New York Family Law Blog
It has been observed by our court that “the natural right of visitation jointly enjoyed by the noncustodial parent and the child is more precious than any property right” and that “the best interests of the child would be furthered by the child being nurtured and guided by both of the natural parents”. Indeed, a custodial parent’s interference with the relationship between a child and a noncustodial parent has been said to be “an act so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as a custodial parent”. Such interference with the relationship between a child and a noncustodial parent can take many forms, the obvious being the outright denial of visitation by making the child physically unavailable at the appointed time. However, the instant case involves a more subtle and insidious form of interference, a form of interference which, in many respects, has the potential for greater and more permanent damage to the emotional psyche of a young child than other forms of interference; namely, the psychological poisoning of a young person’s mind to turn him or her away from the noncustodial parent. In this case, if left with their mother, the children would have no relationship with their father given the mother’s constant and consistent single-minded teaching of the children that their father is dangerous. She has demonstrated that she is unable and unwilling to support the father’s visitation; and it was, therefore, an improvident exercise of discretion to deny the father’s petition for a change of custody.
The parties herein were married on August 21, 1982, and had four children together. The father left the marital residence in November 1988, and a divorce action was commenced the following month. Following a trial on the issues of equitable distribution, support, and maintenance held in April 1991, a memorandum decision was issued on June 1, 1992. Although the father had, during the early stages of the divorce action, stipulated to the mother having custody of the children, he moved, by order to show cause dated June 17, 1992, inter alia, for a change of custody to him, with the mother to be given only supervised visitation based upon what he claimed to be the mother’s “bizarre and dangerous behavior” which was “calculated to destroy the children’s relationship with him”.
In primary part, the father referred to the mother’s persistent and uncorroborated allegations that he was sexually abusing their children, her continuing to make new claims of abuse even though all other claims had been determined to be unfounded. He suggested the possibility that the mother herself may have caused the youngest child’s vaginal and rectal area to become reddened prior to the mother’s bringing her to the hospital. The father further noted the mother’s ongoing interference with visitation by various other means, including making accusations of sexual abuse and warning him not to engage in such activities in the presence of the children. In the father’s view, a change in custody was critical to the children’s well-being and mental health.
The mother opposed the application, and the matter was subsequently referred for a hearing before Judicial Hearing Officer. Since the original Law Guardian had died in the interim after having issued his report in the matrimonial matter recommending that the father have unsupervised visitation, the court appointed a new Law Guardian for the children, as well as a psychiatrist, to conduct forensic examinations and to make a recommendation as to custody.
In the meantime, while waiting for the forensic evaluations to be concluded, the father sought to have visitation extended to include overnight visits. However, given the pendency of the proceedings and upon the recommendation of the Law Guardian, the court denied the application, notwithstanding the fact that the previously-raised claims of abuse had been determined to be unfounded.
Thereafter, the mother made an application by order to show cause dated May 13, 1993, to modify the father’s visitation and to suspend visitation with the youngest child, Emily, based upon a new charge of sexual abuse against the father involving Emily which was alleged to have occurred during a May 2, 1993, visit. Pending the determination of this application, visitation with the mother was suspended, and the court subsequently indicated that it meant to suspend visitation with all of the children pending a hearing thereon. It does appear from the record, however, that visitation with the other children was subsequently reinstated, as was visitation with the mother at a later point.
While this latter matter, visitation, was related to the main application, the court indicated that it would hear them separately but eventually did combine the two. Following the hearings, which spanned approximately one and one-half years, and notwithstanding the recommendations of both the Law Guardian and the court-appointed psychiatrist in favor of transferring custody to the father, the court ruled, on August 31, 1994, that custody should remain in the mother.
With respect to appellate review of a custody determination, it has been observed that the Appellate Division’s “authority in custody matters is as broad as that of the trial court”. While due deference is often accorded to the trial court, which has seen and evaluated the evidence and witnesses first hand, the overriding concern is always the best interests of the children, and an “appellate court would be seriously remiss if, simply in deference to the finding of a Trial Judge, it allowed a custody determination to stand where it lacks a sound and substantial basis in the record and, indeed, is contrary to the weight of the credible evidence”.
As is relevant to this case, among the factors to be considered by the court in making a custody determination are: “the parental guidance the custodial parent provides for the child; the ability of each parent to provide for the child’s emotional and intellectual development; the financial status and ability of each parent to provide for the child; [and] the overall relative fitness of the parties”. Additionally, “the effect that an award of custody to one parent might have on the child’s relationship with the other parent” is also a proper and relevant consideration.
“The existence or absence of any one factor cannot be determinative on appellate review since the court is to consider the totality of the circumstances”. In the end, any determination of child custody must be based upon “what is for the best interest of the child, and what will best promote its welfare and happiness”. Applying these basic and well-known legal principles to this case, we find that the trial court’s determination denying the father’s application for a change of custody (primarily due to the mother’s interference with visitation and unfounded accusations against him of sexual abuse of their children) was an improvident exercise of discretion in view of the record which included recommendations by both the court-appointed psychiatrist and the Law Guardian that the father be given custody of the four minor children.
While it is true that the recommendations of court-appointed experts are but one factor to be considered in making any custody determination and are not determinative, such recommendations are entitled to some weight, as is the case with respect to the recommendations and findings of the court-appointed Law Guardian, unless such opinions are contradicted by the record.
It is well established that such interference with the relationship between a child and the noncustodial 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 custodial parent”. This is in recognition of the principle that visitation is a joint right of both the noncustodial parent and the child and that the best interests of the child would be furthered by being nurtured and guided by both of the natural parents. Moreover, “one of the primary responsibilities of a custodial parent is to assure meaningful contact between the children and the other parent”, and the willingness of a parent to assure such meaningful contact between the children and the other parent is a factor to be considered in making a custody determination.
In this case, it is clear that the mother’s anger and hostility toward the father has made her unfit to be the custodial parent “since her attitude would substantially interfere with her ability to place the needs of the children before her own in fostering a continued relationship with the noncustodial parent”. The mother’s conduct in the instant case was so egregious as to warrant a change of custody to the father.
In view of the mother’s consistent preaching to the children that their father was an evil and dangerous man, the trial court incorrectly placed emphasis on the children’s desire to remain with the mother. A child’s preference for a particular parent, while a factor to be considered, cannot be determinative. In weighing the child’s expressed preference, “the court must consider the age and maturity of the child and the potential for influence having been exerted on the child. This is particularly true in a case such as this where there is overwhelming evidence “that the children’s feelings were fostered by the mother’s hostility towards the father”. “The desires of young children, capable of distortive manipulation by a bitter, or perhaps even well-meaning, parent, do not always reflect the long-term best interest of the children”.
Moreover, the court also placed undue emphasis on the factor of stability, expressing its belief that a change of custody would be extremely disruptful to the children. Although stability has been found to be in a child’s best interests, it also cannot be determinative. For, as the Court of Appeals has since observed, while stability is an important consideration, “the disruption of change is not necessarily conclusive”.
“That a change in custody may prove temporarily disruptive to the children is not determinative, for all changes in custody are disruptive”. The record herein reflects the fact that the doctor carefully considered and thoroughly answered the questions of stability and disruption in making his recommendation. Furthermore, under the circumstances of this case, where there was clear evidence of the manipulation of the children by the mother, stability should not have been an overriding factor in the court’s decision.
Within the context of our discussion of the role that stability plays in making a custody determination, we would note that while it is often said that the original agreement by the parties as to custody should be afforded priority, “not as an absolute but as a weighty factor”, such an agreement should not be to the exclusion of a careful weighing of the children’s best interest. In view of the other evidence in this case, the parties’ original agreement concerning custody was not conclusive.
Finally, we note that the trial court based its decision partly upon the view that: “The nurturing and care a natural mother can give her children cannot be provided by anyone other than the mother and only with the expected support and unselfish understanding by a father; in this instance, the father, the breadwinner, is busily engaged in earning a living. He could not possibly give the four children the care and attention the mother has given”.
However, as this court has held in the past: “In enacting the ‘best interests of the child’ test, the Legislature expressly rejected the idea that either fatherhood or motherhood alone carries with it a superior right to custody. The statutory declaration that there is ‘no prima facie right to the custody of the child’ rejects the notion that there is an inherent custodial preference for either parent”.
Moreover, “a custody determination cannot be based upon any unfounded presumption that a father is a less than satisfactory parent because he is employed while the mother is unemployed”. The language of this court’s decision is of particular relevance to the case at bar: “While we are mindful that the Supreme Court also expressed concern over the husband’s lack of ‘hands on’ parenting experience, when this deficiency is balanced against the evidence concerning the wife’s psychological disorder, and her pattern of distorting the truth, it cannot be gainsaid that the Supreme Court’s decision is supported by a sound and substantial basis in the record, and thus should not be disturbed”.
For all of the above reasons, the court’s determination must be reversed insofar as appealed from and custody granted to the father. Moreover, in view of our determination, the matter must be remitted to the Supreme Court, Nassau County, for a hearing before a different Justice on the issue of visitation for the mother and the entry of an appropriate order terminating the father’s obligation for child support.
Accordingly, the court held that the order is reversed insofar as appealed from, as a matter of discretion in the interests of justice, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Nassau County, for a hearing before a different Justice on the issue of visitation for the mother and the entry of an appropriate order terminating the father’s obligation for child support.
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