Opinion
No. 2505/2013.
07-08-2016
M.G., Plaintiff, v. A.G., Defendant.
Neal S. Comer, Esq., Gordon A. Burrows, Esq., White Plains, for Plaintiff. Andrew Szczesniak, Esq., White Plains, for Defendant. Stephen P. Gold, Esq., White Plains, NY, for the Child.
Neal S. Comer, Esq., Gordon A. Burrows, Esq., White Plains, for Plaintiff.
Andrew Szczesniak, Esq., White Plains, for Defendant.
Stephen P. Gold, Esq., White Plains, NY, for the Child.
JOHN P. COLANGELO, J.
This action for divorce was commenced by plaintiff M.G. ("Plaintiff," "M.", or "M. G.") against defendant A.G. ("Defendant," "A.", or "A. G.") on May 31, 2013. The parties were married on October 21, 2004 and their one child, G.G. ("G" or the "Child") was born in February 2008. By this matrimonial action, Plaintiff seeks termination of the parties' marriage, an economic resolution of the obligations of the parties, and custody of G. Defendant also seeks custody of G. The issues tried to this Court were limited to the issue of child custody and this decision and order will only resolve the issues of custody of and parental access to G.G. is now eight years old and living with Plaintiff.
The trial in this action with respect to custody was held on April 19 and 20 and May 5, 6, 10, 13 and 23, 2016. Both parties were represented by counsel throughout the trial, as was G. by the Attorney for the Child, Stephen Gold. Both Plaintiff and Defendant testified at trial, and they each called several witnesses. In addition, the court-appointed forensic evaluator, Dr. Marc Weiler, testified through his forensic report, and was subject to cross-examination by all counsel. A number of documents were also admitted into evidence and considered by the Court, including several Court Exhibits.
After considering the testimony of the parties and other witnesses, the documents admitted into evidence and the facts stipulated to by the parties, the Court has determined that the best interests of G. would be served by awarding full legal and physical custody to the Plaintiff father. As discussed more fully below, in light of Defendant's lack of impulse control which led, among other things, to conduct resulting in a finding that she assaulted G., her stubborn reluctance to meaningfully engage in a course of therapeutic visitation and testing that might well improve her attitude and behavior, and her conflict with and resentment of Plaintiff which leads to Defendant placing her desires above G.'s interests, the Court cannot conclude otherwise.
Factual and Procedural Background.
The parties were married on October 21, 2004 in Albania, following an arranged meeting and courtship. On February 12, 2008, their son G. was born. Unfortunately for all concerned, Defendant suffered a stroke immediately upon delivery of G., a rare but recognized complication of child birth. Defendant was hospitalized for approximately two weeks after G.'s birth. Defendant was released from the hospital for approximately two weeks when she was constrained to return for a second surgical procedure—a procedure which resulted in an additional two weeks of hospitalization. As a result of her stroke and surgeries, Defendant was left with certain persistent, albeit somewhat limited, physical impairments, including a weakened right arm.
Shortly after Defendant's release from the hospital for the second time, the parties separated; soon thereafter, Defendant commenced a Family Court proceeding and obtained a temporary order of protection against Plaintiff. G. was five months old at the time. Several months later, in March 2009, the parties entered into a Custody Agreement, so ordered by the Family Court, which provided, in essence, that the parties would have joint decision making with respect to G., and would share custodial time with him on a 50/50, two days on, two days off basis, with the parties alternating weekends. (See Stipulation on Order dated March 29, 2009, Deft. Exh. A). This shared custody regime remained in effect until June 7, 2013.
On June 7, 2013 Plaintiff—who had commenced the instant action for divorce one week earlier—filed a Family Offense Petition in the Westchester County Family Court charging, inter alia, that Defendant had committed against G. the family offense of Assault in the Second or Third Degree, and Reckless Endangerment. The Petition alleged the Defendant had beaten the Child with a "whip", that there were bruises on his body, and that Defendant had also tied him to his bed. (See Family Court Decision of Judge Mary Ann Scattaretico–Naber, dated Feb. 18, 2015, p. 1). The allegations in the Petition stemmed from incidents that allegedly occurred on or about April 26, 2013 when Plaintiff noticed "whip" marks on the Child's face and body shortly after he picked up G. from a scheduled visit at Defendant's residence. (Id., pp 3–6). Surprisingly, Plaintiff did not immediately report this incident to any authority, and in fact continued to permit Defendant to have unfettered access to G. by dutifully delivering him to Defendant's residence each week for his visitation period with her. This visitation regimen ended abruptly on June 7, 2013 when Plaintiff filed the Family Offense Petition and obtained an Order of Protection, on G.'s behalf, prohibiting unsupervised contact between Defendant and the Child. That Order of Protection continues to this day. Since June 2013, Defendant's only physical contact with her son has been in the context of occasional supervised—at one time, therapeutic supervised—visits of no more than three hours duration.
Between February 18, 2014 and October 15, 2014, Family Court Judge Mary Anne Scattaretico–Naber conducted a fact finding hearing with respect to Plaintiff's Family Offense Petition, at which both Plaintiff and Defendant testified. By Decision and Order dated February 18, 2015 (the "Scattaretico–Naber Dec."), the Family Court sustained the Petition, finding by a preponderance of the evidence that Defendant had assaulted G. in violation of § 120.05 of the Penal Law.
As the Court held,
"CONCLUSION OF LAW
The burden of proof on the father M., was to prove to this Court, by the preponderance of the evidence (that more likely than not) that the child was a victim of an Assault, Menacing and/or Reckless Endangerment and that the mother, A., was the person who was responsible and committed these acts upon the child. It is well settled that the Family Court is charged with both grave responsibilities and broad discretion, all in the best interests of a child. The Attorney for the Child submits that the burden was met and therefore, asks that the Family Offense Petition on behalf of the child, G. be sustained.
What is clear to the Court, as proven through credible evidence, is that the child, was struck, and the use of physical force left marks on his face and across his chest, shoulder and stomach. After reviewing the relevant Court records, and the credible testimony and evidence solicited at trial, the Court finds that the father has met his burden, on behalf of the child, and that the mother did commit the offense of Assault in the Second Degree (Penal Law § 120.05 )."
(Id. pp. 6–7).
In the context of the facts as presented to the Family Court, the only applicable subdivision of Penal Law 120.05 is subdivision 2—intentional infliction of physical injury upon a person by means of a dangerous instrument—here, the "whip" referred to in the Scattaretico–Naber Decision. Testimony described the instrument used, in the Albanian vernacular, as a "thuper," the Albanian word for whip (Scattaretico–Naber Dec., pp. 2–3) which, according to one witness, had the shape of a fly swatter.The dispositional phase of the Family Offense proceeding is currently ongoing before Judge Scattaretico–Naber.
During the pendency of the Family Court proceeding, the instant action for divorce continued at a somewhat halting pace, due largely to frequent changes in counsel for Defendant. Among other things, the Court assigned a neutral forensic evaluator, Marc E. Weiler, Ph.D., and arranged for monthly supervised therapeutic visits between Defendant and G. with Ellen Herskowitz, LCSW serving as the therapeutic supervisor. As with the Family Offense proceeding, neither event augured well for Defendant as far as her effort to obtain custody of G. was concerned.
Dr. Weiler's Reports and Testing.
Dr. Weiler was appointed by Hon. Charles Wood in 2013 to conduct an independent forensic evaluation. He was reappointed by Judge Paul Marx in 2014 to furnish an updated report. Both Dr. Weiler's initial report dated February 20, 2014 and the Updated Report filed with the Court on December 15, 2014 (collectively the "Reports", Court Exhs. I and III) were admitted into evidence and served as Dr. Weiler's direct testimony at trial. (See Uniform Rule 202.16(g) ). During the course of his evaluation, Dr. Weiler met with G. a number of times, and also met with his parents and several maternal and paternal relatives. Dr. Weiler also administered tests to G. as well as his parents. Dr. Weiler testified at the trial; his reports were written and his testimony given after and with knowledge of the incident in April 2013 that resulted in the Scattaretico–Naber Decision.
In his Reports and in his testimony, Dr. Weiler recommended joint legal custody, with Plaintiff to have final decision making authority; with respect to physical custody, he recommended that Plaintiff be given primary physical custody of G., with visitation with the Defendant mother. However, as Dr. Weiler emphasized in his testimony, these recommendations, as far as Defendant's share of legal custody and access time are concerned, were subject to important preconditions: namely, that Defendant first undergo a neuro psychiatric or neuro psychological evaluation, and that any visitation between her and G. begin with therapeutic, supervised visits and, if successful, progress from there. Dr. Weiler opined that in light of his evaluation of Defendant and her maternal abilities (or lack thereof) at the time, therapeutic visitation was a necessary first step in order to assure that Defendant understood her role and responsibilities as a mother to G.
As such, Dr. Weiler's recommendations regarding Defendant's custody and access time with G. were more in the nature of goals that might be attained by Defendant in the future rather than a schedule that would be immediately implemented. The reason behind Dr. Weiler's reticence is clear: in light of Defendant's prior conduct toward G., the limitations resulting from her stroke, and her inability to progress in her maternal role as G. developed, Defendant had yet to demonstrate that either legal custody or a liberal, unencumbered access schedule would serve G.'s best interests. On the contrary, such an approach might well prove detrimental to G. and his continued development. The Reports and testimony of Dr. Weiler as well as the testimony of other witnesses support this assessment. (See Feb. Report, Court Exh. I, pp. 7–10; Dec. Report, Court Exh. III, pp. 7–9).
Ellen Herskowitz' Testimony
The testimony of Ellen Herskowitz echoed Dr. Weiler's concerns. Ms. Herskowitz served as the therapeutic supervisor for the visits between G. and his mother from July 27, 2013 through March 23, 2014. Ms. Herskowitz was appointed by Judge Marx with an eye toward not only assuring that G. was safe while in Defendant's care, but also to assist Defendant in developing and improving upon her parenting skills. Unfortunately, Ms. Hershlowitz' efforts were, in the main, to no avail as far as the latter goals were concerned.
As Ms. Herskowitz testified, Defendant began her therapeutic visitation sessions with some promise. She initially followed Ms. Hershkowitz' suggestions with respect to G., and both expressed and demonstrated her affection toward him. However, as time passed and G. grew older and advanced developmentally, Defendant failed to progress in her parenting skills in that she did not act in a manner in which a mother relates to a child as opposed to an infant or toddler. She would fawn on G., hug and kiss him frequently, but did not afford him the increased measure of independence that children of his age demand. As a result, G. began to complain about his visits with her. Ms. Herskowitz made a number of suggestions in an effort to assist Defendant but met only resentment. After several months, this resentment boiled over and a confrontation between Defendant and Ms. Herskowitz ensued.
During a visit on March 23, 2014, Defendant's lack of impulse control revealed during the April 2013 incident again reared its ugly head. On that day, during a visit with G. at the White Plains Library Defendant, in G.'s presence, screamed and yelled at Ms. Herskowitz when Defendant—for no apparent reason—tried to videotape the transition of G. from her to Plaintiff. When Ms. Hershokowtiz tried to stop the taping, she and Defendant had some physical contact which, while perhaps inadvertent, resulted in Defendant calling the police. No charges were filed against any party.
Needless to say, the relationship between Defendant and her therapeutic supervisor was irretrievably broken and the therapeutic visitation sessions ended with a bang rather than the preferred whimper. They also ended prematurely; as reflected in Ms. Herskowitz' testimony, Defendant had yet to learn what the responsibilities of motherhood and parenting entail. Unfortunately, Defendant emphatically stated in her testimony—in contrast to Ms. Herskowitz' opinion—that she did not need further therapeutic visitation, and would not voluntarily agree to more sessions. However, she indicated, after some prodding from the Court and Attorney for the Child, that she would comply with a Court directive that she participate in any such future sessions.
Testimony of Dr. Stone and Defendant's Parents and Brother
Neither the testimony of the psychiatrist called by Defendant, Dr. Michael Stone, nor the testimony of Defendant's parents advanced her position. Defendant represented to the Court that Dr. Stone was her treating physician. However, as Dr. Stone testified, that did not turn out to be the case. As Dr. Stone stated, Defendant was referred to him by one of her prior attorneys, and Dr. Stone was under the impression that he was conducting a forensic evaluation. Be that as it may, Dr. Stone's treatment or evaluation of Defendant, however characterized, was greatly circumscribed in scope. He saw her approximately ten times over a two year period, in sessions typically lasting no more than an hour or so. He never saw her with G., conducted no neuro psychiatric or psychological evaluation of her, and administered no written tests. Nor did he review any medical or hospital records of Defendant.
Nonetheless, Dr. Stone testified that other than the mild physical limitation of a right arm weakness, he observed no physical or mental impairment of Defendant as a result of her stroke, and detected no evidence of a psychological disorder other than mild anxiety which he attributed to the fact that she did not have custody of G. Despite the fact that he was aware of the April 2013 assault of G. by Defendant, he did not think it was necessarily indicative of any mental illness and, therefore in contrast to Dr. Weiler, did not believe that any neuro psychological evaluation of Defendant was indicated.
In view of the limited exposure of Dr. Stone to Defendant and his lack of any contact with G., Plaintiff, or anyone in G.'s extended family, Dr. Stone's evaluation pales in comparison to the more thorough review undertaken by Dr. Weiler. The Court thus accords Dr. Stone's testimony little weight.
The Court also gives scant weight to the testimony of A.'s parents, L.P. and B. P., and her brother L.P. The testimony of A.'s father and brother is of virtually no utility since they lived in the same household as A. and G. for only a brief period in 2013, shortly before G. was removed from Defendant's care in June 2013. More significantly, the testimony of A.'s mother, who had greater experience observing A. with G., to the effect that she was always mild mannered toward her Child and did not engage in corporal punishment is belied by the Family Court finding that she did, in fact, beat G. with a dangerous instrument.
Testimony of the Parties:
Testimony of Plaintiff M. G.
Plaintiff's testimony was, in the main, refreshingly prosaic as far as his description of G.'s life after June 7, 2013 is concerned. G. lives within close proximity to his father's extended family; he has been consistently enrolled in pre-school or school; and his medical needs have been met. The record is devoid of any indication that G. is or has been mistreated or unhappy while living with his father.
According to Plaintiff's testimony, this current stability stands in stark contrast to the family situation that obtained during the four year period in which Plaintiff and Defendant shared custody of G. on a 50/50, alternate two day schedule. According to Plaintiff's credible testimony, that period of shared custody was marked by contention and hostility between the parties, often acted out in the presence of their Child. As recounted by Plaintiff, during transitions between parents, Defendant—sometimes abetted by a member of her family—would frequently yell and scream at Plaintiff, threaten him, and hit his car with her fists, to the point where Plaintiff did not feel comfortable making the trip to pick up or drop off G. unless accompanied by another adult. All this took place on a number of occasions and in G.'s presence, as confirmed by the testimony of both Plaintiff and a witness called by him, James Bundidge.
James Bundidge, a friend of Plaintiff, testified that at Plaintiff's request, he accompanied him on approximately twelve occasions when G. was dropped off to Defendant. Mr. Bundidge testified to a particularly chilling incident which resulted in actually placing G. at physical risk. Mr. Bundidge testified that during a drop off of G. by Plaintiff to his mother, he observed that G. appeared reluctant to leave the car. Defendant began screaming at Plaintiff until Plaintiff succeeded in removing G. from the car and handed him to Defendant, who continued screaming. She then put G. down, and he ran into the street and attempted to open the car door and reenter Plaintiff's car from the street side. Plaintiff carried G. to Defendant and again handed him to her. Mr. Bundidge testified, as did Plaintiff, to numerous other occasions when he heard Defendant screaming at Plaintiff, particularly when G. was dropped off to her. The Court finds such testimony to be credible. Defendant's erratic and, ultimately, dangerous behavior during this period of shared custody culminated in the events that led to the Family Court proceeding and the finding that she had assaulted G.
As demonstrated through the testimony of Plaintiff as well as Ellen Herskowitz, similar aspects of Defendant's behavior remained essentially unchanged after the 50/50 custody arrangement had been terminated. For example, as recounted above, Defendant's continued obstinate conduct scuttled the efforts of Ms. Hershkowitz to have her engage in meaningful therapy regarding her relationship with G. Moreover, as Plaintiff testified and as the testimony of Defendant herself confirmed, Defendant again placed her own interests ahead of the Child's by seeking to indefinitely delay G.'s Baptism, in defiance of an Order of this Court (See discussion infra, pp. 12–14).
Testimony of Defendant A. G.
Defendant's testimony was marked by the expected and the somewhat unexpected. As expected, she professed that she does not believe in or engage in corporal punishment. She also proclaimed, the Court believes sincerely, her love for G. and her yearning for custody of him. What was unexpected, however, was more telling and demonstrated a lack of self awareness and reflection that inveighs against an award of custody, legal or physical, to her.
It would be anticipated that a parent who seeks increased time with his or her child would readily agree to undergo virtually any testing or therapy that would smooth the way to attaining that goal. Instead, Defendant chose the opposite tact of refusal and denial. In the face of the recommendation of the Court appointed expert Dr. Weiler, given over two years ago, that she undergo neuro psychological or neuro psychiatric testing as a pre condition for increased time with G. and potential joint legal custody, Defendant at once denied that such testing was necessary and refused to take the steps necessary to schedule it at any time from the date of Dr. Weiler's report up to the present. Her stated reason for such inaction—that the testing was too expensive—is belied by the fact that she never sought to determine whether the testing would be covered under any insurance plan, or in the alternative, ask her attorneys to petition the Court to compel Plaintiff to pay for such testing.
Defendants's similar attitude toward therapeutic visitation is also revealing. Although recommended by Dr. Weiler and ordered by the Court, she denied its necessity or efficacy and, as the testimony of the therapeutic visitation specialist Ellen Herskowitz reflected, failed to give it a fighting chance to succeed. Instead, she ignored Ms. Hershkowitz' suggestions and ultimately sabotaged the therapeutic program by, in essence, picking a fight with her therapist. Defendant's attitude towards the possibility of future therapeutic visitation was also troubling. Rather than jump at the chance to engage in a process that might well lead to increased time with G., she insisted throughout her testimony that therapeutic visitation would not work, and that she would not engage in it voluntarily. Only after some prodding by the Attorney for the Child did she reluctantly state she would participate in such a visitation regimen if ordered by the Court.
G.'s Baptism
The events surrounding and leading up to G.'s Baptism also illustrate in bold relief the obdurate and in the end, pointlessly defiant attitude of Defendant which undermines her cause. As Defendant acknowledged in her testimony, both parties are of the Roman Catholic faith, and that according to the Church's precepts, the Baptism of an infant should take place within one year after his or her birth. Due to Defendant's health problems and hospitalizations and, shortly thereafter, the parties' abrupt separation, G.'s Baptism did not occur within his first year. There followed a long campaign by Plaintiff to have G. baptized, met by Defendant's prolonged and constant resistance to that event taking place—a resistance that became particularly strident after Defendant received full temporary custody of G. in June 2013. Since the Child's mother would not consent to his Baptism, the Church initially refused to schedule the ceremony.
In order to break the impasse, Plaintiff was constrained to seek the intervention of the Court. On May 11, 2015 Judge Marx issued an order (Court Exh. IV) clearing the way for G.'s Baptism. However, Defendant remained adamant; she proceeded to threaten the Pastor of the Church at which G. was to be baptized, and wrote to the Archbishop, Cardinal Timothy Dolan, asking that despite the Court Order, he intervene to prevent the then scheduled Baptism from taking place.
Her ostensible reason was the existence of the order of protection issued as a result of the April 2013 assault as found by the Family Court; Defendant testified that she was embarrassed by that Order, and sought only to postpone, not prevent, the Baptism until it was lifted. However, in light of the serious nature of the charges alleged in the Family Court Petition, Defendant must have, or at least should have, realized that the Family Court matter might not be promptly resolved and that to postpone the Baptism for that reason might well result in a delay of indefinite duration. Indeed, that Order of Protection remains in effect. At the time of her last-ditch efforts to delay the Baptism, G. had already turned seven—the age at which most Roman Catholic children receive their First Communion. In addition, Plaintiff made it clear to Defendant that he would not oppose her attendance at the Baptismal ceremony, and Judge Marx' order did not prevent it.Tellingly, when the Baptism of G. was finally held in late July 2015, Defendant did not attend; she professed illness.
Since a child's best interests clearly include promoting or at least not unduly interfering with, his or her spiritual education and development, Defendant's long war of attrition to indefinitely delay G.'s Baptism speaks volumes as to whether she is able, at this time, to place his interests above hers. It also calls into question her ability to work with Plaintiff to foster a relationship between not only her and G., but between G. and his father as well.
Conclusion
It is axiomatic that the paramount consideration for the Court in a custody case is to determine the best interests of the child. See, e.g., Gonnard v. Guido, 108 AD3d 709 (2d Dept.2013) ; Young v. Young, 212 A.D.2d 114 (2d Dept.1995) ; Turner v. Turner, 260 A.D.2d 953 (3d Dept.1999). Such best interests determination is based upon the Court's "review of the totality of the circumstances." Davis v. Pignataro, 97 AD3d 677 (2d Dept.2012) ("The best interests of the child are determined by a review of the totality of the circumstances"); Vasquez v. Ortiz, 77 AD3d 962 (2d Dept.2010).
Chief among those interests is insuring the child's safety. Indeed, in custody cases, a paraphrase of a noted political philosopher is particularly apt: Salus iuvenis lex maxima est. (Safety of the child is the highest law). See, ie.g. In re. Valerie Leonice T., 107 A.D.2d 327 (1st Dept.1985). Here, under the present circumstances, serving that interest and the further interests of G.'s well being and development militate strongly in favor of an award of full legal and physical custody to his father for several reasons.
First, the Court cannot ignore the finding of the Family Court that in April 2013, Defendant committed the offense of Assault in the Second Degree against G. by striking him with a dangerous instrument, thereby causing physical injury to him. Defendant makes much of the fact that since the finding was made in a Family Court proceeding rather than in the criminal court context, the standard for the Court's decision was a preponderance of the evidence rather than beyond a reasonable doubt and should therefore be given little weight. Defendant's contention is meritless. The Family Court made its finding after a full evidentiary hearing at which both parties testified, and unless overturned on appeal, this Court is bound by that decision. See, e.g., Chiara v. Town of New Castle, 61 AD3d 915 (2d Dept.2009) ; Comprehensive Medical Group of New York P.C. v. Hauskneht, 55 AD3d 777 (2d Dept.2008) ; Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343 (1999) ; D'Arata v. New York Cent. Mut. Fire. Ins. Co., 76 N.Y.2d 659 (1990). In light of the Scattaretico–Naber Decision, returning the Child to the same or similar custodial environment that led to the April 2013 events would, at this time, prove antithetical to G.'s best interests.
The Court uses the qualifier "at this time" because Defendant may, in the future, take steps that might well lead to more access time, or possibly shared custody of G. The fact that she has not already taken steps to do so—steps suggested months ago by Dr. Weiler and, in part, ordered by this Court—is another and potentially more salient factor weighing against shared legal or physical custody, as well as against a finding that Defendant should enjoy, at present, unfettered access time with G. For despite the recommendations of Dr. Weiler and the prodding of this Court, Defendant has obstinately taken her own path in derogation of both G .'s and her best interests, as witnessed by her failure to schedule a neuro psychological evaluation or meaningfully engage in therapeutic visitation. Indeed, courts consider a parent's willingness or unwillingness to participate in a recommended course of therapy an important factor in making a best interests determination, whether in the context of deciding custody or the extent of visitation. See, e.g., Ziekind v. Ziekind, 218 A.D.2d 745 (2d Dept.1995) ("[T]he father's wilful refusal to submit to a psychiatric evaluation was a sufficient ground for a temporary order granting custody to the mother and denying the father visitation."); Jordan v. Jordan, 8 AD3d 444 (2d Dept.2004).
Defendant's conduct and attitude toward Plaintiff, both before and after June 7, 2013, also undermines her attempt to obtain custody or enhanced access. As shown by her behavior during transitions of G. from his father to her as well as her campaign to indefinitely delay G.'s Baptism, it is doubtful that she could satisfy a criteria that the courts often deem vital in making a best interests determination: the ability to foster a fruitful and meaningful relationship between the child and the other parent. See, e.g., Vasquez v. Ortiz, 77 AD3d 962 (2d Dept.2010) ("[O]ne of the primary responsibilities of a custodial parent is to assure meaningful contact between the children and the non-custodial parent, and the willingness of a parent to assure such meaningful contact between the children and the other parent is a factor to consider in making a custody determination."); Martinez v. Hyatt, 86 AD3d 571 (2d Dept.2011) ; Tori v. Tori, 103 AD3d 654 (2d Dept.2013). One parent's inability or evident refusal to do so must be seriously considered by the Court in determining the proper custodial regimen to fashion. See Turner v. Turner 260 A.D.2d 953, 954 (3d Dept.1999).
For example, in Lichtenfeld v. Lichtenfeld, 41 AD3d 849 (2d Dept.2007), the Second Department affirmed the Family Court's decision, after a hearing, to change the prior custody order of the Court and award plaintiff father sole physical and legal custody of the parties' children based primarily upon a determination that the father rather the mother was the "better able ... to foster an ongoing relationship between the children and the non-custodial parent." As the Court held,
"In determining the issue of parental custody, the primary concern is the best interests of the child.
* * * *
Contrary to the mother's contentions, the evidence presented at the hearing amply supports the Family Court's determination that awarding sole physical and legal custody of the subject children to the father is in their best interests. Here, the mother deliberately interfered with the relationship between the children and the father, an act so inconsistent with the best interests of the children as to per se raise a strong probability that she is unfit to act as a custodial parent. Moreover, the mother placed the children in serious jeopardy when, with the children inside of her car, she used it to ram the father's car several times. Such an act was clearly inconsistent with the best interests of the children and demonstrated that she was willing to put her own interests ahead of those of her children. In contrast, the father demonstrated that he is better able then the mother to place the children's needs before his own needs and to foster an ongoing relationship between the children and the noncustodial parent. While priority should usually be given to the parent who was first awarded custody by the court or to the parent who obtained custody by voluntarily agreement, it is nevertheless but one factor to be weighed by the court in deciding whether a change of custody is warranted. Accordingly, we decline to disturb the Family Court's determination ." (Emphasis added, citations omitted).
See also, e.g. Vasquez v. Ortiz, 77 AD3d 962, 963 (2d Dept.2010) (Change of circumstances found and custody modified to award sole physical custody to father in light of Family Court determination that "the mother did not encourage a relationship between the children and the father and that she was unwilling to cooperate and, hence, co-parent with the father"); Parchinsky v. Parchinsky, 114 AD3d 1040, 1042 (3d Dept.2014) ("The record ... supports the conclusion that the father is more likely than the mother to support and nurture the sons' relationship with the other parent.").
Indeed, in the instant case as in Leichtenfeld and Vasquez, rather then nurturing a relationship between Plaintiff and G., Defendant's conduct, as evidenced by the testimony and exhibits adduced at trial, appeared designed to achieve the opposite and destructive result. (See discussion supra pp. 7–14).In contrast, Plaintiff testified and has demonstrated his willingness to foster a relationship between Defendant and G. As the evidence reflected, he cooperated with and paid for the supervised visitation of Defendant with G., as well as electronic and telephone access time. Indeed, it appears that the principle obstacle to any fruitful visitation and communication between Defendant and G. has not been Plaintiff, but G., who remains, perhaps understandably in view of their history, resistant to seeing or speaking to his mother—all the more reason for Defendant to engage in the therapeutic visitation protocol recommended by Dr. Weiler and the Court.
Whether Defendant's obstinate, untoward and at times threatening behavior toward both Plaintiff and G., as described above, was born of malicious intent—which the Court considers doubtful—or was a consequence of her unfortunate medical history is of no moment to the overriding issue before the Court: whether at this time and under the current circumstances, G.'s best interests would be served by awarding either custody or significant, unencumbered access time to Defendant. In light of the situation that now obtains, the answer to this question must be no. Defendant has been found to have beaten her child with a dangerous instrument; has flashed anger when her desires with respect to G. were not accepted; has failed and refused to meaningfully participate in therapy to improve her parental abilities and to pursue a course of neuro psychological testing; has sought to prevent or obstruct an important event in G.'s spiritual development; and has basically made it clear by her words and actions that she is not now capable of fostering a relationship between G. and his father.
Accordingly, based on the record before the Court, the Court cannot award custody, legal or physical, to Defendant. Among the reasons as set forth above, the Court considered the at once compelling and instructive testimony and Reports of the Court appointed forensic evaluator, Dr. Marc Weiler. He concluded that until Defendant undergoes the proper neuro psychological testing, and meaningfully engages in a regimen of therapeutic visitation to enhance her parenting skills, an award of even partial legal or physical custody or, for that matter, unsupervised access time with G., would not serve G.'s best interests and might prove inimical to his physical and psychological well being. (See Weiler Reports, Court Exhs. I and III). Once such conditions are met, Defendant may well chose, in the future, to petition a Court of competent jurisdiction to modify this Court's order. Until that time, however, the Court concludes that the best interests of the Child G. would be served by the following custody protocol:
(1) Plaintiff is awarded full legal custody of G., and will have final decision making authority. Plaintiff may, but is not required to, consult with Defendant before any major decisions with respect to G.'s health, education and safety are made. However, Plaintiff shall promptly advise Defendant of any decisions made in those areas once such decisions have been made.
(2) Defendant shall be advised of the Child's medical providers and shall be afforded full access to any records of such providers or any other medical records pertaining to the Child. Defendant shall also be afforded full access to the Child's educational records and shall be entitled to receive a copy of any report cards or other reports or notices issued by his school with respect to the Child. Plaintiff shall provide any releases necessary to permit such access to G.'s medical and educational records as set forth in this directive. Plaintiff shall advise Defendant, in advance, of any major school events scheduled with respect to the Child and, unless prohibited by an order of protection or other Court order, Defendant may be permitted to attend such events.
(3) Access time of Defendant with the Child: Defendant's access time with G. shall be limited to three hours of therapeutic, supervised visitation every three weeks. Subject to any further order of the Court, the costs of such therapeutic visitation (exclusive of Defendant's travel expenses) shall be born by Plaintiff. Such access restrictions shall continue unless and until modified by a Court of competent jurisdiction.
(4) Either party retains the right to petition a court of competent jurisdiction to modify the terms of this custodial arrangement upon a showing of a significant change in circumstances. In light of the disparate financial circumstances of the parties, the Court will not limit the jurisdiction to hear such a modification petition or motion to the Supreme Court. The Family Court has and shall retain concurrent jurisdiction to hear any such modification petition.
To the extent that the above provisions are not currently in place, they shall take effect as of August 1, 2016.
The foregoing constitutes the Decision and Order of this Court.