| Matter of Greene v Robarge |
| 2013 NY Slip Op 02117 [104 AD3d 1073] |
| March 28, 2013 |
| Appellate Division, Third Department |
| In the Matter of Sean Greene, Respondent, v KimberlyRobarge, Appellant. Reginald H. Bedell, as Attorney for the Children, Appellant. (AndThree Other Related Proceedings.) |
—[*1] Reginald H. Bedell, Elizabethtown, attorney for the children, appellant. McNamee, Lochner, Titus & Williams, PC, Albany (Bruce J. Wagner of counsel),for respondent.
Peters, P.J. Appeals from an order of the Family Court of Essex County (Meyer, J.),entered August 8, 2011, which, among other things, granted petitioner's application, in aproceeding pursuant to Family Ct Act article 6, for modification of a prior order ofcustody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are theunmarried parents of two sons (born in 2001 and 2003). Pursuant to a February 2009order entered on consent, the parties shared joint legal custody of the children withprimary physical custody to the mother and scheduled parenting time to the father. Afterthe mother was found to have violated the order by impeding the father's parenting time,the father commenced the first of these proceedings seeking sole legal and physicalcustody. Thereafter, a family health assessment of the parties was prepared, whichprompted the attorney for the children to commence the second of these proceedingsseeking a temporary order of protection requesting, [*2]among other things, that the mother "immediately cease heralienating practices and begin to actively foster the children's relationship with theirfather." Family Court partially granted that application and issued various orders, one ofwhich directed immediate counseling for the children.
A fact-finding hearing was subsequently conducted over the course of more than 10days, which included the testimony of the parties, two experts and several otherwitnesses. During the course of the proceedings, the parties filed various petitionscharging each other with violating a temporary order that was then in effect pertaining to,among other things, their parenting time and involvement with the children's schoolactivities. At the conclusion of the fact-finding hearing and following a Lincolnhearing, Family Court awarded sole custody to the father, established a visitationschedule for the mother and dismissed the remaining pending petitions. These appealsensued.
Initially, both the mother and the attorney for the children contend that the opiniontestimony of Elizabeth Schockmel, the court-appointed forensic psychologist, shouldhave been stricken because her opinion was based in part upon information she obtainedfrom Department of Social Services caseworkers who were not subject tocross-examination. We disagree. "[T]he professional reliability exception to the hearsayrule . . . enables an expert witness to provide opinion evidence based onotherwise inadmissible hearsay, provided it is demonstrated to be the type of materialcommonly relied on in the profession" (Hinlicky v Dreyfuss, 6 NY3d 636, 648 [2006]; seeHambsch v New York City Tr. Auth., 63 NY2d 723, 725-726 [1984]; O'Brien v Mbugua, 49 AD3d937, 938 [2008]). Here, Schockmel testified—withoutcontradiction—that information obtained from collateral sources is commonlyrelied upon within her profession when conducting a forensic psychological evaluation inthe context of a custody proceeding (see People v Goldstein, 6 NY3d 119, 124-125 [2005],cert denied 547 US 1159 [2006]; Matter of State of New York v Motzer, 79 AD3d 1687,1688 [2010]; compare Matter ofAnthony WW. [Michael WW.], 86 AD3d 654, 656-657 [2011], lvdenied 17 NY3d 897 [2011]; Matter of Murphy v Woods, 63 AD3d 1526, 1527 [2009]).Moreover, her opinion was principally based upon information she obtained from herextensive interviews with the mother, father and children, with the collateral sourceinformation serving as but "a link in the chain of data" that assisted her in forming heropinion (Borden v Brady, 92 AD2d 983, 984 [1983]; see O'Brien vMbugua, 49 AD3d at 939; Anderson v Dainack, 39 AD3d 1065, 1067 [2007]).Accordingly, Schockmel's expert opinion testimony was properly admitted.
Turning to the merits, we find a sound and substantial basis for Family Court's awardof sole custody to the father. An existing custody arrangement may be modified upon ashowing of a change in circumstances reflecting a real need for change in order to insurethe continued best interests of the child (see Matter of Roefs v Roefs, 101 AD3d 1185, 1185[2012]; Matter of Michael GG.v Melissa HH., 97 AD3d 993, 994 [2012]). Here, the evidence overwhelminglyestablished that the mother and father were no longer able to cooperate and effectivelycommunicate with one another for the sake of their children. Their relationship haddeteriorated to a point where they were antagonistic, embattled and unable to deal withone another in a civil fashion for even brief periods of time, thus rendering joint custodyunworkable (see Matter ofMahoney v Regan, 100 AD3d 1237, 1237-1238 [2012], lv denied 20NY3d 859 [2013]; Hughes vGallup-Hughes, 90 AD3d 1087, 1089 [2011]; Matter of Spiewak vAckerman, 88 AD3d 1191, 1192 [2011]).
Having determined that joint custody was no longer feasible, Family Court was then[*3]required to determine what custodial arrangementwould promote the best interests of the children (see Matter of Melody M. v Robert M., 103 AD3d 932, 933[2013]; Williams vWilliams, 78 AD3d 1256, 1257 [2010]). While a best interests assessment mustbe based on the totality of the circumstances after considering a number of factors(see Eschbach v Eschbach, 56 NY2d 167, 174 [1982]; Matter of Yishak v Ashera, 68AD3d 1282, 1283 [2009]), "[e]vidence that the custodial parent intentionallyinterfered with the noncustodial parent's relationship with the [children] is so inconsistentwith the best interests of the [children] as to, per se, raise a strong probability that [theoffending party] is unfit to act as custodial parent" (Matter of Dobies v Brefka, 83 AD3d 1148, 1151 [2011],quoting Matter of Youngok Lim v Sangbom Lyi, 299 AD2d 763, 764 [2002][internal quotation marks and citations omitted]; see Posporelis v Posporelis, 41 AD3d 986, 990 [2007];Matter of Turner v Turner, 260 AD2d 953, 954 [1999]). We accord greatdeference to Family Court's factual findings, given its advantageous position to evaluateconflicting testimony and assess the credibility of witnesses (see Hughes vGallup-Hughes, 90 AD3d at 1089; Matter of Jeker v Weiss, 77 AD3d 1069, 1070 [2010]).
Family Court's conclusion that the mother engaged in conduct designed to undermineand interfere with the children's relationship with the father is amply supported in therecord. The father testified that it appears as if the mother had trained the children toignore him, explaining that the children would not respond or even look at him whenthey were in the mother's presence. Testimony from a number of witnesses establishedthat the oldest son excelled at baseball and was enthusiastic about the sport, and that thefather supported the child's interest and helped coach the team. Yet, the mother went togreat lengths to discourage, and even sabotage, the child's participation in an obviouseffort to undermine the child's relationship with his father through that sport. She alsorepeatedly discouraged and caused the children to fear engaging in otherwise enjoyableactivities with the father during his parenting time. For example, during a week-longvacation with the father, the children were excited to play in the "bouncy tent," but afterspeaking with the mother on the phone, the younger child refused to go because"mommy said that my heart could stop." During that same week, one of the boys wouldno longer swim in the pool after he was told by the mother that the chlorine might causehim to stop breathing.
The mother also engaged in actions that operated to vilify the father and alienate himfrom his children. There was evidence that the younger child was overheard by histeacher telling his friend that his father was a "bad person" because he moved out of thefamily home, a perspective which the mother emphasized during the hearing. Testimonyalso revealed that the mother instructed the children to rip up notes that they receivedfrom the father, stating that they "don't have room for them over at their apartment." Onone occasion just after the father arrived to pick up the children, the mother proceeded tohang a "Stop Domestic Violence" sign on her residence with the assistance of thechildren. When asked by the father if they knew what domestic violence was, thechildren confirmed that they did and stated that he had done so to the mother in the past.Based upon her interviews with the parties, Schockmel testified that the childrenappeared to have memories of the father that were programmed and manipulated by themother and had been "brainwashed" to think that their father was mean. She explainedthat the mother indoctrinated the children with the belief that the father's departure fromthe relationship constituted an abandonment of them and caused the children to feel thatany affection for the father constituted a rejection of her. Notably, Schockmel expressedconcern that the intensity of the mother's behavior had not waned in the 2½ yearssince the parties' separation and, as a result, opined that her "window of adjustment andrecovery . . . is closed."[*4]
Although the father's behavior was troubling attimes, Family Court found that, unlike the mother, he manifested a markedly greaterability to isolate his disputes with the mother without involving or impacting thechildren. Thus, while it is apparent that the mother loves her children and is capable ofmeeting their physical needs, it is equally clear that she is unwilling or unable to enableher children to foster a relationship with their father and remains unaware that herconduct is negatively impacting the children's emotional well-being. Under thecircumstances, Family Court properly determined that a change in custody was in thechildren's best interests (see Matter of Mahoney v Regan, 100 AD3d at1237-1238; Jeannemarie O. vRichard P., 94 AD3d 1346, 1348 [2012]; Matter of Anthony MM. v Jacquelyn NN., 91 AD3d 1036,1038 [2012]; Matter of Dobies v Brefka, 83 AD3d at 1151).
Spain, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.