You Too Might “Display[] Hostility” If People Started Grilling You About Your Teenage Deadhead Years

In Matter of Thomson v Battle (N.Y. App. Div. Oct. 10, 2012), mother had custody of the couple’s 6-year-old son, and the father sought a change of custody, for various reasons. Unsurprisingly, the litigation got acrimonious. An excerpt (some paragraph breaks added and some deleted):

The Court Attorney Referee, describing the mother’s conduct as “very distressing,” and noting that the mother had a history of interfering with visitation and moving residences, issued a temporary order awarding custody of the child to the father, with unsupervised visitation to the mother. Thereafter, citing a forensic evaluation, the father moved to suspend unsupervised visitation between the mother and the child. After a limited hearing on this motion, the Court Attorney Referee issued a temporary order directing that the mother’s visitation be supervised. [Later, at t]he hearing on the father’s petitions, … the father called the mother as his first witness.

The direct examination of the mother continued for four days over the course of three months, during which time the father’s attorney, often over objection, questioned the mother on topics including her experience in parochial school, her employment and educational history, her teenage years touring with the band The Grateful Dead, her study of herbal medicine and thoughts on “Western medicine,” the condition of various residences she had maintained since 1999, her religious and dietary preferences, and the manner in which she cared for her dog.

During the course of this wide-ranging examination, the mother displayed hostility towards the father’s attorney, her own attorney, and the referee. She had also failed to appear on more than one occasion, citing, among other things, medical issues and transportation problems. Eventually, the mother’s attorney, noting disagreements regarding strategy, an adversely affected attorney-client relationship, more than $46,000 in unpaid bills, and a list of 23 proposed witnesses submitted by the father, moved for leave to withdraw as counsel. The attorney’s motion was granted and the mother was assigned a new attorney. After the mother’s assigned attorney also moved for leave to withdraw as counsel, the father’s attorney urged the court to conclude the hearing and issue a final order in his favor. The Court Attorney Referee agreed and issued a recommendation to that effect.

On July 22, 2010, the Family Court adopted the recommendation of the Court Attorney Referee and issued an order, inter alia, concluding the hearing without the need for further testimony, awarding the father sole custody of the child, and awarding the mother only supervised visitation. Thereafter, in an order dated March 30, 2011, the Court Attorney Referee, inter alia, denied the mother’s motion to modify the order dated July 22, 2010, so as to award her unsupervised visitation….

[W]hile the mother’s disruptive behavior cannot be condoned or excused, her conduct was not the sole cause of the abrupt termination of the hearing. A review of the record reveals that the father, who had already obtained temporary orders in his favor, sought, through his attorney, to prolong the hearing, inflame the situation, and interfere with the mother’s right to be heard by engaging in an extended direct examination filled with irrelevant details and unsubstantiated accusations, primarily focused on incidents and behaviors that long preceded the prior order of custody and visitation. Under these circumstances, the Court Attorney Referee, by repeatedly refusing to appropriately limit the father’s inquiry and by abruptly concluding the hearing without allowing the mother to present her case, failed to ensure that the mother was afforded a full and fair opportunity to be heard.

Accordingly, the order dated July 22, 2010, must be reversed insofar as appealed from, and the matter remitted to the Family Court, Queens County, for a full hearing on the merits before a different Court Attorney Referee ….