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Mother Accused of Extramarital Affair During Custody Battle

In 1998, petitioner, the father of four adult children, became romantically involved with respondent mother, whom he met on one of his business trips to New York. An executive of a corporation based in Missouri, the father has residences in Manhattan and St. Louis, as well as the marital home, which he shares with his wife in California.

A New York Family Lawyer said that in early 1999, the mother discovered that she was pregnant. The father’s wife learned of the affair and of the mother’s pregnancy in April of the same year and filed for divorce in California. It should be noted that while the California divorce petition has not been pursued, it has never been withdrawn. According to the mother, the father and his wife telephoned her on several occasions, urging her to abort the pregnancy and offering her money to do so. Thereafter, the mother gave birth to twin daughters.
While the mother testified that the father was excited about the prospect of starting a family with her and that he intended to leave his wife, the father denied ever expressing such an intention. And, although the mother testified that she wanted to marry the father, it is undisputed that she had been carrying on a simultaneous sexual relationship with another man, to whom she was engaged at the time of the hearing. Although the father refused to sign an acknowledgment of paternity at the hospital, he was listed as the father on the children’s birth certificates.

DNA testing performed shortly thereafter confirmed his paternity.

Although, as noted by a New York Child Custody Lawyer, the testimony was conflicting as to the father’s intentions, Family Court, relying on the testimony of the mother’s therapist, which it found credible, rejected his “protestations that he did nothing to give the mother cause to believe that he would leave his wife and build a life with [her] and the twins.” At an October 2000 session that the father attended, he indicated to the therapist that he planned to divorce his wife and have the mother and the twins move with him to St. Louis.

A Queens Family Lawyer said the father’s wife testified that she and the father decided to remain together. Notwithstanding, the father continued his relationship with the mother, although the testimony indicates that there was a marked deterioration after the father failed to divorce his wife by the fall of 2001. According to the father, from September 1999 through October 2002, he made more than 70 trips to New York, usually for business purposes, staying with the mother and the children 90% of the time. During these visits, he would parent the children, play with them, read to them and take them out. He also provided monthly financial support. He testified that the mother sometimes evinced jealousy, complaining that he was not paying sufficient attention to her. The mother, on the other hand, testified that the father visited with the children only when it was convenient during his visits to New York and that it is she who raised, nurtured and cared for them since their birth. While the father continued to live in California and Missouri, she not only provided the twins’ day-to-day care but made all the decisions regarding their emotional, physical, educational and religious development.

Thereafter, after the parties’ relationship had ended, the father filed a Family Court petition for an order of filiation, even though his paternity had been established at birth. The mother contested the petition and, questioning the reliability of the DNA test arranged by the father after the births, demanded that another DNA test be performed. The effect of the mother’s actions was to leave the father, pending receipt of the results, without any legal right to see the children. Child Visitation was arranged only with the mother’s permission.

The court supported its factual findings by application of the legal principle that a custodial parent’s willful deprivation of the noncustodial parent’s child visitation rights constitutes “an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the [parent] is unfit to act as a custodial parent,” a Long Island Family Lawyer said the court further found that the father was an experienced and caring parent, loved by the twins, and that he would be capable of fostering a relationship with their mother, while she was incapable of reciprocating. While the father’s extramarital affairs impact on his ability to be a good husband, the court held, they do not affect his ability to be a proper custodial parent. The orders entered on both of these decisions are before us on appeal as is the order denying the motion to reopen the hearing to consider newly discovered evidence. I would modify and deny the father’s petition for custody.

Despite disagreement with its ruling on custody, The Court acknowledge that Family Court correctly found that the sexual abuse allegations were false and that the children had been coached, a determination that turned, in large part, on the court’s observation of demeanor and its assessment of the credibility of the witnesses and the character, temperament and sincerity of the parties involved. That finding, however, does not lead inexorably to the conclusion that custody should be awarded to the father. The custody determination turned largely on the testimony and report of a neutral forensic evaluator and only witness at the hearing to advocate relocation of the children to California; a recommendation, ultimately rejected by the court that borders on the punitive.

Notwithstanding the conclusion that the mother had engaged in conduct undermining the father’s relationship with the children, he found nonetheless that: the children functioned at an appropriate level. The children want to see the father, enjoy being with him, and are comfortable with him; they have a warm attachment to the father and showed no adverse behavior towards him and even have affection and fondness for the father’s wife. Thus, despite the finding that the mother was attempting to undermine the relationship between the father and the children, the relationship was, in fact, a healthy one, one that even yielded affection and fondness between the children and the father’s wife.
Moreover, the doctor also found that the mother is a “good enough mother” who demonstrates general day-to-day competency in that regard. The director of the nursery school attended by the children, found the mother’s relationship with the children to be “warm, loving, caring and very appropriate.” She described the children as respectful to teachers, happy, able to relate well to the other children and having good social skills.

Thus, the hearing testimony established that the father had a good relationship with the children, unimpaired by the mother, that he visited with them prior to and throughout the proceeding and enjoyed daily telephone calls with them while they were in the mother’s custody, and that the mother was a good mother, a fact tellingly demonstrated by the children’s social skills and development. In such circumstances, it was not in the children’s best interest to award the father custody and to subject them to the trauma of being separated from their primary caretaker since birth and removal from the only home they have ever known. The appropriate response to the mother’s unacceptable conduct, that is, using the children as pawns in her battle with the father is, as another Doctor opined, not removal from the mother’s custody, but treatment of her condition.

In that regard, Family Court Act § 656 provides for the imposition of an order of probation with mandatory participation in programs of treatment, counseling and rehabilitation for her problem. The matter, after restoration of custody to the mother, should be remanded to Family Court to fashion the appropriate remedy.

Under the foregoing analysis, the appeal from the denial of the mother’s motion to reopen the hearing to consider newly discovered evidence demonstrating that the father had engaged in another affair during the hearing is academic. It should be noted, however, that the proffered evidence, if credible, bore on the father’s claims that he and his wife had decided to stay together and were relocating to New York, a subject he introduced. Indeed, the record is bare, other than the testimony as to the intention to relocate in New York, as to who will care for the children while the father travels on business. The facile claim, on oral argument, that the father will parent the children “24/7” rings hollow.
Finally, it seems apparent, in reviewing this record that the ultimate decision as to the key issue in this case, i.e., whether to award custody to the father because of the mother’s attempts to undermine his relationship with the children, was made on the basis of the experts’ testimony. Courts should be ever mindful that, while the forensic expert may offer guidance and inform, the ultimate determination on any such issue is a judicial function, not one for the expert.

In this regard, it should be noted that there is an ongoing debate in both the legal community and the mental health profession as to the implications of expert psychological opinion in custody litigation, especially when the opinion is a conclusion as to the ultimate determination as to where to award custody so as to serve the child’s best interest.

Family matters, for being sensitive in nature should be entrusted to skilled and trustworthy lawyers like Stephen Bilkis and Associates. We have the best New York Family lawyers in our office to guide and protect your rights. We also have our New York Child Custody attorneys who will help you obtain custody to your children.

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