Opinion
XXXXX
01-06-2022
ANONYMOUS K., Plaintiff, v. ANONYMOUS H., Defendant.
The following e-filed documents, listed by NYSCEF document number (Motion 012) 5, 61, 62 were read on this motion to/for ORDER OF PROTECTION.
This matrimonial action comes before the court upon motion seq. 012 by Plaintiff-Wife [Anonymous K] ("Plaintiff", "Wife", "Mother") for an order:
Parties' names, children's names, and the children's sport have been redacted/changed to protect their privacy.
a) Pursuant to DRL§§ 240, 252, granting an emergency temporary full stay away order of protection against Defendant [Anonymous H] ("Defendant", "Husband", "Father") on behalf of the children, Bill [redacted], date of birth [redacted] 2007, and Alan [redacted], [redacted] 2009;
b) Reappointing the attorney for the children, Dawn Cardi, Cardi & Edgar LLP, 99 Madison Ave 8th floor, New York, NY 10016, (212) 481-7770;
c) Reappointing the forensic evaluator, David L. Wolitzky, Ph.D., 100 Bleecker Street, Suite 24F, New York, NY 10012, (917) 952-4477;
d) Pursuant to DRL § 240, directing a modification of the Parenting Plan and Custody Stipulation signed and Stipulated in October of 2016;
e) Granting Plaintiff leave to supplement her application to include any additional requests for relief based on material facts that occur or only become known to her between the date of the making of this application and the time of submission or hearing on this application;
f) Pursuant to DRL §§ 237, 238, 252(1)(f), directing Defendant to pay the reasonable costs and fees incurred by Plaintiff in the making of this application and the enforcement of any order resulting from it, as well as the enforcement of the relevant provisions in the parties' 2016 Custody Stipulation and Order;
g) Granting Plaintiff such other, further and different relief as the Court may deem just and proper.
During the extensive hearings conducted upon the motion, Defendant [Father] sought enforcement of his parenting rights set forth in the parties' so-ordered custody agreement (the "Agreement" or "Stipulation"), acknowledged by the parties on October 17, 2016. The parties were represented by highly experienced counsel when the Agreement was signed. Since that time, the parties engaged in a process of completing discovery and attempting settlement, made painstaking primarily by Husband's actions in not complying timely with discovery, failing to pay child support and not complying with requirements of multiple pretrial conferences, in addition to both parties filing an array of motions. Both parties' counsel withdrew during this period and Wife has proceeded in the instant hearing pro se. Husband did so as well, until he retained counsel, who was representing him in the financial trial segment of this action, late in the instant hearing.
The subject children herein are now 14 and 12 years of age, respectively. The parties have been living apart for more than 8 years. The Agreement provides in pertinent part that [Mother] shall have primary residential custody of the children subject to [Father's] parenting time, Art. II, par. 4, as specified therein, including, but not limited to, alternate weekends and Wednesday overnights. Importantly, during the summer vacation, as defined therein, each parent shall have two non-consecutive Monday through Friday vacation weeks with the children, with the remainder of the summer divided pursuant to the regular parenting schedule. Art. II, pars. 16, 17. Transitions were to occur at the lobby or building entrance of the residence of a particular parent depending upon the schedule. Each parent has the right to attend all of the children's extracurricular events and competitions. Par. 83. The parents agreed to joint legal custody of the children, Art. III, par. 32 in the context of a detailed decision making protocol, with spheres of final decision making carved out in the Agreement.
Very importantly, the Agreement provides that, "[t]he Parents agree to refrain from physically disciplining the Children, including but not limited to forcefully grabbing, hitting, and spanking the Children. The Parties agree to refrain from bullying or threatening the Children with physical harm." Par. 92. The parties agreed to a non-disparagement clause, par. 95. The Agreement provided that each parent has the right to initiate communication with the subject children by telephone or Skype or equivalent when the children are with the other parent for up to 15 minutes at a specified time, with the custodial parent having the obligation to utilize best efforts to make the children available to speak with the other parent initiating the communication. Par. 98. Relatedly, each parent is required to "encourage, permit and facilitate unlimited daily communication (i.e. telephone, electronic system, text, e-mail, etc.), during reasonable hours, initiated by a Child to the other Parent." Par. 99 (emphasis added).
Through the instant motion, Wife seeks, inter alia, to modify the custody agreement and to obtain an order of protection on behalf of the children based primarily upon allegations of abuse by Husband against Bill and Alan. The court granted the motion to the extent of re-appointing Dawn Cardi, Esq. as attorney for the children and conducting an extensive evidentiary hearing upon the motion. The court also conducted two in camera interviews with both children, the first taking place on August 18, 2020, shortly after the initial return date of the motion, and the second on June 30, 2021, toward the conclusion of the evidentiary hearing.
For the court to modify the custody agreement in the absence of an agreement between the parties to do so, it is well established that [Mother] would have to make a sufficient showing of a material change of circumstances, and then carry the burden of proving that the change would be in the best interests of the children. Yvette F. v. Corey JG Sr. , 177 AD3d 549 [1st Dept 2019]. See also Matter of Jose M.C. v. Liliana C. , 150 AD3d 514, 514 [1st Dept 2017]. "In order to modify an existing custody arrangement, there must be a showing of a subsequent change of circumstances so that modification is required to protect the best interests of the child. A parent seeking a change of custody is not automatically entitled to a hearing but must make some evidentiary showing of a change in circumstances sufficient to warrant a hearing." Gurewich v Gurewich , 58 AD3d 628, 629 [2d Dept 2009] (emphasis added). The court, therefore, must focus on the showing, if any, of a change in circumstances that is subsequent to the prior order, in this case the October 2016 custody and parenting agreement. See Sergei P. v. Sofia M. , 44 AD3d 490, 490-91 [1st Dept 2007] ("A parent seeking a change of custody is not automatically entitled to a hearing. Where parents enter into a formal custody agreement, it will not be set aside without a showing of a sufficient change in circumstances since the time of the stipulation, and unless the proposed modification is shown to be in the best interests of the child. Furthermore, no court will modify such an order of custody granted on stipulation, absent such showings."); see also Tarpey v. Tarpey , 77 AD3d 912, 913 [2d Dept 2010] ("Where a voluntary agreement of joint custody is entered into, it will not be set aside unless there is a sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interests of the children. Furthermore, a parent who seeks a change in custody is not automatically entitled to a hearing but must make some evidentiary showing sufficient to warrant one") (citations omitted).
As is often the case, the same evidence here established both the material change of circumstances and the need for change in the custody and parenting plan. Throughout the evidentiary hearing, the court sought to encourage stability in the children's lives to the extent practicable under the particular circumstances of this case. As the Court of Appeals stated in Obey v. Degling , 37 NY2d 768, 770 [1975] :
Custody of children should be established on a long-term basis, wherever possible; children should not be shuttled back and forth between divorced parents merely because of changes in marital status, economic circumstances or improvements in moral or psychological adjustment, at least so long as the custodial parent has not been shown to be unfit, or perhaps less fit, to continue as the proper custodian. The rearing of a child requires greater stability than a roller-coaster treatment of custody.
Upon receipt of the motion, the court ordered an investigation of the allegations ("COI") by ACS and directed ACS to appear pre-hearing and during the hearing to present testimony. From the court's perspective, the ACS investigation and testimony by the case worker were lacking in both skill and analysis, although the court does appreciate the efforts by both the ACS court liaison (as always) and child protective specialist ("CPS") to respond on an expedited basis to the court's requests for information concerning the allegations underlying this motion.
Both parties testified at great length during the evidentiary hearing. Natasha Cayemitte, CPS, ACS, testified as the court's witness. Ms. Cayemitte testified in pertinent part that the children did not display any marks or bruises and did not express fear of their father, but stated without explanation that they did not want to see their father. Ms. Cayemitte testified that the children did state that their father pinned them down about 15 times, but the child protective specialist did not re-interview Father after hearing that statement from the children. Upon cross-examination by the attorney for the children, Ms. Cayemitte acknowledged that the children had told her that Father had turned off all methods of communication with the outside world during the time of the alleged physical abuse and that Father had told them not to contact their mother. This, however, did not raise any concerns by the witness for the safety of the children, the CPS stated. The CPS took a photograph of Bill's ankle but did not think that this indicated any abuse. According to Ms. Cayemitte, both subject children informed her that they were trying to flee from their Father, and Father pushed the door open, apparently catching Bill's foot. The witness testified that she did not ask the children why they did not want to have an overnight with Father because the children had stated that they did not want to see him at all. Ms. Cayemitte did not ask the children why they did not want to see Father at all. Although the court does appreciate the effort made by ACS, the interviews of the children and of the parties appeared superficial in nature, and without appropriate follow-up questions. Moreover, the in camera interviews revealed a very reasonable basis for the children not wanting to state to ACS or police officers why they did not want to spend an overnight with or even see their Father.
[Mother] testified credibly as to the children's repeated and consistent complaints of physical abuse by [Father], primarily consisting of pinning them to the ground, screaming in their face, shoving them, or otherwise engaging in intimidating conduct when [Father] perceived that the children were not listening to him or were responding in a manner that he deemed inappropriate, or at least not sufficiently respectful. It was not until the August 2020 incidents that Mother learned from the children the extent of this physical and emotional abuse. [Mother] testified as to the boys' frightened pleas for assistance and not to be forced to spend time with their father following several violent episodes by the Father. [Mother] testified as to her deep concern for the children based upon [Father's] physical abuse of them, but what frightened her most was that her sons actually thought that they could physically fight back. Mother asserted that Bill would try to protect his brother and would get hurt. Plaintiff expressed her view that the situation had been worsening for some time in part because of COVID, as the children were indoors with their father during his parenting time much more than previously and there were not the same outlets, such as, for example, playing baseball extensively, as the children had been doing for some years.
[Mother] testified as to the August 2, 2020 incident that immediately precipitated the filing of the instant motion. During a telephone call initiated by the children, [Mother] could hear [Father] yelling in the background as the children stated that their father was about to turn off the internet, which then did occur, after the children stated to Mother that they may have to flee Father's apartment. According to [Mother's] credible testimony, [Father] became enraged at Alan and charged at him, grabbed Alan's face and held him in a tight grip, shoved Alan to the floor and pinned Alan's knees beneath his own and proceeded to scream in Alan's face from only inches away. Although Alan screamed in pain, his father would not relent.
Mother testified that on the same day, Bill related that Father was angry with Alan and dragged him across the apartment to his room while the child was crying out in pain. Bill tried to intervene to protect his younger brother but hit his own head on the wall. Bill related to his mother numerous other similar incidents, during many of which Bill attempted to intervene to protect his brother, and during which Bill himself was elbowed in the head or was otherwise struck.
[Mother] testified credibly that Bill related that [Father] would remove the telephone cord for the landline and would disconnect the internet and/or wi-fi for the children's devices, effectively preventing the children from reaching out for help. According to the witness, the lack of access to the outside world during their parenting time with their father, particularly when their father perceived that the children were not obeying him or should otherwise be punished, when combined with the physical abuse and intimidation, made the children feel very insecure about spending time alone with their father.
The two sets of in camera interviews with both subject children were confidential, and were clearly highly confirmatory in nature. As plaintiff related, defendant's actions effectively prevented the children from contacting their mother during their father's parenting time, essentially making the children prisoners in their father's apartment. Among other concerns, this conduct directly contravened the parties' parenting agreement, which required Father to ensure the ability of the children to reach Mother during their parenting time with Father.
The instant motion is not the first time that Mother has raised the issue of Father's physical abuse or threats of abuse directed toward the children. The underlying Agreement, as described above, was predicated upon consistent allegations of Father's abuse of the children. The credible evidence supports Mother's testimony that during times when the children were, in Father's view, disrespectful or disobedient, Father would scream in their face, shove them, pin them to the ground making them unable to move, and otherwise act in an intimidating manner. This occurred on multiple occasions over an extended period of time. The court credits [Mother's] testimony based upon the logic and consistency of her testimony, as well as upon the court's observation of her demeanor while testifying. Carlos C. v. Eva P. , 190 AD3d 421 [1st Dept 2021] ("Respondent cites no authority in support of her argument that the Lincoln hearing violated her due process rights, and the court properly considered the children's in camera testimony in awarding legal and physical custody to the petitioner (see Matter of Lincoln v Lincoln , 24 NY2d 270, 247 N.E.2d 659, 299 N.Y.S.2d 842 [1969] ). The court also properly found that the children's out-of-court statements, which related to abuse and neglect, were admissible in a custody proceeding, pursuant to Family Court Act § 1046(a)(vi), because they were corroborated by each other's Lincoln testimony and the father's testimony about his observations of the petitioner's treatment of the children (Matter of George A. v Josephine D. , 165 AD3d 425 [1st Dept 2018] )." Id. at 422.
Even during this extended hearing, where both parties, the court and the attorney for the children all strove to repair the relationship between the children and their father, [Mother] made great direct personal efforts to facilitate the Father-children relationships. Despite the efforts of others to facilitate Father's relationship with the children, Father continued to engage in a manner that reasonably resulted in further distancing between Father and children. For example, on or about September 11, 2020, Father saw the children for the first time since the August 2020 incident. The boys were to have dinner with their father. The children had sandwiches with Father and spent about an hour together and then wanted to return home. Father insisted that they go to Pier 40 and the children complied. When the children indicated that they did not want to throw a ball around, Father told them that he would tell their baseball coaches that they did not want to play and would embarrass them. That evening, [Mother] stated, [Father] threatened to call the police on several occasions.
Plaintiff testified further that the next day, Father, as planned, brought the boys to and from their baseball practices. The children ate dinner with their father and wanted to return home. Father insisted that they go for an extended walk instead. When Alan complained about the length of the walk and insisted that he wanted to go home, Father said that he would call the police. There was much testimony during the trial as to a very close relationship Father enjoyed with members of the local police precinct and how Father used these relationships to his advantage to intimate Mother and the children. The children, nonetheless, turned around and walked home. Father then called from the police precinct with an officer who was apparently a friend of his and demanded that the children be brought to the precinct immediately as he was about to file a police report. The children refused to go to the precinct and Father filed a police report.
Arrangements had been made for the following day for Father to spend time with the children at one of the children's baseball games in Orangeburg, New York. The children did not feel comfortable driving alone with their Father and asked Mother to drive them to the game, which she did. The children insisted that Mother stay during the game and she waited for them in the parking lot. Alan played in his game while Bill waited on the sidelines. Bill had asked Father several times for permission to call his mother but his father refused to permit a call. After Bill asked Father several times, Father lunged at Bill with his fist and shouted "No!!!" [Mother] related that Bill came to her in tears, quite shaken up. Bill declined to have dinner with his father that evening. Alan did so, purportedly because he was afraid that otherwise Father would call the police.
Among numerous other incidents to which Mother testified at trial, a September 19, 2020 baseball game on Long Island provided a setting for a disturbing incident. The game took place during Mother's parenting weekend. The boys did not want Father to attend, but Father insisted, telling his sons that this is not their choice. At the end of the game, the players were shaking hands and Father appeared to Alan from behind. Father spoke to Alan and Mother waited for a short period and then asked Father to give them some space. Standing next to Alan, Father told Mother to back off, stated that she was harassing him and that this was another form of alienation. Both Alan and Bill asked Father what he was doing there as they had asked him not to be present. Walking with the boys, Father was very vocal, stating that as this was extracurricular activity time, he had the right to be present, that Mother was trying to drive a wedge between him and the children and that it was inappropriate for Mother not to allow Father to have time with the children during this extracurricular event. This took place even though the children stated adamantly that this was not Mother's idea, but rather was their own wish. The children were upset that Father had caused a public scene.
When the children spent time with their father during the weekend of August 14-16, 2020, the children left their father's home on their own. When they arrived at Mother's house, Mother called Father to inform him that the children were at her apartment. Father demanded that the children come down to him as the police were on their way. The police arrived and the children gave the police their account of what had occurred at their father's home during that weekend. The children told their mother that they felt so desperate after spending time with their father and both stated that they wanted to kill themselves. Bill stated that they could not go back to the way things had been, referring to the parenting schedule set forth in the Agreement. According to Mother, at the time of the hearings, the children were at their breaking point.
Both parties related a variety of incidents or times when they claimed that the other had violated the 2016 parenting agreement, had disparaged the other parent to the children, or had otherwise done something wrong as a parent over the last decade. While these incidents were indicative of generalized hostility between the parties and some represented day to day decisions that may have reflected, for example, a request by one of the children to have a sleepover with a friend during the other parent's parenting time, and which incidents should have been addressed in a different manner, the primary incidents that reflect a material change of circumstances are those surrounding the types of Father-children interactions described above. It makes little difference that Mother sent one of the children to a baseball with a wrong article of uniform compared to the credible allegations of Father's physical and emotional abuse of the children described above. Although the court generally credits Mother's testimony, neither side was 100% accurate during their testimony, with both parents at times providing evasive and/or inconsistent testimony. With respect to the primary incidents of Father's abusive conduct toward the children, however, the court found Mother's testimony credible and sufficiently corroborated. Although Father had denied any physical abuse of the children, the attorney for the children presented a video and transcript (AFC Exh. 52), from an incident in 2016 in which Alan was screaming in distress, with Father holding his hand over Alan's mouth, treating Alan very roughly and Mother telling Father that she had told him time and time again not to be so rough with Alan. Another video presented by the attorney for the children (AFC Exh. 53) showed Father grabbing one of the children by the neck and pulling him down while telling the child to put something away.
Mother credibly testified as to Father's destructive conduct during and after a type of family therapy that Mother had arranged to assist the children to address their relationship with their Father. Through Mother's efforts, Dr. Richard Bock worked in 2018 with the family, focusing upon the children's relationship with their father. Father did not assist with Dr. Bock's fees, although he participated in some of the sessions. Dr. Bock encouraged the children to speak openly at the sessions about some of the things that Father was doing that bothered the children and the children did so. That evening, Father lectured the children about how wrong they were and that the problems were the children's fault. The children felt that Father retaliated against them for being open with Dr. Bock about their feelings and concerns. This therapy format then ended. Mother cites the children's concerns about engaging again in any type of family therapy with Father, as the children reference their discomfort with any therapy involving their father based upon this experience.
Father denied assertions of physical and emotional abuse, including excessive corporal punishment. [Father] ascribes the instant motion and [Mother's] testimony as aspects of Mother's plot to undermine his standing with the subject children. He asserts that [Mother] has been too permissive as a parent, particularly with respect to the amount of time she permits the children to play video games. Father spent extensive time seeking in a perseverative manner to establish that Mother unfairly excluded him from spending time with the children during baseball games and other times that were specifically allocated to Mother pursuant to the custody agreement. To the extent that Father's testimony contradicted that of Mother or the subject children concerning the material incidents in question, the court does not credit Father's testimony, based upon the lack of logic and consistency to his testimony, as well as upon observation of his demeanor during his testimony.
Frankly, the court found that Father has been dishonest in critical ways throughout this action and certainly extensively during the instant hearing, stating repeatedly and falsely under oath that he was not employed and could not afford to pay basic child support, mandatory add-on expenses for the subject children or attorney's fees, including for his share of the fees for the attorney for the children, or for needed therapy for the children. At one point he offered to pay $600 from a federal COVID-related stimulus check toward therapy for one of the children, stating completely without foundation that this was the only money he could afford to pay toward support of his children. During the financial trial that overlapped with the instant hearing, Father ultimately acknowledged earning at least several hundred thousand dollars during 2021.
While both parents proceeded pro se throughout most of this hearing, following revelation in the related financial trial concerning Father's income, Father's privately retained counsel from the financial trial also appeared in the instant hearing. Father had refused to pay his share of the attorney for the children's fees throughout this hearing, claiming that he was unemployed and unable to afford counsel, a repeated claim under oath that was clearly false.
Father's testimony and manner throughout the hearings indicated that he is essentially tone-deaf to what other people say or feel, believes that only he knows the correct manner to parent children, and demonstrated a profound inability to adjust to the individual needs and emotions of his children. The court is not a psychiatrist or psychologist, but it is clear even to a lay person that Father's very apparent and profound narcissism and inability to tolerate any view or behavior, even from his own adolescent children, that do not conform to his expectations, have had a deeply negative impact on his sons and his relationship with them. The younger son, Alan, has ADHD and Father appears to be intolerant to many of the manifestations of ADHD in his son, including sometimes an inability to sit still.
Contrary to Father's claims, the credible evidence does establish that for an extended period of time following the Custody Agreement, Father would respond to his children in a violent manner, pinning them to the ground during arguments, screaming in their face, turning off wi-fi in his apartment after removing the children's cellphones so that they could not call for help and otherwise physically and emotionally intimidating them.
It is Father who is by far primarily responsible for the deterioration in his relationship with the subject children. In a very recent case very much on point, DiNapoli v. DiNapoli , 2021 NY Slip Op. 07539, 2021 WL 6130308 [2d Dept Dec. 29, 2021], the court reversed the trial court's change of custody to the father. Explaining the standard for modification of a prior custody order, the appellate court stated:
"To modify an existing custody arrangement, there must be a showing of a change of circumstances such that modification is required to protect the best interests of the child" (Matter of Zeis v Slater , 57 AD3d 793, 793 ; see Matter of Molinari v Tuthill , 59 AD3d 722 ; Matter of Manfredo v Manfredo , 53 AD3d 498 ). "The factors to be considered include whether the alleged change in circumstances indicates that one of the parties is unfit, the nature and quality of the relationships between the child and the parties, the ability of each parent to provide for the child's emotional and intellectual development, and the effect of awarding custody to one parent on the child's relationship with the other parent" (Matter of Vargas v Gutierrez , 155 AD3d 751, 752 ; see Eschbach v Eschbach , 56 NY2d 167, 171-173 ).
Here, the Supreme Court's determinations to grant the father's motion so as to award him sole residential custody of the children and to award the father final decision-making authority lack a sound and substantial basis in the record. At the hearing, the father testified that he had regular visits with the children during the pendency of the divorce action until June 2018 when the visits ceased due to the issuance of an order of protection against him. The father testified that as early as September 2017, the parties' older child, then 12 years old, cried every time he picked her up for a visit. The father stated that as of the time of the hearing, he had "little or no relationship" with the children, which he claimed was "100 percent" the fault of the mother. However, the record reflects that the poor state of the relationship between the children and the father is due, in significant part, to the father's own conduct, including that the father was "dismissive" of the children's feelings during his therapy sessions with them (see Matter of Sanders v Jaco , 148 AD3d 812, 813-814 ; Matter of Roelofsen v Tiberie , 64 AD3d 603, 604 ). Further, despite the father's claims of parental alienation, the father acknowledged that in response to the parties' older child crying when the father picked her up for visits, the mother tried to encourage that child to stop crying and to go with the father on multiple occasions. Moreover, James Sellars, who supervised the therapy sessions, testified that the mother expressed that she wanted to "do whatever it took to have [the father] back in the [children's] lives on a regular basis," and Sellars opined that "[the mother] did everything in her power ... to encourage [the children] to verbally participate" in therapy sessions with the father.
Similarly, in the instant case, Father's poor relationship with his sons resulted directly and overwhelmingly from his own inappropriate conduct toward them. The court, the attorney for the children, and particularly Mother tried at length during these extended hearings to facilitate a better relationship between Father and the children. Both the attorney for the children and Mother went well beyond their required roles or duties to attempt to facilitate quality and safe parenting time between Father and the children, despite Father's repeated personal and persistent verbal attacks upon both Mother and the attorney for the children. For example, at the court's request, Mother has during these hearings facilitated dinners between Father and the children, sometimes attending part of a dinner with them. [Mother] recounted a dinner during which [Father] looked to her to assist when conversation with the children faltered. In another instance, Mother tried to redirect or counsel Father at one point when at the beginning of Father's dinner with Bill, Bill was not communicative and Father appeared frustrated. Mother counseled Father to think about happy things about which to engage with Bill, such as Bill's birthday. This led to a conversation where Father and Bill reached common ground, conversation flowed and Mother left.
[Mother] reported that during these hearings, the children often returned home very upset from dinners with their father. Mother testified that Father complained about seeing the boys together, that the children "gang up on him" and are unruly, and that he prefers to see one child at a time. Mother added, however, that Bill very much did not want to be alone with his Father as he does not have the emotional stamina to go head-to-head with his father at a dinner which is so emotionally draining for Bill that it reduces him to tears. Bill related to Mother that he preferred his brother to accompany him to dinners with his father in part to serve as a buffer. As of July 26, 2021, the last date of formal testimony in this hearing, prior to post-hearing submissions, there still existed many problems during Father's parenting time.
The court had from the inception of this hearing strongly urged Father to engage in individual therapy that was meaningful in nature, with an anger management component. At the very end of the hearing, Father stated that he was utilizing the services of Kenneth Neumann, apparently as a sort of parent coach with a therapeutic component and that Mr. Neumann's advice was beneficial for Father in relating to his children. As of the last day of his testimony, however, Father still was not taking responsibility for his role in the deterioration of his relationship with his sons; instead, he continued to claim that the problems were caused by Mother's alienation of the children from him. This claim is without merit. Indeed, Mother tried both prior to the instant hearing and throughout these proceedings directly to facilitate parenting time between Father and the children and, to some extent, succeeded. [Mother] expressed support for a positive relationship between the subject children and [Father], but only where the children were safe both physically and emotionally and were not bullied by their father. [Mother] engaged the boys in therapy, encouraged Father to engage in therapy, but made certain that foremost, they were protected from physical and emotional abuse by their father. [Mother] engaged in these positive activities despite herself being subject to much verbal abuse from [Father].
It appears that toward the very end of the hearing, perhaps because of assistance of counsel, Father was able to establish an improved relationship, at least with Bill. It is clear to the court that both parents love their children and that the children love both parents. Mother has acted appropriately most of the time to protect the children from abuse after trying repeatedly to mediate disputes between Father and the subject children, despite ongoing verbal attacks upon her by Father. At the time of the close of the evidentiary hearing, including the submission of post-hearing arguments, the children were not safe, either from a physical or emotional perspective, to spend overnights with their father. The parenting schedule must be modified to protect the children until such time as the children are sufficiently safe, both physically and emotionally.
Under these circumstances, the court grants Mother's motion to the following extent:
With respect to branch one of the motion, wherein Mother seeks a "stay-away" order of protection on behalf of the children against Father, the court agrees that a civil order is not sufficient to protect the children and that a final order of protection is needed to prevent Father from physically harming or threatening physically to harm the children. At a minimum, the credible evidence establishes that Father committed the family offense of harassment in the second degree, NY PL sec. 240.26, subsections (1) and (3) concerning each child. The court finds that issuance of a one-year final order of protection directing Father to refrain from assaulting, threatening, menacing or committing any family offense against the two subject children is appropriate. In addition, Father may not engage in corporal punishment of any kind with respect to the subject children. Defendant must not interfere in the children's use of their cellphone, i-pads or other electronic devices to the extent that the children wish to call their mother during Father's parenting time with the children, to ensure the children's physical and emotional well-being during their time with their Father. The court will enter a separate order of protection consistent with this decision and order.
The court has already granted branch (b) of the motion by re-appointing Dawn Cardi, Esq. as the attorney for the children. Despite much vitriol directed against her by Father, and Father's violation of the court order to tender his share of Ms. Cardi's fees, Ms. Cardi has worked diligently in the best interests of her clients to facilitate a safe and appropriate relationship between her clients and their father.
The court declined to re-appoint the forensic evaluator, branch (c). As a preliminary matter, at the outset of this motion and until nearly the very conclusion of the hearing, both parties indicated that they were unable to afford the fees necessary for reappointment of the forensic evaluator. Moreover, the court believed that a renewed forensic evaluation was not necessary, as the court could and did in fact gather sufficient information as to the salient facts through the parties' examination of relevant witnesses, the presentation of appropriate documents and multiple in camera interviews with the subject children.
Appointment of a forensic evaluator was not appropriate until it was determined that there was a material change of circumstances that required a renewed best interest analysis. King v King , 266 AD2d 546, 546—47 [2d Dept 1999]. As this court has found, there has been a material change of circumstances here that requires a renewed best interest analysis. In that renewed analysis, the primary issues here include which parent is in better position to meet the physical, emotional and educational needs of the [ ] children, provide stability and a safe home environment, and which adult is better able to avoid conflict between the parties and foster the children's relationship with the noncustodial parent. In the instant case, this question did not present "sharp factual disputes" upon which the report of a court-appointed forensic examiner could have shed light, Matter of Brown v. Simon , 123 AD3d 1120, 1122 [2d Dept 2014], lv. app. den. sub nom. Matthew B. v. Shana S. , 25 NY3d 902 (2015), quoting Matter of Shanika M. v Stephanie G., 108 AD3d 717, 718 [2d Dept 2013], and the court is confident that, following trial, the court had sufficient information from which it could make an informed, reasoned determination. Under such circumstances, appellate courts have affirmed the trial court's exercise of discretion to deny a request for the appointment of a forensic evaluator. Keyes v. Watson , 133 AD3d 757, 758 [2d Dept 2015] (citing Matter of Linn v. Wilson , 68 AD3d 1767, 1767-1768 [4th Dept 2009] ; Matter of Armstrong v. Heilker , 47 AD3d 1104, 1105 [3d Dept 2008] ; Matter of Sassower-Berlin v. Berlin , 31 AD3d 771, 772 [2d Dept 2006] ; Matter of Salamone-Finchum v. McDevitt , 28 AD3d 670, 671 [2d Dept 2006]. Thus, the court denies this branch of the motion.
With respect to branch (e) of the motion, both parties were permitted over the course of these proceedings to supplement their initial pleadings with additional materials.
With respect to branch (d) of the motion, the court does find that there has been a material change of circumstances and that the best interests of the subject children require modification of the 2016 Custody and Parenting Agreement. As of the close of the hearing, the children were not safe to spend overnights with their father. They certainly were not safe from both physical and emotional standpoints to spend a week vacation with their father and they were not safe even to spend extended regular day visits with their Father. The parenting schedule for Father set forth below is what this court believes is appropriate at this time. The expectation is that as the father-children relationships improve, the schedule may shift back to the original parenting schedule set forth in the stipulation of settlement, or at least close to a schedule approximating that set forth in the original Agreement. The schedule below is the minimum schedule for Father. Father shall have parenting time with the Children, provided full compliance with the order of protection, on Wednesdays from 5:00 PM to 8:00 PM, including a dinner in each instance, plus, for the first four weeks after this Decision and Order, starting with this Saturday, January 8, 2022, four consecutive Saturdays from 10:00 AM — 3:00 PM. Starting with week five, Father shall have alternate weekend days (both Saturday and Sunday week five, no weekend days week six, and alternating thereafter) each of those days from 10:00 AM — 4:00 PM. Father shall also have the children 10:00 AM — 6:00 PM on Father's Day, and Mother shall have the children on Mother's Day. Pick up and drop off of the children shall take place in front of Mother's building. Father may not accompany the children to Mother's apartment door inside of the building. Mother's two weeks of summer vacation remain as per the parties' prior Agreement, including dates by which Mother has to notify Father of her chosen summer vacation time. Father shall have additional parenting time if and as the parents from time to time agree, or as the court orders. Although the Agreement contemplated both parents attending extracurricular activities of the children, Father in particular utilized that provision to force the children to spend greater time with him during Mother's parenting time, and attempted to separate Mother from the children during those portions of Mother's scheduled parenting time. In addition, he was verbally abusive to Mother during some of that parenting time, including saying aloud in the presence of the children that Mother was alienating the children from him. At this point, unless agreed upon in advance in writing (text message, Our Family Wizard, or email sufficing to extent consistent with the Agreement), each parent will attend the children's extracurricular activities only during their own parenting time. On days that Father does not see the children he shall have a 15-minute daily facetime or equivalent call with the children at a time agreed upon by the parents. During the Saturdays and Sundays when the children are with Father, Mother shall have a 15-minute daily facetime or equivalent call with the children at a time agreed upon by the parents and the children shall be free to contact their Mother when and to the extent they wish to do so during Father's parenting time. Each parent must exercise all due diligence to seek to facilitate each other's parenting time and facetime or equivalent. As noted, it is the court's expectation that, either by stipulation or motion, Father's parenting time will increase over time to or close to that which had been provided in the original Agreement, but only if that parenting time is in the best interest of the children. The court cannot emphasize more strongly the importance of Father's participation in particular in court-ordered services, discussed further below.
Services are crucial in this case. Under the circumstances, Father must engage in anger management, as a component of individual therapy, and participate meaningfully in individual therapy to the extent prescribed by the therapist or court order. The court should not and will not micromanage Father's individual therapy, as that is between the therapist and patient; however, the court does suggest only that Father provide his therapist with a copy of today's decision and order. "While a court may not order counseling as a condition of future visitation or re-application for visitation rights, it may direct a party to submit to counseling as a component of visitation. The court also [has] the authority to order counseling for [a] child." Thompson v. Yu-Thompson , 41 AD3d 487, 488—89 [2d Dept 2007] (reversing trial court's order that "fail[ed] to order such therapy based upon its erroneous belief that it could not do so" and in the "interest of judicial economy" modifying "the order so as to direct such therapy as a component of the visitation") (citations omitted ). See also Hardy v. Hardy , 194 AD3d 1043, 1045 [2d Dept 2021] ("A court deciding a custody proceeding may ‘direct a party to submit to counseling or treatment as a component of a [parental access] or custody order’ ( Lajqi v Lajqi , 130 AD3d 687, 688 ; see Matter of Gonzalez v Ross , 140 AD3d 869, 872 ). ‘A court may not, however, order that a parent undergo counseling or treatment as a condition of future [parental access] or reapplication for [parental access] rights’ (Matter of Gonzalez v Ross , 140 AD3d at 872 [internal quotation marks omitted ]; see Matter of Welch v Taylor , 115 AD3d 754, 756 )").
Here, therapeutic support and gradual step-up visitation would be appropriate: "while we agree with the [trial] court's determination that the mother did not actively interfere with or deny visitation, we conclude that the court should have ordered the parties and their daughter to undergo a program of psychiatric counseling under the court's direction and supervision in an effort to attempt a gradual resumption of visitation." Resnick v. Zoldan , 134 AD2d 246, 246 [2d Dept 1987]. See also Matter of Timothy D. v. Becki C. , 195 AD3d 1081, 1082 [3d Dept 2021] (trial court "thoughtfully provided for a course of preparational therapy, first for the father and, if successful, then for the child, in order to explore a path toward a meaningful relationship between the two") (citation omitted ).
Despite significant financial hurdles, Mother has engaged the children in individual therapy. Father failed to support that therapy. Father is ordered to pay for 80% of the reasonable unreimbursed costs of the subject children's individual therapy retroactive to the date of commencement of this hearing, and both parents are directed to exercise all due diligence to seek to ensure that the subject children participate meaningfully in individual therapy to the extent prescribed by the individual therapist or court order.
In exercising its parents patriae role in this case to promote the best interests of each subject child, the court directs that Father engage in reunification therapy with each child, paid for by Father. In another recent case where the child had a strongly favored parent (in part, through that parent's actions), the Appellate Division, Second Department modified a trial court order increasing the non-favored mother's parenting time in a therapeutic setting, and setting a detailed therapeutic protocol to support the reunification effort: "the [trial] record established that it is in the child's best interest to work toward a relationship with the mother that is built on trust and free from the stigma of past accusations. Accordingly, we direct the father to engage the child in weekly reunification therapy or other professional counseling with the goal of rebuilding the relationship between the mother and the child. The Family Court is directed to ‘arrange and supervise’ this therapy or counseling.." Brown v. Simon , 195 AD3d 806 [2d Dept]leave to appeal dismissed , 37 NY3d 1079 [2021] (citing Thompson v. Yu—Thompson , 41 AD3d at 488—489, Wolfson v. Minerbo, 108 AD2d at 684, Zoldan v. Resnick , 134 AD2d at 248 ).
To facilitate further Father's support for each of his sons, [Father] must, as a component of his court-ordered parenting time, participate in therapeutic parent training, also often called "parent coaching". In such training, Father can obtain, inter alia , valuable information as to how to support his children given their specific needs. The court directs Father to participate regularly and meaningfully in therapeutic parent training with a qualified individual of his choosing for a period of at least 9 months from the date of this order, or until such time as both Father and the professional conclude that there is no need for further meetings, or that it is appropriate to reduce their meetings to only several times per year or to an "as-needed" basis, or through a court order that this service is no longer necessary. The court stands ready to assist where, when and in the manner appropriate to facilitate further the healthy re-development of the Father-son relationships here.
With respect to legal custody, the Agreement sets forth many provisions in support of joint custody and parental cooperation that inure to the best interest of the children, as well as of the parents. Subsequent events, however, have shown that certain provisions of the joint custody agreement are not workable at present and are not in the best interests of the children. Pursuant to paragraph 38c of the Agreement, after meaningful consultation and compliance with a specified consultative protocol, Mother has final decision making authority with respect to mental and/or psychiatric health, education and religion, while Father under the same protocol has final decision making regarding the children's physical health, extracurricular activities and summer camp.
The credible trial testimony indicated that Father's conduct was such that he bullied the children and did not sufficiently consider their needs and wishes with respect to extracurricular activities and summer camp. The children are now 14 and 12 years of age and should be afforded significant input into their own extracurricular activities, input which Father has continued to resist through the completion of this hearing. Based upon the credible testimony, the court finds that it is in the children's best interest at this time for Mother to have, pursuant to the procedural consultative protocol set forth in the Agreement, final decision making authority with respect to extracurricular activities and summer camp as well. This is particularly important as, at this time, the children will be spending the vast majority of their time with Mother, and Mother has indicated great consideration of the children regarding their extracurricular activities and summer camp. As previously noted, the court is hopeful that over time Father's renewed engagement with the children could return the parties to a great extent to the previous status quo with respect to decision making, as well as concerning parenting time. At this point, however, the court finds that final decision making authority in the manner set forth above is in the best interests of both children. The Agreement is modified solely to the extent set forth above and the Agreement remains effective except as explicitly modified herein.
Although in branch (f) of the motion Mother seeks attorney's fees and costs, she has not submitted invoices. Accordingly, this branch of the motion is denied with leave to renew upon proper papers.
Accordingly, upon the aforementioned papers, prior proceedings in this matter, and for the reasons stated herein, motion sequence 012, filed by Plaintiff is decided as follows:
1. Branch (a) of the motion is granted to the extent stated herein;
2. Branch (b) was previously granted;
3. Branch (c) is denied;
4. Branch (d) is granted to the extent stated herein;
5. Branch (e) was previously granted;
6. Branch (f) is denied with leave to renew upon proper papers