If a judge, and particularly one held in as high regard as former New York County Supreme Court Justice Jacqueline W. Silberman, tells you that you have contributed to your “fractured relationship” with your child and recommends counseling/therapy, you should probably follow the advice.
The parents of a now-19 year old son have been engaged in decade of contested litigation. They were divorced in 2004. Joint legal custody and shared parenting time was replaced by 2006 by an award of sole custody to the father when the mother’s post-divorce relationship with her boyfriend caused the child severe emotional distress. Twice, the court recommended counseling. The parties’ son, now in college, has refused contact with his mother.
The current proceeding involved the father’s 2009 application for an order of support and contribution towards the child’s therapy costs. The mother raised as a defense a contention that the child had been alienated from her by the father and that the child had constructively emancipated himself from the mother.
After a hearing, Ulster County Family Court Judge Marianne O. Mizel found in October 2010 that the mother’s affirmative defenses lacked merit, and granted the father’s motion to dismiss her defenses. In its May 3, 2010 decision in Dempsey v. Arreglado, the Third Department affirmed, upholding Judge Mizel’s finding that although he may bot be a model cooperative parent, the father did not unjustifiably interfere with the mother’s rights regarding the child, nor was he the cause of the fractured relationship.
Child support payments may be suspended where the custodial parent unjustifiably frustrates the noncustodial parent’s right of reasonable access . . . . Further, a child’s right to support may be forfeited if the child is of employable age and the child actively abandons the noncustodial parent by, without cause, refusing contact . . . . To prevail on the issue of abandonment, a parent must show that the child’s refusal of contact “is totally unjustified.”
Here, the appellate court noted that there was ample evidence that the mother’s own conduct was the cause of the broken relationship with her son. She was informed shortly after the change in custody to the father that her actions were severely traumatizing the child and that proper counseling would be important to resuming visitation. Nevertheless, she did not follow through with such counseling. Instead, she continued to blame others and failed to appreciate her own role in alienating her child.
As a result, the mother failed to sustain her burden of showing a lack of justification for the child’s refusal to maintain contact with her.