Saturday, March 5, 2016

Crushing Custody Clash

Knutsen v. Cegalis, 2016 VT 2

By Andrew Delaney

This opinion uses the word “heartbreaking” twice. I can’t think of a better word.

Some background is probably in order. Mom and dad have a boy who’s ten-years old. They never married and split up when the boy was only a few months old. Primary custody went to dad on the basis that he was better suited to meet the boy’s developmental needs and foster a positive relationship with mom. That decision was affirmed by the SCOV years ago. Dad has since married another woman.

The case “has a long procedural history.” For some time, there was a “week-on; week-off” schedule. In 2012, dad filed a petition for a relief-from-abuse order on the boy’s behalf based on allegations that mom and boyfriend had sexually abused the boy. Mom filed a cross-motion to modify parental rights and responsibilities. The trial court held a four-day hearing. The trial court found that dad had failed to show that mom abused the boy and denied the relief-from-abuse petition.
 
On mom’s motion, the court found that the dispute between the parents had not calmed down over the years. There was a website mom created “in which she posted intensely critical tirades about” dad. The court concluded that the boy wasn’t deliberately lying about the alleged assaults, but was trying to cope in some way with mom’s intense hatred of dad. The trial court found the statutory requisite “real, substantial, and unanticipated change in circumstances” and determined that it wasn’t in the boy’s best interests to just go back to the old schedule because the boy hadn’t seen or spoken to mom in five months. The court brought in a local psychologist to come up with a resume-contact-with-mom plan. The trial court “also emphasized the need for forensic psychiatric evaluations of parents and the child.”

After another seven days of hearings, the trial court considered what reunification-with-mom plan, if any, would be in the boy’s best interests. The trial court found that dad and stepmom saw the forensic evaluation as another opportunity to establish the abuse allegations. The psychologist met with mom and the boy. The doctor concluded that the boy’s alleged intense fear of his mom wasn’t really present. In fact after a good visit with mom, the boy was worried dad and stepmom “would be angry at him for enjoying his time with” mom.

The court found that mom was loving and caring and would never condone anyone hurting the boy. But mom also had some negative feelings that she had trouble keeping under wraps. Dad was convinced mom was “a psychopath and a sociopath” and paranoid that mom was going to kill him, his wife, or the parties’ boy. The court didn’t find these fears to be supported by any evidence. Stepmom hated mom, and the court concluded that this fueled dad’s attitude. “The court found no credible factual basis to support the child's allegations of abuse, much less to support any finding that mother was a homicidal psychopath.”

The court was remiss that it didn’t have a psych eval of stepmom. It seems stepmom did some things that weren’t in the boy’s best interests. For example, stepmom took the boy to Canada (where mom’s boyfriend lived) to try to get the boy to talk to the Ottawa police about the alleged abuse. Given the vendetta, and stepmom’s willingness to put the boy in the middle of it, the court had concerns about stepmom.

The court found that the boy “was a bright, engaging, and loving child.” Other than the allegations (which appeared to be provably false), he was mentally healthy. The court concluded that the allegations likely stemmed from the boy’s “attempt to adapt to the increasing hostilities between the two households.” Without putting it as bluntly as I will, the court found that the adults in the boy’s life had screwed with his head pretty badly.

The court concluded that the best thing was for the boy to reestablish a relationship with mom, but recognized that significant damage needed repairing. “The court ordered a reunification process to be overseen by a parent coordinator, using one reunification therapist for the entire family, with each family member having access to their own separate therapist.”

The court expressed its concerns about dad and stepmom attempting to delay the process, and opined that it was time for them to allow mom to have a relationship with the boy. “The court warned that it would not tolerate any interference by father and stepmother in rebuilding the child’s relationship with his mother.”

Mom and dad both filed motions relating to parent-child contact. Mom moved to modify and dad moved to terminate mom’s efforts to reestablish parent-child contact. Now, we finally get to the decision on appeal, which was issued in February 2015. This decision came after three days of hearings. Dad, stepmom, and the boy remained convinced the abuse happened—the allegations had expanded over time “to wide-ranging accusations that mother began assaulting the child when he was an infant and that mother intended to kill all three of them.” While there was no basis in fact, the allegations had resulted in mom’s estrangement. Mom had only seen the boy twice since 2012. The therapists had terminated the reunification efforts. The court was to try and determine what contact schedule, if any, was in the boy’s best interests. Alternatively, the court was to consider whether awarding parental rights and responsibilities to mom was in the boy’s best interests.
The boy was nine and in the fourth grade. He was well adjusted and socialized. “The child was entirely enmeshed, however, in father's belief that mother abused him, and the notion of the abuse was consistently reinforced by father and stepmother.”

“A reunification therapy team had been put in place in May 2014, and the child began therapy in July 2014.” The therapist had individual sessions with mom, dad, and stepmom. The therapist requested that no one talk with the boy about the allegations of abuse or his mother or what happened in therapy. Dad and stepmom were “desperate” not to let the boy have any contact with mom. They opined that the court had been “paid off” to order reunification.

Though the boy was happy in therapy sessions, when stepmom would come to pick him up, he’d put on a sad face. He didn’t want stepmom to know he’d been lighthearted while visiting with the therapist. After seven weeks, the therapists concluded that the boy “was deeply traumatized and that he firmly believed that his mother was going to kill him, his father, and stepmother. The child told the therapist that ‘this is all we ever talk about.’” The boy expressed frustration with “the court”—apparently representing judges, lawyers, and therapists. The boy now said mom had tried to kill him at a school play and was convinced that mom and her boyfriend wanted to kill his dad.

Dad and stepmom claimed they didn’t talk to the boy about therapy, but couldn’t explain why he’d tell the therapist that “this is all they talk about at home.” “Either they, or the child, were lying, and the court found that doubts about these parties’ credibility affected every aspect of this case.” Despite the therapists’ concerns about dad and stepmom’s interference with therapy and reunification, they weren’t going to recommend reunification with mom. Given the level of trauma observed in therapy, it really didn’t matter why the boy believed mom wanted to kill him. The therapists recommended weekly therapy, with the possibility of reunification with mom being brought up in adolescence if indicated by his therapy. Foster care wasn’t recommended because removal from his home environment could trigger serious depression. Though the therapist recommended trauma therapy in September 2014, dad didn’t make any effort to get that set up in the three months before trial.

Dad testified that he’d be willing to participate in therapy. Stepmom said she would not. She asserted that she was also a “victim” of mom. Stepmom’s attitude greatly concerned the court.

“The court found it very clear that father and stepmother were waging war against mother and making allegations of abuse that were not true.” Essentially, the boy had the idea that his mom had abused him since he was a small child pounded into his head by stepmom and dad. “The court found it difficult to imagine a more complete destruction of a parent-child relationship based on false allegations of abuse.” Mom’s expert was credible and opined that this was a case of parental alienation.

Mom had gotten help through various forms of therapy and “now appeared far more composed and organized in her presentation than she had since the very first trial many years ago.” Mom was sure that the boy would transition well if she were awarded custody.

“The court found this to be a heartbreaking case.” Though the court was convinced that dad and stepmom “were solely responsible for the child's trauma and for his utter estrangement from” mom, two therapists had opined that the boy would be at risk for severe depression or even suicide if he was forced to live with her.

The trial court believed that returning custody to mom was the right thing to do, but unfortunately, wouldn’t be in the boy’s best interests. Because the boy was adjusted to his current residence and shifting custody to mom would be a “violent disruption.” “In short, the court reasoned, if it gave custody to mother, the child would still see father and stepmother, and the prospect of regular contact with them would only perpetuate his exposure to their egregious behavior.”

The court was worried that the boy would never have a normal relationship with mom, and that severing his relationship with her based on unfounded allegations would have a negative long-term psychological effect on the boy. On the other hand, an abrupt transfer of custody to mom would have immediate negative psychological effects. And so, the court went with the parent coordinator’s recommendation to stop reunification efforts at the time. Mom was denied any parent-child contact other than letters and the like to be sent through the boy’s attorney.

Dad was ordered to immediately get the boy a child-trauma therapist, not to interfere with the boy’s therapy, and not to let stepmom interfere with the boy’s therapy. If the trauma therapist recommended it, then mom could have phone and in-person contact with the boy at the therapist’s office. Dad was directed to get into therapy and to encourage stepmom to do the same.

On or before the boy’s eleventh birthday in August 2016, if mom wasn’t already having regular visits as a result of the therapy mentioned above, office visits with mom were to resume at a therapy agency, with a goal toward reunification with mom.

Finally, the court ordered dad to pay certain costs of the litigation “finding it abundantly clear that the child’s trauma, estrangement from mother, and the colossal use of court, attorney, and guardian-ad-litem time, was due solely to father and stepmother's conduct.”

Mom appeals, arguing that the court’s findings don’t support its conclusions.

First, she notes all the negative findings with respect to dad and stepmom. She identifies a number of findings that she believes support her position that a transfer of custody to her is in the boy’s best interests. As she sees it, any “violent dislocation” pales in comparison to the “brainwashing” inflicted on the boy by dad and stepmom. She argues that the court placed too much weight on the court-appointed therapists’ recommendations and ignored her expert's recommendations.

Mom doesn’t understand the whole if-mom-gets-custody-dad-and-stepmom-will-be-awful reasoning. If that’s true, she wonders why the court couldn’t cut their visits. In other words, why would the court reward the horrible behavior by continuing the boy’s isolation from his mom? Mom is dismayed by the court’s statement that she may never have a normal relationship with her son, “and asks how the court can expect father and stepmother to cooperate with reunification at this point when they have been sternly warned not to interfere with reunification in the past to no avail.”

The SCOV agrees with the trial court “that this is truly a heartbreaking case.” Dad and stepmom “have traumatized the child and completely alienated him” from mom. The SCOV notes that due to their actions, mom has seen the boy only twice in nearly three-and-a-half years. “Their claims of abuse, which continue to expand, have been found baseless despite investigations by the Chittenden Unit for Special Investigations, the U.S. Department of Homeland Security, the Rutland Police Department, and the Department for Children and Families.” Nonetheless, dad’s brief and oral argument keep playing that song.

The SCOV notes that the question isn’t whether it’d have reached a different result, however. The trial court has broad discretion in determining what’ll serve the best interests of the child. And so the SCOV has to uphold the trial court’s findings unless they’re clearly erroneous, and the conclusion where they’re supported by the findings.

The SCOV notes that in general and under the case law, interfering with the other parent’s relationship with the child—such as what happened here—casts serious doubt on the offending parent’s fitness to be the custodial parent.

The SCOV reasons that the trial court really did focus on the child’s best interests. It didn’t matter why the boy was at risk if he was to be returned to mom; it was that the risk existed. The court-appointed therapist’s opinion was credible, and the trial court wasn’t required to consider other options posed by mom’s experts; nor was it required to explain why it didn’t.

The SCOV explains that it too was confused like mom by the trial court’s if-mom-gets-custody-dad-and-stepmom-will-be-awful reasoning. The SCOV notes that the trial court explained further, basically reasoning that dad and stepmom would be awful regardless, and the combination of the smear-mom campaign with the “violent disruption” of a transfer of custody to mom would be worse for the boy.

The SCOV reluctantly affirms “not because the father and stepmother are correct in their accusations, or to reward or endorse the course of conduct in which they have engaged, but because the trial court's judgment regarding the best interests criteria was factually based and legally correct.” The trial court considered the statutory best-interests factors and made a decision based on those factors.

Finally, the SCOV acknowledges mom’s frustration and the “distressing unfairness of being denied contact with her child for more than three years based wholly upon false accusations.” The SCOV says that mom’s “not without recourse” if dad and stepmom don’t behave.

Justice Robinson concurs “but with serious reservations” that impel her to write separately. The concurrence points out that the “parent-child relationship is a constitutionally protected liberty interest [that] is well established and uncontroversial.” Due process requires that the state prove parental unfitness by clear and convincing evidence before terminating parental rights.

“The trial court's findings in this case make it clear that mother is not by any measure unfit to parent.” The concurrence reiterates that the trial court made “no findings suggesting that mother is unfit, has neglected or abused the child, or has engaged in conduct that would warrant a termination of her parental rights.”

Ironically, the abusive behavior here falls on dad and stepmom. The concurrence points out that this kind of behavior—one parent alienating a child from the other parent—generally favors custody going to the non-offending parent.

Justice Robinson is “willing to affirm the trial court's order in this case as a temporary way station.” The trial court did its best with an impossible situation. The concurrence acknowledges that the order’s goal is to establish a framework for rebuilding a relationship with mom that’s been destroyed by dad and stepmom, without exposing the boy to more trauma with a sudden move.

Justice Robinson has serious concerns—given dad’s past behavior and his posture on appeal—that a fruitful relationship with mom will result so long as the boy continues to live with dad and stepmom. However well-intentioned the order might be, “the court's decision effectively condoned a parent's willful alienation of a child from the other parent.” The concurrence is very concerned that this decision potentially sends the wrong message.

While Justice Robinson is willing to affirm the specific, time-limited order on appeal, she would not find support for a longer deprivation of parental rights based on the findings in this case.

What do you think? Is there a correct answer here? Does this decision send the right or wrong message? Tell us in the comments. 

3 comments:

  1. The courts owe mom a better solution. What a horrible thing to reward dad and stepmom with custody, when they are the perpetrators of ALL abuse against the boy, not to mention the dastardly, hurtful and manipulative campaign they waged against his mom. I understand that the courts need to have the child's best interests in mind, but this is an unacceptable 'solution'. The dad and stepmom brainwashed, lied, and falsified...yet they get to remain a presence in the boy's life while he's denied all contact with a loving and mentally competent mother? Ridiculous.

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  2. Disgusting. Heart wrenching. There are specials places in hell for people like the dad & evil step-mom. I could go on...but I'm sick to my stomach after reading this.

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  3. So thrilled to see that you and Seven Days reported it fully and accurately. It's about time the mom and kid get a fair break.

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