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New York Court of Appeals Motion on Child Custody

COURT OF APPEALS STATE OF NEW YORK
_____________________________________

Patricia SMITH,

                         Appellant-Petitioner,
-against-                                                                                          DOCKET NO. V-01302-03/03A FILE NO. 2496
Warren SMITH,

                               Respondent-Respondent.
_________________________________________

 

 

APPELLANT’S MOTION FOR LEAVE TO APPEAL TO THE COURT OF APPEALS

 

 

 

 

LAW OFFICES OF SUSAN CHANA LASK
Attorneys for Movant-Appellant
244 Fifth Avenue, Suite 2369
New York, NY 10001 (212) 358-5762

 

 

TABLE OF CONTENTS

 

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

i NOTICE OF MOTION..............................................................................

ii PROCEDURAL HISTORY OF THE CASE................................................ 1
STATEMENT OF JURISDICTION............................................................. 3

 

QUESTIONS PRESENTED FOR REVIEW.................................................. 3

 

THE QUESTIONS PRESENTED MERIT REVIEW................................... 4

 

SUMMARY OF THE FACTS....................................................................... 8

 

ARGUMENT.................................................................................................10

 

I. LEAVE TO APPEAL SHOULD BE GRANTED BECAUSE THE THIRD DEPARTMENT'S DECISION SUPPORTS THE FAMILY COURT'S ERRORS IN DENYING MOVANT'S CPLR 3025 MOTION TO CONFORM THE PLEADINGS TO THE PROOF TO INTRODUCE EVIDENCE OF DANGER TO THE CHILD WHEN RESPONDENT NEVER ARTICULATED AN OBJECTION OF PREJUDICE OR SURPRISE AND ONLY OBJECTED ON A TECHNICALITY, ALL CONTRARY TO THE BEST INTERSTS OF THE CHILD.............. 10

 

A. If Court's Refuse to Hear Critical Testimony Regarding Violence
in the Presence of a Child Based on a Pleading Technicality Then The
Courts Are Ignoring their Obligation to Protect the Best Interests of
the Child............................................................................................ 14


II. LEAVE TO APPEAL SHOULD BE GRANTED BECAUSE THE THIRD DEPARTMENT'S DECISION SIMPLY DEFERRED TO THE LOWER COURT'S DECISION IMPOSING SUPERVISED VISITATION WHEN A SOUND AND SUBSTANTIAL BASIS DID NOT EXIST IN THE RECORD................................................. 16

 

A. There Can be No Sound and Substantial Basis in the Record to Impose Supervised Visitation if there is No
Harm to the Child....................................................................... 16

 

B. Expert Proof of Detriment to the Child's Emotional or Physical Well-Being is the Standard Followed in the Departments before Imposing Supervised Visitation and Denying Custody.................. 23

 

C. If the Lower Court has No Sound and Substantial Basis to Support Harm to the Child then Imposition of Supervised Visitation Becomes a Punishment Which Requires a Contempt Hearing Limited to Sanctions of a Fine or Jail, Not Interference With Parental Rights to Visitation............................................... 26

CONCLUSION ..................................................................................... 28

TABLE OF AUTHORITIES

PUBLICATIONS at Motion Page 5

"Group Raises Kid-Custody Issues", New York Daily News, By Nicole Bode, Sept.11,2004

"Gross Injustice: Custody-battle Mom" New York Daily News ,By Bob Port, Dec.
29, 2004

"CUSTODY CHAOS" New York Post, By Aly Sujo, Oct. 15, 2004 "Commission Hears the Pain of People in Divorce Courts" New York Times, by Leslie Eaton,Oct. 15, 2004.).

STATUTES

 

CPLR 3025(c)..................................................................................3,4,5,9,10,15,16
C.P.L.R. 5602(a)(1)............................................................................... 3
Family Court Act §156........................................................................... 27
Judiciary Law § 753[A].......................................................................... 27

 

COURT DECISIONS

Dampskibsselskabet Torm A/S v. P.L. Thomas Paper Co.
26 A.D.2d 347, 274 N.Y.S.2d 601 (1st Dep't 1966)............................. 15

De Luca v. De Luca
202 A.D.2d 580, 609 N.Y.S.2d 80 (2d Dep't 1994)............................. 17

Diemer v. Diemer,
8 N.Y.2d 206, 203 N.Y.S.2d 829, 168 N.E.2d 654.............................. 13

Dittmar Explosives Inc. v. A.E. Ottaviano, Inc.,
20 N.Y.2d 498, 285 N.Y.S.2d 55, 231 N.E.2d 756 (1967)................... 10

Gerald D. v. Lucille S.
188 A.D.2d 650, 591 N.Y.S.2d 528 (2d Dep't 1992)......................... 17

Harbor Associates Inc. v. Asheroff,
35 A.D.2d 667, 317 N.Y.S.2d 897 (2d Dep't 1970)........................... 14-15

Hotze v. Hotze
57 A.D.2d 85, 87, 394 N.Y.S.2d 753................................................ 18

Hummel v. Vicaretti,

152 A.D.2d 779, 780, 543 N.Y.S.2d 560, appeal dismissed 75 N.Y.2d 809,
552 N.Y.S.2d 111, 551 N.E.2d 604................................................... 13

In the Matter of Albany County DSS v. James,
172 Misc.2d 427, 658 N.Y.S.2d 184 (Fam Ct Albany, 1997)....... 15-16

Koppenhoefer v. Koppenhoefer
159 A.D.2d 113, 558 N.Y.S.2d 596 (2d Dept, 1990)......................... 17,23

Labanowski v. Labanowski
4 A.D.3d 690, 772 N.Y.S.2d 734, (3rd Dept, 2004).............................27

Mack v. Grizoffi,
13 A.D.3d 912, 786 N.Y.S.2d 648 (3d Dept, 2004)........................... 13

Matter of Hernandez v. Arroyo
203 A.D.2d 461, 610 N.Y.S.2d 858 (2d Dep't 1994).......................... 17

Matter of Michael F. v. Cerise S.
224 A.D.2d 692, 639 N.Y.S.2d 65 (2d Dept, 1996)............................ 16

Smith v. Smith
19 A.D.3d 814, 797 N.Y.S.2d 586, 588(3d Dept., 2005)................... 20

Sharkey v. Locust Val. Mar.
96 A.D.2d 1093, 1094, 467 N.Y.S.2d 61........................................... 13

Shipp v. Gaglia
97 A.D.2d 945, 468 N.Y.S.2d 743 (4th Dept, 1983)...................... 23,24

Smith v. Miller
4 A.D.3d 697, 772 N.Y.S.2d 742,(3d Dept.,2004)........................... 23,25

Strahl v. Strahl
66 A.D.2d 571, 414 N.Y.S.2d 184 (2d Dept,1979)......................... 17

Strang v. Strang
N.Y.L.J., April 24, 1980, p. 14, col. 4.............................................. 18

The Matter of Laura A.K. v. Timothy M.
204 A.D.2d 325, 611 N.Y.S.2d 284 (2d Dep't 1994)....................... 24

Twersky v. Twersky
103 A.D.2d 775, 477 N.Y.S.2d 409 (2d Dept,1984)...................... 16,23,24

Valenza v. Valenza
143 A.D.2d 860, 533 N.Y.S.2d 348 (2d Dept, 1988)......................19,23,24

Weiss v. Weiss,
52 N.Y.2d 170, 436 N.Y.S.2d 862, 418 N.E.2d 377 (1981).........6,16,17

 

COURT OF APPEALS STATE OF NEW YORK

 

Patricia A. SMITH,

Petitioner-Appellant, NOTICE OF MOTION FOR LEAVE TO APPEAL

-against- TO THE COURT OF APPEALS
Wade SMITH Sr.,

Respondent-Respondent.

PLEASE TAKE NOTICE that, upon the annexed Statement in Support of Motion for Leave to Appeal of Susan Chana Lask, attorney for petitioner-appellant, upon the briefs and record filed in the
Appellate Division, Third Department on the prior appeal in this action, and upon all papers and prior

proceedings in this action, the petitioner-appellant will move this Court at the Courthouse of the Court of Appeals, 20 Eagle Street, Albany, New York, on November 21, 2005 at 9:30 a.m. for an order granting petitioner-appellant leave to appeal to the Court of Appeals from the order of the Appellate Division, Third Department dated June 16, 2005, entered in the Office of the Clerk of the Appellate Division, Third Department on June 16, 2005, affirming two orders of the Family Court, Madison County, (1) entered January 8, 2004 dismissing petitioner-appellant's application for custody and (2) entered April 20, 2005 modifying liberal visitation to supervised visitation, and for such other and further relief as this Court finds just and proper. Answering papers, if any, must be served and filed in the Court of Appeals with proof of service on or before the return date of the motion. There is no oral argument of motions, and no personal appearances are permitted.
Dated: New York, New York LAW OFFICES OF SUSAN CHANA LASK
November 9, 2005

By: SUSAN CHANA LASK, ESQ. Attorneys for DefendantAppellant
234 Fifth Avenue, Suite 2369
New York, NY 10001 (212) 358-5762

To: Clerk of the Court of Appeals, Court of Appeals Hall, 20 Eagle Street,Albany, New York 12207

David E. XXXXX -Attorneys for Respondent
Sheila XXXX, Esq. -Law Guardian

 

PROCEDURAL HISTORY OF THE CASE

On July 3, 2003 the mother, Movant Patricia Smith, and the father, Respondent Wade Smith, Sr., consented to an Order entered August 6, 2003 in the Madison County Family Court granting joint legal custody of their child, Baby A, to the parties, with physical custody to Respondent and liberal visitation to the
Movant, and prohibiting violence and alcohol consumption in the presence of the child (R.10-14).

On July 23, 2003 Movant filed in Oneida County an Order to Show Cause to Modify Custody based upon (a) a domestic violence incident of about July 18, 2005 committed in Oneida County by Respondent in the child's presence resulting in Respondent’s arrest and (b) Respondent’s residence in Oneida County. On July 23, 2003, the Oneida County Family Court granted temporary physical residence of the child to Movant. (R.49) After a hearing on August 11, 2003 with all parties present, the Oneida County Family Court ordered a temporary transfer of physical residence of the child to Movant and transferred the case to Madison County Family Court for further proceedings (R.55-58).

After the transfer, Movant and Respondent filed respective Orders to Show Cause in Madison County, each requesting custody (R.67,71-85). On October 28, 2003, the Madison County Family Court filed a Temporary Order reinstating its July 3, 2003 Order returning physical residence of the child to Respondent, granting liberal visitation to Movant, and vacating the Oneida Family Court Orders (R.63-65,86-85). On January 8, 2004, an Order was entered (a) granting summary judgment dismissing Movant Patricia Smith's custody application based upon a November 14, 2003 finding in the transcripts that there was no evidence supporting a change in custody and (b) reinstating the July 3, 2003 Order of joint custody and liberal visitation to Movant (R.3-5). On February 20, 2004, an Interim Order was entered contrary to the July 23, 2003 Order reinstated twice, relinquishing Movant’s liberal visitation and now ordering supervised visitation between Movant and her child from 9-5 p.m., Monday through Friday, with no overnights (R.328-330). On
April 20, 2004, an Order was entered ordering supervised visitation to continue for one year between Movant and the child from 9-5 p.m., Monday through Friday, with no overnights, supervised by the department of social services (R.7-9).
On January 9, 2004 and April 23, 2004, Movant served upon all parties Notices of Appeal with Notices of Entry of the (a) January 8 and (b) April 20, 2004 Orders (Exhibit “A”). On June 16, 2005 the Third Department Appellate Division (a) affirmed the Family Court’s January 8, 2004 Order dismissing Movant’s application for custody and (b) found no error by the Family Court regarding Movant's visitation, holding "the record as a whole supports a finding that it is in the child's best interest that petitioner's visitations with her be supervised" (Exhibit “B”) .
On June 28, 2005 Movant filed and served all parties with a pro se “Motion for Reargument or for Leave to Appeal to the Court of Appeals” and on August 8, 2005 served an “Amended Motion for Reargument or for Leave to Appeal to the Court of Appeals”. (Exhibit “C”). On August 23, 2005 the Appellate Court, Third Department denied Movant's pro se Motion for Reargument or Leave To Appeal (Exhibit "D"). On November 11, 2005 Movant served all parties with Notice of Entry of the Third Department August 23, 2005 Order and Notice of Motion for Leave to Appeal to the Court of Appeals (Exhibit “E”). This motion is timely.

STATEMENT OF JURISDICTION

The Court of Appeals has jurisdiction of this motion and the proposed appeal under C.P.L.R. 5602(a)(1). This is an appeal from an order of the Appellate Division finally determining an action that originated in the Family Court.


QUESTIONS PRESENTED

1. Can the family court deny a party's application to conform the pleadings to the proof pursuant to CPLR 3025(c) when the proof denied involved critical evidence supporting that party's custody application regarding danger to the child and the opposing party only opposed on a mere technicality, without articulating a basis of surprise or prejudice ?


2. Can the family court impose supervised visitation upon a non-custodial parent when no harm by that parent to the child has been found?

3. Before imposing supervised visitation upon a non-custodial parent, should the family court rely on substantial and credible evidence from an expert that has interviewed both the parents and the child to find harm to the child rather than a non-expert who has not interviewed all of the parties?

THE QUESTIONS PRESENTED MERIT REVIEW

The questions presented are of public importance and novel. This case involves a family court making several errors in law and then the Appellate Department affirming the errors based on a record that could not support a denying modification of custody and modifying liberal visitation to supervised. Notably, in this case, the family court’s error started when it refused to hear critical evidence of danger to the child over Movant’s CPLR 3025 applications. The denial had absolutely no basis and was made based on a mere technicality in the pleadings and when the Respondent never articulated surprise or prejudice. Moreover, the evidence excluded involved Respondent’s own arrest that his own papers admitted he understood that was the basis of Movant’s papers; thus, there could not be surprise or prejudice at the subsequent hearing on that very issue. The result of excluding such critical evidence and ignoring CPLR 3025 undermined Movant’s case, resulting is a summary judgment dismissal against her and effectively ignoring the best interests of the child when danger was an issue, as well as allowing the family court to ignore the import of its own order prohibiting violence and alcohol consumption in the child’s presence. It then led the family court to continuously prejudice Movant, resulting in its further imposition of supervised visitation upon her, which was more the family court’s form of punishment against her for what it perceived as her violating its order. In sum, the family court failed to uphold justice when it was in error to deny Movant’s CPLR 3025 application in this custody proceeding involving evidence of danger to the child based upon a mere technicality and a hollow objection of Respondent, and continued its errors by punishing the Movant for attempting to enforce the court’s own Order.


The public’s concern with the failures of the court system in custody battles in erroneously applying the law and then stripping away valuable rights of parents and children is evidenced by the almost daily media attention and the recent Matrimonial Reform Commission Hearings of 2004, led by the Honorable Sondra Miller, organized in response to a system needing repair ("Group Raises Kid-Custody Issues", New York Daily News,By Nicole Bode, Sept.11,2004;"Gross Injustice: Custody-battle Mom", New York Daily News ,By Bob Port, Dec. 29, 2004; "CUSTODY CHAOS" New York Post, By Aly Sujo, Oct. 15, 2004; "Commission Hears the Pain of People in Divorce Courts" New York Times, by Leslie Eaton,Oct. 15, 2004.). The family court’s errors in this case are not uncommon and most times do not reach the Court of Appeals level because these cases involve ordinary working class citizens that can not afford to go to the Appellate Level, so oftentimes, the lower court’s errors go unreviewed, allowing the courts to continue to make Orders they ultimately will not enforce and then punish a parent for attempting to enforce a court order prohibiting violence from the child by completely ignoring the evidence of violence, which was the issue in the court in the first place to protect the child?

In the present case Movant was punished by the court imposing visitation Monday through Friday between 9-5 p.m. supervised by the Department of Social Services. The failures in the system are more pronounced when the Department can not abide by the Orders by further unnecessarily interfering with the parent and child rights to unrestricted access to each other by tremendously reducing the visitation order of what could amount to 240 hours a month of supervised visitation, as in this case, to what will actually be their determination of only 2 hours a month of supervised visitation (Exhibit “F”). This whole result starting from an erroneous court decision to a furtehr failure in the system where the department can not give meaningful access is wholly against this State's policy to promote nurturance and guidance to the child by both parents. Weiss v. Weiss, 52 N.Y.2d 170, 436 N.Y.S.2d 862, 418 N.E.2d 377 (1981). Moreso, the family court’s failure to find harm to justify modification to supervised visitation makes the order imposing supervise visitation more of a punishment. The orders were actually imposed against Movant as a punishment for what the family should have been had where the proper remedies are a fine or jail, but not imposing restricted visitation and denying custody modification based on the family court’s errors of refusing to hear critical evidence that supported its initial order prohibiting violence in the child’s presence. We now have a message that if a parent wants to enforce the family court’s order they will suffer the consequences of losing access to their child, and once such an unreasoned and illogical result like that occurs, the parent is scared to even go back to that court for fear of a worse punishment as there can be no faith in a system that ignores the law, evidence and procedure at its whim.


Finally, review is merited because the Third Department was remiss in affirming an erroneous decision based on the record. The Third Department held that "the record as a whole supports a finding that it is in the child's best interest that petitioner's visitations with her be supervised" (see Exhibit B), yet the record shows that the lower court had no basis to exclude critical evidence of danger to deny custody to Movant and there was no harm to the child evidenced in the record to then impose supervised visitation against the Movant. The questions sought to be reviewed are raised and preserved in the record by notices of appeal and objections of Movants Counsel at the family court hearings (R:2-9,231-239, 250-254;456-459).

 

SUMMARY OF THE FACTS

On July 3, 2003 an Order was consented to in Madison County Family Court granting Movant liberal visitation and joint custody with primary residence of the child to the Respondent.(R.12). Paragraphs V and VI of that Order prohibited either parent to consume alcohol for 24 hours prior to or in the presence of the child or "participate in or allow physical altercations in the presence of the child."(R.13). On July 16, 2003 a Criminal Complaint of assault in the third degree against respondent for a July 15, 2003 incident was filed. (R.84). Respondent was arrested for the assault charge on July 15, 2003 and arraigned July 17, 2003 (R.81). On July 18, 2003, Movant was informed that Respondent disappeared with the child after a physical altercation in the child's presence (R.53, 133-134; 197-198). On July 21, 2003 Movant filed an OSC in the Oneida County Family Court based upon the July, 2003 violent incident involving Respondent occurring there and Respondent’s residence there with the child at (R.49-53). Oneida County granted temporary primary residence of the child to the Movant on July 23, 2003 (R. 49) and on October 6, 2003, after a hearing with all parties present, confirmed primary residence with Movant and transferred the case back to Madison County.(R.55-57). On October 28, 2003, the Madison County Family Court returned physical residence to Respondent (R.63-65). On March 25, 2004 the Madison County supervised visitation by a County Department of Social Services from Monday through Friday, 9-5 p.m.(R.468), with significant restrictions; namely, that no third persons are to be present at the visitation, that the non-custodial parent can not discuss with her child the custody arrangements nor explain why liberal visitation was changed to supervised (R.469). The County Department of Social Services ultimately does not abide by such a court order due to its limitations, resulting in the parent being further limited to just 2 hours a month (see Exhibit K), literally becoming a denial of visitation. The Family Court’s Orders denying modification of custody to Movant and imposing supervised visitation against her resulted after it refused to allow Movant to conform the pleadings to the proof regarding her Motion to Modify Custody/Visitation to correct a mere technicality that
Respondent never articulated prejudice nor surprise pursuant to CPLR 3025 (R.188,230). The proof that the family court refused to hear involved a violent altercation and alcohol consumption in the child's presence (R.53,84,186-187) that was critical to the safety and best interests of the child and that violated the family court’s own July 23, 2003 Order prohibiting violence and alcohol use in the child’s presence (R.13). After refusing to hear that critical testimony, the family court further ignored its own “expert” who testified there was no harm involved in an isolated incident at a visitation between Movant and the child (R.375), and instead articulated reasons bearing more on its intent to punish Movant for what it perceived to be a contempt of its order (R.465-466) by eliminating liberal visitation and joint custody and imposing supervised visitation with significant restrictions upon her rather than holding a contempt hearing (R.467-468).


ARGUMENT

POINT I

LEAVE TO APPEAL SHOULD BE GRANTED BECAUSE THE THIRD DEPARTMENT'S DECISION SUPPORTS THE FAMILY COURT'S ERRORS IN DENYING MOVANT'S MOTION TO CONFORM THE PLEADINGS TO THE PROOF TO INTRODUCE EVIDENCE OF DANGER TO THE CHILD WHEN RESPONDENT NEVER ARTICULATED AN OBJECTION OF PREJUDICE OR SURPRISE AND ONLY OBJECTED ON A TECHNICALITY, ALL CONTRARY TO THE BEST INTERESTS OF THE CHILD

CPLR 3025(c) allows amendment of the pleadings to the proof before judgment to be granted liberally provided there is no prejudice to the opposing party. Dittmar Explosives Inc. v. A.E. Ottaviano, Inc., 20 N.Y.2d 498, 285 N.Y.S.2d 55, 231 N.E.2d 756 (1967). In the instant case, the family court five times denied Movant's applic ation to conform the pleadings to the proof on the substantive issue of violence and alcohol consumption in the presence of the child occurring mid-July, 2003 (R.231-242) that was prohibited by the family court's July 3, 2003 Order. (R.13) The prohibitions in the July 3, 2003 Order were made for the best interests of the child due to a history of violence and alcohol consumption by the custodial parent. The Movant filed a hand-written pro se Petition to Modify Custody based upon the Respondent’s arrest on a domestic violence incident in mid-July in the child's presence and then he disappeared with the child.
(R.50-54;186-187).

The Petition alleged "A C.P.S. child protective worker named Christine Coteze from Oneida County called me on Friday morning, 07-18-03, to inform me of this report that respondent/father was involved in a domestic dispute with my child present at his residence which resulted in my daughter being injured by respondent/father and thrown into a car. She informed me to (unintelligible) as to Court and is still trying to locate Respondent with no success."(R.53) Respondent was arrested for a July, 2003 domestic violence incident in the presence of the child pursuant to a July 15, 2003 Criminal Complaint (R.84). Not only are the arrest and Criminal Complaint self-evident that Respondent knew he was involved in a domestic violence incident in July, 2003, but Respondent's own October 22, 2003 Affidavit filed with the family court admits he understood that Movant's Petition alleged that very incident to support her request for a change in custody to her, to wit: "Of particular note is the fact that the criminal charges upon which she (meaning Movant) bases her allegations were outright dismissed by the Court, upon consent of the District Attorney's office."(emphasis added) (R.79).1 Yet, despite Respondent's absolute knowledge of the incident by reason of his own

---------------------------------------------------------------

1 Respondent’s affidavit was false as his motion to dismiss the charges was granted but the District
Attorney opposed, not consented (R.85).

---------------------------------------------------------------------------------------------------

arrest and his further admission in his pleadings that Movant's Petition alleges that very incident, he objected to testimony about that incident by claiming that Movant's Petition stated the wrong location of an incident of domestic violence, objecting that "...there is an accusation or allegation of domestic dispute occurring at Mr. Wade Smith's home."(R.188). The family court improperly sustained Respondent's hollow objection by directing Movant to "Just go to the incident at the house...that was included in the petition." (R.188) and insisted that since the Petition referred to the incident at Respondent's residence then no other incident
would be heard over Movant's multiple applic ations to conform the pleadings to the proof to correct a mere technical defect of location in the pleading (R.232-239). Movant was then limited to a technical defect in the petition and effectively any testimony to substantive issues in the case regarding violence and alcohol consumption in the child's presence was eliminated (R.239). Thus, the family court allowed everyone to ignore the import of its July 23, 2003 Order prohibiting certain misconduct and refused to hear critical evidence relating to that violation that would have sustained a modification of custody. Once the family court made this error, it further used the elimination of that critical evidence to then punish Movant for bringing her pro se petition that in actuality was made to enforce the July 23, 2003 Order of the court. The message here is that the family court will make an order in the child’s best interest to prevent violence in her presence but do not enforce it otherwise you will lose custody and visitation.

Movant's technical defect of misstating the location of an incident that was of no surprise nor prejudice to Respondent could not sustain the family court's denial of her request to conform the pleadings to the proof (R.189,235-236). At no time did Respondent articulate his objection upon surprise, prejudice or even that he required additional time to obtain evidence to rebut the allegation. (R.188, 234-235) Mack v. Grizoffi, 13 A.D.3d 912, 786 N.Y.S.2d 648 (3d Dept, 2004).
"It is well settled that a variance between the pleadings and the proof 'may be disregarded unless it can be said to have misled an adversary and occasioned prejudice' " Hummel v. Vicaretti, 152 A.D.2d 779, 780, 543 N.Y.S.2d 560, appeal dismissed 75 N.Y.2d 809, 552 N.Y.S.2d 111, 551 N.E.2d 604, quoting Sharkey v. Locust Val. Mar., 96 A.D.2d 1093, 1094, 467 N.Y.S.2d 61. Ever since the Court of Appeals decision in Diemer v. Diemer, 8 N.Y.2d 206, 203 N.Y.S.2d 829, 168 N.E.2d 654, in 1960, the New York courts have steadfastly disregarded mere technical objections to a pleading. Diemer upheld a separation judgment grounded solely on cruel and inhuman treatment because the appellate court sua sponte found that the facts in the record, although inadequate to support the cruelty ground, supported the ground of abandonment, which was not the subject of proceedings below. It actually has been commonplace for appellate courts to inject their sua sponte powers to avoid technicalities when the record supported otherwise. Harbor Associates Inc. v. Asheroff, 35 A.D.2d 667, 317 N.Y.S.2d 897 (2d Dep't 1970); Dampskibsselskabet Torm A/S v. P.L. Thomas Paper Co., 26 A.D.2d 347, 274 N.Y.S.2d 601 (1st Dep't 1966). In the instant case, the Third Department allowed the record to reflect that a mere technicality in the pleading could sustain an objection to conforming the pleadings to the proof when there was no real opposition to conforming. The Third Department had the power to avoid such technicality but unexplainably failed to correct the errors of the lower court.


A. If Court's Refuse to Hear Critical Testimony Regarding Violence
in the Presence of a Child Based on a Pleading Technicality Then The Courts Are Ignoring their Obligation to Protect the Best Interests of the Child

 

The family court's denial of critical evidence of violence and alcohol consumption in the child's presence that prove the custodial parent was not acting in the best interests of the child by engaging in acts prohibited by the family court's own July 3, 2003 Order allowed the family court to avoid its obligation to hear evidence regarding the best interests of the child. Once the family court eliminated this critical testimony then the best interests of the child and the substantial change in circumstances standards were also ignored, giving the family court the ability to then summarily dismiss Movant's petition without hearing substantive evidence by stating “...there has been no evidence presented to support any change of custody on a temporary basis or otherwise.” (R.258). Compounding the error is the Third Department's affirmance that erroneously affirms the message that mere technicalities in pleadings are more important than hearing evidence regarding the best interests of the child and that the family court’s should refuse to acknowledge the import of their own orders for the best interests of the child, in this case the July 23, 2003 Order prohibiting violence and alcohol consumption in the child’s presence. This is not the standard that should be followed in our courts and requires review.

An instructive case on the issue of balancing evidence over the child’s best interest is In the Matter of Albany County DSS v. James, 172 Misc.2d 427, 658 N.Y.S.2d 184 (Fam Ct Albany, 1997). That court created a Balancing Test considering the best interests of the child against the evidence requested to amend the pleadings under CPLR 3025. In the Matter of Albany, the court found that to amend pleadings to conform to proof on the eve of trial or during trial in Family Court then it must balance (a) any prejudice or surprise to the opponent, the reason the proponent failed to include issues or facts in its initial pleadings, the ability of continuance to ameliorate prejudice of allowing late introduction of new evidence, and the overall affect on orderly administration of justice in relation to (b) the desire to help protect children from injury or mistreatment and to help safeguard their physical, mental and emotional well-being. at 431. If the family court in the instant case would have considered any one of the Matter of Albany factors, if not all, then the answer would certainly have been to deny Respondent's hollow objection and to grant Movant's application to conform the pleadings to the proof because the evidence sought to be introduced related to Respondent's violence in the child's presence, his violating multiple court ordered prohibitions and his ultimate arrest. It is respectfully submitted that the balancing test used In the Matter of Albany is a fine test to guide courts when the childrens' best interests are involved against the evidence sought to be excluded in a CPLR 3025 application.


POINT II

LEAVE TO APPEAL SHOULD BE GRANTED BECAUSE THE THIRD DEPARTMENT'S DECISION SIMPLY DEFERRED TO THE LOWER COURT'S DECISION IMPOSING SUPERVISED VISITATION WHEN A SOUND AND SUBSTANTIAL BASIS DID NOT EXIST IN THE RECORD

 

A. There Can be No Sound and Substantial Basis in the Record to
Impose Supervised Visitation if there is No Harm to the Child

The Court of Appeals and the intermediate appellate courts of this State have made clear that a high value is placed upon unimpeded, meaningful visitation between the non custodial parent and his or her children. Weiss v. Weiss, 52 N.Y.2d 170, 436 N.Y.S.2d 862, 418 N.E.2d 377 (1981). Absent extraordinary circumstances where visitation would be inimical or a detriment to the child's well-being, a non custodial parent has a right to meaningful visitation privileges, including unsupervised visitation. Weiss , supra; Matter of Michael F. v. Cerise S.,224 A.D.2d 692, 639 N.Y.S.2d 65 (2d Dept, 1996); Twersky v. Twersky, 103 A.D.2d 775, 477 N.Y.S.2d 409 (2d Dept,1984), Matter of Hernandez v. Arroyo,203 A.D.2d 461, 610 N.Y.S.2d 858 (2d Dep't 1994); De Luca v. De Luca,202 A.D.2d 580, 609 N.Y.S.2d 80 (2d Dep't 1994); Gerald D. v. Lucille S., 188 A.D.2d 650, 591 N.Y.S.2d 528 (2d Dep't 1992). The parent-child bond and the freedom to raise the child as deemed fit by the parent without court interference is so important that before a hearing court can impose supervised visitation it must be supported by a sound and substantial basis. Koppenhoefer v. Koppenhoefer, 159
A.D.2d 113, 558 N.Y.S.2d 596 (2d Dept, 1990).

 

It is respectfully submitted that a sound and substantial basis would require a finding of harm to the child by the parent before taking away the parent’s right to unimpeded access to the child. The definition of harm is important in this analysis. The Court of Appeals in Weiss cited Strahl v. Strahl, 66 A.D.2d 571, 414 N.Y.S.2d
184 (2d Dept,1979) used the word "inimical" in circumstances warranting interference with visitation. In Strahl, inimical was defined as "irreparable harm" to the child. In Gerald D, supra. the Second Department was concerned with the "risk" to the child when it held that there was "no indication that unsupervised visitation by the natural father poses any risk to the child." at 650. Detriment is also a word used in the Departments when deciding custody/visitation modification issues. In Matter of Michael F., supra, the Second Department found detriment to the child when, in addition to the non-custodial mother's infrequent contact with the child, she "engaged in illicit drug use and that she physically abused the child. Furthermore, the child became upset and had nightmares after telephone conversations with the mother and was afraid and did not feel safe during visits with her." at 693. One Department elaborated on the term "detrimental" for complete denial of visitation, stating that when exposure of a child to a parent presents a risk of physical harm or of causing "serious emotional strain or disturbance," visitation should be denied. Hotze v. Hotze, 57 A.D.2d 85, 87, 394 N.Y.S.2d 753. In Nancy M. v. Brian, 227 A.D.2d 404, 642 N.Y.S.2d 66 (2d AD,1996) the Second Department considered denying supervised visitation and found that “Absent extraordinary circumstances where visitation would be detrimental to the child's well-being, a non custodial parent has a right to reasonable visitation privileges”, at 404. To justify deprivation of reasonable visitation, the evidence of risk to the child must be "real and objective." Strang v. Strang, N.Y.L.J., April 24, 1980, p. 14, col. 4. Thus we have in the Departments a definition of (a) serious harm to justify complete denial and (b) extraordinary circumstances being detrimental to the child’s well-being to justify supervised visitation, both of which are literally the same standard-serious harm and detriment based on extraordinary circumstances. Both involve a degree of damage to the child’s well being. It is respectfully submitted that the standard for the lower courts to follow before modifying liberal visitation to supervised visitation would be "detriment", meaning real and objective proof of "serious emotional strain or disturbance or physical harm" to the child.

In the present case, no proof by a sound and substantial basis in the record of "detriment", "harm" or "inimical" circumstances to the child was found that mandated supervised visitation. The lower court relied solely upon the testimony of a social worker, Ms. Jones (R.133-134). That testimony actually focused on Ms. Jones’ opinions of Movant and her present husband and that Ms. Jones and Movant did not get along with each other --it did not show at all that the Movant harmed the child in any way. In fact, Ms. Jones' testimony explicitly confirmed that Movant's conduct in the presence of her child was not "harmful" and "I wouldn't use the word "harmful." and "I wouldn't say it's harmful" (R.375). Thus, there was no harm in the isolated incident the lower court considered to justify its imposition of supervised visitation upon Movant. The family court's decision finds that the "acts by Ms. Smith in the presence of her child after the interim Order was made is totally opposite the best interest of this child." (R.135:16-19), yet the family court gave no finding of fact as to harm to the child by the parent justifying supervised visitation with significant restrictions.

If no harm existed in the record and was actually denied by the family court’s own expert, then the Third Department in this case was remiss in its review of the record (see Valenza v. Valenza, 143 A.D.2d 860, 533 N.Y.S.2d 348 (2d

 

Dept, 1988). The Third Department's June 16, 2005 decision holds that "the record as a whole supports a finding that it is in the child's best interest that petitioner's visitations with her be supervised" Smith v. Smith, 19 A.D.3d 814, 797 N.Y.S.2d
586, 588 (3d Dept., 2005); however, there is nothing in the record that the child's best interests requires supervised visitation when no harm was proven to mandate supervised visits. The Third Department could not have reviewed the record properly when the record shows that the lower court's finding actually undermines itself since the only acts it referenced in its findings of facts were (a) an alleged telephone conversation between Movant and a social worker named Ms. Jones and (b) a March 14 visitation at a Burger King with Ms. Smith, her present husband, Ms. Jones, and the child present. (R.133-134:22-16). Since the child was not even present during the alleged telephone incident that involved "raised voices" between Movant and Ms. Jones (R.135), then the family court could only rely on the alleged
isolated incident at Burger King. Despite the fact that there was an isolated incident that the family court's own expert, Ms. Jones, testified was not "harmful" to the child and the child was not present during the alleged telephone incident, the family court ignored the testimony that no harm occurred and articulated its reason for supervised visitation as if the isolated incident at Burger King was "harmful":
"The argument that took place, the raised voices that took place, all of that in front of the child. That's exactly what this Order was designed to do; prevent the child from once again seeing more problems. This is not

 

sufficient to terminate visitation permanently. But once again, this is another indication that no matter what the agreement is between the parties, there's always a problem and this child is being placed in the middle of it. So, I'm going to find that the acts by Ms. Smith in the presence of her child after the interim Order was made is totally opposite the best interest of this child." (R.135)...So my Order is that any visitation by Patricia Smith with the child Baby A Smith shall not be overnight, shall be supervised...(R.136)"

 

The Family Court's error in applying the law regarding supervised visitation is further clear when it confirms, "So, I order supervised visitation, for no other reason to keep the peace and to allow contact to take place without the child being subjected to difficulty."(R465). To "keep the peace" is not a standard to impose supervised visitation. Nowhere does the family court consider detriment, harm or inimical circumstances to the child, which are the standards for interfering with a parent's rights to unimpeded visitation. Nowhere does the Third Department support the harm standard, but instead defers to the lower court's error by holding "... the record as a whole supports a finding that it is in the child's best interest that petitioner's visitations with her be supervised." at 588. The Third Department’s holding is impossible when there was no proof anywhere in the record of serious physical or emotional harm to the child caused by the Movant nor any harm for that matter. Again, the family court's "expert" Ms. Jones testified that there was no harm to the child as a result of the isolated Burger King incident (R.375), which is the incident the family court relied upon as the final “incident” as the incentive for the court to impose supervised visitation. Also, nowhere in the record does itshow that the family court did anything to find support that harm existed, such as by at least holding an in camera interview with the child to discover the child's feelings and perceptions before imposing supervised visitatio n. Most important is the fact that there was never expert nor other reliable psychological testimony that an isolated incident at Burger King where "raised voices" occurred in the child's presence can cause such detrimental effects upon a child that she and her mother should be subjected to supervised visits. It is inconceivable that children should be so sheltered from the real world of disagreements that when voices "raise", then they will be harmed for the rest of their lives and supervised visitation is mandated. It is more conceivable that the very reason the lower court erred in finding this isolated incident demanded supervised visitation was because it failed to have the guidance of an expert as to whether or not unsupervised visitations with the Movant would be harmful to the child.


In sum, when the family court's own "expert", Ms. Jones, stated there was no harm to the child and in light of its failure to order any psychological evaluation to determine if harm actually existed to the child, then clearly the lower court's imposition of supervised visitation from liberal visitation had no sound and substantial basis in the record and the Third Department could not and should not affirm such an order. An order of supervised visitation when no sound and substantial basis existed effectively removed and interfered with precious parental right to meaningful visitation with the child. The Third Department's decision affirming the lower court's decision is at odds with the Departments' attempts to preserve the parental right to unimpeded visitation unless there is harm to the child. Appellate review is necessary to correct this error and restore balance to Movant's rights as a parent to unimpeded visitation unless harm to the child is proven by a sound and substantial basis. This is a recurring issue that affects not only Movant but all parents similarly situated in visitation/custody hearings requiring review by the Court of Appeals.


B. Expert Proof of Detriment to the Child's Emotional or Physical Well-Being is the Standard Followed in the Departments before Imposing Supervised Visitation and Denying Custody


Multiple reported cases in the Departments show that courts rely on an expert report before finding detriment in a custody/visitation case, and the expert report carries weight only when both parents and the child have been interviewed and evaluated. Smith v. Miller 4 A.D.3d 697, 772 N.Y.S.2d 742,(3d Dept.,2004); Valenza v. Valenza, 143 A.D.2d 860, 533 N.Y.S.2d 348 (2d Dept, 1988); Twersky,supra; Shipp v. Gaglia, 97 A.D.2d 945, 468 N.Y.S.2d 743 (4th Dept, 1983). It appears that the Departments want to protect a parent's right to meaningful visitation and will not interfere with it without credible expert findings, usually by way of a psychological report. In Koppenhoefer v. Koppenhoefer, 159 A.D.2d 113, 558
N.Y.S.2d 596(2d Dept, 1990) the court held that to formulate a sound basis for adjudication of custody and visitation rights, the lower court should seek expertise of other professionals. In that case, although there was a law guardian, the court failed to seek advice from the childrens' current treating therapists and failed to order updated forensic reports or even refer to prior forensics. The court in Twersky, supra. held that supervised visitation can not be imposed when no credible evidence exists that visitation would be inimical to a child's welfare. The Twersky court found that one psychological expert opinion who only interviewed father and never interviewed mother simply was not credible enough when it comes to the lower court determining custody/visitation issues. In Valenza, the court appointed a psychiatrist to evaluate the a non-custodial mother in the presence of the child to determine whether and how much visitation should be allowed. The lower court in Valenza ordered supervised visitation despite an expert report supporting unsupervised visitation. The Second Department in Valenza held it would be seriously remiss in deferring to the trial court's order when it lacked sound and substantial basis in the record, noting the psychiatrist opinion for unsupervised visitation was uncontradicted, and reversed the lower court. In The Matter of Laura A.K. v. Timothy M., 204 A.D.2d 325, 611 N.Y.S.2d 284 (2d Dep't 1994), a father's visitation with his child was properly limited to three hours once a week under the supervision of a certified social worker based upon an in camera interview with the child and the corroborating testimony of a clinical psychologist. In Shipp, the Fourth Department held that without the benefit of a expert testimony regarding the effect visitation may have upon the child and without a psychological examination of the parties involved then supervised visitation must be denied and unsupervised visitation could not be justified. In Smith, a custody determination was made with the assistance of a psychologists' comprehensive forensic evaluation of all parties.

In the present case, the family court made no effort to obtain expert testimony by way of a psychological evaluation of both parties and the child as to whether unsupervised visitations would result in harm to the child. Instead , the family court erroneously relied upon social worker Ms. Jones' testimony to support its finding that supervised visitation must be imposed for a year. Ms. Jones never evaluated any of the parties nor the child for a clinical assessment as to whether there was any danger to the child. She was not qualified as an expert to report to the court that the child's emotional or physical well-being was in danger if visitation with the non-custodial parent proceeded unsupervised. She only met the child and the Movant together once at a supervised visitation she happened to attend for ten minutes (R.356,369, 466), and that was not for the purpose of evaluating the parties. In fact, there was no expert testimony presented to the court that unsupervised visitation between Movant and her child would cause any harm or
result in an adverse psychological and emotional impact upon the child. All that the court relied upon was an allegation by Ms. Jones that the child "held her head in her hands" after a verbal disagreement at a Burger King visitation (R.358, 466). This disagreement was described by Ms. Jones several times as a "conversation". (R.359, 361). After about ten minutes the Movant and her present husband left the Burger King (R.361). Ms. Jones confirmed that the incident was not "harmful" to the child, stating "I wouldn't use the word "harmful" and I wouldn't say it's harmful" when referring to the incident.(R.375).

The family court erred to rely on Ms. Jones' testimony as its basis to impose supervised visitation when harm was actually disproved by Ms. Jones' testimony. If anything, what occurred was that Movant appeared at the visitation with her present husband and Ms. Jones commenced a dispute that he leave because she felt there was no order allowing his presence (R.344-345). In fact, there was no Order prohibiting his presence at the visitation but it was solely Ms. Jones' own imposed rule that he leave (R.357). After about ten minutes of disagreement regarding whether Movant's husband could be present, Movant and her husband left (R.369). Clearly, there was no harm to the child and in fact, Movant and her husband responsibly left and defused the situation when Ms. Jones proceeded to threaten Movant and her husband.


C. If the Lower Court has No Sound and Substantial Basis to Support Harm to the Child then Imposition of Supervised Visitation Becomes a Punishment Which Requires a Contempt Hearing Limited to Sanctions of a Fine or Jail, Not Interference With Parental Rights to Visitation

 

Once the Movant responsibly left the March 14 Burger King visitation to avoid further confrontation with Ms. Jones, nothing else occurred. The child was never harmed. The disagreement was between the adults. The disagreement was never proven inimical to the child's safety. The family court's statement that "The rules were no third-parties show up." Referred to Ms. Jones' self-imposed rule, and not a court order (R.329). If the family court felt that the Movant brought a third party in violation of any "implied" Order, then the proper course for the family court was to hold a contempt hearing and impose the proper penalties if necessary.

The Family Court Act §156 authorizes the imposition of contempt sanctions in accordance with the provisions of the Judiciary Law §756. The penalty for civil contempt is limited to a "fine and imprisonment, or either" (Judiciary Law § 753[A]; see Family Ct. Act §156). The family court in the present case should have held a contempt hearing if it felt Movant violated its order and should not have imposed supervised visitation as that imposition appears to be a punishment rather to the contemptor rather than used for the best interest of the child. It is a serious problem in the lower courts when they erroneously impose restrictions upon visitation or deny custody without the benefit of a proper hearing, ( see Labanowski v. Labanowski ,4 A.D.3d 690, 772 N.Y.S.2d 734, (3rd Dept, 2004). The present case presents the opportunity to address this novel issue that led the family court to use the improper standard of contempt to effectuate supervised visitation.

Conclusion

 

For the reasons set forth herein, it is respectfully submitted that this Court grant the Movant Patricia Smith's Motion for Leave to Appeal to this Court, along with such other and further relief as this Court deems just and proper.

 

Dated: November 9, 2005

LAW OFFICES OF SUSAN CHANA LASK New York, New York

 

 

_____________________________
By: Susan Chana Lask, Esq.
Attorney for Movant/Appellant