New York Family Law Blog
Each party to these post-judgment proceedings seeks modification of the Judgment of Divorce from joint custody to sole custody. The issue in the father’s case is whether the mother’s allegation of sexual abuse of the child involving the father and her request of the Court to restrict his access to the child constitutes a change of circumstances to modify the award of joint custody with physical residence to the mother, and if so, whether it is in the best interest of the child for sole custody and physical residence to be awarded to the father. A New York Family Lawyer said the mother in her petition alleges the father is an unfit parent based on the sexual abuse allegations and requests his visitation be eliminated or supervised. The Court finds that there has been a sufficient change of circumstances and it is in the best interests of the child for her father to be granted sole custody.
The parties to this custody proceeding were married on September 7, 1991. There is one child of the marriage, born on July 27, 1995. They were divorced by Judgment of Divorce dated October 11, 1999 in the Supreme Court of the State of New York. The Judgment incorporated a Stipulation of Settlement entered into between the parties on the record in Court on July 30, 1999, and a written stipulation regarding custody, dated July 30, 1999, which survives and is not merged in the Judgment, and pursuant to which the parties share joint child custody, with primary physical child custody to the mother. The Supreme Court did not retain exclusive jurisdiction to modify the Judgment. The father was awarded child visitation schedule that consisted of Wednesday evenings between 5:30 p.m. and 7:30 p.m.; alternate weekends beginning Friday evenings at 6:00 p.m. through Sunday at 6:00 p.m.; and two weeks summer vacation in July and two weeks in August. The order also made provisions for holidays.
The complainant father and the opponent mother each seek modification of the Judgment and sole legal and physical custody of the child. A New York Custody Lawyer said the child has lived with her mother throughout her life. The father argues that the mother’s repeated fourth false accusation of sexual abuse, is indicative of the mother’s emotional instability and her attempts to frustrate his relationship with his daughter and that it is in the child’s best interest that the Judgment be modified to award him sole legal and physical custody. The Court finds that the mother’s fourth allegation of sexual abuse of the child is a sufficient change in circumstance, in that the mother, in part of a continuing pattern of attacks on the father in which she asked the Court to be her partner, interferes with and compromises his relationship with the child and, potentially, compromises the child’s future development. The Court finds that it is in the child’s best interest for custody to be awarded to the father in that continued joint custody and physical residence to the mother is detrimental to the child’s current and future development.
On January 5, 2004, the mother filed a Family Offense Petition against the father alleging in pertinent part, that the father returned our eight year old daughter, home after a two day overnight visitation. As the mother was putting her daughter to bed, the daughter told her mother that she ate a hairy hot dog which she described it as brown with lines. It was a boy’s weenie with gray, curly hair around it. She said white stuff came out of it and it was disgusting and tasted bad. She asked for an Order of Protection for herself and the child and that the father’s visits with the child be supervised as the child was sexually abused while in his care. Based on the mother’s one-sided application, the Court issued a Temporary Order of Protection against the father on behalf of the child and suspended all his visitation schedules. On February 4, 2004, the Court ordered weekly supervised visits between the father and child at Supervised Visitation Experts.
On April 9, 2004, the mother’s Family Offense petition was dismissed with prejudice after a fact-finding hearing. A Nassau County Family Lawyer said the Order for supervised visits was terminated and the father was allowed to resume unsupervised visitation.
On February 18, 2004, the father filed a petition seeking sole legal and physical custody of the subject child. In his petition, the father alleges, in part, that the mother subjects the child to psychological abuse and interferes with his relationship with the child. He also alleged that the mother is emotionally unstable and has made repeated and false child abuse allegations against him causing the child unnecessary emotional distress.
On March 9, 2004, the mother filed a petition seeking Enforcement/Modification of An Order of another Court. The mother sought sole legal and physical child custody and an order that visitation should be eliminated or limited to supervised visitation.
Forensic evaluations were ordered on March 10, 2004 and received on October 13, 2004. The Court has had a full opportunity to consider the evidence presented having heard the testimony offered, two in camera interviews of the child and reviewed exhibits received in evidence. A Nassau County Custody Lawyer said the Court was in the unique position to evaluate the demeanor and credibility of the witnesses and finds the father infinitely more credible than the mother.
The Law Guardian, as hereinafter discussed, supports a finding that there is a change in circumstances and it is in the best interests of the child for sole custody to be awarded to the father.
The Court has heard the testimony of: the father, the mother, the County Department of Social Services, Child Protective Services Worker; Westchester County Department of Social Services Senior CPS Case Worker; and the child’s therapist.
On August 1, 2005 and December 6, 2005 the Court conducted in camera interviews of the child. These in cameras were of vital importance in the Court’s deliberations and Decision and Order. In the first interview initially, the subject child appeared frightened, like a deer caught in the headlights. It seemed as if she wanted to flee. She warmed up during the session and opened up. In the second in camera with the subject child, again, initially, she seemed anxious, and exhibited in an infantile manner. The child quickly relaxed and engaged in conversation. The Court got a good picture of the child during the two interviews. The subject child is ten-years old. Although she appears younger than her stated age, the Court found her to be articulate and appropriate in her demeanor and responses. Both the testimony and in cameras revealed that the mother is easily excitable, anxious, tends to infantilize the child, tending to make her fearful.
The mother lets her resentment of the father show in her discussions with and in her treatment of the child. The child is clearly shaken by the mother’s behavior which impacts the visitation. The father is more even tempered and relaxed. He is controlled, deliberate, and always appropriate. The child is comfortable with her mother and clearly enjoys being with her father. Neither in camera shed any light on the hairy hot dog allegations.
There are two primary issues for the Court’s determination of the father’s application. The first issue is whether there has been a sufficient change in circumstances in order for the court to entertain the petition requesting a change in custody. The change in circumstances must reflect a real need for change in order to insure the continued best interest of the child. The Judgment entered in 1999 awarded the parties joint child custody. Prior to the Judgment, there were three investigations of the father by DSS made by or involving the mother’s claim that the father sexually abused the child. They were investigated and unfounded by DSS and not substantiated in any Court. The parties were awarded joint custody by the Supreme Court.
The father alleges that there has been a change of circumstances that warrant a change in custody in that on January 4, 2004, the mother filed a Family Offense Petition against him on behalf of the child reporting sexual abuse of the child in his care and requesting supervised visitation with the child. Prior to the Judgment, the mother made or was involved in three allegations of alleged sex abuse involving the father that were investigated and unfounded by DSS. The first allegation was made by the mother on May 12, 1997. The second allegation was made by the mother on September 25, 1997. The third allegation was made on October 3, 1997 by a friend of the mother based on a conversation with the mother. All three reports were investigated by DSS and unfounded. The fourth allegation is a change of circumstances in that the mother has newly embarked or re-embarked, on a campaign of making unwarranted and false accusations involving the father and alleged sexual abuse of the child, evincing the intent of the mother to use the child protective agencies and the Courts to assist her in seeking to limit, diminish, stop or control the child’s relationship with her father. With each allegation, the father is questioned and investigated. The father’s visitation with the child has been suspended or supervised. Despite three allegations of sexual abuse, the Judgment awarded the parties joint custody of the child. The fourth allegation of sexual abuse and the mother’s petition seeking to restrict the father’s contact with the child is a renewed attempt, by the mother, without a sound basis in fact, to interfere with and/or control the relationship between the father and child. The Court finds that the mother’s fourth unwarranted and uncorroborated attack on or involving the father, and her request in Court that the father’s access to the child be restricted, constitutes a change of circumstances. The Court’s determination is not based on the conclusions of DSS or any agency, but on the Court’s own evaluation of the evidence. There is no credible evidence that the father sexually abused the child or permitted abuse while the child was in his care.
The second issue is whether it is in the child’s best interest for there to be a change in the current custody arrangement. The father alleges that the mother frustrates his relationship with the child. It is an established legal principle that interference with the relationship between a child and a non-custodial parent by the custodial parent is an act so inconsistent with the best interests of the child, raise a strong probability that the offending party is unfit to act as a custodial parent.
The parents are both educated and bright individuals. The father lives with his new wife. The mother’s oldest child seems to move in and out of the home based on his behavior. The father’s home environment is stable and can accommodate his daughter. Although the child has always resided with the mother, and stability is important, the child’s emotional stability will blossom from a change in custody.
Parents have equal rights and responsibilities over their children. However, some wrong decisions in life makes the other a more competent parent over the other. If you want to give your children a bright future, make sure that you win your child custody lawsuit by hiring a Bronx County Child Custody Attorney. A Bronx County Divorce Lawyer together with a Bronx County Family Attorney from Stephen Bilkis and Associates can also provide you with a winning strategy in court.