Opinion
202042/2011
07-17-2015
Temmi Kramer, Plaintiff, v. David Kramer, Defendant.
"The conflict in this family is at a high frequency, at a high intensity and of longstanding duration." This description by Dr. Peter Favaro, the court-appointed forensic, best describes the circumstances of the Kramer family and this long-standing divorce battle, which makes its movie namesake seem like a snowball fight. The defendant, David Kramer ("Husband"), claims that the plaintiff, Temmi Kramer ("Wife"), has turned three of his four children against him with designs on the fourth, the parties' youngest. Wife, in turn, alleges that Husband is a deadbeat dad trying to "starve" her and her family by purposely reducing his income and pleading poverty. Both, in important respects, are correct. Add to this toxic mix the active support and assistance each is getting from their respective fathers, children who now despise their father, and Wife's paranoia, the result is family dysfunction to a degree rarely seen, even by the most experienced matrimonial practitioners and forensic psychologists such as Dr. Favaro.
It is within this framework that this court must determine custody of three of the parties' children, the fourth (KK) being 19 years old. JK, who just turned 15 and ZK, who will soon turn 17, have by deeds and words vociferously proclaimed their hatred of their father and their preference to live with their mother—if they had their druthers they would not see their father again. RK, soon to be 11, has also recently expressed hostility toward her father, a new development given her professed affection for both her mother and father throughout nearly this entire action.
Since KK is now more than 18 years old the issue of primary residential custody for him is academic. DelGaudio v. DelGaudio, 126 AD3d 848 (2015).
This action was commenced in July 2011. A custody trial was held over twelve days beginning on May 19, 2014 and initially ending on December 2, 2014. During the course of the trial both Husband and Wife changed counsel, thus causing delays, although the parties and their counsel were regular visitors to the courthouse fighting various battles throughout this action. Eight different law firms have represented Wife during the course of this action. Husband was represented by three firms—one of them at two separate times. The parties lived together in the marital residence until January 2015, when Husband moved out after being ordered to do so by this court. A visitation schedule was put in place and on April 9, 2015, the court heard additional testimony from the parties on the custody issue in light of the parties' separation. The parties submitted post-trial memoranda on May 29, 2015.
The trial of this action initially commenced before the Honorable Stacy D. Bennett. On June 10, 2013, however, following a change of counsel by Wife, Justice Bennett recused herself and the matter was re-assigned to this court. A mistrial was declared on consent and both counsel requested time for additional discovery and to attempt to settle this action. Following one more change of counsel for Wife, the appointment of custody counsel on her behalf and a change of counsel for Husband, the trial finally commenced anew.
The court has reviewed, considered and evaluated the witnesses' testimony, the parties' arguments and the documentary evidence in rendering this decision. The court has relied upon its personal observation of each witness in determining credibility. In reaching its conclusions, the court has carefully observed and listened to the witnesses during their testimony and has evaluated all evidence in light of its relevance, materiality, credibility, importance and weight.
BACKGROUND
The parties were married in 1992 and for most of their marriage lived at the marital residence located in Lawrence, New York.
Husband, a 1992 New York University graduate, has worked since the time of the marriage as a construction supervisor for two renovation/construction companies formed and controlled by his father. Husband stated at the commencement of this action that he was earning $360,000 plus distributions annually (he earned $435,000 from his employment in 2010, including bonus). His work schedule throughout the marriage generally found Husband leaving the house at 8:30 a.m. and returning home between 3:30 to 5:00 p.m.
At the time of the parties' marriage Wife was not working but completing her master's degree in early childhood education at Bank Street Graduate School of Education (she went on to receive her degree in 1995). Wife is a graduate of Stern College for Women of Yeshiva University (majoring in marketing and advertising) and has an associate's degree from the Fashion Institute of Technology.
Wife worked for the Hebrew Academy of the Five Towns and Rockaway (HAFTR), a private Modern Orthodox Jewish school, as an assistant teacher and then a teacher. She left while pregnant with KK. Wife never returned to full-time teaching duties at HAFTR but mostly stayed home to raise the parties' children. For a period of time, Wife worked part-time as a substitute teacher at HAFTR and, when this action was commenced, Wife was working for New York Fun Factory booking and coordinating parties and events.
The parties are Orthodox Jews and have raised their children to be as well. All of their children have attended HAFTR for their entire primary and secondary education.
Up until the commencement of this action both parents had a good relationship with their children, with Wife being their primary caretaker throughout most of the marriage. Husband was also an active father, coaching his son's hockey teams, helping with homework, getting the kids ready for school and attending doctor visits. The parties had a housekeeper who assisted them by, among other things, getting the children from the bus after school and cooking dinner.
THE COMMENCEMENT OF THIS ACTION
In April 2011, Wife moved out of the marital bedroom and informed Husband she wanted a divorce. Shortly thereafter communication between the parties shifted primarily to emails and texts. That summer the boys went to sleep-away camp. In July 2011 Wife filed this action.
At the time the action was commenced Wife brought a pendente lite application seeking, among other things, temporary sole custody of the children, maintenance, and exclusive occupancy. Wife complained that Husband was not providing her with enough money to run the household. Specifically, Wife alleged in her supporting affidavit that Husband emptied the parties' joint bank accounts, cut off her use of credit cards and reduced his "former support for me and the children."
In her application Wife also sought an order requiring Husband to pay all of the expenses of ZK's upcoming bar mitzvah, scheduled for September 3, 2011. Husband wanted to avoid the expense of a massive party similar to the one previously held for KK (approximately $85,000). Wife alleged that Husband "stole" the invitations to ZK's bar mitzvah so they could not be mailed out:
I pleaded with him to return them and not punish our son's happiness because of our marital problems. I begged him especially not to upset [ZK] before he left for sleep-away summer camp .ZK has been inquiring daily about [their] return .ZK left for camp in tears and called me from the bus questioning if he would have a bar mitzvah at all and expressed his distress with his father's actions.
Wife also asserted that Husband was attempting to wiretap Wife's conversations, had cameras installed in the home and hired agents to conduct surveillance. She asserted that RK, not yet 7 years old, was "petrified of the agents that come and photograph the home and do surveillance."
At trial, Wife denied that she told ZK that Husband had taken the invitations and wouldn't give them back; she claims he observed that they were missing and she told ZK that Husband had them but she hoped to work things out.
Husband filed a cross-motion to Wife's pendente lite application seeking, among other things, temporary custody of the children and asserting that Wife is "unstable and suffers from one or more undiagnosed mental illnesses." (And away we go .)
In response, Wife foreshadowed the parental alienation to come: "I am in no way alienating RK, or any of the children, from [Husband]. Any feelings the children have towards [Husband] is solely due to [his] actions, or lack of actions ."
While the initial Order to Show Cause was still pending, Wife brought a second application in August 2011 for support and an order requiring Husband to pay the bar mitzvah bills for ZK.
The parties entered into a stipulation on August 26, 2011 whereby Husband agreed to advance $30,000 for various expenses associated with ZK's bar mitzvah and the party.
In August 2011, at the parties' request, John Zenir, Esq. was appointed as Attorney for the Children. A separate attorney for the boys was appointed in December 2013 upon Wife's application and on consent of Mr. Zenir after it became clear that the boys no longer wanted Mr. Zenir to represent them.
On February 23, 2012, a pendente lite decision was issued and, on Husband's consent, he was ordered to pay various household expenses including the carrying charges on the marital residence, private school tuition, summer camp, extra-curricular activities, an account for kosher groceries, and the children's clothing. The annual estimated cost of all of the expenses was $265,743. In addition, Husband was ordered to pay to Wife $2,000 each month as temporary maintenance and $10,000 towards Wife's counsel fees.
A FAMILY IN CRISIS
When the boys returned home in 2011 from sleep-away camp, where they learned that their parents were divorcing, their attitudes toward their father began to change for the worse. The Kramer family entered into a long, dark, downward spiral that accelerated throughout 2011 and 2012. The Kramers have not recovered. A roughly chronological summary of pertinent events follows.
In September 2011, Dr. Peter Favaro was appointed as the forensic in this matter. The parties were ordered to fully cooperate with Dr. Favaro. Dr. Favaro initially reported that his evaluation proceeded slowly mainly due to Wife's failure to appear for sessions due to her claimed unavailability.
Although it became clear that the boys were in need of therapy as a result of the high-conflict divorce, the parties could not agree on a therapist for them. Wife hoped to avoid such therapy. The parties finally agreed in late November to let Dr. Favaro select a therapist so that therapy for the children could begin "as soon as possible." Dr. Annette Szafranski was selected. Dr. Szafranski saw the children on an inconsistent basis for several sessions.
In the meantime, Husband's relationship with his sons deteriorated. For example, Husband offered to assist driving the children to school. Wife spurned his assistance, stating "[T]he children indicated to you several times that they prefer that I drive them."
During the fall and into the winter of 2011, on several occasions Wife called the police against Husband for various alleged transgressions.
On December 2, 2011, Wife filed a Family Offense Petition against Husband seeking a "stay away" order of protection and sole custody of the children. The petition was primarily based on Wife's allegations that Husband stole her car that day requiring her to call the police who, she claimed, directed Husband to return the car. Wife asserted that the car's lease expired the next day (Husband correctly asserted the lease had already expired and Wife refused to return the car) and Wife alleged that Husband wanted to remove "recording devices and [a GPS] he had in the car" before it was turned in. Wife also alleged Husband had been following her since June 2011. An Ex Parte Temporary Order of Protection requiring Husband to refrain from stalking, assaulting and committing other types of misconduct directed towards Wife was issued that day. The Family Court proceeding was removed and consolidated with this action by a so-ordered stipulation dated March 9, 2012. On June 8, 2012, Justice Stacy Bennett renewed the Temporary Order of Protection on consent through September 2013, when it expired.
Based upon Husband's allegations that Wife was interfering with his ability to parent the children and alienating them from him, the court in March 2012 implemented a parallel parenting schedule upon Husband's application. Pursuant to the schedule, the parties were directed to divide the time each would primarily be responsible for the children while remaining in the same home (e.g., Husband was responsible for the children from breakfast to bedtime on Mondays and Wednesdays, Wife on Tuesdays and Thursdays, with alternating weekends for each).
From late 2011 through 2012 there were various reports to and investigations by Child Protective Services of Nassau County (CPS) concerning allegations against Husband. All were determined to be unfounded. Wife admitted to making at least one of these calls to CPS in April 2012 when Wife observed that RK's inner thighs were red after Husband had a few days of exclusive parenting time with RK. RK could not explain to her mother the source of the redness and did not want to go to the doctor. Wife testified that she asked RK whether anyone was "near" her legs, took a photograph of RK's crotch area and sent it in an email to the doctor, Zenir, Husband and Wife's counsel. Wife's counsel also sent an email to Husband's counsel (copying Zenir) stating that Wife "hopes that the bruises were sustained by RK as a result of her bike riding and that no foul play is involved," clearly insinuating that Wife believed that Husband was capable of sexually molesting his then seven year old daughter (as further evidenced by Wife's call to CPS).
On March 16, 2012, a Parenting Coordinator was appointed for the parties on consent. The Parenting Coordinator had no effect and his availability as an aide to mollify disputes was never seriously given a chance.
Also in March 2012, Mr. Zenir reported to the court that three of his clients (presumably the boys) were representing that Husband was mistreating them. He requested a court-ordered investigation by CPS.
Thereafter, there were monthly and at times weekly court appearances through the spring of 2012, two of which included Dr. Favaro. By June 1, 2012, Husband was complaining that all three of his boys were exhibiting blatant disrespect of him and physically abusing and assaulting him. He asserted that he was "pushed, slapped, punched kicked and spit at" by his sons. Husband asserted that on one occasion in March his son JK "jimmied" open a bathroom door while Husband was sitting on the toilet and urinated on the bathroom mat in front of him when Husband refused his demands to exit the bathroom.
Husband also alleged that, in May 2012, KK packed Husband's belongings in a suitcase and left them by the front door. Later that day, ZK and JK attempted to vandalize Husband's car by jumping on it and sought to pry a door from its hinges after he yelled at them to stop playing basketball (Husband's car was located under the basket). When Husband tried to stop them the boys called the police, resulting in four patrol cars appearing at the residence (nothing further occurred apart from Husband filling out a police report).
Husband attempted to gain control of his children by punishing them—taking away television, internet privileges, not allowing them to go to hockey practice—but these attempts only served to fuel the flames. Wife did nothing to support Husband or his discipline and Husband claimed she tried to assist the children in circumventing the punishments.
On June 1, 2012, Dr Favaro issued a report in which he stated, "Chaos continues to typify family interaction." Two weeks later, in a follow-up report, Dr. Favaro stated that ZK and JK are "showing signs of moderate to severe conduct disorder." He described as unhelpful Wife's attitude towards discipline, which was: "If I wasn't there to see it, I am not going to do anything about it."
On June 8, 2012, Justice Bennett was so alarmed by the children's behavior that she issued an order directing that the parties and their children be examined by a psychologist at Nassau University Medical Center.
Wife brought a Family Court proceeding against Husband' brother-in-law, Michael Korff, on or about June 11, 2012. She alleged that Mr. Korff entered the parties' home and grabbed and hurt JK and ZK. She claimed that he had hurt and terrorized them three different times and she obtained an Ex Parte Temporary Order of Protection requiring Mr. Korff to stay away from the marital residence and refrain from assaulting and committing other offenses against Wife and the children. In November 2012, the Petition was withdrawn and therefore dismissed.
In a July 2012 report, Dr. Favaro described the boys' relationship with their father as "toxic." He states that Husband discussed a July episode in which he had to telephone the police because the boys were hurting RK. Husband and his sons had a pushing match as Husband tried to keep the boys away from RK by closing her bedroom door. ZK ripped the door off its hinge. Dr. Favaro reported that ZK and JK were critical of their father because he would not buy the family food or the clothing they wanted. ZK told Dr. Favaro that he hated his father and, when asked, said that if his mother would get the house and the money he would push a button to make his father die. Dr. Favaro again stated that Wife's failure to dissuade the children from their aggressive behavior towards Husband and her failure to impose consequences for their misconduct enabled such misbehavior.
In September 2012, Husband reported that ZK on two occasions hit him repeatedly and with such force that it caused severe bruising on his arms. He has the photos to prove it. Dr. Favaro became concerned that ZK was a danger to himself or Husband and that an in-patient evaluation of ZK was warranted.
On October 4, 2012, the parties agreed to have ZK evaluated on an out-patient basis at a mental health clinic. Justice Bennett met with the boys and directed them to respect their parents and observe the rules of the household. She sternly warned ZK and JK that if their misbehavior continued there would be severe consequences.
Thereafter, the boys' more violent and rowdy behavior was curtailed. Their disrespect and hatred towards their father was not. RK's feelings toward her father continued to be neutral: she loved both her parents.
The therapy provided by Dr. Szafranski for the boys terminated in May 2013. Wife became unhappy when she learned that Dr. Szafranski had seen Husband and ZK together without her knowledge. The boys did not want to attend therapy and Wife stated she could not and would not force them to go. The boys refused to get in a car with Husband so he was unable to take them. Therapy for RK terminated several months later at Wife's direction against Dr. Szafranski's advice.
Efforts by Husband to obtain another therapist for the children were unsuccessful. Although this court ordered in December 2013 that RK's therapy with Dr. Szafranski recommence and that a new therapist be selected, this did not happen. Dr. Szafranski refused to treat RK unless and until Wife gave her approval, which she initially refused to do. This court ordered her to provide written approval on January 9, 2014. Nonetheless, Dr. Szafranski still has not met with RK. This court finds that the children are not in therapy because Wife does not wish them to go.
Husband continued to complain that Wife was interfering with his parenting time by her presence. Husband claimed that Wife interfered with his desire to drive the children to school and after-school activities, by leaving meals for them, and that her negative presence was impacting Husband's ability to repair his relationship with the children. In December 2013, upon Mr. Zenir's application, this court ordered that the parent who did not have parenting time according to the court's schedule absent themselves from the home.
Thereafter, Husband complained that Wife and the children were texting and emailing incessantly during Husband's parenting time. One such email exchange occurred between Wife and KK as Husband was taking KK shopping for clothes. KK picked the stores to which he wanted to go (as Wife instructed him to do) but Wife wanted KK to go to J. Crew, not J.C. Penney. ""Don't be fooled by him," Wife texted KK. "Stop he is trying to make you look sill[y;] kids will laugh at u." All communications between Wife and the children during Husband's parenting time were ordered to cease. Nonetheless, the boys' hatred of their father continued unabated; they occasionally ran away; and they often disrespected or disobeyed him. His efforts at discipline, unsupported by Wife, continued to have no positive effect.
Only one more episode in this unhappy tale bears repeating, because of Wife's role. In December 2013, Husband punished the boys for some transgression by taking away their hockey equipment so they could not practice with their team. This struck a nerve because of the boys' love of hockey. They determined to file a police report against their father for "stealing" their equipment. Wife drove them (KK and JK) to the police station, brought along RK for good measure, and went into the precinct house with them. KK, JK and Wife were questioned by the police and Wife signed a statement. She never discussed with Husband his punishment before assisting his children in filing the complaint against him.
WIFE'S FAILURE TO FOSTER A POSITIVE RELATIONSHIP BETWEEN THE CHILDREN AND THEIR FATHER
Wife's attitude concerning the children's relationship with their father is symbolized by the assistance she provided them in filing a criminal complaint against him. Little more needs to be said, but a few more anecdotes are worth noting:
The children's telephone numbers were changed by Wife in 2012, without alerting Husband or providing him with the new numbers. In March 2012, Wife's counsel provided the numbers to Husband's counsel, remarking in an email that it was "sad" that Husband could not simply ask the children for their numbers. Tauntingly, she added: "Is it because the children do not want their father to have their cell phone numbers?"
Dr. Szafranski was attempting to reconcile the boys with their father. Wife stopped bringing the boys to Dr. Szafranski. Wife explained in her testimony that this was because Dr. Szafranski allegedly "engaged in unethical behavior," "is not a competent therapist" and because the boys and RK "have not gotten any better with her "two years of garbage."
Wife discussed with the boys the alleged surveillance by Husband, which this court finds not to have occurred.
As discussed below, neither ZK nor JK have visited with their father since he vacated the marital residence notwithstanding this court's order of visitation. When asked at trial why, Wife explained that they did not want to visit with their father and, referring to ZK, stated:
I did the best I could to encourage him. My relationship with my child—because he [Husband] can't have one with his child is not my responsibility. I did what I could, judge. I can't pick him up; he is heavier than me, I can't physically put him into a car and say go .I should lose my relationship with my child because this man can't give him water, shut off the electric, can't give him five cents to get him pizza? I should lose my relationship and be his communicator?
As to JK, Wife testified that Husband upset him by failing to pick him up at school for his first weekend of visitation. But Husband had communicated to Wife that he was going to pick the children up at home. Nonetheless, she told JK and ZK to wait at school for their father to pick them up, knowing he wasn't going to show.
Wife did not deny that she said to Husband in 2012 in front of the children: "Remember, money can't buy you love. Get out of the house, we don't want you here." She also did not deny that on other occasions, in front of one or more of the children, Wife said to Husband "nobody wants you here; RK doesn't want her father, accept it."
THE BOYS' RELATIONSHIP WITH HUSBAND'S
FAMILY
Of particular concern to the court is the manner in which the boys have lashed out not only at Husband, but his entire family, including the children's paternal grandparents, aunts and uncles. Wife has argued that Husband is to blame for the boys' attitude towards him: he was absent, uncaring, yelled at them and awkward with discipline, she asserts. The boys observe and know, she says, that Husband has not been meeting the family's needs financially. Assuming all of this is true (which, of course, does not excuse their conduct), how does one explain the boys' vile behavior towards their paternal relatives? Two examples:
The parties' family and that of Husband's sister, Barbara Korff, were very close prior to the initiation of the divorce. The parties' children often spent time in their aunt and uncle's home, which is around the corner from their house. As Ms. Korff described it, the two families (who vacationed together) would freely go in and out of each other's homes—doors always open, no boundaries. She described her relationship with all of the Kramer children as close and "amazing."
Things changed when the boys returned from summer camp in 2011. ZK, Ms. Korff testified, was totally different, very stoic, and he stopped coming over to the house except for once or twice. Her relationship with him is now strained. Her relationship with KK changed as well and he stopped visiting as much. She has barely seen JK.
During one police visit to the marital residence in October 2011, the Korffs came over. All of the children ignored their aunt and uncle. Barbara Korff points to this incident as a milestone: the relationship among her and her nephews was never the same.
Example No. 2: In May 2012, Husband's parents came to the marital residence to babysit. ZK and JK locked the door and would not let them in the house. Husband called Barbara Korff from a hockey game he was attending with KK and asked her to let their parents in. When she went over to the house the boys wouldn't let her in either. So she used her key to gain entrance and JK spit at his grandmother and smacked her and told her to get out. JK proceeded to scream at his grandfather to get out of the house and jumped on his lap, trying to wrestle a remote control from him. ZK came down from upstairs and in a composed voice asked his grandparents to leave.
Wife's testimony and inaction in the face of such unacceptable behavior establishes that she is at fault for her sons' behavior. She has testified that she does not believe that the children are safe with either of Husband's brothers-in-law—the children's uncles—because they have proven to be violent. She also believes that Husband's mother (who is in her 80's) is violent. "Knowing the history of the family and what they have done to my [boys] physically and mentally and verbally," she testified, "I have a real concern for their [the children's] health and mental state."
When Wife was asked at trial to identify anyone she would prefer that RK not visit with alone, Wife identified RK's two paternal aunts and uncles, and RK's paternal grandmother. "I just know the history, and if history is going to repeat itself and RK is going to be faced with a situation where she will be in danger, I would prefer not." By her words and attitude, Wife has instilled fear and dislike in her children of their paternal family.
HUSBAND HAS NOT HELPED HIS CAUSE
It undoubtedly is a terrible and painful experience when a parent is disrespected and rejected by his or her children. It is beyond this court's expertise to opine upon the most appropriate and helpful reaction by the parent in such a situation. Certainly, parents are entitled to demand a certain level of respect from their children and to appropriately discipline a child when the proper respect is not forthcoming. And it is understandable that a parent might attempt to spoil his child in the hope of winning or preserving affection. But Husband has not effectively attempted either of these approaches. His attempts at punishment were mostly collective (such as removing the internet or cable from the household), engendering ill-will from the non-transgressing children. And Husband has not sought to "buy" his children's affection; he has done the opposite, having driven himself into a corner by his feigned financial limitations. In effect, he has engaged in certain acts of self-sabotage. See Beth M. v. Joseph M., 12 Misc 3d 1188(a) (Sup.Ct. Nassau Co. 2006) (Balkin, J.)
During the course of these proceedings Husband was jailed for his contempt due to his failure to pay child support. He has asserted that he does not have the funds to continue to send his children to their yeshiva or to camp, cannot afford braces for either JK or ZK, has not contributed to KK's in-state college tuition or room and board, and has stated that he cannot afford to rent a separate residence (he is living with his sister). Immediately after the commencement of the action the parties fought about Husband's refusal to spend as much money on a bar mitzvah party for ZK as he did for KK. Husband did not pay for JK's bar mitzvah.
Telling your children that you can no longer afford for them to attend their school with their friends or that you cannot pay for braces for their teeth will not endear you to them. But that is the position Husband has taken and the box Husband has put himself in. Husband's newly acquired income deficiency has been addressed by a prior decision and order of this court dated March 24, 2015, holding Husband in contempt. In that decision, this court found that following the initiation of this divorce action Husband purposely sought to avoid support obligations by reducing his employment income. Husband, who works for his father, saw his income drop from approximately $400,000 to $66,100 during the course of this action, purportedly because Husband's father reduced his income (allegedly because Husband was too focused on trying to win custody of his children). At the same time, Husband spent approximately $1,000,000 on this divorce battle, thus in spirit echoing Robert Goodloe Harper's cry: "Millions for defense, but not one cent for tribute." To carry forth his charade Husband has had no choice but to plead poverty in the face of his children's expenses. In all events, this court suspects Husband has no appetite to pay for anything but the necessities for his disrespectful sons.
EVENTS SINCE THE PARTIES' SEPARATION
In December 2014, this court ordered Husband to vacate the marital residence. It did so for various reasons, but primarily because subjecting the children to the continuing poisonous atmosphere of the home was counter-productive to their best interests. And this court wanted to begin the process of alternating parenting time in two different households under its watchful eye. Husband was ordered to vacate based upon this court's belief that, as between Husband and Wife, Husband had the greater financial ability to immediately relocate (both parties have requested that the marital residence be sold).
On January 7, 2015, Husband vacated the marital residence and, for a short period of time, lived with his sister. To facilitate visitation with his family Husband then rented a house in nearby Hewlett Harbor. This court set forth a visitation schedule.
Wife had testified in November 2014 that RK would obey a visitation order. And she believed that "it should not be a problem" getting her sons to follow the order as well (JK was 14 and ZK was 16 at the time). But with respect to her sons Wife clearly hesitated and equivocated, at first stating "I could try," and that she "would do her best to get them there." Starting in January 2015 she was put to the test and failed. The boys have not once visited with their father as ordered. When asked in April 2015, Wife conceded she did not discipline her sons in any manner for their violation of the court's order.
As to RK's relationship with her father, Wife has interfered by different means. On at least two occasions she drove to RK's aunt's house and took RK home when RK did not want to leave Husband's car to go into her aunt's home. Husband did not consent. Wife also engaged in constant text communications and telephone calls with RK when she was visiting with Husband (texts which Wife admits she erases from her phone). This led to the court ordering that all such communications cease. RK allegedly did not want to visit with Husband the second scheduled weekend of her visits and Wife did not require her to go. The visit was missed and court intervention was required. Wife has also interfered with and manipulated the start of Husband's visitation periods by requiring RK and Husband to go to the marital residence to pick-up RK's clothes, instead of having RK bring her clothes to school. (Wife also stopped dropping the clothes off at Husband's residence because they supposedly were put on the floor.) RK (who does not have a key) and Husband had to wait outside until Wife returned home so RK could get her things and—more importantly—so Wife could say and kiss her goodbye.
Husband testified that his relationship with RK has become more strained and cold, particularly at the beginning of his visits with RK and when Wife is present. Eventually, during the course of their visits, RK warms up to him. Then, the next time he sees RK, the pattern repeats itself. When RK is with her mother at the boys' hockey games she generally will not acknowledge her father's presence and usually will not go over to him and say hello. The deterioration in the relationship between RK and Husband is best exemplified by a recent exchange at RK's doctor's office. RK was there with her mother. When Husband arrived RK told him, "I told you I didn't want you to come. Now that you are here you can stay to pay."
The evidence reflects that Wife continues to put fear in RK about visiting with her aunts and uncles by warning RK to "be safe" when visiting with Husband's family. In April 2015, in connection with a court appearance on an Order to Show Cause brought by Husband for an immediate change of custody, Wife testified that RK was frightened of her aunts and stated to the court: "I beg of you to protect this child from [Husband's] sisters." Wife also informed RK's school that Husband's sisters are not allowed to pick RK up from school on behalf of Husband.
Wife, who does not like John Zenir, Esq., RK's counsel, has interfered with RK's relationship with Zenir. Wife testified that RK told her that Zenir was "twisting her [RK's] words" and informing Husband of their confidential conversations. This court does not believe that this is true; any of it. Instead, this court believes that Wife has been coaching her daughter as to what to say to Zenir. Wife has a history of interfering with Zenir's relationship with her children. In the past, she has interrupted Zenir's meetings with the children (she required Zenir to leave her home on one occasion) and cancelled at least one scheduled meeting among Zenir and his clients. Wife also reviewed (and may have drafted) emails from her children to Zenir before they were sent.
Husband moved back in with his sister, Barbara Korff, after being ordered to pay child support, which he claims he cannot afford.
LEGAL ANALYSIS
The essential consideration in making an award of custody is the best interest of the children and what will best promote their welfare and happiness. Eschbach v. Esbach, 56 NY2d 167, 171 (1982); Friederwitzer v. Friederwitzer, 55 NY2d 89, 95 (1982); Desroches v. Desroches, 54 AD3d 1035 (2d Dept. 2008). Apart from this command, as stated by the Court in Friederwitzer, "[t]he only absolute in the law governing custody of children is that there are no absolutes." Friederwitzer at 93.
There are, however, certain policies designed not to bind the courts, but to guide them in determining what is in the best interests of the child. Esbach, 56 NY2d at 171. Identifying such policies, by review of the case law, is not difficult. But where the facts result in a conflict of such policies, as here, the task is a difficult one. As eloquently stated by the Court of Appeals in a similarly difficult child custody dispute:
Given the bitterness of this divorce and the heat of this custody battle, joint custody is not an option and neither party has requested it. See Braiman v. Braiman, 44 NY2d 584 (1978).
This case, like most child custody matters, involves a collision of principles as well as of intransigent would-be custodians of the hapless children, innocent subjects of a conflict they can never understand. The primary purpose of the child's best interest is never easily applied once the litigants themselves have succeeded in creating the disruption .The courts can only repair, patch, and cover over, as best they can, the irreparable harm occasioned and reduce the harm to a minimum, if the minimum is discernable.
Matter of Nehra v. Uhlar, 43 NY2d 242, 251 (1977).
Among the factors to be considered in making a custody determination include "the parental guidance provided by the custodial parent, each parent's ability to provide for the child's emotional and intellectual development, each parent's ability to provide for the child financially, the relative fitness of each parent, and the effect an award of custody to one parent might have on the child's relationship with the other parent." Craig v. Williams-Craig, 61 AD3d 712 (2d Dept. 2009). It is the totality of the circumstances that guides the court's decision. Matter of Blakeney v. Blakeney, 99 AD3d 898 (2d Dept. 2012).
Both Husband and Wife love their children and have the ability to provide for their emotional, intellectual and financial needs. While neither is a perfect parent, they are both fit parents and one is not superior in their parenting skills to the other. Both are intelligent adults who have expressed and demonstrated an interest in their children's schooling, health and extra-curricular activities. Both parents, while employed, appear to have the flexibility in their employment to make them available to care for their children. Husband, in particular, works in the family business, affording him significant flexibility.
Although stability in general is an important factor in child custody proceedings (Matter of Nehra, 43 NY2d at 249), that factor plays little if no role here since until very recently the parents alternated equally the time they spent with the children.
It cannot be said, however, that an award of custody to either parent would have the same effect on the children's relationship with the non-custodial parent. If Wife is awarded custody of the children the testimony has borne out that the boys will likely have no relationship with their father. That is their express desire. And soon enough, this court believes that RK will follow in their footsteps.
It has been recognized that the best interests of children lie in being nurtured and guided by both of their natural parents. Daghir v. Daghir, 82 AD2d 191, 192 (2d Dept. 1981), aff'd, 56 NY2d 938 (1982). "Indeed, so jealously do the courts guard the relationship between a noncustodial parent and his child that any interference with it by the custodial parent has been said to be an act 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'." Id., quoting Entwistle v. Entwistle, 61 AD2d 380 (2d Dept. 1978).
There can be little doubt that Wife has interfered with Husband's ability to maintain a loving relationship with his sons. Dr. Favaro concluded that Wife contributed to the boys' disenfranchisement with their father. According to Dr. Favaro, she "has acquiesced in the face of [their] pathological behavior." The facts as he described at trial and set forth above can lead to no other conclusion. Husband had a good relationship with his sons before the divorce proceedings and did nothing that would logically drive them to their blind hatred of him. Instead, Wife has assisted in driving a wedge between the boys and their father as effectively as she drove them to the police station so they could file a complaint against him that December evening. Does she have cause to be angry at Husband and perhaps even embittered? Probably. But she has no cause to aid and abet the destruction of the relationship between her children and their father. Nonetheless, she has.
Wife's viewpoint is clear, but her thinking is muddled and misguided. She believes that her children's hatred of their father is understandable and justifiable because she feels it too. She loves her boys and believes they are good kids. As a result, she does not believe that angering her children by supporting their father is appropriate or called-for. So she does not punish them or support his punishments even in the face of their violent acts against their father. She disapproves of violence. But Husband's issues with his children are his problem, of his own making, and she is not going to bail him out at her expense. And, her thinking goes, the children are thriving. Wife mistakenly believes that her children are escaping the divorce unscathed because they are "good kids" who do well in school and stay out of trouble.
Wife does not recognize the harm that has been caused to her children by the divorce or the pathology in their relationship with their father. She does not see the damage it will do to future relationships in their lives as explained by Dr. Favaro or the void it is causing now. While she mouths in court that it is important for children to have a relationship with both parents, her words and actions outside of court establish that she doesn't mean it with respect to her children and their father.
And this poisonous attitude exists in her family as well. Wife's father—a religious man—testified that he speaks to his grandchildren every day. He has told his grandchildren that the Fifth Commandment requires that you honor thy father and thy mother. The grandchildren responded, he testified, that the Torah does not command that they love their father. And, grandpa testified, "the religious answer is, that is correct." So he would encourage the children to have respect for their father and "if it's at all possible, to have love for their father and mother." Not exactly a ringing endorsement of love between a child and a parent. Furthermore, Wife's father enabled JK's misconduct by allowing JK to run away and stay at his grandparents' house on various days when Husband had sole parenting time.
A child's preference regarding custody is an important factor, particularly where the child is older and mature. Koppenhoefer v. Koppenhoefer, 159 AD2d 113 (2d Dept. 1990). This is because such a preference may be instructive as to what is in the child's best interests—his or her preference may promote and correlate to his or her happiness. See Matter of Cisse v. Graham, 120 AD3d 801, 805 (2d Dept. 2014). But such preferences are not determinative (id.), can be manipulated by one of the spouses, and may not be in the child's best interests. Matter of Nehra, 43 NY2d at 249; Dintruff v. McGeevy, 34 NY2d 887 (1974)(if a child's view were determinative then all the court would be required to do is decide if the preference is voluntary and untainted and then follow the child's wish). Here, the children's wishes are clear and uniform: they want to live with their mother. But is that in their best interests, particularly as it relates to RK?
As Dr. Favaro has testified, the likely outcome of granting ZK and JK their wish to live with their mother is that they will cut off all contact with Husband. And this may last for a decade or more. Any visitation schedule likely will not be followed. The current visitation schedule has not been followed for the past six months. And therapy for the boys, Dr. Favaro believes, will not improve their relationship with their father particularly if Wife's behavior remains consistent and the boys do not want to participate. Indeed, Dr. Favaro testified that requiring the boys to attend therapy will have a detrimental effect on them—perhaps turning them off to therapy for a lifetime.
Nonetheless, with respect to the ZK and JK, this court finds that Wife should have legal and residential custody. As Dr. Favaro testified, if Husband were given residential custody of the boys "the kids are going to hate their father for getting residential custody of them. They're going to blame that on him." Thus, the boys' hatred of their father, which now has no logical or rational basis in reality, would be fueled by even more resentment, and intensify. More chaos, and perhaps violence, would ensue to the detriment of all living in Husband's household—a result to be avoided for obvious reasons and for the reasons that will become apparent below. Husband has been unable to control his sons and the madhouse and drama that would surely follow if Husband were awarded custody of the boys would likely negatively affect their schooling at an important time in their lives.
Such an easily foreseeable detrimental outcome begs the logic in awarding Husband custody. The result would be more harm to the children. See Matter of Lew v. Sobel, 46 AD3d 893 (2d Dept. 2007)(change in custody would be harmful to the children because their bond to the alienating parent was so strong); Charpentier v. Rossman, 264 AD2d 393 (2d Dept. 1999)(father awarded custody of 17 year old son despite his interference with mother-son relationship based on child's age and his strong preference to continue living with father); Mary E. v. Usher E., 38 Misc 3d 1229(A)(Sup. Ct. Kings Co. 2013)(Sunshine, J.)(removal of children from alienating mother "would be inappropriate and could cause further harm to the children"). Given the sad state of the boys' relationship with their father, which Husband must have known would be exacerbated by his recent financial decisions, ZK and JK should continue to live with their mother, with whom they enjoy an excellent relationship. Husband is to have parenting time pursuant to the court's Visitation Order issued simultaneously with the decision and order herein.
Dr. Favaro provided to the court an option to combat Husband's disenfranchisement from his sons that Husband strongly urges be adopted: total isolation of the boys from their mother for a period of 90-120 days. During this period, Husband would be afforded an opportunity to re-establish normal and healthy boundaries and repair his relationship with the boys. A similar suggestion was rejected in Mary E. v. Usher E., 38 Misc 3d 1229(A), due to that court's "grave concerns" with such an approach, particularly the forensic's admission that the risks of such an approach would be great. The risks to the boys' psychological well-being and the potential for a violent reaction in this case is of concern to this court. And the potential for success is practically non-existent. Dr. Favaro estimated the risk of success of the isolation experiment to be, at best, 50-50, assuming Wife fully cooperated and was on-board. Without it, he opined that the experiment would have no chance of success. If Wife would have voluntarily agreed to such an approach—which she did not—the court would still have been skeptical that she would adhere to the rules of isolation. Given Wife's failure to properly respect the parallel parenting schedule and her professed inability for the past six months to require the boys to leave her house and abide by the court-ordered visitation schedule, a court-ordered isolation opposed by Wife is doomed to fail.
Another alternative considered by the court and provided by Dr. Favaro as an option is to give Husband decision-making authority as it relates to the boys if mother is to get physical custody. This perhaps would require the boys to at least feign respect for their father since he would have legal control over important aspects of their lives. But typically a parent who is granted residential custody also has decision-making authority. This makes sense since the residential parent's physical closeness to the child puts that parent in an advantageous position to observe, learn, process and decide what's best—and to enforce such decisions. Although it may be appropriate given the circumstances of a particular case to award some custodial decision-making to the non-custodial parent the "division of authority should be made in a manner intended to take advantage of the strengths and abilities of the non-custodial parent with respect to a particular dimension of child-rearing." Jacobs v. Young, 107 AD3d 896, 897 (2d Dept. 2013). Often, it is when a residential parent has demonstrated that their parenting skills are not as strong in a particular area as that of the other parent that some delineated decision-making power is awarded to the non-residential parent. See, e.g., Ring v. Ring, 15 AD3d 406 (2d Dept. 2005).
Here, there is no particular area of child-rearing (apart from what has been discussed) in which Wife is deficient or in which Husband particularly excels. Although Husband presented some evidence that Wife may be overly cautious concerning the medical needs of her children, her sons do have certain ailments, such as serious life-threatening allergies. And Dr. Favaro's suggestion was not limited in scope. If it were, control over medical decisions was not the type of "leverage" he had in mind.
Furthermore, the court is concerned that the boys' attitude toward their father would impact his ability to make objective, clear-headed decisions in their best interests. His failure to approve and pay for their braces comes quickly to mind.
Because of the boys' determination not to undergo therapy, and based upon Dr. Favaro's testimony that requiring them to attend counseling would do more harm than good, this court will not require ZK or JK to undergo therapy as a component of this custody order. Therapy alone will not solve the alienated state of the boys' relationship with their father. See Mary E. v. Usher E. 38 Misc 3d 1229. It is hoped that the boys will come to realize the tragic mistake they are making concerning their relationship with their father—who has spent four years and a million dollars fighting to be part of their lives—and the consequences their behavior has wrought.
With respect to RK, it is not in her best interest that her stated preference be followed. It is this court's opinion that the only hope for RK to enjoy a healthy relationship with both of her parents and all of her extended family is for Husband to have legal and residential custody of her. Wife has proven that if she were to have custody of RK she would not be supportive of Husband's visiting time and would eventually manipulate a split between Husband and his daughter similar to that of Husband and his sons. And the only way that RK will be able to enjoy a close relationship with her paternal grandparents, aunts, uncles and cousins—important, close-by family members whose presence has been and can continue to be a constant in her life—is if Husband has custody of her.
Because Husband is an equally fit parent as it relates to RK, and given the facts set forth above, the custody decision as to her is relatively easy (to the extent such decisions ever are) but for one factor. RK is a sister as well as a daughter and this court must be concerned about the effect of splitting siblings. Separation of siblings is frowned upon. Matter of Ebert v. Ebert, 38 NY2d 700, 704 (1976). "[T]he judicial preference of keeping siblings together, where possible, in order to encourage close familial relationships, is firmly established." Mohen v. Mohen, 53 AD3d 471, 475(2d Dept. 2008)(citation omitted). Nonetheless, when it is clear that the best interests of each child lies with separate parents, a split custody decree is proper. Mitzner v. Mitzner, 209 AD2d 487 (2d Dept. 1994); Wurm v. Wurm, 87 AD2d 590 (2d Dept. 1982).
Mitzner is instructive. In that case, the parties' 14 year old son's relationship with his mother deteriorated due to family strife, and he had shouted and cursed at her, even striking her. The mother maintained a positive relationship with her 10 year old son. Both boys expressed a preference to live with their father, but the court believed that the younger son's preference may have been influenced by his father and brother. The "dysfunctional family environment so damaged normal interpersonal relationships between parent and child that the more customary custody arrangement of keeping the children together was found unsuitable" by the trial court, and the Appellate Division affirmed its finding. Mitzner, 209 AD2d at 489.
The Kramer family is a model of dysfunction. The court is cognizant of the benefits that residing with siblings can bring but cannot disregard the dangers that lie if RK were to reside with her siblings. Her brothers' attitude towards her father was described by Dr. Favaro as beyond hatred: "pathological." Primarily living in such an environment would not be healthy for RK, her brothers' attitudes would likely rub off on her and such a living arrangement, at a minimum, would cause internal conflict in a young girl who simply wants to love her daddy. If by reason of Wife's conduct Husband has lost his two sons, as he fears, what sense of justice would put in place the circumstances that almost assuredly would lead to the same result for his remaining daughter? An overwhelming need clearly exists to separate RK from her mother and her brothers at least partially so that Husband can have an opportunity to maintain and foster a relationship with RK. See Keating v. Keating, 147 AD2d 675, 677 (2d Dept. 1989).
It is important to note that while the siblings have a relationship, there is no evidence that they are particularly close. This may be because they have different interests stemming from their age differences and are at different stages of their lives. There was testimony that they fought and that the boys have been less than kind to RK on multiple occasions. No doubt, RK would prefer to continue living full-time with her brothers but she will be living with them often given the liberal visitation schedule Wife is provided herein. And if the boys truly value their relationship with their sister they will be living together at least three days a week (and every other week for four days) given the boys' visitation schedule with Husband.
RK's attorney, John M. Zenir, Esq., has informed the court that it is her preference that she live with her mother and that she not be required to visit with one of Husband's sisters and her cousins. Mr. Zenir, a veteran matrimonial attorney with extensive experience acting as an Attorney for the Child, was appointed in August 2011, and is the longest-serving counsel in these custody proceedings. (The longest-serving of the parties' lawyers—Adam Moser—appeared in this action in June 2014.) Mr. Zenir recommends to the court that Husband have custody of RK notwithstanding his client's wishes and further recommends that Wife only have alternate weekend visitation. Mr. Zenir "substituted his judgment" for RK because of his "concerns for RK and her future potential relationship with her Father based upon what has occurred with her brothers ." and his belief that there "is no reason to expect that an appropriate parent child relationship will develop between RK and her father without extraordinary intervention." Since an issue has been raised as to whether Mr. Zenir may properly substitute his judgment for RK's, and since this court held two Lincoln hearings and was able to hear directly from RK without interference on each occasion (see Sheridan v. Sheridan, ___A.D.3d ___, 2015 WL 3796547 (4th Dept. 2015)), Mr. Zenir's recommendations were not considered by this court, as Wife has requested. Given the presumption that RK would be allowed to live with her siblings at Wife's residence, there is no prejudice to the parties stemming from Mr. Zenir's decision not to argue RK's position.
Wife shall have visitation with RK as set forth in the court's Visitation Order issued simultaneously herewith. This schedule affords Husband significantly more time in the near future to allow him the opportunity to attempt to erase whatever negative feelings RK currently may have toward him. Wife is then given considerable time with her daughter. While this court may not order therapy as a condition of future visitation, it may direct a party to submit to counseling as a component of visitation. Thompson v. Yu-Thompson, 41 AD3d 487 (2d Dept. 2007). Wife is directed to immediately undergo therapy on a consistent basis for a period of at least one year. Wife is also warned that any future behavior aimed at disrupting Husband's relationship with RK may result in an order of limited, supervised visitation. Husband is ordered to make all necessary arrangements immediately to re-commence therapy for RK.
The non-custodial parent shall have access to all education records, the right to attend all parent-teacher conferences, receive all report cards, standardized test results and admission test notifications. The non-custodial parent shall also have the right to have access to all medical and health related records and attend all doctor, hospital or treatment appointments. If any of the children are admitted to a hospital or receive emergency medical treatment, the parent with the child at the time shall notify the other immediately and the other shall be allowed to attend and visit the child and participate in planning of the child's medical treatment. If the parties cannot agree on the child's medical treatment, the ultimate determination shall be with the custodial parent.
"Some cases are so unsettling that the law cannot provide a perfect solution." Frize v. Frize, 266 AD2d 753 (3d Dept. 1999). This is one of those cases. But not from a lack of court attention. In this matter there have been over 50 court conferences, 36 motions and 34 trial days (12 devoted to custody). Therapy was ordered as were mental health examinations at a local hospital. There were dozens of visits by the family members with the court-appointed forensic psychologist. A Parenting Coordinator was appointed. Neither party was willing to vacate the marital residence so a parallel parenting schedule was put in place and then enforced with a "no contact" rule. Several Lincoln hearings were held and the children were lectured and sternly warned in open court. As was Wife. And Husband. And although the Kramers' tale is disturbing, this matter presented a "distressing marital maladjustment which is not within the power of any Court to cure." Everett v. Everett, 197 Misc. 515 (Fam. Ct. Queens Co. 1949). It has been and continues to be up to the Kramers to right their ship.
This constitutes the DECISION and ORDER of this court. Defendant is to settle an expedited interlocutory judgment of custody on notice together with a copy of this decision with notice of entry forthwith.
Dated:July 17, 2015
Mineola, New York
ENTER:
______________________________ LEONARD D. STEINMAN, J.S.C.