Desmond v. Desmond

134 Misc. 2d 62, 509 N.Y.S.2d 979, 1986 N.Y. Misc. LEXIS 3058
CourtNew York City Family Court
DecidedOctober 29, 1986
StatusPublished
Cited by2 cases

This text of 134 Misc. 2d 62 (Desmond v. Desmond) is published on Counsel Stack Legal Research, covering New York City Family Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Desmond v. Desmond, 134 Misc. 2d 62, 509 N.Y.S.2d 979, 1986 N.Y. Misc. LEXIS 3058 (N.Y. Super. Ct. 1986).

Opinion

OPINION OF THE COURT

George D. Marlow, J.

This custody dispute presents two questions which to date have received little judicial attention. The first involves the appropriateness of an in camera interview with children outside of the confines of a courthouse. The second issue is whether, in a custody case, the legal position of a repeatedly and severely abused spouse should be considered weakened as a result of her abrupt, out-of-State move with the children. Although the answer may seem self-evident, this precise issue has not been judicially treated in any extensive manner. And, while the within custody award in favor of respondent mother could be based exclusively upon a consideration of the usual "current best interests” test (Friederwitzer v Friederwitzer, 55 NY2d 89), the instant facts present this court with an occasion to deal also with one of the many issues raised by the entire subject of domestic violence. Indeed, the court could limit its focus solely to the conventional comparison of the two available environments, but there is another pressing concern that merits discussion, namely, whether the phrases "exceptional circumstances” and "pressing concerns” can encompass severe and long-standing abuse as an arguable basis for a long-distance relocation. (Morgano v Morgano, 119 AD2d 734.)

This opinion follows a four-day custody trial initiated by a petition filed by William Desmond, age 31, the father of two children: Diane, born June 8, 1973, and William Arthur, born August 1, 1979. Respondent mother, Jane Desmond, age 30, married petitioner in Bronx County on June 16, 1976.

The evidence consisted of the testimony of both parents, the paternal grandmother, petitioner’s sister-in-law to be, petitioner’s friend, and various records and documents. In addition, the court conducted an in camera interview with the children pursuant to Matter of Lincoln v Lincoln (24 NY2d 270). The court, as it has in the past, decided sua sponte to conduct the interview with the children, in the presence of a court reporter, outside of the courtroom in a local park. Such a procedure has been sometimes employed by this court based upon the belief that virtually all children, who are unfortunate enough to be embroiled in a custody contest between their two beloved but warring parents, are necessar[64]*64ily in some form of emotional distress.2 Therefore, it goes without saying that a Judge ought to approach these youngsters with less than the usual formality and in a calm, peaceful, and nonintimidating environment like a sparsely populated park or a child’s own home. Such surroundings can lessen anxiety, encourage children to be more at ease and perhaps more open, and smooth some of the piercing edge of a memory that is likely to be sad and hurtful. If it accomplishes nothing else, this method can provide children with a remembrance of a court which tried hard to focus quietly and intensely upon their individual needs and wishes.

The parties had their older child out of wedlock when both were teen-agers. They were married about three years later. Their marriage was, to say the least, stormy and often unhappy. It was accompanied by outbursts of rage by both of them; repeated acts of physical, sexual and emotional abuse by petitioner against respondent (some of which he partially admitted); drug use by the mother which ended several years ago; very frequent (at times daily) drug use by the father, which by his own admission continued at least until the start of this trial, and much of it while the children were in or near the household; a nine-month separation from 1977 to 1978 during which petitioner fathered a child by another woman; a flagrant disregard by petitioner of his parental duty to provide financial support for his children;3 an hysterical, secret escape by respondent from Dutchess County to Hampton, Virginia, with the children; an occasional and inappropriate use of corporal punishment inflicted upon the children by petitioner, and to a lesser, but also inappropriate, extent by respondent; an outrageous, destructive and illegal future offer of unlawful drugs by petitioner to his daughter which offer he vainly attempts to justify with reasoning too irrational and absurd to be worth describing herein; and a degree of mutual anger shared by these parents which, in varying degrees, has completely undermined their ability to deal civilly with each other in a manner likely to promote their children’s best interests.

The court, as an example of the mother’s inappropriate conduct toward the father, notes that after she fled the State [65]*65with the children she secreted them from their father for almost two months. While her reasons for leaving her husband are clear and more than understandable, there was no justification for her depriving the children of any contact with their father for such a long period of time.

On the other hand, the court was most disturbed by, inter alia, petitioner’s description of two conversations he had with his son and daughter. In one he admitted drug use to them, failed to discourage them from engaging in such conduct, and, indeed, importuned them to keep his continuing illegal conduct secret. In another he deliberately berated his daughter because she made positive statements to him about her life with her mother. Moreover, during his testimony, he displayed no remorse for his insensitivity toward his daughter’s feelings. Finally, the court finds that petitioner has so severely abused his wife physically, emotionally,4 and sexually that there is little hope that their relationship can, for the foreseeable future, be an umbrella of security necessary for these children’s emotional peace.

This court’s findings of wrongdoing by petitioner are not intended to ignore some of respondent’s parental misconduct. While she quite likely can offer some explanation or justification for her actions, they nonetheless did not promote the needed harmony with petitioner. For example, since August 1985, she has not sufficiently communicated with the father concerning the children’s performance in school, their activities, and their health care. She failed to react appropriately against petitioner’s illegal drug use in the marital home. Finally, there is insufficient evidence that respondent has actively encouraged the children to call, write or visit their father since she left with them in August 1985.

Petitioner urges that he is entitled to custody because respondent ran away with the children and hid them in Virginia for several weeks. While that behavior cannot be condoned — notwithstanding the reasons given — this court cannot ignore or be insensitive to the circumstances preceding respondent’s desperate act. Considering the limited options available to respondent in her emotional, physical and financial circumstances in August 1985, this court would deem it unconscionable to award petitioner custody based on this one episode.

[66]*66While in many cases a sudden, long-distance move might precipitate an award of custody to the parent left behind, the instant situation does not justify such a harsh result. This is so not only because this respondent is clearly the more capable custodian, but also because the court finds that there exist exceptional circumstances which completely militate against any ruling which would penalize this mother in any way for her clandestine and abrupt relocation.

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Cite This Page — Counsel Stack

Bluebook (online)
134 Misc. 2d 62, 509 N.Y.S.2d 979, 1986 N.Y. Misc. LEXIS 3058, Counsel Stack Legal Research, https://law.counselstack.com/opinion/desmond-v-desmond-nycfamct-1986.