A Manhattan judge erred in giving sole custody of a separated couple’s daughter to the mother largely on the basis of the father’s “alienating” comments, a unanimous appellate panel has ruled, holding that the judge should have given more weight to the mother’s behavior and the daughter’s own wishes.
The Appellate Division, First Department, panel also found that Acting Supreme Court Justice Ann O’Shea (See Profile) should not have granted the mother final decision-making authority about the education and health care of the couple’s son, whom she allowed to remain in the father’s custody.
Justices Peter Tom (See Profile), David Friedman (See Profile), Rolando Acosta (See Profile), Richard Andrias (See Profile) and Rosalyn Richter (See Profile) sat on the panel in Melissa C.D. v. Rene I.D., 313679/10. The decision was handed down Thursday.
The couple, Melissa C.D. and Rene I.D., married in 1990. They have three children: a 17-year-old son; a 14-year old daughter; and a 5-year-old daughter. The family lived together in Manhattan until October 2010, when Melissa left to live with her lover on Long Island, taking the youngest daughter with her. She subsequently commenced a court action.
In November 2012, O’Shea awarded Melissa sole custody of the daughters, although the 14-year old wanted to stay with her father. O’Shea found it would be in the elder daughter’s best interest to have no contact with her father or brother for six weeks after moving.
O’Shea awarded physical custody of the son to Rene but gave the parties joint decision-making authority about his education and health care, with Melissa having final decision-making power in the event of a conflict. She also gave Melissa the authority to change her children’s therapists.
O’Shea’s decision was based largely on her finding that Rene had alienated the older children from their mother by making strong negative comments about her. O’Shea found that, as a result of their father’s influence, the two older children were “vindictive, cruel, angry, and broken children.”
O’Shea found that although the older daughter would likely suffer some distress from being forced to move in with her mother against her wishes, it would be “temporary and far less emotionally destructive than abandoning her to an unfit parent, which may well leave her with permanent emotional scars.” She also said that the older daughter “has a strong, albeit hidden, bond with her mother.”
The First Department agreed with O’Shea that Rene had made inappropriate comments about Melissa in the presence of his children. However, the panel found that O’Shea went astray in “placing undue emphasis on a single factor, the father’s alleged alienation” of the teenagers, and so reached a result that was not in the older daughter’s best interest.
Moving her would “disrupt her life by removing her, against her wishes, from her father and brother in Manhattan, where she has always lived, and placing her with her mother and her mother’s lover, a situation that she is not comfortable with, on Long Island, in a community that she does not know,” the panel wrote.
It also called O’Shea’s conclusion that the daughter’s distress would be temporary, and that she still had a strong bond with her mother, “speculative.”
The court ruled that O’Shea had not adequately taken into account inappropriate behavior by Melissa. Specifically, the panel said, Melissa confided in her son that she had rented a house on Long Island with another man while she was still living with the family in Manhattan and asked him to keep it a secret. She also invited her lover to her Manhattan home to meet her son, even though the son said he did not want to meet him.
Melissa also promised her older daughter that she was not going to move out, according to the decision. Later, after she did move out, she told the daughter that she could remain with her father, at the same time that she was seeking custody of her.
O’Shea found that while Melissa “may have exercised poor judgment,” the teenage children’s feelings “cannot be attributed to those lapses in judgment.”
The panel, however, said the evidence showed that Melissa’s behavior “contributed” to the children’s “feelings of abandonment and anger, and were a significant factor in undermining their relationship with the mother.”
Furthermore, the panel noted that a court-appointed independent forensic investigator testified that there was no evidence that the older children had been alienated, and that O’Shea “improvidently” disregarded that opinion.
The panel wrapped up the opinion with a brief word of advice to Rene: “Lastly, we caution the father to consider the effects of his comments to the children, to refrain from any interference with the children’s relationship with the mother, and to do all that is within his power to encourage and support their relationship with her.”
“We believe it was the right decision,” said Nancy Green of Burger & Green, who represents Rene.
“We’re extremely encouraged that the Appellate Division recognized that the voices of my clients mattered,” said Shirim Nothenberg of Lawyers for Children, who represents the teenage children. “I think that’s so important in these custody proceedings.”
Nothenberg said she believed the ruling could send a message to lower courts about the importance of taking into account children’s wishes in custody cases. “This was a such a strong recognition of that, that we hope the lower courts will take heed,” she said.
“I cannot express how strongly I disagree with the court’s decision,” said James Iñiguez, who represents Melissa. He declined to comment on whether his client would seek reargument or appeal.