In the Matter of Aleksander K. v. Elena K., 2004 NY Slip Op 50156(U) (NY 2/17/2004), V-1005-6/00G.
| Decision Date | 17 February 2004 |
| Docket Number | V-1005-6/00G. |
| Citation | 2004 NY Slip Op 50156(U) |
| Parties | IN THE MATTER OF A PROCEEDING FOR VISITATION UNDER ARTICLE VI OF THE FAMILY COURT ACT ALEKSANDER K., Petitioner, v. ELENA K. Respondent. IN THE MATTER OF A PROCEEDING FOR CUSTODY UNDER ARTICLE VI OF THE FAMILY COURT ACT JEANETTE B., Petitioner, v. ELENA K. ALEKSANDER K., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
Sidney Siller, Esq., New York, N.Y., Attorney for Alexsander K., Jason R. Leventhal, Esq., Staten Island, N.Y., Attorney for Elena K., Attorney for Jeanette B., Mario J. Acunzo, Esq. Staten Island, N.Y., Law Guardian.
The instant proceedings involve (1) Elena K.'s Supplemental Petitions, dated September 9, 2002, seeking telephone contact and visitation with her two children, Edward K. (dob 6/5/92) and Sofia1 K. (dob 3/30/95) and (2) Jeanette B.'s petitions, dated July 24, 2002, seeking custody of the same subject children.
This entire matter initially came before the court on April 5, 2000, when Aleksander K., the paternal uncle of Edward and Sonia, came to court seeking an order for their custody. Mr. K. alleged that Elena K., the children's mother, was an alcoholic, had been taking drugs, and was suicidal. He further reported that Ms. K. was currently hospitalized at Bayley Seton Hospital. Mr. K. also indicated that his brother, Boris K., the children's father, had disappeared a week or two earlier, and was believed to be dead. Finally, Mr. K. also represented to the court that Ms. K. was believed to be involved in the disappearance and alleged murder of her husband. The court then issued process and ordered an ACS investigation. The court declined to issue a temporary order of custody but did issue a temporary order of protection on behalf of the children. It directed that Ms. K. stay away from the children and their home at all times, except for ACS-sanctioned visitation.
On April 14, 2000, the court assigned a law guardian, ordered additional investigations, and continued the temporary order of protection.
On May 3, 2000, based upon the reports received, the court vacated the temporary order of protection, and allowed Ms. K. to return home to her children.
On May 5, 2000, Ms. K. was arrested and charged with the murder of her husband.
On May 9, 2000, at Mr. K.'s request, the court reinstated the temporary order of protection, and directed Ms. K. to stay away from the children, their home and school at all times. Ms. K. was subsequently indicted for the murder of her husband and released on bail.
Following Ms. K.'s release from custody, the court continued its temporary order of protection, but did authorize telephone contact between Ms. K. and her children. The court also authorized weekly, professionally supervised visitation. These visits were supervised by Jeanette B. who was paid with estate funds authorized released by the Surrogate's Court. Ultimately Ms. B. filed her own custody petitions which also are the subject of these proceedings. During the next approximately two year period, proceedings were held in Supreme Court-Civil Term, Surrogate's Court, Supreme Court-Criminal Term, and the Family Court. Ms. K. declined to consent to Mr. K. having an order of custody until resolution of the criminal charges against her. Accordingly, this court conducted a protracted hearing to determine whether there were special circumstances which would authorize the non-parent Mr. K. to seek custody (see, Bennett v. Jeffreys, 40 N.Y.2d 543).
On March 26, 2001, the court found that special circumstances had been established. Since Ms. K. had theretofore objected to forensics until the issue of special circumstances could be resolved, the court then ordered forensics on the issue of custody. The forensics were not completed until the end of December 2001, and recommended that, pending resolution of the criminal charges against Ms. K., Mr. K. have custody and Ms. K. have visitation and telephone contact with the children. Since there was no agreement as to custody, the court then scheduled several dates in January 2002 for trial of the custody issue.
For varying reasons not attributable to the court, the trial could not be commenced on any of the scheduled dates. The court was then unable to reschedule the commencement of the custody trial due to the anticipated commencement of the criminal trial against Ms. K. Ultimately, the court decided to delay the custody proceedings until resolution of the criminal proceedings because the criminal proceedings were potentially dispositive of the custody proceedings. During this period of time, Ms. K. had continued telephone contact with the children, and weekly visits supervised by Ms. B.
On June 25, 2002, Ms. K. was found guilty of Murder in the Second Degree, her bail was revoked, and she was remanded into custody.
On July 16, 2002, Jeanette B. filed petitions for guardianship in the Surrogate's Court (File Nos. G43-44/2002).
On July 23, 2002, the court, recognizing that Ms. K. was facing mandatory incarceration, and would therefore be unavailable to care for her children, found that it would be in the children's best interests to permanently reside with their uncle. Accordingly, the court issued Mr. K. final orders of custody.
On July 24, 2002, Jeanette B. filed her petitions for custody of the children.
On August 5, 2002, Ms. K. filed her first petitions for telephone contact and visitation with the children. These petitions were dismissed, on procedural grounds, on August 6, 2002.
On September 12, 2002, Ms. K. filed her second petitions for telephone contact and visitation with her children.
On September 20, 2002, constrained by the requirements of Domestic Relations Law § 240(1-c), the court declined to order any temporary telephone contact or visitation until such time as the court could determine what, if any, visitation or telephone contact would be in the children's best interests. The parties were also unable to agree on whether the children were of sufficient age and maturity to assent to visitation. Accordingly, the court indicated that it wanted new forensics on this issue, and the broader issue of what, if any, visitation would be in the children's best interests. The court also directed the parties to try to agree upon a clinician. It then took the parties several months to agree upon a clinician to conduct the forensics. Finally, upon the consent of all the parties, the court ordered Robert J. Kaplan, M.D. to conduct the forensics.
On September 24, 2002, Ms. K. received a custodial sentence of twenty-two years to life.
On October 21, 2002, Mr. K. filed petitions for guardianship in the Surrogate's court (File Nos. G72-3/2002).
On October 29, 2002, the court conducted an in camera interview of Edward and Sonia regarding their desire to visit with their mother and their desire to live with Ms. B. As a result of that interview, the court found that they were of sufficient age and maturity to assent to visitation with their mother.
On June 2, 2003, the Surrogate's Court denied Ms. B.'s petition for guardianship, and appointed Mr. K. general guardian of the person and property of the children.
On July 22, 2003, the hearing on Ms. K.'s visitation petition commenced. Additional testimony was taken on October 20, 2003, October 21, 2003, January 6, 2004 and January 7, 2004.
The court heard the testimony of Dr. Kaplan, who testified as a court witness. On Ms. K.'s case, the court heard the testimony of Marie Noonan, a Senior Corrections Counselor employed by the N.Y.S. Department of Correctional Services, and the testimony of Ms. K. On Mr. K.'s case, the court heard the testimony of Michael Epstein, Ph.D., a psychologist who is the children's current therapist in Florida; the testimony of Alexander Sherman, M.D., a New York psychiatrist who saw the children in Florida on two consecutive days in June 2003; the testimony of Marvin Meyers, Ph.D., a psychologist who saw the children prior to their move to Florida at the end of December 2002; and the testimony of Mr. K. The court also re-interviewed the children, in camera, regarding their move to Florida and their current views on visitation with their mother.
The court also received, in evidence, Dr. Kaplan's written report (Court Exhibit #1), a partial record of Ms. K.'s hospitalization at Bellevue Hospital Center in December 2000 (Respondent/Uncle's "A"), the record of Ms. K.'s hospitalization at St. Vincent's Catholic Medical Centers in April 2000 (Respondent/Uncle's "B"), and a partial record of Ms. K.'s hospitalization at Bellevue Hospital Center in December 2000 (Respondent/Uncle's "C").
In July 1998, Section 240 of the Domestic Relations Law was amended to add a new subdivision 1-c [see, Laws of 1998, Chapter 150, Section 1]. As a result, DLR § 240 (1-c) now prohibits a court from making an order providing for visitation by a person who has been convicted of the murder of the parent of a child who is the subject of the proceeding. An exception can be made when the child is both of suitable age to assent and does assent [see, DLR § 240 (1-c)(b)(i)(A)] and the court finds that such visitation would be in the best interests of the child [see, DLR § 240 (1-c)(b)(ii)].
Domestic Relations Law §240(1)(a) requires the court, in determining custody or visitation, to consider the effect of domestic violence upon the best interests of the children when allegations of domestic violence have been proven by a preponderance of the evidence.
The Law Guardian opposes Ms. K.'s petition for visitation and telephone contact with Edward and Sonia and also opposes Ms. B.'s petition for their custody.
At the outset of each in camera interview of Edward and Sonia, the court assured them that what they said during the interviews would be kept confidential, and would not be revealed...
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