A child custody battle turned especially bitter as it intensified into an international "tug of war"--the struggle spanned overseas as the mother lived in the United Kingdom and the father resided in Queens, New York.  Their two boys, who have dual citizenship, have spent their entire lives being shuffled back and forth between England and New York.  The custody struggle began in 2001, when the couple's second son was born.  The wife took both children to England where she planned to raise them; she said she acted with the father's consent.  Nevertheless, seven months later, when the mother planned for the boys to visit their father for two weeks, he kept them in New York for the next three years.  The father finally returned the children to England in 2005.

                 The mother took legal measures to ensure that the children would remain with her.  She obtained a "prohibited steps order" from an English court, which stated that her husband could not remove the boys from England.  In 2006, the couple's divorce was finalized and the court made clear that if the children were removed from the United Kingdom without permission, it would be considered a criminal offense in accordance with the Child Abduction Act of 1984.

                Two years later, the boys went to New York to spend a month with their father; but again, he kept the children for longer.  In order to get her sons back, the mother filed a petition "pursuant to the International Child Abduction Remedies Act," a codified version of the Hague Convention.  The Hague Convention calls for the immediate return of children, who have been wrongfully removed from their legally ordered residence.  According the Hague Convention, the removal of the children from rightful residency is a violation of custody rights.  So, although the father claimed that he was unaware of the consent needed to keep the boys, he was clearly in the wrong.  The judge, therefore, ruled in favor of the mother and ordered that the sons be returned to England.

                In a child custody case such as this one, the great distance between the ex-spouses heightened tensions and caused the parents to resort to extreme measures to be with their children.

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U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Family Law

Decided: June 8

MEMORANDUM AND ORDER

Petitioner F.H., a British citizen, petitions this Court for the return of her two sons to England pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, art. 2, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10,494 (Mar. 26, 1986) ("Hague Convention" or "Convention"), as implemented by the International Child Abduction Remedies Act, 42 U.S.C. §§11601-11610 (2009) ("ICARA"). The boys-S.H., age 10, and A.H., age 12¹-have been retained in the United States by their father, respondent J.H., a Guyana-born naturalized United States citizen, without petitioner's consent since August 26, 2008.

The petition was filed on May 13, 2009. On February 23, 24 and 25 and March 2, 2010, the Court conducted a bench trial. As authorized by Rule 43(a) of the Federal Rules of Civil Procedure, petitioner, who had been unable to obtain a visa to travel to this country, testified via a live video link from London, England. Respondent and a psychologist retained by petitioner as an expert witness testified in open court. The Court interviewed the children in camera on the record but outside the presence of the parties and their respective counsel.²

For the reasons set forth in this Memorandum and Order, which constitutes the Court's findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure, the petition is granted.

FINDINGS OF FACT

A. Chronology of Events

1. Petitioner and Respondent Marry in England and Move to America, Where the Children Are Born

Petitioner and respondent became romantically involved in 1996, when petitioner was 18 years old and respondent was 28 years old. Petitioner's sister and respondent's brother had married in late 1994 and settled in Queens, New York, where they shared a house with the groom's family, including respondent. Near the end of 1996, after petitioner finished her "A-levels"³ in England, she came to visit her sister in the United States for a three-month holiday. Petitioner and respondent began dating, and their first child was soon conceived. (Tr. 18:6-19:18).⁴

When petitioner returned to England, her mother learned of the pregnancy and told her father, who was not pleased. Petitioner's father spoke to respondent's mother, and together they urged petitioner and respondent to marry. Despite some misgivings on the part of petitioner, petitioner and respondent were married at a ceremony in London on December 21, 1996. (Tr. 19:21-20:22). Within two weeks of their wedding, on January 24, 1997, petitioner and respondent came to the United States together and moved into their extended family's house in Queens, although petitioner had only a tourist visa. (Tr. 20:23-21:7, 28:4-16).

In June 1997, the first of their two sons, A.H., was born in the United States. As the child of a citizen of the United Kingdom, A.H. became a dual citizen of both countries upon his birth, and retains that status today. (JPTO §VI at ¶¶7, 9).⁵ In April 1998, petitioner and respondent moved out of their family's home and into a one-bedroom apartment in Queens, and approximately two years later their second son, S.H., was born. Like A.H., S.H. is a dual citizen of the United States and the United Kingdom. (Tr. 22:15-21; JPTO §VI at ¶¶8, 9).

2. Petitioner Moves Back to England with the Children

Petitioner testified that, not long after their first child was born in the summer of 1997, petitioner and respondent's marriage hit the rocks. (Tr. 23:6-24:4). The relationship deteriorated further after the arrival of their second child in the spring of 2001. In September 2001, petitioner decided, with respondent's blessing, to take the children to England by herself and raise them there indefinitely. At the time, A.H. was four years old and S.H. was approximately 17 months old. Petitioner took as many belongings as she could fit into five suitcases, and flew to England with the boys on one-way tickets purchased by respondent. Upon arrival, they moved in with petitioner's mother in Croydon, an outer borough of London. (Tr. 24:5-25:1; JPTO §VI at ¶10). A.H. started nursery school in England in October 2001, while S.H., still an infant, stayed home with his mother. (Tr. 25:2-25:24). They lived in England without interruption for the next seven months.

3. The Children Stay with Respondent in America for Three Years

On April 12, 2002, petitioner and the children flew to New York for what petitioner intended to be a two-week visit, accompanied by petitioner's brother (the boys' uncle). They traveled on round-trip tickets, again purchased by respondent. The purpose of the visit was to see if it was possible for petitioner and respondent to reconcile and save their marriage. (Tr. 26:1-27:25). Upon landing at John F. Kennedy International Airport in Queens, petitioner was denied entry into the United States because she had previously overstayed her tourist visa by four years, and was forced to reboard a plane back to England by herself. Her children and brother, however, cleared Immigration and Customs and entered the arrivals terminal, where respondent was waiting to pick them up. (Tr. 28:4-24). A.H. was nearly five years old, and S.H. was on the verge of turning two.

Before petitioner flew back to England, she had an opportunity to speak to respondent for a few minutes at the airport, and told him "to send the children home after two weeks with [her] brother." (Tr. 29:6-14). Notwithstanding the conversation, when the time came to use the round-trip tickets he had purchased for them, respondent refused to send the children back as scheduled. (Tr. 29:23-30:17). For the next three years, over petitioner's objections and entreaties, the boys lived with respondent in New York. (Tr. 29:24-32:21).

Although he refused to allow their children to go back to England and live with petitioner during this period, respondent did not wholly block her from seeing them, with certain conditions and limitations. At Christmas 2002, respondent escorted the boys on a short trip to England, and during the summers of 2003 and 2004, the boys came to England unaccompanied by respondent for four to six-week visits. Respondent insisted that the boys sleep at the home of petitioner's father (then the father-in-law of both respondent and respondent's brother) rather than stay with petitioner, but otherwise did not impede her access to them. (Tr. 31:7-25; JPTO §VI at ¶¶12, 13).

4. The Children Stay with Petitioner in England for Three Years

In the summer of 2005, A.H and S.H., then eight and five years old, respectively, returned to England and remained there for the next three years. During this period, they lived with petitioner in an apartment close to her mother's home in Croydon and attended British schools. Petitioner took care of the children's overall well-being, providing them with clothes, food, shelter, medical and other living expenses and overseeing their education. (Tr. 35:6-22; JPTO §VI at ¶¶14-17). The facts surrounding this turn of events are the subject of some dispute.

According to petitioner, during their summer 2005 visit, the boys told petitioner that they wanted to live with her and did not want to return to the United States because their father had been hitting or punishing them. (Tr. 32:17-33:1). Petitioner called respondent and proposed that the boys stay with her, and respondent agreed. Shortly thereafter, respondent flew to England and confirmed his agreement with petitioner in person. He also gave petitioner the boys' passports and birth certificates so that she could enroll them in school, and purchased their British school uniforms. (Tr. 33:2-15). Petitioner stated that respondent never said anything about if or when the children would have to return to New York. However, petitioner admitted that in some heated discussions or phone conversations, "he may have said that [she] kidnapped them." (Tr. 34:7-15).

Respondent initially testified at trial that he had not agreed that the boys could stay in England in July 2005, and that petitioner had never asked him to consent to that. (Tr. 103:10- 104:7). He then testified that petitioner had asked him if she could keep the younger child for a period of two years so that she could form a stronger "bond" with him. (Tr. 104:22-105:10). At that point, petitioner's counsel confronted respondent with a portion of his deposition transcript reflecting that respondent had previously testified that petitioner asked him if she could keep S.H. with her in England for a year and a half.⁶ (PTX 9 at 100-106).⁷ His recollection apparently refreshed, respondent stated that the time frame petitioner had requested was in fact a year and a half, rather than two years. (Tr. 105:11-107:5).

Even crediting respondent's vague and inconsistent testimony that, in July 2005, he only gave his permission for the children to live in England for a finite period not to exceed two years, he plainly had a change of heart before the agreement ran its course. Respondent traveled to England in April 2006, around the time of S.H.'s birthday. When he arrived, petitioner and the boys were out of the country, spending Easter vacation in Barbados. According to petitioner, respondent did not tell her beforehand that he was coming, and she only found out when her parents called her in Barbados to warn her. (Tr. 44:22-45:10). Respondent testified that he went to England to celebrate S.H.'s birthday and to see both children because he missed them, and that petitioner did know he was coming. (Tr. 102:21-24, 112:18-113:22).

According to petitioner, upon returning to England, she spoke to respondent (who was staying at her father's house) on the phone, and respondent threatened to "kidnap" the children. (Tr. 45:17-22). Petitioner, who had recently begun the process of divorcing respondent, contacted her matrimonial lawyer, who suggested that she go to her local court and apply for a "prohibited steps order." Petitioner understood this to be an order for respondent "not to be able to take the children outside the UK." (Tr. 46:1-10). She followed counsel's advice and successfully applied for an ex parte order from the Croydon County Court on April 12, 2006, captioned "Interim Prohibited Steps Order, Section 8 Children Act 1989" ("Prohibited Steps Order"). It provided, in relevant part:

Upon hearing the Applicant in Person and Upon the Respondent having no notice of the hearing

1. Until further order the applicant and respondent are prohibited from removing the children from England and Wales.

2. Until further order the respondent is prohibited from removing the children from the care of the applicant or from the care of any person to whom she has entrusted such care, save for the purposes of agreed contact.

3. The respondent do return the children to the applicant promptly at the expiry of any agreed contact.

4. Permission to applicant to withhold her address.

(PTX 25). The proceeding was adjourned for one week, to April 19, 2006, and the time for service of the order was abridged to 24 hours. (Id.).

Respondent received the Prohibited Steps Order in the mail at petitioner's father's home, where he was staying while in England. (Tr. 102:17-24). Respondent testified at trial that he never actually read the Prohibited Steps Order and was unaware of its contents. (Tr. 131:13-24). Notwithstanding, both petitioner and respondent duly appeared before the Croydon County Court on the return date. (Tr. 102:17-24). Petitioner was represented by counsel from the firm of Blackfoot & Co., while respondent appeared pro se.⁸ According to petitioner, the judge heard from her counsel regarding respondent's alleged "previous history of violence towards both [petitioner] and the children," and "agreed that the children should stay with [petitioner]." (Tr. 94:1-3). Respondent expressed his belief that the children belonged back in the United States because it was their country of birth, and was informed by the judge that the purpose of the proceeding was to work out terms for him to see the children in the near future, not to decide where or with whom they should live in the long run. (Tr. 114:6-13, 116:3-8). Respondent then asked the judge to permit him to spend time with the children before he left England, and also asked that they be provided with a telephone so that he could maintain indirect contact with them from the United States. (Tr. 48:25-49:3, 113:10-25, 116:23-117:6). He did not seek permission for the children to visit him in the United States or inform the judge that he wanted to bring them back to live with him on a permanent basis. (Tr. 116:13-18, 117:7-11).

At the conclusion of the April 19, 2006 hearing, the judge issued an order titled "Contact Order, Section 8 Children Act 1989" ("Contact Order"), providing in relevant part:

1. Paragraphs 1, 2 and 3 of the [Prohibited Steps Order] do continue.

By Consent

2. The mother do make the children available for contact to the father at the children's maternal grandmother[']s home between 6:30pm and 8:30pm on the 19th April 2006 and 20th April 2006.

3. There be indirect contact by card and/or letter addressed to the children at their maternal grandmother[']s address limited to one per fortnight.

4. Upon the father providing a mobile phone to the children there be indirect contact by telephone. The father to telephone the children at 1pm (British Time) on Saturdays.

5. There be such other contact as may be agreed by the parties including, contact around [A.H.'s] birthday.

(PTX 26). The Prohibited Steps Order and the Contact Order were printed on the same standardized form, which included a bold-faced warning at the foot of the first page stating: "It may be a criminal offence under the Child Abduction Act 1984 to remove the children from the United Kingdom without the leave of the court." Additionally, the form included a warning regarding certain restrictions on removal of children from the United Kingdom that apply "[w]here a residence Order is in force." (PTX 25, 26). However, as discussed further below, prohibited steps, contact and residence orders are three distinct and discretely defined types of orders which may be issued by an English court pursuant to the Children Act, see n.14, infra, and the record contains no evidence or allegation that a residence order has ever been issued with respect to the children in this case.

On April 19 and 20, 2006, respondent visited with the children as authorized by the Contact Order. He returned to the United States without further incident shortly thereafter. Approximately two months later, petitioner and respondent's divorce was finalized. (PTX 37).

The children next saw respondent in August 2006, when, with petitioner's consent, they flew to New York on round-trip tickets purchased by respondent, stayed with him for about a month, and then arrived back in London as scheduled. (Tr. 52:23-53:8). A few months later, petitioner permitted them to return to New York for a two-week visit over Christmas, for which respondent also purchased round-trip tickets. This time, respondent unilaterally decided to extend the boys' trip for a few days and pushed back their return flight reservations without consulting petitioner, but after that brief delay, he put them on a plane back to England once again. (Tr. 53:9-54:4). The following Christmas, petitioner consented to another two-week visit, which ended on time. (Tr. 54:8-19).

5. The Children Again Stay with Respondent in America, Where They Currently Remain

On July 25, 2008, with petitioner's consent, the boys again flew to New York to see respondent. They came on round-trip tickets. As usual, respondent had purchased them. The return flight was scheduled to depart New York on August 25, 2008, and land in London the following morning. (PTX 57). According to petitioner, on or around August 20, 2008, respondent called petitioner and informed her that the boys would not be returning to England because "it was his turn to have them," then hung up when petitioner protested. (Tr. 56:17-57:17, 62:2-5). A few hours later, the children spoke to petitioner on respondent's cell phone and told her that they wanted to stay in the United States and were unwilling to return to England; in petitioner's opinion, "[y]ou could tell in their voices that they were prompted in what to say." (Tr. 57:25-58:9). Respondent testified that the boys had resisted going back to England and had asked respondent to allow them to stay and live with him instead, and that respondent initially told them to ask their mother for her permission and then called her himself. Respondent further testified that he contacted petitioner because he believed it was the right thing to do under the circumstances, not because he thought he had a legal obligation to obtain petitioner's consent to retain the children in the United States. (Tr. 124:11-125:24).

After respondent told her that he intended to keep the boys in the United States, petitioner promptly consulted her matrimonial counsel, who advised her to sit tight until they actually failed to return as scheduled. Petitioner testified that, on August 25, 2008, she spoke to the children on the telephone and they told her that they were packed, showered and waiting to be taken to the airport for their flight back to London. Later that day, however, petitioner called back and learned that the children were still in New York. (Tr. 59:12-25). Once petitioner could be certain that the children had indeed missed their return flight, she called her attorney again, who advised her to commence legal action against respondent pursuant to the Hague Convention. (Tr. 59:2-4, 62:10-13).

Petitioner was unable to reach respondent by telephone for several days after August 25, 2008. When she finally spoke to him, he declined to send the children back once again, and told petitioner: "[Y]ou can see them when I say you're going to see them now. It's going to be on my terms and my terms only." (Tr. 60:1-12). When petitioner reminded respondent that the Contact Order remained in force, "he said, I don't care." (Tr. 60:13-17). In fall 2008, S.H. and A.H. started school in the United States. (Tr. 130:12-17). On October 3, 2008, petitioner filed an application for return of the children with the Hague Convention's Central Authority for England and Wales, and on May 13, 2009, petitioner commenced the instant case by filing the Verified Petition with this Court.

Since July 2008, when A.H. and S.H. were, respectively, 11 and eight years old, petitioner has not seen either child in person and has had only limited contact with them by email and phone. At the time of trial, the children had been living in the United States with respondent for approximately 17 months.

B. Interview of the Children

The Court interviewed A.H. and S.H. separately in camera . A.H., then in seventh grade and a few months shy of his 13th birthday, is clearly a thoughtful, intelligent, articulate, polite and good-natured child. At the beginning of the interview, A.H. indicated that he understood the importance of telling the whole truth, and told the Court that he would do so. The Court finds that his statements were credible and that he made an effort to respond to questions openly and honestly. That said, A.H. frequently struggled to recall specific details about the past, and seemed hesitant or uncertain about many answers.

A.H. echoed respondent's testimony that he and his younger brother had lived in England after 2005 so that they (and his brother in particular) could "bond" with petitioner, and that the plan was not for them to remain there permanently. However, he also acknowledged that the stay in England was not a vacation and was intended to go on for more than a short period of time, although he could not say what the intended length was. (Tr. 363:21-364:12). On the whole, A.H. had generally good memories of attending school in England, although he remembered having more homework and finding school to be more demanding there. He indicated that he made many friends in England with whom he would have liked to stay in touch, but currently has no way to reach.

As might be expected given his physical separation from his mother, A.H. is currently distanced from her in an emotional sense as well. He had trouble recalling the last time he saw her, although it was less than two years before, and remarked somewhat offhandedly that he "never really had a close relationship with [his] mother." (Tr. 346:17-347:5, 358:7-8). He also professed not to know how she feels about the fact that he and his brother have stayed in New York with respondent since the summer of 2008, although he perceives that this proceeding is related to the fact that his mother "is fighting for custody or something like that, for us to go back to England." (Tr. 320:6-7, 351:24-352:2, 364:21-365:2).

A.H. maintained that he does not want to return to England, and prefers to live in the United States. When the Court initially asked A.H. to explain why, he offered several disjointed reasons in rapid succession, some rational and some less so: (1) his mother sometimes hits him and his brother⁹; (2) it rains too much in England; (3) he loves both of his parents, but loves his father more; and (4) he has more family members in America than he does in England. (Tr. 352:13-23). Throughout the interview, A.H. also mentioned that: (5) his mother occasionally drinks alcohol to excess (Tr. 344:10-22); (6) he feels that his mother pushes him too much academically (Tr. 353:1-5); (7) his grandfather (respondent's father, who currently resides with respondent and the children in Queens) permits him to drink soda and eat candy and his mother does not (Tr. 353:5-8); (8) he enjoys playing cricket, baseball and basketball in the United States, but there is no baseball or basketball in England and he does not get to play cricket there as often as he does here (Tr. 355:3-356:1); and (9) he has vague or second-hand memories of occasions on which his mother left him and/or his brother alone. (Tr. 362:5-9 ("I heard she left [S.H.] in the car by himself and for almost two hours…. I think she left me in the house with [S.H.] for an hour one time to get some stuff from my grandma's house. I think one time I got locked out the house.")).

Ultimately, however, A.H. explained that his paramount reason for objecting to return was none of the above; rather, it was his desire not to be separated from his little brother. A.H. acknowledged that he did not start thinking in earnest about asking to stay in New York until after he and S.H. arrived here in July 2008. According to A.H., at some point during the visit, the boys talked about where they would rather live and "[S.H. said] I want to stay over here in New York. I don't want to be split from my brother. I said that's what I think too. That is what I thought too." (Tr. 354:2-5). A.H. readily acknowledged that staying together with his brother is his most important concern, no matter where they end up. Aside from that, A.H. actually indicated that he would prefer not to shoulder the burden of making a choice about where to live: "I don't put too much thought into it. I thought like, okay, it's something big, but it's not really my business now until it comes to me, if it ever comes to me." (Tr. 357:25-358:1).

Next came the interview of S.H., in fourth grade and nine and a half years old at the time of the hearing, who was as bright and generally delightful as his older brother. S.H. said that he enjoys attending school in the United States, has made friends here and, in particular, was excited about working on a project for an upcoming science fair. The Court established at the outset of the interview that S.H. understood the difference between telling the truth and not telling the truth and thereafter ascertained his credible promise to respond to the Court's questions truthfully and completely. S.H. also stated that he had not been told what to say by respondent or anyone else, and the Court found (as with A.H.) no indication that S.H. had been directly coached by any adult about what to say.

Commensurate with his younger age, S.H.'s stream of statememts was more jumbled than A.H.'s, and he made more fanciful and unrealistic comments. For example, in contrast with his brother's assessment, S.H. stated that he "had more education" in New York. When asked to elaborate, he stated that the only two subjects taught in school in England are writing and math, and that there are no science, social studies or gym classes there. (Tr. 374:6-22).

Like his brother, S.H. described the children's move to England in 2005 as " a deal" made by their parents "because [their] mom wanted to get more bonding time with" him, and believed that they were expected to live in the United States again someday but did not know when. (Tr. 375:18-22, 381:14-15). He also had only hazy recollections of last seeing petitioner, and had trouble remembering whether and when he had spoken to her since arriving in New York in summer 2008. (Tr. 390:22-392:16). Nonetheless, S.H. painted an even more Dickensian portrait of what, in his memory, life was like with his mother in England. S.H. flatly stated in sweeping terms that his mother "used to hit me with a belt…. [t]he metal part, and with slippers. She used to leave us in cars. She left me in the car for six hours." (Tr. 381:17- 382:6).

Again like his brother, S.H. indicated that he expected to return to England when he came to New York in summer 2008, but decided after arriving that he wanted to continue living here rather than move back to England, for a similar panoply of stated reasons. He confirmed that he and A.H. had talked about where they wanted to live and described the decision as a joint one: "We made it like when it was summer, like we enjoyed the time there. We said we wanted to stay with dad in New York…that's when we made our decision." (Tr. 388:5-8). Unlike A.H., however, S.H. insisted that his objection to return was not contingent on his brother's concurrence, and that he would want to stay here even if A.H. were to return to England. (Tr. 394:11-22). He also openly professed to be on his father's "side" in this case, without the ambivalence that A.H. had displayed, explaining: "He treats us more better than our mom did. He buys us like things we want, but we don't waste his money. Our mom, she didn't really buy us anything." (Tr. 395:7-13). When pressed, S.H. acknowledged that money is not always the most important thing, but added: "He took care of us. My mom used to leave us home by ourselves." (Tr. 395:14-16).

C. Expert Testimony

At the hearing, the doctor was qualified as an expert in clinical and forensic psychology and his report, dated October 5, 2009, was received into evidence without objection.¹⁰ (PTX 11). The doctor testified that he had conducted "extensive clinical evaluations and interviews over two days…with both of the children together and individually," interviewed petitioner at length via telephone on several occasions, met briefly with respondent in person and reviewed both parties' filings in this case. (Tr. 183:5-184:10). In his report and at trial, the doctor opined that neither A.H. nor S.H. has attained a sufficient age and degree of maturity to be capable of forming a reasonable and rational opinion about whether to return to England or stay in the United States. He based this conclusion on the following factors: (1) statements by each child indicative of "the cognitive limitations of preadolescence" (Tr. 187:23-25); (2) the influence of "parental alienation dynamics" (Tr. 188:17-19); (3) his perception that "the children had a great deal of difficulty both on [psychological] testing and in interview talking about some of their real feelings" (Tr. 188:17-19); (4) their chronological ages in August 2008, when they were retained in the United States by respondent (Tr. 189:13-25); and (5) the fact that they had previously experienced "two sudden and sustained separations from their mother," resulting in conscious or unconscious feelings of anger and rejection. (Tr. 190:5-11).

As reflected in his report and its exhibits, the doctor administered several standardized psychological tests to both A.H. and S.H.: the Millon Pre-Adolescent Clinical Inventory ("MPACI"); the Children's Depression Inventory ("CDI"); the Personality Inventory for Youth ("PIY"); and the Wechsler Abbreviated Scale of Intelligence ("WASI"). The only one of these tests that the doctor deemed to have yielded valid results, however, was the WASI, from which he concluded that the IQs of both boys fall into the "above average" range. (PTX 11 at 23). He found their M-PACI scores to be "of questionable validity" because their answers seemed "overly guarded" about their true feelings. (Id. at 18-20). Similarly, the doctor stated in his report that "[b]oth of the children did not appear to be forthrightly reporting the extent of their feelings on the CDI" (id. at 18), and that their PIY answers were invalid because of their "defensiveness." (Id. at 21). The doctor also administered selected portions of the Roberts Apperception Test for Children ("RATC") to S.H., based on which the doctor opined that S.H.'s "unconscious feelings about his mother[ ] were sad and poignant, compared to his guardedness" on the M-PACI, CDI and PIY. (Id. at 22).  The doctor stated that he "chose not to give the" RATC to the older child at all, "since he was so clearly somehow psychologically warned about this evaluation, and would likely have seen through the purpose of the test." (Id.).

CONCLUSIONS OF LAW

A. Hague Convention Overview

The Hague Convention "was adopted in 1980 in response to the problem of international child abductions during domestic disputes." Abbott v. Abbott, -- S. Ct. --, No. 08-645, 2010 WL 1946730, at *5 (May 17, 2010). The Convention's express objectives are "to secure the prompt return of children wrongfully removed to or retained in any Contracting State," and "to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." Hague Convention, art. 1. Since its inception, the treaty has been ratified by over 80 nations, including, most pertinently, the Unites States and the United Kingdom.

The Convention is especially designed to deter "those close to [a child], such as parents, guardians, or family members," from unilaterally taking or keeping the child out of the country of habitual residence with an intent "to establish artificial jurisdictional links" to a more sympathetic forum for a custody dispute. Gitter v. Gitter, 396 F.3d 124, 129-30 (2d Cir. 2005) (internal quotation marks omitted). Accordingly, "[t]he Convention's central operating feature is the return remedy. When a child under the age of 16 has been wrongfully removed or retained, the country to which the child has been brought must 'order the return of the child forthwith,' unless certain exceptions apply." Abbott, 2010 WL 1946730, at *5 (quoting Hague Convention, art. 12). "[A] 'wrongful removal' under the Convention is one 'in breach of rights of custody…under the law of the State in which the child was habitually resident.'" Blondin v. DuBois, 238 F.3d 153, 157 (2d Cir. 2001) ("Blondin II") (quoting Hague Convention, art. 3) (ellipsis in Blondin II). The Convention defines "rights of custody" to "include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Hague Convention, art 5.

Pursuant to ICARA, the Convention's implementing legislation in the United States, an aggrieved custody claimant may file a petition in state or federal district court for the return of a child located within the court's jurisdiction. The petitioner bears the initial burden to show by a preponderance of the evidence that the child has been wrongfully removed to or retained in this country within the meaning of the Convention. See 42 U.S.C. §11603(b), (e)(1)(A). If the petitioner successfully makes out a prima facie case of wrongful removal or retention, the burden shifts to the respondent to establish one of the Convention's narrow defenses, and if the respondent fails to do so the child must be returned. See Blondin v. DuBois, 189 F.3d 240, 245 (2d Cir. 1999) ("Blondin I"). Further, even where a defense is found to be applicable, the court need not allow the child to remain with the "abducting" parent if it appears that return would further the aims of the Convention. See Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir. 1996) (construed in Blondin I, 189 F.3d at 246 n.4).

"The Convention and [ICARA] empower courts in the United States to determine only rights under the Convention and not the merits of any underlying child custody claims." 42 U.S.C. §11601(b)(4). Consequently, a court considering a Hague Convention petition has jurisdiction only over the wrongful removal or retention claim, and "must resist the temptation to engage in a custody determination under the traditional 'best interests' test." Elyashiv v. Elyashiv, 353 F. Supp. 2d 394, 403 (E.D.N.Y. 2005); see Hazbun Escaf v. Rodriquez, 200 F. Supp. 2d 603, 610-11 (E.D. Va. 2002) ("[T]he focus of a court's inquiry in a Hague Convention case is not 'the best interests of the child,' as it typically is in a state custody case; rather it is the specific claims and defenses under the Convention."). "A return remedy does not alter the preabduction allocation of custody rights but leaves custodial decisions to the courts of the country of habitual residence." Abbott, 2010 WL 1946730, at *5.

B. Prima Facie Case of Wrongful Retention

"[I]n order to prevail on a claim under the Hague Convention, a petitioner must show that (1) the child was habitually resident in one State and has been removed to or retained in a different State; (2) the removal or retention was in breach of the petitioner's custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of the removal or retention." Gitter, 396 F.3d at 130-31. "The petitioner must establish these requirements by a preponderance of the evidence." Id. at 131 (citing 42 U.S.C. §11603(e)(1)(A)).

1. Habitual Residence

The Hague Convention's protection against child abduction may be invoked only when the subject child has been taken or kept out of "the State in which the child was habitually resident immediately before the removal or retention." Hague Convention, art. 3(a). Yet, despite the integrality of the term, there is no definition of "habitually resident" provided in the Convention itself. See Gitter, 396 F.3d at 131; Elisa Pérez-Vera, Explanatory Report on the 1980 Hague Child Abduction Convention, Acts and Documents of the 14th Session, vol. III 441, ¶53 (1982) ("Pérez-Vera Report") ("Following a long-established tradition of the Hague Conference, the Convention avoided defining its terms.").¹¹ In 2005, the Second Circuit established a two-part test for ascertaining a child's "habitual residence" pursuant to the Hague Convention. See Gitter, 396 F.3d at 132-34.

"First, the court should inquire into the shared intent of those entitled to fix the child's residence (usually the parents) at the latest time that their intent was shared." Id. at 134. "This question can in turn be broken down into two components: whether the parents formed a shared, settled intention to abandon the child's previous habitual residence, and whether the parents have mutually intended that the child acquire a new habitual residence in a new location." Poliero v. Centenaro, No. 09-3845-cv, 2010 WL 1573771, at *1 (2d Cir. Apr. 21, 2010) (internal quotation marks omitted) (citing Gitter, 396 F.3d at 132-33; Barzilay v. Barzilay, 600 F.3d 912, 918 (8th Cir. 2010) ("The settled purpose of a family's move to a new country is a central element of the habitual residence inquiry…. [T]he family must have a sufficient degree of continuity to be properly described as settled.") (internal quotation marks omitted)). Shared intent must be manifested by "actions as well as declarations." Gitter, 396 F.3d at 134. Thus, if the last shared intent of the parents was to abandon a child's habitual residence, the mutually intended move must actually have taken place. See id. at 133 ("[A] change in geography is a necessary condition to a child acquiring a new habitual residence."); accord Ruiz v. Tenorio, 392 F.3d 1247, 1253 (11th Cir. 2004) ("Although the settled intention of the parents is a crucial factor, it cannot alone transform the habitual residence. In addition, there must be an actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized.").

While "[n]ormally the shared intent of the parents should control the habitual residence of the child," the second step of the Gitter inquiry requires a court also to consider "whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents' latest shared intent." Gitter, 396 F.3d at 134; see Villegas Duran v. Arribada Beaumont, 534 F.3d 142, 147 (2d Cir. 2008). The exception does not swallow the rule; in keeping with the Convention's goal of discouraging "parents and guardians from engaging in gamesmanship with a child's upbringing," Gitter, 396 F.3d at 134, the Second Circuit has warned that a court "should be slow to infer that the child's acclimatization trumps the parents' shared intent," id. (internal quotation marks omitted), and that "[t]his is a difficult test to satisfy." Poliero, 2010 WL 1573771, at *2. The presumption favoring the habitual residence last intended by both parents may only be overcome in those "relatively rare circumstances" where it appears "possible that the child's acclimatization to the location abroad [is] so complete that serious harm to the child can be expected to result from compelling his return to the family's intended residence." Gitter, 396 F.3d at 134.

In this case, petitioner contends that the subject children are habitual residents of England, while respondent has asserted that the "[t]he children were habitually resident in New York since their birth." (JPTO §III.B. at ¶1). In light of the Second Circuit's guidance and the facts of this case, the Court finds that England is the habitual residence of S.H. and A.H for the purposes of the governing provisions of the Hague Convention.

During the period between January 1997 and September 2001, petitioner and respondent lived together as husband and wife in New York, and petitioner bore their two sons here. Though born on American soil, both children were at birth, and still are today, dual citizens of England and the United States. Petitioner testified undisputedly at trial that, in September 2001, she gathered essentially all of her worldly possessions and moved to England with both children in tow, intending to raise them there indefinitely as a single parent. Petitioner further testified that: (1) she decided to move after respondent kicked her and the children out of their home in Queens; (2) respondent bought one-way tickets to London for the three of them; (3) in fall 2001, petitioner enrolled the school-age older child in nursery school in England; and (4) petitioner lived with both children in England for the next seven months. These uncontroverted facts illustrate that, in September 2001, petitioner and respondent mutually intended both children to abandon life in the United States and acquire a new habitual residence in England, the agreedupon geographical change actually occurred and the children subsequently stayed in England long enough to become acclimatized. See generally Peter R. Beaumont & Peter E. McEleavy, The Hague Convention on International Child Abduction 112 (P.B. Carter QC ed., Oxford University Press 1999) ("[I]n the case of children, six months should be treated as a guideline figure when considering the length of time necessary before residence might be classified as habitual."). Thus, the Court finds that A.H. and S.H. were habitual residents of England as of April 12, 2002, when petitioner flew to the United States with both children for a short visit and, in a peculiarly unpleasant incident, was separated from them against her will by border officials at the airport and forced to fly back to England alone.

Respondent received the children at the airport in New York that day and refused to consent to their return to petitioner's care in England for the following three years. During this time, the Court finds no credible support for the conclusion that petitioner and respondent agreed that the boys' habitual residence should revert to the United States; rather, petitioner periodically reminded respondent that she believed it best for the children to live with her in England. Further, the Court finds no evidence in the record "unequivocally point[ing] to the conclusion" that either child became so utterly acclimatized to the United States between 2002 and 2005 that his habitual residence shifted regardless of the lack of parental consensus. Gitter, 396 F.3d at 134. Quite to the contrary, by all accounts, both boys subsequently proved capable of readjusting to life overseas with petitioner without serious incident. Accordingly, throughout this prolonged stay in the United States, A.H. and S.H. remained "habitual residents" of England for Hague Convention purposes.

Even assuming arguendo that the children's habitual residence did shift back to the United States after April 2002, any such change was mooted by subsequent events. In July 2005, while the boys were staying in England during summer vacation, petitioner and respondent spoke on the telephone and once again mutually decided that the boys would remain and live in England with petitioner for the foreseeable future. Respondent testified, and petitioner did not dispute, that he agreed that the children could stay in England after petitioner expressed to him that she felt a lack of connection with the younger son and wished to reestablish their motherchild "bond." Soon after the phone call, respondent took actions to confirm their consensus: he flew to England, provided petitioner with the boys' passports so that she could enroll them in school there, purchased their new school uniforms and flew back to New York without making any effort to take the children with him. In fall 2005, both boys entered school in England and attended classes there continuously until respondent's retention of them in the United States in August 2008 prevented it. On these facts, the Court finds that, as a result of their parents' shared intent, the children returned to England-the place of their "habitual residence"-for a second time in the summer of 2005, and lived their lives there with a high degree of settled purpose for the next three years. In other words, even if their habitual residence had reverted to the United States earlier, it shifted back to England then.¹² Even though the children are now living in the United States with respondent, and have been since late summer 2008, respondent unreservedly acknowledges that petitioner never consented or acquiesced to this arrangement. (JPTO §VI at ¶18). Further, there is again no evidence that, since leaving England in July 2008, either child has become so acclimatized to the United States that compelling return to England "can be expected" to result in "serious harm to the child," Gitter, 396 F.3d at 134, or would "be tantamount to taking the child out of the family and social environment in which [his] life has developed." Daunis v. Daunis, 222 F. Appx. 32, 34 (2d Cir. 2007) (internal citations omitted). While the children appear to be comfortable and stable in New York and have been enjoying attending school and living with their father and other family members here for nearly two years, the boys are also well-acquainted with grandparents, cousins and other extended family members who live in England. They have, of course, also attended school for significant stretches in that country. Based on the in camera interviews of the boys, it is readily apparent to the Court that, having periodically ricocheted between America and England throughout their lives, they are eminently capable of adjusting (and readjusting) to life on either side of the pond. Ultimately, the Court cannot conclude that, at present, their acclimatization to the United States is sufficient to outweigh their parents' last shared intent. See, e.g., Poliero v. Centenaro, No. 09-cv-2682, 2009 WL 2947193, at *21 (E.D.N.Y. Sept. 11, 2009), aff'd, No. 09-3845-cv, 2010 WL 1573771 (2d Cir. Apr. 21, 2010) (finding that "while the children have adjusted well to their new lives in New York and have been successful in pursuing their school work and other activities, the Court is hard pressed to find that they are so acclimatized that [ ] their adjustment trumps the parents' shared intent"); Lachhman v. Lachhman, No. 08-cv-04363, 2008 WL 5054198 (E.D.N.Y. Nov. 21, 2008), at *6 (finding that there is no evidence "unequivocally point[ing] to the conclusion that the child has acclimatized to her new location in the United States, notwithstanding her parents' intentions. At most, the child has spent the better part of two years in the United States since her removal from the United Kingdom"); Aguirre v. Calle, No. 08-cv-2613, 2008 WL 4461931 (E.D.N.Y. Oct. 3, 2008), at *4 (finding no evidence that child had acclimatized to the United States despite her presence here for more than one year).

In sum, the Court finds that the most recent point in time where petitioner and respondent mutually agreed upon their children's habitual residence was in the summer of 2005, when they both agreed to reaffirm England as that geographic location. That decision was totally in harmony with the prior formed and executed shared intent in September 2001, when the marriage fell apart and petitioner and the children moved to England with respondent's cooperation. Alternatively, if a new habitual residence intervened after September 2001, shared parental intent and physical change in geographic location reverted the boys' habitual residence to the United Kingdom in the summer of 2005. Either way, the extant parental consensus was for A.H. and S.H. to be habitual residents of England, and the children's lives now are not so deeply entrenched in the United States as to warrant disregarding the locus of their Hague Convention habitual residence. Accordingly, petitioner has met her burden of showing that S.H. and A.H. were habitual residents of England immediately before respondent's retention of them in the Eastern District of New York in 2008.

2. Retention in Breach of Custody Rights

The Court next considers whether respondent's August 2008 retention of the children in the United States breached petitioner's "rights of custody" under English law, i.e., her "rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Hague Convention, arts. 3, 5; see Gitter, 396 F.3d at 130-31. Under the express terms of the Convention, "rights of custody" may arise from on any one or more of the following: "operation of law"; "a judicial or administrative decision"; or "an agreement having legal effect under the law of" the child's habitual residence. Hague Convention, art. 3. To this end, the Convention permits a court to "take notice directly of the law of…the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law." Id., art. 14.

Petitioner asserts that she has "rights of custody" by "operation of" English law-specifically, the United Kingdom Children Act of 1989 (the "Children Act"), the statute which establishes "all the law relating to the care and upbringing of children" in that country. N.V. Lowe, The Allocation of Parental Rights and Responsibilities-the Position in England and Wales, 39 Fam. L. Q. 267, 267 (2005) (internal quotation marks omitted). Although the Children Act does not employ the word "custody" as a legal term of art,¹³ it provides in relevant part that: "[w]here a child's father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child," which is defined as "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property." Children Act §§2(1), 3(1) (emphasis added). "More than one person may have parental responsibility for the same child at the same time." Id. §2(5). "A plain reading of the definition[ ] of 'parental responsibility' [in the Children Act] and [the definition of] 'rights of custody' [in the Hague Convention] leads to the conclusion that the former includes the latter." Lachhman, 2008 WL 5054198, at *6. Accordingly, American courts have interpreted Section 2 of the Children Act as sufficient proof of de jure rights of custody for a Hague Convention prima facie showing of wrongful retention or removal, at least where no English court order negating the petitioner's parental responsibility is in effect.¹⁴ See, e.g., id.; Morgan v. Morgan, 289 F. Supp. 2d 1067, 1069 (N.D. Iowa 2003); In re Robinson, 983 F. Supp. 1339, 1342 (D. Colo. 1997).

Quite the opposite obtains here. In this case, English court orders were issued to protect petitioner's ability to exercise her rights to "care" for the children. The Prohibited Steps Order prohibited respondent from "removing the children from the care of [petitioner] or from the care of any person to whom she has entrusted such care" without her consent, and required respondent to "return the children to the [petitioner] promptly at the expiry of any agreed contact" (PTX 25); the succeeding Contact Order specifically provided for the continuation of these provisions. (PTX 26). Respondent's sustained refusal to return his sons to petitioner's care following August 25, 2008, the scheduled end date of the short visit for which petitioner had agreed to release them, plainly violates these specific judicial directives. Indeed, petitioner testified without contradiction that she has reminded respondent that the Contact Order is in effect, and he has told her that he simply does not care. More broadly, respondent's unilateral retention is at odds with the Children Act's conferral of "parental responsibility" on both parents. As a consequence, the Court finds that respondent's actions are "in breach of rights of custody attributed to [petitioner] under the law of the State in which the child[ren] [were] habitually resident immediately before the…retention," namely, the United Kingdom. Hague Convention, art. 3(a).

Further, the English Child Abduction Act 1984 ("Abduction Act") provides that it is a criminal offense for a parent to take a child out of the United Kingdom for more than one month without the consent of the other parent, absent a court order in favor of the first parent. See Abduction Act, ch. 37, §1. In other words, English law vests each parent of a child with a "ne exeat right: the authority to consent before the other parent may take the child to another country." Abbott, 2010 WL 1946730, at *3. More to the point, the Supreme Court has recently held that a "ne exeat right is a right of custody under the [Hague] Convention," reasoning that a parent's "joint right to decide [a child's] country of residence allows [the parent] to 'determine the child's place of residence'…. [and] also gives [the parent] 'rights relating to the care of the person of the child.'" Id. at *6-*7 (quoting Hague Convention, art. 5).

Petitioner testified that she sought and obtained the Prohibited Steps Order in 2006 specifically because she wanted to prevent respondent from taking or keeping the boys out of England without her consent. In addition to its bold-faced warning that "[i]t may be a criminal offense under the Child Abduction Act 1984 to remove the children from the United Kingdom without the leave of the Court," the Prohibited Steps Order stated, in its first provision, that "[u]ntil further order, [petitioner] and respondent are prohibited from removing the children from England and Wales." (PTX 25). This provision was continued by the Contact Order, which also contains a stipulation permitting "contact as may be agreed by the parties." (PTX 26). Thus, petitioner also holds a ne exeat right pursuant to both operation of English law and specific court order. Since August 25, 2008, respondent has breached this "right of custody" by retaining the children outside of England both without petitioner's consent and without ever seeking or obtaining authorization from the appropriate English court.¹⁵

3. Custody Rights Exercised at Time of Retention

The third and final element of the prima facie case that petitioner must establish is that, at the time of the boys' retention in the United States by respondent , she was actually exercising her "rights of custody," or would have been exercising such rights but for the retention. See Hague Convention, art. 3(b).

Prior to trial, the parties stipulated that: "[d]uring the time when the Children lived with Petitioner in England, Petitioner took care of their overall well-being, providing them with clothes, food, shelter, medical and other living expenses." (JPTO §IV at ¶15). This was borne out by petitioner's testimony. (Tr. 35:6-22). Since July 25, 2008, A.H. and S.H. have been situated an ocean away from petitioner in the United States, a country that she is legally barred from entering; petitioner obviously has not been taking "care of their overall well-being" during this time. Notwithstanding, the Court finds it reasonable to conclude that, but for respondent's unilateral retention of the children in the United States past the scheduled end of their monthlong visit, petitioner would have resumed taking "care of their overall well-being" in England. Similarly, the Court finds that petitioner would have exercised her ne exeat right but for the retention; she declined to consent to the boys' staying out of England for longer than one month, but she had no way to enforce that condition once they were physically present in the United States. See Abbott, 2010 WL 1946730, at *7.

In sum, petitioner has satisfied her burden of establishing a prima facie case of wrongful retention under the Convention.

C. Age and Maturity Defense

"Children who are wrongfully removed or retained within the meaning of the Convention are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies." 42 U.S.C. §11601(a)(4). Respondent's defense to petitioner's prima facie case for return is premised exclusively on an unnumbered sentence in article 13 of the Convention often dubbed the "age and maturity defense" or the "mature child exception," which provides that a court "may…refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views."¹⁶ Hague Convention, art. 13. Respondent bears the burden of proving the applicability of the age and maturity defense by a preponderance of the evidence. See 42 U.S.C. §11603(e)(2)(B).

The fact that a sufficiently mature child objects to repatriation "may be conclusive"; in other words, a district court can decline to order return of a wrongfully retained or removed child on that ground alone. Blondin II, 238 F.3d at 166. However, it bears emphasis that the Convention merely calls for a court to "take account of" a mature child's objection to return, not to accede to it automatically. Further, a court always retains discretion to order repatriation notwithstanding the applicability of any Hague Convention exception if that would best fulfill the purposes of the Convention; the discretionary aspect is particularly important with respect to the mature child exception "because of the potential for undue influence by the person who allegedly wrongfully retained the child." Hazbun Escaf, 200 F. Supp. 2d at 615. Such undue influence is not always calculated or intended by the custodial parent. "A lengthy wrongful retention could enable the child to become comfortable in his or her new surroundings, which may create a desire to remain in his or her new home." Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 280 (3rd Cir. 2007) (finding that "[e]ven if the record supported a finding that [respondent] met his burden of proving the applicability of the exception to this case, it cannot be said that the District Court abused its discretion by refusing to apply the exception," because that "would reward [respondent] for violating [petitioner's] custody rights, and defeat the purposes of the Convention"). However, a finding of undue influence is not a prerequisite to a decision not to apply the mature child exception. See id. at 279 n.2 ("[T]he record is sufficient to support the District Court's determination that [the child] was not sufficiently mature for a court to appropriately consider her views and that the application of the exception in this case would frustrate the purposes of the Convention, absent a determination of undue influence.").

"Whether a child is mature enough to have its views considered is a factual finding" that a district court must make in light of the specific circumstances of each case. Simcox v. Simcox, 511 F.3d 594, 603 (6th Cir. 2007). "Given the fact-intensive and idiosyncratic nature of the inquiry, decisions applying the age and maturity exception are understandably disparate." De Silva v. Pitts, 481 F.3d 1279, 1287 (10th Cir. 2007) (comparing Anderson v. Acree, 250 F. Supp. 2d 876, 883 (S.D. Ohio 2002) (considering views of an eight-year-old child who was composed, calmly and readily answered questions, pointed to New Zealand on a globe, and indicated her understanding of the difference between truth and falsehood and of her obligation to tell the truth) and Raijmakers-Eghaghe v. Haro, 131 F. Supp. 2d 953, 957-58 (E.D. Mich. 2001) (ordering limited discovery including psychological reports and in camera interview to gather enough information to pursue issue of eight-year-old child's wishes) with Tahan v. Duquette, 259 N.J. Super. 328, 335, 613 A.2d 486, 490 (1992) (holding, without discussion, that the exception "simply does not apply to a nine-year-old child") and England v. England, 234 F.3d 268, 272-73 (5th Cir. 2000) (reversing district court that had taken a 13-year-old child's wishes into account where child had learning disabilities, had had four mothers in twelve years, had attention deficit disorder, took Ritalin, and was scared and confused)).

The authors of the Hague Convention chose not to set a minimum age at which a child may be deemed sufficiently mature for a court to consider his objections to repatriation, and the Second Circuit has followed suit. See Blondin II, 238 F.3d at 166 (declining to conclude that "under the Convention, as a matter of law, an eight-year-old is too young for her views to be taken into account…. as this would read into the Convention an age limit that its own framers were unwilling to articulate as a general rule") (citing Pérez-Vera Report, supra, at 433, ¶30 (stating that, "all efforts to agree on a minimum age…failed" and "it seemed best to leave the application of this clause to the discretion of the competent authorities," but "the fact must be acknowledged that it would be very difficult to accept that a child of, for example, fifteen years of age, should be returned against its will.")).

Simply put, there are no established objective criteria or tests for assessing "maturity" in the context of the mature child exception, see Anastacia M. Greene, Seen and Not Heard? Children's Objections Under the Hague Convention on International Child Abduction, 13 U. Miami Int'l & Comp. L. Rev. 105, 132 (2005), although the Second Circuit has observed as a general matter that the standard should be a relatively demanding one. See Blondin II, 238 F.3d at 166 (holding that a court may consider any testimony of a child that is "germane" to a broader analysis of whether a grave risk of harm exists upon repatriation, and noting "it stands to reason that the standard for considering a child's testimony as one part of a broader analysis…would not be as strict as the standard for relying solely on a child's objections to deny repatriation under Article 13"). While the testimony of psychological experts is frequently proffered in this context, "[f]ew cases address the weight to be accorded to a psychologist's testimony in a Hague Convention case." Morrison v. Dietz, No. 07-cv-1398, 2008 WL 4280030, at *12 (W.D. La. Sept. 17, 2008). See generally Greene, Seen and Not Heard?, supra, at 132 (collecting cases). A handful of courts have rejected such testimony wholesale, finding it to be "appropriate in a custody proceeding, not in a Hague Convention case." Morrison, 2008 WL 4280030, at *12 (declining to accept psychologist's testimony in determining whether either the grave risk of harm or mature child exceptions applied); see, e.g., Tahan, 259 N.J. Super. 328, 334, 613 A.2d 486, 489 ("Psychological profiles, detailed evaluations of parental fitness, evidence concerning lifestyle and the nature and quality of relationships all bear upon the ultimate issue [of custody]. The Convention reserves these considerations to the appropriate tribunal in the place of habitual residence."). Others, however, have relied heavily on psychologists' testimony when deciding whether to apply the mature child exception. See, e.g., Garcia v. Angarita, 440 F. Supp. 2d 1364, 1381 (S.D. Fla. 2006) ("[Although the child] is an impressive, well-mannered and articulate eleven-year old, the undersigned credits the opinion of [psychologist] Dr. Firpi that, based upon the circumstances of this case…, he is not of sufficient age and maturity such that the court should refuse to order his return based on his objection.").

Significantly, courts distinguish between a child's "objection" to return, as referenced in the Hague Convention, "and a child's wishes, as expressed in a custody case…. [T]he notion of 'objections'…is far stronger and more restrictive than that of 'wishes' in a custody case." Morrison, 2008 WL 4280030, at *13 (internal quotation marks omitted). A child's expression of a preference to remain in the United States rather than a particularized objection to repatriation may provide a basis for a court to find the mature child exception inapplicable. See, e.g., Falk v. Sinclair, -- F. Supp. 2d --, No. 09-cv-346, 2010 WL 723744, at *16 (D. Me. Mar. 19, 2010) ("[The child] made clear to me that, despite her strong negative feelings about her German school and a preference to remain in Maine, she does not object to being returned to Germany. Expression of a preference to remain in the respondent's country 'is not enough…to disregard the narrowness of the age and maturity exception to the Convention's rule of mandatory return.'") (quoting Yang, 499 F.3d at 279); Trudrung v. Trudrung, No. 10-cv-73, 2010 WL 675064, at *6-*7 (M.D.N.C. Feb. 10, 2010) (finding 15-year old sufficiently old and mature for his opinion to be considered, but ordering return because he had merely testified that his preference was to remain in the United States while expressing no strong objection to returning to Germany, and because his decision was "likely influenced at least in part by his custodial presence with his mother" and "reflect[ed] the product of limited analysis"); Locicero v. Lurashi, 321 F. Supp. 2d 295, 298 (D.P.R. 2004) ("The fact that the [13 year-old] child prefers to remain in Puerto Rico, because he has good grades, has friends and enjoys sports activities and outings, is not enough for this Court to disregard the narrowness of the age and maturity exception to the Convention's rule of mandatory return."). But see De Silva, 481 F.3d at 1287 (affirming district court decision to apply the age and maturity defense and refuse repatriation where 13-year old had stated that he had made friends in the United States, described his house as "really big" and "a great place" where he has a computer and everything he needs for school and indicated that he thought the school was better here). Like the determination of "maturity," a finding that a child does not truly "object" to being returned to his country of habitual residence, particularly when based in part on a district court's first-hand observation of the child, "is of the sort peculiarly within the province of the trier of fact." Blondin II, 238 F.3d at 167.

The Court easily finds that respondent has not proved by a preponderance of the evidence that S.H., who was interviewed in camera approximately two months shy of his tenth birthday, is sufficiently mature for the Court to take his views into account.¹⁷ As noted above, S.H. expressed a strong-indeed, unequivocal-desire to remain in New York rather than return to England. His main objections to England itself appear to be his aversion to the climate (which is always rainy and cold, and never summer) and his staunch belief that England offers inferior athletic opportunities (because the sport of cricket is never played there) and educational opportunities (because there are no science, social studies or gym classes taught in English schools). Primarily, however, S.H. explained his objection to return by drawing an intensely unfavorable comparison between what life is like now with his father and what he now recalls life was like before with his mother, who he last saw when he was eight years old. Despite the fact that, as the Court finds, respondent did not intentionally plant words in S.H.'s mouth, the child's view of his mother has clearly been impacted by his physical separation from her for much of his life and the strained and often bitter relationship between his parents.

The Court was obviously concerned by S.H.'s sweeping statements regarding the mistreatment of the children by their mother. However, S.H. is the only witness in this case who has made such extreme allegations. The older child talked about a few specific instances when his mother had hit them or left them alone for a short period of time, but he did not describe an ongoing pattern or practice. Further, respondent has never claimed that petitioner physically abused the children, and has not asserted that the "grave risk of harm" exception to the Hague Convention should apply to prevent repatriation. While the Court does not find that S.H. was intentionally untruthful, the only reasonable conclusion for the Court to draw is that some of S.H.'s experiences as a young child are distorted and inflated in his memory. This is borne out by the fact that S.H. made other statements about his mother's behavior that he could not possibly have known first-hand, e.g., that she never spent any money on S.H. or his brother.

All in all, the Court finds that S.H. is an intelligent, well-mannered and congenial child, but hardly sufficiently mature for the Court to take his views into account in deciding whether or not to order return to his country of habitual residence. He "ha[s] reasons to support [his] preference to remain in the United States, but such reasons [are] not necessarily sufficient to invoke the [mature child] exception." Yang, 499 F.3d at 279 (affirming district court's determination that exception should not apply to prevent return of 10-year old "borderline genius" because she did not raise "particularized objections to returning to Canada, but…possessed a more generalized desire to remain in Pittsburgh similar to that of any 10-year old having to move to a new location."). Cf. Castillo v. Castillo, 597 F. Supp. 2d 432, 441 (D. Del. 2009) (The "child expressed particularized objections to returning to Colombia, pointing out that, in Colombia, she received little help with homework, performed poorly in school (at least relative to her performance in the United States), was often unable to play outside due to safety concerns, spent much of her time at home alone, and had few friends. These particularized objections evidence to the court that child's desire to remain in the United States is born of rational comparison between her life here and her life in Colombia. The court considers a desire based on such rational comparison to be a mature desire worth taking into account."). S.H. sees this as a choice of which parent he wants to live with, not which country he wants to grow up in; his stated preference to remain in New York is not a particularized, mature objection that should be part of the Court's Hague Convention analysis. Cf. Ago v. Odu, No. 8:09-cv-976, 2009 WL 2169857, at *14 (M.D. Fla. July 20, 2009) (applying mature child exception when "[a]s [the 14- year old child] sees it, life is better here and he is more comfortable in his surroundings. This is not a choice of parents but as he sees it a choice of country"); Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347, 1362 (M.D. Fla. 2002) ("The Court finds that at age nine, in light of the undisputed testimony, Dylan has attained an age and degree of maturity sufficient to take his opinion into account…. Dylan loves and wants to see his father, but in Florida. Dylan's concerns are with the country of Argentina, not with his father.").

It is, to be sure, a much closer question whether A.H. has attained sufficient age and maturity for the Court to take his views into account. The Court found him to be a remarkably intelligent, well-spoken and mature 12-year old-but he is still only 12. And, as is hardly surprising given that A.H. has been the subject of an international tug-of-war since age four, his in camera testimony revealed that he harbors conflicting emotions about his family that deeply affect his worldview.

More critically, even to the extent that it is appropriate to take A.H.'s views into account, they do not foreclose his return to England. A.H., like his little brother, bemoaned the weather and the availability of interesting sports activity in England and ticked off a laundry list of reasons why he likes living with his father more than his mother. However, the message that A.H. conveyed most coherently and emphatically is that, above all, he does not want to be separated from S.H. Indeed, A.H. openly admitted that he definitively decided that he did not want to return to England once S.H. informed him that he wanted to stay in New York. A.H. told the Court: "I don't want to be split from my brother. I said that's what I think too. That is what I thought too." (Tr. 354:2-5). And, although S.H. testified cavalierly that his preference to stay in New York has nothing to do with where his older brother ends up, the Court found this bravado to be belied by S.H.'s repeated use of collective terms to explain his thoughts and actions: "We made it like when it was summer, like we enjoyed the time there. We said we wanted to stay with dad in New York…that's when we made our decision." (Tr. 388:5-8).

The Court finds A.H.'s commitment to staying with his brother to be the most compelling testament possible to A.H.'s maturity. These two children have long been the only constant presence in one another's lives, and they operate as a team. A.H. indicated that he comprehends this reality, and made his position very clear to the Court: although he has expressed a preference to remain in the United States now, this preference will evaporate if S.H. returns to England. A.H., in other words, has expressed a sincere preference to remain in the United States, but certainly not an unequivocal objection to his return to the United Kingdom. Thus, A.H.'s viewpoint, as mature as it is, cannot be an adequate basis for this Court to "disregard the narrowness of the age and maturity exception to the Convention's rule of mandatory return." Yang, 499 F.3d at 279.

For the foregoing reasons, the Court finds that respondent has not shown that any exception to mandatory return pursuant to the Hague Convention applies in this case. Accordingly, S.H. and A.H. must be returned to England.

EXPENSES OF PROCEEDING

Pursuant to Article 26 of the Hague Convention and 42 U.S.C. §11607(b)(3), any court that orders the return of a child under the Convention "shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate." 42 U.S.C. §11607(b)(3). Respondent has not claimed or established that such an order would be "clearly inappropriate." Further, the fact that the petitioner in this case was represented by pro bono counsel does not provide a basis for disregarding the Convention's fee provision. See, e.g., Wasniewski v. Grzelak-Johannsen, 549 F. Supp. 2d 965, 970-71 (N.D. Ohio 2008); Antunez-Fernandes v. Connors-Fernandes, 259 F. Supp. 2d 800, 816-17 (N.D. Iowa 2003).

CONCLUSION

Accordingly, petitioner is directed to file, on or before June 21, 2010, a proposed judgment with an itemized bill of fees and costs. In preparing its fee application, petitioner's counsel is asked to recall its commitment to be "mindful of both the fact[s] that the primary reason for [counsel] accepting this engagement was to provide a public service, and that, upon information and belief, [r]espondent does not have vast resources." (Petitioner's Post-Trial Mem. at 25). On or before June 28, 2010, respondent may file any objection or exception along with sworn documentary proof establishing, based on respondent's financial position or otherwise, that ordering payment of such claimed expenses would be "clearly inappropriate." Any reply by petitioner must be filed on or before July 6, 2010. Any request for a fact hearing as to any of these matters must be filed on or before June 30, 2010.

SO ORDERED.

1. To protect the childrens' identity, pursuant to Rule 5.2 of the Federal Rules of Civil Procedure, the Court will not state their names or dates of birth and refers to them in this opinion by their initials.

2. This procedure is consistent with those adopted by district courts in Hague Convention cases. See, e.g., Matovski v. Matovski, No. 06 Civ. 4259, 2007 WL 2600862, at *1 & n.2 (S.D.N.Y. Aug. 31, 2007); Koc v. Koc, 181 F. Supp. 2d 136, 144 & n.10 (E.D.N.Y. 2001).

3. In the British educational system, "A-levels" are post-secondary school examinations used as a qualification for entrance into university.

4. Citations to "Tr." denote the hearing transcript.

5. Citations to "JPTO" denote the First Amended Joint Pre-Trial Order, Docket No. 61, §VI of which contains "a list of facts not in dispute and stipulated to by the parties."

6. The Court notes that the deposition transcript was not executed, and respondent stated that his counsel had never reviewed it with him. (Tr. 105:11-106:6).

7. Citations to "PTX" denote petitioner's trial exhibits.

8. Petitioner testified that she was under the impression that respondent had consulted with counsel at Steven Drake Solicitors regarding the Prohibited Steps Order prior to the hearing, as the latter firm had contacted petitioner's counsel on respondent's behalf. However, petitioner definitively stated that respondent was not represented by counsel in their divorce proceedings, which were pending in the Croydon County Court at the same time. (Tr. 50:21-51:24). Respondent's testimony on this point is diametrically opposed; he acknowledged that at some point in time he did speak with a lawyer in England but, according to his recollection, that conversation pertained to the divorce and took place prior to the issuance of the Prohibited Steps Order. (Tr. 137:8-23). In any event, no counsel ever formally appeared on respondent's behalf in either the divorce case or the hearing on the Prohibited Steps Order. (Tr. 71:2-4).

9. A.H. talked about a specific occasion on which his mother had gotten angry and hit him and his brother, and told the Court that his mother had spanked his brother with a shoe or slipper definitely more than once, and probably more than five times. (Tr. 336:-22-337:25).

10. But see n.17, infra.

11. The Pérez-Vera Report has been recognized by the Second Circuit as "an authoritative source for interpreting the Convention's provisions." See Gitter, 396 F.3d at 130 n.4 (internal quotation marks omitted). Additionally, the Pérez-Vera Report was recently cited by the Supreme Court as authority supporting its interpretation of the Convention, although the Supreme Court declined to decide "whether this Report should be given greater weight than a scholarly commentary." Abbott, 2010 WL 1946730, at *10.

12. Petitioner testified that the move to England in 2005 was agreed to be of indefinite duration, while respondent testified that the boys were supposed to return to the United States for good after a year and a half or two years. The boys seem to have absorbed a generalized understanding-though perhaps only in hindsight-that their 2005 relocation to England was slated to end after a discrete period of time, but they are hazy on the details, and also say that it was not a vacation. The Court need not decide which version of the story to credit. Whether or not the parents mutually intended in 2005 for their children to reside in England forever, the parents undisputedly agreed that the children should live in that country long enough, and with a sufficient degree of continuity, to become accustomed to their mother in the role of primary caretaker and to settle in comfortably at school. See Barzilay, 600 F.3d at 918 (noting that to establish a new habitual residence, a family's "settled purpose need not be to stay [there] forever, but [with] a sufficient degree of continuity to be properly described as settled").

13. The Children Act, which came into force in 1991, "fundamentally reformed" English child law. Lowe, The Allocation of Parental Rights and Responsibilities, supra, at 267. One of the most significant effects of the Children Act, and the most pertinent for present purposes, "was to replace the concept of parental rights and duties with the concept of parental responsibility and to replace custody and access orders with residence and contact orders respectively…[T]he consequence of these reforms in English law has been to abandon notions such as 'rights of custody' and [ ], therefore, it is no longer correct to refer to them in [English] custody disputes." Id. at 268.

14. "Divorce…has no effect upon the allocation of parental responsibility [under the Children Act]…. [T]he exercise of parental responsibility will only become an issue if a specific application for a [Children Act] section 8 order is made to the court." Lowe, The Allocation of Parental Rights and Responsibilities, supra, at 262. Section 8 of the Children Act enumerates four types of orders that an English court may issue to restrict parental responsibility: (a) a "residence order," settling the arrangements for the person with whom a child will live; (b) a "contact order," requiring the person with whom the child lives to allow the child to visit or otherwise have contact with someone else; (c) a "prohibited steps order," prohibiting a parent from taking a specified action without the consent of the court; and (d) a "specific issue order," resolving a specific question that arises in connection with an aspect of parental responsibility.

15. Respondent contends that petitioner herself "removed" the children from England in violation of the Prohibited Steps Order and Contact Order when she agreed to release the children to visit him in the United States for one month in summer 2008. Respondent's argument on this point neglects to mention, rather conveniently, the Contact Order provision permitting visitation "as may be agreed" by the parents. In any event, the merit, if any, of respondent's conclusory allegation is a matter of English law which is completely irrelevant to the instant Hague Convention inquiry, and therefore this Court will not address it. The proper question for this Court to decide is whether respondent has breached petitioner's rights of custody under English law, not vice versa. To the extent that respondent seeks to claim that a violation of his own English rights of custody has occurred, he is advised to direct his prayer for relief to a court of competent jurisdiction in England.

16. Aside from the "mature child exception," there are four affirmative defenses enumerated in the Convention, none of which respondent has invoked: (1) the petition was filed more than a year after the child was wrongfully removed and "the child is now settled in its new environment," Hague Convention, art. 12; (2) the petitioner "was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention," id., art. 13(a); (3) "there is a grave risk that [the child's] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation," id., art. 13(b); and (4) the return of the child "would not be permitted by the fundamental principles…relating to the protection of human rights and fundamental freedoms." Id., art. 20.

17. The Court has given no weight to the doctor's testimony and report in assessing either child's maturity level, or in determining any other matter in controversy. The doctor's opinions regarding the potentially distorting effects of the protracted custody battle, parental alienation and ping-pong lifestyle that A.H. and S.H. have experienced, as well as their notable verbal abilities and overall intelligence, essentially confirmed the obvious. Further, his dismissal of their responses to test and interview questions as overly "guarded"-i.e., not to be believed-merely veered into credibility-assessment territory. In any event, the credibility and weight of testimony are questions to be decided exclusively by the Court. "[W]itnesses may not opine as to the credibility of the testimony of other witnesses at the trial." United States v. Scop, 846 F.2d 135, 142 (2d Cir. 1988); see Chacko v. DynAir Svcs., Inc., 272 Fed.Appx. 111, 112 (2d Cir. 2008) ("The decisions as to whose testimony to credit and which of permissible inferences to draw are solely within the province of the trier of fact."). Frankly, short of opining as to a mental or emotional pathology, it is hard to fathom what a psychologist in a Hague Convention case could opine that is not already within the ken of an ordinary finder of fact.

It has been alleged the children would be in danger of becoming neglected if returned to the mother’s care. In 2008,  St. Lawrence County of Department of Social Services (SLCDSS) filed a petition to extend the mother's suspended judgment granted May 11, 2007, after the mother admitted she had permanently neglected the children and received a suspended judgment. Interestingly, at the same time, SLCDSS also filed a termination petition on the basis of mental illness.

SLCDSS could have chosen, but did not, to file a petition to revoke the mother's suspended judgment since it is alleged in the extension petition that the mother "is not equipped at this time or will she be in the foreseeable future to have the children returned home to her, because [she] lacks the intellectual functioning, emotional control, and problem-solving skills to properly parent the subject children." A suspended judgment can be revoked even where a "'parent's attempt to comply with the literal provisions of the suspended judgment is not enough'" (Matter of Darren V., 61 AD3d 986, 987 [2d Dep't 2009] quoting Matter of Jennifer VV., 241 AD2d 622 [3d Dep't 1997]). On a petition to revoke a suspended judgment the burden is on the parent to establish that "progress has been made to overcome the specific problems which led to the removal of the child" (Matter of Jennifer VV., 241 AD2d at 623). The Court finds the issue to be moot because the Court could have only granted the extension for one (1) year and such year would have since expired. For reasons unknown to the Court, SLCDSS chose instead to move to terminate Respondent's parental rights on the basis of mental illness.

The father's parental rights were terminated December 23, 2009, on the basis of his mental illness. The Court is taking judicial notice of its prior proceedings involving the father and the mother and these children (see Matter of Anjoulic J., 18 Ad3d 984 [3d Dep't 2005]). The children have been in SLCDSS's continuous custody since October 13, 2005. Prior to 2005, the parents were charged in 2002 with the neglect of their two (2) older children (the youngest was not yet born) because of injuries another child sustained while in the mother's care. In 2002, the mother's nephew suffered bruises on both sides of his face and on the back of his head. On August 20, 2002, the mother admitted that her nephew sustained injuries while in her care "of such a nature that would ordinarily not be sustained except by reason of [the mother's] acts" (Order of Fact-Finding dated August 20, 2002). As a result of her actions, the mother's children were put at risk of similar neglect.

The mother's attorney, Christopher Curley, Esq., argues Dr. Danser's report should be stricken because it relies on inadmissible evidence, facts not in evidence and its remoteness in time. In fact, Dr. Danser relied upon SLCDSS's records from 2003 — 2005 that were not admitted into evidence, and he relied upon the agency's unredacted record from 2005 — 2007. (Only SLCDSS's redacted record was admitted into evidence).

Conclusions of Law

In a termination of parental rights on the basis of mental illness, the petitioning agency must establish through clear and convincing evidence that the respondent suffers from mental illness, and that by reason of that mental illness, she "'is presently, and will continue for the foreseeable future to be, unable to provide proper and adequate care for the children'" (Matter of Michael WW., 29 AD3d 1105, 1106 [3d Dep't 2006]) (citations omitted). The agency must also show that the children have been in foster care for a period of one year prior to the filing of the termination petition (see Matter of Jenna KK., 50 AD3d 1216 [3d Dep't 2008]) (citations omitted). The proof must include testimony from an expert "particularizing how the parent's mental illness affects his or her present and future ability to care for the child[ren]" (Id at 1216) (quotation omitted). A mental illness is defined as "an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking or judgment to such an extent that if such child were placed in or returned to the custody of the parent, the child would be in danger of becoming a neglected child as defined in the family court act" (Social Services Law §384-b [6] [a]).

In this case, two expert witnesses testified that the Respondent/mother suffered from Depressive Disorder not otherwise specified and a personality disorder and with Borderline Intellectual Functioning. Dr. Danser indicated the mother suffered from Depressive Disorder, Borderline Intellectual Functioning, and Dependent Personality Disorder; Dr. Liotta diagnosed the mother with a Depressive Disorder and a Personality Disorder not otherwise specified with dependent and borderline features. Her therapist, Ms. VanBuskirk, contended the mother's diagnosis was Adjustment Disorder with mixed anxiety and depressed mood. Based upon the length of the mother's treatment and her ongoing problems, Dr. Liotta believed his diagnosis was the better one. Both experts stated that further treatment would not improve the mother's situation. Both also stated that the mother would not be able to parent her children now or for the foreseeable future.

In his first report, Dr. Liotta qualified his opinion to state it was based upon the mother's current situation of being involved with the father. In concluding his report, Dr. Liotta stated "if [the mother] can mobilize herself to make different choices…the prognosis for the foreseeable future could change substantially. If she does make different choices than how she does could be assessed after a reasonable period of time" (Petitioner's Exhibit # 17). At the time the mother testified, however, she claimed she had made different choices—she was living separate and apart from the father prompting this Court to order an updated evaluation.

After his second evaluation, Dr. Liotta determined the mother could not parent her children now or in the foreseeable future because her mental illness interferes with her ability to care for her children. Plus, he no longer distinguished the mother's situation. He continues to believe the mother has some strengths and loves her children. He believes, however, that the children would be at risk because the mother's "emotions can be volatile, reactive, and extreme" (Petitioner's Exhibit # 18). While it is true that the mother's anger has been somewhat controlled since the incident at the police station in 2005, the Court is mindful that the mother has only had supervised contact with her children since 2005. The record, however, is replete with examples of her inappropriate behavior (see fact-finding above).

Dr. Liotta also was able to particularize how the mother's mental illness would impact the children's care. He believed the mother's volatility was still an issue. He opined that the mother would be able to control her emotions for some time, but at some point would lash out inappropriately. The mother fails to have any insight about the inappropriateness of her outbursts with SLCDSS and of how angry she becomes. Dr. Liotta also opined that the mother would have difficulty parenting her children because she wants to be their "friend" and she shares adult concerns with her children (even though she is ordered not to discuss the children's placement with them). The mother has very little tolerance to stress and as a result could not deal with unforeseen problems.

He further observed that the mother has had other parenting problems. She was observed to have difficulty attending to all of her children during her supervised visits and A.D. manipulates her. It is of concern that if the mother cannot provide the children with structure and discipline during supervised visits that these issues would be exacerbated if the children were returned to her care which would lead to increased stress for the mother causing her to react with anger. Dr. Danser also believed the mother would be unable to provide the children with the appropriate structure if they were returned to her care.

The Court also credits Dr. Danser's testimony. He found the mother to suffer from dependency on the father. His opinion was based upon testing, an interview with the mother, one with the father and mother together, his review of the mother's mental health records and SLCDSS's records. Dr. Danser believed the mother's combination of disorders will impair her ability to provide appropriate structures for her children. She would not benefit from further treatment because it would not change her personality structure (see Fact-finding above).

The Court finds that based upon clear and convincing evidence that the petitioning agency has shown that the Respondent for now and for the foreseeable future will be unable to care for her children due to her mental illness (see Matter of Jenna KK., 50 Ad3d 1216 [3d Dep't 2008]; Matter of Alexis X., 23 AD3d 945 [3d Dep't 2005], lv denied 6 NY3d 710 [2006]). The mother testified but did not offer any expert witness in rebuttal to the experts who testified. Therefore, the Court finds SLCDSS has satisfied its burden of proof (see Matter of Alexis X., 23 AD3d 945; Matter of Jenna KK., 50 AD3d at 1216). The Court does find this case to be distinguishable from Matter of Arielle Y., 61 AD3d 1061 [3d Dep't 2009] where the family court's decision to terminate parental rights on the basis of mental illness was overturned. Here, prior to Dr. Liotta's opinion, the mother had been diagnosed with a mental illness. Furthermore, each expert did particularize how the mother's mental illness would impair her ability to care for her children. In a more recent and similar case, the Appellate Division, Third Department affirmed a family court's decision to terminate parental rights on the basis of mental illness (see Matter of Karen GG v. Clinton County Department of Social Services, NY Slip Op 507127 [2010]).

The Court further finds that these children have been in care well in excess of one (1) year prior to the petition being filed; they have been in foster care since October 2005. Respondent's counsel requested a dispositional hearing in this matter. The Court finds that a dispositional hearing in this matter is not statutorily mandated, nor is one necessary (see Social Services Law §384-b; see also Matter of Tiffany S., 302 AD2d 758 [3d Dep't 2003]; cf. Matter of Josh M., 61 Ad3d 1366 [4th Dep't 2009]).

The Court, having made examination and inquiry into the facts and circumstances of the case and into the surroundings, conditions and capacities of the persons involved in the proceeding, finds that the best interests of the children require the disposition made below.

NOW, THEREFORE, it is

ORDERED that A.D., M.D. and M.D., are children whose parent cannot provide proper care by reason of mental illness as defined in subdivision six of section 384-b of the Social Services Law; and it is further

ORDERED that Karen D.'s parental rights to A.D., M.D. and M.D. are hereby terminated; and it is further

ORDERED that a certified copy of this order shall be filed for recording at the Office of the County Clerk in accordance with the provisions of Section 384-b of the Social Services Law; and it is further

ORDERED that if the children remain in the custody and guardianship of the authorized agency or foster parent, the next permanency hearing shall be held on, June 22, 2010, at 10:00 AM; and it is further

ORDERED that Petitioner shall transmit notice of the hearing an a permanency report no later than fourteen (14) days prior to the Permanency Hearing date to all remaining parties, attorneys, law guardian and any pre-adoptive parent or relative providing care to the children and, unless dispensed with by the Court, and shall transmit notice of the hearing to a former foster parent(s) who have had care of the children in excess of 12 months.

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An unexpected twist occurred in the shared custody of two children as a Supreme Court Justice in Nassau County sentenced the mother, the Plaintiff, to spend six weekends in jail for her frequent attempts to estrange her ex-husband, the defendant, from their daughters.  She blatantly undermined the Court order that decided the father's visitation rights.  The Plaintiff created obstacles that hindered the father from seeing his daughters during scheduled visits.  Due to her efforts, she was able to keep the father from his children for six weeks during the winter of 2007.  The Plaintiff even went so far as to accuse the father of sexually abusing the children; no evidence was found to support such allegations.  Nevertheless, the Court found the evidence of the Plaintiff's interference with the father's visitation rights and her mindful violation of the couple's stipulation of settlement to be overwhelming.  Consequently, the Long Island judge ordered the Plaintiff to spend every other weekend this summer at Nassau County Correctional Facility.

The judge's ruling on this case is an example for other spouses who are going through a divorce, in which there are children involved.  By trying to manipulate the relationship between her ex-husband and the children, the mother did not have "the children's best interests at heart."  She did her best to pry her daughters away from their father; the mother, thus, unnecessarily exposed her children to and entangled them within her messy relationship with the ex-husband.  Couples who have strained relations must remember to be conscious of how their behavior with their spouse or ex-spouse can affect their children.

To view the case see below:

NASSAU COUNTY
Family Law

Decided: May 25; 203699-02

The continuing jurisdiction of the Supreme Court to modify or annul its custody and visitation judgments and orders, is set forth in Domestic Relations Law §240. Such authority is similarly provided to the Family Court pursuant to Family Court Act §467. In post judgment proceedings regarding a modification of custody and visitation, the standard is the "best interest of the child," when all of the applicable factors are considered. See, Friederwitzer v. Friederwitzer, 55 NY2d 89.

Parental access, commonly referred to as "visitation," is an important right of the non-custodial parent and the child. See, Weiss v. Weiss, 52 NY2d 170. In a scenario where one parent is demonstrated to have interfered with the custodial rights of a parent, a number of mechanisms exist [see, Scheinkman, New York Law of Domestic Relations, Second Edition, §23.14] to aid in the enforcement of custody orders and judgments, including:

1. Criminal Sanctions, pursuant to Penal Law §135.45 and 135.50;

2. Suspension of alimony or maintenance, pursuant to Judiciary Law 750,753;

3. Tort action for custodial interference;

4. Orders of Protection, pursuant to Domestic Relations Law §240.

While the most factually apparent ground to change existing custody arrangements involves physical danger, the act of alienating a child against a parent presents a nefarious form of conduct that must be met with careful consideration and immediate, comprehensive remediation by a Court (see, Zafran v. Zafran, 306 AD2d 468; Lew v. Sobel, 46 AD3d 893). A change in custody should not be permitted solely as a means for punishing a recalcitrant parent (see, Lew v. Sobel, supra), but always requires due consideration of all of the other custodial factors. See, Robert T.F. v. Rosemary F., 148 AD2d 449.

While mindful of the consequential future effect of this determination (see, Lauer v. City of New York, 95 NY2d 95, 100), inasmuch as a Court's finding of willful interference "per se raises a strong probability that the custodial parent is unfit" (see, Young v. Young, supra; Glenn v. Glenn, supra), when a pattern of alienation by the custodial parent is proven in any prior proceeding, that alienating conduct must [emphasis added] be considered and addressed by the Court in any subsequent proceeding involving custody/parental access. See, Audobon v. Audobon, 138 AD2d 658; Martin R.G. v. Ofelio G.O., 24 AD3d 305. Also, see CPLR §4213[b]; Robert T.F. v. Rosemarie F., 148 AD2d 449.

The doctrine of res judicata bars the issue of whether alienation occurred in the subsequent change of custody hearing ordered herein. See, O' bdoherty@chat.nyc.amlaw.corp Brian v. City of Syracuse, 54 NY2d 353, 357; Matter of Waldman v. Waldman, 47 AD3d 638; Braunstein v. Braunstein, 114 AD2d 46, 53; Town of New Windsor v. New Windsor Volunteer Ambulance Corps, Inc., 16 AD3d 403. Considering that parental alienation of a child from the other parent has been determined to be "an act inconsistent with the best interest of the child (Bobinson v. Bobinson, 9 AD3d 441; Stern v. Stern, 304 AD2d 649; Zafran v. Zafran, 28 AD3d 753; Zeis v. Slater, 57 AD3d 793), and that it has been proven in this contempt proceeding - - the "strong likelihood of unfitness" becomes a "factor" that must be considered in the change of custody hearing ordered herein.

Protraction or delay in parental alienation cases often serve to reinforce the offending conduct and potentially undermine any remediation that a court could fashion with appropriate therapy, parent coordination, and/or, a change in custody. See, Steinberger, Father? What Father? Parental Alienation And Its Effect on Children, NYSBA Family Law Review, Spring 2006; Johnston, J.R., Children of Divorce Who Reject a Parent And Refuse Visitation: Recent Research & Social Policy Implications for the Alienated Child, 38 Fam. L.Q. 757, 768-769. Under the circumstances of this case, this Court's finding of a willful violation of an existing order of custody in the form of parental alienation requires a prompt evidentiary hearing to determine whether the children's best interests, under the totality of the circumstances, warrant modification of the previously entered custody order. See, Friederwitzer v. Friederwitzer, 55 NY2d 89; Corigliano v. Corigliano, 297 AD2d 328; Martin R.G. v. Ofelio G.O., 24 AD3d 305; Carlin v. Carlin, 52 AD3d 559.

PROCEDURAL HISTORY

By Order to Show Cause dated December 14, 2007, defendant sought an order to have the plaintiff held in contempt for her willful and deliberate failure to comply with the Stipulation of Settlement, dated October 30, 2003, in that she allegedly interfered with his right to frequent and regular visitation with and telephone access to the parties' children, D. and N.; and by alienating the children from the defendant through numerous acts of disparaging the defendant to the children. The Court granted defendant's motion by its Amended Decision and Order dated September 9, 2008, to the extent that a hearing was ordered. This contempt hearing was held before me on May 15, 21, July 13, 15, 16, August 3, 4, 5, 6, 17, 18, 19, September 17, 2009, January 4, 5, 6, 7, 8, 11, 12, 19, February 3, and 22, 2010.

The parties' Stipulation of Settlement was incorporated but not merged into the parties' Judgment of Divorce (Stack, J.). Pursuant to the unequivocal terms of the Stipulation, she was prohibited from "alienating the children from the defendant, plac[ing] any obstacle in the way of the maintenance, love and affection of the children for the defendant," or to "hinder, impair or prevent the growth of a close relationship between the children and their parents, respectively, or cause others to do so." Moreover, in sharing joint legal custody of the children, she was specifically required to consult with the defendant regarding decisions affecting the children's education, health and religion. That Stipulation also clearly provided that each of the parties was to "exert every effort to maintain free access and unhampered contact," "to foster a feeling of affection," and not to "do anything which may estrange the children from [the defendant] or injure the children's opinion as to the Father which may hamper the free and natural development of the children's love and affection for the [Defendant]."

To sustain the defendant's application regarding contempt, he must demonstrate that the plaintiff has violated a clear and unequivocal court order which actually defeated, impaired, impeded or prejudiced the other party's rights (see, Great Neck v. Central, 65 AD2d 616) or were calculated to affect those rights (Stempler v. Stempler, 200 AD2d 733). The movant must meet this burden by clear and convincing evidence (Bulow v. Bulow, 121 AD2d 423). The Court may not hold a party in contempt where payment may be enforced by other enforcement procedures (Wiggins v. Wiggins, 121 Ad2d 534), unless such remedies would be an exercise in futility or ineffectual (Farkas v. Farkas, 209 AD2d 316). Upon a finding of contempt, the Court may impose a period of commitment to jail (Powers v. Powers, 86 NY2d 63) or fine, or both.

In this instance, a lawful court order, in the form of a Judgment of Divorce incorporating the parties' stipulation of settlement, was in effect. The plaintiff was shown to have actual knowledge of its terms. Ottomanelli v. Ottomanelli, 17 AD3d 647; Freihofner v. Freihofner, 39 AD3d 465; Kawar v. Kawar, 231 AD2d 681, 682. This order of parental access was not only in effect before and during the hearing, but unsuccessful efforts were made during the course of the hearing to utilize counseling and parenting coordination to remediate the alienating conduct of the plaintiff. See, Lew v. Sobel, 46 AD3d 893. See, also, Judiciary Law §753; Massimi v. Massimi, 56 AD3d 624.

CONTEMPT

The Court's findings here were based, in part, upon an assessment of the credibility of the witnesses and their character, temperament and sincerity. Matter of Carl J.B. v. Dorothy T., 186 AD2d 736; see, also, Klat v. Klat, 176 AD2d 922; Leistner v. Leistner, 137 AD2d 499. I have also considered the extensive post-hearing submissions of each of the parties and the attorney for the children.

Here, the defendant's burden of proof in this matter was met so overwhelmingly, as to exceed the burden of proof required (see, Bulow, supra). Instead, it was proven "beyond a reasonable doubt" [cf., Rubackin v. Rubackin, 62 AD3d 11]. The acts perpetrated by the plaintiff were not only in willful violation of the Stipulation of Settlement, as incorporated into the Judgment of Divorce, but such as to demonstrate a continuing and calculated effort to violate the parental access of the defendant to the infant issue. The movant here demonstrated that the plaintiff violated a clear and unequivocal Court order, thereby prejudicing his rights. See, Judiciary Law §753[A][3]; Vujovic v. Vujovic, 16 AD3d 490. The specific findings of fact are detailed herein, and considering the extent, nature, and continuing pattern of alienation perpetrated by the plaintiff, it is clear that plaintiff's conduct was calculated to and did, in fact, impair, impede or prejudice the rights and remedies of the defendant herein. See, Silverman v. Silverman, N.Y.L.J., 11-22-95, p. 26, col. 1; McCain v. Dinkins, 84 NY2d 216; Hoglund v. Hoglund, 234 AD2d 794.

FACTUAL FINDINGS ANDINSTANCES OF ALIENATION

Plaintiff intentionally scheduled their child's (N.'s) birthday party on a Sunday afternoon during defendant's weekend visitation, and then refused to permit defendant to attend. She demanded that N. be returned home early, in order to "prepare" for her party, but D., the other child, was enjoying the time with her father and wished to remain with him until the party began. Plaintiff castigated N. for "daring" to invite her father to take a picture of her outside her party. According to the plaintiff, "this doesn't work for me!" Plaintiff threatened to cancel N.'s party, and warned her that her sister, too, would be punished "big time" for wanting to spend time with her father. Plaintiff's taped temper tantrum, offered into evidence, vividly detailed one instance of how D. and N. have been made to understand that enjoying time with their father will be met with their mother's wrath and threat of punishment.

Plaintiff conceded that when she completed N.'s registration card for XXX., she wrote that defendant is "not authorized to take them. I have custody. Please call me." At trial, she claimed to fear that defendant would retrieve the girls directly from school. However, she later admitted that defendant had never even attempted to pick them up at school. Her testimony at trial sharply contradicted her sworn affidavit dated January 23, 2008, in which she stated that "the defendant consistently attempts to pick up the girls unannounced from their schools and activities, which disrupts not only the girls, but those in charge of the aforementioned." In her sworn affidavit, plaintiff claimed that she completed the registration card because defendant sought to attend the end of D.'s art class and then had the audacity to drive his daughter home. The art class "incident" occurred well after the registration card was completed by the plaintiff. Moreover, nothing in the parties' agreement prohibits the defendant from visiting the children at extra-curricular events or from driving them to or from such events. In point of fact, there was no dispute that D.'s Friday art class in Huntington ended as defendant's alternate weekend visitation commenced.

Plaintiff wrote to Dr. L.¹ (then the XXX. principal) and Ms. T. (N.'s fifth grade teacher), demanding that they restrict their conversations with the defendant to N.'s academics, as plaintiff is "solely responsible for her academic progress and emotional well being. Notwithstanding the nature of their joint legal custody plaintiff insisted before me that, "I have custody, he has visitation."

The plaintiff made/completed an application for admission to XXX on behalf of N. in October, 2007. On the application, she checked the box "Mother has custody," rather than the box directly below which says "Joint custody." She identified her new husband, R. L., as N.'s "parent/guardian," and she failed to mention the defendant. During cross examination, plaintiff insisted that she only omitted reference to the defendant for fear that his financial circumstances would adversely impact N.'s chances for acceptance. However, no financial information was requested anywhere on the application. Moreover, plaintiff acknowledged that none was required until after an applicant was invited to attend.

By applying to XXX without defendant's knowledge - - but with N. completely involved in the process, plaintiff orchestrated the decision to be made, as well as alienating the child. Had the defendant not consented to N.'s attendance at XXX, after the fact, N. would be angry with him for purportedly interfering with the enrollment, even if defendant's objections to a private school placement were sound. In no event was he consulted as to this educational decision.

When asked how she might handle things differently now, plaintiff did not indicate that she would first discuss the possibility of a private school with the defendant, as she is obligated to do pursuant to the Stipulation.

In a similar pattern of being advised "after the fact," defendant testified that there were countless times when plaintiff deliberately scheduled theater tickets, family events and social activities for the girls during his visitation, and he was compelled to consent or risk disappointing the girls. These occurrences continued even during the time span of proceedings before me.

Plaintiff was forced to concede at trial that the defendant was prevented from enjoying his visitation rights after he returned with the girls from his niece's Bat Mitzvah until this Court granted defendant's emergency application to compel the plaintiff to allow the defendant to take D. and N. for the ski trip he had scheduled for his half of the Christmas recess. Plaintiff insisted that it was D. and N. who refused to see their father, because they were angry with the 'choices" he had made on their behalf, including his objection to N. attending XXX. Defendant was made aware of the children's position because they parroted their mother's demands on several occasions. D. even read from a script during the brief dinners he was permitted. As plaintiff wrote in one e-mail when she was describing her role with respect to the children: "I am in charge here, not them. What I [sic] say goes. They may bring their shoes. You are responsible for the rest. End of story."

In vivid testimony, the defendant recalled how the plaintiff willfully prevented him from exercising his rights to visitation with the children from November 4, 2007 through December 21, 2007. I observed the plaintiff smirk in the courtroom as defendant emotionally related how he was deprived of spending Hanukkah with his children, and was relegated to lighting a menorah and watching his daughters open their grandparents' presents in the back of his truck at the base of plaintiff's driveway on a December evening.

The fact that the children were as angry as they were with the defendant in November and December, 2007, demonstrates, in my view, that efforts to alienate the children and their father were seemingly effective. The children demanded that defendant meet "their" demands before they would permit him to visit with them again. They demanded that defendant permit N. to attend F. A., that he withdraw his objection to their participation in therapy with their mother's therapist, and that he pay for 75% of D.'s Bat Mitzvah but limit his invitations to a handful of guests and have no role in the planning of the event. Plaintiff's contention that she had no involvement in these children's "demands" was belied by the very fact that the children had intimate knowledge of their mother's position on all of these issues. The children, in effect, were evolved into plaintiff's sub-agents and negotiators, having specific details of the financial demands of the plaintiff, and information as to the marital agreement.

The mother alluded to the ambivalence of the children in seeing the defendant. But such abrogation to the children's wishes, under these circumstances, was in violation of the agreement. It was wholly improper for the mother to adhere to the children's wishes to forego visitation with their father (see, Matter of Hughes v. Wiegman, 150 AD2d 449).

Plaintiff half-heartedly testified that she wants the children to have a relationship with the defendant. Her view of the defendant's role was a numbing, desired nominality, evident by her actions that were without any semblance of involvement by the defendant - - notwithstanding the clear joint custodial provisions. At critical points in the cross-examination, plaintiff was noticeably off balance - - hesitating and defensive - - with answers that dovetailed to either narcissism, or, a poor grasp of the affects of her conduct. The plaintiff was dispassionate, sullen, and passively resistant to the alienating efforts of the plaintiff. The continued litany of instances of alienating conduct, turned repression of the defendant's joint custodial arrangement into farce. The endurance in recounting instance upon instance of alienating conduct herein, was as daunting as it was indefensible.

Plaintiff relegated the defendant to waiting endlessly at the bottom of her long driveway. When defendant drove up her driveway on October 26, 2007, so that the children would not have to walk down with their heavy bags in a torrential rain, plaintiff ran down the driveway where she had left her car, drove up the driveway and blocked defendant's vehicle. The children watched as the police listened to their mother angrily demand that their father be arrested and, when the police refused, heard their mother scream that she is a taxpayer and the police work for her. She frequently disparaged the defendant in the presence of the children, calling him a "deadbeat," "loser," "scumbag," and "f---g asshole." On one particular occasion, while holding N. and D. in her arms, plaintiff said to the defendant, "We all hope you die from cancer." Just this past summer, when defendant insisted that D. retrieve her clothes from plaintiff's home in preparation for their visit to N. on her camp visiting day, plaintiff urged to defendant that "Judge Ross will not be around forever, d___." Before the beginning of each of defendant's vacations with the children, the plaintiff staged prolonged and tearful farewells at the base of the driveway, during which plaintiff assured the children that they will return to "their family soon," and if "things get too bad, they can always tell Daddy to bring them home."

The crescendo of the plaintiff's conduct involved accusations of sexual abuse. Plaintiff falsely accused defendant of sexual misconduct in June, 2008, shortly after defendant moved to Huntington and the children's friends were enjoying play dates at defendant's home. Plaintiff testified that D. shared that she was uncomfortable when the defendant tickles her, and conceded that she knew there was nothing "sexual" involved. Undaunted by the lack of any genuine concern for D.'s safety, plaintiff pursued a campaign to report the defendant to Child Protective Services. To facilitate this, she spoke with W. M, the psychologist at the school D. attended. Plaintiff also "encouraged" D. to advise Dr. C. (the chidren's pediatrician) that defendant inappropriately touched her - - but he saw no signs of abuse. Plaintiff also advised Dr. A., Ms. M., Dr. R. (the children's prior psychologist) and family friends of the allegations and, ultimately, the Suffolk County Department of Social Services opened a file on June 3, 2008, and began an investigation.

According to the Case Narrative contained in the New York State Case Registry, a complaint was made that "On a regular basis, father inappropriately fondles 13 year old D.'s breasts. This makes D. feel very uncomfortable. Last Sunday, Father hit D. on the breast for unknown reason… " When the caseworker and Suffolk County detectives interviewed D. on June 3, 2008, she reported only that her father tickles her on her neck and under her arms, and she categorically denied her father ever fondled her breasts. She admitted that her father was not attempting to make her uncomfortable, but that he still regards her to be a tomboy. The detectives closed their investigation.

Thereafter, and significantly, when the CPS caseworker met with plaintiff on August 19, 2008, plaintiff was quick to state that her ex-husband "did it again." Plaintiff claimed that the defendant hugged D. too hard. According to the caseworker's notes, the caseworker repeatedly cautioned the plaintiff not to bring the children into her disputes with the defendant. This warning was contained in CPS records.

Although unfounded child abuse reports are required to be sealed (see, Social Services Law §422[5]), such reports may be introduced into evidence,"by the subject of the report where such subject… is a plaintiff or petitioner in a civil action or proceeding alleging the false reporting of child abuse or maltreatment" (Social Services Law §422[5][b][1]). Allegations that defendant had injured the child were found to be baseless and, by making such allegations, plaintiff needlessly subjected the child to an investigation by Child Protective Services, placing her own interests above those of the child. This report was not made in "good faith" - - rather, the investigating agency warned the mother not to re-utilize the allegations and her children in her custodial litigation with the defendant.

The concern of a pending contempt proceeding did not affect the plaintiff's conduct. For example, knowing that defendant had parenting access with D. on July 3, 2009, plaintiff invited D.'s close friend, C. C., to a country club for a fireworks display and advised D. of this invitation. She then instructed D. to tell her father she was invited to a friend's party on that date. Another example occurred on June 13, 2009, when plaintiff quietly escorted D. from Alice Tulley Hall during the intermission, ignoring the instructions from the G. Y. Orchestra staff that everyone remain until the conclusion of the entire program. Plaintiff purported she was unaware that defendant attended this special program in Lincoln Center. Defendant, who was in attendance at the concert, was left waiting at the stage door with flowers for D. Plaintiff ignored his text messages questioning where his daughter was. The plaintiff, when confronted with the notion that she may have precipitously ushered her daughter away before her father was able to give her flowers, retorted to the Court that "it was not her responsibility to make plans for T."

The evidence before me demonstrates a pattern of willful and calculated violations of the clear and express dictates of the parties' Stipulation of Settlement, incorporated but not merged into their Judgment of Divorce. The extensive record is replete with instances of attempts to undermine the relationship between the children and their father and replace him with her new husband, manipulation of defendant's parenting access, utter and unfettered vilification of the defendant to the children, false reporting of sexual misconduct without any semblance of "good faith," and her imposition upon the children to fear her tirades and punishment if they embrace the relationship they want to have with their father. The unfortunate history here also reflects the plaintiff's hiring and firing of three different counsel, expressed disdain towards the children's attorney, and utter disregard for the authority of the Court.

CHANGE OF CUSTODYPROCEEDING TO BE HELD

There was no request in the moving papers for a change of custody. During the course of the extensive hearing held before me, application was made by the defendant for an immediate change of custody. It is improper for a trial court to take action and grant relief without appropriate notice to one of the parties affected. Such notice during the course of the proceeding for undemanded relief does not constitute adequate notice, and could serve to prejudice the plaintiff. Siegel Practice Commentary, McKinney's Consol. Law of New York, Book 7B, CPLR 3017.6. The Court did not grant the relief for a change in custody in the course of the hearing for contempt. However, Domestic Relations Law §240 provides that upon an application, the Court may modify a previous direction with respect to the right of visitation "after such notice to the other party… .and given in such manner as the Court shall direct." See, Domestic Relations Law §240. The request for a change in custody during the course of the contempt hearing clearly has provided adequate notice by which to schedule a hearing. The request during the hearing to amend the motion to conform to the evidence presented at this hearing, is now granted, to the extent of ordering a prompt hearing on a modification of custody. Heintz v. Heintz, 28 AD3d 1154; cf. Sipos v. Kelly, 66 AD2d 1022. See, also, Fisk v. Fisk, 274 AD2d 691.

The parties are to appear before me on June 4, 2010 to be heard on selection of a forensic examiner and to be heard on allocation of fees. See, Uniform Rules §202.7; also see, Ragone v. Ragone, 62 AD3d 772; Domestic Relations Law §237(d)(4). The scheduling of the modification of custody hearing will be facilitated at that time.

THE COURT'S ROLE INADDRESSING ALIENATION

Differing "alienation" theories promoted by many public advocacy groups, as well as psychological and legal communities, have differing scientific and empirical foundations. However, interference with the non-custodial parent's relationship with a child has always been considered in the context of a "parent's ability to encourage the relationship between the non-custodial parent and a child," a factor to be considered by the Court in custody and visitation/parental access determinations. See, Eschbach v. Eschbach, supra. Our Appellate Courts recognize such factor, as they have determined that the "interference with the non-custodial parent and child's relationship is an act so inconsistent with the best interests of a child, as to, per se, raise a strong probability that the offending party is unfit to act as a custodial parent." See, Leistner v. Leistner, 137 AD2d 499; Finn v. Finn, 176 AD2d 1132, 1133, quoting Entwistle v. Entwistle, 61 AD2d 380, 384-385, appeal dismissed 44 NY2d 851; Matter of Krebsbach v. Gallagher, 181 AD2d 363, 366; Gago v. Acevedo, 214 AD2d 565; Matter of Turner v. Turner, 260 AD2d 953, 954; Zeiz v. Slater, 57 AD2d 793.

Where, as in the instant case, there is a finding of a willful violation of a court order demonstrated by a deliberate interference with a non-custodial parent's right to visitation/parental access, the IAS Court, as a general rule, must schedule an evidentiary hearing before making any modification of custody. See, Glenn v. Glenn, 262 AD2d 885. See, also, Entwistle v. Entwistle, 61 AD2d 380; Young v. Young, 212 AD2d 114; Matter of LeBlanc v. Morrison, 288 AD2d 768, 770, quoting Matter of Markey v. Bederian, 274 AD2d 816; Matter of David WW v. Lauren QQ, 42 AD3d 685; Goldstein v. Goldstein, 2009 N.Y. Slip Op. 08995 [Dec. 1, 2009].

SENTENCE

An imposition of sentence upon a finding of contempt should contain a language permitting the contemnor an opportunity to purge. See, Heyn v. Burr, 19 AD3d 896; Stempler v. Stempler, 200 AD2d 733; Cooper v. Cooper, 21 AD3d 869. Under the circumstances here, where determination is made of a past violation of an order of parental access/joint custody, there can be no purge since it is no longer within the plaintiff's power to perform the act. See, Kruszczynski v. Charlap, 124 AD2d 1073; Young v. Young, 129 AD2d 794. Moreover, the use of remedial intervention - - parenting coordination/counseling - - during the course of the trial was unsuccessful, and even if re-utilized here, the Court cannot condition release from imprisonment upon future compliance. See, Martinez v. D.S.S., 44 AD3d 945.

Accordingly, and after careful consideration of the circumstances of the nature and extent of the multiple instances of violation of the court order, the plaintiff is sentenced to a period of incarceration for six weekends, to be served on the first and third weekends of each month for the months of June, July and August, 2010. Prior to these weekends of the plaintiff's incarceration, she shall transport the children to the defendant's home to assure their continued care and well being. See, Marallo v. Marallo, 128 AD2d 710; Gordon v. Janover, 238 AD2d 545; Munz v. Munz, 242 AD2d 789; Kruszczynski v. Charlap, supra; Barcham-Reichman v. Reichman, 250 AD2d 609.

COUNSEL FEES

Given the finding of a willful violation of the Judgment of this Court (Stack, J.) Dated March 26, 2004 [erroneously dated as 2003], and given the fees requested ($134,352.92 for defendant's counsel, $11,287.50 for Attorney for the Children's fees, and $19,833.32 for Parenting Coordinator fees, shall be the object of a hearing to be held before me on June 4, 2010. While the parties consented to such determination on submission, the issues presented lend themselves to the Court's assessment of the parties' finances. To facilitate a complete record, a hearing is ordered herewith. See, Judiciary Law §773; Gordon v. Janover, supra.

On the Court's own motion, this decision and order will be stayed until June 4, 2010 to afford the plaintiff an opportunity to seek Appellate Review, if so advised, and it is

ORDERED, that the plaintiff, L. R., is adjudged to be in civil contempt of the Judgment of Divorce dated March 26, 2004; and it is further

ORDERED, that the parties and their counsel shall appear before me for sentencing on June 4, 2010 at 9:30 a.m., which date may not be adjourned without written order of this Court; and it is further

ORDERED, that the plaintiff, L. R., is sentenced to a period of six weekends imprisonment in the Nassau County Correctional Facility, pursuant to the schedule set forth herein; and it is further

ORDERED, that this order and execution of this sentence shall be stayed until June 4, 2010; and it is further

ORDERED, that this decision shall be deemed an order and/or warrant of commitment pursuant to and in accordance with Judiciary Law §772; and it is further

ORDERED, that a copy of this Decision and Order shall be served upon the Sheriff of Nassau County and/or the Warden of the Nassau County Correctional Facility to facilitate the schedule of weekend incarceration, to be imposed as follows:

Friday, June 11, 2010 at 6:00 p.m. to Sunday, June 13, 2010 at 6:00 p.m.;

Friday, June 25, 2010 at 6:00 p.m. to Sunday, June 27, 2010 at 6:00 p.m.;

Friday, July 9, 2010 at 6:00 p.m. to Sunday, July 11, 2010 at 6:00 p.m.;

Friday, July 23, 2010 at 6:00 p.m. to Sunday, July 25, 2010 at 6:00 p.m.;

Friday, August 6, 2010 at 6:00 p.m. to Sunday, August 8, 2010 at 6:00 p.m.;

Friday, August 20, 2010 at 6:00 p.m. to Sunday, August 22, 2010 at 6:00 p.m;

and it is further

ORDERED, that this Court finds that the conduct of the plaintiff was calculated to, or actually did, defeat, impair or prejudice the defendant's rights or remedies.

This constitutes the decision and order of this Court.

1. This witness retired from his position, and returned to New York to testify at this hearing.

Decision of the Day

Family Law

203699-02

Supreme Court, Nassau County

Decided: May 25

In a proceeding pursuant to Family Court Act article 6 for the appointment of the maternal aunt of the petitioner, a person under 21 years of age, as her guardian, the petitioner, Trudy-Ann W., appeals from (1) an order of the Family Court, Kings County (Kennedy, J.), dated March 4, 2010, which, after a hearing, denied the petition and dismissed the proceeding, and (2) an order of the same court, also dated March 4, 2010, which, after a hearing, denied her motion for the issuance of an order declaring that she is dependent on the Family Court and making specific findings that she is unmarried and under 21 years of age, that reunification with one or both of her parents is not viable due to parental abuse, neglect, or abandonment, and that it would not be in her best interest to be returned to her previous country of nationality or last habitual residence, so as to enable her to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC §1101(a)(27)(J).

ORDERED that the orders are reversed, on the law and the facts, without costs or disbursements, the petition and the motion are granted, Alcie S., the maternal aunt of Trudy-Ann W., is appointed as the guardian of Trudy-Ann W., it is declared that Trudy-Ann W. is dependent on the Family Court, and it is found that Trudy-Ann W. is unmarried and under 21 years of age, that reunification with one or both of her parents is not viable due to parental abuse, neglect, and abandonment, and that it would not be in the best interest of Trudy-Ann W. to return to Jamaica, West Indies, her previous country of nationality and last habitual residence.

Trudy-Ann W., a native of Jamaica, West Indies, is 20 years old, unmarried, and has lived in the United States with her maternal aunt, Alcie S., since 2007. Trudy-Ann's father, whose whereabouts are unknown, abandoned her at birth, while her mother, who continues to reside in Jamaica, neglected and abused her by inflicting excessive corporal punishment and failing to supply her with adequate food and supervision. Trudy-Ann left her mother's home at age 16. There is uncontroverted evidence that, since 2007, Alcie S. has provided Trudy-Ann with a loving home, financial and emotional support, and the ability to pursue educational goals.

Previously, Family Court Act §661 was deemed applicable only to individuals under 18 years of age (see Matter of Vanessa D., 51 AD3d 790; Matter of Luis A.-S., 33 AD3d 793). Pursuant to a 2008 amendment, however, Family Court Act §661(a) now explicitly authorizes the appointment of a guardian for a person "who is less than twenty-one years old who consents to the appointment or continuation of a guardian after the age of eighteen." Accordingly, in January 2010, Trudy-Ann sought the appointment of Alcie S. as her guardian. Both Alcie S. and Trudy-Ann's mother consented to the appointment. In an order dated March 4, 2010, the Family Court nevertheless denied the petition and dismissed the proceeding on the ground that Trudy-Ann had failed to establish a basis for the relief requested. In a separate order, also dated March 4, 2010, the Family Court denied Trudy-Ann's motion for the issuance of an order making a declaration and specific findings that would enable her to apply to the United States Citzenship and Immigration Services (hereinafter USCIS) for special immigrant juvenile status pursuant to 8 USC §1101(a)(27)(J). We reverse both orders.

Under the circumstances of this case, we find that the Family Court's determination of the guardianship petition lacked a sound and substantial basis in the record (see Matter of Gloria S. v. Richard B., 80 AD2d 72, 76; cf. Matter of Pleasant Edward G., 299 AD2d 358, 358-359). Since Trudy-Ann is under 21 years of age, she is an infant for purposes of this guardianship proceeding (see Family Ct Act §661[a]). When considering guardianship appointments, the infant's best interest is paramount (see SCPA 1707[1]; Matter of Stuart, 280 NY 245, 250; Matter of Amrhein v. Signorelli, 153 AD2d 28, 31; see also Matter of Tiffany Nicole L., 287 AD2d 717, 718). The order denying the guardianship petition and dismissing the proceeding, however, is devoid of any references to Trudy-Ann's best interest.

This Court's power to review the evidence is as broad as that of the hearing court, bearing in mind that in a close case, the factfinder had the advantage of seeing and hearing the witnesses (see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 NY2d 492, 499). Further, where, as here, the "record is sufficiently complete to make our own factual determinations" (Matter of Lillian R., 196 AD2d 503, 504), we may do so. Based upon our "independent factual review of the complete record" (Matter of Steward v. Steward, 25 AD3d 714, 715; see Matter of Allen v. Black, 275 AD2d 207, 209), which includes, inter alia, two hearing transcripts and an affidavit from Trudy-Ann, it is evident that her best interest would be served by the appointment of Alcie S. as her guardian (see Matter of Stuart, 280 NY at 247; cf. Eschbach v. Eschbach, 56 NY2d 167, 172-173). Accordingly, we appoint Alcie S. as the guardian of Trudy-Ann.

The Family Court also improperly denied Trudy-Ann's motion for the issuance of an order making a declaration and specific findings that would allow her to apply to the USCIS for special immigrant juvenile status—a gateway to lawful permanent residency in the United States. Specifically, the Family Court incorrectly found that Trudy-Ann had not established dependency on the Family Court, had not established that she was abused, neglected, or abandoned, and had not established that it would not be in her best interest to be returned to Jamaica. Pursuant to 8 USC §1101(a)(27)(J) (as amended by the Trafficking Victims Protection and Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5044) and 8 CFR 204.11, a "special immigrant" is a resident alien who is, inter alia, under 21 years of age, unmarried, and dependent upon a juvenile court or legally committed to an individual appointed by a State or juvenile court. Additionally, for a juvenile to qualify for special immigrant juvenile status, a court must find that reunification of the juvenile with one or both of the juvenile's parents is not viable due to parental abuse, neglect, abandonment, or similar parental conduct defined under State law (see 8 USC §1101[a][27][J][i]; Matter of E.G., 24 Misc 3d 1238[A], 2009 NY Slip Op 51797[U] [Fam Ct, Nassau County 2009]), and that it would not be in the juvenile's best interest to be returned to his or her native country or country of last habitual residence (see 8 USC §1101[a][27][J][ii]; 8 CFR 204.11[c][6]).

The "appointment of a guardian constitutes the necessary declaration of dependency on a juvenile court" for special immigrant juvenile status purposes (Matter of Antowa McD., 50 AD3d 507, 507). Since we have appointed Alcie S. as Trudy-Ann's guardian, Trudy-Ann is dependent on a juvenile court within the meaning of 8 USC §1101(a)(27)(J)(i). Based on our factual review, we find that the record fully supports Trudy-Ann's contention that her father abandoned her and her mother abused and neglected her and that, as a result, reunification with either parent is not a viable option (see Matter of Antowa McD., 50 AD3d at 507). Lastly, the record reflects that, in Jamaica, Trudy-Ann would have nowhere to live, and no means of supporting herself. Accordingly, it is clearly in Trudy-Ann's best interest to continue living with her aunt in the United States (id.).

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In a recent decision by Judicial Hearing Officer Stanley Gartenstein, the Court strongly considered the believability of a party's poverty claim in its award of maintenance and child support. In New York matrimonial and family law cases, it is essential to remember that Judges will examine an individual's expenses and lifestyle in determining maintenance, child support, and equitable distribution. Below find the text of the decision.

Judicial Hearing Officer Stanley Gartenstein

NASSAU COUNTY
Supreme Court

Judicial Hearing Officer Gartenstein

DECISION

J ¹ 's efforts to beat the system represent a new zenith in chutzpah. ²

After a long and bitterly contested trial, this complex litigation may best be summed up as a well crafted but legally bankrupt claim of "sudden poverty", a disease which seems to infect matrimonial litigants with particular frequency. Apart from the time, effort and expense to which J has put his wife to penetrate the smoke screen he has so skillfully created-and we must begrudgingly give him credit for that-his schemes are a house of cards constructed by a self-indulgent individual intent upon his own gratification at the expense of all those innocent persons who have given of themselves to him and who had a right to expect more.

THE MARRIAGE

The parties ("N' and 'J") were married in 1980 in a religious ceremony. There are three children, A, born XXXX; S, born XXXX; and E, born XXXX. A is past the age of emancipation; S will reach that age in less than a half year; E has XXXXX and XXXXX traits. She has undergone surgery for XXXXX.

JURISDICTION

This action was commenced on September 26, 2005. It has tortuously wound its way through the Court and been referred to the undersigned, a Judicial Hearing Officer, who conducted the trial upon a hear and determine stipulation. The trial commenced on June 1, 2009 and concluded on October 28, 2009. Closing submissions are now complete.

CHUTZPAH/CREDIBILITY

Because the "sudden poverty" defense makes credibility the central issue in any matrimonial action, we are called upon to assess the motives of the respective parties and their incentive or lack of it to color the truth or lie outright. Our insight into J must therefore, at least to some extent, be governed by the chutzpah he has demonstrated.

It doesn't take chutzpah to cheat on one's spouse. But J didn't just cheat on N. He diverted marital income to take his girlfriend on luxury vacations which he charged to a credit card knowing that the bill would necessarily come to his home and be opened by N. He refused to give up this meretricious affair or leave the marital home even after this action was commenced, insisting instead on humiliating N by carrying it on openly and notoriously while living under the same roof with her and the children.

Nor does it take chutzpah to claim poverty while bedecking oneself in $5,300 designer jeans from Tyrone's in Roslyn Village. But J's "explanation" would have the Court believe that these designer jeans in particular were purchased solely to comply with a one day per week dress-down code allegedly prevailing in his new work environment.

It doesn't take chutzpah to devise a scenario of "sudden poverty'. But J closed down one of New York's premier stationery stores on the eve of trial, thereby putting 24 faithful employees on the unemployment lines.

Nor does it take chutzpah to steal from one's own father. But J plundered his dying father's estate as he suffered from Parkinson's disease and lacked the physical and mental capacity to "lend" the money J claims to have "borrowed". And when caught by his father's executor with his hand in the cookie jar, J brazenly advanced the interesting proposition that N of all people should shoulder part of the responsibility to make restitution.

It doesn't take chutzpah to demand custody of the children. But J litigated for custody of two estranged sons who barely speak to him and as he was about to face cross-examination, his demand mysteriously evaporated.

Nor does it take chutzpah not to get along with one's in-laws. But J hired a detective to dig up actual or imagined dirt on his 84 year old father-in-law. This at the same time he was scheming to avoid paying maintenance by claiming that N's father, the very same 84 year old father he was trying to discredit, would obtain employment for her thereby taking him "off the hook".

It doesn't take chutzpah to claim poverty while maintaining membership in the exclusive Muttontown Golf Club. But J maintained his membership first; then took a leave of absence conveniently timed for his application for downward modification; then, after its denial, reinstated himself until the eve of trial; and then conveniently "canceled" so that he could again claim poverty.

These acts raise the bar. They establish a new standard in chutzpah, even for matrimonial actions.

AS

The issues of this litigation are so intimately interwoven with J's alter-ego business entity that the Court's ultimate decision will necessarily center on its assessment of that entity's inner structure. For this reason, detailed analysis of AS, J's alter ego, must constitute a required threshold to any decision addressed to the financial equities between the parties.

AS, a thriving retail and wholesale office supply on Madison Avenue and 40th Street in New York City, was founded by defendant's grandfather. It was then owned and operated by his father, B. J, representing the third generation, worked there, effectively assuming control during years in which his father grew old. He forced his brother S out of the business on one day's notice over some personal issue. He and his sister, J, now effectively own all the assets of AS in whatever form they now exist; J's husband and J now operate what remains of AS.

In view of J's pained outcry that AS is worthless, it is interesting that, "poverty" and all, he recently purchased his brother's 16 percent share of AS for $350,000

On the eve of trial, J, claiming that AS had suffered devastating losses which mandated that he close the store, reinvented the business with an elaborate structure which basically, notwithstanding his claims to being destitute, kept his flow of income intact while showing an illusory business decline. He accomplished this by closing his Madison Avenue store, making his business an independent contractor of one of the country's largest buying offices, WLG, into whose office he physically moved. In so doing, he took advantage of the tremendous discounts generated by WLG's purchasing volume while virtually eliminating overhead expenses.

J's new corporation is known as GM, LLC. He owns 51 percent thereof. He is also the owner of 50 percent of AS and 50 percent of ABC, a separate entity created to fill customers' demand for coffee and bottled water. It is claimed that AS's only income is from a licensing agreement with GM, the net effect of which provides that GM make certain payments for the good will, name, phone number, etc. of AS.

As pointed out in plaintiff's closing argument, J had certain concerns on the eve of trial:

1. He and his sister J were liable for a line of credit with HSBC in the sum of $250,000;

2. If his new business arrangement with WLG did not succeed, he would then be compelled to resume business with his former supplier, UN, to which AS had a running remaining balance of $474,480;

3. A $205,000 shareholder's "loan" which he could "repay" by distributing to himself and his sister tax free;

4. AS's $2,428,000 loss carry forward which would allow it to write off income, to the extent of this loss.

J's incorporation of GM was immediately followed by an independent contractor's agreement on its behalf with WLG on September 25, 2008 which provided that GM would purchase supplies through WLG which offered substantial purchase discounts. The contract provided that GM and WLG would divide gross sales revenues forty (40 percent ) percent to GM and sixty (60 percent ) percent to WLG. Additionally, for the first three years, GM is paid an additional bonus by WLG equal to ten (10 percent ) percent of the gross profit. WLG assumed payment for GM's staff salaries up to $35,000 per year for each million dollars of GM's gross annual sales. The contract with WLG provides that for the first year (October 1, 2008 through September 30, 2009) this amount would be based on $5 million of sales or $175,000 of salary paid to the GM staff. Thereafter, it is to be adjusted pro rata in accordance with the actual gross sales of GM.

GM, J, J, and a small staff then physically moved in with WLG and now operate from there.

Following execution of the contract, AS then delivered a promissory note (November 12, 2008) to its former supplier UN Stationers in the aggregate sum of $474,480. By its terms, as of February, 2010 the balance due thereon is $158,160. Although not required to do so, on November 15, 2008, three days following execution of the promissory note by AS, J personally guaranteed payment of it.

This assumption of personal liabilities furthered J's scheme to preserve the valuable assets remaining in AS, including the shareholder's loans and loss carry forward as well as the ability to structure other tax and business benefits.

On September 24, 2008, AS entered into a "Licensing Agreement" with GM (both totally controlled and dominated by J wherein GM agreed to pay $26,200 per month ($314,400 per year) to AS for the use of AS's name, telephone number, website and customer list. J admitted under oath that this sum was determined solely by him and that it was based upon AS's debt. ³

D, CPA, a respected evaluator, testified that the licensing fee of $26,200 per month was obviously established to enable GM to reduce its taxable income by deducting this so-called "fee" paid to AS as a business expense. AS could then offset this income from GM against its $2,428,000 loss carry forward. This results in a double deduction for D's related companies, and enables him to manipulate the taxable income of both entities in violation of IRS Code Section 1201.

In getting from Point A to Point B, AS suddenly changed the method of preparation of its December 2008 financial statement from a "review" standard, which requires investigation and verification of all financial information provided, to a "compilation" standard for the last financial statement dated December 31 2008. This latter standard is based solely upon J's representations concerning his financial transactions. He never produced a "reviewed", much less "audited", financial statement for December, 2008, the only six month period in which AS reported a "loss". ⁴

D prepared an analysis of cash flow of GM and AS. In the first year of operation, GM received $508,266 in commissions, plus a bonus of $132,465. Thus, its total income for the first year of operation was $640,733. After various deductions including deducting the so-called "licensing fee" paid to AS, the resulting total cash flow was $549,933. Fifty percent of this figure, viz, $274,966 would reasonably flow as income to J for the first year of operation based upon the assumption that the UN note would be paid in full. Plaintiff urges that this is the appropriate income to be imputed to J as the basis for her claim for maintenance and child support. She asserts no claim in equitable distribution to any part of this business, whatever format is in current use. Her closing argument points out that the balance due on the UN note is $158,160. J's own filings outline his tax refunds of $248,280 received (or shortly to be received) pursuant to his filings in the Fall of 2009. Accordingly, after payment in full of J's share of the HSBC line of credit ($125,000) being held pursuant to this Court's Order), he will have available, by reason of tax refunds, an additional $113,848, a sum more than sufficient to fully satisfy his obligations to UN. This would make available to his business entity a full line of credit which has been unavailable for years.

Assuming arguendo that J continues paying the so-called "licensing fee", he will then have the wherewithal to repay himself and his sister the outstanding shareholder's loans of $205,000 tax free any time he so desires. This will reduce the tax liability of GM by having it make payments to AS which bear no proportionate relationship to AS's assets and will artificially reduce GM's income so that AS will receive tax free income by deducting it against its $2,428,000 loss carryover. All this rests in J's uncontrolled discretion. He is in effect taking money from one pocket and putting it in another. He has masterfully manipulated the shadow entities created at his direction to present an illusion of legitimacy. Thus everything which has or will happen boils down to J and only J.

In the face of J's "sudden poverty" claim that his business has been in a downward spiral first because of 9-11, second because of competition from Staples, it is appropriate to note the amounts reported as business income on his tax returns as follows:

2000 $214,960

2001 $206,052

2002 $206,967

2003 $210,475

2004 $214,310

2005 $227,864

2006 $239,476

2007 $241,388

J's companies have also consistently logged increasing gross profits in the face of his claim that business was dramatically declining. The evidence shows that reported gross profits were:

2001 32.45 percent

2002 36.25 percent

2006 35.9 percent

2007 36.13 percent

2008 33 percent

During GM's first year of operation gross profit percentages were shown to be consistent with AS's as follows:

October 2008 32 percent

November 2008 34 percent

December 2008 30 percent

January 2009 32 percent

February 2009 32 percent

March 2009 32 percent

April 2009 30 percent

May 2009 31 percent

It is also painfully clear from the evidence that virtually all personal expenses, credit cards, bills, groceries, life insurance, disability insurance, cell phone, automobile, long term care, and commutation expenses for J have been paid through these business entities in a total expenditure which dwarfs his declared earnings.

The totality of the evidence paints a picture of J's undiminished wealth and an almost obsessive single-mindedness on his part to do N, his long-term wife and mother of his children, out of her just entitlement. His testimony, obviously contrived for the trial, was pedantic, often condescending. J made sure to lecture the Court about how his elderly father-in-law, as he tells it, the source of all his problems, ruined his life in some vague and unspecified manner. The Court was often called upon to strike his gratuitous remarks and cut off seemingly endless monologues. At one point, it became necessary to call a recess and instruct him to leave the courtroom temporarily and return "without the attitude".

It is indeed rare that a court is presented with a tissue of ready-made fabrications so extensive and far reaching that it literally mandates disbelief of a witness' entire testimony.

LIFESTYLE

Where, as here, the transcendent issue is maintenance, it is appropriate that the lifestyle of the parties be considered first. In this connection, it is relevant to point out that in the original enactment of DRL §236, et seq., the standard of living of the parties while married was listed as one of the enumerated factors to be considered by the trial court. The Legislature, later finding that consideration of lifestyle as one factor among many was "feminizing poverty', removed it as one of the in seriatum factors and inserted it in the preamble of subsection 6 thus granting it transcendent effect.

N's evidence of lifestyle was not effectively contraverted at the trial or in defendant's closing memorandum. Indeed, the thrust of J's closing argument once again disingenuously postulates without basis that the parties always lived beyond their means during their marriage. J's flow of income absolutely belies this. We therefore track herein plaintiff's recitation of the evidence as set forth in her closing argument.

At the time they were married, N and J moved to an apartment in New York. They immediately obtained full golf memberships at the Muttontown Country Club where they dined on weekends and where J would play golf. They also regularly dined at expensive New York City restaurants. On their many vacation trips, they hired private tour guides and routinely shopped at exclusive stores (Armani, Bottega Venetta, Gucci, Fendi, etc.).

N worked for her father in his jewelry business until their first child, A, was born on XXXX. Thereafter, she managed a Tiffany account part-time on recommendation from her father. She earned between $35,000 and $45,000 in 1989 and 1990 solely from commissions without relationship to time actually worked.

In 1988, N and J purchased a home and moved to Roslyn. The down payment came from proceeds of the sale of their New York City apartment and from gifts totaling $75,000 from N's parents and grandmother. N asserts no separate property claim for these monies.

In 1989, the parties gutted their home, adding 1,500 square feet (new kitchen, master bedroom and bath; windows and siding; new heating system; hot water heater and additional air conditioning zone) at an approximate cost of $300,000. In addition to the Muttontown membership, they also joined Pines Pool Club and the Atlantic Beach Club.

J and N employed a live-in housekeeper and sent the children to exclusive day and sleep-away camps. They also took lavish vacations-Vail, Colorado (rental of house and skiing); Lion's Head (approximately $12,000); Venetian Resort and Spa, Scottsdale, Arizona, ($10,000); Beaver Creek, ($12,000); Boca Raton, (numerous occasions); Disney World (numerous occasions); Sandy Lane, Barbados (five star hotel $12,000); Las Vegas, Ritz Carlton ($17,000); Italy: Hassler Hotel, Rome; Lugano Hotel, Florence; Bauer Hotel, Venice, ($18,500 hotels alone); Hawaii, Four Seasons Hotel ($11,500); Blacombe, Canada, Whistler Hotel, ($22,000); Anguilla ($22,000).

In May, 2005 N and J traveled to London twice to see a rock and roll group, purchasing tickets costing $800 each, (total concert cost $3,200, total with hotel, $15,000).

Needless to point out, J also took numerous trips with "friends," without N, including: Greece (with girl friend); Brandon Dune, Oregon; South Carolina (twice); Las Vegas, Bellagio Hotel (with girlfriend); Miravel Spa, Arizona (with girlfriend); Cancun; Sandy Hill, Nebraska; Miami (with girlfriend); South Carolina (golf trip). Numerous additional golf trips were elicited during trial.

N was primary caretaker of the children, responsible for the household's functioning. She was active in the children's education and sustained them in their medical issues which included A's XXXXX disorders, S's XXXXX and L's XXXXX, XXXXX and XXXXX.

N is 51 and in good health. J is 52.

Immediately prior to commencement, J entered into contracts and obtained estimates for additional renovation of the marital residence in an approximate sum of $100,000, to include the boys' bedrooms, new furniture, redoing the master bath and bedroom and redesigning the front entrance. He retained an architect (Spring, 2005) to carry these forth, while advancing a claim to the Court in bad faith that his business was failing. Indeed, when N learned of his extramarital affair, and upon his refusal to end it, it was N who stopped the work on the house and commenced this action.

N demands spousal maintenance of $5,416.67 per month ($65,000 per year) for fifteen years (citing DRL §236(B)(6)(a); DiBlasi v. DiBlasi, 48 AD3d 403), emphasizing her long-term marriage (cf. Chalif v. Chalif, 298 AD2d 348) and the luxurious standard of living enjoyed by the parties during marriage (Hartog v. Hartog, 85 NY2d 36 (1995)..

An award of maintenance, amount and duration thereof, is an issue vested in the sound discretion of the trial court.

In Hartog v. Hartog, supra, the parties, as here, were married for twenty years and were substantially the same age as N and J. Mrs. Hartog received substantial equitable distribution in excess of that which N's ultimate award will be here. The Court of Appeals reversed the Appellate Division's grant of non-durational maintenance to Mrs. Hartog, citing Domestic Relations Law §236, et seq. which required that the Court give special consideration to the marital standard of living. It reinstated the trial court's decision calling for non-durational maintenance owing to Mrs. Hartog's inability to become self-supporting at a level commensurate with the marital standard of living. Holding that the legislative history of the statute unequivocally demonstrated the legislature's intent with regard to the pre-separation standard of living, Hartog emphasized that

"…the Wife's ability to become self-supporting with respect to some standard of living in no way obviates the need for the court to consider the pre-divorce standard of living, and does not create a per se bar to lifetime maintenance."

To be sure, N is capable of earning some money now. She currently works in a clerical capacity in a doctor's office earning minimal income ($12 per hour). Her claimed 'contacts" in the jewelry industry, stemmed primarily from her aged father and have dried up. She is untrained and uncredentialed. N will never have the capacity to earn sufficiently to resume her pre-separation standard of living. In the face of N's testimony that she might be capable of becoming self supporting in a lesser period of time, we respectfully believe her estimate to be overly optimistic and not supported by reality.

The Court declines to follow the conclusions of defendant's vocational expert who testified at the trial which were speculative and apparently tailored to minimize an appropriate award of maintenance to N.

The Court of Appeals in Summer v. Summer, 85 NY2d 114 (1995), reversing an appellate reduction of non-durational to durational maintenance and reinstating the trial court's decision held that "because Supreme Court's determination that the wife is incapable of becoming self-supporting at a level roughly commensurate with the marital standard of living comports with the weight of the evidence, we reinstate its judgment insofar as it awarded the wife permanent maintenance."

In Phillips v. Phillips, 182 AD2d 746, the Appellate Division in this Department affirmed an award of non-durational maintenance to a forty-nine year old wife based on a twenty-nine year marriage in which, the wife served as homemaker and sacrificed her career to care for three children. The husband, an attorney, earned between $100,000 and $200,000, the wife $15,400 with little apparent likelihood that her salary would increase to a point where she could become self-supporting. This holding closely approximates the facts before us.

In Bogannam v. Bogannam, 60 AD3d 985, the Second Department awarded ten years' maintenance following a twenty year marriage (husband's earnings $200,000).

Finally, in Kriftcher v. Kriftcher, 59 AD3d 392 the Second Department held that

"…although the wife earned a teaching license during the course of the marriage, she is, at present, primarily a homemaker, who works only part-time as a substitute teacher earning approximately $10,000 per year…. Considering, among other factors, the standard of living of the parties during the marriage, the distribution of marital property, the health of the parties, the present and future earning capacity of both parties and the ability of the party seeking maintenance to be self-supporting…a maintenance award…for ten years is appropriate."

J's affidavit of Net Worth as of commencement, received in evidence listed the parties' monthly expenses at $28,521. On the eve of trial, his updated Net Worth Statement as of December, 2008 acknowledged "after-tax" monthly expenses of $20,341.34 ($244,092 per year). It included no expense for medical insurance, an additional cost to N to follow this divorce. DRL §236(B)(6)(11) as amended effective September 14, 2009, now requires the Court to consider "the loss of medical insurance" as a factor in awarding maintenance. ⁵

The Court has considered the mandatory factors made relevant by DRL §236, et seq. to the extent set forth without adhering to a slavish repetition thereof. N is awarded $65,000 per year as demanded based upon her needs and expenses as conceded by J in both sworn net worth statements. The parties' home has been sold. N has moved to an apartment with the children. Her rent and expenses while deviating from those listed in connection with the house by J in his net worth statement, do not appreciably alter her need for the award as requested.

Notwithstanding the request for 15 years of maintenance, N will reach the age of full eligibility for Social Security in 14 years on her 65th birthday. The duration of our maintenance award to her differs slightly from her request in that our award runs to her 65th birthday, no later.

While maintenance is usually taxable to the wife unless stated to the contrary by the Court, the Appellate Division in this Department has ruled that any award relieving the recipient spouse of taxable liability for it must articulate a reason (cf. Grumet v. Grumet, 37 AD3d 534). The award of maintenance herein to the wife shall be tax free to her. We rely here upon the testimony of D to the effect that J's scheme with reference to "goodwill" payments to ASs is illegal under the Internal Revenue Code. We believe it inconsistent with public policy to provide him with yet another outlet to minimize the entitlement of the taxpayers to their fair share of his earned income. We do not perceive the morality of rewarding him for this dubious practice by providing yet another opportunity for him to manipulate his funds to the detriment of the taxpayers.

J's true income as projected by D is $274,966 less FICA and Medicare totaling $10,311. Deducting $65,000 awarded herein for maintenance from J's base salary for CSSA purposes, yields a total of $199,655. It is conceded that both boys are emancipated leaving L as the only child requiring an order of support. The statutory percentage of 17 percent is applied to the CSSA net income (less maintenance) of $199,655 yielding a total figure for child support of $34,000 per annum. We respectfully believe it appropriate to apply this percentage, notwithstanding the statutory "cap', to the total base figure in view of L's special needs. All applications to impute income to N for purposes of computation are denied as being without basis in fact or law.

We reiterate here that which we have indicated during trial that from a review of the credible evidence, D's figure is a conservative estimate not approaching our own estimate of J's actual income. Nevertheless, we are bound by propriety not to exceed the demand on record, lacking any showing that the demanded amount is inadequate to meet L's needs.

AUXILIARY DIRECTIVES

All monies now being held by J's attorneys in escrow or otherwise shall be transferred into custodial accounts and earmarked for college for S and L with N as custodian pursuant to stipulation dated August 21, 2009. Should these funds be inadequate to pay tuition, room and board in accordance with standards prevailing at SUNY (Binghamton campus), all additional funds shall be paid by the parties on a 90/10 allocation basis. This order is effective retroactive to the Fall, 2009 semester.

J is directed to obtain and keep in effect a life insurance policy of $4,000,000 to secure maintenance and child support payments. Duplicate premium notices addressed to N shall be arranged for by J.

J shall maintain medical and dental coverage for the unemancipated child and be responsible for 90 percent of all unreimbursed expenditures. To the extent feasible by law, no out-of-network providers shall be used without J's or, in the alternative, the court's approval.

J is ordered to pay the overdue sum of $18,250 to Doctor S for N's dental work. Failing same, the Court will direct entry of judgment against him upon appropriate application.

The funds now held by Oppenheimer representing an IRA of approximately $30,000 and a 401K in AS/GM of approximately $64,000 shall be divided equally. This directive shall be implemented by retention of Lexington consultants to draw appropriate QDRO orders with fees for same split equally between the parties.

N is awarded $60,699.50 representing 50 percent of the marital Madoff funds taken by J (cf. Exhibit 11) for his own purposes.

Counsel for defendant now holds $155,410 in escrow pursuant to written stipulation dated March 16, 2009. The husband's share of this escrow fund has been properly disbursed in accordance with this stipulation. The balance thereof belongs to N and shall be distributed accordingly.

During the trial, J moved for downward modification in the face of a "so ordered" stipulation to the effect that the applicable standard for modification would be "extreme hardship" and the further fact that he had already unsuccessfully moved for this relief once. This second motion which had been referred to the trial by the undersigned is denied.

The parties have disposed of the marital domicile by sale. A stipulation dealing with distribution of various sums of money not necessarily pertaining to the sale itself has been executed by the parties and is approved.

COUNSEL FEES

Plaintiff's application for counsel fees to the firm of B and R in the sum of $340,000 is granted based upon the equities of the case (O'Shea v. O'Shea, 83 NY2d 187); the relative circumstances of both parties (Charpie v. Charpie, 271 AD2d 169); the added burden imposed upon counsel by unreasonable and groundless claims (Brancoveanu v. Brancoveanu, 177 AD2d 614); the presence of imputed or hidden income (Steinberg v. Steinberg, 59 AD2d 702); the unnecessary prolongation of litigation by one party (Ventimiglia v. Ventimiglia, 36 AD2d 899); and attempts by one party to frustrate, discourage and otherwise intimidate the other (Schussler v. Schussler, 109 AD2d 875; Lowinger v. Lowinger, 245 AD2d 490). Counsel has fully complied with the appropriate rules promulgated by the Office of Court Administration. We find that counsel possesses the stature, ability, reputation and respect appropriate for these fees. The time charges claimed for performance of counsel's duties are reasonable, even conservative.

All claims, if any, for arrears or for retroactive effect to be extended to any order herein shall be brought on by motion in writing with supporting affidavits computing same with specificity prior to submission of final judgment.

Stipulations between the parties resolving a number of issues as presented with final submissions are approved. All issues addressed in the final submissions unresolved as of that time are now deemed fully resolved.

All prayers for relief by either party not addressed by this decision are hereby denied.

The foregoing constitutes the decision and order of this Court.

Settle final judgment on notice.

The Clerk shall retain all exhibits pending expiration of time to appeal.

1. Removed.

2. "Chutzpah (Yiddish)-unbelievable gall; insolence; audacity; cheekiness, impertinence, impudence, crust, gall, the trait of being rude and impertinent, inclined to take liberties."

Collins English Dictionary-6th edition, 2003

The Court of Appeals has encountered the necessity of expressing itself with this metaphor (cf. People v. Campbell, 97 NY2d 532).

3. D, CPA, an expert witness who evaluated those entities prior to trial, citing IRS Code Section 482, testified that the only legal method to determine the value of a licensing fee is upon an arm's length transaction for the value of the licensed assets, a proposition whose validity was acknowledged by J's own bankruptcy expert witness SP, Esq. Thus, if J is to be believed that AS "went out of business" or had "no value" as of the Fall of 2008, there could be no "fair market value" for the Licensing Agreement and certainly no consideration for it. Furthermore, the "Licensing Agreement" permitted the parties thereto, AS and GM, both alter egos of J, to change the licensing fee at will.

4. AS's "reviewed" financial statements from 2000 through June 30, 2008 have been received in evidence.

5. In addition to any monetary award, J is directed to fully cooperate in N's attempts to obtain COBRA coverage. ¦

SUPREMECourt

J.H.O. Gartenstein

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.

Another issue is the custody of Louis, the 4-month-old son Bullock has just adopted. Joanna Molloy of USA Today writes:

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.

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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