Opinion
V-0000-00
06-05-2019
In the Matter of a Proceeding Under Article Six of the Family Court Act L.M., Petitioner, v. L.M., Respondent. In the Matter of a Proceeding Under Article Six of the Family Court Act L.M., Petitioner, v. L.M. Respondent. Docket Nos. V-00000-00 V-00000-00/00 In the Matter of a Family Offense Proceeding L.M. Petitioner, v. L.M., Respondent.
Jonathan Edwards, Esq. represented the father Matthew Seidner, Esq, represented the mother Dennis Monahan, Esq. was the attorney for the child.
Jonathan Edwards, Esq. represented the father
Matthew Seidner, Esq, represented the mother
Dennis Monahan, Esq. was the attorney for the child.
Conrad D. Singer, J.
The matter before the Court concerns legal custody, residential custody and parenting time with respect to one child, seven-year-old A.M. (D.O.B. 11/12/2011) ("child"). A.M. is the biological child of the parties herein, L.M. ("father") and L.M. ("mother"). Also before the Court is the mother's family offense petition filed against the father on September 13, 2017, and the father's parenting time violation petition filed against the mother on November 29, 2018. This Court has an extensive history with these parties, having first met them in 2012 when they filed competing custody petitions and the mother filed a family offense petition against the father. The parties subsequently withdrew these earlier petitions.
The mother commenced the instant proceedings when she filed a petition to establish custody of the child on April 14, 2017. On June 12, 2017, the father filed a cross-petition for custody. On October 4, 2017, Dr. Peter Favaro was appointed as the forensic provider by court order on consent of the parties.
The mother has alleged that granting her sole legal and sole residential custody would be in the child's best interests because she has been his caregiver since the day that he was born and because the father is "an abusive, mentally ill, narcisistic [sic ] drug using, alcoholic harasser." (Verified Petition of L.M. 4/14/17, ¶ 12). The father has alleged that he should be awarded sole legal and sole residential custody of the child because the mother does not provide the child with stability, having first unilaterally moved him out of the marital residence and having thereafter moved him to three different locations. (Verified Petition of L.M. ["Father's Cross-Petition"] 6/12/17, ¶ 7). He has further alleged that he was the child's primary caretaker before the mother removed him from the home and that he has continued to take care of the child "to the extent that [he has] parenting time". (Father's Cross-Petition , ¶ 7).
The mother has alleged in her family offense petition that on September 6, 2017, the parties jointly accompanied the child to his pediatric ophthalmologist appointment, where the father committed offenses against the mother constituting: 1) harassment in the first or second degree; 2) aggravated harassment in the second degree; 3) reckless endangerment; 4) menacing in the second or third degree; 5) forcible touching; 6) sexual abuse in the third degree; and 7) aggravated harassment. (Family Offense Petition of L.M. ["Family Offense Petition"] 9/13/17, p. 1). She further alleged that on August 27, 2017 the father engaged in unwanted touching when he insisted on walking the mother to her car and then repeatedly embraced her without her consent, which caused the mother to feel "greatly uncomfortable". (Family Offense Petition , p. 2).
The father has alleged in his parenting time violation petition that the mother willfully violated the Court's June 28, 2018 Temporary Order of Protection issued in the father's favor and against her, by unilaterally extending her parenting time with the child beyond that which the father agreed to, including by removing the child early from school on multiple dates and by failing to timely return the child for the Rosh Hashanah and Yom Kippur holidays. (Violation Petition of L.M. , 11/29/18, p.2).
FAMILY OFFENSE FACT-FINDING
The bifurcated fact-finding hearing on the mother's family offense petition commenced on February 15, 2018, continued February 16, 2018 and concluded February 28, 2018. The mother was represented by Matthew Seidner, Esq. The father was represented by Allison Rockmore, Esq. and Jonathan Edwards, Esq. Dennis Monahan, Esq. was the Attorney for the Child ("AFC"). The mother testified in support of her petition, and the father and his sister L.A. testified in opposition thereto. On February 28, 2018, counsel delivered oral summations and the Court reserved decision until after the conclusion of the custody fact-finding. The Court issued a Temporary Order of Protection in favor of the mother and against the father under the mother's family offense petition. Such required the father, inter alia , to stay away from the mother (except for parenting exchanges, school related activities and attending therapy, counseling and medical appointments for the child) and to refrain from any hazardous acts with respect to the child. By its terms, the Temporary Order of Protection expired on August 27, 2018. The Court also issued a Temporary Order of Parenting Time on February 28, 2018, which, inter alia , provided the father with alternating weekend parenting time, from Thursday after school until Monday morning return to school, and with weekly parenting time on Tuesdays after school until 8:30 PM.
FAMILY OFFENSE FINDINGS OF FACT
On September 6, 2017, both parties accompanied the child to an appointment with his pediatric ophthalmologist in xxxxxxx, New York. When the mother and the child arrived at the doctor's office the father and the paternal grandmother were sitting in the doctor's waiting room. After 10 to 15 minutes the doctor called the mother, father and child into the examining room.
The mother testified that she walked the child to the examination chair and then stood a few inches away from the father in the small examining room. She testified that the father made flirtatious jokes to her while the doctor examined the child and that after the examination, the doctor turned away to enter information into the computer. She testified that the father then grabbed her buttocks, that in Farsi she told the father to stop and get off of her, and that she then pushed the father's hands off of her. She testified that the father grabbed her four times- once before she pushed him off of her and three additional times after she pushed him off. She testified that the father subsequently grabbed her breasts and remarked to her in Farsi that "they got so small". The mother then sat in a chair on the other side of the room. She testified that the father then came over to the chair where she was sitting and put his groin in her face, causing her to feel scared and violated.
The mother testified to another incident that allegedly occurred on August 27, 2017, after the parties had accompanied the child to the emergency room at the hospital. The mother testified that the child had been with his father and he "ended up getting banged somehow" which required him to get stitches in his head. (Tr. 2/15/18, 49:4). The mother testified that she did not know how the child banged his head. The father called the mother and let her know and she rushed over to the hospital. The mother testified that the father walked her and the child to her car after they were finished in the emergency room and then "bear hugged" her, which caused her to feel suffocated. (Tr. 2/15/18, 49:19).
On cross-examination, the mother confirmed that the doctor did not see any of the incident that occurred in the examination room and that the mother did not scream or tell the doctor that the father was acting that way. The mother did not report the incident to anyone as they exited the examination room and prepared to leave the doctor's office. She denied walking out of the building together with the father and the child's paternal grandmother. She did not bring up the incident when communicating with the father by email later that evening. She testified that she believed the father referenced the incident when he remarked to her in an email that she had been "too stiff" in front of the child.
The father testified that the parties entered the examining room two separate times- the first time the parties were called in by a nurse or doctor's assistant and the father placed the child in the examination chair. After about 45 seconds, an assistant or nurse entered the room. An examination was performed involving the child picking out pictures on a monitor screen until there was a problem with the pictures. The mother, child and father then exited the examination room and sat in the hallway until they were summoned again into the examination room. The doctor followed them into the examination room, which was a very small room. The child was back in the examination chair, the mother sat in a chair and the father stood to the right of her while the doctor was at her computer monitor. The doctor's examination of the child lasted five minutes and the mother, father and the doctor had a conversation about the child's condition going forward.
The father testified that after the examination the mother, father, paternal grandmother and child all exited the doctor's office and walked down the hallway together to the elevator. He testified that they conversed about the mother returning a pair of sneakers that the father had purchased for the child; the father then walked the mother and child to the car and said goodbye.
He testified that on August 27, 2017, the child was injured while playing at the father's house and the father, his sister and his brother-in-law drove the child to the emergency room. The father called the mother and the mother came to the hospital. The father testified that the mother had been crying earlier in the emergency room and that she appeared "visibly distraught" in the parking lot afterward. (Tr. 2/16/18, 132:21). He testified that he put the child in the car, then walked to the mother, who was crying hysterically, told her that the child was going to be fine and gave her a quick hug, while his sister and brother-in-law were behind them.
On cross-examination the father testified that he was "99 to 100%" confident that he put the child in the examination chair the first time that they entered the examination room. He denied that the doctor had to turn away from the parties when she was at the computer monitor. He denied that the mother was already in the elevator when the father exited the doctor's office, then testified that he did not remember if that was the case. He further testified that on the August 27, 2017 date, he hugged the mother because she was very distraught and crying hysterically. He told her it was going to be okay and to stop crying because she had to drive. He testified that he quickly hugged her, and that in a matter of seconds the mother's demeanor changed from being hysterical to calming down. The father did not believe there was then any danger to the mother driving the child and herself home. The father further testified that the mother had cried in his arms while they were in the emergency room.
The father's sister, L.A., testified that she and her husband accompanied the father and the child to the emergency room on August 27, 2017. The mother arrived at the hospital about one hour after they had arrived. She testified that the entire group left the hospital together- the mother, father, child, Ms. A. and her husband. The father held the child and walked with the mother to her car. Ms. A. and her husband were walking behind them. The father put the child in the car, then walked around to the other side of the car, to where the mother was sitting. She testified that they shared a quick hug, and then he closed the door and left.
On cross-examination Ms. A. testified that she was about 10 to 15 feet away from the mother and father when she observed them hug. She further testified that the mother had been upset the entire time in the emergency room and that the mother and the father had hugged in the emergency room as well.
DETERMINATION OF FAMILY OFFENSE PETITION
Having assessed the demeanor and credibility of the three witnesses who testified in the family offense fact-finding and having evaluated their testimony for relative probability or improbability, the Court finds that the father credibly testified about the events that occurred on September 6, 2017 and August 27, 2017.
In contrast, the Court found that the mother's testimony about the events that allegedly occurred in the examination room was improbable, particularly her testimony that the doctor did not observe any of the father's alleged conduct towards her in the undisputedly small examining room. The father's testimony was more comprehensive and consistent and was more detailed as to the doctor's examination of the child and interaction with the parents. Likewise, the Court finds that the father and his sister's testimony about the August 27, 2017 incident was credible and that the mother failed to establish that the father's conduct constituted any of the family offenses alleged in the mother's petition.
Having considered all competent, material and relevant evidence, it is determined that the mother failed to establish by a fair preponderance of the evidence that the father committed a family offense as alleged in her family offense petition.
It is hereby ORDERED, after fact-finding, that the mother's family offense petition [O-XXXX-XX] is dismissed with prejudice.
CUSTODY FACT-FINDING
The fact-finding on the parties' cross-custody petitions, which commenced on April 30, 2018, was an extensive and comprehensive fact-finding, spanning nearly 40 non-consecutive days and involving an extensive number of exhibits. At the start of the fact-finding Mr. Seidner was substituted as the mother's counsel by Jason Barbara, Esq. On September 21, 2018, Mr. Seidner resumed representing the mother in place of Mr. Barbara and he represented the mother for the remainder of the fact-finding. Mr. Edwards represented the father and Mr. Monahan was the AFC for the entirety of these proceedings.
Mr. Barbara presented an opening at the commencement of the fact-finding hearing. Mr. Edwards presented an opening at the commencement of the father's direct case.
The witnesses who testified on the mother's case consisted of the mother and four additional witnesses, F.L. [Dec. 10, 2018 and Dec. 13, 2018]; G.R. [January 3, 2019]; S.N. [January 4, 2019 and January 10, 2019] and Z.S. [January 10, 2019 and January 11, 2019]. The mother also called the father to testify as a hostile witness in support of her petition. The father testified as the only witness in support of his cross-petition. Nearly 200 exhibits were received into evidence, including dozens of emails and text messages and numerous photographs.
The forensic provider, Dr. Peter J. Favaro, Ph.D., initially testified on June 22, 2018, at which time his forensic evaluation report was entered into evidence [Court Exhibit 1; 6/22/18] and he was cross-examined by each parent's attorney. The custody fact-finding was disrupted in July 2018 by what the Court will hereinafter refer to as the "Israel Incident", which consists of the period from June 28, 2018 through August 7, 2018, when the father and the child were essentially detained in Israel for some six weeks. As will be discussed in greater detail herein, the parties presented diametrically opposing accounts of the circumstances leading up to and taking place during the Israel Incident.
On June 28, 2018 the Court conducted an emergency proceeding to address the Israel Incident. The attorneys, but not their clients , appeared, as did the AFC. After hearing arguments from all counsel, and based upon the testimony taken to that point in the family offense fact-finding and the custody fact-finding, and based on the Court's history with the parties, the Court issued a Temporary Order of Protection dated June 28, 2018. Such required the mother to stay away from the father and the child except for parenting time pursuant to a future Court Order or a future written agreement of the parties. The Temporary Order of Protection also required the mother to refrain from enumerated hazardous acts against them and to refrain from any hazardous acts that created an unreasonable risk to the child's health, safety or welfare. The Order temporarily granted the father sole legal and sole residential custody of the child .
The Court instructed the mother's counsel to have his client present, but she did not appear.
The parties subsequently engaged in motion practice with respect to the June 28, 2018 proceeding and the Temporary Order of Protection. On December 14, 2018, the Court issued an order vacating all temporary orders in this custody matter, including the June 28, 2018 Temporary Order of Protection.
On August 16, 2018, after the Israel Incident, both parties, their counsel and the AFC appeared in Court, and on the father's application and with the consent of all counsel, the Court issued an interim order which directed Dr. Favaro to conduct an updated forensic evaluation of the parties and the child to determine the parties' respective parenting skills and decision-making relating to the Israel Incident. Pursuant to that order Dr. Favaro submitted to the Court an addendum to his written forensic evaluation dated September 4, 2018 (Pet. Ex. 13). Dr. Favaro testified on October 22, 2018 and December 10, 2018 as to his conclusions from the updated forensic evaluation.
The Court conducted three in camera examinations of the child: on January 4, 2019, February 21, 2019 and February 22, 2019. On February 22, 2019, all counsel presented oral summations.
FINDINGS OF FACT AND ANALYSIS OF CUSTODY FACTORS OVERVIEW:
Throughout both of the fact-finding proceedings, the Court was repeatedly required to admonish both parties to give responsive answers and to control their facial expressions and comments. The Court observed various family members waiting in the hallway and was presented with allegations from each attorney about improper conversations between witnesses and parties. Several of the days initially scheduled for fact-finding were dominated by colloquy from counsel.
The Court closely observed the demeanors of all witnesses during the fact-finding. There were several times throughout the fact-finding when the mother's demeanor and testimony gave the Court the impression that she was embellishing or dramatizing her testimony, even when testifying on direct examination. The Court noted several instances where her testimony on cross-examination appeared inconsistent with her earlier direct testimony. At times it appeared to the Court that the mother could not distinguish between fiction and truth. The father's demeanor was confident and respectful when he testified on direct examination. However, the Court observed that at times the father's demeanor changed on cross-examination to become argumentative and antagonistic while being questioned by the mother's attorney. Overall, however, the Court found that the father's testimony was more consistent, truth-oriented and cohesive.
As the Court advised the parties throughout the extensive fact-finding proceedings, both parties' conduct to date causes this Court concern for the child's mental and emotional well-being. While the Court finds that both parties credibly testified to loving and caring for the child, the Court agrees with Dr. Favaro's opinion that the parties are "highly incompatible individuals who show limited, if any, ability to engage in cooperative problem solving" and that "[t]he intense nature of this failure is likely to cause [the child] stress, anxiety and confusion". (Court Ex. 1, 6/22/18, p. 46). It is remarkably unfortunate that the parties were unwilling to heed the Court's repeated recommendations to put their differences aside and cooperatively resolve their dispute. The Court emphasizes that to ameliorate whatever damage they have already caused to their child, they must put forth every effort moving forward to raise him in a cooperative and collaborative manner.
BACKGROUND AND GENERAL PARENTING ISSUES:
The parties are both Orthodox Jewish. They met through the mother's brother-in-law and, after dating for approximately two months, they were married in a religious ceremony on June 21, 2010. It is apparent to the Court from the testimony and exhibits received into evidence that the parties' relationship before and after the child's birth has been volatile and unhealthy.
The mother testified about several incidents that allegedly occurred during the parties' brief courtship and early in their marriage, before she became pregnant with the child. The Court finds this testimony largely irrelevant to its custody determination except to note that the mother testified that she wanted to break up with the father from essentially their first date, having determined that the father had "issues", but her only explanation for continuing their relationship was that she "felt bad". (Tr. 4/30/18, 43:12). When she was asked on cross-examination whether anyone "forced" her to marry the father she further testified that her own mother "forced" her and put a lot of pressure on her to marry him. (Tr. 11/30/18, 38:12).
Furthermore, rather than cite to specific examples of alleged abusive or controlling behavior from the father, the mother's testimony regarding the early part of their marriage consisted of general and vague statements, which the Court found unpersuasive. For example, the mother testified that the father refused to attend marriage counseling and would instead "just badger me and abuse me and badger me and abuse me and harass me", and that he called her "disgusting things all the time". (Tr. 4/30/18, 50:16; 51:21).
After the child was born on November 12, 2011, the parties entered into multiple successive periods of separation and reconciliation, culminating in their final separation in March 2016. The mother testified that the parties' first separation period lasted 18-months, beginning in July 2012 until they reconciled in January 2014. She testified that they reconciled for an eight-or-ten-month period and separated a second time in the "fall time" in 2014. (Tr. 5/3/18, 85:10). They resumed living together in May 2015 and separated a third and final time in March 2016. The mother and the child resided at the maternal grandparents' house during the first separation period. They resided at the mother's sister S.N.'s house during the second separation period, which is also where the mother resided at the time she testified. The mother testified that she attended to all of the child's needs during the first and second separation periods and that the father visited with the child "very little" during this time. (Tr. 5/3/18, 82:5; 87:4). The parties separated for a final time in March 2016 and the mother filed her custody petition in April 2017. (Tr. 5/3/18, 95:11; Pet. Ex. 2). The mother testified that she took care of all of the child's needs from March 2016 through April 2017 as well as during the periods when the parties resided together.
In contrast, the father testified that the parties' first separation period lasted nine months, from August 2012 to April 2013. In August 2012 they filed competing custody petitions and the father was served with an Order of Protection which required him to stay away from the child for a 6-week period from August through the middle of September 2012. (Tr. 2/4/19, 45:24). The father testified that after September 2012 the child would sleep over two to three nights per week, at the father's house as well as at the paternal grandmother's house. (Tr. 2/4/19, 46:24; Resp. Ex. H).
In November 2012 the parties withdrew their respective custody petitions and the mother withdrew her family offense petition against the father. (Tr. 2/4/19, 100:22). The father testified that the parties then started attending therapy together and that from November 2012 to April 2013 the mother lived in several different locations, with different family members, while the father lived in the same location. (Tr. 2/4/19, 101:19).
While the mother testified that the parties remained separated until January 2014, the father testified that the parties, the child and some of the father's family members went to Mexico for Passover in 2013 and that the mother and the child moved back into the parties' home soon after they returned from Mexico. (Tr. 2/4/19, 50:7). The father testified that his access time was "24/7" when they resumed living together in early 2013. (Tr. 2/4/19, 50:24). He testified that the parties lived together for seven months, then in November 2013 separated a second time for a few months and then reconciled again in time for another Passover vacation in April 2014. He agreed that they separated a third and final time in March 2016.
The father described the mother's testimony about his limited parenting time with the child during separation periods as a "bogus, pure lie". (Tr. 2/4/19, 108:1). He further testified that when they separated in March 2016 he initially saw the child "whenever" he wanted, but as the parties' relationship deteriorated, the mother started to take time away from the father until it became a "tremendous problem" in April 2017. (Tr. 2/4/19, 108:25). He testified that the parties had argued because the father had demanded 50/50 parenting time with the child for the holidays and that the mother filed her custody petition soon after in April 2017. (Tr. 2/4/19, 109:23). The mother filed another family offense petition against the father in April 2017 and was not allowing him to see the child. The father then retained counsel and in June 2017, he filed for divorce and filed a cross-petition for custody. (Tr. 2/4/19, 110:12). On the father's direct case, he testified about several photographs that were entered into evidence and that depicted the couple posing together during periods of separation, including on the child's birthday in 2012, and depicted the child with the father and his family members during periods of separation in 2012, 2013 and 2014. (Resp. Exs. GGGGG-MMMMM).
The child is in his second year of school at an Orthodox Yeshiva located in xxxxx, New York. The mother testified that the child's schooling has been an issue because the father selected the child's current school and the mother did not want the child to go to school there. (Tr. 5/3/18, 108:17). She testified that she did not want the child to attend that school because of the long commute to xxxxx, particularly since he started attending the school at four years old. Furthermore, she wanted the child to attend a school where the focus was equally on education and religion instead of entirely on religion. (Tr. 5/3/18, 107:19). The mother testified that she wanted the child to attend the school where she currently works, which is an "established" school located in xx where they teach both Hebrew and English and the child is given a "chance to socialize, to be with kids". (Tr. 5/3/18, 109:12). The mother testified that there is currently a three- to five-minute drive between the parties' residences and that with traffic the drive from xxxxx to the child's current school can take forty-five minutes. (Tr. 5/3/18, 110:11). In contrast, the school where the mother wanted the child to attend is a five-minute drive from the mother's home. (Tr. 5/3/18, 111:9). It is worth noting that neither party presented any credible evidence about the curriculum in any school.
The mother entered into evidence an email dated August 24, 2017 [Pet. Ex. 55] in which her attorney contacted the father's attorney to confirm which school the child would attend for the 2017/2018 school year, and an email dated September 4, 2017 in which her attorney confirmed that the mother had registered the child for the Orthodox Yeshiva preferred by the father. (Pet. Ex. 56). The father entered into evidence an email exchange dated September 6, 2017 to September 7, 2017, in which the father asks the mother to confirm where the child has been registered for school and the mother responds by telling him to contact his attorney as the attorneys have already worked it out. (Resp. Ex. FF).
It is worth noting here that the September 6 to September 7 email exchange entered into evidence by the father overlapped with the day of the child's pediatric ophthalmologist appointment where the mother claims in her family offense petition that the father inappropriately touched her and harassed her. However, in that email exchange the parties did not mention the father acting inappropriately at the doctor's appointment. (Resp. Ex. FF). Instead, the father initiated the email exchange in the morning by asking where the mother was going to register the child for school and requesting her to confirm details about the doctor's appointment. The mother's response was time-stamped 9:12 PM on September 6, 2017 and she responded that she was not ignoring him, but that she had a hectic day. (Resp. Ex. FF). The father referenced his having asked the mother at the doctor's appointment to "relax and stop being so stiff and angry" around the child and, again the mother's response did not indicate that the father had acted inappropriately at the doctor's appointment earlier that day. (Resp. Ex. FF).
The mother testified that she spoke to the child's teachers more frequently when he first attended his current school, and that she currently speaks with them about twice a month to see how he is doing. The mother further testified that the child was in kindergarten for the second time. She testified that the child did not do well the first time he went through kindergarten and that she believes that he wasn't ready for kindergarten the first time he went through it. She testified that she would have preferred for the child to be the oldest child in the class, because she wanted school to be a "comfortable, comfort zone" for him, but the father insisted that he needed to go to kindergarten in 2015. (Tr. 5/3/18, 134:19).
On cross-examination, the mother testified that the child should "definitely" continue in an Orthodox Yeshiva school, the same type of school that he now attends, but that she does not believe that the school should be in xxxxx because there are "many great yeshivas in xx". (Tr. 11/30/18, 79:23). The father testified that he wanted the child to attend his current school because it is an orthodox school, it puts tremendous emphasis on science and math and is not just a Hebrew school. He described it as an amazing school. (Tr. 2/5/19, 61:10). He confirmed that there is a similar school located in xx. (Tr. 2/5/19, 61:21).
When the father testified on his direct case he read from the child's report card for the fall semester 2018 going into 2019 [Respondent's Ex. LLL] and attested that the child's two school absences during that time period were due to his having strep throat. He also read from and testified to emails that he sent to the mother notifying her that the child was not feeling well and would be staying home from school on those days. (Resp. Ex. QQQ). The father testified that the child had a significantly higher number of absences during the 2016-2017 school year when the child was living "[a]lmost exclusively with his mother". (Tr. 2/4/19, 15:21). He read from the child's report cards dated March 10, 2017, and June 15, 2017, and testified that the child received a mark of "needs improvement" in both report cards in the areas of "arriving to Yeshiva on time"; "coming to Yeshiva well rested and ready to learn", and "doing [his] homework". (Tr. 2/4/19, 16:18; Resp. Ex. JJJ). The child's report card dated March 10, 2017 reflected twenty-one absences and ten lateness's for the child for the relevant time period. (Resp. Ex. JJJ).
The father also read from the parties' text message exchange from January 29, 2017, in which the mother advised that the child would be going to a child's birthday party instead of school, which the father responded was "not good" because the child was "struggling in school" and "needs help". (Tr. 2/4/19, 18:19; Resp. Ex. MMM). The father testified that the child received a scholarship covering the child's full tuition for the 2018-2019 school year and that he sent a copy of the scholarship to the mother. (Tr. 2/4/19, 30:11).
Both parties testified about their respective daily routines with the child, including before and after school. Before school the mother prepares the child breakfast and they might read a book or walk outside until the bus arrives at 8:00 AM. After school, she feeds him soon after he arrives home because he doesn't eat much during the day and then he does his school homework. After he finishes his Hebrew homework she gives him English homework that she purchased for him. [Tr. 5/3/18, 105:23]. After the child finishes eating, homework and playing, the mother bathes him and he goes to bed.
The father testified that his work schedule is very flexible; he works for himself and makes his own schedule. The father is home to greet the child when he arrives home from school at 5:00 PM. The father testified that he wakes up the child with music, gets him ready for school, and if there is time before the bus he watches some television or plays with the dog. When the child comes home from school they will either go straight to homework to get it out of the way, or else the child eats a snack first and then does homework. After homework the child eats dinner, takes a bath or shower, and then goes to bed. (Tr. 2/6/2019, 108:11).
Both parties also testified about preparing food for the child to eat. The mother testified that she prepares the child's breakfast based on "whatever he's in the mood for in the mornings." (Tr. 5/3/18, 102:24). The mother testified that she sends him to school with lots of snacks because he does not like to eat lunch- whether it is offered by the school or prepared by the mother. She prepares chicken, rice, steak and kebabs for the child's dinner.
The father testified that the child usually chooses a feta cheese sandwich or cheesy eggs for breakfast, which the father makes for him, and that he packs a cheese sandwich and many snacks for the child to take to school. For dinner the father makes steak, lamb, chicken, and burgers, with a dry salad on the side, or he takes the child out to eat. He testified that the child has excellent table manners and behaves as a gentleman when out to dinner. (Tr. 2/6/19, 51:16).
The father testified about photos depicting the child's bedroom [Tr. 2/4/19, 58:20; Resp. Ex. M], and his game room and separate playroom in the father's home. (Tr. 2/4/19, 59:6). The father also testified about photos depicting the child playing with his pet turtle and dog and engaging in various activities in the 2016 to 2018 time period, such as going to the Long Island Game Farm in 2016, playing with a butterfly closure in 2018 and attending a cousin's birthday party. Photos depicting the child at his birthday party in 2017 and attending a family beach day in 2017 were also entered into evidence. (Resp. Exs. R-X).
The mother testified that she signed the child up for tennis and the father signed the child up for martial arts class. She testified that the year before the child had also played basketball and that she had borrowed money from a friend and from her sister because the father had refused to help with the costs. She testified that the child plays with his cousins, has playdates with kids from school and is with the mother's immediate family "all the time". (Tr. 5/3/18, 139:9).
The father testified that he informed the mother that he was registering the child for martial arts, that he asked for her input, and he let her know the time, date and place and the class that the child was taking. (Tr. 2/4/19, 31:10). He testified that the mother unilaterally changed the child's class from one that fit "perfectly" into the child's school, homework, dinner and shower schedule and that was age-appropriate, to a higher class at a different time, and that the mother only informed the father after the change was complete and only to demand payment. (Tr. 2/4/19, 32:24).
The Court reviewed an email exchange between the parties which confirms that the father requested the mother's input before he initially registered the child for the martial arts program. (Pet. Ex. 58). However, the parties' testimony and a review of further email communications between the parties reveals that they failed to cooperatively decide which class was best for the child, with the father preferring that the child remain in an class with younger students but which would require that the child be taken out of school early, and the mother preferring that the child be in a later class so as to not leave school early, but where the other students are older. (Pet. Exs. 61 and 63).
The father also read an email from him to the mother dated January 9, 2019, in which he informed the mother about an incident where he allegedly learned from the child that the mother had been giving the child cough medicine and he asked the mother to give him a "heads up" about the medicine and where he expressed concern about the mother unilaterally changing the child's martial arts class to one where he would be with older children. (Tr. 2/4/19, 37:10; Resp. Ex. UUU). The father read from another email he sent to the mother in which he expressed concern about the mother unilaterally getting a tutor for the child. The father wrote to the mother that he was "not against [the child] having a tutor or learning" but was against the mother taking it upon herself to make decisions for the child without notifying the father. (Tr. 2/4/19, 39:15; Resp. Ex. TTT).
The mother testified that the child had been seeing his current pediatrician, Dr. B. for three years, and that she is the parent who primarily takes the child to the doctor. However, on cross-examination she confirmed that the father had brought the child to Dr. B. several times in the months preceding the fact-finding, and that he had brought the child to other doctors as well. (Tr. 11/30/18, 61:20). The mother further testified that the child is healthy, but that he has cavities in his teeth which the father blames on her. She testified that "anytime" the child "ever got a cavity" the father was "[a]busive", verbally and physically violent toward the mother because he blamed her for the child's cavity. (Tr. 5/9/18, 36:16). She also testified about an alleged incident in 2018 where the child required a root canal in his baby tooth and there was an issue with the child's insurance being deactivated; but the father was not cooperating with getting it resolved and refused to pay for any root canals that weren't covered by insurance. (Tr. 5/9/18, 44:5, Pet. Ex. 4). The mother set up a payment plan and paid for the root canal.
Both parties testified that they are unable to successfully communicate to resolve medical and education decisions. (Tr. 5/9/18, 133:22 and Tr. 2/4/19, 119:24). The mother cited to the parties' disagreement over the child's root canal and the father's unilateral decision for the child to be enrolled in his current school. (Tr. 5/9/18, 133:16). The father cited to the mother's unwillingness to inform the father about changing the child's ophthalmologist and the child's medical treatment for his eyes. (Tr. 2/4/19, 119:20). The Court reviewed an email in which the father confronted the mother for not notifying him that she was changing his ophthalmologist and that she had ordered the child prescription glasses online. [Resp. Ex. EE].
PARENTING TIME/ACCESS
The mother testified that she complied with this Court's "Temporary Order of Visitation on Notice" dated June 16, 2017 [Pet. Ex. 5]; with the Court's Holiday Schedule Order issued on consent in September 2017 for Rosh Hashanah and Yom Kippur in 2017 [Pet. Ex. 9]; and with the Court's Temporary Order of Parenting Time issued on consent, which related to the parties' parenting time for the Purim and Passover holidays in 2018. (Tr. 5/9/18, 71:17; Pet. Ex. 10).
The Court's Temporary Order of Parenting Time issued February 28, 2018, was entered into evidence on consent. (Tr. 5/9/18, 121:8, Pet. Ex. 11). Such provided the father with parenting time on alternate weekends effective March 8, 2018, from Thursday after school until timely return to school on Monday morning, with additional weekly parenting time on Tuesdays after school until 8:30 PM. (Pet. Ex. 11). The mother testified that after the Court issued that temporary order the child came home from school and screamed and yelled and spit at the mother. She testified that the child was not in therapy at that time, that she wanted the child in therapy and that the parties had previously had "many" conversations about it but that the father did not want the child to see a therapist. (Tr. 5/9/18, 132:18).
On cross-examination, the mother confirmed that after the Israel Incident there was a Temporary Order of Protection which granted the father temporary full custody of the child. She further confirmed that the order required her to stay away from the child, subject to any parenting time agreed to between the parties and that the parties and their counsel formulated a temporary agreement governing the mother's parenting time under that Temporary Order. (Tr. 11/30/18, 72:10). She confirmed that the father complied with the mother's agreed-upon access time. (Tr. 11/30/18, 72:10).
She further confirmed that the parties' attorneys also worked out an access schedule for the Rosh Hashanah and Yom Kippur holidays in 2018. The mother acknowledged that she returned the child late on the Rosh Hashanah holiday, and that with respect to the Yom Kippur holiday, she returned the child at 9:30 PM, eleven-and-a-half hours late. (Tr. 11/30/18, 73:2). She subsequently testified that she failed to timely return the child on Yom Kippur because she mistakenly brought the child to the wrong drop-off location. However, she was confronted with an email exchange with the father in which she confirmed the drop-off location. (Tr. 1/3/19, 88:3; Resp. Ex. D). The Court found her testimony unpersuasive that she returned the child late because she was fasting and felt faint and that she reasoned that the father "knew where [she] was" and could come pick up the child if he was "feeling okay". (Tr. 1/3/19, 90:3).
The father testified that after the Israel Incident and while the Temporary Order of Protection against the mother was still in effect, the parties agreed to a schedule for the mother's parenting time. He testified that the mother exercised parenting time every other weekend, that the parties split the holidays and that he gave the mother additional parenting time each time that she requested it. (Tr. 1/14/19, 119:22). He further testified that in two instances he gave her additional parenting time without her asking for it. (Tr. 1/14/19, 120:6).He testified that he never asked the mother if she wanted additional overnights with the child during that time and that she did not request additional overnights. Therefore, he believed that the mother was satisfied with the parenting time that she had. (Tr. 1/14/19, 134:3). He subsequently testified about the child's birthday in 2018, while the parties were still under the Temporary Order of Protection, when the mother emailed him requesting to FaceTime with the child for his birthday, and the father responded by asking if she wanted to pick the child up from school at 2:00 PM and return the child to the father's house at 5:00 PM that evening. (Tr. 2/6/19, 117:22; Resp. Ex. TTTT). The mother replied "Yes" and thanked the father for his offer. (Resp. Ex. TTTT).
The father testified that from the time the child started attending school until February 2017, he picked up the child from school on Fridays because the mother worked and could not pick him up. (Tr. 2/5/19, 54:6). At that time the parties agreed upon that arrangement and there was no court order in place. The father further testified that in February 2017 the mother "decided" that the father was no longer allowed to pick up the child from school on Fridays and started sending her brother to pick up the child from school. (Tr. 2/5/19, 54:22). The Court reviewed emails entered into evidence confirming that the Friday school pick up arrangement had been changed without the father's consent or notification. (Resp. Exs. OO and AAAA).
The father also entered into evidence an email dated May 29, 2017, in which he requested splitting the Shavuot holiday and the mother replied "We have a schedule. There's no splitting anything". (Resp. Ex. PP).
On cross-examination, the father confirmed that from August 4, 2017 through February 28, 2018, the father's court-ordered parenting time with the child was on Tuesdays and Thursdays after school until 7:00 PM and that during that time period there were "many times" that he brought the child home after 7:00 PM. (Tr. 2/11/19, 72:21). He testified that he initially believed that he was required to return the child at 7:30 PM and was not aware that the return time was 7:00 PM until the mother forwarded him a copy of the order. (Tr. 2/11/19, 73:17). He testified he never dropped the child off more than a half hour late and that he no longer dropped the child off late once the mother forwarded him a copy of the Order with the correct time. The father testified that he did not recall an email from the mother dated March 25, 2017 and time-stamped 8:26:42 PM in which the mother asked why the father was "over" half an hour late dropping the child off. (Tr. 2/11/19, 80:6; Pet. Ex. 64). The six additional emails that were entered into evidence addressing the father's late return of the child indicated that he dropped him off between five and twenty minutes late. [Pet. Exs. 65-70]. Additionally, when the father testified he entered into evidence nine emails during that same time period and testified that the mother "harassed" him by sending such emails either a few minutes before 7:00 PM or just after 7:00 PM to inform him that the drop-off time was 7:00 PM and that he shouldn't be late dropping off the child. (Tr. 2/20/19, 54:20; Resp. Ex. EEEEE).
When the mother was asked on cross-examination to propose an access schedule if she were granted sole custody, she initially responded that she only had a "very vague" idea for a proposal. (Tr. 11/30/18, 76:24). After several ambiguous and vague responses, the mother testified that she wanted the child to "have access freely with his father" and proposed alternating weekends, from Friday through Sunday, with one weekly overnight visit on Thursday and one weekly dinner visit on Tuesday or Wednesday nights. (Tr. 11/30/18, 78:18 and 83:11). The mother testified that the holidays should be divided equally and that each parent should have at least two to three weeks each for summer vacation. (Tr. 11/30/18, 79:4).
The father testified that if he were granted sole legal and sole residential custody, then the mother's parenting time should be Thursday night through Tuesday morning every other week and a Wednesday overnight every other week. (Tr. 2/7/2019, 48:8). He agreed that the parties should split the holidays and should have equal summer parenting time. (Tr. 2/7/2019, 48:17). He testified that, after aid and scholarship, he would pay for all expenses associated with the child continuing to attend the Orthodox Yeshiva in X, including tuition, clothing, and transportation. (Tr. 2/7/19, 48:25).
MOTHER'S ALLEGATIONS OF FATHER'S SUBSTANCE ABUSE, MENTAL ILLNESS AND DOMESTIC VIOLENCE:
The mother's proffered basis for seeking sole legal and sole residential custody of the child is largely based on allegations that the father has substance abuse problems, is mentally ill, and is physically and emotionally abusive. (See Verified Petition of L.M. dated Jan. 20, 2017, ¶ 12). Additionally, Dr. Favaro testified that the mother had expressed concerns to him about the father's alleged substance abuse, that he is not vigilant enough for the child, and that she had concerns about his temper and aggression.
The Court finds that the mother failed to establish that the father has either substance abuse problems or that he suffers from any mental illness. In fact, the mother failed to introduce any documents into evidence or testimony to substantiate such allegations. Additionally, while the mother testified about the father's drinking habits while the parties were married and living together, she admitted on cross-examination to having no direct knowledge of his drinking since they had separated in March 2016. (Tr. 11/30/18, 66:15). The Court finds that the mother's allegations of substance abuse were addressed in the parties' matrimonial action, and that all of the father's drug and alcohol testing has returned negative. (Petitioner's ["Pet"] Ex. 14; Tr. 10/30/18, 6:9; Tr. 11/30/18, 66:18; Tr. 2/5/19, 67:23). Furthermore, Dr. Favaro also testified and noted in his report that he had no data or evidence substantiating the mother's allegations of drug or alcohol abuse. (Court Ex. 1, p. 46; Tr. 6/22/18, 67:10).
Likewise, on questioning by the father's attorney, Dr. Favaro confirmed that the mother asserted to him the issue of the father's mental health on multiple occasions. (Tr. 6/22/18, 53:10). However, neither the testimony, nor the documents received into evidence, supported the mother's allegations that the father suffers from mental illness and Dr. Favaro opined in his report and confirmed in his testimony that he did not find either party to suffer from any form of mental illness. (Court Ex. 1, p. 46; Tr. 6/22/18, 76:7).
With respect to the mother's allegations that the father is "physically and emotionally abusive", the Court notes as a threshold matter that no testimonial or documentary evidence was submitted indicating that the father ever abused the child in any manner. The Court finds the mother's testimony that she had observed the father punish the child by making him stand in a dark garage for half an hour [Tr. 5/3/18, 100:25] unpersuasive and inconsistent with the father's credible testimony and the documentary evidence addressing the nature of the father and the child's relationship.
The mother testified during the custody fact-finding to several alleged incidents of domestic violence by the father, including incidents alleged to have occurred in private, others alleged to have occurred in front of family members, and, most troubling, some incidents alleged to have occurred in front of the child. It goes without saying that the Court takes extremely seriously allegations of domestic violence and, accordingly, carefully observed the credibility and analyzed the testimony of the mother and the other witnesses who testified about such alleged incidents of abuse. However, the Court notes that, as reflected in the statutory text of DRL § 240(1)(a) and as addressed in Dr. Favaro's report, allegations of domestic violence are not themselves sufficient; the allegations must be proven by a preponderance of the evidence .
DRL § 240(1)(a) provides, in pertinent part, that "[w]here either party to an action concerning custody of a child alleges in a sworn petition that the other party has committed an act of domestic violence against the party making the allegation and such allegations are proven by a preponderance of the evidence , the court must consider the effect of such domestic violence upon the best interests of the child". (DRL § 240[1][a] ) (emphasis supplied).
Moreover, while Dr. Favaro cited to the importance of the Court's consideration of domestic violence allegations, he correctly referred the issue to the Court to determine the parties' credibility, which is outside of the scope of his expertise. (Ct. Ex. 1, pp. 27; Tr. 6/22/18, 49:4). Dr. Favaro pointed out while the mother's allegations of "battery, manipulation and coercive control" are important to the Court's custody determination, it is "equally important" to consider the accuser's motivation and whether the allegations lack credibility because of "malicious intent on the part of the accuser". (Ct. Ex. 1, pp. 27, 46). Dr. Favaro explained that "it costs nothing" to assert allegations of domestic violence but "there should be a risk to a person who makes allegations maliciously, because that is a form of interference with someone's relationship with their child. If somebody makes a malicious accusation found not to be credible, then from the point of view of the psychological well-being of a child the judge might want to take into consideration impact of that malicious behavior". (Tr. 6/22/18, 78:5).
In this case, the Court had the extensive opportunity to assess both parents' credibility, as they both testified first in the family offense fact-finding and then testified on multiple separate days during the custody fact-finding. The Court notes that there were incidents of alleged domestic violence that the mother testified about in the custody fact-finding, but she did not testify about in the family offense fact-finding, which preceded the custody hearing by a few months, when the mother's recollection of these events would have presumably been more accurate. The Court also heard from three witnesses for the mother—her two sisters, S.N. and Z.S., and G.R., and from the father, and assessed the credibility of all witnesses. The father denied many of the allegations of domestic violence but admitted that there were times that he was inappropriately physical with the mother and claimed that both parties were at times violent with each other.
Overall, and as discussed in greater detail below, the Court finds that the mother appeared to embellish or at times dramatize certain allegations of abuse by the father, and that the evidence indicates that the parties had a tumultuous relationship which at times resulted in them acting violently with each other. This finding is based upon the Court's observation of the demeanors of all the witnesses, its analysis of each witness's sincerity, the improbability or probability of his or her testimony, and the report and testimony of Dr. Favaro.
Additionally, the Court reviewed email correspondence between the parties from early 2017 in which both parties referenced acting violently toward each other. (Pet. Ex. 71 "[father:] U like chewing on my skin. Taste of my blood animal. I'll fight u till death [mother:] Don't text me. Trying to choke me holding my mouth shut and holding my nose. U deserve to not have any hands left"; Pet. Ex. 72 "[father:] Now go find someone u can bite pieces of there [sic ] flesh out completely. Throw them down stairs. And say. I'm sorry. [mother:] If u pull all my hair out while throwing my head up and down the floor then shove ur [sic ] fingers in my mouth what do u expect me to do? Ur [sic ] lucky u have a hand. Hahahaaaa").
THE JANUARY 2016 "WAITER INCIDENT" AND SUBSEQUENT VIOLENCE AT S.N.'S HOUSE
A significant portion of the mother's direct case was spent addressing an incident that occurred in January 2016, which began with the couple going out to dinner at a restaurant and ended with the police being called to the residence of the mother's sister S.N. The Court heard testimony about this incident from the mother, her sister S.N., a waiter named G.R., and from the father. The Court found that none of the witnesses' testimony was entirely credible as to what occurred. Rather, the Court found that each witness's testimony was so partisan that it gave the impression that he or she was motivated by a personal agenda and made it nearly impossible to determine the actual sequence of events that occurred that night. Additionally, all involved should be ashamed of their behavior and has the Court questioning the parenting ability of all involved.
By all accounts, when the father and mother went to dinner that night in January, the father got into a verbal altercation with a member of the restaurant's staff. The mother briefly testified about that altercation early in the custody fact-finding. She testified about a time in January 2016 when she went out to dinner with the father, and returned to their table from the restroom to find him in their waiter's face "screaming and cursing and shouting and yelling" at him for some reason that she did not know at the time of the incident. (Tr. 5/3/18, 132:17). She also testified that the father chased the waiter throughout the restaurant, and that he was "cursing him and shouting at him and yelling". (Tr. 5/3/18, 133:19).
G.R., the waiter with whom the father got into the altercation, testified on the mother's behalf in January 2019. The Court found Mr. R.'s testimony largely unpersuasive, primarily because he failed to testify responsively to any questions and instead responded with rambling narratives containing irrelevant and superfluous statements, which gave the Court the impression that he had his own agenda. Furthermore, the Court found Mr. R.'s testimony mostly irrelevant, except that he testified that the father had followed him across the restaurant and was "brandishing" [Tr. 1/3/19, 123:3] a fork in his hand while he threatened to "gouge [Mr. R.'s] fucking eyes out with [the] fucking fork". (Tr. 1/3/19, 102:9). The Court also noted that throughout his testimony he referred to the mother by her first name, "L.", while he referred to the father as "Mr. M.", and he could not rationally explain why he referred to them in such a way, which gave the Court the impression that he might have had a more familiar relationship with the mother, on whose behalf he testified, than he was representing to the Court. (Tr. 1/3/19, 125:10).
The father, for his part, testified that his "completely verbal" altercation with the waiter occurred after he observed the waiter and the mother acting "inappropriately" by laughing and chatting. (Tr. 1/14/19, 170:21; 173:3). The father told the waiter to get away from their table and not come back, but he denied "brandish[ing] any sort of cutlery to threaten or intimidate or chase" anyone. (Tr. 1/14/19, 169:23). The Court finds that the testimony indicates that the father's altercation with Mr. R. involved no physical contact and was at most limited to some threatening remarks from the father.
At a subsequent fact-finding date, nearly one week after the mother testified about the father's altercation with the waiter, she testified about the events that occurred after the parties left the restaurant. The mother testified that the father blamed her for his altercation with the waiter and that he screamed, cursed and yelled at her while they drove to her sister S.N.'s house to pick up the child (because S.N. was babysitting him). (Tr. 5/9/18, 28:2). In contrast, the father testified that the parties did not say one word to each other during the car ride to S.N.'s house. He testified that the mother's "inappropriate behavior" with other men had occurred more than once, and "there was no conversation necessary". (Tr. 1/14/19, 172:17 and 173:3).
The Court heard extensive testimony from the mother, her sister S.N. and from the father regarding what occurred at S.N.'s house that night. The mother and S.N. both testified that the father subjected the mother to a "horrific" beating [Tr. 1/4/19, 56:21], while the father testified that he did not instigate the physical violence, that he "completely defended" himself, and that "a lot of regrettable things" happened that evening. (Tr. 01/14/19, 141:24).
Again, the Court observed each witness's demeanor and assessed his or her credibility while testifying. The mother and S.N. testified inconsistently about whether S.N.'s husband was present for the father's alleged beating of the mother, with the mother testifying that her brother-in-law entered the room and tried, unsuccessfully, with S.N. to pull the father off of the mother, but the father kept pushing them off. (Tr. 5/9/18, 34:12). She testified that the father threatened all of them- the mother, S.N., and S.N.'s husband- to give fake names to the police. In contrast, S.N. did not testify about her husband being present until she was questioned on cross-examination, at which point she testified that her husband was taking a shower "very far" from the den where the alleged beating was taking place, and that he did not enter the room until "towards the end" when the mother was on the floor and crying. (Tr. 1/4/19, 48:4). S.N. testified that the father directed the mother that he and the mother would be giving fake names, and that she (S.N.) gave her real name to the police. (Tr. 1/4/19, 34:10).
The father confirmed that he and the mother each gave fake names to the police although he was apparently less than forthcoming with the Court as to whose idea it was to use fake names. He first testified that he could not recall whose idea it was to use fake names and he could not explain how it came to be that he and the mother both gave the police the same fake last name. (Tr. 1/14/19, 143:8). He subsequently testified that it was the mother's idea to give the police fake names, and then switched his testimony again to state that he could not recall whose idea it was to use fake names. (Tr. 1/22/19, 16:18 compared with Tr. 1/22/19, 16:23).
The mother testified that the father "slammed" her against the wall with her head, and that he continued pulling her hair and banging her against the walls, and that he continued to beat her even while S.N. was on the phone with the police. (Tr. 5/9/19, 34:15). She testified that when her sister hung up the phone the father "just let go" and ran out of the house. (Tr. 5/9/19, 34:16). In contrast, S.N. testified that when she announced she was going to call the police, the father was "standing there and he was hesitating", that the mother was on the floor crying and that the father then ran out of the house. (Tr. 1/4/19, 32:5).
The witnesses' testimony differed as to whether the children- S.N.'s two children and the parties' child- were present for certain aspects of the alleged beating. Furthermore, the Court found S.N.'s testimony to be incredible as far as the father allegedly pulling the mother's natural hair out of her head, resulting in balls of her hair being all over the den, and S.N. intentionally cleaning up those balls of hair and throwing them out before the police arrived in hopes of covering up the incident. (Tr. 1/4/19, 55:22). Likewise, it is incredible that the father could have subjected the mother to such a horrific beating, but the extent of the blood at the scene was limited to, as S.N. testified, the mother's feet "maybe" being scratched up. (Tr. 1/4/19, 56:1).
The testimony establishes that the police arrived, spoke separately to the mother, the father and S.N., and left without arresting anyone. The Court finds it incredible that after such an allegedly horrific beating, involving the mother being kicked, thrown against a wall, slammed to the floor, balls of hair pulled out of her head [Tr. 1/4/19, 46:14] that the police would just leave without arresting the father- even if he gave them a fake name- and even if, as S.N. testified, she told them that the parties were just "verbally fighting". (Tr. 1/4/19, 54:14).
The Court observed the father be argumentative and antagonistic while being questioned by the mother's attorney. Furthermore, the Court finds that a significant portion of his testimony was also incredible, including his testimony that the mother bit his thumb, then sat back and spit out the chunk of flesh that she took from his thumb [Tr. 1/14/19, 144:3], and that he was "bloodied up" while no one else had anything else on them, and the police simply let them all go home without incident. (Tr. 1/14/19, 143:19). Equally incredible is his testimony that he wrapped his bloodied thumb in a napkin and concealed it from the police by putting it in his pocket because he did not want the mother to get in trouble with the police. (Tr. 1/22/19, 13:17). The Court further notes that the father testified that he was truthful while speaking to the police, except that he "left out" all of the mother's physical acts against him. (Tr. 1/22/19, 15:1).
The father, like the mother, testified in a non-responsive way about the events of this night, particularly when he was questioned by the AFC. The father was also apparently less than forthcoming as to whether he pulled off the mother's wig that night. When the AFC asked the father if he pulled off the mother's wig, the father did not answer "yes or no" but rather testified that he did not pull off the wig "[b]ut it did fall off". (Tr. 1/14/19, 176:7). He later testified that he did "not recall" if he pulled off the wig, then testified that he did not pull off the wig. (Tr. 1/22/19, 11:2 compared with 1/22/19, 11:11).
Overall, the Court found that the testimony about that night's events established that both parties lied to the authorities. The parties' lying to the authorities is an example of their lack of respect for truthfulness; something this Court is cognizant of. Moreover, considering the probability or improbability of each witness's testimony, the Court finds that the parties were most likely violent with each other that night, but further finds that each witness likely embellished upon the extent of the violence and that neither parent was as innocent as he or she represented to the Court.
ADDITIONAL ALLEGED INCIDENTS OF DOMESTIC VIOLENCE ASSERTED BY THE MOTHER:
In addition to the above incident in January 2016, the mother also testified to several other incidents of domestic violence alleged to have taken place during the parties' marriage, including two incidents alleged to have occurred before the child was born. She testified about an incident alleged to have occurred when she was pregnant in August 2011, while the parties were hosting guests at their home. The mother testified that she asked the father if she could leave the parties' bedroom to get a cup of water and the father "slammed" her against the wall. (Tr. 5/3/18, 46:12). She also testified about an incident in which the father attacked her on the couch and that when she took a mug and held it out in front of her, the father grabbed the mug out of her hand and started bashing it into his head, requiring the parties to go to the emergency room. (Tr. 5/3/18, 48:21). The Court noted that the mother failed to answer questions about this incident responsively, and instead responded with superfluous narrative responses instead of the appropriate "yes" or "no" response.
The mother testified that the parties' relationship worsened after the child was born and that the father would tell her that she loved the baby "too much" and that she could only love him. (Tr. 5/3/18, 49:24). The mother's demeanor and testimony gave the Court the impression that she was embellishing or dramatizing when she testified that after the child was born the father would sit on her, holding her mouth and her hands together, to the point where she felt like she was going to die. (Tr. 5/3/18, 50:8). This was also the Court's impression when she testified that one month after the child was born the parties got into an argument, she started crying because she thought that he was going to hurt the child, and the father then grabbed the child out of the stroller "for no reason", then ran over to her and smacked her in the face. (Tr. 5/3/18, 52:17). When the mother asked him "what the hell" he was doing, he smacked her again, and he eventually put the child down, ran over to the mother, "chucked" her to the floor, sat on her and held her mouth. (Tr. 5/3/18, 53:4).
The mother, her sister Z.S. and the father all testified about an incident that allegedly occurred at a Purim celebration at Z.S.'s house in March 2012. The mother, Z.S. and the father all testified to different versions of what transpired at the house: the mother testified that she observed the father scream at Z.S. while he was shaking the baby in his arms and that he was screaming at Z.S. because she had told the mother to eat liver and the father didn't want the mother to eat liver. (Tr. 5/3/18, 55:6). In contrast, Z.S.'s testimony gave the Court the impression that the mother was in a separate room when the father yelled at Z.S. (Tr. 1/11/19, 12:2). The Court also notes that Z.S. did not testify that the father shook the baby, even when she was specifically asked where the baby was, what the baby was doing, and what the father was doing with his hands. (Tr. 1/11/19, 11:3). The father testified that after Z.S. had suggested that they give the child liver to suck the juices, he told her "maybe not so politely" that she should mind her own business about how the parties handle their child. (Tr. 2/5/19, 39:13).
The Court did not find the alleged incident at Z.S.'s house remarkable or relevant to the custody determination except to note that, once again, the testimony of each party and the mother's witness was so partisan so as to give the Court the impression that each was advancing an agenda rather than truthfully recounting the events. Likewise, when the mother and father then testified about what happened the night after the Purim barbeque, neither party gave the Court the impression that he or she was credibly testifying. The mother testified that the father woke her at 4:00 AM and subjected her to a violent beating. Having observed the mother's demeanor and mannerisms while testifying, it appeared that she was embellishing or dramatizing when she testified that the father sat on her and spit on her seven times, and that it was not just a "regular spit", but a "disgusting mucus spit" and that he counted out loud each time after he spat. (Tr. 5/3/18, 58:15). Her testimony also appeared implausible, in that she testified that the father did not wake her up until 4:00 AM, early morning, but then testified that the alleged beating left her so drained that she could not nurse her baby when he would cry to be fed in the middle of the night. (Tr. 5/3/18, 59:1).
While the mother testified that the father brutally and violently beat her, the father portrayed himself as entirely innocent. He testified that the child woke up crying early that morning and when he walked around the bed to tend to the child the mother woke up and started screaming to get his hands off her "F'ing" baby. (Tr. 02/05/19, 42:14). Like the mother, the father also gave the appearance of testifying somewhat insincerely. The father testified that he took two fingers, put them on the mother's lips and told her "shoosh, calm down, relax", that he told her that the child is not "her" baby and that he was going to sleep on the couch. (Tr. 02/05/19, 42:16). Overall, each party's testimony gave the impression that he or she was not completely forthcoming when testifying about the events of that night.
The mother testified that the parties received therapy from "A.M." for five- to-six months in 2013, and that no violence occurred in their relationship during that time. (Tr. 5/3/18, 64:4). However, she then contradicted herself by testifying that an alleged incident of domestic violence occurred in July 2012, while the parties were being treated by A.M., even though she had just previously testified that A.M. treated them in 2013 and that no violence occurred while they were being treated. (Tr. 5/3/18, 67:11).
The Court also found the substance of the mother's testimony relating to the July 2012 incident to be incredible. She testified that she came to the paternal grandparents' house with the parties' child in the stroller and that the father was "shouting and screaming and cursing" in her face. (Tr. 5/3/18, 68:24). The mother testified that the father "violently" shook her and chased her throughout the house, while the paternal grandparents were in the kitchen. (Tr. 5/3/18, 69:23). She then testified that the father grabbed the child and shook him while he simultaneously "shoved" and "grabbed" the mother to the floor, and that he "threw" her to the floor and caused her to scrape her knees on the floor, all while shaking the child in his arms which caused the child's tongue to come out. (Tr. 5/3/18, 70:1) The mother called the police to the paternal grandparents' house and the parties then separated following that July 2012 incident. (Tr. 5/3/18, 72:2). The mother testified that in July 2012, one or two weeks after that incident, her sister took a photo which depicted her arm with bruises. (Tr. 5/3/18, 75:21; Pet. Ex. 1). The photo was entered into evidence over objection by the father's attorney. (Tr. 5/3/18, 75:21; Pet. Ex. 1).
The father's testimony about the parties' altercation at his parents' house differed significantly from the mother's version of the events. He testified that the fight occurred on August 11, 2012, not in July 2012 as the mother had testified. He further testified that the parties argued at his parents' house because it was a Shabbat day and the mother did not return with the child from their visit with the mother's sister until 9:30 PM or 10:00 PM that night, eight hours later. (Tr. 2/4/19, 76:6). The Court finds that the father credibly testified that after the parties started fighting, the paternal grandfather took the child in a different room. The father further testified that the mother told him that she wanted to get a divorce and that when he agreed with her she began to try to kick him in the groin. (Tr. 2/4/19, 76:18). He testified that he grabbed her by the biceps to stop her from kicking him, and that after he let her go she ran to the kitchen and he stayed in the living room. (Tr. 2/4/19, 77:7).
He credibly testified that the police arrived at the grandparents' house and they questioned the parties separately. Members of the mother's family subsequently arrived at the father's parents' house, and the police left at the same time that the mother and the child left the house with the mother's family members. (Tr. 2/4/19, 78:7). He testified that the next day he called the mother "maybe 100 times" trying to see how the child and the mother were doing, but he was unsuccessful, and that he was soon after served with an Order of Protection and the parties subsequently filed their cross-petitions for custody. (Tr. 2/4/19, 80:18). He also testified that CPS came to the parties' home twice and conducted two investigations and that he told CPS that the charges against him were completely false. (Tr. 2/4/19, 86:6). A letter from the Office of Children and Family Services ["OCFS"] dated October 30, 2012 was then entered into evidence on consent. (Resp. Ex. WWW). The date of OCFS intake on the matter was August 14, 2012, consistent with the father's testimony. (Resp. Ex. WWW). The letter states that the report was marked "unfounded" because CPS's investigation revealed "no credible evidence" that the child had been abused or maltreated. (Resp. Ex. WWW).
After observing both parties' demeanors and analyzing their testimony for consistency and probability or improbability in light of the documents received into evidence, the Court finds that the father testified more credibly than the mother about the altercation at his parents' house.
Over objection of the father's counsel, a second photo was received into evidence (Pet. Ex. 3), which the mother testified was taken in November or December 2015 and which she testified depicted injuries that she sustained by the father on a Shabbat day in November or December 2015. (Tr. 5/3/18, 147:10). The mother testified that on that day, the parties were in their home and the mother was sitting on the couch and was upset because they could not go out for Shabbat. She testified that the father approached her and kicked her in the thigh, and when she got up to run away, the father grabbed her, "bashed" her against the brick wall in the kitchen and scratched and dragged her on the floor into the other room where he continued to pull her hair and scratch her. (Tr. 5/3/18, 150:4). She testified that she took one of the photographs in Pet. Ex. 3, that her sister took the other photograph in Pet. Ex. 3, and that both photographs were taken in November or December 2015. (Tr. 5/3/18, 152:16).
In contrast, the mother's sister Z.S. testified that the mother showed up at her house one day in May 2012 and that on that day Z.S. took all three of the photographs in Petitioner's Exhibits 1 and 3, to document the father's abuse of the mother. (Tr. 1/11/19, 22:25; 68:5). The Court found a lack of consistency in the testimony of the mother and her sister Z.S. Z.S. also appeared less than credible to the Court when she testified inconsistently about whether she heard the mother on a phone call with a domestic abuse hotline. (Tr. 1/11/19, 71:4).
The father testified that he did not recognize the mother's injuries depicted in Petitioner's Ex. 3, and he testified that the photo in Petitioner's Ex. 1 had previously been circulated around the parties' community in August 2012 after their first separation. (Tr. 1/14/19, 163:11). He testified that he did not know where the marks on the mother's arms came from, but he admitted that the marks looked like where he would hold the mother on her biceps while pushing her off of him. (Tr. 1/14/19, 164:11). He testified that "in some cases" he saw himself as a victim of the mother's domestic violence against him, that in other cases they were both responsible, and that he defended himself against the mother several different times. (Tr. 1/14/19, 165:10). The father further testified that there were "[a] lot of times, when [the mother] went into her rage" that he "would hold her" which would make "the situation much worse". (Tr. 1/14/19, 166:12). The father testified that he did not take any photographs of his "90-pound wife abusing him" and that it was "very" embarrassing. (Tr. 1/14/19, 168:4).
The Court finds that although the father testified to owning a rifle, there was no evidence or testimony demonstrating that the father ever used his rifle in an unsafe or inappropriate way with the mother or the child.
ALLEGED INCIDENTS OF DOMESTIC VIOLENCE ASSERTED BY THE FATHER:
On the mother's direct case, the father testified to defending himself against acts of violence from the mother. On his direct case, the father testified further about alleged incidents of violence from the mother. The Court notes, in the first place, that the father did not include any allegations of domestic violence from the mother in his cross-petition for custody. The father testified to an incident where the parties got into an argument while driving home after going out to dinner, the mother took the key out of the car's ignition while the car was running, and when the father reached over to grab the key back, the mother took a bite out of the top of his hand. (Tr. 2/4/19, 53:6). The father testified as to a photograph depicting his hand with the bite mark he sustained from the mother's alleged bite. (Resp. Ex. I). He testified to another alleged incident where the mother ripped out the car charger and threw it out the window, and scratched the father, causing him to sustain an injury on his hand. (Tr. 2/4/19, 55:6; Resp. Ex. J).
The father also testified that a photo entered into evidence [Resp. Ex. K] depicted the father's thumb after the parties' altercation at S.N.'s house in January 2016, when the mother allegedly bit his thumb, taking out a piece of skin and causing his entire nail bed to turn black and blue. (Tr. 2/4/19, 56:4). He testified that the photo was taken after the thumb had healed.
THE "ISRAEL INCIDENT":
On May 9, 2018, the parties, with counsel, appeared for the continued custody fact-finding and the father requested permission to travel to Israel with the child for one week to attend his nephew's Bar Mitzvah. Following an off-the-record conference between counsel and the parties, the mother's counsel stated on the record that the mother was consenting to the father and child traveling to Israel for the Bar Mitzvah celebration. (Tr. 5/9/18, 115:15; 120:9). With the mother's consent , the Court then permitted the father to travel to Israel with the child for the week-long trip.
The parties and all counsel appeared at the next fact-finding date on June 22, 2018, for the direct and cross-examination of the forensic evaluator, Dr. Peter J. Favaro, Ph.D. The forensic evaluation was received into evidence as Court Exhibit 1 and it was stipulated that Dr. Favaro is an expert in child clinical psychology and psychology and that he is qualified to present a forensic evaluation to the Court. (Tr. 6/22/18, 9:10). At the conclusion of that fact-finding date the matter was adjourned to August 16, 2018 for continued fact-finding.
On June 28, 2018, the father's counsel applied for an emergency proceeding, contending that the father was being detained in Israel indefinitely as a result of the mother initiating a proceeding against him in the Israeli Beit Din. The Court conducted an emergency proceeding that day. The Attorney for the Child and the parties' respective counsel appeared in court, although the parties themselves did not appear. The Court instructed the mother's counsel to have his client appear, but she failed to do so. The father did not appear because he was detained in Israel. The mother did not appear, and her then-counsel and the Attorney for the Child represented that they were unsuccessful in efforts to contact her and inform her of the emergency proceeding. (Tr. 6/28/18, 17:7). The mother's counsel subsequently represented to the Court that she had been on a plane traveling to Israel at the time of the June 28, 2018 proceeding, which accounted for counsels' inability to contact her that day.
(Tr. 8/16/18, 22:25).
After hearing arguments from all counsel, and in light of the Court's extensive history with the parties, the numerous court appearances where the Court observed the parties' demeanor, and in consideration of the testimony received in the family offense fact-finding and the extensive testimony taken from the mother and the testimony from Dr. Favaro taken in the custody fact-finding to that point, the Court issued a Temporary Order of Protection dated June 28, 2018, which, inter alia , temporarily granted the father sole legal and sole residential custody of the child and required the mother to stay away from the father and from the child, except for parenting time as agreed to between the parties or as provided in a further Court order. (Tr. 6/28/18, 47:22). The father and the child remained in Israel for approximately six weeks, from June 28, 2018 to August 7, 2018. The mother traveled to Israel twice while the father and the child were there; the first time at the end of June and the second time she arrived August 5, 2018 .
(Tr. 10/25/18, 58:14).
On October 22, 2018 and December 10, 2018, Dr. Favaro appeared and testified about his supplemental forensic evaluation, which addressed the parties' respective parenting skills and decision-making relative to the Israel Incident. Dr. Favaro's supplemental evaluation was based on each party's submission of a written timeline and his interviews with both parties and with the child. Dr. Favaro's supplemental written evaluation was entered into evidence (Pet. Ex. 13).
The Court notes that, perhaps representative of the mother's apparent refusal to accept responsibility for negative consequences, Dr. Favaro stated in his updated evaluation that the mother apologized to his office for her failure to timely submit her timeline as required under this Court's order, but at the same time she also blamed Dr. Favaro's office for her failure to do so. (Pet. Ex. 13, p. 2).
--------
The mother and father also testified about what happened during the Israel Incident. Each parent's respective version of events diametrically opposed the other parent's version. After hearing testimony from Dr. Favaro, the mother and the father, and reviewing Dr. Favaro's written supplemental evaluation [Pet. Ex. 13] and the documents entered into evidence, the Court finds that the father testified more credibly as to his version of events. In contrast, the Court finds that the mother was less than forthcoming in her interviews and written representations made to Dr. Favaro and in her testimony to the Court, and that her representations likely reflected her efforts to distance herself from responsibility for the Israel Incident. Moreover, the Court was required to strike much of the mother's testimony about the Israel Incident, as it was unresponsive, based on hearsay or otherwise improper.
First, the mother was not forthcoming when she represented to Dr. Favaro that the Court permitted the father to take the child to Israel with her "forced consent " (Ex. 13, p. 11; Tr. 10/22/18, 118:19). The mother's attorney at the time, Mr. Barbara, represented on the record in Court on May 9, 2018 that the mother was not only consenting to the father and child's trip to Israel, but also that the mother would not be requesting make-up time for any of her weekly parenting time days that the child would be spending in Israel with the father. (Tr. 5/9/18, 115:15; 120:9).
The mother testified that once it became clear that the father and the child would be traveling to Israel, she confided in her friend, B.B.C., and expressed her concerns about them going abroad together without her, her concerns about the father's violent past and about whether he would lose his temper with the child. (Tr. 10/23/18, 42:21). Mr. B.C. is an attorney but has not represented the mother in this litigation. The mother testified that Mr. B.C. then spoke to his father, who is a Rabbi in xx. Mr. B.C. and Rabbi B.C. then both contacted the mother and brought up using the Israeli Beit Din to convince the father to give the mother her Get, i.e. a Jewish divorce.
The mother testified that the father had been withholding her Get since the mother left him years earlier. (Tr. 10/23/18, 43:22). However, the parties and their counsel had executed a stipulation before Judge Bennett, dated August 4, 2017, which provided for the father to give the mother her Get "no later than" the settlement or final determination of their pending divorce litigation. (Pet. Ex. 14). The mother appeared to lack credibility when she testified inconsistently about whether she had ever showed Rabbi B. C. and his son a copy of the parties' 2017 stipulation. (Tr. 10/23/18, 47:7 compared with Tr. 10/30/18, 52:19).
The mother testified that on June 27 or June 28 Rabbi B.C. wrote a letter and sent it to Israel to try and help the mother get her Get. (Tr. 10/23/18, 66:10). She also testified that Rabbi B.C. appointed Ms. K.C.A.B. ["K.C."] to represent the mother before the Israeli Beit Din. (Pet. Ex. 18; Tr. 10/24/18, 39:4; Tr. 10/30/18, 67:10). The mother testified that she subsequently decided to go to Israel on June 27 because she learned that the Israeli Beit Din could give the parties a court date for the mother to receive her Get. (Tr. 10/24/18, 43:14).
The Court finds the mother's representations and testimony that she was ignorant about the Get procedure in Israel unpersuasive for several reasons. The mother testified that her July 4 appearance before the Israeli Beit Din was the first time that she learned about the new law passed in Israel which required the father's detention for the failure to give a Get. (Tr. 10/24/18, 26:10). She testified that before she learned about this new law, she believed that involving the Israeli Beit Din might influence the father to give her the Get because "he might listen to the rabbis in Israel. And he might feel religious because he's in a religious country and he says he's a religious man. And he might do what's right". (Tr. 10/24/18, 22:6). The Court finds this testimony unpersuasive and insincere.
Likewise, the Court finds that the mother was likely not forthcoming when she represented to Dr. Favaro that she had "no idea" about what the rabbis or her attorneys were doing for her as it related to the Israeli Beit Din , that she "never knew" what the Rabbi was doing in terms of writing a letter to Israel and that she had no idea that the process would go as far as it did. (Tr. 10/22/18; 126:16). The mother demonstrated extensive knowledge of the subject when she thoroughly explained the Get and related concepts to Dr. Favaro. (Tr. 10/22/18, 120:19; 121:16). Moreover, the Court agrees with Dr. Favaro's opinion that it "doesn't make sense" that the mother would not know what was going to happen to the father since her appointed counsel before the Israeli Beit Din was an experienced attorney who had been involved in the promulgation of the new Israeli legislation. (Tr. 10/22/18, 150:13). "You would have to think that that attorney would have mentioned [detainment] to her". (Tr. 10/22/18, 150:15).
Furthermore, the mother's testimony that she did not believe that the Get proceedings in Israel would prolong the father (and the child's) stay in Israel is illogical. The mother acknowledged that the father was supposed to return home at 1:00 AM on July 1st, that she did not arrive in Israel until the evening of June 28 and that Rabbi B.C. had only sent his letter to the Beit Din on June 25 or 26. (Tr. 10/24/18, 65:15). When asked if she expected the parties' court proceeding to take place on the day she arrived in Israel (the only business day remaining before the father was scheduled to return home on July 1), the mother's testimony was nonresponsive. The parties' first Beit Din appearance was not scheduled until July 4, which was already after the father's scheduled return home. Thus, while the mother told Dr. Favaro that she was "surprised" that the father did not give her the Get, because "all he had to do was go to the Beit Din and he could resume his vacation", she acknowledged that her statement made no sense since the parties' first Beit Din appearance was not scheduled to take place until after the father was already scheduled to return home. (Tr. 10/30/18, 52:8).
The mother gave the Court the impression that she was insincere when she testified about her efforts to "cancel" the Beit Din proceedings as soon as she learned that the father was going to be detained. (Pet. Ex. 13, p. 12) (Tr. 10/25/18, 32:7; Tr. 10/30/18, 94:23). The mother's two letters purporting to withdraw her application are dated July 1, 2018, prior to the parties' initial July 4, 2018 Beit Din proceeding, and the mother testified that the July 4 appearance is where she first learned about the father being detained. The mother and her appointed representative both appeared at the July 4 Beit Din proceeding; the father did not appear. The Court finds that the mother was insincere when she testified that at the July 4 appearance she "screamed" to her lawyer that she wanted to cancel the proceedings and that she was crying and hysterical in the courtroom. (Tr. 10/30/18, 95:12). The transcript from the July 4 appearance at the Beit Din does not reflect any attempt from the mother to withdraw or cancel the proceedings. Instead, the mother's appointed representative K.C. asserted several arguments against the father.
For example, the mother's representative stated to the Beit Din that the father had "committed a very serious act", and that he had "applied to a US court and made a false accusation about [the mother]". (Pet. Ex. 24). She further stated to the Israeli Court that she was "astonished" that the US Court had accepted the father's "false accusations" against the mother. (Pet. Ex. 24). Likewise, neither the testimony nor the documentary evidence supports the mother's representation to Dr. Favaro that she tried "countless times over and over again" to cancel the Israeli Beit Din proceedings, but that "the Israeli Court took this case in their own hands and rejected" her withdrawal attempts. (Ex. 13, p. 12). The mother returned to Israel on August 5 to appear before the Beit Din and accept her Get from the father. (Tr. 10/25/18, 58:14).
On his direct case, the father testified that he received electronic "What's App" messages during his nephew's Bar Mitzvah, which he did not open until he sat down with his family at a restaurant after the ceremony. The father did not understand the messages because they were written in Hebrew, so his cousin read them aloud for the whole table. The father observed his mother and sister start crying, that everyone stopped dancing and the music stopped. (Tr. 2/7/19, 8:23). The father and his family returned to their hotel, where the father was served again with the same documents emailed to him during the Bar Mitzvah. Based on his cousin's translation, the father understood that document to state that he was not allowed out of the country and that he must appear before the Beit Din. (Tr. 2/7/19, 10:10).
The father credibly testified that on that Friday he communicated with Mr. Edwards and he learned about the emergency proceeding that was conducted in this Court on June 28, 2018. He testified that he tried multiple times to put the child in touch with the mother and that he could tell from the telephone ring during those attempted calls that the mother was in Israel during that time, as there is a different ring when one calls to Israel versus when one calls America. (Tr. 2/7/19, 13:15). The father testified that on that Friday, they made plans for him, the child and the child's paternal grandparents to "flee like criminals". (Tr. 2/7/19, 14:3).
The father testified that early on he consulted with a first attorney, and that he did not believe the attorney's representations that the father would just have to appear one time before the Beit Din and the attorney would be able to "get rid of" the case "instantly". (Tr. 2/7/19, 15:2). He consulted with a second attorney, and he retained that attorney only for the purposes of translating the documents that came from New York to Israel, like the Temporary Order of Protection, in case he was arrested. (Tr. 2/7/19, 16:6). He testified that he and his parents and the child were unable to use a credit card to pay for hotel reservations to avoid being tracked down by private investigators and the police. (Tr. 2/7/19, 17:6). He testified that the mother was blocking his attempts to get through to her so that she could speak to the child, and that the father subsequently believed that the mother was trying to track him using wi-fi, so he got a sim card, Israeli phones and Israeli phone numbers. (Tr. 2/7/19, 17:13).
The father testified that he canceled his original plane tickets home because he believed that the documents stated that he would be detained and arrested as soon as he arrived at the airport, meaning he would be detained at least two or three days until the Beit Din reopened the next Monday. (Tr. 2/7/19, 20:3). He believed that he had no options but to cancel the tickets, he had to protect the child and himself because if the father were arrested at the airport he didn't know what would happen to the child. (Tr. 2/7/19, 20:16). The father testified that during the time in Israel he was forced to take out cash loans from family members whom he hadn't seen since he was a child and had to make "Airbnb" reservations for him with their credit cards, which he would then pay back with cash. (Tr. 2/7/19, 21:2). He testified that they had to change rooms several times and that the child hated each time they had to change locations.
The father testified that someone in New York referred him to his final attorney in Israel, an attorney with "tremendous experience" with the Beit Din and who went to the Beit Din to pick up papers on the father's behalf. (Tr. 2/7/19, 22:18). The attorney translated the papers from Hebrew to English for the father. The father testified that the final Israeli attorney cost him "thousands and thousands of dollars" and took advantage of him. (Tr. 2/7/19, 26:2). He testified that he did not appear at the July 4 Beit Din appearance because he wanted assurance that there would be a deal in place for him; it was not a matter of avoiding giving the mother her Get, as he had already agreed to do that in the divorce proceedings in New York. (Tr. 2/7/19, 24:23).
The father subsequently retained a New York-based attorney who structured a deal with the American Beit Din. After the Israeli Beit Din approved the deal and the mother scheduled a second trip to Israel the parties appeared before the Israeli Beit Din in Tel Aviv on August 6 and the mother received her Get. (Tr. 2/7/19, 27:10). The father testified that it was his understanding that in addition to the Get, there is a document called a "pitore", which is held by the Beit Din. Once the husband gives the Get he is free to do as he wishes but the wife is not allowed to date or remarry until the "pitore" is handed to her by the Beit Din. (Tr. 2/7/19, 28:1). The father testified that the parties' appearance before the Beit Din on August 6 took several hours and that the resulting transcripts were "ludicrous" as the judges would often say things off the record. (Tr. 2/7/19, 28:8). He testified that he appeared with his cousin and her husband, two Israeli citizens who speak Hebrew; he did not have any attorneys or rabbis appearing with him. The mother appeared with two attorneys, the head of the "Agunah Association of Israel", and her brother. (Tr. 2/7/19, 30:17).
He testified that the parties appeared before two judges that day; the first handled the support and custody situation and the holding of the "pitore" and the father signed over the Get before the second judge. The father's understanding of the resolution before the Israeli Beit Din was that he signed the Get over to her that day, and the Beit Din in Tel Aviv was to hold the "pitore" until the Supreme Court and Family Court proceedings in New York were over. (Tr. 2/7/19, 30:1). The father testified that the mother's attorney kept asking him to allow the mother to take the child. He testified that he denied the request because he had not been directed to give the child to the mother by the United States, which is the country that governs him and dictates what he does. (Tr. 2/7/19, 32:20). The mother's brother then stood up and started cursing at the father and there was an uproar in the courtroom, with everyone yelling at each other and the judge yelling at the father and the father's cousin loosely translating for the father and telling the father that he might go to jail that day. (Tr. 2/7/19, 33:4). The parties were thrown out of the courtroom and the judge decided that the father would give the mother her Get and that the Beit Din would hold the "pitore" until the matrimonial and custody proceedings were resolved in the New York Supreme and Family Court. (Tr. 2/7/19, 34:11).
The father testified consistently with his reports to Dr. Favaro that he feared reporting to the Beit Din in a foreign jurisdiction because he feared that he would be arrested and detained, and what would happen to his son. (10/22/18, Tr. 140:5). Having observed the father's demeanor while he testified and the probability of the events that he testified to, the Court finds that the father credibly testified about his experience in Israel, including his understanding of the Get process and the possible repercussions of availing himself to the Beit Din 's jurisdiction, his fear of what could happen to the parties' child and the motivation for his actions until he retained the final attorney who negotiated a resolution of the Beit Din proceedings.
This Court finds that Dr. Favaro astutely opined that it was "difficult" to believe that the mother just "wound up in Israel being represented by the lawyer who brought the law about detaining individuals who wouldn't give a Get" and that "[i]t's difficult that she would wind up with that lawyer without some type of intent" and that "it's more likely that [the mother] did something that she might have regretted and then tried to sort of backtrack over it by writing those letters" to the Beit Din. (Tr. 12/10/18, 18:14). Likewise, the Court agrees with Dr. Favaro's opinion discrediting the mother's representations that the entire Beit Din process was "mediated by her advisors". (Tr. 12/10/18, 19:19).
The Court's findings are consistent with the testimony from Dr. Favaro, who testified that he found the mother to be "not credible" as to her version of the events constituting the Israel Incident [Tr. 12/10/18, 17:25], while he opined that the father's report of the Israel Incident made sense "from a logical perspective", in that "anyone one who found himself under the auspices of a foreign government, would feel exactly the way he felt, if he found out that he could be subject to incarceration and detainment, while also having a responsibility of managing his son in that foreign place, under the auspices of a foreign government". (Tr. 12/10/18, 15:18).
The Court further notes Dr. Favaro's testimony that "[i]f the mother knew that she was intentionally putting the child in a chaotic situation" it would reflect poorly on her parental judgment [Tr. 10/22/18, 67:24] and that it would be up to the Court to determine whether, based upon the facts, the mother should have foreseen that her actions would place the child in a chaotic situation. (Tr. 10/22/18, 69:8).
MOTHER'S ACCESS TO THE CHILD DURING THE ISRAEL INCIDENT
The father acknowledged that there were "many times" that he terminated phone calls or FaceTime calls between the child and the mother during the Israel Incident before they were finished speaking to each other. (Tr. 1/14/19, 83:21). He testified there were instances after he returned from Israel on August 8 where he had terminated such phone calls or FaceTime calls, if he deemed that the mother was saying inappropriate or hurtful things to the child. (Tr. 1/14/19, 84:10). He testified that the alleged inappropriate comments from the mother after the Israel Incident included her telling the child "Daddy won't let you talk to me" and "[i]t's okay, we are going to be together soon". (Tr. 1/14/19, 94:13). He likewise represented to Dr. Favaro that the mother told the child that God would destroy the father and his family, that the father "stole" the child from the mother, that "daddy will pay" and that the father would never see the child again. (Pet. Ex. 13, p. 5).
The mother, in turn, represented to Dr. Favaro that the father did not allow her to speak to the child on the phone while they were in Israel but that "[e]very few days" the mother and child had a "limited and controlled phone conversation" and that during these phone conversations the father was "very cruel" and "would scream at" the mother and not allow the child to speak with her. (Pet. Ex. 13, pp. 12-13). In his conclusions, Dr. Favaro stated that the "[m]other maintains that she did not say a single cross word about the father in their phone conversations" and that the mother thought someone might have "tricked" the child into thinking that the mother said these things.(Pet. Ex. 13, pp. 16-17).
The Court notes that Dr. Favaro testified that the child confirmed that the mother made highly inappropriate comments to him, such as telling him that the father was trying to "steal" the child. (Tr. 12/10/18, 31:20). However, Dr. Favaro further testified that he detected that the child was nervous and feeling pressure that was placed upon him by his parents, and that he could not discern which parent was pressuring him. (Tr. 12/10/18, 31:6). When the mother's attorney asked Dr. Favaro if the child's apparent nervousness and feeling intimidated might have been attributable to the father telling the child to say things that were not true, Dr. Favaro responded that his "35 years of experience leads [him] to believe no". (Tr. 12/10/18, 54:18). He expressly testified that he did not think that the father told the child to tell Dr. Favaro that his mother said that the father was going to steal him. (Tr. 12/10/18, 55:13). He reached this conclusion having found that the child and the mother share a very loving bond and it was likely that the child knew that he was going to tell Dr. Favaro something that was going to get the mother in trouble. (Tr. 12/10/18, 55:18).
The Court also notes, however, that the father testified that there have been instances where he has acted inappropriately with respect to the phone calls and/or FaceTime calls between the mother and the child, including by acknowledging that it is possible that he laughed while hanging up the phone on the mother while in the child's presence. (Tr. 1/14/19, 101:22).
TESTIMONY FROM F.L.
On December 10, 2018 and December 13, 2018, F.L. testified on behalf of the mother. Mr. L. described himself as the chief assistant to Rabbi B.C. in xxxxx xxxx. (Tr. 12/10/18, 77:2). Mr. L. was argumentative and non-responsive while testifying; the Court found his testimony irrelevant and deemed it unpersuasive.
LEGAL CONCLUSIONS
In an initial custody determination, neither parent has a prima facie right to custody. ( Dornbusch v. Dornbusch , 110 AD2d 808 ; appeal denied , 65 NY2d 609 [1985] ; appeal dismissed , 65 NY2d 1024 [1985] ; Matter of Scott v. Powell , 146 AD3d 964, 965 [2d Dept. 2017] ). In making an initial custody determination, "the court must consider what arrangement is in the best interests of the child under the totality of the circumstances" which "includes, but is not limited to, ‘(1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent's relative fitness, including his or her ability to guide the child, provide for the child's overall well-being, and foster the child's relationship with the noncustodial parent; and [5] the child's desires’ ". (Matter of Clarke v. Wiltshire , 145 AD3d 776, 777 [2d Dept. 2016] [citations omitted]; see also Eschbach v. Eschbach , 56 NY2d 167, 172 [1982] ). "While concerns such as the financial status and the ability of each parent to provide for the child should not be overlooked...an equally valid concern is the ability of each parent to provide for the child's emotional and intellectual development". ( Eschbach , supra , 56 NY2d at 172 ).
Additionally, the Court fully appreciates its obligation to fully consider the allegations of domestic violence asserted in these custody proceedings. ( DRL § 240[1][a] ). However, allegations of domestic violence alone are not enough, but rather, it must be proven "by a preponderance of the evidence". ( DRL § 240[1][a] ; Matter of Scott v. Thompson , 166 AD3d 627, 628 [2d Dept. 2018] [internal citations omitted]; see generally Matter of Saunders v. Stull , 133 AD3d 1383, 1383 [4th Dept. 2015] ). The Court is required to consider the effect of domestic violence upon the best interests of the child where the allegations of domestic violence are proven by a preponderance of the evidence. (Matter of Frankiv v. Kalitka , 105 AD3d 1045, 1046 [2d Dept. 2013] [citing to DRL § 240(1)(a) ] ).
Having observed the demeanor of all witnesses who testified in these extensive fact-finding proceedings as well as the documentary evidence; and having observed instances where witnesses presented testimony that was self-contradictory or contradicted testimony of other witnesses or documents received into evidence, the Court finds that in this case the mother failed to prove by a preponderance of the evidence that the father abused the mother and further finds that the testimony and documentary evidence instead indicates that both parties acted violently towards each other. ( Matter of Frankiv , supra , 105 AD3d at 1046 ; Bressler v. Bressler , 122 AD3d 659, 660 [2d Dept. 2014], lv. to appeal den. , 25 NY3d 907 [2015] ; Micah NN. v. Kristy NN. , 79 AD3d 1188, 1190 [3d Dept. 2010], lv. to appeal den. , 16 NY3d 707 [2011] ).
The Court reaches this conclusion based on several findings, including but not limited to the conflicting testimony offered by the mother and her sister S.N. regarding the violence that occurred at S.N.'s house the night of the Waiter Incident, and the mother and her sister Z.S. testifying inconsistently about whether Z.S. or the mother had photographed the mother's injuries and the timing of when Z.S. allegedly photographed such injuries. (Tr. 5/3/18, 152:16 compared to Tr. 1/11/19, 22:25; 68:5; Pet. Exs. 1 and 3). Likewise, the Court notes apparent inconsistencies in Z.S.'s testimony about whether she permitted her son to have playdates with the child at the father's house after an alleged incident involving an ax and a shovel in March 2016. Specifically, the Court notes Z.S.'s representation that she did not receive "notice" from the father about her son sustaining cuts on his hands, but then she acknowledged that the father had notified her that her son had sustained a paper cut by text message and that she had typed "LOL" ["Laugh Out Loud"] to him in that same text message communication. (Tr. 1/14/19, 48:17 and 73:1).
The Court further notes Z.S.'s apparent failure to credibly explain why she thereafter permitted her son to attend the child's birthday celebration, much less without her supervision, at the father's house in November 2016. The Court found her attempt to distinguish between a "playdate" and a birthday celebration unpersuasive. (Tr. 1/14/19, 71:6). Furthermore, the Court finds that Z.S. was apparently not forthcoming when she initially testified that she did not recall writing the father a text message on November 13, 2016 in which she called him a "super dad", told him that he did a "good job" and asked him to let her know when she should come pick up the child from the birthday party. (Tr. 1/14/19, 9:23 compared to Tr. 1/14/19, 70:17).
The Court further notes the many instances where the mother testified about alleged beatings in a manner that gave the impression that she was exaggerating or dramatizing and instances where her testimony was incredible, such as where she testified that in the July 2012 incident the father managed to throw the mother to the floor while simultaneously shaking the baby to the point of the baby's tongue coming out of his mouth. (Tr. 5/3/18, 70:1). Similarly, the Court finds that the limited photos offered by the mother as proof of the injuries she sustained through the father's beatings indicate that she likely exaggerated the extent of such incidents of alleged domestic violence. At the very least, the Court finds that the mother cited to injuries allegedly sustained in such beatings- swollen lips, hair ripped from the head, being bashed into walls, that were not supported by the photographic evidence depicting fingerprint bruises on arms and a scratch on the arm.
Likewise, the Court notes various instances where the mother acted inconsistently with a parent whose top priority is protecting his or her child from the other parent's abuse and violence. A prime example of this is the mother's testimony from the family offense fact-finding where she discussed the father inappropriately "hugging" her. She testified that the father's unsolicited hug came after the parties had accompanied the child to the Emergency Room to get stitches in his head. The mother testified that the child "was with his father and he ended up banging his head, I don't know how, and getting stitches". (Tr. 2/15/18, 49:1). When questioned further, she responded "he ended up getting banged somehow, I'm not even really sure how". (Tr. 2/15/18, 49:4). The mother's casual and unworried demeanor while testifying about how the child was injured is inconsistent with a parent who is concerned about the other parent's allegedly violent or aggressive history and about the possibility that the other parent might physically abuse the child.
Additionally, the mother testified and represented to Dr. Favaro that as soon as it was agreed that the father would take the child to Israel for the week, that she was concerned for the child's safety due to the father's "abusive past". (Tr. 10/22/18, 119:16, 120:5; 10/30/18, 34:22). However, her conduct was inconsistent with that of a mother whose top priority was concern for her child's safety in traveling to a foreign country with his allegedly abusive father. One might expect that a mother whose top priority was protecting the child from an abusive father would immediately act to prevent the child from traveling with the father at all, including by consulting with her attorney about applying to the Court to prevent such a trip. Instead, she testified that her immediate reaction was to speak to her friends and ultimately agree to commencing a proceeding in that foreign country where she risked causing the detainment of her child's father and risked her child observing his father be detained. (Tr. 10/30/18, 34:13).
Similarly, the Court notes that the mother's objections to Dr. Favaro in response to the father's proposal of 50/50 visitation was based on two factors- first, that such visitation would be "too disruptive" to the child's schooling and second, because she believed the child's report to her that the father had once left the child alone at his apartment when the child was two or three years old. (Court Ex. 1, p. 30). There is no indication in Dr. Favaro's report or his testimony that the mother's objections were based on concern that the father would have a greater opportunity to inflict physical violence on the child if permitted to spend additional time with him or that the father's parenting time with the child should be limited to supervised access.
That is not to say that the mother failed to prove that any physical violence occurred in their marriage; just that she failed to prove the specific allegations of domestic violence that she asserted in these custody proceedings. Likewise, the Court is not convinced that the mother's allegations against the father were totally and necessarily fueled by "malicious intent" against him. Rather, it is just as likely that her allegations are the product of exaggerations of actual physical altercations that occurred between the parties. To that end, the Court finds that the testimonial and documentary evidence establish that the parties did, in certain instances, act violently toward each other in their marriage.
The Court has reviewed emails in evidence between the parties in which they used absolutely hateful language toward each other and referenced using physical violence towards each other and has reviewed the photographic evidence of both parties depicting injuries that they claim they sustained at the hands of the other and has heard testimony confirming that they engaged in physical altercations. The Court finds no evidence that either party has ever acted violently with the child or that the child has been detrimentally affected by any of the alleged incidents that took place when he was present or nearby as a very young child. Accordingly, the Court finds that the domestic violence factor does not favor either parent. ( Matter of Scott v. Thompson , supra , 166 AD3d at 629 [citations omitted] ).
The factors of "promoting stability" and "available home environments" both weigh in favor of the father, primarily because the testimony and evidence establish that the mother relocated with the child multiple times to various of her relatives' houses, while the father has either remained in the parties' former marital residence and he now resides in his own home. Most recently the mother has apparently resided in her sister's house, but her sister has her own family and there is no indication that the mother's living arrangement is intended to be permanent. Relatedly, while each party testified about the child's daily routine, the father's testimony of his cooking for the child's meals, promoting education and social activities for the child was more credible than the mother's testimony.
Furthermore, the father submitted additional evidence of the child's home environment when residing with him, including that the child has his own bedroom and play space, while the evidence indicates that the child does not have his own bedroom when residing with the mother and may not have his own bed. (Resp. Ex. MMM). The Court is mindful of the evidence that the parents have previously communicated and expressed a mutual desire to maintain stability in the child's life, including as it relates to school. (Resp. Ex. ZZZ). However, the Court notes other instances where the evidence indicates that the mother has made sudden changes in the child's life, including by unilaterally ending the father's practice of picking up the child from school on Fridays and instead sending her brother to pick up the child. The Court finds that, overall, the factors of promoting stability and available home environments weigh in the father's favor. (See, e.g. , Barnard v. Joyce-Barnard , 46 Misc 3d 1215 [A] [Sup. Ct. Monroe County 2015] ).
The Court has also considered each parent's "past performance" and finds that both parents have demonstrated the ability to fully take care of the child's everyday needs. The evidence supports the mother's assertions that she has historically been the child's primary caretaker. However, the evidence and the testimony do not support the mother's assertions that the father was essentially absent from the child's life during periods when the parties were separated. To the contrary, the testimony and the evidence indicates that the father has continuously endeavored to spend more time with the child and share in the responsibility of caring for the child. Overall, the Court finds that the factor of "past performance" does not weigh significantly in either parent's favor.
The next factor, "fitness as a parent", includes several considerations, including the ability to guide the child, provide for the child's overall well-being, and foster the child's relationship with the non-custodial parent.
The Court notes, at the outset, that Dr. Favaro rated his observational sessions of the child with each parent as "positive". (Tr. 6/22/18, 28:24). In his report the doctor noted that the child had been in a bad mood during his observation session with the child and the father, but in both his report and while testifying he reported that the father had interacted with the child appropriately and he opined that the father had showed "good patience, and a good ability to redirect [the child] and distract him", which are "very important behavioral observations" (Tr. 6/22/18, 28:25; Ct. Ex. 1, p. 33).
Dr. Favaro also discussed each parent's potential areas of weakness, including the mother inappropriately telling the child that she hugs and kisses a doll when he is not with her because she misses him so much. (Tr. 6/22/18, 20:16); Court Ex. 1, p. 28). Dr. Favaro advised the mother that such behavior might induce guilt in the child and the mother was "immediately" receptive to the doctor's statement. (Tr. 6/22/18, 21:23). Likewise, on questioning by the mother's attorney, Dr. Favaro confirmed that during the observation of the father and the child the father asked the child about what he had done when he was observed with the mother. However, rather than describe the father's conduct as inappropriate, Dr. Favaro testified that the father's question to the child was consistent with the Doctor's perception of the father's personality in that he "thinks and talks at the same time" and that "he is extremely curious". (Tr. 6/22/18, 27:15). He noted, however, that he thought it was inappropriate that the father had asked if he would be privy to what the child had said when speaking alone to Dr. Favaro's social worker. (Tr. 6/22/18, 30:1). He also thought that the father acted inappropriately by subsequently asking the child about what he had said to the social worker. (Tr. 6/22/18, 30:3). It is clear to the Court that both parents must improve their ability to respect the parent/child boundary and appreciate the impact of their comments, questions and conduct in front of and toward the child.
A parent's willingness to foster a positive relationship between the child and the noncustodial parent is integral to the determination of his or her relative fitness as a parent. (See Matter of Jarvis v. Lashley , 169 AD3d 1043, 1044 [2d Dept. 2019] ). A custodial parent must "place the needs of the child[ ] before her own in fostering a continued relationship with the noncustodial parent". ( Young v. Young , 212 AD2d 114, 123 [2d Dept. 1995] ).
In this case, the Israel Incident in particular causes the Court to be concerned with the mother's judgment and particularly with her ability to place her child's best interests ahead of her own needs and objectives. The Court finds that the mother's conduct contradicted her proclamations that her son's interests were her "top priority". (Tr. 10/22/18, 151:2). Even if, as Dr. Favaro opined, the mother had assumed that she would know where the child was located if the father had been arrested in Israel and that she would then take possession of the child, there is no evidence that the mother considered the effects of or prepared the child for the possibility of witnessing his father be arrested by Israeli authorities. (10/22/18, 151:9).
Likewise, it makes no sense that the mother testified about her concerns for the child's safety in traveling to Israel with his father, but then acted completely contrary to such concerns, ultimately resulting in a scheme that not only permitted the child to travel abroad with the father, but depended upon the father and child successfully traveling to a foreign country and placed the father, child and paternal grandmother "on the run" for several weeks. This Court agrees with Dr. Favaro's statement that the analysis of parental judgment requires the Court to ask, "does the parent foresee the potential adverse consequences of their decision making?" (Tr. 12/10/18, 21:18). Dr. Favaro astutely opined that the mother exhibited poor judgment in traveling to Israel, in that "in getting on a plane and going to Israel, especially if you know that once you get there, a series of events might take place which result in the incarceration and detention of your child's father" constitutes "bad judgment". (Tr. 12/10/18, 22:1). The Court also agrees with Dr. Favaro's opinion that the father's failure or refusal to attend the July 4, 2018 Beit Din appearance did not speak to his judgment, but rather "might speak more to his fear and his anxiety about what might happen in a circumstance he didn't know". (Tr. 12/10/18, 44:10).
Overall, the Court is mindful of and agrees with Dr. Favaro's opinion that the mother's intention, as she articulated to him, in initiating the whole "Israel Incident", was that it "would be a way to get what she wanted" (the Get) "at the cost of incarcerating [the father] until he complied with what she wanted to do. And at the cost of tremendous stress to her son ". (Tr. 10/22/18, 160:1)(emphasis supplied). The Court finds it further noteworthy that when questioned by the father's counsel, the mother admitted that while she stated that her primary and top interest was the child, she wanted her Get and she was not satisfied waiting for the process to take place in New York. (Tr. 10/31/18, 69:25). The Court does not dispute or disagree with Dr. Favaro's opinion that the mother "loves" the child "dearly" but finds, consistent with Dr. Favaro's testimony, that the mother's conduct in connection with the Israel Incident was inconsistent with acting as a good co-parent. (Tr. 12/10/18, 25:25).
Furthermore, while the mother's conduct before and during the Israel Incident reflected poor judgment, the Court was particularly troubled with the mother's efforts to distance herself after the fact from the consequences of her own actions, as reflected in the numerous insincere and inconsistent representations about the Israel Incident that she made to Dr. Favaro as well as her testimony to this Court. The mother's testimony is replete with instances where she cited to another person or an entity as being responsible for the Israel Incident, including this Court, the father, her Great Neck rabbis, her representatives and advocates in Israel, and even the Israeli Beit Din. The Court finds this conduct inconsistent with a parent who will best grow and develop a child intellectually and emotionally.
In contrast to fostering a relationship with the other parent, "[w]illful interference with the other parent's right to parental access is an act 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 a custodial parent". ( Jarvis , supra , 169 AD3d at 1044 ; see also Oscar S. v. Joyesha J. , 149 AD3d 439, 440-41 [1st Dept. 2017] ; Matter of Harlost v. Carden , 124 AD3d 968, 968 [3d Dept. 2015] ; Matter of Wojciulewicz v. McCauley , 166 AD3d 1489, 1491 [4th Dept. 2018] ). While mindful of the mother's testimony that the father intentionally withheld from her telephone and FaceTime access to the child during the Israel Incident, the Court finds that the testimony and email communications entered into evidence [Pet. Exs 31-37 and 39-46] indicate that the mother may have exaggerated or embellished the extent to which the father "withheld" or interfered with her access.
The Court reaches this conclusion based on apparent inconsistencies in the mother's testimony on direct and cross-examination regarding the number of telephone and FaceTime communications she had with the child in the beginning of the trip [Tr. 10/24/18, 104:1 compared to Tr. 10/25/18, 7:11], the mother's inability on cross-examination to recall details about when she spoke to the child and/or the father at the beginning of their trip to Israel [Tr. 10/30/18, 63:1] and, on her cross-examination, her refusal to testify responsively as to whether she spoke to the child on the day of the Bar Mitzvah celebration. [Tr. 10/30/18, 70:14]. Likewise, the mother's sister Z.S. was apparently unable to correctly recall details about a particular instance during the Israel Incident when she allegedly observed the mother attempt to call the child and the father initially disconnected the calls and then screamed and cursed at the mother. [Tr. 1/11/19, 54:17 compared to Tr. 1/14/19, 32:20; Tr. 1/11/19, 73:23].
The Court is mindful of and troubled by the father's admission that there have been times when he has likely smiled or laughed while terminating the mother's phone calls or FaceTime calls with the child. Such conduct, particularly when in front of the child, could certainly be contrary to the child's best interests. However, the Court finds that, overall, the evidence indicates that the father is more mindful than the mother of attempting to evenly split parenting time, including on holidays [Court Ex. 1; Resp. Exs. PP; UU; ZZ; SSS], and of notifying the other parent when keeping the child home from school and of consulting with the other parent on decisions pertaining to the child.
The father has acted far from perfect, as demonstrated through his admission that for a period of time he repeatedly returned the child late (although the Court is mindful of the testimony and evidence indicating that the mother was potentially overly concerned about his timeliness based on her practice of emailing him a few minutes before or right after the scheduled drop-off time, under the pretense of "reminding him" of the drop-off time). The Court is more concerned, however, that even after the "Israel Incident" when the mother should have been most concerned with abiding by court orders, and knowing that she and the father were under the watchful eye of the Court and knowing the ramifications of breaking a court order or agreement, she displayed a lack of regard for such orders and agreements when she returned the child late for Rosh Hashanah and, more problematic, eleven-and-a-half hours late for Yom Kippur. (Tr. 11/30/18, 73:2).
The Court's findings are consistent with Dr. Favaro's findings in his forensic evaluation, in which he explained that the attitude questionnaires might be used by the Court in its assessment of whether each party has the ability to positively promote a relationship with the other parent "because positive attitudes usually lead to positive behaviors, negative attitudes usually lead to negative behaviors". (Tr. 6/22/18, 62:21). Dr. Favaro's evaluation indicated that the mother was comparatively more negative toward the father. (Tr. 6/22/18, 63:4; Ct. Ex. 1, p. 46).
Additionally, the Court finds that the evidence, including the emails entered into evidence and Dr. Favaro's evaluation of the parties, indicates that the mother has been less willing to accept and promote equal parenting time with the child. Specifically, the Court is mindful of Dr. Favaro's opinion that both parties acted immaturely by bickering over 50/50 visitation and that the mother's objection to considering 50/50 visitation is not based on sound logic. (Tr. 6/22/18, 90:18). In his report he explained that if the mother's concern is that the father is going to pick up and leave the house while the child is sleeping, it doesn't make sense that she has consented to an overnight at all. (Ct. Ex. 1, pg. 45). He further explained on cross-examination that a person "can't say whether or not 50/50 visitation is going to work" if the person has "never tried it" and that people "presume that such a visitation schedule can't work based on a limited number of anecdotes why someone should get less of an opportunity to be a parent to a child than somebody else". (Tr. 6/22/18, 90:22). He concluded that it is "illogical to say that a 50/50 visitation schedule can't work if you never tried it". (Tr. 6/22/18, 91:4).
With respect to the child's preference, the AFC stated at the outset of the custody fact-finding that his client's position was to live with his mother and spend time with the father, but "not a lot of time" with him. (Tr. 4/30/18, 55:1). The AFC asserted that the mother should also have sole legal custody because his client wanted the mother to decide things like the child's doctors, dentists, school and related issues. (Tr. 5/3/18, 19:9). In his closing, the AFC stated that the child wanted to live with the mother and be with her for six days out of the week, with the father's parenting time limited to Sundays. (Tr. 2/22/19, 40:16). The AFC suggested that his client's position was based on the child having witnessed the "violence perpetrated by [the father] upon his mother". (Tr. 2/22/19, 40:23).
The child's express desire to reside with the mother and limit the father's parenting time is not determinative, particularly in light of his young age and lack of maturity. ( Stern v. Stern , 304 AD2d 649, 649 [2d Dept. 2003] ). The Court finds that neither the testimony, nor the evidence, supports the AFC's suggestion that the child's preference was based on his having witnessed the father imparting violence upon the mother. Additionally, the Court conducted three separate in-camera interviews of the child and will not reveal the substance of the interviews other than to state that the Court found the child's reasons for preferring to reside with the mother to be indicative of his young age and immaturity and did not cause the Court to be concerned that the child witnessed either parent perpetrate domestic violence.
The Court has made the foregoing determinations after carefully evaluating the testimony, character and sincerity of the parties, and after carefully considering all of the evidence in the record, including the testimony of the parties, their family members and acquaintances and the reports and testimony of the forensic evaluator. (Matter of Rory H. v. Mary M. , 13 AD3d 373 [2d Dept. 2004] ; see also Bondarev v. Bondarev , 152 AD3d 482, 482 [2d Dept. 2017] ). The Court finds that, under the totality of the circumstances, it would be in the child's best interests for the father to have sole legal and sole residential custody of the child, with substantial regular parenting time for the mother.
The Court's determination is based on having found that the factor of "domestic violence" did not significantly weigh in either parent's favor, and its finding that granting the father sole legal and sole residential custody would best promote stability and provide the child with a better home environment; that the factor of "past performance of each parent" did not significantly weigh in either party's favor as each parent demonstrated a fine ability to take care of the child's day-to-day needs relating to his health and general welfare; that the factor of "relative fitness as a parent" weighed in the father's favor, particularly in light of the mother's demonstrated inability to place the child's needs ahead of her own to foster his relationship with the father; and that the child's expressed desire for the mother to have sole legal and sole residential custody was grounded in the child's immature motivations.
DETERMINATION OF FATHER'S VIOLATION PETITION
The father asserted that the mother violated the Temporary Order of Protection dated June 28, 2018, which required the mother to stay away from the father and the child, subject to parenting time pursuant to a future written agreement of the parties. The Court finds that the mother admitted to violating the Temporary Order of Protection, in that she admitted to dropping the child off late on Rosh Hashana and, more problematic, eleven-and-a-half hours late for Yom Kippur. (Tr. 11/30/18, 73:2). However, the Court finds that the father is not entitled to additional and further relief for the mother's violation of the Temporary Order of Protection in light of the Court granting him sole legal custody and sole residential custody.
It is hereby ORDERED that the father's violation petition [V-xxxx-xx/xx] is deemed settled by the Court's decision in the underlying custody matter.
The Court has searched the statewide registry of orders of protection, the sex offender registry and the Family Court's warrant and child protective records and is notifying the attorneys for the parties that the results of the searches are as follows: The order of protection matters made part of this decision are reflected on the search. The Court has considered and relied upon the above noted results of these searches in making its decision.
Accordingly, IT IS HEREBY ORDERED as to the following after fact-finding as it relates to custody/parenting time petitions V-xxxx-xx and V-xxxx-xx:
IT IS HEREBY ORDERED , that the father shall have sole legal custody and sole residential custody of the child; and
IT IS HEREBY FURTHER ORDERED that the father shall consult with the mother in writing by text or email on all major decisions affecting the child's health, welfare, education and parenting, and if no agreement is reached, the father shall make the final decision on these issues; and
IT IS HEREBY FURTHER ORDERED that any school that the child attends (public or private, religious or secular) must be located no greater than ten (10) miles from either parent's home; and
IT IS HEREBY FURTHER ORDERED that if the parents have not done so already, within 14 calendar days of the date that this order is signed, the parents shall enter into weekly joint counseling with a New York State licensed social worker or licensed psychologist mutually selected by the parties and attend weekly sessions for at least 45-minutes to learn how to communicate with each other in a healthy and proper manner. If either party feels that he or she cannot attend a session with the other due to safety concerns, then they should choose a professional who has Skype availability and they shall alternate on a weekly basis which party attends the appointment by Skype; said sessions shall last for at least one year from the date of this Order; and
IT IS HEREBY FURTHER ORDERED that if the parents have not done so already, within 14 days of the date that this order is signed, the parents shall arrange for the child to enter into weekly one-on-one individual counseling with a New York State licensed social worker or licensed psychologist, with each weekly session lasting at least 45 minutes; the father shall select the counselor after consulting with the mother; said sessions shall last for at least one year from the date of this Order; and
IT IS HEREBY FURTHER ORDERED that the parent exercising parenting time shall ensure daily phone or FaceTime contact between the child and the other parent; and
IT IS HEREBY FURTHER ORDERED that neither parent shall address or refer to the other parent in a disparaging or derogatory manner in the presence of the child or under any other circumstances where the child could reasonably be expected to observe such conduct, including during a parent's FaceTime or telephone contact with the child, nor shall either parent discuss any prior, pending or future litigation with the child; and
IT IS HEREBY FURTHER ORDERED that neither parent shall permit any third parties to address or refer to the other parent in a disparaging or derogatory manner in the presence of the child or under any other circumstances where the child could reasonably be expected to observe such conduct, including during a parent's FaceTime or telephone contact with the child; and
IT IS HEREBY FURTHER ORDERED that both parents shall be entitled to all records and communications from school and the child's extracurricular activities and that the father shall take any action necessary to facilitate the mother having access to any such records and/or communications; and
IT IS HEREBY FURTHER ORDERED that the mother shall have parenting time with the child as follows:
The mother shall have parenting time on alternating weeks from Sunday at 5:00 PM until Sunday at 5:00 PM, with the mother's parenting time commencing on Sunday, June 9, 2019; and
On the Wednesdays that the mother does not have week-long parenting time, the mother shall have parenting time from the conclusion of school or extracurricular activity on that Wednesday until Thursday morning with timely return to school or 9:00 AM if there is no school. If there is no school on that Wednesday, then parenting time shall begin at 5:00 PM for the mother; and
IT IS HEREBY FURTHER ORDERED that where the order is silent as to the mother's regular alternating week-long and Wednesday overnight parenting time, that the father shall exercise parenting time; and
IT IS HEREBY FURTHER ORDERED that during the mother's week-long parenting time, the father shall have parenting time on Wednesdays after school or extracurricular activity until Thursday at 9:00 AM or timely return to school; and
IT IS HEREBY FURTHER ORDERED that the parties shall adhere to the following parenting time schedule for the Jewish holidays, and that the parties' Jewish holiday parenting schedule time shall supersede and take precedence over the parties' regular alternating week-long and alternating Wednesday overnight parenting time:
For Purim, the mother shall have parenting time with the child in odd years, and the father shall have parenting time in even years; and
For Passover, the mother shall have parenting time with the child in even years, and the father shall have parenting time in odd years; and
For Shavuot, the mother shall have parenting time with the child in odd years, and the father shall have parenting time in even years; and
For Rosh Hashanah, the mother shall have parenting time with the child in even years, and the father shall have parenting time with the child in odd years; and
For Yom Kippur, the mother shall have parenting time with the child in odd years, and the father shall have parenting time with the child in even years; and
For Sukkot, the mother shall have parenting time with the child in even years, and the father shall have parenting time with the child in odd years; and
For Hanukkah, in odd years the mother shall have parenting time with the child on the odd day evenings of the holiday and the father shall have parenting time on the even day evenings of the holiday. In even years, the father shall have parenting time on the odd day evenings of the holiday and the mother shall have parenting time on the even day evenings of the holiday. The evenings shall be defined as the conclusion of school that day (or starting at 5:00 PM if there is no school that day) to 9:00 PM. If there is no school the following day, then the parent exercising parenting time in the evening shall have parenting time with the child until 5:00 PM the following day; and
IT IS HEREBY FURTHER ORDERED that the secular calendar shall be used to determine odd and even years; and
IT IS HEREBY FURTHER ORDERED that the dates, length, start time and end time for all Jewish holidays, religious observances and shabbat shall be governed by the calendar and times denoted in the calendar published by the Chabad Lubavitch Jewish Center on Long Island; and
IT IS HEREBY FURTHER ORDERED that a party's religious parenting time for the above-listed Jewish holidays, except Hanukkah (Purim, Passover, Shavuot, Rosh Hashanah, Yom Kippur, Sukkot), shall begin on the eve of the holiday, four (4) hours before the holiday begins, and shall end on the day of the holiday, three (3) hours after the holiday is over, or as otherwise agreed to by the parties in future writing, and
IT IS HEREBY FURTHER ORDERED that during the hours the child is not in school, the parties shall adhere to the following parenting time schedule for secular holidays, and that the parties' secular holiday parenting time schedule shall supersede and take precedence over the parties' regular alternate week-long and Wednesday overnight parenting time schedule:
On President's Day from 9:00 AM to 8:00 PM, the mother shall have parenting time with the child in odd years, and the father shall have parenting time with the child in even years;
On Memorial Day from 9:00 AM to 8:00 PM, the mother shall have parenting time with the child in even years, and the father shall have parenting time with the child in odd years;
On July 4th from 9:00 AM to 8:00 PM, the mother shall have parenting time with the child in odd years, and the father shall have parenting time with the child in even years;
On Labor Day from 9:00 AM to 8:00 PM, the mother shall have parenting time with the child in even years, and the father shall have parenting time with the child in odd years;
On Thanksgiving from 9:00 AM to 8:00 PM, the mother shall have parenting time with the child in odd years, and the father shall have parenting time with the child in even years;
For Christmas, the mother shall have parenting time with the child in even years and the father shall have parenting time with the child in odd years, with Christmas parenting time to begin on December 24th at 5:00 PM (or, if the child has school, after he gets out of school), until 8:00 PM on December 25th;
For New Year's, the mother shall have parenting time with the child in odd years and the father shall have parenting time with the child in even years, with "even" and "odd" being measured by the secular year in which New Year's Eve falls, and such parenting time to begin on December 31st at 5:00 PM (or, if the child has school, after he gets out of school), until 8:00 PM on January 1st, New Year's Day; and
IT IS HEREBY FURTHER ORDERED that the mother shall be entitled to at least two hours of parenting time on her birthday and shall have parenting time from 9:00 AM until 8:00 PM on Mother's Day, which parenting time shall supersede all other parenting time schedules set forth in this order; and
IT IS HEREBY FURTHER ORDERED that the father shall be entitled to at least two hours of parenting time on his birthday and shall have parenting time from 9:00 AM until 8:00 PM on Father's Day, which parenting time shall supersede all other parenting time schedules set forth in this order; and
IT IS HEREBY FURTHER ORDERED that the parties shall enjoy parenting time on the child's birthday as follows, and that such parenting time on the child's birthday shall supersede and take precedence over the parties' regular alternate week-long and Wednesday overnight parenting time schedule:
In odd years, if the child's birthday is on a Sunday through Thursday, the mother shall have parenting time commencing at the conclusion of school or extracurricular activity (or 5:00 PM if there is no school that day) through 7:30 PM, including dinner with the child, and the father shall have parenting time commencing at 7:30 PM through timely return to school the next day (or 9:00 AM the next day if there is no school that day); and
In even years, if the child's birthday is on a Sunday through Thursday, the father shall have parenting time commencing at the conclusion of school or extracurricular activity (or 5:00 PM if there is no school that day) through 7:30 PM, including dinner with the child, and the mother shall have parenting time commencing at 7:30 PM through timely return to school the next day (or 9:00 AM the next day if there is no school that day); and
If the child's birthday falls on a Friday, then the parenting time for the child's birthday will take place on the Thursday before the child's birthday as follows:
In odd years, the mother's parenting time shall be from the conclusion of school (or 5:00 PM if there is no school that day) through 7:30 PM, including dinner with the child, and the father shall have parenting time commencing at 7:30 PM through timely return to school the next day (or 9:00 AM the next day if there is no school that day); and
In even years, the father's parenting time shall be from the conclusion of school (or 5:00 PM if there is no school that day) through 7:30 PM, including dinner with the child, and the mother shall have parenting time commencing at 7:30 PM through timely return to school the next day (or 9:00 AM the next day if there is no school that day); and
If the child's birthday falls on a Saturday, then the parenting time for the child's birthday will take place on the Sunday after the child's birthday as follows:
In odd years, the mother's parenting time shall be from the conclusion of school (or 5:00 PM if there is no school that day) through 7:30 PM, including dinner with the child, and the father shall have parenting time commencing at 7:30 PM through timely return to school the next day (or 9:00 AM the next day if there is no school that day); and
In even years, the father's parenting time shall be from the conclusion of school (or 5:00 PM if there is no school that day) through 7:30 PM, including dinner with the child, and the mother shall have parenting time commencing at 7:30 PM through timely return to school the next day (or 9:00 AM the next day if there is no school that day); and
IT IS HEREBY FURTHER ORDERED that each parent shall have uninterrupted parenting time for two weeks in the summer period, one week in the month of July and one week in the month of August, from 9:00 AM on Monday through the following Monday at 9:00 AM, and that in odd years the mother shall be entitled to her preference in selecting her two weeks, and in even years the father shall be entitled to his preference in selecting his two weeks, and that the parties shall confirm in writing no later than April 1 of the subject year which weeks each parent will have their uninterrupted summer parenting time. The foregoing two (2) week summer parenting time shall supersede the parties' regular alternate weekly parenting time and regular alternate weekend parenting time but in no event shall either parent be allowed three (3) consecutive weeks of parenting time; and
IT IS HEREBY FURTHER ORDERED that anytime that a parent is unable to or chooses not to exercise three (3) or more consecutive hours of his or her court-ordered parenting time, then the other parent shall have the right of first refusal to care for the child during that absence before a third party, including other relatives, may care for the child; and
IT IS HEREBY FURTHER ORDERED that all pickups and drop offs for the parenting time shall be curbside at the other parent's home with the parent whose parenting time is ending doing the transportation; and
IT IS HEREBY FURTHER ORDERED that there shall be any other parenting time as agreed to by the parties in future writing by text or email.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT. AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.