MATTER OF JF v. LF

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

181 Misc.2d 722
694 N.Y.S.2d 592

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

June 25, 1999.

Joel Martin Aurnou, White Plains, for petitioner.

Arnold S. Kronick, White Plains, for respondent.

Lucille Oppenheim, White Plains, Law Guardian.

[181 Misc.2d 723]

OPINION OF THE COURT

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 11 and 13 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.

[181 Misc.2d 724]

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 15 days. The court conducted in camera interviews of both children

[181 Misc.2d 725]

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...