Dimitrea Walsh v. Michael Walsh (2011)

MEMORANDUM OF DECISION

This matter comes before the court as a postjudgment motion to modify the custody orders concerning the parties' minor child, William, whose date of birth is February 28, 1998.   The plaintiff, Dimitrea Walsh, and the defendant, Michael Walsh, were divorced by the court, Pinkus, J., on July 14, 2010, but they had resolved the parenting issues earlier.   The first parenting plan was filed March 19, 2010 (No. 135) and it was amended in the early part of June of that same year (No. 139).   Those parenting plans were incorporated into the judgment of dissolution.

Although both parenting plans called for joint custody, it became clear that there were serious problems regarding custody issues.   The June plan named David Israel, a psychologist, as the therapist for the family, expanding his prior role of co-parenting counselor.   Additionally, the plaintiff was to begin treatment with a psychiatrist.   The treatment was expected to include medication as well as therapy.

About one month after the dissolution was finalized, the defendant filed a motion for contempt alleging the plaintiff had not complied with the parenting agreements.   The record also indicates that he filed a motion to modify custody to sole legal custody in him (No. 154).   Approximately one year after the second parenting plan was adopted and eleven months after the dissolution was finalized, the parties reached a new agreement regarding parenting issues.   That agreement (No. 163), dated June 15, 2011, made reference to the motion for modification as well as a full psychological evaluation of the parties and the child completed by Sidney Horowitz ¹ in its preamble.   The agreement also called for a continuation of the joint custody arrangement but with additional therapeutic support to assist the parents to achieve the schedule envisioned by the earlier parenting agreements.   The parties continued to be unsuccessful at joint parenting, and on September 6, 2011, they asked the court to refer the matter to the regional family trial docket and to appoint an attorney (AMC) to represent the minor child.   That agreement was approved by the court (No. 164).

The defendant filed another motion for contempt against the plaintiff on October 6, 2011 (No. 168) and the plaintiff filed an objection to said motion on October 21, 2011, challenging those allegations (No. 169).   The operative motions before this court, therefore, are the defendant's motion to modify custody (No. 154), his motion for contempt (No. 168) and the objection to that motion by the plaintiff (No. 169).

The trial covered a period of five days and produced the equivalent of four full days of testimony.   Counsel for both sides, as well as the guardian ad litem (GAL) and the AMC, are to be commended for an efficient presentation of their respective cases.   All counsel were professional in their demeanor, not only to the court but to one another and to the witnesses.   It was a pleasure to work with such competent counsel.

The defendant's case was based on his allegation that his son had been alienated against him by the plaintiff through both intentional and unintentional behavior, making it impossible for him to effectively parent their child.   The plaintiff's defense was that the child did not like spending time with his father because he feared him.   The plaintiff further argued that she did not create that fear within the child;  it was representative of his true feelings about this father.

In situations such as this matter, the truth invariably is found somewhere between the polar opposite positions of the parties.   The concept asserted by the defendant, which is most often referred to as parental alienation, most likely originated in the 1970s when it was described as a pathological alignment.   It became more well known with the work of Dr. Richard Gardner.   In 1987, Gardner published a book on parental alienation syndrom in which he described this behavior as follows:  “Typically, the child viciously vilifies one of the parents and idealizes the other.   This is not caused simply by parental brainwashing of the child.   Rather the children themselves contribute their own scenarios in support of the favored parent.”   Richard Gardner, The Parental Alienation Syndrome:  A Guide for Mental Health and Legal Professionals 2 (2d Ed.1998).   Initially, Gardner's work was heavily criticized.   He was accused of being anti-women because he found that the vast majority of alienating parents were mothers and because his works were not peer reviewed or based on empirical research.   Also, the concept of this being a “syndrome” was not accepted by the professional organizations and it is not found in the mental health diagnostic manuals such as DSM–IV.   See, e.g., John E.B. Myers, A Mother's Nightmare–Incest:  A Practical Guide for Parents and Professionals, 135–38 (1997).

Most psychologists today would probably accept the definition found in Wikipedia as being generally accurate.   That popular website describes it the following way:  “Parental alienation is a social dynamic, generally occurring due to divorce or separation when a child expresses unjustified hatred or unreasonably strong dislike of one parent, making access by the rejected parent difficult or impossible.   These feelings may be influenced by negative comments by the other parent and by the characteristics, such as lack of empathy and warmth, of the rejected parent.   The term does not apply in cases of actual child abuse, when the child rejects the abusing parent to protect themselves.”

As the Wikipedia definition suggests, although the vilification of the alienated parent is typically extreme and unwarranted, that alienated parent can, and often does, contribute to the problem by isolating himself from the family perhaps in protection from the attack he or she perceives.   That is most likely the situation in the Walsh family dynamic.   The testimony of the majority of professionals involved with this family was that William had been alienated from his father and that alienation was in the moderate to severe range.   The GAL characterized William as the “foot soldier” in the parental dispute during her testimony.   The court found the testimony of Dr. Mayer, William's therapist for most of 2007, Dr. Israel, Dr. Horowitz and the GAL to be persuasive and convincing.²  The question of intent, however, remains much less clear.   The court believes that it is likely that the alienation in this family would exist without the plaintiff intentionally creating such a result.   The fact that the minor child's issues with high levels of anxiety can be dated back to at least the beginning of 2007, more than two years before the complaint was filed, is supportive of that opinion.

William perceives his father through his mother's eyes, which creates a negative reaction in the boy that he cannot truly articulate, although the AMC, the GAL and all the therapists with whom he has worked describe the boy as being very bright and articulate.³  Such a deficiency is not untypical in alienation situations because the dislike of the alienated parent is not reasonable nor is it based on accurate historical information.   With the single exception of the plaintiff's own therapist, those same individuals note that the plaintiff was never successful in articulating her issues with her former husband.   Dr. Horowitz, who administered the psychological testing to the parents as a part of the court ordered evaluation, found that she attempted to portray herself in a manner that would produce an enhanced view of her as a person and a parent.   That inclination, Dr. Horowitz noted, is not uncommon in custody evaluations and the testing incorporates measures that attempt to discover and measure such an effort.   He found that the plaintiff placed in the ninety—ninth percentile in the “impression management” scale and above the sixtieth percentile in the “self deception” scale.   Interestingly, when he re-administered the same tests about six months later as part of his update to the original evaluation, the plaintiff scored in the ninety-eighth percentile and the seventy-fifth percentile, respectively.   His conclusion was that “her responses should be looked at with some degree of caution” and that, over the lengthy period of time he did the evaluation and the update, “she even more strongly believes how she views her internal feelings and external events than she had before.” ⁴  (AMC Exhibit # 1, p. 9).   In reviewing the plaintiff's perception of the parent/child relationships in this case, Dr. Horowitz testified that the degree of invalidity on the test questions “suggests that the data is not worth interpreting.”  (Id., p. 12).

During the parent and child observation portion of the testing and clinical interviews, Dr. Horowitz noted that the plaintiff vocalized the correct things in support of the father and his relationship with William.   Those vocalizations aside, his observation was that:  “[T]here was a clear undercurrent that his mother is all good and his father is all bad.   And despite the comments that Ms. Karageorge–Walsh made in support of a father/son relationship (which she made while looking at me and not looking at her son) they appeared to have been somewhat ingenuous and hallow.”  (Emphasis in original).  (Id., p. 13).

What role did the defendant play in the development of the alienation?   The plaintiff alleges that he was an emotionally abusive spouse and parent.   Although it appears true that the marital relationship was troubled and unhappy for a long period prior to the divorce, there is little or no credible evidence that the defendant's parenting was abusive.   It was, however, certainly different than the plaintiff's parenting.   As she explained when describing his parenting style, “he was always a cop.   He was a cop on the job and at home.”   For whatever differences there might have been between the parents prior to the separation and divorce, and for whatever lack of parenting skills the defendant may have displayed, the professionals in this case credit him with an eagerness to learn and to improve as a parent.   Dr. Israel testified that he was amazed by the patience and restraint the defendant showed in their three way sessions—father, son and therapist—and his efforts to continue to support his son and his son's relationship with the plaintiff.   Dr. Horowitz noted that his testing of the defendant indicated that he had moderate levels of both “state” and “trait” anger and that he possessed a good filter system for that anger;  this was in stark contrast to the plaintiff's testing in this area.   In her testimony, the GAL indicated at the very end of the trial that she believed the defendant would make good decisions for the minor child if he were granted sole legal custody.   Such testimony from the GAL, someone who has worked extensively with both parents and the minor child for almost a year, is a meaningful perspective for the court to consider.

Having found that the father and son relationship has been damaged by the alienation of the child toward the defendant, the next logical step is to determine what the court must do to correct the situation.   The expert opinions of Dr. Horowitz and Dr. Israel recommended a period of complete isolation in which the child would have absolutely no contact with the plaintiff for approximately thirty days, followed by a longer period of supervised contact in a therapeutic setting.   They opined that such a drastic step was necessary to break the enmeshment between mother and son and allow the boy to develop independent and healthier views of his father.   Unfortunately, they also both acknowledged that there was significant risk in such an approach given the degree of the boy's alienation as well as the fact that William is almost fourteen years old.   A boy of that age might well act out either inwardly by hurting himself or outwardly by running away or participating in dangerous and rebellious behavior.   In an effort to make the isolation perhaps more palatable, the idea of a residential school was presented in the hope that it would create a more neutral environment for William and seem less harsh a change.   All agreed that he liked school and learning;  perhaps the boarding school alternative might appeal to him and help him become more independent of his mother and her negative views of his father.

As a practical solution, boarding school presents several immediate problems.   There is a significant cost for boarding school and we are presently in the middle of an academic year making placement both questionable and perhaps disruptive to William's education.   Due to the fact that the parties live in relatively close proximity, the complete isolation of the boy from his mother would be a very difficult, if not impossible, thing to achieve.   The AMC pointed out on behalf of his client that William is very connected to his community, his church and his extended maternal family.   The GAL testified that William's very clearly stated preference would be to remain with his mother and to continue to participate in his church activities.   All of those factors need to be balanced against the dire warnings of the psychologists that William presently is an at risk child and that risk would simply increase if the current relationships are not corrected.

One relatively recent aspect of this case perhaps is suggestive of an alternative resolution to the present dilemma.   Testimony related that, after the recent special masters' pretrial, William contacted his father and re-engaged in regular contact.   Since Thanksgiving, that contact has expanded to regular weekly overnight visits.   Without attributing any negative aspects or Machiavellian cunning to that most abrupt change in behavior, the parties have pointed to that development as a possibly less drastic alternative modification in the custody orders.   The suggestion has been made that by allocating a greater portion of the week to the defendant along with the ongoing therapeutic intervention, the father/son relationship might be strengthened without the need for the period of isolation.

In devising its orders, the court must look to the criteria of the various statutes dealing with custody of minor children.  General Statutes § 46b–56(b) directs the court to enter custody orders “that serve the best interests of the child and provide the child with active and consistent involvement of both parents commensurate with their abilities and interests.”   That statute goes on to enumerate sixteen separate factors for the court to consider in devising such orders.   Some of those factors that seem most pertinent to this case would include “the capacity and the disposition of the parents to understand and meet the needs of the child ․ the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent ․ any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute ․ [and] the mental ․ health of all individuals involved ․ General Statutes § 46b–56(c).

The “best interest of the child” standard is the ultimate basis of a court's custody decision.  Knock v. Knock, 224 Conn. 776, 789, 621 A.2d 267 (1993).   The gender of the parents is not considered by the court and there is no automatic presumption favoring the mother as custodial parent.  Presutti v. Presutti, 181 Conn. 622, 627–28, 436 A.2d 299 (1980);  Hurtado v. Hurtado, 14 Conn.App. 296, 301–02, 541 A.2d 873 (1988).   Either parent can be awarded custody and the issue is not which parent was the better custodian in the past but which is the better custodian now.”  Yontef v. Yontef, 185 Conn. 275, 283, 440 A.2d 899 (1981).

Section 46b–56 also directs the court to take into consideration “the informed preferences of the child.”  General Statutes § 46b–56(c)(3).   What constitutes an “informed preference” is left to the discretion of the court.   Case law holds that the court may consider the preferences of the child “if [the child] is of sufficient age and capable of forming an intelligent preference;” Knock v. Knock, supra, 224 Conn. 788;  but age alone is not the final factor in the analysis.   Often a child might express a clear preference for the less capable parent, a preference dictated by factors other than the child's best interests.   Often a child, for a variety of reasons, is not capable of understanding at that time what is in his or her best interests.

Public policy, as expressed most clearly in General Statutes § 46b–56a, favors an order of joint custody whenever such an order is requested by the parents and would be in the best interests of the child.   These parents have always agreed in the past to exercise joint legal custody of William, but that has not been a success for either the parents or, more importantly, for the child.   Clearly, this is a case where the best interests of the child dictate a change in the custody arrangements.

Having carefully reviewed all of the evidence entered during the trial including the testimony of the many witnesses presented by both sides, the court makes the following findings:

A. The best interests of the minor child standard, William, born February 28, 1998, requires a modification of the present custodial orders and the defendant has demonstrated that to the court;

B. The plaintiff has exercised an unhealthy and negative influence on the minor child's perception of the defendant, which has endangered the father/son relationship and placed the mental health of the minor child at risk;

C. The minor child has very strong ties to his school, his church and his maternal extended family, and it would be in his best interests to preserve those ties if at all possible;

D. Strong and intense individual psychological support for the minor child, the plaintiff and the defendant will be required for the successful implementation of any new court orders as will similar support for the family in whatever new configuration is created by those orders;

E. Neither party offered evidence or argument in support of their respective pleadings, namely No. 168, the defendant's motion for contempt, and No. 169, the plaintiff's objection to said motion.

Accordingly, after a careful application of the court's findings to the statutory criteria as presented in the General Statutes, the court

HEREBY ORDERS

1. The defendant's Motion to Modify (No. 154) is granted;

2. That sole legal custody of the minor child William Walsh, born February 28, 1998, is granted to the defendant;

3. The plaintiff shall have parental access to the minor child every Saturday from 7:00 p.m. to return to school on the following Monday;

3.1 In the event that there is no school on Monday for whatever reason, the plaintiff shall return the child to the defendant at 9:00 a.m.;

3.2 The defendant shall provide all transportation for the minor child with the sole exception of his return to school on Monday mornings;

3.3 The plaintiff may also have access to the minor child for significant church activities and religious observations that might fall outside of the regularly scheduled access;

3.3.1 Nothing in this order shall be interpreted as prohibiting or discouraging the defendant from bringing the child to such activities if he should so choose;

3.3.2 The defendant shall have the ability to determine what constitutes “significant church activities and religious observations” for the purposes of these orders;

4. During her parental access time with the minor child, the plaintiff shall not discuss any issues related to this case including but not limited to the schedule, the reason for the change in custody or any issues that she may have with the defendant;

5. The plaintiff shall at all times in the presence of the minor child be respectful of the defendant as a parent and a person and she shall absolutely refrain from making negative or disparaging remarks about him or his extended family;

6. The plaintiff shall take all reasonable and necessary steps to assure that no third parties or extended family members make any such comments as described in paragraphs four and five above;

7. All such questions that may be raised of that nature by the minor child shall be referred to the AMC, the GAL or the family therapist referred to below;

8. The plaintiff shall continue in therapy with Dr. M. Deborah Gruen until released by that therapist or further order of the court;

9. The minor child shall remain in therapy with Dr. Peter Tolk until released by that therapist or further order of the court;

10. The defendant shall remain in therapy with his current mental health professional until released by that therapist or further order of the court;

11. The GAL, in consultation with the AMC and Dr. Horowitz, shall recommend to the parents an appropriate therapist to assist the plaintiff, the defendant and the minor child to adjust to the custodial changes and said therapy shall commence as soon as possible but not later than twenty-one (21) days after the filing of this memorandum of decision;

11.1 That therapist shall have full access to this memorandum of decision, the child's therapists—both past and present, the plaintiff's therapist, the defendant's therapist and the report issued by Dr. Horowitz;

11.2 All parties and the GAL shall issue the appropriate releases to effectuate such access;

11.3 The parties shall cooperate with said therapist including participating in sessions when asked, bringing the minor child to sessions and following all reasonable recommendations of the therapist including the frequency of the sessions;

11.4 The cost of said therapy is to be shared equally pending the filing of a motion by either party for some other allocation of the expense;

11.5 Said therapy shall continue until released by that therapist or further order of the court;

12. Until further order of the court, the plaintiff shall not attend any medical appointments concerning the minor child unless specifically requested to do so by the defendant nor shall she consult with any physician treating the minor child;

13. Until further order of the court, the plaintiff shall not attend any parent-teacher conferences nor visit the child's school unless:

13.1 To attend a special school activity such as a play or concert in which the child is participating;

13.2 To drop the child off on Monday mornings;

13.3 The defendant specifically requests that she participate or attend some specific event;

13.4 This order does not restrict in any way the plaintiff's right to have access to the child's school and medical records;

14. The defendant shall promptly inform the plaintiff, in writing, of any medical and/or dental treatment the minor child shall receive as well as his academic progress in school;

15. The defendant may file a motion for child support and any support order obliging him to pay support is hereby vacated;

16. All prior orders relating to parental access and child related financial issues are hereby vacated including orders dealing with holiday and vacation schedules;

16.1 The sole exception being orders relating to postsecondary education for the minor child and medical insurance coverage;

16.2 All other orders not specifically modified or vacated by this memorandum of decision remain in full force and effect;

17. The court shall review the necessity of these orders and consider modifications at a hearing to be held ninety days from the date of this memorandum of decision.   The standing order regarding trial management shall apply to that hearing;

18. The court dismisses docket items No. 168, the defendant's motion for contempt, and No. 169, the plaintiff's objection to said motion for contempt for failure to prosecute.

ADELMAN, J.

FOOTNOTES

FN1. The parties agreed to the evaluation and entered their agreement as an order of the court on September 2, 2010 (No. 155).   They also had previously sought and received an appointment of a guardian ad litem for the minor child (No. 161) on December 18, 2010..  FN1. The parties agreed to the evaluation and entered their agreement as an order of the court on September 2, 2010 (No. 155).   They also had previously sought and received an appointment of a guardian ad litem for the minor child (No. 161) on December 18, 2010.

FN2. The child's current therapist did not testify.   The GAL declined to waive the child's privilege in order to protect the ongoing therapeutic relationship.   The court also heard the testimony of M. Deborah Gruen, the plaintiff's therapist.   That testimony was most interesting for many reasons, not the least of which was because she had been recommended to the mother by Dr. Horowitz, but testified that his evaluation was wrong in her opinion.   She opined that plaintiff's perceptions of the defendant were not false;  rather, they were based on actual events that occurred during the marriage.   The court did not find her testimony persuasive..  FN2. The child's current therapist did not testify.   The GAL declined to waive the child's privilege in order to protect the ongoing therapeutic relationship.   The court also heard the testimony of M. Deborah Gruen, the plaintiff's therapist.   That testimony was most interesting for many reasons, not the least of which was because she had been recommended to the mother by Dr. Horowitz, but testified that his evaluation was wrong in her opinion.   She opined that plaintiff's perceptions of the defendant were not false;  rather, they were based on actual events that occurred during the marriage.   The court did not find her testimony persuasive.

FN3. Dr. Israel testified that after forty sessions working with the defendant and son toward reunification, he could not find one reason to substantiate William's fear of his father, which was expressed in a very charged and emotional manner.   Dr. Mayer, William's therapist for a good part of 2007, testified that he could not find a cause for the problems between father and son;  he could never identify a pattern to explain the problem..  FN3. Dr. Israel testified that after forty sessions working with the defendant and son toward reunification, he could not find one reason to substantiate William's fear of his father, which was expressed in a very charged and emotional manner.   Dr. Mayer, William's therapist for a good part of 2007, testified that he could not find a cause for the problems between father and son;  he could never identify a pattern to explain the problem.

FN4. It was of interest to the court that in another effort to not unfairly prejudice individuals taking these psychological tests in custody evaluation, the normative scales are based on responses not of the general public, but rather of other parents in similar custody battle situations..  FN4. It was of interest to the court that in another effort to not unfairly prejudice individuals taking these psychological tests in custody evaluation, the normative scales are based on responses not of the general public, but rather of other parents in similar custody battle situations.

Adelman, Gerard I., J.