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Court Rules on Divorce Case Based on Domestic Violence

The parties were married in August 1973. The wife is presently 52 years of age and the husband is presently 56 years of age. On the date of their marriage, plaintiff was 22 years of age and a college graduate. Defendant was then 18 years of age and a high school graduate. During the course of the marriage, four children were born to the parties, the two youngest children, remain unemancipated. During the course of the litigation the youngest son resided in Israel or was a resident student at a university. It appears the youngest son is fully and voluntarily supported by the father and does not permanently reside with either party, although he does reside with the mother during the summer recess from school.

A New York Criminal Lawyer said the husband commenced this action in December 2004 after the wife withdrew an action commenced in November 2004. The parties litigated in Family Court from 10 November 2004, through January 31, 2005. The husband also brought a writ of habeas corpus under a separate index number against the wife and her mother which was dismissed. The Family Court action was consolidated into the Supreme Court action, on consent. The wife was granted a divorce, on consent, after proof, on 10 June 2005, on the grounds of constructive abandonment and shortly thereafter the husband gave the wife a Jewish divorce. A law guardian was appointed for the youngest daughter, and a neutral forensic evaluator, was appointed by the court.

On 29 November 2005, the day set for trial on the issue of custody, all issues of custody and visitation were resolved by stipulation on the record. The agreement inter alia provided that the parties would share joint decision making of the youngest daughter, age 13, that the wife would have physical custody, there would be a parent coordinator and that the husband, the wife and child would separately enroll in therapy. An NYC Criminal Lawyer said that the wife voluntarily, without prejudice, withdrew her request for a temporary order of protection and same was vacated, on consent. The agreement further provided for supervised visitation and a mechanism for the child and father to re-establish their relationship.

The issues before this court which were tried are: equitable distribution, maintenance, child support, and counsel and expert fees.

The gravamen of the parties’ dispute is as a result of the bifurcated custody agreement entered into by the parties on 29 November 2005, and the adamant refusal of the child to visit the father.
The wife requests that the court grant her a disproportionate share of equitable distribution based upon egregious conduct by the husband.

The father requests that the court take into account, in its financial decision including the maintenance, child support and equitable distribution, the child’s refusal to see him and the mother’s support, encouragement and manipulation of events. The father alleges that the mother’s acts of encouraging alienation constitute egregious conduct.

Here, the court is called upon inter alia to make certain decisions based upon a dispute involving allegations that a mother, through her actions, actively and passively alienated and influenced a child to the point that the child may no longer have any inclination or desire to see her father again. As equally important, the court must also determine the credibility of claims of egregious domestic violence during a long-term marriage of 31 years alleged to have been perpetrated against the mother, herself an advocate for the rights of women in divorce actions.

One of the most difficult decisions a Judge has to make is that which impacts upon the life of a child. The law has long recognized the special place and role of the court in deciding issues relating to children and the long term impact that our courts have on the life of a child
The court painstakingly heard testimonies from the parties and their witnesses and conducted three separate in camera interviews with the child, the last being at the request of the child which was made one day after the conclusion of the second in camera interview.

The court, in refusing to grant the father economic relief because of the refusal of the child to visit with him, does so at this juncture in the hope that the mother will immediately take the steps to realize that her actions can and will have serious consequences. This court does not believe that there is a generally accepted diagnostic determination or syndrome known as “parental alienation syndrome”. Each case must be reviewed on its own merits. The court is well aware that it cannot just accept the opinion of an expert and must evaluate it and then determine its efficacy or application to the case before it. This is especially true where there are allegations of domestic violence which must be considered in the context of a custody dispute.
The court cannot ignore the fact that these parties (who have agreed to joint decision making) have entered into a stipulation settling that portion of the divorce action. This stipulation provided that not only would they engage in individual therapy21 but that the child will engage in therapy that the father cannot have any input related thereto at the specific request of the child. This child, it has become increasing clear, has been empowered in this divorce action and has adopted (in a rather public fashion by writing newspaper columns) the mother’s cause without limitation. A child cannot be in charge of the other parent’s custodial rights.

After careful consideration, the court has not economically penalized the mother or the child because it appears to the court that she was not, until now, truly aware of the nature of both her active acts of alienation and her passive acts by educating the child as to the process and her own concerns by making the child part of her own crisis. This does not mean that a future application of the interference continues which may not be the basis for a suspension of maintenance or support nor does the court ignore that body of case law that hold that — where the interference is both a “deliberate frustration” and “active interference”, suspension of support may be warranted.

This court believes, though, that the true amount of child support and maintenance should be set before a suspension is considered so that the party that would be economically penalized will fully know and understand that which is at risk. The court also believes it would be unfair to make such a determination without both parties having had the benefit of knowing the court’s findings and decisions which will now be the law of the case. After reading such opinion, they both will have had a full and fair opportunity to have had the matter adjudicated. Now, with that knowledge, violation of the court’s order will be dealt with appropriately.

Pending resolution of the post-trial applications, the mother is enjoined and restrained from discussing this litigation at any time when the child may be within 1,000 feet of her; that includes her economic concerns, concerns about the father and his relationships with others, the role of therapists in a divorce, domestic violence and orders of protection, and this opinion; nor shall the mother take the child to members of the community or her parents for them to discuss the case or the parent-child relationships.

The 1,000 feet restriction is to insure that the mother is not on the telephone within earshot of the child or that the child can pick up a phone and listen in. This direction must be scrupulously enforced especially in light of the fact that while this matter has been sub judice, the father has moved for a change of custody based upon the fact that he has been totally cut off from the child and that subsequent to that application, the child, who is 13 years of age, has sent the court two typed letters by certified mail, the law guardian has been discharged, a new law guardian has been appointed and a formal application has been made by the child for an order of protection, even though they have not spoken in months. She has apparently seen him in her school and the neighborhood they share.

The mother has absolutely no right to attempt to limit access to the parent coordinator that both parties agreed to in the stipulation. This methodology was adopted by the parties in this agreement. In order for the parent coordinator to understand the nature of the parties’ relationship with the child, he must be granted unfettered access to the parents and the child forthwith.

The court will adopt the methodologies approved by the First Department and will impose a series of fines upon the mother if she continues to prevent even one visit with the child’s therapist or she fails to sign a retainer and fully and completely cooperate with the parent coordinator she agreed to forthwith. The mother and the child must understand that mother and the father have placed their own and their minor child’s mental and physical health at issue in a custody / visitation dispute. The issue is still ripe based upon the apparent post trial continuation of the litigation and the fact that the court is not bound to accept the agreement of the parties.

Moreover, the application by the child for an order of protection, which if granted, would further restrict access of the father to the child. As one doctor testified, the effect of the continuing great length of time that the child has not seen the father is of great concern. The father must recognize that this child is truly afraid of him. Restoration of his relationship with the child must be based upon a restoration of trust. His underlying acts of rage and the “tug of war” described herein and the mother’s acts will leave an indelible mark on the child.

Plaintiff must also recognize that this court does believe there has been some level of domestic violence in their marriage. While not finding it was egregious nor did it occur in front of the unemancipated children or upon them, based upon the testimonies presented, it did happen and is acknowledged.

On the financial aspect, the wife has been credited with or has received $2,967,321.79 in assets and/or cash and the husband has received $2,952,724.44 in assets and/or cash. The wife therefore has received or been credited with $14,587.00 more than the husband. In order to equalize the distribution so that each party receives one half of the marital estate pursuant to this decision, the wife owes the husband $7,298.50. The husband may offset such monies from monies due and owing directly to the wife.

To see a family broken because of domestic violence is saddening and when custody issues with a child result, it is heartbreaking. In situations such as these, or if you have been charged with sex crimes, theft or drug possession, consult with a lawyer to know what legal steps you should take for the child’s best interest. Call Stephen Bilkis & Associates and talk to our NY Domestic Violence Attorneys or our NY Criminal Attorneys if you wish to pursue criminal actions.

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