Contested litigation is remarkably unsuited for healing a divorced family. One gets a sense of the feelings of frustration, if not helplessness a Family Court Judge may feel as she tries to figure out “what do we do next?” What remedy should be ordered that will actually strengthen the bonds between parent and children?
Consider the July 1, 2016 decision of Erie County Family Court Judge Mary G. Carney in Matter of Gregory S. v. Dana K. Judge Carney was charged with resolving the claims of a father, rejected by his four children in substantial part due to the mother’s willful violations of visitation orders.
Judge Carney noted that the family’s history was branded by protracted, caustic litigation, toxic interpersonal conflict and all categories of broken hearts.
The parties were divorced in 2003 and have children 19, 17 and 12 year-old twins. The Father presented as a healed but frustrated parent who seeks to normalize his access with the children and live in the present. The Mother presented as a shattered, unreasonable and resentful ex-partner who has been unable to heal in the 13 years since their separation. The Mother used restriction of the Father’s parenting time with the children as her ultimate means of retribution against him.
After their divorce in or around 2004, the Father moved away from the Mother and children to the state of Minnesota where he resided with a girlfriend. This decision seemingly had long-lasting, dire consequences, setting the stage for the Father to become a rejected parent. There is no question that the Mother clings to this decision as “proof” that the Father is unworthy and undeserving of a healthy relationship with the children, repeatedly asserting that “her children are suffering” because of their “the Father’s decision to be out of their lives.”
The Mother testified that she “wished” the children had a better relationship with their father, but blames the Father for “being out of the picture for 10 years” and “squandering his bonding away.” Throughout the trial, the Mother was disproportionately reactive and emotional — both on the witness stand and off. She insisted that she never denied the Father any access, and that she wants nothing more than for the children to have a positive relationship with him. The preponderance of the evidence was considerably contrary to her assertions.
The Father testified that he had fairly normal, regular access with the children even while residing in Minnesota. Sometime in 2006-2007, after introducing the children to his then girlfriend, the Mother abruptly ceased all contact. According to the Father, this caused him to reach out to the children’s school in order to seek their assistance in his reunification. According to the Father, his attempts to enlist assistance from the school were unsuccessful, so he filed a petition to garner the Mother’s compliance. In June, 2007, the Father obtained a court order on consent of the Mother that allowed “unrelated females” to be present during “all visitation” among other provisions.
The Father testified that he could no longer bear living apart from the children, and in or around November, 2008, he left Minnesota and moved to Western New York to be near them. He obtained employment in Rochester. His hour and a half commute interfered with his weeknight access with the children, and while the Mother was unsympathetic to his difficulties, she generally allowed regular access on alternate weekends. In fact, the Father described a period between 2008 and 2011 when he and the Mother were fairly amicable – so much so that the Mother allowed him in her home to have access with the children.
That blissful period ended, according to the Father ,when he introduced the children to his now fiancée, Kelly N. in or around 2012. The Mother’s relentless interference with his parenting time led the Father to file a petition in or around April, 2014 alleging violation of the court’s June, 2007 order. After a hearing , Judicial Hearing Officer Paul G. Buchanan issued his 2015 decision and order finding the Mother to be in willful violation of the prior 2007 order. J.H.O. Buchanan set forth a new schedule of access for the Father.
By March 30, 2015, the Father filed his first petition alleging a violation of J.H.O. Buchanan’s order. By April 6, 2015, he filed his second violation petition. Generally, the Father complained that the Mother refused to comply with J.H.O. Buchanan’s order and all prior continued orders, denying him weekend, weeknight, vacation and holiday access. According to the Father, this led him to file a third petition on May 6, 2015 seeking to suspend his child support obligation until the Mother complies with her obligations pursuant to their custody and visitation orders.
On August 1, 2015, the Father was to commence his month-long summer access period granted by J.H.O. Buchanan. The children were ready a half hour late and left with the Father with a warning from the Mother to “stick together and protect each other.”
There was then a defiant “stand-off” in which the children at first refused to leave the Father’s car, then refused to enter his home. They and walked about the neighborhood on their own, then refused to speak or cooperate with their the Father by relinquishing their cell phones. The children were described as continually on their phones, presumably with the Mother, pleading to return to her home. When the Father reached his “breaking point” with the lengthy ordeal and attempted to grab 16 year-old daughter’s cell phone, he described her as going into “absolute hysteria.” The accusation against the Father was that he “hit” that daughter intentionally. The Father terminated the visit and returned the children to the Mother’s home after five hours.
The Mother’s reaction to the incident was histrionic and troubling. She attempted to paint the Father as an unsafe, abusive parent who caused physical and emotional damage to the children. The Mother never once acknowledged how the children’s obnoxious behavior might have exacerbated the tension and warranted the intervention of parental discipline in the removal of a cell phone. She further failed to recognize how her own insertion into the event escalated it. The Mother testified that she took the children to the Amherst police station that same night to “press charges,” but ultimately abandoned her effort when she thought it might affect the child support she receives from the Father.
This incident led to a nearly two-month separation between the Father and children. He did not seek access again until late September, 2015. The family has never recovered. Judge Carney recognized that the family’s dysfunction went way beyond the actions of just one person — each parent and each child playing a role in furthering their pain and heartbreak.
The Father presented two violation petitions and one petition seeking modification of the prior support order. The Mother petitioned for a modification of the prior order of custody and visitation. Judge Carney acknowledged that the trial provided the unique opportunity to evaluate and observe the demeanor, temperament and sincerity of the witnesses and weigh their respective character and credibility.
Judge Carney found that the Father proved the Mother’s repeated deliberate and willful violations of a prior court order. There was no masking her outright disdain for the court’s order and for the Father throughout her largely evasive, hostile and non-responsive testimony.
During the proceedings, the court ordered the Mother and Father to participate in the children’s counseling with Dr. Bruce B. While compliance with that order was slow to commence, Judge Carney believed said counseling offered a glimmer of hope that this family may heal.
Judge Carney ruled on the Mother’s petition for a modification of the Buchanan Order, that the Mother showed a sufficient change in circumstances to warrant reconsideration. Although the issue of the Mother’s brazen violations of existing court orders cannot be overlooked, Judge Carney held, there was evidence presented that would move the Court to modify the existing order(s) between the parties to account for the confusion, extreme conflict between the parties and reluctance on the children’s part concerning access. The testimony elicited at trial demonstrated the children’s sincere stress and opposition to access with their the Father. There is no doubt that both parents play a role in this unfortunate reality which they must now confront and hopefully, correct.
There was abundant evidence presented that a detailed, modified order of access would be necessary to further serve the best interests of the children. An access schedule that will minimize parental conflict and help this family finally heal will only serve the best interests of the children.
In this particular case, the Attorney for the Children has presented the children’s strong desire to spend no time at all with their the Father. As with the other factors, the children’s desires are not determinative. Moreover, the Attorney for the Children argued that the children were no longer capable of knowing and considered judgment in expressing that preference, and substituted his judgment for theirs.
Judge Carney stated that it is difficult to ascertain the level of the Mother’s influence and obstruction, or even describe it; but there is no question that it exists and is felt pervasively throughout the family. The Mother appears to have abdicated her parental responsibility to the children, demanding only that “their” wishes be heard and respected, while she does nothing to encourage their relationship with their the Father. She appears to support their unreasonable rejection of him and makes it seem as though it is his fault for being unworthy of their love and affection.
Unfortunately, the Father is not equipped to handle his role as the rejected parent and at times fails to recognize how some of his own behavior contributes to his rejection. The Father would do well to take a more gentle approach with his fragile, influenced children. Demanding their obedience, love and affection is a counterproductive approach, as is admonishment of their rejection.
As to his petitions, the Father met his burden by clear and convincing evidence in seeking to hold the Mother in contempt of violating their March 2015 order. The penalty for civil contempt is limited to a fine and/or imprisonment. While evidence at trial demonstrated that the Mother clearly dishonored the prior court orders, Judge Carney held that:
The Father’s requested relief (cessation of his child support obligation in order to force the Mother’s compliance) would not serve the best interests of the children. Incarcerating the Mother would likewise negatively impact the children. Without professional intervention, both of these remedies would be disastrous in serving to further alienate the Father and fuel the Mother’s vilification efforts.
J.H.O. Buchanan’s idea of awarding the Father month-long make-up time was clever, but, in hindsight, devastating. Judge Carney determined to implement a fine-type sanction, blended with educational components in an effort to change this family’s tragic path. However, Judge Carney warned, “should the Mother fail to abide by the modified access schedule and sanctions set forth herein, the court would be left with no option but to consider imprisonment or cessation of child support.”
Instead, the Mother was order to immediately purchase three copies of a book – Divorce Poison: How to Protect Your Family from Bad-Mouthing and Brainwashing by Richard A. Warshak (found at either www.warshak.com or www.amazon.com) and a DVD — Welcome Back, Pluto by Richard A. Warshak (found at either www.warshak.com or www.amazon.com).
The Mother was required to give one copy of the book & DVD to the Father and one copy of the book & DVD to Dr. Bruce B. The Mother was to keep the third copy of the book & DVD for her own consideration.
The Mother was given one month to read the book and watch the DVD. She was ordered to:
prepare a written report of what she learned from the book, movie and in counseling, including a list of a minimum of five (5) corrective measures she intends to take (or has taken) to facilitate reconciliation of children and the Father’s relationship.
Judge Carney also directed that there be “be no disparaging remarks or discussion of court proceedings made in the presence of any child by either party, nor shall they permit any 3rd parties (including significant others of the parents, relatives and older children) to do so.” Further, Judge Carney declared that the Mother has “an affirmative obligation to refrain from discouraging access or agreeing to other activities in place of the Father’s access.” If a conflict is unavoidable, the Mother shall have the affirmative obligation to schedule alternate access and provide all transportation to and from said access. Exchanges of the children were to occur in neutral settings. Both the parties and the children were directed to continue their course of counseling with Dr. Bruce B. until successfully discharged. Finally, Judge Carney adjusted the Father’s regular parenting time.