Although Ms. Farrow consumed much of Satchel's attention, and did not foster a relationship with his father, there is no credible evidence to suggest that she desired to exclude Mr. Allen. Mr. Allen's attention to Dylan left him with less time and patience for Satchel. Dr. Coates attempted to teach Mr. Allen how to interact with Satchel. She encouraged him to be more understanding of his son when Satchel ignored him or acted bored with his gifts. Apparently, success in this area was limited.
In 1991, in the presence of Ms. Farrow and Dylan, Mr. Allen stood next to Satchel's bed, as he did every morning. Satchel screamed at him to go away. When Mr. Allen refused to leave. Satchel kicked him. Mr. Allen grabbed Satchel's leg, started to twist it. Ms. Farrow testified that Mr. Allen said "I'm going to break your fucking leg." Ms. Farrow intervened and separated Mr. Allen from Satchel. Dylan told the Connecticut State Police about this incident.
That Mr. Allen now wants to spend more time with Satchel is commendable. If sincere, he should be encouraged to do so, but only under conditions that promote Satchel's well being.
E) Moses Farrow
Mr. Allen's interactions with Moses appear to have been superficial and more a response to Moses' desire for a father— in a family where Mr. Previn was the father of the other six children—than an authentic effort to develop a relationship with the child. When Moses asked, in 1984, if Mr. Allen would be his father, he said "sure" but for years did nothing to make that a reality.
They spent time playing baseball, chess and fishing. Mr. Allen encouraged Moses to play the clarinet. There is no evidence, however, that Mr. Allen used any of their shared areas of interest as a foundation upon which to develop a deeper relationship with his son. What little he offered—a baseball catch, some games of chess, adoption papers—was enough to encourage Moses to dream of more, but insufficient to justify a claim for custody. :
After learning of his father's affair with his sister, Moses handed to Mr. Allen a letter that he had written. It states:
. . . you can't force me to live with you. . . . You have done a horrible, unforgivable, needy, ugly, stupid thing . . . about seeing me for lunch, you can just forget about that ... we didn't do anything wrong . . . AU you did is spoil the little ones, Dylan and Satchel. . . . Every one knows not to have an affair with your son's sister ... I don't consider you my father anymore. It was a great feeling having a father, but you smashed that feeling and dream with a single act. / HOPE YOU ARE PROUD TO CRUSH YOUR SON'S BREAK
Mr. Allen responded to this letter by attempting to wrest custody of Moses from his mother. His rationale is that the letter was generated by Ms. Farrow. Moses told Dr. Brodzin-
sky that he wrote the letter and that he did not intend for it to be seen by his mother.
CUSTODY
Section 240(1) of the Domestic Relations Law states that in a custody dispute, the court must "give such direction . . . as . . . justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child."
The case law of this state has made clear that the governing consideration is the best interests of the child. Eschhach v. Esch-bach, 56 NY2d 167 (1982); Eriederwitzer v. Eriederwitzer, 55 NY2d 89 (1982).
The initial custodial arrangement is critically important. "Priority, not as an absolute but as a weighty factor, should, m the absence of extraordinary circumstances, be accorded to the first custody awarded in litigation or by voluntary agreement." Nehra v. Uhlar, 43 NY2d 242, 251 (1977).
"[W]hen children have been living with one parent for a long period of time and the parties have previously agreed that custody shall remain in that parent, their agreement should prevail and custody should be continued unless it is demonstrated that the custodial parent is unfit or perhaps less fit (citations omitted)." Martin v. Martin, 74 AD2d 419, 426 (4th Dept 1980).
After considering Ms. Farrow's position as the sole caretaker of the children, the satisfactory fashion in which she has fiilfilled that fianction, the parties' pre-litigation acceptance that she continue in that capacity, and Mr. Allen's serious parental inadequacies, it is clear that the best interests of the children will be served by their continued custody with Ms. Farrow.
APPENDIX 337
VISITATION
Visitation, like custody, is governed by a consideration of the best interests of the child. Miriam R. v. Arthur D.R., 85 AD2d 624 (2d Dept 1981). Absent proof to the contrary, the law presumes that visitation is in the child's best interests. Wise V. Del Toro, 122 AD2d 714 (1st Dept 1986). The denial of visitation to a noncustodial parent must be accompanied by compelling reasons and substantial evidence that visitation is detrimental to the child's welfare. Matter of Tarrugia Children, 106 AD2d 293 (1st Dept 1984); Cowan v. Menqa, 178 AD2d I02I (4th Dept 1991). If the noncustodial parent is a ht person and there are no extraordinary circumstances, there should be reasonable visitation. Hotze v. Hotze, 57 AD2d 85 (4th Dept 1977), appeal denied 42 NY2d 805.
The overriding consideration is the child's welfare rather than any supposed right of the parent. Weiss v. Weiss, 52 NY2d 170, 174-5 (1981); Hotze v. Hotze, supra at 87. Visitation should be denied where it may be inimical to the child's welfare by producing serious emotional strain or disturbance. Hotze V. Hotze, supra at 88; see also Miriam R. v. Arthur D.R., supra; cf., State ex rel. HK. v. M.S., 187 AD2d 50 (1st Dept 1993).
This trial included the observations and opinions of more mental health workers than is common to most custody litigation. The parties apparently agreed with Dr. Herman's conclusion that another battery of forensic psychological evaluations would not have been in the children's best interests and would have added little to the available information. Accordingly, none was ordered.
The common theme of the testimony by the mental health witnesses is that Mr. Allen has inflicted serious damage on the children and that healing is necessary. Because, as Dr. Brodzin-sky and Dr. Herman observed, this family is in an uncharted
therapeutic area, where the course is uncertain and the benefits unknown, the visitation structure that will best promote the healing process and safeguard the children is elusive. What is clear is that Mr. Allen's lack of judgment, insight and impulse control make normal noncustodial visitation with Dylan and Satchel too risky to the children's well-being to be permitted at this time.
A) Dylan
Mr. Allen's request for immediate visitation with Dylan is denied. It is unclear whether Mr. Allen will ever develop the insight and judgment necessary for him to relate to Dylan appropriately. According to Dr. Brodzinsky, even if Dylan was not sexually abused, she feels victimized by her father's relationship with her sister. Dylan has recently begun treatment with a new therapist. Now that this trial is concluded, she is entitled to the time and space necessary to create a protective environment that will promote the therapeutic process. A significant goal of that therapy is to encourage her to fijlfill her individual potential, including the resiliance to deal with Mr. Allen in a manner which is not injurious to her.
The therapist witnesses agree that Mr. Allen may be able to serve a positive role in Dylan's therapy. Dr. Brodzinsky emphasized that because Dylan is quite fragile and more negatively affected by stress than the average child, she should visit with Mr. Allen only within a therapeutic context. This fionc-tion, he said, should be undertaken by someone other than Dylan's treating therapist. Unless it interferes with Dylan's individual treatment or is inconsistent with her welfare, this process is to be initiated within six months. A further review of visitation will be considered only after we are able to evaluate the progress of Dylan's therapy.
B) Satchel
Mr. Allen's request for extended and unsupervised visitation with Satchel is denied. He has been visiting regularly with Satchel, under supervised conditions, with the consent of Ms. Farrow. I do not believe that Ms. Farrow has discouraged Satchel's visitation with Mr. Allen or that she has, except for restricting visitation, interfered with Satchel's relationship with his father.
&n
bsp; Although, absent exceptional circumstances, a non-custodial parent should not be denied meaningful access to a child, "supervised visitation is not a deprivation to meaningful access." Ltghthourne v. Lighhthourne, 179 AD2d 562 (1st Dept 1992).
I do not condition visitation out of concern for Satchel's physical safety. My caution is the product of Mr. Allen's demonstrated inability to understand the impact that his words and deeds have upon the emotional well being of his children.
I believe that Mr. Allen will use Satchel in an attempt to gain information about Dylan and to insinuate himself into her good graces. I believe that Mr. Allen will, if unsupervised, attempt to turn Satchel against the other members of his family. I believe Mr. Allen to be desirous of introducing Soon-Yi into the visitation arrangement without concern for the effect on Satchel, Soon-Yi or the other members of the Farrow family. In short, I believe Mr. Allen to be so self-absorbed, untrustworthy and insensitive, that he should not be permitted to see Satchel without appropriate professional supervision until Mr. Allen demonstrates that supervision is no longer necessary. The supervisor should be someone who is acceptable to both parents, who will be familiarized with the history of this family and who is willing to remain in that capacity for a reasonable period of time. Visitation shall be of two hours' duration, tliree times weekly, and modifiable by agreement of the parties.
C) Moses
Under the circumstances of this case, giving respect and credence to Ms. Farrow's appreciation of her son's sensitivity and intelligence, as confirmed by Dr. Brodzinsky, I will not require this fifteen-year-old child to visit with his father if he does not wish to do so.
If Moses can be helped by seeing Mr. Allen under conditions in which Moses will not be overwhelmed, then I believe that Ms. Farrow should and will promote such interaction. I hope that Moses wiU come to understand that the fear of demons often cannot be dispelled without first confronting them.
COUNSEL FEES
Ms. Farrow's application for counsel fees is granted. Mr. Allen compounded the pain that he inflicted upon the Farrow family by bringing this frivolous petition for custody of Dylan, Satchel and Moses.
Domestic Relations Law §237(b) provides that upon an application for custody or visitation, the court may direct a parent to pay the counsel fees of the other parent "as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties."
Ms. Farrow admits to a substantial net worth, although she is not nearly as wealthy as Mr. Allen. Clearly, she is able to absorb the cost of this litigation, although it has been extraordinarily expensive. However, "[ijndigency is not a prerequisite to an award of counsel fees (citation omitted). Rather, in exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions." DeCahrera v.
Cabrera-Rosete, 70 NYZd R79 881 (1987). Because Mr. Allen's position had no merit, he will bear the entire financial burden of this litigation. If the parties are unable to agree on Ms. Farrow's reasonable counsel fees, a hearing will be conducted for that purpose.
Settle judgment. DATED: June 7, 1993.
J. S. C.
IS IlOv
absorb the cost v dinarily expensive, to an award of com cising its discretion should review the L gether with all the o-include the relative n
What falls away : a memoir Page 32
