The Appellate Division, First Department (Manhattan) today reversed last summer's Family Court decision that changed custody of the twin daughters of Bridget M. and John A. from the mother to the father on the basis of an alienation finding. The decision was unanimous with several concurring opinions being issued. This is the case that made national news last year when there was camera coverage of the tearful, almost hysterical, transfer of custody away from the mother, with whom the 5-year old twins had lived the entirety of their life.
NY Court Reverses Custody Order Based on Alienation
Although the Appellate Division accepted as established fact that the mother had coached the twins to make false sexual abuse allegations, the Draconian remedy of switching custody, without exploring less drastic alternatives, was too much for the appellate court.
This particilar Appellate Division, which covers New York County and Bronx County, had, in the past, issued a couple of decisions that seemed to give a certain presumptive, enhanced status to expert opinions, virtually requiring a trial judge who decided against the evaluator's recommendation to "write his or her way out of it," i.e., to justify the departure. This time the court took a markedly different direction.
The trial court in this case allowed virtually anyone with a series of credentialing letters following their name to opine as to almost every conceivable issue, not only on the ultimate best interest question but even to testify as to who was telling the truth, to serve as human lie detectors if you will.
The Appellate Division stated:
"Finally, it seems apparent, in reviewing this record, that the ultimate decision as to the key issue in this case, i.e., whether to award custody to the father because of the mother’s attempts to undermine his relationship with the children, was made on the basis of the experts’ testimony. Courts should be ever mindful that, while the forensic expert may offer guidance and inform, the ultimate determination on any such issue is a judicial function, not one for the expert.