The two are in a bitter divorce battle, and the question of what faith their child should be raised in is pushing the boundaries of child custody arrangements.

Reyes' decision to baptize his daughter without his wife's permission resulted in what some are calling an extraordinary court order: The Hon. Edward R. Jordan in the Circuit Court of Cook County, Ill., imposed a 30-day restraining order forbidding Joseph Reyes from, according to the document, "exposing his daughter to any other religion than the Jewish religion."

The couple married in 2004. Joseph Reyes was Catholic, but he converted to Judaism -- he said the decision wasn't "voluntary" -- to please his in-laws.

Despite his conversion, Reyes, 35, said he never stopped practicing Catholicism.

Man Baptized Daughter Without Informing Estranged Wife

When the marriage fell apart, Rebecca Reyes, 34, got custody of their daughter. The girl, now 3, has been raised Jewish and attended a Jewish preschool.

Her father decided to baptize his daughter without consulting his wife.

Joseph Reyes sent his wife pictures and an e-mail documenting the occasion. Rebecca Reyes responded by filing for the temporary restraining order, which the judge granted.

Stephen Lake, Rebecca Reyes' attorney, said his client was shocked at her estranged husband's actions.

"Number one, it wasn't just a religious thing per se, it was the idea that he would suddenly, out of nowhere without any discussion and have the girl baptized," Lake said. "She looked at it as basically an assault on her little girl."

Furthermore, Joseph Reyes had never been a particularly devout Christian, Lake added.

When the girl's father took her to church again -- in violation of the order, he called the media to witness the event.

A court could rule today on whether Reyes should be jailed for criminal contempt, but he contends he did nothing wrong. He is moving to have the judge removed.

"Going to church, I don't think I violated the order," he told "Good Morning America." "In terms of Judaism, based on the information I was given, Catholicism falls right under the umbrella of Judaism."

Woman's Lawyer Accuses Reyes of 'Power Play' With Baptism

In a YouTube video of the subsequent visit to church, Joseph Reyes says, "I am taking her to hear the teachings of perhaps the most prominent Jewish rabbi in the history of this great planet of ours."

Lake, Rebecca Reyes' attorney, said Joseph Reyes had never been a particularly devout Christian.

"This was just something that he knew was going to have a negative effect on [Rebecca Reyes], and I think that's why he did it," Lake said, speaking of Reyes' church visits with the little girl.

"I think he was just trying to exert some power," Lake said.

But Reyes, who is studying law, said he only wants to be a good father to his daughter and expose her to his faith. That's something the courts usually allow in divorce cases, experts say.

Eugene Volokh, a professor at the UCLA School of Law, said a parent who has visitation rights "usually has the right to expose the child to his religious beliefs, teach the child his religion, to take the child to religious services, unless there seems to be likely psychological or physical harm stemming from that exposure."

Family court law expert Lynne Gold-Bikin said Reyes should have followed the court order, but also said, "If this couple made an agreement about what religion to raise their child, then it's an inappropriate order."

Reyes: Conversion Wasn't 'Voluntary'

Reyes said his faith is important to him.

Explaining his conversion, he said, "I did it because, one, my mother- and father-in-law would not accept me any other way and two, because they would not accept me, it was putting a lot of burden on the marriage."

While he acknowledged that his actions -- flouting the court order and involving the media -- didn't help to end the conflict, he said he has to take a stand.

"I've made every concession that I possibly can make for Rebecca, and I have to draw the line in the sand somewhere and this is where I choose to draw it," he said.

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.

The issue of virtual visitation has entered the realm of custody rights and may have an effect on visitation arrangements. That effect may be extremely positive or negative depending on the relations between the parents. The reality is that communication vis-a-vis technology like instant messaging and video conferencing enables a divorced parent to connect with his or her child.

Just this month Illinois examined the issue. According to The Chicago Tribune:

What about New York? Is the issue of virtual visitation addressed legally? The answer, in short, is yes and no. The Buffalo News sorts this out:

In the below decision from the Appellate Division Third Department the court enforces a Family Court entry of Judgment that changed custody from the mother to the father.  The mother appealed, and argued that her counsel was ineffective, that the Family Court was biased against her, amongst other arguments, all of which the court dismissed.  This decision is informative because it shows what must be proved in order to change a custody order.  It also illustrates how to create a sufficient record to allow an appellate court to affirm a decision.

Matter of M. v. T.

Appellate Division Third Department

Memorandum Opinion and Order

Edward Spa in, J.

Appeals (1) from an order of the Family Court of Ulster County (Mizel, J.), entered August 21, 2007, which granted petitioner's application, in three proceedings pursuant to Family Ct Act article 6, to modify a prior order of custody, and (2) from an order of said court, entered December 15, 2008, which denied respondent's motion to vacate the modification order.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of a son born in 1998. Upon divorcing in 2002, they stipulated to shared custody and equal parenting time. In January 2005, the father commenced this modification proceeding requesting sole custody alleging that the mother was exhibiting increasingly strange behavior and making poor decisions, that he was concerned about her mental health and the safety of the child, then age 6, and that the mother had recently become estranged from her two teenage daughters (born in 1987 and 1989, from another marriage) who had been placed in the custody of their maternal grandmother. Family Court signed an order to show cause on January 14, 2005 ordering a psychological evaluation of all parties and granting the father temporary custody of the child, which the court continued under a series of modified temporary orders. Following protracted proceedings (which began in January 2005 and continued until the court issued its decision in mid-2007), including the fact-finding hearing (spanning 2006-2007) — the court awarded the father sole legal and physical custody.   ¹  The mother — whose initial visitation was supervised by court order until the father consented to unsupervised visitation in August 2005, with overnight visits remaining supervised — was awarded unsupervised visitation every Thursday evening for three hours and on alternating weekends for nine hours on Saturday and 8-10 hours on Sunday, and a holiday visitation schedule was set. The father's request that the mother's visitation be supervised until completion of mental health counseling was rejected, while the mother's request (also advocated by the Law Guardian) for overnight visitation was denied.

Toward the end of the fact-finding hearing, Family Court held a sanction hearing addressed to the question of what role the mother's trial counsel had played in the improper disclosure to the mother and her treating psychiatrist, Stephen Hermele, of the court-ordered confidential psychological evaluation conducted by psychologist Claude Schleuderer; that evaluation of all of the parties and their families and its addendum (hereinafter the psychological evaluation) was memorialized in reports dated November 14, 2005 and January 30, 2006. Concluding that the mother's trial attorney was responsible for the disclosures in violation of a confidentiality stipulation entered on the record (in April 2005) by the mother's prior counsel, the court ruled that Hermele was precluded at the fact-finding hearing from testifying to his opinion or criticism of the psychological evaluation (which recommended sole custody to the father, with supervised visitation for the mother), but allowed Hermele to testify to his treatment and opinion of the mother's mental health.

At the fact-finding hearing, Hermele so testified in support of the mother; Schleuderer was not called to testify by either parent or the Law Guardian, but his psychological evaluation was admitted into evidence. The sanction decision is not directly before us on this appeal, except to the extent that the mother asserts that she was denied meaningful representation at the fact-finding hearing and (joined by the Law Guardian) that the mother and child were penalized for the perceived misconduct of the mother's trial attorney. The mother now appeals, through counsel and pro se, seeking a return to joint custody or increased visitation including overnight visitation. The child's appellate Law Guardian advocates in favor of overnight visitation with the mother or, in the alternative, remittal for additional testimony by Hermele.   ²The mother has also appealed Family Court's denial of her motion to vacate the modification order.

We are not persuaded by the mother's main contention on appeal, that the award of custody to the father and denial of overnight visitation to the mother lack a sound and substantial basis in the record. Initially, while Family Court in its 97-page custody decision made no express finding that the father had demonstrated the requisite significant change in circumstances indicating a real need to modify the stipulated custody order to further the child's best interests, the hearing record is complete and, upon our independent review authority, we find that the court's extensive factual findings are fully supported by the record and provide an ample basis for concluding that such a change in circumstances was proven here (see  Matter of Cree v. Terrance, 55 AD3d 964, 966-967 [2008], lv denied 11 NY3d 714 [2008];  Matter of Bedard v. Baker, 40 AD3d 1164, 1165 [2007]).

The testimony at the hearing, including that of the father, his adult son, the maternal grandmother, the child's day-care provider, the mother's 19-year-old daughter, the mother's brother and the mother herself, established that the mother's behavior became increasingly inappropriate, uncooperative, hostile and paranoid, often in front of the child, beginning in October 2004 and continuing during the lengthy fact-finding hearing. This led to frequent heated confrontations with the father and other family members in the child's presence, particularly when custody of the child was being exchanged or routine matters pertaining to him were being discussed. The resulting deterioration in the parties' relationship and inability to communicate or coparent provided a significant change in circumstances and warranted revisiting the agreed-upon joint custody arrangement (see  Matter of Kilmartin v. Kilmartin, 44 AD3d 1099, 1101 [2007];  Posporelis v. Posporelis, 41 AD3d 986, 989 [2007]).

Turning to the primary concern in this matter, as with all child custody determinations, the best interests of the child, courts are required to consider all relevant factors, including "maintaining stability in the child's life, the wishes of the child, the quality of the home environment, each parent's past performance, relative fitness and ability to guide and provide for the child's intellectual and emotional development, and the effect the award of custody to one parent would have on the child's relationship with the other" (Matter of Zwack v. Kosier, 61 AD3d 1020, 1022 [2009], lv denied 13 NY3d 702 [2009]  [internal quotation marks and citations omitted]). Moreover, the parties' stipulated custody agreement is afforded less weight than an order following a plenary hearing and is only one factor to consider (see  Matter of Colwell v. Parks, 44 AD3d 1134, 1135 [2007]). Given Family Court's ability to observe the witnesses' demeanor and assess their credibility, "its factual findings are accorded great deference and will not be disturbed unless they lack a sound and substantial basis in the record" (Matter of Siler v. Wright, 64 AD3d 926, 928 [2009]).

First, the record reveals that continued joint custody has often required police intervention, would further harm this child and is unworkable (see  Matter of Williams v. Williams, 66 AD3d 1149, 1150-1151 [2009]). Further, the testimony of numerous witnesses who observed or interacted with the mother over a two-year or more period established that they were all concerned for her and the child. The mother's behavior had grown increasingly strange, unpredictable, confrontational and inappropriate, often in the child's presence, causing him fear, confusion, anxiety, humiliation and stress. Incidents occurred at his sporting events, during custody exchanges, at the parties' homes and those of family members and in public, in which the mother disparaged the father and other family members, publicly made wild unsupported accusations, greatly overreacted or acted out of control — screaming bizarre accusations — and said and did inappropriate things that were inevitably harmful to the child's overhearing ears. While a precise diagnosis was not established, the record overwhelmingly demonstrates that "the mother's mental state has directly affected her abilities as a parent" (Matter of Sloand v. Sloand, 30 AD3d 784, 785 [2006]). Shortly after the father filed this petition, she was involuntarily committed to the mental health unit at a local hospital for 2½ weeks when another family member reported her behavior and threats to the police; she was ultimately released following a hearing upon the determination that — at the time of the hearing — she did not pose a danger. Hermele, who testified that his weekly treatment of the mother since May 2005 focused on her acute psychiatric problems — which he identified as lifelong anxiety disorder, phobic symptoms, posttraumatic stress, obsessive chronic worrying, reality problems, misperception of others and overreactions to situations — nonetheless opined that there was no psychiatric reason for limiting contact with the child. However, as Family Court pointed out, Hermele had never seen her interact with any of her family members or the child, and had never observed any of the alarming behavior to which nearly every one of the extended family members testified.

Schleuderer's initial psychological evaluation reflects that he interviewed   ³  the mother, her two daughters and their father, the father, the child and the maternal grandmother; each of the parties herein was observed interacting with the child and his two sisters, and individually. Schleuderer concluded that the mother's "mental state significantly impairs her parenting capacity," that she needs psychotherapeutic treatment and that she verbalizes her delusions and accusations in front of the child despite knowledge that they are inappropriate. He recommended that the father be granted sole custody and that all contact between the child and mother be supervised. In his brief addendum report, Schleuderer recounted that the mother's other treating psychiatrist in 2005 tentatively concluded that she was "paranoid schizophrenic" although "99 percent of the time she is reality based."

With regard to the father, the evidence established that he is an electrician supervisor and had built a five-bedroom home during the trial where he, the child, his adult son and one of the mother's daughters reside. Family Court found that during the extended years of temporary custody, the father followed the mother's visitation provisions, encouraged the child's relationship with extended family, secured counseling to help the child cope with the turmoil, was involved in his activities and school — where his grades have been "very good" — and had assumed an "appropriate parental role" toward him. Schleuderer concluded that the father's relationship with the children was "exemplary," that he "has their best interests at heart" and that they feel "securely loved by him." The court found the mother's contrary testimony to be "unbelievable" at points, "evasive and inappropriately hostile," and we discern no basis upon which to disturb the court's first-hand credibility determinations. The court's determination that the mother, if granted custody, would not foster a relationship between the child and the father (or extended family) is fully justified, particularly given the mother's threats to withhold contact between them.

Upon review of the record and considering all relevant factors (see  Matter of Zwack v. Kosier, 61 AD3d at 1022), we find abundant support for Family Court's conclusion that an award of sole custody to the father best serves the child's interests. We have also carefully considered the requests of the mother and the child's attorney for overnight visitation, but do not find that the (now dated) record before us supports disturbing the court's implicit and discretionary conclusion that overnight visitation would be inimicable or detrimental to the child's welfare (see  Matter of Maziejka v. Fennelly, 3 AD3d 748, 749 [2004]). While the court should have expressly addressed this request, the record permits our doing so. Upon the exercise of our independent review powers, we find that the foregoing evidence regarding the mother's behavior and instability in the 2004-2006 period of time provides a sound and substantial basis for the denial of overnight visitation (cf.  Matter of Daniel v. Pylinski, 61 AD3d 1291, 1292-1293 [2009];  Matter of Rivera v. Tomaino, 46 AD3d 1249, 1249-1250 [2007]).

The mother's counsel on appeal further argues that the mother was denied the effective assistance of trial counsel, a proposition the mother specifically rejects in her pro se brief in which she argues that the real prejudice is attributable to Family Court's alleged errors and bias against her. Upon careful review, we find that trial counsel provided aggressive, meaningful representation throughout these proceedings, and that the mother did not suffer actual prejudice as a result of the claimed deficiencies in counsel's advocacy or the court's sanction decision   ⁴  (see  Matter of Kemp v. Kemp, 19 AD3d 748, 751 [2005], lv denied 5 NY3d 707 [2005]; cf.  Matter of Martin v. Martin, 46 AD3d 1243, 1246-1247 [2007]). The mother's counsel presented witnesses, including Hermele, who testified that she was capable of parenting the child without supervision, and we cannot conclude that counsel's decision not to call Schleuderer himself for cross-examination or not to call another expert witness to counter Schleuderer's opinion regarding the mother's mental health constituted ineffective assistance, given the speculative benefit that such testimony would have had on the outcome (cf.  Matter of Martin v. Martin, 46 AD3d at 1246-1247).

Likewise, we are not persuaded by the mother's pro se claim that Family Court was, from the outset, biased against her, or by her appellate counsel's contention that the outcome was prejudiced by the court's scorn for her trial counsel's perceived misconduct or misstated legal arguments. Indeed, the court rejected Schleuderer's strong recommendation that all contact between the child and the mother be supervised (as the father had requested), based in part upon its conclusion that the mother had enjoyed "unsupervised visitation for some time without major repercussions to [the child's] well being." This reflects that the court was not unduly reliant upon Schleuderer's evaluation and, in fact, evenly considered all of the testimony and evidence in rendering its custody determination.

To the extent that the mother challenges Family Court's decision to sign an ex parte order to show cause at the outset of these proceedings on January 14, 2005 granting sole temporary custody to the father, the issuance of a permanent order of custody following a trial renders this issue moot (see  Posporelis v. Posporelis, 41 AD3d at 988). In any event, the father made a sufficient showing of extraordinary circumstances in his ex parte application (see  id.), and the subsequent orders extending the father's temporary custody while progressively increasing the mother's parenting time were made after the mother, represented by counsel, had an opportunity to be heard.

Finally, contrary to the mother's pro se claims, Family Court did not abuse its discretion in denying her motion to vacate this custody determination based upon newly discovered evidence (see CPLR 5015 [a] [2]; see also  Maddux v. Schur, 53 AD3d 738, 739 [2008]). The mother, as movant, neither demonstrated that the "new" evidence could not have been discovered, with due diligence, prior to the conclusion of the trial nor that, had it been introduced at trial, it "would probably have produced a different result" (CPLR 5015  [a] [2]; see  Matter of Commissioner of Social Servs. of Ulster County v. Powell, 39 AD3d 946, 948-949 [2007], lv dismissed 9 NY3d 975 [2007]). While the mother submitted a letter from her prior counsel establishing that he had disclosed Schleuderer's November 2005 psychological evaluation report to Hermele, this only demonstrated Family Court's earlier error in attributing that disclosure to the mother's trial counsel; it did not affect the court's conclusion that trial counsel had improperly disclosed the evaluation reports (original and addendum) to the mother and the addendum to Hermele. While clearing up one point, this proof did not establish that allowing Hermele to testify without restriction regarding Schleuderer's evaluations would have produced a different custody result. As to the remaining proof submitted on the motion, Family Court correctly concluded that it concerned "collateral matters which were not significant to the court's final determination." The remaining contentions have been thoroughly reviewed, and we find that none warrants disturbing Family Court's fully justified determination that the best interests of the child are served by granting custody to the father, with regular parenting time to the mother.

Mercure, J.P., Rose and Garry, JJ., concur.

ORDERED that the orders are affirmed, without costs.

1. In its decision, Family Court also dismissed the father's family offense petition, but the court's resolution of the father's violation petitions directed at the temporary custody and visitation orders is not apparent from the court's decision or order, or the record on appeal. The issues raised on appeal are not directed at those petitions and, thus, they will not be addressed.

2. The father has not submitted a responsive brief on appeal.

3. At the time of the evaluation, petitions were pending for custody of the mother's daughters in separate proceedings and, thus, they and their father were interviewed to allow completion of a comprehensive evaluation of all affected family members.

What Happens When Parents Behave Like Children

In a recent decision in Westchester Family court, the Honorable Colleen Duffy was faced with a difficult situation where two parents seemed determined to undermine the other's relationship with the child. With some colorful language the Judge found that the court was in a difficult position and could not split the baby. In an attempt to stop the fighting the court issued an extremely detailed order in order to to stave off future problems. Anyone that is involved in a custody proceeding should take note of this ruling because it shows that when the parties are not willing to listen to the court or act amicably with each other, then the court will step in and set out every minute detail of a custody arrangement. This is a step that everyone involved in custody litigation would want to avoid.

D.G., Petitioner/Respondent,
against
S.G., Respondent/Petitioner.

Judge Colleen Duffy,

This case has had a long history before this Court as detailed extensively in this Court's Decision and Order After Fact Finding, entered December 22, 2006 (hereinafter the "2006 Order") and modified by order entered on June 25, 2007 (hereinafter the "2007 Order"), which decisions on the facts are adopted herein by reference. In short, for virtually the entire life of the Subject Child A. G (DOB: 9/15/02) (hereinafter, the "Subject Child"), the parties have been litigating matters -- specifically, family offense proceedings, custody and visitation disputes, and matrimonial and child support matters -- in this Court as well as in state court in California.

With respect to court filings in this Court by the parties subsequent to the 2006 Order, seven petitions were filed by the parties; five by Petitioner/Respondent father D. G (hereinafter "Mr. G.") and two by Respondent/Petitioner mother S. G ("hereinafter "Ms. G") each alleging that the other party violated this Court's 2006 and 2007 Orders. The petitions filed by Mr. G again requested a change in custody and any other such [*2]further relief as the Court may find just. The petitions, one of which already was dismissed by the Court, filed by Ms. G requested a change in the parties' access schedule to the Subject Child seeking to increase in Ms. G's access time.

The Court consolidated the remaining petitions for the purposes of fact-finding and held a fact finding matter on these petitions on May 28, 2008. The proceeding was not concluded on that date and was continued on May 29, October 7 and 14, 2008, and February 3, 5, 6, 9 and 10, 2009. The only two witnesses who testified are the parties. While the Court has considered all of the testimony and evidence submitted, given the extensive nature of the record -- which is more than 900 pages of trial transcripts and numerous exhibits -- the Court will address only the crucial testimony and documents critical to its decision on the best interests of the Subject Child.

This is one of the worst type of custody cases before the Court -- two parents who apparently hate each other more than they love their child. In light of the history of the parties, the likelihood is that -- notwithstanding this decision and order -- litigation between them about the Subject Child will continue until he turns 18.[FN1]

Unfortunately, although this Court truly believes that both parties love the Subject Child, it is clear that neither parent will sincerely promote the Subject Child's relationship with the other. Indeed, the evidence shows that each -- through their inability to communicate and compromise -- has attempted to undermine the other's relationship with the Subject Child. Thus, it is this Court's sad conclusion that, although each parent has demonstrated the ability to care for, shelter, and nurture the Subject Child equally well, neither party has demonstrated an ability to foster and promote the relationship between the Subject Child and the other parent.

With respect to credible testimony, the Court found that, with respect to many of the material facts, each of the parties was only marginally credible. Each party's version of events was clearly colored by each's own self interest - and motives - each purporting to act in the best interests of the Subject Child but each of whom clearly often was not. Nonetheless, the Court does not discount all of the testimony of either party. Rather, based on what the Court has found to be credible testimony and evidence, as noted further herein, this Court finds that each party has established certain of the allegations in the petitions pending against the other regarding violations of this Court's 2006 and 2007 Orders.

The Court also finds that the evidence shows that each party continues to demonstrate not only a disregard for this Court's Orders but also the authority and orders of the California Court (with respect to the undisputed testimony that the parties have failed to procure medical insurance coverage for the Subject Child despite a California court order requiring the same).

It is this Court's determination that each party also has demonstrated improper motives -- that is, without consideration of the best interests of the Subject Child --with respect to the litigation and matters herein. First, as previously noted by this Court in its 2006 Order, Ms. G has failed -- and continues to fail -- to meet her obligation as the [*3]primary custodian of the Subject Child to foster a healthy relationship between the Subject Child and the father. For example, in one instance Ms. G placed the Subject Child on the telephone with Mr. G so that the Subject Child could inform Mr. G that he did not wish to spend Halloween 2007 with his father (despite the terms of the Court order which afforded Mr. G that particular date with his son). See Ex. 7. In addition, the Court finds credible Mr. G' version of the events at the parties' chance meeting at a post office wherein Ms. G directed the Subject Child to ask Mr. G if he could leave with his mother even though it was still Mr. G' visitation with the Subject Child.

The Court also credits as credible Mr. G's testimony that Ms. G has disparaged and denigrated him in the presence of the Subject Child and others, calling Mr. G names such as "Idiot" and yelling at him in front of the Subject Child and telling him "I hope you die." See May 28, 2008 Transcript ("Tr.") pp. 76-78, 80; Feb. 3, 2009 Tr. p. 9.

In addition, the Court finds credible Mr. G's contention that Ms. G repeatedly puts the Subject Child in a position of having to "choose" between his parents by directing the Subject Child to make such inquiry of his father, to wit: "Ask your dad if you can come with me . . ." ( see Oct. 7, 2008 Tr. p. 39); ". . .do you want your father to pick you up? . . . (see Oct. 9, 2008 Tr. p. 119); "you have to ask [your father]" (see Feb. 9, 2009 Tr. p. 125); and, when the Subject Child is speaking to Mr. G on the telephone, "get off the phone" or "hang up the phone" (see May 28, 2008 Tr. pp. 49-50).

Such behavior manifests not only poor parental judgment by Ms. G but also her contempt for Mr. G's parenting time with the Subject Child and evidences Ms. G's need to "win" the Subject Child's affections away from Mr. G.

Nonetheless, Mr. G also appears before this Court with "unclean hands." The Court notes that it has found Mr. G in contempt of court, after a hearing, in connection with these very proceedings due to his surrepetitious taping of the Court proceedings and his lying about so doing upon this Court's inquiry to him. See Feb. 5, 2009 Tr. at pp. 2-3.[FN2] The Court also notes that Mr. G surrepetitiously taped telephone conversations that he had with Ms. G as well as with his son to gather "evidence" for this proceeding. Mr. G' propensity to tape such conversations demonstrates, at the very least, poor parental judgment; to wit, placing his own need to have his child live with him above the privacy rights of the Subject Child as well as the need of the Subject Child to continue in his stable residence and to have an assurance of future stablility.

Mr. G' propensity to file violation petitions for even de minimus violations -- such as not obtaining from Ms. G certain educational, medical and school event information that she is required to provide but which information clearly is available to Mr. G to find out on his own without undue effort -- also evidences Mr. G' litigation zeal and a clear intent by Mr. G to continue to litigate the issue of the Subject Child's custody until, presumably, he obtains custody or the Subject Child turns 18.

Mr. G' own testimony also evidences his inability to make appropriate parental judgments when it relates to Ms. G's decision-making or her role as sole legal [*4]custodian. For example, Mr. G has criticized Ms. G's choice of church and religious activities although, as sole legal custodian, it is within Ms. G's purview to make such choices. Irrespective of whether the Subject Child should or should not be raised in the Assyrian faith and cultures, Ms. G is the sole legal custodian entitled to make a decision on that matter. Rather than respect Ms. G's position as sole legal guardian on this matter, Mr. G has questioned that decision-making claiming that Ms. G's choices about the Subject Child's activities and her selection of a church are inconsistent with raising the Subject Child in the Assyrian tradition.

Thus, this Court is in the unenviable position of again hearing testimony from two squabbling parents whose credibility and motives each are quite suspect and who each accuse the other of violating the terms of the 2006 and 2007 Orders and each of whom has demonstrated a propensity to ignore this Court's orders if such orders do not suit him/her.

The Court concurs with the Law Guardian's conclusion that both parties have evidenced an inability to promote the other's relationship with the Subject Child and that because each believes that the Subject Child should reside with him/her and not the other parent they each have failed to cooperate with each other to ensure the best interests of the Subject Child. Indeed, their failure to cooperate has undermined the best interests of the Subject Child. For example, Mr. G' scheduling of vacations that interfered with the mother's one weekend per month access to the Subject Child, without appropriate make-up visitation, is troubling. Ms. G's refusal to allow Mr. G to have the Subject Child during a time period which included both his graduation ceremony and his family visiting from California likewise is troubling. The Subject Child thus missed seeing relatives from California, including his grandparent, as well as missing an important milestone in his father's life. And, Ms. G's refusal to change the drop off site for visitation from Mr. G' home to the church where Mr. G was volunteering speaks volumes about the pettiness to which each party will stoop to avoid accommodating the other -- all to the detriment of the Subject Child.

What to do? Since the Court can't split the child in half nor is it terminating either parent's parental rights, in essence, this Court must choose "the lesser of two evils" in terms of a primary custodial parent and issue an order that, in theory, if not in practice (that lies in the hands of the parties), promotes the best interests of the Subject Child.

Accordingly, for the reasons articulated above and as set forth below, the Court cautiously continues the existing custody arrangement of sole legal and physical custody of the Subject Child to Ms. G with liberal visitation to Mr. G as set forth further herein, but revokes and supercedes the terms of the 2006 and 2007 Orders and replaces such Orders with the specific terms and conditions set forth further herein.

As an initial matter, while the best interests of the child is the primary consideration in a child custody proceeding, a modification of an existing custody arrangement should be allowed only upon a sufficient showing of a change in circumstances warranting a real need for a change in order to insure the continued best interests of the child. See McCauliffe v. Peace, 176 AD2d 382, 383 (App. Div. 3rd Dept. 1991); Meola v. Meola, 301 AD2d 1020. Moreover, "priority, in the first instance, will be accorded an existing custodial arrangement," with the weight accorded to such arrangement dependent upon "whether the prior disposition resulted from a full hearing [*5]or a stipulation." See Maher v. Maher, 1 AD3d 987 (App. Div. 4th Dept. 2003) citing Friederwitzer v. Friederwitzer, 55 NY2d 89.

Here, after several years of "failed" stipulated orders on consent as to legal custody and Mr. G' access to the Subject Child, the Court had a full hearing on this issue of custody and access which resulted in the 2006 and 2007 Orders.[FN3] Thus, the Subject Child's right to stability and permanency with the same parent -- after a full hearing on the issue -- should only be undermined if the "totality of the circumstances warrants a change that is in the best interests of the Subject Child." Matter of Salvati v. Salvati, 221 AD2d 541 (citations omitted).

The Court notes that, in its past Decision and Order arising out of the 2006 hearing, the Court had observed that a change in legal and physical custody of the Subject Child could be warranted if Ms. G were to persist in behavior that undermines Mr. G's relationship with the Subject Child.

As noted above, although the Court does find that each party has established certain violations by the other of the 2006 and 2007 Orders, and Ms. G has continued to fail to promote the relationship between the Subject Child and his father, in view of the totality of the circumstances, Mr. G has failed to establish that a change in custody to him at this time will ensure the Subject Child's best interests. Indeed, the history of the parties now has shown that neither party can be relied upon to promote the other's relationship with the Subject Child and the Court has no reason to believe that the interaction, lack of cooperation and acrimony between the parties will be ameliorated if custody were to change.

Notably, the evidence at trial demonstrates that Mr. G used the language of the 2006 Order which provided him two weeks vacation (superceding the regular visitation schedule) to effectively trump Ms. G's one weekend per month with the Subject Child. Mr. G also has precluded Ms. G from enjoying any consecutive time periods with her son beyond those prescribed in the 2006 and 2007 Orders to the Subject Child's detriment as the Subject Child has missed social and maternal family events.

In addition, Mr. G has made clear that he believes it is a priority that the Subject Child be raised with Assyrian language and traditions and that the Subject Child is exposed to Assyrian culture and religion. Feb. 5, 2009, Tr. pp. 12-14; 28-30; 42-45. Mr. G testified that Ms. G has failed to do so. Feb. 5, 2009, Tr. pp. 14-17. Mr. G's testimony made it clear to this Court that, if Mr. G were to have legal custody of the Subject Child, the child's educational, social and religious experiences would be dramatically changed so that Mr. G could achieve what he believes Ms. G has failed to do with the Subject Child.

Mr. G testified that -- on this issue which he views as paramount -- he disagrees with Ms. G's decisions up-to-now as sole legal custodian and would make changes that likely would change significantly the Subject Child's current existence in all areas -- [*6]social, educational and religious. See Feb. 5, 2009 Tr. at 16-17 (to wit, learning Assyrian language is more important than summer camp). Thus, a change in legal and physical custody from Ms. G to Mr. G would mean not only a change in the Subject Child's daily routine from living primarily with his mother to living primarily with his father, it would result in a dramatic upheaval of the Subject Child's current existence on almost all fronts.

This Court finds that, despite Mr. G having established violations by Ms. G, a change in legal and physical custody of the Subject Child to the father is not an appropriate remedy here as the mutual acrimony and lack of cooperation between the parties is not likely to be abated and the Subject Child's best interests would not be served.

Moreover, the Court notes that, with respect to his access to the Subject Child, in this current proceeding, Mr. G testified to only a handful of instances in a period of almost two years in which Ms. G intentionally interfered with his access to the Subject Child. In most of those instances, although Mr. G did not have the visitation he sought with the Subject Child, he did have access to the Child, though less than that to which he was entitled pursuant to the 2006 and 2007 Orders. Moreover, although Mr. G does not speak to the Subject Child over the telephone as often or as long as he would like to under the 2006 and 2007 Orders, he did admit that he does speak to the Subject Child.

The Court also does not find credible Mr. G's testimony that he has been unable to participate in his son's educational events and planning as the evidence is clear that it is only Mr. G' discomfort with ensuring that he is in the "loop' of information and activities that has precluded him from independently obtaining all requisite information in a timely fashion. The Court makes the same finding with respect to Mr. G' access to information about medical and other service providers. The evidence at trial makes it quite clear that Mr. G' violation petitions about Ms. G's affirmative obligation to provide to him doctor and educational information, even though established, would not, in and of themselves, rise to a level of a change of custody. The Court also finds, that despite the violations established by Mr. G, a change in physical or legal custody simply is not warranted in this case.

Nonetheless, the Court finds that the evidence adduced at trial dictates that the current Order concerning custody and visitation must be changed for the best interests of the Subject Child. Accordingly,

IT IS HEREBY ORDERED that any and all prior Orders concerning custody and/or visitation with the Subject Child are hereby superceded by this Order as set forth further herein.

Turning to the issue of this Court' s contempt finding againstMr. G, the Court notes that, the penalty for civil contempt is limited to a "fine and imprisonment, or either" (Judiciary Law § 753[A]; Family Court Act § 156); see Labanowski v. Labanowski, 4 AD3d 690, 693 (App. Div. 3rd Dept. 2004). Based on these proceedings, the Court finds that an appropriate remedy for Mr. G's contempt is the admonishment already given to him by this Court existing in this Court's record and financial remuneration, to wit, Mr. G will be financially obligated to pay seventy five percent of the entire cost of an approved parent coordinator as set forth further herein. [*7]

For all of the reasons articulated above, and upon consideration of all the credible testimony and evidence, and, upon consideration of all of the factors with respect to the Subject Child's best interests, the Court orders the following:

ORDERED that Ms. G be afforded sole legal and physical custody of A. G, date of birth, September 15, 2002; and it is further

ORDERED that within three months (90 days) of receipt of this Order, Ms. G shall arrange for the Subject Child to commence psychological counseling with a family therapist, psychologist or certified social worker, and both Ms. G and Mr. G shall bear the cost equally (50 percent each) of any out-of-pocket costs for such counseling (to wit, costs that are not covered by or are unreimbursed through either parties' health coverage); and it is further

ORDERED that both Ms. G and Mr. G shall cooperate and participate with, as required, the Subject Child's therapy/counseling (including, but not limited to, attending any and all sessions as required by such therapist/counselor); and it is further

ORDERED that Ms. G shall provide in writing to Mr. G and to the Attorney for the Subject Child the name and contact information of such therapist/counselor on or before the expiration of the 90 days referenced above; and it is further

ORDERED that Ms. G shall execute a release provided to her by the Attorney for the Child to allow any such therapist/counsel to communicate with the Attorney for the Child so that such attorney may ensure that this Order is complied with by the parties; and it is further

ORDERED that Ms. G has an affirmative obligation to provide in writing to Mr. G on October 1 of each year the names of any and all of the Subject Child's educational, medical, dental providers and any other providers in connection with the Subject Child's general health and welfare including day care providers even if such providers have not changed from year to year as well as written notice of any changes and any new contact information for such providers within thirty days of her receipt of such information; and it is further

ORDERED that Ms. G provide to Mr. G within thirty days of receipt of this Order releases allowing Mr. G to access information, records or documents from all such educational, medical and dental providers without having to obtain same from Ms. G directly and Ms. G must provide any additional releases sought by Mr. G as to such information, records or documents within thirty days of her receipt of a written request by Mr. G for the same; and it is further

ORDERED that Ms. G provide to Mr. G in writing, via email to an email address provided, in writing, by Mr. G to Ms. G within fourteen days of receipt of this Order, notice of any and all scheduled doctor's appointments and dentist appointments within 72 hours of making such appointments or within a reasonable time frame if such appointments are made on less than 72 hours notice; and it is further

ORDERED that Mr. G shall have five weeks of visitation each year (hereinafter "vacation visitation") which is to occur within any or part of the Subject Child's February school recess, Spring school recess and summer vacation, consistent with the child's academic calendar, and that no more than two weeks visitation (fourteen days) be consecutive except as set forth further herein. During all such vacation visitation Mr. G must ensure that the Subject Child attends school if the Subject Child's school is in [*8]session during any part of the vacation visitation. Such vacation visitation shall supercede any regularly scheduled visitation except that, to the extent that any such visitation supercedes the mother's scheduled weekend with the Subject Child, Ms. G shall have make up time for such weekend during a weekend of her choosing (but not within that fourteen day or seventeen day period as noted below); and it is further

ORDERED that if any such vacation visitation abuts a weekend in which Mr. G ordinarily would have visitation such that his access to the Subject Child would exceed fourteen consecutive days, on two separate occasions during each calendar year, Mr. G may extend such vacation visitation to beyond the fourteen consecutive days, to no more than seventeen such consecutive days, unless otherwise agreed by the parties, on the condition, as noted above, that Mr. G ensures that the Subject Child attends school if the Subject Child's school is in session for any part of that extended vacation visitation; and it is further

ORDERED that any regularly scheduled visitation that Mr. G ordinarily would have that would extend such vacation visitation to beyond seventeen consecutive days becomes additional access time for Ms. Ge with the Subject Child - solely connected to that particular vacation visitation block in that particular year and then Mr. Gs' regular visitation will resume; and it is further

ORDERED that each calendar year, subject to Mr. G' selection of his five vacation visitation weeks, during the summer months in which the Subject Child's school is not in session (or, if Mr. G has not exercised his vacation visitation during the Subject Child's other school breaks such as February recess, Spring or Easter recess, Winter/Christmas recess), Ms. G shall have two weeks (seven days or fourteen days or seventeen days as set forth herein) of access time with the Subject Child (hereinafter "vacation access"), which vacation access shall supercede Mr. G' regularly scheduled visitation; and it is further

ORDERED that should Ms. G's vacation access with the Subject Child abut her regularly scheduled weekend with the Subject Child, Ms. G's vacation access may extend to seventeen consecutive days provided that Ms. G ensure that the Subject Child attend school if the Subject Child's school is in session during any part of that vacation access; and it is further

ORDERED that any regularly scheduled access that Ms. G ordinarily would have that would extend her vacation access to beyond seventeen consecutive days becomes additional visitation time for Mr. G with the Subject Child - solely connected to that particular vacation access block in that particular year and then Mr. G' and Ms. G's regular weekend access time will resume; and it is further

ORDERED that Mr. G must notify Ms. G in writing by May 15th of every year as to which weeks he plans to utilize during the summer school recess and reasonable notice (in excess of fourteen days) in advance of his intention to exercise some or part of his vacation visitation for the Winter/December or February and/or Easter/Spring School recesses; and it is further

ORDERED that if Mr. G fails to meet the timetable set forth in the paragraph above as to written notification to Ms. G of his intention to utilize his vacation visitation during any of those periods set forth above, Ms. G may notify, in writing, Mr. G of her intention to use all or part of her vacation access with the Subject Child within a [*9]reasonable time in advance of such use; and it is further

ORDERED that each month Mr. G shall have weekend visitation with the Subject Child from after school on Friday where he picks up the Subject Child until Monday morning when he transports the Subject Child to school in a timely fashion; except for the third weekend of each month which shall constitute Ms. G's access time with the Subject Child, and, if a month has more than four weekends (which means that the Friday of that weekend falls within the same month as four other Fridays of that same month), Ms. G shall have access time with the Subject Child during such "fifth" weekend; and it is further

ORDERED that Ms. G shall not be present at school during Mr. G' pick up or drop off time of the Subject Child to school; and it is further

ORDERED that in the event that the Monday following Mr. G' weekend visitation is a legally recognized holiday in which the child's school is closed, then said weekend visitation shall be extended until Monday at 5:00 p.m.; and it is further

ORDERED that Mr. G shall have visitation with the Subject Child on alternate Wednesdays commencing at 5:00 p.m. and continuing through the beginning of the Subject Child's school day the next morning where the father shall transport the Subject Child to school in a timely fashion unless the following day is a legally recognized school holiday in which the Subject Child's school is closed, and then such visitation shall be extended until 5:00 p.m. and on those alternate Wednesdays when there is no overnight visitation as set forth herein, the father shall have visitation with the Subject Child from 3:30 p.m. until 7:30 p.m.; and it is further

ORDERED that if either party travels with the Subject Child in excess of one overnight, the traveling party shall provide to the other parent, in writing, in advance of such travel, a contact telephone number and address at which the Subject Child may be reached; and it is further

ORDERED that in the event that Ms. G employs or otherwise uses a babysitter to care for the Subject Child, other than a brief excursion for errands (to wit, two hours or less) she shall first notify Mr. G, who shall have the right

Of first refusal" to care for the Subject Child in lieu of the Subject Child being cared for by a babysitter except that any summer camp in which the Subject Child is enrolled shall not constitute "babysitter" for the purposes of this paragraph but a "day care" (not day camp) shall; and it is further

ORDERED that neither party shall remove the Subject Child from the contiguous United States without the written consent of the other party, or prior Court approval; and it is further

ORDERED that the parties shall each have the right to celebrate Easter in alternate years with the Subject Child, with Mr. G having Easter with the Subject Child in odd years, and Ms. G having Easter with the Subject Child in even years irrespective of scheduled visitation weekends, vacation access or vacation visitation; and it is further

ORDERED that at 5:00 p.m. on the Wednesday prior to Thanksgiving through Friday at 10:00 a.m. Mr. G will have visitation with the Subject Child in even years and Ms. G will have the same Thanksgiving schedule in odd years. In the event that Thanksgiving falls on Mr. G' alternate weekend, the father will have visitation in accordance with the weekend visitation schedule and does not have to return the [*10]Subject Child on said Friday after Thanksgiving; and it is further

ORDERED that in even years on Christmas Eve until 10:00 a.m. on Christmas Day Ms. G shall have the Subject Child then Mr. G shall be afforded uninterrupted visitation beginning at 10:00 a.m. on Christmas Day through 6 p.m. of the evening preceding the commencement of the Subject Child's school. In odd years the parties' aforementioned access with the Subject Child during the Christmas holiday and recess shall be the reverse; and it is further

ORDERED that every Father's Day shall be spent by the Subject Child with Mr. G irrespective of any other scheduled visitation -- including vacation access by Ms. G --from 10:00 a.m. through 7:00 p.m.; and it is further

ORDERED that every Mother's Day shall be spent by the Subject Child with Susy G irrespective of any other scheduled visitation -- including vacation visitation -- from 10:00 a.m. through 7:00 p.m.; and it is further

ORDERED that the mother shall list the father as an "emergency contact" person or other such contact person on any and all forms requesting such information, as same may pertain to the Subject Child; and it is further

ORDERED that each party shall have reasonable telephone contact with the Subject Child while the child is with the other parent not to exceed one telephone call per day; each party shall promote said telephone contact between the Subject Child and the other party including initiating such telephone call for the Subject Child and the other parent if no call previously had occurred that day and, under no circumstances shall either parent circumscribe the length of such telephone calls unless such call exceeds fifteen minutes in duration and then such call may be ended at the direction of either parent, and each parent must continue efforts to make such contact each day until the call occurs; and it is further

ORDERED that neither party shall disparage the other party in the presence of the child, nor allow third parties to do so in the presence of the child; and it is further

ORDERED that each parent shall encourage a healthy and loving relationship between the Subject Child and the other parent; and it is further

ORDERED that each party shall give 48 hours advance notice to the other in the event he/she will not be able to comply with the visitation terms of this order; and it is further

ORDERED that each party shall ensure that the Subject Child is properly given any and all medication as prescribed for him by a licensed physician and Ms. G shall inform Mr. G of all such medications and prescribed dosages and shall provide same to Mr. G when the Subject Child is in Mr. G's care; and it is further

ORDERED that Larry S. Horowitz, Esq., Attorney for the Child, shall remain assigned to the matter for a period of six months after the date of this Order to ensure that the Subject Child is enrolled in therapy as herein provided and shall communicate in writing to the Court with copies to each party confirmation of same; and it is further

ORDERED that other than the school pick up and drop off of the Subject Child by Mr. G as set forth in this order, Ms. G shall transport the Subject Child to commence and conclude visitation with Mr. G to Mr. G' home in Yonkers or other location identified by Mr. G such location other than his home, to be provided, in writing, via email, by Mr. G to Ms. G in advance [*11]of such drop off or pick up, but such location may not be located in an place which would require Ms. G to travel in excess of four (4) miles from the ordinary home drop off location; and it is further

ORDERED that the father shall have such other and further visitation as the parties may agree; and it is further

ORDERED that within ten days of receipt of this Court's order, unless the parties can agree on a parent coordinator, each party shall submit in writing to the Attorney for the Subject Child the names and contact information of three parent coordinators and the Attorney for the Subject Child shall then submit the list to the Court, including three names (and contact information) of his own choosing, should he so choose, without indicating which party chose which name. The Court then will randomly select one such parent coordinator from the list for the parties to use for the purposes set forth herein; to wit, should either party contend that the other party has failed to comply with the terms of this Order, the parties must meet at least once on such issue with such parent coordinator to try to resolve the matter before requesting any judicial intervention. For the reasons previously noted herein, Mr. G shall bear seventy five (75) percent of the cost of the parent coordinator; Ms. G shall bear twenty five (25) percent of the cost of the parent coordinator; and it is further

ORDERED that Ms. G's notice of motion, filed with this Court on August 7, 2009, is hereby dismissed as moot;[FN4] and it is further

ORDERED that Ms. G's petition, filed on August 14, 2009, alleging a violation of the 2007 Order is hereby dismissed, without prejudice, with leave to renew only after the parties comply with the terms of this Order, to wit, meet with the parent coordinator in an effort to resolve the matter without court intervention consistent with the terms of this order; and it is further

ORDERED that, based upon the foregoing, the scheduled court date of September 16, 2009 be and hereby is deemed moot and no court appearances are required by any party or counsel on that date.

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

The concept of custody is unsettled in New York family law. Those who maintain custody of a child have significant powers controlling how they raise that child. In many cases, these rights come at the expense of the non-custodial parent.

In Fuentes v. Board of Education of the City of New York, New York Law Journal, Sept. 2, 2008, pp 23-24, the U.S. Court of Appeals for the Second Circuit certified a question as to whether a noncustodial parent has the right to participate in educational decisions relating to a child where the divorce decree and custody order do no more than grant sole custody to the other parent.

In an intact family, there is no presumption that either parent has custody but rather there is a de facto joint custody arrangement, with either parent having the right to make decisions. Upon divorce, the custody setup must be replaced. Generally, it is in the children's best interests to have both parents involved in their lives, except in the most extreme cases.

Custody generally has two aspects: residential custody (where a child spends time) and legal custody (which parent has the responsibility for decision making).  To avoid excluding one parent unjustifiably, courts in New York have been breaking down legal custody into "zones of responsibility" (or "spheres of influence"). While having custody may not give a parent the right to make every important decision, it does give certain legal entitlements that are significant. It has been long known that "(c)ustody carries the implications of personal power. Visitation implies the acquiescence to that power."

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

D.G., Petitioner/Respondent,
against
S.G., Respondent/Petitioner.

Judge Colleen Duffy,

This case has had a long history before this Court as detailed extensively in this Court's Decision and Order After Fact Finding, entered December 22, 2006 (hereinafter the "2006 Order") and modified by order entered on June 25, 2007 (hereinafter the "2007 Order"), which decisions on the facts are adopted herein by reference. In short, for virtually the entire life of the Subject Child A. G (DOB: 9/15/02) (hereinafter, the "Subject Child"), the parties have been litigating matters -- specifically, family offense proceedings, custody and visitation disputes, and matrimonial and child support matters -- in this Court as well as in state court in California.

With respect to court filings in this Court by the parties subsequent to the 2006 Order, seven petitions were filed by the parties; five by Petitioner/Respondent father D. G (hereinafter "Mr. G.") and two by Respondent/Petitioner mother S. G ("hereinafter "Ms. G") each alleging that the other party violated this Court's 2006 and 2007 Orders. The petitions filed by Mr. G again requested a change in custody and any other such [*2]further relief as the Court may find just. The petitions, one of which already was dismissed by the Court, filed by Ms. G requested a change in the parties' access schedule to the Subject Child seeking to increase in Ms. G's access time.

The Court consolidated the remaining petitions for the purposes of fact-finding and held a fact finding matter on these petitions on May 28, 2008. The proceeding was not concluded on that date and was continued on May 29, October 7 and 14, 2008, and February 3, 5, 6, 9 and 10, 2009. The only two witnesses who testified are the parties. While the Court has considered all of the testimony and evidence submitted, given the extensive nature of the record -- which is more than 900 pages of trial transcripts and numerous exhibits -- the Court will address only the crucial testimony and documents critical to its decision on the best interests of the Subject Child.

This is one of the worst type of custody cases before the Court -- two parents who apparently hate each other more than they love their child. In light of the history of the parties, the likelihood is that -- notwithstanding this decision and order -- litigation between them about the Subject Child will continue until he turns 18.[FN1]

Unfortunately, although this Court truly believes that both parties love the Subject Child, it is clear that neither parent will sincerely promote the Subject Child's relationship with the other. Indeed, the evidence shows that each -- through their inability to communicate and compromise -- has attempted to undermine the other's relationship with the Subject Child. Thus, it is this Court's sad conclusion that, although each parent has demonstrated the ability to care for, shelter, and nurture the Subject Child equally well, neither party has demonstrated an ability to foster and promote the relationship between the Subject Child and the other parent.

With respect to credible testimony, the Court found that, with respect to many of the material facts, each of the parties was only marginally credible. Each party's version of events was clearly colored by each's own self interest - and motives - each purporting to act in the best interests of the Subject Child but each of whom clearly often was not. Nonetheless, the Court does not discount all of the testimony of either party. Rather, based on what the Court has found to be credible testimony and evidence, as noted further herein, this Court finds that each party has established certain of the allegations in the petitions pending against the other regarding violations of this Court's 2006 and 2007 Orders.

The Court also finds that the evidence shows that each party continues to demonstrate not only a disregard for this Court's Orders but also the authority and orders of the California Court (with respect to the undisputed testimony that the parties have failed to procure medical insurance coverage for the Subject Child despite a California court order requiring the same).

It is this Court's determination that each party also has demonstrated improper motives -- that is, without consideration of the best interests of the Subject Child --with respect to the litigation and matters herein. First, as previously noted by this Court in its 2006 Order, Ms. G has failed -- and continues to fail -- to meet her obligation as the [*3]primary custodian of the Subject Child to foster a healthy relationship between the Subject Child and the father. For example, in one instance Ms. G placed the Subject Child on the telephone with Mr. G so that the Subject Child could inform Mr. G that he did not wish to spend Halloween 2007 with his father (despite the terms of the Court order which afforded Mr. G that particular date with his son). See Ex. 7. In addition, the Court finds credible Mr. G' version of the events at the parties' chance meeting at a post office wherein Ms. G directed the Subject Child to ask Mr. G if he could leave with his mother even though it was still Mr. G' visitation with the Subject Child.

The Court also credits as credible Mr. G's testimony that Ms. G has disparaged and denigrated him in the presence of the Subject Child and others, calling Mr. G names such as "Idiot" and yelling at him in front of the Subject Child and telling him "I hope you die." See May 28, 2008 Transcript ("Tr.") pp. 76-78, 80; Feb. 3, 2009 Tr. p. 9.

In addition, the Court finds credible Mr. G's contention that Ms. G repeatedly puts the Subject Child in a position of having to "choose" between his parents by directing the Subject Child to make such inquiry of his father, to wit: "Ask your dad if you can come with me . . ." ( see Oct. 7, 2008 Tr. p. 39); ". . .do you want your father to pick you up? . . . (see Oct. 9, 2008 Tr. p. 119); "you have to ask [your father]" (see Feb. 9, 2009 Tr. p. 125); and, when the Subject Child is speaking to Mr. G on the telephone, "get off the phone" or "hang up the phone" (see May 28, 2008 Tr. pp. 49-50).

Such behavior manifests not only poor parental judgment by Ms. G but also her contempt for Mr. G's parenting time with the Subject Child and evidences Ms. G's need to "win" the Subject Child's affections away from Mr. G.

Nonetheless, Mr. G also appears before this Court with "unclean hands." The Court notes that it has found Mr. G in contempt of court, after a hearing, in connection with these very proceedings due to his surrepetitious taping of the Court proceedings and his lying about so doing upon this Court's inquiry to him. See Feb. 5, 2009 Tr. at pp. 2-3.[FN2] The Court also notes that Mr. G surrepetitiously taped telephone conversations that he had with Ms. G as well as with his son to gather "evidence" for this proceeding. Mr. G' propensity to tape such conversations demonstrates, at the very least, poor parental judgment; to wit, placing his own need to have his child live with him above the privacy rights of the Subject Child as well as the need of the Subject Child to continue in his stable residence and to have an assurance of future stablility.

Mr. G' propensity to file violation petitions for even de minimus violations -- such as not obtaining from Ms. G certain educational, medical and school event information that she is required to provide but which information clearly is available to Mr. G to find out on his own without undue effort -- also evidences Mr. G' litigation zeal and a clear intent by Mr. G to continue to litigate the issue of the Subject Child's custody until, presumably, he obtains custody or the Subject Child turns 18.

Mr. G' own testimony also evidences his inability to make appropriate parental judgments when it relates to Ms. G's decision-making or her role as sole legal [*4]custodian. For example, Mr. G has criticized Ms. G's choice of church and religious activities although, as sole legal custodian, it is within Ms. G's purview to make such choices. Irrespective of whether the Subject Child should or should not be raised in the Assyrian faith and cultures, Ms. G is the sole legal custodian entitled to make a decision on that matter. Rather than respect Ms. G's position as sole legal guardian on this matter, Mr. G has questioned that decision-making claiming that Ms. G's choices about the Subject Child's activities and her selection of a church are inconsistent with raising the Subject Child in the Assyrian tradition.

Thus, this Court is in the unenviable position of again hearing testimony from two squabbling parents whose credibility and motives each are quite suspect and who each accuse the other of violating the terms of the 2006 and 2007 Orders and each of whom has demonstrated a propensity to ignore this Court's orders if such orders do not suit him/her.

The Court concurs with the Law Guardian's conclusion that both parties have evidenced an inability to promote the other's relationship with the Subject Child and that because each believes that the Subject Child should reside with him/her and not the other parent they each have failed to cooperate with each other to ensure the best interests of the Subject Child. Indeed, their failure to cooperate has undermined the best interests of the Subject Child. For example, Mr. G' scheduling of vacations that interfered with the mother's one weekend per month access to the Subject Child, without appropriate make-up visitation, is troubling. Ms. G's refusal to allow Mr. G to have the Subject Child during a time period which included both his graduation ceremony and his family visiting from California likewise is troubling. The Subject Child thus missed seeing relatives from California, including his grandparent, as well as missing an important milestone in his father's life. And, Ms. G's refusal to change the drop off site for visitation from Mr. G' home to the church where Mr. G was volunteering speaks volumes about the pettiness to which each party will stoop to avoid accommodating the other -- all to the detriment of the Subject Child.

What to do? Since the Court can't split the child in half nor is it terminating either parent's parental rights, in essence, this Court must choose "the lesser of two evils" in terms of a primary custodial parent and issue an order that, in theory, if not in practice (that lies in the hands of the parties), promotes the best interests of the Subject Child.

Accordingly, for the reasons articulated above and as set forth below, the Court cautiously continues the existing custody arrangement of sole legal and physical custody of the Subject Child to Ms. G with liberal visitation to Mr. G as set forth further herein, but revokes and supercedes the terms of the 2006 and 2007 Orders and replaces such Orders with the specific terms and conditions set forth further herein.

As an initial matter, while the best interests of the child is the primary consideration in a child custody proceeding, a modification of an existing custody arrangement should be allowed only upon a sufficient showing of a change in circumstances warranting a real need for a change in order to insure the continued best interests of the child. See McCauliffe v. Peace, 176 AD2d 382, 383 (App. Div. 3rd Dept. 1991); Meola v. Meola, 301 AD2d 1020. Moreover, "priority, in the first instance, will be accorded an existing custodial arrangement," with the weight accorded to such arrangement dependent upon "whether the prior disposition resulted from a full hearing [*5]or a stipulation." See Maher v. Maher, 1 AD3d 987 (App. Div. 4th Dept. 2003) citing Friederwitzer v. Friederwitzer, 55 NY2d 89.

Here, after several years of "failed" stipulated orders on consent as to legal custody and Mr. G' access to the Subject Child, the Court had a full hearing on this issue of custody and access which resulted in the 2006 and 2007 Orders.[FN3] Thus, the Subject Child's right to stability and permanency with the same parent -- after a full hearing on the issue -- should only be undermined if the "totality of the circumstances warrants a change that is in the best interests of the Subject Child." Matter of Salvati v. Salvati, 221 AD2d 541 (citations omitted).

The Court notes that, in its past Decision and Order arising out of the 2006 hearing, the Court had observed that a change in legal and physical custody of the Subject Child could be warranted if Ms. G were to persist in behavior that undermines Mr. G's relationship with the Subject Child.

As noted above, although the Court does find that each party has established certain violations by the other of the 2006 and 2007 Orders, and Ms. G has continued to fail to promote the relationship between the Subject Child and his father, in view of the totality of the circumstances, Mr. G has failed to establish that a change in custody to him at this time will ensure the Subject Child's best interests. Indeed, the history of the parties now has shown that neither party can be relied upon to promote the other's relationship with the Subject Child and the Court has no reason to believe that the interaction, lack of cooperation and acrimony between the parties will be ameliorated if custody were to change.

Notably, the evidence at trial demonstrates that Mr. G used the language of the 2006 Order which provided him two weeks vacation (superceding the regular visitation schedule) to effectively trump Ms. G's one weekend per month with the Subject Child. Mr. G also has precluded Ms. G from enjoying any consecutive time periods with her son beyond those prescribed in the 2006 and 2007 Orders to the Subject Child's detriment as the Subject Child has missed social and maternal family events.

In addition, Mr. G has made clear that he believes it is a priority that the Subject Child be raised with Assyrian language and traditions and that the Subject Child is exposed to Assyrian culture and religion. Feb. 5, 2009, Tr. pp. 12-14; 28-30; 42-45. Mr. G testified that Ms. G has failed to do so. Feb. 5, 2009, Tr. pp. 14-17. Mr. G's testimony made it clear to this Court that, if Mr. G were to have legal custody of the Subject Child, the child's educational, social and religious experiences would be dramatically changed so that Mr. G could achieve what he believes Ms. G has failed to do with the Subject Child.

Mr. G testified that -- on this issue which he views as paramount -- he disagrees with Ms. G's decisions up-to-now as sole legal custodian and would make changes that likely would change significantly the Subject Child's current existence in all areas -- [*6]social, educational and religious. See Feb. 5, 2009 Tr. at 16-17 (to wit, learning Assyrian language is more important than summer camp). Thus, a change in legal and physical custody from Ms. G to Mr. G would mean not only a change in the Subject Child's daily routine from living primarily with his mother to living primarily with his father, it would result in a dramatic upheaval of the Subject Child's current existence on almost all fronts.

This Court finds that, despite Mr. G having established violations by Ms. G, a change in legal and physical custody of the Subject Child to the father is not an appropriate remedy here as the mutual acrimony and lack of cooperation between the parties is not likely to be abated and the Subject Child's best interests would not be served.

Moreover, the Court notes that, with respect to his access to the Subject Child, in this current proceeding, Mr. G testified to only a handful of instances in a period of almost two years in which Ms. G intentionally interfered with his access to the Subject Child. In most of those instances, although Mr. G did not have the visitation he sought with the Subject Child, he did have access to the Child, though less than that to which he was entitled pursuant to the 2006 and 2007 Orders. Moreover, although Mr. G does not speak to the Subject Child over the telephone as often or as long as he would like to under the 2006 and 2007 Orders, he did admit that he does speak to the Subject Child.

The Court also does not find credible Mr. G's testimony that he has been unable to participate in his son's educational events and planning as the evidence is clear that it is only Mr. G' discomfort with ensuring that he is in the "loop' of information and activities that has precluded him from independently obtaining all requisite information in a timely fashion. The Court makes the same finding with respect to Mr. G' access to information about medical and other service providers. The evidence at trial makes it quite clear that Mr. G' violation petitions about Ms. G's affirmative obligation to provide to him doctor and educational information, even though established, would not, in and of themselves, rise to a level of a change of custody. The Court also finds, that despite the violations established by Mr. G, a change in physical or legal custody simply is not warranted in this case.

Nonetheless, the Court finds that the evidence adduced at trial dictates that the current Order concerning custody and visitation must be changed for the best interests of the Subject Child. Accordingly,

IT IS HEREBY ORDERED that any and all prior Orders concerning custody and/or visitation with the Subject Child are hereby superceded by this Order as set forth further herein.

Turning to the issue of this Court' s contempt finding againstMr. G, the Court notes that, the penalty for civil contempt is limited to a "fine and imprisonment, or either" (Judiciary Law § 753[A]; Family Court Act § 156); see Labanowski v. Labanowski, 4 AD3d 690, 693 (App. Div. 3rd Dept. 2004). Based on these proceedings, the Court finds that an appropriate remedy for Mr. G's contempt is the admonishment already given to him by this Court existing in this Court's record and financial remuneration, to wit, Mr. G will be financially obligated to pay seventy five percent of the entire cost of an approved parent coordinator as set forth further herein. [*7]

For all of the reasons articulated above, and upon consideration of all the credible testimony and evidence, and, upon consideration of all of the factors with respect to the Subject Child's best interests, the Court orders the following:

ORDERED that Ms. G be afforded sole legal and physical custody of A. G, date of birth, September 15, 2002; and it is further

ORDERED that within three months (90 days) of receipt of this Order, Ms. G shall arrange for the Subject Child to commence psychological counseling with a family therapist, psychologist or certified social worker, and both Ms. G and Mr. G shall bear the cost equally (50 percent each) of any out-of-pocket costs for such counseling (to wit, costs that are not covered by or are unreimbursed through either parties' health coverage); and it is further

ORDERED that both Ms. G and Mr. G shall cooperate and participate with, as required, the Subject Child's therapy/counseling (including, but not limited to, attending any and all sessions as required by such therapist/counselor); and it is further

ORDERED that Ms. G shall provide in writing to Mr. G and to the Attorney for the Subject Child the name and contact information of such therapist/counselor on or before the expiration of the 90 days referenced above; and it is further

ORDERED that Ms. G shall execute a release provided to her by the Attorney for the Child to allow any such therapist/counsel to communicate with the Attorney for the Child so that such attorney may ensure that this Order is complied with by the parties; and it is further

ORDERED that Ms. G has an affirmative obligation to provide in writing to Mr. G on October 1 of each year the names of any and all of the Subject Child's educational, medical, dental providers and any other providers in connection with the Subject Child's general health and welfare including day care providers even if such providers have not changed from year to year as well as written notice of any changes and any new contact information for such providers within thirty days of her receipt of such information; and it is further

ORDERED that Ms. G provide to Mr. G within thirty days of receipt of this Order releases allowing Mr. G to access information, records or documents from all such educational, medical and dental providers without having to obtain same from Ms. G directly and Ms. G must provide any additional releases sought by Mr. G as to such information, records or documents within thirty days of her receipt of a written request by Mr. G for the same; and it is further

ORDERED that Ms. G provide to Mr. G in writing, via email to an email address provided, in writing, by Mr. G to Ms. G within fourteen days of receipt of this Order, notice of any and all scheduled doctor's appointments and dentist appointments within 72 hours of making such appointments or within a reasonable time frame if such appointments are made on less than 72 hours notice; and it is further

ORDERED that Mr. G shall have five weeks of visitation each year (hereinafter "vacation visitation") which is to occur within any or part of the Subject Child's February school recess, Spring school recess and summer vacation, consistent with the child's academic calendar, and that no more than two weeks visitation (fourteen days) be consecutive except as set forth further herein. During all such vacation visitation Mr. G must ensure that the Subject Child attends school if the Subject Child's school is in [*8]session during any part of the vacation visitation. Such vacation visitation shall supercede any regularly scheduled visitation except that, to the extent that any such visitation supercedes the mother's scheduled weekend with the Subject Child, Ms. G shall have make up time for such weekend during a weekend of her choosing (but not within that fourteen day or seventeen day period as noted below); and it is further

ORDERED that if any such vacation visitation abuts a weekend in which Mr. G ordinarily would have visitation such that his access to the Subject Child would exceed fourteen consecutive days, on two separate occasions during each calendar year, Mr. G may extend such vacation visitation to beyond the fourteen consecutive days, to no more than seventeen such consecutive days, unless otherwise agreed by the parties, on the condition, as noted above, that Mr. G ensures that the Subject Child attends school if the Subject Child's school is in session for any part of that extended vacation visitation; and it is further

ORDERED that any regularly scheduled visitation that Mr. G ordinarily would have that would extend such vacation visitation to beyond seventeen consecutive days becomes additional access time for Ms. Ge with the Subject Child - solely connected to that particular vacation visitation block in that particular year and then Mr. Gs' regular visitation will resume; and it is further

ORDERED that each calendar year, subject to Mr. G' selection of his five vacation visitation weeks, during the summer months in which the Subject Child's school is not in session (or, if Mr. G has not exercised his vacation visitation during the Subject Child's other school breaks such as February recess, Spring or Easter recess, Winter/Christmas recess), Ms. G shall have two weeks (seven days or fourteen days or seventeen days as set forth herein) of access time with the Subject Child (hereinafter "vacation access"), which vacation access shall supercede Mr. G' regularly scheduled visitation; and it is further

ORDERED that should Ms. G's vacation access with the Subject Child abut her regularly scheduled weekend with the Subject Child, Ms. G's vacation access may extend to seventeen consecutive days provided that Ms. G ensure that the Subject Child attend school if the Subject Child's school is in session during any part of that vacation access; and it is further

ORDERED that any regularly scheduled access that Ms. G ordinarily would have that would extend her vacation access to beyond seventeen consecutive days becomes additional visitation time for Mr. G with the Subject Child - solely connected to that particular vacation access block in that particular year and then Mr. G' and Ms. G's regular weekend access time will resume; and it is further

ORDERED that Mr. G must notify Ms. G in writing by May 15th of every year as to which weeks he plans to utilize during the summer school recess and reasonable notice (in excess of fourteen days) in advance of his intention to exercise some or part of his vacation visitation for the Winter/December or February and/or Easter/Spring School recesses; and it is further

ORDERED that if Mr. G fails to meet the timetable set forth in the paragraph above as to written notification to Ms. G of his intention to utilize his vacation visitation during any of those periods set forth above, Ms. G may notify, in writing, Mr. G of her intention to use all or part of her vacation access with the Subject Child within a [*9]reasonable time in advance of such use; and it is further

ORDERED that each month Mr. G shall have weekend visitation with the Subject Child from after school on Friday where he picks up the Subject Child until Monday morning when he transports the Subject Child to school in a timely fashion; except for the third weekend of each month which shall constitute Ms. G's access time with the Subject Child, and, if a month has more than four weekends (which means that the Friday of that weekend falls within the same month as four other Fridays of that same month), Ms. G shall have access time with the Subject Child during such "fifth" weekend; and it is further

ORDERED that Ms. G shall not be present at school during Mr. G' pick up or drop off time of the Subject Child to school; and it is further

ORDERED that in the event that the Monday following Mr. G' weekend visitation is a legally recognized holiday in which the child's school is closed, then said weekend visitation shall be extended until Monday at 5:00 p.m.; and it is further

ORDERED that Mr. G shall have visitation with the Subject Child on alternate Wednesdays commencing at 5:00 p.m. and continuing through the beginning of the Subject Child's school day the next morning where the father shall transport the Subject Child to school in a timely fashion unless the following day is a legally recognized school holiday in which the Subject Child's school is closed, and then such visitation shall be extended until 5:00 p.m. and on those alternate Wednesdays when there is no overnight visitation as set forth herein, the father shall have visitation with the Subject Child from 3:30 p.m. until 7:30 p.m.; and it is further

ORDERED that if either party travels with the Subject Child in excess of one overnight, the traveling party shall provide to the other parent, in writing, in advance of such travel, a contact telephone number and address at which the Subject Child may be reached; and it is further

ORDERED that in the event that Ms. G employs or otherwise uses a babysitter to care for the Subject Child, other than a brief excursion for errands (to wit, two hours or less) she shall first notify Mr. G, who shall have the right

Of first refusal" to care for the Subject Child in lieu of the Subject Child being cared for by a babysitter except that any summer camp in which the Subject Child is enrolled shall not constitute "babysitter" for the purposes of this paragraph but a "day care" (not day camp) shall; and it is further

ORDERED that neither party shall remove the Subject Child from the contiguous United States without the written consent of the other party, or prior Court approval; and it is further

ORDERED that the parties shall each have the right to celebrate Easter in alternate years with the Subject Child, with Mr. G having Easter with the Subject Child in odd years, and Ms. G having Easter with the Subject Child in even years irrespective of scheduled visitation weekends, vacation access or vacation visitation; and it is further

ORDERED that at 5:00 p.m. on the Wednesday prior to Thanksgiving through Friday at 10:00 a.m. Mr. G will have visitation with the Subject Child in even years and Ms. G will have the same Thanksgiving schedule in odd years. In the event that Thanksgiving falls on Mr. G' alternate weekend, the father will have visitation in accordance with the weekend visitation schedule and does not have to return the [*10]Subject Child on said Friday after Thanksgiving; and it is further

ORDERED that in even years on Christmas Eve until 10:00 a.m. on Christmas Day Ms. G shall have the Subject Child then Mr. G shall be afforded uninterrupted visitation beginning at 10:00 a.m. on Christmas Day through 6 p.m. of the evening preceding the commencement of the Subject Child's school. In odd years the parties' aforementioned access with the Subject Child during the Christmas holiday and recess shall be the reverse; and it is further

ORDERED that every Father's Day shall be spent by the Subject Child with Mr. G irrespective of any other scheduled visitation -- including vacation access by Ms. G --from 10:00 a.m. through 7:00 p.m.; and it is further

ORDERED that every Mother's Day shall be spent by the Subject Child with Susy G irrespective of any other scheduled visitation -- including vacation visitation -- from 10:00 a.m. through 7:00 p.m.; and it is further

ORDERED that the mother shall list the father as an "emergency contact" person or other such contact person on any and all forms requesting such information, as same may pertain to the Subject Child; and it is further

ORDERED that each party shall have reasonable telephone contact with the Subject Child while the child is with the other parent not to exceed one telephone call per day; each party shall promote said telephone contact between the Subject Child and the other party including initiating such telephone call for the Subject Child and the other parent if no call previously had occurred that day and, under no circumstances shall either parent circumscribe the length of such telephone calls unless such call exceeds fifteen minutes in duration and then such call may be ended at the direction of either parent, and each parent must continue efforts to make such contact each day until the call occurs; and it is further

ORDERED that neither party shall disparage the other party in the presence of the child, nor allow third parties to do so in the presence of the child; and it is further

ORDERED that each parent shall encourage a healthy and loving relationship between the Subject Child and the other parent; and it is further

ORDERED that each party shall give 48 hours advance notice to the other in the event he/she will not be able to comply with the visitation terms of this order; and it is further

ORDERED that each party shall ensure that the Subject Child is properly given any and all medication as prescribed for him by a licensed physician and Ms. G shall inform Mr. G of all such medications and prescribed dosages and shall provide same to Mr. G when the Subject Child is in Mr. G's care; and it is further

ORDERED that Larry S. Horowitz, Esq., Attorney for the Child, shall remain assigned to the matter for a period of six months after the date of this Order to ensure that the Subject Child is enrolled in therapy as herein provided and shall communicate in writing to the Court with copies to each party confirmation of same; and it is further

ORDERED that other than the school pick up and drop off of the Subject Child by Mr. G as set forth in this order, Ms. G shall transport the Subject Child to commence and conclude visitation with Mr. G to Mr. G' home in Yonkers or other location identified by Mr. G such location other than his home, to be provided, in writing, via email, by Mr. G to Ms. G in advance [*11]of such drop off or pick up, but such location may not be located in an place which would require Ms. G to travel in excess of four (4) miles from the ordinary home drop off location; and it is further

ORDERED that the father shall have such other and further visitation as the parties may agree; and it is further

ORDERED that within ten days of receipt of this Court's order, unless the parties can agree on a parent coordinator, each party shall submit in writing to the Attorney for the Subject Child the names and contact information of three parent coordinators and the Attorney for the Subject Child shall then submit the list to the Court, including three names (and contact information) of his own choosing, should he so choose, without indicating which party chose which name. The Court then will randomly select one such parent coordinator from the list for the parties to use for the purposes set forth herein; to wit, should either party contend that the other party has failed to comply with the terms of this Order, the parties must meet at least once on such issue with such parent coordinator to try to resolve the matter before requesting any judicial intervention. For the reasons previously noted herein, Mr. G shall bear seventy five (75) percent of the cost of the parent coordinator; Ms. G shall bear twenty five (25) percent of the cost of the parent coordinator; and it is further

ORDERED that Ms. G's notice of motion, filed with this Court on August 7, 2009, is hereby dismissed as moot;[FN4] and it is further

ORDERED that Ms. G's petition, filed on August 14, 2009, alleging a violation of the 2007 Order is hereby dismissed, without prejudice, with leave to renew only after the parties comply with the terms of this Order, to wit, meet with the parent coordinator in an effort to resolve the matter without court intervention consistent with the terms of this order; and it is further

ORDERED that, based upon the foregoing, the scheduled court date of September 16, 2009 be and hereby is deemed moot and no court appearances are required by any party or counsel on that date.

This constitutes the Decision and Order of this Court.

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

When legislators and Judges craft laws and orders they often seek to make rules that are permanent and unchanging. The problem is that life is predictably unpredictable. So many divorce cases that were ended when the economy was strong and people were making a large amount of money are no longer equitable in a world where salaries have dropped precipitously, but expenses have remained high. Many agreements that once made sense, are now overly burdensome for the payer. Due to changes in income the courts have become flooded with requests for modifications of agreements. The article below from the New York Law Journal outlines these problems and gives some insight onto how these requests for modifications are being handled by the courts.

Is our law equal to the challenge of today?

By Harriet Newman Cohen and Tim James

The past year has been a time of drastic economic decline, with millions losing jobs, real estate and stock values plunging, businesses performing far below accustomed levels, investment funds exposed as Ponzi schemes and the reduction or elimination of year-end bonuses in fields where such bonuses are typically the major part of total compensation. One result has been an increased number of applications for downward modification of support obligations.

A March 28, 2009, New York Times article captured the zeitgeist in describing the alarming number of new modification cases, both among the marginal earners and the wealthy, that are overwhelming the Family Court calendars.

This article explores the statutory and case law governing applications for downward modifications of established maintenance and child support. It also asks the question, "Is our law as promulgated and defined through case law equal to the challenge of these economically troubled times?"

The Governing Law

Domestic Relations Law (DRL) §236(B)(9)(b) provides that a court "may annul or modify any prior order or judgment as to maintenance or child support upon...a substantial change in circumstances." But a stronger showing is required to obtain a modification of child support or maintenance when the amounts to be paid have been set by the parties themselves, in an agreement, incorporated in, but not merged with, a judgment of divorce, or resolving a support proceeding.

In Boden v. Boden, the New York Court of Appeals established the preferred status of agreements between the parties on such matters, declaring:

Where, as here, the parties have included child support provisions in their separation agreement, the court should consider these provisions as [contracts] between the parties and the stipulated allocation of financial responsibility should not be freely disregarded....Absent a showing of an unanticipated and unreasonable change in circumstances, the support provisions of the agreement should not be disturbed.

DRL 236(B)(9)(b) ratchets the standard up even higher with respect to modifications of maintenance established by agreement of the parties, specifying that "no modification of a prior order or judgment incorporating the terms of said agreement shall be made as to maintenance without a showing of extreme hardship on either party[.]" (Emphasis added.) Where the requisite showing is made, the court may modify the maintenance provision "for such period of time and under such circumstances as the court determines."

Five years after Boden, in Brescia v. Fitts, the Court of Appeals made it clear that the requirement of showing an "unreasonable and unanticipated change of circumstances" to obtain a modification of child support applies only "when the dispute is directed solely to readjusting the respective obligations of the parents to support their child," and not where "the child's right to receive adequate support is at issue."

In the latter case, a court is free to exercise its discretion in determining how much child support is required to ensure that the child has adequate support and order an upward modification consistent with that determination. It is applications for downward modifications, however, that are the focus of this article.

Malingerers Beware

In the decades since Brescia and Boden, the courts have established demanding standards for downward modifications of spousal and/or child support.

Regardless of whether relief is sought from the mandate of a court alone or from the provisions of an agreement between the parties, the courts, wary of malingerers, have looked to the payor's "capacity to generate income" (Michelle F.F. v. Edward J.F., Jr., O'Brien v. McCann) or, more broadly, his or her "ability to provide support" (Freedman v. Hornike).

Thus, the courts require that a payor seeking a downward modification based on the loss of a job or decreased income demonstrate that his unemployment or underemployment was not of his/her own doing, and that he/she has made diligent efforts to find appropriate alternative employment. Movants who fail to do so typically see their motions denied.

In the recently decided Krup v. Fehr, however, Justice Jeffrey S. Sunshine gave the movant father a second bite of the apple. (See also Lonsdale v. McEwen, discussed below.) At issue was the $2,000 per month in child support that the father had agreed to pay for one child under a stipulation entered into when he was earning $170,000 a year. There was no dispute that his income had decreased to $90,000 at the time he made the downward modification motion.

The judge granted the father's application to the extent of ordering an evidentiary hearing based, among other things, on the father's failure "to offer any evidentiary support for his assertion that this decrease in earnings was not of his own making." The judge also directed that there be pre-hearing discovery. The decision provides a virtual primer on the case law governing downward modifications.

Although the court's focus is typically on changes in the payor's financial circumstances, changes in the financial circumstances of the payee may also be relevant on a motion for downward modification of maintenance or child support. For example, the wife's having gained employment was cited as a factor, or the factor, warranting a reduction in the maintenance amounts awarded in the judgment of divorce in Cross v. Cross, Bofford v. Bofford and Lipow v. Lipow.

The courts have emphasized repeatedly that, on any motion for downward modification of maintenance or child support based on the finances of the payor, a determination as to whether the requisite "change in circumstances" has been shown requires "comparing the payor's financial situation at the time of the application for a downward modification with that at the time of the order or judgment."

In making that comparison, the courts are concerned not just with the payor's income but with his or her overall financial circumstances (including assets and ability to maintain his/her own lifestyle in the face of alleged financial hardship) as indicia of the payor's ability to continue paying maintenance or child support at the same level.

'Unanticipated' Is a Must

Case law dating back to Boden establishes that where a party seeks modification of child support provisions contractually agreed to by the parties, the "change of circumstances" sufficient to satisfy the modification standard must have been "unanticipated" at the time of the agreement.

The courts have typically treated loss of employment as "unanticipated" without much discussion of the point. However, there have been cases in which the courts have held that the loss of employment was not an unanticipated change of circumstances.

For example, in Ellenbogen, the movant's business "had already experienced a precipitous decline in profitability and the loss of a major client at the time he entered into the stipulation," and in Commissioner of Social Services, the movant was on notice for eight years that he would lose his teaching license if he failed to obtain a master's degree; accordingly, his loss of his license for failing to obtain that degree was not unanticipated.

Showing, however, how fact-specific these cases are is Lonsdale v. McEwen. There, the separation agreement incorporated into the judgment of divorce specifically provided for a reduction in basic child support from $48,000 per year to $33,600 per year in the event that the father's income ($1.3 million per year at the time of the separation agreement in late 2001) should fall to $600,000 or less. The majority held that the father was entitled to a hearing on his motion, where "the parties to the agreement anticipated the loss of defendant's lucrative position but neither anticipated nor addressed either a prolonged period of unemployment or so huge a reduction in salary."

In late 2002, less than a year after the agreement was made, the father had lost his job. He was unemployed for most of 2003 and 2004. He had total income during those two years of only about $150,000, including the payments he received in 2004 from the job he got towards the end of that year which would pay him $200,000 a year prospectively.

The two dissenters, agreeing with the court below, would have denied the downward on the papers and without a hearing, as the father's loss of his job and the drastic reduction in income he suffered was far from "unanticipated" in that the parties had expressly contemplated that possibility and provided for it.

Successful Motions

If a downward modification movant has cleared all of the hurdles discussed above, the outcome of the motion will turn on whether the court views the change in circumstances as sufficiently "substantial," "unreasonable" or "extreme-hardship"-inducing (depending on which standard applies) to warrant a modification. Sometimes the court will grant but time-limit the relief.

This happened in A.R. v. N.R., where the court found that the husband had made a showing of "extreme hardship" in support of his motion for downward modification of both his maintenance and child support obligations (totaling $84,000 per year) under a separation agreement. The husband had suffered a "drastic reduction in income, from $300,000 per year at the time of the divorce to $66,000 per year (a 78 percent drop), through no fault of his own."

The court rejected the wife's contentions that the husband was living a "high lifestyle" and had "undisclosed cash," or more income than he claimed. But finding that the husband's prospects for the future were good, the court fashioned a creative decision, opting to grant a 13 1/2 month suspension of maintenance payments and a short (1/2 month) reduction of his child support obligation instead of a permanent modification.

Similarly, in Sheila C. v. Donald C., the court affirmed a one-year reduction in the movant's maintenance payments, holding that: "Respondent satisfied the extreme hardship standard. However, because he did not prove that his income will never recover, his request for a permanent reduction of his maintenance obligation was properly denied."

Applicant Beware

But if the downward circumstances are of the payor's own making, the court will not grant relief. So where an orthopedic surgeon decided to take an academic position in place of his former private practice, the court would not grant relief, finding that the reduction in his income was of his own doing.

But even apart from that issue, the court found the 31 percent decrease in the surgeon/former husband's income from $134,000 a year to $91,000 insufficient to establish the "extreme hardship" required to warrant a downward modification of the agreed-upon maintenance in light of, inter alia, his "comfortable, even luxurious lifestyle," his recent purchase of a house for $220,000 and his "not insubstantial" $91,000 income.

And job losses alone will not make an "involuntary, unreasonable change in financial circumstances" sufficient to warrant a downward modification, as the former husband learned in Cox v. Cox. He sought to be relieved of his $1,650-per-month child support obligation under a stipulation of settlement, pointing to the loss of his job with Verizon in late 2008, his new wife's loss of her job with Verizon at the same time and the fact that the $1,650 per month he was paying in child support now constituted 95 percent of his $1,741 per month in unemployment benefits. The court denied the relief, on the reasoning that:

• The payee wife, with whom the parties' daughter was residing in Florida, earned about $31,000 per year at her job.

• The husband had earned $318,000 in 2007 from his employment with Verizon, almost $200,000 more than his income of $123,000 for 2004, as stated in the stipulation of settlement the parties signed in December of that year.

• The husband and his new wife had earned a combined $414,000 from their employment with Verizon in 2007, and in that same year had received $498,000 for the sale of Verizon stock, bringing their gross income for the year to $912,000.

• The husband alone had been paid $476,000 by Verizon in 2007, leading the court to conclude that he had probably received a severance payment of approximately $150,000.

The Catch-22

Because of the requirement that a movant for downward modification based on the loss of a job demonstrate that he or she has made diligent efforts to find new employment, some delay in moving is probably necessary in order to make a facially sufficient motion.

But such a delay can be costly where child support is concerned, because, statutorily, child support continues to accrue until the date on which an ultimately successful motion for downward modification is made, and once that obligation has been incurred, the courts can provide no relief from it.

DRL 236(B)(9)(b) provides that "[N]o modification or annulment shall reduce or annul any arrears of child support which have accrued prior to the date of application to annul or modify any prior order or judgment as to child support" (emphasis added). As the Court of Appeals explained in Dox v. Tynan.

Child support arrears must be awarded in full, regardless of whether the defaulter has good cause for having failed to seek modification prior to their accumulation. "If a party obligated to pay child support wishes to avoid making payment, such as where his or her financial circumstances have deteriorated, that party must make an affirmative request for relief" (Scheinkman, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 14, Domestic Relations Law §244, at 752).

In May of this year, the Court of Appeals stressed the "strong public policy against restitution or recoupment of [child] support payments." Thus, every day of delay before moving for modification is another day to which any downward modification ultimately granted will not apply. And yet, to file before having established a record of diligent pursuit of new employment is to invite dismissal of the motion as facially defective.

So, Set Your Own Standards

Looking forward, divorcing parties (payors and payees) can achieve far greater flexibility with respect to the availability of modifications that take into account the ups and downs of life by agreeing, in a separation agreement or stipulation of settlement, to standards of their own choosing for modification.

In Vincent Z. v. Dominique K., the First Department reversed the Family Court and gave the father a downward modification based on the standards the parties had set for themselves, citing its earlier reasoning in Colyer v. Colyer that "parties to a separation agreement may contractually provide for a support modification on a lesser standard than legally required."

Law Is Malleable, Pragmatic

Wary of opening the floodgates too wide and thereby inviting constant litigation over the reasonableness of maintenance and child support obligations that have already been fixed, the Legislature and the courts set high standards that make successful applications for downward modifications the exception, rather than the rule.

But the law as defined over the years has within it all of the elements necessary to meet the economic crisis facing us today: hardship, unforeseeability, being in extremis. The challenge for our courts is, as always, to weed out the malingerers and to provide relief where appropriate. The law, as written and interpreted, is sufficiently malleable and pragmatic, not dogmatic, to mete out justice, even in these economically troubled times.

Harriet Newman Cohen is a member and Tim James an associate in Cohen Hennessey Bienstock & Rabin. Ms. Cohen is the co-author of 'The Divorce Book' (Avon Publishers, 1994).

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

In a decision posted today, the Appellate Division, Second Department asserted jurisdiction over a child custody matter that extended from New York to Kentucky. This decision provides guidance for those who are planning to seek custody in the near future. Importantly, it allows a parent to vacation with their child for a long period, six weeks in this case, without affecting residency for jurisdictional purposes. In an era when many people are forced to relocate for a host of different reasons, this decision will help prevent forum shopping in cases that cross numerous state and jurisdictional lines.

Matter of Felty, appellant v. Felty, respondent
APPELLATE DIVISION
SECOND DEPARTMENT
Family Law

July 21, 2009

Decided July 14, 2009
Before Mastro, J.P., Dickerson, Belen, Chambers, JJ.

APPEAL by the mother in a child custody proceeding pursuant to Family Court Act article 6, as limited by her brief, from so much of an order of the Family Court (Debra J. Kiedaisch, J.), entered in Orange County on May 29, 2008, as granted the father's motion to dismiss the petition for lack of subject matter jurisdiction and dismissed the proceeding.

OPINION & ORDER

ARIEL E. BELEN, J.--The principal issue on this appeal is whether, in this child custody proceeding, New York should exercise home-state jurisdiction. Although the mother in this case had moved the parties' two children from the Commonwealth of Kentucky to the State of New York six months prior to the commencement of this custody proceeding, she allowed the children to vacation with their father in Kentucky for six weeks during this same period. Under the Uniform Child Custody Jurisdiction and Enforcement Act (hereinafter the UCCJEA) (28 USC §1738A, as added by Pub L 96-111, 94 US Stat 3569, and amended in various sections of titles 22 and 28 of the United States Code; Domestic Relations Law article 5-A), both a parent and his or her children must reside in a state for at least six months before the commencement of a child custody proceeding in order for that state to be deemed the "home state" within the meaning of the UCCJEA. We find that New York has home-state jurisdiction pursuant to Family Court Act article 6 and the UCCJEA since the children's six-week vacation with their father in Kentucky did not constitute a change in their residency.

The petitioner, Carla Ann Felty (hereinafter the mother), seeks review of a determination of the Family Court, Orange County, entered May 29, 2008, granting the motion of the respondent, James R. Felty (hereinafter the father), to dismiss the proceeding for, inter alia, lack of subject matter jurisdiction pursuant to CPLR 3211(a)(2). The court held that neither Kentucky nor New York was the subject children's home state, but concluded that Kentucky was the more convenient forum, and consequently transferred the custody proceeding to the Commonwealth of Kentucky, where a trial has been scheduled.

The parties met through the Internet in 2003, when the mother was studying veterinary medicine at Mississippi State University and the father was a teacher studying for a Master of Education degree from the University of Western Kentucky. The parties married on June 5, 2004, in Kentucky. Six months later, the mother became pregnant, but continued her veterinary studies and graduated in May 2005. Upon graduation, the mother moved to New York, where the father joined her soon thereafter.

On September 2, 2005, the mother gave birth, in New York, to twin daughters, Jessica Mae Felty and Jamie Elaine Felty. On October 31, 2005, both parties and the children moved to Kentucky. In August 2006 the parties purchased a house in Kentucky.

In January 2007 the father commenced an action for divorce in Kentucky Family Court. On January 11, 2007, while the Kentucky divorce action was pending, the Kentucky Family Court issued a pendente lite visitation order, which directed equal visitation time between both parties, and directed the parties to participate in mediation. As a consequence of the mediation, the parties reached an agreement regarding the distribution of most of their property, but could not reach a custody agreement.

In April 2007 the mother forwarded a proposed settlement order to the father, which would have held the divorce action in abeyance for one year, allowed the mother to return to New York for at least one year to pursue her career as a veterinarian, and outlined a living arrangement and schedule for residential custody, which provided that the parties and children would, over the next two years, alternate between Kentucky and New York. However, neither the parties nor the Kentucky Family Court signed the proposed settlement order.

On April 20, 2007, the mother and children moved to New York to live with the mother's parents. Thereafter, the parties sold the house they had purchased together in Kentucky and the father moved in with his parents in Kentucky. On June 7, 2007, both parties signed an "agreed order" to dismiss the Kentucky divorce action without prejudice to reinstatement of the action. From June 9, 2007, through July 14, 2007, the father resided with the mother and the children in the maternal grandparents' home in New York.

The children visited their father in Kentucky at his parents' home from July 15, 2007, until August 27, 2007, an approximately six-week period that figures importantly in this custody litigation. While in Kentucky, the children did not have their own bedrooms but, rather, slept on a mattress on the floor of the father's bedroom, during which time they contracted scabies. However, they were not diagnosed or treated for scabies until they returned to New York.

On November 1, 2007, the mother filed the instant petition for custody in the Family Court, Orange County. In the petition, the mother requested sole custody of the children and that visitation with the father occur only within New York State. In support of this request, the mother asserted, among other things, that she had been the children's primary caregiver since birth; there were no pediatricians or hospitals in Butler County, Kentucky, where the father resided; the nearest hospital to the father's residence was 45 minutes away by car; and the home where the father resided was unsanitary. According to the mother's petition, the father's residence was infested with mice and did not have a functioning sewer line. Further, the petition alleged that the paternal grandparents' property, where the father's trailer was located, was infested with ticks and cockroaches. The mother further alleged that the father was verbally and physically abusive to her on multiple occasions, including, for example, one occasion on which the father threatened to kill her before he would let her take the children to New York. According to the mother, on the same night as the father made that threat, he forced her out of their car, requiring her to walk alone on a desolate road for miles before she reached home.

On December 5, 2007, while the mother's petition for custody was pending in New York, the Kentucky Family Court granted the father's motion for reinstatement of the previously-dismissed divorce action, but thereafter stayed that action on the mother's motion.

Meanwhile, before the Family Court, Orange County, the mother asserted, inter alia, that New York was the children's home state within the meaning of the UCCJEA since the children had lived in this state continuously since April 2007, i.e., for at least six months prior to her commencement of the instant proceeding (see Domestic Relations Law §75-a[7]).

On February 12, 2008, the father moved to dismiss the petition in the instant proceeding based on, inter alia, lack of subject matter jurisdiction. The father argued, among other things, that the divorce and custody proceedings should both be litigated in Kentucky since the children had not lived in New York for the requisite six consecutive months prior to the mother's commencement of this proceeding and, thus, New York was not their home state within the meaning of the UCCJEA. Rather, he contended, the mother commenced the proceeding less than four months after the children returned from Kentucky, after residing with him for six weeks during the summer of 2007. He argued that the children's six-week absence from New York was not temporary and, thus, the children had not lived in New York for the requisite six consecutive months prior to the commencement of this proceeding.

In opposition, the mother submitted an affidavit in which she averred that the father had been physically and verbally abusive toward her while she was pregnant. She explained that, after giving birth to the twins in New York, she agreed to move to Kentucky, with the understanding that she could return to New York at any time. The mother averred that, upon the father's commencement of the divorce action in Kentucky, she agreed to reconcile the marriage only in a desperate attempt to return to New York. The mother contended that she and the children moved to New York with the knowledge of both the Kentucky Family Court and the father, and that she filed the instant custody petition only after she and the children had lived in New York for six consecutive months.

The mother also asserted that her residence in Kentucky had always been temporary, as evidenced by the fact that her driver's license, voter registration, and veterinary license remained in New York. She asserted that, even while she was physically in Kentucky, she continued to use her parents' address in New York as her permanent address. Moreover, she noted that the children's six-week visit to Kentucky was not undertaken pursuant to any stipulated living arrangement, but only as an ad hoc arrangement between the parties.

The mother further contended that returning the children to Kentucky would place them in imminent and substantial danger. On this issue, the mother noted that, since reinstatement of the divorce action in Kentucky, doctors in New York had diagnosed Jamie with microcephaly1. Because of Jamie's need for medical attention and the Kentucky doctor's failure initially to diagnose that condition, the mother averred that she did not trust the health care system in Kentucky and expressed fear that it could compromise Jamie's health2. In addition to Jamie's medical condition, Jessica has also been directed to meet with an occupational therapist to improve her delayed fine motor skills.

The Family Court granted the father's motion and dismissed the proceeding for lack of subject matter jurisdiction. The court held that neither New York nor Kentucky was the children's home state since their six-week stay with the father in Kentucky was not a temporary absence from New York, but constituted a change of residence. Similarly, the court held that the mother's relocation with the children from Kentucky to New York in April 2007 was not a temporary absence from Kentucky; hence, it determined that Kentucky was not the home state either. The Family Court then determined that Kentucky was the more convenient forum for the custody proceeding since the children resided most of their lives in Kentucky. We reverse.

New York's adoption of the UCCJEA was intended to accomplish three principal goals. First, it was designed "to obtain and enforce orders of custody and visitation across state lines and to do so in a manner that ensures that the safety of the children is paramount and that victims of domestic violence and child abuse are protected" (Domestic Relations Law §75[2]; see Legislative Mem, Bill Jacket, L 2001, ch 386). Second, it was designed to eliminate any jurisdictional competition between courts and strengthen jurisdictional certainty in child custody proceedings (see Matter of Michael McC. v. Manuela A., 48 AD3d 91, 95; Stocker v. Sheehan, 13 AD3d 1, 4; EB v. EFB, 7 Misc 3d 423, 432, affd Bjornson v. Bjornson, 20 AD3d 497). Third, it was designed to resolve any inconsistencies and conflict between its predecessors, the Uniform Child Custody Jurisdiction Act (hereinafter the UCCJA) and the Federal Parental Kidnaping Prevention Act (28 USC §1738A; hereinafter the PKPA) (see Handschu, Uniform Child Custody Jurisdiction and Enforcement Act, NYLJ, Oct. 4, 1999, at 1, col 1; Ilvento, The Application of Kinney Systems, Inc. v. Continental Insurance Company to Modification of Child Custody Proceedings, 83 Fla BJ 41 [May 2009]). In addition to resolving the conflicts between the UCCJA and the PKPA, the UCCJEA also conforms to the Violence Against Women Act (18 USC §2265 et seq.; hereinafter the VAWA), and the VAWA's goal of protecting victims of domestic violence who flee from one state to another state with their children to escape abuse (see Domestic Relations Law §76-g[4]; Handschu, Uniform Child Custody Jurisdiction and Enforcement Act, NYLJ, Oct. 4, 1999, at 1, col 1).

Under the Domestic Relations Law, a state may have jurisdiction over a child custody proceeding if the "state is the home state of the child" (Domestic Relations Law §76[1][a]; see Matter of Ciccone v. Pugh, 42 AD3d 767). A "[h]ome [s]tate" is defined as "the state in which a child lived with a parent...for at least six consecutive months immediately before the commencement of a child custody proceeding" (Domestic Relations Law §75-a[7]). The definition of home state also permits a period of temporary absence during the six-month time frame necessary to establish home-state residency (see id.; Arnold v. Harari, 4 AD3d 644).

Here, the facts support the mother's contention that she intended to remain permanently in New York and that the children's six-week visit to Kentucky during the summer of 2007 was a temporary absence which did not interrupt the six-month pre-petition residency period required by the UCCJEA. Although the mother may have expressed to the father that she would return to Kentucky, her actions indicated otherwise. For instance, the mother never changed her permanent address from New York to Kentucky, and her driver's license, veterinary license, and voter registration all remained in New York. Furthermore, in New York, the children received special education services, had a pediatrician, and resided in their own home with the mother, who was the children's primary care giver since birth. Considering these facts, it is evident that the mother intended New York to be the permanent residence and home state for both herself and the children. Her conduct could not be construed to evince an intent to have the children stay permanently in Kentucky.

We are further persuaded that Kentucky is not the children's home state by virtue of the fact that the father took no affirmative steps prior to the commencement of this proceeding to establish any permanent residence for the children in Kentucky. Considering the children's health and developmental concerns, health care was and is highly important to the children's well-being. Despite these health issues, the father did not retain a pediatrician or a therapist when the children resided in Kentucky. Moreover, the children did not have bedrooms but, rather, slept on the floor of the father's room in the grandparent's home. In sum, the mother's decision to seek medical and psychological care for the children in New York demonstrated a level of permanency that was never achieved in Kentucky, and is indicative of a home-state residency for the children.

If a parent wrongfully removes a child from a state, the time following the removal is considered a temporary absence (see Matter of Michael McC. v. Manuela A., 48 AD3d at 96; Matter of Krymko v. Krymko, 32 AD3d 941; Arnold v. Harari, 4 AD3d 644). The father argues that the mother left Kentucky under false pretenses, and that Kentucky thus retained home-state jurisdiction through the wrongful removal exception. Citing Matter of Krymko v. Krymko (32 AD3d 941), the father contends that the mother wrongfully removed the children from Kentucky and participated in forum shopping and gamesmanship, thus violating the intent and purpose of the UCCJEA. The record, however, does not support these contentions. Although the parties and children previously resided as a family unit in Kentucky, and the children lived most of their lives in Kentucky, the father failed to show how the children's move to New York constituted a temporary absence from Kentucky or was effected through a wrongful removal.

In any event, a wrongful removal will not be treated as a temporary absence "if there is evidence that the taking or retention of the child was to protect the petitioner from domestic violence" (Domestic Relations Law §76-g[4]; see Hector G. v. Josefina P., 2 Misc 3d 801, 820-821; Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, Uniform Child Custody Jurisdiction and Enforcement Act §76-g, at 211). Other states have also applied the UCCJEA to protect victims of domestic violence who flee from one state to another with their children to escape abuse and seek custody in a different jurisdiction (see e.g. Bissell v. Baumgardner, 236 SW3d 24 [Ky App 2007]; Stoneman v. Drollinger, 64 P3d 997 [Mont 2003]; In re Parentage, Parenting, and Support of A.R.K.-K., 174 P3d 160, 165 [Wash App 2007]). Although one goal of the UCCJEA is to prevent forum shopping (see Matter of Michael McC. v. Manuela A., 48 AD3d at 95; EB v. EFB, 7 Misc 3d at 429), another crucial purpose of the UCCJEA is to protect victims of domestic violence who, on their face, may be perceived as forum shoppers, but in reality are fleeing from one state to another to escape abuse (see Legislative Mem, Bill Jacket, L 2001, ch 386; Hector G. v. Josefina P., 2 Misc 3d at 820-821). Here, the mother admittedly misled the father about agreeing to reconcile their marriage. However, the mother averred that the father would not permit her to return to New York if she refused to attempt reconciliation. She thus asserts that, although she lied to the father, she did so with the intent to return to New York to protect herself and the children from the threat of domestic violence (see generally Matter of Machado v. Del Villar, 299 AD2d 361, 361). Pursuant to Domestic Relations Law §76-g(4), a party's conduct may not be construed against him or her if he or she engaged in such conduct to protect against domestic violence (see Hector G. v. Josefina P., 2 Misc 3d at 821-822; Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, Uniform Child Custody Jurisdiction and Enforcement Act §76-g, at 211). Accordingly, we do not construe the mother's conduct as a wrongful removal, since her concededly false statement of intent was made to escape an allegedly abusive relationship which included threats of domestic violence.

In sum, the record reveals that the children's six-week summer visit to Kentucky was merely a temporary stay similar to a summer vacation. The mother agreed to the six-week visit so that the children could have the opportunity to spend time with their family in Kentucky, with the understanding that the children would return to New York to resume their therapy and schooling. As a result, the children's visit to Kentucky was not a change of residency, but was merely a temporary absence from New York. As such, under Domestic Relations Law §75-a(7), the children's temporary absence from New York is considered to be part of the requisite six-month period. New York is thus the children's home state and its courts have jurisdiction to hear the instant custody proceeding.

In addition to furthering the UCCJEA's goals of protecting a party who has made allegations of domestic abuse and attending to the health and educational needs of the subject children, New York's exercise of jurisdiction here furthers the statutory goal of strengthening jurisdictional certainty in child custody proceedings. In the interest of protecting children and parents who travel frequently between states, our recognition of the children's six-week visit as a temporary absence permits parties to child custody proceedings to freely vacation and visit family members in other states without fear of losing home-state status. Thus, the Family Court's determination that neither New York nor Kentucky was the children's home state is incorrect.

Since New York is the children's home state within the meaning of the UCCJEA, the courts of New York have jurisdiction over this custody proceeding unless jurisdiction is declined (see Domestic Relations Law §76-f[1]; Matter of Navarette v. Wyatt, 52 AD3d 836; Matter of Michael McC. v. Manuela A., 48 AD3d at 97). We find no ground to decline such jurisdiction and, thus, we need not analyze whether New York or Kentucky is the more convenient forum.

The order is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, the motion to dismiss the petition for lack of subject matter jurisdiction is denied, the petition is reinstated, and the matter is remitted to the Family Court, Orange County, for further proceedings on the petition. MASTRO, J.P., DICKERSON and CHAMBERS, JJ., concur.

ORDERED that the order is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, with costs, the motion to dismiss the petition for lack of subject matter jurisdiction is denied, the petition is reinstated, and the matter is remitted to the Family Court, Orange County, for further proceedings on the petition.

1. Microcephaly is "associated with mental retardation" and is characterized by an "abnormal smallness of the head." (Physicians' Desk Reference Medical Dictionary 1112 [2d ed 2000]).

2. According to the mother and the attorney for the children, in September 2008, both of the subject children began receiving special education services, including speech, occupational, and physical therapy in New York, and are attending preschool in New York.

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

From my experience, even the simplest divorce can easily turn into an extremely contentious proceeding. This can sometimes turn a couple who were once lovers into the bitterest of enemies. This may be acceptable in some divorce cases, but in many cases the former couple's children are the ones who bear the burnt of the hostility. This is certainly not in the children's best interest. As a result of this, several lawyers have created a collaborative process with different rules than the traditional adversarial process. This is a new area of Law and the below article goes through several of its aspects. If this type of process becomes more popular it can potentially take some of the acrimony out of divorce proceedings.

New York Law Journal
Law and Children
The Uniform Collaborative Law Act: a Milestone

By Andrew Schepard

Groups of divorce lawyers have developed collaborative law--a relatively new ADR process with many of the same peacemaking benefits for children of divorce and separation as mediation. While efforts are underway to expand collaborative law into other areas, it has its deepest roots in divorce and family law. Thousands of lawyers have been trained in collaborative law, and many parents have participated in it. Initial empirical evaluations of collaborative law indicate high levels of parent satisfaction. Many experienced divorce lawyers report that collaborative law increases their satisfaction with their practice because of the constructive role they play in helping parents reorganize their relationships with their children.

This column briefly describes what collaborative law is. It then focuses on the Uniform Collaborative Law Act (UCLA) developed by the Uniform Law Commission (ULC) (formerly the National Conference of Commissioners on Uniform State Laws). The UCLA is a milestone in the development of collaborative law, as it is a uniform statutory framework for its operation. Readers interested in more detail, including citations, about collaborative law and the UCLA can consult the current draft of the act (which has an extensive Preface and Commentary) and can be found at the Web site of the ULC, or at the Web site of Hofstra Law School. This author is the Reporter for the Drafting Committee on the act.

The Process and Features

The goal of collaborative law is to encourage parties to engage in "problem-solving" rather than "positional" negotiations. As described by Roger Fisher, William Ury and Bruce Patton in their famous book, "Getting to Yes," problem-solving negotiators focus on finding creative solutions to conflict that maximize benefits for all sides, while positional negotiators focus on arguing positions to "win" concessions. Collaborative lawyers emphasize that no threats of litigation should be made during a collaborative law process and the need to maintain respectful dialogue.

Parties in collaborative law disclose information voluntarily, without formal discovery requests. Parties also have the option to participate extensively in the planning for and conduct of negotiation sessions with their collaborative lawyers. Many models of collaborative law engage mental health and financial professionals in advisory and neutral roles--e.g., divorce coach, appraiser, and child's representative. Collaborative law negotiations are confidential.

Lawyers can and do, of course, engage in problem-solving negotiations and encourage active client involvement without formally labeling the process collaborative law. The distinctive feature of collaborative law is, however, the enforcement mechanism that parties create to ensure that problem-solving negotiations actually occur. Parties and collaborative lawyers agree in advance in a written agreement ("collaborative law participation agreement") that a collaborative lawyer represents a party only for the purpose of negotiations and will not represent the party in court. The parties also agree that their lawyers are disqualified from further representing parties if the collaborative law process ends without agreement ("disqualification requirement"). Finally, parties agree they mutually have the right to terminate collaborative law at any time without giving a reason.

A collaborative law participation agreement is thus a strong mutual commitment for problem solving negotiations. It is also a method of addressing the age old dilemma for negotiators of deciding whether to cooperate or compete in a situation where each side does not know the other's intentions and "where the pursuit of self interest by each leads to a poor outcome for all"--the famous "prisoner's dilemma" of game theory. In collaborative law "[e]ach side knows at the start that the other has similarly tied its own hands by making litigation expensive. By hiring two Collaborative Law practitioners, the parties send a powerful signal to each other that they truly intend to work together to resolve their differences amicably through settlement."

There are risks for parents who choose collaborative law---especially of incurring the economic and emotional cost of employing a new lawyer. But there are also benefits for them and their children. "[I]t would be a mistake to focus solely on the risk that [collaborative law] poses for clients. Other things being equal, spouses who choose court-based divorce presumably run the greater risk of harming themselves and their children in bitter litigation or rancorous negotiations. [Collaborative law] clients presumably bind themselves by a mutual commitment to good faith negotiations in hopes of reducing the risk that they will cause such harm, just as Ulysses had his crew tie him to the mast so he would not succumb to the Sirens' call and have his ship founder."

Numerous bar association ethics committees (including the American Bar Association's) have generally validated collaborative law as a permissible limited purpose representation. They have emphasized that parents can decide for themselves whether the benefits of collaborative law outweigh the risks if they do so with informed consent.

Collaborative law has thus far largely been practiced by lawyers in groups which draft their own model participation agreements, set their own membership qualifications and can include mental health and financial professionals. Collaborative practitioners have established their own professional association, the International Academy of Collaborative Professionals (IACP) and have worked diligently to articulate their own code of ethics within the broad framework created by the rules of professional responsibility.

The Uniform Law Commission

The ULC has worked for uniformity of state laws since 1892. It consists of more than 300 lawyer commissioners from every state. It has drafted more than 200 uniform laws on numerous subjects and in various fields of law where uniformity is desirable and practicable. The signature product of the ULC, the Uniform Commercial Code, is a prime example of how its work has simplified the legal life of businesses and individuals by providing rules and procedures that are consistent from state to state.

The ULC has taken the same approach to alternative dispute resolution and family law, developing, for example, the Uniform Mediation Act, the Uniform Arbitration Act and the Uniform Child Custody Jurisdiction and Enforcement Act.

The process of drafting a uniform act is transparent, and enlists expertise and key stakeholders. The ULC decides on a project, establishes a drafting committee of commissioners, and designates a reporter (usually a law professor), who produces multiple drafts for review in open meetings. Drafts are posted on the ULC Web site and observers from interested groups participate extensively in the drafting committee deliberations. Drafts are also reviewed by the ULC Style Committee for style and consistency. The entire ULC reviews the draft statute line by line twice. If approved, the act is then transmitted to the ABA House of Delegates for approval and then is transmitted to the states for adoption.

For the past two years a ULC Drafting Committee has been developing an act to codify collaborative law procedures into a uniform act. Peter K.Munson, the committee's chair, has wide experience with collaborative law and family law, and Harry L. Tindall, its vice chair, is a well known collaborative lawyer, active in many law reform efforts. The Drafting Committee includes several commissioners from the committee that drafted the Uniform Mediation Act. The committee has been advised by representatives of various ABA sections and the ABA Commission on Domestic Violence. Many collaborative lawyers from around the country served as observers of the drafting process and contributed their expertise to the Drafting Committee's deliberations.

The reasons that the ULC decided to undertake the drafting of the UCLA are similar to the reasons it undertakes any project--to promote the development of uniform law in an important and emerging area. A number of states have enacted statutes of varying length and complexity which recognize collaborative law, and a number of courts have taken similar action through the enactment of court rules. Participation agreements are crossing state lines as individuals and businesses utilize the collaborative process. As the use of collaborative law grows, the UCLA will provide consistency from state to state regarding enforceability of collaborative law agreements, confidentiality of communications in the process, a stay of court proceedings and the privilege against disclosure should the process not result in settlement.

The current draft of the UCLA will be submitted for final reading by the entire ULC at its Annual Meeting in July 2009. If adapted, the act will be then presented to the ABA House of Delegates in February 2010, and will be available for consideration by state legislatures during the 2010 legislative session.

Provisions of the Act

The UCLA aims to standardize the most important features of collaborative law participation agreements both to protect consumers and to facilitate party entry into collaborative law. It mandates essential elements of a process of disclosure and discussion between prospective collaborative lawyers and prospective parties to promote entry into collaborative law with informed consent.

The act also makes collaborative law's key features--the disqualification provision and voluntary disclosure of information--mandated provisions of participation agreements. Finally, the act creates an evidentiary privilege for collaborative law communications to facilitate candid discussions during the collaborative law process.

The key provisions of the UCLA are:

- Minimum requirements for collaborative law participation agreements, including written agreements, description of the matter submitted to a collaborative law process (a term not limited by subject), and designation of collaborative lawyers (section 4);

- A prohibition on tribunals from ordering a person to participate in collaborative law over that person's objection, thus insuring that party participation in a collaborative law process is entirely voluntary (section 4 (c));

- A stay of proceedings when parties to a pending proceeding sign a participation agreement, while allowing the tribunal to ask for periodic status reports (section 6);

- An exception to the stay for emergency orders to protect health, safety, welfare or interests of a party, a family member or a dependent (section 7);

- A definition of the scope of the disqualification requirement to both the matter specified in the collaborative law participation agreement ("collaborative matter") and to matters "related to the collaborative matter"--those involving the "same transaction or occurrence, nucleus of operative fact, claim, issue or dispute as a collaborative matter" (section 9 and 2(13));

- Extension of the disqualification requirement to lawyers in a law firm with which the collaborative lawyer is associated ("imputed disqualification") (section 9(b));

- An exception to imputed disqualification for legal aid offices, law school clinics and the like if the associated collaborative lawyer represents very low income parties for no fee, the parties agree to the exception in advance, and the collaborative lawyer is screened from further participation in the matter or related matters (section 10);

- A similar exception to imputed disqualification for collaborative lawyers for government agencies (section 11);

- A codification of the requirement that parties voluntarily disclose relevant information during the collaborative law process without formal discovery requests and to update information previously disclosed that has materially changed (section 12);

- An acknowledgment that standards of professional responsibility and child abuse reporting for lawyers and other professionals are not changed by their participation in a collaborative law process (section 13);

- A requirement that lawyers must disclose and discuss the material risks and benefits of collaborative law as compared to other dispute resolution processes such as litigation, mediation and arbitration as part of the process of informed consent to entry into collaborative law (section 14(a));

- An obligation on collaborative lawyers to screen clients for domestic violence (defined as a "coercive and violent relationship") and, if present, to participate in a collaborative law process only if the victim consents and the lawyer is reasonably confident that the victim will be safe (section 14(b));

- A privilege for collaborative law communications which are sought to be introduced into evidence before a tribunal (section 16);

- Provisions for waiver of and limited exceptions to the evidentiary privilege based on important countervailing public policies (such as the protection of bodily integrity and crime prevention) identical to those recognized for mediation communications in the Uniform Mediation Act (sections 16, 17, 18);

The Lawyer as Peacemaker

In this bicentennial year of his birth, it is helpful to remember Abraham Lincoln's advice in 1850 to young lawyers:

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser--in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.

The UCLA should encourage more lawyers to fulfill Lincoln's vision of the lawyer as peacemaker through collaborative law. It should also encourage parents to consider whether peacemaker lawyers may have significant benefits for them and, most importantly, their children who are often the "real loser[s]" in litigation.

Andrew Schepard is professor of Law at Hofstra University School of Law and director of the Center for Children, Families and the Law. He is Reporter for the Drafting Committee on the Uniform Collaborative Law Act of the Uniform Law Commission. 

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

In child custody and visitation cases there are several factors the courts will use to determine what is in "the best interests of the child."  The parties are the primary source of information with regard to the weight the judge will give to each of these factors.  However, due to the highly charged nature, and thus, skewed view of the facts, the courts do not rely solely on the parties' account of details. Rather, the courts employ other entities and professionals to help them in this most delicate decision.  So, for instance, to gain insight into the home environment of each of the parties, the courts will employ the Dept. of Probation, or its equivalent, to conduct a homestudy.  A homestudy consists of an agency worker going out to each party's home to check for safety, habitability and adequacy of the home.  The worker will check their sleeping space, whether safe conditions exist, if there is adequate food, etc.  The worker will also interview each occupant who lives in the home in addition to the parent in an effort to get an insightful picture of how the child lives or would live if he or she were ordered to live or visit with that parent.

         Another major tool used  in child custody litigation is the forensics evaluation.  Forensics is the utilization of a psychologist, psychiatrist or social worker to make an assessment and give testimony with respect to custody and visitation.  The court will first determine if forensics is needed, which will be based on the particular circumstances of the case.  This is crucial because without an expert's opinion, the court can make a determination about custody and visitation on information provided mainly by the parties, and other sources that do not supplant the parties' accounts accurately.  Although the authority to order forensics examination is granted by Section 251 of the Family Court Act, caselaw indicates that that decision is within the sound discretion of the court.  For example, where the court believes that there is no issue with respect to the emotional health or mental state of either parent or the child, it may rely on other evidence provided by the parties and their witnesses to make its ruling.  So although either party may request that forensics be conducted, if the court is not convinced that this evidence is necessary in helping it to reach a custody or visitation determination,  they may deny such a request. On the other hand, it has been held to be "reversible error" by the appellate courts,  where the court refuses to order forensics where custody was changed/modified without a hearing, where there were patent issues of abuse, neglect, domestic violence or other  psychological and emotional concerns, where there was parental alienation or where the child resists visitation (without justification).  In any of these circumstances either party, by his or her attorney and the attorney for the child (the law guardian), may request forensics either orally or formally (by motion).  The latter method is preferred. This way, if the court still denies the request there is a record for appeal.

           Even in cases where an expert conducts an evaluation, his or her recommendation is not determinative of who will be awarded custody or if visitation will be granted.  The opinion of the expert is, in essence, but one factor of many to consider in the court's decision as to what is in the best interest of the child.  The court will typically use the information gathered by the expert to help it to get a more comprehensive picture of all of the circumstances in the case, and not to allow the expert to make the ultimate decision. The evaluation typically involves an interview with each party, an interview with the child, an observation of the child with each parent, contacting the school and physicians, along with treating mental health experts, family, friends and other relevant players in the child's life.  The expert will also administer psychological testing to either or both parents and, in some instances, the child. Furthermore, some will make home visits and other types of visits deemed necessary to make a more complete assessment.  The expert chosen to conduct the evaluation will be selected based on issues or concerns raised by either parent and/or the attorney for the child.  For instance, in a case where the attorney for the child believes that there are some alienation issues, a psychologist may be employed to do the evaluation.  If the custody or visitation case is more of just a "fit vs. fit" test, a social worker may be suitable to conduct the evaluation.

         The evaluation may take up to several weeks and, in some cases, several months to complete for a number of reasons. The interviews may need several sessions to accommodate all parties' schedules; the testing may need time to conduct and complete; and interviewing the collateral contacts ( i.e. family, friends, etc.) may be time consuming.  In fact, it is not uncommon for more than one evaluation to be conducted if the custody litigation takes several years, which does occasionally occur.  It is because of this reason that some courts wish to forgo forensics, with their rationale being that prolonging child custody or visitation cases only serves to perpetuate conflict within families.  However, some courts merely want to expedite the process in an effort to address more protracted cases.

          In any case, where either parent is insistent that some serious concerns be uncovered, confirmed, or explored it is advisable to implore the court to have forensics done.  Although the costs for these evaluations may be borne by either or both parties, it can be a deal closer for the parent who really wants to highlight the inability or instability of the other parent to be a nurturing or loving parent.

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