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Wife Contends Court Erred in Distributing Marital Assets

The court is called upon to make certain decisions based upon a dispute involving allegations that a mother, through her actions, actively and passively alienated and influenced a child to the point that the child may no longer have any inclination or desire to see her father again. A New York Family Lawyer said as equally important, the court must also determine the credibility of claims of egregious domestic violence during a long-term marriage of 31 years alleged to have been perpetrated against the mother, herself an advocate for the rights of women in divorce actions.

One of the most difficult decisions a Judge has to make is that which impacts upon the life of a child. The law has long recognized the special place and role of the court in deciding issues relating to children and the long term impact that our courts have on the life of a child.

The parties were married in August 1973. The wife is 52 years of age and the husband is 56 years of age. On the date of their marriage, the husband was 22 years of age and a college graduate while the wife was then 18 years of age and a high school graduate. During the course of the marriage, four children were born to the parties, the eldest daughter, age 32; the eldest son, age 26; the youngest son, age 20; and the youngest daughter, age 13. A Nassau County Family Lawyer said the two youngest children, the youngest son (presently age 20) and the youngest daughter (presently age 13), remain un-emancipated. During the course of the litigation the youngest son resided in Israel or was a resident student at a university. It appears the youngest son is fully and voluntarily supported by the father and does not permanently reside with either party, although he does reside with the mother during the summer recess from school.

The husband commenced the action in December 2004 after the wife withdrew an action commenced in November 2004. The parties litigated in Family Court from November 10, 2004, through January 31, 2005. The husband also brought a writ of habeas corpus under a separate index number against the wife and her mother which was dismissed. The Family Court action was consolidated into the Supreme Court action, on consent. The husband was granted a divorce, on consent, after proof, on June 10, 2005, on the grounds of constructive abandonment and shortly thereafter the husband gave the wife a Jewish divorce. A law guardian was appointed for the youngest daughter, and a neutral forensic evaluator was appointed by the court.

On November 29, 2005, the day set for trial on the issue of child custody, all issues of custody and visitation were resolved by stipulation on the record. The agreement provided that the parties would share joint decision making of the youngest daughter, age 13, that the wife would have physical child custody, there would be a parent coordinator and that the husband, the wife and child would separately enroll in therapy. A Nassau County Child Support Lawyer said the wife voluntarily, without prejudice, withdrew her request for a temporary order of protection and same was vacated, on consent. The agreement further provided for supervised visitation and a mechanism for the child and father to re-establish their relationship.

The gravamen of the parties’ dispute is as a result of the bifurcated child custody agreement entered into by the parties, and the adamant refusal of the child to visit with the father. The wife requests that the court grant her a disproportionate share of equitable distribution based upon egregious conduct by the husband. The father requests that the court take into account, in its financial decision including the maintenance, child support and equitable distribution, the child’s refusal to see him and the mother’s support, encouragement and manipulation of events. The father alleges that the mother’s acts of encouraging alienation constitute egregious conduct.
The mother seeks to have the court believe that her husband paints her as, in her words, crazy and that it is he who caused her mental stress. Yet the court had the opportunity over a long period of time to adjudge credibility of the mother and the father from the witness stand, in the courtroom and based upon her actions and tactics.

The complainant, basing her argument primarily upon her allegations of physical abuse inflicted upon her by the accused, contends that the court erred in its determinations with respect to, among other things, the grounds for divorce and the equitable distribution of the marital assets. The husband denied the wife’s assertions of physical abuse and the court, having the unique opportunity to observe the witnesses and hear their testimony, credited the husband’s testimony and discredited the woman’s testimony. In a case tried without a jury, the Court’s inquiry is as broad as that of the trial court, and the Court may render a judgment it finds warranted by the facts, taking into account in a close case that the trial judge had the advantage of seeing the witnesses. Here, the evidence supports the trial court’s determination.

Uniquely, the court has not only had the opportunity to see the mother as a witness, but also had an opportunity to view her mother (the maternal grandmother) who plays a major (if not too major) role in the child’s life, as well as the child on three separate occasions in camera. During the course of the proceedings as the maternal grandmother faced cross examination, her testimony was halted and the grandmother was hospitalized for allegedly extremely high blood pressure. The mother too was hospitalized during the trial, although the exact reasons for the hospitalization were never disclosed. The mother who exhibited to this court inappropriate behavior on a frequent basis engaged in both pre-trial litigation and trial tactics, which prolonged and delayed the litigation, and added greatly to the cost. The father too, although appearing docile and calm in court, clearly could be agitated at times, or even inappropriately indifferent to realizing that his behavior and conduct were a contributing factor to the child’s reaction to him and her susceptibility to the actions of the mother.

The parties have, apparently, successfully parented three adult children and until the marital discord of 2004, a fourth child. Testimony adduced at trial portrays a well-respected and learned family within the orthodox Jewish community of Brooklyn, New York.

The wife successfully (as the wife described it) shepherded and encouraged the husband to attend dental school, helped him with his studies and even convinced the dean of the dental school not to flunk him out of the program. It is undisputed that the wife has help select and hire staff for the dental practice, chose and negotiated the parties’ purchase of a home in Brooklyn as well as apartments in Israel. She was primarily a homemaker, raised three adult children, whom the parties referred to but have never been called by either party as witnesses. The wife delayed her own education while raising a family. She obtained several degrees during the course of the marriage.

The court, in refusing to grant the father economic relief because of the refusal of the child to visit with him, does so at the juncture in the hope that the mother will immediately take the steps to realize that her actions can and will have serious consequences. The court does not believe that there is a generally accepted diagnostic determination or syndrome known as parental alienation syndrome. Each case must be reviewed on its own merits. The court is well aware that it cannot just accept the opinion of an expert and must evaluate it and then determine its efficacy or application to the case before it. It is especially true where there are allegations of domestic violence which must be considered in the context of a child custody dispute.

The court cannot ignore the fact that the parties (who have agreed to joint decision making) have entered into a stipulation settling that portion of the divorce action. The stipulation provided that not only would they engage in individual therapy but that the child will engage in therapy that the father cannot have any input related at the specific request of the child. The child, it has become increasing clear, has been empowered in the divorce action and has adopted (in a rather public fashion by writing newspaper columns) the mother’s cause without limitation. A child cannot be in charge of the other parent’s custodial rights it was improper to condition visitation with an incarcerated father based upon when the child desired to have visitation.

The mother argues that a so-ordered stipulation that the parties entered into during the litigation, pursuant to which they agreed that the mother would have child custody, was the law of the case. The argument is not properly before the court, as it was made for the first time on appeal. The argument is without merit in any event. No agreement of the parties can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child’s best interest.

After careful consideration, the court has not economically penalized the mother or the child because it appears to the court that she was not, until now, truly aware of the nature of both her active acts of alienation and her passive acts by educating the child as to the process and her own concerns by making the child part of her own crisis. It does not mean that a future application of the interference continues may not be the basis for a suspension of maintenance or nor does the court ignore that body of case law that hold that where the interference is both a deliberate frustration or active interference, suspension of support may be warranted.

The court believes, though, that the true amount of child support and maintenance should be set before a suspension is considered so that the party that would be economically penalized will fully know and understand that which is at risk. The court also believes it would be unfair to make such a determination without both parties having had the benefit of knowing the court’s findings and decisions which will now be law of the case. After reading the opinion, they both will have had a full and fair opportunity to have had the matter adjudicated. Now, with that knowledge, violation of the court’s order will be dealt with appropriately.

The mother is hereby enjoined and restrained from discussing the litigation at any time the child may be within 1,000 feet of her. It include her economic concerns, concerns about the father and his relationships with others, the role of therapists in a divorce, domestic violence and orders of protection; nor shall the mother take the child to members of the community or her parents for them to discuss the case or the parent-child relationship.

No amount of money can take the place of parental love and care. Even if couples part ways their children should not be alienated from either parent. If your children are kept away from you, consult a NY Child Custody Attorney together with a New York Visitation Lawyer. The NY Family Lawyers and New York Order of Protection Attorneys from Stephen Bilkis and Associates can help you in winning your lawsuit.

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