Litigation

Where a father engages in parental alienation and improper communication with the subject child, the court may modify the parties' custody and visitation agreement. Posporelis v. Posporelis, 500025, Supreme Court of the State of New York, Appellate Division, Third Department, 41 A.D.3d 986, 838 N.Y.S.2d 681, June 14, 2007.

The parties had a child together in 1995 and separated in 2000. In 2002, the parties entered into an oral stipulation on the record in court that, inter alia, resolved the issues of custody and parenting time. Prior to entering into the stipulation, an independent forensic evaluator concluded that the father had a 'pathological and inappropriate' relationship with the child of the parties and that the father was alienating the child from the mother. Under the stipulation, the parties agreed to share legal and physical custody of the child, and that the father would engage in counseling for three months. However, if after the three-month period, the counselor concluded that the father had not made progress with his emotional issues, then the mother would retain primary physical custody and the father would have weekly parenting time. The stipulation was thereafter reduced to writing as a part of the parties' stipulation of settlement which was incorporated, but did not merge into a judgment of divorce. Thereafter, the mother moved, by notice of motion, that the judgment of divorce be modified to provide her with sole legal and physical custody of the child. She cited, inter alia, that the father had failed to make progress with his counseling, that he continued his efforts to alienate the child from the mother. The court granted the mother's motion and awarded the father supervised visitation. It held that the mother was able to establish that the father had not improved his behavior and had not progressed positively with his emotional issues.