Opinion
2014-01-9
Aaron ELKIN, Plaintiff–Appellant, v. Andrea LABIS, Defendant–Respondent.
Aaron Elkin, appellant pro se. Char & Herzberg, LLP, New York (Edward M. Char of counsel), for respondent.
Aaron Elkin, appellant pro se. Char & Herzberg, LLP, New York (Edward M. Char of counsel), for respondent.
GONZALEZ, P.J., TOM, RENWICK, MANZANET–DANIELS, FEINMAN, JJ.
Orders, Supreme Court, New York County (Ellen Gesmer, J.), entered April 25, 2011, which, inter alia, awarded defendant sole legal custody of the child, and ordered that plaintiff spend time with the child in accordance with a schedule that included therapeutic visitation, unanimously affirmed, without costs. Order, same court and Justice, entered January 20, 2012, which, inter alia, denied plaintiff's motion to reopen the forensic examination of the child and to stay the financial trial and financial discovery, unanimously affirmed, without costs.
The court properly awarded custody to defendant, with a phased visitation plan including therapeutic visitation for plaintiff, after carefully assessing the testimony of the parties and the court-appointed forensic expert ( see Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ). The record supports the court's finding that the parties' acrimonious relationship precludes joint custody see Lubit v. Lubit, 65 A.D.3d 954, 885 N.Y.S.2d 492 [1st Dept. 2009], lv. denied13 N.Y.3d 716, 2010 WL 118203 [2010], cert. denied560 U.S. 940, 130 S.Ct. 3362, 176 L.Ed.2d 1247 [2010]. It supports the court's finding that defendant is better able than plaintiff to meet the emotional and intellectual needs of the child, including the need for a positive relationship with plaintiff. Plaintiff's focus on his conflict with defendant has caused him to cease visitation with the child.
The record shows that the court fully explored the issue of defendant's mental health. The court noted defendant's past difficulties and found that defendant had appropriately addressed them. Further, there is no evidence that defendant's past mental health issues have affected her parenting abilities ( see Sendor v. Sendor, 93 A.D.3d 586, 941 N.Y.S.2d 556 [1st Dept. 2012] ).
The requirement of therapeutic visitation between plaintiff and the child is the court's well-considered response to the fact that the transitions between the parties have caused the child serious anxiety and the fact that plaintiff has not been visiting the child in a consistent or stable manner.
There is no basis to reopen the forensic examination. Plaintiff failed to demonstrate any changed circumstances in the short time between the issuance of the custody decision and his motion. Further, there is no evidence to support plaintiff's claim that the child is not healthy or thriving or that she is in danger because of defendant's past mental health issues.
The court properly denied plaintiff's request for a stay of the financial proceedings since any further delay in the child support proceedings could harm the child. Further, plaintiff's filing for bankruptcy protection does not operate as a stay of this proceeding ( see11 USC § 362[b][2][A] [ii] ).
Plaintiff's challenges to the court's rulings on counsel fee awards, visitation with the child's paternal grandparents, and the sufficiency of defendant's discovery responses are not properly before us, since his appeals from the judgment entered January 22, 2010 and the order entered April 25, 2011 in which those rulings were made were dismissed by order of this Court dated April 18, 2012 (M–1844). Plaintiff's purported appeals from the unsigned orders to show cause dated May 23, 2012 were also dismissed, by order dated January 3, 2013 (M–5189), since they were taken from nonappealable papers ( see Naval v. American Aribration Assn., 83 A.D.3d 423, 919 N.Y.S.2d 339 [1st Dept. 2011]; CPLR 5701[a][2] ).
We have considered plaintiff's remaining contentions and find them unavailing.