). While E. claimed that she did so to encourage G. to see R., it does not take a trained psychologist to surmise that such a display would have the opposite effect; after all what five year old would be overjoyed to exchange his mother, grandpa, toys and puppy for a car seat.
In light of this background, what unfolded on August 16, 2010—based on the testimony of Plaintiff and Defendant—days before G.'s scheduled vacation with R., should not seem surprising. Had the potential ramifications of this situation not been so serious, the events of August 16 would have humorously resembled a British farce.
Monday August 16, 2010 was a camp day at the Armonk Montessori School and G. was due at the school at 9:00 A.M., to be picked up from camp by R. at 1:00 P.M. when camp closed. Under Judge Klein's Order, Mondays and Tuesdays were G.'s days with R.. E. did not bring G. to camp until it was over; she arrived at camp after 1:00 P.M., the time scheduled for R.'s pickup. She proceeded to park her car in an area a good distance away from R.'s car and remained in her own car with G. for about 3 hours, supposedly waiting for G. to get out of the car (Tr. 3553–3554). When G. needed to use the bathroom, she and G. left the car; she lifted him over a fence (so they would not have to walk past R.); she took G. into the school; she followed the same path back to the car (once again avoiding R.); and she put G. back in the car. She made no attempt at any point to walk G. over to R. (Tr. 3550), including to and from the bathroom or to and from the car (Tr. 2130–2135; Tr. 3557–3559). She made no attempt to leave G. at the school/camp that morning (as she normally would have done). She made no attempt to compel G., age 5 and 40 lbs., to get into or even approach R.'s car (Tr. 2135; 3547–3548).
Ultimately, E. drove away with G. and brought him back to her home in Pound Ridge, in clear violation of the Equal Access Order, as she knew (Tr. 3553–3554). She conceded on cross-examination that when she arrived home with G., she did not discipline G. for his alleged refusal to go with his father; she did not revoke any privileges or impose any consequences. Thus, E. failed to suggest to G. in any tangible way that his alleged behavior in not going with his father was improper. To E. it was perfectly acceptable for the Child, age 5, to “decide” whether or not to spend time with his father (Tr. 2489; 3923). R. made a record of this violation of the Equal Access Order with the North Castle Police Department (Tr. 2111).
The next day, Tuesday August 17, was also a camp day for G.. R. was to pick him up at 1 P.M. at camp so that G. could spend the night with him. However, instead of taking G. to camp on Tuesday, E. brought him for another appointment with Dr. Moreau, who apparently needed one more session with G. in order to finalize her report. (See Deft. Exh. ZZZ and BBB). E. did make it back to camp with G. in time for R.'s pick-up, but only after Dr. Moreau presumably had all the information she would need to complete her evaluation—an evaluation that provided E. with the pretext she needed to open a chasm between G. and R.. The night of August 17 was the last overnight G. would have with his father for nearly two years.On August 20, 2010, the day that R. was to begin his second week-long vacation with G., E. announced to R. that she was not delivering G. to him. She did so by an email she sent to him on Friday, August 19 at 5:36 P.M. (Deft.Exh.U). E. based her decision “on the advice of Dr. Moreau,” whom she conveniently mischaracterized as G.'s “treating psychiatrist”. E. added that Dr. Moreau has “advised me not to force him to go” (Id. ). It is uncontroverted that this refusal by E. to deliver G. to R. was unsanctioned and unilateral. E.'s refusal to bring G. was not authorized by any Court; no Petition or Modification had been filed at any time during the 9 months since E. hired her new attorneys. Moreover, E. knew that by so doing, she was violating Judge Klein's Equal Access Order (Tr. 2716–2717; 3577).
E. continued to refuse to bring G. to R. for the entire vacation week. On August 24, 2010, R. filed an application in the Family Court to hold E. in contempt of Judge Klein's Order. Soon thereafter, E. received a copy of the final version of Dr. Moreau's report. (The “Moreau Report”). E. promptly moved in Family Court to modify Judge Klein's Order. (See Petition of E. For Modification of Final Order of Visitation Made by Family Court, dated September 1, 2010).
In her papers in support of her motion, E. repeated the canard that Dr. Moreau was the Child's “treating psychiatrist”—a position she never held—in a transparent attempt to claim that it was G.'s “treating psychiatrist” who recommended that G. not be “forced” to vacation with R.. (See E. Sept. 1, 2010 Family Court Pet.). As E.—as well as Dr. Lobel—well knew, Dr. Moreau was only a consultant who generated a report, and never saw G. thereafter (Tr. 3218; 3407). Dr. Lobel was and has been G.s only treating therapist (Tr. 601–602, 3468–3469, 3472–3473, 3484).
Nonetheless, the damage had been done. R. had no second week of vacation with G.. In addition, based largely on the Moreau Report—which, most notably, contained a diagnosis that G. was suffering from “Posttraumatic Stress Disorder ” (“PTSD”) and “Generalized Anxiety Disorder ” (see Court Exh. I, p. 28; Deft. Exh. BBBB)—and E.s continuing claim that G. was reluctant to see R., the role of R. in the Child's life was promptly reduced by Judge Klein to that of a weekend visitor. What is worse, to compound the damage generated by E. and as described in more detail below, under the tutelage of G.'s actual treating therapist, Dr. Lobel, R.'s role in G.'s life was reduced further still, such that by early 2011, R. was little more than a flickering Skype image to G. (Tr. 1292, 91). Not until the instant Hearing was scheduled did any meaningful contact between G. and his father resume. (See H. Tr. at 159–161).
As directed by Judge Klein, Dr. Herman conducted an extensive forensic evaluation, culminating in a report dated January 30, 2012. (Ct. Exh. I, hereinafter the “Herman Report or Rpt.”). Among many other things, the Herman Report recommended an immediate resumption of meaningful access of R. to G.. Upon Defendant's application, this Court ordered such meaningful access resumed—after nearly a year long hiatus—and has thus far received no report of any dire consequences or trauma to the Child.
The Hearing
Shortly after the Herman Report was issued, the instant Hearing commenced. As indicated above, the Hearing began on April 9, 2012 and lasted for 44 days. To say that E. was the principal witness at the Hearing would be an understatement; her testimony alone consumed over 25 days. Indeed, despite the array of potential witnesses such as E.'s step father, her husband C. R., the Child's pediatrician Dr. Bombach, experts with whom she had consulted—including most notably, Doctors Moreau, Nakhle, Gallagher, Gould and others—Plaintiff's case consisted of only 2 witnesses: herself and Dr. Lobel. R. testified on his own behalf, and Dr. Herman was a Court witness. In addition, over 200 exhibits were adduced and admitted into evidence.
The Legal Standards.
It is axiomatic that in determining whether a change in custody is warranted, the best interests of the child are paramount. See, e.g., Gonnard v. Guido, 108 AD3d 709, 710 (2d Dept.2013) (“Generally, to modify an existing custody arrangement, there must be a showing of a change in circumstances such that modification is required to protect the best interests of the child”); Young v. Young, 212 A.D.2d 114 (2d Dept.1995) ; Turner v. Turner, 260 A.D.2d 953 (3d Dept.1999). Such best interests determination is based upon the Court's “review of the totality of the circumstances.” Davis v. Pignataro, 97 AD3d 677 (2d Dept.2012) (“The best interests of the child are determined by a review of the totality of the circumstances”); Vasquez v. Ortiz, 77 AD3d 962 (2d Dept.2010) ; Friederwitzer v. Freiderwitzer, 55 N.Y.2d 89, 93 (1982) (“[T]he only absolute in the law governing the custody of children is that there are no absolutes”). While a prior custody determination is one factor to consider, such prior determination is not dispositive, particularly when circumstances are present that tend toward the contrary. See Turner v. Turner, 260 A.D.2d 953 (3d Dept.1996) ; Young v. Young, 212 A.D.2d 114, 115 (2d Dept.1995).
The courts also uniformly recognize that an important if not pivotal factor to consider in making the best interests determination is whether the parents respectively are each capable of fostering a fruitful and meaningful relationship between their child and the other parent. See Vasquez v. Ortiz, 77 AD3d 962 (2d Dept.2010) (“[O]ne of the primary responsibilities of a custodial parent is to assure meaningful contact between the children and the non-custodial parent, and the willingness of a parent to assure such meaningful contact between the children and the other parent is a factor to consider in making a custody determination.”); Martinez v. Hyatt, 86 AD3d 571 (2d Dept.2011) ; Tori v. Tori, 103 AD3d 654 (2d Dept.2013). One parent's inability or evident refusal to do so must be seriously considered by the Court in determining the proper custodial regimen to fashion. See, Turner v. Turner, 260 A.D.2d 953, 954 (3d Dept.1999).
For example, in the recent Second Department case of Alvarez v. Alvarez, 114 AD3d 889, 891–892 (2d Dept.2014), the Court affirmed the decision of the Supreme Court granting a change in custody and awarding sole physical custody to the defendant father. While recognizing that in “adjudicating custody, the most important factor to be considered is the best interests of the child” and that in “determining the child's best interests, the court must look to the totality of the circumstances,” the Court's principle focus was on the issue of “the parties' relative abilities to foster a relationship with the non-custodial parent.” The Second Department affirmed the lower court's determination that defendant mother had proven incapable of doing so, and on primarily that basis, granted a change of custody from the previously stipulated joint custody arrangement in which defendant mother had enjoyed primary physical custody. As the Court held:
“In this case, the critical issue facing the Supreme Court was the parties' relative abilities to foster a relationship with the noncustodial parent and to cooperate incoordinating long-distance visitation. As we have stated, “one of the primary responsibilities of a custodial parent is to assure meaningful contact between the children and the noncustodial parent, and the willingness of a parent to assure such meaningful contact between the children and the other parent is a factor to be considered in making a custody determination” ( Matter of Vasquez v. Ortiz, 77 AD3d962).
In contrast, “[w]illful interference with a noncustodial parent's right tovisitation is so inconsistent with the best interests of the children as to, per se, raise a strong probability that the offending party is unfit to act as a custodial parent” (Matter of Ross v. Ross, 68 AD3d 878).
Here, the plaintiff demonstrated changed circumstances in that the defendant not only failed to take any responsibility for transporting the child for plaintiff's visitation, but also denied the plaintiff visitation on several occasions when he had traveled from New York to South Carolina at his sole expense to see the child. The defendant also denied plaintiff other visitation to which he was entitled. The record therefore contained ample evidence to support the Supreme Court's conclusion that the parties could not effectively co-parent and that awarding sole custody to the plaintiff was the only way to ensure the child an ongoing relationship with both parents.” (Emphasis supplied; citations omitted).
And in Lichtenfeld v. Lichtenfeld, 41 AD3d 849 (2d Dept.2007), the Second Department affirmed the Family Court's decision, after a hearing, to change the prior custody order of the Court and award plaintiff father sole physical and legal custody of the parties' children based primarily upon a determination that the father rather the mother was the “better able ... to foster an ongoing relationship between the children and the non-custodial parent.” As the Court held,
“In determining the issue of parental custody, the primary concern is the best interests of the child.
* * * *
Contrary to the mother's contentions, the evidence presented at the hearing amply supports the Family Court's determination that awarding sole physical and legal custody of the subject children to the father is in their best interests. Here, the mother deliberately interfered with the relationship between the children and the father, an act so inconsistent with the best interests of the children as to per se raise a strong probability that she is unfit to act as a custodial parent Moreover, the mother placed the children in serious jeopardy when, with the children inside of her car, she used it to ram the father's car several times. Such an act was clearly inconsistent with the best interests of the children and demonstrated that she was willing to put her own interests ahead of those of her children In contrast, the father demonstrated that he is better able then the mother to place the children's needs before his own needs and to foster an ongoing relationship between the children and the noncustodial parent While priority should usually be given to the parent who was first awarded custody by the court or to the parent who obtained custody by voluntary agreement, it is nevertheless but one factor to be weighed by the court in deciding whether a change of custody is warranted. Accordingly, we decline to disturb the Family Court's determination.” (Emphasis added; citations omitted).
See also, e.g., Vasquez v. Ortiz, 77 AD3d 962, 963 (2d Dept.2010) (Change of circumstances found and custody modified to award sole physical custody to father in light of Family Court determination that “the mother did not encourage a relationship between the children and the father and that she was unwilling to cooperate and, hence, co-parent with the father.”); Parchinsky v. Parchinsky, 114 AD3d 1040, 1042 (3d Dept.2014) (“The record ... supports the conclusion that the father is more likely than the mother to support and nurture the sons' relationship with the other parent.”)' Greene v. Robarge, 104 AD3d 1073 (3d Dept.2013).
In the instant case, Plaintiff has proven to be incapable of tolerating, much less fostering, a meaningful relationship between G. and R.. When left to her own devices, armed with joint legal and primary physical custody of G., she did her utmost to not only distance G. from his father, but to build a case for total separation from him rather than encourage a healthy relationship with him. As discussed herein, her conduct clearly created a more than sufficient change in circumstances from those that obtained at the time of Judge Klein's Order and mandates that custody be changed in order to serve the Child's best interests.
Discussion and Findings
Simply put, from the time of Judge Klein's Equal Access Order onward, Plaintiff ceased to act in G.'s best interests. Because she apparently believed that G. would prosper more with her, and only with her, Plaintiff refused to accept the shared custody arrangement implemented by Judge Klein. Instead, she used her joint legal custody, her primary physical custody and, more significantly, her decision making authority for G. as a weapon to try to create a case against his father to reverse Judge Klein's Order and for a time, succeeded. E. repeatedly claimed that she took action, including having G. run a gauntlet of therapist appointments, out of concern for his welfare. (See, e.g., Deft. Exh. U; Pl. Exh. 36). When examined, however, the record of her conduct as revealed during the Hearing points to a different motivation: her concern about her own welfare, including her overriding goal of securing G. for herself and her new husband to the exclusion of R.. The Hearing exposed this unstated but apparent purpose.
Shortly after her divorce from R. in 2009, E.promptly remarried—announcing the impending nuptials to G. and celebrating her engagement on his birthday. (Deft. Exh. U; Tr. 47). She also changed her (and G.'s) residence three times in a period of only 6 months in 2010 (Deft. Exh. X and AA), yet refused at the Hearing to recognize the possibly deleterious effect such wrenching changes might have on a 4–5 year old child whom she frequently described as fragile. (Tr. at 1064, 1074–1081, 1098–1110). When negative consequences soon manifested themselves—in G.'s suddenly troubling performance in school and at least three violent episodes of G. with C. R., including a punch that made C.R. bleed—E., rather than recognizing the source of the problem for what it surely was, instead tried to blame R. and started G. down the path to the mental health jungle of Doctors Lobel, Moreau, Nakhle, etc. (Tr. at 1064, 1074–1081; 1098–1110).
Indeed, when viewed in retrospect, as all trials perforce do, E.'s actions appeared designed to find a diagnosis for G. that would serve her purposes rather than free G. from any purported trauma. As her Affidavit to the Family Court in support of her motion to terminate R.'s visitation reflects, E. seemed to exalt in Dr. Moreau's diagnosis that G. purportedly suffered from Posttraumatic Stress Disorder (“PTSD”) and Generalized Anxiety Disorder ; she rushed to have the Report finalized, then hastened to present it to the Court just in time to disrupt G.'s second vacation week with R.. Indeed, to lend more credence to the finding, she mischaracterized Dr. Moreau as G.'s “treating psychiatrist”, a role Dr. Moreau never assumed, as E. was constrained to grudgingly concede on cross-examination (E. Sept. 1, 2010 Family Court Pet.; Deft. Exh. U; Tr. 3218; 3468–3469). However, it cannot be emphasized enough that such diagnosis proved worthless since it was based in large part upon a report which neither Dr. Moreau nor E. could have believed to be credible: the “butt cream” report.
As a purported basis for the ultimate Moreau Report and diagnosis, E. blew out of all proportion a report to her by the then 4 year old G. that Defendant had applied a cream to G.'s buttocks—a not uncommon occurrence, usually intended to treat a rash resulting from a young child's ineffective use of toilet paper, as R. explained to Dr. Herman—an explanation which Dr. Herman evidently found credible (See Pl. Exh. 7 and 8; Herman Report, Ct. Exh. I at 28–29). Upon retelling by Plaintiff, however, this story was embellished and transmuted into the alleged insertion of a tube of “butt cream” into G.'s anus. This version of the story, although often repeated by E. when it suited her purposes (see H. Tr., pp 86–88; Herman Report, Court Exh. I at 25, 28; Tr. at 2769–2770), was clearly thought by her to be apochophal, as evidenced by the fact that it was never believed to be true by her or anyone else who heard it. Neither E. nor a cavalcade of mandated reporters—including G.'s pediatrician, his treating therapist Dr. Lobel, the consulting psychiatrist Dr. Moreau, or anyone else—ever reported R. or this alleged incident to any authority, including the Department of Social Services (“DSS”) or Child Protective Services (H. Tr. at 80–86; Herman Rpt., Court Exh. I at 25, 28–29; Tr. 2769–2770). Significantly, when Plaintiff had an opportunity to raise this “butt cream” issue with both R. and G.'s pediatrician while meeting jointly with them, she—incredibly—chose not to do so. (Tr. 2743–2748). Her reticence spoke volumes.
Instead, E. proceeded to cynically take advantage of this “butt cream” story and use it as a pretext to lead G. through a parade of appointments with health care professionals all with one objective in mind: to find something wrong with a child eventually determined by an independent forensic professional to be normal, intelligent and healthy. (Herman Report, Ct. Exh. I p. 28–30). During the short span of 10 weeks in mid–2010, Plaintiff subjected G. to a battery of at least 20 appointments and special tests, all as a prelude to her application to cut G. off from his father, and reduce G.'s contact with him. Indeed, the final frenzied pace of such appointments immediately preceded E.'s decision to prevent a second vacation week of G. and R. in 2010. (See Exh. KKK 1–3). Moreover, E. did not stop at hiring mental health professionals and consultants. For the evident purpose of poisoning the psychological well, she regaled them with stories of R.'s purported untoward and abusive behavior with G.—stories that G. did not recall and E. did not actually believe (H. Tr. 76–78; Herman Rpt., Ct. Exh. I pp. 3–14; Tr. 2768–2769; 3115–3117). What is more, she failed to relate to them the violent incidents between G. and C. R.—not R.—or the probable effect her own decisions, to remarry and relocate, may have had on G .. (Herman Report p. 314; Tr. 3092–3093).
When viewed through the independent lens of Dr. Herman, the conclusions reached by Dr. Moreau appropriately received the treatment they deserved—to be severely discounted if not totally ignored. (See Herman Rpt., Ct. Exh. I p. 28–30; H. Tr. p. 80–86). Indeed, Dr. Herman emphatically concluded that G. “does not have Posttraumatic Stress Disorder. He does not suffer from Generalized Anxiety Disorder. He did not require psychological testing.” (Herman Rpt., Ct. Exh. I, p. 30; emphasis in original).E. doubtless came to a similar conclusion. Despite the Moreau Report and its incendiary diagnosis, Plaintiff must have been concerned about whether Dr. Moreau and her analysis could withstand the rigors and scrutiny of cross-examination to such an extent that E. never called her to testify at trial. The reason E. failed to do so could not have been financial; after all, she paid Dr. Lobell $6,000.00 per day and ran up over $57,000.00 in bills to a former soap opera actress to help her prepare for her role as Hearing witness. (Tr. p. 2940–2941; Deft Exh. OOO). Thus, Plaintiff's failure to call Dr. Moreau to testify impugns not only the Moreau Report and its purported PTSD and other diagnosis, but the plausibility of E.'s belief in and alleged reliance on the Moreau Report and its conclusions, as well as the basis for retaining Dr. Moreau in the first place.Indeed, Plaintiff elected not to call any of the purported specialists who either evaluated G. or with whom E. consulted about G.—the pediatrician Dr. Bombach, the psychiatric examiner Dr. Nakhle, E.'s psychiatrist Dr. Patricia Gallagher, or Dr. Moreau—save one: Dr. Lobel. Nor did she call family members—such as her husband C.R. and her step father R. S.—despite their knowledge of important facts, as asserted by E. in her testimony. The Court can only conclude that such potential witnesses were not called because Plaintiff could not count on their testimony.
Thus, the Court will infer that had such witnesses testified, their testimony would not have been favorable to Plaintiff's case. See, e.g., Sanders v. Ortis Elevator Co., 232 A.D.2d 327, 328 (1st Dept.1996) (“Defendant's failure to present testimony of an expert witness, after giving notice of his identity and the subject matter of his proposed testimony, showing his familiarity with the cause of the elevator accident [i.e. the facts at issue], warranted a missing witness charge.”); Noce v. Kaufman, 2 N.Y.2d 347, 353 (1957) (“In finding the facts against Kaufman, the Referee properly applied the law that where an adversary withholds evidence in his possession or control that would be likely to support his version of the case, the strongest inference may be drawn against him which the opposing evidence in the record permits.”); Jarrett v. Madifari. 67 A.D.2d 396, 407–408 (1st Dept.1979).
Dr. Lobel's Testimony
Despite Plaintiff's retention of and consultation with several health care professionals to evaluate G., she chose to call only one as a witness at the Hearing—G.'s past and present psychologist and therapist, handpicked by Plaintiff—Dr. Daniel Lobel. That Dr. Lobels's testimony, heard over seven days, should be taken only with a very large grain of salt cannot be gainsaid once several uncontested facts are recounted. First, as all counsel—particularly the Law Guardian, Ms. Gutterman—conceded and as the independent expert Dr. Stephen Herman emphatically testified, calling a child's current, treating therapist to testify in a custody hearing is highly unusual, and for good reason: his or her testimony might well undermine the relationship between not only the doctor and the child, but the doctor and at least one of the child's parents, and the therapist rendered ineffectual as a result. (See H. Tr. at 154; discussion supra p. 6). Surely for this reason, other psychiatrists and psychologists interviewed by E. as potential therapists for G. declined the assignment when they learned that it might eventually entail taking sides in court in a custody dispute. Tellingly, Dr. Lobel had no such reservations. (Tr. at 1373–1395; Deft. Exh. WW).
Undaunted by these concerns, E called Dr. Lobel as her sole witness—a witness paid handsomely for his time. As Dr. Lobel testified, he was paid by E. the sum of $6,000.00 per day to testify—this despite the fact that his regular hourly rate charged to patients was $275.00. In other words, Dr. Lobell would have to see approximately 22 patients in a 24 hour day in order to earn the equivalent sum paid by Plaintiff for his testimony. (Tr. at 934–940; Deft. Exh. GG and JJ).
Be that as it may, Dr. Lobel, ostensibly hired to, inter alia, help mend the relationship between R. and G. so that the transitions of G. between his parents could be improved, was as ineffective in achieving that goal as he was as a witness for Plaintiff. Rather than promoting a relationship between G. and R., Dr. Lobel—with the prompting of E.—instead presided over a steady erosion of contact between them, to the point where R., to G., became little more than a disembodied voice over a cell phone and a flickering image on a computer screen. As his own testimony reflects, Dr. Lobel did nothing to improve the father-son relationship. As he admitted to Dr. Herman, Dr. Lobel “has never seen [G.] with his father.” (Herman Rpt., Ct. Exh. I at 27). Instead, under Dr. Lobel's watchful eye, R.'s relationship with and access to G. deteriorated even further, devolving from an occasional weekend visit to a Skype image monitored by E., to a suggestion by Dr. Lobel that even Skype may be too much for G. to bear—an assertion eventually shown by Dr. Herman and events to be errant nonsense. (Tr. at 1292; 91).
The underlying rationale for Dr. Lobel's approach—that G. had somehow become terrified of R.—was ultimately given the lie when Dr. Herman did a simple thing that E. and Dr. Lobel has struggled mightily to avoid: he put G. and R. together outside the clawing presence of E.. The rhetorical question lingers: Why did a trained health care professional, such as Dr. Lobel fail to think of that? The answer is obvious—he and E. were afraid of what did in fact happen—a happy and healthy reunion of father and son. (See Herman Report, Ct. Exh. I p. 23–24; see also discussion of Dr. Herman's Report, infra, pp. 25–28).
Indeed, Dr. Lobel effectively conceded that E. was purposely alienating G. from R., albeit in a somewhat left-handed fashion. In a presentation he gave to his peers during a symposium for the American College of Forensic Psychology in San Diego in April 2011, Dr. Lobel referred to G. by the pseudonym “Ulysses” and outlined, essentially, the G./E. relationship. He then opined that her behavior “looked like parental alienation” directed toward the “fictitious” child's father. (Tr. 1373–1383, 1393–1397; Deft. Exh. WW).
Each step recommended by Dr. Lobel decreased contact between G. and his father, from weekend visitation at R.'s home, to day visits in a park, to regular Skype calls, to virtually no contact whatsoever, a path leading inexorably to the unstated but apparent goal of G.'s mother—a world of G. and E. without R. at all.
That reduction in access rather than reconciliation was the prime directive was also borne out by the fact that Dr. Lobel made no effort—even when presented with the opportunity to do so—to bring E., R. and G. together to address the alleged issues relating to transitions of G. from E. to R.. Incredibly, Dr. Lobel never saw or ever attempted to schedule a meeting of all three, E., R. and G., together at the same time. (Herman Rpt., Ct. Exh. I at 27). The following testimony of Dr. Lobel speaks volumes:
“Q. I'm going to go back to your discussion with [R.] on September 22nd, 2010.
You mentioned forcing the child to go under the circumstances. Can you describewhat circumstances you're referring to?
A. The circumstances being, number one, the child's expressed resistance to visiting with the father; and number two, the conflictual atmosphere between the parents during the transfers.
THE COURT: I hate to come back to this again but I will.
September 22nd you're telling [R.] in this telephone conference it would be better for all concerned if he behaved in a different fashion, was more amicable with [E.]in front of [G.] right?
The Witness: That's right.
The Court:Essentially that's what you told him?
The Witness: That's right.
The Court: Why—didn't you think at this time that one way to foster that type of meeting would be to have all of them come together and meet in your office?
The Witness: The concern was—my concern was that the conflict that was occurring at the visits would occur in my office in front of the child.
The Court: Then you're there and you can ameliorate it; am I correct?
The Witness: Perhaps. But that kind of intervention should not be done in front of a five-year-old child. My intervening and telling his parents how to behave in front of a five-year-old child, I don't think that is healthy for the child.
The Court: You're a psychologist.
The Witness: I am.
The Court: You're an expert, your qualified as an expert in psychology in this court.
The Witness: Yes.
The Court: You think it's—it would be better for them to meet in a park and try to work out this relationship, and this improved behavior in a park without a trained psychologist present than to be in your office where you can assist and ameliorate it?
The Witness: No. I wanted to work out these—this conflict, this issue between the parents before I brought the child into a meeting so that his parents could be on the same page when the child enters into the situation.
For me to correct the child's parents in front of the child and criticize their behavior undermines his sense of authority and trust with the parents.
The Court: [G.'s] sense of authority?
The Witness: Yes.
The Court: The five-year old?
The Witness: Yes.”
(Tr. at 552–554).
Dr. Lobel's purported justification—that he did not want to undermine the so-called “authority” of a 5 year old boy—wars with common sense. The unstated but apparent reason behind Dr. Lobel's reticence, however, is clear: his employer E. sought not reconciliation, but continued conflict, a conflict that would serve as a rationale for radically changing the custody protocol established by the Equal Access Order. The fact that this goal was temporarily achieved, and R. virtually removed from G.'s life, is more a testament to the excess of caution practiced by the Courts when faced with claims of imminent psychiatric peril to a child than a reflection of the merits of E. and Dr. Lobel's position. When subjected to independent analysis, however—as they were by the forensic evaluator Dr. Stephen Herman—Plaintiff's claims and Dr. Lobel's opinions were exposed for what they were—mere pretense.
Parenthetically, the Court notes that, in the end, Dr. Lobel's gall proved equally noteworthy. After seven days of testimony at $6,000 dollars per day and, more importantly, three years of weekly therapeutic appointments with G. for which he had been paid no less than $40,000–50, 000 in total (Tr. 928–929), Dr. Lobel had the audacity to suggest that G. now needs to see yet another mental health professional to do the job he should have done—help heal the rift in the R., G. and E. relationship. (Tr. 1321; 1525–1530). In light of Dr. Lobel's continued and admitted lack of progress—if not abject failure—with G., E.'s decision to retain him and her persistent refusal to terminate his services calls her judgment into serious question.
Dr. Herman's Evaluation
Dr. Stephen Herman was the only truly independent health care professional to examine G. and his situation. Dr. Herman conducted a forensic evaluation over six months beginning in June 2011 through January 2012 and wrote a detailed forensic evaluation for the Court. (Herman Report, Court Exh. I). Dr. Herman also testified at length at the Hearing. As the first health care professional to observe R. and G. together, his observations of the behavior of each and their interaction is telling. This is what he wrote in describing the first interaction that he observed—which was also the first face to face meeting between G. and his father in over eight months.
“Interview with G. and his Father (accompanied by Paternal Grandmother)
[G.] and his father sat on the sofa together. [G.] was leaning against his father. They seemed to be very comfortable with each other right from the start.
[G.] talked to his father about bullies in his school. [R.] seemed very concerned. “I don't know if I like that.” He told his son to be sure to tell the teachers if he is bullied. He also asked [G.] whether he tells his mother.
There was constant conversation between father and son. [G.] told his father about his dog. He told [R.] “One of my cats gets claustrophobic....”
They were building a catamaran together. Both interacted well. [G.] was very much involved in the construction with his father.
During the session [G.] told his father all about his life and what he is doing.[G.'s] father talked to his son while trying to put the catamaran kit together. He often complimented [G.] At the end of the session [G.] told his father they could finish the kit in the park.
Considering the fact that [G.] had not seen his father in person for quite a longtime, this session went very well. There was no discomfort on [G.'s] part and he related well to his father.” (Herman Rpt., Ct. Exh. I at 23).
G.'s reaction to additional meetings with R. as observed by Dr. Herman proved equally sanguine:
“Interview with [G.] (brought by Father)
“[G.] was in a great mood. He had been in a lively discussion with his father in the waiting room. The child immediately went to the Legos. I asked him how it was coming into New York with his father. He said “good. We were talking about Christmas gifts ...” [G.] said he asked his father for a Lego series that had been discontinued. However, [G.] told me Amazon.com has it. He also said he talked to his father about getting a Martian setup. The child told me Legos is named after the man who invented the toy.
[G.] said he did not see his father at all-not even on Skype. I asked him the reason. He said “I don't know.” However, he said he did want to see more of his father.
The session demonstrated [G.] being less ambivalent about wanting to be with his father. He still is obviously torn but was more positive about seeing his father.”
Herman Rpt., Ct. Exh. I at 24.
In light of such positive meetings, Dr. Herman concluded that, contrary to E.'s claims and Dr. Moreau's “diagnosis”, G. was “delighted to be with his father”:
“When I observed [G.] and his father together, there was a definite bond. In fact, [G.] seemed hungry for the contact with his father. [R.], likewise, was delighted to be with his son, and he was more than appropriate with the child. In fact, it was as if they saw each other on a regular basis. There was no evidence of trauma whatsoever in [G.]. He seemed delighted to be with his father. He was a different child from the one described by his mother and stepfather. [G.] had and has a relationship with his father. In truth, this is not reinforced by his mother. ” (Id. at 28; emphasis added).
In short, G. appeared to Dr. Herman to enjoy the time spent with his father, and exhibited no signs of the fear, anxiety, reluctance or reticence described ad nauseum and predicted by Plaintiff and Dr. Lobel. (H. Report p. 28; H. Tr. at 98–103). Indeed, those negative emotions were observed by Dr. Herman not in G., but in E. Perhaps desperate to make a case to Dr. Herman for the continued isolation of G. from his father, Plaintiff came to Dr. Herman's office armed with reports from her hand-picked therapists, pages of notes detailing R.'s shortcomings, and wearing her anxiety on her sleeve. As Dr. Herman observed in his meeting with E.:
“During these sessions,[E.] presented as a very anxious woman herself. She frequently consulted notes and sometimes went into exquisite detail regarding criticisms of [R.] It was sometimes difficult for me to get her to summarize. As I wrote to the court, this evaluation has been delayed because of the mother's exquisite detail.”
(Herman Rpt., Court Exh. I at 14; see also Herman Rpt., Ct. Exh. I at 3–10; H. Tr. at p. 76–77).
As a result of his forensic evaluation—during which he interviewed or contacted not only G. and his parents, but various health care professionals E. had retained or consulted as well as E.'s husband and others (Ct. Exh. I at 2)—Dr. Herman recommended that meaningful visitation of G. with R. be promptly restored. Plaintiff vigorously opposed any such increased visitation at every turn. Acting perhaps with an excess of caution, the Court gradually restored R.'s access time with G., progressing from an interim schedule providing a modest restoration of direct access between G. and R., to a schedule essentially identical to the interim plan recommended by Dr. Herman to, as of September 2013, a slightly greater access than Dr. Herman's interim recommendation. (See Herman Rpt., p. 31).
At present, R.'s access time with G. includes the time from Friday afternoon pickup at school to Tuesday mornings, on alternate weeks. The Court also ordered two non-consecutive weeks of vacation time restored to R., of which R. and G. took advantage in July and August, 2013. (See Herman Report at Ct. Exh. I, p. 31; Tr. at 3711–3751). Apparently, based upon uncontradicted representations of Defendant and his counsel as well as an exhibit consisting of photos of G. and R. during that vacation period, G. has enjoyed his time with his father. (Tr. 3749–3752; 4438–4441 Deft. Exhs. NNN and OOO). Nor has there been any application to this or any other Court since this interim schedule was set in place asserting otherwise—this despite the fact that Plaintiff opposed, at every turn any resumption of meaningful access time for R. and G..
Dr. Herman's recommendations with respect to the future relationship of G. to each of his parents as reflected in his Report and in his testimony are, understandably, somewhat equivocal. That R. should have meaningful time with G. is clear to Dr. Herman, and taken as a given. As far as E. is concerned, Dr. Herman favors continuing with her as G.'s primary custodial parent, but with the implicit yet important caveat that E. prove capable of fostering a true relationship between G. and his father (Herman Report, Ct. Exh. I pp. 28–30; see H. Tr. 442–446). As Dr. Herman stated:
The Court notes that the Attorney for the Child would also maintain the current protocol of joint legal custody with primary physical custody to E. While the opinion of an attorney for the child is entitled to some consideration (see Young v. Young, 212 A.D.2d 114 (2d Dept.1995), in light of the evidence adduced and for the reasons set forth herein, the Court does not accept Ms. Gutterman's recommendation.
“When [G.] is home with his mother, he knows the “drill” and makes it clear that he does not want to be with his father. When he was younger he virtually kicked and screamed when forced to have parenting time with [R.] It would be different now, if his mother and stepfather truly gave the child the message that it is fine with them for [G.] to spend real time with his dad. This has not been their position for years.”
(Herman Rpt., Ct. Exh. I, pp. 28–29; emphasis added). Dr. Herman reiterated this view during his Hearing testimony. (See Herman Tr. pp. 128–135).
To be sure, to both Dr. Herman and this Court, E. presents as a paradox: on the one hand, she is a loving mother who obviously cares for and wants the best for G.; on the other hand, she has an overarching tendency to alienate G. from his father. Nonetheless, Dr. Herman concluded that E. should remain as G.'s “primary parent” and retain primary physical and joint legal custody:
“Regarding [G.'s] relationship with his mother, it is a strong one. Outside of her ongoing alienation of her son from his father, [E.] and [G.] have a very good relationship. It appears that [G.] and [C.R.] also have an excellent relationship. However, I am concerned that [G.'s] stepfather also sends the child the message that a relationship with his father is not mandatory.
[E.] does have excellent parenting skills, without a doubt. She has been an excellent mother to [G.] and the bond is mutual. The child seems less likely to demonstrate separation anxiety and is more forward about interacting with children as well as adults. He has made magnificent strides throughout his young life thanks to the relationship with his mother.
Thus, [E.] has been a good mother, aside from the continuous thread of her alienation of [G.] from his father. These are her strengths and weaknesses. She has always been there for her son, and will continue to be. I have no hesitation about seeing her as [G.'s] primary parent psychologically as well as in fact.” (Herman Rpt., Ct. Exh. I at 29; emphasis added).
Similarly, the parties' approach to Dr. Herman's Report is a study in internal contradiction. Plaintiff would have the Court accept Dr. Herman's ultimate recommendation—that primary physical custody remain with Plaintiff—but generally rejects the research and findings that led to it, and vigorously opposed and opposes the interim measures of increased access that Dr. Herman suggested. On the other hand, Defendant would have the Court accept Dr. Herman's findings while rejecting, at least in part, his ultimate conclusion.
The Court has chosen to take a middle path. Since Dr. Herman's findings were supported not only by his interviews, but in many significant respects confirmed by the testimony and exhibits presented to the Court, his recommendations for the transitional steps needed to restore the G./R. relationship were, in the main, adopted by the Court despite Plaintiff's dogged opposition, and have, to the Court's knowledge, proven successful. However, as the Court reads the Herman Report, Dr. Herman's long-term recommendation that E. continue to have primary physical custody of G. was made subject to an important caveat: that E. prove capable of fostering a meaningful relationship between R. and G.. (Herman Rpt., Ct. Exh. I at 28–32).
As Dr. Herman recognized, E. clearly loves G. and nothing suggests that G. feels any differently toward her. Moreover, the preferable situation for G. would be to have both parents in his life and in a significant way. (See Herman Rpt., p. 30; “What [G.] does need is a healthy and ongoing relationship with his mother and his father.” Emphasis in original). The concern raised by Dr. Herman, and shared by this Court, is whether E. will admit this fact to herself, accept R.'s role in G.'s life and, as Dr. Herman hopes, proceed down the path of amicable, shared parenting, or will she instead use her time with G. to distance him from his father and trump up new allegations, motions, hearings, etc. After 44 days of testimony, which included over 25 days observing Plaintiff on the witness stand and seven days with Dr. Lobel, and after reviewing hundreds of pages of exhibits, the Court shares Dr. Herman's misgivings regarding Plaintiff. However, unlike Dr. Herman, the Court cannot discount them and therefore does not fully embrace his ultimate recommendations. To this Court the caveat recognized by Dr. Herman cannot be ignored or downplayed, for several reasons. Based largely on E'.s own testimony and demeanor at trial, as well as Dr. Herman's observations, the Court does not believe that E., if left to her own devices as the primary care giver and decision making authority for G., would, or even could, nurture an acceptable, much less fruitful, relationship between G. and his father.
As the Courts uniformly recognize, in a hearing relating to custody, the parties' demeanor and credibility when they testify as evaluated by the trier of fact is an important if not decisive factor in the Court's decision. See, e.g., Vasquez v. Ortiz, 77 AD3d 962, 963 (2d Dept.2010) (“Since any custody determination necessarily depends to a great extent upon the assessment of the character and credibility of the parties and witnesses, deference is accorded to the hearing court's findings, which will not be disturbed unless lacking a sound and substantial basis in the record .”); Cuccurullo v. Cuccurullo, 21 AD3d 983 (2d Dept.2005) ; Jones v. Leppert, 75 AD3d 552 (2d Dept.2010) ; Virginia C. v. Donald C., 114 AD3d 1032, 1035 (3d Dept.2014).
Put simply, E. was not a credible witness. Her testimony was frequently a study in evasion; she answered few questions directly, feigned ignorance or failure to understand simple terms such as “consequences” (Tr. 3556), “discuss” or “explain” (Tr. 2524–2528) and claimed that she, for some unknown reason, could not answer a question which appeared to the uncoached eye more than susceptible to a straightforward response. Indeed, her too clever-by-half refusal to directly answer a direct question needlessly prolonged the Hearing; her testimony alone consumed over 25 days. And the substance of the testimony she did give often seemed, to put it charitably, difficult to comprehend. Her inveterate refusal to admit to any tangible foible in her care of G.—even when such shortcomings were obvious, such as the several and frequent moves to different houses shortly after the parties' divorce—and her failure to find virtually anything at all good to say about R. calls into question the veracity of much of her testimony.
In contrast, R. proved a much more credible witness. He was, in the main, forthright in his responses, direct, willing to admit to certain failings as a parent and, more significantly, willing to concede that E. is a loving mother who cares for G. and who should play a large part in his life going forward. As R. testified at the conclusion of his direct examination—testimony which the Court credits in light of his demeanor on the stand and the documentary evidence that confirms the sentiments expressed:
“A. I've always been supportive of [G.'s] relationship with his mother. And I will continue to do so. What he's been put through and what I've been put through, I'm an adult and I can deal with it. He is a young child, and he can't. And he's been robbed of his childhood. And, you know, for me it's important for [G.] that he have both a mom and a dad in his life who loves him very much and care about him very much, and that he have a strong relationship with each of them because they each bring different characteristics to the table. And he benefits from both of that, and I think it's important that he, you know, the ability to continue to foster and develop relationships with each of us, and I know I've always been supportive of that, and I will continue to be so.” (T. 108).
E. on the other hand, would just as soon have R. disappear into the ether of occasional Skype images, as she once succeeded in achieving; she made it clear that she would do nothing beyond alleged verbal entreaties to require G. to even see—much less have a relationship with—his father. (See Tr. 3666–3676; Herman Report, Ct. Exh. I p. 28–31). Such purported entreaties, made in the cocoon of E.'s home or in her car with her step-father and G.'s toys and puppy in tow, never bore much fruit, and for good reason: as Dr. Herman suspected, G., when under his mother's watchful eye, sought to please her and knew that seeing his father would have the opposite effect. (Herman Report, Ct. Exh. I, at 28–29; Herman Tr. at 127–136). Only when the cord was broken—when G. was, by Court order, compelled to spend time with his father—did the truth emerge: that G. and his father had and have a loving relationship as well.
Indeed, Dr. Herman's concerns about E. were born out by the Hearing testimony to such an extent that had Dr. Herman observed and reviewed what was adduced to this Court, his conclusions regarding ultimate physical and legal custody may well have been different, to the detriment of E.'s position herein. Dr. Herman's ultimate custody recommendations—whether made at the time of his Report or at the time he gave his testimony as the first witness of the Hearing—were made without the benefit of the following salient facts revealed during the course of the Hearing:
(1) That E. received extensive—over 50 hours—of preparation for her forensic interview with Dr. Herman from a fellow expert, Dr. Jonathan Gould. (Tr. at 2946–3007; Deft. Exh. OOO).
(2) That Dr. Lobel expressed a view that conduct of an allegedly “fictional” mother with a “fictional” child Ulysses—a child who was struggling and engaging in conduct strikingly similar to G.—may have been exhibiting signs of “parent alienation syndrome”; nor did Dr. Herman have the benefit of Dr. Lobel's extensive files or the fact that the cost of his Court appearance, paid by E., far exceeded his regular hourly rate for his time;
(3) That Dr. Lobel had been hired more for the purpose of litigation rather than therapy, as witnessed by the above as well as the fact that he was the sole potential therapist interviewed by E. who was not at all reticent about serving as both therapist and witnesses, despite the obvious conflict posed by a therapist's assumption of such a dual role;
(4) That G. had experienced significant difficulties in school and home as a result of disruption in his life caused by E.'s remarriage and rapid, successive relocations to the extent that G. physically attacked and drew blood from his new step-father C. R.—not R.—during that period;
(5) That E. had enlisted her personal therapist—Dr. Patricia Gallagher—for advice and strategy in her custody battle. (Tr. 2683–2687; 3057; 3057–3061).
(6) That E. made every effort to stop the implementation of even Dr. Herman's own modest recommendations aimed at restoring a personal—rather than electronic—relationship between G. and R., and testified that requiring G. to spend time with his father would amount to a “punishment” for G. (Tr. 2486–2487).
(7) Nor did Dr. Herman have the benefit of R.'s testimony and photographic exhibits that, contrary to E.'s professed fears, showed G. enjoying vacation time with his father both in July 2010 and August 2012—enjoyment expressed by G. (Tr. 4436–4441; Deft. Exhs. T and OOOO). When E. was shown such photos of the July 2010 vacation of G. and R., even she was compelled to concede that they depicted a happy child, enjoying time with his father—similar to what Dr. Herman observed when he first saw G. and R. together—not the blank expression of an inmate or survivor of Post Traumatic Stress. (Tr. 3368–3378; Deft. Exh. T).The Court is well aware, as Plaintiff is quick to point out, that the opinion and recommendation of a forensic evaluator are generally to be given “some weight”. However, it is equally clear that the “recommendations of court-appointed experts are but one factor to be considered in making any custody determination and are not determinative.” Young v. Young, 212 A.D.2d 114, 118 (2d Dept.1995). Thus, the Court is not in any way bound by the evaluator's opinion and conclusions particularly where, as here and as described above, Dr. Herman was not aware of several important facts, including E.'s stark refusal to consent to any application by R. for increased contact with G. made during the course of the Hearing. (See, e.g., Prete v. Prete, 193 A.D.2d 804, 805 (2d Dept.1993).
The Court thus finds that the facts adduced during the Hearing and the pertinent case law as discussed above compel a change of custody under the circumstances that obtain herein. G.'s best interests so dictate. Where, as here, the custodial parent engaged in alienating behavior that “deliberately interfered with the relationship between the children and the father,” the courts will not hesitate to change the custody arrangement. Lichtenfeld v. Lichtenfeld, 41 AD3d 849 (2d Dept.2007) ; see also Vasquez v. Ortiz,, 77 AD3d 962, 963 (2d Dept.2010).
As the evidence adduced at the Hearing reflected, E. plainly failed to adequately discharge “one of the primary responsibilities of a custodial parent ... to assure a meaningful contact between the [child] and the noncustodial parent,” a crucial fact in making a custody determination and maintaining a custody protocol. Alvarez v. Alvarez, 114 AD3d 889 (2d Dept.2014). By, among other things, procuring a mental health diagnosis of G. based upon tales that she herself did not believe, collaborating with G.'s therapist—hand picked by her—and her own psychiatrist to reduce rather than enhance contact between G. and R., by failing—her empty protestations to the contrary notwithstanding—to encourage G. to even see much less spend time with his father, E. clearly did not act in G.'s best interests and demonstrated no ability whatever to “foster a relationship” between G. and his “non-custodial parent.” As the Third Department noted in Turner v. Turner, 260 A.D.2d 953, 954 (3d Dept.1999), “[a] conserted effort by one parent to interfere with the other parent's contact with the child is so inimical to the best interests of the child-the paramount concern in a custody case—“as to, per se raise a strong probability that [the interfering parent] is unfit to act as a custodial parent.” Accordingly, as in Turner, Alvarez and Lichtenfeld, a change in custody is mandated herein. (See also Parchinsky v. Parchinsky, 114 AD3d 1040 (3d Dept.2014) ; discussion supra at pp. 12–16).
Conclusions and Order.
The issue then becomes, how should the custody arrangement be changed? What legal and physical custody protocol would serve G.'s best interests and provide a realistic alternative to the present situation?
Clearly, with respect to physical custody, returning G. principally to his mother's environment—an environment that subtly if not actively discourages rather that nurtures a meaningful relationship with the other parent—on a quasi-permanent basis by continuing E.'s primary physical custody will, in this Court's view, only prove counterproductive to fostering a healthy relationship between G. and both of his parents. After retaining and/or consulting with no fewer than six mental health professionals, two trial consultants, several attorneys, and after twenty-five days of testimony, E. has made it clear—her tepid protestations to the contrary notwithstanding—that she will not relent in her efforts to, in essence, efface R. from her and G.'s lives.
Moreover, E.'s “child centered” insistence that G. alone determine, while safely tucked away in her home, whether he should see his father or not (T. 2497; 3818) would be at once unrealistic, premature and detrimental to G. As Dr. Herman recognized, to saddle G. with the responsibility of choosing which parent to see and when would be asking too much of and harm a now nine year old child. (H. Tr. 143–146). At some point, several years from now, G. will have the right to make that choice, between E. and R., if he decides to do so. Until that time, it is the responsibility of the Court and, more importantly, both parents to try and insure that G. experience to the greatest extent possible a fruitful, meaningful relationship with both parents, despite their differences. As Dr. Herman testified, unless G. has such a relationship—“forced” upon him or not—with both parents, he “is going to be deprived of his childhood, of any kind of normalcy in his childhood.” (H. Tr. 148).
Unquestionably, E. loves G. and has doted on him since his birth. Also unquestionably, E. has hurt G. She would doubtless try to move heaven and earth, and has in fact spent a small fortune in legal and related fees (see Deft. Exh. OOO) to accomplish an objective which, at bottom, is inimical to G.'s welfare: to deprive him of a meaningful relationship with his father. Such a goal might well have proven laudable had R. actually been the abusive monster that E. sought to depict. The fact that the evidence showed he was and is not and that E. could not and did not actually believe that he was—as both her actions and, more significantly, her failure to act plainly demonstrate—certainly makes turnabout fair play: the testimony and exhibits adduced in the course of the Hearing tend inexorably toward the conclusion that G. needs protection not from R ., but from E. Absent the imposition of some stringent boundaries on E.'s prerogatives and conduct, based upon her actions to date G. will surely spend the remainder of his childhood being prodded and probed by a constant parade of mental health professionals seeking to find something wrong with a healthy child who needs only a true, loving relationship with both of his parents.
The testimony and documentary evidence revealed that R. has always acknowledged the love that E. has for G., and her demonstrated ability to provide for him. His central motivation has been and remains G.'s welfare which includes a fruitful relationship with both parents and the Court believes he will encourage such a relationship. E.'s contrary tendency—to promote an “ongoing alienation of her son from his father” (Herman Rpt., Ct. Exh. I at 29)—looms larger for this Court then it apparently did for Dr. Herman—perhaps because of the fact that the Court knew of information Dr. Herman did not, as recounted above, and the fact that the Court had the opportunity to observe E. on the witness stand. Accordingly, as far as legal custody is concerned, upon review of the exhibits and testimony as recounted in summary from above, the Court is constrained to conclude that E. cannot be trusted to make important decisions for G. unfiltered by her overiding urge to reduce or eliminate R. in his life and thereby have G. more or less to herself.
In essence, E. cannot be trusted to make such decisions dispassionately, with only G.'s best interests at heart. When left to her own devices, she misused her decision making authority to trot a mentally healthy child to numerous psychological appointments clearly aimed to deprive him of a relationship with his father—a result that may have, and if allowed to recur, certainly will rob G. of his remaining childhood, as Dr. Herman feared. (H. Tr. 143–146). Nor has she hesitated to either concoct or repeat stories—such as the “butt cream” tale or other stories of alleged abuse by R.—that she did not believe herself, thereby misleading the health care professionals and the Court alike in order to further her own agenda. (See Herman Rpt., Ct. Exh. I at 8, 29; H. Tr. 77–87; T. 3869–3873). On the other hand, E. is recognized—by Dr. Herman and R. alike—as a loving and attentive parent who provides well for G. These two aspects of E.'s personality can, in this Court's view, be reconciled, but not without a major change in the custody and access paradigm.
The Court has therefore reached the following conclusions:
1. Legal custody must change. R. shall be and is awarded full legal custody, with final decision making authority, including decisions with respect to any issues involving G.'s health, medical care, education, religion and general welfare. R.'s decision making authority particularly includes, but is certainly not limited to, the decision of whether and, if so, which mental health providers are necessary or appropriate for G. In exercising his decision making authority, R. shall promptly advise E. of important decisions made, but need not consult with her or obtain her approval before acting. This protocol may appear extreme, but in light of E.'s conduct over the past several years, such measures are appropriate. By removing legal custody of G. from her, E. will no longer be armed with the authority to do as she pleases with G.'s psychological welfare and treatment to again build a meritless case to change the access and custody regimen. This change in legal custody shall take effect immediately.
2. As far as physical custody is concerned, R. is now designated as the primary custodial parent. Subject to such primacy of R., the parties will have equal access to G. on a 50/50 basis, on a one week on, one week off schedule. That is, from Sunday at 6 P.M., until the following Sunday at 6 P.M., G. will reside with R., then with E. for the following week, then R., etc. Such a schedule is a practical one in light of the fact that both parents live in close proximity—within one or two miles of each other—and in the same school district. This new schedule shall begin with G. residing with R. starting on Sunday, July 13, 2014 at 6 P.M.
3. The holiday and vacation schedule as set forth in Judge Klein's Order dated January 29, 2009 shall remain in place.
4. The remaining issues raised by the parties' respective motions, as outlined by Judge Neary's Order—namely, the division of the parties' wine and jewelry collection, the parties' responsibility for certain past medical expenses, whether child support should be modified, the possible suspension of child support payments, and attorneys fees—are referred to the Post–Judgment Part of this Court for hearing and determination. To that end, the parties are directed to appear in the Post–Judgment Part, Courtroom 1801 at 9:30 A.M. on July 28, 2014 for a scheduling conference.
5. All other relief sought by either party and not specifically disposed of herein is denied.
The foregoing constitutes the Decision and Order of this Court.