New York Family Law Blog
Defendant wife is now 52 years of age while plaintiff-husband is 56 years of age. A New York Family Lawyer sometime in August 1973, the parties got married. On the date of their marriage, the husband was 22 years of age and a college graduate while the wife was 18 years of age and a high school graduate. During the course of their marriage, four children were born to the parties, to wit: the eldest daughter, age 32; the eldest son, age 26; the youngest son, age 20; and the youngest daughter, age 13. The two youngest children, the youngest son (presently age 20) and the youngest daughter (presently age 13), remain unemancipated. During the course of the litigation, the youngest son resided in Israel or was a resident student at a certain university, fully and voluntarily supported by the father and does not permanently reside with either party, although he does reside with the mother during the summer recess from school.
A New York Custody Lawyer said that sometime in November 2004, the wife commenced a divorce action against her husband which she later withdrew. Thus, sometime in December 2004, the husband commenced a divorce action against his wife. The parties litigated in Family Court from 10 November 2004, through 31 January 2005. The husband also brought a writ of habeas corpus against his wife and her mother which was dismissed. The Family Court action was then consolidated into the Supreme Court action, on consent. On 10 June 2005, the husband was granted a divorce, on consent and after proof, on the grounds of constructive abandonment. Shortly thereafter, the husband gave the wife a Jewish divorce. A law guardian was appointed for the youngest daughter, and a neutral forensic evaluator was appointed by the court.
A Nassau County Family Lawyer said that on 29 November 2005, the day set for trial on the issue of custody, all issues of custody and visitation were resolved by stipulation on the record. The parties agreed, inter alia, of a shared joint decision making concerning their youngest daughter, age 13; that the wife would have physical custody; that there would be a parent coordinator; that the husband, the wife and child would separately enroll in therapy; and of a supervised visitation and a mechanism for the child and father to re-establish their relationship. The wife voluntarily, without prejudice, withdrew her request for a temporary order of protection and the same was vacated, on consent.
A Nassau County Custody Lawyer said the issues before the court which were tried are: equitable distribution, maintenance, child support, and counsel and expert fees. The gravamen of the parties’ dispute is as a result of the bifurcated custody agreement entered into by the parties on 29 November 2005, and the adamant refusal of the child to visit with the father. The wife requested that the court grant her a disproportionate share of equitable distribution based upon egregious conduct by the husband; while the father requested that the court take into account, in its financial decision including the maintenance, child support and equitable distribution, the child’s refusal to see him and the mother’s support, encouragement and manipulation of events. The father alleged that the mother’s acts of encouraging alienation constituted egregious conduct. The court painstakingly heard testimony from the parties; conducted three separate in camera interviews with the child, the last being at the request of the child which was made one day after the conclusion of the second in camera interview; heard from various witnesses including the maternal and paternal grandparents, the editor of the largest Jewish weekly newspaper in New York, the wife of a deceased judge, as well as a rabbi who is the presiding judge of a religious court, the maternal grandmother’s and mother’s bookkeeper, the husband’s sister, the parties’ long-time spiritual leader rabbi, the court-appointed neutral expert on business and license valuations, and the wife’s expert on valuation, the wife’s expert on real estate value, and the husband’s real estate expert.
Here, the court is called upon, among other things, to make certain decisions based upon a dispute involving allegations that a mother, through her actions, actively and passively alienated and influenced a child to the point that the child may no longer have any inclination or desire to see her father again; and to determine the credibility of claims of egregious domestic violence during a long-term marriage of 31 years alleged to have been perpetrated against the mother who was an advocate for the rights of women in divorce actions.
One of the most difficult decisions a judge has to make is that which impacts upon the life of a child. The law has long recognized the special place and role of the court in deciding issues relating to children and the long term impact that our courts have on the life of a child.
In the instant case, the court refused to grant the father economic relief because of the refusal of the child to visit with him, and does so in the hope that the mother will immediately take the steps to realize that her actions can and will have serious consequences. There is no generally accepted diagnostic determination or syndrome known as parental alienation syndrome. Each case must be reviewed on its own merits. The court cannot just accept the opinion of an expert and must evaluate it and then determine its efficacy or application to the case before it. This is especially true where there are allegations of domestic violence which must be considered in the context of a custody dispute. It must be noted in the case at bar that the parties, who have agreed to joint decision making, have entered into a stipulation settling that portion of the divorce action. This stipulation provided that not only would they engage in individual therapy but that the child will engage in therapy, and that the father cannot have any input related thereto at the specific request of the child. Clearly, the child has been empowered in the divorce action and has adopted, in a rather public fashion by writing newspaper columns, the mother’s cause without limitation. A child cannot be in charge of the other parent’s custodial rights
The court here has not economically penalized the mother or the child because, apparently, she was not, until now, truly aware of the nature of both her active acts of alienation and her passive acts by educating the child as to the process and her own concerns by making the child part of her own crisis. This does not mean that a future application of the interference continues, and may not be the basis for a suspension of maintenance or support; neither does the court ignore that body of case law which held that, where the interference is both a deliberate frustration and an active interference, suspension of support may be warranted. Rather, the true amount of child support and maintenance should be set before a suspension is considered so that the party that would be economically penalized will fully know and understand that which is at risk. It would be unfair to make such a determination without both parties having had the benefit of knowing the court’s findings and decisions which will now be the law of the case. They both will then have a full and fair opportunity to have had the matter adjudicated. With that knowledge, violation of the court’s order will be dealt with appropriately.
Thus, the mother was enjoined and restrained from discussing this litigation at any time the child may be within 1,000 feet of her, pending resolution of the posttrial applications, which included her economic concerns, concerns about the father and his relationships with others, the role of therapists in a divorce, domestic violence and orders of protection; nor could the mother take the child to members of the community or her parents for them to discuss the case or the parent-child relationships. The 1,000 feet restriction was to insure that the mother is not on the telephone within earshot of the child or that the child can pick up a phone and listen in. the court ruled that this direction must be scrupulously enforced especially in light of the fact that, while the matter had been sub judice, the father has moved for a change of custody based upon the fact that he has been totally cut off from the child and that subsequent to that application, the child, who is 13 years of age, has sent the court two typed letters by certified mail, the law guardian has been discharged, a new law guardian has been appointed and a formal application has been made by the child for an order of protection, even though they have not spoken in months. She has apparently seen him in her school and the neighborhood they share.
Nonetheless, the mother had absolutely no right to attempt to limit access to the parent coordinator that both parties agreed to in the stipulation. This methodology was adopted by the parties in the agreement. In order for the parent coordinator to understand the nature of the parties’ relationship with the child, he must be granted unfettered access to the parents and the child forthwith. The methodologies approved by the First Department in the case of Rodman v. Friedman is clearly applicable, and, pursuant to this, a series of fines would have to be imposed upon the mother if she continued to prevent even one visit with the child’s therapist or she fails to sign a retainer and fully and completely cooperate with the parent coordinator she agreed to forthwith. The mother and the child must understand that mother and the father have placed their own and their minor child’s mental and physical health at issue in a custody / visitation dispute. Nevertheless, the issue is still ripe based upon the apparent posttrial continuation of the litigation and the fact that the court is not actually bound to accept the agreement of the parties.
Additionally, the application by the child for an order of protection, which if granted, would further restrict access of the father to the child. The effect of the continuing great length of time that the child has not seen the father is of great concern. The father must recognize that his child is truly afraid of him, and restoration of his relationship with the child must be based upon a restoration of trust. His underlying acts of rage and the tug of war described and the mother’s acts will certainly leave an indelible mark on the child. Evidently, the court found that at some level, there existed some sort of domestic violence in their marriage. While not finding that it was egregious nor did it occur in front of the unemanicipated children or upon them, it still happened and was acknowledged.
Accordingly, the wife was credited with or has received $2,967,321.79 in assets and/or cash and the husband received $2,952,724.44 in assets and/or cash; meaning, the wife received or was credited with $14,587.00 more than the husband. In order to equalize the distribution so that each party receives one half of the marital estate, the wife owed the husband $7,298.50, to which the husband may offset it from the monies due and owing directly to the wife.
New York Child Custody Attorneys, New York Child Visitation Attorneys, New York Child Support Attorneys, and the like, at Stephen Bilkis & Associates are at your service. Call us and have a free consultation with our legal counsels who are the best in their fields. You will be advised of the legal remedies or options you may make in order to resolve your legal problems.