Opinion
V-18655-7/19 V-01953-5/20
08-06-2021
In the Matter of a Proceeding under Article 6 of the Family Court Act, v. A.H., Respondent. A.G., Petitioner,
For petitioner mother A.G. Rachel Seger Cobos, Esq. For Respondent father A.H. Harry M. Forman, Esq.840 Grand Concourse, Suite 1A For subject child R.H.The Children's Law Center by Jamie Beitler, Esq. For subject children N.H. and M.H. Katherine Tracey, Esq.
Unpublished Opinion
For petitioner mother A.G. Rachel Seger Cobos, Esq.
For Respondent father A.H. Harry M. Forman, Esq.840 Grand Concourse, Suite 1A
For subject child R.H.The Children's Law Center by Jamie Beitler, Esq.
For subject children N.H. and M.H. Katherine Tracey, Esq.
Ariel D. Chesler, J.
NOTICE:YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER A COURT HEARING, RESULT IN YOUR COMMITMENT TO JAIL, FOR A TERM NOT TO EXCEED SIX MONTHS, FOR CONTEMPT OF COURT.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF RECEIPT OF THE ORDER BY THE APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.
It is the rare case in which the Court in a custody and visitation matter must consider denying visitation entirely to a parent or limiting a parent to supervised visitation. This is such a case. The father's conduct over the course of the parties' relationship included abandoning and unlawfully imprisoning the mother and the parties' eldest child in the country of Jordan for seven years, where they were isolated, deprived of food, and subjected to cruelty by the father's relatives, and were entirely dependent on the father's family for all their basic daily needs. When the mother and eldest child came to the United States and lived with the father in Ohio, the father continued to exhibit an extreme level of control over the mother and the eldest child. He denied the mother access to her identification documents, prevented her from working or having her own bank account, and monitored her movements. He would also scream, curse and threaten the mother and the eldest child, a daughter, and would demand their daughter dress in a certain way. In some instances, these episodes would escalate to physical violence directed at the mother and daughter. Separately, the father repeatedly forced the mother to have sexual intercourse with him. All of this conduct led to this Court issuing a five-year final order of protection in favor of the mother and all three children.
Further troubling is the father's violations of orders of protection, efforts to locate the mother despite such orders, failure to comply with the safety protocols of the supervised visitation ordered by this Court, and his complete and continuous failure to respect the authority and jurisdiction of this Court and related failure to comply with various orders of this Court, including directives to turn over the mother's and children's passports and other identification documents.
It is in this context and set of circumstances that this Court now grants the mother sole legal and physical custody of the children, denies the father any visitation or contact as to the child R.H., and grants the father limited visitation and contact with the children N.H. and M.H., as will be further described below.
Background and Procedural History
The parties were married in an Islamic religious ceremony in the Dominican Republic in 2002. The parties have three children: R.H,, born September 3, 2003 in the Dominican Republic; N.H., born December 23, 2012 in Ohio; and M.H., born October 10, 2014 in Ohio. In 2004, the parties and R.H. traveled to Jordan. At some point, a period of time after they arrived in Jordan, the father left Jordan; the mother and R.H remained there until 2012 when they came to Ohio to live with the father.
On November 28, 2018, the mother filed a petition for an order of protection in Ohio. In that pro se filing, the mother alleged that the father had threatened to kill her and her friends if she did not do what he said; that he "ke[pt] trying to force [her] to have sex with him"; that the father "control[led] everything around [her]"; that he tracked her phone in order to know who she called and where she went; that he "lie[d] to people and spread[] rumors" about her, in order to ensure that she had no one upon whom she could rely for help; and that he "stalk[ed]" her on social media and created "fake accounts," pretending to be women, in order to follow her.
Although the mother obtained an order of protection in Ohio, the father sent associates to intimidate the mother to drop the case. Thereafter, on or around December 5, 2018, the mother left the family home in Ohio, and fled to New York with the children. The mother and the children initially stayed with a maternal uncle in Yonkers, New York, and then moved into the shelter system, with a confidential address.
On January 28, 2019, the Ohio court issued an order dismissing the mother's domestic violence petition, without prejudice, due to her failure to appear for the hearing that had been scheduled for December 21, 2018, or to respond to an attempt to contact her on January 8, 2019.
This matter commenced in June 2019 when the mother filed pro se family offense and custody petitions in Kings County. A temporary order of protection was issued and the matters were transferred to Bronx Family Court. On August 19, 2019, the mother appeared before this Court and the father appeared by his counsel. The Court extended the temporary order of protection and assigned counsel for the mother. When the matter returned on September 19, 2019, based on the allegations in the petitions and other factors, this Court took emergency jurisdiction of the custody petition.
Meanwhile, a custody proceeding had been commenced by the father in Ohio on April 18, 2019. Although efforts were made by this Court to learn the status of the matter in Ohio, no definitive answer was obtained from Court staff in Ohio. Thereafter, it was learned that the Ohio Court had issued a final order of custody to the father on default on October 4, 2019. On October 29, 2019, the father appeared with counsel after filing a writ of habeas corpus demanding the return of the children as well as a motion to dismiss the mother's custody petition. The children were ordered to be produced to Court and an attorney was assigned for them.
At the time of the August 19, 2019 conference, the Ohio Court had issued only a temporary order which granted the father visitation and set a trial date in July 2019.
Later, a separate attorney was assigned to represent the two younger children.
At the next conference on November 11, 2019, the Court was advised that the mother was never served with the petition in the Ohio matter and had filed a motion to stay and dismiss the Ohio default order. The children were also made available to their attorney who opposed any visitation for the father, and the writ of habeas corpus was deemed satisfied.
A jurisdictional conference was arranged with the Honorable Anthony Capizzi of the Common Pleas Court of Montgomery County, Ohio for December 18, 2019. Counsel for the parties in both this matter and the Ohio matter, as well as Judge Capizzi and this jurist appeared at the conference. Judge Capizzi advised that at that point the Ohio default custody order had been vacated based on issues with service, but that the vacatur decision had been appealed by the father. Ultimately, based on an agreement between the two courts it was determined that New York should retain jurisdiction. Therefore, this Court issued an order on December 18, 2019 reflecting that agreement and stating that New York had jurisdiction and would retain the case. This order thus resolved any jurisdictional concerns and settled that issue. The Court separately denied the father's motion to dismiss this proceeding. In another order issued that same date, the father was directed to turn over passports, social security cards, birth certificates and all personal documents for the children by January 10, 2020.
The default custody order had been vacated on November 22, 2019 by Judge Capizzi.
At the conference on January 29, 2020, the Court was advised that the father had failed to turn over any documents as ordered. The Court issued another order directing the father to turn over all documents in his possession by February 7, 2020. This order added a contempt warning in the event it was not followed. At that time, the father had also filed his own custody petition in New York and, based on safety concerns raised, the Court directed him to have visitation with the parties' two younger children through Safe Horizon. The visitation order specified that all communication during the visits would be in English and that the father was not to question the children about their residence, school or neighborhood as they were living in a confidential shelter. At that time, a pretrial conference date was set for March 2020 and trial dates were selected in April and May 2020. The pandemic would come to greatly delay the proceedings and trial in this matter.
Unfortunately, due to the COVID-19 pandemic and issues with the father changing attorneys, the next time the matter could be heard was in September 2020. Some of the delay was caused because there was an issue arranging for the father's prior counsel to sign a consent to change attorney form. Safe Horizon had facilitated a number of visits with the two younger children between February and March 2020 and provided a report to the Court. While there were positive aspects to the visits, the father violated the Court's order by speaking to the children in Arabic, and also repeatedly violated Safe Horizon's policy by bringing the children gifts. He also violated Safe Horizon policy by speaking about the mother and making future plans with the children. The father also argued with Safe Horizon staff about their policies in front of the children. In April 2020, the father and children were permitted to exchange videos they made for each other. However, due to safety concerns raised by the mother and the father's policy violations, Safe Horizon would not facilitate regular video chats between the father and children.
Also in September 2020, the Ohio Appellate Court for Montgomery County issued a decision reversing the vacatur of the default custody judgment and remanding the matter for a hearing on whether the mother was properly served in that proceeding. Although cognizant of the proceeding in this Court, the jurisdictional conference between the two courts, and the risk of competing and conflicting orders from two jurisdictions, the Ohio Appellate Court ruled that the Ohio case was not moot and should continue with a hearing on service.
On October 2, 2020, this Court held a conference at which it formally relieved the father's prior counsel. The father's new counsel, despite the Court recounting the history and jurisdictional conference and decision from December 2019, argued that because the Ohio matter was pending this Court did not have jurisdiction. Following a lengthy discussion, the Court issued an order reiterating that New York is the proper jurisdiction and that the "UCCJEA jurisdiction was already determined between this Court and the Ohio Court."
On October 22, 2020, the father appealed this Court's October 2, 2020 reiterating its jurisdiction along with a motion to stay the within proceedings with the Supreme Court of New York, Appellate Division, First Department. The stay motion was ultimately denied, and the father's appeal was eventually withdrawn.
At that time, the father had still failed to turn over documents as ordered by the Court. Further, despite having filed his own custody petition with this Court and making additional demands for visitation and access, the father insisted on litigating both in New York and in Ohio, thereby causing serious concerns about forum shopping and respecting the authority of this Court.
Notably, the concern was such that at the court conference on November 17, 2020, the attorney for the two younger children no longer consented to the Court ordering supervised visitation for the father. At that point, the Court declined to order any further supervised visits for the father. The Court was also advised that child protective personnel had visited the maternal uncle's home to investigate a report of child abuse made against the mother, including allegations that the mother was a prostitute and using drugs. The report was investigated and deemed unfounded. Two trial dates were selected for February 2021 and there was discussion about scheduling an in camera with the eldest child.
In addition to continuing to assert that the issue of jurisdiction was not settled, the father's counsel made an oral application to dismiss the mother's pro se family offense petition based on its lack of detail, which the Court denied. The father's counsel also requested to file a bill of particulars, which he never did. Instead of dismissing the family offense petition, the Court directed the mother's counsel to file an amended family offense petition so she could provide more detailed allegations regarding the claimed family offenses. As directed, counsel filed an amended family offense petition.
In January 2021, the father's counsel filed a recusal motion, asking this Court to recuse because of the valid concerns the Court raised about the father's forum shopping. On January 29, 2021, the Court denied the motion and held a pre-trial conference at which pandemic trial procedures, and the limited time for trial during the pandemic, were discussed.
On February 10, 2021, a hearing on service was conducted on the father's Ohio custody case. On March 3, 2021, Ohio Judge Anthony Capizzi issued an order finding that the mother was never properly served with notice of the Ohio custody proceedings and, for a second time, vacated the default custody order from October 4, 2020. The Court is advised that the father has appealed that decision.
Trial
Procedure
The combined trial on custody and the family offense petition was held on four dates: February 8 and February 11, 2021, and May 17 and May 18, 2021.
The first two dates of trial included a total of three (3) hours of trial time and the next two dates were a total of six and one-half hours (6 and ½) of trial time. This was more trial time than the Court afforded to any other trial it held during the pandemic. Notably, although the mother's testimony stretched over multiple dates, these included the first two dates which were briefer appearances and the mother had the extra burden of proving her family offense petition. A significant amount of trial time was also wasted by the tactics of father's counsel as described further in this opinion.
In addition, this Court held an in camera with the eldest child R.H. on May 20, 2021. Initially, because of limited Court time and resources caused by the pandemic, the Court scheduled only two days of trial in this matter. However, as the trial proceeded the Court added two additional dates based on the issues raised and the requests of counsel, including concerns that the mother needed more time to testify to prove her family offense petition, and that the father needed significant time to cross-examine her and to complete his own direct testimony. Notably, counsel was made aware that these additional dates would be used to complete the trial. Counsel were also advised well in advance of the planned date for the in camera.
After the final day of trial and after the trial record had been closed, and mere hours before the in camera with R.H. was to be held, the father's counsel electronically submitted an affidavit purporting to withdraw his custody petition as to R.H. and consenting to the mother's custody of R.H. The affidavit also objected to this Court proceeding with the in camera based on the withdrawal and consent. This affidavit is not part of the trial record and was not formally filed until the day after the in camera was held following a standard clerical review of electronically submitted documents. In any event, at that juncture the father could not withdraw his claim without court permission and stipulation of the parties because the matter had been submitted to the Court for decision (see CPLR 3217[b]). Nor could the father dictate whether the in camera should proceed; all parties had notice of the in camera well in advance and it is within the Court's discretion to allow or disallow the proceeding. Moreover, a sudden cancellation of the in camera hearing would have seriously impacted the ability of the attorney for R.H. to present her case. Of course, the father was free to state or clarify his position as to each of the children in his written summation to the Court, which he in fact did.
Despite clear instructions from this Court about trial time and procedure, the father's counsel engaged in unnecessary argument, dilatory and wasteful practice and poor use of trial time without regard to the Court's directives and in a manner seemingly intended to prevent the Court from completing the trial and performing its most basic function.
Counsel now complains about the limited trial time but he should look primarily to his own behavior and failure to accept the reasonable limitations put forth by the Court during an unprecedented pandemic (see generally S.N. v. J.A., 71 Misc.3d 1206 (A) [Family Court, Bronx County, April 12, 2021]). Overall, the Court fairly divided trial time between the parties given the varied burdens of the parties, and the father's counsel chose to use his time as he saw fit. Despite the limitations of the pandemic and conducting a virtual trial with an interpreter, the Court endeavored to ensure both parties had a reasonable opportunity to present their case, cross-examine witnesses, submit evidence, and make arguments. All counsel were required to curtail and edit their questions on direct and cross examination.
As with counsel in the S.N. v J.A. matter, counsel for the father should review the relevant ethics rules regarding conduct before a tribunal and should be aware of the need for flexibility and expeditious litigation during the pandemic and in virtual litigation.
However, rather than streamline his case or proceed in an expeditious manner appropriate to a pandemic, counsel sought to submit dozens of unnecessary exhibits, including many photographs, asked this Court to take judicial notice of a rule/regulation that he never provided to other counsel in advance, and began his case by calling a character witness with little to no direct knowledge of the central issues in the case. He also wasted time arguing for the right to call a surprise rebuttal witness, and spent a very significant amount of time cross-examining the mother about the family offense petition she had filed in Ohio rather than regarding the filings in this Court. Throughout the trial the father's counsel was repeatedly warned about wasting his time, redirected to ask critical questions, and admonished for his behavior, including interrupting and failing to respect the interpreter and the Court. Counsel chose not to heed the Court's warnings or directions.
It is further necessary to note that throughout the trial both the father and his counsel misused trial time by refusing to wait for the interpreter, objecting unnecessarily or to cause delay, repeatedly arguing with the Court over trial procedure and its rulings on objections, making gestures that required court intervention and admonition, refusing and failing to answer the Court's simple, direct and clarifying questions, and requesting bathroom and computer charging breaks, and on one date deciding not to use ten minutes of their time before the lunch break. In sum, the father's claim that he was not afforded a fair amount of time at trial is entirely unavailing.
Evidence
The parties submitted a brief statement of stipulated facts, which was limited to establishing the parties' religious marriage in 2002, the names, birthdates, and birthplaces of the children, the parties' trip to Jordan in 2004, and the fact that the mother and R.H. resided in Jordan without the father for around seven years and then came to live in Ohio with the father in 2012.
The Court took judicial notice of the following documents: 1) This Court's September 19, 2019 order taking emergency jurisdiction of the custody matter; 2) This Court's December 18, 2019 order retaining jurisdiction following the jurisdictional conference with the Ohio court; 3) This Court's December 18, 2019 order directing the father to turn over documents; 4) This Court's orders dated January 29, 2020 directing the father to turn over documents and directing visitation through Safe Horizon; 5) The Safe Horizon report dated May 29, 2020; 6) This Court's October 2, 2020 order reiterating that jurisdiction had been determined in December 2019; Admitted into evidence as petitioner's exhibit 1 was the mother's amended family offense petition dated December 17, 2020. In the amended petition, the mother alleged that she met the father in her home country of the Dominican Republic, that he convinced her to convert to Islam and that they were married in an Islamic religious ceremony in 2002.
According to the petition, in December 2004, the father surprised her with a trip to Jordan after he unilaterally decided they would travel there. After she and R.H, had traveled to Jordan with the father, he informed her that, in Jordan, a married woman who disobeyed her husband would suffer harsh consequences, and that she was not allowed to leave the family home unaccompanied. After six months, the father left to the United States, and left the mother and R.H. stranded in Jordan for seven years. Throughout that time, the mother had no money of her own and no legal status. She did not speak Arabic and was denied access to her passport. After the father left Jordan, the mother was abused, physically and verbally, by the paternal family, especially by the paternal grandmother. Although the mother informed the father of this treatment, he did not intervene. He also did not give her permission to work, making it impossible to obtain a job in Jordan.
After the father arranged for the mother and R.H. to come to the United States, he continued to control the mother's activities, monitored her movements, forced her to wear a hijab, and prevented her from accessing her own identification documents and passport, or those of the children. She had no money of her own, and no ability to earn money. In addition, the father insulted the mother by calling her derogatory names and threatened to call immigration authorities to report that she was undocumented. He banged the wall, pushed her against the wall, threw objects at the wall, breaking them, threw objects at the mother, and grabbed her by her arms and squeezed them, causing her pain. He also forced the mother to have sexual intercourse with him against her will.
Further, the father forced R.H. to wear a hijab, yelled, cursed at, and insulted her, threatened to hit her, pushed her, hit her, and allowed his nephews to verbally abuse and insult her as well. On November 18, 2014, the father broke down the bathroom door, as well as a wall in the basement while attempting to grab and hit R.H.
The mother alleged that, when the father was excluded from the home, both in 2014 and in 2018, he slept in his car outside the house, and continued to pressure the mother, both directly and through friends, to allow him to return to the home.
According to the mother, in September 2018, she was stopped for a traffic violation and received a ticket. Although the father told her that he had paid the ticket, the mother was arrested at her new job approximately one month later, due to her failure to appear in court.
The mother also alleged that, in November 2018, she had filed a petition, seeking protection from the Ohio court and was granted a temporary order of protection. However, the father and his friends pressured the mother to drop the order of protection, and she decided that she could not be safe in Ohio, and to flee to New York with the children.
The mother had filed her original New York family offense petition in June 2019, after the father attempted to discover where she and the children were residing, causing her fear and alarm. Specifically, in April and June 2019, the father began contacting the children's school for information and tried to intercept a prescription called into a pharmacy, forcing the mother and children to relocated by the confidential domestic violence network. In addition, in March 2020, the father called in a report to Westchester child protective services, falsely alleging that the mother and R.H. had mistreated the younger children while residing with the maternal uncle when they first arrived in New York.
The mother alleged that the father's long-term controlling behavior, and mental, emotional, physical, sexual, and economic abuse had caused the mother physical injury, as well as emotional and psychological damage, necessitating psychological treatment. Similarly, R.H. and N.H, had required individual therapy, while the mother continued to fear that, if given the opportunity, the father would abscond with the younger children.
The father submitted the following documents which were admitted into evidence: Exhibit A - The mother's Ohio domestic violence petition; Exhibit B - The order dismissing the Ohio domestic violence petition; Exhibit C- A copy of the mother's driver's license in Jordan; Exhibit F - a photograph; Exhibit G - A traffic ticket; Exhibits H-N - various photographs. The father had also sought to admit text messages which had not been properly translated and for the court to take judicial notice of a regulation regarding passports that he never provided to other counsel or the Court in advance. These requests were denied by the Court.
The father's counsel had initially proposed submitting dozens of photographs and videos of very poor quality, and which would have constituted cumulative evidence and would have been a poor use of trial time given the constraints of the pandemic.
Testimony
The Mother's Testimony
The Court finds the mother's testimony credible. As the Court noted on the record, the mother testified in an honest, detailed way, and there was nothing that seriously called into question the credibility of her testimony. Indeed, her testimony was in line with the allegations in her petition and was not contradictory, unclear or implausible. The Court places little significance in the fact that the mother did not include various allegations in the pro se family offense petition she filed in Ohio. Nor was it necessary for her to support her testimony with additional documentary or other evidence.
The mother swore that everything stated in her amended family offense petition was truthful and accurate. In response to the Court's opening question about what she was seeking in the case, the mother explained that she needs an order of protection because she had suffered from psychological, physical, sexual and financial abuse. She also wanted custody of the children because she could give them what they need and provide them "tranquility."
The mother stated that she had met the father in the Dominican Republic. She is his religious wife and mother of his children. Her daughter R.H. was born in the Dominican Republic and they moved to Jordan in 2004. The parties also married in an Islamic religious ceremony in 2002.
She is not currently Muslim, but previously had converted to that religion in 2002. She grew up as Christian. However, the father told her before they married that she had to convert in order to marry him. Only friends attended the religious ceremony but family joined for an event at their home. After they married the father did not allow her to be with her friends because they were not Muslim and she could not go to family reunions as she had previously because males and females were there together. She was also not permitted by the father to wear clothes that showed her arms or legs.
Prior to marrying the father, she had been working and studying. After they married, the father told her she had to leave her job and work with him, which she did. She found the father attractive because he was different from other men - He was religious, didn't drink alcohol and was attentive to her.
The mother stated that the father told her only two days before they went to Jordan, said it was a trip and not to tell anyone they were going except on the day they left. She only said goodbye to her mother. She thought she would be in Jordan for one month but ended up staying there for seven years. When she first arrived she stayed with the father, his parents, sister, and two brothers. She felt very strange when she arrived in Jordan because she didn't know the language and culture which was different from her own.
From the moment she arrived in Jordan she was subjected to physical and verbal abuse and control by the father's family. She observed that there were many limitations on women there; there was no freedom to go out or make decisions without the permission of her husband or the family. The father explained to her that women had to obey their husbands or there would be consequences, including death. She personally experienced these limitations; she couldn't go out without the father's permission and she had to wear the clothes the family ordered which covered her hair and body.
On cross-examination, the mother denied that she was able travel or that she visited Israel. Her mother did come to visit her once for three weeks. However, they only were able to travel to a local park. She also went to that park with the father's uncle and cousins.
The father only stayed in Jordan with her for six months. He told her he was coming to the U.S. to get a better future and that he would be gone for six months. She was left with the father's parents and siblings which was terrible. They would hide food from her and tell her she was a prostitute and a witch. They would also push her against the wall and pull her hair. In the beginning the father was there and was present for some of that treatment. The father told her that they spoke to her that way because she was a foreigner but in the end they would accept her. He also defended his mother and said she was jealous of her. She was frightened when the father left because of his family's treatment of her. When the father left, his family's treatment of her worsened. They would leave her alone without food and hide food in the house. Sometimes, she would go a whole day without eating, although R.H. would have milk.
When she informed the father what was happening he said he would talk to his family. After three weeks she had to escape because she couldn't take the treatment. She and R.H. went to the father's aunt, who was good. His family called him to explain what was happening. She then stayed at the aunt's home for three weeks and from there went to the father's uncle. She stayed with the uncle for one and one-half years; the father would send money to the uncle to provide for her and kept promising to come.
The uncle's 10-year-old son mistreated R.H. "badly" and would offend the mother. This cousin would push R.H. and tell her to leave the home. Although the father didn't do anything about the boy's behavior, she spoke to the father about this and eventually the father found an apartment for her and R.H. The apartment was completely empty except for a bed and cushion on the floor. There was no table and chairs and she only bought things for the kitchen. She stayed in that apartment for five years.
She did not have access to her own funds in Jordan. However, the father sent money to his uncle who would purchase food and give it to the mother. When she needed clothing, the father would have a family member escort her to purchase those things. At some point she was offered a job translating into Spanish but the father did not want her to do it and she needed her husband's permission to work. In addition, while in Jordan, the husband's male cousin held onto her travel documents. Two months before coming to the U.S. she got a driver's license in Jordan. However, she never had access to a car there.
On cross-examination, the mother eventually recalled that the cousin's name was "M.," and he took her everywhere she needed to go. M. was the son of W. and M.M.
On cross-examination, the mother stated that she needed the father's permission to get the license in Jordan and had to show her "family book" in order to get it.
While she was in Jordan she was the one who cared for R.H. on a daily basis; she clothed, fed her, and bathed her. The father sent her money through an uncle who would buy food for them. The father would call once a week. During the years in Jordan, she forged a close bond with R.H. and most of the contact R.H. had with her father was virtual.
On cross-examination, the mother stated that she never asked the father to send money to her mother.
She was also the one who cared for the all the children in Ohio, including cooking and bathing them and taking care of daily needs. In Ohio, the father only bought the food and the house. Similarly, since she has been in New York she is the one who cares for the children 24 hours a day. The children are now doing well emotionally; R.H. obtained a scholarship to school, N.H. was skipped a grade in school and M.H. is doing well in school. The mother makes sure the children have food and clothes and attend school. The mother also ensures R.H. is getting therapy to help her "emotional state."
On cross-examination by R.H.'s attorney, the mother explained that she had to change R.H.'s school four times since 2018 because the father had tracked them down at the confidential shelter.
Seven years after she arrived in Jordan the father got a visa for R.H. and brought her to the U.S. for a month. R.H. then returned with a Green Card. Two years later, the mother and R.H got a travel visa and came to the U.S. on separate flights. All of this was arranged by the father, and if he hadn't arranged it she would not have been able to leave Jordan. The father decided she would leave and his cousin who had held her documents arranged it. She had wanted to return to the Dominican Republic, but the father told her to come to the U.S. for six months and then to "her country."
After she left Jordan she came to live with the father in Ohio. She spoke to him about going to the Dominican Republic but he said it was better here and he could arrange documents for her to get her residency so she could work and study. She never divorced the father. However, he told her that he married someone legally in the United States but was getting a divorce. She was surprised by that information. He told her he got married in order to get his residency here.
In Ohio, the father exercised a lot of control and engaged in physical, economic, and sexual abuse. He also offended her emotionally. Regarding control, she could not go out without him, she had to wear what he wanted and he would check her phone to see her made calls. He would also track her phone to see where she went, and would have to approve the clothes she wore. She knew he was tracking her because every time she went for a walk the father would call her immediately to ask why she had left the house. She also tried to take English classes but the father would transport her. Eventually, she stopped taking English classes because she had more children and nobody to take her to class.
On cross-examination, the mother admitted she had access to a car in Ohio, got a job which the father was aware of and took English classes.
After her second daughter N.H. was born, she had to do what the father said without exception and he made everyone in the house nervous. He was always screaming and if the mother did not do what he said he would throw things at her. In December 2012, the father would control her and offend her, hit the wall, and would push her against the wall and to the couch. He called her monkey because she liked bananas, and he would call her prostitute, whore, garbage, and told her she was "nobody." He also told her that she did not have a right to have the children because she was not here legally, that he would take the children, and that he would call immigration on her and they could deport her.
He told R.H. that she was an easy woman because she did not want to cover her hair, and that her clothes were not correct because she shouldn't show any part of her body. When he said these things to R.H. he was aggressive and would hold R.H.'s wrists leaving marks. This happened on several occasions. He began to speak to R.H. this way when she turned 12.
On cross-examination, the mother denied that she ever hit any of the children.
In 2014, after they moved to 2527 South Dixie Highway in Ohio, there was an incident in which the father broke a door and a basement wall after R.H. saw a kiss on the television. The father became very angry, R.H. ran into the bathroom, and the father followed and broke the door. The father also tried to hit R.H. and broke the wall of the basement with his first. R.H. was crying and shaking. The mother called the police during this incident.
The mother noted that the actual address was 2527 South Dixie Highway, not "2526," and that there was an error in her petition.
The following day after this incident the father hit the mother in her foot with a phone which cut her. He was angry and took a broken telephone and cut her with it. She had to put alcohol on it for several days because it hurt. At that point she called the police and the father was arrested. She had planned to come to New York at that time but the father's brother came to talk to her. The father then slept outside the house every day in his car. Eventually she let the father return to the home because they had children together and the police did not offer her help.
In another incident, the father took the mother and her mother to a lake at night and said that a lot of people are killed at that lake and nobody discovered them. That caused her to be fearful. Several times the father also forced her to have sex when she did not want to. And sometimes he would push her to the wall.
In September 2018, the mother was driving the father's car and using his driver's license, which he assured her she could use in Ohio. She would take the children in Islamic school each day. One day she made a mistake while driving and got a traffic ticket. The father spoke to the police and told her that he just needed to pay the ticket. A month later she was arrested at her job and told she had a court appearance and was supposed to pay the ticket. The father had told her he paid it, and she felt scared after this because nobody, including the father, knew where she worked. She was also scared because it felt like the father's threats to have her deported were becoming reality.
Between 2014 and 2018, when they discussed separating the father told her that she could leave on her own and could not take the children because she was undocumented. In those years, the father would also throw items to the floor and he broke some things. He also caused R.H. to sustain bruises on her arm. Eventually, she got an order of protection in 2018 but the father still sent two people she did not know a week later to speak to her. They tried to convince her to withdraw the order which made her fear for her safety and that of her children.She then decided to leave Ohio one week later because she was afraid. She has been living with fear due to the father's conduct and has been engaged in therapy, which she doesn't think will end any time soon. She also didn't think she would ever have a normal life.
On cross-examination by the attorney for the two younger children, the mother stated that this violence took place in front of the younger children; N.H. would hide when it happened.
On cross-examination by the father's counsel, the mother was asked numerous questions about the order of protection petition she had filed in Ohio, which was in evidence. In fact, a very significant portion of the cross-examination focused on the Ohio petition. The mother essentially admitted she had submitted and signed the Ohio petition, and that certain detailed allegations she made in the New York family offense petition with the assistance of counsel were not made in the Ohio petition. As to certain allegations, she could not recall whether she had included them in the Ohio petition, which she did not have in front of her during the cross-examination. She also explained that she had prepared the Ohio petition on her own without counsel, and that she was not a lawyer. In addition, she admitted that she had filed the initial family offense petition in this case on her own in 2019.
On cross-examination, the mother denied that she started having psychological problems after her father died. She also never told the father she was bipolar.
The mother is now living in confidential housing; previously she had been in a domestic violence shelter. The shelter helped secure her current housing which has two bedrooms. Initially she had been in a family shelter which was not confidential. She was afraid the father was trying to find her and went to a domestic violence shelter to seek help. At some point she was moved to another shelter because someone had called her social worker pretending to be a pharmacy after she had filled a prescription.
She currently supports her children with government assistance and housing. She is not afraid to work and plans to do so after the pandemic. The father has sent no support for the children since they've been in New York. She has had to take care of R.H.'s needs in New York without access to her documents, including medical insurance and passport. At some point during the pendency of this case she could not obtain new glasses for R.H. because she didn't have necessary documentation, which she believed the father had.
Recently, she was alarmed when she observed her oldest child, R.H., finding a YouTube account with personal videos of her children, including one of her daughter N.H. in her underwear at age 5. She learned the father was associated with these videos because he had proposed them as exhibits to the Court. She saw her daughter appear embarrassed by these videos; her daughter put her hands to her face as if she wanted to scream.
Based on everything that has happened the mother does not want the father to have any contact with the children. She believed that if reunited with the father R.H. would be subject to the same control and abuse she suffered, or worse. She is also afraid that the father has the children's documents and would take them to another country. She has never received any of the original documents, including passports and birth certificates, which the court ordered the father to turn over. These documents were always in the father's possession and while she never had access to them she had seen the father take the documents from a bank safety deposit box.
She had never applied for a passport for M.H. However, the last time she saw N.H.'s passport the father had it.
The father owns several businesses including a hookah bar, a used car dealership and a car wash. The father is a Muslim which impacts her concern because in his culture the mother does not become responsible for the children if the parents separate. She had lived with the father's culture for 17 years and knows their rules. If the father took the children to Jordan, the mother would have no resources to get them back. She fears the father would take the children to Jordan and she does not believe she could get them back without the father's permission based on the law in Jordan.
The Father's Testimony
The Court generally finds the father's testimony incredible. The father was evasive, contradictory, difficult, argued with the Court, and refused to give straightforward answers to simple clarifying questions from the Court. At times he was also hard to understand and provided meandering answers rather than direct ones. The father's demeanor and attitude was also odd and strangely cool and disconnected from the actual allegations and issues in the case, as well as detached from the children's reality, welfare and best interests. As an example of this, he referred to R.H., who he had not seen in a few years and who refused to visit with him as his "best friend." He claimed he was physically present with R.H. every day for years while she was in Jordan, but then conceded he had only seen her via video calls. He also rotely, without any feeling or detail, denied all the allegations of abuse and control against him and maintained that the mother was not limited in any way while in Jordan.
At the same time, he suddenly and for the first time accused the mother of physically abusing the children. He also denied ever having married the mother, even though his statement of undisputed facts agreed that the parties had a religious marriage in 2002. At another point, he claimed he was a United States Citizen and the owner of a U.S. Passport, but then admitted he had not taken the citizenship test yet and did not have a U.S. passport. He also avoided simple questions about his employment and ownership of businesses. While he claimed at trial that mother had mental health issues and abused the children, he now consents to the mother having custody of R.H., an odd position given his claims against her. Finally, the father's insistence on introducing himself at each trial date and court conference as the "legal father" appeared to the Court to be representative of his entire posture during the litigation, one that was principled rather than realistic, devoid of any insight or responsibility for his actions over many years, and unrelated and unsympathetic to the actual wishes or best interests of the children in this case.
In response to the Court's opening question about what the father is asking the court to do in this case, the father stated that he is more established, more physically and emotionally able to care for the children, as "he did all these years." He maintained he was involved in raising each child, that he came to this country to fulfill the parties' dream and to see the children succeed. He then began to allege that the mother has a psychological condition. Upon re-direction from the Court, the father stated that he should have custody because he offered better housing, family, attention, and that it was in the future best interests of the children to live in an established house.
The father testified that he lived in a house in Riverside, Ohio, was self-employed and was also finishing his law degree at Sinclair College. He had never been convicted of a crime. According to the father, he left the Dominican Republic to go to Jordan in 2005. He maintained that this was the parties' plan from the beginning, that they would go to Jordan, and then the United States. Specifically, in 2002 or 2003 he told the mother this plan. The mother was excited for this plan and wanted to leave "her country." The mother had also told him she was abused.
The father described his home in Ohio as having a big yard, a full basement, a garage, and multiple rooms. The home has three bedrooms, a big living room and a kitchen and food area. His neighborhood is "one of the best ever." He also has many relatives in Ohio, including brothers, sisters, nieces, nephews, grandparents and cousins.
The father clarified that he and the mother started planning the trip to Jordan six months before they left. He also told the mother's family, including her mother and sisters, about the trip and had a big party before they left. The party was a goodbye party and it was held a week or ten days before they left to Jordan. There were more than 200 people at the party which was held at the maternal grandmother's home.
The father insisted that while in Jordan the mother was allowed to leave the house alone, and in fact did so. She never complained to him about her treatment in Jordan. She also was able to travel around Jordan, including with her mother and friends. She traveled to Israel, the Dead Sea, and Petra. The mother told him about these trips. At some point the father got the mother her own apartment in Jordan because he wanted her and R.H. to "live better."
The mother did not need his permission to work in Jordan and told him she worked "here and there." The mother also had access to money in Jordan and "was the princess and have everything." He would send her money directly by Western Union every week or every other week, and she got anything she asked for. According to the father, the mother was always in possession of her and R.H.'s documents and he never refused to give her access to her documents.
The father left Jordan to come to the United States in December 2005. He came because he had a lot of family and friends in Ohio and he wanted to create a business and better life for the mother and his children. He also promised the mother that he would bring her to the United States. However, the embassy twice refused the mother's trip to the United States. She eventually came here in 2012 after the father arranged for her to have a Jordanian passport. The reason he was away from the mother for so long is because the mother did not obtain her Jordanian citizenship and he did not have a Green Card. The mother also drove in the United States and was able to go out alone in the U.S. He also made multiple efforts to get the mother a Green Card here.
The father denied calling the mother any derogatory names or yelling at her, and denied threatening to call immigration on her. He also denied forcing the mother to have sex, denied pushing or hitting the mother, denied punching holes in walls, and denied threatening to hurt the mother.
The father also denied hitting R.H., denied getting angry if the mother spoke to anybody, and denied taking the mother's phone when she spoke to a family member. He also denied yelling at or insulting the mother's family, banging on walls, or forcing anyone to wear hijab. However, the mother told him she would try to convince R.H. to wear a hijab. The father did not call the mother or any of the children names, yell at them, or threaten to hit them. He did not insult the maternal grandmother. Nor did he allow his nephews to insult R.H.
The father also maintained that he never threw things at the wall, never grabbed the mother's arm or any part of her body. He never threw a phone against the mother's legs. He also claimed he never drove the mother to a lake and said "certainly a lot of people die here and no one says anything." On November 17, 2014, he did not yell and chase R.H. but the mother did. In fact, he never yelled at and chased R.H. He never broke down the bathroom door or any door in his house or damage any property.
He saw the mother hit R.H. many times. The last time was at their home in October 2018. The mother came in with a clothes hanger and a belt with a metal piece and began hitting R.H. R.H.'s face was swelling and bleeding. He tried to stop the mother but she jumped over him and hit R.H. in the face close to her lips, causing R.H. to bleed. R.H. then went to her room and the mother ran after her. R.H. had closed her door and then the mother entered the room and when she attempted to strike R.H. she hit the father and broke his glasses. He stood in between them and "took the hits."
On September 4, 2017, he saw the mother hit R.H in the mouth with a shoe. The mother had told him that R.H. was "running her mouth" and insulting the mother. The mother also told him that she hit R.H. but R.H. was still "running her mouth." He also saw the mother hit R.H. in April 2017 in their yard. Specifically, he saw the mother hit R.H. with the back of her hand; the mother was wearing a ring. R.H.'s gum then began bleeding and the father told her to rinse her mouth to cure it.
The father had also seen the mother hitting their daughter N.H., who is very active, to make her come and sit down. He had also seen the mother hit their son M.H., but only every few months because he was a baby.
On cross-examination, the father explained that he now lives with a roommate. Although he agreed that he met the mother in the Dominican Republic and lived with her in 2002, he denied that they were married in 2002 and maintained that they never got married. When he met the mother, she appeared to be "half" Muslim although she did not wear a hijab. The mother also had Muslim friends. At some later time, the mother began wearing hijab.
The father confirmed that R.H. was born in the Dominican Republic and that after that the parties and R.H. went to Jordan. He admitted that left Jordan nearly one year later while the mother and R.H. stayed with his family there. He never returned to Jordan while the mother remained there but he paid all her expenses. Specifically, he left Jordan in December 2005 and the mother and R.H. remained until 2012. However, he claimed to be physically in the room with R.H. every day "on the computer." He then admitted he was not in fact physically present. He no longer owned an apartment in Jordan.
At some point, he arranged for R.H. to come to the United States and she returned to Jordan with a Green Card. Eventually, R.H. and the mother came to the United States on separate flights. They all then went to live in Ohio.
He provided a home for them all in Ohio. He also paid for food and clothes. In the first year the mother was in the United States she did not have a job. She started driving within a few months of arriving. The father denied that he actually purchased all the food for the family and brought it into the home.
The father initially claimed that he is a citizen of Jordan, the Dominican Republic, and the United States and thus had three passports. He then clarified that he took the U.S. citizenship test and was waiting for certification, and did not have an American passport. He did have a Green Card. He was a student and married an American citizen, but was no longer married.
He also did have a Jordanian passport, but denied having a "family registration book" from Jordan. He claimed not to be familiar with such a registration book. He also denied that such a book allowed the mother to obtain a driver's license or Jordanian passport.
The father denied adding the children to his passport, but admitted the children are automatically Jordanian citizens through him. He denied that he could add them to his passport. He claimed he could not travel to Jordan because there are restrictions in Jordan against people who are against the king, and because "there's no freedom there." He added that he "does not trust the system over there." He also accused the mother of taking his passport.
The father owned businesses; he had owned a hookah bar in Ohio but not any longer. He also works in automobile sales with an associate. He also used to have a car wash. He has no businesses outside of Ohio, or outside of the U.S. The six business he was registered as owning in Ohio are all gone.
The father wanted the mother to return to Ohio with the children. He would allow them to see the mother any time if they lived with him. He noted that Ohio is the children's home and he believed the case should be in Ohio. He had filed for custody in Ohio and was granted custody there. However, the custody order was vacated and he had filed multiple appeals in the Ohio matter.
The father insisted that he never yelled at R.H. or physically harmed her during her entire life. He also referred to R.H. as his best friend but admitted he spoke to R.H. on the phone once since November 2018. He noted there was an order of protection in place limiting him from having contact with R.H. The father thought it was very wrong for the mother to harm a child. However, he never filed police reports after the incidents in which the mother harmed their children. He did take R.H. to get medical attention.
If he did not get custody, the father wanted to have contact with N.H. and M.H. He previously had visitation at Safe Horizon, perhaps four or five times. He was never told not to bring gifts and things for the children. He denied speaking Arabic during the visits, except for the word for father. He denied he had trouble following rules, and said he would follow court orders. He would also travel to New York to see the children. He does not discipline N.H or M.H.
Dr. Z.T.'s Testimony
The father called on his case, Dr. Z.T., his friend. Turgut's testimony was generally credible although limited in scope and relevance, and thus of little value. He testified that he was a "friend of the family." He was a research scientist for the U.S. Air Force, and had a Ph.D. in Material and Engineering from Carnegie Mellon University, and had lived in Dayton, Ohio, since 2000.
On cross-examination, he explained that he does not refer to himself as doctor and people do not generally refer to him that way.
Turgut had known the father since 2006, and was a "good friend" of his. He first met the mother in 2012, and between 2012 and 2018, he saw the mother approximately 60 or 70 times. Dr. Turgut saw the mother many times at the father's smoke shop. She generally was with and was caring for the children. He also saw her in her home and in his home. He never saw the father yell at or insult the mother or attack her physically. When he saw the mother with the father, she seemed cheerful and happy.
Although the mother had heard of Dr. Z.T., she testified she didn't remember every meeting him in person. She only knew he was a friend of the father's and a doctor.
The Court finds that this testimony does not conflict with the mother's testimony as the various acts of domestic violence she described could have and would likely have taken place outside of Turgut's presence.
Dr. Z.T. also saw the father with the children many times, and never saw him yell at or insult them, or touch them in a bad way. With the children, the father was "[c]heerful, happy, playful." Dr. Z.T. last saw N.H. and M.H. in 2017.
The Court's Decision on the Family Offense Petition
Following argument from all counsel, the court found on the record that the mother had proven her family offense petition by a preponderance of the evidence. Specifically, the Court credited the mother's testimony, remarking that she had testified in an honest, detailed way, and that there was nothing "to call into question the credibility of her testimony about the family offenses."
The Court next noted that the family offenses testified to "were extremely concerning, some of the most concerning allegations and evidence that this Court has heard, including the behavior that lasted for many years," and added "specifically I'm referring to unlawful imprisonment, although I would note that the testimony also established some of the other behavior took place over a course of time as well."
The Court then made a finding of unlawful imprisonment, sexual abuse in the second and third degree, sexual misconduct, assault in the third degree, harassment in the second degree and stalking in the fourth degree. Further, the Court made a finding of aggravated circumstances based on violence towards and in front of the children, and violation of orders of protection in Ohio, and thus issued a final order of protection for five years. The order would have an exception for any court ordered visitation.
The Court later issued an amended order of fact-finding which found the following family offenses had been established: unlawful imprisonment in the second degree, sexual abuse in the third degree, sexual misconduct, assault in the third degree, harassment in the second degree, and stalking in the fourth degree.
Discussion and Decision
Parties' Positions
In her written summation, the mother argues that best interest of the children support granting her sole custody. She also contends that the father should not be granted any visitation with R.H., and should only be granted supervised visitation with the two younger children - N.H. and M.H. - with specific limitations on his behavior during visits.
In his summation, the father consents to the mother having custody of R.H., and notes that R.H. will turn eighteen shortly in any event. As for the two younger children, the father argues that he should be granted sole physical custody with substantial parenting time to the mother, and that the parties should have joint legal custody with final decision-making authority granted to him. In the event he is not granted custody, he asks for reasonable unsupervised, overnight parenting time.
The attorney for R.H. also supports an order which grants the mother sole custody of R.H., and argues that the court should not award any visitation or contact between the father and R.H.
The attorney for the two younger children similarly supports an ordering granting the mother sole legal and physical custody of those children. She also argues that the parties should use Our Family Wizard, that the mother enroll the children in the State Department CPIAP Program to aid in the prevention of international child abduction, that the children not be relocated from New York, that the father respect the confidentiality of the children's address, that the father have a video chat with the children once a week, and that the father have supervised visitation at Comprehensive Family Services one weekend a month at his expense.
Custody
No parent has a prima facie right to custody over another parent and custody awards must be based only on the child's best interests and in promotion of the child's health and happiness. (Domestic Relations Law §70[a]). No one factor is determinative of custody; rather, the Court is required to consider the totality of the circumstances. Among the factors to be considered are the respective ages of the children, the financial circumstances, the home environment of each parent, the parental fitness of each parent, the preferences of the children, and a goal of keeping siblings together. (See Eschbach v. Eschbach, 56 N.Y.2d 167, 172 [1982]). When applicable, the Court must also consider the length of time of any prior custodial arrangement and ensure stability for the children. (See Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 94 [1982]). Overall, "[m]atters of custody are within the sound discretion of the trial court" (Matter of Deanna V. v Michael C., 179 A.D.3d 445, 446 [1st Dept 2020]).
Initially, the Court considers, as it must, the factor of domestic violence and its impact on the children (see DRL 240[1]). Here, the allegations of violence, control, and abuse are some of the most egregious and concerning circumstances heard by this Court, and this Court has already found them to have been proved by a preponderance of the evidence. Indeed, this Court has already issued a five-year order of protection for the mother and children which prevents any contact unless ordered by the Court. Further, this factor carries great weight for several reasons. First, this is because of the concerning nature of the abuse, including a seven-year long unlawful imprisonment in Jordan, physical intimidation and violence and total financial control, and sexual abuse. Second, in addition to this terrible, harmful conduct which was directed at both the mother and R.H., many incidents occurred in the presence of the two younger children. Third, the father brazenly violated an order of protection in Ohio by sending associates to intimidate the mother to drop the case. Fourth, the father has repeatedly failed to comply with orders of this Court, as well as with the rules of the supervised visitation previously ordered, or to recognize this Court's authority and jurisdiction, raising perpetual concerns about how he will behave in the future. Finally, despite orders of protection in Ohio and New York, the father has continued to stalk, track and attempt to locate the mother and children, placing them in continuous fear for their safety.
It is also undisputed that the mother has been the primary caretaker for all three children throughout their entire lives, that she has continued in that role admirably, and that the children are thriving in her care. Indeed, the children are excelling in school, are well cared for, and the mother ensures they attend to their mental health. Relatedly, the overall safety and stability of the children would be supported by awarding the mother custody. Indeed, the children's school and entire lives have been in New York for a few years. Moreover, in this Court's judgment a comparison of the respective parental fitness of the parties warrants a determination that the mother is a far superior parent, and that the physical safety, mental health, and overall well-being of the children have been seriously harmed by the father's conduct and would be further harmed were he to be granted custody.
While a comparison of the respective homes and finances of the parties may reveal the father has more financial resources and a larger home, neither his home nor his money would provide enough security to protect the children from the father himself. As the mother's counsel aptly notes, "any possible disadvantage to [the mother's] physical space is strongly outweighed by the psychological stability, personal freedom, and emotional peace she is able to provide the children compared to the [father's] volatile home environment." Significantly, the father has used his significant resources in this litigation and in the Ohio litigation without any regard to the effect on the children, or how his attempts to locate them have cause them fear and repeated disruption to their lives. Yet, despite these resources he has failed to provide any child support or anything to ensure the children have their basic needs met. This Court is concerned that the father, whether motivated by pride, principle or culture, may never stop using these resources to stalk this family, and will prevent them from leading safe "normal" lives.
An award of sole custody to the mother is also warranted by the wishes of the children, particularly R.H., who is 17 years old and expressed her desires and concerns directly to this Court via the in camera proceeding, as well as the attorneys for the children who promote the mother having sole custody. Further, while the father at this late moment now consents for the mother to have custody of R.H., it would not be in the best interests of the children to be separated as proposed by the father. To the contrary, it would be best for these three siblings to remain together.
It is also stunning for the father to suggest that the parties have joint legal custody of the two younger children. Given the serious abuse and safety concerns in this case, the confidential address needed to ensure the mother and children's safety, as well as the impossibility of requiring the parties to communicate, this matter is certainly very distant from the circumstances which would support joint custody. Indeed, joint legal custody would never be appropriate in this case where a final 5-year full stay away order of protection has been issued (See Deserie D.G. v. Jonathan C., 184 A.D.3d 538, 539 [1st Dept 2020][ The "finding of the parties' acrimonious relationship, evinced by domestic violence and extensive litigation history, and the finding that the parties do not communicate about the child further supports the Family Court's decision [to award the mother sole custody and to deny joint custody]").
The Court also considers that if the father were to be granted custody of any of these children there is a substantial risk the mother would be separated from them and forever unable to access them, that they would be separated from their primary parent, and the only country they've known, all of which would be detrimental to their best interests. As noted, the father has to this day never complied with this Court's orders to turn over the passports and other critical identification documents of the mother and children. His continued possession of these documents constitutes a present danger were he to have the children since he could swiftly remove them to Jordan. Not only does he have a history of such unlawful imprisonment in Jordan, he admits to having multiple citizenships and passports, concedes that the children are automatically Jordanian citizens through him, and in his own words "there's no freedom there [in Jordan]" and even he "does not trust the system over there." The foregoing combined with the likelihood that the mother would have little recourse in Jordan is a significant factor in this decision.
In sum, the evidence strongly dictates that this Court grant sole legal and physical custody of the children to the mother.
The mother is hereby directed not to relocate from New York City with the children while any appeal of this decision is pending, and she is directed to comply with the visitation outlined below. In addition, the mother shall enroll the children in the State Department's Children's Passport Issuance Alert Program (CPIAP) to aid in the prevention of international child abduction.
Visitation
Although in general non-custodial parents have a right to visitation with their children (See Weiss v. Weiss, 52 N.Y.2d 170, 175 [1981]), where issues of safety and harm to children are raised, as here, the best interests of the children may require no visitation or limited and/or supervised visitation. Indeed, substantial proof that visitation would be harmful to a child will justify denying a visitation request (Matter of Mohammed v Cortland County Dept. of Social Servs., 186 A.D.2d 908 [3d Dept 1992]; see also Derek G. v. Alice M., 187 A.D.3d 465 [1st Dept 2020][holding that the presumption that visitation is in the best interests of the child is rebuttable, and that proof that visitation would be harmful to the child will justify denying the request]).
A complete denial of visitation has been upheld in circumstances similar to those present in this case (see Samuel S. v. Dayawathie R., 63 A.D.3d 746, 747 [2nd Dept 2009]["we find no basis to disturb the Family Court's determination that denial of visitation was in the best interests of the child. The evidence established that the child's fear of the father was valid, as it was based upon the father's abusive and criminal behavior. The father had committed family offenses, emotionally and sexually abused the mother, abducted the child's older siblings... The order precluding all contact was consistent with the child's wishes... and the father's denial of responsibility for the emotional and psychological injury his behavior had caused"]).
As to R.H., the father consents to the mother being granted custody of her and makes no request for visitation or contact. R.H., who will turn 18 next month and whose position is entitled to significant consideration, and her attorney, have maintained a strong position against any visitation or contact with the father throughout these proceedings. Specifically, the attorney for R.H. convincingly argues that it would not be in her best interest to force contact with her father who she fears and with whom she has had no contact for several years. Moreover, R.H. has been engaged in therapy to deal with trauma caused by her father. Further, the father has taken no responsibility or expressed any remorse for his actions, or even recognized the issues that led to the order of protection being issued against him (see Matter of Mohamed Z.G. v Mairead P.M., 129 A.D.3d 516 [1st Dept 2015]). The presumption that parental visitation is in the best interests of a child was thus rebutted by a preponderance of the evidence that visitation with respondent would not be in the child's best interests (see Matter of Granger v. Misercola, 21 N.Y.3d 86, 90-92 [2013]). Accordingly, based on the totality of the circumstances, the Court denies the father any contact or visitation with R.H.
As to the two younger children, the Court must conclude based on the circumstances in this case that unsupervised access poses a significant risk and is therefore not feasible or in the best interests of these children. Indeed, the position of the attorney for these children supports only supervised visitation for the father. Among other things, counsel notes that the father never addressed the issue of flight risk, never took into account the children's fear he would take them away to Jordan, never accepted the jurisdiction of this Court, and never complied with orders of this Court directing him to turn over the children's passports and other identification documents. Counsel adds that the father never even offered to post a bond or to consent to a limitation on travel as an offer of good faith. The Court adopts each of these points.
Moreover, as described above, the father even failed to comply with the rules and safety protocols in the supervised visitation he had with Safe Horizon. Not only is the father entirely incredible, he is also entirely untrustworthy and there is no indication he would comply with orders of the Court or not attempt to possess or flee with these children. In sum, limited supervised visitation is appropriate and necessary for the children's safety.
Notably, supervised visitation is not considered a deprivation of meaningful access to children (see Matter of Graham v White, 16 A.D.3d 583 [2d Dept 2005]; Lightbourne v. Lightbourne, 179 A.D.2d 562 [1st Dept 1992]). In Zappin v Comfort, 155 A.D.3d 497, 498 [1st Dept 2017]), the First Department affirmed an order granting the father supervised visitation in circumstances similar to those presented in this matter. In Zappin, as here, the evidence showed that the father "had physically and verbally harmed the child's mother, engaged in abusive litigation tactics, and lacked the emotional restraint and personality to look after the child's best interests" and there was a sound and substantial basis for "finding that unsupervised visitation would have 'a negative impact on the child's well-being.'" Also similar to this matter, in Zappin the Court had also issued a five-year order of protection after finding the father had committed various family offenses.
Here, the father's past conduct of unlawfully imprisoning the mother and R.H. in Jordan for seven years, exercising various other means of control and violence when the family was in Ohio, and violating orders of this Court, combined with his evasive testimony and disruptive behavior at the trial provides an ample basis for a determination to deny him unsupervised visitation (see Matter of Lane v Lane, 68 A.D.3d 995 [2d Dept 2009]).
It is the determination of this Court that the risk of flight and the potential for severe negative impacts on the children's safety, mental health and well-being in giving the father any unsupervised or in-person visitation warrant a direction that the father be limited to only virtual supervised visitation through Comprehensive Family Services to be paid for by the father (see Matter of Arcenia K. v Lamiek C., 144 A.D.3d 610 [1st Dept 2016]). In-person visitation, even supervised, is not advisable or in the best interest of the children and would raise continued safety risks because of the father's continual efforts to locate the mother and children, his violation of orders of this Court and orders of protection, the existence of the 5-year stay away order of protection, his efforts to give the children various items in violation of supervised visitation rules, and his continued possession of the children's passports and other documents.
Further, based on the serious concerns raised here, as part of this order of custody and visitation, the Court is sua sponte issuing an order of protection on behalf of the subject children (see Family Court Act § 656; see also Jamel W. v. Stacey J., 136 A.D.3d 552 [1st Dept 2016]; Anderson v. Harris, 73 A.D.3d 456 [1st Dept 2010]). The Court is authorized to issue such an order even absent a specific request for one (Melody M. v. Robert M., 103 A.D.3d 932 [3d Dept 2013]) and may issue these orders in assistance of its custody order and as a condition of its custody order (see FCA § 656). In this case, such an order is "reasonably necessary to provide meaningful protection to the mother and the parties' children, and to eradicate the root of the family disturbance" (Matter of Mistretta v Mistretta, 85 A.D.3d 1034, 1035 [2d Dept 2011]; see also Stephanie M. v. Edgar C., 187 A.D.3d 580 [1st Dept 2020]).
Notably, there was record evidence of conflict and domestic violence that took place in front of the children, and evidence that some of the violence, abuse and control was directed at R.H. In addition, the order of protection is warranted by the father's lack of insight as to his own past behavior, and his failure to address valid safety concerns for the children, including the very valid fear they will be taken away to Jordan, and his failure to comply with court orders and supervised visitation protocols.
This Court has already issued a 5-year stay away order of protection for the mother and children based on its finding that numerous family offenses were committed, and its finding of aggravating circumstances. However, it is this Court's opinion that in order to fully protect the mother and children and provide them with peace and security an additional order of protection is needed for all three children until the youngest child turns 18 years old (see Anson v. Anson, 20 A.D.3d 603 [3d Dept 2005][permitting FCA 656 order of protection until child turns 18]; Krista I. v. Gregory I., 48 A.D.3d 696 [3d Dept 2004][same, noting that FCA 656 "poses no bar to an order of protection of this duration"]; Stitzel v. Brown, 1 A.D.3d 826 [3d Dept 2003][upholding FCA 656 order of protection barring any contact with the children until the youngest child's 18th birthday]; Kristian J.P. v. Jeannette I.C., 87 A.D.3d 1337 [4th Dept 2011][modifying FCA 656 order to the extent of directing the stay away provision be in effect until the youngest child's 18th birthday]; Thomas v. Osborne, 51 A.D.3d 1064 [3d Dept 2008][finding that Family Court acted within its discretion in issuing FCA 656 order of protection until the child's 18th birthday given the profound and negative impact the concerning behavior had on the child]).
Visitation is thus granted to the father on condition that the order of protection be complied with by the father until October 23, 2032 when the youngest child turns 18 years old. The requirements of the order of protection are as follows: 1) The father shall refrain from committing a family offense, as defined in subdivision one of section eight hundred twelve of the Family Court Act, or any criminal offense against the children; 2) The father shall stay away from the children, their home, their school, and any daycare or babysitters; 3) The father shall not interfere with the mother's care and custody of the children or remove them from the jurisdiction; 4) The father shall not communicate with the children in any manner, including using a third party to do so, except for the court ordered visitation contained in this order; 5) The father through his counsel shall promptly return the children's passports, social security cards, birth certificates and all personal documents in his possession.
Accordingly, the father may have virtual supervised visits once he arranges and pays for them with Comprehensive Family Services. The mother and children's address must remain confidential, and the father shall not investigate their location or ask the children any location-identifying questions. The father must also only speak with the children in English during these visits. Moreover, the supervisor must intervene if any inappropriate questions are asked and shall terminate the meeting after a warning is given.
In addition to the virtual supervised visits, the mother shall establish a dedicated email address for the children and exchange the address through counsel. The father may write to the children at this dedicated email no more than once per week and the mother will, with the assistance of Comprehensive Family Services, review the emails for inappropriate content or questions, show the emails to the children and encourage them to respond.
Accordingly, it is
ORDERED that the mother's petition is granted and the father's petition is denied; and it is further
ORDERED that the mother is granted a final order of sole physical and legal custody of the children; and it is further
ORDERED that the mother shall not relocate from New York City while any appeal of this decision is pending; and it is further
ORDERED that a final order of virtual visitation is awarded to the father as to the two younger children through Comprehensive Family Services as outlined herein.
ORDERED that an order of protection for all three children pursuant to FCA 656 shall be issued in assistance of this order of custody until the youngest child's 18th birthday.
This constitutes the decision and order of the court.