Suffolk Family Court Judge Thoughtfully Explains a Change in Custody

Y v. Y

SUFFOLK COUNTY

Family Law

February 10, 2010

DECISION AND ORDER

In this custody proceeding brought pursuant to Article 6 of the Family Court Act, the petitioner, R L. Y, father of the three subject children, C Y, born March 3, 1996, E Y, born June 5, 1994, and M Y, born August 16, 1992 seeks sole legal and physical custody from the respondent D Y, the children's mother, to whom he was married on August 11, 1990, and the respondent Suffolk County Department of Social Services (hereinafter referred to as D.S.S.), which had custody of the three children. The matter was commenced by the filing of a custody petition on October 19, 2007 which alleged, inter alia, that because of the Suffolk County Family Court Neglect proceedings pending against D Y which resulted in the removal of the children from her custody and their placement with a foster care family, a change in circumstances existed which warranted that the petitioner be granted a hearing to determine the legal and physical custody of his three daughters.

At the commencement of this custody proceeding, the Court took judicial notice of all prior Family Court proceedings involving the Y family, including the Neglect proceedings against D Y.

The above mentioned Neglect proceedings against D Y (Docket Nos. N-3875-07, N-3876-07 and N-3877-07) were commenced by the filing of a Neglect petition on March 5, 2007 by D.S.S. The three children were removed from their mother's custody pursuant to F.C.A. smark 1022 by Family Court order dated February 23, 2007. The removal order was continued by order of this Court dated March 6, 2007. Jurisdiction was obtained over D Y by her appearance in Family Court on March 6, 2007. A Law Guardian, Joy E. Jorgensen, Esq., was appointed to represent the three children.

On May 4, 2007, D Y, while represented by counsel, Maureen A. Glass, Esq., admitted under oath in open court that commencing in or about 2006 and continuing through February 2007, she suffered from a mental health condition that negatively impacted her ability to care for her children and she failed to obtain appropriate and timely mental health treatment for the condition. This Court issued a Fact-Finding Order dated May 23, 2007 which adjudged that sufficient facts to sustain the Neglect petition were established and that the three subject children were neglected, as defined by F.C.A. smark 1012. On March 5, 2008, a dispositional hearing pursuant to F.C.A. smark 1052 was held, and an Order of Disposition with Placement Permanency Hearing was issued on March 11, 2008. D Y was represented by counsel, Steven Kommor, Esq., at the dispositional and permanency hearing. Based upon findings that imminent risk to the children would not be eliminated by issuance of an order of protection directing the removal of D Y from the children's residence, that there was no non-respondent parent, relative or suitable person with whom the children may appropriately reside, and that reasonable efforts were made to return the children home safely, D.S.S. was granted custody of the three children, with the direction that they be placed together in the same foster care home. D Y was placed under the supervision of D.S.S. pursuant to F.C.A. smark 1057. One of the conditions of supervision was that D Y attend and participate in psychotherapy/counseling at the direction of D.S.S. and follow all recommended treatment. The children were directed to continue to attend and participate in psychotherapy with Dr. Jane Albertson-Kelly's office. The order of protection dated August 8, 2007 against D Y was continued. Visitation with both parents was ordered to be supervised by D.S.S. or an approved person or agency. A Permanency Plan pursuant to F.C.A. smark 1089 was approved which indicated that the goal was reunification with a parent by August 2008.

On July 2, 2008 an order was issued which permitted unsupervised visitation between the children and both parents, with certain conditions. On August 6, 2008, the Court issued a Permanency Hearing Order which continued foster care for the children, delayed the goal of reunification with a parent until January 2009, and modified the order of protection against D Y, on consent of the parties. Visitation with both parents was increased by order dated September 4, 2008, and visitation with both paternal and maternal grandparents, with certain conditions, was ordered on November 10, 2008.

Unfortunately, all unsupervised visitation by both parents was modified to supervised visitation by Court order dated December 17, 2008. A Permanency Hearing Report dated December 29, 2008 delayed the goal of reunification with a parent to July 2009, or sooner. On April 23, 2009 the Court ordered a resumption of unsupervised weekend visitation for both parents. On June 4, 2009, visitation to both parents was expanded to unsupervised overnight weekend visitation. Additional summer visitation to both parents was ordered on July 9, 2009.

Testimony of D Y

On February 26, 2009, the respondent, D Y, 49 years old, was called to testify by the petitioner. She testified that she had not suffered from any mental issues prior to 2007 until the present. She stated that her admission made in Court to the Neglect Petitions was untruthful, and that she was not responsible for the unsanitary condition of her house in Lindenhurst. She stated that her three children were in foster care because of R Y's criminal behavior: namely, breaking into the Lindenhurst house, trashing it, and then calling the press while she and the children were upstate in February 2007.

On cross-examination by her attorney, D Y testified about her marriage to R Y in August 1990, and the birth of their three daughters: M in 1992, E in 1994 and C in 1996. She testified that R Y began to exhibit bizarre mood swings about a year after their marriage, and that he eventually moved out of the marital residence in May 2001. Despite years of alleged violent behavior and fifteen to twenty alleged incidents of domestic violence by R Y, she never required medical treatment and never called the police for assistance, except in 1998 or 1999, when she called South Oaks Hospital to report that her husband was suicidal, and police came and removed R Y from the house. In 2004 and 2005, therapeutic visitation supervised by Dr. Campbell between the three children and their father was directed by Justice Blydenburgh because of unsubstantiated sexual abuse allegations raised by D Y.

Under cross-examination by the Assistant County Attorney, D Y testified that when her father picked her and the three girls up on February 17, 2007, he waited in the car for them and did not enter the Lindenhurst house, despite the fact that he had been traveling for several hours from Windham, New York. In fact, neither one of her parents had been in the house for the past six months. She stated that the house was neat and clean when she left on February 17, 2007, and not in the unsanitary and unsafe condition documented on February 23, 2007. She testified that when she left there were only two cats in the house, and that there was no garbage on the back deck. She swore that neither she nor the girls ever urinated in bottles, and that there were no bottles of urine stored in the house, despite her admission in Family Court on June 20, 2008.

On cross-examination by the children's Law Guardian, D Y testified that the last overnight visit the children had with their father was in the late Spring of 2005. She could not remember when the last time was that any of the girl's friends had been inside the Lindenhurst house prior to February 23, 2007. She stated that if she was awarded physical custody of the children, she would fully cooperate with visitation with their father.

On redirect examination by R Y's attorney, D Y testified that her previous attorney, Maureen Glass, Esq., told her to lie when she made the admission to the Neglect Petitions in Family Court.

Testimony of R Y

On June 4, 2009, the petitioner, R Y, 45 years old, was called to testify in support of his petition for custody. He testified that during visitation with his daughters, they happy to see him, and that he had no conflicts at all with the children. He testified that from the period of February 2004 to February 2007 he had not seen the children. He stated that the children had not seen their paternal grandparents for eight years, from the Spring of 2001 when he left the marital home in Lindenhurst until a supervised visit at E.A.C. in 2009. He stated that the children were very happy with the four bedroom home purchased by his parents for him in Centereach. He testified that the family residence was established in Centereach, where the children were residing in foster care, to insure that the children would remain in the same school district if he was awarded custody.

R Y denied the allegation that he had broken into the Lindenhurst house, to which he held the title, that he had caused all the extensive damage, and that he had called the media in order to frame D Y as a neglectful mother. He described vividly the circumstances on February 21, 2007 surrounding his entry into the Lindenhurst house while D Y and the children were away. He testified that in the basement he found a broken sewer pipe from which leaked raw sewerage from the toilets; a collapsed ceiling; black mold and a rusting filing cabinet and bike. He stated that raw sewerage covered the floor of the basement. The washer and dryer were not working.

The Suffolk County Police called the A.S.P.C.A. to the house when they found twelve cats at the house. Six cats were still alive but in poor condition (one was in a box), and six were rotting carcasses. Three dead cats were found in the basement, one dead cat on the second floor, one dead cat on the main floor, and one dead cat outside near the doorway.

R Y testified that in the house he found hundreds of bottles filled with urine, along with garbage bags filled with feces. Debris filled the house and the back deck. The stench of death, urine and sewerage permeated the house making it unbearable to stay inside the house.

R Y testified that he has seen a therapist weekly for the past 2½ years, and that he plans to continue treatment. He promotes the present counseling for the three girls with Dr. Jane Albertson-Kelly, and would continue their sessions if he was awarded physical custody. While he admitted he still did not trust D Y or her parents, R Y testified that he thought it would be good for the girls to visit with their mother if he was awarded physical custody.

On cross-examination by D Y's attorney, R Y testified that in 1987 he entered the United States Marine Corps, and received an administrative discharge after 2½ months because he resisted authority.

On cross-examination by the Assistant County Attorney, R Y testified about his present relationships with each of this three daughters. He stated that he works Monday through Friday from 8:30 a.m. to 4:30 p.m., and that he is not currently taking any medication.

On cross-examination by the children's Law Guardian, R Y testified about his relationships with each of his three daughters since he resumed seeing them in 2007 after a three year separation. He stated that he had never physically reprimanded the girls.

Testimony of the Children

The Court conducted three separate in camera interviews with M, E and C on October 21, 2009 with the Law Guardian present. The transcript of those interviews was sealed in accordance with F.C.A. smark 664(b).

Law

With respect to any determination of custody, the paramount concern of the Court is which resolution will best serve the interests of the subject child by promoting the child's welfare, happiness,, and optimum development (Eschbach v. Eschbach, 56 NY2d 167, 451 NYS2d 658 [1982]; Friederwitzer v. Friederwitzer, 55 NY2d 89, 447 NYS2d 893 [1982]; Matter of Nehra v. Ulhar, 43 NY2d 242, 401 NYS2d 168 [1977]). Among the factors to be considered in ascertaining the child's best interests are:

(1) The demonstrated parenting ability and relative fitness of the parties (Eschbach v. Eschbach, supra, at 172; Matter of Ebert v. Ebert, 28 NY2d 700, 380 NYS2d 472 [1976]);

(2) The love, affection and nurturing given by each party to the child, the emotional bond between the child and each party, and the willingness and ability of each party to put the child's needs ahead of her/his own needs (Porges v. Porges, 63 AD2d 712, 405 NYS2d 115 [1978]);

(3) The length of time the child has lived in a stable and satisfactory environment, the desirability of maintaining the current custodial residence, and the stability of the proposed custodial residence (Matter of Nehra v. Uhlar, supra);

(4) The ability of each party to provide for the child's emotional and intellectual development (Porges v. Porges, supra);

(5) The financial resources available to each party and the ability of each party to provide the child with food, clothing, housing and medical care (Eschbach v. Eschbach, supra);

(6) The individual needs and expressed desires of the child and the degree to which the custodial determination would either continue or interrupt the various elements of the child's day-to-day life (Eschbach v. Eschbach, supra; Dintruff v. McGreevy, 34 NY2d 887, 359 NYS2d 281 [1974]; Obey v. Degling, supra);

(7) The willingness and ability of each party to facilitate and encourage a close and optimum relationship between the child and the other party (Matter of Dobbs v. Vartabedian, 304 AD2d 665 758 NYS2d 153 [2003]);

(8) The impact of domestic violence upon the child (Domestic Relations Law 240(1); Wissink v. Wissink, 301 AD2d 36, 749 NYS2d 550 [2002]); and

(9) Any other factor deemed relevant to a particular custody dispute.

Decision

The Court was called upon to judge the credibility of the witnesses who testified and the court's determination in assessing the evidence is entitled to deference (Matter of Dwyer-Hayde v. Forcier, 2009 WL 4068467, — NYS2d — [2009]; Matter of Mohabir v. Singh, 63 AD3d 881 NYS2d 303 [2009]). A trial court's determination will not be disturbed unless its conclusions could not be reached under a fair interpretation of the evidence. The Second Department has repeatedly held that credibility is a matter within the trial court's special competence (Blakey v. Blakey, 61 AD3d 709, 876 NYS2d 647 [2009]; Nicholas T. v. Christine T., 42 AD3d 526, 840 NYS2d 120 [2007]; Schlosser v. Schlosser, 7 AD3d 777, 776 NYS2d 870 [2004].

The Court searched the statewide registry of orders of protection, the sex offender registry and the Family Court's child protective records on February 23, 2009, July 16, 2009 and November 11, 2009, and notified the attorneys for the parties and for the children of the results of these searches; the Court has considered and relied upon the results of these searches in making this decision and order.

Factors

(1) The parenting ability and relative fitness of each parent

The record indicates that under the circumstances presented here, R Y is the more fit parent. The Court found the father, on the whole, to be more credible. Based upon this credibility determination, more weight was afforded to his testimony (Fallon v. Fallon, 4 AD3d 426, 771 NYS2d 381 [2004]; Matter of Shockome v. Shockome, 30 AD3d 528, 816 NYS2d 365 [2006]; Matter of Greene v. Gordon, 7 AD3d 528, 776 NYS2d 73 [2004]; Matter of Dobbins v. Vartabedian, 304 AD2d 665, 758 NYS2d 153 [2003]. D Y's fitness was called into question by the inexplicably unsafe, deplorable and imminently dangerous physical condition of her residence at 239 Nevada Street, Lindenhurst in February 2007. Since 2007, D Y has relocated to Windham, New York, where she has not been gainfully employed or actively seeking employment. There is no evidence that she has sought meaningful treatment for her mental health issues. However, the Court does commend the mother for her past activities with the children, including educational, religious and social activities. While the Court is convinced that she is concerned about her three daughters, under the circumstances presented as they currently exist, the weight of the credible testimony established that R Y is the more fit custodial parent. In awarding the father sole custody, the Court takes into account the testimony and exhibits of the mental health and social work professionals in the record who opined that the father has demonstrated that he is better able to provide the children with a structured and stable home environment, while the mother struggles to let go of her past and deal realistically in the present (Matter of Edwards and Rothschild, 60 AD3d 675, 875 NYS2d 155 [2009]).

(2) The emotional bond and willingness to put the children's needs above his/her own needs

Mr. Y's dedication to being reunited with his three daughters was demonstrated by his relocation from Lindenhurst to Centereach in order to provide appropriate housing in the children's present school district. Mrs. Y chose to relocate from Lindenhurst to Windham, New York, several hours away from her daughters' foster care home. Although she had been actively involved in her children's lives prior to 2007, the respondent has since distanced herself from the children, physically and emotionally. The credible testimony established that Mr. Y, who had relatively no contact with his daughters since 2004, has now established an emotional bond with all three of his daughters after months of therapeutic, supervised and non-supervised visitation since these proceedings began in 2007. The Court notes, as an example, the quality of the visitation time experienced by the children with each parent. Prior to unsupervised visits, a caseworker would supervise the mother's and father's visitations. Mrs. Y visited her daughters at the D.S.S. office, at the mother's request; while Mr. Y's visits were exciting outings for the girls to enjoy and have fun each week (see Permanency Plan Hearing Report dated June 25, 2008).

(3) The children's prior, current and proposed custodial residences

Prior to February 2007, the children lived with Mrs. Y at 239 Nevada Street, Lindenhurst. Mr. Y had left the marital residence in 2001. Because of the failure of the respondent to maintain a safe and habitable residence due to her mental condition, the three children have been living together with the same foster care family since February 2007. It has always been the objective of this Court to promote the reunification of the three children with a parent. A family unit is struck a vital blow when parents separate but it is struck an additional one when children are separated from their siblings (Ebert v. Ebert, supra; Obey v. Degling, supra). The Court finds that continuation of foster care for the children under the mother's Neglect proceedings is neither appropriate nor in the children's best interests. Given the choice between the petitioner's proposed custodial residence in Centereach, which was purchased in order to live in his daughters' school district, and the respondent's proposed custodial residence in Windham, New York, the Court is convinced that it would be in the children's best interests to reside with their father in Centereach. Needless to say, the three girls have adjusted to a new school system, and have made new friends in their neighborhood. The Court finds that to disrupt their educational and social life by relocating to Windham would not be appropriate.

(4) The ability of each parent to provide for the children's emotional and intellectual development

Both parents demonstrated that they are interested in the educational development of their children, who are all doing better academically than could have been expected. The Court finds, based on the weight of the credible testimony, that Mr. Y would provide a more structured home environment than Mrs. Y, due to the mother's inability to acknowledge her pivotal role as to why the children are in foster care, and to recognize and comprehend the emotional harm done to her daughters by her failure to provide them with a normal, safe and habitable home in Lindenhurst, and to take immediate necessary steps to deal with her mental health issues.

(5) The financial ability of the parents

One of the factors which must be considered by this Court is the financial status and the ability pf each parent to provide for the children's material needs. While this factor is not determinative, especially since a child support order is designed to provide for the custodial parent an appropriate amount of child support, the Court cannot ignore the respective financial positions of the parties. Taking that into account, the testimony revealed that the petitioner is in a stronger financial position to provide for the material needs of the children. Mr. Y is gainfully employed, while the respondent apparently relies on her parents for financial support, since she is not gainfully employed or actively seeking employment.

(6) The individual needs and expressed desires of the children and the degree the custody determination would disrupt their daily routine

During separate in camera interviews with the Law Guardian present, the three girls individually expressed their desire to live with their mother. In weighing this factor, the Court must consider the age and maturity of the child and the potential for influence having been exerted on the child (Eschbach v. Eschbach, supra). The Court notes that while it has considered the children's reasons for living with their mother, the wishes of the children are not controlling (Dintruff v. McGreevy, supra; Koppenhoefer v. Koppenhoefer, 159 AD2d 113, 558 NYS2d 596 [1990]). The Court was impressed by the children's ability to articulate their opinions and feelings, but the Court finds that their wishes are not consistent with their best interests. The Court believes that Mr. Y is the parent who possesses the more nurturing parenting behavior and that he is the more fit parent.

(7) The parents' willingness and ability to encourage a close relationship between the children and the other parent

The question of which parent is better able to ensure meaningful contact with the other parent must be considered (Bliss v. Ach, 56 NY2d 995, 453 NYS2d 633 [1982]). This is an important factor (Gorelik v. Gorelik, 303 AD2d 553, 757 NYS2d 67 [2003]). Here, the evidence has shown great hostility between these parents. While the children were with their mother, Mrs. Y's animosity toward Mr. Y, and her attempts to exclude him from his children's lives and to undermine his children's relationships with him, were harmful to their children and rendered her the less fit parent (see Matter of Fallon, supra; Matter of Shockome v. Shockome, supra,; Matter of Greene v. Gordon, supra; Matter of Dobbins v. Vartabedian, supra). Mr. Y, having been the non-custodial parent for several years, has gained a more mature understanding of the need for appropriate parental access for both parents. The Court is convinced that Mr. Y is the parent who is more likely to assure meaningful contact between the children and the non-custodial parent, and who better understands that a meaningful relationship between the children and the non-custodial parent is paramount. The Court is confident that Mr. Y will foster those relationships as the custodian parent, and that he will not hinder visitation, as Mrs. Y did for many years to Mr. Y.

(8) The impact of domestic violence upon the children

The evidence failed to establish that either parent engaged in any improper physical conduct with regard to the children, although there were allegations of marital strife between the parents, which doubtless negatively impacted the children (D.R.L. smark 240.[1]; see Matter of Wissink, supra; Matter of Meyers v. Sheehan, 62 AD3d 802, 880 NYS2d 96 [2009]). However, of greater concern to the Court is the psychological harm caused to the children by Mrs. Y's failure to maintain a safe, sanitary and habitable home for the children, and to take the necessary steps to deal with her mental health issues.

Recommendation of Department of Social Services

The recommendation of respondent D.S.S., the custodian of the three children since February 2007, was that the Court grant custody to the father, and moderate unsupervised visitation to the mother. Their opinion was that no extraordinary circumstances exist which warrant continued foster care, and which would prevent the three children being reunited with their more fit parent. D.S.S. supervision of the mother under the Neglect proceedings should be terminated. The Court was urged to order that the children's counseling with Dr. Jane Albertson-Kelly be continued. It was the position of D.S.S. that, while neither parent was a candidate for "parent of the year," the three girls were now more mature and strong enough to deal with their parents, and that it would be in the best interests of each of the three children to discontinue foster care at this time.

Recommendation of the Law Guardian

The Law Guardian, Joy E. Jorgensen, Esq., has represented M, 17, E, 15, and C, 13, since the first Family Court appearance on March 6, 2007, and in prior actions in Supreme Court since 2001. She recommended that the Court grant the desires of the three teenage girls to live with their mother, rather than their father, for the reasons expressed individually by each child during the in camera interviews conducted on October 21, 2009.

Summary

In summary, the Court, after observing the mother and father, receiving testimony from the mother and father, conducting separate in camera interviews of the three children, listening to the recommendations of D.S.S. and the Law Guardian, and mindful of the guiding factors and considering the totality of the circumstances, awards sole legal and physical custody of Melissa Y, Emmalee Y, and Cecelia Y to R Y. The Court finds the father to be the more stable and fit parent, who is better able to meet the needs of the children. Although Mr. Y was only minimally involved with his daughters from 2004 until 2007, he has been steadily nurturing and strengthening his relationship with his three daughters for over two years since the intervention of the Family Court in February 2007.

Mrs. Y's desire to have a loving and nurturing relationship with her children is evident from her testimony and she can continue to have a strong relationship with them; however, the failure of the respondent to recognize and deal with her mental health issues which resulted in the children living in an inexplicably unsafe and dangerous residence suggest a serious parental deficiency which is the significant factor in causing her to forfeit residential custody of the children. Also, this custodial determination will be less disruptive to the children, who will not be uprooted from their schools and social activities at such a crucial time in their teenage lives.

Although this decision will be disappointing to the mother, the Court of Appeals in Braiman v. Braiman, 44 NY2d 584, 407 NYS2d 449 [1978] reminds the parents that joint custody is encouraged "as a voluntary alternative for relatively stable, amicable parents behaving in a mature civilized fashion". However, joint custody would be inappropriate here where the parties are antagonistic, embattled, and unable to set aside their differences to facilitate decision-making and cooperate on matters in the best interests of their children (see Braiman v. Braiman, supra; Bliss v. Ach, supra; Matter of Manfredo v. Manfredo, 53 AD3d 498, 861 NYS2d 399 [2008]. The foremost concern is the best interest of the children (D.R.L. smark 240; Finlay v. Finlay, 240 NY 429, 148 NE 624 [1925]), not the emotional needs of the parent, or any other concern that may be counter to the children's welfare.

As part of this custody order, the parties are directed to adhere to the following conditions:

1. If either parent has knowledge of any illness, accident, or other circumstances seriously affecting the children's health or welfare, they will notify the other parent of the children's condition.

2. Each parent shall keep the other parent informed at all times of the whereabouts of the children and provide a telephone number where they can be reached.

3. While the father is granted the right and obligation to make educational decisions regarding the children, the mother may seek information from the appropriate school personnel regarding her children's development as students.

4. Each parent shall be entitled to attend any public events in which the children are involved or attending.

5. The mother shall be entitled to inspect and review her children's school records (see 20 U.S.C.A. 1232 [g] [Family Educational Rights and Privacy Act of 1974]; Education Law smark 3212; Matter of Page v. Rotterdam-Mohonasen Cent. School Dist., 109 Misc2d 1049, 441 NYS2d 323 [1981]).

6. The father shall retain complete and total authority in the medical treatment of the children, including surgical, dental, psychiatric or psychological matters. Both parents shall be entitled to individually access information from any pediatrician, general physician, dentist, mental health professional, consultant, or specialist attending the children.

Visitation

The Court recognizes that visitation is a joint right of the non-custodial parent and the children. "Whenever possible, the best interests of a child lie in his [or her] being nurtured and guided by both of his [or her] natural parents" (Daghir v. Daghir, 82 AD2d 191, at 193, 441 NYS2d 494 [1981]). Thus, the Court finds it appropriate to set forth a visitation schedule which is expected to assist in maintaining a meaningful nurturing relationship between the children and their mother. Accordingly, the Court directs the following visitation schedule:

A. The mother shall have the right to visitation with the children Melissa, Emmalee, and Cecilia, away from the father's custodial residence, on

1. Alternate weekends, from Friday after school, or upon the mother's later availability, until Sunday at 8:00 p.m. In the event there is no school on Friday, visitation shall commence at 3:00 p.m., or upon the mother's later availability;

2. In even numbered years: Washington's Birthday, Easter Sunday, Memorial Day, Labor Day and Veteran's Day, from 10:00 a.m. to 8:00 p.m. on each day.

3. In odd numbered years: Martin Luther King's Birthday, Lincoln's Birthday, July 4th, Columbus Day, New Year's Eve and New Year's Day from 10:00 a.m. until 8:00 p.m. on each day.

In the event that any of the aforementioned holidays shall fall on a Monday and the mother has weekend visitation immediately prior to the holiday, visitation shall be from Friday after school, or upon the mother's later availability, until Monday at 8:00 p.m.

4. In odd numbered years, from Thanksgiving Day at 9:00 a.m. through the Thanksgiving weekend, terminating on Sunday at 6:00 p.m.

5. In odd numbered years, commencing December 23rd at 6:00 p.m. to December 25th (Christmas Day) at 10:00a.m.

6. In even numbered years, one week during the children's Christmas vacations, commencing December 25th (Christmas Day) at 10:00 a.m. until December 31st (New Year's Eve) at 10:00 a.m.

7. In even numbered years, during the children's midwinter vacation, from the last day of school at 5:00 p.m. until the following Saturday at 6:00 p.m.

8. In odd numbered years, during the children's spring vacation, from the last day of school at 5:00 p.m. until the following Saturday at 6:00 p.m.

9. Mother's Day from 9:00 a.m. to 8:00 p.m. In the event that Mother's Day falls on a weekend when the mother is otherwise not entitled to visitation, the mother shall nevertheless enjoy visitation with the children on that Sunday.

10. On the birthdays of the children and the mother's birthday, a minimum of three hours per birthday, said hours to be mutually agreed upon by the parties.

11. Such other or different times as the parties hereafter shall mutually agree.

B. In addition to the aforementioned schedule, the mother shall be entitled to four (4) weeks, no more than two (2) weeks of which would be consecutive, of uninterrupted vacation with the children during the summer of each year, and the father shall be entitled to four (4) weeks, no more than two (2) weeks of which would be consecutive, of uninterrupted vacation with the children during the summer of each year. The father's summer vacation time with the children shall supercede the mother's visitation time as set forth above in Paragraph "A" Subparagraph "I". The summer vacation shall be deemed to commence on the first Sunday after the termination of the school year.

In even years, the mother shall have priority as to the four (4) weeks she selects for her summer vacation. The mother shall notify the father, in writing, of the weeks she selects no later than May 1st of each even numbered year. In odd numbered years, the father shall have priority as to the four (4) weeks he selects for his summer vacation with the children. The father shall notify the mother, in writing, of the weeks he selects no later than May 1st of each odd numbered year.

In the event that the parent having the preference of selection in a given year fails to timely notify the other parent of his or her selection by May 1st of each year, then that parent shall lose the preference for that year (and that year only), and his or her summer vacation with the children shall be subject to the pre-planned activities, if any, of the other parent.

C. Notwithstanding anything to the contrary, the father shall have physical custody of the children on Father's Day and on those holidays and holiday periods on which the mother does not have specific holiday visitation. In the event that Father's Day falls on a weekend when the mother is otherwise entitled to visitation, the father shall nevertheless enjoy physical custody of the children on Father's Day.

D. All rights of visitation set forth herein shall take place away from the residence of the father. The mother shall pick up the children at the father's residence and return them to the father's residence at the end of visitation. Unless there is a health emergency involving the children, neither parent shall enter the other parent's residence.

E. It is understood that the mother's visitation time shall be such that it shall not interfere with, nor adversely affect, the school, religious, sports activities or non-routine social activities of the children or the children's health or general welfare. The mother shall transport the children to such activities if they occur during her visitation time. Nothing contained herein shall be construed as an obligation or a duty on the mother's part to exercise her visitation rights. On all occasions when the mother does not plan to exercise her rights of visitation, or she expects that she will be tardy in doing so, or intends to return the children at an earlier hour, the mother shall give the father as much advance notice as possible in order that the father can make appropriate plans.

The foregoing constitutes the decision and order of the Court.