Child Custody Decision

8/4/2019 Child Custody Decision

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x Index No. 22460 1THE STATE OF NEW YORK, ex relDAVID WEPRIN, on behalf ofSTEVEN AARON WEPRIN, lAS PART 5

Petitioner,-against-

R OS EL YN W EP RI N,Respondent.

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BRUCE McM. WRIGHT, J.Palinurus has written in The Unquiet Grave that the end of

lov1ng is to end love and the two young protagonists in this veatious combat juxtapose bitter emotions. The hostility betweethis divorced couple appears to have had seemingly tragic consequences for their son, whose problems will doubtless need theattention of experts for some time to come.

Petitioner appears to have commenced th,js r ather useless pceeding more out of detestation for his ex-wife than love and ging concern for the best interests, emotional and physical welfof his son. While testifying that respondent deprived him of cordered visitation rights, he has failed to persuade the courtrespondent was wrong when she insisted that some visitation shonot be had outside the child's home because of the little boy'

.health.


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.La,=, son of t:he part:i.es, not: yet: t:wo years of age, has de-veloped some sleep-wake problems and has doubtless been indelib-1y affected by the anger and acrimony generated between hisparents when they are together. Respondent has had grave misgivingabout the child's welfare when the latter is taken away from therespondent's New Jersey home by the petitioner. She testified thatoften, young Steven is returned with a diaper rash and he weepshysterically. During portions of her testimony, respondent soughtto demonstrate that petitioner was inept in fastening pampers and,occasionally, the sticking portions of pampers were stuck to thec hild's skin.

Before respondent moved to New Jersey, she swore that when pe-titioner would return Steven to the apartment where respondent thenresided with her mother, he would sometimes leave the baby in thelobby with a doorman who was said to have gone about his regularchores, without attending to Steven. There were other descrip-tions of petitioner's conduct that painted petitioner in a most un-flattering light. Impatient with his son's sleeping habits, pe-titioner was described as often arriving for visitation only tofind the child asleep. Heedless of the child's comfort and rest,he would nevertheless insist on taking the child away. He wasquoted as saying that he could not wait until his son ~~woke, sincethat would diminish his visitation time.

Respondent testified. and it was unrefuted, that, even in thec:1dest weather and over respondent's protests, petitioner would insist on taking the little boy, when he was but a few months old,out into the most frigid temperatures.

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xhibit 0 Exhibit E Exhibit F


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pressive witness, was called by respondent. Although she was deeupset when she learned that her conversations with respondent hadbeen taped without her knowledge, she came across as a candid anful witness, answering questions with a terse economy not charactistic of lawyers testifying. Her observations of petitioner resuin the conclusion made by her that petitioner yielded easily totration, especially when not having his own way and probably needsome kind of supervision when with Steven." She once stated to trespondent that, "The sad thing is that David is fighting you instead of thinking of the baby's welfare." She further describedtitioner as "argumentative," and like a little child who cannotwith certain situations. Calling the difficulties between the pahere very stressful for Steven, she concluded that petitioner~chiconcern is not for the child, but for himself.

Her testimony has been weighed in the light of her admissithat some of the things she said to responden~ when they were aloand she was unaware that her remarks were being recorded, were sain an effort to boost respondent's morale. Still, her testimonypeared to be fairly even handed. She expressed the view, for exathat respondent seems to be overly protective where Steven is concerned and that both of the parties are self-centered and self-orented, and obsessed with litigation to the detriment of Steven.

A child psychiatrist testified that petitioner should notvisitation away from ~~e mother's home at this critical time in h


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Petitioner exhibited a heedless attitude concerning the besinterests and welfare of his son for an extended period of time.For example, although he knew respondent was living in a series ofone room hotels and with her mother in a small studio apartment, hnevertheless remained in what has been described as a large one-beroom apartment at 30 Park Avenue. One result is that visitation hbeen made awkward and difficult for him, since respondent ultimatefound a suitable apartment in New Je~sey, near where she works.

Petitioner's heedlessness was further exhibited by his condin refusing to pay any support to respondent or for Steven, for anextended period of time. He attributes that default and his refusto vacate the Park Avenue apartment to instructions 1 ~ rec eived frhis counsel. This, of course, is a paltry excuse for not supportian infant he says he loves and says much more about petitioner thait does about his lawyers.

Respondent has taped some of petitioner's conversation dur-ing periods of visitation. The excerpts played for the court, re-veal both parties in strident and hostile voice. Those excerpts clirgely be discounted as not being quite as one-sided as respondenwould like to conclude. She knew she was taping and was doubtlesscautious about her own remarks, some of which could have been baitof the petitioner. Despite her knowledge of the taping, an:gry debels could be detected in-her voice.

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During the first few sessions of the hearing on petitioner'swrit, petitioner was almost impossible to control. There were ver-bal interruptions and hostile gestures and comments and the court wascompelled to request of petitioner's counsel, that he control hisclient. Despite remonstrations from both the court and counsel, pe-titioner did not abate his conduct until the last two sessions. Itwas curious that a man would obey his counsel to the deprivati~n ofhis child's decent and comfortable housing, but would not obey hiscounsel's injunction to control himself in court.

Petitioner revealed himself as extremely tempremental, witha short fuse. He refuses to recognize his son's sleep-wake problemsthat could have a long-term effect upon the child. He has kept thechild out and up until as late as ten o'clock at night. He has ar-gued about his visitation having to abide the child's breast feedingor sleeping. Apparently, neither of the parties can toJ~rate thepresence of the other and the court was exposed to testimony aboutpetitioner arriving at meal time for his son and, instead of waitinguntil he could be fed, he simply took him out to his car to eat. Thatit developed, was a minor disaster, for the food was spilled and offpetitioner sped to New York where, he said, the child was then fed.

In one incident of obsessive behavior, when Steven fell asleepin petitioner's arID?, he refused to place the child in his crib, butsimply continued to hold it. On another occasion, he rushed into the

,toilet with the child and refused to allow respondent in or to comeout and respondent was compelled to call the police before petitionerwould exit, although the bathroom was said to be cold.


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____ -~ =c>~r-c ceep1y concerned about the-apparenof petitioner in being so l~;surely about moving from the Park Ave- \nue apartment, something he finally did after respondent has relocatlto New Jersey. Respondent testified without contradiction that pe- ;

,titioner's father is counsel to the Lefrak Organization and could haeasily arranged an apartment for petitioner. Or, petitioner couldhave gone to the three bedroom apartment of his parents. That he dilnot, shocks the conscience of the court when petitioner knew the one-room conditions under which respondent and his son were then living.

Petitioner testified to a wide ranging catalogue of business,political and social commitments that impose upon him an extremelybusy schedule. That schedule makes it difficult for Petitioner al-ways to arrive for scheduled visitation on time. Respondent, never-theless, appears to have been flexible and considerate about allowingpetitioner to make up missed visits. On some occasions, however, heseemed vexed when respondent did not keep the child awake until pe-t it io ne r a rr iv ed .

It was also shocking to hear that petitioner earns in excessof $64,000.00 a year and still refused for an extended period of timetender support for his child. Both parties have exhibited the arro-gance of sovereignty in asserting their claims to their child, asthough the little boy is a thing at an auction p~esided over by thecourt. Emotionally, it seems that the lad has oeen sliced in halfand without any parental wisdom. It seems clear that the child hasa number of problems. If the parties have not been the origin ofthose profound and uifficult problems, their conduct has certainlyexacerbated them. The centerpiece of a tug-of-war in wh i .ch Steven

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cally. when returned by his father from a visit outside the mother'shome. So frayed is the warlike relationship between the parents thwhat appeared to be a diaper rash on Steven, is attributed by hismother to his father's ineptitude in ch~nging pampers.

A Dr. New, who testified that he specializes in child psychtry, stated that visits away from the custodial home are now harmfulto the child, mostly by reason of his sleep-wake problems. He appeastill to be host to such problems. Despite this expert analysis byDr. New and a letter from a Dr. Halkin, delineating some of the chilproblems, the petitioner prays for weekend visitation, every otherFriday away from the custodial parent until 7:30 P.M. Sunday, as welas on Wednesdays from 6:00 to 8:30 P. M. in the child's home "on thecondition that the mother leave the apartment for that duration."Suggested, is a kind of eviction of the mother from her own home,while the father remains there with Steven.

Understandably, respondent finds such a suggestion unacceptapointing to an occasion when she left petitioner alone in her apart-ment, only to discover that he had invaded h~r most private and persnal possessions. On alternating weekends, petitioner also asks forseven hours away from the child's home, as well as on two other weekdays, with the right to change days upon 72 hours notice. Also sougare rights to visit on major national holidays and certain religiousobservance days. Cited in support of the away-from-home visits arethe remarks of Dr. Halkin, who has noticed difficulties in the in-homvisits.

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After seeing the two contestants at close rangeof some weeks. it is obvious that there will be difficultiesthem whenever they are near each other. I beg them both to considerthe long-term effects upon their child and admonish them to controltheir personal animosity. one for the other, in the presence of littSteven. If they do not, it is certain that they will infect Stevenwith such deep-seated emotional and psychological problems that hewill need the help of analysts and other healers of the spirit forthe rest of his life. Reaching for a cheerful note in his Bleak HOllCharles Dickens, says that the youth time of a boy should be a timeof easy and comfortable exultation, a revel in love and warmth:

"You are a human boy, my young friend.A human boy. 0 glorious to be a human boy! . ..o running stream of sparkling joyTo be a soaring human boy!"

And, of course, the same excla{med paean should apply to adaughter as well. The point, however, has nothing to do with gende~l

The mercurial temperand seignorial pretensions of the petitioner must be placed under cctrol. The queenly attitude of the respondent, as though she is the

and everything to do with emotional security.

sole arbiter of Steven's welfare, must be diluted with sharing, nomatter her feelings for the child's fa there Discussions of thebest interest and welfare of Steven, must take place in a calm andthoughtful atmosphere and harsh anger and yelling at each other, ifnot totally abated, should never occur in the presence of Steven.If both parties truly love their son, these monitions must be honor~

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This case has been assigned to Mr. Justice Burton S. Sherman.It is before me on an interim basis as a result of a summertimehappenstance. That justice should make any and all permanent direc-tives affecting the couple and their child. It is one of the tra-gedies of human frailty that the part~es here, once husband and wife,and the parents of a small child, should come to strangers to havetheir most intimate concerns ruled upon. Because they are unable orunwilling, it is ordered that all visitation by the petitioner toSteven shall occur at the mother's home, for three hours each Sunday,except for such times as respondent may be on vacation away from thehome. If the parties cannot agree on which three hours, then thosetimes shall be from 3:00 P. M. to 6:00 P. M.

If petitioner arrives for visitation while the child is asleep,or is being fed, he must not interfere with either occurrence andmust wait until the feeding is completed, or the child awakens, ifhe is sleeping. His visitation time shall be e~tended, in such cases,to the extent that he must wait for Steven to be available.

The justice to whom this case is assigned will determine any long-term visitation arrangements and whether any should be away from therespondent's home at this time. As noted, this order is a temporaryone only anq is made subject to whatever decisions will be made byMr. J us ti ce S he rm an .

Dated: November 20, 1986.

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Child Custody Decision

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