Pact v. Pact

Decision Date13 March 1972
Citation70 Misc.2d 100,332 N.Y.S.2d 940
PartiesMichael PACT, * Petitioner, v. Brenda PACT, * Respondent.
CourtNew York Family Court

M. MICHAEL POTOKER, Judge:

Starting with King Solomon's famous decision in the first recorded custody case and down through the ages experienced jurists will unreservedly agree that child custody proceedings are the most trying, vexatious and complex of all legal proceedings. The instant matter is no exception.

In the proceeding respondent mother requests termination of petitioner father's visitation rights because of his negative influence, deviousness and deliberate attempts to sabotage her planning for their children. The parties were married in 1960 and divorced eight years later.

Respondent claims that the father is more determined than ever to destroy and provoke the rather tenuous bond existing between the children and herself and encourage them to rebel, abscond from home and spy. She strongly urges that their interests and welfare would be better served if all future visitation were denied to their father. In opposition thereto petitioner pleads for transfer of custody to him or in the alternative, enlarged rights of visitation.

In the original custody hearing before me in February, 1971 I found that under the circumstances and upon the proof then adduced it would be in the best interests of the children that they remain in the custody of their mother with liberal visitation rights accorded to the father.

The facts as disclosed in the instant hearing are not too dissimilar to those presented to the court last year except for two abortive attempts by the children to abscond from their mother's custody in search for refuge with their father. In March, 1971 and again on January 12, 1972 Debra, now age 12, and her sister Allison, two and one half years her junior, were picked up by police officers at the very same location in Old Westbury, approximately ten miles distant from their home in Queens.

The children were confidentially interviewed by the Court in chambers on consent of the parties and on the authority of Lincoln v. Lincoln, 24 N.Y.2d 270, 299 N.Y.S.2d 842, 247 N.E.2d 659 at which time they refused any suggestion from the court that perhaps their fleeing escapade was aided and abetted by their father or some other person acting on his behalf. They insisted that on January 12th they left their school in Queens at 3 o'clock in the afternoon and walked for two and one-half hours until they were spotted by police officers in Old Westbury. By no stretch of the imagination is this court convinced that two girls, 12 and 10 years of age respectively, loaded with school books and using umbrellas part of the time to shield them from the falling rain, hiked ten miles in the time claimed. A search of American track records discloses that the record for that distance in race walking is 1 hour, 13 minutes, 17.6 seconds held by Robert O. Laird of Walnut, California who accomplished the feat on May 16, 1964.

Debra's attitude toward her mother remains unchanged and her hostility seems to have increased rather than diminished. When the court again, as it and the examining psychiatrist attempted last year, tried to understand with more precision and the problems that led her to feel the way she does toward her mother, the girl was unable to give any satisfactory answer.

My impression of Debra is in every respect similar to that formed during last year's custody proceeding and coincides in the minutest detail with the psychiatric diagnosis made by Dr. Alan M. Josephson, a qualified psychiatrist affiliated with the Bureau of Mental Health Services of the Family Court. Debra is overdramatic. Her crying is coercive rather than genuine. The girl seemed to gain strength and was able to bring herself together whenever the court intimated that she should remain in her mother's custody. Under pressure of this sort the girl reintegrated completely, stopped crying and became quite hostile. At various times she would say 'I'm going to live with my father and you can't stop me' or 'I'll run away again.'

Allison is the same shy, confused, ambivalent and fearful little girl who is easily maneuvered by and susceptible to the guiles of her older sibling. She shows far less vehemence toward her mother. It was Dr. Josephson's feeling and the court's the Allison is certainly influenced by Debra's decision to want to live with her father though she probably still has strong feelings of affection towards her mother.

On December 29, 1970 when Dr. Josephson first examined the parties and children he recommended to the court as follows: 'Debra is a head strong demanding, difficult child who wants what she wants. There is no doubt that the girl really wants to live with her father. However, it is not clear in my mind the real extent of difficulty between she and her mother despite the many accusations made by Mr. Pact which are poorly substantiated. The decision as to whether the girl should be with her father or mother is for me a very difficult one since without any real knowledge of the interaction between Debra and her mother and father no real evaluation of the situation can be made . . . An attempt was made to elicit the girl's feelings toward her mother and her mother's feelings toward the girl. As the exchange progressed the girl tensed up her mouth, stopped crying looking mean as could be at the mother said 'You're not important, you're just another woman.' The girl showed great composure, much anger and an utter contempt of her mother. Mrs. Pact on the other hand seemed much more accepting than I would have imagined her to be and tried to make the girl understand that they could try and make things go. It was not my feeling that Debra would accommodate to this. It is therefore felt that the decision for the placement for Debra with her mother or father will depend more upon the legal aspects of this case than the psychiatric possibilities of the girl being harmed by going back to the mother or the advantages that would accrue from her staying with her father.'

Dr. Josephson further recommended that if custody was granted to the mother the situation especially involving Debra's oppositional stance would be ameliorated considerably by obtaining long term therapy for the three of them.

Soon after my decision the parties engaged in a running dispute in and out of court arising out of visitation. On August 13, 1971 Judge Moskoff referred the matter to the Jewish Board of Guardians for inquiry and report as to its recommendations on visitation and simultaneously issued an order of protection which provided Inter alia that 'neither party is to discuss their relationship between themselves with children or any litigation or aspect thereof with children,' and that 'petitioner (father) not administer, prescribe or advise medication or drugs for children without consent of respondent (mother) except in case of dire emergency.'

A current social work report submitted by the Jewish Child Care Association was received in evidence and oral testimony was given by Richard Mullen, a psychiatric social worker who prepared the report after consultation with the agency's psychiatrist, its Director of Court Services, a caseworker and the Hillside Hospital psychiatrist who is treating Debra. He opined that continued frequent exposure to Mr. Pact's influence is detrimental to the children and that if his visitation rights were suspended Mrs. Pact would be able to adequately care for them. He found that Mrs. Pact too has limitations in that she is essentially weak, not strong enough to discipline the children and give them a sense of security in the face of their father's actions.

He found Mr. Pact an unsuitable parent and opposed the transferring of custody to him. As to visitation his report continued: 'Regarding Mrs. Pact's request for the elimination of Mr. Pact's visiting rights, our findings suggest that although continued frequent exposure to Mr. Pact's influence is detrimental, we believe that it would not be practical and workable to eliminate all visits with him. Our reasoning is that Debra is extremely dependent on him; and also we believe that no contacts with him would lead to the undesirable idealization of him by the children which would not permit for realistic modification of their on-going treatment. Therefore, in order to mitigate the father's pernicious influence we recommend that there should be no overnight visits, and all visitation should be limited to one day, and should be daylight visits only. The children should be home before dusk. These stipulations are a reflection of the fact that we view prolonged exposure to the father as detrimental.'

On cross examination Mr. Mullen stated that perhaps division of the children was preferable since he believes that Debra's influence over her younger sister is detrimental to her and that Allison could be saved if the children were separated.

The record is devoid of any proof that Mrs. Pact is an unfit mother. The children's pediatrician testified that he has treated the children since 1965 and found them to be in good health. He found Mrs. Pact to be a concerned mother more so than most other mothers. Debra is doing exceptionally well scholastically nor does Allison present any serious school problem.

It appears that Mrs. Pact is unquestionably a competent parent and able to care for her children. She is sensitive to them, to their problems and their needs.

Despite his faults and shortcomings, which tend to belie his true feelings, petitioner father also appears to be sincerely interested in the welfare of the children. His present spouse impressed the...

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7 cases
  • Salk v. Salk
    • United States
    • New York Supreme Court
    • October 28, 1975
    ...of the case. Matter of Moody, 36 A.D.2d 627, 319 N.Y.S.2d 136; Matter of Green, 25 A.D.2d 935, 270 N.Y.S.2d 556; Pact v. Pact, 70 Misc.2d 100, 332 N.Y.S.2d 940. In preparation of trial, defendant had his children interviewed by both a psychiatrist and Dr. Sol Gordon, Ph.D., is a clinical ch......
  • V., In re
    • United States
    • New York Family Court
    • April 29, 1974
    ...scientists provides the most nearly reliable standard on which to make a decision as to the child's best interests. See Pact v. Pact, 70 Misc.2d 100, 332 N.Y.S.2d 940; Matter of Infant H., 69 Misc.2d 304, 308, 330 N.Y.S.2d 235, The trend in many other jurisdictions has been, in recent years......
  • People ex rel. Blake v. Charger
    • United States
    • New York Family Court
    • January 4, 1974
    ...that custody will be awarded solely on the basis of the child's 'best interests,' whether to parent or non-parent. See Pact v. Pact, 70 Misc.2d 100, 332 N.Y.S.2d 940; Matter of Mittenthal v. Dumpson, 37 Misc.2d 502, 235 N.Y.S.2d 729; People ex rel. Rothman v. Jewish Child Care Association, ......
  • Proceeding for Custody and/or Visitation of Minors Under Article 6 of Family Court Act, Matter of
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    • New York Family Court
    • July 27, 1976
    ...N.Y.S.2d 136; Application of Lang, 9 A.D.2d 401, 193 N.Y.S.2d 763, Aff'd, 7 N.Y.2d 1029, 200 N.Y.S.2d 71, 166 N.E.2d 861; Pact v. Pact, 70 Misc.2d 100, 332 N.Y.S.2d 940. When siblings are seqarated by a court, it has frequently been determined that, in the best interests of children of suff......
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