The father petitioned the Family Court for enforcement of his rights to visit with his 13-year old son. Alternatively, the father asked to suspend his child support obligation. Instead, Westchester County Family Court Judge Hal B. Greenwald granted the mother’s cross petition to modify the prior order of custody and visitation and suspended the father’s visitation with the subject child.

The Appellate Division, Second Department, modified that order by suspending the father’s child support obligation, affirming the suspension of all visitation in its September 2, 2015 decision in Matter of Coull v. Rottman.

In determining custody and visitation rights, the most important factor to be considered is the best interest of the child. Here, the evidence demonstrated that despite the fact that the child had participated in therapy for several months in an effort to foster a relationship with his father, the child remained vehemently opposed to any form of visitation with the father. Furthermore, while the express wishes of the child were not controlling, they were entitled to great weight, particularly where the child’s age and maturity would make his or her input particularly meaningful. Here, the appellate court held that the Judge Greenwald was entitled to place great weight on the child’s wishes, since he was mature enough to express them. Judge Greenwald’s finding that further attempts to compel the child, who was then 13 years old, to engage in visitation would be detrimental to the child’s emotional well being had a sound and substantial basis in the record and, thus, would not be disturbed.

However, contrary to Judge Greenwald’s conclusion, the evidence justified a suspension of the father’s obligation to make future child support payments. The forensic evaluator testified that there was a “pattern of alienation” resulting from the mother’s interference with a regular schedule of visitation. The evaluator was unable to complete her evaluation because the mother refused to consent to the evaluator’s request to speak with mental health providers or school officials, and the child did not appear for his interview.

Moreover, after the father’s last visit with the child, the father continued to go to the exchange location on visitation days for several months. On one occasion, the mother and child appeared, but the mother said the child would not come out of the car. On the other occasions, neither the mother nor the child appeared, nor did the mother communicate with the father. The father was never told about the child’s medical needs or that the child had been hospitalized until after the fact, nor was he advised of any information about the child’s school or school events.

Further, the record reflected that the mother, who represented herself before Judge Greenwald, assumed an inappropriately hostile stance toward the father and witnesses who testified in his favor. Judge Greenwald noted in its decision that the mother stated “many times, that she will never allow [the father] to see the subject child and that she would do whatever it takes to keep the subject child away” from him.

Robin D. Carton, of White Plains, N.Y., attorney for the child.

Parental Alienation RibbonThe mother’s alienation of the children from the father was the sole basis stated by the Second Department while upholding a change of custody to the father. In its March 25, 2015 decision in Halioris v. Halioris, the court affirmed an order of Suffolk County Family Court Judge Bernard Cheng.

The Second Department noted that modification of an existing court-sanctioned custody arrangement is permissible only upon a showing that there has been a change in circumstances such that modification is necessary to ensure the best interests of the child.

Parental alienation of a child from the other parent is an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the offending parent is unfit to act as custodial parent.

As custody determinations turn in large part on assessments of the credibility, character, temperament, and sincerity of the parties, Judge Cheng’s findings in connection with these issues would not be disturbed unless they lacked a sound and substantial basis in the record. Here, the Second Department found that Judge Cheng’s determinations that there had been a change in circumstances, and that a transfer of sole custody to the father would be in the children’s best interests, had such a sound and substantial basis in the record.

Moreover, the Second Department upheld Judge Cheng’s holding the mother in contempt for failing to cooperate with family therapy. Generally, in order to prevail on a motion to hold a party in civil contempt, the movant is required to prove by clear and convincing evidence:

  1. that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect;
  2. that the order was disobeyed and the party disobeying the order had knowledge of its terms; and
  3. that the movant was prejudiced by the offending conduct.

Here, the father met his burden. Specifically, the father showed, by clear and convincing evidence, that the mother, with full knowledge of its requirements, violated a so-ordered stipulation that in part unequivocally mandated that the parties and the subject children engage in, cooperate with, and attend family therapy. The violation of the stipulation by the mother resulted in prejudice to the father. Accordingly, Judge Cheng properly granted the father’s petition to hold the mother in contempt for disobeying the stipulation.

Christopher J. Chimeri, of Hauppauge, represented the mother. The father represented himself. Domenik Veraldi, Jr., of Islandia, served as attorney for the children.

Kings County Justice Matthew J. D’Emic, in his April 3, 2013 decision in E.S. v. S.S., blamed both parents for the stress upon their young daughters. As a result, no change was made to the custody and visitation provisions of the parents’ divorce judgment.

Both sides sought changes to the judgment’s visitation schedule. The mother asked to partially eliminate visitation; the father sought sole custody, as well as changes to the pick-up and drop-off location.

Reviewing the parties’ combative history, Justice D’Emic noted that before the divorce judgment, the parents had held onto their strident positions longer than they served a purpose. Therapy for the elder daughter was sought. The father was forced to endure a lengthy and humiliating term of supervised visitation with both of his children.

The long and contentious trial followed,which the father estimated cost the parties more than $1,000,000.00. Not surprisingly, the Court noted, neither parent has recovered, and motions for various relief are submitted on a regular basis.

Several months ago, at the mother’s request, and based on reports of the children’s stress over visitation with the father, the court allowed the mother to seek family therapy, encouraging the father to participate. Neither side was now satisfied with the way things were going.

Unfortunately, courts are never in an ideal position to make decisions for parents. More unfortunate is the fact that courts are too often asked to do so.

The children’s therapist recommended that the whole family, together with a parent coordinator “all meet together and work out a clear agreement specifying the parameters of visitation to provide the children with some sense of security and control over visitation with the father.”

To alleviate stress and to provide consistency and regularity to the children, the Court directed the parents to adhere literally to the visitation provisions of the divorce judgment.

Furthermore, the mother and the father are directed to exercise custody and visitation in a manner appropriate to their responsibilities to their daughters. Maturity must have a role here.

Justice D’Emic made no change to prior award of sole custody to the mother, or to the decision-making rights and visitation schedule for the father.

It is the court’s opinion that any stress to the daughters is being caused by their parents nit-picking, one-upmanship and lingering resentments. If the relationship between father and daughters is strained, it is up to the parents – both parents – to repair it.

The father was opposed to the family therapist. Nevertheless, Justice D’Emic encouraged him to cooperate and participate in the therapy as a step towards repairing his relationship with his daughters.

The Court concluded that the issues between the parents were not insurmountable.  “With a minimum of trust and accommodation these girls can have an enjoyable experience with both parents – an experience to which they are entitled.”

Aurora Cassirer, of Troutman Sanders LLP, of Manhattan, represented the father; Mark Holtzer, of Snitow, Kanfer, Holtzer & Millus, LLP, of Manhattan, represented the mother.