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Court Decides Custody Battle


In this visitation/child custody proceeding, the parties resided together as a couple at the time of their daughter’s birth. A New York Family Lawyer said within several weeks, respondent and daughter vacated the home and moved to New Jersey, where respondent filed and obtained the equivalent of a temporary order of protection from a Camden, New Jersey court based upon alleged physical and verbal abuse by plaintiff. The parties have been engaged in nearly continuous litigation since the daughter was approximately eight weeks old, with the exception of the five year hiatus.

A New York Custody Lawyer said that after a hearing in which the New Jersey court did not completely hear his side of the events, the New Jersey court issued a restraining order and directed that Petitioner pay compensation to the mother. Petitioner was also ordered to pay child support, an order with which the father admittedly did not comply. According to the father’s testimony, the mother did sue him successfully to enforce the child support order. What ultimately happened to the New Jersey order is not completely clear. The father averred that this order was reversed on appeal and that the parties were “bound over to Manhattan Family Court” because of “jurisdictional issues”.

A Bronx Family Lawyer said in January 1997, Respondent moved to the Bronx with the daughter. After the New Jersey court adjudicated that proceeding without issuing a final order of custody, petitioner visited with daughter sporadically for the next few years. The father’s testimony concerning his contact with the subject child during the very early years of the daughter’s life appears inconsistent and somewhat puzzling. At one point, the father testified that from 1996 to 1998, he knew that the daughter resided with the mother in New Jersey. He stated that he did not file any court papers seeking visitation because he wanted visitation in New York City, but knew that he could not compel visitation in that location. In fact, the mother moved to The Bronx several months after temporarily residing in New Jersey in 1996.

From at least 1998-2001, the parties were regular litigants in court, concerning both visitation and child support issues. The parties filed multiple petitions and motions in an array of Family Court proceedings in Bronx County. By order the Bronx Family Court issued a limited order of visitation for the father. Thereafter, a Bronx Family Lawyer said the father filed an enforcement petition. The court issued another temporary order, with battles focused upon pick-up and drop-off issues. The parents entered into a stipulation of settlement providing that the father would have visitation on alternate weekends and certain holidays.

Unfortunately, the visitation did not proceed entirely smoothly. From May 1999 to June 2001, the father had significant visitation on weekends with the daughter. The parties continued to spar over visitation. Through various motions, Petitioner contended that the respondent prevented him from visiting with the daughter. The respondent testified that she never impaired, impeded or otherwise interfered with the father exercising his visitation rights.

In support of his alienation claim, the father introduced into evidence a tape recording of a voice mail message the mother left on his answering machine. The mother angrily said that this was the last time that the father was seeing his daughter. Although this was presented as an example of the mother excluding the father from access to his daughter, the father later acknowledged that at this time the mother was compliant with perceived requirements to make the daughter available to the father. According to the mother, this voice message took place in the context of the Bronx County Family Court proceeding wherein the father had repeatedly failed to attend his visitation regularly.

The father introduced a video into evidence during the instant hearing concerning an August 2000 birthday party the father and his family held for the daughter. The family appeared very celebratory, although the child’s level of happiness did not appear to match the family enthusiasm.

For the five years following suspension of the visitation order, Petitioner never sought court intervention to facilitate or ensure visitation with his child. At one point in his direct testimony, the father stated that it was not until 2004-05 and later not until August 2006 that he received any notice that his visitation rights had been suspended. By this time, he had not seen the child for years. Petitioner indicated that the Bronx County Family Court failed to notify him of the outcome of his case, although he was by then a frequent and sophisticated litigant in that court.

Once again demonstrating lack of consistency in his testimony, the father speculated that perhaps he had filed petitions during the 2001-2005 period, possibly in 2002 and then possibly in 2004, but then acknowledged upon further cross-examination that he had not done so. Confronted with his inconsistent and incredible testimony, the father then stated that he had filed for downward modification sometime prior to 2005. Later, the father testified that he had filed a petition for downward modification of his child support obligations in March 2005 for the purpose of finding out where the mother lived and that he was not aware of facts that would have supported his petition.

The father testified further that he sent a second letter, again by certified mail, return receipt requested, stating that he would appear to pick the daughter up for the weekend pursuant to his visitation rights. By this point, the father had not seen the child in nearly four years. The court cannot know for certain the father’s motivation in taking this action at this time, but observes that the letter preceded by approximately one week the filing of the instant petition. During his initial testimony, the father averred that he did not have a return receipt, despite his professed meticulous recordkeeping. The father acknowledged during cross-examination, just before his child support hearing, when he filed the instant petition, he made no other attempt by letter to schedule any visitation.

Based upon the court’s observation of the witnesses during testimony and, separately, upon the lack of logic and consistency of the father’s testimony, the court does not credit petitioner’s testimony in many material respects, particularly where the testimony conflicted with that of the mother and where, as here, petitioner claimed that he appeared at times to take advantage of his purported visitation rights.

Petitioner testified that he made other efforts during this five-year period to have contact with the daughter. The father testified that he attempted to reach the daughter. by telephone on a number of occasions thereafter without success, as no one would pick up the telephone or an answering machine would turn on. The father asserted that he left messages for the mother telling her that he would visit the daughter at a particular time, but received no response.

The court finds rather unusual Petitioner’s testimony that he extensively researched and found out where the daughter attended school at this time, followed her to school and, together with a friend, observed the daughter enter and leave school. Despite apparently believing that he had the continued right to visitation and that his attempts to communicate with the daughter were being blocked by the mother or the babysitter, the father made no effort to make his presence known to or to communicate with the daughter in any manner.

The court found the father’s testimony not credible in most material respects and that the mother did not interfere with paternal access to the child. The court found that respondent was a credible witness whose version of pertinent events is far more credible than that offered by petitioner. In any case, for events dating back ten years, the Bronx County Family Court orders defined in pertinent part the most salient facts, including that the father’s petition was dismissed on default and that his visitation remained suspended through the filing date of the instant petition.

The court declines to apply narrowly defined and pejorative term “alienation” to this matter. However reasonably broadly or narrowly defined, alienation did not occur here and there is no possible change of custody consistent with the best interests of this child. For the first five years of the child’s life, the parents disagreed as to whether the primary problem in maintaining regular visitation was that the mother obstructed, as opposed to prevented visitation or rather that it was the father’s failure to meet his responsibilities and obligations concerning visitation, or some combination thereof, that inhibited consistent visitation. Regardless of the problem, there was some level of visitation and there was a relationship between petitioner and the daughter at this time.

Petitioner must take responsibility for his own actions and appreciate that his virtual disappearance for five years had severe consequences for the daughter and for her relationship with him. As noted earlier, this court did not find credible the father’s contrived attempts to show minimal efforts at maintaining or re-establishing contact with the daughter during this period. It is very clear that the daughter does not trust that if she permitted her father to re-enter her life, he would conduct himself in a consistent and positive manner.

Courts and commentators differ as to how to define alienation. Alienation typically describes a child’s rejection of or strong resistance to a relationship with a parent that is disproportionate to that parent’s behavior and is not consonant with the previous parent-child relationship. Further discussion of this term would not advance any meaningful discussion as to how to heal the fracture in the relationship between the father and daughter and to provide a realistic future opportunity to re-start a relationship between the two. Under all the circumstances of this case, the court finds that alienation did not occur.

On the other hand, a parent’s visitation should just as clearly be denied by a court where it harms the child by producing serious emotional strain or disturbance. Every child is unique. To inform the best interest analysis, the court must understand to the extent possible the basis for the daughter feeling so estranged from her father and so distraught at the prospect of participating in a process with the goal of having him re-enter her life. Daughter’s estrangement from her father and petitioner’s lack of sensitivity to and his disconnect from Daughter’s emotional needs over a period of years have been discussed at some length above. Even during the instant proceeding, the father never even inquired of the forensic examiner how the subject child’s mental health may be affected by compulsory visitation.

The court has considered compelling the daughter `to engage in some constellation of individual and family therapy, or mandating that the mother engage in therapy, all with the goal of preparing the child for resumption of visitation. The court declines to do so. As discussed above, the individual therapy was unsuccessful and the daughter has stated adamantly that she will not engage in further therapy.

The court is concerned that if the order is open-ended, the father will flood the home with letters, audiotapes and the like in an attempt to convince the daughter of his sincerity and also to maintain an opening for further litigation to ensure that his communications have been noted. Again, without a reasonable limitation on such communication, the court is concerned that the daughter would observe or sense further conflict between her biological parents, would experience that same pressure discussed above, and would react in a negative manner to further communication. The court believes that the appropriate balance is that there be a monthly communication from the father to daughter and that the mother will inform her of that communication.

Visitation rights granted to a parent should be for the benefit of the subject child. Here in Stephen Bilkis and Associates, our Bronx County Family Lawyers are always ready and available to help parents who are divorced or otherwise separated seeking to visit their child. Write or call us now for a reliable and helpful advice.

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