Opinion
V-17256-16
09-03-2019
In the Matter of a Proceeding under Article 6 of the Family Court Act I.S., Petitioner, v. E.C., Respondent.
Attorney for Petitioner-Father, Mr. Isidro Sanchez Law Office of Jonathan Strauss 233 Broadway, Suite 900 New York, NY 10279 By: Jonathan Strauss, Esq. Attorney for Respondent-Mother, Ms. Elcy Marlene Cortorreal Law Office of Nestor Rosado 55 Overlook Terrace, Suite 1H New York, NY 10033 By: Nestor Rosado, Esq. Attorney for Subject Child F.S. Law Office of Joseph Donohue 427 West 256th St Bronx, NY 10471 By: Joseph R. Donohue, Esq. Attorney for Subject Child A.S. Legal Aid Society 900 Sheridan Ave Bronx, NY 10451 By: Anna Blondell, Esq.
Attorney for Petitioner-Father, Mr. Isidro Sanchez Law Office of Jonathan Strauss 233 Broadway, Suite 900 New York, NY 10279 By: Jonathan Strauss, Esq. Attorney for Respondent-Mother, Ms. Elcy Marlene Cortorreal Law Office of Nestor Rosado 55 Overlook Terrace, Suite 1H New York, NY 10033 By: Nestor Rosado, Esq. Attorney for Subject Child F.S. Law Office of Joseph Donohue 427 West 256th St Bronx, NY 10471 By: Joseph R. Donohue, Esq. Attorney for Subject Child A.S. Legal Aid Society 900 Sheridan Ave Bronx, NY 10451 By: Anna Blondell, Esq. Ariel D. Chesler, J.
I. Procedural History
On July 11, 2016, petitioner-father, "Father" or "petitioner," filed a petition seeking custody of his daughter, A.S., and son, F.S. On August 2, 2016, respondent-mother, "Mother" or "respondent," filed two cross-petitions, one to modify a prior order of custody for subject child A.S. and another petition seeking custody of F.S. The trial was conducted on February 27, 2019, March 19, 2019, April 18, 2019, and May 1, 2019. Additionally, an in camera with the subject child A.S. was held on May 3, 2019. II. Underlying Family History
The parties were married in the Dominican Republic in 2004. The parents lived together in the marital home from the time the mother moved to the United States, shortly after they were married. Their first child, A.S., was born into the marriage on January 6, 2009. The parents divorced in 2011 and custody of A.S. was granted to the mother pursuant to the parties' judgment of divorce entered on or about May 27, 2011. After the divorce, the father moved to a residence close to the mother and the two maintained a sexual relationship for a short time after the divorce, resulting in the birth of their second child, F.S., on September 25, 2012. The parties never entered a formal order of custody for F.S. and at the time of the petitions' filings, the mother maintained de facto custody over him.
On September 15, 2015, the Administration for Children's Services ("ACS") filed Article 10 petitions, relating to both children, against the father based on allegations that he had sexually abused A.S. Temporary orders of protection were issued on behalf of the children which directed the father to, inter alia, stay away from them and not to communicate with them. These orders of protection were continued through June 29, 2016. During that time, the court also ordered supervised visitation to take place between the father and children.
Dr. Eileen Colette Treacy, PhD., a psychologist with an expertise in child sexual abuse, was referred by ACS to conduct an evaluation of A.S. in the spring of 2016. After meeting with the parties and interviewing A.S. three times, Dr. Treacy did not validate the child's statements of sexual abuse against the father and opined there was no evidence of sexual abuse. Following Dr. Treacy's assessment, ACS withdrew the abuse petitions against the father and they were dismissed on July 11, 2016.
Separately, a criminal investigation by the Police Department as to the sexual abuse allegations was dismissed in this same time period. III. Trial Testimony and Evidence During trial, this court heard testimony from the respondent-mother; the petitioner-father; S.S., the father's adult daughter; and two medical experts, Dr. Jillian Pino and Dr. Eileen Collette Treacy. In evidence are a 2011 Judgment of Divorce; a 2016 Order of Dismissal of dockets NA-24176-15 and NA-24177-15; a Court Ordered Investigation ("COI") report dated January 13, 2017; Comprehensive Family Service ("CFS") reports dated January 18, 2017, February 28, 2017, April 26, 2017, March 18, 2019, April 16, 2019, May 1, 2019 and June 17, 2019; a Mental Health Service ("MHS") report; Dr. Treacy's curriculum vitae; a video recording; and two photographs. Additionally, this court held an in camera of A.S. A. Mother's testimony
As to her day to day care of the children, the court generally finds the mother credible. However, regarding the alleged abuse and both her and the children's relationship with the father, the court finds her entirely incredible and inconsistent.
The children have resided exclusively with the mother for F.S.'s entire life and a majority of A.S.'s life. She has enrolled them in school and the children are honor students. The mother wants her children to succeed and encourages A.S. with her interest in art. The mother takes care of the children's daily needs, provides them clothes, brings them to school and prepares food for them. She also takes the children to the doctor and dentist. She celebrates the children's birthdays as well as holidays with them.
The mother reported to Dr. Pino that the three of them live in a three-bedroom apartment in the Bronx. The mother stays in one bedroom, the children share the second bedroom, and the third bedroom is occupied by a friend from the mother's church who helps with childcare. A.S. told the CPS reporter who prepared the COI that this friend is "like family." A.S. stated she has multiple pets at home and enjoys playing games with her brother and riding her bike. CPS reported in the COI that the children's basic needs were being met and the home environment is appropriate. As reported to Dr. Pino, the mother is currently experiencing financial difficulties. Prior to these proceedings, she had a successful independent dress designing business that she was forced to close due to time commitments and financial burdens of her court involvement. She is not currently receiving public assistance or welfare. She receives child support from the father and is financially supported by her family.
At trial, the mother testified that in January 2013, after noticing the father was not in the marital bed, she went to A.S.'s room and discovered redness and bruising around the child's vaginal area. She did not personally observe the father touch A.S. inappropriately. The mother testified that she struck the father on the head with an object and kicked the father out of the house. She neither made a police report nor took A.S. to a doctor or hospital. After this alleged incident, the mother refused to allow the father to see either of the children. The mother claimed that she had noticed A.S. was behaving nervously and would pee on herself around that time.
The mother alleged that the father returned to the home in May 2015 when the children were with a babysitter and abused A.S. again. Although she claimed she observed redness around the child's vaginal area, she did not seek medical care for A.S. but did report the incident to the police.
Regarding F.S., while the mother could not "assure" the Court that the father had abused the child, she claimed that while the father was watching the boy at some point in 2015, her "maternal instinct" made her run to F.S.'s room and she observed the father grabbing the child by the waist. However, she did not thereafter observe any injury to F.S.
The mother's petitions allege that the father is a sexual predator, however, there are inconsistencies across her petitions, her trial testimony, and her interviews with experts. In some instances, she claimed that the father had abused A.S. since she was born; at other times she alleged it was only twice. The mother could not explain why she did not immediately report the alleged abuse to law enforcement or medical professionals, and instead only reported it to her own mother until she made a report about it two years later. In addition, while she admitted having sent various threatening text messages to the father, she incredibly denied sending other related and similar text messages about which she was questioned. She also conceded that she did continually ask the father for more money because she believed he owed her $500,000 although she never went to court to enforce this purported obligation.
As to S.S., the mother concluded that the father had raped her but did not observe anything to support such a conclusion. Nor did she call the police once she believed that occurred.
The mother denied instructing A.S. to tell people that her father touched her inappropriately. However, the mother admitted having publicly called the father a rapist as well as telling a teacher at A.S.'s school that he was a rapist.
While she admitted having sent a text message in January 2015 advising the father he would not "get close" to her and the children, she denied sending a text message to him on December 14, 2014 that if he did not deposit more money in her bank account he would not see the children. The mother also admitted sending a text message to the father on November 23, 2014 that he "should be locked up." However, as to other text messages, she claimed that the father had sent them to himself.
Notably, throughout the proceedings the mother had many outbursts, and engaged in inappropriate behavior such as repeatedly attempting to show the Court photographs of A.S.'s genitalia which were not in evidence. The mother also yelled at other witnesses and called them liars. She also made bizarre statements about how her attorney had been "bought" and that the father's attorney had "hacked her phone." The Court had to give the mother repeated warnings about her behavior.
Despite all of this, the mother testified that F.S. has a good relationship with his father and that she would be willing to facilitate a relationship between the father and both children. She stated she knows the importance of children having a relationship with their father, and she has never said anything negative about the father to the children. She stated she would permit visitation but will not support unsupervised visits until the children are older and can "defend" themselves. She insisted she must "protect" her children and expressed her belief that the sexual abuse allegations were dismissed because of "manipulation." The mother stated she would not support visitation supervised by S.S., the children's half-sister, because the father "manipulates her." Even though she recognized there were no sexual abuse allegations regarding F.S., the mother believed supervised visitation was necessary for him. She believed that unsupervised visitation might be appropriate when F.S. turns twelve, which is more than five years in the future. B. Father's testimony
The court finds the father's testimony to be credible, consistent and forthcoming.
At trial, the father testified that pursuant to the parties' divorce he paid the mother $150,000. In addition, he paid more than he was obligated to pay because the mother asked him for more money. In 2013, she started making demands and threats for more money via text message. In connection with these demands, she threatened him that he'd be in jail and that "his family would visit him in jail" if he did not give her more money.
More specifically, with regard to these threats and demands, on or around November 4, 2014 the mother accused him of sexually abusing A.S. and of having raped his older daughter S.S.. Then, on November 19, 2014, she advised him that he would not have a relationship with his children after having made a demand for money. On November 23, 2014, the mother threatened that he would go to jail for having abused A.S. after making a demand for money. The father testified that, overall, the mother made such demands for money and threats "many times." In May 2015, the father was contacted by a detective regarding allegations that he sexually abused A.S. Eventually, the police dropped the case. The father denied ever having inappropriately touched either of his daughters or F.S.
According to the father, the last time he had meaningful visits with his children was in 2013 because the mother has not let him see them. At the time of trial, he had seen them between seven and ten times since 2013 — all supervised visits. He also stated that the mother often missed the supervised visits or arrived late.
The father testified that he lives in a two-family home in Paterson, New Jersey with his current wife (whom he married in 2015) and leases the first floor of this home to another family. The father testified that he has two bedrooms in his home that are appropriately furnished for both children. He has been employed by the NYC Department of Education for twenty-six years and currently serves as a bi-lingual education coordinator. As reported to Dr. Pino, the father also has a small-scale real estate business in which he buys properties and either rents them to tenants or re-sells them.
The father testified that if he were to be granted custody, he has identified appropriate school accommodations for the children. The father testified that his wife, whom the children have never met, stays at home and would supervise and care for the children while he is at work. He currently pays the mother $1,000 each month in child support. He testified that he has always paid the legally mandated amount of child support and has sometimes given more than the required amount; on occasion, the mother allegedly contacts him via text demanding more money. The father also testified that he has experience co-parenting in a joint custody arrangement, for his adult daughter, S.S., and that he has been successful in maintaining a positive relationship with S.S.'s mother. The father testified that were he to be given custody of the children, he would facilitate a relationship between the children and their mother and would be willing to alternate or share vacation and holiday time with her. He fears that if the mother were granted custody he would not have any relationship with the children. C. S.S.'s testimony
S.S., the father's adult daughter and half-sibling of the subject children, was called as a witness. The court finds S.S.'s testimony to be credible and honest. S.S. described her past relationship with the children, including having seen them on weekends with the father, and remarked that she had not seen them because the mother had prevented her from doing so. She testified that she once asked A.S. if she had seen her father lately. When A.S. told S.S. that she hadn't seen her father, S.S. asked why and A.S. responded that it was because her mother told her to tell people that her father had touched her. S.S. testified that she then took out her cell phone, began recording, and asked A.S. to repeat this information. According to S.S.'s testimony, and the video itself, A.S. also said on the video that her father has not touched her inappropriately. This cell phone video (recorded on December 14, 2014) was entered into evidence. D. Expert witness testimony: Dr. Pino & Dr. Treacy As an initial observation, the Court finds the testimony of the expert witnesses to be credible and reliable.
Dr. Treacy, an expert in developmental psychology and child sexual abuse, was referred by ACS to do a sex abuse evaluation of A.S. She interviewed A.S. in the spring of 2016 and testified that A.S.'s statements, behavior, and affect were not consistent with sexual abuse. Dr. Treacy testified that during her interview, A.S. said she likes her father, that her mother does not like her father, and that her mother and father used to have verbal altercations. A.S. spoke in vague statements to Dr. Treacy about her father possibly touching her inappropriately. She told Dr. Treacy that she did not remember it ever happening, but that her mother told her it happened while she was sleeping. Dr. Treacy testified that A.S. appeared to be non-secretive and repetitious when speaking with her, which, according to Dr. Treacy, is inconsistent with child victims of sexual trauma. Dr. Treacy also reviewed the video recorded by S.S. as part of her evaluation. Ultimately, Dr. Treacy concluded that the sexual abuse allegations were unfounded.
This Court ordered MHS evaluations of both parents and the subject children. Dr. Pino, a psychologist, reviewed the entire court file, interviewed all parties, and observed separate interactions between the children and each parent. She provided a full report and testified in court concerning her findings. Dr. Pino reported in her MHS evaluation that the father was open, non-defensive, reliable, and detailed in his answers. Dr. Pino observed anxious behavior in the father and gave a provisional diagnosis of Generalized Anxiety Disorder. Dr. Pino described the father's parenting style in his observed interaction with the children as active and educational. However, she reported that the father has not had the opportunity to build a stable and consistent relationship with his children and believes that their relationship needs to be repaired. In this regard, the father reported that due to the mother preventing him from seeing the children he had not seen them on a consistent basis for years. He became "appropriately emotional and tearful when discussing the inconsistency of visits with his children."
Dr. Pino's recommended course of treatment for the father is individual psychotherapy, focused on anxiety and stress reduction. Dr. Pino made her findings independent of Dr. Treacy's reports and agreed with Dr. Treacy's conclusions that the abuse allegations are unfounded. In the interviews with Dr. Treacy and Dr. Pino, the mother was found cooperative, albeit slightly guarded and vague. Both doctors believe she has been genuine in her allegations against the father. She stated to Dr. Pino that she has experienced feelings of depression and anxiety due to the court proceedings but that these feelings were improving over time. Dr. Pino stated in her report that while the mother struggled with self-reflection at times, she did not present as delusional. Yet, Dr. Pino also suggested that during the course of future treatment "a Delusional Disorder should be ruled out." During the observed interaction for the MHS report, the mother was calm, patient, and affectionate towards her children. Overall, Dr. Pino opined that the mother set appropriate limits with the children and the children enjoyed their time with her.
The mother told Dr. Pino she was not currently engaged in mental health treatment or counseling. Dr. Pino concluded that because of her marked distress and impairment in functioning during court involvement, the mother meets the criteria for Other Specified Anxiety Disorder, a diagnosis appropriate when symptoms do not match with a specific anxiety disorder. Dr. Pino recommended individual psychotherapy to help her cope with anxiety and family therapy with A.S. in order to help in healing the relationship between A.S. and her father.
The subject children have represented in their interviews with Dr. Pino, Dr. Treacy, and CPS that they have a happy home life in their mother's care. The COI indicates that the mother appears competent in her day-to-day care of the children and has provided them with appropriate care, food, shelter, and clothing their entire lives. The children have been healthy and happy in the mother's care. Additionally, all accounts indicate that both children have excelled in school while in their mother's care. A.S. is going into the fifth grade and F.S. is going into the second grade. A.S. stated in her COI interview that she receives a best behavior award every week at school. She stated that she enjoys math, drawing, and playing tag with her friends at recess. A.S. also states that she is an honor student and only had three absences in the last school year. F.S. stated in his interview with Dr. Pino that he is friends with everyone in his class at school and was named "Student of the Year" last year.
F.S. excitedly ran to find his father and embraced him at the start of the observed interaction. F.S. easily transitioned from playing with his mother to his father. A.S. greeted her father but was tentative about the visit. Eventually, she joined F.S. and her father to play a board game and dominoes and remained calm and engaged throughout the remainder of the session. Both children hugged their father goodbye at the end of the interaction.
In her interview with Dr. Pino, A.S. became uncomfortable and sad when asked to discuss how it felt to play with her father during the interaction observation. When asked about whether she wanted more visits with her father she responded, "I don't know." Her mood improved when discussing school and her pets. F.S. reported that he enjoyed the interactions with both his mother and his father and is looking forward to more visits with his father. Dr. Pino recommended therapeutic supervised visitation between A.S. and the father so they can develop a safe, comfortable, and healthy relationship. She noted that the repair of the relationship may be a gradual and prolonged process. She also recommended that A.S resume psychotherapy. E. CFS Reports
The jurist previously assigned to this case initially ordered supervised visitation through CFS on October 31, 2016. However, following intake sessions, only one observed interaction took place between the father and children in 2016 — on December 17, 2016. The mother and A.S. expressed A.S.'s desire not to see her father. The mother stated she believed the father should not have visits and remarked she was "unsure if she was going to produce the child" for visits. In any event, A.S. was produced more than an hour late for the December 17, 2016 interaction. A.S was distant and did not make eye contact with her father at that meeting. Yet, it also appeared she was stifling smiles and grins and eventually gave her father a hug.
The mother, thereafter, repeatedly advised CFS that she believed the father should not have visits, and then failed to appear for an appointment on January 14, 2017 until near the end time for the session. On January 31, 2017, the mother notified CFS that she would not comply with the Court's directive to continue with supervised visits and would not "traumatize" her daughter with more visits.
Two visits took place in April 2017 during which A.S. was distant and reluctant to visit with her father. However, she eventually smiled, accepted gifts and hugs from her father, conversed with him and read books with him.
Despite the Court having ordered continued supervised visits, it appears no such visits took place between April 2017 and March 2019 until they were re-ordered by the Court on February 27, 2019. Commencing March 28, 2019, both children were produced for supervised visits.
While A.S. exhibited some difficulty transitioning from her mother for the first few visits, and expressed a desire not to continue the visits, both children ultimately accepted their father's affection without resistance, accepted gifts, conversed and played games with him. The social worker observing the interactions noted that the children and father share an established bond and attachment and that the children engaged freely and positively with their father. Additional visits in April 2019 went more smoothly with both children separating from their mother without difficulty and again engaging positively with their father, and even expressing disappointment when the visits came to an end. Despite the mother's report to CFS that A.S. did not want to visit, the social worker noted no difficulty by A.S. in separating from her mother and remarked that both children appeared to enjoy the visits.
Visits in May and June 2019 continued in a positive fashion, although it should be noted that the mother cancelled one visit in that time period and appeared late for multiple visits. Throughout these visits, the children exhibited relaxed body language, laughter and active engagement, told their father they love him, and expressed sadness when the visits came to an end. On May 29, 2019, the children arrived nearly one hour after the scheduled start time and were advised the visit had been cancelled at which point A.S. began to cry. Ultimately, the visit was held on that date and the children were happy to see the father and exhibited affection towards him. Despite the positive nature of the visits, the mother continued to report to CFS that A.S. did not want to go to the visits. CFS visits have been ordered to continue post-trial. IV. Discussion and Decision A. Custody
The mother's written summation argues she should be granted sole custody and the father given supervised visitation. In contrast, the father's summation asserts the mother has alienated him from the children and is, thus, not fit to maintain custody of the children and that custody of the children should instead be transferred to the father. While A.S.'s attorney expressed A.S.'s desire that her mother maintain custody of her, A.S.'s attorney did not take a position regarding visitation with the father. F.S.'s attorney did not take a position regarding custody but strongly argued in favor of continued visits between F.S. and his father, graduating to unsupervised and liberal visitation.
Regarding custody of A.S., a petition to modify an existing order requires a two-part inquiry. The first or "controlling 'material fact' is whether or not there is a change in circumstances so as to warrant an inquiry into whether the best interests of the children would be served by modifying the existing custody arrangement." (Robert OO. v. Sherrell PP., 143 AD3d 1083, 1084 [3d Dept 2016]; see also Sergei P. v. Sofia M., 44 AD3d 490 [1st Dept 2007]). Once a change in circumstances has been demonstrated, "the parent then must show that modification of the underlying order is necessary to ensure the child's continued best interests." (Matter of Menhennett v Bixby, 132 AD3d 1177, 1179 [3d Dept 2015]; see also Christopher H. v. Taiesha R., 166 AD3d 548 [1st Dept 2018]).
Although none of the parties argue the modification standard, it is clear to this Court that there has been a substantial change in circumstances in that the abuse allegations, the interference in the father-child relationship by the mother, and the resulting separation and distance between the father and children drastically altered their relationship. Indeed, "[e]vidence of interference by the custodial parent in the relationship between the subject child and non-custodial parent, can also constitute a change in circumstances sufficient to modify an existing order." (Matter of E.S. v SS., 63 Misc 2d 1206(A) at *6 [Family Court, NY, Bronx County 2019]). Thus, with regard to both children the Court will proceed to the best interest standard and a consideration of the totality of circumstances.
No parent has a prima facie right to custody over another parent and custody awards must be based only on the child's best interests and in promotion of the child's health and happiness. (Domestic Relations Law §70[a]). No one factor is determinative of custody; rather, the Court is required to consider the totality of the circumstances. Among the factors to be considered are the respective ages of the children, the financial circumstances, the home environment of each parent, the parental fitness of each parent, the preferences of the children, and a goal of keeping siblings together. (See Eschbach v. Eschbach, 56 NY2d 167, 172 [1982]). When applicable, the Court must also consider the length of time of any prior custodial arrangement and ensure stability for the children. (See Friederwitzer v. Friederwitzer, 55 NY2d 89, 94 [1982]).
Furthermore, any parent who is awarded custody must be willing to facilitate a relationship between the children and the noncustodial parent. (See Matter of James Joseph M. v. Rosana R., 32 AD3d 725, 726 [1st Dept 2006]; Lohmiller v. Lohmiller, 140 AD2d 497, 498 [2d Dept 1988]). In fact, some courts have found that an unwillingness to facilitate that relationship is "an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the [parent] is unfit to act as a custodial parent." (See Entwistle v. Entwistle, 61 AD2d 380, 384 [2d Dept 1978]. Some courts have found the single act of a false allegation of sexual abuse by one parent against the other parent can be so egregious and damaging to the children that it, alone, may warrant a change in custody. (See, e.g., David K. v. Iris K., 276 AD2d 421, 422 [1st Dept 2000]). However, false allegations of sexual abuse do not warrant an automatic change in custody. (See John A. v. Bridget M., 16 AD3d 324 [1st Dept 2005], lv denied 5 NY3d 710 [2005]). Rather than a per se rule, a custodial parent's interference with the relationship between a child and noncustodial parent "constitutes one fact, albeit an important one, in determining the best interests of the children . . . a failure to adequately consider all the pertinent information may result in a change of custody that, despite the custodial parent's misconduct, is not in the best interests of the children." (Id. at 336 [Saxe, J. concurring]).
Here, despite the mother's sexual abuse allegations ultimately being unfounded, as both doctors testified, the mother continues to genuinely believe that the father abused A.S. As a result of this belief, the mother has compromised the relationship between the children and their father. Given this genuine belief, and the possibility of a delusional disorder as referenced by Dr. Pino, this Court questions whether it is right to grant custody to the father on this factor alone. As in John A., there is the "possibility that [the mother] could have sincerely, even if irrationally, believed that the father constituted a danger to the children." (Id. at 337 [Saxe, J. concurring]).
Although the harm done to the children by the separation from their father is certainly great, removing the children from their mother may serve as more of a punishment for their mother's behavior rather than a promotion of their best interest. (Matter of John A. v. Bridget M., 16 AD3d at 337 [Saxe, J. concurring]). To the contrary, this Court is concerned that removing the children from their mother's custody would result in further traumatization and would thus not be in their best interest. "An award of custody, especially when it is a removal of custody from a parent with whom the children are closely bonded, should not result from one discrete fact, but requires a weighing of all relevant factors and a determination that the new award will be in the children's best interests." (Id. [emphasis in original]).
A review of the other relevant factors bears this out. In considering the totality of the circumstances, the court considers the fact that the children have resided with the mother their entire lives including the six years they have spent having little to no contact with their father. As to A.S., the parties divorce judgment provided that the mother would have custody and be the primary caretaker and the Court gives some weight to the prior agreement which has been in place since 2011. Since the parties' divorce, the mother has also served as a competent primary caretaker as evidenced, among other things, by the fact that the children excel in school. A related factor is thus that the quality of the mother's home environment appears to be positive and nurturing for the children.
Both parties appear to be generally able parents with homes both appropriate and supportive for the children. As to relative financial circumstances, it appears the father is more financially stable. However, the Court does not place great significance on the parties' relative finances.
Another factor the Court considers is that a change in custody would be extremely disruptive to the children's lives. Their home has always been with the mother and changing custody would take them away from their school, friends, pets and daily life as they have known it. Therefore, the factor of stability weighs against a change in custody. Indeed, a transfer of custody to the father would be far more traumatic for the children than remaining in the mother's care. A.S. lived in the same residence as her father only from her birth until age four. F.S. has never lived in a home with his father. Were custody to be granted to the father, the children would be placed in the home of the father, someone with whom they have had only intermittent — albeit positive —interactions, and their step-mother, a stranger they have never met. Their time with their mother would be limited to visitation, which would be confusing and upsetting.
Further, A.S. has expressed through her attorney a desire to remain in her mother's custody. CPS reported that F.S. appeared happy, active, and very attached to his mother. While not determinative, the expressed wishes of A.S. are significant, and the Court has given consideration to her age and maturity as well as her demeanor during the in camera proceeding. Given the position of A.S. and the other factors, which weigh against a transfer of custody, the Court also notes that it would not be in the best interests of the children to split them as they have a strong bond with one another and it would be in their best interests to continue living together.
Fortunately, the evidence also establishes that despite the separation and the mother's interference with the relationship, the father and children share a bond that can be repaired and strengthened. Thus, despite the mother undermining the relationship the children appear to have a warm attachment to the father.
Having rejected the claims of sexual abuse, the Court considers whether the mother "can become reconciled to the children's relationship" (John A., 16 AD3d at 339) with the father. The mother recognized the significance of the children having a relationship with their father and declared that she would facilitate that relationship, albeit with certain limitations. While the Court has reservations - given the mother's track record of not complying with court ordered visitation — it is also noted that the mother has more consistently complied with Court ordered supervised visitation since March 2019. Therefore, it is the opinion of the Court that with appropriate therapeutic assistance and treatment, the mother will better fulfill her obligations as a custodial parent.
Based on the totality of the circumstances, the mother is granted sole physical and legal custody. This custody award is in no way meant to reward the mother. Despite her egregious, reprehensible behavior, it is in the children's best interest to remain in her custody. While attending counseling or mental health treatment cannot be a condition for obtaining visitation rights, the Court has the authority to direct a parent to participate in psychological treatment as a component of a custody order. (See Matter of John A. v. Bridget M., 16 AD3d at 331). An order of probation outlining mandatory participation in therapeutic programs is authorized pursuant to Family Court Act §656 and the Court adopts the recommendations of Dr. Pino regarding the mother's need for treatment. Accordingly, sole physical and legal custody are granted to the mother, subject to an order of probation that she attends individual psychotherapy to help her cope with anxiety and family therapy with A.S. in order to help in healing the relationship between A.S. and her father and to assist the mother in understanding A.S.'s needs, comply with visitation orders, and ceases disparagement of the father. (See also Jamel W. v. Stacey J., 136 AD3d 552 [1st Dept 2016]).
As this family moves forward, it is critical that the relationship between the subject children and their father be healed, and it is the mother's responsibility as the custodial parent to encourage, foster and facilitate that healing. (See Alvarez v. Alvarez, 114 AD3d 889, 980 [2d Dept 2014]. In fact, "[o]ne of the primary responsibilities of a custodial parent is to assure meaningful contact between the children and the other parent." (Matter of Raybin v Raybin, 205 AD2d 918, 921 [3d Dept 1994]). In this regard, the Court has concerns based on the mother's pattern of noncompliance with court-ordered supervised visitation. However, it should be emphasized that the issue of custody can be revisited if she continues to alienate the children from their father and violate any court ordered visitation. (John A., 16 AD3d at 335; see also Victor L. v. Darlene L., 251 AD2d 178, 179 [1st Dept 1998]). "It is in the mother's power to maintain custody by refraining from further abuse of her power as the custodial parent." (John A., 16 AD3d at 335 [Tom, J. P. and Friedman, J., concurring]). B. Visitation
It is well settled that non-custodial parents have a right to visitation with their children, that such visitation is a joint right of the noncustodial parent and children, and that the noncustodial parent plays a valuable role in guiding and loving their children. (See Weiss v. Weiss, 52 NY2d 170, 175 [1981]). F.S.'s attorney advocates for continued visits with his father graduating to unsupervised and liberal visits. F.S.'s attorney also suggests that both children visit with their father together. A.S.'s attorney takes no specific position regarding visitation.
The evidence establishes that the children and father share a bond, and that despite everything that has occurred, the children exhibit resilience and a love for their father. Once supervised visits became more consistent it was evident both children enjoyed their time with their father and benefit from having him in their lives.
The welfare of the children, which is paramount, requires more visitation and contact with their father who will play a significant and meaningful role in their lives going forward. Indeed, as is demonstrated by the recent CFS reports, the more regular contact that occurs between the father and his children the more their relationship has improved. The CFS reports show that the children look forward to the visits, exhibit no trouble separating from their mother, enjoy their time with their father, show him affection and receive love from him, are upset when the visits end and, more so, at the prospect of lost visits. Time with their father is both meaningful and beneficial to the children.
As previously noted, Dr. Pino recommended therapeutic supervised visitation between A.S. and the father so they can develop a safe, comfortable, and healthy relationship and repair the rupture in their relationship. Dr. Pino stressed that the father should develop realistic ideas about reunification with A.S. She noted that the repair of the relationship may be a gradual and prolonged process. On the other hand, no similar therapeutic visits are recommended for F.S.
While the Court accepts Dr. Pino's conclusion that the repair of the relationship between the father and A.S. will take time, and that therapeutic visits between A.S. and the father would be appropriate, the Court declines to order only supervised visitation between the father and his children at this time. Supervised visitation has already been taking place between the father and children since March 2019 and has gone very well. Nor is there any asserted need for therapeutic visits for F.S.
Moreover, it is noted that supervised visitation was initially ordered in 2016 and the father's relationship with his children would be in a very different posture in 2019 had such visits been regularly held between 2017 and 2019. This Court will not reward the mother's noncompliance with Court ordered visitation by further delaying reunification between the father and his children.
The proper course of action to restore the children's relationship with their father is therapeutic visits between the father and A.S., and, in light of all the circumstances in this case, unsupervised time for the father with both children. Ultimately, the children should have a visitation schedule with the father which will graduate to liberal and unsupervised parenting time.
Accordingly, the Court orders A.S. to enroll in weekly therapeutic visitation with the father through Comprehensive Family Services. In addition, commencing September 8, 2019 the father shall have unsupervised visitation with both children on alternate Sundays from 10 AM until 4 PM until further order of the Court. The father shall also have phone access with the children every Tuesday and Thursday evening. The parties may modify this schedule on mutual consent in writing.
It is the order of the Court that visitation between the father and the children must continue and expand toward liberal, unsupervised and overnight visits, as well as vacation, holiday, and summer access. All counsel are to submit to the Court proposed visitation schedules, accounting for a graduated schedule toward liberal overnight parenting time of both children with their father. Accordingly, it is
ORDERED that the mother's petitions, V-19204-16 and V-19201-16/16A, are granted; and it is further
ORDERED that the father's petitions, V-17256-16 and V-17255-16/16A, are denied; and it is further
ORDERED that mother is granted a final order of physical and legal custody of both children; and it is further
ORDERED that a final order of visitation is awarded to the father of both children; and it is further
ORDERED that A.S. shall be enrolled in weekly therapeutic visitation with the father through Comprehensive Family Services, with costs to be shared 50/50 between the parents; and it is further
ORDERED that, pursuant to FCA §656, the mother shall attend individual psychotherapy, family therapy with A.S., comply with all court ordered visitation, and cease disparagement of the father; and it is further
ORDERED that commencing September 8, 2019, the father shall have unsupervised visitation with both children on alternate Sundays from 10 AM until 4 PM until further order of the Court. The father shall also have phone access with the children every Tuesday and Thursday evening; and it is further
ORDERED that, within 45 days, counsel shall submit to the Court proposed visitation schedules, accounting for a graduated schedule toward liberal overnight parenting time of both children with their father.
This constitutes the decision and order of the court. Dated: September 3, 2019 Bronx, NY ENTERED: __________ ARIEL D. CHESLER, J.F.C.