J.F. v. L.F.

• Decision Date: 25 June 1999
• Citation: 694 N.Y.S.2d 592,181 Misc 2d 722
• Parties: In the Matter of J.F., Petitioner, v. L.F., Respondent.
• Court: New York Family Court

Page 592

694 N.Y.S.2d 592

In the Matter of J.F., Petitioner, v. L.F., Respondent.

Family Court, Westchester County, New York.

June 25, 1999.

Joel Martin Aurnou, White Plains, for petitioner.

Arnold S. Kronick, White Plains, for respondent.

Lucille Oppenheim, White Plains, Law Guardian.

SANDRA B. EDLITZ, J.

The parents in this custody proceeding have had a long, tortured history in the courts regarding custody and visitation issues, heard before numerous judges over the course of a decade. The animosity that the mother, the physical "custodial" parent ¹, has long harbored for the father has not lessened with time. As predicted by the mental health professionals at the inception of these matters, the mother has succeeded in causing parental alienation ² of the children from their father, such that they wish no longer to have frequent and regular visitation or anything much else to do with him. Given this parental interference, the issue before this Court is whether it is in the best interests of the subject children, now eleven and thirteen years of age, to modify the custody order and to grant the father sole custody. Ultimately, with much deliberation, this Court has determined that the long term emotional best interests of these children mandate a change of custody to the father.

Background History

The parties were married. There are two children of the marriage, J.F., born on May 26, 1986, and C.F. born on March 8, 1988. In or around July 22, 1990, the parties separated. The Westchester County Supreme Court granted the father an Order of Visitation entered on April 5, 1991 in which the father was granted unsupervised visitation with the children, with the police to assist in "procuring" this visitation for the father. The parties' divorce action was tried before a Judicial Hearing Officer who rendered a decision dated January 21, 1993 providing, in part, for custody of the children "to continue" with their mother. The Judgment of Divorce was filed on October 3, 1994, and granted the mother sole custody. An Order, on consent, was entered on October 16, 1995, which provided, inter alia, that the parties shall have joint custody, with primary physical residence with the mother, and for a visitation schedule for the father. The following wording of that Order is the subject of this proceeding:

should any further parental interference with the rights of the other parent be demonstrated to the satisfaction of this court, the court after a hearing shall use its power to terminate the joint-custody arrangement and award sole custody to one party under the appropriate circumstances and to incarcerate a parent for any willful interference.

(Emphasis added).

The Subject Petitions

On August 13, 1998, the Petitioner/father, by Order to Show Cause against Respondent/mother, applied for an Order transferring custody to him, directing that the children be evaluated by Dr. Daniel Feinberg, (a psychiatrist who was appointed by the Supreme Court in the parties' divorce action and who testified before the Family Court in 1995) holding the mother in contempt of this Court's Order entered on October 16, 1995, suspending child support payments, and for other relief. Annexed to the Order to Show Cause is an affidavit of the psychiatrist, Dr. Daniel Feinberg. In his affidavit, Dr. Feinberg recommended a change of custody to the father. An affidavit of the father, along with an extensive exhibit, provided a summary of the mother's alleged willful interference with visitation, and examples of ways in which the mother allegedly alienated the children from their father during the years 1996, 1997 and 1998.

The Court conducted a continued hearing over the course of fifteen (15) days. The Court conducted in camera interviews of both children on March 26, 1999, and of C.F. on June 1, 1999. The Court withheld rendering a decision until June 25, 1999 when the school term was over for the children, with the consent of the parties, and in their best interests, so as not to disrupt their lives any more than is necessary. Both parties were represented by counsel. The Law Guardian who represented the children during the parties' divorce action, and thereafter, in all Family Court proceedings again represented them.

The Court had an opportunity to observe the children closely during the extensive in camera interviews. They are both highly intelligent and articulate and, in many ways, engaging and charming. They also show a resilience and ability to adapt to situations. Yet, particularly when discussing their father and his family, they present themselves at times in a surreal way with a pseudo-maturity which is unnatural and, even, strange. They seem like "little adults." This Court finds that they live a somewhat sheltered, cloistered existence with their mother, emotionally and socially. They do not have friends to their home on a regular basis, and they do not go to other children's homes with any frequency. They do not have friends in their mother's neighborhood.

The loving way in which the children perceive their mother, and the way in which they uncritically describe her as being perfect, stands in stark contrast to their descriptions of their father. Their opinions about their father are unrealistic, misshapen and cruel. They speak about and to him in a way which seems, at times, to be malicious in its quality. Nothing in the father's behavior warranted that treatment. The psychiatrists testified that the children are aligned in an unhealthy manner with the mother and her family. This is evidenced not only in the testimony of the father but also in the in camera interview. They repeatedly refer to the mother's family as "my family," but they do not refer to the father or his family that way. Both children used identical language in dismissing the happy times they spent with their father as evidenced in the videotape and picture album as "Kodak moments." They deny anything positive in their relationship with their father to an unnatural extreme.

The Court carefully considered all of the testimony, the in camera interviews, the current forensic reports and the voluminous exhibits entered into evidence. This evidence included two videotapes, one from 1994 which involved the children speaking with their father's, now, current wife about alleged mistreatment at the hands of their mother, and one which is representative, allegedly, of the visits over the years of the children with their father. Petitioner entered into evidence a photograph album of pictures of the children with their father.

Forensic Reports and Testimony

This Court is convinced that the subject children have been alienated from their father by their mother. Their negative view of their father is out of all proportion to reality. The children, by their conduct, have demonstrated that they do not wish to visit with their father. The predictions of the mental health evaluators have unfortunately come true. All three of the experts agree that the children have been alienated from their father by their mother.

Dr. Herbert Lessow, a Board certified psychiatrist (not a child psychiatrist), has served as the independent Court psychiatrist in this matter at least since 1994, again in 1995, and for the instant proceeding. In 1994 and 1995 Dr. Lessow recommended a change in custody to the father.

In connection with this proceeding, pursuant to Order of this Court, Dr. Lessow conducted psychiatric evaluations of the parents and children and submitted reports dated October 16, 1998 and January 21, 1999. In his preliminary report dated October 16, 1998, and in his testimony, he reported that the father has no evidence of any psychiatric disorder in the area of "thinking, affect, or behavior." He did not find evidence that the father had attempted to alienate the children from their mother, and he testified that the father had "insight." He further reported that the mother continued to have a DSM IV psychiatric diagnosis of "moderate-to-severe Personality Disorder, NOS, with Borderline, Obsessive, and Passive-Aggressive features. The possibility of paranoid traits may still be entertained." With regard to the mother, he stated that "the issues that were present... have clearly continued and are probably even more severe in regards to Parental Alienation of the children from their natural father." He stated, in part, that

...[M]other has clearly won the war over the children's minds and hearts and the father is generally helpless to offset that. Children, likewise, are deeply attached in a symbiotic fashion with their mother ... Father is painted in a highly derogatory and negative fashion, way out of proportion to any possible deficiencies that he may have. This is clearly a borderline mental device within the mother's psychology which has been clearly duplicated in the children. The overall prognosis for any major change in their attitude would appear to be quite limited at this time, even with expert psychiatric assistance.

(Emphasis Added ). Dr. Lessow did not recommend a change in custody in that he was concerned about the near term and intermediate effect on both children, but he remained "extremely concerned" about the overall prognosis with either decision.

The court appointed psychologist, Melvin Sinowitz, Ph.D., concluded in his reports dated December 1, 1998, that the Parental Alienation Syndrome is "clear" and "definite" with both children. He found that if C.F. is separated from the mother, she will become "increasingly anxious, she will be depressed, and her oppositionalism will become her mode of dealing with her difficulties." Dr. Sinowitz did not see her as decompensating more than he suggested, and he did not fear that she would become psychotic. As to J.F., Dr. Sinowitz concluded that, as with his sister, the reality deficits are circumscribed and encapsulated around the "Parental Alienation Syndrome." If he is removed from his mother's home, the...