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posted by jewishwhistleblower @ 10:10 AM
(JWB: I've removed the names and dates of birth of the children but felt it was important to post so people can see the type of cases Judge Garson fixed for the benefit not of the children but rather the benefit of the first party to bribe him)Decision of Interest; Kings County Supreme Court; Mother Who Conspired to Bribe Former Judge Is Deemed to Serve as Custodial Parent New York Law JournalAugust17, 2004Justice Ambrosio W v. W - In this post-judgment divorce proceeding, the plaintiff-father, YW has filed an Order to Show Cause dated July 1, 2004, seeking the immediate transfer of the children M; A; and R from the residence of the defendant-mother, EW to the plaintiff-father. The two oldest children of the marriage, E; and A currently reside with the plaintiff-father. This constitutes the fifth Order to Show Cause the plaintiff-father has filed in the past ten months (10/30/03; 11/18/03; 3/10/04; 5/20/04; 7/1/04) requesting transfer of custody on the basis that the defendant-mother has willfully violated court-ordered visitation with M, A and R. The children in this case have been at the center of an unrelenting war between their parents since they separated in January 2001. E has been living with his father since December 2001 and A opted to reside with his father in the Summer of 2003. The issue before this court is whether it is in the best interests of the three younger children to modify the current custodial arrangement and transfer residential custody to the plaintiff-father based upon the defendant-mother's failure to comply with court-ordered visitation. The plaintiff-father's most recent Order to Show Cause was filed several weeks after this court concluded a four-day custody trial (June 1, 2, 8 and 9, 2004). The court was awaiting the submission of post trial briefs which were due July 27, 2004. The court held a hearing on this Order to Show Cause on August 2, 2004. It is well-settled that "[t]he natural right of visitation jointly enjoyed by the non-custodial parent and his child is more precious than any property right" (Resnick v. Zoldan, 134 AD2d 216, 247) and that "the best interests of the child would be furthered by the child being nurtured and guided by both of the natural parents" (Bostinto v. Bostinto, 207 AD2d 471,472). In fact, a custodial parent's interference with the relationship between a child and a non-custodial parent has been said to be "an act so inconsistent with the best interest of the child as to per se raise a strong probability that the offending party is unfit to act as a custodial parent" (Maloney v. Maloney, 208 AD2d 603, 603-604; also see, Young v. Young, 212 AD2d 114). In this case the evidence is overwhelming that the defendant-mother has been thoroughly unable to support visitation between M, A and R and their father or to engage the children with their father in anyway that would support any relationship whatsoever. The defendant- mother's interference with visitation has taken on many forms the most obvious being outright denial of visitation by making the children physically unavailable. Despite several court orders and numerous warnings by this court to the defendant-mother to obey those orders she has violated each and every visitation order almost in its entirety such that the father has not had any visitation with the three youngest children since October 2003, except for one visit with A on April 30, 2004. Sadly, the plaintiff-father was precluded from visiting with the children on Father's Day. Pursuant to the visitation orders, the father was entitled to visitation with R and A three out of four weekends per month and with M two weekly day visits on Mondays and Wednesdays. Initially, the plaintiff-father attempted to pick up the children at the defendant-mother's residence on several occasions, however, the defendant-mother refused to answer the door even though the plaintiff-father was in the company of a police officer. The visitation order was subsequently modified on November 11, 2003 to allow him to pick up the children at their respective schools. The defendant mother then stopped sending A and R to school on Fridays to prevent the father from picking them up for visitation. Yehuda Fishman, A's teacher at Hebrew School testified at trial that A missed 18 out of 26 Fridays between October 2003 and May 2004. During one unfortunate incident on October 31, 2003, the father's attempt to pick up A from school was thwarted by a friend of the defendant- mother, Leah Thurm who went to A's school at the defendant-mother's behest to prevent the plaintiff-father from picking him up. Ultimately, the child became embroiled in a tug of war between the plaintiff-father and Ms. Thurm. The father grabbed A's arm to take him with him but Thurm yanked the child out of his hands. The child sustained minor lacerations to his arm in this tug of war. The Administration for Children Services (ACS) investigated the incident and substantiated the allegations of maltreatment based on the fact the child had been injured. The defendant-mother readily admits she has failed to comply with court-ordered visitation. She testified that she has been unable to compel the children to visit with their father because they are fearful of him. She also readily acknowledges she has kept the children from school on Fridays in order to prevent the father from having access to the children. Sherrill R. Sigalow, PhD, who conducted a forensic evaluation of all the parties for this proceeding concluded that the defendant- mother has acted in a manner intended to fully exclude the plaintiff-father from her life and from the children's lives as well. According to Dr. Sigalow, the defendant-mother is psychologically unable to give the children permission to maintain simultaneous positive relationships with both parents. Her parenting style tends to be permissive and indulgent. She does not require the children to act maturely and sets very few limits. As a result, she allows the children to exert the power to choose whether to go for visits with their father. In addition to making the children unavailable for visitation, the defendant-mother has engaged in a more insidious form of interference with the father's visitation right. She has psychologically poisoned the children's minds to turn them away from their father. According to A's interview with Dr. Sigalow, he stated that the defendant-mother frequently denigrated both his father and his paternal grandparents. She would say things to him like his "father is crazy and is not a good person." A also stated that when he would visit or start liking his father "she stopped liking me." A shared similar sentiments in his in camera interview with the court. Both E and A said she frequently made derogatory comments about their father to them. According to Dr. Sigalow, the defendant-mother condoned and encouraged the children's inappropriate expressions of anger toward their father. Moreover, according to the Law Guardian, the mother has repeatedly conveyed to the children that they must choose between her and their father and the choice is irrevocable. During the court's in camera interviews of the three youngest children, they painted their mother in the most uncritical light which is in stark contrast to their views about their father. They deny anything positive in their relationship with their father. They are adamant that they do not want to visit with him although they are unable to articulate any concrete complaints about him. Clearly, the children's view of their father has been shaped by the improper influence of their mother. The defendant-mother and her father, EZ, have also gone to extraordinary lengths to inappropriately attempt to influence the outcome of this custody dispute. For example, when the parties were divorced, they entered into a written stipulation after months and months of lengthy negotiations. They agree that Dr. Ronan Hizami would facilitate development of a custodial arrangement and that in the end his recommendations would be binding on the parties. When the defendant-mother and her father were dissatisfied with his recommendation, they purportedly waged a campaign in the Orthodox Jewish community to discredit Dr. Hizami's reputation. The defendant- mother acknowledged during her interview with Dr. Sigalow that she had engaged in behavior vis a vis Dr. Hizami which was "probably inappropriate" but was vague and equivocal in revealing what had happened. Allegedly, the defendant-mother's father subsequently prevented Dr. Hizami's daughter from enrolling in a Yeshiva to which he had an affiliation. Additionally, the defendant- mother lodged numerous investigations against Dr. Hizami including an investigation with the State Board. She, in turn, has been sued civilly by Dr. Hizami. In addition to trying to influence Dr. Hizami's recommendation, the defendant-mother and her father were indicted and subsequently convicted after a guilty plea on February 5, 2004 to conspiring to bribe the former matrimonial judge so that he would render a favorable custody ruling. In furtherance on that conspiracy, her father, EZ paid co-defendant Nissiam Elmann $5,000 with the belief that Elmann could influence the judge to render a favorable ruling for his daughter. Hon. Steven Fisher, the then-presiding judge in the criminal matter, appropriately noted how "extraordinarily serious" the crime was that she had committed since it went to the very heart of our judicial system. To this court's shock and dismay, the defendant-mother now wears that conviction as a badge of honor. Shortly after her conviction, the defendant-mother appeared before this court to proclaim that she was "proud" and "honored" to be convicted "to protect [her] children." Notably, Dr. Sigalow found that the defendant mother had minimized and trivialized the seriousness of the criminal charges lodged against her. Dr. Sigalow thought this was particularly disturbing in the context of this custody proceeding. Teaching children appropriate moral behavior is a responsibility of a good parent. Her conviction for conspiracy reflects poorly on her capacity to be a good parent. The defendant-mother has also made unfounded allegations against the father with ACS. In February 2003, she claimed the children sustained frostbite after being returned by the father from a visit during a blizzard. The defendant-mother called EMS who told her the children were fine. Undaunted she then took the children to Maimonides Hospital for an examination where they were again given a clean bill of health. The Law Guardian found both the Hizami and the February 2003 incidents to be so egregious and improper that she filed an Order to Show Cause on March 12, 2003 asking that residential custody of A and R be transferred to the father. The plaintiff-father has also been accused of watching M change her clothes during an overnight visit at his residence. M informed her pediatrician, Dr. Max Bulmash sometime in November 2003 that this incident had occurred but did not specify when it happened. M subsequently informed Stacey Blease, an ACS caseworker that it occurred two months prior to her examination with Dr. Bulmash. Notably, the father had very limited access to M at the time the incident purportedly took place. Pursuant to the visitation order, M had no overnight visitation with the father in or around September 2003. Dr. Sigalow found the veracity of these allegations questionable based on the absence of specificity and the absence of any negative affect or distress by M when she presented her claim. As a mandated source, Dr. Sigalow would have been bound by law to report the incident to ACS had she had "reasonable suspicion" that the allegations were true but chose not to report the alleged incident. Finally, M failed to even mention this allegation when she met with the court in camera. The court does not believe the incident occurred. This is another concocted fabrication by the defendant-mother to vilify plaintiff-father and deprive him of access to the children. In the instant case, the overwhelming evidence demonstrates that the mother is currently unfit to serve as custodial parent to M, A and R. It is eminently clear that if they are left in her care they will not only have no relationship with their father but will grow up in an environment where they are taught that their father poses an ever-present threat to their well-being (see, Young v. Young, 212 AD2d at 115). Having determined that the mother is currently unfit to serve in a capacity as a custodial parent, the question turns to whether the plaintiff-father is competent to care for all five children. The father has many faults as well and has been an active participant in this relentless war against his ex- wife to the detriment of the children. Dr. Sigalow did not recommend that custody be transferred to the father. Dr. Sigalow found that neither parent was a substantially better caretaker than the other and neither was more likely than the other to encourage a relationship with the non-custodial parent. While most of Dr. Sigalow's observations are well-founded, the court must disagree with her latter conclusion† . Any sensible interpretation of the evidence in this case leads to the inescapable conclusion that the mother is psychologically incapable of fostering a healthy relationship between the three youngest children and their father. However, the court believes the father does have the capacity to encourage a meaningful relationship between the children and their mother. In fact, Dr. Sigalow testified that the father could tolerate the children having a relationship with their mother. Moreover, the court credits the father's testimony that he has encouraged E and A who are in his care to visit their mother. Those visits apparently do not go well because the defendant-mother frequently denies them entry to her residence. Significantly, the children who are residing with the father are more stable and well-adjusted. The older boys have demonstrated behavioral improvement since moving in with the father. During the court's in camera interview with E and A, they presented themselves in a very engaging manner. They were able to articulate their feelings in an unrehearsed, genuine fashion about their father and mother. They also expressed a desire to visit with their mother although they had concerns about her conduct during those visits. They also expressed an interest in sibling reunification. Dr. Sigalow noted in particular that A was the sibling most able to articulate the pressures from both parents and although living with the father could still see positive aspects about his mother. Dr. Sigalow found him to be the most insightful and stable child. It is noteworthy that in the past, A was very closely aligned with his mother. Indeed, there was alienation between A and his father such that the father was relegated to supervised visitation with A. A change of custody will prove to be disruptive to the children. However, given the mother's egregious conduct throughout these proceedings, it is clear that things cannot remain as they are. The status quo is simply not working. Further visitation orders will have no affect on the defendant- mother. She has demonstrated utter disdain for court orders and the judicial process. In her mind, she has relegated herself the role as final arbiter in this custody battle. This is a recipe for further trauma and psychological harm to the children. Finally, the court places great weight on the fact that notwithstanding Dr. Sigalow's recommendations, the Law Guardian supports the transfer of residential custody of A and R to the father. With respect to M, although the Law Guardian supports her eleven year old ward's objection to living with her father, the court believes M is not fully able to assist the court in determining her best interest. Mindful of Dr. Sigalow's concerns which are well-founded, the court is not prepared to make this a final order of custody. Instead, the court will direct a change of residential custody of M, R and A to their father on a temporary basis for the duration of the summer school recess. The children will have uninterrupted time with their father to give them an opportunity to acclimate themselves to their new surroundings. At the beginning of September, the court will re-visit the custody issue and interview the children in-camera once again to gauge their adjustment to their current circumstances. Finally, a word of warning to both parties. In the event that either party makes any disparaging comments about the other parent to any of the children which is proven to this court's satisfaction, you will be held in contempt and incarcerated. Additionally, any violation of the orders of this court with respect to temporary custody will receive similar treatment. All the children are to be provided with immediate and, if necessary, weekly therapy to adjust to the transition. The father is to pay particularly close attention to the interaction between M and her older brothers and under no circumstances is corporal punishment to be used by the father. This constitutes the Decision and Order of the Court. FootNotes: |  ††† It is well settled that the Court is not required to "accept the recommendations of the court-appointed psychologist." (Berstell v. Berstell, 272 AD2d 566).
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