JEFFREY S. SUNSHINE, J.
Rarely has this Court been required to determine the issues of custody and parenting time facing the stark realization that both parents have in the past posed significant risks to the other parent and to their young children. It is clear to this Court that the power struggle between these parents, which involves their community and the parties' extended families, supersedes their focus on their children's best interests.
The Court does not have jurisdiction to award custody of these children to an extended family member in this proceeding (see generally Williams v. Frank, 148 A.D.3d 815, 49 N.Y.S.3d 703 [2 Dept., 2017]). Furthermore, given the extensive testimony at trial regarding the inappropriate actions and involvement of the extended family there is little indication that there would be a suitable family member option available to the Court.
These parents, their families and competing interests in the Satmar community in Williamsburg, Brooklyn, have waged unending attacks on one another apparently with little mindfulness or insights into how their inter-personal and community battles have negatively impacted their three (3) young children. As a direct result of these parents' actions during this litigation their young children have been subjected to multiple investigations by the Administration for Children's Services; involvement of the New York Police Department; body checks at homes during the middle of the night and an extended hospitalization; multiple interviews by caseworkers for the Administration for Children Services; sessions with a forensic evaluator in the course of preparing a court-ordered forensic evaluation report; countless meetings with the attorney for the children in this proceeding and in the neglect proceeding. The result has been that these children, from a very young age, have lived in a constant state of emotional trauma and physical upheaval and unpredictability.
The record established that the parties, the parties' extended families and members of the parties' communities all actively engaged in deplorable behavior intended to influence these children and to indoctrinate them in an attempt to achieve a perceived advantage in this custody dispute. Each parent attempted to alienate and to abscond with one or more of the children without the consent of the other parent. This Court is gravely concerned that, given the extent to which the parents purposefully exposed these young children to this dispute and their power struggle, these three (3) children will forever bear the emotional and psychological scars. The parties', grandparents', school and the community's prioritization of gaining an advantage in this dispute above shielding the children made these children the ultimate victims of this power struggle. There has been collateral litigation in numerous forums: Family Court, Criminal Court, Federal Court, Article 78 proceedings and ACS administrative hearings.
Neither party has demonstrated an awareness of how their actions — often placing the children in the midst of their tumultuous vendetta — detrimentally impact these children not just in the present but for a lifetime.
This tragedy unfolds against the backdrop of a plaintiff-mother who has chosen not to obtain proper and consistent treatment for her mental health challenges which has undermined her ability, at times, to properly supervise the children; a defendant-father ill-equipped to deal with the plaintiff's post-partum depression; and the parties' families and community networks that actively encouraged the parties to engage in self-help.
The parties were married in a religious ceremony on December 15, 2005 in Kings County. The parties are members of an orthodox Satmar Jewish community in Brooklyn, New York. There are three (3) minor children of the marriage, C.H. born March 21, 2007 (now age 10); E.H. born July 26, 2008 (now age 8); and A.H. born October 7, 2009 (now age 7). The plaintiff commenced this action for a divorce by filing the summons and complaint on February 5, 2013.
Prior to commencing the divorce action in Kings County Supreme Court the parties have an extensive litigation history in Kings County Family Court, which is more fully detailed herein below.
A preliminary conference order was signed by this Court in the pending divorce action on June 20, 2013. On November 13, 2013, the remaining open visitation dockets in the Family Court matter (V-10627-9/10 and V-07696-8/10) were consolidated to this Court. On November 20, 2013, Dr. Mary Carlin was appointed by written order on consent by the Court to conduct a forensic evaluation of the parties and the parties' children.
On March 20, 2014, the parties entered into a consent stipulation, which the Court "so-ordered", providing temporary residential custody of the parties' children to the plaintiff and visitation to the defendant subject to the October 21, 2013 Family Court order. On April 10, 2014, the parties submitted a consent stipulation, through counsel, modifying the March 20, 2014 temporary order regarding the dates of defendant's visitation, the method of pick-up and drop-off of the children, signed by defendant's counsel Margery Greenberg, Esq. and plaintiff's then co-counsel Joel Yacoob, Esq.
On June 3, 2014, the parties entered into a consent agreement that the defendant would have supervised visitation with the parties' three (3) children and that the defendant "was offered an opportunity for a hearing on Friday June 6, 2014, but hereby waives his right to a hearing."
The parties were each represented by more than one attorney during the course of this custody dispute which extended over a period of 4.5 years. The plaintiff was represented by Eric A. Schwartz, Esq. at the commencement of this action on January 20, 2013 when the summons was filed. Thereafter, Mr. Schwartz Esq. and Mr. Joel Yacoob, Esq. represented plaintiff as co-counsel for a short while. Mr. Schwartz was substituted as counsel for Joel Yacoob, Esq. in July 2014 who continues to represent the plaintiff. Defendant has been represented by the following attorneys of record: Margery A. Greenberg, Esq. from May 01, 2013 until October 16, 2014; Simon Schwarz, Esq. who filed a "limited appearance" on November 12, 2014 but subsequently filed a full appearance on January 16, 2015; Mary Grace Condello, Esq. from October 06, 2015 to May 6, 2016; Eric Holzer, Esq. appeared for defendant in May 2016 after defendant discharged Ms. Condello; defendant again retained his prior attorney Mary Grace Condello, Esq. on June 2, 2016 after discharging Mr. Holzer. M. Condello continues to be defendant's attorney of record at this time.
The children were represented throughout this litigation by Amy Serlin, Esq. on behalf of The Legal Aid Society. The Court notes that Ms. Serlin had previously represented the children during the prior Family Court neglect proceeding against defendant before plaintiff commenced this divorce action in January 2013. Ms. Serlin, to her credit and the credit of the Legal Aid Society, agreed to serve as the attorney for the children and accepted assignment in this Supreme Court proceeding because of her extensive familiarity with the children and extensive history of litigation between the parties in Kings County Family Court from representing the children during the neglect proceeding.
The Court heard testimony in the trial on custody and parenting time on the following dates: November 19, 2014; June 8, 2015; November 16, 2015; November 17, 2015; November 18, 2015; November 23, 2015; November 30, 2015; December 7, 2015; December 17, 2015; January 7, 2016; January 11, 2016; February 9, 2016; March 1, 2016; March 2, 2016; March 7, 2016; April 18, 2016; May 6, 2016; May 9, 2016; May 11, 2016; June 28, 2016; July 20, 2016; July 21, 2016; July 26, 2016; July 27, 2016; September 9, 2016; September 27, 2016; December 15, 2016; December 21, 2016; January 3, 2017; January 4, 2017; and January 6, 2017. The Court heard oral summations on February 3, 2017. The transcript of the oral summations was provided to the Court on February 10, 2017 and this matter was marked sub judice on that date. The Court appointed Dr. Mary Carlin as the forensic evaluator by written order dated November 20, 2013. Dr. Carlin's written forensic report is dated June 10, 2015. The Court conducted separate in camera interviews with each of the three (3) children in the presence of the attorney for the children and a Yiddish interpreter.
In addition to the parties' testimony, the Court heard the testimony from the court appointed forensic expert Dr. Mary Carlin. The Court also heard testimony from the following plaintiff's witnesses: Dr. Alfredo Nudman; D. K. [maternal grandfather]; and Sylvia Madison. The Court also heard testimony from the following defendant's witnesses: Basil Hall [a caseworker for the Administration for Children's Services]; Joseph H.; Billa Bendet [the Court did not consider her testimony or her report because her testimony was not completed prior to the end of trial]; Chaim Mandel; Rachel Goldenberg; and Dr. Jimmy Sitt.
On the last day of trial Chaim Mandel, who appeared with counsel, testified on behalf of the children's school — United Talmudical Academy — in a contempt hearing brought by defendant against the school and certain school officials for alleged failure to supply inter alia school records in response to subpoena.
During this custody dispute there have been multiple Family Court proceeding on the issues of custody and parenting time. There have been repeated cross applications for orders of protection. There have been extensive litigation in other Courts between these parties and based on allegations raised by the respective parties: there was a criminal action in Criminal Court against the defendant-father which, according to the certified records provided at trial, were dismissed on CPL 3030 speedy trial grounds on October 2, 2014 and November 17, 2014; multiple complaints filed by each parent against the other with the Administration for Children's Services; findings by the Administration for Children's Services were indicated against the plaintiff-mother; defendant-father commenced litigations against witnesses who testified on behalf of plaintiff in this action and against plaintiff's counsel in Federal Court.
This extend thirty-one (31) day trial before this Court was interrupted — and delayed — by the arrest of the defendant; completion and disposition of the neglect proceeding against the defendant; extensive forensic evaluations and disputes related thereto; the discharge and/or substitution of counsel before trial of numerous attorneys for the defendant-father. The Court notes that on one occasion defendant discharged his current attorney — she in fact learned of her discharge from her adversary — defendant retained new counsel and then discharged that counsel and again retained his prior counsel who then represented defendant-father during the custody trial and who is currently his attorney of record.
Each party sought to litigate and to re-litigate each disputed event that occurred during the marriage and the litigation, each act perceived against the other, each prior charge and hearing often attempting to engage in minutia until the Court was obligated to direct the parties and counsel to move on separately. The defendant-father clearly sought to prove to this Court that each and every act by the mother and her family, especially the maternal-grandfather was a wrong that needed to be righted and even sought to use this custody trial as a forum to attempt to relitigate the neglect proceeding previously litigated in Family Court. This Court notes that the determination of the Family Court in that neglect proceeding was affirmed by the Appellate Division, Second Department on January 13, 2016 (2016 NY Slip Op 00189). During the neglect proceeding the defendant's visitation was under the supervision of the Administration for Children's Services.
The record established that one or both of the parties at times had been recipients of public assistance, Section 8 benefits and Medicaid benefits during this litigation. The Court directed the parties' counsel to file affidavits of the source and sums of counsel fees paid. A detailed accounting of the counsel fee issue was provided in this Court's written pendente lite decision dated August 13, 2014 in which this Court held:
It is undisputed that the parties' respective family and communities provided an exorbitant sum of money on behalf of the parties to finance the litigation of this custody dispute.
History of Self-Help
The record reveals an extensive and extremely sad and tumultuous serious of events during this marriage where plaintiff-mother suffered from, largely, untreated mental health challenges and the defendant-father engaged in self-help acts likely motivated by an intent to help but which were, ultimately, extremely destructive and evidenced a vast lack of insight into constructive parenting.
Plaintiff's Post-Partum Depression/Defendant's Interference
Plaintiff testified compellingly that the defendant interfered with her access to the children during the marriage and especially after she gave birth to each child. She testified that in September 2008 after their second child, E.H., was born the defendant took her and their newborn "to reside in a bunker at [defendant's] Aunt's house." She testified that defendant removed the parties' older child, C.H. from her care and placed him in the care of the paternal grandparents and that he refused to allow her to visit or see C. H. despite her attempts to do so while they remained at "the bunker." The plaintiff described the living arrangements in defendant's aunt's home, testifying that she "had no telephone" and had to go to a neighbor's house to use a phone but that she "was totally controlled" by the defendant and that he "wouldn't permit [her] to go, to speak with [her] parents" or to have "any contact whatsoever with [her] friends, with [her] classmates." She testified that defendant sometimes would not allow her to leave his aunt's home and that she "wouldn't be permitted to go" where she wanted to go because "[h]e would all [sic] be on top of me." Plaintiff testified that the defendant required her to live at his aunt's home for a "couple of weeks."
The Court finds that the plaintiff testified credibly that after child birth the older children were removed from her care and custody and that at other times during the marriage one or more of the children were taken from her without her consent and she was not allowed to see the children for extensive periods of time. While defendant asserts these actions were necessary to protect the children while plaintiff suffered from post-partum depression the total unilateral removal of the older children and denial of access to the mother was not only cruel and insensitive it was an act of self-help which should never have been sanctioned by either parties' family or their respective communities. The remedy should have been to seek court intervention. The Court also finds credible plaintiff's testimony that defendant, at times, interfered with her ability to leave his aunt's apartment.
Despite defendant's assertion that he removed the children to ease plaintiff's recovery and to shelter the children from the plaintiff's mental health challenges the Court does not condone the defendant's actions where the plaintiff clearly objected to the removal of the children. Even if, as defendant contends, plaintiff was suffering from post-partum depression that is not a justification for the defendant-father to systematically refuse to allow the plaintiff-mother any access to the children over her objections. The Court does not sanction this form of self-help. Certainly, under the circumstances here, this method of self-help likely placed only greater emotional turmoil on the plaintiff and the parties' children.
The record established that, in part responsive to this series of "removals" and mutual distrust between the parties they each began engaging in self-help by taking the children back from one another. Instead of seeking judicial intervention through the New York State Courts, the parties chose to engage in self-help in a series of incidents, with community support, where one parent would surreptitiously take a child while the child was in the care of the other parent. These "removals" were often orchestrated or assisted by the involvement of family members or members of the larger community.
The Park Incident
Plaintiff testified that in March 2010, after defendant removed two of the children — C. H. and E. H. — from her for an extended period of time without her consent, she exercised self-help by retrieving C. H. when she happened to see him playing in a park.
Plaintiff testified that she went to the paternal grandparent's home hoping "to catch a glimpse at lease a glimpse of my son and [sic] get them." She testified that she "walked by a public park there and all of a sudden I hear my son screaming mommy, mommy. He was [sic] telling at me, mommy." She testified that she did not recognize her son at first because the child's hair had been cut but she had not been invited to attend the hair cutting ceremony.
The Neglect Finding Against Defendant
On October 5, 2010, the Administration for Children's Services (hereinafter referred to as "ACS" filed a neglect petition against the defendant-father with respect to the parties' three (3) children in Kings County Family Court. On March 7, 2013, the Hononrable Amanda E. White, the judge presiding over the Family Court neglect proceeding issued a written decision after trial in which she held, inter alia, that:
The Family Court found that the parties' other two (2) children, A.H. and E.H., were derivatively neglected as a result of the September 27, 2010 incident. Additionally, Judge White found that there was at least one other incident of domestic violence perpetrated by the defendant-father, "... in the presence of the children [A.H.] and [C.H.] on June 3, 2010, warranting a finding of neglect as well. This Court finds that the subject child [E.H.] was derivatively neglected as to this incident as well [names redacted]." The Family Court issued an Order of Disposition dated September 12, 2013 providing that "the children are released to the custody of the non-respondent mother, [redacted] under 3 months supervision of a child protective agency, social services official, or duly authorized agency." The Order of Disposition further ordered that "Respondent father is to immediately schedule and attend the mental health evaluation appointments and comply with any recommendations." The record established that defendant complied with this directive. On March 7, 2013, the Family Court issued a written decision and an Order of Fact-Finding in that neglect proceeding. The March 7, 2013 Order of Fact-Finding states that the children "are neglected children, as defined in section 1012 of the Family Court Act" by the defendant herein. In affirming the neglect finding the Appellate Division, Second Department held that "[c]ontrary to the father's contention, a preponderance of the credible evidence at the fact-finding hearing established that he neglected the child [C.H.'s] mother in his presence that impaired, or created an imminent danger of impairing, [C.H.]'s physical, mental or emotional condition" (Matter of Aron H. (Joel H.), 135 A.D.3d 759, 2016 NY Slip Op 00189 [2 Dept., 2016]).
The Kidnapping (incident leading to neglect proceeding)
Testimony during this custody trial revealed the following regarding the September 27, 2010 kidnapping incident that ultimately resulted in the neglect proceeding. In an effort to remove the parties' oldest child — C.H. — from the plaintiff the defendant organized a kidnapping to take place outside an indoor play space.
Plaintiff testified that on September 27, 2010 she took her children C.H. and A.H. to an indoor play-space in Brooklyn and that as she was leaving the play-space with her sister and the two children "all of a sudden I start feeling some strange man, all painted in black, someone I did not recognize [...] all of a sudden I feel him grabbing my son away from me." She testified that the man is "grabbing, to a car, black tinted car that was waiting right outside the park, and this man is slowly trying to pull my son into the car." She testified that she was "holding onto my son with all the adrenaline and strength I have got" and "with one foot hanging outside of the cab, one side in the cab, with my son halfways in the car, halfways out, the car, with the driver, with [the defendant] inside, with another two men, smeared their faces, quickly make a U-turn and speed off two blocks to a quite area."
Plaintiff further testified that "when the car landed at a quiet area" the defendant and the other individuals in the car began to "start detaching me from my child, punching me in my chest" and that "they did karate on me." She testified that "they wanted to see me dead, clearly, and punched. My son was in my hands. I saw him being beaten up."
Plaintiff testified that her son was "screaming the entire time hysterically, mommy, mommy, come to help me, mommy." She testified that the individuals in the car "were able to detach me from my child" and that they threw her "into two-way traffic."
Plaintiff testified credibly about the physical chase that resulted during the kidnapping where the plaintiff was dragged outside of a moving vehicle while trying to recover the child who had been pulled inside. This incident subsequently resulted in a neglect finding against the defendant as detailed herein above.
Subsequent to the neglect finding and the affirmance by the Appellate Division, Second Department there were applications and cross complaints filed by the parties and cross-applications and allegations that each party was endangering the welfare of the children. Credible testimony during this trial established that following the kidnapping incident, and continuing during this litigation, there was protracted — almost constant — inner-family allegations and attempts by each party or party's family to involve outside agencies in investigating the other party or party's family.
Maternal Grandfather Testimony
The maternal grandfather testified that ACS had been called to his apartment "over one hundred" times.
The maternal grandfather testified that, to his knowledge, none of these ACS events or reports were founded. No evidence at trial was presented that these ACS reports were indicated. The Court finds credible the maternal grandfather's testimony that during this litigation there were complaints filed against him with the Administration for Children's Services.
Paternal Grandfather Testimony
The paternal grandfather testified that while outside a religious tribunal the maternal grandfather hit him and, as a result, his glasses broke. The record established that a number of months later the paternal grandfather obtained a temporary order of protection against the maternal grandfather as a result of that incident. That temporary order of protection was subsequently withdrawn.
In explaining the delay in seeking the order of protection the paternal grandfather testified that he initially sought relief from a beth din [religious court] and he only sought an order of protection in criminal court against the maternal grandfather after the beth din [religious court] adjudicated that it did not have authority over physical confrontations.
The paternal grandfather testified that he experienced pressure from the community as a result of filing a petition for an order of protection against the maternal grandfather in Family Court. He testified that he was not permitted by his community to return to his job as a teacher for "several days." The record established that the paternal grandfather works at a branch of the school that the children attend. He further testified that because of pressure from the school, who he argued had sided with the plaintiff, if he did not withdraw the order of protection application against plaintiff's father in Family Court "I would lose my job."
Defendant's Lack of Insight
It is abundantly clear to the Court that from the beginning of this marriage the defendant engaged in a course of conduct that undermined the plaintiff's mental well-being. What is not clear is whether that conduct was motivated by malintent or whether it resulted from defendant's lack of insight and his misguided attempts to help the plaintiff and to shelter the parties' growing family from plaintiff's untreated mental health challenges. The record established that during the marriage the defendant exercised unyielding controlling over the plaintiff attempting to, in effect, shield her mental health challenges; however, his actions demonstrated a lack of insight into the negative impact of his conduct on the plaintiff and the children. If defendant believed that plaintiff was suffering from mental instability — including post-partum depression as he argued — it is almost inconceivable that he could imagine taking away their older children and subsequently orchestrating a kidnapping of one of the children directly from her arms would not exacerbate her already tenuous mental situation.
The record established that defendant has more stable mental health, is far more sophisticated than the plaintiff. The defendant could have used these abilities to help the plaintiff pursue adequate mental health treatment which certainly could have benefitted this family unit; however, the defendant chose to engage in a pattern of isolation and manipulation to the detriment of plaintiff and, ultimately, the undermining of the children's emotional stability and physical safety in the home.
During the marriage, defendant's reaction to plaintiff's mental health challenges was to withdraw his support — in effect to abandon her — and to take the children with him completely ignoring how these action could further undermine plaintiff's mental and emotional stability and negatively impact the children directly and through witnessing their mother's struggles. It is evident to the Court that the defendant did not appreciate the detrimental impact that isolating the plaintiff in inadequate housing — the "bunker" situation plaintiff described after the birth of the parties' second child — and the complete removal of the children from her without even an opportunity for visitation had on her mental health well-being.
During the trial the defendant testified that he, now understands that his choice to kidnap the child from the plaintiff's care outside the play space in 2010 was not appropriate behavior and, he asserted, he has learned from his prior mistakes. He testified on the record that he would never again wrongfully take the children from the plaintiff.
The Court found credible the testimony of Sylvia Madison, a certified school psychologist, who testified during the trial that she provided skill building behavior services to the plaintiff and the parties' children on a weekly basis beginning in 2011 and ending in 2014. She testified that she provided "parent training" for the plaintiff on how to respond appropriately to the children, how to create a "safe space" and how to effectively set limits for the children "[b]ecause the kids were very conflicted between the parents and there was a lot of regression and behavior." She testified that her services were designed to help the children gain skills such as remaining calm and "making their needs known" because the children were "crying" and "screaming" because they were "very conflicted" about the conflict between the parents.
Ms. Madison testified that she terminated the skill building behavior services for the plaintiff and the parties' children "[b]ecause [the defendant] filed a complaint" against her. She testified that "it took two years for them to determine I did nothing wrong." The continuation of skill building behavior services would have, in this Courts view, been beneficial to the children particularly given the facts and circumstances presented in this family's ongoing troubles.
While there is nothing to indicate that Ms. Madison acted improperly or outside of her designated role, it appears that plaintiff relied on Ms. Madison as a therapist for herself and the parties' children even though Ms. Madison was not working with plaintiff and the children in the role of a licensed therapist nor did she hold herself out as a "therapist" for the plaintiff or the parties' children. The Court notes that after Ms. Madison intervened in this litigation by filing an affidavit in this action shortly before the defendant filed a complaint against her, effectively removing her assistance from this family.
The Court is troubled by defendant's interference with the skill building sessions between plaintiff and the children because it shows a lack of insight into the plaintiff's need for parenti assistance.
Dr. Mary Carlin: Court-Appointed Forensic Evaluator
Both parties, but particularly the defendant, clearly bombarded the court-appointed forensic evaluator — Dr. Mary Carlin — with information and data. The defendant provided an onslaught of materials, court documents and records to the forensic evaluator. The Court notes that the record established that at times the defendant directly provided documents and records to the forensic evaluator without providing copies to the plaintiff, to plaintiff's counsel or to the attorney for the children. The defendant zealously provided documents and information to the forensic evaluator at times allegedly without even his lawyer's knowledge.
The order of appointment of the court-ordered forensic evaluator provides:
Because of the onslaught of data and information sent by the parties the Court directed the parties not to send the forensic evaluator any additional information because the parties' actions were delaying the forensic evaluator's ability to complete and issue the report.
Dr. Carlin's testimony included, inter alia, the following:
Plaintiff's Mental Health
It is evident to the Court that the plaintiff is a loving parent and the Court finds credible Dr. Carlin's testimony that plaintiff is an "enthusiastic" parent. The Court believes that the plaintiff has attempted to provide the children with the best care she is capable of offering; however, the unfortunate reality is plaintiff's consistent and ongoing refusal to address and to seek consistent treatment for her long-ago diagnosed mental health challenges. The record established that the plaintiff is not regularly being treated by a psychiatrist, psychologist or therapist and that this lack of monitoring has detrimentally impacted her ability to provide adequate parental supervision for the children when in her care by greatly limiting her ability to provide an adequately safe environment for the children. The Court cannot determine whether plaintiff would be more capable of providing a safe and stable environment for the children if she was consistent with her mental health treatment because there is no indication that she has adequately and consistently addressed her mental health in the more than a decade that she has known about her mental health challenges. Plaintiff's knowing disregard for obtaining treatment and monitoring is concerning to the Court because of the impact on the children.
It is evident that the plaintiff's mental health challenges have been present for many years. The maternal grandfather testified credibly to taking the plaintiff on numerous forms of transportation so that they could run in a park on Staten Island in an effort to help her manage her anxieties. When asked why he took the plaintiff to a park in Staten Island he acknowledged that he could not run in his religious garb with his daughter in his community.
The record established that in 2004, when she was approximately seventeen (17) or eighteen (18) years old and before she married the defendant, the plaintiff was seen by a Dr. Hecht because of weight loss, difficulties sleeping and anxiety. Evidence at trial established that Dr. Hecht prescribed plaintiff psychotropic prescriptions for anxiety and recommended that plaintiff take an anti-depressant and enter therapy. The record established that the plaintiff did not seek therapy after meeting with Dr. Hecht in 2004 and that she did not seek any further professional treatment or assessment until she went to Dr. Nudman in 2008. For an extensive period of time, plaintiff denied that she had ever been treated by Dr. Hecht.
Attempt to support her claim that she was fully addressing her mental health challenges the plaintiff called as a witness Dr. Alfredo Nudman who testified that he has been treating plaintiff since October 2008. He testified that he diagnosed plaintiff with "obsessive compulsive disorder", "major depression" and "post-traumatic stress disorder" based on his observations of the plaintiff and plaintiff's self-reported symptoms.
On cross-examination, Dr. Nudman testified that he did not have another appointment with the plaintiff until March 2010 when plaintiff requested that he write a letter on her behalf addressed to "Whom It May Concern" stating that she "is compliant with her treatment and seems to be doing well" and that "[i]t is my opinion that [plaintiff] is fit to take care of herself and her children without problems". Dr. Nudman testified that he had no concerns writing that letter on plaintiff's behalf despite having only had one prior appointment with her, not having seen her in approximately sixteen (16) months and knowing that plaintiff had chosen not to take the medication he prescribed for her at her initial intake appointment in October 2008.
He testified that at the time of trial the plaintiff's conditions were "stable" and that the diagnosis for "major depression" was "fully remitted" despite the fact that he is not regularly treating plaintiff. Dr. Nudman testified that he did not believe that any follow-up appointments with plaintiff after the initial intake appointment in October 2008 were necessary because plaintiff was "quite overwhelmed dealing with the legal divorce, custody, both the religious and secular at the time that it was very hard for her to come directly to the office to see me so I felt that she was stable enough that it was okay to handle it like that for that time, not to, not to put any more pressure on her already overburdened life." Dr. Nudman testified that plaintiff had been "extremely compliant" with his prescribed treatment over the years and that he believed that "the level of monitoring that she has at this point is perfectly adequate" despite repeated gaps of more than a year.
Dr. Carlin testified that plaintiff initially denied any recollection of being seen by Dr. Hecht or of being prescribed any medication but that she acknowledged treatment by Dr. Hecht when Dr. Carlin presented her with Dr. Hecht's notes.
The record established that plaintiff was unable or unwilling to be candid about her history of psychiatric evaluations and treatments. Additionally, Dr. Carlin testified that plaintiff initially asserted that she did not take any medication but later acknowledged that she "took some medicine for domestic violence...." During her testimony at trial plaintiff lacked candor with the Court regarding what, if any, medications she is taking and plaintiff did not offer any testimony that she is currently in therapy or any treatment for her mental health challenges.
The Court finds that the impact of plaintiff's untreated and monitored mental health challenges on her ability to parent the children was poignantly and tragically apparent from the trial testimony of the court appointed forensic evaluator — Dr. Carlin — when she testified about her direct observations of the children in the plaintiff's care during a home visit. Dr. Carlin testified that during the home visit she observed that while the plaintiff was very "disorganized" and ineffective at setting boundaries for the children even as it related to safety concerns such as when she did not intervene when the oldest child remotely unlocked ("buzzed in") the apartment building door for a stranger and that the plaintiff did nothing to stop the young child from subsequently attempting to open the front door of the apartment to see who had entered the building. Dr. Carlin testified that plaintiff appeared ambivalent to the potential safety concern that this situation presented for the children. Dr. Carlin further testified that the interpreter, not the plaintiff, intervened to stop the child from opening the apartment door to see who the stranger was while the plaintiff continued to focus on "meticulously" arranging broccoli on each child's plate.
Dr. Carlin testified that C. H.'s behavior in "buzzing in" a stranger into the building was not only a safety concern but evidenced that in the plaintiff's care C.H. was taking on a "parentified role" in taking control of the situation — at approximately seven (7) or eight (8) years of age — because the child perceived the plaintiff was not capable. Dr. Carlin testified that developmentally this form of "parentification" is detrimental to the children feeling secure and learning boundaries and behavior.
Dr. Carlin testified that she observed plaintiff's behavior during this incident as exhibiting "obsessive qualities." Dr. Carlin testified that plaintiff was often so "engrossed" in one task that she was "not watching" what the children are doing even when they were in her immediate vicinity which raised concerns about her ability to monitor their safety and behavior.
Dr. Carlin testified that "when [plaintiff] has her periods where she can't cope or she has difficulty coping, it's very difficult for her to manage all three children." Dr. Carlin testified that during the course of her evaluation the children became increasingly influenced by the plaintiff and that as a result they were "getting distressed" and that they became less "forthcoming and afraid to do certain things or say certain things." Dr. Carlin testified that the kind of pressure the children were experiencing as a result of the plaintiffs influence "really causes them to develop a split. not just in their parent, but in their own personalities."
Plaintiff's Interference with Defendant's ACS Supervised Visitation
It is undisputed that during the neglect proceeding the defendant's parenting time with the children was limited to ACS supervised visitation. During trial, defendant alleged that plaintiff interfered with his access to the children by consistently not bringing one or more of the children to his ACS supervised visitation.
The record established that one or more of the children missed ACS supervised parenting sessions with the defendant; however, the parties offered vastly disparate accountings of how many sessions were missed. Defendant asserted that more than seventy (70) sessions were missed by one or more of the children and that it was purposeful by plaintiff to manipulate the children against him. Plaintiff contends that less than ten (10) sessions were missed by each child individually and argued that certain visits claimed by defendant were missed because of legal and religious holidays. Plaintiff denied interfering with the defendant's ACS supervised visitation.
Dr. Carlin testified that she observed a pattern in the "problems" with the children being present for the ACS supervised parenting sessions with the defendant that included "not just absences, but canceled visits, no reschedule, lateness, other problems that came up, children not being picked up, children not being brought."
The Court notes that while it may not be unusual, over several years, for a young child misses some supervised visitation due to illness and the Court recognizes the transportation challenges faced by the plaintiff
It is well established that the "trial court, which had the opportunity to view the demeanor of the witnesses, was in the best position to gauge their credibility" (Massirman v. Massirman, 78 A.D.3d 1021, 911 N.Y.S.2d 462 [2 Dept., 2010], quoting Peritore v. Peritore, 66 A.D.3d 750, 888 N.Y.S.2d 72 [2 Dept., 2009]; see also Varga v. Varga, 288 A.D.2d 210, 732 N.Y.S.2d 576 [2 Dept., 2001], quoting Diaco v. Diaco, 278 A.D.2d 358, 717 N.Y.S.2d 635 [2 Dept., 2000]; Ferraro v. Ferraro, 257 A.D.2d 596, 684 N.Y.S.2d 274 [2 Dept.,1999]). It is also well-established that "[i]n a non-jury trial, evaluating the credibility of the respective witnesses and determining which of the proffered items of evidence are most credible are matters committed to the trial court's sound discretion" (Goldstein v. Guida, 74 A.D.3d 1143, 904 N.Y.S.2d 117 [2 Dept., 2010], quoting Ivani v. Ivani, 303 A.D.2d 639, 757 N.Y.S.2d 89 [2 Dept., 2003], quoting L'Esperance v. L'Esperance, 243 A.D.2d 446, 663 N.Y.S.2d 95 [2 Dept.,1997]; see also Schwartz v. Schwartz, 67 A.D.3d 989, 890 N.Y.S.2d 71 [2 Dept., 2009]; Krutyansky v. Krutyansky, 289 A.D.2d 299, 733 N.Y.S.2d 920 [2 Dept., 2001]).
The trial court's assessment of the credibility of witnesses and evidence is afforded great weight on appeal (see Alper v. Alper, 77 A.D.3d 694, 909 N.Y.S.2d 131 [2 Dept., 2010]; see also Massirman v. Massirman, 78 A.D.3d 1021, 911 N.Y.S.2d 462 [2 Dept., 2010]; Schwartz v. Schwartz, 67 A.D.3d 989, 890 N.Y.S.2d 71 [2 Dept., 2009]; Jones-Bertrand v. Bertrand, 59 A.D.3d 391, 874 N.Y.S.2d 152 [2 Dept., 2009]; Wortman v. Wortman, 11 A.D.3d 604, 783 N.Y.S.2d 631 [2 Dept., 2004]).
The plaintiff often testified that she could not recall many important and pivotal facts surrounding the litigation and the long history of marital strife. Additionally, when questioned about events and/or facts which may not be in her interest the plaintiff often could not remember or recall. There were often long, noticeable pauses after a question was asked and often the question had to be read back or repeated because the plaintiff could not remember the question or did not understand the question. The Court is unable to discern whether this was due to plaintiff's untreated mental health challenges or from a general lack of candor with the Court.
The Court notes that when plaintiff did offer testimony it was often conflicting and inconsistent revealing an inability or unwillingness to be candid with the Court particularly about her mental health, treatment and whether she was compliant in her prescription medication regimen.
The Court recognizes that the plaintiff was raised in a community where many decisions related to her mental health care were made by her father prior to the marriage; however, even when questioned about her current compliance with medication and treatment she was not forthcoming. The plaintiff also often stated that she could not recall significant facts and events or resorted to answers that were non-responsive to the question asked.
It is clear to this Court that the plaintiff and her father were not forthcoming to the Court regarding plaintiff's mental illness including making disingenuous statements about her diagnosis and treatment. The record established that the treatment plaintiff sought from Dr. Nudman, who treated her once in 2008 and once again a few years later, has not been consistent. The record also established that there were long periods of time — years — between plaintiff's appointments with Dr. Nudman but that the psychiatrist continued to write prescriptions during those extended periods of time. It is also clear that plaintiff was not treated therapeutically for her mental illness and, importantly, that she has not sought or obtained therapeutic treatment or monitoring for her mental health challenges even at this time. The Court did not find credible that plaintiff could be the sole decision maker as the custodial parent for these children.
The Court found that during his testimony the defendant, occasionally, engaged in transparent attempts to manipulate the judicial process
This Court finds, as did the Family Court, that plaintiff was a victim of domestic violence as a result of the 2010 kidnapping incident that resulted in the neglect proceeding (see Wissink v. Wissink, 301 AD2d 3d, 749 N.Y.S.2d 550 [2 Dept., 2002]).
The Children's School
The record established that the plaintiff was responsible for the children's educational needs during much of this litigation inasmuch as she was the residential parent during the neglect proceeding; however, she has engaged in a pattern of interfering with the defendant's access to educational records for the children. The record established that the school did not have defendant's contact information on the school's emergency contact list for the children during much of the litigation and the defendant was only provided access to the school and school records after this Court intervened by written order.
Defendant expressed concern about whether the children were regularly attending school when in the plaintiff's care. During the hearing on contempt, the representative of the school the children attend testified that the school did not assign grades for student work and that the school did not maintain student attendance records.
Dr. Carlin testified that it was "incredibly difficult to gather information" about the children's academic performance and attendance because "the community and the school that the children attend is really controlled by one of [plaintiff's] strongest supporters." She testified that Arron Mandel is the "kind of go-between" for the community, the school the children attend and individuals outside the community. She testified that women are not allowed in the school. The Court is unable, based on the record before it, to determine the number, if any, of days the children were actually absent from school while in the plaintiff's care. During the hearing on contempt, Mr. Mandel testified that the school the children attend does not maintain grade or attendance records. The Court does not believe the plaintiff was forthright about the children's school attendance.
Dr. Carlin testified that "there is a lot of secrecy in that particular subgroup of the community" and that "nobody is really going to know what is going on with these children" because the school is not "disseminating information" to the defendant. Dr. Carlin testified that plaintiff and the maternal family presented a pattern of behavior indicating a "future intention of barring access" by defendant to the children. She testified that the maternal family and the plaintiff's community has created a "wall" around the plaintiff in an effort to block the defendant from access to the children and any information about the children's medical care and educational development.
Defendant's Refusal to Grant Plaintiff a Religious Divorce — a "Get"
The plaintiff testified, often emotionally, that the defendant refuses to grant her a religious divorce — a "Get".
The Court is gravely concerned by the defendant's repeated assertions on the record that he will remove any barriers to plaintiff's re-marriage pursuant to DRL 253 while simultaneously refusing to cooperate with any of the plaintiff's repeated requests during this protracted litigation that he secure a religious divorce — a "get". The fact that the defendant continues to withhold a religious divorce from the plaintiff has, clearly from her compelling and compassionate testimony, been a source of great emotional distress and concern to her. The Court notes that DRL 253(3):
No final judgment of annulment or divorce shall thereafter be entered unless the plaintiff shall have filed and served a sworn statement: (i) that, to the best of his or her knowledge, he or she has, prior to the entry of such final judgment, taken all steps solely within his or her power to remove all barriers to the defendant's remarriage following the annulment or divorce; or (ii) that the defendant has waived in writing the requirements of this subdivision.
Even though defendant is not the party seeking the divorce he has represented on the record through counsel that he will remove any barriers to remarriage prior to the entry of a judgment of divorce and he is so bound.
Dr. Carlin testified, in effect, that defendant had made significant improvement in his interactions with the children and plaintiff. She testified that in 2010 when the incident that resulting in the neglect finding against defendant took place the parties were engaged in a "snatching back and forth" of the oldest child, who was only five (5) or six (6) years old at the time. Dr. Carlin testified that "[t]here was all kinds of threats made by the Beth Din, that people would be excommunicated, children would be thrown out of school if certain rules were not followed."
Defendant's Video Surveillance
After the ACS supervised parenting time ended in 2012 the defendant was extremely cautious regarding his parenting time with the children. Testimony at trial revealed that defendant set up a video camera in parts of his home to video the children when he had parenting time with them, another video camera outside the door of his apartment monitoring the hallway entrance and a third video camera to monitor who dropped off and picked-up the children from his parenting time. The record established that video footage from the defendant's recordings revealed that the burn A. H. suffered in May 2012 was accidental.
Dr. Carlin testified that she believed that defendant's insistence on having parenting transitions in video taped settings was critical in defendant being in "deep trouble" based on plaintiff's many allegations during this litigation. Dr. Carlin testified that "throughout the evaluation [she] became convinced that he actually needed [the video surveillance] possibly needed to be constantly alert."
Although this Court does not encourage surveillance in a home, this case must be distinguished from those cases where a spouse is in the home with the other spouse subject to surveillance intended solely to invade the other's privacy. Under these extreme circumstances the Court could not fault either party from seeking to protect themselves from false claims.
Medical Care of the Children
Throughout this litigation the parties have engaged in a continuous tug of war over what is the appropriate course of medical care and treatment is for the children. It is evident that both parties — and their families — may have engaged in using reports to the Administration for Children's Services to attempt to gain leverage against the other party in this litigation. The Court must caution the parties — and the parties' families — that not every mosquito bite and bruised knee may necessitate a report to ACS.
The record established that in May 2013, after the neglect proceeding concluded, one of the children — A.H. — was treated for a burn he suffered while in the defendant's care. The record established that the plaintiff took the child to an area hospital to assess whether the burn was infected but then notified the hospital staff that the defendant was dangerous and abusive. Dr. Carlin testified that as a result of plaintiff's statements to hospital staff the parties' child A. H. was treated as "potentially an abused child" and the hospital's "abuse team" was involved and he received additionally medical attention, including bone scans and potentially spent "several more days" in the hospital as a result of hospital concerns about alleged abuse. A. H. stayed in the hospital for seven (7) days. Dr. Carlin testified that defendant's access to A. H. during the hospital stay was restricted based on plaintiff's statement to hospital staff that defendant and the paternal family should not be permitted in the hospital because she and the child were in danger from the defendant. Dr. Carlin testified that the ancillary disclosure by plaintiff may have resulted in the child being held in the hospital longer than medically necessary for heightened observation based on concerns about neglect.
Dr. Carlin questioned plaintiff's motivation in sharing the unrelated information about the defendant's prior neglect finding with the hospital staff as it contributed to the child being held in the hospital for an extended period of time during which the child refused to eat unless the plaintiff was present and the resulting weight loss. Dr. Carlin also questioned the reasonableness of the plaintiff judgment related to this incident as it appeared that plaintiff placed a greater emphasis on sharing information that appeared to reflect negatively on defendant than on focusing on the best interest of the injured child.
Defendant testified about the burn incident as follows:
Dr. Carlin, who apparently viewed the video tape of the incident confirmed defendant's account. Additionally, the record established that the doctor who treated the child indicated in his medical notes, which were entered into evidence, that the burn appeared accidental.
The Court finds the defendant's testimony credible that the children received substandard medical and dental care in the plaintiff's care. The defendant offered into evidence photographs in support of his testimony showing one of the parties' children with an extremely decayed tooth showing active signs of infection surrounded by inflamed gums and mouth sore and pictures of another child with untended, broken and ingrown toenails which defendant testified the plaintiff was unresponsive in treating. Defendant also submitted into evidence pictures of one of the parties' children showing facial bruising which he alleged was a result of plaintiff's inattentive care. The photograph, entered into evidence by defendant, showing one of the child's visibly decayed and infected tooth and gum must give pause for concern.
The Court finds credible the defendant's testimony that he has taken active steps to ensure that the children receive appropriate medical and dental care when the children are in his care. The Court finds that the defendant has been instrumental in ensuring that the children received necessary medical and dental care and the Court finds that at this time defendant is better equipped to assess the children's routine medical and dental care needs and that he will actively ensure that the children receive any necessary health care. The Court notes that as the litigation has continued the defendant has become more communicative with the plaintiff regarding the children's medical and dental issues; however, the plaintiff continues to be resistant to speak to the defendant about any issues and only sporadically responds to text messages from the defendant.
The Court finds that in the event of a medical emergency the defendant is more capable than the plaintiff of making a decision in the best interests of the children and that defendant is more likely to communicate effectively with the plaintiff in the event of an emergency related to the children.
It is also clear to the Court that the defendant has taken an active and encouraging role in assisting the children in transitioning from exclusively speaking and reading in the Yiddish language to English and has provided, especially for the two older children, basic mathematic education at home.
The defendant's desire to continue the litigation as a method of airing every real or imagined grievance and each and every detail of any dispute between the parties during the marriage or instance where he perceives that he or his family was "wronged" by plaintiff or plaintiff's family resulted in the Court having to issue orders and time periods so that the case could conclude and a final determination could be rendered. The Court notes that there were thirty-one (31) days of trial testimony.
The defendant's attempts to use this proceeding to re-litigate the neglect finding and to utilize the transcripts of that neglect proceeding and the plaintiff's testimony from years earlier to attempt to contradict that testimony, while not providing those transcripts — until judicial intervention by the Court — to the plaintiff who was a non-respondent in the neglect case, tells the Court that the defendant at times is more motivated by his desire to attack the neglect finding than learning from it as he now professes. Defendant used testimony during this litigation in an exhaustive attempt to prove that plaintiff's claims as to what happened during the kidnapping of the child were not entirely accurate — for example, that plaintiff's testimony regarding which door she was hanging from or which direction the motor vehicle was moving — begs the question as to, even assuming arguendo that plaintiff did not recall which direction she was dragged by the car while defendant kidnapped the child, whether defendant now understands the gravity and the danger to the plaintiff and the child of the situation he purposefully created. The neglect finding was already litigated and a tragedy could have ensued. It was only towards the end of the trial that, the Court believes, the defendant fully recognized the gravity of the event.
It is well established that the trial court is given great deference to assess the character and credibility of parties (see Varga v. Varga, 288 A.D.2d 210, 211, 732 N.Y.S.2d 576 [2 Dept., 2001], citing Diaco v. Diaco, 278 A.D.2d 358, 717 N.Y.S.2d 635 [2 Dept., 2000]; see also Ferraro v. Ferraro, 257 A.D.2d 596, 598, 684 N.Y.S.2d 274 [2 Dept., 1999]). In determining custody, the essential consideration is the best interests of the child (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658 ; Matter of Saravia v. Godzieba, 120 A.D.3d 821, 821-822, 991 N.Y.S.2d 476 [2 Dept., 2014]; Matter of Gribeluk v. Gribeluk, 120 A.D.3d 579, 991 N.Y.S.2d 117 [2 Dept., 2014]; Matter of Eison v. Eison, 119 A.D.3d 861, 989 N.Y.S.2d 383 [2 Dept., 2014]; Matter of Bowe v. Bowe, 124 A.D.3d 645, 646 [2 Dept., 2015]). In doing so, the Court must make a decision based upon the totality of the circumstances, (see Eschbach v. Eschbach, 56 N.Y.2d 167, 172, 451 N.Y.S.2d 658 ), which includes evaluating which parent will best provide for the child's "emotional and intellectual development, the quality of the home environment, and the parental guidance to be provided." Matter of Louise E.W. v. W. Stephen S., 64 N.Y.2d 946, 947, 488 N.Y.S.2d 637 .
The Appellate Division, Second Department has recognized the ability to give decision-making "spheres" to parties even when an award of joint legal custody would be inappropriate because the parties are unable to cooperate and behave amicably (see Matter of Hardy v. Figueroa, 128 A.D.3d 824, 825-826 [2 Dept., 2015]; Matter of Jacobs v. Young, 107 A.D.3d 896 [2 Dept., 2013]; Chamberlain v. Chamberlain, 24 A.D.3d 589, 591, 808 N.Y.S.2d 352 [2 Dept., 2005]; Matter of Ring v. Ring, 15 A.D.3d 406, 407, 790 N.Y.S.2d 51 [2 Dept., 2005]). It is well established in this State that joint custody is not appropriate "when parents are severely antagonistic and embattled." Braiman v. Braiman, 44 N.Y.2d 584, 587, 407 N.Y.S.2d 449 . This Court finds that the parties became severely antagonistic and embattled over the course of the custody proceedings. This finding is amply supported by the record and while the Court considered awarding spheres of decision making the Court finds that spheres of decision making would be inappropriate here based upon the level of animosity between the parties and, in particular, the record established that plaintiff will not readily communicate with the defendant. Additionally, at this time, the Court is concerned about the plaintiff's ability to be the sole decision maker for these children.
A significant factor in the determination of custody is which parent will assure that the child maintains a meaningful relationship with the other parent (see Vasquez v. Ortiz, 77A.D.3d 962, 909 N.Y.S.2d 155 [2 Dept., 2010]; see also Tori v. Tori, 67 A.D.3d 1021, 890 N.Y.S.2d 74 [2 Dept., 2009]; Matter of Bliss v. Ach, 56 N.Y.2d 995, 998, 453 N.Y.S.2d 633 ). The Court recognizes that an "interference with the relationship between a child and a noncustodial parent by the custodial parent has been said to be so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as custodial parent." Diaz v. Diaz, 97 A.D.3d 747, 948 N.Y.S.2d 413 [2 Dept., 2012], citing Chebuske v. Burnhard-Vogt, 284 A.D.2d 456, 458, 726 N.Y.S.2d 697 [2 Dept., 1995]. As such, the Court must negatively view any behavior or actions by a parent that limits access between the children and the other parent or attitude that appears to demean the other parent to the children (see Frey v. Ketcham, 57 A.D.3d 543, 869 N.Y.S.2d 160 [2 Dept., 2008]; see also Zafran v. Zafran, 28 A.D.3d 753, 814 N.Y.S.2d 669 [2 Dept., 2006]; see also Bobinski v. Bobinski, 9 A.D.3d 441, 780 N.Y.S.2d 185 [2 Dept., 2004]; Stern v Stern, 304 A.D.2d 649, 649, 758 N.Y.S.2d 155 [2 Dept., 2003]).
While the Court has concerns about awarding custody to the defendant the record establishes that the plaintiff is not capable of being the custodial parent because the record established that she is unable to meet the children's physical and developmental needs (see generally Spence-Burke v. Burke 2017 NY Slip Op 03210 [2 Dept., 2017]). It is clear that notwithstanding years of having the opportunity to address the mental health challenges that she faces, many caused by the living environment she is presently living in, she continues to be unable or unwilling to take the steps necessary to obtain treatment and the coping skills necessary to be a custodial parent and make appropriate health, education and general welfare decisions for these children. The Court believes that, at this time, the children will be safer with the defendant as the custodial parent. Additionally, the plaintiff is unable or unwilling to overcoming her own — understandable — anger towards the defendant which would be necessary in order for her to communicate with him on a regular basis about the children. The Court further notes that plaintiff's apparent non-compliance and lack of candor with her psychotropic medications and/or therapeutic treatment may, in part, be symptomatic of the mental health challenges she faces. The Court, in the final determination, must grant custody to the parent who is best equipped to provide the children with a safe environment and will ensure that their future physical, mental and educational needs are met.
The defendant has maintained throughout this proceeding that he believes it is important that the plaintiff be actively involved in the children's lives while plaintiff refuses to communicate with the defendant and has taken the position that he should not be involved in major decisions related to the children. Dr. Carlin testified that it was her professional opinion that, based on the perception plaintiff holds of defendant that plaintiff would "continue to interfere with the father and child's relationship" if plaintiff was given custody of the children. The defendant is cautioned and admonished not to exclude the plaintiff from discussions regarding major decisions related to the children and he shall not interfere with her parenting time and access to the children.
While "the value of forensic evaluations of the parents and children has long been recognized" (Matter of Volpe v. Volpe, 61 A.D.3d 691, 692, 878 N.Y.S.2d 72, quoting Ekstra v. Ekstra, 49 A.D.3d 594, 595, 854 N.Y.S.2d 439; see Matter of Womack v. Jackson, 30 A.D.3d 433, 815 N.Y.S.2d 486), the court is not required to accept the recommendation of the court-appointed forensic psychologist (see Bruno v. Bruno, 47 A.D.3d 606, 849 N.Y.S.2d 598; Matter of Kelly v. Hickman, 44 A.D.3d 941, 844 N.Y.S.2d 124; Matter of Griffin v. Scott, 303 A.D.2d 504, 756 N.Y.S.2d 437), as such recommendations are merely additional factors to be considered since `they are not determinative and do not usurp the judgment of the trial judge'(Matter of Kozlowski v. Mangialino, 36 A.D.3d 916, 917, 830 N.Y.S.2d 557)." (Bourne v. Bristow, 66 A.D.3d 621, 886 N.Y.S.2d 502 [2 Dept., 2009]. It is well-established that the Court is not required to follow, or to agree with, the recommendations of a Court appointed expert (see Zelnik v Zelnik, 196 A.D.2d 700, 700, 601 N.Y.S.2d 701 [1 Dept., 1995]; see also Berrouet v Greaves, 35 A.D.3d 460, 825 N.Y.S.2d 719 [2 Dept., 2006]). This Court makes the determination of custody based on review of the entire record and all the testimony and exhibits including, but not limited to, Dr. Carlin's testimony on the stand regarding her direct contact with the parties and the children and notes that it would be inappropriate to consider the forensic report solely without considering her testimony as well.
The Court does note that it may not substitute its judgment for that of neutral forensic, inasmuch as that would be an improper delegation of authority (see Hennelly v. Viger, 198 A.D.2d 224, 603 N.Y.S.2d 168 [2 Dept., 1993]). This court "... had the opportunity to view the demeanor of the witnesses, was in the best position to gauge their credibility" (Peritore v. Peritore, 66 A.D.3d 750, 888 N.Y.S.2d 72 [2 Dept., 2009]; see Varga v. Varga, 288 A.D.2d 210, 732 N.Y.S.2d 576 [2 Dept., 2001], citing Diaco v. Diaco, 278 A.D.2d 358, 717 N.Y.S.2d 635 [2 Dept., 2000] ["Evaluating the credibility of the respective witnesses is primarily a matter committed to the sound discretion of the Supreme Court"]; Ferraro v. Ferraro, 257 A.D.2d 596257 AD2d 596, 684 N.Y.S.2d 274 [2 Dept., 1999]; DiNozzi v. DiNozzi, 902 N.Y.S.2d 647, 2010 WL 2309109 [2 Dept., 2010]). While this Court will not — and does not — substitute its judgment for the recommendation of the forensic evaluator or anyone else, the Court notes that both the attorney for the children and the forensic evaluator both support an award of custody to the defendant-father.
This Court finds that under the facts and circumstances herein, the plaintiff shall have parenting time with the children as follows: alternating weekends with pick-up from the children's schools every other Wednesday, commencing Wednesday, May 10, 2017, and drop-off to the children's school on the immediately following Monday.
In the event the plaintiff is unable to exercise her scheduled alternating weekend and/or Wednesday overnight parenting time she shall notify the father no less than twenty-four (24) hours before her scheduled parenting time.
The Court cautions the defendant that future interference with the plaintiff's parenting time may be viewed by the Court as a continuation of this dispute and a further attempt to exercise control over the plaintiff.
The parties submitted proposed parenting time plans to the Court. After considering both proposals the Court has adopted the plaintiff's proposed holiday schedule inasmuch as it provided more detail regarding the holidays. The Court notes that "even" and "odd" years as specified herein are determined by the civil calendar observed by the State of New York. The parties shall alternate holidays with the children as follows:
Each parent shall have two (2) weeks of uninterrupted parenting time with the children each summer. In ODD YEARS, the defendant shall notify the plaintiff, via text message or e-mail, no later than May 1 of which two (2) consecutive weeks he will take the children during summer vacation and the plaintiff shall notify the defendant, via text message or e-mail, of which two (2) consecutive weeks she will take the children by May 15. In EVEN YEARS, the plaintiff shall notify the defendant, via text message or e-mail, of which two (2) consecutive weeks she will take the children no later than May 1 and the defendant shall notify the plaintiff, via text message or e-mail, of which two (2) consecutive weeks he will take the children by May 15.
For summer 2017 only: the defendant shall notify the plaintiff, via text message or e-mail, no later than May 15, 2017 of which two (2) consecutive weeks he will take the children during summer vacation and the plaintiff shall notify the defendant, via text message or e-mail, of which two (2) consecutive weeks she will take the children by June 1, 2017.
The plaintiff shall have parenting time with the children on Mother's Day from 9:00 a.m. (or when school ends if there is school that day) to 9:00 p.m. and the defendant shall have parenting time with the children on Father's Day from 9:00 a.m. (or when school ends if there is school that day) to 9:00 p.m. This shall supersede the regular weekend parenting time schedule.
The defendant shall have parenting time with the children on his birthday from 7:00 p.m. to 10:00 p.m. If the plaintiff's birthday occurs during a weekend with the defendant has parenting time with the children, the defendant shall return the children to the plaintiff for a dinner visit from 7:00 p.m. to 10:00 p.m. on her birthday. If the defendant's or plaintiff's birthday falls on a Friday, Saturday, or Sunday, that parent shall return the children to the other parent for his or her regularly scheduled parenting time. Pick-up and drop-off for the birthday dinner parenting time shall be curbside from the defendant's residence. The parties' and children's birthdays are in accordance with the calendar of their religious belief.
The parent who does not have regularly scheduled parenting time with the children on any of the children's birthdays shall have parenting timing for the three (3) hours immediately following the end of the school day with the children if the date falls on a school-day and six (6) hours with the children if the date falls on a weekend or a day when there is no school.
Defendant may not relocate from the Williamsburg area of Brooklyn with the children without the expressed written consent of the plaintiff or by Court order. Any attempt to remove the children from their Williamsburg community would have to be strictly scrutinized in light of each party's attempt to keep the children from the other during this litigation.
Either parent may take the children out of New York State for vacation during his or her parenting time. If either parent plans to vacation with the children outside of New York State, that parent must provide the other parent with the address, telephone number and itinerary, including a copy of any air plane ticket if the child will fly, by e-mail within twenty-four (24) hours prior to departure. Neither parent shall take the children out of the United States of America without a notarized affidavit from the other parent giving express consent or an Order from a Court of competent jurisdiction, to wit: either the Supreme Court or Family Court.
The Court notes that, given the level of conflict between the parties and the history of each party unilaterally removing children from the care of the other parent without consent, without this restriction the parties or the parties' family members would resort to self-help involving removing the children from the United States of America.
Each party shall give twenty-four (24) hour advance notice in writing via e-mail to the other party if his or her schedule visitation cannot take place as ordered herein. To accommodate the parties' schedules, the children's school schedules or extracurricular activity schedules, the parties may temporarily modify the parenting schedule herein, on consent, if the modification is reduced to writing and signed by each of the parties or confirmed by both parties by e-mail.
Each party shall provide the other with a telephone number where he or she can be reached during the time with he or she has parenting time with the children. Each parent shall provide the other with a current address and will notify each other within 72 hours of any changes to this information.
Medical Appointments and Access to Medical Records
The defendant shall schedule all routine dental and medical appointments for the children during his parenting time and he shall notify the plaintiff of all health care appointments. The plaintiff shall be permitted to attend all age and gender appropriate doctor's appointments. The plaintiff shall have reasonable access to all age-appropriate medical, dental and psychological records of the children. Each parent shall list the other parent as an emergency contact and authorize that party to have access to medical records and shall not restrict, in any way, that access.
Each parent will immediately notify the other regarding any emergency involving the children for which medical attention is sought. In the event of an emergency during the plaintiff's parenting time she may act to ensure their immediate health and to protect them but she must immediately notify the defendant and must continue to contact him until she is successful. Likewise, the defendant shall immediately notify the plaintiff of any major emergency requiring emergency room care or admittance to any health care service center or hospital. If either or both the children are admitted to a hospital or receive emergency medical treatment, the defendant shall notify the plaintiff immediately by telephone call and text message and the mother shall be allowed to attend and visit the child(ren) during treatment and recovery. At all times, the defendant shall have final decision-making over the children's medical care, except if the plaintiff is required to make an immediate medical decision in an emergency occurring during her parenting time with the children and she cannot locate the defendant. Neither parent shall interfere with access to a child or children while in the care of a hospital or emergency room.
The defendant shall provide the plaintiff with the contact information, including name, address and telephone number, of the children's health care providers and the children's health insurance information. The defendant shall immediately provide the plaintiff with any information regarding changes to the children's health insurance.
The parents shall notify the other by e-mail before the other parent's next scheduled parenting time begins of his or her knowledge of any medical issues, any illness(es), accident or other circumstances or event that may affect the children's health or physical or emotional well-being.
The parties shall not meet with the children's doctors without the other parent present except in the case of an emergency or if the other parent does not appear at the scheduled appointment time.
Parental Access Outside of Scheduled Parenting Time
Each parent shall be permitted to speak with the children when the children are not with them on the telephone or by other electronic means every day between 7:00 p.m. and 8:00 p.m. unless the children have a regularly scheduled activity or extracurricular activity. The children shall have the right to daily reasonable phone access and contact with both parents irrespective of which parent has parenting time with the children on that day.
School Events and Records
At all times, the defendant shall have final decision-making over the children's education. The plaintiff is hereby authorized to access any and all information related to the children's progress in school, including grades, attendance records and deportment, and she shall be permitted to attend any and all school functions, irrespective of which parent may have parenting time with the children on that day, and to meet with the children's teachers.
The plaintiff shall be listed as the children's parent on all school registration and information forms so that he will receive all information regarding the children's school activities and events directly from the children's school. Neither parent shall hinder, in any way, the other parent from attending any public event that the children are involved in, including, but not limited to sporting event, religious ceremony, school graduation or extracurricular competition or public event. Both parents shall have unfettered access to the children's teachers and administrators and all school records.
Defendant must seek the plaintiff's input regarding any changes to the children's school; however, as the custodial parent, defendant has final decision making regarding the children's education. Any changes to the children's school shall be done after the conclusion of the current school year.
Neither parent shall prejudice the children against the other parent or impair the children's regard for the other parent.
Defendant's Application for Contempt (Motion Sequence No. 20)
On March 17, 2016, the defendant filed an order to show cause (motion sequence #18) requesting that certain non-parties comply with defendant's so-ordered subpoenas dated November 4, 2015 and November 6, 2015. Defendant's counsel then filed a subsequent order to show cause (motion sequence # 20) on September 20, 2016 for the same relief. As of the December 22, 2016 appearance in this matter, of the non-parties listed in the original order to show cause for contempt, all non-parties had either complied with the so-ordered subpoenas or their names had been withdrawn by defendant's counsel except those related to the United Talmudic Academy, the school the children currently attend. Pursuant to the order of this court dated December 22, 2016, the matter was then scheduled for a limited hearing on January 3, 2017 on the limited issue of contempt relating to the non-party's alleged non-compliance with the so-ordered subpoena. Specifically, the hearing was related to defendant's request for the children's report cards as part of the files that defendant alleges should have been provided pursuant to the subpoena.
On January 3, 2017 the defendant appeared with counsel, the non-party appeared with counsel and plaintiff's counsel appeared without his client (it was stated on the record that the attorney for the children had been notified of the hearing by defendant's counsel but chose to waive her appearance).
A party seeking imposition of punishment for civil contempt must prove by clear and convincing evidence that the party to be charged with the contempt violated a clear and unequivocal mandate of the court of which it had knowledge, and thereby prejudiced the movant's rights (see S.P.Q.R. Co., Inc. v. United Rockland Holding Co., Inc., 136 A.D.3d 610, 611-612, 24 N.Y.S.3d 701; Wheels Am. NY, Ltd. v. Montalvo, 50 A.D.3d 1130, 1130, 856 N.Y.S.2d 247). A subpoenaed witness must be shown to be in possession of or have reasonable access to the information sought in order for the subpoenaed witness to be held in civil contempt (see generally Yalkowsky v. Yalkowsky, 93 A.D.2d 834, 835, 461 N.Y.S.2d 54).
At the contempt hearing held on January 3, 2017 the non-party testified that he was an "administrator" at the school in question and that he had provided a "package" of documents pursuant to the subpoena and that whatever was in that "package" was "whatever we have on file." Defendant's counsel inquired as to whether the school maintained records "which set forth the marking periods or grades for the children each quarter" to which the non-party responded "no." The defendant submitted no evidence to the contrary, but attempted on numerous occasions to ask questions regarding school policies that were outside the scope of the limited contempt hearing.
Based upon the non-party's testimony this Court finds the evidence produced at the hearing insufficient to punish the non-party for contempt on the ground that he refused or willfully neglected to obey the information subpoena (see CPLR 5251; Weinstein—Korn—Miller, NY Civ. Prac. ¶ 5251.05 [2d ed.]). Furthermore, the Court will not allow this litigation to be used, as the father contends, as a condemnation or collateral attack on the school or educational services the children attend. Based on the foregoing, defendant's motion sequence # 20 is denied.
Under the facts presented here, the Court finds that the defendant is the parent who is more capable and more likely to cultivate a relationship between the children and the other parent. Here, both parents have actively attempted to inappropriately influence the children and turn the children against the other parent during the litigation; however, the record established that the defendant has taken proactive steps to educate himself on how his actions impact the children and to improve his ability to co-parent with the plaintiff.
The Court notes that the plaintiff has clearly made efforts to manipulate the youngest child during this litigation and the defendant's family has put undue pressure on the children. Additionally, it is clear that both parties have been engaged in an indefensible pattern of physically taking the children when they are in the care of the other parent and hiding the children from the other parent during this litigation in an attempt to manipulate the outcome of the custody dispute.
The level of distrust between these parties and the level of animosity between the parties' families and respective communities make it impossible for these two parties to co-parent or to jointly raise these children.
It is clear to the Court that these two parties are unable or unwilling to stop fighting one another and that the only relief that this family — including these children — will have from the ongoing turmoil of the deep-seated distrust and animosity between these parties and their respective families and communities will be this Court making a final determination of custody and parenting time and even then it will be up to all to stop this monumental dispute for the sake of these three (3) children.
The record established that both parties sought to influence the children and to manipulate this judicial process. Rarely has this Court been called upon to determine an award of custody where the Court has such doubts about the parenting abilities and the motives of both parties. The Court notes that the level of manipulation engaged in by these parties even involved testimony alleging falsification of physician's letters and misappropriated letterhead from a medical professional where the alleged author is now, unfortunately, deceased.
It is indefensible that the parties' families and communities chose to play major, negative roles in this custody dispute by participating and aiding in the taking and harboring of the children from the other parent. The acrimonious relationship between the parties, the parties' families and the parties' respective community groups has had tragic consequences for these children.
The Court finds that plaintiff's failure to address her mental health challenges and to seek the requisite treatment and monitoring, under the unique facts and circumstances of this case, make her unable at this time to be the custodial parent for these young children. Based on the record, the Court does not believe that if she was awarded legal and residential custody that the plaintiff is capable of providing a safe and secure custodial environment. The Court also finds that plaintiff has demonstrated a systematic inability or unwillingness to communicate with the defendant regarding the children.
The defendant-father is granted sole legal and residential custody of the children and the plaintiff-mother is granted parenting time as detailed herein. The defendant shall consult with the plaintiff on all decisions regarding the parties' minor children; however, the defendant shall have all final decision making regarding the children. This Court's decision is based upon the Court's own observations, credibility findings, all of the trial testimony, and the in camera interviews with the children. This Court has considered Dr. Carlin's forensic report, dated June 10, 2015, and Dr. Carlin's testimony as well as the extensive testimony provided by the neutral forensic; however, this Court makes the final determination of custody based upon review of the record as a whole including, but not limited to, the neutral forensic's testimony in Court regarding her direct contact with the parties and the children.
Ms. Serlin has advocated for her clients under extremely challenging circumstances where her clients have clearly been inappropriately influenced by both parents. Pursuant to her request she is hereby relieved as the attorney of record for the children upon the signing of an interlocutory judgment of custody and parenting time. The Court has no authority to continue the Legal Aids Society's voluntary representation in a Supreme Court divorce action.
The parties shall settle an interlocutory judgment, on notice together with a copy of this decision, with notice of entry within sixty (60) days. The parties are directed to appear on Tuesday, June 6, 2017 at 9:30 a.m. for a pretrial conference on the financial issues and to select a trial date for any remaining financial and ancillary issues.
Given the limited income of the parties herein the Court will not allow the parties to use the financial issues as an attempt to collaterally attack each other's — and their families' — receipt of public benefits. If a party sincerely believes there is a fraud in the receipt of those benefits the proper remedy rests with the Inspector General of the agency or law enforcement officials.