New York Family Law Blog
A couple was married and had four children together. The husband left the marital residence and a divorce action was commenced the following month. A New York Family Lawyer said following a trial on the issues of equitable distribution, child support and maintenance, a memorandum decision was issued. Although the husband had stipulated to the wife having child custody, he moved for a change of child custody to him, with the wife to be given only supervised visitation based upon what he claimed to be the wife’s bizarre and dangerous behavior which was calculated to destroy the children’s relationship with him.
The husband referred to the wife’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 wife herself may have caused the youngest child’s vaginal and rectal area to become reddened prior to the wife’s bringing her to the hospital. A New York Custody Lawyer said the husband further noted the wife’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 husband’s view, a change in child custody was critical to the children’s well-being and mental health.
The wife opposed the application, and the matter was subsequently referred for a hearing. Since the original Law Guardian had died after having issued his report in the matrimonial matter recommending that the husband 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 child custody.
A Staten Island Family Lawyer said while waiting for the forensic evaluations to be concluded, the husband 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 wife made an application by order to show cause to modify the husband’s rights for visitation and to suspend visitation with the youngest child based upon a new charge of sexual abuse against the husband involving the youngest child which was alleged to have occurred during a visit. A Staten Island Custody Lawyer said sending the determination of this application, visitation with the youngest child 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 youngest child at a later point.
The court ruled that child custody should remain in the wife 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 child custody to the husband.
Review of a child custody determination observed that the Appellate Division’s authority in child 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 child 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.
Among the factors to be considered by the court in making a child 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 child custody to one parent might have on the child’s relationship with the other parent is also a proper and relevant consideration.
Since the court is to consider the totality of the circumstances, the existence or absence of any one factor cannot be determinative on appellate review. 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.
The trial court’s determination denying the husband’s application for a change of child custody primarily due to the wife’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 husband be given custody of the four minor children.
After having spent hours of meeting with and evaluating the parties and the children, the court-appointed psychiatrist, was of the opinion that it was not in the best interest of the children to remain living in the house with the mother as she is thoroughly incapable of supporting a relationship between the children and their father and has demonstrated this incapacity over the past four years with consistent effort and diligence. Inexplicably, the trial court ignored the unequivocal testimony and recommendation of the court-appointed psychiatrist. In its decision, the court stated that neither the psychiatrist nor the Law Guardian concluded that the wife was materially less fit as a parent. Yet, the record is completely to the contrary. In as clear language as possible, the psychiatrist testified that the wife is unfit, and that’s why the kids shouldn’t live with her.
Though the trial court heard the testimony of both expert and non-expert witnesses as to the problems with the father’s visitation and had the benefit of the psychiatrist’s report, its decision was noticeably silent as to the wife’s persistent interference with visitation. It is clear that the court failed to consider the overwhelming evidence that the wife consistently and willfully interfered in the husband’s relationship with the children.
Due to the wife’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. 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.
Further, the court also placed undue emphasis on the factor of stability, expressing its belief that a change of child custody would be extremely disrupting 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.
Though 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.
When couple decides to separate, children suffer the most. If you want to win your children’s custody, hire the Nassau County Child Custody Lawyer together with the Nassau County Visitation Attorney from Stephen Bilkis and Associates. A Nassau County Child Support Lawyer is also available to help you explore your legal options.