Opinion
07-05-2024
B.N., Plaintiff, v. J.N., Defendant.
Co-Counsel for Plaintiff: Moses Richards Notaro & Tankha, LLP By: Merryl E. Steinberg, Esq. Co-Counsel for Plaintiff: Golden Hirschhorn, LLP By: Alan K. Hirschhorn, Esq. Counsel for Defendant: Chemtob Moss Forman & Beyda, LLP By: Michael F. Beyda, Esq. & Lauren Blau, Esq. Counsel for the Child: Lawyers for Children, Inc. By: Mark Leider, Esq.
Unpublished Opinion
Co-Counsel for Plaintiff:
Moses Richards Notaro & Tankha, LLP
By: Merryl E. Steinberg, Esq.
Co-Counsel for Plaintiff:
Golden Hirschhorn, LLP
By: Alan K. Hirschhorn, Esq.
Counsel for Defendant:
Chemtob Moss Forman & Beyda, LLP
By: Michael F. Beyda, Esq. & Lauren Blau, Esq.
Counsel for the Child:
Lawyers for Children, Inc.
By: Mark Leider, Esq.
Ariel D. Chesler, J.
INTRODUCTION
The still-married parties in this matter face the unique circumstance of litigating custody of their daughter so soon after they signed a stipulation of settlement that there is no judgment of divorce yet. Indeed, the short duration between the entry of the stipulation and the commencement of these proceedings demonstrates the complicated, complex, and concerning nature of this case.
Most concerning to the Court is that this case presents a shocking level of parental interference, coaching, threats and involvement of the child in conflict such that the Court is compelled to act swiftly before more damage to the child can be done, and before any hearing can be held.
BACKGROUND
Plaintiff, BN (hereinafter: the Father), and Defendant, JN (hereinafter: the Mother), are married and share one child in common, namely, E.N. (hereinafter: the Child).
The parties resolved their divorce by way of a written stipulation of settlement dated December 18, 2023 (hereinafter: the Stipulation or the Agreement). Within the Stipulation, the parties share joint legal custody and have a nuanced parenting time schedule due to the Mother's residence abroad in France.
The Child Support provisions provide the Father is the residential custodian. Furthermore, the parenting time provisions compel this conclusion. They provide,
As of the date of execution of this Agreement, the Father and the Child currently reside at the address hereinabove set forth in New York, New York. The parties agree that New York State shall be designated the home state of the Child pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
The Mother may visit with the Child when she is in the United States ("U.S.") for up to two (2) weeks per month, at such times and places as agreed upon between the Parties in advance of said visits, or as otherwise agreed upon between the Parties (the "Mother's U.S. Visits"). Such advance notice must be given by the Mother to the Father via email as soon as possible but in no event less than five (5) days from the date of the Mother's intended visit. [...]
The Mother shall be responsible to secure accommodations for herself and the Child, be it an AirBNB (or similar short term rental), hotel room, or apartment in New York City, at her sole option. The cost of any such rental shall be paid solely and exclusively by the Mother, and she shall indemnify and hold the Father harmless from any and all expenses, costs, or liabilities in relation thereto [...].
The international nature of the Mother's life permeates the Agreement. Importantly as it relates to custody, and further demonstrative of the Father's role as residential custodian, is the fact that the parties agreed "[t]he Father shall hold the Child's passport at all times when the Child is in the U.S. until the Child is eighteen (18) years old, at which point the Child shall be responsible for holding her own passport."
As is evident, the Child living with the Father was the default. The Mother was afforded the other two weeks of the month away from Father's residence. Likewise, the parties agreed to a maximum parenting time for the Mother of "up to two (2) weeks per month."
Just after the ink dried, the Mother and Father fell into strife over custody and financial issues. Unfortunately, due to the Mother's poor judgment, this strife directly included the Child. In one instance, the Mother, in a family group chat (with the Child), complained about the financial provisions of the Agreement. She accused the Father of "le[aving] us all homeless." The Father responded, "[t]his is incredibly inappropriate and not true. I am not using this thread anymore, there should be no adult conversations on this group. [E.N.] ERASE this thread please. Thank you. I love you." The Mother then responded, "No its all true."
Outside of the family group chat, the Mother also directly threatened to leverage custody for financial gain when she messaged the Father, "[e]ither I have [the Child] attend school in Paris, or I need much more money than $10,000.00 a month. It's just the reality."
These threats from the Mother to the Father surrounding her displeasure with the financial terms of the parties' settlement continued as she maliciously messaged the Father,
F*ck you then. It's all coming out. I really don't want to do this. But you gave me no other option. All the truth is going be public.
You can't actually be serious right now. What the court give or what is fair. Just know that everything is gonna go public. You're not gonna like what everyone's gonna think about you. It's going public. I'm not doing this anymore [Father] either you help me out or everyone's gonna know that you fucked me over. Also know the police are gonna be contacting you next week. Detective regarding the theft in my warehouse is either you or J.K. that still everything. All you have to do is give me $2000 extra at least each month take it from the back end and I'll be able to get a car. There is no other way for me to do this financially. I did not take any more money than you have I split it evenly down the middle. I actually lost money. You took all the furniture. [T]hat was good furniture. I have nothing. And yes, I'm going to be very vocal with [the Child] exactly my budget and this is how we do it. This is what we do. I don't have enough money to live here. I'm not gonna let you get away with us. You have to help.
Then, the Mother claimed the Child accused the Father of sexual abuse. In response to this, the Mother began recording and questioning the Child about the incident. In the transcript of the recording it is evident that the mother is forcing a conversation the child does not want, is suggesting and inventing incidents, and is pressuring the child to make terrible accusations.
The Mother filed a family offense petition in March 2024, with the Family Court of New York County under family file number [redacted] and docket number [redacted] raising the allegations of abuse, grand larceny, and assault. The Referee issued a temporary order of protection, which is still effective but on modified terms.
The Mother, in the sex abuse portion of her family offense petition, claims,
On or about February 24, 2023 [the Child] asked me if it was possible that she could be pregnant. I was shocked and asked why she had those thoughts and she responded by telling me that during COVID lockdowns in 2020, that she and her father's genitals touched each other while the two of them were in bed together. On Tuesday February 27, 2024 I contacted the police and ACS became involved. On or about Friday March 1, 2024 [the Father] found out I was taking [the Child] to the pediatrician in connection with [the Child's] disclosure to me. I did not give [the Father] the address of the pediatrician and in fact, for safety gave him a fake doctor's office, but he still showed up at the right one. [The Father] claimed that [the Child's] school told him where we were, but the school denied that when I confronted school staff about that. [The Father] then, on March 1, 2024, took [the Child] out of school unannounced at approximately 11:30 AM. I know this because I received an email from the school [redacted] where [the Child] attends (See EXHIBIT A). The email informed both [the Father] and I of the protocols for taking out of school and that unless they have prior notice, [the Child] should attend the entire day. [The Child] informed me that when [the Father] picked her up on March 1, 2024, he pressured her not to tell anyone about the sexual abuse that he committed against her and that it was all normal. [The Child] also disclosed to me that [the Father] often hugs her and that it was all normal. [The Child] also disclosed to me that [the Father] often hugs her and touches her on her breasts, thighs, and buttocks and that this makes her upset and uncomfortable. Finally [the Child] disclosed to me that [the Father] walks around his home naked and take showers with her.
The rendition of events is different in the Mother's Affidavit. She states, "[o]n March 1, 2024, after hearing from [the Child] that she does not want to be with him or sleep at his apartment, Plaintiff came to [the Child's] school unannounced and without consultation with me and pulled her out of school in the middle of the day to take her to lunch." In the next paragraph, she elaborates, that in response to the Child explaining her discomfort with residing with the Father, "[u]pon information and belief, Plaintiff told [the Child] that everything was 'normal' and there was nothing wrong with what he did. [The Child] also told me that Plaintiff, that day, proceeded to wrap his arms around her breasts from behind. [The Child] told me that she cried and begged her father to take her back to school, which he finally did."
The Mother likewise sought to have the Father criminally prosecuted for these allegations; however, the New York County District Attorney's Office found these accusations lacking in evidentiary basis.
The Father filed an Emergency Order to Show Cause in April of 2024 (which was subsequently amended) seeking, inter alia, (i) consolidation of the family offense proceeding; (ii) modification of the Stipulation to award the Father sole legal and physical custody of the Child; (iii) appointment of a forensic evaluator; (iv) a direction that the Mother's parenting time be supervised; (v) a direction that the Mother be subject to random alcohol and drug testing; (vi) enforcing the parties' Stipulation of Settlement; (vii) an order restraining and enjoining the Mother from filing false police reports; (viii) a direction that the Child undergo individual therapy; (xi) a direction that the Child and the Father undergo reunification therapy, without interference from the Mother; and (x) an award of counsel fees.
The parties appeared in Family Court on May 7, 2024. This came after ACS's investigation determined the allegations against the Father were unfounded. As a result, the Family Court modified the temporary order of protection by removing the Child as a protected party.
These compelling and reliable findings of ACS strongly support the conclusion that the mother's accusation is false. Indeed, ACS found the sex abuse allegations unfounded and conversely indicated a finding against the Mother for inadequate guardianship. ACS clarified this was regarding the Mother's abuse of alcohol in the presence of the Child and her coaching the Child into making sexual abuse allegations against the Father. As to the sex abuse allegations, ACS told the family court,
"This term applies to the overall quality of care the parent or other person legally responsible provides the child(ren). Guardianship is inadequate if it fails to meet a minimum standard of care for the child within commonly accepted societal norms. Inadequate guardianship results in actual physical or developmental harm to the child, or imminent danger of such harm [...]." (Inadequate Guardianship, New York State Child Protective Services Manual E-28 [2017]).
During the course of the investigation, we discovered a number of recordings that were provided by [the Father] to ACS, which indicated that the mother had been coaching the child E.N. into making disclosures against her father. The recordings were very disturbing. The child was crying, and screaming. It appeared that the mother was forcing the child to make certain disclosures against her father.
Defendant cross-moved by Order to Show Cause on May 30, 2024, seeking, inter alia, (i) modification of the parties' Stipulation to award the Mother sole legal and physical custody; (ii) suspension of the Father's parenting time; (iii) the appointment a forensic evaluator; and (iv) a direction that the Father to turn over the Child's passport to the Mother.
The Mother states in her papers she will move for counsel fees - no application has been made for such relief. Likewise, her counsel stated an intent to seek fees on the record on July 3, 2024; but no application has been filed. Thus, this Court does not address the issue.
On, May 30, 2024, the Court had its initial appearance on the motion sequences. Immediately thereafter, the Court issued a conformed order to show cause ordering multiple forms of interim relief, including, inter alia, a direction that the Father and the Child immediately undergo reunification therapy to be administered by Ms. M.L., LCSW-R, without interference by the Mother, and that the parties set a briefing schedule in the matter.
On June 18, 2024, Ms. L. wrote a letter to the Court on the progress of the reunification therapy, explaining that "[w]hen pressed for further explanation or clarification [regarding the abuse allegations] [the Child] cannot say. It is hard to tell where this is coming from and she does not respond well to any type of gentle challenge. I don't believe [the Child] is being supported by her Mother for reuniting with her Father."
That same day, the Court held a conference on the issue of the Mother's lack of cooperation in facilitating reunification between the Child and the Father. At the conference, the Mother, through her counsel, averred that she would enter into a stipulation with the Father to facilitate the reunification therapy. Nevertheless, the Mother did not thereafter enter into such a stipulation. The Father then submitted a proposed order, which the Attorney for the Child supported. This Court, after review of the Father's proposed order and the Mother's position on the proposed language, issued an order directing facilitation dated June 24, 2024.
The parties submitted opposition and replies to these motion sequences. The now-former Attorney for the Child submitted an affirmation supporting the Mother's claim for sole custody and arguing the Child did not want to see the Father.
One day prior to the scheduled second oral argument on the motions, on July 2, 2024, Ms. L. wrote another update to the Court regarding the reunification process with the Child. She noted, inter alia, that the Mother's coaching had not abated. She said, at one point, the Mother would not permit Ms. L. to see a new patient while demanding answers and this disruptive conduct required Ms. L. (for the first time in her career) to lock someone out of her office. Most troubling, Ms. L. stated in no uncertain terms,
The situation in the divorce and custody conflict has become one of severe alienation. Ms. N. being the alienating parent and Mr. N. being the alienated parent. There may even be an argument for triangulation, where Ms. N. is using E.N. to manipulate the situation, perhaps to get what she wants: sole custody and the child support that would follow. [...]
I have concerns about E.N.'s environment with her mother as regards this family matter. She seems to be coached and encouraged to believe that her father harmed her with little subsequent support for reunification. Additionally, if a person believes they were the victim of abuse it is possible they can suffer as if they actually were.[...]
E.N. appears to believe she has been harmed by her father and is invested in maintaining a black and white perspective where her father is all wrong and her mother is all right, typical of alienation. Currently, any attempts to change this unbalanced and unrealistic view appear to be a threat to E.N. and she often reacts with defenses. At times she makes statements that are clearly not true, changes her story about that initial event, and even imagined her father said something in our joint session when he said nothing at all. She is unable to talk about earlier times when things were good between them. [...]
If she remains with Mom, I have serious doubts about reunification. If there is joint custody, she will be influenced by mother's negativity, but perhaps not as much.
The parties appeared on the record for these motion sequences again on July 3, 2024. In light of the overwhelming proof of parental interference this Court faced on July 3, 2024, this Court issued interim orders directing, inter alia, that the Mother's parenting time be supervised, the Mother be subject to alcohol testing, the Child be returned to the Father, and that the Mother may text the Child. Pursuant to the orders, the Child was transferred to the Father's custody on July 3, 2024.
DISCUSSION
On these disturbing facts, this Court is now tasked with resolving the parties' competing motions.
I. The Father's Request for Consolidation
The Father requests and the Mother consents to the consolidation of the family offense proceeding into this proceeding. Accordingly, the Father's request to consolidate the family offense proceeding is GRANTED on consent.
The family offense petition's ultimate relief and determination are deferred to trial.
However, the extensive proofs before this Court do not demonstrate sufficient good cause to continue the current restrictions outlined in the temporary order of protection. (See DRL 240[3]; FCA § 828[1][a]). Specifically compelling are the number of material inconsistencies across the Mother's papers and petition, the compelling proof from ACS, the reports from Dr. L., the dismissal of the criminal charges for lack of evidence by the Manhattan DA's Office, and the documented threatening communications from the Mother.
Her first allegation is a conclusory allegation of a threat to kill allegedly made at the Child's doctor's office. This allegation is not supported by the evidence produced by the Mother herself. The Mother provides doctor's notes from the pediatric visit that describe the father's arrival, the Mother's decision to call the police, and the Father's departure. However, the lack of any inclusion of a threat or any menacing behavior by the Father strongly suggests this conclusory allegation is meritless.
Her second and third allegations are of essentially grand larceny and an instance of domestic abuse. She sought criminal charges for these accusations - they were deemed to lack evidentiary support.
Her fourth and final allegation is that of sexual abuse against the Child. As noted, there is overwhelming proof before this Court that strongly suggests the allegation is fiction. Indeed, the Family Court, in modifying the temporary order of protection after ACS determined the allegations were unfounded, did not extend any protections to the Child. Thus, the family court already determined that there was not sufficient good cause to extend the temporary order of protection to the Child. This Court will not disturb the determination of the Family Court.
This Court further finds that there is a lack of sufficient good cause to continue the stay-away provisions currently effective in the order of protection. Accordingly, the temporary order of protection is MODIFIED to remove its stay-away provisions and maintain only its refrain from provisions.
II. The Parties' Respective Modification Requests
The parties currently share joint legal custody and a nuanced access schedule - on paper. Despite this, the Father had no access at all to the Child for months and only minimal contact during reunification therapy.
It is well-settled that "[w]here the parents enter into an agreement concerning custody it will not be set aside unless there is a sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interest of the child." (McNally v McNally, 28 A.D.3d 526, 527 [2006] citing, Smoczkiewicz v Smockzkiewicz, 2 A.D.3d 705, 706 [2d Dept 2003]).
The Court of Appeals has made clear the importance of affording weight to prior custody agreements - as does the Mother when she points out, "less than a year ago, Plaintiff agreed to share joint legal and physical custody."
As noted above, the language of the Stipulation does not support the Mother's conclusion that the agreement accorded joint physical custody as the provisions make clear the Father was the intended residential custodian. Indeed, the Mother's access was conditioned upon notice to the Father.
The priority which is accorded to the first award of custody, whether contained in court order or voluntary agreement, results not from the policy considerations involved in res judicata (which permits change in custody decrees when warranted by the circumstances), so much as from the conceptions that stability in a child's life is in the child's best interests and that the prior determination reflects a considered and experienced judgment concerning all of the factors involved. (Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 94 [1982]).
This Court finds that the following constitute sufficient changes in circumstance in this case: ACS's findings which were stated on the record regarding the coaching by the Mother (this is corroborated through Plaintiff's Exhibit H which is a transcript of the "disturbing" coaching that required ACS to find it "absolutely necessary" to indicate a case against the Mother); the Child's statement that the Mother was abusing alcohol in her presence; the unfounded allegation against the Father coupled with the dismissal of criminal charges for lack of evidence; the threats by the Mother against the Father; the Mother's purposeful insertion of the Child into parental conflict and threats to do same; the threats of the Mother against the parenting coordinator and her decision to unilaterally fire the parenting coordinator (addressed below); the Mother's preventing the Father's parental access for months; the Mother's failure to facilitate reunification therapy; the recommendations of Ms. L.; and the Mother's willful lack of candor while co-parenting in a medical emergency.
A full hearing will be needed to determine the best interests of the child. To arrive at the best interests of the child, the courts are required to analyze case-by-case factors that relate to the promotion of the Child's well-being,
Factors to consider in determining the best interests of the child include the quality of each parent's home environment; the length of time the child has resided with each parent; the parents' past performance and relative fitness as a parent; their respective abilities to provide for the child's emotional and intellectual growth/development; the quality of the home environment and the parental guidance provided; and the willingness of each to foster a positive relationship with the other parent. (Matter of Deanna V. v Michael C., 179 A.D.3d 445, 446 [1st Dep't 2020]; Eschbach v Eschbach,56N.Y.2d167[1982]).
A factor especially relevant in the best interest calculus for this child is the Child's express wishes to not reside with her Father and instead reside with her Mother. However, as noted in Eschbach, these wishes are not determinative, and the weight with which this Court affords them must be balanced against the potential influence being exerted upon the child. (56 N.Y.2d 167, 173 [1982] ["While not determinative, the child's expressed preference is some indication of what is in the child's best interests. Of course, in weighing this factor, the court must consider the age and maturity of the child and the potential for influence having been exerted on the child. "][internal emphasis supplied]).
To further support the argument that the Child wishes to be with the Mother and should be afforded strong weight, the Mother offers the therapy notes of the Child's sessions with Greenwich House, Inc., and one note from a session with the Mother. The notes from April 15, 2024, reveal that the Mother was the party who introduced the allegation of abuse into therapy - not the Child. The notes state clearly, "[the Child] was referred by her mother secondary to history of and ongoing trauma related to the alleged abuse by the father, parents divorce and other ongoing issues in the home." Further indicative of this is that at no time during the April 15, 2024, visit did the Child even discuss abuse by the Father. However, the Mother's individual intake session reveals she did in fact introduce the idea of abuse by the Father. Concerningly, there was no individual intake done by House with the Father and it was not until 10 days after the initial intake that the notes indicated the Child reported sex abuse by the Father.
The Mother argues that the status quo needs to be maintained and that stability for the Child is essential. The Mother argues that her being the residential custodian of the Child is the status quo; this Court wholly rejects such an illogical stance.
A litigant cannot create a new custodial "status quo" by obtaining a temporary order of protection and failing to obtain the underlying custodial arrangement. Indeed, the legal definition of status quo would surely not include the period after which the Mother obtained the order of protection and effectuated her self-help modification. Status quo's legal definition is, "the last actual and uncontested state of affairs that preceded a controversy and that is to be preserved by the preliminary injunction." (Miriam-Webster.com Dictionary, status quo legal definition [https://www.merriam-webster.com/dictionary/status%20quo#legalDictionary][Note: online free version]; see also, LaRouche v Kezer, 20 F.3d 68, 74 n. 7 [2d Cir 1994]["'status quo' to be preserved by a preliminary injunction is the last actual, peaceable uncontested status which preceded the pending controversy.'"] citing, Black's Law Dictionary 1410 [6th ed 1990]). Thus, the status quo would be the arrangement set forth under the parties' stipulation. Indeed, prior to this litigation, the Mother had spent four months in France while the Father cared for the Child. Here, the Mother obviated the law to create her purported "status quo" which perverts the custody agreement and is legally not the "status quo."
The Third Department faced a similar issue of potential coaching and the Child wishing to stay with the interfering parent in Matter of Gerber v Gerber. (113 A.D.3d 1133 [3d Dep't 2015]). In Gerber, the Family Court awarded the Father sole legal and residential custody based upon the well-documented interference efforts by the Mother. (Id. at 1138 ["In light of the overwhelming evidence of parental alienation [ ] we have no quarrel with the Family Court's Determination to award sole legal and physical custody to the father."]). The Third Department affirmed this determination by the Family Court despite it being made "not in accord with the recommendation of the attorney for the Child." (Id.). Here, the Court is faced with a similar situation.
There is sufficient proof before this Court to cast doubt on affording much weight to the Child's express wishes factor. Absent a hearing, this Court cannot say for certain to what extent this change in circumstances requires a modification of legal and residential custody.
However, at this juncture and under these specific and seriously concerning circumstances, this Court does find the overwhelming proof before this Court shows the Child's best interests demand pendente lite modifications to the access schedule, travel provisions, individual therapy, and co-parental communication provisions of the parties' Stipulation. (See DRL § 241[1][a]["In any action brought [...] the court [...] shall enter orders for custody and support as, in the court's discretion, justice requires, having regard for the circumstances of the case and of the respective parties and to the best interests of the child."]; Loggia v Verardo, 167 A.D.3d 612, 613 [2d Dep't 2018]["While 'custody determinations should '[g]enerally' be made 'only after a full and plenary hearing and inquiry,' this general right is not an absolute. A hearing is not necessary where the undisputed facts before the court are sufficient, in and of themselves, to support a modification of custody."] citing S.L. v J.R., 27 N.Y.3d 558, 563 [2016]; N.S. v T.S., 2024 NY Slip Op 50604[U] at *11-12 [Sup Ct, Nassau Cnty May 20, 2024] [Dane, J.]). Indeed, as directly contemplated in the Domestic Relations Law, this Court finds that, in addition to the child's best interests, justice requires these pendente lite modifications.
Before this Court is a child at ongoing risk of psychological harm. In facing such a serious situation, this Court must immediately act to protect the child. This is not only compelled by statute and case law but also because of this Court's inherent parens patriae duty. Thus, this Court must swiftly act to protect E.N. as the overwhelming proof before this Court demonstrates she is currently at ongoing risk of psychological danger. Delaying swift action here would subject E.N. to continued risk of psychological harm which could have immediate and potentially permanent negative effects on her psychological well-being and paternal relationship.
This Court agrees with Justice Dane's determination in N.S. that when ordering a modification before a hearing, this Court should "clearly articulate" its basis for doing so. (N.S., 2024 NY Slip Op 50604[U] at *12). The Court finds that the following overwhelming proofs support immediate pendente lite modifications: the finding by ACS and Ms. L. that the Mother was coaching the Child to make disclosures against the; the Mother withholding the Child without legal basis since May 7; the admissions by the Mother in her family offense petition to lying to the Father about a serious medical appointment for the child; the findings by ACS of alcohol abuse in the presence of the Child; the indisputable evidence of the Mother involving the Child in parental conflict and litigation; the Mother's demonstrated failure to facilitate reunification therapy; the agreed-upon terms of custody and parenting time consented to by the parties less than a year ago; and the fact that the Child was inappropriately enrolled in sex abuse therapy.
The pendente lite modifications absolutely necessary to preserve the Child's best interest are: (1) enjoining the parties from traveling out-of-state with the Child while reunification therapy is ongoing or until the reunification therapist finds same appropriate (except to the States of New Jersey and Connecticut); (2) restoring the Father's access as contemplated in the parties' Agreement; (3) directing the Mother's parenting time be supervised (extensively addressed in section IV); (4) modifying the co-parenting communication provisions; and (5) modifying the individual therapy provider for the Child.
All of these pendente lite modifications together are necessary to protect the best interests of the Child by, inter alia, allowing a focused effort at restoring her paternal bond, promoting the emotional and psychological safety and well-being of the Child, and enabling the embattled parties to co-parent in a civilized manner to further the Child's best interests. (See Smith v DiFusco, 282 A.D.2d 753, 753 [2d Dept 2001] ["'It is firmly established policy of this State... that, wherever possible, the best interests of a child lie in [her] being nurtured and guided by both of [her] []parents.'"] citing, Daghir v Daghir, 82 A.D.2d 191, 193 [2d Dept 1981] aff'd 56 N.Y.2d 938 [1982]; see generally, Matter of M.K. v H.M., 209 A.D.3d 471 [1st Dept 2022]["The court's determination that in-person visitation with the father would be detrimental to the child's emotional and psychological well-being at this time has a sound and substantial basis in the record."]).
i. The Travel Modifications
A pendente lite travel modification is necessary to ensure a focused effort on reunification and repairing the paternal relationship. As stated by Ms. L., she cannot conduct virtual therapy outside the State of New York. Furthermore, this modification protects against the Mother absconding with the Child to France. This concern is brought about by the Mother's own statements of her pondering doing so. Specifically, the Mother messaged the Father, "[The Child] really needs me to live here. You're going to have to figure out financially how to do that. Either I have her attend school in Paris, or I need much more money than $10,000.00 a month. It's just the reality." She also admits to planning to take the daughter to France "this summer" in her affidavit. This restriction is especially necessary since the parties specifically agreed the Child's home state was that of New York less than a year ago.
ii. The Parenting Time Modifications
The Child's desire to not see her Father nor the temporary order of protection functioned as a suspension of unsupervised visitation and did not permit the Mother to unilaterally withhold the Child in violation of the parties' agreement. The only conceivably justified point until which the Mother could withhold the Child was May 7th when the temporary order of protection provisions relating to the Child were lifted. It is almost two months since then and the Father has had no access to the Child outside of reunification therapy.
The facts before this Court show that the Mother effectuated a self-help modification of residential custody by withholding the Child past the expiration of the restrictions on the Father's ability to see the Child on the order of protection.
This is the most concerning aspect of this case. Here, by self-help, the Mother obviated the rule of law and directly contradicted the terms the parties agreed to just months prior in the Stipulation. While there was a temporary order of protection that did protect the Child, that has not been the case for some time. Indeed, even before this Court's instant modification, the most recent May 7, 2024, temporary order of protection did not have any provisions that restrained the Father's access to the Child.
Nor is there an order suspending the Father's access or one granting the Mother residential custody. To the contrary, the Stipulation caps the Mother's visitation with the Child at two weeks per month. That capped visitation is also conditioned on the Mother providing notice. In sum, there is no legal justification that the Father - the unmodified residential custodian - has de facto suspended visitation with only access through reunification therapy.
The Mother exacerbated the situation by failing to facilitate reunification therapy and likely by coaching the Child to continue to believe she was sexually abused by the Father. This Court finds that based on the evidence produced at this juncture, the best interests of the Child require a restoration of the Father's parenting time pendente lite (this does not prejudice either party's claim for sole custody or more expansive parenting time).
As stated above, in fashioning this extremely case-specific pendente lite modification, this Court does not modify residential or legal custody. The parties' agreement as to those provisions remains unmodified until further judicial action after a hearing as to these terms.
Thus, it is in the best interests of the child that the Father have his parenting time restored. Unfortunately for E.N., due to the Mother's conduct, "[t]he courts can only repair, patch, and cover over, as best they can, the irreparable harm occasioned and reduce the harm to a minimum, if the minimum is discernible." (Nehra v. Uhlar, 43 N.Y.2d 242, 251[1977][dicta]).
iii. The Co-Parent Communication Modifications
The parents are indisputably not able to co-parent or even communicate at this juncture.. Nevertheless, these parties decided to bring a child into this world together and thus there will have to be some level of communication to co-parent and ensure the Child's best interests are met. More importantly, the parties still share joint custody as that portion of the Stipulation has never been and is currently not modified. Accordingly, the parties are directed to immediately enroll in the Our Family Wizard App (OFW) and all co-parental communications shall occur therein. The co-parenting communications made on OFW shall not be deemed violations of the Mother's Temporary Order of Protection. Neither party shall discuss financial issues on OFW.
iv. The Therapy Modification
With regards to the pendente lite direction as to therapy, the Child's current therapist is focused on administering therapy for sexual abuse recovery due to the Mother specifically taking the Child to House for such therapy. The Mother has also played an active role in the therapeutic services being administered at House. There is no evidence before this Court to find such therapy appropriate. Moreover, at the July 3, 2024, oral argument the former AFC expressed concerns with the therapy being administered by House. Adding further credence, Ms. L., in her July 2, 2024 letter, further supports the conclusion that House is not assisting in facilitating the reunification.
The Court is also troubled that such services continued and commenced without an interview with the Father - after they interviewed the Mother. Likewise, it is also concerning they made no mention of the ACS finding against the Mother or that the sex abuse allegations were unfounded. This suggests this information was not shared with them. Accordingly, the Child shall be enrolled in a new individual therapist not focused on sexual abuse rehabilitation. Further, the parties shall advise the new individual therapist of the ACS findings.
These changes are absolutely necessary to protect the Child's best interest. The overwhelming proof of coaching on the part of the Mother demonstrates that not only does it function to slow or even prevent the reunification of the Father and the Child, but it also creates an almost inescapable situation where because the child is pressured to believe they were harmed by the other parent. Allowing this circumstance to continue unabated causes both the poisoning of the Child's mind and cements the Child in a concerning environment that is wholly against her best interests.
The Court's Orders dated May 30, 2024, directed both individual therapy for the Child and reunification therapy between the Father and the Child. This relief was continued by an interim order of this Court dated June 24, 2024.
Accordingly, the ultimate resolution of the parties' respective applications for modification of custody are deferred to trial. However, the Father's modification requests are GRANTED pendente lite as detailed herein. Additionally, the requests for an order directing the Child to remain in individual therapy is GRANTED to the extent detailed herein directing both parents to submit names for new individual therapists for the Child or to agree to a specific individual therapist. The request to undergo reunification therapy with the Father is GRANTED as it is continued from the Court's prior order.
III. The Father's Request to Subject the Mother to Alcohol Testing
A court can direct drug and alcohol testing as a component of a parental access order. (See e.g., Matter of Buskey v Alexis, 2024 NY Slip Op 01917 at *5-6 [2d Dept Apr. 10, 2024]; Matter of Hardy v Hardy, 194 A.D.3d 1043 [2d Dept 2021]).
The ACS representative stated on the record that based on their investigation they found, "evidence that the mother was abusing alcohol in the presence of the child while she was caring for the child, and that the child was concerned about that and expressed that to ACS in the course of the investigation. So based on those events, my client felt that it was absolutely necessary to indicate a case against [the Mother]." This statement is made further reliable based on the proof of the Mother's past need for assistance and monitoring.
Based on these credible representations by ACS and the words of the Child, this Court finds it necessary to order random alcohol testing for the Mother. Accordingly, the Father's request to have the Mother subject to random alcohol testing is GRANTED to the extent that the Mother shall forthwith report and follow the protocols set forth by Paymer, at her sole expense, and shall test as directed by Paymer before and after parenting time with the Child.
IV. The Father's Request to Order the Mother's Visits to Be Supervised
It is well settled that supervised visitation is appropriate where unsupervised access would be detrimental to the welfare of the child. (See Matter of Balgley v. Cohen, 73 A.D.3d 1038, 1038 [2d Dept 2010] ["[A] noncustodial parent is entitled to meaningful visitation, [the] denial of that right must be based on substantial evidence that visitation would be detrimental to the welfare of the child".]; Matter of Marsi v. Marsi, 171 A.D.3d 1183, 1185 [2d Dept 2019]["[S]upervised parental access is appropriately required only where it is established that the unsupervised parental access would be detrimental to the child."]). It is also well established that interference with the relationship between the child and the other parent "is an act so inconsistent with the bests interest of the child that it raise[s], by itself, a strong probability that the offending parent is unfit to act as a custodial parent." (Gago v Acevedo, 214 A.D.2d 565, 566 [2d Dept 1995] [internal emphasis supplied]; see e.g., Matter of Lawrence C. v Anetha P., 79 A.D.3d 577 [1st Dept 2010]; Victor L. v Darlene L., 251 A.D.2d 178 [1st Dept 1998]; Chapin v Chapin, 184 A.D.2d 1082 [4th Dept 1992]).
The proofs before this Court demonstrate the Mother has engaged in serious acts of interference with the parent-child relationship between the Father and the Child. There is evidence of coaching and a finding by ACS of inadequate guardianship. Additionally, Ms. L. made an identical finding. Further, the Mother's parental judgment is called to question by her own threatening conduct toward the Father and documented efforts and stated desires to involve the Child in parental conflict. This is further supported by the therapy notes which demonstrate the Mother telling the Child about the litigation.
Indeed, permitting the Mother unsupervised access to the Child is what "got us here." The record before this Court overwhelmingly indicates that during unsupervised parenting time, the Mother has been coaching and interrogating the Child. She has done so even after ample evidence demonstrating the lack of merit in such allegations. Likewise, she continued to do so even after a court order directing her to facilitate the reunification process. The Mother cannot be trusted to be unsupervised with the Child as there is overwhelming proof that when she is alone with the Child she uses that time to interfere with the Child's natural bond with her father.
These facts, along with the other circumstances of this case, require the Mother to be subject to supervised visitation as the proofs before this Court demonstrate access without supervision is seriously harmful to E.N.'s best interests. Accordingly, the Father's application for supervised visitation is GRANTED on an interim basis to the extent detailed herein, without prejudice to the final resolution on this claim.
V. The Mother's Request to Suspend the Father's Parenting Time
Fit parents have a fundamental right to meaningful access to their children. (E.g., Troxel v Gainville, 530 U.S. 57 [2000]). "In determining whether visitation between a parent and a child should be suspended, the court is to apply the best interest of the child standard. However, it is presumed that parental visitation is in the best interest of the child in the absence of proof that it will be harmful." (Matter of Fox v Fox, 93 A.D.3d 1124, 1125 [4d Dep't 2012] citing In re Nathaniel T., 468 N.Y.S.2d 768, 768 [4d Dep't 1983]; see also, Weiss v Weiss, 52 N.Y.2d 170 [1981]; Zafran v Zafran, 28 A.D.3d 753 [2d Dep't 2006]).
Here, there is simply no substantial proof, in light of the compelling evidence to the contrary, that the Father represents a threat to the Child. For four (4) months straight before the onset of the litigation (the actual status quo), the Mother resided in France with the Child residing with the Father full-time. Likewise, the Mother agreed in December of 2023 to the Father being the residential custodian and having substantial parenting time; as well as, joint custody.
While the Child may express a current desire to not see the Father based on her being influenced, that is simply insufficient to warrant suspending the Father's parenting time. This is especially the case in light of the recent developments made in reunification therapy with the Child being now able to participate in joint sessions and having a more positive outlook on her relationship with her father. (L. Letter dated July 2, 2024). Accordingly, the Mother's request to suspend the Father's parenting time is DENIED.
VI. The Mother's Request for the Return of the Child's Passport
This Court, by conformed order dated May 30, 2024, directed the Child's passport to be turned over and held by the former Attorney for the Child. The Court finds this pendente lite safekeeping of the passport continues to be necessary and appropriate, especially given the Mother's international lifestyle, express statement of intent to enroll the Child in school in Paris, and lack of candor to this Court. Likewise, the modifications set forth herein restrict travel to permit uninterrupted reunification and thus there is not a present need for either party to possess the Child's passport.
By order of this Court dated July 3, 2024, the Child's former attorney for the Child was relieved. Thus, in accordance with this Court's appointment of the new AFC, namely, Ms. Pamela Sloan, the former AFC and parties are directed to take any and all steps to turn over the Child's passport to Ms. Sloan.
VII. The Father's Enforcement Request Re: Parent Coordinator
As there has been no modification to the parenting coordinator provisions of this agreement, it shall be enforced as it is necessary for the parties to arrive at major decisions in the Child's life. The Mother's decision to unilaterally fire the last parenting coordinator does not function as a modification of the agreement.
The Mother violated the parent coordinator provision by unilaterally terminating the parenting coordinator and the messages to the parenting coordinator sent by the Mother are disturbing, to say the least. She messaged the parenting coordinator,
You have a very sorted past. You had a very difficult divorce, as what you took your children through was absolutely terrible. I do not want you in my life anymore. I will make sure that you are not in my life anymore. I will also make sure that I disclose all information that I found of you to the authorities. I do not ever want to have you text me ever again. I do not ever want you to contact me with my ex-husband. I need you to take yourself out of this situation immediately. I don't think it's a good suggestion for you to stay in this situation we need to move one. I don't want to have to bring up all of these things to make your client look worse than he does. I believe that if we have the correct psychologist who is educated in this type of situation it would be best. Wouldn't you agree? I can't imagine you not doing so thank you. I wish to never speak to you ever again for the rest of my life, unless we are in court, and then let me tell you I will disclose absolutely everything because you have an entire movie. I am sure your ex-husband would love to produce it. Don't fuck with me any more because believe me, I can fuck you over a hell of a lot more than you could ever fuck me you will never be ever thinking it's going to come and that's what karma is. It just fucks you up. Stay away from me you fucked up bitch.
Funny. E.N. is babysitting now. 11 years. You could have saved her. You decided not to do so. Why do you think you should be the mediator in my case ??? You are a murderer.
Accordingly, the parties are directed to submit names or agree to a specific parenting coordinator. In sum, the Father's request for enforcement of the Stipulation of Settlement is GRANTED to the extent detailed herein.
VIII. The Parties' Requests for a Forensic Evaluator
This Court, by Order dated June 24, 2024, appointed Dr. R.P. as the forensic evaluator for this matter (hereinafter: the Forensic). Accordingly, the portion of the parties' request for an appointment of a forensic evaluator is GRANTED. While the Court's Order provides for a current allocation of the Forensic's costs, such allocation is subject to redistribution.
The Mother has represented to this Court that she is struggling financially. Contrary to that she sought to have her accountant certify that she expects to earn "at least" $330,000.00 and she also receives $120,000.00 in tax-free maintenance per year. Additionally, she owns real property in France that had a purchase price of €795,000.00 or $892,851.00 in July of 2023. These facts collectively demonstrate she is not struggling as argued.
The Mother messaged the Father she would have the parties' last accountant "write a letter stating that he foresees me bringing in at least $330,000.00 next year or excuse me this year."
This Court is also a court of equity. In equity, this Court cannot order a Father who has been denied access to his Child for months to solely or predominantly bear the financial burden of proving that which the parties just agreed to months ago - he is a fit and proper residential custodian.
Accordingly, this Court directs a redistribution of the retainer fee in the Order Appointing the Forensic to the extent that the Mother is directed to pay 50% of the retainer amount. To the extent that the parties have already paid the retainer pursuant to the now-modified 80/20 split, the Mother shall remit to the Father the 30% difference.
Accordingly, the Father's request for a 50/50 split of the Forensic costs is GRANTED.
IX. An Expedited Hearing on Pendente Lite Legal & Physical Custody Shall Be Held
This case, and the accusations that define it, are of the gravest variety and extremely time-sensitive. The Child's physical and legal custody are currently in serious question.
Given the serious nature of these allegations and the continued immense impact they have on the Child, and pursuant to this Court's authority under Judiciary Law § 2-b(3), this Court ORDERS that parties and counsel to appear for a pendente lite hearing before this Court IN-PERSON on July 24 and July 25 from 9:30 am - 4:30 pm. The Court will also be holding a Lincoln hearing with the Child at a date to be determined with the Attorney for the Child.
Both parties affirmed to this Court that their respective applications need to be heard on an emergency basis under 22 NYCRR 202.7. They will now be heard on an emergency basis due to those representations and the "terrifying" and troubling facts before this Court.
Consistent with this Court's authority under Judiciary Law § 2-b(3), this Court finds the procedure set forth necessary to ensure the best interests of the Child are met in this case. Hearings of this fashion are not an uncommon practice in modification proceedings (See Matter of James M. v Kevin M., 99 A.D.3d 911, 913 [2d Dept 2012][Court held "mini-trial."]; Matter of Aquino v Antongiorgi, 92 A.D.3d 780, 781 [2d Dept 2012][Court used a "mini-hearing procedure."]).
Time is of the essence and this simply cannot wait.
CONCLUSION
The allegations and evidence before this Court are deeply concerning. Indeed, this Court was not speaking in hyperbole when it said on the record the facts before it are "terrifying." These very troublesome circumstances mandate this Court act swiftly and strongly. The remaining issues not resolved herein will be decided at trial.
This constitutes an interim decision and order of this Court.