| Matter of Joseph YY. v Terri YY. |
| 2010 NY Slip Op 06122 [75 AD3d 863] |
| July 15, 2010 |
| Appellate Division, Third Department |
| In the Matter of Joseph YY., Respondent, v Terri YY., Appellant.(And Another Related Proceeding.) |
—[*1]
Egan Jr., J. Appeal from an order of the Family Court of Schenectady County (Powers, J.),entered April 1, 2009, which, among other things, dismissed respondent's application, in twoproceedings pursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents oftwo daughters born in 1997 and 2001, and have been involved in ongoing and acrimoniouscustody and visitation disputes since the parties' separation in 2006. In April 2006, Family Courtgranted a temporary order of joint custody, with the mother having primary physical custody andthe father having certain parenting time as supervised by the mother. In May 2006, due to themother's allegations that the father was harassing her during his parenting time, Family Courtdirected that the father's visitation be conducted under the auspices of the Law, Order and JusticeCenter. Petitions were thereafter filed by both parties—the father alleging that the motherfailed to comply with visitation as ordered and the mother alleging that she was physicallyunable to remove the children from the car as they did not want to see their father. The recorddoes indeed reflect that the children have been consistently unwelcoming and even hostiletoward the father during supervised visitation.[*2]
To aid in the resolution of these ongoing visitationdisputes, in August 2006, Family Court directed that the parties undergo a psychologicalevaluation, which was conducted by David Horenstein. During this evaluation, the motherreported that she believed the father to be a pedophile, that the younger child disclosed to her aquestionable incident in which the father touched her on her "tickle spot" between her legs, andthat her now adult child from a previous relationship disclosed that, when she was 12 or 13 yearsold, the father requested that she remove her clothes. During this evaluation, the older childdenied that the father ever touched her on this "tickle spot." Horenstein noted that the children'saccountings of their father's alleged inappropriate behavior seemed to be verbatim with reportsmade by the mother, and he opined, among other things, that the children displayed "classicalevidence of having been alienated from their father" as a result of the influence of the mother.
In November 2006, the parties entered into an order on consent, which granted the partiesjoint custody, granted the mother physical custody and granted the father supervised visitation atthe Law, Order and Justice Center. Thereafter, between January and June 2007, a number ofpetitions were filed by both parties alleging violations of the visitation requirements set forth inthe November 2006 custody order and also seeking modification of that order. In June 2007,during the midst of these ongoing disputes, the older child disclosed an incident of sexual abuseby the father that was alleged to have occurred in 2004—when she was seven years old.The allegations were investigated criminally, but charges were not pursued. The Department ofSocial Services deemed the allegations unfounded. Meanwhile, Family Court ordered a secondpsychological evaluation of the parties, which was conducted by Paul Partridge. During thissecond evaluation, the older child did not disclose any allegations of sexual abuse, but theyounger child disclosed, among other things, that the father "used to touch our tickle spots whenhe was driving." Partridge noted that "[t]he recent allegation by [the older child] that she wassexually abused is apparently in the process of investigation . . . Of course, it goeswithout saying that if the allegations are true that this would and should result in direconsequences for the custody and visitation arrangements for [the father]." Partridge opined that,even if the allegations of sexual abuse are determined to be unfounded, there was little hope forestablishing an appropriate father-child relationship outside of therapeutic visitation.
Notwithstanding the allegations of sexual abuse, in January 2008, the parties agreed in opencourt to an order, which was entered as an amended order in February 2008 and which continuedjoint legal custody of the children, with primary physical custody to the mother and, among otherthings, ordered therapeutic visitation between the father and the children "under the auspices ofUnion Street Counseling Services" (hereinafter USC). Within days after consenting to this order,the mother brought the children to Aaron Hoorwitz for a sexual abuse evaluation. In March2008, the father filed a petition alleging that the mother violated the February 2008 order byfailing to comply with the directive for therapeutic visitation. In April 2008, based on Hoorwitz'sfindings that he was "inclined to believe" that the older child had been sexually abused and thatcontinued forced visitation with the father would be harmful, the mother filed a petition seekingthe elimination of the father's supervised therapeutic visitation until the children "can be furtherevaluated and treated for sexual trauma." After a trial which took place over seven days betweenJuly 2008 and January 2009 and at which numerous witnesses testified, including competingexpert psychologists and other mental health professionals, Family Court dismissed the mother'spetition, finding that she failed to establish the requisite change in [*3]circumstances.[FN*] Family Court further granted the father's petition, finding the mother in willful violation of theFebruary 2008 order. The mother now appeals.
Modification of an established custody arrangement requires a showing, by a preponderanceof the evidence (see Matter of Cobane vCobane, 57 AD3d 1320, 1321-1322 [2008], lv denied 12 NY3d 706 [2009]),that there is a sufficient change in circumstances requiring such a modification "in order toinsure the continued best interest of the child" (Matter of Rue v Carpenter, 69 AD3d 1238, 1239 [2010] [internalquotation marks and citation omitted]; see Matter of Bronson v Bronson, 63 AD3d 1205, 1206 [2009]).The primary consideration in any custody matter is the best interests of the children (seeMatter of Karpensky v Karpensky, 235 AD2d 594, 595 [1997]). "Because sexual abuse of achild . . . constitutes a sufficient change of circumstances to warrant alteration of anexisting custody arrangement, Family Court's focus on this pivotal issue was warranted"(id. at 595 [internal quotation marks and citations omitted]; see Matter of Laurie II. v RaymondJJ., 68 AD3d 1170, 1171 [2009]; Matter of Gary J. v Colleen L., 288 AD2d720, 722 [2001]). At issue in this case is whether, in according deference to Family Court'sfindings and credibility determinations, there is a sound and substantial basis in the record for itsdetermination that the mother failed to establish a sufficient change in circumstances to warrantmodification of the February 2008 custody order (see Matter of Eck v Eck, 57 AD3d 1243, 1244 [2008]; Matterof Gary J. v Colleen L., 288 AD2d at 722; Matter of Bennett v Davis, 277 AD2d517, 518 [2000]; Matter of Daniel R. v Noel R., 195 AD2d 704, 706 [1993]).
Upon our review of the record, we find no reason to disturb Family Court's determination.We note that there was insufficient evidence of sexual abuse to prosecute the father criminally,and the allegations were deemed unfounded by the Department of Social Services. The olderchild's revelations of sexual abuse were made during tumultuous ongoing visitation disputes,after having previously denied any abuse. We note that the expert evaluations conducted at thedirection of Family Court were conducted with the benefit of having interviewed both partiesand the children, while the opinions of the expert retained by the mother and the other mentalhealth professionals who testified on the mother's behalf were based on evaluations withouthaving any input from the father. There was expert testimony that the mother had a clear agendato make sure the children had no access to their father, and that the children were influenced bythis agenda. There was also expert testimony that the allegations of sexual abuse were suspiciousbased on the timing of the disclosure and the demeanor of the children. To the extent that theparties presented conflicting expert and other testimony, including the testimony of the mother'sadult child, we note that it was Family Court that observed the testimony and demeanor of thesewitnesses and found that sexual abuse appeared unlikely. Also implicit in Family Court'sdetermination is a finding that the mother had failed to demonstrate that therapeutic visitationwith the father would be detrimental to the children. According Family Court deference to makefactual and credibility determinations, we find its decision to have a sound and substantial basisand decline to disturb it (see Matter of Troy SS. v Judy UU., 69 AD3d 1128, 1131, 1133[2010], lv dismissed and denied 14 NY3d 912 [2010]; Matter of Richardson v Alling, 69AD3d 1062, 1064 [2010]; Matter of Krywanczyk v Krywanczyk, 236 AD2d 746,747 [1997]; Matter of Daniel R. v Noel R., 195 AD2d at 706-707).[*4]
We are also not persuaded that Family Court erred infinding that the mother willfully violated Family Court's February 2008 order. "To sustain a civilcontempt finding based upon the violation of a court order, it must be established that there wasa lawful court order in effect that clearly expressed an unequivocal mandate, that the person whoallegedly violated the order had actual knowledge of its terms, and that his or her actions orfailure to act defeated, impaired, impeded or prejudiced a right of the moving party. Theviolation must be established by clear and convincing evidence" (Matter of Aurelia v Aurelia, 56 AD3d963, 964 [2008] [citations omitted]). Here, the mother's testimony established that she wasaware that the father was to have therapeutic visitation with the children under the auspices ofUSC. The mother acknowledged that after being present in court and agreeing to this visitation,USC contacted her to arrange for such counseling, but that she declined to schedule the sameand, instead, without notice to the father or Family Court, retained a psychologist to evaluate thechildren for sexual abuse. This constituted a violation of the February 2008 custody order, andwe decline to disturb Family Court's determination that such violation was willful (see Matterof Cobane v Cobane, 57 AD3d at 1322-1323; Matter of Blaize F., 48 AD3d 1007, 1008-1009 [2008]).
Rose, J.P., Lahtinen, Stein and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: Family Court found that it"cannot conclude that sexual abuse did not occur, only that it appears unlikely."