Opinion
xx/0616
06-10-2016
G.D., Plaintiff, v. D.D., Defendant.
Brett Kimmel, Esq. Attorney for Plaintiff 275 Madison Avenue Suite 1711 New York, NY 10016 Howard P. Roy, Esq. Cohen Clair Lans Greifer & Thorpe LLP Attorney for Defendant 885 Third Avenue, 32nd Floor New York, NY 10022 Michele L. Bermel, Esq. Attorney for the Children 39 Garden Ridge Suite 100 Chappaqua, NY 10514
Brett Kimmel, Esq. Attorney for Plaintiff 275 Madison Avenue Suite 1711 New York, NY 10016 Howard P. Roy, Esq. Cohen Clair Lans Greifer & Thorpe LLP Attorney for Defendant 885 Third Avenue, 32nd Floor New York, NY 10022 Michele L. Bermel, Esq. Attorney for the Children 39 Garden Ridge Suite 100 Chappaqua, NY 10514 Linda Christopher, J.
This matter came before the Court for trial after determination of a motion brought by the mother on March 16, 2015 seeking to modify a Custody and Parenting Agreement dated August 20, 2014. Plaintiff requested the following relief:
1. Modifying the so ordered Custody and Parenting Agreement dated August 20, 2014 so that:
a. Plaintiff is awarded sole legal custody of the parties' children, to wit: T., born — — , 2008; and E. born — — 2011; and
b. Modifying the current custody agreement so that the defendant has parenting time with the children on alternating weekends commencing Friday at 6:30 p.m. and continuing until Sunday at 5:30 p.m. with one (1) mid-week visit dinner with the children at 5:30 p.m. with the defendant being responsible for the costs associated with transporting the children to or from Manhattan, including the costs of any childcare hired for the purpose of escorting the children in the event the defendant does not wish to pick them up from their residence in Westchester County, New York; and
2. Granting plaintiff such other, further, and different relief as the Court may deem just and proper.
Defendant father cross-moved for relief as follows:
1. Denying plaintiff's motion to modify the parties' so ordered Custody and Parenting Agreement dated August 20, 2014 (the "Agreement");
2. Appointing a parenting coordinator, payment of such to be shared equally by the parties, to assist the parties in implementing the terms of their Agreement;
3. Clarifying paragraph 25 of the Agreement which requires the parents "to modify the schedule so that neither parent has three weekends in a row unless otherwise agreed" for the summer or in other circumstances in which it is not reasonably feasible to preserve defendant's parenting time under the Agreement;
4. Granting defendant parenting time from July 24 - 26, 2015, July 31 - August 2, 2015, and having vacation time with the children from August 7 - August 16, 2015;
5. In the alternative, should the relief above not be granted:
a) Modifying the parenting time schedule in the Agreement so that, over a span of eight (8) weekends, the children shall be with the Father on weekends 1, 3, 4, 6, and 7, and the children shall be with the Mother on weekends 2, 5, and 8;
6. In the alternative, should plaintiff's motion not be denied;
a) Directing the appointment of a forensic psychiatrist or psychologist to evaluate the parties and their children and submit to the Court a report as to the evaluator's assessment of each parent's ability to make appropriate decisions for the children, as well as any risk factors which may impact on the residential arrangements;
b) Directing that the parties equally share the cost of such forensic psychiatrist or psychologist;
c) Directing that there be an evidentiary hearing with respect to the issue of legal and physical custody of the parties' children;
7. Granting defendant such other and further relief as this Court determines is just and proper.
The Court issued a Decision and Order dated, June 16, 2015 wherein the matter was set down for hearing.
The Proof
When the parties appeared for trial, the Court advised that it would decide first if the mother proved that there had been a sufficient change in circumstances to warrant change in the custodial arrangement to ensure the continued best interests of the children and, if so, what custodial arrangement would serve the children's best interests.
The father claimed in his responsive papers to the mother's original motion and subsequently throughout the hearing that there was an insufficient basis upon which to modify the custodial agreement. He basically argued that the parties did not work well together before they signed the custodial agreement and that their relationship after the signing of the agreement was not so different and hence there was an insufficient basis to warrant a modification.
There are a host of decisions that favor leaving agreements in place. This encourages parties to settle their differences, with the knowledge and assurance that the resulting agreement will not be easily undone.
Where parents enter into an agreement concerning custody, "... 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 interest of the children" (Matter of Gaudette v. Gaudette, 262 AD2d 804, 805, 691 N.Y.S.2d 681; see Matter of Joseph F. v. Patricia F., 32 AD3d 938, 939, 821 N.Y.S.2d 625; Smoczkiewicz v. Smoczkiewicz, 2 AD3d 705, 706, 770 N.Y.S.2d 101; see also Kollmar v. Kollmar, 100 AD3d 712, 953 N.Y.S.2d 876). When making such determinations, a court "must consider the totality of the circumstances" (Matter of Chery v. Richardson, 88 AD3d 788, 788, 930 N.Y.S.2d 663 [internal quotation marks omitted]; see Eschbach v. Eschbach, 56 NY2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Matter of Solovay v. Solovay, 94 AD3d 898, 899 N.Y.S.2d 712).Anonymous 2011-1 v. Anonymous 2011-2, 102 AD3d 640, 641 (2nd Dept. 2013).
However, courts are vested with the authority to determine if matters between the parties have changed to such a degree that the facts support a modification of the agreement. In doing so, the Court should conduct a hearing.
A party seeking a change in custody is entitled to a hearing where the movant has made an evidentiary showing of "a sufficient change in circumstances demonstrating a real
need for a change of custody in order to insure the [children's] best interests" (Matter of Nava v. Kinsler, 85 AD3d 1186, 1186, 926 N.Y.S.2d 310; see Sirabella v. Sirabella, 95 AD3d 1296, 944 N.Y.S.2d 896; Matter of Dorsa v. Dorsa, 90 AD3d 1046, 1046, 935 N.Y.S.2d 343).Id. at 641. Also, see, Nussbaum v. Nussbaum, 106 AD3d 791, 791 (2nd Dept. 2013).On June 16, 2015 this Court issued a decision regarding the original motion and cross-motion as follows:
Based on the foregoing, plaintiff has made an evidentiary showing of " a sufficient change in circumstances demonstrating a real need for a change of custody in order to insure the [children's] best interests' (citations omitted)." Id. Plaintiff asserts that she entered into the Agreement with defendant in the hopes that the hostility would end and they would be able to work together for the benefit of the children, but that his belligerence, incapacity to agree and hatred for her and her family have made co-parenting impossible, and his antagonistic approach to everything prevents him from cooperating on matters concerning the children. Plaintiff's allegations regarding, inter alia, defendant's apparent insensitivity to the imminent death of the children's grandmother and his inflexibility to consider the importance of the children spending time with their grandmother versus a few missed days of pre-school and kindergarten and his one weekend of missed access; her allegations regarding defendant's antagonistic and pedantic communications; her allegations regarding his lawyer like communication with regard to a seemingly routine, minor issue that he treated as a "major issue", to extent whereby he involved school personnel; and her allegations regarding defendant taking legal action on behalf of the children without consulting plaintiff, all provide a sufficient basis to entitle plaintiff to a hearing as to whether there is a sufficient basis to modify custody.
Accordingly, a hearing will be scheduled by the Court." Decision and Order, J. Christopher June 16, 2015. The Court also ruled that,
[w]ith regard to the parties' requests to modify the parenting schedule and defendant's request for clarification of the Agreement there are issues of fact that require a hearing for determination. These issues will be heard in conjunction with the hearing on modification of custody.Id.
With regard to defendant's cross-motion for the appointment of a parenting coordinator, there are issues of fact that require a hearing for determination. These issues will be heard in conjunction with the hearing on modification of custody.
The Trial
The trial of this matter began on January 5, 2016 and continued for 16 days through January, February and March.
The Court heard testimony from the following witnesses: the children's 24 year old babysitter; plaintiff's father, a retired civil engineer from Louisiana; G. D., plaintiff, a 36 year old graduate of the University of Georgia, who majored in journalism; Elizabeth Meyer Gross, the children's pediatric occupational therapist; Dr. Allison Bell, the parties' prior parent coordinator; Dr. Stephen P. Herman, the Court appointed forensic psychiatrist; Colette Coleman, the SEIT (Special Education Itinerant Therapist) for E.; and Mr. D., the defendant, an attorney.
The Court has reviewed, considered and evaluated the testimony and arguments of the parties and the witness and the documentary evidence in making its decision. Additionally, the Court has relied upon its personal observations of each witness in determining issues of credibility. In reaching its conclusions, the Court has carefully observed and listened to the parties during multiple days of trial and has evaluated all evidence in light of its relevance, materiality, credibility, importance, weight, and where applicable, permissible inferences have been considered.
Testimony
The Babysitter
The babysitter attends Westchester Community College and has been the children's babysitter since August, 2014. As G. works from home, the babysitter is with the children when they are out of school; E. when he is out of pre-school and T. when she gets off the bus from elementary school. She recounted that the children were usually in and out of G.'s office while she worked. About once a week, the mother was out of the home. The children have activities after school and play dates with friends. The babysitter testified that G. makes the children's medical appointments, although she occasionally meets G. with the children at the doctor.
Of particular interest to the Court was her testimony concerning the children's ride from Westchester County to Grand Central several weekends per month to visit their father. The babysitter generally rides with the children on the train for the one hour ten minute ride. She described a hectic dash for Metro North after T. arrived home from school at 4:15 off the bus, leaving the house by 4:30. Her testimony was, "It's a long train ride." She testified that, T. often cries. The children are often fidgety, crying and sometimes screaming. They want to get off the train. But this is mostly T. E. mostly sleeps through the ride. She recounted one particularly bad incident a week after Thanksgiving when T. did not go to her father's because she was said to have been sick. The babysitter testified, "It is difficult getting her to the train. On this occasion following the alleged Thanksgiving illness, she testified that T. was kicking, screaming and crying saying, "I'm not going.....". Her mother picked her up and put her in the car. T. ripped the seat belt off and slid under it. Finally after about an hour, they got her to calm down enough to go. Often, when the train stops, she cries and screams.
The babysitter testified that she was in Court because she wanted to help make the children's lives easier and that she was not being paid for her testimony.
She admitted on cross examination that sometimes the children do not have enough snacks on the train but that she is the one responsible for packing their snacks. Sometimes there was an electronic device for the children to occupy them. T. often sleeps but when she wakes up and realizes she is still on the train, she starts acting out, according to the babysitter. When she is not crying, she is acting out, the babysitter testified. This occurs about half of the train ride.
When questioned by the Court as to why the children were not given more movies to watch, the babysitter responded that the children fought over the iPad. So, naturally the Court asked would it not make sense to get another iPad? She agreed. This Court found her to be credible. Plaintiff's Father
The plaintiff's father is a 66 year old man who is a retired civil engineer from Louisiana.
The plaintiff's father testified that on January 6, 2015, he received an e-mail from defendant wherein the subject was "you are truly sick." It read "And (sic) made a very bad error in escalating matters. The ball game is coming to Louisiana." Tr. Ex. 2. On January 12, 2015, defendant wrote in an e-mail to the plaintiff's father, "Really? You, like G. and your lawyer are all class acts. And you wonder why I dislike you so. The thing is, that unlike you (and G. and Kimmel), I have the good sense to keep the kids (and 94 year old women with dementia) out of it." Tr. Ex. 3.
On February 20, 2015, Mr. D. brought on a motion to "...Compel Presentation of Purported Testaments, Compel Accounting, Revoke Independent Administration, and Require Executor to Post Security," in the State of Louisiana Court as the father of T. and E. Tr. Ex. 4. In other words, defendant brought an action against the children's grandfather regarding their grandmother's Will.
The plaintiff's father testified that it took some time from the date of his wife's death on November 28, 2014 until he was able to fund his grandchildrens' trust of $50,000 each child. He needed to get death certificates, forward them to the financial institutions involved and negotiate the process of selling the most appropriate stocks to fund the trust "for not just the D. grandchildren but for his other grandchildren, as well."
Defendant attempted via cross examination to ameliorate Mr. D.'s actions by claiming that the Louisiana Court granted some of the relief he requested; the plaintiff's father was compelled to, "...present and file into the record of this proceeding within thirty (30) days of this Order any other purported testaments of the decedent in his possession ..."; and, "...that the Motion to Compel Accounting is GRANTED and that the plaintiff's father, as Independent Executor, be and is hereby compelled to file an accounting within sixty (60) days of this Order of his complete administration of the estate of plaintiff's mother from December 30, 2014, when he was issued Letters of Independent Executorship, through the date of this Order, and thereafter on an annual basis pursuant to La. Code Civ. P. Art. 3396.17."
Defendant's second primary defense of his actions in Louisiana seemed to be the old adage, "plaintiff started it!" Plaintiff, by her attorney, had served defendant and his family, including his 94 year old senile grandmother, a subpoena duces tecum seeking financial documents. The defense also tried to question the plaintiff's father's timing in funding the trust by insinuating that he waited to fund the D. children's trust until two days after the parties' arbitration hearing ended. This is also the time that plaintiff received $350,000 that her mother bequeathed to her from her $5.2 million estate.
The parties were in arbitration over the terms of their prenuptial agreement effecting the distribution of property. Defendant sought to have the award modified which this Court denied for the most part by Decision and Order dated February 19, 2016. This Decision and Order was appealed.
The end result seems to have been that Mr. D. withdrew his Motion May 4, 2014 after the trusts were funded. Tr. Ex. 6.Hence, no final relief was granted. In fact, the plaintiff's father r testified that defendant sent an e-mail offering to, "drop his case if Ms. D. would drop her case for sole custody." Tr. Tr. p 244.
The Court found plaintiff's father to be congenial, forthright and credible, even given that he was, of course, plaintiff's father.
G.D.
The plaintiff testified initially to incidents that predated the parties' custody agreement. In particular she described an incident that occurred in September, 2012. After being told that plaintiff wanted a divorce, defendant committed what can best be described as a suicidal gesture. There was much testimony and evidence presented by both plaintiff and defendant regarding this event that occurred some 3-1/2 years ago. Certainly, a party's attempt to take their own life is of great concern to this Court. However, despite defendant's agreement to be admitted to a psychiatric ward following his having taken prescription pills and locked himself into the parties' bedroom, he denied his actions were anything more than that he wanted to de-stress himself. Plaintiff called 911 after defendant's parents had attempted to get him to open the door to the room to no avail. Plaintiff testified that she spoke to defendant soon after he was hospitalized. Her testimony was as follows:
A. At that time D. told me what had happened. He explained to me that he had taken two bottles of pills out of the cabinet. He told me that he didn't know which bottle or which pills, I should say, would do what to him, but he wanted to kill himself, and he took a handful of one of the pills. He also told me —Tr. Tr. p. 271.
Q. One of the pills?
A. A handful of pills from one of the bottles.
Q. Did he know which bottle? Did he explain which bottle it was?
A. He didn't. He didn't tell me what pills he took. He also told me that he learned at the hospital that one bottle of pills would have simply made him tired, and the other bottle of pills would have, in his words, stopped his heart, and by luck he took the pills that just made him tired.
One of the primary issues raised by plaintiff as a basis to modify the Agreement concerned the e-mails between the parties. The Custody and Parenting Agreement provided in pertinent part as follows:
2. When a Parent determines that there is a Major Issue on which the Parents disagree, he/she (the "Petitioning Parent") will give a written notice via e-mail - subject line to read "Major Issue"" (and not text message) to the other (the "Responding Parent") in which the Petitioning Parent states what the Major Issue is, and how he/she believes it should be decided along with his/her reasoning (the "Notice"). The Petitioning parent must include copies of any documents or written information considered, names and telephone/e-mail contact of people consulted or interviewed relative to the issue and any other information relevant to the issue to be considered. Any response must be delivered so as to be received by the Petitioning Parent within two (2) calendar days after the Petitioning
Parent's delivery of the Notice.
3. If, after good faith consultation, the Parties disagree on any Major Issue, they shall consult with relevant professionals as follows and shall resolve their differences with the guidance of such professionals:
(a) If the issue is a medical issue, the Parties shall consult with the Child/Children's then current primary pediatrician or other treating or mutually selected specialist relevant to the medical issue;
(b) If the issue is a psychiatric/psychological issue, the Parties shall consult with the Child/Children's then-current therapist, if any, and if the child has not been treated by a therapist within the preceding twelve (12) months, with a therapist mutually selected by the Parties within 15 days;
(c) If the issue is education-related, the Parties shall consult with the Child/Children's teacher or other appropriate school personnel.
(d) With respect to any other major issue, if the Parties agree, they shall consult the Children's attorney, Michele Bermel, Esq. (or the person subsequently designated as the Parties' Parent Coordinator).
If the professional's opinion in subparagraphs (a) through (d) above agrees with the opinion of either Parent, then that Parent's decision on the issue in question ("Corroborated Decision") shall be binding and may be implemented subject to the terms of paragraph "4" below. Notwithstanding the foregoing, if one of the Parties remains in disagreement ("Disagreeing Parent"), they may seek a stay from a Court of competent jurisdiction in a timely fashion as set forth in paragraph "4" below.
4. If the Disagreeing parent intends to seek court intervention to contest the Corroborated Decision, he/she shall send written notice (e-mail sufficing) within 48 hours after his/her receipt of the opinion of the relevant professional. If the disagreeing Parent fails to send such written notice in a timely fashion, then he/she will be deemed to have waived his/her right to contest the Petitioning parent's decision of the Major Issue, which decision will constitute the final decision on that Major Issue, and may be implemented immediately.
5. After sending the Notice pursuant to the foregoing paragraph, the Disagreeing Parent shall have ten (10) days to file an application with the Court with regard to the Corroborated Decision. If the Disagreeing Parent fails to do so in a timely fashion, or if the Disagreeing Parent files, but does not obtain a Temporary Stay of the implementation
of the Corroborated Decision within the time periods set forth above, the Corroborated Decision may be implemented. In all events, the application for a stay must be made on notice to the other Parent, and any application regarding a Corroborated Decision must include a copy of this Agreement as an exhibit thereto. The Court shall be advised of the Corroborated Decision and give due consideration thereto. Either parent may make application for counsel and expert fees, incurred in defending or bringing the application. In making a determination regarding fees, the Court shall consider the reasonableness of each party's position. The notice deadlines set forth above will be truncated (or eliminated, if not possible to give proper notice under the presenting circumstances) so that the decision will be made in a timely fashion in the Child's best interests.Custody and Parenting Agreement para. 2 - 5.
The Father may use the services of a second pediatrician in New York City for purposes of any sick visits or other medical issues that may arise when the Children are in his care;
The E-Mails
What follows is an e-mail chain between plaintiff and defendant in October, 2014 regarding their son's invitation to a birthday party.
Thu, Oct 2, 2014 at 9:52 AMTr. Ex. 8 in Ev. The Court finds that the level of legal speak and animosity from defendant is overwhelming.
D.,
I think it is important that you play an active role in the children's lives in the community in which they spend the majority of their time. This birthday party is a great opportunity for you to watch E. interact with his friends and to get to know the parents of his friends. It would also provide you with an opportunity to spend time with T. while E. is at the party. I would strongly encourage you to take full advantage of these opportunities when they arise.
[Quoted text hidden]
Thu, Oct 2, 2014 at 10:32 AM
G.,
Thank you for your opinion. As I keep my opinions as to your parenting decisions to myself (except where they involve parental alienation or a direct threat to the children's welfare), I encourage you to do the same and simply focus on the proposal I made. Option 1, option 2 or neither. If I do not hear from you by 5 pm affirmatively electing option 1 or option 2, I will proceed on the basis that you are tacitly electing neither option and will RSVP accordingly that E. cannot make it to the party.
I would elaborate on the reasons your approach does not work if I thought there was any value to doing so, but that does not appear to be the case.
It would behoove you to recognize, however, that I am offering you something here which you do not otherwise have - namely the ability to spend half a weekend one-on-one with each child on two weekends on which you would have neither child. So a "thank you" for the offer might have at least been nice. But I know you just are not capable of seeing anything I do as nice or thoughtful.
Thu, Oct 2, 2014 at 4:05 PM
G.,
Confirming, that unless I hear otherwise from you in the next hour, I will operate under the assumption that you are declining both of my offers to modify the weekend of the 18th to permit you to take E. to Z.'s birthday party and will respond that he is unable to attend.
[Quoted text hidden]
Thu, Oct 2, 2014 at 4:22 PM
D.
I have previously responded to your request. I expect you to be fully responsible for the children while they are in your care. This includes deciding if they will attend events with their friends/classmates and transporting them to these events.
Sent from my iPhone
[Quoted text hidden]
Thu, Oct 2, 2014 at 4:24 PM
Thank you for clarifying your expectations, and also just how truly mentally disturbed you are.
[Quoted Text hidden]
Another theme in plaintiff's case is that defendant's residence in lower Manhattan caused significant and palpable harm to the children. The babysitter's testimony regarding the children's discomfort in the lengthy train ride to access their father is concerning to the Court. Defendant's response has generally been that he moved before the agreement was signed so there is no change in circumstances. His secondary response, after much prodding by the Court, was that he was going to move to be near the children within six (6) months of the issuance of a Judgment of Divorce. (More recently, he tried to circumvent the fact that the trial is concluded by an unauthorized letter by Mr. Roy to the Court advising that he had in fact contracted to purchase a house near the children's residence. Mr. Kimmel recently responded that defendant is not really purchasing the house.) While defendant's gestures are not irrelevant, they fail to answer the big question - Why did it take him this long to realize that he needed to live closer to his children - for his children's sake!
Getting back to the e-mail, defendant's response to plaintiff evidences that he would rather bargain with plaintiff and to "allow" her to take their son to a birthday party than recognize it was his responsibility to do so if he thought it was appropriate for the child to go. However, as he lived in lower Manhattan, taking his son to the birthday party may have been too great an inconvenience to him. His parting shot was to call plaintiff "mentally disturbed". Tr. Ex. 8. The evidence showed that up to the time plaintiff filed her request for a modification of the Custody and Parenting Agreement, the children missed most of the birthday parties they were invited to when it was D.'s time with the children.
Plaintiff also testified that defendant failed to feed the children before delivering them home at 6:30 p.m. Plaintiff's claim that they negotiated a move from originally 5:30 to the 6:30 time in the Agreement was not allowed by the Court as being extraneous to the Agreement that was clear on its face and did not require extraneous explanatory evidence. However, the real question is, why would one deliver two young children home at 6:30 on a Sunday night without having fed them???
Another "centerpiece" to plaintiff's claim that the Agreement should be modified is defendant's use of "auto response". On January 7, 2015 at 12:04 p.m., G. wrote
Wed, Jan 7, 2015 at 12:04 PMTr. Ex. 10 in Ev. D. replied as follows at 12:04 p.m.
D.,
It's time to think about school for E. next year. I would like to re-enroll him at the ECC. What are your thoughts? We also need to discuss summer camp for both children. What are your thoughts?
Wed, Jan 7, 2015 at 12:04 PMTr. Ex. 10 in Ev.
I have received from you several harassing, unnecessary and unproductive emails. Most of these emails make false assertions of fact. I request that you not contact me via email except as specifically provided for by the Parenting and Custody Order (the "Custody Order"). If your email below is one sent pursuant to the Custody Order I will respond as prescribed. If it is not, I will not respond. You should draw no inference from the lack of a response. I reserve the right to dispute the factual assertions set forth in any such email.
If your email relates to an emergency regarding the children, please call me at work (212.—.—?) at home (212.—.—?) or on my cell (917.—.—?).
If your email relates to decision-making regarding the children, please contact me as prescribed by the Custody Order.
Thank you.
The issue that plaintiff was attempting to discuss with defendant concerned plaintiff's desire to re-enroll E. in the Early Childhood Center that he had been attending and that their daughter had attended while they all resided together as a family. What should have been a relatively straight forward issue was made complicated and unpleasant by defendant. First, he sent the legalistic "auto response". While explaining during his testimony that plaintiff's emails disturbed him while he was working and had been overwhelming, would not a simple auto response that advises the sender that one is busy and that they would respond at a later time suffice? If it truly was an emergency, plaintiff would no doubt have placed a call to defendant. Instead, defendant's auto response begins with, "I have received from you several harassing, unnecessary and unproductive emails...."
Regarding the issue of camp, a careful review of the emails leads the Court to conclude that plaintiff was trying to explain to D. why she wanted him to consider Camp K. instead of the fallback "Town Camp", if they could not agree. As she explained, when they sent the children to Town Camp while the parties were together, she had been a "stay at home mommy". The Town Camp let out early (11:30 for E. and 3:30 for T.) and the children would be with a babysitter instead of at camp with friends, enjoying summer activities. While it may be true that defendant could not afford the more expensive Camp K., plaintiff had negotiated a lower price and combined with the cost of the babysitter, made it less of a financial issue. Defendant responded
Mon, Mar 23, 2015 at 5:27 PMTr. Ex. 13. This was just one more issue that the parties disputed although defendant hinted in his e-mails that plaintiff was really just trying to make this an issue for purposes of litigation. The level of distrust and misunderstanding between the parties was astounding.
G.,
This issue was resolved in early February that the children will go to Town Camp as they have done in prior years and as is provided for by the Custody Order. Please stop sending these repeated emails about Camp K. which I have done my best to simply ignore (as I feel you are being deliberately provocative, perhaps to somehow support your motion to undo the Custody Order). If you have further questions, please have Brett contact my counsel.
Thanks,
D.
[Quoted text hidden]
Defendant objected to Tr. Ex. 14 and 15 because the e-mails were sent after the date of plaintiff's filing of her Order To Show Cause seeking modification. These are simply a continuation of the e-mails started before March 16, 2015. --------
The Children's Travel
The next major claim by plaintiff regarding defendant's actions concerned defendant's response to plaintiff's request to take the children out of school for a day or two to travel to New Orleans. The first occasion concerned plaintiff's desire to attend a series of events honoring plaintiff's grandmother who had passed away the prior year and her unveiling. In this instance, defendant invoked the "Major Issue" clause of the parties' Agreement. T. would have missed one and a half days of school. E. would have missed one day. T. was in kindergarten and E. in preschool. He advised plaintiff she should schedule the travel so the children did not miss school, advising, "(2) a day of missed school, particularly at the kindergarten level, interrupts the continuity of instruction. Upon return, this negatively impacts the child's understanding of new material taught. (3) The kindergarten curriculum being taught at Westchester County Elementary School is rigorous, and consistent with instruction that had previously been taught in higher grade levels in the past." Tr. Ex. 18. He continued with excerpts from the Westchester County Elementary School Handbook.
Defendant went one step further and "consulted" with T.'s kindergarten teacher as the "professional" referred to in the major decision provision of the parties' Agreement. Plaintiff testified that she had previously consulted with the teacher (albeit out of step with the parties' Agreement) and based on her conversation with the teacher, thought T., missing a little school, would have been fine. However, after the defendant invoked the major provision portion of the Agreement, he requested in writing that the teacher determine whether plaintiff should reschedule the children's flights so as to not miss school. Plaintiff testified she was embarrassed by the whole thing and wrote an apology to the teacher for involving her, noting that as the teacher did not have the schedule of events, she would be unable to determine if rescheduling was feasible.
The second trip to New Orleans occurred when plaintiff's mother was dying and plaintiff wanted the opportunity for her and the children to say "good bye". On November 11, 2014, G. wrote D. as follows:
Tue, Nov 11, 2014 at 5:59 AMOf course D.'s auto response popped up advising plaintiff, "I have received from you several harassing, unnecessary and unproductive emails...." But then he delivered his actual response
D.,
Last night my mom called to tell me that she is leaving the hospital today (Tuesday) and going home for hospice care. We have no idea how much longer it will be (weeks? months?), but she has requested to see her children and grandchildren while she looks relatively well, is completely lucid and can walk around.
The children and I are leaving today to fly down to New Orleans to spend time with her. We will return late Saturday evening. I am taking care of canceling all therapies, activities and notifying the schools. The children will be available to speak to you at the regularly scheduled time each evening except for Saturday as we will be on the plane. They will call you earlier that day.
I know it is your weekend with the children. I will make it up to you later.
Below is our flight information (Jet Blue). If you have any questions, please contact Brett by phone or fax.
Thank you.
Tue, Nov 11, 2014 at 7:24 AMand further
G.:
I do not trust you (either factually or to "make things up to me") based on your past conduct and don't find interaction with Brett productive (indeed I find them abusive and counterproductive). I have plans with the children this weekend. You and the children are going to New Orleans anyway in another few days (you still have not sent me the flight itinerary for that). This is not acceptable.
11/11/14, 10:31 PM
Tue, Nov 11, 2014 at 10:39 PM
I want to make absolutely clear how seriously I take your self-help denial of my Court Ordered scheduled access to and your unilateral decision to have the children in Louisiana during the time that I am scheduled to have them in my care. I strongly suggest you reconsider and rearrange your travel plans so that they are at Grand Central Terminal at 6:30 p.m. on Friday for the start of my access. This is particularly troubling in light of the fact that you have repeatedly shown that you have little respect for the Custody Order
whether in terms of what it provides on phone access, what it provides with respect to non-disparagement of the other parent, what it provides in terms of fostering respect for the other parent, and what it provides with respect to its decision-making mechanism.Tr. Ex. 63. Thereafter, the parties exchanged numerous e-mails as plaintiff took the children to New Orleans to bid farewell to their mother and grandmother who passed away on November 28, 2014. Throughout this time, defendant's "auto response" remained intact and in use. They did stay longer then a few days but this is only because defendant's mother passed away while they were visiting. One can only imagine the sorrow if plaintiff had stayed to accede to defendant's refusal to allow her to travel.
I would further like to emphasize how seriously I take your educational neglect that, based on your plans as you have communicated them, will cause T. to have 8 unexcused absences from Kindergarten in only her first three months of school. At the present rate you are on track to have her at 24 unexcused absences per school year which is inarguably educational neglect and unconscionable.
If you are calculating that I do not have the resolve to pursue these matters through the appropriate channels, you are mistaken.
Account Signatory
Plaintiff also took exception to defendant's refusal to accede to plaintiff as the "Participant" on the Next Gen 529 accounts set up by plaintiff's grandfather for the benefit of the parties' children. The plan, Merrill Lynch, put D. in as the "substitute Participant" because his birthday was prior to plaintiff's. When plaintiff requested he execute the form putting her in as the Participant, D. refused writing, "I do not believe it is appropriate to make any change to the account." Plaintiff responded, "True to form D. Thank you." Tr. Ex. 29.
Legal Action Against Plaintiff's Father
Plaintiff also confirmed that defendant never contacted her before taking action in Louisiana against her father. (Her father had previously testified that defendant never contacted him either.) Moreover, plaintiff testified that her father had kept her completely informed as to what he was doing, i.e. selling stock, telling her she should set up an account and working with her father and his attorney to get an EIN. Her father gave her a check to deposit into the account. She never had any concerns. Plaintiff testified regarding how she viewed defendant's actions which caused her to file the motion for a change in custody as follows:
A There are many things. The fact that this motion was (referring to the Louisiana action) was served without any consultation with me or my father or even the attorney for my mother's will about what the status was, he didn't — D. was not asking questions or cooperating. There wasn't even a cooperation suggestion, learning about what was going on. He simply in my opinion took it upon himself to create litigation and do it on behalf of the children which is not something that was done jointly and would be part of joint custody, and in addition, is not something I imagine my children would ever agree to, to go into a motion against their grandfather —Tr. Tr. p 1040 - 1041, L 23, L 8.
Legal Action Involving Defendant's Grandmother
Defendant is not the only party in this action committing bad acts. Plaintiff tried to downplay the service of a subpoena duces tecum on defendant's senile grandmother because defendant had denied getting a $200,000 gift from his family, claiming it was a loan. Plaintiff was looking for financial documents trying to prove that she was entitled to some of this money. Serving the grandmother was a bad move. It clearly set defendant off and served no useful purpose.
The Children's Religious Upbringing
The parties also disagree as to where the children should attend Temple, although they have been attending S. T. Synagogue in Westchester County where the children attended the Early Childhood Center. T. attended their 2's, 3's and 4's program. E. was in their 2's, 3's and is now enrolled in their 4's program. Defendant argued that the parties are Conservative and S. T. is Reformed. Moreover and seemingly important to defendant, plaintiff's lawyer attends S. T. and teaches Sunday School there.
Telephone Access
The parties have had difficulty with the telephone access which, in accordance with the Agreement, is to be between 6:30 - 7:00 p.m. Unfortunately, as with everything else, this is an issue. Piano lessons, Shaabat services and children's activities get in the way. However, the mother responded, when asked by the Court that the time should remain. It seems, to the Court, that the father is getting as much quality time as can be expected given the children's ages and busy schedule.
More E-Mails
Plaintiff submitted a series of e-mails between the parties as proof of their inability to work together. (Most of her 94 Exhibits.) They included continued banter between them. An example of this is one in which defendant raised questions about putting E. back in the same preschool he had been attending. The auto response appears throughout many, if not most, of the e-mails.
Supportive Services
The children receive services from the school. T. receives social skills and occupational therapy. E. has a SEIT (special educational itinerant teacher) who works with him in the classroom. She helps him function and learn how to play appropriately and interact with other children.
Plaintiff has been the children's primary custodian. She arranges the children's doctor's appointments and interacts with school personnel including the special service persons, and arranges play dates.
T. is in therapy. She was seeing first a Dr. Jonah Schrag, who was switched to Dr. Tulis because he was out of network and Dr. Tulis was in network. T. stopped seeing Dr. Tulis in the fall, 2015. Plaintiff testified that T. had significant issues that were not improving. According to plaintiff, she had anger and aggression issues. She was particularly hard on her younger brother. Tr. Tr. p 620. Plaintiff found another therapist, Francesca. Defendant did not want to switch therapists but finally agreed to switch and T. has been seeing Francesca for two to three months. Francesca has recommended a full psychiatric evaluation for T. Defendant disagrees. The new therapist uses Dialectical Behavior Therapy (DBT). It includes a system of positive reinforcement and is teaching T. how to control her behavior when it is getting out of control. G. thinks T.'s behavior has improved significantly as a result of Francesca's therapy and suggestions. However, the program is for a defined period and will come to an end in June or July at which time the parties will need to agree upon a new therapist if joint legal custody is still in place. Plaintiff testified that defendant has voiced his objection to having T. tested believing it will lead to medication and that could lead to depression, suicidal ideation and that T. should learn to live with whatever is wrong with her. Ms. D.'s Summary
As to a description of their relationship, Ms. D. testified, "It's very strained. We do not speak." At most, they say hello. She described the relationship after the Agreement compared to before it as, "It's gotten much worse." Tr. Tr. p 643 L 1. She explained,
A Prior to the agreement, there was some controversy. It has been expressed that D. felt very marginalized. And after the agreement was signed where we now both have joint decision making, it's actually gotten worse. It is much harder to communicate with him. It is much harder to get anything done for the children. He stalls. He almost reflexively objects to whatever I offer.Tr. Tr. p 643 L 3 - 9.
A He doesn't — I'm sorry. He says things should be this way, but then doesn't take any action to put those things into place. He takes small issues or issues that aren't — that should not be issues and turns them into big issues. And he makes it very hard for me to parent the children.Tr. Tr. P 643 L 12 - 17, p 643 L 24 - p 644 L 12
A I will — and it's almost always me, it will always be me, come to D. with whatever the issue may be, whether it's signing a child up for an activity, or a weekend access issue that needs to be solved, per the parenting agreement, or a form that needs to be filled out for a child. And I am most often met with controversy.
He will explain to me or state that I am wrong, he will tell me what he believes needs to be done, but won't take the action. He will get frustrated or not happy with how the outcome is going, and he just stops communicating until the issue is right upon us and urgent action has to be taken, even though I started the conversation three months ahead of time. He will complain about things, but not move forward with a solution.
The Court found Ms. D. generally credible.
Mr. D.'s Defense
Mr. D.'s primary defense was that 1) He had already moved to Manhattan prior to the parties signing their Agreement - hence, the children's travel to Manhattan was not a change of circumstances; 2) Defendant's disproportionate number of weekends was negotiated and agreed upon so plaintiff's change from stay at home mother to working mother should have been anticipated; 3) Defendant disliked plaintiff and her family before the Agreement and continued to dislike her and her family after the Agreement so this is nothing new; 4) Plaintiff's actions in having defendant's 94 year old grandmother served with a subpoena on January 6, 2015 directing her to produce documents pertaining to any and all assets and liabilities she maintains shows that plaintiff is as much at fault as defendant for going after family members.
On cross examination of plaintiff, the issue of invoking the major decision clause was addressed. Plaintiff, after numerous e-mails with defendant, invoked the major decision clause regarding her wish to change T.'s therapist from Dr. Tulis to Dr. Perepletchikova (Francesca). The defense attempted to equate this with defendant's invocation of the major decision clause when plaintiff wanted to take the children out of school (nursery school and kindergarten) for up to a day and a half. Plaintiff was also questioned about a custodial time switch wherein plaintiff ended up with T. for a full weekend for her birthday (instead of only one (1) weekend day. The parties alternate having the children for their birthday. This was plaintiff's year to have T.'s birthday.) The issue of serving defendant's grandmother with a subpoena was thoroughly examined as were the other issues raised in defendant's defense of the motion. Mr. D.
Defendant was 38 years old at the time of trial. He received his B. S. from Cornell (Labor Relations) and his J. D. from the University of Michigan. He testified that he was raised in the Conservative Jewish tradition and that plaintiff and defendant only enrolled T. in the reformed temple preschool because it was convenient. The family lived in Westchester County in a large four (4) bedroom home on 4-1/2 acres. He testified that his income went down in 2015 from $290,000 to $230,000 annually based on the number of hours he was able to work.
Mr. D. spent a significant amount of time attempting to explain his alleged suicide. First, he said it followed plaintiff telling him she wanted a divorce. He said he took only two (2) pills of his prescribed medication because he, "...really wanted to be zonked out. It was stupid. I wasn't thinking clearly. My heart was pounding, blood boiling. I wanted to calm down." Tr. Tr. March 28, 2016. He was transported by ambulance to Northern Westchester Hospital. He was voluntarily admitted because 1) things in the house were unsettled; 2) he was very upset and needed a place to calm down; 3) he said they told him they had him for 3 days and would then let him go. Tr. Tr. March 28, 2016.
Although defendant insisted plaintiff should only be allowed to present evidence related to the time between the execution of the Parenting Agreement and the motion to modify, he himself spent a great deal of time testifying to events that occurred prior to the signing of the Agreement. One of these issues was the manner in which defendant was served with the Order of Protection on October 10, 2013 issued by this Court. Defendant essentially claimed that plaintiff orchestrated the event so that the children could see him escorted out of the house by police officers. (This is contrary to plaintiff's testimony that she tried to occupy the children in another part of the house.)
Defendant complained that plaintiff got the children crutches to play with (something they apparently saw in an American Girl movie). Defendant thought the children were fixated on the issue and had a meeting with the school about it.
The parties had a nesting agreement before they signed the parenting agreement but the tension was so high that he rented an apartment in late June, 2014. Before the commencement of the divorce, he usually arrived home around 7:00 p.m.
Defendant testified that once the children arrive in Grand Central, they have a 15 - 20 minute ride to his apartment.
From August, 2014 to today, defendant testified that when he greets the children at Grand Central, they are usually tired, sometimes great and upbeat, and sometimes cranky. They are happy to see him.
Defendant described the many activities that he and the children engage in, including ice skating, basketball, gymnastics, Friday Shabaat dinner with his parents in his apartment, they walk the dog, go to the playground, the museum, read, watch movies, "mosey out", fly kites. Defendant testified he is very involved in the children's schoolwork and communicates with the children's teachers and therapists. Since August, 2014, he has not missed a parent/teacher conference. He expressed that he is extremely dissatisfied that the parties do not talk.
Defendant complained a lot about the phone calls. He claimed at times he has had to call ten (10) times. The kids are often eating, food in their mouth, distracted, out somewhere, at a restaurant, at a friend's house, cannot talk, do not want to talk, on the road, bad cell phone reception. He claimed plaintiff often distracts the children.
As to why the children are not fed before they are dropped off - they have to leave at 5:15 to get to Westchester by 6:30.
Defendant does not exercise mid-week access. He testified he did not see how he could do it.
He claimed before the Agreement the parties' relationship was contentious. After the signing, it was a little better. He testified, "I was trying to take the path of least conflict ...".
He complained that while there has been a lot of shared information, he did not think he was getting everything.
As for the "auto response", he defended the use by testifying that, "...a few months after I was removed from the home, I was getting overwhelmed by e-mails from G. Most were financial, most were accusatory ..." and "he was afraid she would take silence as an admission." He stopped using it in March/April 2015.
He also complained about the clothes the children were sent in saying they were, "old, torn, don't fit." Tr. Tr. March 28, 2016. He complained plaintiff did not send gloves for T. for ice skating.
There was much testimony back and forth about D.'s statement, "I am T. T. is me." He explained he was trying to point out that T. was a lot like him and that he can relate to her overload of sensory stimuli, which he termed a sensory disorder. He defended his reticence in having her tested noting that she had an IQ test in which she performed very poorly (an 89 IQ), which was clearly not reflective of her intelligence but more a result of all that is going on in her life right now.
He also testified that T. and E. have a lot of sibling rivalry.
Defendant tried to explain his issues with giving plaintiff such a difficult time about the children missing nursery school and kindergarten to go to New Orleans. Regarding his complete insensitivity to plaintiff's requests for her and the children to see her mother before she died, he said, "I was regrettably focused on the wrong thing. I was focused on the history of the conflict. I very much regret the two e-mails and the tone of them."
He tried to explain his actions in filing a legal action against plaintiff's father in Louisiana. He had requested a copy of G.'s grandmother's Will but did not get it. G. did not tell him anything about the children's inheritance from G.'s mother. He had to retain Louisiana counsel to obtain a copy of the Will. "There was a bit of evasiveness on the part of finances."
Mr. D. believes he should get custody, partly because he will "show better judgment". He is concerned if plaintiff gets sole custody, he will be further "marginalized".
On cross examination, Mr. D. admitted that when he was hospitalized, he was assessed as "probable suicidal intention."
He does not necessarily think it is best for T. to continue attending her current temple.
Attorney for the Child, Michele Bermel, asked why defendant chose to move to lower Manhattan, so far from where the children lived. She asked about the activities T. misses, like Hebrew school and birthday parties, because of being in Manhattan. He committed to moving to Westchester within six (6) months of the divorce being finalized to live in Westchester County.
Regarding Mrs. D.'s desire to keep T. out of school 1-1/2 days, Mr. D. said he was thinking about the Math material and thought she would "come back lost." Tr. Tr. March 30, 2016. Dr. Stephen P. Herman, M.D.
The Court appointed Dr. Stephen P. Herman, M.D., a well known forensic psychiatrist, to conduct an evaluation of the parties by Order dated June 19, 2015. Tr. Ex. 95.
Dr. Herman is Board Certified in Psychiatry, Pediatrics Child Psychiatry and Forensic Psychiatry. He testified that he has prepared about 300 evaluations with cases and testified in the New York metropolitan area as well as Erie and Steuben Counties. Tr. Ex. 95. He is a member of the American Academy of Child and Adolescent Psychiatry (AACAP) as well as the American Academy of Psychiatry and Law. He also wrote the practie parameters for the AACAP. Tr. Tr. p 835.
Mr. D. told Dr. Herman that he does not believe the joint custody arrangement is working. In fact, he told Dr. Herman, "... in reality he does not have joint custody. Because of the lack of a congenial relationship with G., he now wants sole custody with input from the mother'...". Tr. Ex. 94 p 5. In addition he wants more time during the week and on weekends with the children and wants to spend time with the children separately. Tr. Ex. 94 p 7.
Dr. Herman reviewed the medical/hospital records related to Mr. D.'s admission on September 25, 2012. He concurred with the discharge diagnosis of "Adjustment Disorder with symptom of anxiety." However, he wrote that whether the taking of the pills represented a suicidal attempt or gesture, "...the behavior certainly was impulsive and worrisome." Tr. Ex. 94 p 9.
A lot was made by the defense of Ms. D.'s statement to Dr. Herman that Mr. D. committed marital rape. She was questioned as to why she did not include this allegation in her initial request for an Order of Protection. She was also questioned as to why she did not bring the issue up in her other court proceedings. The following is what Dr. Herman wrote in his report: "Ms. D. said her husband insisted on watching pornographic movies with her. She would laugh and he reportedly would become aroused and insisted on having sex with her right then. Later her therapist called this marital rape. (emphasis added.) Tr. Ex. 94 p 11. Dr. Herman recommended that plaintiff change therapists and she followed his advice.
Ms. D. leveled many complaints against Mr. D. during her interview with Dr. Herman.
Ms. D. said, "This is the way life was for me." She said he controlled her in many different ways: "I was supposed to keep a spotless house..." She would have to clean it every day before he came home or he would yell at her. As T. got older, she would help
with the home chores. G. would have to take out the trash and do the laundry during the week so her husband would not see laundry. She commented that he was somewhat obsessive, having insisted that all of his shirts be facing the same way. Every Friday she would have to wash the dog before he came home. The couple disagreed about virtually everything. D. was concerned about T. getting tested for special services because he felt this would be on her record. T. required occupational therapy, physical therapy and a certified special ed. teacher. However, D. did not think there was anything wrong with his daughter.Dr. Herman's report, Tr. Ex. 94 p 15.
G. told me, "I walked on eggshells around this man ... I tried to please him ... I was petrified of his yelling and screaming ... he constantly made me believe I wasn't smart ..." Her self-esteem plummeted. He would tell her what hobbies to have and he would become angry if she did not follow through with his demands.
Dr. Herman's report continued as follows:
When T. was three and a half years old, she required special services. It was suggested she receive occupational therapy from the Committee on Special Education. D. reportedly refused to have his daughter tested. He did not want her labeled, as mentioned above. However, he eventually relented. He learned that T. would receive special services in preschool and her records would be hidden.Id. at pp 16 - 17.
G. told me, "I got her tested, into physical therapy once a week and occupational therapy twice a week." She also received a special education itinerant teacher (SEIT) for two years. The frequency was one hour three times a week.
G. said she managed everything. Her daughter had some sensory issues. D. was not involved.
He continued, G. continued to describe the services T. has received and continues to receive, explaining that D. has been resistant throughout. Her services also include those for social skills. He also described T.'s behavioral issues. Id. at p 17.
E. also has services.
At the time of this evaluation, E. was in preschool. He has a SEIT who is with him every day for one and a half hours. The SEIT works on socialization. E. tends to bully other children sometimes but he does have more friends than T. did at his age. He still receives occupational therapy because of low muscle tone. Id. at pp 18 - 19.
Dr. Herman spoke to plaintiff's and defendant's therapists. However, since neither testified, this hearsay evidence is not considered by the Court in rendering this decision. See, Strauss v. Strauss, 138 AD3d 419 (1st Dept. 2016). However, as set forth above, Dr. Herman recommended that Ms. D. find an alternate therapist to Gay French-Octaviani, L.C.S.W., who was associated with the local domestic violence shelter and Ms. D. heeded his advise and found a new therapist.
Dr. Herman, as well as the parties, raised the issue that T. is aggressive towards her brother, E.
Dr. Herman found E.'s speech to be generally unintelligible. Id at p 23.
During cross-examination by the defense, much was made of Dr. Herman's use of Facetime to conduct some of the interviews. If this were the only method employed by Dr. Herman, one might take issue with his method. However, he conducted no less than four in-person interviews with each of the parties. Hence, one or two Facetime interviews seem hardly a basis to discredit Dr. Herman's report and opinions.
Dr. Herman summed up his opinion of the children as follows:
T. presented as a generally happy child, demonstrated some aggression with her brother as others have noted, but has no specific psychiatric diagnosis. She is aware, however, of her special needs but has the potential for being a fully developed and happy child. This of course will depend on how her parents get along after the litigation is over.Id. at pp 24 - 25.
E., has severe speech impediments and needs very intensive speech therapy. Somehow, his parents seem to be able to understand him. For the average child or adult, this would be seemingly difficult. E. does not have any psychiatric diagnosis at this time. However, he is at risk if the constant conflict between his parents continues indefinitely.
Dr. Herman also spoke to Dr. Elaine Tulis, Ph.D. However, she did not testify. Hence, the Court is not considering the hearsay reported by Dr. Herman.
Dr. Herman spoke with Allison Bell, Psy.D., who had been the parties' parent coordinator prior to the Parenting Agreement. She expressed the following:
She said the experience was very chaotic with tremendous communication difficulties. She described Mr. D. as having a hard time speaking appropriately. She felt he went into too much detail and actually could be labeled as having Obsessive Compulsive Disorder. There was no way to satisfy him. G. was in a "no-win situation," according to Dr. Bell. She seemed very frustrated. She wanted to make decisions but D. just could not help with this.Id. at p 26.
Dr. Herman provided some summary opinions as follows:
This is a high conflict divorce and custody dispute in which the two children, both with very special needs, are caught in the middle. Regarding T., she has serious anger problems directed at her parents, her brother, classmates and others. It appears that at times she is a sweet girl and acts appropriately. At other times, however, she is aggressive, and this inappropriate behavior is regularly directed at her brother. She believes he has more special needs than she does and, therefore, gets most of the attention.
T. is reacting to the years of hostility between her parents. However, I believe she has some intrinsic traits which make it difficult for her to modulate her anger. If this
continues unabated - and not helped by the behavioral therapy just starting - she will likely develop a full-blown case of Oppositional Defiant Disorder (ODD). From there, without appropriate help and with unabated family turmoil, T. is at risk for developing Conduct Disorder.
Interesting, her father minimizes T. 's aggression except to say that she can get very angry and strike out against her brother. Ms. D. is much more forthright about her daughter's negative behavior and openly describes T.'s problems when she is with her. G. has a discipline plan in place when she judges her daughter needs it. This involves the child going to her room and playing for a while until her anger dissipates, distinct from punishment per se. And by her mother's report, this intervention has a salutary effect on ameliorating T.'s antisocial behavior.
It also should be noted that in the session with T., her brother and their mother, G. was far more actively engaged with the children than was the father in his session with them. He was more an observer than a participant.
E.'s expressive language is far behind his receptive. In other words, he understands far more than he is able to speak. He is definitely affected by the divorce and custody battle, but is unable to express his feelings, as his sister can. Somehow, both G. and D. have told me that they can understand most of E.'s speech. To an outsider, however, he is not easily understandable. As he gets older, E. will become more aware of his deficits and this will affect his self-esteem. Certainly he realizes now that he is different from other children. A lot will depend upon the outcome of the severe family tensions as well as his speech therapy.
As for the father, D. clearly loves his children, although by his own admission, he has not been their primary care giver. I believe this has to do with his work responsibilities rather than any lack of interest in the children. He comes across as a rational, intelligent and sensitive man. His suicide gesture represented a serious lack of judgment and impulsiveness - which he minimizes - and which could possibly be repeated if he becomes distressed enough. It was an angry and primitive gesture aimed at G., but did not represent an actual suicide attempt, as G. has stated.
In addition, Mr. D.'s discussion of T. and E.'s special needs was rather anemic. He talked little about these services nor did he indicate much concern in this regard. He also did not say that he had a major role in finding professionals for the children. This might suggest some denial of their needs as well as his lack of involvement. G. insisted that she did all the work and her husband none of it. I do not know if this is true. However, it does appear D. did not do much to initiate bringing other professionals on board. However, he seems supportive of them now.
Meanwhile, G. represented herself not only as the primary parent but also the one who took the lead in securing special services for the children. She discussed their needs in much greater detail than did D. She remains very active in support of these needs.
I found no indication of interference with parental rights on either side. The father does want more time with T. and E., but he has not specifically charged the mother with restricting their physical access. He has said during the children's Facetime with him, their mother has interfered. There is no indication the mother has been on a campaign to
minimize the children's time with their father. This is a non-issue in this dispute.Id. at pp 26 - 34.
Regarding custody, G. should have sole custody of T. and E. She has demonstrated deeper and more regular involvement in their lives including their special needs than has D.
By the father's own admission, the mother has been the children's primary caretaker. He has been involved less due to his work responsibilities and not out of lack of interest in his children's welfare.
G. has consistently and appropriately been involved in the children's schooling and has been a far more detailed reporter than D. of the children's special needs and how they have been met throughout their young lives.
Their schools and special services are in Westchester County.Their friends are there, likewise their extracurricular activities. In short, their primary physical, social and psychological needs are met with their mother, in their primary community: Westchester County.
On cross-examination of Dr. Herman, Mr. Roy questioned him as to whether he provided Mr. D. with an opportunity to respond to the multitude of complaints made by Ms. D. In general, he did not. However, in several of the instances, the allegations were undisputed. For example, Mr. D. was reluctant to have T. tested for special services although he finally relented. Mr. D. took legal action against Ms. D.'s father, concerned that his children would not get their inheritance from their grandmother's $5 million plus estate.
In several instances, Dr. Herman admitted he could have done things differently. He could have interviewed the parties jointly to observe them interact although he also testified that this is not his usual practice.
As previously written, Dr. Herman was questioned about his use of Facetime, which in light of the number of times he saw the children, the Court finds to be of no consequence. He was questioned about his recommendation that plaintiff return to Dr. Tulis for T.'s therapy based upon Dr. Herman's telephone conversations with Dr. Tulis, which this Court gave little to no weight because Dr. Tulis was not available for cross-examination.
The Court questioned Dr. Herman who had indicated that perhaps he should have interviewed the parties together as to whether, knowing that the plaintiff had made allegations of domestic violence again the defendant, he still thought he should have interviewed them together.Upon questioning by the Court, Dr. Herman testified that the medication (Paxil) Mr. D. claimed he took to relieve his anxiety was an anti-depressant and not an anti-anxiety medication.
Dr. Herman recommended that for the father to have more liberal parenting time, he should move closer to the children,
Because as the children get older, they're going to have activities, friends, school. The idea of going every other week to Hebrew school didn't make any sense to me. I'm trying to look ahead, not predicting, I'm just saying that from my knowledge of children as they get older, they have their own lives and their friends and parties, and this could you compound the — by this, I mean, going long distances to Manhattan — could compound their frustration, their distress, even if they love their father, even if they like being with
him.Tr. Tr. pp 1001 - 1002.
The Court asked Dr. Herman the primary basis of his recommendation that plaintiff be awarded sole custody. He responded, and the Court questioned as follows:
I felt that both parents, obviously, loved their children very much and were involved with them very much — well, not — they were involved with them as much as the father could be involved. They had — although they had similar plans for the children, I felt at the time when I did this evaluation and report, that the mother had a better grasp of the needs of the children; that the father was very general in terms of what they needed other than saying E. needed and was continuing to get speech therapy and therapy for his fine motor coordination.Tr. Tr. p 1003 - 1005.
But comparing the histories as presented by the mother and the father about their children and the children's special needs, I didn't feel that the father was as detailed or as — either as knowledgeable or as concerned about the children as the mother was. That was a major basis for me.
I also considered, again, as I mentioned earlier, about the children most likely considering that the Westchester County area being their primary residence and what that would mean to them as they grew up.
THE COURT: Now, based on what you know about this family so far, how do you think they would fare if the Court were to continue the current arrangement?
THE WITNESS: I don't think they would do very well. Because I don't think these parents, at least at this point, are capable of jointly parenting the children.
THE COURT: Why is that?
THE WITNESS: Based on what they each told me about each other, I think that, assuming from what I heard here, that the father was more willing to reach out to the mother, that is — that's good and it's appropriate, but as things stand now, I don't see all of a sudden these parents working together in the best interest of their children. They just have lots of allegations and criticisms of each other.
THE COURT: And, in your opinion, how do you think this would affect the children, this continuation of the current arrangement?
THE WITNESS: I think it would continue to stress them. What we know about children in this kind of situation is that they're prone to depression, acting out, having problems in school, having problems concentrating and work, on their work, they'd be constantly pulled from one parent to the other.
And I think it's, in this situation, without trying to make a judgment of either parent, it's likely that from time to time parents may have said something to the children which either is negative about the other parent or is interpreted by the child as being negative.
The Court finds that the primary source of Dr. Herman's conclusions were his interviews with the parties and children, his own observations and documents; the forensic report does not rely to a significant extent on hearsay statements. See, Douglas H. v. Louise H., 138 AD3d 497 (1st Dept. 2016). Dr. Allison Bell, Psy.D.
Prior to the parties entering into a parenting agreement, they had employed the services of Dr. Allison Bell, Psy.D., a licensed psychologist, to act as parent coordinator. She is well known to the Court as she has served as a Court Appointed Forensic Evaluator since 1997. She also has experience in mediation, collaborative law and parent coordination training. Despite her expert credentials, she testified as a fact witness. To determine that her attempts as parent coordinator with these parties did not work is an understatement. It was a complete and utter failure.
The parties signed a Parent Coordinator Agreement with Dr. Bell in January, 2014. During this time, she met with the parties three (3) times and was involved in 694 e-mails, primarily with them.
One of the first things she tried to do with them was to caution them against negotiating by e-mail. They ignored her advice. On one day, January 27, 2014, Dr. Bell received 57 e-mails (30 from D.) (20 from G.) and 7 that included Dr. Schrag (a therapist for T.). Tr. Tr. p 507 L 7 - 10.
This e-mail chain began on January 26. The primary issue concerned D. not wanting T. to be reassessed for the appropriateness of services. Tr. Tr. p 522.
Dr. Bell testified that there was a daily flood of e-mails, including weekends and holidays. Tr. Tr. p 542. She read from one D. sent on January 26, 2014, "I am T., T. is me." Id. "D. rants. He throws history, alleged history in G.'s face rather than answer a simple question. He is immediately insulted, offended, assaulted. He obfuscates, he can't control himself." Tr. Tr. p 543.
Mr. D. seems preoccupied with the notion that he needed to treat every e-mail between the parties as a litigator. Dr. Bell was questioned regarding her retainer that warned parties that if she were subpoened to Court, they would have to pay her for her time. The defense implied that Dr. Bell's retainer was either the basis or an excuse as to Mr. D.'s obsessive quality in answering every e-mail in detail. Tr. Tr. pp 24 - 25 (February 5, 2016).
This witness originally charged the plaintiff $3,000 for each half day she testified. The Court directed that the fees be disgorged and that the witness only be paid at the rate of $300 per hour for her time spent reviewing records in preparation of testifying, travel to and from Court and time in Court, inasmuch as she was not testifying as an expert witness but as a fact witness. The defense objected claiming the "bell was already rung" - essentially arguing that her testimony was already given so disgorgement would not cure the taint, but the objection was overruled. The e-mails in evidence speak volumes. After reviewing the ridiculous number and volume of e-mails involving these parties and Dr. Bell over such a short period of time, the record is sufficient to provide the Court with information to assist in determining the issues before the Court.
Dr. Elizabeth Meyer Gross
Dr. Elizabeth Meyer Gross, a pediatric occupational therapist, testified. She has provided occupational therapy to T. and E. She has been most recently working with E. who,
has developmental delays that impact his motor skills, his tone, his muscle tone, which is very low, that required strengthening exercises. He also has visual perceptual issues
which also presents itself as a mirroring of things. He has issues with seeing things the way we do. I think there are some reversals going. He doesn't see the edges of puzzles, for example. He reverses letters. So I'm working on that as well. So it's a visual perceptual disability as well as a low tone muscular disability which affects his speech by the way. He has very poor articulation.Tr. Tr. pp 478 - 479; G. is the primary parent with whom he communicates. Tr. Tr. p 479.
E. also has social issues with his peers. Dr. Gross testified that, "E. has a way of talking to his peers that actually annoys them. He calls them funny names that they do not find funny." She said that she and the others are working with E. trying to get him to understand that children do not like being spoken to this way. Id at 485.
When asked why she primarily communicated with Mrs. D., Dr. Gross testified that her history with Mrs. D. went back four years and that, "...she's been the primary caretaker." Id at 487.
Colette Coleman
Colette Coleman, Eli's SEIT (Special Education Itinerant Teacher), testified. She works with the social and emotional aspects of E.'s needs. She works with him five times weekly for 1-1/2 hours per session in the classroom. She opined that E.'s behavior after being with his father is more relaxed and calmer when returning to school. He is more compliant, following directions, less acting out. However, when questioned on cross examination it seemed she really did not know when the child had spent weekends with his father, apart from one particular weekend.
In-Camera
The parties specifically waived their right to have the Court interview the children in-camera.
The Law and Analysis
"An order ... modifying custody [ ] must be addressed solely to the infant's best interests" (Kresnicka v Kresnicka, 48 AD2d 929, 929 [1975]; see Matter of Sullivan v Moore, 95 AD3d 1223 [2012]; Matter of Leichter-Kessler v Kessler, 71 AD3d 1148 [2010]; Hizme v. Hizme, 212 AD2d 580 [1995]. Where parents enter into an agreement concerning custody, "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" (Matter of Gaudette v Gaudette, 262 AD2d 804, 805 [1999]; see Matter of Joseph F. v Patricia F., 32 AD3d 938, 939 [2006]; Smoczkiewicz v Smoczkiewicz, 2 AD3d 705, 706 [2003]; see also Kollmar v Kollmar, 100 AD3d 712 [2012]). When making such determinations, a court "must consider the totality of the circumstances" (Matter of Chery v Richardson, 88 AD3d 788, 788 [2011] [internal quotation marks omitted]; see Eschbach v Eschbach, 56 NY2d 167 [1982]; Matter of Solovay v. Solovay, 94 AD3d 898, 899 [2012]). A party seeking a change in custody is entitled to a hearing where the movant has made an evidentiary showing of "a sufficient change in circumstances demonstrating a real need for a change of custody in order to insure the [the children's] best interests" (Matter of Nava v Kinsler, 85 AD3d 1186, 1186 [2011]; see Sirabella v. Sirabella, 95 AD3d 1296 [2012]; Matter of Dorsa v. Dorsa, 90
AD3d 1046, 1046 [2011]).Anonymous 2011-1, 102 AD3d at 641.
More recently, the Second Department addressed the issue of modification;
The Supreme Court did not err in granting that branch of the mother's motion which was for a modification, as the mother established that there had been a change in circumstances such that modification was necessary to ensure the continued best interests of the children (see Matter of Bathjer v. McCrae, 136 AD3d 688, 689; Matter of Moore v. Gonzalez, 134 AD3d 718). The continued deterioration of the parties' relationship is a change in circumstances warranting a change in the present joint custody arrangement (see Matter of Moore v. Gonzalez, 134 AD3d 718; Anonymous 2011-1 v. Anonymous 2011-2, 102 AD3d 640). Joint custody is appropriate between relatively stable, amicable parents who behave in a mature and civilized fashion (see Braiman v. Braiman, 44 NY2d 584, 589-590; Matter of Chichilnitskiy v. Faiman, 119 AD3d 681; Irizarry v. Irizarry, 115 AD3d 913; Matter of Lawrence v. Davidson, 109 AD3d 826). Joint custody is inappropriate where, as here, the parties are antagonistic toward each other and have demonstrated an inability to cooperate on matters concerning their children (see Matter of Moore v. Gonzalez, 134 AD3d at 720; Matter of Florio v. Niven, 123 AD3d 708; Matter of Lawrence v. Davidson, 109 AD3d at 826). The court did not err in concluding that it would be in the best interests of the children to award sole legal and physical custody to the mother (see Eschbach v. Eschbach, 56 NY2d 167, 171). There is no basis to disturb the Court's credibility determinations, which are supported by a sound and substantial basis in the record (see Matter of Yasus v. Yasus, 69 AD3d 738; Matter of Oates v. Wilson, 46 AD3d 904).Martin v. Martin, 2016 WL 2890151 (2nd Dept. 2016). Also, see, In the Matter of Bathjer v. McCrae, 136 AD3d 688 (2nd Dept. 2016).
Moreover, the parties' strained relationship before they entered into an agreement, is not a basis to deny a change of the custody, especially when it has deteriorated further, as it has in the case before the Court. The Second Department wrote,
The evidence adduced at the hearing established that a substantial change in circumstances had occurred since the February 16, 2012, order of custody and visitation was issued such that modification of that order is necessary to protect the best interests of the children. The parties' relationship was strained when they entered into the custody and visitation agreement, and it subsequently deteriorated to the point that they do not communicate at all, and do not engage in joint decision making with respect to the children. Therefore, joint legal custody is no longer feasible (see Matter of D'Amico v Corrado, 129 AD3d 718, 719 [2015]; Filippi v Filippi, 118 AD3d 939, 940 [2014]; Matter of O'Loughlin v Sweetland, 98 AD3d 983, 984 [2012]). Joint custody is inappropriate where, as here, the parties are antagonistic toward each other, do not communicate at all, and have demonstrated an inability to cooperate on matters concerning the children (see Matter of Florio v Niven, 123 AD3d 708, 710 [2014]; Matter of Lawrence v Davidson, 109 AD3d 826, 826 [2013]; Matter of Wright v Kaura, 106
AD3d 751, 751 [2013]). The continued deterioration of the parties' relationship is a change in circumstances warranting a change in the present joint custody arrangement (see Anonymous 2011-1 v Anonymous 2011-2, 102 AD3d 640, 641-642 [2013]; Matter of Nikki O. v William N., 64 AD3d 938, 939 [2009]).Matter of Moore v. Gonzalez, 134 AD3d 718 (2nd Dept. 2015).
The totality of the circumstances justified modifying the order of custody and visitation so as to award sole legal custody of the children to the mother. The mother, as the residential parent, has more involvement with the children's needs on a day to day basis. Moreover, the record shows that the mother made decisions about the children's educational needs, while the father denied that any such educational needs existed.
Based upon a review of testimony, documentary evidence, the forensic report and all evidence before the Court, in the case before the Court, the mother has shown, by preponderance of the evidence that there has been a sufficient change of circumstances such that the Court makes a finding that it is in the children's best interests to set aside the written stipulation entered into by the parties in August, 2014.
This Court has assessed the credibility of the witnesses and parties. Given the amount of discord between the parties as evidenced by the voluminous e-mails, the caustic tone of the e-mails, the inability to communicate with each other except via e-mail, the level of distrust, the legalistic moves in which defendant deals with issues between plaintiff and defendant, legal maneuvers regarding plaintiff's mother's estate, his distrust of plaintiff to the extent he did not trust her when she told him her mother was dying, defendant's use of auto reply e-mails, the plaintiff's distrust of defendant such that she will not communicate with him except via e-mail, their disagreements on religion, testing of the children and all the issues brought forth in this trial, the Court finds that joint custody is inappropriate for these parties. Defendant has essentially argued that these issues existed prior to them entering into an agreement (i.e. the defendant had already moved to Manhattan; the plaintiff knew she would have to work, etc.). The Court does not agree with this analysis. The discord between the parties did exist but not to this level. Furthermore, it is not in the children's best interest to allow it to continue. Defendant has argued, both before the agreement was signed and during this hearing, that he does not wish to be "marginalized" and that if plaintiff is given sole custody, she will "marginalize" defendant. Joint custody is not meant to be a door stop to keep one's foot in the door of decision making and parental stature. It is meant to enable two parents to work together to make joint decisions in the best interests of their children. The D. relationship is anything but one that works together. It is more akin to a tug of war between two parents, one of whom, the defendant, seems to view each move and each response as to how it could be viewed in a court of law. This must end. The amount of time and energy expended on e-mails is not only excessive but takes away from the parents' time and ability to parent their children. Defendant's invocation of the major issue clause and involvement of T.'s kindergarten teacher as to whether the child could miss a day and a half of school to attend an important family function, is an example of how out of proportion he took an issue compared to its common sense importance. That defendant failed to see this and still fails to see this, is case in point as to why these parties cannot work together. That he distrusted the children's grandfather to set up their trust; that he thinks it is wise for him to be the signatory on accounts for the children that were funded by plaintiff's grandfather are just some examples of the chasm that exists between plaintiff and defendant's ability to agree.
However, with all of this said, both parties are good and loving parents. The father's social skills are such that he has difficulty joint parenting. However, the Court is impressed by the number of activities he has the children engaged in and his involvement with the children's schools as well as his level of commitment to the children.
Custody/Access
Conclusions and Law
The pivotal question to be answered by the Court in a custody proceeding is what is in the best interests of the child. Tropea v. Tropea, 87 NY2d 727 (1996). The sole concern of the Court is which resolution will best serve the interests of the subject children, promoting their welfare, happiness and optimum development. Eschbach v. Eschbach, 56 NY2d 167 (1982). The Court must evaluate the best interests in light of the totality of the circumstances. Friederwitzer v. Friederwitzer; 55 NY2d 89 (1982); Eschbach, 56 NY2d 167. Neither parent has a prima facie right to custody. The primary focus must be upon which of the parents is in a better position to provide for the child's emotional and intellectual development, the quality of the home environment and the parental guidance to be provided. Matter of Louise E.S. v. W. Stephens S., 64 NY2d 946 (1985).
Stability is a factor to be considered. Eschbach, 56 NY2d 167. While it is of paramount concern in assessing the best interests, the fact that change may be somewhat disruptive is not necessarily conclusive. Matter of Louise E. S., 64 NY2d 946. Plaintiff has been the children's primary caretaker.
The financial positions of the parents and who is better able to provide the child with material advantages should be considered. Wallinger v. Wallinger, 96 AD2d 988 (3rd Dept. 1983). However, this, as with any other single factor is not controlling. See, D'Alessandro v. D'Alesandro, 60 AD2d 897 (2nd Dept. 1978). Where a parent who is less affluent can provide at least an adequate home for the child, the financial advantage offered by the other parent is not very weighty in evaluating the child's best interests. Davis v. Davis, 240 AD2d 928 (3rd Dept. 1997).
Separation of siblings is a consideration to be taken into account by the Court when making a custody determination. Obey v. Degling, 37 NY2d 768 (1975). Generally, split custody of siblings will not be ordered unless clearly justified by the circumstances of the case. Ebert v. Ebert, 38 NY2d 700 (1976).
Wishes of the children, if of sufficient age and discretion, are a factor to consider. Bullotta v. Bullotta, 43 AD2d 847 (2nd Dept. 1974). Although not determinative, preferences of children of sufficient age and maturity should be given consideration. Ebert , 38 NY2d 700.Courts have held that the recommendations of court appointed experts are a factor to consider when making a custody determination. Young v. Young, 212 AD2d 114 (2nd Dept. 1995). The recommendations are entitled to some weight unless those opinions are contradicted by the record. In fact, in the case of Linda R. v. Richard E., 162 AD2d 48 (2nd Dept. 1990), the appellate division reversed a custody determination, in part due to the trial court's failure to consider or to adequately explain why it failed to consider the recommendations of neutral experts. The Courts have said that an evaluation by an independent expert should not be readily set aside. Rentschler v. Rentschler, 204 AD2d 60 (1st Dept. 1994).
Priority should be given to the first custody awarded in litigation or by voluntary agreement. Nehra v. Uhlar, 43 NY2d 242. Where custody is based upon an agreement, the weight to be given is different than the weight to be given an award of custody based upon a hearing of all relevant evidence. Courts have held that no agreement of the parties can bind the Court to a disposition other than that which involves the weighing of all the factors involved to arrive at a determination of what is in the child's best interests. Friederwitzer, 55 NY2d 89 .
Joint custody should not be imposed on parents who do not communicate [Matter of Diana W. v. Jose X, 296 AD2d 614 (3rd Dept. 2002); Matter of Heintz v. Heintz 275 AD2d 971 (4th Dept. 2000)], who are unwilling to cooperate [Bliss v. Ach, 56 NY2d 995 (1982); Amari v. Molloy, 293 AD2d 431 (2nd Dept. 2002)], and who are unwilling or unable to set aside their personal differences [Webster v. Webster, 283 AD2d 732 (3rd Dept. 2001); Matter of Meres v. Botsch, 260 AD2d 757 (3rd Dept. 1999)] and work together for the good of the children.
Also to be considered is the effect an award of custody to one parent might have on the children's relationship with the other parent. Mohen v. Mohen, 53 AD3d 471 (2nd Dept. 2008). Which parent will assure that the child maintains a meaningful relationship with the other parent is a significant factor to be considered. Vasquez v. Ortiz, 77 AD3d 962 (2nd Dept. 2010); Tori v. Tori, 103 AD3d 654 (2nd Dept. 2013). This Court did not find that either parent interfered with the other parent's relationship with the children.
Interference with the relationship between a child and noncustodial parent "is so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as custodial parent" [Diaz v. Diaz, 97 AD3d 747 (2nd Dept. 2012); quoting Matter of Chebuske v. Burnhard-Vogt, 284 AD2d 456, 458 (2nd Dept. 2001)]; Lawlor v. Eder, 106 AD3d 739 (2nd Dept. 2013).
In Bobinski v. Bobinski, 9 AD3d 441 (2nd Dept. 2004), the 2nd Dept found that "[t]he mother's conduct, inter alia, in alienating the children from their father, interfering with their relationships, and disregarding the father's rights as a joint custodial parent, were acts so inconsistent with the best interests of the children" that it could not be said the Supreme Court's determination [that awarding sole custody to the father was in the best interest of the children] lacked a sound and substantial basis."
In making its determination on the issue of custody, the Court is to evaluate the testimony, credibility, character, temperament, demeanor and sincerity of the parties and other witnesses. Matter of Rory H. v. Mary H., 13 AD3d 373 (2nd Dept. 2004); Matter of Dobbins v. Vartabedian, 304 AD2d 665 (2nd Dept. 2003). "In reaching a custody determination, the trial court must weigh all relevant factors (citation omitted) and base its decision upon a preponderance of the evidence presented." Hanna v. Hanna, 267 AD2d 903, 904 (3rd Dept. 1999). The Court found the plaintiff to be credible for the most part.
Domestic Violence
Inasmuch as the issue of domestic violence has been raised in this case, the Court is obliged to comment upon it. The plaintiff came to Court for an Order of Protection. She was primarily concerned regarding her claim that defendant attempted to commit suicide. A hearing regarding a Temporary Order of Protection was commenced and the matter settled. Other issues were raised during this trial. Defendant claimed plaintiff smacked him with T.'s security blanket during an altercation between the parties. This Court finds that there were issues of control by defendant over plaintiff during the marriage. Plaintiff's claim of marital rape was a control issue. Defendant's claim that plaintiff smacked him with a security blanket was situational. These issues do not appear to impact on parenting except as to being another factor that makes joint custody between these parties unworkable.
Decision on Custody/Access
Applying these legal principles to the facts of this case, and for the reasons discussed below, the Court awards plaintiff sole legal and physical custody of the children, T. and E., subject to defendant's rights of access as set forth herein as follows:
Defendant shall be entitled to weekends in accordance with the parties' Parenting Agreement, however, the father's access shall be alternating weekends instead of the weekend schedule set forth in the parties' Parenting Agreement. When the father moves to Westchester, closer to the children's residence, he shall be entitled to access with the children from Friday after school until Monday mornings when he shall drop the children off at school, or if there is no school, curbside at the mother's residence. Pick up shall be on Fridays, preferably directly from school; if not possible, then curbside from plaintiff's residence. The current access schedule is not working as it causes the parties to engage in too much correspondence as to the upcoming weekends; it has caused T. to miss Hebrew school and the children to miss events such as birthday parties and the travel to and from Manhattan at least three (3) times monthly is not in the children's best interest. Plaintiff is also working on nearly a full time schedule. Despite the fact that she should have anticipated this, the current schedule is not in the children's best interests. Alternating weekends will allow both parties weekend time with the children. Also, when defendant moves closer to the children, he will be able to exercise his weekday access.
When he moves to Westchester County, the defendant shall also be entitled to Wednesday access with dinner visits when he has upcoming weekend access, and Wednesdays after school until Thursday mornings when he does not have upcoming weekend access. Pick up and drop off shall be at school, or at plaintiff's residence, curbside, if school is not in session.
If defendant is residing in Westchester County, summers shall be evenly split with each parent having two (2) weeks, with the mother having the first two (2) full weeks after school is over for both children and alternating in two (2) week intervals with the father having the second two (2) weeks. If, at the end of the summer, one party would end up with an unequal number of weeks, the last two (2) weeks shall be split or the last number of days shall be split evenly. Pick up and drop off shall be at camp or if camp is not in session, curbside pickup at the other parents's residence Sunday evening or Monday morning depending on their schedules by the party who is beginning access and curbside drop off by the other parent at the end of access Sunday evening or Monday morning depending on their schedules. If the parents are not away, the other parent shall have Wednesday overnights with the children when it is not their two (2) week period. Parents shall not go away with the children more than one (1) two (2) week period without consent from the other parent. If a parent wishes to go away for one two (2) week time period with a child they may do so, upon advance notice of at least 30 days, except for the summer of 2016 when 30 days is not available. The other party will miss their Wednesday night visitation when this occurs. If defendant is still residing in Manhattan, his summer access shall be as set forth in the parties' Parenting Agreement under Summer Vacation, except that defendant's regular access schedule is modified as set forth hereinabove; that is, defendant shall have alternating weekends instead of the weekend schedule set forth in the parties' Parenting Agreement.
All other holidays and vacation schedules shall remain as previously agreed in the parties' Parenting Agreement.
The mother shall consult with the father regarding major issues effecting the children. She may do so by telephone, in person, e-mail, regular mail, or overnight mail. The father may respond, if he chooses within seven (7) days. The mother may then make the decision and so advise the father. However, major decisions that have a financial impact such as whether to send a child to private school shall not be made without joint agreement or the mother bearing the financial burden or upon court approval. The issues regarding the cost of camp shall be determined at the financial hearing scheduled for June 13, 2016.
Telephone access shall remain as previously agreed.
Defendant's request for appointment of a parent coordinator is denied. The parties tried and failed at this attempt. There is no reason to require the parties to engage in this process again.
The father shall be entitled to receive copies of the children's school records such as report cards and shall be entitled to attend parent orientation and teacher conferences and special school events. He shall be entitled to copies of health records and as such the mother will execute authorizations allowing the providers to provide him records directly and to speak to the medical personnel. Either party shall immediately notify the other as soon as practicable in the event either child requires emergency medical treatment. Both parents may be present if either child is hospitalized.
The parties shall notify each other of his or her current e-mail address, telephone numbers and residential address.
Conclusion
The Court has considered the additional contentions of the parties not specifically addressed herein and finds them to be without merit.
Counsel may retrieve from the Part Clerk of the Court any exhibits introduced into evidence by such part, within thirty (30) days from the date of the Notice of Entry of the Judgment of Divorce.
Counsel is directed to settle proposed Findings of Fact and Judgment of Divorce, in accordance with this Decision and the financial issues to be tried separately and including the usual and customary language not specifically contained herein, within 30 days of the date of the determination of the financial issues. All items not collected will be disposed.
The foregoing constitutes the Decision of this Court.
Registry checks were completed pursuant to DRL §240(1) (a-1) and no results were found. ENTER HON. LINDA CHRISTOPHER, J.S.C. Dated: June 10, 2016 White Plains, New York