Submissions on Respondent H.N.J.’s Motion in Limine Notice of Motion in Limine; Affirmation in Support; Exhibits 1 Second Affirmation in Support of In Limine Motion; Exhibits 2 Second Notice of Motion in Limine; Affirmation in Support; Exhibits 3 Affirmation in Opposition by the Attorney for the Child; Exhibits 4 Respondent’s Reply Affirmation 5 PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. DECISION AND ORDER Upon the foregoing papers and for the reasons set forth below, the motion by respondent H.N.J. (“the father”) to preclude the Attorney for the Child from admitting into evidence at trial his Department of Veterans Affairs (“VA”) medical records (covering a ten year period), Administration for Children’s Services (“ACS”) records (not involving the subject children), and the unsworn reports of a licensed social worker for observation and evaluation visits between the father and the subject children, is granted in part and denied in part. BACKGROUND Petitioner T.C.N. (“the mother”) and the father were married in 2001 and have two children of the marriage: A.N. (d.o.b.: XX/XX/XX) and I.N. (d.o.b.: XX/XX/XX). On November 24, 2009, the court entered a Final Order of Support (the “FOS”), directing the father, inter alia, to pay child support for the children in the sum of $550 per month through the Support Collection Unit (“SCU”). In 2015, the father commenced a divorce action in Supreme Court, Erie County. On May 28, 2015, the court, upon the mother’s default, entered a Judgment of Divorce (the “Divorce Judgment”) which: dissolved the parties’ marriage; awarded the mother custody of the children; granted the father “reasonable rights of visitation with the subject children away from the custodial residence”; and directed the father to pay child support at the rate of $550 per month, in accordance with the FOS. The mother did not move to vacate her default, and neither party appealed the Divorce Judgment. This child support proceeding involves three petitions, to wit: (1) the mother’s main petition, filed on May 15, 2015, to enforce the FOS; (2) the father’s petition, filed on September 21, 2015, for a downward modification of his support obligation based upon a change in circumstances; and (3) the mother’s petition, filed on December 9, 2015, for an upward modification of the FOS. After five years of litigation, including several motions, this matter is now ready to be set down for trial. The sole issue to be tried before this Court is whether, during the period from May 28, 2015 to September 21, 2015, the mother actively interfered with the father’s visitation rights such that the father’s child support obligation should be suspended.1 The Attorney for the Children (the “AFC”), argues that the father’s own conduct, not that of the mother, caused the rift in his relationship with his sons, and their consequent desire to see him only in a supervised setting. Similarly, the mother denies any interference and claims that the father failed and refused to visit with the children. At issue on the instant motion is the scope of documents admissible at the trial. The AFC seeks to introduce: (1) excerpted pages from the father’s VA Medical Records covering the period from 2009-2019; (2) ACS records for a 2017 incident involving the father’s other children (unrelated to the mother); and (3) the 2016 reports of Diane Hessemann, LMSW, for the three visits between the father and his sons that she observed in a separate visitation proceeding, which was dismissed as withdrawn without prejudice in March of 2017. The father now moves to preclude the introduction of the AFC’s proffered documents upon the grounds of, inter alia, improper form (lack of CPLR 4518 certifications), relevance, and hearsay. The AFC opposes the motion. The mother did not submit any responsive papers. PROCEDURAL HISTORY and TRIAL ISSUE The following undisputed facts provide necessary framework for the trial issue, and context on this evidentiary motion. In 2012 and again in 2013, the father sought a downward modification of the FOS upon the grounds that, respectively, the parties were living together, and that his income decreased. He did not allege in either of those proceedings that his support obligation should be suspended because the mother prevented him from visiting with his sons. The father also did not raise, in the divorce action, parental alienation as a defense to his $550 per month support obligation. Indeed, the father did not commence a custody/visitation proceeding in any court between November 24, 2009 and 2015, in which he sought visitation with his sons and/or alleged that the mother interfered with his parental access. It was not until June 19, 2015, in response to the mother’s instant support petition, that the father alleged, for the first time, that the mother would not let him see the children. Three months later, on September 21, 2015, the father sought a downward modification of his support obligation based upon an alleged decrease in income and increase in expenses. The father made no mention of the mother’s alleged deliberate interference with his visitation in the September petition. However, the father did allege that the mother’s refusal to let him see the children amounted to a substantial change in circumstances in his: (1) December 8, 2015 petition to modify the visitation provision of the Divorce Judgment (the “Modification Petition”), so as to provide him with bi-weekly and holiday visitation (assigned to Judge Dean Kusakabe); and (2) his January 15, 2016 petition for a downward modification of his support obligation. On February 22, 2016, the Support Magistrate dismissed the father’s January 15, 2016 downward modification petition as “duplicative” of his September 21, 2015 petition. As far as this Court can tell, neither the Support Magistrate nor Judge Kusakabe issued any orders conclusively determining whether the father’s frustration of visitation argument is a defense to the mother’s May 2015 petition, or an affirmative claim on his downward modification petition, and the time period for such claim. Nor did these jurists issue any orders amending either of the father’s support petitions to include the allegations of constructive emancipation and constructive abandonment. In order to properly determine the scope of admissible proof at trial, this Court now clarifies these issues. First, this Court determines that the father’s visitation claim is the basis for his downward modification request and deems the September 21, 2015 petition to include, nunc pro tunc, the allegation that the mother deliberately frustrated and actively interfered with the father’s parental access. The mother is not prejudiced by the father’s error in failing to include this specific allegation in his September 21, 2015 petition, as the mother had notice of this claim as of June 19, 2015. In addition, the Support Magistrate did not dismiss this allegation on the merits. See Cornell v. Cornell, 7 NY2d 164, 167 (1959) (“The function of orders nunc pro tunc is to correct irregularities in the entry of judicial mandates or like procedural errors.”; court “may record an existing fact nunc pro tunc”). The Court declines to deem the September 21, 2015 petition to include the allegations of constructive emancipation and constructive abandonment as a basis for downward modification; these allegations are not contained in the father’s January 15, 2016 petition, and the only purported basis for them appears to have been attorney argument. Second, the relevant time period on the father’s frustration of visitation claim is May 28, 2015 through September 21, 2015. The father is estopped from claiming that the mother frustrated his parental access at any time prior to May 28, 2015 because he could have raised such claim in the divorce action; he did not. To the contrary, he secured the Divorce Judgment based upon his implicit, if not explicit, admission that the mother is the sole custodial parent and that he had “reasonable” visitation with the children. See generally, Cobenas v. Ginsburg Dev. Companies, LLC, 133 AD3d 812, 813 2d Dept 2015) (judicial estoppel doctrine, “or estoppel against inconsistent positions,” precludes party from “inequitably adopting a position directly contrary to or inconsistent with an earlier assumed position”). As to the Modification Petition before Judge Kusakabe, such proceeding lasted about sixteen months during which the father had three observation and evaluation visits (“O&E visits) with the children, although six were ordered. In March of 2016, the court ordered the O&E visits with Diane Hessemann, LMSW upon the AFC’s recitation of the children’s position that, even though they had not seen the father for one or two years prior to February 2016, they did in fact want to see him and were willing to visit with him in a supervised setting. Ms. Hessemann conducted O&E visits between the father and the children on May 26, 2016, June 16, 2016, and November 11, 2016. According to the AFC, the relationship between the father and the children deteriorated over the course of the litigation to the point that, as of December 2016, they did not want to see him outside of a therapeutic setting. The father, however, wanted only unsupervised time with the children and, thus, did not attend the remaining O&E visits with Ms. Hessemann. According to the AFC, the children have not seen the father since November 2016. A.N. was 13, approaching 14, at the time of the last visit, he is now 17; I.N. was 7 at the time of the last visit, he is now 11. The father ultimately withdrew his Modification Petition without prejudice on March 23, 2017. In the meantime, on November 4, 2016, the Support Magistrate had referred the frustration of visitation issue in this matter to Judge Kusakabe for determination. In August of 2017, the AFC moved, pursuant to CPLR 3211, to dismiss the father’s claim/defense herein that the mother deliberately frustrated his parental access. Although the court did not issue a written order on the AFC’s motion, in or about December 2017, Judge Kusakabe denied the motion and directed a hearing on the visitation issue. In February 2018, the AFC moved for leave to serve subpoenas for the father’s VA Medical and ACS records. Although there is no written order granting the motion, Judge Kusakabe presumptively granted it by order dated June 13, 2018, in which he directed the father to provide the AFC with information about his treatment with the VA medical center for issuance of subpoenas. In November 2018 and January 2019, the AFC and the father each moved for relief with respect to the subpoenas: the AFC sought an order directing the father to sign additional HIPPA compliant authorizations; the father opposed that motion and moved to compel the AFC to produce Bates Stamped records, and for other relief. On April 5, 2019, this Court, being constrained by Judge Kusakabe’s apparent grant of AFC’s motion for subpoenas, directed the father to sign the requested authorizations, and directed the AFC to produce Bates Stamped copies of the subpoenaed records. The Court indicated that the father could move to preclude any, or all, of the subpoenaed records that the AFC intended to introduce at trial. This motion ensued. SCOPE OF THE TRIAL As explained above, the sole issue to be tried is whether, during the period from May 28, 2015 to September 21, 2015, and despite the father’s attempts to assert his parental rights in a meaningful way, the mother deliberately frustrated and actively interfered with the father’s parental access, and that such conduct constituted a substantial change in circumstances sufficient to warrant suspension of his support obligation. See, McNichol v. Reid, 176 AD3d 713, 714 (2d Dept 2019) (suspension of child support “warranted only where the custodial parent’s actions rise to the level of deliberate frustration or active interference with the noncustodial parent’s parental access rights”); Sullivan v. Plotnick, 145 A.3d 1018, 1021 (2d Dept 2016) (evidence at hearing established custodial parent’s deliberate efforts to frustrate and prevent visitation with non-custodial parent); Matter of T. v. T., 78 AD3d 845, 846 (2d Dept 2010) (child support suspended where non-custodial parent establishes their right of “reasonable access to the children has been unjustifiably frustrated by the custodial parent”); Lew v. Sobel, 46 AD3d 893, 895 (2d Dept 2007) (same); see also, Rodman v. Friedman, 112 AD3d 537 (1st Dept 2013) (child support suspended where custodial parent’s alienation of child from noncustodial parent “continued unabated”). The father has the burden of proof on these material facts, to wit: that during the relevant period he tried to see his children and have a relationship with them, and that the mother frustrated his parental access.2 VA MEDICAL RECORDS Generally speaking, a party’s medical records may be disclosed in a contested custody proceeding because the parties place their mental and physical conditions at issue insofar as such conditions are relevant to the issue of “parental fitness.” See, Worysz v. Ratel, 101 AD3d 893, 894 (2d Dept 2012); see also, McDonald v. McDonald, 196 AD2d 7, 13 (2d Dept 1994) (“It is well settled that in a matrimonial action, a party waives the physician-patient privilege concerning his or her mental or physical condition by actively contesting custody.”). This, however, is not a contested custody proceeding; this is a child support proceeding. The father is not seeking to modify the Divorce Judgment to change custody from the mother to him, whether in whole or in part. The father is not seeking to expand — or to even enforce for that matter — his visitation rights under the Divorce Judgment. Therefore, the father’s parental fitness is not at issue. Indeed, the father’s parental fitness with respect to visitation has been conclusively resolved by entry of the Divorce Judgment that granted him “reasonable rights of visitation away from the custodial residence.” The Divorce Judgment, and the findings and conclusions therein, constitutes the law of the case, neither party having taken an appeal therefrom and their time to do so having long since expired (see generally, Martin v. City of Cohoes, 37 NY2d 162, 165 [1975]["The doctrine of the 'law of the case' is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned"]); and there is no petition before this Court seeking to modify the visitation provision in the Divorce Judgment. The father did not affirmatively place his medical condition at issue by claiming, for instance, that any physical or mental health condition prevented him from seeing his children between May and September 2015. Nor were his medical records required to be produced to Ms. Hessemann in aid of her O&E visits, and the Court did not appoint in this support proceeding a forensic expert to evaluate the father’s mental and emotional condition and/or his parental fitness as to visitation. See generally, Perry v. Fiumano, 61 AD2d 512, 519 (4th Dept 1978) (noting party medical records may be discoverable if shown to be “required by the court-appointed psychiatrist in aid of a complete evaluation of respondent’s mental and emotional condition.”). The AFC’s claim that the father’s conduct constituted the sole cause of the children’s reluctance to see him outside of a supervised or therapeutic setting, standing alone, does not place before this Court the father’s parental fitness such that his medical records are relevant. Indeed, crediting the AFC’s statements, as this Court does, the children’s reluctance to visit with the father was based solely upon their own personal experience of him — his behaviors and then absence from their lives — and not as a result of any medically diagnosed physical, mental, or emotional condition. Therefore, resolution of the ultimate issue — whether the mother prevented the father from seeing the children — does not require “revelation of [the father's] protected material.” Perry v. Fiumano, 61 AD2d at 519. Rather, the Court will determine the frustration of visitation issue by weighing the testimony of the parties, as well as that of the children during an in-camera interview, together with the other admissible proof submitted at trial. See, Sullivan v. Plotnick, 154 AD3d 1021 (Family Court determination to suspend support obligation based upon hearing and in camera interview with child); see generally, State ex rel. Hickox v. Hickox, 64 AD2d 412, 416 (1st Dept 1978) (even in a custody matter, court may determine if it has “sufficient information to determine future custody without” disclosure of party medical records). While the Court was constrained by Judge Kusakabe’s decision authorizing the AFC to serve subpoenas for the father’s VA medical (and ACS) records, upon their review, this Court finds that there is no basis upon which the father’s medical records can be admitted into evidence at trial. Discoverability does not equate to admissibility. See, Wiseman v. Am. Motors Sales Corp., 103 AD2d 230, 237 (2d Dept 1984) (“admissibility is no longer the test to be applied in determining a motion for discovery. The ultimate decision of admissibility should be left to the trial court.”). Notably, not one of the legal authorities cited by the AFC supports the conclusion that a non-custodial parent’s medical records are admissible at trial (or even discoverable) in a support proceeding, such as this one, which does not involve a challenge to a prior custody or visitation order, which does not involve a forensic expert, on the limited issue of the custodial parent’s alleged frustration of the non-custodial parent’s visitation rights. Finally, the father’s medical records are not relevant or necessary to assist the Court in fashioning a new visitation order, as the AFC contends, because a new visitation order will not be fashioned. No modification petitions as to the visitation provision in the Divorce Judgment are pending, and neither the AFC nor the mother may use this proceeding as a back-door attempt to modify it. In the event the father meets his burden on his frustration of visitation claim, this Court will suspend his support obligation conditioned upon the mother demonstrating that she has encouraged visitation between the father and the children. See, Matter of T. v. T., 78 AD3d at 846 (support obligation suspended “until visitation resumes”); Lew v. Sobel, 46 AD3d at 895 (support obligation suspended until mother certified compliance with visitation and absence of interference with father’s visitation rights). The Court will not (indeed, cannot) re-write the visitation provision in the Divorce Judgment. Rather, the Court will retain jurisdiction over this issue and direct visitation, on a temporary basis, taking into consideration the lapse in time since the children’s last visit with the father in 2016 and giving due weight to their stated positions. See, Coull v. Rottman, 131 AD3d at 965 (court entitled to place great weight on 13 year old child’s “wishes, since he was old enough to express them). The Court does not need the father’s medical records to accomplish this task. In view of the foregoing, the father’s objections to the admission of his medical records upon the ground that they are not certified in accordance with CPLR 4518, or upon hearsay grounds, are moot and academic. ACS RECORDS The ACS records for the father’s alleged neglect, in March 2017, of his three children by another women are neither relevant nor material to the issue of whether, two years earlier, the mother frustrated the father’s visitation with A.N. and I.N. None of the material contained in the ACS records could possibly have any “any tendency in reason to prove the existence of any material fact,” in that the records do not “make[] determination of [whether the mother prevented the children from seeing the father during the period from May to September 2015] more probable or less probable than it would be without the evidence.” People v. Scarola, 71 NY2d 769, 777 (1988). In addition, the ACS records — which show that the father’s other children were returned to his care — are more prejudicial than probative. These records are unnecessary and have limited probative value to this Court in issuing a temporary visitation order, should this Court find that the mother frustrated the father’s visitation. As explained in detail above, under such circumstances, the Court will take into account the children’s in-camera testimony and stated positions in determining whether, and to what extent, any temporary visitation should be therapeutic, supervised, or otherwise. In view of the foregoing, and as with the VA medical records, the father’s objections to the admission of his ACS records upon the ground that they are not certified in accordance with CPLR 4518, or upon hearsay grounds, are moot and academic. HESSEMAN REPORTS Dr. Hessemann’s reports relating to the O&E 2016 visits between the father and the children post-date the September 21, 2015 evidence cut-off date. However, this Court finds that the reports are relevant, and will be admissible, insofar as they may contain information which tends to bear upon the father’s visitation with his children prior to September 2015. In this regard, Ms. Hessemann’s reports may have a tendency to prove the existence of material facts, to wit: whether the father attempted to have a meaningful relationship with the children prior to September 2015 and whether the mother interfered with his parental access. In their present form, Ms. Hessemann’s unsworn reports containing her observations, opinions, and recommendations as to visitation are inadmissible and will remain so in the absence of a proper foundation pursuant to CPLR 4518. See, Bronstein-Becher v. Becher, 25 AD3d 796, 797 (2d Dept 2006) (“Dr. Stephens’ two ‘narrative reports’ were simply letters summarizing his diagnosis, treatment, and opinion concerning the father’s ability to return to work. No proper foundation was provided demonstrating that they were in fact business records [under CPLR 4518(a)].”); see also McNichol v. Reid, 176 AD3d at 714 (court improperly relied on “hearsay statements and conclusions by an expert, whose credibility was not tested by either party, from an earlier forensic evaluation, and on statements and conclusions by two therapists, whose opinions and credibility were not tested by either party”). Of course, the defect may be cured upon Ms. Hessemann’s trial testimony during which a proper foundation may be laid for the reports, and Ms. Hessemann subject to cross-examination as to their contents. In such case, all relevant, non-hearsay matter (such as Ms. Hessemann’s direct observations), and any matter admissible as an exception to hearsay (such as party admissions), contained in the reports will be admissible. CONCLUSION For the reasons set forth above, the father’s motion to preclude the Attorney for the Child from offering at trial his VA medical records, ACS records, and the 2016 reports of Diane Hessemann, LMSW, is granted in part and denied in part, as follows: (1) The Attorney for the Child and the mother are precluded from offering into evidence at trial the father’s VA Medical Records and ACS records. The Attorney for the Child and the mother are directed to immediately destroy all of the father’s VA Medical Records and ACS records in their possession and to submit to this Court and counsel an affidavit attesting that the records have been destroyed, including the date and manner of their destruction; and (2) The Attorney for the Child and the mother are not precluded from offering into evidence at trial Ms. Hessemann’s 2016 reports, provided a proper foundation is laid, Ms. Hessemann is available for cross-examination, and the reports are subject to all proper objections as to relevance and hearsay. This matter is set down for Trial Readiness Conference in Part 14A, on July 13, 2020 at 10:00 a.m. Dated: April 21, 2020
