Opinion
XX/07.
Decided on August 13, 2007.
Attorney for Plaintiff: AUDREY M. SAGER, ESQ., SAGER GELLERMANNEW YORK FOREST HILLS, NEW YORK.
Attorney for Defendant: KENNETH J. WEINSTEIN, ESQ., NEW YORK.
Plaintiff, D.Z., and Defendant, C.P., appeared before this Court in a trial concerning custody of their only child, B.P.
The trial lasted over a period of six days from the middle of October to late November, 2006. During this time, both parties testified. In addition, testifying for the plaintiff was a former nanny, D.J., James Cellars, CSW, a forensic evaluator appointed by this Court (Gavrin, J), and plaintiff's mother, Dr. Y.X.
In addition to the defendant, plaintiff called Ms. M.M., a teacher a teacher at Tutor Time, the pre-school the parties' daughter has attended and Dr. P.S., the spouse of defendant's medical partner.
Plaintiff marked eleven exhibits for identification, nine of which were introduced into evidence; defendant marked twenty exhibits for identification of which eleven were introduced into evidence.
At the end of trial, after numerous attempts by the Court to resolve this matter, counsel for both parties, as well as the Law Guardian for B.P., Mr. Eugene Crowe, submitted memorandums on behalf of his client.
As a result, the Court renders the following Findings of Fact and Conclusions of Law:
The parties, after only a brief courtship, were married on June 14, 1998. Their daughter B.P., the sole issue of the marriage, was born on January 10, 2002. The plaintiff, after a period of marital difficulty, filed for divorce on September 29, 2003.
Both parties are doctors. Defendant is a physician who received his medical degree in 1985 from China, his qualifications to practice in this country in 1992 and a medical license in this state in 1996, all prior to the date of marriage.
Defendant testified that when the parties were married, he was self-employed as a physician and also worked with Jan Nan Medical Group in Brooklyn, New York. In 1999, he completed a fellowship in general gastrointerology. He now is in private practice with a specialty in gastrointerology. He also has hospital privileges, as well as attends to nursing home patients.
Plaintiff came to this country in June of 1998, shortly before the parties married. A 1983 graduate of the Gyangzho Medical College, she received her medical license in China in 1998, and was licensed in this country in 2001. In 2002, plaintiff began a residency in internal medicine at North Shore University Long Island Jewish Hospital in Forest Hills. In July of 2005, she completed her residency and received her New York State medical license. After a one year fellowship, she began work as a geriatric attending physician at St. Vincent's Hospital in New York in 2006.
Dr. Z. testified that while the parties were still together, the great bulk of the child rearing was done by her, even after she resumed her studies. Indeed, she testified that Dr. P. had begun sleeping at his mother's apartment, located in the same two-family home, during B.P.'s first year of life so as to not be disturbed by his daughter during the night. The plaintiff contended that her husband cared little for the child because he considered her worthless because she was not a male, a view she claimed was typical in Chinese society.
Dr. Z. claimed that soon after the child was born, circumstances surrounding the marriage began to deteriorate, much of which was caused by her husband's controlling and demanding nature. When she suggested marriage counseling, Dr. P. rejected his wife's efforts. Dr. Z. indicated that there were incidents when her husband pushed and slapped her, though there were no arrests made and specifics were limited in this regard.
In particular, plaintiff claimed that in September of 2003, she was verbally threatened by her husband, slapped and pushed and the police were eventually called. However, there was no arrest because she claimed she did not want to harm the father of her child.
An incident between the parties which occurred on Thanksgiving Day, November 27, 2003, precipitated the police being called, the plaintiff being arrested and a full order of protection being issued against her. At that point the plaintiff left the marital home and the parties have not lived together since that time. The incident in question involved a struggle for the child and plaintiff biting Dr. P. on his arm. Pictures were introduced as to the bite and Dr. P. testified that he was treated in the emergency room of New York Hospital Center in Flushing.
Plaintiff testified she believed that there was an arrest for the Thanksgiving Day incident in 2003 so that her husband could gain leverage in the divorce proceedings which had been commenced two months prior to the event in question. Plaintiff testified that her husband had set up the events in question so as to precipitate her arrest, indicating that he had a tape recorder in his shirt pocket during the course of the incident and that he only went to the hospital by ambulance so as to document what was otherwise a very minor injury. In keeping, he took photographs of the injury.
Because of the order of protection, plaintiff originally had supervised visitation, however, since May of 2004, the parties have had a joint custodial arrangement. That visitation schedule essentially allows the mother to have parental access time on Mondays, Tuesdays, Saturdays and alternate Sundays, and the father to have parental access on Wednesdays, Thursdays, Fridays and alternate Sundays. This scheduling arrangement remains in effect through the date of this decision. While this arrangement has not been without problems, testimony indicated that the joint custodial arrangement remains intact and the child has continued to grow and thrive under this arrangement.
As to some of the problems that have arisen since the joint custodial arrangement began, there was testimony that the child on occasion made disparaging remarks to the mother and the grandparents. Plaintiff testified that her daughter was mimicking, to a certain extent, words and actions expressed by her father.
Dr. Z. testified that during the period of time after the parties separated that she felt that the child had an inordinate number of colds and that her teeth had deteriorated, blaming much of the problem on the father's unwillingness to take a juice bottle from the child when she went to sleep, as it was easier that way to get her to fall asleep.
Testimony indicates that the parties enrolled the child in Tutor Time. After an initial difficulty because of her lack of English, the child improved over time and was doing remarkably well at the time of trial. She was now fully conversant in English and had made many friends.
Dr. P. testified that he has been actively involved in the care of his daughter. He denied that he was ever disappointed at the birth of his daughter because she was not a male child. His present work schedule allows him the ability to come home and spend time with her for lunch as well as to spend time with her on Wednesday afternoon when he does not see any patients at his office. Dr. P. stresses that the arrest on Thanksgiving of 2003 demonstrates the anger and hostility that plaintiff has against the defendant and the fact that it occurred while he was holding the child brings into question her ability to parent.
The parties are both financially secure though Dr. P. has accrued more financial wealth as he has been in practice for a number of years and Dr. Z. has just recently entered full-time medical employment. At the time of the hearing, plaintiff resided in a relatively small cooperative apartment with her daughter, her mother and sometimes the nanny. She testified that she would be moving to larger quarters some time after the turn of the new year. Defendant lives in a relatively spacious two-family home with members of his family with the upper apartment once serving as the marital residence.
Dr. P. testified that his office is only a few blocks from the former marital home, which is a two-family home where his mother still lives on the first floor. He indicates that he arranges play dates with his daughter. He does not take calls in the evening and often takes time from work to spend time with his daughter. It was Dr. P. who believed that Tutor Time as opposed to an Asian preschool was in the child's best interest. Defendant testified to participating in her school life, helping her study and often visiting the school, a fact verified by "Ms. M.M.", who testified on behalf of defendant and is the child's teacher at Tutor Time.
Dr. P. said that his present home is more spacious and proper for the child and that he has less reliance on "the succession of nameless nannies", as he has family members who can care for his daughter.
The parties both testified to difficulties in the child crying each time she left her respective parent at the end of visitation. There is, however, nothing on the record that would indicate that the child has anything but love for both parents.
While there were questions as to how forthright the defendant was in the number of hours he spent with his child, he, nonetheless, was adamant that there was ample time from his practice in which he can give to help raise his daughter.
It is clear that while the plaintiff may have spent the first few months of the child's life at home with her, that because of the crush of her studies and schedule that she, like Dr. P., required the help of family and thereafter nannies to care for the child. Indeed, one of the nannies (former), E.J., testified to the care of the child while the mother was at work. The Court was most concerned with the fact that this nanny did not have the ability to speak English and therefore would provide little in the way to B.P. with assistance in her studies or improvement in her language skills and, of course, may have difficulty in an emergency because of this lack of proficiency in English. There was also testimony that while there was more English provided to the child while she was in the care of the defendant's family, Mandarin was still the primary language in Dr. P.'s family household. Thus, similar to Dr. Z., individuals who would care for the child on behalf of Dr. P., would utilize Mandarin as the primary means of communication.
Dr. P.S., the spouse of defendant's medical partner, testified that her husband often covered for the defendant to allow him more time with his child, however, on cross examination, Dr. P.'s available time was brought into question.
The Court was most impressed with Dr. Y.X., the plaintiff's mother, who had generously, along with her husband, also a doctor, retired from their practice in China so as to assist the plaintiff in the care of their granddaughter after the plaintiff had left the marital home. Indeed, Dr. Z.'s mother had made more than one trip from China back to New York, but indicated in her testimony that she would ultimately be returning to China some time in April of 2007. It was with little surprise that Dr. X. testified to the caring and loving nature of her daughter's relationship with her granddaughter, and that she had a questionable view of Dr. P.'s parenting skills as well as the overall nature of the relationship between the parties, which she confirmed had faced increasing difficulties over the last few years, which Dr. X. believed was due to the defendant.
Mr. James Sellers, MSW, for reasons that will be expanded upon herein, recommended that while the "couple's daughter would benefit from having both her parents involved in her life" ultimately believed that the child would be best served by placing her in the sole custody of her mother.
Despite the attempts to paint both sides as uncaring, career driven individuals with an inability to speak to each other or do what is best for the child in lieu of themselves, the Court finds that much of what was said about each parent must be viewed through the prism of adversarial litigation, an unfortunate consequence of contested custody matters.
It is axiomatic that in determining custody, the best interests of the child is the paramount inquiry by the Court. Eschbach v. Eschbach, 56 NY2d 167, D.R.L. § 240. Best interest is defined by numerous factors as set forth in Eschbach and its progeny.
In determining custody, the Courts may impose joint custody without consent of the parties. See, Braiman v. Braiman, 44 NY2d 584. It is normally reserved for those ". . . relatively stable, amicable parents behaving in a mature civilized fashion". Notwithstanding plaintiff's claim that the parties' lack of communication and inability to co-parent, renders a joint custody award inappropriate, the Court joins with the Law Guardian in finding, based on the totality of the evidence and for the following reasons, that the child's best interests will be served by granting the parties joint custody of their daughter, notwithstanding this contested custody matter. See, Fiorelli v. Fiorelli, 34 AD3d 1216 (4th Dept., 2006), Collins v. Collins, 37 AD3d 1014 (3rd Dept., 2007).
It is interesting to note that the Law Guardian, neither an advocate for plaintiff or defendant, takes a position analogous to that of the Court. As Mr. Crowe, the Law Guardian, would tend to view the evidence without the adversarial myopathy that necessarily inures to both plaintiff and defendant, the Court finds Mr. Crowe's position on behalf of his client, while certainly not determinative, a compelling argument in this case. (See, Young v. Young, 212 AD2d 114, 118 (2nd Dept., 1985). Mr. Crowe, states in his post-trial memorandum, ". . . I have been the law guardian of B.P. for three and a quarter years and throughout this period, I have had the unique opportunity to see my client grow and adjust to what has essentially become a time sharing scenario or arrangement. I believe that this case presents a unique set of circumstances and that both these parents are well qualified to provide B.P. with the financial and, more importantly, the emotional succor to be a happy, healthy and well adjusted child. Contrary to the opinion of the parties themselves and perhaps even their respective lawyers, B.P. can and will thrive by spending approximate equal time with both of her parents . . .".
Plaintiff and defendant, both immigrants from China, exemplify the American dream. While both were medically trained in China and licensed as well, by necessity both needed to continue their studies to obtain their medical licenses to practice in this state. As a result, Dr. P. is a successful private practitioner with a specialty in gastrointerology and after having completed a formidable period of studies so as to receive her medical degree and license, Dr. Z. is now employed as a Geriatric Attending Physician in St. Vincent's Hospital in New York. However, along with this American dream of hard work and success comes the underside of the American dream that befalls many highly professional and successful couples, the dissolution of their marriage and the concomitant fight for custody of their child.
". . . [A]lternating physical custody is insupportable when parents are severely antagonistic and embattled". It is understandable, therefore, that joint custody is encouraged primarily as a voluntary alternative for relatively stable amicable parents behaving in mature, civilized fashion. So opined the Court of Appeals in Braiman v. Braiman, 44 NY2d 584 at pages 587, 589-590. (Though Braiman was decided almost thirty years ago, this expression by the Court has usually left joint custody the result of voluntary resolutions between the parties). Despite this admonition in Braiman, the courts have, without the parties' consent, continued to craft court ordered alternatives that in all respects divide both parenting time and responsibilities equally between the parties. (See, Wideman v. Wideman, 38 AD3d, 1314 (3rd Dept., 2007).
As this Court must comply with the principles of stare decisis, it finds that the factual predicate for the Braiman ruling presents a far different picture than which is before this Court.
Among the significant distinctions, in Braiman, were allegations that the father was a gambler, unethical and inattentive, as well as physically abusive and that the mother was promiscuous and entertained a series of paramours in the home while neglecting the children. Clearly, the same circumstances are not present in this case.
Perhaps, of even greater distinction, is that in Braiman, the parties after four years of separation were still unable to work out a limited visitation schedule between them, therefore, correctly, leading the Court of Appeals to believe that shared responsibility, in light of past failures, seemed to be "beyond rational hope". Id at 590. Here the parties have, with some conceded difficulties, shared custody for more than three years in a manner deemed satisfactory by this Court. Lastly, in Braiman, the mother sought to move out of the Court's jurisdiction making joint custody unworkable given the lack of geographical proximity.
In this matter, both parties present to the Court as extremely intelligent, successful and loving parents. Each lives within a short distance of the other and in Dr. P.'s case, has flexibility in his work schedule due to the nature of his private practice. That the child should be given a substantial amount of time with each parent given the positive traits each possess would certainly be in this child's best interest.
The Court, therefore, does not find that in this case the parties are so severely antagonistic and embattled, (see Braiman), that joint custody is not a proper court ordered resolution of this matter.
It should be noted that in Braiman, joint custody was still relatively new in concept and was looked upon with a certain amount of scepticism by the Braiman court. (Also, see, Trapp v. Trapp, 136 AD2d 178 (1st Dept., 1988)). The use in Braiman of the term divided as opposed to joint gives some idea of how the Braiman court did not seem to consider joint custody to be a collaborative matter. Indeed, the Court felt that conventional wisdom at the time was divided as to the efficacy of such a custodial arrangement. This scepticism is fueled in particular by the Court finding: "Children need a home base. Particularly where alternating physical custody is directed, such custody could, and would generally, further the insecurity and resultant pain frequently experienced by the young victims of shattered families". Id at 589. It is with this frame of reference that the Braiman court concluded that joint custody should only be encouraged among the most amicable of divorcing parents, a situation that is often not the case between former spouses but in no way reflects the love and concern each parent has for their children.
Given the plethora of research on the viability of a joint custodial arrangement, (see, Andrew Schepard, Taking Children Seriously: Promoting Cooperative Custody After Divorce, 64 Tex. L.Rev., 687 (1985); Family Ties: Solving the Constitutional Dilemma of the Faultless Father, 41 Ariz. L.Rev. 753, 846 (1999); Joint Legal Custody: A Parent's Constitutional Right in a Reorganized Family, 31 Hofstra L.Rev. 547 (2002); Two Parents for Every Child of Divorce: Sustaining The Shared Parenting Ideal of Maine's Custody Law, 14 Me. B.J. 86 (1999)), it is perhaps time to review the holding in Braiman to make clear that joint custody remains a viable alternative even where the parties' ability to communicate is somewhat hindered by the animus that has been generated during the course of a now irretrievably broken relationship. This is not to say that the facts as presented in Braiman would warrant joint custody today, and in finding the facts of this matter significantly differ from Braiman, the Court feels that it is an appropriate use of its discretion to make an award of joint custody.
Perhaps the most telling piece of evidence in this case as to why a joint custodial award should be made between the parties, is in fact, their busy professional lives. Dr. Z., who would often work long days and would be on call once a month while meeting her degree and licensing requirements, still found time to be a nurturing mother to her daughter. Dr. P., the Court concedes, perhaps was less dutiful as a parent when the parties were together, nonetheless established to this Court sufficient ability at spending quality time with his child once the parties physically separated. Both parties thereafter, while they were working, by necessity had to employ nannies or family to help assist with the child.
In this regard, as previously noted, Dr. Z.'s parents generously retired from their own practice of medicine in China and moved in with their daughter and granddaughter after the escalation of her marital problems, nonetheless testified that they would be returning to China in early 2007. This, by necessity, would require the use of a full-time nanny while Dr. Z. was at work.
It is clear to the Court that if it were to award sole custody to either parent, that a great deal of that time, even as the child grows older and spends more time in school, would be spent with nannies and or family members, whereas a joint custodial arrangement would, by necessity, allow much of this time to be spent with either father or mother. Neither party would be punished because they have pursued and achieved their career goals. Two professional parents are common nowadays and the ever increasing number of latch-key children seem to be more commonplace than with those where a parent remains at home. To the extent that this child may be able to spend more time with each parent because of their divorce as opposed to children with two working parents, may be a salutary result of the dissolution of this marriage.
Looking at the other factors set forth in Eschbach (supra), but remembering that not one is determinative of the issue, (see, Eschbach (supra) at 171; King v. King, 225 AD2d 819 (3rd Dept., 1996); and Lichtenfeld v. Lichtenfeld, 838 NYS2d 660 {41 AD3d 849} (2nd Dept., 2007)), the Court finds that these factors do not weigh heavily on behalf of either parent.
As to the quality of the respective home environments, the Court finds that while Dr. Z.'s home may be somewhat crowded, with her parents returning to China that issue may be put to rest. In addition, Dr. Z. testified that she will be moving to larger quarters.
The financial status and ability of each parent to provide financially for the child is not an issue between them especially given the fact that even with a joint custodial award, Dr. Z. will be receiving child support from her husband as a result of her being the lesser wage earner. (See, Joleene D.R. v. Robert J.W., 15 Misc 3d 1148 (A) (NY Fam. Ct., June 2007)). In any event, financial ability in general is not looked upon as a compelling factor. (See, Fox v. Fox, 177 AD2d 211, 212 (4th Dept., 1992); Matter of Wellman v. Dutch, 198 AD2d 791, 792 (4th Dept., 1993), Appeal dismissed.
The Court does not find that either parent's fitness is questioned. While certain allegations were made with regard to the fitness of them as spouses, notwithstanding the difficulties that have ensued, the Court does not believe that either of them can be considered anything other than fit to parent B.P. Indeed, James Sellers' report, to be addressed herein, does not find either party to be an unfit parent.
Despite Dr. Z.'s belief that a joint custodial arrangement cannot be worked out, for over three years the parties have engaged in a joint custodial arrangement which has seen their daughter continue to thrive and mature without negative impact upon her. That the plaintiff may complain that this joint arrangement is not to her liking, while not to be disregarded by this Court, must take a secondary role to the arrangement which this Court finds will serve her daughter's best interests. See, Fiorelli, (supra); Bowe v. Robinson, 23 AD3d 555 (2nd Dept., 2005); Matter of Lobo v. Matette, 196 AD2d 585, 587.
The desire of the child is not a factor at this point as no credible evidence has been adduced by the Court with regard to the child's choice of custodial parent. Notwithstanding this, given the young age of the child, it would be given little weight by this Court. See, Eschbach v. Eschbach, (supra) at 173; Lyons v. Lyons, 112 AD2d 232 (2nd Dept., 1985); West v. Turner, 38 AD3d 673 (2nd Dept., 2007).
With regard to parental guidance, the Court has found that while there were disagreements as to education, ultimately B.P. has done very well at Tutor Time, despite starting with a grasp of English that was somewhat limited given the fact that the parents' native language predominated at home. She has, by all accounts, as testified to by her teacher, acclimated well to the academic environment at the school and her ability to speak and understand English now meets or exceeds that of her fellow students. The ability of each parent to provide emotional and intellectual development, as indicated immediately above, seems to favor neither party based upon the evidence before the Court.
Her academic ability comes as no surprise to the Court, given both parents' academic success, obvious intellectual capacity and continuing work ethic.
Lastly, in determining custody, the ability of each parent to promote the time spent with the non-custodial parent is a factor of great concern,(see, Raybin v. Raybin, 205 AD2d 918, (3rd Dept., 1994). While conduct amounting to parental alienation may result in an award of custody to the non-alienating parent, even egregious conduct in this regard, must still be viewed within the context of the child's best interest. (See, John A. v. Bridget M., 16 AD3d 324 (1st Dept., 2005). The Court does not find the conduct of either party, notwithstanding the unproven allegations that the child had shown animus to the maternal grandparents and her mother at the urging of the father, has risen to a level of parental alienation so as to be considered by the Court. However, the Court remains concerned that if it were to award sole custody to either parent, that the communication with the child and the non-custodial parent could be severely compromised. In this regard, at the end of her testimony, Dr. Z. quite honestly indicated that she has limited direct contact with her husband since she was barred from the former marital home as a result of a domestic incident in which she was arrested and directed by order of protection to stay away from her husband and child.
Much has been made of this order of protection. Plaintiff points to it as the defendant using spurious allegations to gain a wedge in the matrimonial proceeding. Defendant points to the evidence as an indication of plaintiff's hostile and aggressive behavior toward her husband which undermines her ability to properly parent. (See, Yvette v. Yvette, 39 AD3d, 952 (3rd Dept., 2007)). The Court is underwhelmed by the allegations underlying the November 27, 2003 order of protection and does not find it to be of particular value in determining this custodial dispute. The Court, however, finds it unfortunate that on evidence before it, that an order of protection was issued and that as a result the plaintiff was directed out of her marital home, and for a number of months, was unable to see her child. Only after this Court crafted, with assistance of both parties, a visitation and then a joint custodial arrangement, did the plaintiff resume normal contact schedule with her child, a custodial arrangement that this Court obviously believes should continue as in the child's best interest.
The Court finds that if the award of sole custody was given to Dr. Z., that given her limited communication, whether justified or not toward her husband, the child would eventually be shut out from the father's life, as the past leaves the Court to conclude that there would be no real attempts of genuine communication between mother and father in this regard. Similarly, the Court finds that if the child was to remain solely with the father, while the father is willing to communicate with the mother more than she might be with him, that the evidence indicates that over a period of time the child will become more and more isolated from her mother. Indeed, in attempting to effectuate a custody award that is in the best interest of the child, the effect an award of sole custody to one parent may have on the relationship with the other parent is one of paramount concern. See, Bliss on behalf of Ach v. Ach, 56 NY2d 995 (1982). Also, see, Lukaszewicz v. Lukaszewicz, 256 AD2d 1031 (3rd Dept., 1998).
The Court believes that the only way that B.P. will have a meaningful relationship with both parents is if both parents have significant amounts of time with the child. The Court will not bow to the wrangling or pettiness of the parties, (cf. Neuwirth v. Neuwirth, 12 Misc 3d 1171 (a) (Supreme Court, Kings County, Sunshine, J.), which the Court finds that they need to overcome for the benefit of their daughter, so as to dictate that one of them must receive custody.
In 2004, James Sellers prepared a report, supplemented by an amended report, which recommended sole custody to the plaintiff mother. The Court is not obligated to accept the recommendations of the court appointed forensic expert, see Vinciguerra v. Vinciguerra, 294 AD2d 565 (2nd Dept., 2002), and this determination will not be disturbed on appeal if there is an explanation of the Court's determination which is sounded within a substantial basis in the record. See, Berstell v. Krasa-Berstell, 272 AD2d 566; Alanna H. V. Duncan H., 204 AD2d 409 (2nd Dept., 1994). While certainly the Court can and should consider the recommendations set forth by Mr. Sellers, see, Prete v. Prete, 193 AD2d 804. The weight to be accorded an expert's testimony is left to the trier of fact. (See, Matter of Tina B. v. Craig B., 224 AD2d 933 (4th Dept., 1996)). Ultimately this Court finds that a joint custodial arrangement is in B.P.'s best interest.
The Court finds that many of Mr. Sellers' reasons why the plaintiff is entitled to sole custody are not borne out by the testimony before the Court, or the Court's assessment of the credibility, character, temperament and sincerity of the parties. See, Matter of Irene O., 38 NY2d 776.
Mr. Sellers' belief that Dr. P. was emotionally distant at the time of B.P.'s birth, and in fact, inconvenienced by the birth, is not borne out by the defendant's testimony which contradicted any mixed emotions about the birth and welfare of his daughter, nor that he was at any time disappointed by the fact that the child was not male.
While the allegations that the defendant had been controlling in nature were made and there is some basis in the record to believe that that was part of the reason for the marriage dissolving, there is no indication that this trait in any way affected his ability to be a fully supportive and caring parent.
While Mr. Sellers was also concerned about the defendant failing to cooperate in counseling with his wife, this lack of counseling did not display itself as significantly undermining his parenting abilities and indeed, to the extent necessary, will be addressed by the Court's direction that a parental coordinator be retained to help smooth the differences between the parties in the decision making process.
The Court does not find that Dr. P.'s parenting style is too rigid to insure ". . . the emotional piece that is crucial for his daughter's healthy emotional development", as found by Mr. Sellers. While Dr. P. appears to keep his emotions more in check and less emotional than his wife, the Court finds there is no reason to believe that this lesser emotional presence would undermine his ability to co-parent his daughter.
Mr. Sellers also placed emphasis on what he finds to be Dr. P.'s narcism and ". . . need to achieve greatness in all of his endeavors (which) may be clouding his ability to see what his daughter truly needs from her father". This issue was vigorously contested on cross-examination and it was established to this Court's satisfaction that Dr. P. neither possessed this so-called narcissism or, in fact, if such existed, that it in any way affected his ability to properly care for his daughter. Nor does the Court find any proof in the record that Dr. P. is impulsive and rigid in his daily decision making process and that his clinical style would hinder her emotional development.
At no time did Mr. Sellers find Dr. P. an unfit parent, nor did he have any fears or concerns of him being abusive to his daughter. Apparently, his concerns with regard to rigidity had to do with the schedule set forth and presented to Mr. Sellers of the child's activities, as well as the manner of dress of the child when she visited Mr. Sellers with her father. A characteristic of being well organized and properly planning for his daughter should enhance, not undermine the parenting skills of the defendant.
Mr. Sellers, despite his somewhat unfavorable view of the father, still recommended that the father share time with his daughter three to five times per week for three to eight hours per visit until the child is approximately four years of age (which she is now) when overnight visitation would enure to the father. Indeed, in reviewing Mr. Sellers' parental time recommendations, the Court has fashioned a remedy (see below) that to a great extent mimics Mr. Sellers' recommendations given the child's present age.
To the extent that Mr. Sellers' report recommends sole custody and decision making to Dr. Z., it is rejected as not being in the child's best interest. However, the Court does find that Mr. Sellers provides appropriate insight into the need to effectuate a decision making process as well as providing the parental time schedule which will allow each parent to have significant time with the child.
As to the areas of concern in this case, to wit: health, religion and education (as to after-school activities, such shall be the primary concern of the parent who has physical custody of the child at this time the after-school activities are in effect), it is clear that the Court may delineate areas or spheres of decision making based upon the testimony before it. See, Mars v. Mars, 286 AD2d 201 (1st Dept., 2001); Ring v. Ring, 15 AD2d 406 (2nd Dept., 2005); Wideman v. Wideman, (supra).
With regard to the issue of decision making, the Court again finds itself in step with the Law Guardian, Mr. Crowe. While there is evidence that the child had a number of colds, the Court does not find that any of these childhood ailments were particularly abnormal for a child that age, especially when she was in the company of many other children of pre-school age. However, there is evidence that the child's dental and hygienic health may have gone unnoticed by the father, and to that extent, the Court finds that on issues of health, the plaintiff, Dr. Z. seems to be more attune to her child's needs. Therefore, while the parties should discuss this issue, the ultimate decision, if none can be effectuated by the parties on a joint basis, should be given to the plaintiff.
With regard to schooling, the Court found that at the initial period of time when pre-schools were being chosen, Dr. Z. wanted the child to go to a more traditional Chinese school, while Dr. P. wanted the child to assimilate into an English language school. While it is noted that B.P. had initial difficulties because of her limited understanding of English, Dr. P.'s decision proved right to this Court as B.P. has now acclimated to her school and has done well in her studies. This is not in any way to denigrate the plaintiff, whose testimony established to this Court's satisfaction, that she spends much of her time with her daughter helping her with her studies, teaching her to improve her English and reading many books with her.
It would seem, given the parties' academic abilities, that jointly they should be able to do what is best for their child academically, however, if after good faith consultation with each other, the parties are not able to make a determination as to the child's educational needs, the defendant, Dr. P. will have the final say.
With regard to religion, there is limited information on this subject. It does appear, however, that the plaintiff is more closely akin to traditional Chinese values and given the influence her maternal grandparents have had on her, that religion, again being an area of joint consultation, shall ultimately fall to the plaintiff mother if the parties cannot agree after good faith consultation.
Lastly, in effectuating this joint consultation, the Court will appoint Dr. Paul Hymowitz, Ph.D., 60 West 13th Street, New York, New York, 10011, (212) 645-8815, as Parent Coordinator, at a pro rata rate of two-thirds to Dr. P. and one-third to Dr. Z. The parties shall meet Dr. Hymowitz with and without their daughter so as to begin a process of learning to allow them to communicate in a manner commensurate with their daughter's best interest and with their obvious intellectual abilities.
The present split custodial arrangement went into effect when Dr. Z. was still spending irregular hours with regard to her medical education training. Now that she has settled into a more traditional employment schedule, and Dr. P. indicated his availability mid-week, the Court finds that the joint custodial arrangement should be altered to reflect these facts.
Accordingly, IT IS ORDERED AND ADJUDGED that plaintiff and defendant are awarded joint, legal and physical custody of the parties' child effective as of the date of this order; and it is further
ORDERED that plaintiff shall have access time with the parties' child on each Monday through Tuesday morning until dropping the child off at school; and it is further
ORDERED, that the defendant shall have access time with the parties' child every Tuesday from pick up after school until Thursday morning until dropping the child off at school; and it is further
ORDERED, that plaintiff shall have access time with the parties' child from Thursday after school through Friday; and it is further
ORDERED, that plaintiff and defendant shall alternate Saturdays and Sundays with the defendant on his alternate weekend to pick up the child from plaintiff's home on Saturday at 10:00 a.m. and to return the child to plaintiff's home on Sunday at 7:00 p.m.; and it is further
ORDERED, with regard to major holidays, exclusive of Thanksgiving, Christmas and New Year's to be addressed herein, Dr. Z. will receive the first major holiday of Labor Day and thereafter the parties shall alternate major holidays. If defendant's alternate weekend includes a "Monday" holiday, his visitation shall continue until 7:00 p.m. of that holiday day. With regard to Thanksgiving. Dr. P. may have Thanksgiving 2007, Dr. Z. will have Thanksgiving 2008 and thereafter the parties will alternate this holiday. With regard to Christmas 2007, Dr. Z. may have B.P. from the beginning of school Christmas recess to the end of Christmas Eve, Dr. P. is to pick up B.P. on Christmas Day at 11:00 a.m. and keep B.P. through New Year's Eve. Plaintiff shall have New Year's Day 2008. In 2008, the reverse shall take effect and thereafter be alternated on a continuing basis; and it is further
ORDERED, the parties will alternate each spring break with Dr. P. receiving spring break 2008. As to summer vacation, each party, irrespective of the access schedule, shall have two weeks uninterrupted visitation with their child. Such vacation schedule must be exchanged by the parties sixty days before the requested time.
The parties are directed to appear before this Court on October 18, 2007 at 9:30 a.m. for a pretrial conference on the remaining economic issues.
A copy of this order shall be mailed to counsel for both parties, the law guardian and Dr. Paul Hymowitz, Ph.D.