Thursday, January 17, 2008

The Court Report
By Richard Blassberg

Judge Giacomo Brings Care And Compassion To the Bench

Warnock v. Warnock
Orange County Supreme Court, Goshen, NY

Judge William Giacomo Presiding

Friday, Jan. 4th, Plaintiff Marc Warnock, represented by Attorney Clifford Kleinbaum, and Defendant Suzanne Stephans, formerly Suzanne
Warnock, represented by Attorney Sandra C. Mattessich, of Legal Services Of The Hudson Valley, together with Court-appointed Law Guardian Attorney Therese Malach, representing the three Warnock children, ages 12, 81/2 and 71/2, appeared before State Supreme Court Justice William Giacomo, with regard to a Motion by the Plaintiff to Modify Visitation.

The parties, who separated some five years ago when Mr. Warnock left the marital home, were divorced in 2004. At the time of their divorce, each parent was granted joint custody with the mother retaining primary residential custody. In April 2007, the father, Mr. Warnock, brought the mother to Court, seeking custody modification, after she, her fiance, and her children, moved less than 50 miles from their prior residence in Westchester, to a condo in Danbury, Connecticut, a move that Mr. Warnock had been notified of many weeks in advance.

In the course of the trial, there were allegations that the mother was attempting to “alienate the father”. Judge Giacomo’s law clerk prepared a very lengthy brief suggesting that the mother had anger management problems, and was in need of therapy, specifically geared to, and focused on, the problem that one Dr. Harris, a forensic mental health evaluator, had alleged was somehow connected to attempts to alienate the children from their father.

As a result of the brief submitted by Law Clerk Barry Swersky, and the recommendations of Dr. Harris, Judge Giacomo, who had spoken with the Warnock children at length, having commented in open court with reference to the care they had been receiving living under their mother’s residential custody, said, “Somebody must be doing something right,” proceeded, nevertheless, to remove the children from their mother’s residential custody, granting sole custody and decision-making to their father, and ordered that the mother be seen by a therapist and that the children see one as well.

Before opening the hearing, Judge Giacomo asked if anyone would mind if matters were discussed in chambers rather than in open court. Suzanne Stephans voiced her objection to that arrangement and the Judge complied with her wishes.

Giacomo then opened by saying, “It pains me to see you again. I had a feeling, after the trial, I would be seeing you.” The Judge then called upon the attorney for the Plaintiff, Clifford Kleinbaum, to state his client’s position. Kleinbaum opened with, “We want to terminate, or else supervise, visitation. She’s got a problem she won’t admit. We must have supervised visitation, period. Her therapist says she (the therapist) does not deal with these issues with her.”

Mr. Kleinbaum appeared upset with Suzanne Stephans’ therapist because she does not believe that her client is suffering from an anger management problem, but instead acknowledges her anger and her feelings of depression as normal and necessary responses to having lost all custody of and decision-making in her childrens’ lives as the result of actions taken by the Court.

Judge Giacomo commented to the Defendant, “You belong in therapy, and you are going to be.” At that point, Law Guardian Therese Malach, spoke up, stating, “I believe Ms. Stephans is in therapy.” Giacomo responded, “ That crystallizes the problem.” The Judge then called upon the Plaintiff’s attorney, Mr. Kleinbaum, to enumerate his demands. Kleinbaum said, “I need to investigate the therapy. We believe the mother should have supervised visitation. And, we want Dr. Harris reappointed.” Judge Giacomo then declared, “I do have a concern that Mrs. Warnock gets the right therapy. The only way I can deal with this is to get a forensic evaluation.” He then proceeded to review the issues that he believed needed to be dealt with:

• The nature of the therapy the mother was receiving;
• Allegations lodged against the Plaintiff Father with Westchester Child Protective Services;
• The mother’s request for additional time with her children on Sunday nights;
• The need to have the children seen by a new therapist since the father fired the one they were seeing for six months because she corresponded directly with the mother and the Court.

Giacomo then ordered, “Both parties will pay 50 percent of the cost of the forensic evaluation with a 60-day limit to receive the report.” He then admonished both parents “not to discuss matters with the kids.”

Attorney Mattessich informed the Court, “Your Honor, my client is on the verge of bankruptcy, and will never be able to pay for the forensic evaluation.” Kleinbaum quickly broke in, “The Defendant has a habit of manipulating the situation, just like she is doing now.”
Therese Malach then asked the Court, “Will I need to make a motion to receive payment?” Attorney Mattessich then brought up the mother’s need for an additional hour on Tuesdays with the children because of religious instruction. Giacomo quickly granted the request, pushing the time to return the children to their father from 7pm to 8pm.

The Defendant, Suzanne Stephans, at that point spoke directly to Judge Giacomo, telling him, “I object to Dr. Harris.” Giacomo responded, “Dr. Harris has previous experience with your family’s history.” The mother came right back with, “Why does it have to be a private forensic examiner?” Giacomo then said, “One thing I’m not going to do is retry the case from the beginning.”

Stephans then said, “My children need a voice in this matter. My 12-year old daughter is stuttering!” She went on to tell the Court that her children had been out of therapy for several weeks since their father, the Plaintiff, fired their therapist and that he has refused to tell her who the new therapist is. Judge Giacomo, at that point, turned to Marc Warnock and asked, “Who is the childrens’ therapist? I want their mother to know. She has a right to know.”

The Plaintiff either didn’t want to reveal the therapist’s name or genuinely didn’t remember it, because he never stated it. Mr. Kleinbaum, attempting to divert attention in that poignant moment then broke in with, “It’s the Defendant’s continued manipulation that we are
dealing with. You can see it here today.” Giacomo then turned to the Law Guardian, asking, “How are the children doing?”

Malach who, by her own admission, has only seen the children twice, the last time in October, said, “I don’t think they are doing that well. I believe if you asked Olivia (the 12-year-old daughter) she would tell you she wants to be with her mother. I think there is some parentifying going on here.” Giacomo then asked, “How about Olivia’s stuttering?”

Malach, hesitating for a moment, responded, “Olivia has stuttered with me. It is my sense that they have been spoken to about me in advance. The therapist doesn’t see Mrs. Warnock as an angry person and does not see her as suffering with an anger problem.” The Judge then declared, “In my decision there has been no loss of chil-dren. My aim is that you each have equal time with the children.” The mother then responded, “That might be your aim, Your Honor, but it’s not the Plaintiff’s.”

Giacomo then expressed his concern over the fact that the mother never got her second week of vacation with the children. Following a discussion of another matter involving the Plaintiff and Child Protective Services, Giacomo remarked, “We have three lovely kids. I know that; I spent a lot of time speaking with them.”

As the hearing wound down the issue of the mother, having brought the children to a Baptist Church, and the reported resistance to that by their father, was resolved by the Judge, who declared, “The kids should go to Church.” He proceeded to ask Mr. Warnock, “Do you have any objection to the kids going to the Baptist Church?”

Marc Warnock indicated he did not.


Analysis:

As Judge Giacomo said at the outset of the hearing, he had a feeling, after their trial last spring, that he would be seeing the Plaintiff and the Defendant again. Perhaps his instincts back then about the children and the individual “who must have been doing something right,” were superior to the voluminous brief presented by his Law Clerk and some of the forensics included and relied upon that brought about his counter-intuitive decision to switch residential custody, and furthermore, to grant sole custody to the father, the parent who, after all, reportedly abandoned the marital home more than five years ago.

Having said that, one does not get the impression that this Judge is anything less than very concerned about the welfare and well-being of the three “lovely children” involved. Nor does one get the impression that having once decided to switch the parent who provides residential custody, given enough evidence and reasonable argument, that he would not necessarily do the same again, reverting it to the original arrangement.

Toward a better understanding of conditions as they presently exist, Giacomo has called for forensic re-evaluations to assist him in his deliberations. In any event, the Judge did not seem inclined to be stampeded into creating any unnecessary further hardship upon the Defendant Mother as with supervised visitation, etc., run out several times for consideration by Mr. Kleinbaum. We are confident that Judge William Giacomo, because he is very personally concerned about the Warnock children, and is working to be fair to each parent, will come to a right decision when all the facts are in and every side, including the children, has had their say.