Young v. Young

• Decision Date: 26 June 1995
• Citation: 628 N.Y.S.2d 957,212 A.D.2d 114
• Parties: Eileen YOUNG, Respondent, v. Stephen YOUNG, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 957

628 N.Y.S.2d 957

212 A.D.2d 114

Eileen YOUNG, Respondent, v. Stephen YOUNG, Appellant.

Supreme Court, Appellate Division,

Second Department.

June 26, 1995.

Vitale, Levitt & McCarthy, P.C., Huntington (Paul E. Levitt, of counsel), for appellant.

Arthur Levine, Garden City, for respondent.

Alfred Reinharz, Baldwin, Law Guardian for infants.

Before BALLETTA, J.P., and O'BRIEN, THOMPSON and GOLDSTEIN, JJ.

BALLETTA, Justice Presiding.

It has been observed by our court that "[t]he natural right of visitation jointly enjoyed by the noncustodial parent and the child is more precious than any property right" (Resnick v. Zoldan, 134 A.D.2d 246, 247, 520 N.Y.S.2d 434) and that "the best interests of the child would be furthered by the child being nurtured and guided by both of the natural parents" (Bostinto v. Bostinto, 207 A.D.2d 471, 472, 616 N.Y.S.2d 58). Indeed, a custodial parent's interference with the relationship between a child and a noncustodial parent has been said to be "an act so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as a custodial parent" (Maloney v. Maloney, 208 A.D.2d 603, 603-604, 617 N.Y.S.2d 190). Such interference with the relationship between a child and a noncustodial parent can take many forms, the obvious being the outright denial of visitation by making the child physically unavailable at the appointed time. However, the instant case involves a more subtle and insidious form of interference, a form of interference which, in many respects, has the potential for greater and more permanent damage to the emotional psyche of a young child than other forms of interference; namely, the psychological poisoning of a young person's mind to turn him or her away from the noncustodial parent. In this case, if left with their mother, the children would have no relationship with their father given the mother's constant and consistent single-minded teaching of the children that their father is dangerous. She has demonstrated that she is unable and unwilling to support the father's visitation; and it was, therefore, an improvident exercise of discretion to deny the father's petition for a change of custody.

The parties herein, Eileen Young (now Miller) and Stephen Young (hereinafter the mother and the father, respectively), were married on August 21, 1982, and had four children together: Stephen, Jr., born March 12, 1983 (now 12 years old); Melissa, born August 28, 1984 (now 10 years old); Bryan, born November 21, 1985 (now 9 years old); and Emily, born September 29, 1987 (now 7 years old). The father left the marital residence in November 1988, and a divorce action was commenced the following month. Following a trial on the issues of equitable distribution, support, and maintenance held in April 1991, a memorandum decision was issued on June 1, 1992. Although the father had, during the early stages of the divorce action, stipulated to the mother having custody of the children, he moved, by order to show cause dated June 17, 1992, inter alia, for a change of custody to him, with the mother to be given only supervised visitation based upon what he claimed to be the mother's "bizarre and dangerous behavior" which was "calculated to destroy the children's relationship with [him]".

In primary part, the father referred to the mother's persistent and uncorroborated allegations that he was sexually abusing their children, her continuing to make new claims of abuse even though all other claims had been determined to be unfounded. He suggested the possibility that the mother herself may have caused the youngest child's vaginal and rectal area to become reddened prior to the mother's bringing her to the hospital. The father further noted the mother's ongoing interference with visitation by various other means, including making accusations of sexual abuse and warning him not to engage in such activities in the presence of the children. In the father's view, a change in custody was critical to the children's well-being and mental health.

The mother opposed the application, and the matter was subsequently referred for a hearing before Judicial Hearing Officer Marchese. Since the original Law Guardian had died in the interim after having issued his report in the matrimonial matter recommending that the father have unsupervised visitation, the court appointed a new Law Guardian for the children, Alfred Reinharz, Esq., as well as a psychiatrist, Marc Reubins, M.D., to conduct forensic examinations and to make a recommendation as to custody.

In the meantime, while waiting for the forensic evaluations to be concluded, the father sought to have visitation extended to include overnight visits. However, given the pendency of the proceedings and upon the recommendation of the Law Guardian, the court denied the application, notwithstanding the fact that the previously-raised claims of abuse had been determined to be unfounded.

Thereafter, the mother made an application by order to show cause dated May 13, 1993, to modify the father's visitation and to suspend visitation with the youngest child, Emily, based upon a new charge of sexual abuse against the father involving Emily which was alleged to have occurred during a May 2, 1993, visit. Pending the determination of this application, visitation with Emily was suspended, and the court subsequently indicated that it meant to suspend visitation with all of the children pending a hearing thereon. It does appear from the record, however, that visitation with the other children was subsequently reinstated, as was visitation with Emily at a later point.

While this latter matter, visitation, was related to the main application, the court indicated that it would hear them separately but eventually did combine the two.

Following the hearings, which spanned approximately one and one-half years, and notwithstanding the recommendations of both the Law Guardian and the court-appointed psychiatrist in favor of transferring custody to the father, the court ruled, on August 31, 1994, that custody should remain in the mother.

With respect to appellate review of a custody determination, it has been observed that the Appellate Division's "authority in custody matters is as broad as that of the trial court" (Matter of Rosiana C. v. Pierre S., 191 A.D.2d 432, 433, 594 N.Y.S.2d 316; see, Matter of Krebsbach v. Gallagher, 181 A.D.2d 363, 364, 587 N.Y.S.2d 346; Linda R. v. Richard E., 162 A.D.2d 48, 50, 561 N.Y.S.2d 29). While due deference is often accorded to the trial court, which has seen and evaluated the evidence and witnesses first hand, the overriding concern is always the best interests of the children, and an "appellate court would be seriously remiss if, simply in deference to the finding of a Trial Judge, it allowed a custody determination to stand where it lacks a sound and substantial basis in the record and, indeed, is contrary to the weight of the credible evidence" (Matter of Gloria S. v. Richard B., 80 A.D.2d 72, 76, 437 N.Y.S.2d 411; see also, Matter of Rosiana C. v. Pierre S., supra, at 433, 594 N.Y.S.2d 316; Fox v. Fox, 177 A.D.2d 209, 211-212, 582 N.Y.S.2d 863; Keating v. Keating, 147 A.D.2d 675, 677, 538 N.Y.S.2d 286).

As is relevant to this case, among the factors to be considered by the court in making a custody determination are: "the parental guidance the custodial parent provides for the child; the ability of each parent to provide for the child's emotional and intellectual development; the financial status and ability of each parent to provide for the child; [and] the overall relative fitness of the parties" (Matter of Rosiana C. v. Pierre S., supra, at 434, 594 N.Y.S.2d 316; see also, Eschbach v. Eschbach, 56 N.Y.2d 167, 172-173, 451 N.Y.S.2d 658, 436 N.E.2d 1260). Additionally, "the effect that an award of custody to one parent might have on the child's relationship with the other parent" is also a proper and relevant consideration (Bliss v. Ach, 56 N.Y.2d 995, 998, 453 N.Y.S.2d 633, 439 N.E.2d 349).

"[T]he existence or absence of any one factor cannot be determinative on appellate review since the court is to consider the totality of the circumstances" (Eschbach v. Eschbach, supra, at 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260). In the end, any determination of child custody must be based upon "what is for the best interest of the child, and what will best promote its welfare and happiness" (Domestic Relations Law § 70; see also, Eschbach v. Eschbach, supra, at 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260).

Applying these basic and well-known legal principles to this case, we find that the trial court's determination denying the father's application for a change of custody (primarily due to the mother's interference with visitation and unfounded accusations against him of sexual abuse of their children) was an improvident exercise of discretion in view of the record which included recommendations by both the court-appointed psychiatrist and the Law Guardian that the father be given custody of the four minor children.

While it is true that the recommendations of court-appointed experts are but one factor to be considered in making any custody determination and are not determinative (see, Matter of Prete v. Prete, 193 A.D.2d 804, 598 N.Y.S.2d 79), such recommendations are entitled to some weight (see generally, Bluemke v. Bluemke, 155 A.D.2d 574, 575, 548 N.Y.S.2d 31; Asher v. Asher, 79 A.D.2d 904, 905, 434 N.Y.S.2d 245; Guzzo v. Guzzo, 66 A.D.2d 833, 411 N.Y.S.2d 408), as is the case with respect to the recommendations and findings of the court-appointed Law Guardian (see, e.g., Keating v. Keating, supra, 147 A.D.2d 675, 678, 538 N.Y.S.2d 286; Matter of Burke v. White, 126 A.D.2d 838, 841, 510 N.Y.S.2d 759), unless such opinions are contradicted by the record (see, Rentschler v. Rentschler, 204 A.D.2d 60, 611 N.Y.S.2d 523). Indeed, in Linda R. v. Richard E....