On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

Matter of Anastasia L.-D. (Ronald D.)

Jeffrey D. Friedlander, Acting Corporation Counsel, New York, N.Y. (Leonard Koerner and Ronald E. Sternberg of counsel), for appellant.

Deanna Everett-Johnson, Brooklyn, N.Y., for respondent.

Steven Banks, New York, N.Y. (Tamara A. Steckler and Patricia Colella of counsel), attorney for the child Anastasia L.-D.

Michael A. Fiechter, Bellmore, N.Y., attorney for the child Amethyst L.-D.

In two related child protective proceedings pursuant to Family Court Act article 10, the petitioner, Administration for Children’s Services, appeals from an order of the Family Court, Kings County (Turbow, J.), dated July 12, 2013, which, after a fact-finding hearing, dismissed the petitions.

Ordered that the order is affirmed, without costs or disbursements.

The petitioner, Administration for Children’s Services (hereinafter ACS), filed petitions against the father, alleging that he had neglected the subject children, Anastasia and Amethyst, through the infliction of excessive corporal punishment upon Anastasia and his own use of marijuana. The father allegedly hit 14-year-old Anastasia with a belt several times when she refused to give him her cell phone upon his request, causing bruises to her body. Also, the children had allegedly observed the father smoking marijuana on prior occasions. The father testified at a fact-finding hearing that he was attempting to discipline Anastasia for cutting school by taking away her cell phone, and that he hit her with the belt when she refused to give him the phone and charged at him. He testified that corporal punishment was not his normal mode of discipline. The father testified that he had smoked marijuana, but did not smoke it regularly, and that he never used or was under the influence of marijuana in the children’s presence. [*2]

ACS’s contentions are without merit. Parents have a right to use reasonable physical force against a child in order to maintain discipline or to promote the child’s welfare. However, the use of excessive corporal punishment constitutes neglect (see Family Ct Act § 1012 [f] [i] [B]; Matter of Matthew M. [Fatima M.], 109 AD3d 472 [2013]; Matter of Delehia J. [Tameka J.], 93 AD3d 668 [2012]; Matter of Padmine M. [Sandra M.], 84 AD3d 806 [2011]; Matter of Alexander J.S. [David S.], 72 AD3d 829 [2010]). The petitioner has the burden of proving neglect by a preponderance of the evidence (see Family Ct Act § 1046 [b] [i]; Matter of Jacob P. [Sasha R.], 107 AD3d 719 [2013]; Matter of Amerriah S. [Kadiatou Y.], 100 AD3d 1006 [2012]; Matter of Deon S.-G. [Romel S.-G.], 95 AD3d 1340 [2012]). Although a single incident of excessive corporal punishment may suffice to support a finding of neglect, there are instances where the record will not support such a finding, even where the parent’s use of physical force was inappropriate (see Matter of Crystal S. [Elaine S.], 74 AD3d 823 [2010]). Under the circumstances presented here, the Family Court correctly found that ACS failed to establish by a preponderance of the evidence that the father neglected Anastasia by virtue of his infliction of excessive corporal punishment upon her. ACS failed to establish that the father intended to hurt Anastasia, or that his conduct demonstrated a pattern of excessive corporal punishment (see Matter of Nicholas W. [Raymond W.], 90 AD3d 1614 [2011]; Matter of Alexander J.S. [David S.], 72 AD3d 829 [2010]). There was insufficient evidence that Anastasia suffered the requisite impairment of her physical, mental, or emotional well-being to support a finding of neglect (see Matter of Christian O., 51 AD3d 402 [2008]). Given Anastasia’s age, the circumstances under which the altercation occurred, and the isolated nature of the father’s conduct, the court did not err in dismissing the petitions (see Matter of Rosina W., 297 AD2d 639 [2002]; Matter of Amanda E., 279 AD2d 917 [2001]).

Furthermore, the Family Court correctly found that there was no basis for concluding that the father derivatively neglected Amethyst, who was in the room during the incident, inasmuch as ACS did not prove by a preponderance of the evidence that the father neglected Anastasia (see Matter of Alexander J.S. [David S.], 72 AD3d 829 [2010]; Matter of Corey Mc. [Tanya Mc.], 67 AD3d 1015 [2009]). The focus of the inquiry required to determine whether derivative neglect has occurred is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent’s understanding of the duties of parenthood (see Matter of Monica C.M. [Arnold A.], 107 AD3d 996 [2013]; Matter of Jelani B., 54 AD3d 1032 [2008]). Since we have determined that the father did not neglect Anastasia in the first instance, we conclude that the father’s parental judgment was not so impaired as to create a substantial risk of harm to Amethyst, thus rendering Amethyst a neglected child within the meaning of Family Court Act § 1012 (f) (i) (B) (see Matter of Jelani B., 54 AD3d 1032 [2008]).

The Family Court found that there was no evidence that the father smoked marijuana other than outside the children’s presence, as he testified, and there is no basis in the record to disturb that court’s credibility determination. ACS failed to prove by a preponderance of the evidence that the father’s occasional marijuana use outside of the children’s presence caused impairment, or an imminent danger of impairment, to the physical, mental, or emotional well-being of the subject children (see Matter of Diamond J. [Nakesha J.], 102 AD3d 784 [2013]). Imminent danger must be near or impending, not merely possible (see Matter of Anna F., 56 AD3d 1197 [2008] [the record failed to establish that children’s physical, mental, or emotional conditions were in imminent danger of becoming impaired by father’s occasional use of drugs or alcohol while children were asleep]). Furthermore, no evidence was elicited as to the duration, frequency, or repetitiveness of the father’s marijuana use (see Matter of Jeffrey M. [Noemi C.], 102 AD3d 608 [2013]; Matter of Anastasia G., 52 AD3d 830 [2008]). Balkin, J.P., Chambers, Austin and Roman, JJ., concur.

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On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

2013-06224 DECISION & ORDER

In the Matter of Lisa Christy, appellant, v BrianChristy, respondent.(Docket Nos. V-14614-12, V-14615-12, V-14616-12)Bryan L. Salamone & Associates, P.C., Melville, N.Y. (Katherine M. Saciolo ofcounsel), for appellant.Golden Hirschhorn LLP, Garden City, N.Y. (Alan K. Hirschhorn of counsel), forrespondent.Beth A. Rosenthal, North Babylon, N.Y., attorney for the child.In related custody proceedings pursuant to Family Court Act article 6, the motherappeals from an order of the Family Court, Suffolk County (Orlando, Ct. Atty. Ref.), dated May 10,2013, which granted the father’s motion, made at the close of the mother’s case, to dismiss herpetition to modify the custody provisions set forth in a stipulation of settlement dated November 17,2011, which was incorporated but not merged into the parties’ judgment of divorce entered June 11,2012, to allow her to relocate from New York to Arizona with the subject children, and, in effect,dismissed the proceeding.ORDERED that the order is affirmed, with costs.On a motion to dismiss a petition, made at the close of the petitioner’s case, the factsmust be viewed in the light most favorable to the petitioner, accepting his or her proof as true andaffording him or her every favorable inference that reasonably can be drawn therefrom (see MatterJanuary 29, 2014 Page 1.MATTER OF CHRISTY v CHRISTYof Mineo v Mineo,96 AD3d 1617;Matter of Stone v Wyant,8 AD3d 1046).Here, even when viewed in the light most favorable to the mother, the evidence shepresented on her case failed to establish, prima facie, that her proposal to relocate to Arizona withthe subject children was in their best interest (see Matter of Tropea v Tropea,87 NY2d 727, 739).The mother failed to provide sufficient proof that the move would enhance the children’s liveseconomically. The mother is currently living in the home of her second husband together with sixchildren, three from each of their prior marriages. The mother, an unemployed educator, testifiedthat she had received a job offer in Arizona, contingent on her obtaining reciprocal certification.She, however, did not testify about what salary she expected to earn. Further, the mother’s secondhusband, who has a secure job in New York earning between $60,000 and $80,000, annually, doesnot have a job waiting for him in Arizona (see Matter of McBryde v Bodden,91 AD3d 781, 782).Without proof of the second husband’s potential job prospects in Arizona, or proof of the mother’searning potential as a teacher in Arizona, any contention that the children would enjoy a higherquality of life there is speculative.enhanced emotionally by the move. There was no testimony regarding how the children felt aboutthe proposed move, in terms of how they believed it would affect their relationship with their fatheror any of their friends. In fact, there was no evidence as to whether the subject children even desiredto move (see Matter of Harrsch v Jesser,74 AD3d 811, 812).If relocation of the subject children across the country were permitted, the frequencyof contacts between them and the father, who, inter alia, currently visits with them three weekendsa month, would be significantly reduced (see Matter of McBryde v Bodden,91 AD3d at 782;Rubiov Rubio,71 AD3d 862, 863;Matter of Martino v Ramos,64 AD3d 657, 658;cf. Matter of Sahagunv Alix,107 AD3d 722, 723).The mother failed to show that the relationship between the subjecthildren and the father could be preserved through suitable visitation arrangements, particularlygiven her financial circumstances.Accordingly, the Family Court properly granted the father’s motion to dismiss themother’s petition at the close of her case (see Matter of Rotering v Rotering,6 AD3d 718).BALKIN, J.P., CHAMBERS, AUSTIN and ROMAN, JJ., concur.ENTER:Aprilanne AgostinoClerk of the CourtJanuary 29, 2014 Page 2.MATTER OF CHRISTY v CHRISTY

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On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

Matter of Mandal v Mandal

Amy Mulzer, Brooklyn, N.Y., for appellant.

Teresita Morales, Jamaica, N.Y., attorney for the children.

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Queens County (McGowan, J.), dated November 19, 2012, as, without a hearing, awarded custody of the subject children to the father.

Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Queens County, for an evidentiary hearing to be held with all convenient speed on the issue of custody and a new determination of the petition thereafter; and it is further,

Ordered that pending the hearing and new determination, the subject children shall remain in the custody of the father.

An award of custody must be based upon the best interests of the child, and neither parent has a prima facie right to custody of the child (see Matter of Zaratzian v Abadir, 105 AD3d 1054 [2013]; Matter of Peek v Peek, 79 AD3d 753, 753-754 [2010]). “Since the court has an obligation to make an objective and independent evaluation of the circumstances, a custody determination should be made only after a full and fair hearing at which the record is fully developed” (Matter of Peek v Peek, 79 AD3d at 754 [citations omitted]; see Matter of Labella v Murray, 108 AD3d 547 [2013]; Matter of Perez v Estevez, 82 AD3d 1106 [2011]). Therefore, as a general rule, it is error to make an order respecting custody based upon controverted allegations without the benefit of a full hearing (see Matter of Labella v Murray, 108 AD3d at 547; Matter of Swinson v Brewington, 84 AD3d 1251, 1253 [2011]; Matter of Perez v Estevez, 82 AD3d at 1106; Matter of Peek v Peek, 79 AD3d at 754). It is not necessary, however to conduct such a hearing “where the court already possesses sufficient relevant information to render an informed determination in the child’s best interest” (Matter of Labella v Murray, 108 AD3d at 548 [internal quotation marks omitted]; see Matter of Perez v Estevez, 82 AD3d at 1106).

Under the circumstances presented here, it cannot be concluded that the Family Court possessed sufficient information to render an informed determination as to the best interests of the [*2]subject children (see Matter of Labella v Murray, 108 AD3d at 548; Matter of Savoca v Bellofatto, 104 AD3d 695, 696 [2013]; Matter of Perez v Estevez, 82 AD3d at 1106; Matter of Peek v Peek, 79 AD3d at 754). In addition, in issuing its determination, the Family Court failed to make ” ‘specific findings of fact with respect to the issue of custody,’ ” as it is required to do (Matter of Savoca v Bellofatto, 104 AD3d at 696, quoting Audubon v Audubon, 138 AD2d 658, 659 [1988]; see Mauter v Mauter, 309 AD2d 737, 738 [2003]).

Accordingly, the matter must be remitted to the Family Court, Queens County, for an evidentiary hearing on the issue of custody and a new determination of the petition thereafter (see Matter of Labella v Murray, 108 AD3d at 548; Matter of Perez v Estevez, 82 AD3d at 1106). Skelos, J.P., Lott, Cohen and Hinds-Radix, JJ., concur.

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On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

Matter of Shiffman v Handler

Bondi Iovino & Fusco, Garden City, N.Y. (Desiree Lovell Fusco of counsel), for appellant.

Pearlman, Apat, Futterman Sirotkin & Seinfeld, LLP, Kew Gardens, N.Y. (Martin Seinfeld, Richard H. Apat, and Jordana Seiden of counsel), for respondent.

In a family offense proceeding pursuant to Family Court Act article 8, the daughter appeals from an order of protection of the Family Court, Nassau County (Corrigan, J.), dated April 5, 2013, which, after a hearing, and upon a finding that she committed the family offense of disorderly conduct, directed her, inter alia, to stay away from the mother until and including April 4, 2014.

Ordered that the order of protection is reversed, on the facts, with costs, the petition is denied, and the proceeding is dismissed.

The family offense of “disorderly conduct” is not limited to disorderly conduct in a public place (Family Ct Act § 812). Each of the requisite elements of that offense must be established by a preponderance of the evidence (see Family Ct Act § 832; Matter of Bah v Bah, 112 AD3d 921, 922 [2013]). This includes the mens rea of that offense, namely that, when engaging in certain defined conduct, the actor did so “with intent to cause public inconvenience, annoyance or alarm, or recklessly creat[ed] a risk thereof” (Penal Law § 240.20; see Matter of Cassie v Cassie, 109 AD3d 337, 340 [2013]).

The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court’s determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record (see Matter of Alonso v Perdue, 112 AD3d 920 [2013]; Matter of Saldivar v Cabrera, 109 AD3d 831, 832 [2013]; cf. Matter of Wan-Su Li v Feng, 45 AD3d 775, 776 [2007]). Here, in the exercise of our factual review power, we conclude that the mother did not sustain her burden. The evidence established that the daughter went to the mother’s home, stood on the front porch, knocked on the front door and windows for a period of nearly an hour, and telephoned the mother’s home phone number twice, but it did not establish the daughter’s requisite intent or recklessness with respect to causing public inconvenience, annoyance, or alarm (see Family Ct Act § 812; Penal Law § 240.20). The mother presented no evidence in support of the mens rea element, such as the proximity of the porch to neighbors or other members [*2]of the public, or that the conduct otherwise could have caused public inconvenience, annoyance, or alarm (Matter of Cassie v Cassie, 109 AD3d at 341-342; cf. Matter of Wan-Su Li v Feng, 45 AD3d at 776). Accordingly, we reverse the order of protection, deny the petition, and dismiss the proceeding. Rivera, J.P., Balkin, Hinds-Radix and Maltese, JJ., concur.

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On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

In a divorce matter where the marital residence is at issue, the Court should give the parties the option of retaining exclusive occupancy of the residence upon payment of the marital debts, within a reasonable amount of time,” says attorney Joseph H. Nivin.

SUPREME COURT OF THE STATE OF NEW YORK

[*1]Leigh Ann Lamparillo, respondent-appellant,
v
Gregory Lamparillo, appellant-respondent.

Levinson, Reineke & Ornstien, P.C., Central Valley, N.Y. (Justin Kimple of counsel), for appellant-respondent.
Rametta & Rametta, LLC, Goshen, N.Y. (Robert M. Rametta of counsel), for respondent-appellant.

DECISION & ORDER

In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Orange County (Marx, J.), dated April 16, 2012, as, upon findings of fact and conclusions of law dated April 16, 2012, and a decision dated November 22, 2011, made after a nonjury trial, (a) directed him to pay maintenance to the plaintiff in the sum of $550 per week for a period of three years, (b) directed the sale of the marital residence and the equal division of the net proceeds between the parties after the payment of all marital debt, including credit card debt in the amount of $22,648, and after payment of $7,000 to the plaintiff for her one-half interest in the household furnishings and other items, (c) failed to give him the option of purchasing the plaintiff’s interest in the marital residence, and (d) awarded him a separate property credit of only $180,000 for alleged separate funds he contributed to the construction of the marital residence, and directed that the credit be satisfied by his parents’ repayment to him of a loan made to them by the parties, and the plaintiff cross-appeals, as limited by her brief, from so much of the same judgment as awarded the defendant a separate property credit of $180,000 for funds he contributed to the construction of the marital residence.

ORDERED that the judgment is modified, on the facts and in the exercise of discretion, by (1) deleting the provision thereof awarding the defendant a separate property credit in the sum of $180,000 and directing that the credit be satisfied by his parents’ repayment to him of a loan made to them by the parties, and (2) deleting the provision thereof directing the sale of the marital residence; as so modified, the judgment is affirmed insofar as appealed from, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Orange County, for further proceedings in accordance herewith, and thereafter, the entry of an appropriate amended judgment.

When determining a maintenance obligation, “[w]here a party’s account of his or her finances is not believable, the court may impute a true or potential income higher than that alleged” (DiPalma v DiPalma, 112 AD3d 663, 664; see Kessler v Kessler, 111 AD3d 895). Here, the Supreme Court providently exercised its discretion in imputing income to the defendant based on, inter alia, information he provided in a bankruptcy petition (see Duffy v Duffy, 84 AD3d 1151, 1152; [*2]Greisman v Greisman, 98 AD3d 1079, 1080).

” [T]he amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts’” (DiBlasi v DiBlasi, 48 AD3d 403, 404; quoting Wortman v Wortman, 11 AD3d 604, 606). In view of the relevant factors, including the income of the parties, the length of the marriage, the present and future earning capacity of the parties, and the ability of the party seeking maintenance to become self-supporting, the Supreme Court providently exercised its discretion in awarding the plaintiff weekly maintenance in the sum of $550 for a period of three years (see Domestic Relations Law § 236[B][6][a]; Duffy v Duffy, 84 AD3d at 1152; Groesbeck v Groesbeck, 51 AD3d 722, 723; Schwalb v Schwalb, 50 AD3d 1206, 1210).

The Supreme Court awarded the defendant an equitable distribution credit in the sum of $180,000 for a contribution of alleged separate property he made toward the construction of the marital residence. To satisfy the credit, the court directed that $180,000 the parties loaned to his parents should be repaid only to him. However, while the defendant testified that he used his separate funds to pay for materials used to construct the marital residence, he offered no additional evidentiary support for his claim (see McLoughlin v McLoughlin, 63 AD3d 1017, 1019; Romano v Romano, 40 AD3d 837, 838; Murphy v Murphy, 4 AD3d 460, 461). Since the defendant failed to meet his burden of establishing that the $180,000 was separate property, he was not entitled to a credit. Consequently, the $180,000 the parties loaned to the defendant’s parents should be repaid to both parties.

The Supreme Court providently exercised its discretion in equally allocating responsibility for certain credit card debt in the amount of $22,648 that the plaintiff incurred prior to this action, as the plaintiff demonstrated that it constituted marital debt (see Alleva v Alleva, 112 AD3d 567, 569; Rodriguez v Rodriguez, 70 AD3d 799, 802).

Contrary to the defendant’s contention, the Supreme Court providently awarded the plaintiff $7,000 for one half the value of, inter alia, the furnishings in the marital residence and certain other items.

Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in directing the sale of the marital residence without first offering the defendant the option of retaining exclusive occupancy of the marital residence by purchasing the plaintiff’s interest therein (see Aebly v Lally, 112 AD3d 561, 563; Ierardi v Ierardi, 151 AD2d 548, 548-549; see also Bartek v Draper, 309 AD2d 825, 826). In order to exercise the option to purchase the plaintiff’s interest, the defendant shall, within three months after service upon him of a copy of this decision and order with notice of entry, pay off the remaining balances of all existing marital debts on the property, including the mortgage and the home equity loan. Upon her receipt of proof of satisfaction of these debts, the plaintiff shall convey her interest in the marital residence to the defendant, and the Supreme Court shall recalculate the equitable distribution award and make appropriate adjustments, taking into account the exercise of the option and satisfaction of the marital debts on the property and the conveyance of title. In the event that the option to purchase is not successfully exercised by the defendant within the time allotted, the marital residence shall be sold in accordance with the terms set forth in the judgment appealed from. Within 30 days of service upon him of a copy of this decision and order with notice of entry, the defendant shall notify the Supreme Court and the plaintiff’s counsel, in writing, whether he intends to exercise the option. In the event the defendant fails to do so, he shall be deemed to have waived the option (see Aebly v Lally, 112 AD3d at 563-564).
MASTRO, J.P., CHAMBERS, AUSTIN and MILLER, JJ., concur.

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On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

2.28.14

Joseph H. Nivin, Jamaica, N.Y., for appellant.

In a proceeding pursuant to Family Court Act article 6 for the appointment of Gardeep S. as guardian of the child Kamaljit S., Kamaljit S. appeals from an order of the Family Court, Queens County (Pach, J.H.O), dated March 12, 2013, which, upon the granting of the guardian petition in an order dated February 5, 2013, and after a hearing, denied his motion for the issuance of an order making special findings so as to enable him to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101 (a) (27) (J).

Ordered that the order is reversed, on the facts, without costs or disbursements, the motion is granted, it is declared that Kamaljit S. is dependent on the Family Court, and it is found that he is unmarried and under 21 years of age, that reunification with one or both of his parents is not viable due to parental neglect, and that it would not be in the best interests of Kamaljit S. to return to India, his previous country of nationality and last habitual residence.

In this proceeding in which Gardeep S. was appointed the guardian of Kamaljit S., Kamaljit moved for the issuance of an order making specific findings that would allow him to apply to the United States Citizenship and Immigration Services for special immigrant juvenile status (hereinafter SIJS). After a hearing, the Family Court determined that Kamaljit was under 21 years of age, unmarried, and dependent on the Family Court. However, the court denied Kamaljit’s motion on the ground that Kamaljit failed to show that reunification with one or both of his parents was not viable and that it was not in his best interests to return to his country of origin, India.

Pursuant to 8 USC § 1101 (a) (27) (J) (as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub L 110-457, 122 US Stat 5044) and 8 CFR 204.11, a “special immigrant” is a resident alien who is, inter alia, under 21 years of age, unmarried, and “declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States” (8 USC § 1101 [a] [27] [J] [i]). For the juvenile to qualify for SIJS status, it must also be determined that reunification with “1 or both” of the juvenile’s parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under State law (id.), and that it would not be in the juvenile’s best interest to be returned to his or her native country or country of last habitual residence (see 8 USC § 1101 [a] [27] [J] [ii]). [*2]

This Court’s power to review the evidence is as broad as that of the hearing court, and where, as here, the record is sufficiently complete to make our own factual determinations, we may do so (see Matter of Jisun L. v Young Sun P., 75 AD3d 510, 511-512 [2010]; Matter of Trudy-Ann W. v Joan W., 73 AD3d 793, 795 [2010]). Based upon our independent factual review, we find that the record supports Kamaljit’s contentions that reunification with his mother was not viable due to parental neglect, and that it would not be in Kamaljit’s best interests to be returned to India (see Matter of Marcelina M.-G. v Israel S., 112 AD3d 100, 115 [2013]; Matter of Mohamed B., 83 AD3d 829, 832 [2011]). Accordingly, the Family Court should have granted Kamaljit’s motion. Mastro, J.P., Chambers, Lott and Miller, JJ., concur.

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On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

By Joseph H. Nivin, Esq.

I. Introduction

In child custody proceedings, New York courts are charged with making critical, and emotional, choices about children’s lives. These choices include where a child will live, who will make decisions about a child’s medical and academic needs, and the level of access that the non-custodial parent will have to his or her own child. The standard for child custody determinations is highly subjective; N.Y. Domestic Relations Law §240(1)(a) provides that courts “shall enter orders for custody. . .as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child[.]” (The only restriction provided by the statute is that no court shall make an order providing for visitation or custody to a person who has been convicted of murder in the first or second degree, or of an offense in a foreign jurisdiction which would constitute said crimes in New York, where the victim was a parent, legal custodian, legal guardian, sibling, half-sibling or step-sibling of a child who is the subject of the proceeding. N.Y. DRL §240(1)(a)(1-c).)

Allegations of parental alienation make the task even more difficult for New York’s jurists. Is the child a victim of abuse, or is one parent fabricating allegations to force the other parent out of the child’s life? Does the child have valid reasons to oppose any contact with the non-custodial parent, or is the opposition borne of manipulation by the custodial parent?

This article explores the means by which New York courts analyze these important and emotional questions. Specifically, this article will explore: (1) the definitions of parental alienation, (2) the sets of facts that courts use to conclude that parental alienation exists, (3) the remedies after courts enter findings of parental alienation, and (4) the role of the attorney for the child.

II. Defining Parental Alienation

A. Dr. Richard Gardner, and “Parental Alienation Syndrome”

Psychiatrist Richard Gardner defined Parental Alienation Syndrome (PAS) as: The programming of the child by one parent, into a campaign of denigration directed against the other. And the second component is the child’s own contributions that dovetail and complement the contributions of the programming parent. People v. Fortin, 184 Misc.2d 10, 12 (N.Y. Country CT.2000).

In other words, Dr. Gardner defined PAS as a disorder where: (1) a parent programmed a child to denigrate the other parent, and (2) the child contributed to that denigration, complementing the efforts of the programming parent.

PAS is not recognized as a valid medical syndrome by the American Medical Association, or the American Psychological Association. In addition, PAS is not listed in the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM). Dallas, S.J. (1999). “Parental Alienation Syndrome: Is it scientific?” In E. St. Charles & L. Crook (Eds.), Expose: The failure of family courts to protect children from abuse in custody disputes. Los Gatos, CA: Our Children Our Children Charitable Foundation. New York courts have disallowed expert testimony regarding PAS, holding that the evidence was insufficient in those cases to establish that PAS is generally accepted in the relevant scientific communities. People v. Fortin, 289 A.D.2d 590 (2d Dep’t 2001); People v. Loomis, 172 Misc.2d 265 (1997).

PAS is highly controversial, as the American Psychiatric Association (APA) considers its addition to the DSM-V in May 2013. Lithwick, Dahlia. “Mommy Hates Daddy, and You Should Too.” Slate.com, May 17, 2011. The National Organization for Women (NOW) advocates against the inclusion of PAS in the DSM-V, or its consideration in custody cases. Letter from Terry O’Neill, NOW President, to the Chair and Members of the Childhood and Adolescent Disorders Work Group of the American Psychiatric Association (APA), dated April 13, 2010. See also Weiser, Irene. “The Truth About Parental Alienation.” Stopfamilyviolence.org, February 23, 2007. In a letter to the Childhood and Adolescent Disorders Work Group of the APA, the President of NOW, Terry O’Neill, argued that abusive parents use allegations of parental alienation to discredit parents who are trying to protect their children from further abuse. Letter from Terry O’Neill to the Chair and Members of the Childhood and Adolescent Disorders Work Group of the APA, dated April 13, 2010. She also stated that PAS fails scientific muster, as it was not subjected to empirical studies or peer review. See id. Furthermore, Ms. O’Neill said that acceptance of PAS would allow perpetrators of domestic violence to argue that their victims’ responses are pathological. Ms. O’Neill asserted that legitimizing PAS could even help abusive parents to gain custody of their children. Id.

Dr. William Bernet, M.D., is the leading voice supporting inclusion of Parental Alienation Disorder (PAD), or Parental Alienation Relational Problem (PARP) in the DSM-V. Bernet, William, von Boch-Galhau, Wilfrid, Baker, Amy J. L. and Morrison, Stephen L. (2010) ‘Parental Alienation, DSM-V, and ICD-11’, The American Journal of Family Therapy, 38: 2, 76-187. Dr. Bernet proposes using diagnostic criteria based partially upon PAS as the criteria to diagnose PAD or PARP.

The proposed criteria for PAD are as follows, as stated in Appendix A of the Bernet article:

A. The child – usually one whose parents are engaged in a hostile divorce – allies himself or herself strongly with one parent and rejects a relationship with the other, alienated parent without legitimate justification. The child resists or refuses visitation or parenting time with the alienated parent.B. The child manifests the following behaviors:

(1) a persistent rejection or denigration of a parent that reaches the level of a campaign

(2) weak, frivolous, and absurd rationalizations for the child’s persistent criticism of the rejected parent.
C. The child manifests two of the following six attitudes and behaviors:
a. Lack of ambivalence
b. Independent-thinker phenomenon
c. Reflexive support of one parent against the other
d. Absence of guilt over exploitation of the rejected parent
e. Presence of borrowed scenarios
f. Spread of the animosity to the extended family of the rejected parent.

D. The duration of the disturbance is at least 2 months.

E. The disturbance causes clinically significant distress or impairment in social, academic (occupational), or other important areas of functioning.

F. The child’s refusal to have visitation with the rejected parent is without legitimate justification. That is, parental alienation disorder is not diagnosed if the rejected parent maltreated the child.

Dr. Bernet argues that inclusion of such disorders in the DSM-V would enable better study and treatment of parental alienation. He also asserts that inclusion would prevent abusive parents and unethical attorneys from misusing parental alienation in custody disputes. Bernet, William , von Boch-Galhau, Wilfrid, Baker, Amy J. L. and Morrison, Stephen L. (2010) ‘Parental Alienation, DSM-V, and ICD-11’, The American Journal of Family Therapy, 38: 2, 82.

Joseph E. Cordell, Esq., Principal Partner of Cordell & Cordell, also argues that some parents seek orders of protection, based upon abuse allegations, as “tactical nuclear weapons” in their divorce cases. Mr. Cordell says that these parents make abuse allegations in order to gain exclusive possession of the marital home, and sole custody of the children, by obtaining orders of protection against the other parent. Cordell, Joseph E. “Order of Protection: And Justice For All?” Huffington Post, September 23, 2011.

At present, the general consensus among jurists is that PAS is not generally accepted in the scientific community, and is therefore inadmissible in court proceedings. Fortin, 289 A.D.2d 590; Loomis, 172 Misc.2d 265. The National Council of Juvenile and Family Court Judges recommends that courts deny applications by litigants to introduce expert testimony regarding PAS. National Council of Juvenile and Family Court Judges. “Navigating Custody & Visitation Evaluations in Cases with Domestic Violence: A Judge’s Guide.” (2006) p. 24.

B. The facts-based inquiry regarding parental alienation

Courts generally engage in an intensive, facts-based inquiry to determine the legitimacy of allegations of parental alienation, without mentioning PAS. Parental alienation encompasses a wide variety of behaviors used by one parent to interfere with the other parent’s relationship with their child-in-common.

Courts often find parental alienation where a parent disparages the other parent to, or in the presence of, the children. Anthony MM v. Jacquelyn NN, 91 A.D.3d 1036, 1037 (3d Dep’t 2012); Lovitch v. Lovitch, 64 A.D.3d 710, 712 (2d Dep’t 2009); Usack v. Usack, 17 A.D.3d 736, 738-39 (3d Dep’t 2005); Young v. Young, 212 A.D.2d 114, 116 (2d Dep’t 1995); Lauren R. v. Ted R.., 27 Misc.3d 1227A (2010); SMB v. DRB, 17 Misc.3d 1132A (2007). Another ground for a finding of parental alienation is interference with the non-custodial parent’s visitation. Jones v. Leppert, 75 A.D.3d 552, 553 (2d Dep’t 2010); Lovitch, 64 A.D.3d at 712; Usack, 17 A.D.3d at 738-39; Kershaw v. Kershaw, 268 A.D.2d 829, 830 (3d Dep’t 2000); Lauren R.., 27 Misc.3d at 1227A; SMB, 17 Misc.3d at 1132A. Further grounds include relocation with the child or children, without consent or a court order, Ortega-Bejar v. Morante, 81 A.D.3d 962, 962 (2d Dep’t 2011), and discussion of the case with the child or children. T.F. v. F., 148 A.D.2d 449, 451 (2d Dep’t 1989).

A common ground for a finding of parental alienation is fabrication of abuse or neglect allegations against the other parent. See Anthony MM, 91 A.D.3d at 1037; Martinez v. Hyatt, 86 A.D.3d 571, 571 (2d Dep’t 2011); Sloand v. Sloand, 30 A.D.3d 784, 785-86 (2d Dep’t 2006); Amanda B. v. Anthony B., 13 A.D.3d 1126, 1127 (4th Dep’t 2004); Young, 212 A.D.2d at 116; Lauren R.., 27 Misc.3d at 1227A. Where one parent accuses the other of abuse or neglect against a child-in-common, this creates a volatile situation for jurists presiding over custody cases.
C. The precarious situation where a parent reports abuse or neglect by the other
parent

A difficult situation arises where a parent discovers evidence that the other parent is abusing or neglecting their child-in-common. Aside from the inherently painful nature of the situation, the parent must make a difficult choice about how to proceed in court.

A parent has a legal responsibility to protect a child from abuse or neglect from the other parent. If a parent fails to fulfill that duty, the court can find that the parent abused or neglected the child, by failing to protect the child from the abuse or neglect. N.Y. Family Court Act §§1012(e) and (f); The Matter of Karen BB and Another, 216 A.D.2d 754 (3d Dep’t 1995); The Matter of Alan G., 185 A.D.2d 319 (2d Dep’t 1992); The Matter of Beverly WW, 159 A.D.2d 802 (3d Dep’t 1990); The Matter of Glenn G. and Another, 154 Misc.2d 677, 688 (1992). In contrast, if a custodial parent manufactures allegations that the non-custodial parent abused or neglected the child, the court may change custody based upon parental alienation. Anthony MM, 91 A.D.2d at 1037-38; Martinez, 86 A.D.3d at 571; Sloand, 30 A.D.3d at 785-86; Amanda B., 13 A.D.3d at 1127-28; Young, 212 A.D.2d at 116; Lauren R., 27 Misc.3d at 1227A.

Where a custodial parent accuses a non-custodial parent of abuse or neglect, the non-custodial parent’s defense will generally be that the custodial parent manufactured the allegations in order to alienate the child or children. Therefore, where a custodial parent seeks judicial intervention to protect a child from the other parent, there lies a danger that the court will credit the non-custodial parent’s version, and change custody. On the other hand, if the custodial parent fails to act against an allegedly abusive or neglectful non-custodial parent, the custodial parent faces the danger of a judicial finding that such inaction itself constituted child abuse or neglect.

D. “Bridget’s Law”

To assist parents seeking to protect their children, in 2008, Governor Paterson signed “Bridget’s Law,” which provides that:

If a parent makes a good faith allegation based on a reasonable belief supported by facts that the child is the victim of child abuse, child neglect, or the effects of domestic violence, and if that parent acts lawfully and in good faith in response to that reasonable belief to protect the child or seek treatment for the child, then that parent shall not be deprived of custody, visitation or contact with the child, or restricted in custody, visitation, or contact, based solely on that belief or the reasonable actions taken based on that belief. N.Y. Domestic Relations Law §240(1)(a). See also Stashenko, Joel. “New Law Shields ‘Good Faith’ Abuse Accuser in Custody Cases.” New York Law Journal. September 9, 2008, p. 1.

In theory, the law addresses the predicament that a custodial parent faces when confronted with evidence that the non-custodial parent’s behavior endangers the child. Nevertheless, it is unlikely that the law will result in a drastic change. In order to be protected by Bridget’s Law, the court must find that the accuser-parent acted in good faith. Because the parents likely had a tumultuous relationship prior to the accusations of abuse or neglect, the accused parent will almost invariably contend that the other parent acted in bad faith. The accuser-parent will face the same possibility that the court credits the other parent’s version, and suffer the same consequences as a result.

III. Remedies after a finding of parental alienation

After a court enters a finding of parental alienation by a custodial parent, a common remedy is for the court to change custody. Anthony MM, 91 A.D.3d at 1038; Martinez, 86 A.D.3d at 572; Ortega-Bejar, 81 A.D.3d at 963-64; Jonex, 75 A.D.3d at 553; Lovitch, 64 A.D.3d at 711; Frey v. Ketcham, 57 A.D.3d 543, 543-44 (2d Dep’t 2008); Sloand, 30 A.D.3d at 784, 785-86; Amanda B., 13 A.D.3d at 1127; Bobinski, 9 A.D.3d at 441-42; Young, 212 A.D.2d at 125. A change of custody should not be issued “solely as a means for punishing a recalcitrant parent.” Lauren R., 27 Misc.3d at 1227A. However, parental alienation is an act considered inconsistent with the best interests of the child, which raises a “strong probability that the offending party is unfit to act as a custodial parent.” Young, 212 A.D.2d 114, 115. The court may also issue an order that the offending party receive supervised visitation, and participate in therapy. Zafran v. Zafran, 28 A.D.3d 753, 754 and 756 (2d Dep’t 2006). Where the court finds that the custodial parent is responsible for alienating the child from the non-custodial parent, the court may, short of changing custody, award expanded visitation to the non-custodial parent. Goldstein v. Goldstein, 68 A.D.3d 717, 720 (2d Dep’t 2009).

Where a court finds that a custodial parent has wrongfully interfered with or withheld visitation provided by a court order, the court may suspend alimony or maintenance, or cancel arrears that accrued during the time that visitation was being interfered with or withheld. N.Y. Domestic Relations Law §241. However, interference with visitation cannot serve as a defense in an application to enforce payment of child support, and cannot constitute grounds for cancellation of child support arrears. Id.

While parental alienation cannot serve as a ground to cancel child support obligations retroactively, courts have suspended child support obligations prospectively, upon a finding that the custodial parent deliberately interfered with the relationship between the child and the non-custodial parent. Colicci v. Ruhm, 20 A.D.3d 891, 891-92 (4th Dep’t 2005); Usack v. Usack, 17 A.D.3d 736, 737-38 and 739-40 (3d Dep’t 2005); Hiross v. Hiross, 224 A.D.2d 662, 663 (2d Dep’t 1996); SMB, 17 Misc.3d at 1132A. In The Matter of F.S.-P. v. A.H.R., Nassau County Family Court held that a non-custodial parent can invoke parental alienation as a defense where the custodial parent seeks an initial child support order. 17 Misc.3d 390, 393 (2007). A parent who seeks suspension of child support based upon parental alienation must demonstrate that the custodial parent deliberately interfered with the parent-child relationship. Foster v. Daigle, 25 A.D.3d 1002, 1004 (3d Dep’t 2006); Hiross, 224 A.D.2d at 663. Furthermore, the Court cannot impose this remedy if the record establishes a danger that the child will become a public charge as a result. Usack, 17 A.D.3d at 739; SMB, 17 Misc.3d at 1132A.

Other remedies for parental alienation include criminal liability for custodial interference (N.Y. Penal Law §§135.45 and 135.50), a tort action for custodial interference, and orders of protection. N.Y. Domestic Relations Law §240, Lauren R., 27 Misc.3d at 1227A. Where the court finds that acts of parental alienation violate prior court orders, the court may also incarcerate the offending party. N.Y. Judiciary Law §§750 and 753; see also Lauren R., 27 Misc.3d at 1227A.

IV. The Role of the Attorney for the Child

In child custody proceedings, New York State courts have the authority to appoint attorneys to represent children “when, in the opinion of the family court judge, such representation will serve the purposes of this act, if independent legal counsel is not available to the child.” N.Y. Family Court Act §249(a).

On October 17, 2007, the Chief Judge of the State of New York Judith S. Kaye issued Rule 7.2, entitled, “Function of the attorney for the child.” Rule §7.2(d)(2) provides, in relevant part:

[T]he attorney for the child must zealously advocate the child’s position. . .If the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child’s best interests. The attorney should explain fully the options available to the child, and may recommend to the child a course of action that in the attorney’s view would best promote the child’s interests.

If a parent successfully alienates a child from the other parent, it is clear that the child will wish to have a minimal relationship, or even no relationship, with the alienated parent. Therefore, under the Rules of the Chief Judge, it is likely that an attorney for the child will have to advocate for the court to issue as little parenting time as possible for the alienated parent. Family Court practitioners are aware that the position of the attorney for the child often carries significant weight. The requirement for direct advocacy by the attorney for the child may cause frustration among litigants who assert that the opposing party has alienated the children. As Rule 7.2 becomes more established, the bar should expect to see appellate cases, where aggrieved parents argue that courts gave undue weight to children’s attorneys who advocated the wishes of alienated children.

V. Conclusion

One could hardly think of a more important task for a judge than the task of deciding which parent should have custody of a child. Allegations of parental alienation make the task even more difficult.

Presently, the American Psychiatric Association is deciding whether parental alienation should constitute a disorder in the DSM-V. Is parental alienation a tool for abusive parents to obtain custody or their children, or is it a syndrome which merits scientific study, and treatment for its child victims? The APA’s decision will have critical consequences for the Family Court, and for the scores of children whose futures depend upon the decisions of Family Court judges.

Regardless of whether parental alienation is a mental disorder, courts constantly face allegations that litigants are engaging in behaviors designed to interfere with parent-child relationships. These same courts must then decide whether parental alienation exists, or whether the party asserting alienation is an abusive parent. These choices, based upon conflicting testimony and subjective determinations, make or break the lives of innocent children, who find themselves in the middle of a conflict between the two most important people in their lives.

Recent developments in the role of the attorney for the child complicate parental alienation cases. As attorneys for children advocate the wishes of their child-clients, alienated parents find themselves feeling more frustrated in their battles to maintain relationships with their children.

Parental alienation cases feature the most desperate litigants: parents willing to falsely accuse the other parent of child abuse, and abusive parents who try to bury the other parent for protecting the child. The devastating consequences of parental alienation cases remind members of the bar of the importance of serving as counselors, as well as advocates. If we successfully counsel our clients to put the children’s best interests at the forefront, we can make an immeasurable impact upon the lives of the children who depend upon the Family Court.

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