Here the mother falsely accused the father of sexual abuse of the 10 year old, one of the two children, the other being 7.

L.S. v. E.C., NYLJ October 04, 2019,  Date filed: 2019-09-03,  Court: Family Court, Bronx Judge: Judge Ariel Chesler, Case Number: 199451:

“The mother’s written summation argues she should be granted sole custody and the father given supervised visitation. In contrast, the father’s summation asserts the mother has alienated him from the children and is, thus, not fit to maintain custody of the children and that custody of the children should instead be transferred to the father. While A.S.’s attorney expressed A.S.’s desire that her mother maintain custody of her, A.S.’s attorney did not take a position regarding visitation with the father. F.S.’s attorney did not take a position regarding custody but strongly argued in favor of continued visits between F.S. and his father, graduating to unsupervised and liberal visitation.

Regarding custody of A.S., a petition to modify an existing order requires a two-part inquiry. The first or “controlling ‘material fact’ is whether or not there is a change in circumstances so as to warrant an inquiry into whether the best interests of the children would be served by modifying the existing custody arrangement.” (Robert OO. v. Sherrell PP., 143 AD3d 1083, 1084 [3d Dept 2016]; see also Sergei P. v. Sofia M., 44 AD3d 490 [1st Dept 2007]). Once a change in circumstances has been demonstrated, “the parent then must show that modification of the underlying order is necessary to ensure the child’s continued best interests.” (Matter of Menhennett v. Bixby, 132 AD3d 1177, 1179 [3d Dept 2015]; see also Christopher H. v. Taiesha R., 166 AD3d 548 [1st Dept 2018]).

Although none of the parties argue the modification standard, it is clear to this Court that there has been a substantial change in circumstances in that the abuse allegations, the interference in the father-child relationship by the mother, and the resulting separation and distance between the father and children drastically altered their relationship. Indeed, “[e]vidence of interference by the custodial parent in the relationship between the subject child and non-custodial parent, can also constitute a change in circumstances sufficient to modify an existing order.” (Matter of E.S. v. SS., 63 Misc 2d 1206(A) at *6 [Family Court, NY, Bronx County 2019]). Thus, with regard to both children the Court will proceed to the best interest standard and a consideration of the totality of circumstances.

No parent has a prima facie right to custody over another parent and custody awards must be based only on the child’s best interests and in promotion of the child’s health and happiness. (Domestic Relations Law §70[a]). No one factor is determinative of custody; rather, the Court is required to consider the totality of the circumstances. Among the factors to be considered are the respective ages of the children, the financial circumstances, the home environment of each parent, the parental fitness of each parent, the preferences of the children, and a goal of keeping siblings together. (See Eschbach v. Eschbach, 56 NY2d 167, 172 [1982]). When applicable, the Court must also consider the length of time of any prior custodial arrangement and ensure stability for the children. (See Friederwitzer v. Friederwitzer, 55 NY2d 89, 94 [1982]).

Furthermore, any parent who is awarded custody must be willing to facilitate a relationship between the children and the noncustodial parent. (See Matter of James Joseph M. v. Rosana R., 32 AD3d 725, 726 [1st Dept 2006]; Lohmiller v. Lohmiller, 140 AD2d 497, 498 [2d Dept 1988]). In fact, some courts have found that an unwillingness to facilitate that relationship is “an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the [parent] is unfit to act as a custodial parent.” (See Entwistle v. Entwistle, 61 AD2d 380, 384 [2d Dept 1978]. Some courts have found the single act of a false allegation of sexual abuse by one parent against the other parent can be so egregious and damaging to the children that it, alone, may warrant a change in custody. (See, e.g., David K. v. Iris K., 276 AD2d 421, 422 [1st Dept 2000]). However, false allegations of sexual abuse do not warrant an automatic change in custody. (See John A. v. Bridget M., 16 AD3d 324 [1st Dept 2005], lv denied 5 NY3d 710 [2005]). Rather than a per se rule, a custodial parent’s interference with the relationship between a child and noncustodial parent “constitutes one fact, albeit an important one, in determining the best interests of the children…a failure to adequately consider all the pertinent information may result in a change of custody that, despite the custodial parent’s misconduct, is not in the best interests of the children.” (Id. at 336 [Saxe, J. concurring]).

Here, despite the mother’s sexual abuse allegations ultimately being unfounded, as both doctors testified, the mother continues to genuinely believe that the father abused A.S. As a result of this belief, the mother has compromised the relationship between the children and their father. Given this genuine belief, and the possibility of a delusional disorder as referenced by Dr. Pino, this Court questions whether it is right to grant custody to the father on this factor alone. As in John A., there is the “possibility that [the mother] could have sincerely, even if irrationally, believed that the father constituted a danger to the children.” (Id. at 337 [Saxe, J. concurring]).

Although the harm done to the children by the separation from their father is certainly great, removing the children from their mother may serve as more of a punishment for their mother’s behavior rather than a promotion of their best interest. (Matter of John A. v. Bridget M., 16 AD3d at 337 [Saxe, J. concurring]). To the contrary, this Court is concerned that removing the children from their mother’s custody would result in further traumatization and would thus not be in their best interest. “An award of custody, especially when it is a removal of custody from a parent with whom the children are closely bonded, should not result from one discrete fact, but requires a weighing of all relevant factors and a determination that the new award will be in the children’s best interests.” (Id. [emphasis in original]).

A review of the other relevant factors bears this out. In considering the totality of the circumstances, the court considers the fact that the children have resided with the mother their entire lives including the six years they have spent having little to no contact with their father. As to A.S., the parties divorce judgment provided that the mother would have custody and be the primary caretaker and the Court gives some weight to the prior agreement which has been in place since 2011. Since the parties’ divorce, the mother has also served as a competent primary caretaker as evidenced, among other things, by the fact that the children excel in school. A related factor is thus that the quality of the mother’s home environment appears to be positive and nurturing for the children.

Both parties appear to be generally able parents with homes both appropriate and supportive for the children. As to relative financial circumstances, it appears the father is more financially stable. However, the Court does not place great significance on the parties’ relative finances.

Another factor the Court considers is that a change in custody would be extremely disruptive to the children’s lives. Their home has always been with the mother and changing custody would take them away from their school, friends, pets and daily life as they have known it. Therefore, the factor of stability weighs against a change in custody. Indeed, a transfer of custody to the father would be far more traumatic for the children than remaining in the mother’s care. A.S. lived in the same residence as her father only from her birth until age four. F.S. has never lived in a home with his father. Were custody to be granted to the father, the children would be placed in the home of the father, someone with whom they have had only intermittent — albeit positive — interactions, and their step-mother, a stranger they have never met. Their time with their mother would be limited to visitation, which would be confusing and upsetting.

Further, A.S. has expressed through her attorney a desire to remain in her mother’s custody. CPS reported that F.S. appeared happy, active, and very attached to his mother. While not determinative, the expressed wishes of A.S. are significant, and the Court has given consideration to her age and maturity as well as her demeanor during the in camera proceeding. Given the position of A.S. and the other factors, which weigh against a transfer of custody, the Court also notes that it would not be in the best interests of the children to split them as they have a strong bond with one another and it would be in their best interests to continue living together.

Fortunately, the evidence also establishes that despite the separation and the mother’s interference with the relationship, the father and children share a bond that can be repaired and strengthened. Thus, despite the mother undermining the relationship the children appear to have a warm attachment to the father.

Having rejected the claims of sexual abuse, the Court considers whether the mother “can become reconciled to the children’s relationship” (John A., 16 AD3d at 339) with the father. The mother recognized the significance of the children having a relationship with their father and declared that she would facilitate that relationship, albeit with certain limitations. While the Court has reservations   —   given the mother’s track record of not complying with court ordered visitation — it is also noted that the mother has more consistently complied with Court ordered supervised visitation since March 2019. Therefore, it is the opinion of the Court that with appropriate therapeutic assistance and treatment, the mother will better fulfill her obligations as a custodial parent.

Based on the totality of the circumstances, the mother is granted sole physical and legal custody. This custody award is in no way meant to reward the mother. Despite her egregious, reprehensible behavior, it is in the children’s best interest to remain in her custody. While attending counseling or mental health treatment cannot be a condition for obtaining visitation rights, the Court has the authority to direct a parent to participate in psychological treatment as a component of a custody order. (See Matter of John A. v. Bridget M., 16 AD3d at 331). An order of probation outlining mandatory participation in therapeutic programs is authorized pursuant to Family Court Act §656 and the Court adopts the recommendations of Dr. Pino regarding the mother’s need for treatment. Accordingly, sole physical and legal custody are granted to the mother, subject to an order of probation that she attends individual psychotherapy to help her cope with anxiety and family therapy with A.S. in order to help in healing the relationship between A.S. and her father and to assist the mother in understanding A.S.’s needs, comply with visitation orders, and ceases disparagement of the father. (See also Jamel W. v. Stacey J., 136 AD3d 552 [1st Dept 2016]).

As this family moves forward, it is critical that the relationship between the subject children and their father be healed, and it is the mother’s responsibility as the custodial parent to encourage, foster and facilitate that healing. (See Alvarez v. Alvarez, 114 AD3d 889, 980 [2d Dept 2014]. In fact, “[o]ne of the primary responsibilities of a custodial parent is to assure meaningful contact between the children and the other parent.” (Matter of Raybin v. Raybin, 205 AD2d 918, 921 [3d Dept 1994]). In this regard, the Court has concerns based on the mother’s pattern of noncompliance with court-ordered supervised visitation. However, it should be emphasized that the issue of custody can be revisited if she continues to alienate the children from their father and violate any court ordered visitation. (John A., 16 AD3d at 335; see also Victor L. v. Darlene L., 251 AD2d 178, 179 [1st Dept 1998]). “It is in the mother’s power to maintain custody by refraining from further abuse of her power as the custodial parent.” (John A., 16 AD3d at 335 [Tom, J. P. and Friedman, J., concurring]).”