Proceeding for Support under Article 4 of the Family Court Act, Matter of

• Decision Date: 19 December 1975
• Parties: . Jane DOE, Petitioner, v. John DOE, Respondent. Family Court, City of New York, New York County
• Court: New York Family Court

Page 269

378 N.Y.S.2d 269

86 Misc.2d 194

In the Matter of a PROCEEDING FOR SUPPORT UNDER ARTICLE 4 OF the FAMILY COURT ACT Jane DOE, Petitioner, v. John DOE, Respondent.

Family Court, City of New York, New York County.

Dec. 19, 1975.

London, Buttenwieser, Bonem & Valente, New York City, for petitioner; Philomene Gates, New York City, of counsel.

Lans, Feinberg & Cohen by Robert Stephan Cohen and Deborah E. Lans, New York City, for respondent.

DECISION AND ORDER

NANETTE DEMBITZ, Justice:

The proceeding at bar arises from a visitation dispute between divorced parents; it resulted in respondent-father's reduction in his monthly payments of $3,025 for alimony and child support to an amount for child support alone (plus the two children's private school expenses). The primary issues are whether petitioner should be awarded the large arrears that have accrued because of the reduced payments, and whether visitation should now be directed between the children and respondent-father despite psychiatric opinion to the contrary.

Petitioner-mother and respondent-father, married in 1952 with two daughters born respectively in 1962 and 1967, were divorced in 1970 by a Mexican decree; the visitation provisions which were concededly breached by petitioner, were detailed in a separation agreement that was incorporated but not merged in the decree. This proceeding was transferred to this Court by the Supreme Court with an opinion ruling that petitioner's failure 'to comply with the visitation provisions of the agreement . . . may . . . be a defense to a claim for support payments. . . .' ¹ This Court is bound by that ruling, it being not only the law of the case (see Mt. Sinai Hospital v. Davis, 8 A.D.2d 361, 188 N.Y.S.2d 298 (1st Dept.); Brown v. Brown, 71 Misc.2d 818, 337 N.Y.S.2d 465, aff'd. 39 A.D.2d 897, 334 N.Y.S.2d 1005 (1st Dept.)) but a condition of the transfer. In any event, this Court's ruling as to the general dependency of support and visitation provisions would perforce be the same. Callender v. Callender, 37 A.D.2d 360, 325 N.Y.S.2d 420 (1st Dept.); see also Fleischer v. Fleischer, 25 A.D.2d 901, 269 N.Y.S.2d 270 (3rd Dept.); Webster v. Webster, 14 Misc.2d 64, 68, 176 N.Y.S.2d 799, 803 (Sup.Ct., Westch.). ² Petitioner contends, however, that she is entitled to the arrears in support payments because compliance with the visitation provisions would have been detrimental to the children's welfare. On this issue--the affect on the dependent conditions doctrine of the interest in the child's welfare,--the Supreme Court did not rule.

1. Bearing of Child's Welfare on Dependent Conditions Rule.

A proviso that visitation can be modified or terminated if it is detrimental to the child must, as a matter of public policy, be deemed an implied term of any agreement or decree. Support arrears therefore must be paid despite the breach of visitation provisions as written, if their effectuation would have disserved the child's welfare. See Abraham v. Abraham, 44 A.D.2d 675, 353 N.Y.S.2d 794 (2nd Dept.); Sawyer v. Larkin,37 A.D.2d 929, 326 N.Y.S.2d 270 (1st Dept.); Altschuler v. Altschuler,248 App.Div. 768 (2nd Dept.); D. v. O., 77 Misc.2d 230, 231--2, 352 N.Y.S.2d 842, 845--6 (Fam.Ct., N.Y.). The custodial parent must be free from any financial coercion to damage the child and to abdicate proper parental responsibility. ³ Thus, the difficulty of determining after the event whether the agreed visitation would have been detrimental to the children herein, is unavoidable. ⁴

While petitioner may invoke the children's welfare as justification for her conduct, she bears a heavy burden of proof to establish convincingly that the agreed visitation would have been clearly detrimental to them. The visitation provisions, which were the customary and reasonable type, must be deemed at least presumptively valid under Callender, as well as on the basis that they represent the judgment of presumably concerned parents. Only a 'pressing concern' (Abraham, 44 A.D.2d at p. 676, 353 N.Y.S.2d at p. 795) and proof that visitation is 'inimical to the welfare of the children' (Application of Denberg, 34 Misc.2d 980, 986, 229 N.Y.S.2d 831, 837 (Sup.Ct., Queens)) justifies the deprivation of reasonable visitation. See also Kresnicka v. Kresnicka, 42 A.D.2d 607, 345 N.Y.S.2d 118 (2nd Dept.) and Herb v. Herb, 8 A.D.2d 419, 422, 188 N.Y.S.2d 41, 44 (4th Dept.) (only 'substantial evidence' justifies a denial of visitation); Becker v. Becker, 28 A.D.2d 1002, 284 N.Y.S.2d 25 (2nd Dept.) and P. ex rel. Chitty v. Fitzgerald, 40 Misc.2d 966, 967, 244 N.Y.S.2d 441, 442 (Sup.Ct., Kings) (burden of proof on custodial parent). Visitation must be carefully protected, not only as a phase of the parent's right to the custody of his child, ⁵ but also as a phase of the developing body of children's rights. ⁶

2. Children's Welfare in Relation to Visitation.

Petitioner's allegation that the agreed visitation would have been detrimental to the children in and after October 1971 is based on their alleged psychological mistreatment in February 1971 during their first visit to respondent and his second wife following his remarriage. Both children have expressed adverse sentiments about the 1971 visit and all visitation; the long trial was devoted mainly to evidence as to the quality and reason for their hostility.

a. Admissibility and Weight of Evidence.

Testimony quoting the children's statements from time to time was elicited both to prove physical acts and the children's beliefs or feelings. Such testimony appears admissible on the ground that a child's contemporaneous statements may be more reliable than his later testimony or statements in a Court interview, particularly when, as here, his recollection of past events is likely to be molded by his subsequent discussions of them with adults. Compare Lincoln v. Lincoln, 24 N.Y.2d 270, 272, 299 N.Y.S.2d 842, 843, 247 N.E.2d 659, 660, where the Court, approving a judge's private interview with a child, stated that it would be 'far more informative and worthwhile than the traditional procedures of the adversary system . . . limited modifications of the . . . adversary system must be made, if necessary.' See Falkides v. Falkides, 40 A.D.2d 1074, 339 N.Y.S.2d 235 (4th Dept.) (hearsay report as to child admissible in custody case); Walch v. Walch, 52 N.Y.S.2d 697, 707 (Sup.Ct., Steuben); Camp v. Camp, 213 Ga. 65, 97 S.E.2d 125, 126 (Ga.1957); compare State v. Reister, 80 N.W.2d 114, 115--16 (N.D.1956) and Gray v. Florida, 184 So.2d 206, 207 (Fla.1966) (contemporaneous statement by child admissible in criminal or quasi-criminal case); Fleury v. Edwards, 14 N.Y.2d 334, 341, 251 N.Y.S.2d 647, 653, 200 N.E.2d 550, 554 (general liberalization of rule against hearsay). ⁷ Such hearsay must of course be carefully appraised not only from the usual standpoint of the witness' credibility but also of any circumstances influencing the child's statement.

Two experts testified as to the children's feelings towards respondent and the need for petitioner's curtailment of respondent's visitation rights. One was petitioner's psychoanalyst whose focus was conditioned by his patient's and whose reliability as a witness was diminished by other factors as well; his testimony is entitled to little weight. While the Court-appointed psychiatrist did not suffer from the other expert's disabilities, the trier of the facts must determine how much weight to give to the testimony of any expert. ⁸ Here neither expert had a basis for appraising whether respondent's alleged mistreatment of the children in fact occurred, nor did either of them attempt to appraise petitioner's influence on the children's attitudes; the Court had the benefit of a mass of evidence bearing on both questions (over 3,000 pages of testimony and answers to interrogatories and 90 exhibits as well as an interview with the older child in conclusion). The statement in Lincoln is applicable to a psychiatrist as well as a judge: 'Without a full background on the family and the child, these interviews (by the Judge) can lead the most conscientious Judge astray.' (24 N.Y.2d at p. 273, 299 N.Y.S.2d at 844, 247 N.E.2d at 661). Thus, neither expert was able to offer persuasive opinions on the difficult question of the source of the children's expression of hostility to respondent.

b. Basis for Children's Attitude Towards Respondent.

Crediting those psychological perceptions in the experts' testimony, notes, and reports ⁹ which appear well-based (discussed in the supplementary findings filed herewith), as well as the facts and inferences set forth at length therein, the Court finds that the children were not mistreated by respondent or their stepmother during the 1971 visit; that their attitude towards respondent was instead the product of petitioner's relationship with them and of her attitudes after respondent's divorce and remarriage, although she never explicitly told them not to visit or to dislike him; that her termination of visitation in accordance with the agreement and decree was not required for the children's welfare; and that it was rationally feasible for petitioner to have determined in October 1971 that the alleged mistreatment had not occurred, and to have continued such visitation. The problem of adjustment by young children to separation from their mother and to visitation in the residence of their father and stepmother would here have been overcome but for the effect of petitioner's attitudes.

A rejection of the non-custodial parent because of the attitudes of the custodial parent unfortunately is not unique to this case. See Lincoln, where the Court recognized 'the effect of parental differences on the child' and that a child of divorce 'is subjected to emotional stresses that may produce completely distorted images of its parents and its situation . . .' (24 N.Y.2d at pp. 272--273, 299 N.Y.S.2d at 844, 247 N.E.2d at 661); Garber v. Cooper, 40 A.D.2d 1077, ...