OPINION OF THE COURT
It has been observed by our Court that "[t]he natural right of visitation jointly enjoyed by the noncustodial parent and the child is more precious than any property right” (Resnick v Zoldan,
The parties herein, Eileen Young (now Miller) and Stephen Young (hereinafter the mother and the father, respectively),
In primary part, the father referred to the mother’s persistent and uncorroborated allegations that he was sexually abusing their children, her continuing to make new claims of abuse even though all other claims had been determined to be unfounded. He suggested the possibility that the mother herself may have caused the youngest child’s vaginal and rectal area to become reddened prior to the mother’s bringing her to the hospital. The father further noted the mother’s ongoing interference with visitation by various other means, including making accusations of sexual abuse and warning him not to engage in such activities in the presence of the children. In the father’s view, a change in custody was critical to the children’s well-being and mental health.
The mother opposed the application, and the matter was subsequently referred for a hearing before Judicial Hearing Officer Márchese. Since the original Law Guardian had died in the interim after having issued his report in the matrimonial matter recommending that the father have unsupervised visitation, the court appointed a new Law Guardian for the children, Alfred Reinharz, Esq., as well as a psychiatrist, Marc Reubins, M.D., to conduct forensic examinations and to make a recommendation as to custody.
In the meantime, while waiting for the forensic evaluations to be concluded, the father sought to have visitation extended to include overnight visits. However, given the pendency of the proceedings and upon the recommendation of the Law Guardian, the court denied the application, notwithstanding
Thereafter, the mother made an application by order to show cause dated May 13, 1993, to modify the father’s visitation and to suspend visitation with the youngest child, Emily, based upon a new charge of sexual abuse against the father involving Emily which was alleged to have occurred during a May 2, 1993 visit. Pending the determination of this application, visitation with Emily was suspended, and the court subsequently indicated that it meant to suspend visitation with all of the children pending a hearing thereon. It does appear from the record, however, that visitation with the other children was subsequently reinstated, as was visitation with Emily at a later point.
While this latter matter, visitation, was related to the main application, the court indicated that it would hear them separately but eventually did combine the two.
Following the hearings, which spanned approximately one and one-half years, and notwithstanding the recommendations of both the Law Guardian and the court-appointed psychiatrist in favor of transferring custody to the father, the court ruled, on August 31, 1994, that custody should remain in the mother.
With respect to appellate review of a custody determination, it has been observed that the Appellate Division’s "authority in custody matters is as broad as that of the trial court” (Matter of Rosiana C. v Pierre S.,
As is relevant to this case, among the factors to be considered by the court in making a custody determination are: "the parental guidance the custodial parent provides for the child;
"[T]he existence or absence of any one factor cannot be determinative on appellate review since the court is to consider the totality of the circumstances” (Eschbach v Eschbach, supra, at 174). In the end, any determination of child custody must be based upon "what is for the best interest of the child, and what will best promote its welfare and happiness” (Domestic Relations Law § 70 [a]; see also, Eschbach v Eschbach, supra, at 171).
Applying these basic and well-known legal principles to this case, we 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 both the court-appointed psychiatrist and the Law Guardian that the father be given custody of the four minor 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 (see, Matter of Prete v Prete,
In this case, after having spent approximately 56 hours meeting with and evaluating the parties and the children, Dr. Marc Reubins, the court-appointed psychiatrist, was of the opinion that it was "not in the best interest of the children to remain living in the house with their mother as she is thoroughly incapable of supporting a relationship between the children and their father and has demonstrated this incapacity over the past four years with consistent effort and diligence”. Inexplicably, the trial court ignored this unequivocal testimony and recommendation of Dr. Reubins. In its decision, the court stated that "neither Dr. Reubins nor the Law Guardian concluded that the mother was materially less fit as a parent”. Yet, the record is completely to the contrary. In as clear language as possible, Dr. Reubins testified that, "she’s unfit, and that’s why I’m saying the kids shouldn’t live with her”.
Moreover, in rejecting the recommendation of the court-appointed psychiatrist, the trial court herein stated that, "There is no convincing or dependable psychiatric evaluation for the court to accept and rely on in making the custody determination”. It is evident that the court completely disregarded Dr. Reubins’ recommendation; and, without any discernible reason or basis in the record to support such a determination, its conclusion is nothing short of arbitrary (see, Matter of Harvey v Share,
Furthermore, the court chose not only to disregard and ignore the very strong and unequivocal opinion of Dr. Reubins, it also based its determination on the opinion of the mother’s expert, a Dr. Green, whose own evaluation was concededly flawed. Dr. Green himself, who had interviewed the mother and children for only a few hours over a two-week period in February 1994, admitted that his qualification to make a custody recommendation was limited since he had not seen both parents and he had not seen the children interact in the presence of both parents. Under these circumstances, little or no weight should have been accorded to his recommendation that custody be awarded to the mother (see, Matter of
In the case at bar, Dr. Reubins performed the only complete evaluation of the parties and children as the court-appointed forensic expert. His opinion was strong, firm, competent, weighty, and unbiased. Since Dr. Green’s testimony was of limited probative value, there was, in essence, no qualified expert opinion to contradict the recommendation of Dr. Reubins. Thus, in this respect, the trial court’s decision, which entirely disregards and ignores the very strong and unequivocal expert opinion and recommendation of Dr. Reubins, lacks a sound and substantial basis.
In addition to rejecting without explanation the recommendation of its own impartial psychiatric expert, the trial court also dismissed the equally compelling recommendation of the appointed Law Guardian. The court’s criticism of the Law Guardian’s recommendation was primarily centered upon the Law Guardian’s perceived failure "to touch upon the mother’s fitness as a parent”. Yet, in his report, the Law Guardian clearly articulated reasons as to why he thought that the mother was unfit, and those reasons clearly had to do with the mother’s interference with the father’s visitation with the children. The Law Guardian unequivocally recommended that the custody of the children be transferred to the father and that the mother should only have supervised visitation.
We now turn to the underlying basis for both Dr. Reubins’ and the Law Guardian’s recommendations for a change of custody; namely, the mother’s constant interference with the father’s visitation with the children. While the mother’s interference took on many forms (e.g., the mother frequently made other plans or arrangements for the children on the dates and times that the father was to have visitation), its most pernicious form was the numerous false allegations of sexual abuse made by the mother against the father.
Initially, it should be noted that Mr. Benjamin Malewicz, a caseworker with the Child Protective Services of the Nassau County Department of Social Services, testified that during the course of his investigation into an incident that allegedly occurred in October 1993, he had learned that there had "been numerous sexual abuse charges filed, somewhere in the number of seven different reports, and that they [had] all come back unfounded”. This confirmed the earlier testimony of Mr. Mark Clavin, a senior investigative caseworker for the
In addition, during the course of the trial, the mother presented the testimony of three medical doctors, all pediatricians, in an attempt to bolster her claims of abuse. Significantly, none of the three would confirm that there had been abuse. Indeed, Dr. O’Rourke, who was Emily’s regular pediatrician, testified that she had examined Emily on April 9, May 4, and May 8, 1992, and that all three examinations had been normal with no signs of abuse. Dr. Dominquez, a pediatrician at the Nassau County Medical Center who examined (and photographed) Emily on May 3, 1993, testified that although she had found some evidence of "tunneling with traction”, such a condition was equally consistent with a finding of constipation and by itself was not consistent with an allegation of abuse. The third doctor, Dr. Ford, also a pediatrician at the Nassau County Medical Center, testified that she had examined Emily on January 1, 1994, and found no evidence of abuse.
These repeated uncorroborated and unfounded allegations of sexual abuse brought by the mother against the father cast serious doubt upon her fitness to be the custodial parent. Moreover, during the course of her unrelenting campaign against the father, the mother has subjected the youngest child, Emily, to numerous physical examinations including the probing and photographing of her private parts, and culdoscopies. Furthermore, during an in camera interview, Emily told the court that her mother reminded her every night that her father hurt her and that her mother would not let her father have visitation "because then my mom said he would learn his lesson”.
The mother’s testimony was devoid of any understanding or recognition of why it is important for her children to have a relationship with their father. As Dr. Reubins indicated in his
Although the trial court heard the testimony of both expert and nonexpert witnesses as to the problems with the father’s visitation and had the benefit of Dr. Reubins’ report, its decision was noticeably silent as to the mother’s persistent interference with visitation. It is clear that the court failed to consider the overwhelming evidence that the mother consistently and willfully interfered in the father’s relationship with the children.
It is well established that such interference with the relationship between a child and the noncustodial parent has been said to be " 'an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the [offending party] is unfit to act as custodial parent’ ” (Daghir v Daghir,
In this case, it is clear that the mother’s anger and hostility toward the father has made her unfit to be the custodial parent "since her attitude would substantially interfere with her ability to place the needs of the children before her own in fostering a continued relationship with the noncustodial parent” (Janecka v Franklin,
In view of the mother’s consistent preaching to the children that their father was an evil and dangerous man, the trial court incorrectly placed emphasis on the children’s desire to remain with the mother. A child’s preference for a particular parent, while a factor to be considered, cannot be determinative (see, Darema-Rogers v Rogers,
Moreover, the court also placed undue emphasis on the factor of stability, expressing its belief that a change of custody would be extremely disruptful to the children. Although stability has been found to be in a child’s best interests (see, Friederwitzer v Friederwitzer,
Within the context of our discussion of the role that stability plays in making a custody determination, we would note that while it is often said that the original agreement by the parties as to custody should be afforded priority, " 'not as an absolute but as a weighty factor’ ”, such an agreement should not be to the exclusion of a careful weighing of the children’s best interest (Eschbach v Eschbach, 56 NY2d, supra, at 171-172; also, Allen v Farrow,
Finally, we note that the trial court based its decision partly upon the view that: "The nurturing and care a natural mother can give her children cannot be provided by anyone other than the mother and only with the expected support and unselfish understanding by a father; in this instance, the father, the breadwinner, is busily engaged in earning a living. He could not possibly give the four children the care and attention the mother has given”.
However, as this Court has held in the past: "In enacting the 'best interests of the child’ test, the Legislature expressly rejected the idea that either fatherhood or motherhood alone carries with it a superior right to custody (see, Domestic Relations Law §§ 70, 81, 240). The statutory declaration that there is 'no prima facie right to the custody of the child’ (Domestic Relations Law §§ 70, 240) rejects the notion that there is an inherent custodial preference for either parent” (Linda R. v Richard E.,
Moreover, "a custody determination cannot be based upon
It should be noted that in Nir v Nir (supra, at 652), this Court affirmed an award of custody to the father where, inter alia, "[t]he wife made numerous allegations concerning sexual abuse of the child by the husband and his parents, the husband’s hospitalization in a psychiatric facility, the husband’s repeated rape of her during the marriage, and other grave accusations, all of which were unsubstantiated”.
As noted above, the trial court ignored the recommendations of both the court-appointed psychiatrist and the Law Guardian. The trial court summarily and arbitrarily disregarded the credible and substantial testimony of Dr. Reubins as to the mother’s interference with the father’s visitation and the danger to the children as a result of her actions. Finally, the court disregarded testimony and other evidence that called into question the mother’s behavior.
For all of the above reasons, the Court’s determination must be reversed insofar as appealed from and custody granted to the father. Moreover, in view of our determination, the matter must be remitted to the Supreme Court, Nassau County, for a hearing before a different Justice on the issue of visitation for the mother and the entry of an appropriate order terminating the father’s obligation for child support.
O’Brien, Thompson and Goldstein, JJ., concur.
Ordered that the order is reversed insofar as appealed from, as a matter of discretion in the interests of justice, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Nassau County, for a hearing before a different Justice on the issue of visitation for the mother and the entry of an appropriate order terminating the father’s obligation for child support.