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Posts Tagged ‘Judge Robert A Ross

Alienation Ain’t Going Anywhere —

with 8 comments

NOTE: This continues my last post. Curious about Lauren v. Ted, I went and fetched it.

The evidence before me demonstrates a pattern of willful and calculated violations of the clear and express dictates of the parties’ Stipulation of Settlement,” Ross wrote in Lauren R. v. Ted R., 203699-02.

To review, the reporter, reviewing the ruling:

Supreme Court Justice Robert A. Ross in Nassau County ruled that the mother, Lauren R., willfully violated a court order by deliberately alienating the elementary school-age children from her ex-husband, Ted R.” (cite, below)

Ex-Wife Ordered Jailed for Alienating Children From Father

I SAID, INCREDULOUS:

Let’s look at ” willfully violated a court order by deliberately alienating“:

Did the court order mention not alienating — or was the court order about visitation? One is clear-cut. The other is a psychological assessment, less clear-cut, and gives judges a free license to call in the obedience-training authorities. Whether or not it is “deliberate” or as a consequence of moving on in life, is a matter for a mind-reader. Excuse me, “mental health professional,” a field I no longer respect (and this is probably why).

What kind of world do we (as a culture) want? One of action crimes, or thought (intent-) crimes ?? Guess which one you have here?

Only if the court order specifically SAID “don’t alienate” (which is too broadly worded to be enforceable, anyhow) is “deliberately alienating” a violation of it. However, this appears to be referring to failing to comply with visitation/vacation schedule, but doing it in a mean way. I believe that a Law Journal, of all places, should keep those issues separate. So should stipulations and custody orders, but often they don’t, setting the parents up for repeat litigation.

I wanted to know, was “not alienating” built into the court order (incredible as it seems, the answer is YES, this time. I say, “Houston, we have a problem!”)


Seeing this ruling, I felt readers should see how this is done, and who the judge quoted, and in general pick up on the practice of (OPINION ALERT. The rest of this paragraph is my feelings. Of course, much of this blog is — excepting the data research, charts, dockets posted, and news articles, etc…. But especially this next “rant” is a sound-off)
making custodial mothers (physical custodial/joint-legal) — apparently because they are women — responsible for relationship, even if they’re in a new one. This means, that somehow, any new man in the life, can’t “father” a children if it would, say, jeopardize their previous father. Put this in the pot and see how this blends with the fatherhood crisis. The biological Dad (presumably) is out of the home, and a remarriage has taken place. The systems of laws clearly influential in this ruling, were originally (Or, as slid through Congress) aimed at low-income fathers (which the “access/Visitation” policy literature, not to mention the “fatherhood” literature, assures us is the real problem. If it’s not the REAL Dad in the home, (even if there’s another father figure), those kids are screwed for life. Also, it’s important to encourage LOW-income fathers to be persuaded to pay their child support; and the way to do this has been declared, in policy brief after policy brief, is to use the children as a carrot, removing the child support enforcement as a stick, but keeping it there just in case. Theoretically.

This example is “replete with” language and references exhibiting this policy. While Lauren R. may or may not be a nice person — for all we know, she’s a B _ _ _ ch — the practices stand, and she has been threatened with weekends in jail for her behavior.

My CMA:

LINKING, COPYRIGHTs, Etc. – — the link to this opinion is on yesterday’s post, and here is:

Lauren R. v. Ted R.

NASSAU COUNTY
Family Law

New York Law Journal

June 07, 2010

Copyright © 2010, ALM Properties, Inc.

ALM = “American Lawyer Media”

 

Let me COMPLETELY CMA (that’s CYA with a pronoun change) on posting so much of this opinion here:

Disclaimers: I believe that posting this is legal and within the copyright use (general, limited) as my link on this blog states. My purpose in posting here is to illustrate, for general purposes and information:

  • HOW this judge reasoned,
  • how the stipulation was written, and
  • who this judge cited, in jailing [or threatening to] an alienating EX, which court personnel were called in — and for how much*** — to get their piece of the action BEFORE she was threatened with jail and/or custody switch (?) (the ultimate threat) and
  • What “remedies” are considered available (in NY, here) for Bad Moms (and presumably Bad Dads) in violation of DIVORCE-RELATED CIVIL DECREES
  • how GENDER-NEUTRAL, mostly, the “parental alienation” is in theory, but gender-specific, in practice, it seems (my challenge to readers yesterday stands — find me a man treated this way by any court for the same reasons) — and in short,
  • HOW our country moved from the “rule of thumb” (diameter of switch with which one could beat one’s wife, hear tell) to the Judiciary rules and case precedents, etc. (remedies for, rather than beating, just emotionally terrorizing into compliance, or making it clear that the authority of the bench could indeed throw more weight around if compliance isn’t good enough for any woman/slut who remarries (or, doesn’t) with kids and doesn’t do it well, etc. . . . . to demonstrate, and set an example (per HIS attorney) of how very few inches forward we have moved in the past century, vis-a-vis mothers who don’t retain their men… . .

(pause to remember the originally intended VERB of this supremely compound subject sentence…..)(oh yeah, it’s coming…)

ARE RELEVANT TO OTHER PARENTS. IT IS VALUABLE INFORMATION TO THE PUBLIC… As such, I hope I don’t get put in jail for putting this information up.

***“defendant’s counsel, $11,287.50 for Attorney for the Children’s fees, and $19,833.32 for Parenting Coordinator fees,”

To obtain the access so as to answer my initial questions (how could “not alienating” be in a court order?? and why wasn’t the custody interference sufficient?), I had to subscribe to this New York Law Journal. So will you, for pay, or as I did “Free Limited Access,” which means that in exchange for free, they collect data from me and can potential send me marketing material. Being in a good mood, I allowed this. “Free” anything, on-line,” is kind of like a FREE lunch, Food Stamps, Free Legal Services, or Free Restraining Order Clinics. Either you pay, or, you fork over some of your data for the privilege of accessing these things. So, I’m not linking the title today — see yesterday’s post — ,because who knows if my particular link leads to my particular self, which I don’t feel like putting on-line today, particularly after some commentary on the judge’s commentary that reading it inspires (like, “causes to well up”) within my soul.

My CMA, ct’d.

From what I can tell on the Permissions page, my purpose here is not any of those listed: I am not republishing it in a book/ebook for educational or promotional use. I am not republishing it in a print or electronic PUBLICATION for informational or promotional use. I am obviously not photocopying it (don’t you, either!) I am not sending it in an email. I am not republishing it in a marketing MATERIAL because I am not marketing anything. I am advised to click HERE for any other potential use, and that “HERE” says that about 3 different entitites (Rightslink(r), Incisive Media, and Copyright Clearance Center.com) are all in on the action of protecting Judicial opinions from being too widespread without someone being paid for this, and able to trace it.

Speaking of DIGITAL CLEARANCE ISSUES . . . Consider this an ALERT. I make it maroon, as it’s a “parenthetical” to this post.

While I am on this topic of DIGITAL CASE INFORMATION (although this is an ALM publication, and the New York Law Journal, something else — opinions are published in it, I gather — and case dockets, caes information totally another category, today, I ran across THIS concern, expressed by a man in Los Angeles. The fine print here is supplemented from some REAL detailed research, related, on the Justice System [All of it, including enforcement Sheriffs, etc.] in Los Angeles County, which he has called an “Extra Constitutional Zone,” while wryly commenting that the similar behavior is found in courts across the country. However, this article is about digital storage of case information, and compromises in the system as a human rights crisis. Read the fine print, he’s right, I bet:

THIS is a VERY brief, readable summary of the situation, which I am still mentally processing, of automated court systems, beginning in the 1980s, 1990s: “COMPUTERIZED or CON-PUTERIZED” (8/18/2010) — thank you, Janet Phelan, and Dr. Zernik. This is momentous — and a separate post…Here’s a clue to the extent of the problem:

Amidst the rumblings that “equal justice under the law” is being applied selectively and unequally, a new charge is now being levied against the courts, coming from an unlikely source. Joseph Zernik, 54, Ph.D., is a molecular biologist and former college professor. Born in Israel, Zernik came over to the US in 1983, to attend the University of Connecticut where he subsequently received his Ph.D. in molecular biology He was later to work as a professor –first at the University of Connecticut and later at the University of Southern California. Along the way, he also studied computer systems and orthodontics.

By the way, this is the kind of background — more than social scientists and psychologists (or attorneys) that is likely — when attention is given to the legal processes — and systems — in the courts — that can help us. The analytic and systems expertise (logic, in other words) beats rhetoric and reframing every time. I feel… Marshall McLuhan {1911-1980…hover cursor for descr.}warned us that the MEDIUM was the MASSAGE {hover cursor for descr.}(long ago) — this talks about the impact of the MEDIUM (of digital case records) on our legal process.

Beginning in 2002, Zernik began to scrutinize government and corporate data base systems, first in schools and later in banks and in courts. In 2007, he began researching how court computer systems, such as “Sustain,” installed at the Los Angeles Superior Court and PACER/CM/ECF, installed at the federal courts, have circumvented some of the basic and fundamental processes which we have previously taken as sacrosanct.

Around 1985, the Los Angeles Superior court installed “Sustain” as its first civil case management system, to replace the previous paper-based operations. The federal courts began computerizing their systems around the early nineties, according to a spokesperson for PACER, which is the Public Access system of the federal courts, developed under the guidance of the Administrative Office of the US Courts. Actually, the federal court installed TWO systems. One, called PACER, was for general public access. The other system, CM/ECF, is accessible only for the court itself and for court authorized attorneys. However, even on such attorneys restrictions of access were placed and authorization was granted only to view certain records.

In other words, alleges Zernik, there are now two separate systems in place –one for the public and one for the elite tier of lawyers and officers of the court. The courts therefore created two docketing systems, separate and unequal, and asserted the right to segregate persons into one system or the other. As a result, the public right to inspect public documents was severely mitigated. The spokesperson for PACER stated that there were indeed two systems in place, one for public access and one for filing.


Apart from the obvious issues raised by two separate systems which are apparently functioning for different tiers of individuals—the public on one hand and the lawyers and court officers on the other– Zernik uncovered further cause for alarm. When the court systems became computerized, the common law practices also altered, subtly and nearly undetectably. . .

BACK TO NASSAU COUNTY, NY a.k.a.,

How an ANTI-ALIENATION DIVORCE STIPULATION led to a Mom ordered to jail for violating it.


Justice Robert A. Ross

Decided: May 25; 203699-02

The continuing jurisdiction of the Supreme Court to modify or annul its custody and visitation judgments and orders, is set forth in Domestic Relations Law §240. Such authority is similarly provided to the Family Court pursuant to Family Court Act §467. In post judgment proceedings regarding a modification of custody and visitation, the standard is the “best interest of the child,” when all of the applicable factors are considered. See, Friederwitzer v. Friederwitzer, 55 NY2d 89.

Roughly translated, these two courts’ authority to mess with (alter) either parent’s life continues until all children reach majority, or some other worse event intervenes, which we hope it doesn’t. Think about this when conceiving children. Er– guess that advice is not too practical, how about BEFORE conceiving children.

Parental access, commonly referred to as “visitation,” is an important right of the non-custodial parent and the child. See, Weiss v. Weiss, 52 NY2d 170.

Roughly translated — the word “parent” and “noncustodial parent” obscures the purpose of these rights (rights?) — as seen by why women like me have to write blogs like this. The switch from mother and father to “parent” is not straightforward — it’s obscuring gender bias. Even the Wikipedia definiton of “noncustodial parent” forwards reader to the US Dept. of HHS site, “Fatherhood.hhs.gov” where, after the TOP left square, which reads

2006 Initiative / TANF Reauthorization

The Deficit Reduction Act of 2005 {{See 1996 for where this originated}} provides funding of $150 million each year for healthy marriage promotion and fatherhood. Up to $50 million each year may be used for activities promoting fatherhood, such as counseling, mentoring, marriage education, enhancing relationship skills, parenting, and activities to foster economic stability.

{{well, treating ex-wives like this may send a message to women not to, ever, become an ex-wife. Your life may not survive marriage, but it’s equally unlikely to survive leaving a marriage, at least emotionally intact. So in SOME sense, pushing this, nationwide, can — like threat therapy — warn married women not to mess up..This policy, essentially, is the welfare state mentality’s answer to the welfare state mentality, if you can follow the logic there.}}

one can scroll down to

Access, Visitation, Paternity, & Child Support

About half of all children spend some part of their life apart from one or both of their parents, and most often the parent that does not live with the child is the father. The laws that cover these relationships are the responsibility of the state (Family Law), but

Yeah, a BIG BUTT…

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(Bighorn sheep charging) . . . The LAWS. . .. BUT . . . . (in contrast with the LAWS, we have a new concept, FEDERAL FUNDING to STATES to help them develop PROGRAMS….to “help.” They just want to “help”….

the Federal Government does provide states with fundingto assist in the development ofprograms that help establish paternity, collect child support, and provide non-residential parents with access to their children.

{{note — though found on “fatherrhood.hhs.gov” this refers to funding to help noncustodial PARENTS. See Dombrowski. See “rightsformothers.com.”. . . I never did see why so many people (women, in particular) fail to acknowledge that these A/V programs are related to the child support system. The federal government says they are….

OK, one more grammar review before i move back to this ruling: This program, the ACCESS VISITATIOn NONCUSTODIAL PARENT and CHILD language, as cited (years ago) on FATHERHOOD.HHS. GOV says it this way. The STATES’ LAWS . . . . BUT the Federal Funding to STates to develop programs. Laws – – — BUT, . . . . Federal Funding. Laws — BUT — Federal Funding (to counteract the laws, to “help” the laws. Well, if the Feds are helping with existing Laws, why then is the word “BUT-T-T-T-T needed to describe the system?? . . . Also, (convenientlly for this end), motherhood.gov doesn’t mention to mothers going into the courts to look here for the 2nd half of the States Laws (which they focus on), BUT > T > T > T…

I’m driving this in, because what follows here is full of legal cites, and precedent, to justify the situation. But his language will soon reveal, alienation, alienation, alienation . . . .

In a scenario where one parent is demonstrated to have interfered with the custodial rights of a parent, a number of mechanisms exist [see, Scheinkman, New York Law of Domestic Relations, Second Edition, §23.14] to aid in the enforcement of custody orders and judgments, including:

1. Criminal Sanctions, pursuant to Penal Law §135.45 and 135.50;

2. Suspension of alimony or maintenance, pursuant to Judiciary Law 750,753;

3. Tort action for custodial interference;

4. Orders of Protection, pursuant to Domestic Relations Law §240

While the most factually apparent ground to change existing custody arrangements involves physical danger, the act of alienating a child against a parent presents a nefarious form of conduct that must be met with careful consideration and immediate, comprehensive remediation by a Court (see, Zafran v. Zafran, 306 AD2d 468; Lew v. Sobel, 46 AD3d 893). A change in custody should not be permitted solely as a means for punishing a recalcitrant parent (see, Lew v. Sobel, supra), but always requires due consideration of all of the other custodial factors. See, Robert T.F. v. Rosemary F., 148 AD2d 449.

Note. I’m not checking the cites. Any attorney should. What the heck is “Judiciary law?” (above). And I’ve never heard of a TORT for custodial interference, I thought family law was out of the realm of torts. Maybe NY is different than the other coast, where I live. But, if it was the same, it would still take an indignant judge to sign an order.

I love the ‘While . . . . physical danger [See, "Girl, Interrupted" Kristin Stillman] [“phsyical danger might cause a child to die, or suffer injury, (by contrast, this language says, a far , far worse) ALIENATING A CHILD is NEFARIOUS!! and requires immediate, comprehensive remediation. {{see “DastardlyDads.blogspot.com” for what is NOT “nefarious conduct,” per judges}} I also have to “love” the judge’s dismissal of “most factually apparent ground” in favor of “punishing a recalcitrant parent.” So much for “best interests of the child” — the motived is to punish a recalcitrant parent…. I’ve never heard “recalcitrant” used of an adult before. It means, literally, to “kick back.” Merriam-Webster definition give an Antonym (opposite) as the desirable state of women in this culture, this world, and with the help of judges, precedents, Federal programs, and rulings like this, surely they will return to this Edenic state:

Good grief!!! Recalcitrant has been used (in this example) of an employee, and a youth. Well, welcome, parents, to that category! The problem with recalcitrance is, a parent becomes:

1: obstinately defiant of authority or restraint
2
a : difficult to manage or operate b : not responsive to treatment c : resistant <this subject is recalcitrant both to observation and to experiment — G. G. Simpson>

 

While mindful of the consequential future effect of this determination (see, Lauer v. City of New York, 95 NY2d 95, 100), ….

Any sentence starting with “While” followed by data, or a statement of a situation, etc., is setting up the reader to consider that data LESS important than what follows, while declaring to the reader that this author at least weighed the pros and cons, but feels that the “while” side is less important than what’s upcoming. For a great example of this, look above, and the 2006 Access Visitation program blurb doing essentiall the same thing, only in a “This BUT that format.” “access/visitation is a matter of State & family law, the FEDERAL GOVERNMENT funds programs. . . . . etc.” Here, since the part in the while section is going to be overcome, it is vaguely worded and only gets one cite, prob ably someone suing the City of NY over a disastrous custody situation result. Maybe I’ll look it up. If this was a death, and this judge referred to that death as “the consequential future effect of this determination,” what does that say about this judge’s decision-making process?

Check out this case — and how UNrelated it is , on the surface, to the divorce case here: My cites (I’m not an attorney) are not 95 NY2d 95,100 (which sounds like an opinion), but show which case was cited. The divorce here resulted from a NY Medical Examiner’s initial diagnosis as an infant death as homicide by blunt instrument head trauma. At the time, the couple was married, and put through hell, particularly the father, who was fingered for this. Later, a re-examination of the child’s brain showed a brain aneurysm. Lauer v. City of NY sued over this. At the very high risk of losing reader’s attention here, I’m going to cite the (UNpublished) opinion on-line, so we see what the 10 words preceding a Supreme Court judge’s proclamation that willful interference with a custody order raises a strong probablility of parental unfitness:

2 No. 59
Edward G. Lauer,
Respondent,
v.
City of New York, et al.,
Appellants.


2000 NY Int. 62

May 16, 2000

This opinion is uncorrected and subject to revision before publication in the New York Reports.

Julian L. Kalkstein, for appellants.
Peter James Johnson, Jr., for respondent.


KAYE, CHIEF JUDGE:

On this appeal we revisit a familiar subject: whether a member of the public can recover damages against a municipality for its employee’s negligence. Here we answer that question in the negative.

The Facts

Three-year-old Andrew Lauer died on August 7, 1993. That same day, Dr. Eddy Lilavois, a New York City Medical Examiner, performed an autopsy and prepared a report stating that the child’s death was a homicide caused by “blunt injuries” to the neck and brain. Although the report indicated that the brain was being preserved for further examination, the following day a death certificate was issued stating that Andrew’s death was a homicide. Based on the Medical Examiner’s conclusion, the police began investigating what they thought was a homicide, focusing primarily on plaintiff, Andrew’s father. Weeks later, on August 31, 1993, the Medical Examiner and a neuropathologist conducted a more detailed study of Andrew’s brain. The report, prepared in October 1993, indicated that a ruptured brain aneurysm caused the child’s death, thus contradicting the earlier conclusion. The Medical Examiner, however, failed to correct the autopsy report or death certificate, and failed to notify law enforcement authorities.

Meanwhile, the police department’s investigation into Andrew’s death continued. Some 17 months later, in March 1995, after a newspaper exposé, the autopsy findings were revised, the police investigation ceased and an amended death certificate was prepared. As a result of this incident, the City Medical Examiner who had conducted the examination resigned.

Plaintiff and his estranged wife subsequently commenced separate actions. Lisa Lauer’s action against the City of New York and Dr. Lilavois, seeking damages for intentional and negligent infliction of emotional distress, was dismissed. In affirming the dismissal, the Appellate Division held that her allegations failed to establish “that she fell within any recognized orbit of duty upon which liability may be based” (see, Lauer v City of New York, 240 AD2d 543, 544, lv denied , 91 NY2d 807). {{ALWAYS RECOGNIZE THAT “ORBIT OF DUTY ON WHICH LIBABILITY MAY BE BASED.”}}

In the present action seeking $10 million in damages against the City of New York, the Office of the Chief Medical Examiner, Dr. Lilavois and the Police Department, plaintiff alleges defamation, violation of his civil rights, and both negligent and intentional infliction of emotional distress. He claims that defendants’ conduct–including the Medical Examiner’s negligent performance of the autopsy, failure to correct the erroneous report and death certificate, and failure to disclose that Andrew’s death was not a homicide–“precipitated the destruction of [his] marriage * * * forced him to sell his home and leave his neighborhood, and caused him to become the object of public scorn, humiliation, ridicule, embarrassment, harassment and contempt throughout the City of New York.” He further alleges that he “sustained severe and debilitating emotional distress, emotional anguish, anxiety and mental suffering.”

On defendants’ motion, Supreme Court dismissed the defamation and civil rights causes of action, but allowed plaintiff to pursue his emotional distress claims. A divided Appellate Division modified Supreme Court’s order (see, 258 AD2d 92). All of the Justices agreed that the defamation and civil rights claims were properly dismissed. They also unanimously concluded that plaintiff’s intentional infliction of emotional distress claim warranted dismissal; that any causes of action based on performance of the initial autopsy were immunized as a governmental exercise of discretion; and that the Medical Examiner’s failure to correct the reports and accurately inform the authorities were “ministerial” acts. The Appellate Division divided, however, as to whether plaintiff could maintain a claim for negligent infliction of emotional distress based on those ministerial acts, a majority concluding that he could.

I don’t know if this was a custodial-father case, but the judge citing it here is TWO parents suing the city for damages on the basis of a Medical Examiner’s mistake, and failure to inform them of it. Wife was estranged at the time her appeal was she in 1993? Certainly there are more relevant cases in NY since then, however this judge cites one referring to an infant’s death, bad enough, being deemed a homicide, and tearing up the family’s subsequent decade as “consequential effect” before getting down to business, which is going to be ordering a recalcitrant, alienating ex-wife to jail. Here’s the sentence, again:

While mindful of the consequential future effect of this determination (see, Lauer v. City of New York, 95 NY2d 95, 100), ….

inasmuch as a Court’s finding of willful interference “per se raises a strong probability that the custodial parent is unfit” (see, Young v. Young, supra; Glenn v. Glenn, supra), whena pattern of alienation by the custodial parent is proven in any prior proceeding, that alienating conductmust [emphasis added] be considered and addressed by the Court in any subsequent proceeding involving custody/parental access. See, Audobon v. Audobon, 138 AD2d 658; Martin R.G. v. Ofelio G.O., 24 AD3d 305. Also, see CPLR §4213[b]; Robert T.F. v. Rosemarie F., 148 AD2d 449.

Apparently 4 cites re: alienation are given. 4 to 1, weighing in on the nefariousness of alienation, and it as a basis for action in subsequent custody/parent access proceedings. Wonder if any of those involved a woman as the injured party..

I too think that parents unable to comply with custody orders EXCEPT for good cause (like, death threats — google “Judge Lemkau,” in California, or similar cases in almost any of the 50 states). However, in my case, it meant nothing, even though I’d been repeatedly bringing this up, and myself as a custodial parent (sole physical only) was fit, and never deemed unfit, til — when complying with a court order, my kids disappeared — overnight. And no court or law enforcement (or anyone else) did anything about it. That principle haveing been now thoroughly established, no subsequent court orders were obeyed more than coincidentally, including custody/visitation. At this time, I knew nothing of these programs to help with “Access/visitation” although I specifically (a year before kids were taken) asked a judge for a safer exchange alternative. . . .. However LAUREN & TED’s court order/Stip. is so vague and overbroad as to be ridiculous. At least the part cited here.

The doctrine of res judicata bars the issue of whether alienation occurred in the subsequent change of custody hearing ordered herein. See, O’ bdoherty@chat.nyc.amlaw.corp Brian v. City of Syracuse, 54 NY2d 353, 357; Matter of Waldman v. Waldman, 47 AD3d 638; Braunstein v. Braunstein, 114 AD2d 46, 53; Town of New Windsor v. New Windsor Volunteer Ambulance Corps, Inc., 16 AD3d 403. {{HOWEVER}} Considering that parental alienation of a child from the other parent has been determined to be “an act inconsistent with the best interest of the child (Bobinson v. Bobinson, 9 AD3d 441; Stern v. Stern, 304 AD2d 649; Zafran v. Zafran, 28 AD3d 753; Zeis v. Slater, 57 AD3d 793), and that it has been proven in this contempt proceeding – – the “strong likelihood of unfitness” becomes a “factor” that must be considered in the change of custody hearing ordered herein.

Parental alienation is tied with UNFITNESS as a factor, although res judicata on alienation cannot be an issue in this custody change (as I get it). I tried to llok up “Brian v. City of Syracuse, 54 NY2d (etc.) but so far, it’s mostly this case, a slap in the face that lists the wife as the “Ex-Wife from hell” and is featured on “Parental Alienation Canada.” Father’s Rights groups are rejoicing, and someone even took out a “laurenlippe.com” website where you can see the collateral press damage. Maybe I jumped on the wrong bandwagon here, but I am reading that divorce stipulation, and it just doesn’t look fair.

Protraction or delay in parental alienation cases often serve to reinforce the offending conduct and potentially undermine any remediation that a court could fashion with appropriate therapy, parent coordination, and/or, a change in custody. See, Steinberger, Father? What Father? Parental Alienation And Its Effect on Children, NYSBA Family Law Review, Spring 2006;

{{At least this is honest, and says “Father” and not just “parent”}}

Johnston, J.R., Children of Divorce Who Reject a Parent And Refuse Visitation: Recent Research & Social Policy Implications for the Alienated Child, 38 Fam. L.Q. 757, 768-769. Under the circumstances of this case, this Court’s finding of a willful violation of an existing order of custody in the form of parental alienation requires a prompt evidentiary hearing to determine whether the children’s best interests, under the totality of the circumstances, warrant modification of the previously entered custody order. See, Friederwitzer v. Friederwitzer, 55 NY2d 89; Corigliano v. Corigliano, 297 AD2d 328; Martin R.G. v. Ofelio G.O., 24 AD3d 305; Carlin v. Carlin, 52 AD3d 559.

J.R. Johnston is probably Janet Johnston. I have a post (older) of Lundy Bancroft debating some of her assessments as failing to identify potential abuse — on this blog.

So much to say, so little time. Well, I told you, “Alienation” ain’t going anywhere!

PROCEDURAL HISTORY

By Order to Show Cause dated December 14, 2007, defendant sought an order to have the plaintiff held in contempt for her willful and deliberate failure to comply with the Stipulation of Settlement, dated October 30, 2003, in that she allegedly interfered with his right to frequent and regular visitation with and telephone access to the parties’ children, D. and N.; and by alienating the children from the defendant through numerous acts of disparaging the defendant to the children. {{Parts A 7 Parts B}} The Court granted defendant’s motion by its Amended Decision and Order dated September 9, 2008, to the extent that a hearing was ordered. This contempt hearing was held before me on May 15, 21, July 13, 15, 16, August 3, 4, 5, 6, 17, 18, 19, September 17, 2009, January 4, 5, 6, 7, 8, 11, 12, 19, February 3, and 22, 2010.

If she dished out hell, surely this scheduled was some of it back. How could a single hearing occupy so many days? Because someone can pay an attorney to be there, constantly? or two attorneys? And they put the rest of us through hell/mediation because the courts are clogged? 12 hearings in 4 months, summer 2008, then a year break (no summer vacation for THIS custodial mother with her kids), a ruling Sept. 2008 ordering a hearing and a year break. A hearing Sept. 2009, a season off court and 10 hearings in TWO months…Poor people don’t get this, but this is affecting poor people.

The parties’ Stipulation of Settlement was incorporated but not merged into the parties’ Judgment of Divorce (Stack, J.). Pursuant to the unequivocal terms of the Stipulation, she was prohibited from “alienating the children from the defendant, plac[ing] any obstacle in the way of the maintenance, love and affection of the children for the defendant,” or to “hinder, impair or prevent the growth of a close relationship between the children and their parents, respectively, or cause others to do so.” Moreover, in sharing joint legal custody of the children, she was specifically required to consult with the defendant regarding decisions affecting the children’s education, health and religion. That Stipulation also clearly provided that each of the parties was to “exert every effort to maintain free access and unhampered contact,” “to foster a feeling of affection,” and not to “do anything which may estrange the children from [the defendant] or injure the children’s opinion as to the Father which may hamper the free and natural development of the children’s love and affection for the [Defendant].”

I think most cases are set up for failure from the start. Mine was. Domestic violence precipitated the separation (no divorce action even involved. Despite this, frequent visitation (more than frequent), and so vaguely written a visitation order as to guarantee difficulties around exchanges. Joint legal custody — one cannot do “joint legal custody” with an abuser; there is no “we” anywhere in there. Case in point, the DV. Even before divorce was ever initiated we were handled as though it was just a family squabble, even though a restraining order AND kickout was granted.

Here, Ted apparently was fore-armed to protect any “emotional abuse” by how it was worded. Her own divorce stipulation had a strict prohibition on it, worded in very similar terms to a restraining order; in fact, it in effect was one. The phrase “or cause otehrs to do so,” is in protective orders. If we were a fly on the wall, and read the whole stipulation, would there be ANY prohibitions on the father? The admonition to “both” parents not to estrange the children’s opinion of the Father” is a contradiction. Why would the Father estrange his own children? That makes no sense. The stipulation “not to do ANYTHING which MAY estrange the children from (Dad) or injure their opinion of the Fatehr” — good grief. A woman is to predict their possible response to anything she does or says, at all? How can a court order a party to “foster a feeling of affection.” Define, please !!!

To sustain the defendant’s application regarding contempt, he must demonstrate that the plaintiff has violated a clear and unequivocal court order which actually defeated, impaired, impeded or prejudiced the other party’s rights (see, Great Neck v. Central, 65 AD2d 616) or were calculated to affect those rights (Stempler v. Stempler, 200 AD2d 733). The movant must meet this burden by clear and convincing evidence (Bulow v. Bulow, 121 AD2d 423). The Court may not hold a party in contempt where payment may be enforced by other enforcement procedures (Wiggins v. Wiggins, 121 Ad2d 534), unless such remedies would be an exercise in futility or ineffectual (Farkas v. Farkas, 209 AD2d 316). Upon a finding of contempt, the Court may impose a period of commitment to jail (Powers v. Powers, 86 NY2d 63) or fine, or both.

In this instance, a lawful court order, in the form of a Judgment of Divorce incorporating the parties’ stipulation of settlement, was in effect. The plaintiff was shown to have actual knowledge of its terms. Ottomanelli v. Ottomanelli, 17 AD3d 647; Freihofner v. Freihofner, 39 AD3d 465; Kawar v. Kawar, 231 AD2d 681, 682. This order of parental access was not only in effect before and during the hearing, but unsuccessful efforts were made during the course of the hearing to utilize counseling and parenting coordination to remediate the alienating conduct of the plaintiff. See, Lew v. Sobel, 46 AD3d 893. See, also, Judiciary Law §753; Massimi v. Massimi, 56 AD3d 624.

. . . .

THE COURT’S ROLE IN ADDRESSING ALIENATION

Differing “alienation” theories promoted by many public advocacy groups, as well as psychological and legal communities, have differing scientific and empirical foundations. However, interference with the non-custodial parent’s relationship with a child has always been considered in the context of a “parent’s ability to encourage the relationship between the non-custodial parent and a child,” a factor to be considered by the Court in custody and visitation/parental access determinations. See, Eschbach v. Eschbach, supra. Our Appellate Courts recognize such factor, as they have determined that the “interference with the non-custodial parent and child’s relationship is an act so inconsistent with the best interests of a child, as to, per se, raise a strong probability that the offending party is unfit to act as a custodial parent.” See, Leistner v. Leistner, 137 AD2d 499; Finn v. Finn, 176 AD2d 1132, 1133, quoting Entwistle v. Entwistle, 61 AD2d 380, 384-385, appeal dismissed 44 NY2d 851; Matter of Krebsbach v. Gallagher, 181 AD2d 363, 366; Gago v. Acevedo, 214 AD2d 565; Matter of Turner v. Turner, 260 AD2d 953, 954; Zeiz v. Slater, 57 AD2d 793.

Where, as in the instant case, there is a finding of a willful violation of a court order demonstrated by a deliberate interference with a non-custodial parent’s right to visitation/parental access, the IAS Court, as a general rule, must schedule an evidentiary hearing before making any modification of custody. See, Glenn v. Glenn, 262 AD2d 885. See, also, Entwistle v. Entwistle, 61 AD2d 380; Young v. Young, 212 AD2d 114; Matter of LeBlanc v. Morrison, 288 AD2d 768, 770, quoting Matter of Markey v. Bederian, 274 AD2d 816; Matter of David WW v. Lauren QQ, 42 AD3d 685; Goldstein v. Goldstein, 2009 N.Y. Slip Op. 08995 [Dec. 1, 2009].

. . .

“In vivid testimony, the defendant recalled how the plaintiff willfully prevented him from exercising his rights to visitation with the children from November 4, 2007 through December 21, 2007″

This is approximately one month and some weeks. It is NOTHING compared to what mothers have suffered, often for years, and often without remedy. While it’s wrong, I note that the father filed an OSC by December 14th, and got action on it quickly. I wonder, in those many, many hearings, whether Mom got to testify at all.

Here’s a paragraph of the judge judging her by her emotional affect in the courtroom, and interpreting it:

Plaintiff half-heartedly testified that she wants the children to have a relationship with the defendant. Her view of the defendant’s role was a numbing, desired nominality, evident by her actions that were without any semblance of involvement by the defendant – – notwithstanding the clear joint custodial provisions. At critical points in the cross-examination, plaintiff was noticeably off balance – – hesitating and defensive – – with answers that dovetailed to either narcissism, or, a poor grasp of the affects of her conduct. The plaintiff was dispassionate, sullen, and passively resistant to the alienating efforts of the plaintiff. ***The continued litany of instances of alienating conduct, turned repression of the defendant’s joint custodial arrangement into farce.<+> The endurance in recounting instance upon instance of alienating conduct herein, was as daunting as it was indefensible.<*>

She is wrong for being off-balance, hesitating, defensive (this is a hearing of a contempt, and protesting it is her proper stance as a litigant! Being “defensive” isn’t wrong in this situation!  And anyone might hesitate in giving an answer in court!   Particularly a mother being grilled…

However, a judge throwing around psychological interpretations and language, as if they were FACT (“answers that dovetailed to narcissism or a poor grasp of the affects of her conduct.”) — this is testimony outside his expertise.  (Unless he switched “effects” to “affects”).  He’s trying to sound psychological, and misused the words:  “Affects” characterize people, not conduct.  He’s over-reaching, and over-interpreting.  Here’s yet another evidence of “interpretation” of effect (results) as per se being evidence of a single cause, when most effects of any sort can have more than one, or multiple contributing causes:

The fact that the children were as angry as they were with the defendant in November and December, 2007, demonstrates, in my view, that efforts to alienate the children and their father were seemingly effective. The children demanded that defendant meet “their” demands before they would permit him to visit with them again. They demanded that defendant permit N. to attend F. A., that he withdraw his objection to their participation in therapy with their mother’s therapist

Is it possible that they were angry because they could not attend F.A. or wanted to participate in therapy?  While as minors, they do not get to “demand” anything of their father as a condition of visitation, this judge states that their anger is evidence per se of efforts to alienate.
I’d be sullen too, in any such hearing. But this judge holds it against her. The sentence between *** and <+> makes no sense. The litany was from the father. So, if the “litany” turned (repression of joint custody) into something, then the “litany” was the agent of making a farce. A litany is a religious term, and involves recitation.

The endurance in recounting instance upon instance of alienating conduct herein was daunting” — i.e., Poor, brave, Dad, enduring severe emotional pain by having to recount how many times his rights were disregarded.

Poor brave Dad brought the custody action; someone helped this hearing on — and on, but recounting facts is innate to bringing any action. Also, I wonder why these facts weren’t simply written out in a Declaration supporting the OSC. Why the courtroom drama? No kudos to him for having to recount his own emotional pain. The grammar goes like this, of that sentence: “The endurance . . . . . was indefensible.” Endurance is good. The situation requiring this endurance is what the judge considers indefensible. ENDURANCE — good. INDEFENSIBLE — bad. Basically, the judge is offended.

In this paragraph “reading” the mother, the judge has mis-used “affects” and “litany,” diagnosed “narcissism” (without quoting the counselors in the case, assuming one was actually qualified to diagnose, and had done so, but based on HIS reading of it) and is starting to get his words mixed up.  Maybe that’s one of his “affects.”  Selfishness is a character trait.  “Narcissism” is a different, more extreme term so  over-used, it’s almost become meaningless except to reveal a speaker who thinks him- or herself a psychiatrist.  DSM has become mainstreamed in MSM (mainstream media) and shows up in legal opinions. to lend an air of expertise or authority.

These kids will probably do OK, relative to others in similar predicaments.  I bet they are fed, and they are well-educated.  Consider (evidence of a contempt):

Another example occurred on June 13, 2009, when plaintiff quietly escorted D. from Alice Tulley Hall during the intermission, ignoring the instructions from the G. Y. Orchestra staff that everyone remain until the conclusion of the entire program. Plaintiff purported she was unaware that defendant attended this special program in Lincoln Center. Defendant, who was in attendance at the concert, was left waiting at the stage door with flowers for D. Plaintiff ignored his text messages questioning where his daughter was. The plaintiff, when confronted with the notion that she may have precipitously ushered her daughter away before her father was able to give her flowers, retorted to the Court that “it was not her responsibility to make plans for T.”

Daughter “D.” is in a youth orchestra which performed in Alice Tulley Hall/Lincoln Center.  Whatever else goes on between her parents (and stepdad) she has exposure to some other youth musicians, concertizing, and probably is able to talk with these kids as well.  She will likely go to college and have a good shot at life as an adult.  The “parental alienation” promotion was (ostensibly!) not aimed at families of this income level, though clearly emotional abuse affects everyone.  I have seen worse behavior among rich people than poor, it seems, and the specialty can be forms of emotional abuse.   . . . . In this particular incident, it seems to me that as a joint legal custodial parent, the father, being aware of this concert, might have texted the Mom — I’d like to see her afterwards, rather than just assumed he would, although certainly that was a reasonable assumption, that kids would stay.  However, as these are elementary aged kids (or were, at some point in time, there may have been any number of reasons for leaving before it was out, even despite staff instructions.).

I omitted the central narrative, including accusations of breast-fondling and CPS involvement, which was met with retaliation for reporting by CPS.

http://familycourtmatters.files.wordpress.com/2010/10/ted_rubin-momjailtimeforpa300x450.jpg?w=266

From “Parental Alienation Canada” – the ex-wife from hell

Lippe [ALLEGEDLY] often went nuclear,

launching foul-mouthed tirades at Ted Rubin in front of the girls

– calling him a “deadbeat,” “loser,” “scumbag” and “f – – – ing asshole.”

Just wanted to note:  what was the standard of proof in these hearings?  Because when facts are quoted minus the attribution, by a judge (i.e., who said them) they become facts, in effect.  Interpreting the word “deadbeat” was brought up — who paid for music lessons?  Was this a stay-at-home Mom, or a working one?

In the relationships between people to psychologize without reference to what actually happened, in its larger context, is definitely tricky ground.  In a custody switch to this Dad, is he working FT and remarried?  Who would care for them during the week if not?  Would they then lose any child support he was paying, or is she capable of putting in for it?  Did any of this make the hearing (I’d bet not).

AGAIN, my blogging here is not to say this was a nice Mom or he was a bad Dad.  She has plenty of hate mail, all over the internet, and I haven’t actually found a single positive word anywhere.  So, I took the opposing side, and wanted to know how the jail thing happened to this women, but men who do worse, and go on to murder, are sprung from jail.  Let’s get real about this system.  The reality of their initial stipulation is, it was outrageous.  that’s where the damage occurred.

 

Well, this is a 7,000 word post, and that’s enough for one post. Again — plenty of mothers are no longer seeing their kids, court order or no court order. What are our bankrupt options?

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