Eli v. Eli

159 Misc. 2d 974
CourtNew York City Family Court
DecidedNovember 9, 1993
StatusPublished
Cited by4 cases

This text of 159 Misc. 2d 974 (Eli v. Eli) 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
Eli v. Eli, 159 Misc. 2d 974 (N.Y. Super. Ct. 1993).

Opinion

OPINION OF THE COURT

Jeffry H. Gallet, J.

The father having withdrawn his application for custody of the child, the only matter before me at this time is the father’s application for extensive, overnight visitation with the child, which application is supported by the Law Guardian. The mother opposes any overnight visitation with the father and moves for an order of supervised visitation, away from the father’s home.

This matter was hotly contested with 14 witnesses testifying over more than 40 trial days and more than 80 exhibits offered in evidence.

THE LAW — VISITATION

At the crux of this case is the mother’s allegation that the father sexually abused his child. Clearly, if she is able to sustain that allegation, visitation can be suspended or severely limited. (Nacson v Nacson, 166 AD2d 510 [2d Dept 1990]; see also, De La Torre v De La Torre, 183 AD2d 744 [2d Dept 1992]; B. v B., 184 AD2d 609 [2d Dept 1992]; Schlessel v Schlessel, 75 AD2d 869 [2d Dept 1980].)

Where a particular circumstance exists making unsupervised visitation undesirable, supervised visitation has been held not to be a deprivation of meaningful access to the child by the noncustodial parent. (Lightbourne v Lightbourne, 179 AD2d 562 [1st Dept 1992].) However, where a special circumstance does not exist, and there is hostility between the parents, it is required that meaningful visitation be away from the custodial parent. (Matter of Schack v Schack, 98 AD2d 802 [2d Dept 1983].)

EVIDENCE — BEHAVIORAL AND PSYCHOLOGICAL

No physical evidence of sexual abuse was offered nor did the child, who is four years old, testify. All of the evidence concerning sexual abuse came from hearsay recitations of the child’s statements, descriptions of her behavior and expert testimony. Indeed, four experts, two psychologists and two social workers, testified. Before considering that testimony, it [976]*976is crucial that the evidentiary framework in which it is to be considered be established.

"Child abuse is one of the most difficult crimes to detect and prosecute, in large part because there often are no witnesses except the victim.” (Pennsylvania v Ritchie, 480 US 39, 60 [1987].) Many child sexual abuse cases involve children who cannot be sworn as witnesses. They are either too young to understand what it is to testify under oath, or lack the ability to recall, report or evaluate the events in question. There is an unusually high incidence of expert testimony in these cases. New York, like most jurisdictions, recognizes a hearsay exception for a child’s out-of-court report of sexual abuse, but requires corroboration of the child’s statements. (Family Ct Act § 1046 [a] [vi].) That exception, which normally applies only to child protective proceedings, is applicable to sexual abuse allegations made in custody cases. (Matter of Le Favour v Koch, 124 AD2d 903 [3d Dept 1986], lv denied 69 NY2d 605 [1987]; Matter of Albert G. v Denise B., 181 AD2d 732 [2d Dept 1992].) However, a child’s hearsay statement of sexual abuse must be corroborated. (Matter of Nicole V., 71 NY2d 112 [1987].) In this case only behavioral evidence was offered to corroborate the child’s out-of-court, unsworn statements.

It must be noted that behavioral evidence, albeit not tangible, is no less real than physical evidence. It is subject to the same criteria for admission as physical evidence. For example, a proper diagnosis of mental illness is equal in evidentiary weight to a proper diagnosis of physical illness or injury.

To illustrate, if a four-year-old child appears in a hospital emergency room with a slash wound on her shoulder and she tells the emergency room physician that her father cut her with a razor, the physician may testify to the child’s statement and that the wound was consistent with a razor cut. Similarly, if a child tells a mental health expert that she was sexually abused by her father, and the expert diagnoses her as suffering from a recognized mental disease which could be caused by trauma, the mental health expert may testify to the statement, to the diagnosis, and also that the mental illness was consistent with sexual abuse.

In neither example would the expert witness be able to confirm the father’s culpability. In both examples the expert opinion would buttress the child’s statement. It would prove that something had happened to the child, since both the slash wound and the mental disorder were caused by trauma of some sort.

[977]*977Less conclusive evidence of physical or behavioral injury would also be admissible. In the case of the slash wound, the court would accept an opinion based on the witnesses’ observations of scarring, residual pain, restricted arm movement and other less conclusive evidence of a slash wound. Likewise, less than perfect evidence is acceptable as behavioral testimony in child sexual abuse cases, with the fact that it is less than conclusive affecting its weight rather than its admissibility.

EVIDENCE — VALIDATION

The most common type of expert testimony received in child sexual abuse cases is what is known as validation testimony. That term, although now generally accepted, is misleading. The "validator” validates nothing. Validation testimony is no more than expert psychiatric or psychological evidence of a child’s mental illness or unusual behavioral manifestation, which would be consistent with sexual abuse. It would be error to treat it otherwise. In fact, were it not for the possibility of confusion with the old "corroboration” requirement in rape cases, it would be far more accurate for the court’s purposes to refer to these witnesses as corroborators rather than validators, because the latter term implies approval of the genuineness of the child’s claim, not merely recognition of consistency with a certain behavioral pattern.

While, in a treatment context, a validator is required to make a determination whether he or she believes the allegations, the determination is made based upon objective observations measured against concrete guidelines; the purpose of the validation process is to aid in clinical decisions for the purpose of intervention and therapy. The validator as witness does not give a personal opinion as to whether the abuse occurred. This witness relates the behavioral indicators observed in the child to those recognized as displayed by children who have been sexually abused. It is for the Judge to decide whether the abuse occurred.

EVALUATING EXPERT TESTIMONY

In this case, I heard two psychologists, Dr. April Kuchuk and Dr. Sylvan Schaffer, and two social workers, Ms. Harriet Plaskow and Ms. Barbara Pichler. The threshold issue is how to weigh the evidence they presented, since these experts disagreed.

Determining what weight to assign to expert testimony in [978]*978child sexual abuse cases is frequently more difficult than the issue of qualifying witnesses. Certainly, the opinion of a psychologist as to the interpretation and administration of standardized tests would have more weight than that of a psychiatrist. Conversely, a psychiatrist’s opinion as to psychotropic medication would carry more weight than that of a psychologist. Beyond the obvious, we must analyze what opinion is being elicited from whom.

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Cite This Page — Counsel Stack

Bluebook (online)
159 Misc. 2d 974, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eli-v-eli-nycfamct-1993.