- Whether Respondent Interfered With The Relationship Between Appellant And Child?
- Whether Respondent Falsely Accused Appellant Of Sexual Assault?
- Whether Respondent Engaged In Parental Alienation?
- Whether Respondent Directly Interfered With Appellant’s Physical Access To The Child?
- Whether Respondent Interfered With The Relationship Between Appellant And Child Because Appellant Is Jewish, And Both Respondent And Her Mother Are Anti-Semitic?
- Whether Appellant Is The Victim Of Fraud, Duress, And Overreaching By Respondent In His Efforts To Achieve Meaningful Parenting Time With The Child?
- Whether The Decision Of The Court Below Denying Appellant’s Request For Expanded Visitation Has Any Sound Or Substantial Basis In The Record, Or Is Contrary To The Weight Of Credible Evidence?
- Whether There Are Any Exceptional Circumstances To Justify Appellant And Child Being Deprived Normal And Meaningful Parenting Time Together?
- Whether The Court Should Have Disregarded The Report Of The Second Forensic Psychologist Without A Hearing?
- Whether The Court Should Have Relied Upon The Observations Of The Law Guardian Without A Hearing?
- Whether The Court Should Have Promised The Child She Would Not Have Overnight Visitation Until She Was Comfortable With It?
- Whether Appellant Needed To Show A Change Of Circumstances For Normalized Parenting Time?
- Whether Appellant Showed A Change Of Circumstances Supporting His Request For Joint Custody And Decision-Making Authority?
- Whether The Court Has A Bias Regarding This Matter Such That, Should It Be Remanded, A Different Judge Is Warranted?
- Whether The Court Has A Bias Against Appellant Because Appellant Sent A Letter Complaining About The Court To The Administrative Judge Of Queens County?
- Whether The Court Has A Bias In Favor Of Counsel For Respondent Based Upon A Lifelong Association With Him?
- Whether The Court Has A Bias In Favor Of The Wishes Of The Child Which Gives The Child Undue Influence Over The Outcome Of Appellant’s Application?
- Whether The Appellate Court Can Grant Appellant The Relief He Seeks Without Remanding This Matter For Further Proceedings?
Statement Of Facts
Appellant and Respondent, Cynthia Marie Redacted Redacted, were married on March 1, 1998. They have one child in common, Samantha Redacted (the Child).
On 7/22/99, the parties entered a Divorce and Settlement Agreement (Agreement). The Agreement provides, beginning 8/24/01, that Appellant may exercise visitation with the Child away from Respondent’s residence, and beginning 6/24/03, on alternating overnight weekends. Beginning 8/24/05, the Agreement provides Appellant three weeks vacation with the Child(R84-86). Despite these provisions, almost ten (10) years later, the child has never stayed overnight with her father.
On 9/7/01, Appellant was denied access to the Child, as memorialized in a police report. (R96). On 2/21/02, Appellant filed for divorce, Index No. 04691/2002. On 6/14/02, Respondent falsely accused Appellant of “inappropriate touching” of the Child. This was memorialized in a police report(R98-102). The witnessing officer took no further action, and Respondent never followed up with the allegation.
On 12/3/02, Appellant filed a petition seeking enforcement of the visitation schedule of 7/22/99 (R23). Due to Respondent’s allegations of sex abuse, on 1/7/03, the Court ordered a forensic evaluation of the family by Dr. John Redacted (R103). On 3/7/03 the Court ordered supervised visitation, and suspended Appellant’s visitation until arrangements could be made (R111 – 112). Supervised visitation at the “Family Center” (Family Center) commenced in April of 2003 (R113).
Respondent and her mother interfered with Appellant’s supervised visitation by harassing The Family Center (R113-115, 190-191), coaching the Child to make negative statements about Appellant (R114, 119), interrogating the Child at the conclusion of visits (R190), and “going out of their way” to make visitation with the father unpleasant (R118). Respondent’s conduct led the Family Center to write three letters, dated: 6/17/03 (R113-116), 10/16/03 (R117-119), and 5/17/04 (R190-191), complaining about Respondent, endorsing unsupervised visitation by Appellant, and ultimately refusing to continue supervising visitation due to Respondent’s conduct (R190-192).
On 10/20/03 Dr. Redacted testified(R120 – 169):
- There is no evidence the Child was subject to inappropriate touching by Appellant;
- There is no evidence the Child was ever sexually abused, she did not exhibit any psychological appearance of a sexually abused child;
- The Mother and Grandmother are negatively influencing the Child against the Father;
- The Mother invented her allegations against the Father;
- The Mother was interfering with the relationship between the Child and Father;
- The Child is coerced and brainwashed by the Mother and Grandmother;
- The Father is Jewish, both the Mother and Grandmother are intensely anti-Semitic;
During Dr. Redacted’s testimony, Respondent’s counsel conceded that Respondent unilaterally denied Appellant his visitation rights without Court permission (R166-167).
On 3/22/04, the Court granted Appellant a Divorce. Additionally, the visitation terms of the 7/22/99 Agreement were modified by a second agreement, reducing Appellant’s parenting time to four (4) hours of unsupervised visitation each week. However, the agreement specified that the parties would “reach an agreement on expanding visitation … within six months” (R170-179).
On 4/26/04, Respondent’s counsel sent a letter to the Court seeking to modify the March 22nd Agreement to further restrict Appellant’s access to the Child. While the Agreement merely provided that transfers would occur at specified locations, Respondent now demanded prohibitions against Appellant removing the child from the transfer locations, and transporting the child in his car alone(R180-181). On 6/17/04, the Court signed a Judgment of Divorce containing the visitation terms agreed to on March 22nd (R193-196). Nonetheless, on 6/23/04, Respondent’s counsel sent a letter warning Appellant not to engage in unsupervised visitation (R199-200).
Joan Redacted was chosen by Respondent as court-ordered family therapist, pursuant to the March 22nd Agreement. On 7/2/04, Ms. Redacted addressed a letter expressing the difficulties she was experiencing with both Respondent and the maternal grandmother, and endorsing Appellant’s efforts at normalized parenting time (R202-203).
On 8/31/04 after Respondent unilaterally denied access on 7/3/04, 7/11/04, 7/17/04, 7/25/04, and 8/7/04 (R208), and discontinued therapy with Ms. Redacted, Appellant filed his second petition seeking enforcement of the March 22nd Agreement (R204-222).
On 10/13/04 the parties entered a third agreement, further restricting Appellant’s access by requiring, on four (4) dates, visitation be “supervised by the general public”, specifying where he could conduct visitation, and prohibiting him from removing the child from the locations. However, this agreement gave Appellant unsupervised visitation at the end of the four dates, and required the parties to agree on expanded visitation within 3 months (R223).
A second court-mandated family therapist, Dolores Redacted, was chosen by Respondent. On 3/18/05, Ms. Redacted wrote a letter endorsing unsupervised visitation by Appellant, and finding no evidence of inappropriate sexual contact between the Appellant and Child (R224).
On 4/12/05, Appellant’s counsel proposed a modest expansion of the Father’s parenting time to include entire weekends (alternating), and four weeks over the summer (R225). On 9/8/05, having received no response, Appellant’s counsel sent a second letter requesting alternate weekend visitation (R226). On 9/27/05, Respondent’s counsel finally responded, refusing overnight visitation (R228).
On 11/7/05, Appellant filed his third petition, this time seeking enforcement of the October 13th Agreement (R229-244). In January of 2006, Respondent filed papers in opposition (R245-256), reiterating her former allegations of sexual abuse (R248-249), and adding new allegations of inappropriate conduct by Appellant (R251). On February 6, 2006, the Court appointed a law guardian, and denied Appellant’s petition with leave to renew (R278-279).
On April 4, 2006, the Court conducted an en camera with the Child, and issued an order denying overnight visitation (R280). On 6/27/06, the Court appointed Dr. Redacted as the second Forensic Evaluator (R281). On 2/27/08, Dr. Redacted’s report was issued, and it was agreed that counsel could share the “summary of conclusions” of the report with the parties (R282).
On 4/3/07, despite Dr. Redacted’s recommendations to the contrary (R314), Respondent proposed incremental steps toward normalized visitation. Respondent also demanded concessions from Appellant before she would consider overnight visits (R316-317.1). Additionally, Respondent’s letter related a promise made by the Court to the Child that, “she would not have to sleep over (at Appellant’s home) until she was comfortable with it” (R316). On 4/18/07, Appellant rejected Respondent’s proposal, and offered a counter-proposal consistent with the recommendations of Dr. Redacted (R318-319, R314-315). On 6/5/07, the Law Guardian visited Appellant’s home and “found (it) adequate for overnight visits.” (R322). On 6/26/07, Dr. Redacted sent a letter to the Court summarizing his findings (R320-321). On 7/16/07, the Court convened an inquiry regarding a letter, dated 5/18/07, written for Appellant, complaining about the Court’s conduct. Attached were four pages of Dr. Redacted’s report (R323-342). On 8/28/07, the Court continued its inquiry into the letter of complaint (R343-365). At the inquiry’s conclusion, Appellant was directed to renew his application for normalized visitation (R357-364).
On 6/16/08 Appellant filed his fourth petition seeking normalized parenting time (R14-67). On 8/1/08, the Court ordered a second en camera with the child. During these proceedings the Court revealed that he and Respondent’s counsel have known each other since they were children, and their father’s had worked together as lawyers.
On 10/6/08. the Law Guardian submitted her Opposition to Appellant’s petition (R424 – 432). The Law Guardian made no reference to this being a case of “Parent Alienation Syndrome,” despite having said so to Dr. Redacted (R306-307). The Law Guardian also stated that Appellant lacked adequate sleeping arrangements for the Child, despite having previously found the arrangements adequate (R322).
On 12/10/08, without any testimony, the Court denied Appellant’s petition (R5 – 11).
Respondent Interfered With The
Relationship Between Appellant And Child
In Gago v. Acevedo, 214 A.D.2d 565, 566(2d Dept. 1995) the court held:
The mother persistently interfered with the father’s visitation rights by making unfounded allegations of child abuse against the father, by coaching the child to make false allegations of abuse, and by causing disruption to the child’s visitation and vacation plans with his father. Interference with the relationship between a child and a noncustodial parent by the custodial parent is an act so inconsistent with the best interests of the child that it raises, by itself, a strong probability that the offending party is unfit to act as a custodial parent.
- Respondent Falsely Accused Appellant Of Sexual Assault
- The Police Report
Beginning June, 2002, due to interference by Respondent(R96-97), the custody transfer was conducted at a Police facility. On June 17, 2002, Respondent accused Appellant of sexual abuse. A police officer recorded this accusation (R99-100):
Cynthia stated that Samantha probably does not want to go with her father. I asked why. Cynthia asked Samantha to tell me why and she started crying. I asked Samantha why she didn’t want to go with Martin. She simply cried and stated ‘I don’t want to go’, and hugged her mother. I then asked Cynthia if she was alleging improper conduct by Martin towards Samantha. She would not answer. She asked to see her attorney. I asked if she wished for Samantha to go with Martin and she stated yes. Cynthia was intermittently crying during this conversation. We then allowed Samantha to get her coat on and agreed to proceed to Martin’s car. Samantha was happy at this time and held my hand as we walked to Martin’s car. Cynthia continued telling Samantha that the policeman would protect her and nothing would happen to her and all was ok. When we got to Martin’s car, Samantha was going to get in until Cynthia again hugged her, began crying and telling her she loved her and it would all be ok. During this entire time, Martin was being cooperative and stayed out of the way. Samantha began crying and again said that now she did not want to go with her father. She would not say why.
Cynthia stated that she didn’t think Samantha should go with Martin because he acts improperly with Samantha. I then directly asked Cynthia if she was alleging improper, illegal, sexual or abusive conduct by Martin. She would not answer. I asked again and she then said yes.
Cynthia would not answer me when asked what conduct she was alleging. She stated she wanted her attorney to be present when she told me.
She stated that she was afraid of Martin because he is a police officer and has a gun. She hinted at the fact that he has or would threaten her with his gun and authority. When asked about this later she would not say if it happened or if she was fearful that it could.
Once inside Cynthia stated that when Martin visits Samantha at her house on Redacted Dr., he sits on the floor and has Samantha sit between his legs. Further he tickles her near her crotch and on her inner thighs. This continues for the entire duration of his visit. When asked if he actually touches Samantha’s crotch, Cynthia state that he does not actually ‘go in their and touch it’. She has noticed this for the past eight months. I asked her if Samantha reported any improper contact by Martin. She stated that Samantha only stated that she does not like how he touches her. She never specifically stated how or where this touching occurs. During the interview, Cynthia asked to have her attorney present. I allowed her to call who she stated was her attorney, but there was no answer. She was told that her allegations were serious and would be both documented and investigated. She was asked if she wished to wait for (Department of Youth and Family Services) and or detectives to formally interview her and Samantha. She declined and left. I told her she would probably be contacted by DYFS and or other agencies concerning her allegations. Cynthia then left with Samantha.
The officer contacted New Jersey’s Department of Youth and Family Services, and the Burlington County Prosecutor’s Office regarding Respondent’s allegations, and neither initiated further investigation(R101). Respondent did not follow-up on her allegations.
- The First Forensic Evaluator
On December 3rd, 2002, Appellant filed his first petition seeking enforcement of visitation pursuant to the parties’ July 22nd, 1999 Divorce and Settlement Agreement(R23). On January 7, 2003, the Court issued an order appointing Dr. John Redacted, Ph.D. as Forensic Evaluator. Dr. Redacted evaluated the parties, the maternal grandmother, the Child, and issued a report dated February 28, 2003(R103-106). On October 20, 2003, the Court took Dr. Redacted’s testimony (R120-169):
- Did they (Respondent and grandmother) provide any specific factual allegations or facts of any kind on which they based their objection or obsession, as you called it?
- Yes, they spoke about an incident where he was laying on the floor with the child and they claim he did some inappropriate behavior towards the child. And once in a restaurant, if memory serves me correctly, that he was laying on the floor with the child, and they felt that this was inappropriate.
- Was there anything from what they told you that in your opinion seemed inappropriate?
- No, it didn’t.
- So, in other words, did it just appear that she objected to the fact that he was on the floor with her and nothing else?
- And again was there anything in your interviews of all of these parties, including the child that indicated that there was in fact, any inappropriate touching?
- Did you find anything in your interviews with Miss Redacted that led you to believe that she is inventing these allegations?
- And what specifically led you to support that finding?
- They was a lot of inconsistencies in the stories between her and – her grandmother and her mother and the child. (Sic).
- There was no evidence that the child was sexually abused.
- And when you say there is no proof of sexual abuse, do you mean that you haven’t seen any physical evidence; is that what you mean?
- She does not exhibit any psychological appearance of child that has been abused.
- The Supervised Visitation Center
On March 7, 2003, citing “the serious allegations regarding plaintiff’s behavior during visitation with Samantha,” the Court issued an Order directing the parties to make arrangements for supervised visitation, and suspending Appellant’s visitation until arrangements were finalized. (R111-112).
Supervised visitation commenced with the Redacted Family Center” (Family Center) in April, 2003 (R113). On June 17, 2003, the Family Center addressed a letter(R113-116) stating:
- Among the rules we ask the parties to follow, is for the custodial parent leave the premises during the visit to afford a degree of privacy for the visiting parent.
- Over the course of visits, there evolved a tendency on the part of the plaintiff-mother and the maternal grandmother to drift into areas of the center where the visitation was occurring. A main concern of the plaintiff-mother and maternal grandmother has been that the defendant roughhouses with the child in an inappropriate fashion for the purpose of sexual gratification.
- He (the father) does engage in some hugging and horseplay on the floor with the child, however his conduct has always been observed at all times and he has never been observed to inappropriately touch the child in any way or on any private areas of her body. On one occasion, the mother brought a video camera to show me a tape of the child crying while with the father.
- It has become a regular habit of the plaintiff-mother, and more so, the maternal grandmother, to remind us at all times that Mr. Redacted should not be permitted to touch the child because, “We know what he is, what he does, and what it leads to. He is very clever and devious and he is touching Samantha for self gratification.”
- On one occasion I was given a lecture about sexual abuse by the grandmother after a visitation which ended with a statement, “Maybe he didn’t want a little Catholic girl, but that’s what he got.”
- The child did eventually join the father for an abbreviated session at which time the mother and grandmother again belabored the point that they were doing everything they could to protect the child from sexual abuse which they knew had occurred. The conversation ended with the grandmother remarking to me, “I think you don’t like our religion. I hope it is not true, but I think it is.”
- The Family Therapist
In November, 2004, the parties and Child began therapy with Dolores Redacted. After eight sessions, and reviewing the case history, Ms. Redacted wrote, in March of 2005 (R224):
It is my professional opinion that Mr. Redacted should be allowed to have unsupervised visitation with Samantha on the basis permitted by the Court. As best it could be determined by sessions with Samantha, I found no evidence of inappropriate sexual contact between Mr. Redacted and Samantha. Samantha’s emotional and mental heath interests can best be served by Ms. Redacted’s encouragement of a healthy father-daughter relationship.
- The Respondent’s Affidavit
On November 7th, 2005, Appellant filed his third petition (R229-244) for normalized visitation, seeking enforcement of the so-ordered stipulation of October 13, 2004 (R223).
On January 14, 2006, Respondent swore an Affidavit in Opposition (R247-252), reiterating her former allegations of sexual abuse, adding the following:
- “when events I observed and things my daughter told me made it most likely that there were inappropriate physical contacts taking place, I reacted to protect our daughter ” (R248),
- “The fact that no ‘evidence’ of the abuse was uncovered does not mean it did not occur” (R248),
- “Plaintiff (Appellant) complains about the period of supervised visitation. But it resulted only from his own actions and our daughter’s cries and complaints” (R249, emphasis in original).
- “While I am still as sure as ever that his conduct had been inappropriate ‘back then’, and that more recent events indicate he has not fully learned or appreciated proper limits by now, at this point Samantha is much older, and far better able to express herself and her wishes to him and, if necessary, describe any misconduct” (R249),
- “when she (Samantha) needed change for arcade games, he insisted that she reach into his pants pocket for same, over her objection” (R251)
In Young v. Young, 212 A.D.2d 114, 115, (2nd Dept. 1995), where the mother made unfounded accusations of sexual abuse against the father, the Court stated:
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.
From June, 2002, through January, 2006, Respondent made allegations of sexual abuse to:
- The Mount Laurel Police Department,
- The Family Center,
- The Court via sworn Affidavit.
Although repeatedly unsubstantiated, Respondent’s allegations remain the only reason Appellant is denied meaningful parenting time.
- Respondent Has Engaged In Parental Alienation
Dr. Redacted, the first Forensic Evaluator, found (R105):
- (Respondent) in fact tries to manipulate the child and there is some validity to the child being influenced by both the mother and maternal grandmother.
- It is apparent that Ms. Redacted and the maternal grandmother’s anger override any attempt by Mr. Redacted to have a relationship with his daughter. Ms. Redacted is extremely overprotective of the child.
- Upon interviewing (the Child), she does pause before she answers any questions. (T)his is not an age appropriate response. Children are usually spontaneous and speak without hesitation. When interviewed about her relationship with her father she gives conflicting answers. The child also repeats almost word for word what her mother and maternal grandmother have reported. The concern is she is not responding like a child but like someone who has been rehearsed with her answers. This caused me to become suspicious of the validity of some of her answers. When she is engaging in this she does not make eye contact. At other times in the conversation she makes very good eye contact and is spontaneous with her answers.
In its letter dated June 17, 2003(R113 -116), in addition to the quotes listed above, the Family Center stated:
- On the weekend of June 8, 2003 … the child displayed what has been a growing tendency of reluctance to go into the visitation room with her father. Dr. Redacted encouraged her to enter the room with him and apparently his tone of voice was found to be objectionable by the mother and grandmother. I received a phone call … expressing concern that Dr. Redacted was not understanding enough with a child who did not want to see her father. It has been explained to me by the mother that although the child may seem like she has a good time with her father, when she leaves the center, the child tells her, “I am only making believe that I have a good time.”
- During a recent visit … the child made a statement to the father, “You are not my family.” I explained to the child that the father may not live with her, but he is her father and her family. The grandmother was present when this statement was made and I was interrogated about the source of this statement.
- On June 15, 2003, I asked the mother and grandmother to leave the premises during visitation for the purpose of providing a visitation that was not being monitored by them. Both the mother and grandmother strongly objected stating, “We need to protect Samantha from her father’s behavior and if that means monitoring the session, that is what we will do.”
- I showed Ms. Redacted the agreement she had signed to leave the premises during the visitation, but she and the grandmother refused. I advised them…I would not schedule any future visitation if they expected to remain on the premises because I felt it was disruptive and because I felt they were monitoring both the father and our facility, which was not their role. The child was present during this conversation and was upset and later the mother brought the child into one of our rooms and asked the child to explain to me why she didn’t want to see her father. The child explained to me, “Because he rolls on the floor with me, and…I can’t remember the rest.” Although the mother insisted this was a genuine spontaneous statement by the child, the fact that she couldn’t remember the rest indicated that she had been given a line to recite.
- Under the circumstances, I do not believe it would be advisable for Mr. Redacted to continue with visitation at our center unless the mother and grandmother can accept the concept that the Big Apple Family Center monitors the visitation and that it is not proper for the custodial parent and maternal grandmother to supervise the Big Apple. If they can grasp this concept and cooperate, I will be happy to resume visitation at the center.
In a second letter to the Court, dated October 16, 2003 (R117 – 119), the Family Center stated:
- through June of 2003, mother would usually come to the Center with the maternal grandmother and it appeared that the two were going out of their way to make the visitation experience with the father an unpleasant one. Specifically, on one occasion I noticed Samantha appeared happy in anticipation of her visit with her father. When her father arrived, mother turned to me and said, “Look Dr. Redacted, Samantha’s afraid of her father.” When I turned to look, Samantha had her head in her mother’s lap and suddenly had an unhappy look on her face (an abrupt change from her previously happy demeanor). I said, “Samantha don’t you want to visit with your father?” Samantha was holding an iced tea in her hand and in order to break the tension I said, “Samantha can I have some of your iced tea?” Mother’s eyes became teary at this point. Samantha then took my hand and walked into the room with her father and the two had a good time together. My behavior was taken by mother to be “abrupt” in that she perceived that I had compelled Samantha in some way to go into the room with her father, which was clearly not the case. This visit occurred in the beginning of June 2003.
- Mother also complained that the mid-May visit was “out of control” because there was a lot of “noise, screaming, and running” and she was disapproving of this behavior even though it appeared Samantha was having a good time.
- On the next visit … the Executive Director … asked Samantha why she seemed reluctant to visit with her father and Samantha responded, “I don’t want to roll on the floor and I can’t remember the rest.” A reasonable individual might conclude that mother was just looking to find fault with Samantha’s visit with her father and in subtle ways was attempting to make these visits an unpleasant experience for Samantha.
- Samantha continues to enjoy her visits with her father. Father always comes to the visit with a big bin filled with toys that he uses in his play with Samantha. Mr. Redacted’s visits are active and his play age appropriate. He seems to enjoy himself and Samantha seems to enjoy herself.
- On a visit on June 29, 2003, Samantha said in response to her father asking her if she has a good time during visits, “Uh-huh but I want to be with my mother because I don’t feel safe because you hit Nana and called her a witch. It happened in May but I don’t know what day it was. Mommy and Nana were there.”
- Mr. Redacted has always behaved in an appropriate fashion with his daughter during supervised visitation. If the forensic evaluation concludes that there are no problems regarding sexual inappropriateness or emotional or verbal abuse by Mr. Redacted then I do not see any reason why Mr. Redacted cannot have unsupervised visits.
During his testimony on October 20, 2003, Dr. Redacted testified as follows:
- Are you of opinion that Belle Redacted and her daughter Cynthia are negatively influencing this child Samantha against the father?
- Would such a mother who cooperated fully with visitation for three years, would such a mother – would you say she is interfering with visitation or not interfering?
- I don’t know the circumstances. I don’t know what you’re driving at. She is interfering now.
- You’re stating that she is interfering?
- Yes, she is interfering now. And it was inappropriate that when I went to interview the child she wouldn’t allow me in the room alone, that both her and the grandmother made a disturbance in my office enough that other patients – (sic).
- Would you say that the child is bonded with her mother?
- The child was not bonded with the mother? Is the child bonded to anyone?
- Not at this point that I could tell.
- And when you say the child is not bonded to her mother, what does that mean in psychological terms?
- Bonding is where a child has no fear and feels comfortable being with the other person.
- And is it your testimony that the child is not comfortable with the mother?
- She is coerced.
- Is it your testimony that she is not comfortable, yes or no?
- She is coerced.
- And is that mentioned in your report?
- That she is coerced?
- There is – I think that there is a comment there about being brainwashed and the validity of the child’s answers.
During Dr. Redacted’s testimony, on October 20, 2003, Respondent’s counsel conceded that Respondent had unilaterally, without the Court’s permission, denied the Appellant access to the child(R166- R167) .
On May 17, 2004, the Family Center sent a third letter, refusing to continue supervised visitation(R190-191). It references a letter received by them, signed by Respondent, accusing them of “abuse and neglect(R192).” The Family Center letter states:
- For over a year now, the Big Apple Family Center has diligently conducted supervised visitation of Samantha Redacted with her father, Martin Redacted. During that time, the Center and its staff have endured the numerous insults, interrogations, accusations of Ms. Redacted and her mother, however, this last letter from Ms. Redacted is the straw that breaks the Center’s back.
- As the court can see from the tenor of Ms. Redacted’s letter, she apparently subjects (the Child) to a thorough interrogation at the conclusion of each visit and makes numerous accusations about our supervision which are untrue and inappropriate.
- I take great exception with the accusations of ‘abuse and neglect’ while under our supervision and I can only surmise from her last comment that ‘this is all being documented’ that the Center is vulnerable at this juncture.
- It is outrageous to suggest our staff is misleading Ms. Redacted so that Mr. Redacted can perform ‘inappropriate actions.
- There has never been a time when (the Child) has been deprived of going to the bathroom – in fact it was Ms. Redacted who placed a restriction in the stipulation that Samantha not be permitted to go to the bathroom with Mr. Redacted.
The letter sent by Respondent to the Family Center states (R192):
- And as I have repeatedly asked, please fax me in writing the places they are going – each time the supervisor tells me a place where they are going, it turns out, they don’t go there at all – I know this only because Samantha tells me afterwards, and sometimes, the supervisor, under the pretext that there was a “change in plans, that’s all” The fact that you do not acknowledge my request for visit locations in writing leads me to wonder if you are protecting any misleading or inappropriate actions by Mr. Redacted. I have never interfered with visits, nor do I intend to. But I will not allow Samantha’s safety to be compromised in any way, and will take appropriate legal steps if necessary.
- Also, you must not allow Marty or any supervisor delay if Samantha has to use the bathroom. During last visit with Lourdes Gomez, Samantha said she had to go when I dropped her off with Lourdes. As it turns out, Marty and Lourdes waited almost 1 HOUR before she went to the bathroom. This is unacceptable, this is abuse, plain and simple.
- Further, during the visit outside, Samantha has told me that Marty took her away from where Lourdes was sitting somewhere “far away” – she could not see Lourdes for a long time – this tells me that supervising is lacking, and is dangerous for Samantha. Samantha must be properly protected by your center.
- Both aforementioned instances – bathroom delay, lack of supervision, and outside in cold weather for 3 hours – are subjects of abuse and neglect. Please note that this is all being documented.
A professional, court-sanctioned visitation center, assigned to supervise Appellant in response to allegations made by Respondent, was harassed into refusing its services out of concern for its own exposure to false allegations from Respondent. Ironically, Respondent’s propensity for false allegations is what led to Appellant’s visitation being supervised in the first place ( R192).
The report and testimony of Dr. Redacted, the three letters from the Family Center, and the letter from Respondent herself, indicate a clear pattern of Parental Alienation. This child has been brainwashed to despise her father.
- Respondent Has Directly Interfered With Appellant’s Physical Access To The Child
(A) divorced, noncustodial parent and his children jointly enjoy a natural right of visitation. To be meaningful, however, visitation must be frequent and regular.
Daghir v. Daghir, 82 A.D.2d 191, 193- 194 (2nd Dept. 1981), internal citations omitted.
In addition to the custodial interference described above, Respondent has perpetrated the following:
- The March 22, 2004 Agreement:
On 3/22/04, after almost a year of supervised visitation based on Respondent’s false allegations, and without any findings of fact, the parties entered into a second visitation agreement. Although reducing Appellant’s time with the child to four hours per week, the modified agreement in no way restricted where Appellant could take the Child, or prohibited Appellant from driving alone with the Child in his car(R174- R176). The modified agreement further specified that within six months Appellant’s visitation would be expanded(R175, line 23 – R176, line 2).
On 4/26/04 , Respondent’s counsel wrote a letter to the Court(R180-181), seeking to amend the March 22nd Agreement to prohibit Appellant from removing the Child from the transfer locations, and from transporting the Child in his car alone. On 5/4/04, Respondent’s counsel persisted by submitting a Counter-Proposed Judgment of Divorce incorporating the additional restrictions she now demanded (R184-189). On 6/17/04, the Court signed the Judgment of Divorce submitted by Appellant’s counsel, which accurately incorporated the terms of the March 22nd Agreement(R193-198).
On 6/23/04, having failed to convince the Court to impose additional restrictions on Appellant beyond those contained in the March 22nd Agreement, Respondent’s counsel addressed a threatening letter to Appellant’s counsel(R199 – 200):
My client does not want there to be any misunderstandings, police reports, or other negative incidents at the July 3 visit at the Library. My client will bring the child to the Library for the visit as long as it is agreed, in writing, that your client will remain at the Library for the entire duration of the visit. Please confirm this in writing after you have discussed this issue with your client. If I do not receive written confirmation from you by July 1, 2004, then I will advise my client to take appropriate legal action to seek clarification of Justice Dorsa’s order. I am hopeful this will not be necessary (underlining in original).
When Appellant did not agree to the restrictions demanded in her June 23rd letter, Respondent unilaterally withheld access to the Child on 7/3/04, 7/11/04, 717/04, and 8/7/04.
In addition to modifying the terms of visitation, the March 22nd Agreement required the parties to “cooperate with the child being enrolled in therapy”(R175-176). Joan Redacted was chosen by Respondent to be the therapist. On 7/2/04 Ms. Redacted addressed a letter(R202-203), expressing the difficulties she was experiencing with the Respondent and Grandmother:
- Mr. Redacted came for the June 23rd appointment and waited in the outer office. While he waited, the therapist called Ms. Redacted’s home to ascertain if there were any problems. Ms. Redacted’s mother screamed at the therapist over the telephone stating, ‘I know what you’re doing there!’ The therapist responded, ‘Yes, I’m here waiting to have therapy with Samantha.’ The therapist, not able to get further conversation in, subsequently terminated the phone call.
- I had strong reservations from the beginning with regard to Ms. Redacted’s ability to move forward on this process of therapy for the child and a changed visitation schedule. As of late, having received information from the Big Apple Center, there have been problems similar to this; as documented by other professionals .
- It is understandable that Ms. Redacted and her mother wish to be protective of the child however the manner of their approach is disrespectful, untrusting and self-defeating. In the long run, it is the child that will continue to experience the pressure and stress of such actions and lose.
- In my sessions with Mr. Redacted, he appeared to be honest, upfront and a caring individual whose true interest is in the child’s welfare. He wants to be allowed to be a father and not be continually disappointed and frustrated .
- As for Ms. Redacted, she needs to realize and understand, through her own personal therapy, what she is putting in motion here and the short and long term ramifications of her actions on her daughter’s emotional well-being .
- The October 13, 2004 Agreement:
On 8/31/04, after Respondent unilaterally withheld access on the five dates indicated above, and unilaterally discontinued therapy with Ms. Redacted(R208), Appellant brought his second petition, this time seeking to enforce the visitation terms in his March 22nd Agreement (R204-222). On 10/13/04, without any findings of fact, Appellant again compromised and entered into another agreement modifying his visitation. This Agreement dictated that the next four (4) visitation sessions would be limited to four hours per session, “supervised by the general public,” specified locations where visitation was to take place, and prohibited Appellant from leaving the locations with the Child. After the first four sessions, visitation was to be expanded to six (6) hours per week, unsupervised, and without limitations as to where it would take place. Finally, this Agreement specified that within three months, “the parties shall agree on expanded visitation for the Father as recommended by the regular therapist”(R223).
In November of 2004, the parties and Child began therapy with Dolores Redacted. In March of 2005, after eight sessions, and having reviewed the history of this matter, Ms. Redacted wrote a letter(erroneously dated 3/18/04), which states:
It is my professional opinion that Mr. Redacted should be allowed to have unsupervised visitation with Samantha on the basis permitted by the Court. As best it could be determined by sessions with Samantha, I found no evidence of inappropriate sexual contact between Mr. Redacted and Samantha. Samantha’s emotional and mental heath interests can best be served by Ms. Redacted’s encouragement of a healthy father-daughter relationship(R224).
On 4/12/05, six months after the date of the Agreement specifying expanded visitation within three months, Appellant’s counsel sent a letter to Respondent’s counsel(R225), citing both the Agreement, and Ms. Redacted’s recommendation(R224). Appellant proposed expanding his parenting time to include alternating weekends, and four weeks over the summer . Five months later, on 9/8/05, having no response from Respondent, Appellant’s counsel sent a second letter complaining, “Ms. Redacted has refused to agree to any expanded parenting time between Samantha and Mr. Redacted,” and requesting alternating weekend visitation(R226 – 227). On 9/27/05, Respondent’s counsel finally answered with one line: “In reference to your letter, please be advised that my client is opposed to overnight visitation at this time”(R228).
On 11/7/05, Appellant file his third petition, this time seeking enforcement of the parties’ October 13th Agreement(R229-244). In January of 2006, Respondent filed papers in opposition (R245-256), in which she swore an affidavit reiterating her former allegations of sexual abuse, and levied new allegations of inappropriate physical conduct against Appellant(R247-252).
On 4/4/06, after conducting an en camera with the Child, but without conducting an evidentiary hearing, the Court issued an order denying Appellant’s petition for overnight visitation, but set a conference date for 6/26/06, at which the Law Guardian was directed to update the Court on the Child’s parenting time with Appellant.
On 6/27/06, the court appointed Dr. Redacted as the second Forensic Evaluator in this case (R281). On 2/27/07, Dr. Redacted’s report was issued to counsel, and it was agreed that the last four pages could be shared with the parties, which state the following(R312-315):
Regarding the Father:
Mr. Redacted is a fit parent who seeks only more normalized visitation. He poses no harm to the child. It is outrageous that his sincere pursuit of reasonable access to his daughter has resulted in years of accusations, scrutiny, and litigation. (Bold in original). The incremental approach to the visitation, borne out of respect for the mother’s concerns about Martin’s motives and behavior towards Samantha, has been an abject failure. The limitations on Mr. Redacted’s access have given legitimacy to the mother’s baseless fears. Whereas the intentions of the court and law guardian have been to gradually progress towards normalized visitation beginning with supervision, only more obstinacy, provocation and accusations by the mother have ensued.
Regarding the Defendant:
The personality profile of Ms. Redacted from the Millon Clinical Multiaxial Inventory-III indicates a Mixed Personality Disorder with obsessive-compulsive, histrionic and narcissistic features, which may explain her persistence and inflexibility in viewing Mr. Redacted as malevolent and deviant in his pursuit of a relationship with Samantha.
Mr. Redacted’s request for normalized visitation with his daughter, including overnights, is reasonable and in the best interest of Samantha. The allegations made by the mother, many of which are parroted by the child, grossly distort Mr. Redacted’s motives and unfairly cast him as malevolent, sadistic, insensitive and even pedophilic. These allegations are ludicrous. Trivial slights commitment (sic) by Mr. Redacted, which are raised to the level of criminality by the mother and maternal grandmother, persist as part of a litany of charges intended to disqualify Mr. Redacted from normalized visitation with his daughter.
Incremental steps over several years, beginning with supervised visitation, have failed to foster normalized contact between the father and daughter. The failure is due to the inappropriate actions of the mother who has both subtly and overtly undermined the father’s relationship with Samantha. The mother has alienated the child from the father by casting him as a malevolent person who intends to harm the child.
The father is in his own right a fit custodial parent, but he seeks only visitation rights including overnights without the interference of the mother. Samantha can develop a healthy relationship with her father only with the support of the mother. It is important for the mother to understand that it is her obligation as the custodial parent to foster, not destroy the relationship between Mr. Redacted and Samantha. Failure of the mother to begin to make a good faith effort towards this end calls into question her fitness as a custodial parent.
The plan most likely to succeed would state up front that Mr. Redacted is to have unfettered, normalized visitation with Samantha. The only concession to the mother’s exaggerated concerns would be to encourage Joanne Redacted, the wife of Mr. Redacted, to play a more active role until Samantha is more comfortable with the expanded visitation.
Mr. Redacted is correct in his wish that the child have an opportunity of a summer camp experience which will give her more independence from the supervision of both parents.
It is reasonable to expect that both parents will share in the transportation of the child for the visits with Mr. Redacted.
A well qualified family therapist will be necessary to address conflicts as they arise between the parents concerning Samantha. Samantha will need access to the therapist to address her concerns. However, the therapist can only succeed if it is clear up front that the father has normalized access to his daughter. Without such clarity, it will be assumed by Samantha that the father’s access requires monitoring because of some deficiency on his part. It is important for Samantha to understand that both the law guardian and court endorse the father’s relationship with her. Such an imprimatur will help the child overcome her own distortions about her father and gain confidence about his competency.
On 4/3/07, contrary to Dr. Redacted’s recommendations, Respondent’s counsel forwarded a proposal for visitation which states the following(R316-317.1):
- There should not be any over night visits until two things occur:
First: That Samantha becomes accustomed to the longer visits and comfortable with the concept of sleeping over, and
Second: That a separate bed and bedroom are made available to her(as they are in her mother’s home).
- Although Marty has told Dr. Redacted he was hoping to relocate to New Jersey or Pennsylvania, we have heard no specific plans for such a move. Obviously, it would be extremely beneficial for this entire situation. Thus, we would like to have more of a specific commitment as to whether or when he expects to move. That might form the basis of our agreeing to a specific time for the commencement of over night visits, and would go a long way toward showing Samantha that her convenience and comfort are truly concerns of her father.
- Were Marty to move closer to his daughter, these holidays would be a lot easier to provide for.
- Before any number of weeks are set aside for summer visits, it seems appropriate that the above schedule progress to over night visits on the weekends. That would involve, as stated, Marty’s moving into a residence with accommodations for Samantha and her becoming accustomed to longer visits.
Note: on 6/5/07, the Law Guardian visited Appellant’s home and found it “adequate for overnight visits”(R322).
On 4/18/07, Appellant rejected Respondent’s proposal, and proposed a parenting schedule consistent with Dr. Redacted’s recommendations(R318-319). Respondent’s 4/3/07 letter was just another diversionary tactic by Respondent. Despite all of the evidence to the contrary, the tone of the letter is that Appellant is deficient as a companion and parent for the Child. Based upon her conduct throughout this case, had Appellant accepted her proposal, uprooted himself and changed his residence, Respondent would have insured the Child never achieved any “comfort with the concept of sleeping over(R316)” at Appellant’s home.
On 7/17/07, this entire matter got off track when the Court commenced an inquiry into a letter complaining about its conduct, written on behalf of Appellant, and mailed to the Queens County Administrative Judge(R323-365). On 8/28/07, at the end of the inquiry, Appellant was directed to renew his petition, which had been denied on 4/4/06(R357-364). On 6/16/08, Appellant filed his fourth petition seeking normalized parenting time. Although the Court acknowledged it as a renewal of his 11/7/05 petition, which was to enforce the parties 10/13/04 Agreement, Appellant’s June 16th petition was denied for failure to show a change of circumstances(R5-13).
The record shows Appellant’s repeated efforts to compromise and cooperate with Respondent, and Respondent’s persistent bad faith, minimizing Appellant’s access to the Child when unable to obstruct it all together.
- Respondent Has Interfered With The Relationship Between Appellant And Child Because Appellant Is Jewish, And Both Respondent And Her Mother Are Anti-Semitic
In discussing the best interests of the child, the Court of Appeals, in Escbach v. Escbach, 56 N.Y.2d 167, 172(1982), stated:
Primary among those circumstances to be considered is the quality of the home environment and the parental guidance the custodial parent provides for the child. While concerns such as the financial status and the ability of each parent to provide for the child should not be overlooked by the court, an equally valid concern is the ability of each parent to provide for the child’s emotional and intellectual development.
(Internal citations omitted).
The Father is Jewish. The Family Center letter, dated 6/17/03, relates the following (R113-116):
- On one occasion I was given a lecture about sexual abuse by the grandmother after a visitation which ended with a statement, “Maybe he didn’t want a little Catholic girl, but that’s what he got.“
- The conversation ended with the grandmother remarking to me, “I think you don’t like our religion. I hope it is not true, but I think it is.”
(Italics in original).
On 10/20/03, Dr. Redacted testified:
- They were very anti-Semitic.
- They were extremely anti-Semitic.
- When you say they, who do you mean?
- The grandmother and the mother.
- She made allegations that she did not like the fact that he was Jewish. Belle said that.
The Respondent, aided by her mother, has harmed the Child by disparaging the ethnic and religious background of both the Child, and the Child’s father. Accordingly, this Court should immediately restore Appellant and Child to meaningful parenting time while this Child is still young enough, and there is still hope of reversing the damage caused by Respondent.
Appellant Has Been The Victim Of Fraud, Duress,
And Overreaching On The Part Of Respondent In His Efforts
To Achieve Meaningful Parenting Time With The Child
As detailed above, Appellant entered a total of three (3) agreements regarding parenting time, dated 7/22/99, 3/22/04, and 10,13,04. Each of these agreements were subsequently converted into court orders. Respondent defied and violated every agreement, each time causing Appellant to bring a petition to enforce. After each petition, Appellant compromised, entering into the subsequent agreement, progressively adding additional restrictions to his access to the Child, but each time receiving a promise of expanded visitation provided he entered the compromise and complied.
In Eschbach v. Eschbach, 56 N.Y.2d 167, 171(1982), the Court stated,
Where the parties have entered into an agreement as to which parent should have custody, we have stated that ‘priority, not as an absolute but as a weighty factor, should, in the absence of extraordinary circumstances, be accorded to that agreement.’
(Internal citations omitted). In Conti v. Conti, 238 A.D.2d 460, 4612(2nd Dept. 1997), the Court stated,
Although the best interests of the child or children are always paramount, stipulations concerning visitation are to be enforced in the absence of fraud, duress, mistake or overreaching.
(Internal citations omitted).
The only custody agreement entered into by the parties in which Appellant was not under duress was the agreement of 7/22/99. When Appellant entered the second Agreement on 3/22/04, he was under duress of:
- Having been accused of a sexual assault against the Child;
- His visitation having been supervised for almost a year;
- The Respondent having harassed the supervision center, and the Child, throughout his supervised visitation;
- Having undergone a forensic evaluation, and the allegation against him having been unsubstantiated by the evaluator.
Thus, Appellant was not on an equal footing when he entered the March 22nd Agreement, he wanted to spend time with his daughter outside of a clinic, where they could begin to have fun, and where he didn’t feel as though he was deficient in some way. Appellant compromised away what he fairly negotiated in July of 1999, which was appropriate and meaningful contact with his daughter, in exchange for a minor improvement of conditions that were imposed upon him without a hearing, and which were never warranted.
When Appellant entered the third agreement on 10/13/04, he was under duress of:
- Respondent’s attempts to modify the March 22nd Agreement to require supervision by the “general public,” restricting his visitation to the transfer locations, and prohibiting him from transporting the child alone in his car(R180-181, 184-185);
- Respondent’s letter threatening him not to engage in the visitation permitted by the March 22nd Agreement (R199-200);
- The Family Center’s refusal to supervise his visitation based on Respondent’s false allegations against them(R190-192);
- The refusal of Respondent to cooperate with the court-mandated therapist, Joan Redacted(R202-203);
- Respondent’s refusal to comply with the March 22, 2004 Agreement by withholding access to the Child on five (5) occasions, July 3, 11, 17, 25, and August 7, 2004(R208, paragraph 3).
Thus, Appellant was again on unequal footing when he entered into the October 13th Agreement. Respondent was successfully interfering with visitation via false allegations, intimidation, and contempt of court orders. Appellant, having been denied any contact for over six (6) weeks, was merely trying to see his daughter.
In Entwistle v. Entwistle, 61 A.D.2d 380, 384(2nd Dept. 1978), the Court stated:
If respondent, at the time she entered into the stipulation, did not intend to uphold her obligation thereunder, it would reduce the appellant’s visitation rights, as embodied in the New York judgment, to nothing more than an outrageous mockery, “a form of words, valueless” and manifestly devoid of substance. Such conduct is to be denounced, and will not be countenanced by this court under any circumstances. If Special Term determines that this pattern of willful deprivation of appellant’s visitation rights was intended at the inception, it would constitute grounds for an adjudication of civil contempt.
(Internal citations omitted).
In each of the agreements entered into by Appellant, he was the victim of fraud. Each agreement began with restricted access, but envisioned expanded access in the future. Each agreement was violated by Respondent. Respondent violated the July, 1999 agreement by falsely accusing Appellant of sexual assault, and unilaterally withholding access(R98-101, 165-167). Respondent violated the March, 2004 agreement by refusing to cooperate with the Court mandated therapist(R202-203), and withholding access for over six weeks in July and August of 2004(R208, paragraph 3). Respondent violated the October, 2004 agreement by refusing Appellant’s proposals for expanded supervision as required pursuant to the terms of the agreement(R225, 226-227, 228).
Thus, the only agreement that this Court should give deference to is the agreement entered into by the parties on July 22nd, 1999, which as of June, 2003, allowed the Appellant to have overnight weekend visitation, and as of August 2005, three weeks vacation during each calendar year. Furthermore, this Court should hold Respondent in contempt of each of the
The Decision Of The Court Below Denying Appellant’s
Request For Expanded Visitation Has No Sound Or
Substantial Basis In The Record, And Is Contrary To
The Weight Of Credible Evidence
- There Are No Exceptional Circumstances To Justify Appellant And Child Being Deprived Normal And Meaningful Parenting Time Together
This Court has repeatedly emphasized the importance of preserving a meaningful relationship between a child and a non-custodial parent. In Daghir v. Daghir, 82 A.D.2d 191, 193-194(2nd Dept. 1981), the Court stated,
It is the firmly established policy of this State … that, wherever possible, the best interests of a child lie in his being nurtured and guided by both of his natural parents. Thus, a divorced, noncustodial parent and his children jointly enjoy a natural right of visitation. To be meaningful, however, visitation must be frequent and regular.
Our court fully recognized the importance of visitation to both parent and child when we held that “a parent may not be deprived of his or her right to reasonable and meaningful access to the children by the marriage unless exceptional circumstances have been presented to the court. The term ‘exceptional circumstances’ or ‘exceptional reasons’ is invariably associated with a situation where either the exercise of such right is inimical to the welfare of the children or the parent has in some manner forfeited his or her right to such access.”
(Internal citations omitted).
In Janousek v. Janousek, 108 A.D.2d 782, 784(2nd Dept. 1985), the Court stated,
It is well settled that a noncustodial parent should have reasonable rights of visitation, and that the denial of such rights is such a drastic remedy that an order doing so should be based on substantial evidence that visitation would be detrimental to the welfare of the child.
In Young v. Young, 212 A.D.2d 114, 11(2nd Dept. 1995), the Court stated,
(A)n 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.
(Internal citations omitted).
Despite the policies of Daghir, and Janousek, Appellant and Child have persistently been denied meaningful, frequent or regular visitation, notwithstanding the complete absence of any evidence to justify it. There has been no judicial finding that visitation with Appellant is inimical to the welfare of the child, or that Appellant has done anything to forfeit his rights. Every neutral party, the Family Center (R113-116, 117-119, 190-191), Dr. Redacted(R103-110, 120-169), Joan Redacted(R202-203), Dolores Redacted(R224), Dr. Redacted(R283-315, 320-321), have all criticized Respondent’s interference, and endorsed expanded visitation.
It its decision, (R5-13), the Court cites “two incidents, one, over this past summer, where plaintiff has left the child alone and unsupervised in public places, causing the child to become frightened”(R8). However, the Court learned of these alleged incidents during an en camera. Appellant was not present, was not provided with a transcript, and was not offered the opportunity to rebut or explain. Assuming arguendo there is substance to these allegations, they do not rise to the level of “exceptional circumstances” justifying the “drastic remedy” referred to in Daghir and Janousek..
Rather than conduct hearings regarding the allegations of custodial interference raised by Appellant in his four petitions, the Court became a facilitator of Respondent’s custodial interference and parental alienation.
- The Court Should Not Have Disregarded The Report Of The Second Forensic Psychologist Without A Hearing
On 6/7/06, the Court appointed Dr. Redacted as the second neutral Forensic Evaluator (R281). On 6/26/07, when Respondent refused once again to permit normalized parenting time, Dr. Redacted addressed a letter to the Court, stating:
(I)t is my opinion with a reasonable degree of psychiatry certainty that incremental steps towards normalized visitation for Mr. Redacted and Samantha are doomed to failure based on the clear track record since the couple separated when Samantha was an infant. It is my conclusion that in the best interest of Samantha, Mr. Redacted should be awarded liberal access to his daughter including overnight parental time, a sharing of all major holidays and school vacations and a large block of time in the summer. By making such a declaration up front, the acting out and manipulation of the child will be minimized. Further, such an approach will minimize anxiety for the child, who has been too empowered to date in terms of decisions made in her interest.
It is in the long term interest of Samantha that she develop a healthy relationship with her father, who is a responsible parent, highly motivated to participate in the child’s life. As articulated in the report, Mr. Redacted is a fit custodial parent. It is the responsibility of Ms. Redacted, the custodial parent of Samantha, to accept her responsibility to facilitate Mr. Redacted’s unfettered access to the child. Samantha will only accept a normalized relationship with her father if the mother desists from denigrating Mr. Redacted in front of the child.
In Young v. Young, 212 A.D.2d 114, 118-120 (2nd Dept. 1995), the Court stated,
(W)e 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 … the court appointed psychiatrist … that the father be given custody of the … 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, such recommendations are entitled to some weight…unless such opinions are contradicted by the record.
It is evident that the court completely disregarded (the court appointed psychiatrist)’s recommendation; and, without any discernible reason or basis in the record to support such a determination, its conclusion is nothing short of arbitrary.
(Brackets in original, internal citations omitted).
Dr. Redacted’s findings are consistent with those of the Dr. Redacted, the Family Center, the two court-mandated therapists, and the letters by Respondent’s counsel, and Respondent herself. Appellant seeks merely expanded visitation, whereas in Young, the noncustodial parent sought complete change of custody. There is no “discernible reason or basis in the record” of this case to support a denial of expanded visitation. Accordingly, the lower Court’s decision (R5-13) is “nothing short of arbitrary.” Id. at 119.
- The Court Should Not Have Relied Upon The Observations Of The Law Guardian Without A Hearing
On 10/6/08 the Law Guardian, Redacted, submitted an Affirmation in Opposition (R424-432). In its decision (R5-11), the Court adopts “the position of the Attorney for the Child as the same closely reflects the court’s own observations” (R9). However, Ms. Redacted raised nothing amounting to “exceptional circumstances” warranting a denial of meaningful parenting time, and the Court gave Appellant no opportunity to explain or rebut the issues raised.
In her reasons cited by the Court, Ms. Redacted states:
- (T)he child is “currently accustomed to and comfortable with the present custody arrangement ” (R8, 426 paragraph 13).
- (T)he child does not wish to have overnight parenting time with the plaintiff, “but that could change over time with better planning on the part of plaintiff” (R8, 427 paragraphs 15 & 16).
(R8, Quotation marks in original).
In her Affirmation, Ms. Redacted makes no mention of this being a case of Parent Alienation Syndrom. However, Dr. Redacted, had a conversation with Ms. Redacted on 8/18/06, and she related to him (R306-307):
Ms. Redacted states that the child is being manipulated by the mother.
The mother disapproves of the law guardian because Ms. Redacted views Ms. Redacted as not sympathetic to her position concerning Mr. Redacted’s relationship with Samantha.
At the Rye Playland, Ms. Redacted observed Samantha with her father from a distance. They were having a wonderful time together. However, once Samantha saw the law guardian, “she tensed up”.
In a meeting at the South Street Seaport involving Samantha, her mother and Ms. Redacted, it appeared to the law guardian that the child was coached by the mother to make unsolicited, but damning, comments about the father.
Ms. Redacted rejects the credibility of Ms. Redacted’s allegations against Mr. Redacted that his behavior towards Samantha is inappropriate and deviant.
Ms. Redacted believes this is a case of Parent Alienation Syndrome.
(Bold in original). Appellant was given no opportunity to explore this discrepancy between Ms. Redacted’s Affirmation and Dr. Redacted’s report.
Ms. Redacted also states:
(B)ased on my personal observance, (plaintiff) does not have adequate sleeping arrangements for the Child that would make her comfortable (R8, 427).
Both the Court and Ms. Redacted fail to identify the date of this observation. Additionally, both fail to explain a letter dated 6/20/07, written by Ms. Redacted, addressed to counsel for both parties and copied to the Court, which states,
I have visited the home of Mr. Redacted on June 5, 2007… I found Mr. Redacted’s home to be adequate for overnight visits (R322).
Appellant was given no opportunity to explore this discrepancy between Ms. Redacted’s Affirmation, and her letter of 6/20/07.
Ms. Redacted also states:
Plaintiff has failed to take the child to his residence (R8, 427 paragraph 15);
Apparently, Ms. Redacted was unaware that, beginning 9/13/08, Respondent was transporting the Child to Appellant’s home on alternating weekends (R433, paragraph 1; R435), and actually delivered the Child to Appellant’s residence on 10/4/08 (R436-437). Prior to filing her Affirmation, Ms. Redacted neglected to interview and obtain an update from Appellant, and apparently neglected to interview her client as well.
Ms. Redacted also states:
(Plaintiff) has failed to move closer to the child’s residence (R8, 427 paragraph 15;
(P)laintiff does not appear to know, nor fully appreciate his daughter, her likes and dislikes (R8, 432 paragraph 36).
Neither the Court, nor Ms. Redacted cite a case in which a non-custodial parent was required to change their residence before the Court would grant normalized visitation, and the comment about Appellant not appearing to “know, nor fully appreciate his daughter” is belied by the record of Appellant’s persistence trying to achieve a normal relationship with her. Neither the Court, nor Ms. Redacted explain why these seemingly trivial matters justify the “drastic remedy” of denial of meaningful parenting time for the Child and Appellant. Finally, the Court failed to hold a hearing.
The Court Should Not Have Promised The Child
She Would Not Have Overnight Visitation With Her
Father Until She Was Comfortable With It
In Ebert v. Ebert, 38 N.Y.2d 700, 702(1976), the Court stated,
(W)hile the children’s attitudes were to be given consideration, that did not mean that their wishes were to be determinative.
The Court of Appeals went further, in Eschbach v. Eschbach, 56 N.Y.2d 167, 173 (1982), stating,
(W)hile not determinative, the child’s expressed preference is some indication of what is in the child’s best interests. Of course, in weighing this factor, the court must consider the age and maturity of the child and the potential for influence having been exerted on the child.
In a letter dated 4/3/07 (R316, paragraph 1), counsel for Respondent attributes the following statement to the Court:
He told us, after he met with Samantha, that he had promised her she would not have to sleep over until she was comfortable with it.
This promise was made after an en camera, without any findings as to the age and maturity of the child, and in complete indifference to the documented evidence of influence and coercion exerted upon the child by Respondent. With this promise, the Court granted the child an absolute power to veto her father’s efforts at establishing a normalized parental relationship with her. By extension, the Court granted Respondent a veto over Appellant’s efforts as well. By doing so, the Court has denied Appellant and Child their Due Process rights
The Appellant Did Not Need To
Show A Change Of Circumstances
For Normalized Parenting Time
The Court below denied Appellant’s petition, citing Ebert v. Ebert, 38 N.Y.2d 700, 703 (1976), “the application is devoid of any events of the last year which would constitute a change of circumstances” (R8).
The Court of Appeals, in Ebert, at 703, stated,
(T)here was no change of circumstances, especially with respect to the crucial matter of fitness, to justify a modification of the custodial arrangements which the parties themselves had determined was best for these young children.
Ebert is completely inapposite to this case. The Court mistakenly construes Appellant’s petition, dated 6/16/08, as one “seeking a change in a custodial arrangement” (R7). While this may be true as to Appellants request for joint custody and decision-making, it is incorrect regarding normalized parenting time. Appellant’s petition of 6/16/08 seeks enforcement of the 10/13/04 Agreement, which provided for expanded visitation within 3 months (R223). As stated above, the only agreement not tainted by duress is that of 7/22/99, which provided Appellant with meaningful parenting time before Respondent’s false allegation of sexual abuse. Appellant should not be required to show a change of circumstances to get back what was wrongfully taken from him, without due process, in the first place.
Second, Ebert states the “crucial matter” is the fitness of the parties. Arguendo, if Appellant is required to show change of circumstances, he has raised the issue of the fitness of Respondent.
Either way, Appellant should not be denied relief without a full hearing. See Matter of Joseph F., Sr. V. Patricia F., 32 A.D.3d 938 (2nd Dept. 2006).
The Appellant Showed A Change Of
Circumstances Supporting His Request
For Joint Custody And Decision-Making Authority
In denying Appellant’s 6/16/08 petition, the Court states:
While plaintiff’s current motion contains a detailed recitation of the history of these proceedings, the application is devoid of any events of the last year which would constitute a change of circumstances. Plaintiff relies heavily on prior forensic reports to support his claims for overnight parenting time, however he does not recite a single incident to demonstrate to the court that any circumstances have changed since this court last declined to modify the parenting time arrangements.
The Court is incorrect, Appellant has claimed numerous changed circumstances “over the past year.” In his Affidavit, dated 6/4/08, Appellant stated:
Throughout this approximately seven year ordeal:
- I have had my visitation denied or cancelled on numerous occasions by my ex-wife and ex-mother-in-law.
- I have had my daughter stand at a neutral pick-up and drop-off location (Funplex) and stare (at) my ex-wife and ex-mother-in-law until they left the parking lot before she would acknowledge me.
- I have my visitation cancelled numerous times without a make-up day.
- According to the child law guardian my daughter has requested that I call. However, whenever I call or leave a text message it is my ex-wife who calls back and my daughter is not free to talk to me. After I talk to my ex-wife, my daughter just says hi and thanks for calling.
(R65). The timing of Appellant’s allegations is “throughout this approximately seven year ordeal.” The Court was wrong to assume that none of the allegations occurred within the past year.
The Attorney’s Affirmation, dated 6/16/08 states (R53, paragraph 50):
(T)he Defendant has, in addition to the interference heretofore reported:
- unilaterally . . . cancelled the Father’s Saturday visits without allowing for make-up sessions;
- refused to allow the Father weekly phone contact with the Child;
- refused to notify the Father regarding sports activities, recitals, and other events in which the Child is a participant;
- refused to share doctor’s reports, school report cards, school photos, and other indicia of the Child’s life with the Father
If “plaintiff’s current motion contains a detailed recitation of the history of these proceedings,” as the Court stated, then the statement “in addition to the interference heretofore reported” would put any allegations listed subsequent thereto outside of the history, and into the category of changed circumstances.
The Court’s limitation of “one year” as the period wherein Appellant must show changed circumstances is error. This one year limitation stems from the Court’s dismissal of Appellant’s 11/7/05 petition, and its subsequent direction to renew on 8/28/07. The Court acknowledged that Appellant’s 6/16/08 petition was to renew his “prior motion for increased parenting time, ” which is the petition of 11/7/05 (R6). Appellant’s petition of 11/7/05 sought to enforce the parties agreement of 10/13/04, which required expanded visitation within 3 months” (R223). In Appellant’s 11/7/05 petition, (R232-240), he detailed his efforts to increase visitation in compliance with the October 13th Agreement, via his letters dated 4/12/05 (R235, paragraph 10, R225), and 9/8/05 (R236, paragraph 11, R226-227). Appellant also raised Respondent’s refusal to comply with the October 13th Agreement, via letter dated 9/27/05(R236, paragraph 12, R228). Thus, in addition to the “history of these proceedings” calling into question Respondent’s fitness as custodial parent, Respondent’s refusal to comply with the October 13th Agreement is a change of circumstances which carries forward to Appellant’s 6/16/08 petition, and warrants a hearing into Respondent’s fitness..
As the Second Department ruled in Entwistle v. Entwistle, 61 A.D.2d 380, 384-385 (2d Dept. 1978),
If respondent, at the time she entered into the stipulation, did not intend to uphold her obligation thereunder, it would reduce the appellant’s visitation rights, as embodied in the New York judgment, to nothing more than an outrageous mockery, “a form of words, valueless” and manifestly devoid of substance. Such conduct is to be denounced, and will not be countenanced by this court under any circumstances. If Special Term determines that this pattern of willful deprivation of appellant’s visitation rights was intended at the inception, it would constitute grounds for an adjudication of civil contempt (Internal citations omitted). Id. at 384.
The case history of custodial interference, Respondent’s default on the stipulation of 10/13/04, and the instances of interference subsequent thereto, call into question Respondent’s fitness, and justify an inquiry into whether joint custody and joint decision making are in the best interests of the child.
The Court Has Developed A
Bias Regarding This Matter
Which Has Affected The Outcome
Such That, Should It Be Remanded
A Different Judge Is Warranted
- The Court Has A Bias Against Appellant Because Appellant Sent A Letter Complaining About The Court To The Administrative Judge Of Queens County
On 11/7/05, Appellant filed his motion seeking enforcement of the 10/13/04 stipulation
(R229-244). On 2/6/06, the Court appointed a law guardian, and denied Appellant’s motion with leave to renew (R278-279). On 4/4/06, the Court conducted an in camera with the Child, issued an order again denying overnight visitation, and ordered a conference for 6/26/06 (R280). On 6/27/06, the Court appointed Dr. Redacted as the second Forensic Evaluator in this case (R281). On 2/27/07, Dr. Redacted’s report was issued to counsel, and it was agreed that counsel could share the “summary of conclusions” of the report with the parties (The last 3-4 pages of the report) (R282).
On 7/16/07, the Court convened the parties for an inquiry regarding a letter received by the Administrative Judge of Queens County, dated 5/18/07, written for Appellant, complaining about the conduct of the Judge in this case. Attached to the letter were the last four pages of Dr. Redacted’s report, which had been provided to Appellant by his counsel. The letter alleged “certain biased behavior on the bench.” (R323-342). The merits of Appellant’s petition for normalized parenting time, and the extensive findings and recommendations of Dr. Redacted supporting Appellant’s petition, became secondary to the Court’s inquiry into the letter of complaint, and the attached pages of Dr. Redacted’s report.
Although the Court permitted the pages of Dr. Redacted’s report to be shared with the parties (R282), and although Respondent received the same pages from her counsel (R407, paragraph 7), the Court excused the Law Guardian and Respondent’s counsel(R340), while he interrogated Appellant’s counsel (R327-331), Appellant himself (R332-339, 348-360), and the author of the letter (R345-348), regarding the allegations contained therein, and the report pages that were attached. On 8/28/07, during the Court’s second day of inquiry, Appellant directly confronted the Judge with the allegations contained in the letter (R352, line 24-R355, line 15):
- The Judge did not read the report of the forensic psychiatrist (R352, line 24 – R353, line 5; R354, line 14 – 16);
- The Judge ignored Appellant’s counsel’s arguments (R353, line 24 – R354, line 9);
- The Judge did not know why the parties were in Court on a given day (R354, line 23-25);
- When Appellant’s counsel mentioned the litigation costs incurred by Appellant, the Judge stated, “I wish he was my client;” (R355, line 1-3);
- When Appellant’s counsel argued that Appellant’ daughter was being alienated, the Judge replied, “what does (Appellant) want to be referred to as his majesty?” (R355, line 3-6).
Afterwards, Appellant was again given leave to renew his application for normalized visitation with his child (R343-365).
Notwithstanding the colloquy of 8/28/07, a response to Appellant’s letter, signed by the Administrative Judge of Queens County, was received by the letter’s author, which states:
(C)ontrary to your letter, at no time have the parties made any complaints regarding Justice Strauss or his courtroom demeanor.
By the end of August, 2007, Appellant’s fourth petition to enforce a prior agreement with Respondent for normalized visitation was, like its predecessors, dead. Appellant remained limited to several hours per week with his daughter, could not have her overnight at his home, could not take her away for a vacation, could not take her away for a weekend. He has never been confronted with any evidence justifying this deprivation, and has never been given an opportunity to speak on his own behalf.
In Janousek v. Janousek, 108 A.D.2d 782, 785 (2nd Dept. 1985), the Court held:
(T)he record indicates that the court overreacted to defendant’s conduct and the draconian measures resorted to by the court were unwarranted. The only explanation for the imposition of such a drastic remedy and the court’s statements against defendant during the hearings is that as the hearings progressed, the court became influenced by a personal bias against defendant.
The matter is therefore remitted to Special Term for a hearing before a different Judge to determine the terms and conditions of defendant’s visitation and whether such visitation should be supervised.
It is respectfully submitted that, like the Court in Janousek, the Court in this case, as evidenced by its disregard for the merits of Appellant’s petition, and the tenor of its inquiry into the letter of complaint, has developed a bias against Appellant. Should this matter be remanded for further proceedings, it is respectfully requested it be remanded to a different judge.
- The Court Has A Bias In Favor Of Counsel For Respondent Based Upon A Lifelong Association With Him
On 8/1/08, in chambers, the Court revealed that he and Respondent’s counsel have known each other since they were children, that their father’s had practiced law together.
In Corradino v. Corradino, 48 N.Y.2d 894, 895 (1979), the Court stated:
(B)ecause the attorney for the petitioner husband was associated with the same law firm as was the Trial Judge prior to her designation to the Bench, the respondent wife asked the Judge to recuse herself. That application was denied. Though there is no canon of judicial ethics which specifically requires disqualification under these circumstances, we believe it the better practice for the court to have disqualified itself and thus to maintain the appearance of impartiality.
It is respectfully submitted that the circumstances of this case are similar to those warranting the Court’s opinion in Corradino. Should this matter be remanded for further proceedings, it is respectfully requested it be remanded to a different judge.
- The Court Has A Bias In Favor Of The Wishes Of The Child Which Gives The Child Undue Influence Over The Outcome Of Appellant’s Application
As indicated above, in a letter dated 4/3/07(R316-316.1), counsel for Respondent attributes the following statement to the Judge who presided over this case:
He told us, after he met with Samantha, that he had promised her she would not have to sleep over until she was comfortable with it.
This promise was made after an en camera, without any findings of fact regarding age or maturity of the Child, and with complete indifference to the documented evidence of influence and coercion exerted by Respondent. Upon this promise, the Court granted the Child an absolute veto over her father’s efforts toward a normalized parental relationship, and by extension, a veto to Respondent, and denied both Appellant and Child their right to Due Process. Further, by making such a promise to a little girl, a promise the Court will certainly feel compelled to keep, the Court has rendered itself incapable of fairly presiding over this matter any further. Should this matter be remanded for further proceedings, it is respectfully requested it be remanded to a different judge.
The Appellate Court Can Grant
Appellant The Relief He Seeks
Without Remanding This Matter
For Further Proceedings
In Matter of Louise E.S., 64 N.Y.2d 946, 947 (1985), the Court of Appeals stated,
The Authority of the Appellate Division in matters of custody is as broad as that of the Trial Judge.
In Gonzalez v. Gonzalez, 17 A.D.3d 635, 636 (2d Dept. 2005), the Court stated,
The determination of the hearing court is entitled to great weight on appeal and should not be disturbed unless it lacks a sound basis in the record.
The Court below did not take any testimony of witnesses, except for the Child which was conducted en camera. Thus, it possesses no advantage over the Appellate Court as to the demeanor of witnesses on direct or under cross examination. The Appellate Division has documentary evidence produced by numerous neutral, court-appointed or mandated third-party witnesses, and documents produced from the parties themselves, from which it can glean their motives and conduct, and thereby make a determination whether it is in the best interests of the Child to grant Appellant normalized parenting time. It is respectfully requested that this Court overturn the decision of the Court below, and restore meaningful and frequent parenting time to Appellant and Child.
There is no record in this case, no evidence, to justify the deprivation of a normal parenting relationship between Appellant and Child. The Appellant has lived the role of Josef K, the protagonist in the novel The Trial, by Franz Kafka. He has never been charged with any misconduct. He has never had the opportunity to confront any allegation or witness against him, or tell his side of the story to a fact finder. The record is bloated with intimidation, coercion, bad faith, and dishonesty by Respondent. The Court below has been deaf to Appellant’s legitimate and compelling petitions for relief. Therefore, Appellant should immediately be granted overnight parenting time with the child, to include alternating weekends from Friday through Sunday, four weeks of vacation over summers and a week vacation during winter recesses, and a fair allotment of holidays. Appellant should immediately be granted court sanctioned decision making authority regarding the child’s welfare. And lastly, both parties, and the Child should be ordered to attend family counseling, to ease the Child’s transition to a normal relationship with her father.
68 A.D.3d 717, 889 N.Y.S.2d 661, 2009 N.Y. Slip Op. 08995
Martin , Redacted, Appellant
Cynthia Marie Redacted, Respondent.
Supreme Court, Appellate Division, Second Department, New York
December 1, 2009
CITE TITLE AS: Goldstein v Goldstein
Parent and Child
In view of disputed factual allegations bearing directly upon issue of enhanced visitation, recommendations of three mental health experts that father be given normalized visitation with child, father’s allegations of change in circumstances based on custodial interference and absence of any prior hearing in six years of litigation concerning custody and visitation, it was error to deny father’s motion for joint custody and joint decision-making authority with respect to child, or, in alternative, expanded overnight visitation with child, without hearing to determine whether denial was in best interests of child.
Michael F. Dailey, New York, N.Y., for appellant.
Dikman & Dikman, Lake Success, N.Y. (Michael Dikman of counsel), for respondent.
Zenith T. Taylor, Forest Hills, N.Y., attorney for the child.
In a matrimonial action in which the parties were divorced by judgment entered June 22, 2004, the plaintiff father appeals, as limited by his brief, from so much of an order of the Supreme *718 Court, Queens County (Strauss, J.), dated December 10, 2008, as denied, without a hearing, those branches of his motion which were to modify the parties’ stipulation dated October 13, 2004, so as to award him joint custody of the parties’ child and joint decision-making authority with respect to the child, or, in the alternative, to award him expanded, overnight visitation with the child.
Ordered that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a hearing, to be held with all convenient speed, on those branches of the plaintiff father’s motion which were to modify the parties’ stipulation dated October 13, 2004, so as to award him joint custody of the parties’ child and joint decision-making authority with respect to the child, or, in the alternative, to award him expanded, overnight visitation with the child, and for a new determination thereafter on those branches of the motion.
The parties to this action were married in 1998 and had one child, a daughter, born on August 24, 1998. In 1999 the parties separated and executed a written separation agreement, inter alia, giving the defendant mother custody of the child, subject to enumerated visitation rights for the plaintiff father, including overnight visitation with the child. In 2002 the father commenced this action against the mother in the Supreme Court, Queens County, following a long entangled history with respect to issues with visitation, which initially stemmed from the mother’s allegations of inappropriate sexual contact between the father and the child. None of the allegations was ever substantiated.
Shortly thereafter, the father moved for the enforcement of the visitation provisions of the separation agreement. In 2003 the Supreme Court (Dorsa, J.) appointed a forensic evaluator, Dr. John McCann, who testified at a hearing conducted to explore the sexual allegations against the father. Dr. McCann opined, among other things, that the sexual contact allegations against the father were unfounded, and that there was interference by the mother with his visitation. By oral modification agreement in open court dated March 22, 2004, the parties settled the pending enforcement dispute by agreeing, inter alia, that the father would have four hours of biweekly supervised visitation until July 2004, when he would have unsupervised visitation with the child every weekend for four hours at public places.**2
By judgment of divorce dated June 17, 2004, the parties’ mar *719 riage was dissolved in accordance with their separation agreement (see Domestic Relations Law § 170 ), which, in conjunction with the modification agreement dated March 22, 2004, was incorporated by reference but not merged into the judgment. Visitation problems nonetheless continued, prompting the father to file several applications against the mother for enforcement of the parties’ visitation agreements.
Subsequently, the parties entered into a so-ordered stipulation (Strauss, J.) dated October 13, 2004, which modified the judgment by providing the father with expanded visitation “supervised only by the general public” until November 20, 2004, when he was to have unsupervised visitation with the child each Saturday for six hours, to be expanded upon the earlier of the recommendation of a family therapist or within three months. In accordance therewith, in correspondence dated March 18, 2005, a therapist stated that he found no evidence of inappropriate sexual contact, and recommended that the father be permitted unsupervised, overnight visitation with the child.
In November 2005 the father again moved to enforce the parties’ latest visitation agreement, and the mother cross-moved for the appointment of an attorney for the child and an in camera interview by the court. In an order dated February 6, 2006, the Supreme Court (Strauss, J.) denied the father’s motion and appointed an attorney for the child. In April 2006 Justice Strauss conducted his first in camera interview with the child. On February 27, 2007 a new court-appointed forensic psychiatrist Dr. William Kaplan again concluded that the mother’s sexual allegations were unfounded and “ludicrous,” and recommended that the father have “unfettered, normalized” visitation immediately with the child.
In June 2008 the father moved for, inter alia, modification of the parties’ stipulation dated October 13, 2004, so as to award him joint custody of the parties’ child and joint decision-making authority with respect to the child, or, in the alternative, to award him expanded, overnight visitation with the child. On August 5, 2008 the court conducted its second in camera interview with the child. Without ever conducting a hearing on the parties’ controverted allegations and second forensic evaluation, the Supreme Court denied those branches of the father’s motion which were for joint custody and joint decision-making authority with respect to the child, or expanded, overnight visitation, but granted him, among other things, access to the child’s health, welfare, and education information. We reverse the Supreme Court’s order insofar as appealed from.
“ ‘In order to modify an existing custody [or visitation] ar *720 rangement, there must be a showing of a subsequent change of circumstances so that modification is required to protect the best interests of the child’ ” (Matter of Gurewich v Gurewich, 58 AD3d 628, 629 , quoting Matter of Fallarino v Ayala, 41 AD3d 714 ; see Matter of Weinberg v Weinberg, 52 AD3d 616 ; Matter of Robertson v Robertson, 40 AD3d 1219, 1220 ). The best interests of the child are determined by a review of the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167, 171 ; Matter of Fallarino v Ayala, 41 AD3d at 714-715). In this regard, the court should consider whether the alleged changed circumstances indicate one of the parties is unfit, “the nature and quality of the relationships between the child and the parties,” and “the existence of a prior agreement” (Matter of Wilson v McGlinchey, 2 NY3d 375, 381 ; see Friederwitzer v Friederwitzer, 55 NY2d 89, 94-95 ). “[A] change in circumstances may be demonstrated by, inter alia, . . . interference with the noncustodial parent’s visitation rights and/or telephone access” (Matter of Le Blanc v Morrison, 288 AD2d 768, 770 , quoting Matter of Markey v Bederian, 274 AD2d 816, 817 ; see Matter of David WW. v Laureen QQ., 42 AD3d 685, 686 ).
In view of the parties’ and the child’s disputed factual allegations in this case, which directly bear upon the issue of enhanced visitation, the recommendations of three mental health experts that the father be given normalized visitation with the child (see Matter of Nikolic v Ingrassia, 47 AD3d 819 ; Matter of Kozlowski v Mangialino, 36 AD3d 916 ; Miller v Pipia, 297 AD2d 362 ; Young v Young, 212 AD2d 114, 118 ), the father’s allegations of a change in circumstances based on custodial interference, and the absence of any prior hearing in six years of litigation concerning custody and visitation, the Supreme Court improvidently exercised its discretion in denying those branches of the father’s motion which were for joint custody and joint decision-making authority with respect to the child, or, in the alternative, expanded overnight visitation with the child, without a hearing to determine whether the denial was in the best interests of the child (see Matter of Gurewich v Gurewich, 58 AD3d at 629; **3 Matter of Weinberg v Weinberg, 52 AD3d 616 ; Matter of Le Blanc v Morrison, 288 AD2d at 770; Matter of Markey v Bederian, 274 AD2d at 817; Matter of Sandra C. v Christian D., 244 AD2d 551 ; Hizme v Hizme, 212 AD2d 580, 581 ). Accordingly, the matter must be remitted to the Supreme Court, Queens County, for a hearing, to be held with all convenient speed, on those branches of the father’s motion which were to modify the parties’ stipulation dated October 13, 2004, so as to award him *721 joint custody of the child and joint decision-making authority with respect to the child, or, in the alternative, to award him expanded, overnight visitation, with the child, and for a new determination thereafter on those branches of the motion (see Matter of David WW. v Laureen QQ., 42 AD3d at 686).
The father’s remaining contentions need not be addressed in light of our determination. Dillon, J.P., Florio, Balkin and Leventhal, JJ., concur.
Copr. (c) 2011, Secretary of State, State of New York
68 A.D.3d 717, 889 N.Y.S.2d 661, 2009 N.Y. Slip Op. 08995
END OF DOCUMENT
 Transcript page twelve (12) is missing.
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