Timothy M. Tippins

One rarely reads custody decisions in search of controlling black-letter legal principles. Most custody cases turn on the trial court’s view of the facts as they emerge in a setting in which “there can be no absolutes.” Eschbach v. Eschbach, 56 N.Y.2d 167, 171 (1982). Notwithstanding this amorphous milieu, custody decisions remain worthy of close study to develop a working knowledge, a sixth sense really, of the relevant factors and the combinations of factors that are exerting influence on judicial thinking. The recent decision of the Appellate Division, Third Department, in Montoya v. Davis, 156 A.D.3d 132 (2017) presents an interesting example of the interaction of custody factors. It also presents some anomalies that raise questions regarding the consistency of appellate review of custody decisions.

Facts of the Case

The parties are the parents of a son born in 2006. From the birth of the child until 2009, the mother and father lived separately in Suffolk County. In 2009, mother and son moved to Columbia County and the father relocated to North Carolina. An October 2009 order was entered in the Columbia County Family Court, based upon agreement of the parties, providing that the mother would have “custody” and the father would have such visitation as the parties could mutually agree. In January 2012 an order was entered restricting him, for reasons unspecified, to “therapeutically supervised” visitation. As a consequence, over the next several years, the father had a total of three such visits with the child.

The Forensic Evaluation

In October 2015, the father petitioned for unsupervised visits with the child. In January 2016, Family Court appointed a forensic evaluator to conduct a custodial evaluation. The evaluator filed a report the following month recommending custody to the mother and visitation for the father. Although the evaluator had found evidence of parental alienation, she adhered to maternal custody to avoid disrupting the child by moving him to North Carolina. In April 2016, the court ordered an updated evaluation.

In her updated report, completed in May 2016, and in her testimony the evaluator indicated that she found “severe alienation” by the mother and recommended custody be placed with the father. She further urged that the mother should have no contact for at least six months to allow the child to be deprogrammed and to reunify with his father.

Following a hearing, Family Court, relying heavily on the evaluator’s testimony, inter alia granted the father sole legal and primary physical custody of the child and suspended the mother’s parenting time with the child for at least six months.

Bias and Credibility

Appellate courts typically bring a light touch to the review of custody decisions. They will generally affirm unless the decision lacks a sound and substantial basis in the record. In reviewing the record, appellate courts further tend to “accord great deference” to the trial court’s credibility determinations. Sean Q. v. Sarah Q., 156 A.D.3d 1173 (3d Dept. 2017). This deference reflects an understanding that the trial judge is positioned to observe first-hand the credibility of the witnesses, their sincerity, and their demeanor, including their attempted evasions and pregnant pauses in answering questions, much of which is not evident from a review of the written record. Indeed, credibility has been aptly described as “the blind spot of an appellate court.” Capasso v. Capasso, 129 A.D.2d 267 (1st Dept. 1987).

Montoya v. Davis represents a remarkable departure from this traditional deference. The Appellate Division reversed, substituting its own opinion of the evaluator’s credibility for that of the trial court:

“Notwithstanding the strong position taken by the forensic evaluator, our review of the record leads us to conclude that her opinions and recommendations were afflicted by a pervasive and manifest bias against the mother, which should have alerted Family Court to their questionable reliability.”

Montoya, 156 A.D.3d at 135.

Bias, of course, is no stranger to the courtroom or to the forensic process. Forensic psychologist Jeffrey P. Wittmann summed it up quite crisply:

“Our field is famous for supporting conclusions during testimony simply on the basis of ‘accumulated clinical experience,’ a phrase which may mean nothing more than accumulated personal bias.”

Wittmann, J., “Child Advocacy and the Scientific Model in Family Court: A Theory for Pretrial Self-Assessment,” 13 J. Psychiatry & L. 61, 78 (1985).

Montoya instructively sets forth the behaviors of the evaluator that led it to conclude that the she had “failed to remain objective, abdicated her role as a neutral evaluator and, ultimately, became an overly zealous advocate for the father.” Among the enumerated behaviors that the court viewed as indicia of bias were that the evaluator:

• consistently denigrated the mother and her husband;

• offered broad-sweeping characterizations of the parties, which appeared to be mostly informed by the father’s version of events;

• was unable to answer simple yes-or-no questions without editorializing and using vitriolic language directed at the mother;

• regularly praised and defended the father, painting his failings as the fault of the mother

• discounted the possibility that the child may have his own feelings, independent of any interfering conduct by the mother and her husband, about the father’s inconsistent presence in his life.

The lesson to be drawn from the above catalogue is that a one-sided, “all good, all bad” view of a case is rarely supported by the facts and is likely to arouse appellate suspicion. These cases are rarely the moral equivalent of Mother Teresa v. Genghis Khan. Strengths and weaknesses typically exist on both sides of the parental divide and the failure of an evaluator or a trial court to account for these relative variables by a balanced, comparative discussion is likely to suggest biased belief rather than impartial judgment.

All Variables Are Important

The Appellate Division found the trial court’s decision deficient in overweighting the parental alienation factor at the expense of other relevant variables. Here again, the Appellate Division waxed specific with respect to the information that was not provided by the father’s proof. It found that neither the father nor the evaluator had addressed the fitness of the father’s home, the suitability of North Carolina schools to accommodate the child’s special needs, and the health care providers that would be available to the child. In contrast, the record established that the mother had been the primary caregiver for the entirety of the child’s life, that the child had an excellent relationship with his step-father and his half-siblings, and that the mother had successfully advocated for his special needs.

The court is quite correct that all relevant circumstances must be considered and that no one factor is necessarily dispositive. Its discussion of the alienation factor, however, and its criticism of the trial court and the evaluator for their weighting of it is rather curious, perhaps disingenuous is the better word, in view of long-standing precedent.

Alienation/Interference

The Montoya court conceded that there “was certainly evidence in the record to support the conclusion that the mother, along with her husband, interfered with the father’s access” and that she was less than amenable to the concept of co-parenting. Having acknowledged the mother’s interference, however, the court dismissively propelled past the issue:

“[W]hile we are mindful that a custodial parent’s interference with the relationship between the child and the noncustodial parent raises a question as to that parent’s fitness to serve as the custodial parent, Family Court’s decision and order did not reflect an independent balancing of factors to determine the best interests of the child.”

Montoya, 156 A.D.3d 138.

Really? Interference with the relationship between the child and the non-custodial parent merely “raises a question” as to that parent’s custodial fitness? Decades of precedent from the Third Department indicates otherwise. In Joseph WW. v. Michelle WW., 118 A.D.3d 1054 (3d Dept. 2014), a decision cited in Montoya, the court ascribed “great weight to such persistent interference.” In Bennett v. Schultz, 110 A.D.3d 792 (2d Dept. 2013), also cited approvingly in Montoya, the following classic description of the power of the alienation/interference factor appears:

“Parental alienation of a child from the other parent, including willful interference with his or her visitation rights, is ‘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.’” (emphasis added).

See also Greene v. Robarge, 104 A.D.3d 1073 (3d Dept. 2013); Dobies v. Brefka, 83 A.D.3d 1148 (3d Dept. 2011); Matter of Youngok Lim v. Sangbom Lyi, 299 A.D.2d 763, 764 (3d Dept. 2002); Finn v. Finn, 76 A.D.2d 1132 (3d Dept. 1991).

This abundant precedent clearly establishes that this factor does much more than raise a question about the offender’s fitness. It per se raises a presumption of unfitness. In application this factor alone has been known to swamp an array of relevant factors that would otherwise operate in favor of the offending parent, such as primary caregiver status, greater awareness of the child’s needs, and overall better judgment. See Jeannemarie O. v. Richard P., 94 A.D.3d 1346 (3d Dept. 2012).

The substantial weight accorded the alienation/interference factor by the evaluator and the trial court in Montoya more closely comports with prevailing precedent than does the trivializing treatment given it by the Appellate Division. Certainly, the Appellate Division is entitled to revisit its position with respect to the alienation factor and retrench if it deems that warranted. But it should do so explicitly and in an intellectually honest manner that will inform the trial bench and bar that the law has changed. It ill serves the law to minify the factor in the flippant fashion at work in Montoya.

Another Oddity

The Appellate Division acknowledged that the mother had refused to participate in the court-ordered updated evaluation. Quite curiously, the court offered no words of reprimand to the mother for her refusal to comply with the court-ordered process. Rather, it criticized the evaluator for formulating her revised recommendations without the mother’s additional input. This stands in stark contrast to precedent.

In Zirkind v. Zirkind, 218 A.D.2d 745 (2d Dept. 1995), the Appellate Division, Second Department, affirmed denial of custody and visitation to a father because he refused to submit to a court-ordered evaluation. In Shabazz v. Blackmon, 274 A.D.2d 770 (3d Dept. 2000), the Third Department affirmed the entry of a default judgment against a mother who had failed to participate in a court-ordered evaluation. That the Montoya court so readily shrugged off the mother’s defiant response to a court-ordered evaluation is more than a little curious.

Misplaced Emphasis on Diagnosis

The court saw fit to inject the following footnote into the decision:

“Although the mother failed to preserve her argument that the forensic evaluator’s opinions and recommendations were scientifically flawed, the Court is concerned about the forensic evaluator having been deemed an expert in ‘parental alienation,’ which is not a diagnosis included in the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders. We further note that, in the criminal context, ‘parental alienation syndrome’ has been rejected as not being generally accepted in the scientific community.”

This is curious on several levels. First, a witness can be qualified as an expert with respect to an issue about which he or she has specialized knowledge. Meiselman v. Crown Heights Hospital, 285 N.Y. 389 (1941); Caprara v. Chrysler, 52 N.Y.2d 114, 121 (1981). There is no requirement that a qualification correspond to a diagnostic category. A psychologist may be qualified as an expert in forensic psychology, even though forensic psychology is not a diagnosis.

Second, the court seems to conflate Parental Alienation Syndrome (PAS) with parental behaviors that alienate a child from the other parent, typically called parental alienation. PAS was the brainchild of the late Richard A. Gardner, M.D., who defined it as a “disorder” that arises primarily in the context of child-custody disputes. Gardner, R.A., “The Parental Alienation Syndrome,” Second Edition, Creative Therapeutics, 1998, p. xix). The Montoya court is quite correct that the New York courts found that the disorder of PAS has not gained general acceptance required by United States v. Frye, 293 F. 1013 (1923). The court is further correct that no such diagnosable disorder is recognized by the DSM-5.

But so what? Notwithstanding the lack of acceptance of Gardner’s “syndrome,” our courts have, as the decisions cited above reflect, long recognized that behaviors by a parent that alienate a child from the other parent undermine the child’s best interests.

Third, the use of diagnoses in forensic custody reports is itself questionable. Forensic psychologist, David A. Martindale, has written that “Diagnoses do not provide clarification; they create the risk of obfuscation.” Martindale, D.A., “Diagnoses in Child Custody Evaluation Reports,” Matrimonial Strategist (2016), 34[2]. He further notes that DSM-5 itself cautions against the risk of using diagnostic labels in forensic settings:

“Also appearing in the DSM-5’s cautionary statement is a reminder of ‘the risks and limitations of its use in forensic settings. When DSM-5 categories, criteria, and textual descriptions are employed for forensic purposes, there is a risk that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis.’”

Id. at 34[2].

A diagnosis is but a label and a potentially prejudicial label at that. What should concern the custody court are parental behaviors that reflect upon the parenting capacity of the parties. Descriptions are more elucidating than labels.

For an example of how misleading a label can be, one needs to look no further than the Montoya decision itself.  In substituting its judgment for the trial court’s, the Appellate Division stated that the “mother and the father shall have joint legal custody of the child.” The label, “joint legal custody,” of course, implies that both parents must agree on any child-related decision. Neither parent has final decision-making authority. Yet further down the paragraph, the court describes the arrangement it is directing. Here it makes clear that, if after discussing child-related issues “the parties cannot agree – - -, the mother shall make said decision.” Thus, what the label “joint custody” appeared to give the father, the description took away.

Conclusion

The Montoya decision is instructive in terms of explicating some of the judicial and evaluator behaviors that may raise concerns that the process has been tainted by bias. It is further a useful reminder that one must tend to all relevant custody factors and not bank on just one of them alone carrying the case to victory. But the decision also reminds us how erratic the litigation process can be and that an appellate court’s precedents are binding only until they are not.

Timothy M. Tippins is an adjunct professor at Albany Law School and is on the faculty of the American Academy of Forensic Psychology and on the Affiliate Postdoctoral Forensic Faculty at St. John’s University.