Family Law Keyed to Weisberg

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In Re Rebecca B

Citation. In re Custody of Rebecca B., 204 A.D.2d 57, 611 N.Y.S.2d 831, 1994 N.Y. App. Div. LEXIS 4603 (N.Y. App. Div. 1st Dep’t May 3, 1994)

Brief Fact Summary. Mother petitioned to eliminate father’s overnight visitation and to require supervised visitation. Father cross-appealed for sole custody.

Synopsis of Rule of Law. The testimony of mental health experts is helpful in determining child custody. In order to be properly informed the expert should meet with all parties involved in the custody hearing.

Facts. In 1986 Renee B. filed for divorce and sole custody of her daughter Rebecca against Michael B. The family court granted both motions. In 1992, Renee petitioned to eliminate Michael’s overnight visitation and to require supervised visitation upon discovery that Michael was sleeping in the same bed as Rebecca. Michael cross-petitioned for sole custody. The Family Court denied his cross-petition and affirmed the award of sole custody to the mother. Father appealed.

Issue. Did the trial court err by denying the father’s cross-petition and affirming the award of sole custody to the mother.

Held. The trial court’s custody award lacked a sound and substantial basis in the record, and therefore cannot stand.

The Clinical Director of the Family Court’s Mental Health Service concluded that the child’s best interests required the transfer of custody to the father with liberal visitation for the mother noting that appellant was a much less detrimental influence on the child. The child repeatedly made it clear to the directory that she would prefer to live with her father, due to her mothers spanking, slapping, and locking of the child in her room.

Another psychiatrist also recommended a change in custody, believing that the father would give better access to the noncustodial parent. There was no suggestion of any improper action during the two years when the child slept with her father, and this psychiatrist found nothing intrinsically detrimental in the arrangement. A supervising social worker agreed with this psychiatrist.

A psychiatrist retained by the mother testified that custody should be continued with her. However, he spoke only with the mother and the people he was referred to by the mother, but not to the child or father.

The law guardian concluded that granting custody to the father was in the child’s best interests because he was more likely to foster the non-custodial parent’s relationship.

The trial court found that the testimony of the Clinical Director, the first mentioned psychiatrist, and the social worker was not credible. However, these were the only experts to speak to all three family members. This left the court without expert testimony on the child’s preferences and the quality of her relationships with her parents. Little weight should be accorded the mother’s psychiatrist, because he failed to interview the child or the father. Due to the previous custody award, the burden was on the father to demonstrate a substantial change of circumstances. He did so in 1991 by showing the preference of the child, the bond that had grown between them, and the mother’s punitive disciplining of the child.

The evidence suggested that the mother tends to be short-tempered and punitive toward her daughter, and the inference is that this harms the child. There was no showing that the father was anything but helpful, patient, and constructive. Additionally, the mother attempts to exclude the father from his daughter’s life, which is an act so inconsistent with the best interests of the child as to per se raise a strong probability that the mother is unfit to act as custodial parent.

Discussion. The Court found that the trial court failed to properly evaluate the evidence presented by the mental health experts when it discredited the testimony of experts that had interviewed all parties and credited one psychiatrist that had met only with the mother and the people she had referred.