Opinion
V-01499-97.
Decided on February 29, 2008.
John T. Harris, Esq., for Petitioner.
Monroe County Public Defenders, by Adele M. Fine, Esq., for Respondent.
Joseph G. Nesser, Esq., Law Guardian.
This case requires the Court to fashion a visitation plan to fit into the lives of quickly-maturing children with a father who has had only limited supervised visitation with them for years. For good and ill since their births the three subject children's relationship with their father has been directed by the courts.
By petition brought by Order to Show Cause filed September 13, 2006, Kristine Z. (Mother) seeks modification of a custody/visitation order entered February 2, 2001 concerning the parties' children, Andrea (DOB: ___ / ___ /___), Solomon (DOB: ___ / ___ /___) and Alexei (DOB: ___ / ___ /___). Since entry of the 2001 order substantial change necessitates a new custodial/visitation plan to ensure the best interests of the children. Mother shall continue to have sole custody of the children. Respondent Anthony C. (Father) shall have weekly visitation with Andrea and Alexei for three hours at his home where he resides with his mother (Grandma Eva) under the supervision of paternal aunt and Alexei shall have an additional weeknight unsupervised dinner visit with Father. The parties and children shall continue family counseling at least twice monthly. Solomon and Father shall engage in additional one-on-one therapy to prepare them for future visitation. Visitation shall increase gradually as the children's relationships with Father progress.
Andrea, Solomon and Alexei's relationships with Father have been facilitated and/or directed by courts since their births. As early as 1993 Mother and Father were litigants in a custodial battle involving infant Andrea; Mother was granted sole custody with visitation to Father "as agreed between the parties." The parties then reconciled and had two more children, yet soon returned to court and by orders entered September 29, 1997 and January 21, 2000 Mother was granted sole custody of the then-three children with Father granted "liberal rights of visitation" including weekday visits and overnights. By order entered February 2, 2001, issued with a written decision that admonished both parties to get along for the sake of their children, Mother was again granted sole custody and the children were to be encouraged ("but not forced") to visit with Father gradually increasing to one week night and alternating weekend overnights. The New York State Supreme Court Appellate Division Fourth Department (Appellate Division) modified the February 2, 2001 Order to emphasize that the children's visits with Father should not only be "encouraged" but, indeed, were required ( Matter of Casolari v Zambuto , 1 AD3d 1031 [4th Dept 2003]).
Litigation continued when Mother filed a family offense petition against Father in February 2002 after Father bit Solomon while play-wrestling. A Judicial Hearing Officer found that the incident constituted harassment in the second degree and a three-year order of protection was entered on September 23, 2003, permitting Father supervised visits at the Rochester SPCC (SPCC) only "as [the] children desire" and monitored telephone contact twice weekly. On appeal, the Appellate Division vacated all visitation provisions of the Order of Protection and reiterated that a provision allowing children to decide when they see their Father "tends unnecessarily to defeat the right of visitation" ( Matter of Kristine Z. v Anthony C. , 21 AD3d 1319 [4th Dept 2005], lv dismissed 6 NY3d 772). Upon remand the Judicial Hearing Officer, relying in large part on SPCC reports indicating intensified hostility between children and Father, continued supervised visits "one day per week for one hour at SPCC or [a] substantially similar agency" and granted Father "such other and further supervised visitation as the parties mutually agree" (JHO Decision and Order entered May 19, 2006).
Although this Order was appealed, the Appellate Division determined that the appeal was moot because the order of protection expired by its own terms ( Matter of Kristine Z. v Anthony C. , 43 AD3d 1284 [4th Dept 2007]).
While the remanded case was before the Judicial Hearing Officer, Father filed a petition before a Family Court Judge alleging, in part, that Mother was interfering with his telephone contact with the parties' children. Family Court dismissed the petition and on appeal the Appellate Division held that the court erred in determining that the telephone calls were to be made at the sole discretion of the children. Once again, the Appellate Division emphasized that "the wishes of the children with respect to contact with [Father] are not controlling" ( Matter of Anthony C. v Kristine Z. , 38 AD3d 1317 [4th Dept 2007]).
Mother filed the current petition by order to show cause upon expiration of the Order of Protection seeking interim relief to ensure that the visitation provisions of the 2001 custody order would not go back into effect and seeking a modification of that order. The Court heard testimony from Mother and Father and conducted in camera interviews with the children. The parties consented to the admission of a 16-page SPCC summary of thirty-six visits between the children and Father from October 4, 2006 until June 27, 2007 (Petitioner's Exhibit 1) (Report) (see Matter of Liza C v Noel C, 207 AD2d 974 [4th Dept 1994]).
Change of Circumstances
It is beyond cavil that Petitioner first must prove a "change in circumstances which reflects a real need for change. . ." ( Matter of James D. v Tammy W. , 45 AD3d 1358 [4th Dept 2007] quoting Matter of Amy LM v Kevin MM, 31 AD3d 1224, 1225 [4th Dept 2006]) before the Court determines whether such a custodial/visitation change is in the children's best interests (see Pauline E. v Renelder P. , 37 AD3d 1145 [4th Dept 2007]). Petitioner has met her burden in proving such a change; Father committed a family offense ( cf Matter of Ortiz v Ortiz , 2 AD3d 1236 [3rd Dept 2003] [as the family offense was the sole basis alleged for a change of circumstances and no family offense was found, petitioner failed to meet her burden of proving a change of circumstance]) effectively abandoning the 2001 custodial order and resulting in over five years of supervised visitation between Father and children for only one hour weekly at SPCC ( see Kilmartin v Kilmartin , 44 AD3d 1099 [3rd Dept 2007] [parties' reconciliation for 2 ½; years after entry of a custodial order effectively abandoned the order justifying its reconsideration and modification]). All parties admit that the children's relationships with Father have deteriorated significantly over such an extended time, also constituting a change of circumstances ( see Suzanne T. v Arthur L.T. , 12 Misc 3d 691 [Fam Ct, Monroe County 2005], affirmed 30 AD3d 1105 [4th Dept 2006]) [passage of time and children's changing relationships with parents constituted, in part, a change of circumstances warranting a best interests analysis and change in the existing custodial arrangement]).
Children's best interests
Although agreeing that there has been a change in circumstances, the parties disagree about what is in the children's best interests. Mother argues that it is in their best interest to continue supervised visitation with Father at SPCC. The Law Guardian advocates that both continued SPCC visitation and family therapy are in the children's best interests. Father contends that the prior 2001 visitation order should be effectuated as the order of protection that directed supervised visitation has expired and he complied with all its terms. In determining the best interest of a child, a court must review the totality of the circumstances ( see Eschbach v Eschbach, 56 NY2d 167; Friederwitzer v Friederwitzer, 55 NY2d 89) fully recognizing "how valuable the mature guiding hand and love of a second parent is to a child" ( Matter of Stewart v Stewart, 222 AD2d 895, 895 [3rd Dept 1995], citing Weiss v Weiss, 52 NY2d 170, 175).
1) Supervised Visitation
Visitation is a joint right of the noncustodial parent and of the child; however a limitation such as supervision on parental visitation is warranted where it would be either inimical to the welfare of a child or where a parent has in some manner forfeited his right to access ( Weiss v Weiss, supra at 175 [citations omitted]). "A parent's supervised visitation with a child is required only where it is shown that unsupervised visitation would be detrimental to the child" ( Rosenberg v Rosenberg , 44 AD3d 1022 [2nd Dept 2007] quoting Matter of Powell v Blumenthal , 35 AD3d 615 , 616 [2nd Dept 2006] [where supervised visitation in a therapeutic setting deemed inappropriate]; cf. Matter of Elnatanova v Administration for Children's Services , 34 AD3d 802 [2nd Dept 2006] [in view of evidence of domestic violence, Family Court properly found that the child's visits with the father should be supervised]). Supervision is not limited to instances where a child's physical safety is at risk; rather, a court can also consider whether a parent is having a negative impact on the children's emotional well-being ( Matter of Frank M v Donna W , 44 AD3d 495 [1st Dept 2007] [where although affirming Family Court's finding that unsupervised visitation would have a negative impact on the child's well-being, the Court emphasized that supervision was meant to be temporary, almost two years had lapsed and it is in the children's best interest to eventually enjoy unsupervised visitation]; see also Rosario WW v Ellen WW, 309 AD2d 984 [3rd Dept 2003] [where only one monthly supervised visit was inadequate for a father who at one time had a positive relationship with the children — even considering that father had violated prior orders of protection, had called the child names, had a history of violent behavior toward the mother and children and a family offense petition against him had been sustained]).
Supervised visitation by definition does not deprive a parent of meaningful access to a child ( Matter of Carl J.B. v Dorothy T., 186 AD2d 736 [2nd Dept 1992]; see Matter of Abranko v Vargas , 26 AD3d 490 [2nd Dept 2006] [although father engaged in 3 ½; years of therapy unsupervised visitation was not in the children's best interests because father's therapy failed to address significant issues that militated against his have unsupervised visitation]), yet undoubtably supervision interferes on some level with the parent-child relationship ( Matter of Frank M v Donna W, supra, 44 AD3d 495).
Here, Father forfeited his right to a full visitation schedule as ordered in 2001 because he committed a family offense resulting in a three-year order of protection.
The children and Father have had only one hour weekly supervised contact and their relationships have deteriorated due in part to Father's inappropriate behavior ( see below). It would be inimical to the children's welfare immediately to force a regular unsupervised visitation schedule; rather Father and children shall work towards that goal.
2)SPCC Visitation
Yet although Mother and the Law Guardian seek continued visitation at SPCC, this clearly is not in the children's best interests. The parties all concede that SPCC visits have not worked and in fact may have contributed to the hostility between Father and the children. SPCC — itself — recommends a cessation of visits "based on [the] family's lack of progress during [the] extensive time [period of supervised visits]. . .[and that] there appears to be an increase of aggression by [Father] as well as all three children resulting in increased tension during visitation" (Report p 1).
Father and the children had weekly visits through the Rochester SPCC Supervised Visitation Program from approximately February 2002 until June 27, 2007 — five years and four months. The parties consented to the admission of the Report which summarizes 36 supervised visits between Father and the children. Mother and the Law Guardian highlight two incidents: On May 2, 2007 Andrea was taking notes while looking through a magazine. Father inquired what Andrea was writing several times, but she ignored him until he "grabbed" the magazine away from her (the magazine incident) (Report p 9). The other incident on June 27, 2007 prompted SPCC for the first and only time to terminate early the visit. At that visit Solomon took the pickles off of his hamburger and refused to give them to Father (who likes pickles) instead throwing them in the garbage saying, "see how much I care." Father then "grabbed" the hamburger from Solomon's hand and likewise discarded it telling Solomon to "go eat [his] hamburger, it is in the garbage" (the hamburger incident) (Report p 14). Father testified both that he does not recall the magazine incident and the hamburger incident was instigated by Solomon. Father explained that the children are "pretty rude and belligerent," "call him names and make fun of him" at the visits and Solomon has gone so far as to hit him with a plastic bat on occasion.
Indeed, the Report is replete with incidents of hostility on the part of both Father and children. The Report shows that the children are keenly aware of the on-going litigation and that the courts have become the master of their relationship with Father: the children inform Father when they're going to court and tease that they have a lot to say to the Judge (Report p 10); they chastise Father both that they have "been through" a number of judges and the judges cannot stand him (Report p 10-11); they remind Father that they do not want to see him and plead with him to give up his visitation rights (Report p 10-11). The children are educated about family law informing Father that he is not their "dad" but merely their "birth father" (Report p 6) and researching at what age children are no longer required to visit with a parent (Report 10-11). The children exhibit constant frustration that they are forced to visit and that it interferes with activities they love (Report p 10; 12-13). Father often reacts inappropriately to the children's teasing by either lashing out ( e.g. the magazine and hamburger incidents) or incessantly nagging about the children's activities, yet exhibits great effort to be part of his children's lives. Sometimes Father tries too hard and the children interpret his efforts as him acting as a "stalker."
Father testified that he meets with his children's teachers, attends curriculum nights and volunteers for Alexei's class parties. The children believe that Father does not interact with them age appropriately and ignores their wishes that he not attend their school/sporting events. Father admits that his relationship with his children is only "fair" but testified that he believes both that SPCC visitation is inappropriate for teenagers and they have visited in that setting for too long. It is his hope that with regular visitation the children may change their attitude towards him. He testified that he will accede to his children's wishes and not attend particular school/sporting events and will allow the children to choose visitation activities.
3)Alternative Visitation Plan
As SPCC visitation has not worked for this family, the Court must devise an alternative visitation plan mindful of its responsibility to ensure Father's entitlement to "regular and meaningful" access to his children (Matter of Kargoe v Mitchell , 12 AD3d 978 [3rd Dept 2004], lv dismissed 4 NY3d 794; Matter of Carl J.B. v Dorothy T., 186 AD2d 736 [2nd Dept 1992]). The Court issued temporary visitation orders during this pendency of the case: The first allowed a weekly unsupervised lunch visit between Father and Alexei followed by time together at a skate park (as Alexei is an avid skateboarder). Father testified that the visits were going well but that there was little interaction at the skate park. The Court also ordered weekly visitation for Alexei and Andrea at Father's three-bedroom home where he lives with Grandma Eva supervised by the children's aunt ( see generally Matter of Kargoe v Mitchell , 12 AD3d 978 [3rd Dept 2004], lv dismissed 4 NY3d 794 [court abused its discretion — not in ordering supervised visitation — but in failing to specify both how the visitation would proceed and who would supervise]).
Father does not pose a physical threat to the children (compare Hameed v Alatawaneh , 19 AD3d 1135 [4th Dept 2005]). Indeed, Mother admitted both that the temporary unsupervised visitation schedule between Alexei and Father was taking place with no serious problems and she did not have reservations about Andrea joining Alexei on even unsupervised visits. Father testified that he complied with all terms of the three-year order of protection including one year of probation and completion of both a mental health evaluation and parenting class. Mother admitted that she never filed a violation petition against Father. Mother did not prove that Father was a threat to the children but instead emphasized that visitation interferes with the children's busy schedules.
While the children clearly express that they prefer no visitation with Father, their wishes are not determinative ( Matter of Anthony C. v Kristine Z., supra, 38 AD3d 1317; Matter of Kristine Z. v Anthony C., supra, 21 AD3d 1319; Matter of Casolari v Zambuto, supra, 1 AD3d 1031; Hughes v Wiegman, 150 AD2d 449, 450 [2nd Dept 1989]) but merely "one factor to consider" ( Taylor v Rivera, 261 AD2d 947 [4th Dept 1999]). This is so because of "the foreseeable changes that occur in children as they mature [and their] periodic reorientations toward one or another parent" ( Dintruff v McGreevy, 34 NY2d 887, 888). Although the Appellate Division admonished — not once but three times — that the children's preferences concerning visitation should not control, Mother testified that she would not object to Andrea going on unsupervised visits with Father but "it is up to [her]." Mother denied discouraging the children from speaking to Father, yet admitted she told them they can "speak to him if they wish." Although the Law Guardian first adamantly opposed supervised visitation at Father's home, most recently he expressed that Andrea wished to continue such visits. Such visits will afford Andrea and Alexei not only meaningful visits with Father but the opportunity to develop closer relationships with paternal relatives — indeed, all three children desire to see Grandma Eva. The children's best interests are normally best protected by allowing the development of the fullest possible healthy relationship with both parents ( Nimkoff v Nimkoff , 18 AD3d 344 [1st Dept 2005] [family court erred in not beginning overnight visitation between father and the children where so recommended by a court-appointed forensic psychologist and by instead focusing on observations of father's demeanor and conduct in the courtroom]).
Weekly visitation supervised by paternal aunt thus shall continue for Andrea and Alexei at Father's home. Visitation in this home setting will help normalize interaction between Father with Andrea and Alexei. Additionally, Alexei shall have one unsupervised weeknight dinner visit with Father; Alexei was only five (5) years old when Father committed the family offense and supervised visitation commenced. It is unreasonable to assume that Alexei has an independent recollection of the family offense, rather most of what he knows about Father was learned from other sources — primarily his siblings ( see generally Matter of Oliver v Oliver, 284 AD2d 934 [4th Dept 2001] [limited visitation afforded to father of only three hours supervised visits at the mall was inadequate where although father had mental health issues he had sole custody of the children for some time]).
4)Therapy
The evidence highlights that the most hostility exists between Solomon and Father. Although only seven years old at the time of the family offense Solomon still harbors bitter feelings and is not ready for non-therapeutic interaction with Father. Preparational therapy, in the form of continued family counseling, is necessary before Father can resume any other visitation with Solomon ( see Matter of Robert TT v Carol UU, 300 AD2d 920 [3rd Dept 2002] [family court's determination denying supervised visitation was supported by a sound and substantial basis but the court should have determined whether preparational therapy could foster some form of future visitation]). "Preparational therapy, if appropriate, at the very least, presents an opportunity to determine whether the present relationship of petitioner and his children may be improved to the extent of eventually allowing some form of court-ordered visitation" (supra at 922; see also Matter of Thompson v Yu-Thompson , 41 AD3d 487 [2nd Dept 2007] [counseling or therapeutic visitation is in the best interests of the children]; Matter of Heater v Heater , 15 AD3d 804 , 806 [3rd Dept 2005] [Family Court's indefinite suspension of all visitation was tantamount to a termination of parental rights and the court should have determined whether some form of future visitation was feasible]).
Although there was a prior court order of family counseling Mother testified that the children meet with the counselor whenever they can coordinate their busy schedules. Father testified that the family attends therapy sessions at Strong Behavioral Health with Dr. Debra Hoffman approximately every three weeks. Family therapy must continue on a more consistent basis — at least twice monthly; both Mother and Father shall attend and ensure the attendance of their children. Father and Solomon shall engage in additional monthly one-on-one counseling with a therapist. The parties shall work towards a gradual return to appropriate, unsupervised visitation between Father and all three children.
NOW, THEREFORE, it is
ORDERED that Mother shall continue to have sole custody and primary physical residency of the children; and it is further
ORDERED that Father shall have weekly three-hour visits with Andrea and Alexei at his residence supervised by paternal aunt; and it is further
ORDERED that Father shall have a weeknight dinner visit with Alexei each week on a day and time as agreed upon by the parties based upon Alexei's school/sports activities; and it is further
ORDERED that all parties shall continue family therapy at least twice monthly; and it is further
ORDERED that Solomon and Father shall engage in one-on-one counseling with a therapist at least monthly.