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Second Department Appeal Against Reversing Custody on Alleged Mental Illness and Objecting to Law Guardian

To be Argued by:
Susan Chana Lask, Esq.
(Time Requested: 15 Minutes)


__________________________________________________________________________________

New York Supreme Court
Appellate Division:Second Department

DOCKET NO. 2005-10000
_____________________________________________________

In the Matter of a Proceeding Under Article 6 of the Family Court Act

Jane DOE,
                           Petitioner-Respondent,

v.
John JONES,
                          Respondent-Appellant.
                         (Proceeding No. 1)
_______________________________________________________

In the Matter of a Proceeding Under Article 6 of the Family Court Act

John JONES,
                               Petitioner-Appellant,

v.
Jane DOE,
                              Respondent-Respondent.
                               (Proceeding No. 2)
____________________________________________________________________
____________________________________________________________________

BRIEF OF RESPONDENT
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LAW OFFICES OF SUSAN CHANA LASK
Attorney for Respondent
244 Fifth Avenue, Suite 2369
New York, New York 10001
(212) 358-5762

Family Court, Queens County Docket Nos. V-XXXX/03 & V-XXXXX/03

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................. i

PRELIMINARY STATEMENT.............................................................. 1

COUNTERSTATEMENT OF FACTS....................................................... 1

ARGUMENT ............................................................................................ 4

I. THE TRIAL COURT’S DECISION GRANTING CUSTODY
TO RESPONDENT IS GIVEN GREAT WEIGHT PURSUANT
TO THE LAW BECAUSE IT HELD A FULL EVIDENTIARY
HEARING, OBSERVED THE DEMEANOR OF THE WITNESSES
DURING TESTIMONY AND ITS RESULTING 19 PAGE ORDER
INCLUDED DETAILED FINDINGS OF FACT & CONCLUSIONS
OF LAW SUPPORTING ITS DECISION................................... 4

A. APPELLANT’S SOLE ARGUMENT THAT RESPONDENT
HAS SEVERE EMOTIONAL ISSUES THAT INTERFERE
WITH HER PARENTING ABILITIES IS DISPROVED BY
THE RECORD....................................................................... 8

i. NOT ONE EXPERT TESTIFIED TO NOR
SUBSTANTIATED APPELLANT’S SOLE ARGUMENT
THAT RESPONDENT HAD SEVERE EMOTIONAL
ISSUES BUT IN FACT TESTIFIED THAT RESPONDENT
WAS A FIT PARENT........................................................ 10

B. THE EXPERTS NEVER TESTIFIED THAT RESPONDENT
HAD “SEVERE EMOTIONAL ISSUES” BUT ACTUALLY
TESTIFIED THAT IT WAS APPELLANT WHO HAD
ISSUES OF CONTROL & AGGRESSION OVER
RESPONDENT...................................................................... 12

II. APPELLANT’S CREDIBILITY WAS DISCOUNTED BY HIS
CONFLICTING AND FALSE TESTIMONY WHILE HIS
DEMEANOR DURING TRIAL EVIDENCED AN OVERBEARING
AND CONTROLLING PERSON WHO CREATED A DANGER TO
THE CHILD’S BEST INTERESTS........................................................ 13

 

III. THE LAW GUARDIAN AND FORENSIC EXPERT
RECOMMENDATIONS ARE NOT SUBSTITUTES FOR
THE TRIAL COURT’S FINAL DECISION........................... 17

IV. APPELLANT’S STRATEGY TO MISREPRESENT FACTS,
MISREPRESENT THE FORENSIC PSYCHOLOGIST’S TESTIMONY
& FALSELY CLAIMING RESPONDENT HAD A MENTAL ILLNESS
AS PART OF HIS CHARADE TO GAIN CONTROL OF HER IS
SANCTIONABLE, AS WELL AS COSTS OF THIS APPEAL SHOULD
BE GRANTED TO RESPONDENT......................................... 17

CONCLUSION.................................................................................... 19

 

 

TABLE OF AUTHORITIES
STATUTES Page

N.Y. Comp. Codes R. & Regs. tit. 22, §§ 1301.1 et seq ................. 18

COURT DECISIONS

Bains v. Bains,
308 A.D.2d 557, 764 N.Y.S.2d 721(2d Dept, 2003).......... 4

Bliss v. Ach,
56 N.Y.2d 995, 998, 453 N.Y.S.2d 633, ......................... 16

Brancoveanu v. Brancoveanu,
179 A.D.2d 614, 579 N.Y.S.2d 102 (2d Dep't 1992)........ 18

Fanelli v. Fanelli,
215 A.D.2d 718, 720, 627 N.Y.S.2d 425)....................... 16

In the Matter of Antoinette v Paul Seth G,
202 A.D.2d 429, 608 N.Y.S.2d 703 (2d Dept, 1994)......... 13

Lenczycki v Lenczycki
152 AD2d 621, 543 NYS2d 724 (1989, 2d Dept)............... 6

Matter of Hennelly v. Viger,
194 A.D.2d 791, 599 N.Y.S.2d 623 (2d Dept, 1993).......... 17

Mechta v. Mack,
154 A.D.2d 440, 546 N.Y.S.2d 12 (2d Dep't 1989)........... 18

Young v. Young,
212 A.D.2d 114, 628 N.Y.S.2d 957(2d Dept, 1995).............. 15,17

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 PRELIMINARY STATEMENT

Respondent submits her Brief in opposition to the Briefs of Appellant and the Law Guardian. Appellant’s Brief argues for a reversal of the Trial Court’s decision granting custody to Respondent. The Law Guardian’s Brief argues for the matter to be remitted to the trial court for a psychiatric evaluation of Respondent. Both Brief’s focus on a singular incident of June 22, 2003 of over 3 years ago, claiming Respondent attempted suicide and she has mental issues. On October 27, 2005, the Trial Court found from the witness and expert testimony, evidence, and medical records presented during a seven day trial and litigation spanning over 2 years that Respondent never attempted suicide, she was a fit parent and that every allegation in Appellant’s Petition for Custody was false.


COUNTERSTATEMENT OF FACTS

Respondent Jane Doe  and Appellant John Jones were never married. During their dating relationship in 2002 Respondent became pregnant with their son X. X was born xxxxxxx. His sister x was --- years old when x was born.  X was respondent’s daughter from a former marriage. Respondent had custody of x without incident. X informed forensics that she was very close to X.


Respondent filed an October 29, 2003 Petition for Custody of x. Appellant responded by filing a November 5, 2003 Petition for Custody. Respondent’s Petition for Custody alleged that x required a stable environment and should remain with his sister Olivia, whom he was very close to. Appellant’s Petition for Custody accused Respondent of being mentally ill, dangerous and a drunk.


The custody case was litigated before the Trial Court for two years, from October 29, 2003 to October 27, 2005. The Trial Court held seven days of hearings, reviewed forensic reports, medical records of the Respondent, heard testimony from Appellant, Respondent, a forensic psychologist named Dr.. M and Dr.. F,  PhD. for Respondent’s case, reviewed Closing Memorandum from attorneys for Respondent, Appellant and the Law Guardian. On October 27, 2005, the Trial Court issued a nineteen (19) page Decision and Order containing Findings of Facts and Conclusions of Law granting custody to Respondent (the “Order”).
The Trial Court found Respondent and all other parties testifying as credible except for Appellant, who was found “generally credible.” (Order p.2). Appellant’s Petition for Custody was based on his allegations that Respondent “is an extreme alcoholic”, she attempted suicide, she let the baby’s head slip under water while bathing, she resisted psychological counseling and that she had violent and criminal behavior that made her dangerous to have custody of the child. (Order p.3). The Court found all of Appellant’s allegations untrue. First, there was no proof that Respondent was “an extreme alcoholic”, or an alcoholic to any extent. Appellant never produced evidence of alcoholism against Respondent. “Dr. F unequivocally testified that the mother (Respondent) herself was not an alcoholic.” (Order pp.7,18). Second, his allegation that Respondent attempted suicide was a fabrication of a June 22, 2003 incident when Respondent took 5 Prozac. Appellant sent her to Elmhurst Hospital. Dr.. F testified that Respondent had anxiety because of the Appellant’s controlling personality and declared that she was not concerned that Respondent would hurt herself. (Order p. 7). Forensic Expert Dr. M testified that Respondent never attempted suicide (Order p.13). The Elmhurst Hospital records of June 22, 2003 show the Respondent was admitted for over ingestion of Prozac, “is not suicidal”, and that she was released that same day (Order pp. 16-17). Third, the Hearing Court found Appellant’s allegation incredible that Respondent let the baby’s head slip under water. The trial Court summarized Appellant’s testimony by his own incredible response as he “simply stated: “I let it go.” (trial Transcript, July 5, 2005,p.79). (Order p. 11), proving there was no real danger or incident that occurred Finally, the Trial Court found Appellant’s allegation false that Respondent resisted psychological counseling. Dr. M and Dr. F testified that Respondent was cooperative with counseling that she attended for a substantial period of time (Order p.18).


The Order concludes that “The court closely observed the demeanor of each parent while testifying.” (Order at p.18). The Trial Court not only found Appellant not credible but concluded that his “unreasoned or even unprincipled control of the parent-child relationship is a danger to be avoided.”, wherein custody with Appellant was not in the best interests of the child because of his “restrictive and controlling monitoring of the parent-child relationship between child and mother.” (Order p.19).


On November 7, 2005 Appellant filed a Notice of Appeal. On or about June 29, 2006 Appellant filed a Brief arguing that the Order granting custody to Respondent be reversed. On or about August 16, 2006 the Law Guardian filed a Brief requesting remittal of the matter to the Trial Court for a psychiatric examination of Respondent.


ARGUMENT

I. THE TRIAL COURT’S DECISION GRANTING CUSTODY TO RESPONDENT IS GIVEN GREAT WEIGHT PURSUANT TO THE LAW BECAUSE IT HELD A FULL EVIDENTIARY HEARING, OBSERVED THE DEMEANOR OF THE WITNESSES DURING TESTIMONY AND ITS RESULTING 19 PAGE ORDER INCLUDED DETAILED FINDINGS OF FACT & CONCLUSIONS OF LAW SUPPORTING ITS DECISION

The trial court's determination is based to a great extent upon its assessment of the credibility of the witnesses and the character, temperament, and sincerity of the parents, and the "findings of the nisi prius court must be accorded the greatest respect" Bains v. Bains, 308 A.D.2d 557, 764 N.Y.S.2d 721(2d Dept, 2003).

It is undisputed that this matter was fully heard. Both the Appellant’s and Law Guardian’s Briefs concede there was substantial testimony and documentary evidence before the Trial Court (Appellant’s Brief, p. 12) and there was a voluminous trial record culminating from two years of litigation in this matter (Law Guardian’s Brief, p.3). Indeed, the actual trial was seven days. During those two years of litigation and seven days of testimony, the Trial Court was in the best position to evaluate the testimony, character and sincerity of the parties and weigh the evidence. The Trial Court heard testimony from the Respondent, Appellant, a forensic expert, Respondent’s psychologist and considered medical record evidence regarding Respondent.


Appellant can not make the argument that the Trial Court’s decision lacked sound and substantial basis as the decision conforms with the evidence, it highlights the fact that not one allegation Appellant made was ever substantiated and it considered the forensic expert’s and law Guardian’s recommendations as part of its decision.. The sheer fact that the Order granting custody to Respondent reiterated precisely the testimony and evidence resulting from a voluminous record, seven days of trial and testimony including experts and medical documentation, and closing memorandum from all parties shows the evidence was not considered lightly. The 19 page Order intelligently sets forth the Trial Court’s facts considered and conclusions of law to reach its reasoned decision.


Consistent with the preciseness of the Order, the transcripts show the Trial Court meticulously protected the record. Not only did the Trial Court give Appellant great latitude in his examination and cross-examination of witnesses, it patiently explained the law and cited relevant cases during the course of the seven days hearings and engaged in detailed fact finding itself by questioning every witness to insure no fact was misunderstood. For example, when expert Dr. M testified, the Trial Court engaged in detailed questioning of him and interposed hypotheticals and scenarios to understand his testimony as well as to elicit details regarding his evaluation of the parties and focusing on the best interests of the child (3/14/05 29-54) . Appellant never objected to this examination. The Trial Court summarized Dr. M's testimony and explained in at great length what the issue of best interests of the child meant and the relevant issues and facts to be considered by the Trial Court (3/14/05 54-62).


The Trial Court concluded that Dr. M’s testimony confirmed that Respondent was perfectly capable of caring for the child and was not a danger to the child (3/14/05 73-74:23-2). Appellant can yell and scream from here to eternity that Respondent is “mentally ill”; however, that is a completely false characterization as the experts have proven in this case that respondent is perfectly capable of caring for her child. Even considering the worst of mental infirmities, which does not exist here, when allegations of mental infirmity are made against a party, that party may have custody if the party is capable of properly caring for the child. Lenczycki v Lenczycki 152 AD2d 621, 543 NYS2d 724 (1989, 2d Dept), subsequent app, remanded sub nom Lenczycki v Alexander, 619 NYS2d 56 (App Div, 2d Dept). Here, Respondent is more than capable of caring for her child and has been since she had full custody for over a year now, consistent with the forensics and other testimony since 2003. There is not one problem against her; not a report, not a record-the only problem has been Appellant’s false allegations against her that the Trial Court correctly found false, and now his continuing his meritless position in the Appellate Court-the only problem is the Appellant continuing his charade in the Courts to harass and annoy Respondent, nothing else.

The Trial Court’s extreme patience in this case is beyond comparison. It allowed Appellant to reopen cross-examination of Dr. M on another day of hearing after his testimony was closed (4/20/05 5:4-11). Appellant took advantage of the Trial Court’s graciousness by engaging in an irrelevant line of questioning to Dr. M (4/20/05 7-10:18-4) which was found disturbing to the Trial Court (4/20/05 65-66:19-5). Appellant further abused the privilege by engaging in a belaboring and irrelevant cross-examination of Dr. M to have him testify that Respondent lied about a hospital admission; to which the Trial Court held that it is not the position of the expert of the court to essentially become a “lie detector” for the court, cited case law and clarified its position in line with the cited case law that “...so I would not be in the position of being reversed on the grounds that the Family Court judge was reversed by the Appellate Division, First Department because I clarify on the record, you understand, that I am not, you understand, regarding myself as subservient to an expert’s recommendations with respect to a child’s best interests.” (4/20/05 24:6-15; 22-25:4- 25; 57:9-22;58-60:11-9). And the law so holds that it is the trial court that is the ultimate fact finder.


The Record is replete with the Trial Court’s learned and exacting explanations of the issues and facts to the parties and their counsel, patience in hearing and receiving testimony, and engaging in the examination of every witness. There is no question that the Trial Court conducted a thorough examination into the best interests of the child, and there is no question that the Order resulted from a plethora of evidence leading to a sound and substantial basis that custody should be granted to Respondent.

Since there can be no argument regarding the sound and substantial basis of the Trial Court’s decision, Appellant’s Brief instead misrepresents the testimony by presenting only part of what was testified to, mischarachterizes incidents that never occurred and falsely accuses Respondent of alcoholism and mental illness- the same untoward strategies that were found patently false by the Trial Court. Appellant’s Brief is as wrought with patent falsities as his Petition that was denied by the Trial Court, and leading to a finding that he was only “generally credible”.


A. APPELLANT’S SOLE ARGUMENT THAT RESPONDENT HAS
SEVERE EMOTIONAL ISSUES THAT INTERFERE WITH
HER PARENTING ABILITIES IS DISPROVED BY THE RECORD

Appellant’s sole argument is that Respondent has severe emotional issues that demand reversing the Order of custody in her favor. This singular argument is stated at page 14-15 of his Brief: “we respectfully argue that there is a substantial basis in the record to determine that the respondent has severe emotional issues that interfere with her ability to properly parent...” That exact argument made by Appellant at the trial level was unsubstantiated, and in fact refuted by every witness and the evidence, including Appellant’s own testimony. There was absolutely no indication by any expert or witness that Respondent had “severe emotional issues” nor that she was inadequate psychologically or in any other way. The testimony by each witness, including Appellant, was that she was a fit parent. In fact, at the beginning of the Trial Court hearings, on November 20, 2003, Appellant’s counsel affirmed that their claim was not at all that Respondent was neglecting the child, but that she had a psychological history that “has an effect of instability”; Appellant’s definition of instability being that Respondent would not reconcile with him and that she filed a petition for support (11/20/03 30:6-12). Appellant’s definition is actually his admission that the whole custody petition revolved around his egotistical complaint that Respondent ended her relationship with him rather than the Petition being filed for the best interests of the child.


Appellant’s allegation in his Petition for Custody were further proved patently false when he admitted time after time in the record that Respondent was a fit mother and he continued his relationship with her by traveling to Florida to be with her, letting her take care of him while he was sick, and letting her take him out for a Father’s Day Dinner, all during the very same litigation wherein he alleged she had emotional problems and was dangerous (11/20/03 30:6-12;7/5/05 95-96:13-3,96-97:16-3, 108-109:4-2). Appellant’s claims of emotional instability were so inconsistent with his actions in being with Respondent and letting her take care of him when he was sick that the Trial Court saw right through his meritless allegations. Nothing in the record indicated that Respondent had “severe emotional issues” affecting her parenting, not even Appellant’s testimony could substantiate his baseless claims. In fact, the emotional issues were those of Appellant when he confirmed his flippant and irresponsible behavior by testifying that he was the “emotional fool”, and that he had “a big concern about my own judgment.” (7/5/05 109:19;111:15-16). The Trial Court frankly dismissed Appellant’s baseless claims after two years of hearing the matter, and after the Trial Court itself conducted a thorough inquiry of Appellant and his incredible testimony (7/5/05 105-114).


i. NOT ONE EXPERT TESTIFIED TO NOR SUBSTANTIATED
APPELLANT’S SOLE ARGUMENT THAT RESPONDENT
HAD SEVERE EMOTIONAL ISSUES BUT IN FACT
TESTIFIED THAT RESPONDENT WAS A FIT PARENT

Forensic expert Dr. M never testified that Respondent had severe emotional issues that interfered with her parenting abilities. He in fact testified that there is nothing that bars Respondent from caring for the child. (4/20/05 36-39:6-25; 42:12-15). Dr. M testified that Respondent does not have any interpersonal problems with anyone else except Appellant, that her employer and psychotherapist both confirmed she works with a lot of people and never had problems with anyone and he testified that there was no evidence from his observations and interviews with Respondent that would conclude she is prone to violent behavior (3/14/05 25-26:13-12). He further testified that from his interviews with Respondent that she did not suffer from a diagnosable condition, and that he could only surmise that she had “a mood disorder along the lines of depression...” because at the time she was seeing a psychiatrist who prescribed depression medication (3/14/05 27:2-9).


Dr. M had no issues with Respondent’s psychological history. He testified it appeared she had certain vulnerabilities and some depression resulting from this litigation; stating stress from litigation can trigger depression, but overall there was nothing of any concern from a psychological standpoint (4/20/05 33-34:6-16). The Law Guardian’s Brief characterizes as “preposterous” Respondent’s testimony regarding Appellant’s role in admitting her to Elmhurst Hospital in June, 2003 (Law Guardian Brief, p. 9); however, that is solely an opinion by a Law Guardian who was not present during those events. Most importantly, the Law Guardian’s position is refuted by Dr. M's  testimony that Respondent’s version of events that her husband placed her in the hospital to make a record that she was mentally impaired was not troubling at all as her version may be true (4/20/05 25:10-22).
The expert Dr. F was called by Appellant. She also refutes Appellant’s fabrication of Respondent being mentally ill. Dr. F testified that she was Respondent’s treating psychiatrist for about a year and a few months up to March, 2003 (5/24/05 16-17:25-3;47:12-17). She testified that once in the summer of 2002 Respondent referenced suicide but that was made in relation to her feelings of being controlled by Appellant as it seemed like the only way to get away from him, but in no way did Dr. F perceive Jane as a danger to herself. (5/24/05 25:11-21;47-48:18-15). Dr. F explained it was standard practice that when someone mentions suicide then the therapist will make a “contract” with the person to not do anything until their next session as this agreement helps the impulse to pass, (5/24/05 26-27:19-7) not necessarily meaning that a danger existed. Dr. F never believed Jane would commit suicide (5/24/05 39:2-25).

B. THE EXPERTS NEVER TESTIFIED THAT RESPONDENT
HAD “SEVERE EMOTIONAL ISSUES” BUT ACTUALLY
TESTIFIED THAT IT WAS APPELLANT WHO HAD
ISSUES OF CONTROL & AGGRESSION OVER RESPONDENT

Dr. M found nothing problematic regarding Respondent; however, he testified that others have informed him of unfavorable things about the father. (4/20/05 35:2-11). Dr. F testified that she had absolutely no concern regarding Respondent’s safety to herself, but was actually concerned with the fact that Appellant was so controlling that she felt that he was the basis for Respondent to continue therapy with her (5/24/05 39:2-25). Dr. F testified that from her own direct knowledge it was Appellant who was controlling and his control stemmed from the aggression he harbored (5/24/05 23-24:24-24).
The testimony of the experts is that the problem is not with Respondent but with Appellant The Trial Court heard and evaluated that same testimony and concluded that custody should not be granted to the Appellant who actually had the emotional issues. It becomes clear by Appellant’s meritless appeal that the very real problem with Appellant is that he is so over controlling and unyielding that he is not in reality, and the only reality he sees is his own way and nothing else. The Trial Court’s finding that he has control issues that are dangerous to the well being of the child was based on the overwhelming evidence before the court.


II. APPELLANT’S CREDIBILITY WAS DISCOUNTED BY HIS CONFLICTING AND FALSE TESTIMONY WHILE HIS DEMEANOR DURING TRIAL EVIDENCED AN OVERBEARING AND CONTROLLING PERSON WHO CREATED A DANGER TO THE CHILD’S BEST INTERESTS

This case is a perfect example regarding the value of the case law that recognizes that the trial courts are in the best position to evaluate the evidence and demeanor of the parties when making its decision. In the Matter of Antoinette v Paul Seth G, 202 A.D.2d 429, 608 N.Y.S.2d 703 (2d Dept, 1994). Here the Trial Court observed Appellant’s demeanor of acting out in court, refusing to follow court orders and presenting unsubstantiated and false allegations in his petition for Custody in a frivolous attempt to gain custody.
Despite Appellant having counsel, he interrupted the proceedings with his outbursts and high handed remarks that he did not trust Respondent, that she lied about him, he made his own conclusions before the Judge, argued with the Judge and he interfered with the proceedings (3/14/05 65-66:3-12; 68-69:15-23). Appellant argued unreasoned demands to have the child’s visitations begin and end at the police station, to which even the Law Guardian objected to as baseless. (3/14/05 67-68:19-14). Appellant ignored the Trial Court’s directions at the end of the April 20, 2005 hearing that each party should not file orders of protections, and instead on May 12, 2005 returned to the Court with a May 4, 2005 petition for a restraining order against Respondent (5/12/05) that he later withdrew (5/19/05). During the May 19, 2005 hearing, Appellant engaged in inordinate and improper questioning of Respondent to force her to testify to hospital notations she never made.
Most troublesome was Appellant’s own testimony showing that he was the person that had control and other emotional issues that were a concern for the child’s safety. He testified that he constantly calls Respondent when she’s with the child and leaves messages that she must call him back (7/5/05 27:17-20). Appellant’s own attorney elicited Appellant’s emotional disturbances. He questioned Appellant as to why he feels “the need to always know where your son is and where he goes?”, and he testifies that his mother has an illness and he wants to know how she’s feeling that day, where their son is and what he is doing. (7/5/05 28:18-23). Appellant then testifies that he should have custody because he “I’m the better parent” and “she has an illness” (7/5/05 52:13-15). Appellant later proves his allegations against Respondent of an “illness” are false by testifying that no doctor ever told him that Respondent had an illness (7/5/05 64:17-21). At that point, and considering the other prior false testimony of Appellant, it was clear he was the one “diagnosing” Respondent; a most disturbing fantasy for anyone to engage in, no less to take it to the next step of using such a fabrication to file a Petition for Custody.
Appellant’s fabrications and emotional issues of control and aggression were further proven to the Trial Court when he testified that he wanted full custody of the child where Respondent can only visit the child with Appellant as a “social gathering together.” (7/5/05 120:16-24). With that disturbing testimony from Appellant and considering the weight of the evidence in total, the Trial Court without a doubt got the picture that Appellant never had the best interests of the child in mind at all, but actually was using the child as his way to force Respondent to be with him whenever she wanted to see the child; thus, in Appellant’s unbalanced world, he would eliminate any bonding relationship between Respondent and the child so he could control Respondent to do what he wanted, where and when he wanted it. The Trial Court’s decision properly noted this dangerous imbalance created by Respondent in line with this Department’s holdings that " 'the effect that an award of custody to one parent might have on the child's relationship with the other parent' is also a proper and relevant consideration" (Young v. Young, 212 A.D.2d 114, 628 N.Y.S.2d 957(2d Dept, 1995), quotingBliss v. Ach, 56 N.Y.2d 995, 998, 453 N.Y.S.2d 633, 439 N.E.2d 349); thus, granting custody Respondent was proper when there was ample evidence in the record to support the Trial Court’s conclusion that she would be the better party to foster a positive relationship between the child and the other parent (Young v. Young, supra; Fanelli v. Fanelli, 215 A.D.2d 718, 720, 627 N.Y.S.2d 425).


Finally, it is most disturbing that Appellant’s Petition for Custody was so meritless that he even injected a sense of danger to get the Trial Court’s attention by falsely alleging that Respondent let the child’s head go underwater, as if she was drowning the child. That allegation was proven absolutely false by Appellant’s later admissions when the Trial Court questioned him about such a disturbing allegation. He testified that one day while Respondent was bathing the child his head submerged under water while Appellant recorded the incident with a camcorder, yet he did nothing but continued to record (7/5/05 78:14-25). His testimony was so unbelievable that when the Trial Court asked how many times this happened that day, Appellant testified three times, stating the “third time wasn’t a lot. It was just maybe like the ear and the head went into the water.” (7/5/05 80:12-22). By the end of this bizarre testimony where Appellant complains of a danger yet he testified he sat by and did nothing while he recorded the incident, Appellant finally testified that Respondent did nothing intentionally and that the child slid because the tub was slippery (7/5/05 83:3-11). Like every other allegation of his, this one was fabricated by him in a baseless attempt to support a custody petition.

 

III. THE LAW GUARDIAN AND FORENSIC EXPERT RECOMMENDATIONS ARE NOT SUBSTITUTES FOR THE TRIAL COURT’S FINAL DECISION

It is established that the Family Court can not delegate its authority in determining custody and visitation issues to the Law Guardian or forensic experts. Matter of Hennelly v. Viger, 194 A.D.2d 791, 599 N.Y.S.2d 623 (2d Dept, 1993). Not to discount the reccomendations of those party’s in this case the Trial Court’s Order details findings of fact clearly showing that it considered the record as a whole to determine the best interests of the child. The forensic expert’s and the Law Guardian’s recommendations were properly considered as one of many factors in this case. Young v. Young, supra. As noted hereinabove, the forensic expert concluded that Respondent was a fit parent. In light of the testimony and evidence weighed against the repeated uncorroborated and unfounded allegations made by Appellant, the Trial Court determined that Appellant was not credible and he was controlling and a danger to the child’s well-being; mandating the denial of his Petition and granting custody to Respondent.

IV. APPELLANT’S STRATEGY TO MISREPRESENT FACTS, MISREPRESENT THE FORENSIC PSYCHOLOGIST’S TESTIMONY & FALSELY CLAIMING RESPONDENT HAD A MENTAL ILLNESS AS PART OF HIS CHARADE TO GAIN CONTROL OF HER IS SANCTIONABLE, AS WELL AS COSTS OF THIS APPEAL SHOULD BE GRANTED TO RESPONDENT

The Trial Court found Appellant a controlling person who was a danger to the child, not having his best interests in mind. It is no secret that abusers more often than not file false Petitions in the family and criminal courts to gain control of their victim. They will file restraining orders on false allegations, then get their spouse arrested on the falsely obtained restraining order. In this case the Appellant filed a completely false petition for custody. He alleged the worst of the worst allegations- claiming Respondent was a drunk, attempted to drown the child, and that she was mentally ill. Not one allegation of his was found true. Despite Appellant’s false allegations and the Trial Court’s clear findings in line with the clear evidence, Appellant continued his control tirade by filing this Appeal without a legal or factual basis.

A court may impose costs and additional monetary sanctions against a party pursuing a frivolous appeal. Brancoveanu v. Brancoveanu, 179 A.D.2d 614, 579 N.Y.S.2d 102 (2d Dep't 1992). An appeal is frivolous within the meaning of the Uniform Trial Court Rules if the action obviously lacks merit in either fact or law. (McKinney's Stds & Admin Policies §§ 1301.1 et seq., (N.Y. Comp. Codes R. & Regs. tit. 22, §§1301.1 et seq.;Mechta v. Mack, 154 A.D.2d 440, 546 N.Y.S.2d 12 (2d Dep't 1989). Appellant’s Brief is as meritless as his original Petition denied by the Trial Court. There is not one scintilla of legal or factual basis to Appellant’s Brief. Not one case is cited to support his meritless appeal because the law is against his argument. His counsel’s only “case” is an absurd reference that “One needs only to remember cases such as Andrea Yates who similarly had attempted suicide and suffered postpartum depression and ultimately killed her five children.” (Appellant’s Brief, p.16). Presenting such an irresponsible argument is sanctionable in itself, an insult to the profession and shows the bizarre reasoning Appellant displayed at the Trial Court level.


Considering the facts and law, the history of this case and the fact that there is not one sound argument presented in Appellant’s Brief to justify reversing the Trial Court’s decision, it is respectfully submitted that this Court impose sanctions against Appellant and his counsel and grant costs to Respondent with respect to this appeal.

CONCLUSION
For the reasons set forth herein, Respondent respectfully requests that the appeal is dismissed and that costs and sanctions are imposed against Appellant.

 

Dated: New York, New York LAW OFFICES OF SUSAN CHANA LASK
September 18, 2006

__________________________________
By: SUSAN CHANA LASK, ESQ.
Attorney for Respondent
244 Fifth Avenue, Suite 2369
New York, New York 10001
(212) 358-5762