Justice Rachel A. Adams

Decided: August 25, 2010

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In the context of this contested matrimonial action, the Plaintiff (Husband) moves by order to show cause dated January 6, 2010 for the following relief: 1) an order directing the return of the parties' two children, A, age 7 and M, age 4, to New York State; 2) an order awarding the Husband temporary custody of the subject children; and 3) an order awarding the Defendant (Wife) reasonable visitation with the minor children within the State of New York. 1

The Wife opposes the Husband's application and cross moves by order to show cause dated April 9, 2010 for the following relief: 1) an order dismissing the Husband's application on the basis that New York is not the home state pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and for permission for the Wife to commence a custody proceeding in

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California, and 2) an order directing the Husband to pay all costs associated with Court appearances, including but not limited to transportation costs including airfare, car rentals, hotel costs, and daycare.

In opposition to the Wife's cross motion the Husband moves by order to show cause dated June 10, 2010 for the following additional relief: 1) an order directing the Wife to immediately return the children at the conclusion of the 2010 school year; 2) an order directing that the minor children reside with the Husband pending the jurisdictional decision of this Court, 3 and)an order requesting that the Superior Court of the State of California vacate any and all orders issued and to stay all proceedings now pending in California and to defer issues of support, custody and parental access to this Court. 2

These applications represent the second request for relief brought by the Husband.

On July 17, 2009 the Husband filed two separate petitions in the New York State Family Court Kings County requesting the immediate return of the children to New York. (Docket Nos. V-21695-6/09 and V-21681-2/09). Those petitions were withdrawn without prejudice by the Husband prior to disposition. He alleges that the petitions were withdrawn on his mistaken belief that the parties could resolve their differences without court intervention.

The matrimonial action was commenced by the Husband on December 29, 2009. Both the summons for divorce and the Husband's first order to show cause requested that the children be returned to New York. The Wife appeared pro se in the New York action on January 19, 2010 and

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the preliminary conference and the order to show cause were adjourned to February 25, 2010. On the adjourn date the Wife retained counsel and appeared by Elliott Green, Esq. The preliminary conference was conducted and the preliminary conference order stated that the issues of custody, parental access, child and spousal support, and equitable distribution were marked unresolved. The order further provided that the issue of jurisdiction to determine custody was unresolved. (See Order dated February 25, 2010).

A separate temporary order was simultaneously issued, on the consent of both parties, which directed that the Husband provide interim child support and for him to continue to pay the children's private school tuition. That order included a direction that the Husband pay the lease payments on the Lexus automobile and for the Wife to remain responsible for the insurance, registration and operating expenses of the Lexus. The consent order provided that the children would remain with the Wife in California and that the Husband would have temporary access to the children in California and that he be permitted access time in New York at times and under conditions to be mutually agreed upon. The Husband was provided daily phone access, and the Wife agreed to withdraw without prejudice a pro se support proceeding she had filed in California. The order was without prejudice to the parties' respective jurisdictional claims.

On April 8, 2010 this Court issued an order directing that monies be placed in escrow to cover the costs of both an Attorney for the Children and a forensic expert. Thereafter, on April 12, 2010 the Court appointed Brad Nacht, Esq. to represent the children.

On April 22, 2010, although represented by counsel in New York, the Wife appeared pro se and filed an ex parte application in California requesting emergency relief. Her order to show cause was heard by the Hon. Mark A. Borenstein. As a result of that application the Wife was

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granted a temporary order of sole legal and physical custody of the subject children. (See California order dated April 22, 2010).

Upon receipt of that order this Court communicated with the California court as required by DRL§75 - i and forwarded copies of all orders issued by this Court, reported back to the parties and counsel the substance of those communications, and provided access to counsel of the confirming e-mails. In recognition of this Court's priority to determine which state is the "home state" the California court deferred to New York. (California order dated June 15, 2010).

Accordingly, by order dated May 25, 2010, this Court scheduled a hearing on the issue of jurisdiction to be conducted on August 3, 2010. In partial response to the Husband's June 10, 2010 order to show cause, he was granted interim relief by order dated July 6, 2010, which by its terms continued all interim orders and granted him additional parental access time in California with leave to enforce the order in a court of competent jurisdiction in California. 3 The Husband did not exercise his right to July visitation in California, and the children were produced by the Wife in New York, as directed, to meet with their lawyer prior to the scheduled hearing and thereafter to spend time with the Husband in New York.

At the hearing, the Wife appeared pro se, the Husband was represented by counsel and the children were represented by their attorney. 4 Both parties testified on their own behalf; no other witnesses were called. At the conclusion of testimony the hearing was adjourned for the submission of closing statements. Both parties and the Attorney for the Children submitted statements in support of their respective positions.

FINDINGS

Many of the essential facts are not in dispute. What follows is the Court's findings of fact, as relevant herein, after having the opportunity to assess and weigh the demeanor and credibility of the witnesses and the evidence submitted in support of their respective positions.

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The parties have been married since January 16, 1999 and have resided in New York since prior to their marriage. The two subject children were born in New York and resided there exclusively since their births in 2003 (A) and 2006 (M). Until July 2009 the children attended daycare and private nursery schools in Brooklyn, New York and any child care providers were New York residents. Their well baby and sick medical care was received in New York as well. While in Brooklyn the family resided in an apartment owned and furnished by the maternal grandmother. Any social interaction was engaged in New York as well.

The Husband and Wife have extended family living in California, and they reside in close driving proximity to the Wife. Both sets of grandparents and the Husband's two sisters live in driving distance to the Wife's apartment in California. One of the paternal aunts visits with the children and has brought them to visit their paternal grandparents. The maternal grandparents assist in providing child care for the children, and the children sleep over at their grandparents' home once a week and are taken to school by them the following day. While the maternal grandmother owns properties in New York, neither parent has close family living in Brooklyn or elsewhere in New York City.

The Husband is a dentist and is currently self employed. He is licensed to practice dentistry in both New York and California. The Wife is a former medical resident now engaged as a research assistant at UCLA. 5 At the suggestion of the Wife's mother, and to assist the Wife in obtaining employment, the parties agreed to relocate to California. On July 7, 2009, the Wife and children left New York and moved into an apartment in Sherman Oaks, California for which the Husband signed the lease. The Husband agreed to and participated in the plans to relocate, and the move reflected what the Husband assumed to be their mutual decision. In particular, the Husband asserted that the move reflected an economic decision to assist the Wife's efforts to find employment. The Wife had been out of work for approximately two years, and she needed

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to find other employment which might make it possible for her to apply to another residency program so she might complete her medical training.

The children were enrolled and attended private schools in California for which the Husband paid in full and the Lexus automobile was shipped to California to be used by the family upon their arrival.

The Husband remained in New York after the Wife and children moved in order to earn additional income prior to joining his family. However, approximately two weeks later and prior to his leaving New York, the Wife advised him that she had found someone else and did not want him to relocate to California in order to live with her and the children. She wanted a divorce. Shortly thereafter the Husband did leave New York and traveled to California; however, as he was not welcome to stay with the Wife, he remained at his parents' home. Although he understood he was not wanted in the Wife's home he remained in California for approximately six weeks in order to look for employment and attempt to reconcile with his Wife. He was unable to find work as a dentist, and he returned to New York.

Upon the Husband's return to New York he vacated the former marital residence as it was owned by his mother-in-law, and he has since been sued for alleged arrears in unpaid rent. The furniture in the apartment belonged to his mother-in-law and was returned to her as well.

Monies that had been placed in joint bank accounts in New York had been removed by the Wife in anticipation of her move to California. While the Husband concurred in the decision to move the family to California, the Wife's undeclared intention was to separate from her Husband and remain in California with the children.

Since July 2009 the children have lived in an apartment in California with their mother and her boyfriend, "R." The children share their own room and use the family computer transported to California by the Wife. They have each attended school and/or day care in California

since they left New York. The Husband consented to the children remaining in California during the last school year.

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DECISION

New York has jurisdiction to make an initial custody determination if New York is the home state of the children at the time of the commencement of the proceeding or was the home state within six months prior to the commencement of the action. DRL §76(1)(b). 6

The ability to obtain jurisdiction and the propriety of exercising jurisdiction are two separate issues. The Court must make two determinations: first, that jurisdiction lies under DRL §76, and second, that succeeding provisions do not preclude jurisdiction or do not mandate a declination of jurisdiction in favor of another state. (See; DRL §76-f [inconvenient forum], §76-g [declined due to conduct], §76 - e [simultaneous proceeding in another state]).

As discussed above, these children have lived with both parents in New York for at least six consecutive months immediately prior to the commencement of the instant action. The divorce action was commenced December 29, 2009 with the purchase of an index number and the filing of a request for judicial intervention. (Evans v. Evans, 208 AD2d 223 [1995]). Although the divorce action was timely commenced, the Court notes that the Husband had also timely filed writs of habeas corpus and custody petitions in the Family Court Kings County within a few weeks of the children's relocation to California.

This Court thus concludes that it does have jurisdiction to determine custody as it is the home state of the children. However under the circumstances of this case, the Court must now address the California proceeding. The pendency of a proceeding in another jurisdiction does not mandate or justify dismissal. Rather, the Court must determine on the record that the foreign state is exercising jurisdiction in substantial conformity with UCCJEA. This Court is also mandated to communicate with the California court prior to determining which state's proceeding should take precedence. (DRL §75-i).

This Court has complied with the provisions of the relevant sections and has determined that California has adopted the UCCJEA and that the statutory framework in California and New

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York are substantially the same. Additionally, the communications between the courts need not be on the record; however, all parties have requested that they be permitted to review all e-mails exchanged between the courts and that application has been granted.

In the instant case the Wife filed an application for custody in California on April 15, 2010, approximately four months after the New York action was commenced. The California petition does not specify that there is a custody proceeding pending in New York, only that "he [the Husband] is now making attempts to return the children to New York, a reason why I am requesting a quicker service and hearing." In response to the Wife's California application, the court exercised "temporary emergency jurisdiction" and awarded the Wife temporary sole custody pursuant to California Family Code 3424. (California order dated April 22, 2010)

In deferring to this Court to determine jurisdiction, the California court stated that the determination was "without prejudice to Petitioner's [Wife's] presentation of any evidence that bears on the issue of jurisdiction or on whether California is a more convenient forum." (California order dated June 15, 2010)

In order for this Court to determine if New York is an inconvenient forum, the Court must address the delineated factors set forth in DRL §76-f. 7

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In analyzing the facts as testified to by the parties the Court finds that there are no child protective issues and no domestic violence. The children have resided in California for one year on the consent of the Husband. Although his initial consent was not an informed consent, he later agreed that the children should continue their school year in California without disruption. He also withdrew without prejudice his application for a writ of habeas corpus which if heard would have addressed the children's removal from the jurisdiction prior to their attendance in school and possible acclimation to their new home.

The distances between the two courts, New York and the court that would assume jurisdiction, as measured by MAPQUEST, is 2,787 miles. The Court does not have a significant amount of information regarding the parties' relative financial circumstances. Neither party has submitted complete financial information to the Court; however, while both parents are employed, the Husband is working as a dentist while the Wife is working as a research assistant at UCLA and at Weight Watchers. The Husband testified that he understood that it was less costly for one party to travel to California than for three to travel to New York. The Court finds however that Husband's compliance with the Court directives for payment of legal fees for his children has not been consistent.

Neither party agreed to which state should have jurisdiction. While the Husband agreed to the children's move, he was unaware that his Wife did not want him to move with them. While he continued to assert that New York had jurisdiction to determine custody, he withdrew his Family Court writs and consented to the children remaining in California during the school year.

In the lives of these very young children one year is significant and all current and relevant information is now in California. The children would need to be interviewed and

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observed by the court appointed forensic evaluator and would need to appear for an in camera hearing.

There is every indication that each court has the ability to decide the issues expeditiously and, after consultation with the Hon. Mark A. Borenstein, this Court is assured that the statutory scheme in California provides all the procedures necessary to present evidence on the issue of custody. This Court will forward to Judge Borenstein a copy of the transcript including the pre-trial colloquy of the Attorney for the Children. While acknowledging that same is not evidence, and was not considered by the Court, it does provide the California court with the most current report on behalf of the subject children. Upon receipt of this decision and order and the accompanying transcript both courts will have sufficient familiarity with the facts and issues in the pending litigation. 8 Brad Nacht, Esq. will remain the Attorney for the Children for the limited purpose of providing any information to the lawyer appointed to represent the children in California and will thereafter be relieved.

Considering the above factors, the Court concludes that New York is an inconvenient forum and that Californian is a more appropriate forum to determine the issue of custody. (Erlec v. Johnson, 58 AD3d 730 [2009]).

There is no dispute that New York has jurisdiction to address all the remaining ancillary issues in the matrimonial action and the Wife will have to address those issues before this Court by complying with court ordered discovery, appearing for compliance and pre-trial conferences and if not resolved, appearing for trial at such dates and times as the Court sets. While declining to exercise custody jurisdiction the Court still retains jurisdiction over the divorce. (Vanneck v. Vanneck, 49 NY2d 602 [1980]).

Accordingly, at the conclusion of the children's visit with the Husband in New York, the children are to return with the Wife to California to commence school. The pendente lite order of

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support is to remain in effect pending conclusion of the parenting issues now before Judge Borenstein. All remaining issues concerning the children (custody and parental access) are to be heard before the Hon. Mark A. Borenstein in the Superior Court of California, County of Los Angeles, Los Angeles, California.

Counsel for the Husband is to serve a copy of this order on all parties with notice of entry within fourteen days. This Court will transmit the order to the Hon. Mark A. Borenstein by facsimile and e-mail.

1. The Husband made additional requests for financial relief; however, as these requests are not pertinent to the within decision, they are not addressed herein.

2. For the purposes of this decision the Court has not addressed the ancillary issues raised in the pending motions as they are not relevant to the Court's determination on jurisdiction. Additionally the Court has made interim decisions which permitted the Husband to visit with the subject children in California during the month of July and denied the Husband's request to stay or modify the California orders issued by the Honorable Mark A. Borenstein.

3. All orders issued by this Court were faxed to the Hon. Mark A. Borenstein and receipt of same were confirmed by his Chambers by return e-mail to this Court.

4. At some time in July 2010, the Court received a substitution of counsel wherein Elliott Green, Esq. was relieved, and the Wife again appeared pro se.

5. The Wife's precise educational status is unclear. Apparently the Wife graduated from medical school and was in a residency program from which she was terminated. The Husband understood that she would continue to make efforts to complete her residency training and use her current position at UCLA to assist her in doing that.

6. Domestic Relations Law Art. 5-A codifies the Uniform Child Custody Jurisdiction and Enforcement Act. (UCCJEA)

7. §76 f. Inconvenient forum

1. A court of this state which has jurisdiction under this article to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the child or the child's attorney, or upon the court's own motion, or request of another court.

2. Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:

(a) whether domestic violence or mistreatment or abuse of a child or sibling has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(b) the length of time the child has resided outside this state;

(c) the distance between the court in this state and the court in the state that would assume jurisdiction;

(d) the relative financial circumstances of the parties;

(e) any agreement of the parties as to which state should assume jurisdiction;

(f) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

(g) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and

(h) the familiarity of the court of each state with the facts and issues in the pending litigation.

3. If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.

4. A court of this state may decline to exercise its jurisdiction under this article if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.

8. The August 3, 2010 transcript will be forwarded together with a copy of the within order; however, the transcript intermittently and incorrectly refers to statements made by the Attorney for the Children as statements made by the "Clerk." All references to Clerk should read as those of Brad Nacht, Esq.

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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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.).

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:

Therefore the Petitioner's objection is denied.

Notify Support Magistrate Ann Marie Loughlin, attorneys and parties.

PURSUANT TO SECTION 1113 OF THE FAMILY COURT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT' OF THE ORDER BY APPELLANT IN COURT, 35 DAYS

FROM THE DATE OF MAILING THE ORDER TO APPELLANT BY THE CLERK OF COURT OR 30 DAYS AFTER SERVICE BY A PARTY OR

1 LAW GUARDIAN UPON APPELLANT, WHICHEVER IS EARLIEST.

ENTER:

Hon. Gloria Sosa-Lintner Judge of Family Court

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:

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.

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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.