Opinion
V-xxxx-xx/xx
01-02-2019
In the Matter of a Proceeding Under Article Six of the Family Court Act, J.N., Petitioner, v. S.H.F., Respondent. In the Matter of a Proceeding Under Article Six of the Family Court Act, S.H.F., Petitioner, v. J.N., Respondent. In the Matter of a Family Offense Proceeding, S.S.F., Petitioner, v. J.N., Respondent.
Danielle Seid Vazana, Esq., represented the mother S.F. Guljit Kaur Bains, Esq., represented the father, N.F. Theresa F. Kloeckener, Esq., Attorney for the Child.
Danielle Seid Vazana, Esq., represented the mother S.F.
Guljit Kaur Bains, Esq., represented the father, N.F.
Theresa F. Kloeckener, Esq., Attorney for the Child.
Conrad D. Singer, J.
The matter before the Court concerns custody of two children, S.N. (D.O.B. 00/00/0000) and T.N. (D.O.B. 00/00/0000). S. and T. are the biological children of the parties herein, J.N. (hereinafter "father) and S.F. (hereinafter "mother"). The current proceedings were commenced on March 23, 2017, when the father filed a petition by Emergency Order to Show Cause pursuant to Article 6 of the Family Court Act, seeking a modification of the custody arrangement set forth in the Judgment of Divorce dated March 8, 2011, which incorporated but did not merge the parties' Stipulation of Settlement dated November 10, 2010. Such granted the mother with sole residential custody and granted the parties joint legal custody, with the mother being the final decision maker. On April 24, 2017, the mother filed a cross-petition by Emergency Order to Show Cause seeking a modification of the parties' custodial arrangement.
On April 24, 2017, the parties, their counsel, and the Attorney for the Child appeared before this Court on their respective modification petitions. During that proceeding, the Court issued temporary orders of protection against both parties, which provided, in pertinent part: that neither party shall discuss the litigation or court matters with the children; that both shall refrain from crimes, threats, intimidation and hazardous acts against the children; and that the mother shall have the child S. evaluated by a licensed child psychiatrist within seven days. On May 2, 2017 and August 16, 2017, the father filed successive petitions alleging that the mother violated the April 24, 2017 Temporary Order of Protection. On August 30, 2017, the mother filed a petition alleging that the father violated the April 24, 2017 Temporary Order of Protection applicable to him.
On August 30, 2017, the mother filed a family offense petition alleging the father committed the family offenses of assault in the second or third degree and reckless endangerment, alleging that the father had gone against the recommendation of the child's pediatrician and pediatric urologist by administering daily or frequent enemas to the child S., purportedly to stop S. from wetting her bed at night. On September 19, 2017, the Court issued a temporary order of protection requiring, inter alia , the father to stay away from the children except for supervised parenting time as agreed to by the parties in writing or at EAC and requiring EAC parenting time by the father for at least 2 hours weekly.
The hearing on these petitions commenced on November 28, 2017 with multiple hearing dates thereafter, with testimony concluding on June 21, 2018. All written summations were finally filed with the Court on October 1, 2018. When the hearing commenced, the mother was represented by Danielle J. Seid-Vazana, Esq., the father was represented by Guljit Kaur Bains, Esq., and Theresa F. Kloeckener, Esq., was the attorney for the child. The parties and counsel agreed that all the petitions, including the mother's family offense petition, would be tried together. Counsel for the father and counsel for the mother both gave opening statements. The Attorney for the Child stated in her opening statement that her client's position would be for modification of legal custody such that sole legal custody and residential custody would be granted to one of the parents.
On December 4, 2017, the court granted an oral application for the father's former attorney to be relieved as counsel. Beginning with the December 5, 2017 hearing date, the father was represented by James Graham, Esq. During the December 4, 2017 appearance, the mother's counsel made an application for the Court to admonish the father not to discuss the litigation with the children and the Court issued a temporary order of protection, requiring, in pertinent part, that the father stay away from the children except for supervised parenting time as agreed to by the parties. On December 6, the Court amended the December 4, 2017 Temporary Order of Protection to prohibit communication between the father and children except during the father's regular parenting time or through daily telephone calls supervised by the mother.
SUMMARY OF TESTIMONY
FATHER'S CASE
The father's testimony began on November 28, 2017 with his testimony that in addition to the two subject children, the father has two younger biological sons with his current wife. (Transcript , November ["Nov."] 28, 2017, page 73, line 15). The father resides in N.W., Nassau County, and the subject children reside with their mother in T., New Jersey. (Transcript , Nov. 28, 2017, page 25, line 5).
The father testified that the parties' Stipulation of Settlement provides him with parenting time on alternate weekends and from 5 to 7 PM on Wednesdays, with the parties sharing holidays and the father having the children for about one and a half weeks in the summer. (Transcript , Nov. 28, page 28, line 4). The father testified that over time he gained "a lot of extra" parenting time with the children, including one month in the summer for camp and more holidays and weekends. (Transcript , Nov. 28, page 29, line 24).
The father testified that the parties' relationship hasn't been good since they divorced and that his efforts to communicate with the mother about several things, "never worked out". (Transcript , Nov. 28, page 33, line 3). In 2010 or 2011, the father was dropping the daughter S. at daycare when she was complaining that her ear hurt. The mother would not let him take S. to the doctor, so he left the daycare and the mother took S. to the doctor. (Transcript , Nov. 28, page 33, line 9). Likewise, the father testified that in 2012 during "Hurricane Sandy" when the gas stations were not working, and the father did not have enough gas to make it to New Jersey, the mother threatened him with the police if he did not return the children. (Transcript , Nov. 28, page 34, line 12).
The father testified that he has a "very good" and "respectful" relationship with the children, and that they do a lot of things together. (Transcript , Nov. 28, page 38, line 13). He has taken them to Magic Kingdom in Orlando, to petting zoos and regular zoos and to Broadway shows. During the summer the father has taken the children to local concerts, out for ice cream and to the movies. (Transcript , Nov. 28, page 39, line 10). Both children attend summer camp on Long Island. He testified that when the children are with him, they reside with him and his current wife (their stepmother) and the father's two sons with his current wife. He further testified that they all do activities together like going to synagogue, baking, and doing community work.
The father testified that the mother has a "very disconnected relationship" with the parties' daughter S. (Transcript , Nov. 28, page 42, line 16). He testified that following the winter break in 2016 or 2017 he observed that the mother wouldn't hug or kiss S. after not seeing her for a two-week vacation. (Transcript , Nov. 28, page 42, line 18).
The father testified that he filed his modification petition because he was worried about the children's emotional welfare. He stated that he had received a worrisome text message from S., that in the previous year there had been "40 plus emails" from school regarding S.'s emotional well-being and that during this year, there were 25 such emails from school. The father testified that he had been pushing for S. to go to therapy for five years, while the mother had initially ignored him. (Transcript , Nov. 28, page 45, line 22). The father further testified that S. has seen five therapists total and that the mother had not consulted with him in selecting all the therapists. (Transcript , Nov. 28, page 61, line 1).
The father testified that he had been limited to supervised parenting time with the children because the mother had claimed that he was giving enemas to the children S. and N. (Transcript , Nov. 28, page 52, line 20). However, he confirmed that he gave "over-the counter" enemas to S. in July/August of 2017. He testified that he did not administer the enemas himself, that S. gave herself the first enema and the next day, the father's wife helped S. with a second enema. (Transcript , Nov. 28, page 54, line 15).
The father testified that he has been unable to co-parent with the mother since 2010 because the mother doesn't involve him in educational decisions. He said that the mother registers the children in school without telling him or talking to him about it. The father testified that if his daughter lived with him then she would not need a therapist. (Transcript , Nov. 28, page 59, line 15). When the Court asked if he believed that S. would not need therapy if she lived with him even though she had stated that she wants to kill herself, the father responded that he is "very respectful" of his daughter when she is with him. (Transcript , Nov. 28, page 60, line 17).
The children both attend the same private school in New Jersey. The father testified that the mother did not consult with him before selecting the current school and that she also chose the children's previous school. (Transcript , Nov. 28, page 63, line 12). He further stated that the parties never had any conversations about the mother's selection of the schools.
The father testified that it would be best for S. to live with him because S. has a strong personality that conflicts with the mother's personality and that "S. has defiance tendencies that her mom is not handling well". (Transcript , Nov. 28, page 63, line 19). The father testified that in May of 2016 and February of 2017 the mother hit S. He further testified that the mother had bruised S. many times, that she pushed S.'s head up against the wall a few times, and that she had threatened to push her down the steps. (Transcript , Nov. 28, page 65, line 23). The father did not know the exact date when the mother pushed S.'s head against the wall.
The father testified that in March of 2017 he spoke to the mother about S. suffering from constipation, but the mother "never got back to [him]" after she spoke to the pediatrician. (Transcript , Nov. 28, page 77, line 5). The father stated that he emailed the mother in July and August of 2017 to discuss S.'s constipation, as well as her bed wetting, but the mother ignored him. The father testified that he gave S. the first enema because she was in a lot of pain from constipation. (Transcript , Nov. 28, page 77, line 15). The father testified that S. said she was constipated and had painful urination. (Transcript , Nov. 28, page 78, line 7).
Before the continued direct examination of the father on December 5, 2017, the Attorney for the Child confirmed that the parties' son wants residential custody, currently with the mother, to stay the same. (Transcript Dec. 5, page. 14, line 17). The Attorney for the Child stated that the daughter has said that she wants to live with the father, and that both children have said they would like to spend more time with him. (Transcript , Dec. 5, page 14, line 20). Additionally, the father's wife had given birth to a daughter after the November 28, 2017 fact-finding, so that he now has five children: S. and T. with the subject mother and three children with his current wife H.Z.
The father testified that on January 5, 2017, he contacted S.'s former therapist, a social worker named Gila Cohen, and advised her that S. "wanted to put a knife into her head". (Transcript , Dec. 5, page 31, line 19). S. saw a different psychologist, Dr. Linda Salta, from June 2014 to September 2016, about once every six weeks. (Transcript , Dec. 5, page 33, line 33). The father participated in one session with Dr. Salta and S., in which the father discussed his concerns about S. being "very defiant". (Transcript , Dec. 5, page 36, line 4). The father testified that when he discussed his concern about S.'s defiance with the mother, she responded that "a thousand Lindas [Salta] wouldn't help". (Transcript , Dec. 5, page 37, line 5).
The father testified that S. began attending Y. Academy in September 2013 and that he was not involved in the mother's decision for S. to attend that school. He stated that he did not hear from the mother regarding the choice of school until March of 2014. (Transcript , Dec. 5, page 40, line 15). The father described his methods of disciplining S. as speaking respectfully to her, giving her unconditional love, and hearing and understanding her frustrations. (Transcript , Dec. 5, page 45, line 2).
During his continued direct examination on December 6, 2017, the father testified about the mother using physical discipline with S., including locking her out of the house and pushing her head against the wall. (Transcript , Dec. 6, page 5, line 22). The father testified that the mother had told him that she locked S. out of the house because she was out of control and trashing her room. (Transcript , Dec. 6, page 7, line 16). The father further testified that the mother first denied pushing S.'s head against the wall, but eventually said that S. is "impossible, she's defiant and she's not listening". (Transcript , Dec. 6, page 9, line 3).
The father stated that he is concerned about S.'s physical well-being due to her bed-wetting, constipation, and painful urination. He testified that the parties had consulted with a urologist who gave S. a prescription for bed-wetting and told the parties to decide what they think is appropriate to do. (Transcript , Dec. 6, page. 11, line 13). The father testified that, to his knowledge, the prescription was never filled. (Transcript , Dec. 6, page 12, line 1). He testified that in 2016 the mother had suggested using an alarm with a sensor to treat S.h's bed-wetting, that the father purchased the alarm and sent it over to the mother to try it, but S. was not using the alarm. (Transcript , Dec. 6, page 13, line 18).
The father testified that the children have had access to the Internet using computers and iPads since approximately 2015 or 2016 and that he had several conversations with the mother in 2016 and 2017 about the children viewing pornography while using the devices. (Transcript , Dec. 6, page 15, line 10). He testified that the mother denied that the children were viewing pornography. (Transcript , Dec. 6, page 15, line 18).
The father also testified that the mother bit S. and that when he confronted her about it, the mother called them "love bites". (Transcript , Dec. 6, 2017, page 17, line 8). The father further testified that he had observed bite marks on S.'s right forearm and told the mother that "scarring our daughter is not considered a love bite". (Transcript , Dec. 6, 2017, page 17, line 22). He testified that S. had gotten another bite in February 2017.
The father testified that in August of 2017 the mother filed an order of protection against him based on the father administering enemas to their daughter S. The father testified that in July of 2017, S. had received an enema on two occasions to treat her constipation. (Transcript , Dec. 6, 2017, page 28, line 9). He testified that S. administered the first enema and the father's wife administered the second enema. He testified that after S. administered her own enema, she used the bathroom, and that her mood improved after the father's wife administered the second enema. (Transcript , Dec. 6, 2017, page 29, line 17). The father testified that he emailed the mother several times about the enemas in July and August, and they also discussed the enema protocol in March 2017. (Transcript , Dec. 6, 2017, page 31, line 9).
On cross-examination by the mother's counsel, the father confirmed that he does not have any medical background and that he does not have any degrees relating to early childhood behaviors. (Transcript , Dec. 6, page 35, line 2). He further testified that the parties' Stipulation of Settlement does not give him parenting time on Wednesday evenings, but he has had such extra parenting time with the mother's consent. (Transcript , Dec. 6, page 38, line 22).
The father confirmed that in the summer of 2017 the mother told him not to administer enemas to S., and further testified that Dr. Hodges, the doctor whose protocol for bedwetting includes administering enemas, had never examined or met S. (Transcript , Dec. 6, page 40, line 19). He admitted that the subject of enemas was not addressed at the appointment for S.'s treating urologist and that he did not inquire of S.'s treating doctor before administering enemas to her. (Transcript , Dec. 6, page 43, line 9). He further acknowledged that the treating urologist, Dr. Tannenbaum, wrote a letter addressing the practice of administering enemas to S. The father testified that he bought twelve enemas in total for S. and had planned to administer all of them to S., after the mother would agree to it. (Transcript , Dec. 6, page 44, line 12). He acknowledged that he told the mother in a text message that "most of the time " S. missed while applying the enemas, but he maintained that only two enemas in total were administered to S. (Transcript , Dec. 6, page 44, line 22).
The father also acknowledged that his earlier testimony about incidents that occurred when dropping off the children to the mother's home was untrue. (Transcript , Dec. 6., page 49, line 2). The father testified that the mother often agreed to his requests to increase his parenting time beyond what is provided for in the parties' agreement and that she had given him extra parenting time on more than twenty occasions including half the summer, rather than the two weeks provided for in the parties' Stipulation of Settlement. (Transcript , Dec. 6, page 51, line 4). The father also testified that the mother provided the father with access to all the children's treating physicians and he was permitted to take the children to various doctor appointments. (Transcript , Dec. 6, page 56, line 14).
The father testified that he had emailed the mother before S. started treatment with Dr. Salta and that he had not provided the names of any potential therapists but instead just told her to let him know when she found a therapist. (Transcript , Dec. 6, page 61, line 5). He confirmed that the mother had consulted with him about choosing a therapist and that he had not objected to the therapist whom she had selected. (Transcript , Dec. 6, page 62, line 3).
The father further confirmed that the mother had emailed him before S. started Kindergarten, asking him to consider the Y. Academy and other schools in the area so they could discuss which school would be a good fit for the children. (Transcript , Dec. 6, page 63, line 4). The father had responded to that email by telling the mother to "spare him" her story, because he had already received notice from the Y. Academy in December of 2012 that S. had been accepted there. (Transcript , Dec. 6, pg. 64, line 21). The father then confirmed that he had received that notice several months before S. had been enrolled in any school and that S. did not start school until September of 2013. (Transcript , Dec. 6, page 65, line 19).
The father testified that the parties' Stipulation of Settlement provides for the children to attend a Yeshiva and provides the mother with final decision-making authority on all issues relating to the children. He testified that the mother had emailed him that she researched several schools in the T. area and that she felt the Y. Academy was religiously, socially and academically appropriate for S. (Transcript , Dec. 6, page 66, line 13). He further confirmed that under the parties' agreement, the parties' intention is for all decision-making and parenting time to be done "in a manner consistent with the tenets of Orthodox Judaism". (Transcript , Dec. 6, page 68, line 8). He testified that while he does not believe that the Y. Academy is consistent with the tenets of the Orthodox Judaism, he had not provided the mother with any alternate school options. (Transcript , Dec. 6, page 69, line 18).
The father did not research schools from December of 2012 to March of 2013 when the mother emailed him about discussing schools, nor did he research any schools from March of 2013 to September of 2013, because S. had already been accepted to school (Transcript , Dec. 6, page 77, line 19). The father testified that he had "looked at" different all-girl schools but couldn't recall the names of any of those schools. (Transcript , Dec. 6, page 79, line 10).
The father testified that he has full access to the children's school records and to teachers and conferences and that he receives correspondence directly from the children's teachers through his own special email account from the school. (Transcript , Dec. 6, page 82, line 11). He further testified that one month before testifying, he, together with the mother and S.'s current treating therapist, Dr. Foger, had attended a meeting at school to discuss S.'s behavior and academic performance. (Transcript , Dec. 6, page 82, line 22). He further testified that the mother had given him Dr. Foger's information and had made him aware of when Dr. Foger started to treat S., and that he had spoken with Dr. Foger at the school meeting as much as he wanted. (Transcript , Dec. 6, page 85, line 7).
The father testified that in or about 2015 the parties discussed Attention-Deficit Hyperactivity Disorder ["ADHD"] medication for S. (Transcript , Dec. 6, pg. 88, line 23). He further testified that there had also been discussions of medicating S. for symptoms of Oppositional Defiance Disorder ["ODD"]. (Transcript , Dec. 6, pg. 74, line 15). The father testified that he had stated to various people in the three years prior that S. does not have ADHD or ODD. (Transcript , Dec. 6, page 75, line 16). He testified that the mother had discussed with the father her concerns about S. including the possible need to medicate her for ADHD. (Transcript , Dec. 6, pg. 89, line 17).
The father testified that on May 20, 2015, the mother texted him telling him she was hoping that S. didn't get thrown out of school and that she thought that S. was having issues with ADHD. (Transcript , Dec. 6, page 90, line 1). The father responded by telling her that S. "doesn't have ADHD and if you put her on meds I promise you I will take you to court for custody and I promise you I will win his time". (Transcript , Dec. 6, page 90, line 7). The father told the mother that the mother "is the problem" and that if she didn't fix herself he would "give [her] a battle in court". (Transcript , Dec. 6, page 90, line 25). Likewise, the father told the mother that he "[doesn't] get this ADHD garbage", and that S. does not need medication, "just love and patience". (Transcript , Dec. 6, page 93, line 17). He testified that he still believes that S. does not have ADHD. (Transcript , Dec. 6, page 94, line 17).
The father testified that on March 21, 2017, he told the mother that he would never let the mother medicate S. for ADHD and that shortly thereafter he filed a petition seeking a change of custody. (Transcript , Dec. 6, page 95, line 1). He testified that one of the reasons he had filed the change of custody petition was because he was afraid the mother would medicate S. for ADHD against his wishes. (Transcript , Dec. 6, page 95, line 15). He testified that he once texted his daughter and told her that he believed she doesn't need any medicine, that he "believes in her", that they "can do it together" and they should start by praying to God. (Transcript , Dec. 6, page 97, line 17). The father admitted that he sent that message to S. knowing that the mother had discussed with S. the possibility of her taking ADHD medication to help her focus better in school. (Transcript , Dec. 6, page 99, line 16).
The father testified that the mother had notified him before having S. evaluated in 2016 for her behavioral issues. (Transcript , Dec. 6, page 102, line 15). He attended and participated in those evaluation meetings and gave his input to the doctors evaluating S. (Transcript , Dec. 6, page 102, line 1). He received all the reports that were generated for S.'s evaluation and received a copy of the finalized evaluation. (Transcript , Dec. 6, page 112, line 1).
The father denied that he has had a part in causing some of S.'s behavioral issues but admitted that it was "definitely inappropriate" that in June of 2016 (when S. was eight years old), he told S. that the children did not live with him on Long Island because the "judge did something not legal". (Transcript , Dec. 6, page 103, line 6). The father testified that at the time he said that to his children he thought it was reasonable to do so. He testified that the mother told him that it was "completely inappropriate" of him to say that and that therapy would be a "waste of time" if the father "undoes everything". (Transcript , Dec. 6, page 103, line 24).
The father testified that in February of 2016 he told S. that she would no longer have to live with her mother once she turned 12 years old. (Transcript , Dec. 6, pg. 105, line 2). He further testified that the mother told him not to speak to S. about deciding where she would attend school because it affected her behavior when she was home with the mother. He testified that he told the mother that he wants the children "to feel like they are not forced into their life and they have a choice one day" as that's healthier for them, and that "giving [the children] a choice which is the truth and the law doesn't force them to feel controlled". (Transcript , Dec. 6, pg. 106, line 23).
The father testified that on March 14, 2016, the mother texted him to say that she knew that he was telling S. that she could live with him and to say that "all the therapy in the world [wouldn't] do a damn thing because" the father was "f***ing with [S.'s] head". (Transcript , Dec. 6, pg. 108, line 2). The mother further told the father in that text that he should have spoken to the mother first before giving S. a phone and that S. was on the phone in the morning when the mother was trying to get her ready for school. The father testified that he responded by telling the mother that she is "the worst mother" he ever met, due to the "emotional and verbal abuse" she does to the kids. (Transcript , Dec. 6, page 109, line 25). The father testified that he does not believe that any of his discussions with S. about living arrangements caused any of her behavioral issues. (Transcript, Dec. 6, page 113, line 12).
The father testified that on or about January 5, 2017, he received a text message from S. that made him afraid that S. was going to try to hurt herself. (Transcript , Dec. 6, page 113, line 16). He acknowledged that he waited a week before forwarding S.'s text message to her then-treating therapist, Gila Cohen, and that he did not call the mother, even though S. was residing with her at the time. (Transcript , Dec. 6, page 115, line 8). He further acknowledged that while it "would have been prudent" of him to do so, the father did not contact the mother, the school, the police or Child Protective Services. (Transcript , Dec. 6, page 115, line 14).
The father further acknowledged that he included the allegation about S. hurting herself in his petition to the Court, which he filed in March 2017, approximately two months after receiving S.'s text message to that effect. (Transcript , Dec. 6, page 116, line 18). He likewise testified that he did not call the police, notify Child Protective Services or file a change of custody at the time that S.'s head was allegedly smashed into a wall, nor did he take S. to a doctor to determine if she had sustained an injury. (Transcript , Dec. 6, page 117, line 16).
The father testified that he never told the mother that his wife was assisting S. with the enema; he told her that S. was doing it herself. (Transcript , Dec. 6, page 135, line 19). He further testified that he texted the mother on August 21, 2017 to address the subject of enemas again and asked her if she was willing to try it. (Transcript , Dec. 6, page 137, line 5). The father advised the mother that the idea of the enemas was to "clear [S.'s] bowels so they don't affect the nerves to the bladder" and that "S. said she flushed the toilet eight times from clearing her bowels". (Transcript , Dec. 6, page 137, line 10). The father testified that he meant that "she cleared her stomach by flushing the toilet". (Transcript , Dec. 6, page 137, line 23). The father admitted that it was the first occasion he knew of where his daughter had flushed the toilet bowl eight times. (Transcript , Dec. 6, page 138, line 15). The mother again told the father that she did not want him to administer enemas to the child. (Transcript , Dec. 6, page 139, line 17).
In response to questioning from the Court, the father testified that he feels that the mother does not give unconditional love to the children. He further testified that he "always spoke well with the kids" and "never said anything bad" to them.
During his continued cross-examination the father testified that on July 25, 2017, the parties attended a urologist appointment for S. with Dr. Steven Tannenbaum and that the father did not disclose to S.'s treating doctor that he was administering enemas to S. (Transcript , Dec. 7, page 9, line 21). The father testified that he did not mention the enemas to the mother until after the mother approached him about it, after the enemas had already been administered to S., and that the mother told him that he should have discussed it with her before administering enemas to their daughter. (Transcript , Dec. 7, page 12, line 7).
The father testified that two enemas in total were administered to S., that S. administered the first enema to herself, and that his wife helped S. the second time. (Transcript , Dec. 7, pg. 13, line 21). He stood outside the bathroom door for the first enema and explained to S. how to administer the enema to herself, and he also provided S. with a diagram of how to administer an enema to herself. (Transcript , Dec. 7, pg. 13, line 24). The father emailed the mother on August 21, 2017 intending to persuade the mother to agree with the use of the enemas. In the email, the father wrote that "there is nothing wrong with challenging your doctor" because he was challenging S.'s pediatrician and S.'s treating urologist. (Transcript , Dec. 7, page 21, line 8). He testified that he used S. "as a messenger" to advise the mother about enemas. (Transcript , Dec. 7, page 22, line 3).
The father reviewed an email exchange that was entered into evidence (Respondent's Ex. J) and testified that on October 8, 2013 the mother started an e-mail discussion with him about camp for the summer of 2014, thereby giving him nine months' notice about camp. (Transcript , Dec. 7, page 25, line 5). The father acknowledged that in that email exchange he agreed with the mother that the children had outgrown their previous camp. (Transcript , Dec. 7, page 27, line 4). In the same 2013 email discussion, the mother told the father that the children "really want to spend more time" with him and that she "really want[s] to do what is best for them so they are happy". (Transcript , Dec. 7, page 27, line 24). The mother told the father that if he wanted, he could have the kids for August and he could send them to the free camp that he wanted them to attend. (Transcript , Dec. 7, page 28, line 4). The children then started spending half the summer with the father in the summer of 2014.
On cross-examination by the Attorney for the Children, the father stated that his understanding of ADHD is that it is where a child "can't stay seated concentrating on certain things for a long period of time". (Transcript , Dec. 7, pg. 36, line 4). He testified that he does not believe his daughter has ADHD but agreed that she has symptoms of ADHD. (Transcript , Dec. 7, pg. 36, line 20). The father then testified that his earlier testimony that he was "anti-medication" and against any medication was a misstatement because he would allow for S. to be prescribed ADHD medication. (Transcript , Dec. 7, pg. 37, line 18).
On redirect examination, the father testified that a lot of times when S. is frustrated he will "hug her, hold her hand" and that he also uses a method where he "gently" touches S.'s face. (Transcript , Dec. 7, page 42, line 10). He testified that he tells S. "I understand you" to calm her. (Transcript , Dec. 7, page 42, line 14). The father stated that he has "alone time" with S., where they go food shopping and "talk about everything". (Transcript , Dec. 7, page 42, line 23). The father stated that he has expired medical training called "A-map" for a "medication administration license", a certification that he held for four years that had enabled him to have custody to administer medications that had been prescribed by a doctor. (Transcript , Dec. 7, page 43, line 14).
The father testified that he is seeking sole legal custody and that he wants the Court to reverse the current parenting time schedule so that the children reside in his home and go to school by him and the mother has parenting time every other weekend from Friday until Sunday night. (Transcript , Dec. 7, page 50, line 15). The father further testified that he should make the decisions regarding the children's education, health care and religious observations, but that both parents should have access to school reports and health care records and both should be able to speak to the education providers and health care providers. (Transcript , Dec. 7, page 53, line 5).
On re-cross examination by the mother's counsel, the father testified that the sole purpose for S.'s appointment with the urologist Dr. Tannenbaum was for S.'s bedwetting, not for an alleged painful urination condition. (Transcript , Dec. 7, page 56, line 23). The father denied that the first time he mentioned painful urination to the mother was in the courtroom during these proceedings, but he admitted that he couldn't produce an email or text message with such a communication without looking it up. (Transcript , Dec. 7, page 58, line 4). He acknowledged that the mother has never told him that S. has painful urination and that while S. had first experienced painful urination a year earlier, he never took her to see a doctor for the alleged condition, but he had taken her to the doctor for a cold. (Transcript , Dec. 7, page 59, line 10).
H.Z., the father's current wife, was the father's next witness. Ms. H.Z. testified first about the Hurricane Sandy incident and stated that she drove with the father as he attempted to return the children to New Jersey and that she texted the mother for him while he drove. (Transcript , January ["Jan."] 2, 2018, pg. 8, line 5). She testified that the father asked the mother to meet them "halfway" because they were running out of gas and all the gas stations were closed due to the hurricane, and that the mother refused and said that she would call the police if the children were not returned to daycare at a certain time. (Transcript , Jan. 2, page 9, line 22).
Ms. H.Z. further testified that S. received enemas on two occasions while at the father's house, that S. gave herself the first enema and that Ms. H.Z. administered the second enema. (Transcript , Jan. 2, page 10, line 7). She testified that the two enemas were administered in mid-August of 2017 and that no other enemas were administered to S.
Ms. H.Z. testified that during the father's parenting time they would take the children bike riding, to the boardwalk, to free concerts in the park, out for ice cream, and would play basketball with them. (Transcript , Jan. 2, page 11, line 16). She further testified that the father would sometimes discipline S. by giving her a "time out" and other times he would use a "friendlier approach" where he would "just give her a hug". (Transcript , Jan. 2, page 12, line 14). She stated that the father calls the children daily at 4:15 PM when they are with the mother and that he is successful "half the time" in his efforts to communicate with the children. (Transcript , Jan. 2, page 14, line 19).
On cross-examination, Ms. H.Z. testified that she and the father were married under Jewish law on June 17, 2012 and that she did not speak with the mother prior to Ms. H.Z.'s marriage to the father. (Transcript , Jan. 2, page 16, line 10). She further testified that while she was texting the mother on her husband's behalf following Hurricane Sandy, she was not aware of where the mother was located at that time. (Transcript , Jan. 2, page 17, line 11).
Ms. H.Z. testified that she did not seek permission from the mother before administering an enema to S. She denied that S. could have received an enema on other occasions that she was not aware of but acknowledged that there are times that she is outside of the house, that she works outside the home, and that there are times that she's not always with the subject children when they are staying in her home. (Transcript , Jan. 2, page 17, line 25).
On redirect, Ms. H.Z. testified that she participates in the father's telephone calls with the children about two to three times per week because she has known the children since they were two and three years old and she likes to say hi. (Transcript , Jan. 2, page 23, line 9).
SUMMARY OF TESTIMONY
MOTHER'S CASE
The mother testified as the first witness on the mother's case. She testified that she has resided in T., New Jersey since October of 2008, when S. was ten months old and the mother was pregnant with T. (Transcript , Jan. 2, pg. 26, line 5). The mother further testified that she has worked as an accountant for almost 16 years and that she works four days a week in the office and one day at home. She stated that her commute to the office averages approximately one hour and fifteen minutes and that on average she arrives home at 6:30 or 6:45 PM.
The mother testified about her daily morning routine with children, which is to wake them at 6:50 AM, then make sure they get dressed and brush their hair. She stated that she feeds them breakfast and that she recently started giving S. her ADHD medicine in the morning. (Transcript , Jan. 2, page 28, line 20). She testified that after breakfast she lets the children go on the iPad for a few minutes to unwind and then she takes them outside and they wait for the bus. She testified that they have followed this routine since the children started school. (Transcript , Jan. 2, pg. 29, line 9).
The mother testified that the children's maternal grandmother helps her care for the children "whenever" needed and that she also uses a babysitter, Naomi Ashner, who cares for the children from 3:40 PM to 6:40 PM Monday through Thursday. (Transcript , Jan. 2, page 29, line 19). The mother stated that she began using Ms. Ashner in September of 2017 and that she advised the father that she had gotten a new babysitter by text message.
The mother testified that for the past ten years her primary means of communicating with the father has been by text message and occasionally email and that those methods work best because "he gets very belligerent and he can't have a civilized conversation" by telephone. (Transcript , Jan. 2, page 30, line 25). She further stated that the father "gets very hostile and angry and usually resorts to name calling" and she would "rather not subject" herself to that. (Transcript , Jan. 2, page 31, line 10).
She testified that she fully screened Ms. Ashner before hiring her and she has been pleased with her thus far. She has instructed Ms. Ashner that the children should have a routine when they come home, which includes a few minutes to unwind before calling their dad, having a snack and then immediately starting their homework while their minds are "fresh". (Transcript , Jan. 2, page 32, line 1). The mother testified that she feels a routine is important because "kids should have a sense of structure and should know that their homework comes first and they should get that out of the way". (Transcript , Jan. 2, page 32, line 19). She testified that she feels that routine is particularly important for S. because she has ADHD and consistency, routine and structure are very helpful for children with ADHD. (Transcript , Jan. 2, page 33, line 9).
The mother testified that she uses a "nanny cam" to monitor the children's activities on the computer and to make sure that they are doing their homework. She further testified that she has observed the children sending emails to the father and on the phone with the father from the nanny cam. (Transcript , Jan. 2, pg. 36, line 22). The mother testified that in March of 2017 she observed a phone call between the children and the father and that she heard the father tell S. during that conversation "don't worry, soon you're going to be living with me and soon your mother is going to be giving you the respect that you deserve and don't worry, it's not going to be that much longer". (Transcript , Jan. 2, pg. 38, line 1). She testified that she texted the father to stop telling the children that they would be living with him, that it affects their behavior with her and that it's inappropriate to tell little children where they would be living. (Transcript , Jan. 2, page 38, line 7). She testified that the father responded that "it's healthier" for the children to make their own decisions and that the children should be allowed to choose because "they should have hope". (Transcript , Jan. 2, page 38, line 16). The father later admitted to her that he continued to make those types of remarks to the children. (Transcript , Jan. 2, page 38, line 23). She testified that she has had at least three conversations with the father asking him to stop discussing where the children would live.
The mother testified that S. began taking medication for her ADHD in December of 2017. (Transcript , Jan. 2, page 40, line 3). The mother testified that before S. started taking medication the mother texted the father to let him know that she had scheduled a pediatrician appointment for S.'s ADHD. (Transcript , Jan. 2, page 40, line 19). She stated that she gave the father the time and location of the appointment, but he did not come. She further testified that she texted the father to let him know that S. went to the doctor and was prescribed the lowest dosage of ADHD medication and that she would be taking it once a day in the morning. (Transcript , Jan. 2, page 40, line 12).
The mother testified that she first discussed medicating S. for ADHD in May 2015 when she told the father that she believed S. was starting to display symptoms of ADHD and she mentioned that S. may need to be medicated. (Transcript , Jan. 2, page 41, line 3). She testified that she told the father that S. was inattentive, having trouble focusing at home and that she had to repeat things to S. The mother testified that father responded saying that he did not want S. to be medicated, that all the doctors want are "perfectly balanced kids" and that the father would not allow S. to get medicated. (Transcript , Jan. 2, page 41, line 15).
She testified that the father threatened to take the mother to court and give her a custody battle that she "wouldn't forget" if she were to medicate S. (Transcript , Jan. 2, pg. 41, line 20). She further testified that the father threatened to take her to court anytime the mother brought up ADHD medication, and that his constant threats of litigation have made it "very difficult" for the mother to make decisions in the children's best interests. (Transcript , Jan. 2, pg. 42, line 15).
The mother testified that she scheduled an appointment for S. with a neurologist, which was supposed to take place in October or November of 2017, and that the father ignored her texts about the neurologist appointment. (Transcript , Jan. 2, pg. 43, line 6). After seeing the neurologist, she scheduled an appointment with the pediatrician. The mother testified that she first discussed S.'s ADHD with the school in September of 2016 and in December of 2016 the school scheduled meetings regarding S. (Transcript , Jan. 2, pg. 43, line 12). The mother testified that she informed the father about the scheduled meetings and that S. was being evaluated for learning disabilities and the father attended the meeting and was completely involved. (Transcript , Jan. 2, pg. 44, line 13).
The mother testified that she initially "held off" on getting S. to a neurologist in 2015 because the father had told the mother that S. did not need a neurologist, called it "a waste of time" and said that he doesn't believe in it. (Transcript , Jan. 2, page 45, line 15). She stated that from the fall through winter of 2016 she observed that S.'s behavior "was out of control" and that she was "not listening, [and] starting to get bad reports in school". (Transcript , Jan. 2, page 46, line 5). She stated that she explained to the father that S. was was becoming "extremely disrespectful" and asked him to stop telling the children that they would be living with him because it was affecting S.'s behavior at home, but the father disagreed with that and said that it is healthier for children to make their own decisions. (Transcript , Jan. 2, page 46, line 12). The mother further testified that when the father texted her that if children "feel controlled it takes away hope from them", she responded that he was "out of line" having such discussions with them without discussing it with her first. (Transcript , Jan. 2, page 61, line 3). She testified that any time she initiated a discussion about the children and the father disagreed with her opinion he would call her names; in this case, he called her a "fool" and "completely oblivious".(Transcript , Jan. 2, page 63, line 8).
The mother testified that after the parties filed their respective petitions the mother had the father on speakerphone in front of the children and the father became belligerent and called the mother names in front of the children. (Transcript , Jan. 2, page 64, line 12). The mother testified that she observed the horror on the children's faces and that they looked sad and concerned and she had to take the father off speakerphone. (Transcript , Jan. 2, page 65, line 4).
She further testified that in the summer she would call the children daily when they were with their father, but it was "extremely difficult" to get in touch with them. (Transcript , Jan. 2, page 69, line 21). She testified that the father refused her request to have the children call her and instead requires the mother to call them, but she must call five or six times to speak with them for five minutes. (Transcript , Jan. 2, page 68, line 13). She stated that the father has continued to refuse her repeated request that the children call her.
The mother testified that in the last few years she has not only consented to extra parenting time in the summer, but has also offered the father extra holiday time on the Jewish holidays and has occasionally offered extra weekends as well. (Transcript , Jan. 2, page 70, line 5). She testified that she offered this extra time because it was "available time" that the children were off from school, the children missed their father and she felt that it was good for them to spend extra time with him. (Transcript , Jan. 2, page 70, line 9). She confirmed that sometimes the mother offered extra time while other times the father asked for the extra time. (Transcript , Jan. 2, page 70, line 15). Whenever the parties deviated from their Stipulation of Settlement for parenting time they would split the driving; the father would drive one way and the mother would drive the other way.
The mother testified that she was concerned that she did not learn directly from the father that he was remarrying and instead she learned from a third party that a new woman would be entering her children's lives. (Transcript , Jan. 2, page 72, line 2). She further testified that the father only informed her of the wedding when she invited him to their son's haircutting ceremony and he declined because he was getting married that day. (Transcript , Jan. 2, page 72, line 18). The mother stated that she has never been formally introduced to the father's second wife. She stated, however, that she knows that the children love their stepmother and she encourages them to make her Mother's Day cards and to give her birthday gifts and she has also taken the children shopping to get presents for their stepbrothers and for their father and stepmother. (Transcript , Jan. 2, page 73, line 12).
The mother also testified that she only learned that the father's current wife had cancer after the children told her that their stepmother had been confined to the basement during their weekend with the father. The mother asked the father about it he and informed her that his wife had been confined to the basement because she had cancer and had received radiation treatments. (Transcript , Jan. 2, page 75, line 1). The mother testified that she then reached out to the second wife and texted her well wishes and offered help if she needed anything. She testified to observing that the children "didn't seem as happy" and "seemed more anxious" because their stepmother was going through cancer and that she believes there should have been "open communication" about the stepmother's cancer rather than the mother finding out "in a back handed way". (Transcript , Jan. 2, page 76, line 13).
The mother further testified that during a recent supervised phone call between the father and the children she observed the father informing the children that their stepmother had just had surgery, that she had a tube sticking out of her neck and that her cancer had come back. (Transcript , Jan. 2, page 78, line 16). She further testified that she believes it is important for the children to have a relationship with their stepmother because she is involved in parenting and the mother wants them to have a good relationship with their family. (Transcript , Jan. 2, page 80, line 11).
The mother testified that on March 14, 2016, the parties communicated by text message and the mother told the father that whatever he was "feeding into S.'s head" had caused her to lose her "sweet daughter". (Transcript , Jan. 2, page 86, line 2). She told the father that "[a]ll the therapy in the world" wouldn't do a "damn thing" because the father was "f***ing with her head". (Transcript , Jan. 2, page 86, line 6). She stated that she wrote that to the father because he was "going against" her and she felt that sending S. to therapy wouldn't make a difference if the father undid everything by telling S. things behind the mother's back and making promises to S. (Transcript , Jan. 2, page 88, line 3).
The mother further wrote to the father that he should have spoken to her before giving S. an iPhone because "[w]hen people co-parent, they discuss things first". (Transcript , Jan 2., page 86, line 8). The father responded that he had told the mother about the iPhone "way before" and called her "vulgar, disgusting, and definitely not a woman". (Transcript , Jan. 2, page 86, line 22). The father called the mother "the worst mother ever for the emotional and verbal abuse" that she does to the children. (Transcript , Jan. 2, page 87, line 1).
The mother testified that she first became aware that the father had given S. an iPhone in February or March of 2016 when she saw her playing with the phone, and that she initially did not realize it was a working phone but subsequently learned that S. was using it to send text messages. She further testified that the phone caused S. to be late to school three to four times a week for two to three months until the mother took the phone away from her, and that on those late days S. started her day "in a very, very stressful way". (Transcript , Jan. 2, page 92, line 3). She stated that S. "wasn't happy" with her when she took the phone away from her, but S. then became more focused in the morning and got ready a little faster. (Transcript , Jan. 2, page 92, line 11).
The mother testified that there were other occasions where she raised concerns to the father about "co-parenting" with him prior to the phone incident, including in the summer of 2014 when she emailed him to discuss different summer camp options and never heard any opinion or other input from him in response. (Transcript , Jan. 2, page 96, line 23). She testified that she emailed him when S. had outgrown her preschool and was ready for kindergarten. She testified that she provided the father with information on the school that she believed would be best and the father did not provide her with any alternative school options but instead sent her a "belligerent" response stating that she was only including him in the school discussion because she was "after" his money. (Transcript , Jan. 2, page 98, line 1). She testified that the school she had described to him was a top-rated modern Orthodox-based co-ed school with a Kosher meal plan.
The mother testified that she had emailed the father about S. starting kindergarten because she "was co-parenting with him" and she "wanted to include him in a decision" because they had come to "the next step of education and [she] wanted his input". (Transcript , Jan. 2, page 111, line 4). The father never provided the mother with any alternative options and the father never objected to either S. or T. attending Y. Academy. (Transcript , Jan. 2, page 111, line 18). She further testified that the father did not contribute to tuition until the end of 2014 and that he currently pays 40% of the tuition costs. (Transcript , Jan. 2, page 113, line 5). She stated that the father goes to PTA meetings at the school, participates in any meetings about S., and is "included in everything", including emails from the principal and teachers. (Transcript , Jan. 2, page 115, 18).
The mother testified that she teaches the children the importance of having respect for authority, respecting parents, kindness, compassion, the importance of taking school seriously and of listening to one's parents, stepparents and grandparents. (Transcript , Jan. 2, page 100, line 15). She testified that she taught S. compassion by taking S. to do a Shiva call when S.'s teacher's mother passed away. The mother wanted S. to learn the importance that life isn't always perfect and that one must have compassion toward others. (Transcript , Jan. 2, page 101, line 4). The mother also denied the father's statement to her that she emotionally and verbally abuses the children.
The mother testified that the father had advised her that he was going to give S. a phone but it wasn't an active phone, it was a device used for listening to music and looking at pictures, like an iPod. (Transcript , Jan. 2, page 103, line 9). The mother returned the phone to S. about one month after she took it away and told S. that she could not use the phone in the morning while she was getting ready for school because it was a distraction. (Transcript , Jan. 2, page 103, line 22). S. had the phone back for nearly one year until the mother saw S. starting to text on the phone. She confiscated the phone and discovered that S. was using the phone to text her father. (Transcript , Jan. 2, page 104, line 6). She testified that she confiscated the phone because the father was texting S. "at all hours of the night", including at 3:20 AM, at 9:30 PM when she was trying to go to bed and at 7:00 AM when the mother had specifically asked him not to call the house because it was their "crunch time" for getting ready for school. (Transcript , Jan. 2, page 104, line 15). The mother then realized that it was "completely out of control" and that there were no limits and no boundaries. (Transcript , Jan. 2, page 104, line 25). The mother testified that the father had texted S. about medicine, telling her that he didn't believe she needed any medicine and that he "had faith" in her. (Transcript , Jan. 2, page 105, line 10).
The mother denied the allegation that she has allowed the children to view pornography in her home. (Transcript , Jan. 2, page 106, line 17). She testified that she monitors the children's activity on their computer devices including by observing the children on the "nanny cam". (Transcript , Jan. 2, page 108, line 18).
The mother testified that S. is generally assigned homework on Monday through Thursday, with light homework assigned over the weekend. Her homework routine consists of doing her homework after she comes home from school; the babysitter helps her with whatever she can't do on her own and after the mother gets home from work she helps S. with her Hebrew homework and reviews S.'s English homework with her. (Transcript , Jan. 2, page 116, line 3). The mother testified that the children also complete homework when they are with their father. (Transcript , Jan. 2, page 116, line 25). She testified that she gives the children "summer homework" consisting of about 20 minutes of work and instructs them to write in a journal "to keep them on top of things so they don't forget". (Transcript , Jan. 2, page 117, line 8). She stated that she has suggested to the father that he do the same, but he has not. (Transcript , Jan. 2, page 117, line 8). She testified that she felt it was particularly important for S. to do this summer homework because S. "struggles a little bit in school" and she wanted to keep "things fresh in her mind". (Transcript , Jan. 2, page 118, line 18).
The mother testified that before the children attended Y. Academy she would send the father detailed emails explaining the children's routine including their sleep schedule, what they ate, and what they liked and didn't like. On February 14, 2012, the mother emailed the father at his request, and provided a detailed explanation of the children's routines, including what they ate for breakfast, lunch and dinner. (Transcript , Jan. 2, page 120, line 6).
The mother testified that on February 9, 2012, she emailed the father requesting that they coordinate so that the children would have the same rules in each of their respective houses, but the father has denied this request. (Transcript , Jan. 2, page 123, line 10). She further testified that she has learned that the father has allowed the children to eat foods like marshmallows and grapes even after the mother informed him they were "dangerous" foods and choking hazards. (Transcript , Jan. 2, page 125, line 1).
The mother testified she has "always" kept the father "informed of what was going on with the kids", like the things they liked to eat or small habits or things that she believed would be relevant to him. (Transcript , Jan. 2, page 126, line 4). In contrast, the father has not informed her of the children's whereabouts while with him unless they were going away on vacation.
On the Court's inquiry, the mother testified that she has emailed the father asking him to make sure the children do their Hebrew homework on the weekends, but she has not asked him to reach a joint routine or joint plan for doing homework, nor has she asked him to contact her so that they could put forward a joint plan on bedtime. (Transcript , Jan. 2, page 129, line 3). She testified that she contacted the father to request that they coordinate on a joint plan to administer medicine to S. and the father did not reply. (Transcript , Jan. 2, page 132, line 13). The mother testified that "whenever" she suggests something, the father responds by telling her that she doesn't know what she is doing, that she's the worst mother, and that everything is her fault. (Transcript , Jan. 2, page 130, line 2).
The mother testified that the father has not made much of an effort to see the children since the Court ordered that the father's parenting time be supervised. She testified that it took more than 80 text messages between the father, the supervisor and the mother to arrange the most recent supervised visit with the father, which took place the Sunday before the hearing. She further testified that the father kept changing the agreed-upon visit time and insisted on having the supervisor's cell phone number, even though the supervisor had asked the mother not to give out her phone number. (Transcript , Jan. 2, page 154, line 1).
She further testified that the parties initially agreed that English would be the only language spoken during the supervised visits but then the father said that he was bringing his mother to the visit and that she would be speaking Hebrew to the children. The mother stated that she had been concerned that if the grandmother spoke Hebrew to the children during the visit that she would try to manipulate them. (Transcript , Jan. 2, page 155, line 18).
The mother learned from the supervisor that the father planned to take the children and the supervisor to Long Island even after the parties agreed that parenting time would take place in New Jersey. (Transcript , Jan. 2, page 157, line 11). The mother was concerned that if the parenting time took place at the father's home then the father's family members would be all over the house and there would not be adequate supervision. (Transcript , Jan. 2, page 158, line 1). The mother testified that in the week prior to that supervised parenting time she spent an hour wrapping gifts for the children to give to their father, their brother, their stepmother and grandmother.
The mother testified that the parties mainly disagree on medical decisions. For example, if the mother takes the children to the doctor and does not feel comfortable with the doctor's opinions she will change doctors, while the father has told her that doctors don't always know what they are doing, that doctors are not always up to date and that they must be their own medical advocates. (Transcript , Jan. 2, page 158, line 19). The mother testified that in the last six months the father had requested that the mother give S. enemas and to have S.'s colon x-rayed. (Transcript , Jan. 2, page 165, line 10). S. has never taken any medication for constipation in the past. In the prior six months S. was taken to a pediatrician and to a urologist and the father attended the urologist appointment. (Transcript , Jan. 2, page 166, line 10). At the appointment they were discussing bedwetting and the father asked the doctor about constipation being related to bedwetting, but he did not discuss the issue of enemas. (Transcript , Jan. 2, page 167, line 6). S. was not treated for constipation.
The mother testified about an incident that occurred on Christmas Day in 2017 during which S. became very upset and aggressive towards the mother and started hitting her and punching her with closed fists. She testified that S. then came running at her with a freshly sharpened pencil. The mother testified that she had to take S. off her, told her to calm down and to stop hitting her and that S. called her father. The mother stated that she did not hear what S. told her father, but the mother also called the father and said that S. was upset because she had just attacked the mother and that the mother did not hit S. The police then arrived at her house and told the mother that the father had called the police. The mother showed the police that her arm was all red and explained to them that S. has ADHD and ODD and has just started taking medication but does not take it on the weekends. She explained that S. "just lost control, she got very upset," and that she has "issues with controlling her outbursts". (Transcript , Jan. 2, page 164, line 1). The mother testified that S. and her father spoke again that morning and that she heard the father tell S. that it wasn't her fault, it was the mother's fault. (Transcript , Jan. 2, page 164, line 19).
At the end of the January 2 hearing the Court issued a new temporary order of protection, which required the father to stay away from the children except for supervised parenting time as agreed to by the parties in writing. The father was to refrain from all communication with the children except during exercised parenting time or on the telephone supervised by the mother. The mother was required to have the children call the father daily between 7:00 PM and 8:00 PM except for Fridays. None of the father's relatives, friends or acquaintances were permitted to accompany the father during his supervised parenting time and all supervised parenting time was to take place in New Jersey. All communication with the children by the father, the father's relatives, the father's friends and the father's acquaintances was to be in English.
On the continued direct examination of the mother on March 5, 2018, the mother testified that after the urologist appointment the mother asked the father if he wanted her to fill the prescription prescribed for S.'s bedwetting and the father told her no. The prescription was not filled after that conversation. (Transcript , March 5, page 10, line 2). In August of 2017 after the urologist appointment the mother discussed with the father that she was against the administering of enemas to S. The mother broke her promise to S. not to tell anyone about the enemas by discussing it with the father because she felt that her daughter's safety was at risk, which "took precedence" over keeping her promise to her daughter. (Transcript , March 5, page 12, line 10).
The mother testified that S. was evaluated by the Bergen County Special Services; she was tested for learning disabilities and any behavioral issues and the school sent her to a psychiatrist for an evaluation. She was thoroughly assessed and there was extensive testing to make sure there were no learning issues. The evaluation dated December 6, 2016 diagnosed S. with ADHD. The mother subsequently discussed the evaluation findings with the father and told him that S. would most likely have to start medication because she has ADHD. (Transcript , March 5, page 18, line 1). The father responded that he would never medicate her and that if the mother wanted to medicate her he would give the mother a custody battle in court that she was "never going to forget". (Transcript , March 5, page 18, line 19).
The mother testified that she had started medicating S. and had observed that since the last court date her grades were "improving tremendously" and the mother was "getting a lot of positive feedback from the school" and "overall" S. is "just performing much better in school" and "getting along better with her peers and she's just in better spirits". (Transcript , March 5, page 19, line 4). She testified that she generally avoids giving S. the medication on the weekends.
The mother testified that since the previous time the parties had appeared in court the children had been visiting with their father every week. She stated that she had initially been directly coordinating with the supervisor but after the father kept changing plans they switched to group texts so that everyone would be on the same page. The mother testified that in the past few weeks the father's parenting time with the children had been on Saturday nights because the father said that Saturday night is best for him because "Sunday[ ] is his family day and that he can't leave his wife at home with three little kids". (Transcript , March 5, page 22, line 18). She testified that she coordinates with the father as to activities for his parenting time.
The mother testified that she is asking the Court for sole custody of the children and to resume holding the father's parenting time on weekends or alternating weekends, with the phone calls to remain supervised. (Transcript , March 5, page 36, line 19). The mother testified that she feels that a lot of the "damage" occurs during the father's phone calls. The mother testified that she can correct and manage badmouthing if the father only badmouths her on the weekends.
The mother testified about the incident surrounding the father's violation petition filed against the mother. The mother testified that the children were originally supposed to go to their cousin's engagement party on a Tuesday, a school night. She further testified that on the prior Sunday evening the father was supposed to return the children as regularly scheduled, but at the children's request, the mother allowed them to stay out a little bit later. She stated that the father continued to the call the mother and the time of the children's return kept getting later until eventually the father told the mother that they were at a wedding.
She further testified that the children were not returned until 11 PM and that they did not end up going to sleep until close to 11:45 PM. (Transcript , March 5, page 39, line 1). She stated that she did not want to let the children go to the engagement party on Tuesday night because they had already gone to the wedding/engagement party on the prior Sunday night and she did not want the children going to bed so late on another school night. The mother testified that the children woke up very late the Monday morning after their late night and she observed that the children did not want to get out of bed; they were cranky and moved very slowly. (Transcript , March 5, page 43, line 16). She testified that when she told the father that the children would not be attending the Tuesday night engagement party the father said that it wasn't "fair", and he had already told the children about the party and already arranged to pick them up from school. She stated that the children ended up going with their father to the engagement party on the mother's condition that they would have to be home no later than 10:00 PM, and the children were returned on time that night.
On cross-examination by the father's counsel, the mother testified that she did not learn the children were at a wedding/engagement party on the Sunday evening until after the father had already kept them late by over an hour. The mother testified that the father told her that the party on Sunday evening had been a "wedding and an engagement party". (Transcript , March 5, page 50, line 20). The mother didn't recall that the father had texted her earlier Sunday night and advised her that they would be going to a wedding. (Transcript , March 5, page 52, line 6). The mother confirmed that the party on the following Tuesday evening was an engagement party.
The mother testified that she would "always welcome" the father's input but she feels that she makes better decisions for the children and that she should be the sole custodian. (Transcript , March 5, page 52, line 17). She stated that she would not object to the father having input before she makes the final decisions or his having access to their educational or health records. She stated that she would like the alternating parenting time with the father to resume, where he would pick up the children from school on Friday and return them to the mother's house on Sunday evenings around 8:00 PM. (Transcript , March 5, page 53, line 11). The mother agreed that there would be no reason not to continue the practice of the father attending PTA meetings and participating in meetings regarding the services the children have received in school.
The mother testified that the neurologist appointment where the father did not show up was originally scheduled to be a week later and that she essentially gave the father late notice of the rescheduled appointment. She stated that while the father has never "consistently" attended the children's doctor appointments, she does typically tend to give him earlier notice of such appointments.
The mother testified that she, like the father, has used derogatory language against the father including calling him words like "stupid" or "idiot" in texts or emails but claimed that she used such language in retaliation. (Transcript , March 5, page 58, line 21). The mother disputed the father's claims that her brother bit one of the children and stated that the alleged bite was "[l]ike playing" and was a "playful" bite that did not leave marks. (Transcript , March 5, page 60, line 21).
She testified that she consented to S. taking medication for ADHD after she had consulted with S.'s pediatrician and it was decided that it would be in her best interests. She testified that the medicine is to help S. focus better in school and help her to be less impulsive. (Transcript , March 5, page 71, line 20). She testified that she has never taken S. to a doctor to be treated for constipation but confirmed that the father has previously taken S. to a doctor to be treated for constipation.
On cross examination by the Attorney for the Children the mother testified that the temporary order of protection in place prohibits the father from engaging in harassment or "basically any behavior that could hurt the children". It includes specific orders for the father as far as supervised parenting time and supervised phone calls and prohibits him from emailing or texting the children. (Transcript , March 5, page 80, line 8). The mother agreed that it would be "quite a change" if the father were to be permitted to pick up the children from school on Friday and return them on Sunday, but the mother would like that change "at some point" because the children miss their father and their siblings and the mother wants the children to have a normal life. (Transcript , March 5, page 81, line 9).
On redirect examination the mother testified that her concerns regarding unsupervised parenting time with the father would be alleviated if she were granted sole custody and she was the only parent allowed to take them for medical appointments and make medical decisions on their behalf except in extreme emergencies. The mother also stated she was concerned about the father telling the children biblical stories that the mother says have no proof of being true and she believes the father is filling the children's heads with nonsense. (Transcript , March 5, page 94, line 1).
On March 20, the next fact-finding date, the mother testified that in the evening of March 5, after the prior fact-finding, the mother initiated a supervised telephone call between the father and the children on speakerphone and the father immediately began discussing the litigation with the children. She testified that when she told him to stop discussing it he told her to "go screw [her]self" and hung up the phone. (Transcript , March 20, page 9, line 17). She further testified that the father did not pick up the phone either on the next day or the day after when the mother tried calling him with the children. She testified that when she texted the father he responded that he would not be having the supervised phone calls with the children any longer. (Transcript , March 20, page 10, line 24) She testified that she continued reaching out to him to attempt the supervised phone calls and she also reached out to the Attorney for the Children and explained what happened. On cross-examination by the father's counsel, the mother testified that the father had spoken to the children on a mostly daily basis since March 7, and she confirmed that although she has "nanny cams" in her home, the March 5 phone call was not recorded. She testified that the call "happened so fast" and she "didn't expect him to be out of line like that". (Transcript , March 20, page 14, line 11).
The father's counsel then called the father as a witness in opposition to the mother's case. The father testified that the March 5 phone call was very short, that he responded to questions from the children by saying that he didn't know "what will be", that the mother told him he could not discuss the litigation with the children and he responded that he wasn't discussing the children with her and then he hung up. (Transcript , March 20, page 19, line 8).
The father further testified that both parents have bought Miralax several times in the past and have both spoken to S.'s pediatricians about constipation and they have also discussed fiber "many times". (Transcript , March 20, page 21, line 6). He testified that he emailed the mother on June 26, 2016 about S.'s constipation and that the mother had agreed to continue using the Miralax.
The father testified that the parties had communicated about the iPhone before he gave it to S. in May of 2014. He testified that he thought the phone would help S. to communicate with both parents, that the phone only worked through WiFi and that he told the mother the phone would help S.'s spelling because she would be texting both parents. (Transcript , March 20, page 26, line 14). He further testified that the mother had agreed that it would be a good idea and she asked the father to help her set it up.
The father also testified that his wife had received radiation treatment for cancer three and a half years before the fact finding. He testified that he had discussed his wife's treatment and "seclusion" with the mother "a week or two" before his wife received the radiation treatment and that the children were in their mother's care at the time they had this discussion. (Transcript , March 20, page 52, line 11). He testified that the children stayed with him a week and a half after the father's wife had finished her five days of seclusion.
The father also testified about an incident that occurred at one of the children's Siddur plays in March or April of 2017. He testified that he had an interaction with the mother's brother, Y. F., that he started talking to Mr. F. while the brother's children were running around and S. and T. were sitting with the father. He testified that he observed the mother approach the table where they were all sitting, and the mother told the children that she didn't want them sitting next to her brother or talking to her brother or his kids. (Transcript , March 20, page 61, line 18). The father testified that the mother never told him why she did not want the children interacting with her brother or his children, but the father told the mother that he didn't believe the parties should involve their children in not being able to talk with their cousins. (Transcript , March 20, page 69, line 7).
He testified about the December 25, 2017, incident when the father called the police to the mother's home. The father testified that S. called him crying, and that when he later told the mother that S. had called him scared and crying, the mother responded that S. had been acting out. (Transcript , March 20, page 73, line 22). He stated that he called the police because he had tried to get in contact with S. several times and the phone kept being hung up on him. He decided that it was "the right thing to do" out of concern for S.'s safety. (Transcript , March 20, page 76, line 11).
The father testified that after the parties' judgment of divorce he exercised one month of parenting time in the summer for the years 2013 through 2016. He further testified that in October of 2016 the parties had agreed that the father would have the children for the second half of the summer in 2017 and that on May 25, 2017 he learned in a text exchange that the mother was "breaking" their agreement. (Transcript , March 20, page 85, line 9). The issue of the father's parenting time in 2017 was subsequently resolved in court. The father further testified that the mother had told him the children would stay with her for the entire summer of 2018.
At the continued fact finding on April 5, 2018, the father's counsel continued his direct examination of the father as a witness in opposition on the mother's direct case. The father testified that he and the mother communicated by email on one occasion where the mother called the father an ethnic slur and other derogatory names. The father testified that he has asked the mother not to use such words and language on several occasions. (Transcript , April 5, page 14, line 2). He testified that on July 10, 2017 the parties had a text message exchange discussing that the mother had not informed the father that she had hired a new babysitter, Ms. A. The father testified that he only learned that there was a new babysitter after speaking with the babysitter and not from the mother.
The father also testified about a conversation with the mother discussing Jewish law, wherein he stated to her that by Jewish law a baby's religious status is determined by the mother, but all customs are determined by the father. (Transcript , April 5, page 36, line 9). He testified that the mother responded by stating that the children "are not Sephardic" and that they were not going to keep the father's customs. (Transcript , April 5, page 35, line 19).
The father also testified about an incident that occurred in May of 2017 at one of T.'s basketball games in Teaneck, New Jersey. The father testified that he had remarked to S. that she wasn't greeting her stepbrothers as she usually did, and the mother then inexplicably responded with derogatory language against the father. (Transcript , April 5, page 44, line 24). He testified that the parties had discussed the children viewing pornography more than once after the Court's Final Order of Custody and Parenting Time. Specifically, he testified that in March or April of 2016 the parties had discussed the issue with S.'s therapist Dr. S., and again in May 2017 with the social worker G.C. The father had remarked that it was "ridiculous" that the mother had not blocked the content of what the children were viewing on the computer and the mother had responded that she would block everything that the children were viewing. (Transcript , April 5, page 49, line 6).
On cross examination by the mother's counsel, the father confirmed that the conversation with the mother about the children not following Sephardic traditions took place on December 25, 2017 and that when the father had earlier testified about events occurring on that date, he had not mentioned any such conversation with the mother. He also testified that following entry of the parties' final judgment of divorce the mother gave the father extra holiday time in addition to what was in the parties' Judgment of Divorce, including allowing the father to have the children on Jewish holidays even when it was her time with the children. The father further confirmed that the father observed such holidays in conformance with Sephardic traditions, and that the mother is Ashkenazi, not Sephardic, so that when the children celebrate Jewish holidays with the father they are exposed to the Sephardic traditions. (Transcript , April 5, page 54, line 8).
The father confirmed that in 2016 the mother agreed to the father having mid-week parenting time with the children but asked that it start after 5:30 PM so that the children could finish their homework. He also confirmed that for the father's convenience the mother subsequently allowed him to pick up the children at 5:15 versus 5:30 PM. The father agreed that "it wasn't nice" that when the mother advised him that she had stayed up studying with S. until 9:15 PM, he responded by telling the mother that she should not "drool over [herself]". (Transcript , April 5, page 75, line 12).
On June 21, 2018, the father's counsel questioned him in a supplemental direct examination of the father as a respondent on the mother's direct case. The father testified that he had started seeing a psychiatrist to address his communications with the mother and to learn how to speak with the children. He testified that he hopes to see the psychiatrist 2 to 3 times per month.
On cross-examination by the mother's counsel, the father testified that he still had not obtained a life insurance policy for the children since the prior court appearance. He also admitted that a text message exchange between the parties in which the mother wrote that she hoped that S. would not get kicked out of school due to her possible attention deficit issues represented her attempt to communicate with him about an issue that concerned her.
The father further testified that it would have been appropriate to communicate with the mother about his wife's Cancer diagnosis and treatment so that the mother could console and comfort their children if they were upset or anxious about the matter, and he agreed that it would be in the children's best interest for the father, when seeking additional parenting time, to discuss that issue with the mother first before discussing it with the children. The father testified that going forward, if he wants additional or extra parenting time, he would discuss the matter first with the mother before discussing with them.
The father testified that with respect to the December 25, 2017 incident, he called the police because he believed that he had no better option. Following conclusion of the father's testimony, counsel and the parties stipulated on the record that the supervisor of the father's parenting time has raised no issues as to any incidents having occurred during the father's supervised parenting time.
At the end of the fact finding the Court granted the application by the father's counsel to modify the temporary order of protection so that the father could resume unsupervised parenting time as set forth in the parties' Judgment of Divorce, while also granting the request of the mother's counsel to keep the provision in place that prohibits the father from disparaging the mother, discussing the litigation, and otherwise making improper statements to the children. The Court also granted the mother's request to keep the provision of the temporary order of protection that requires the father's telephone calls to be supervised. The Court modified the temporary order of protection to consist of a refrain from crimes and hazardous acts against the children, a prohibition against the father or a third party disparaging the mother to the children or discussing the pending or prior litigation with the children, and a prohibition of communication by text, written or telephone calls except as supervised by the mother.
WRITTEN SUMMATIONS
Counsel for both parties and the Attorney for the Children submitted written summations. Counsel for the father argues that considering the totality of the circumstances there has been a change of circumstances and that the father is the only appropriate choice for custodial parent of the children. Counsel for the mother argues that the father's application seeking sole custody of the children and his pending violation petitions should be denied in their entirety, and that, in contrast, the mother's application for sole legal custody of the children should be granted. The Attorney for the Children argues that in this case, joint custody or joint parental decision making is an "impossible solution" and that the mother should be awarded sole legal and residential custody of the children.
IN-CAMERA EXAMINATIONS
In-camera examinations of the children were conducted. The Court will not reveal the substance of the interviews with the children other than to state that the Court has considered the testimony of the children and has given such the appropriate weight in reaching its decision.
DISCUSSION
THE PARTIES' RESPECTIVE MODIFICATION PETITIONS
Modification of an existing custody or visitation order is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child[ren]". ( Lamarche v. Rooks , 142 AD3d 707, 708 [2d Dept. 2016] ; Demille v. Pizzo , 129 AD3d 957 [2d Dept. 2015] ). "The best interests of the child[ren] are determined by a review of the totality of the circumstances". ( Lamarche , supra , 142 AD3d at 708 ; Demille , supra , 129 AD3d at 957 ). "[F]actors to be considered include whether the alleged change in circumstances indicates that one of the parties is unfit, the nature and quality of the relationships between the child and the parties, the ability of each parent to provide for the child's emotional and intellectual development, and the effect of awarding custody to one parent on the child's relationship with the other parent". ( Vargas v. Gutierrez , 155 AD3d 751, 752—53, 64 N.Y.S.3d 76 [2d Dept. 2017], leave denied , 31 NY3d 901 [2018] ; see also E.V. v. R.V. , 130 AD3d 920 [2d Dept. 2015] ). Furthermore, "[s]ince weighing the factors relevant to any custody determination requires an evaluation of the credibility and sincerity of the parties involved, the hearing court's findings are accorded deference, and will not be disturbed unless they lack a sound and substantial basis in the record". (Vargas , supra , 155 AD3d 753 ; Lamarche , supra , 142 AD3d at 708 ; Demille , supra , 129 AD3d at 957 ).
In this case, the evidence adduced at the fact-finding establishes that a substantial change in circumstances has occurred since the parties' Stipulation of Settlement and Judgment of Divorce dated March 8, 2011 awarded them joint legal custody, such that modification of the current custody arrangement is necessary to protect the best interests of the children. While the current custody order provides for joint legal custody, the Court finds that in this case the parties' relationship has deteriorated to such a degree that joint legal custody is no longer feasible. (See Moore v. Gonzalez , 134 AD3d 718, 719-20 [2d Dept. 2015] ). "Joint custody is inappropriate where, as here, the parties are antagonistic toward each other and have demonstrated an inability to cooperate on matters concerning the children". ( Moore , supra , 134 AD3d at 720 ). The Court finds that in this case, the parties' relationship has deteriorated to the point that they do not engage in joint decision making, they are unable to communicate outside of text or email and even still, when they communicate, they are unable to do so respectfully and effectively. (See Zall v. Theiss , 144 AD3d 831, 832-33 [2d Dept. 2016] ["the continued deterioration of the parties' relationship to the point that they can only communicate by email or text message is a change in circumstances warranting a change in the joint custody arrangement"] ).
Accordingly, the Court finds that under the totality of the circumstances it would be in the best interest of the children for the Court to modify the current custody arrangement from joint legal custody and to grant the mother sole legal custody. The Court assessed the parties' demeanors and attitudes over the course of nine days of testimony and finds that the evidence establishes that the mother has done a far superior job than the father in fostering a relationship between the children and the other parent. This is particularly true given the father's admission that he has repeatedly denigrated the mother and undermined her parenting efforts. (See Vanita UU. V. Mahender VV. , 130 AD3d 1161, 1164 [3d Dept. 2015] [Family court properly granted mother's modification petition to grant her sole custody where parties previously shared joint legal custody, based on father's documented efforts to, among other things, denigrate the mother and undermine her role in the child's life] ).
The Court is particularly mindful of the father's admission that he texted S. behind the mother's back and told her that he believed she didn't need any ADHD medication and that they should instead pray to God. There are also the father's numerous statements to the child about the children "soon" living with the father. Likewise, the father admitted that he administered enemas to S. without first discussing this invasive protocol with the mother and without any recommendation to do so from any of S.'s treating physicians. The Court is also mindful of the father's dismissal of the doctor's recommendation, as well as the father's poor parenting skills.
The Court finds that the mother is better at abiding by court orders and better at abiding by Court directives in general, as evidenced by the repeated occasions where the Court was required to admonish the father for his inappropriate demeanor and conduct while testifying in Court. This is further supported by the father's repeated disregard for court orders and directives not to discuss the litigation with the children, even after an order of protection prohibited him from doing so.
While the testimony and evidence establishes instances where the mother also exhibited poor parenting judgment, including her admission that she has used derogatory and inflammatory language towards the father, this Court finds that, on the whole, the mother is mentally and emotionally healthier, abides more by court orders, is more realistic as to parental roles and is more grounded than the father, and thus finds that it is appropriate to modify the current custody arrangement so that the mother is granted sole legal custody and sole decision-making authority over the children.
In contrast, the Court finds that the father has failed to establish a change in circumstances warranting a modification of the current custody arrangement with respect to changing residential custody from the mother to the father. To the contrary, the Court finds that the father interfered in the relationship between the mother and the children in a manner inconsistent with the best interests of the children, based on his own admissions that he inappropriately discussed the current and prior litigation with the children, including inappropriate discussions with the children about living with him in the future in spite of and in direct contravention of the mother's specific requests that he cease such inappropriate communications. ( Edwards v. Edwards , 161 AD3d 979, ––– N.Y.S.3d –––– [2d Dept. 2018] ).
The father's modification petition consists of 54 paragraphs of alleged changes warranting a modification of the current custody arrangement. The Court finds that the father did not testify credibly as to allegations from his modification petition that the child S. was fearful to go home and threatened to harm herself if she were not permitted to stay with the father. The Court disregards the numerous allegations in the father's modification petition that are conclusory and vague, including the allegation that the mother "emotionally harms" the children. The father provided specific information about the mother's alleged conduct with respect to S.'s ear infection, but then failed to credibly testify or otherwise establish that such allegations were true. Likewise, the father failed to prove that S.'s bedwetting condition constitutes a change of a circumstance warranting a change in residential custody from the mother to the father. While the father also alleged that the children viewed pornography in the mother's home, the Court finds that the father failed to establish the truth of those allegations during the fact-finding.
The Court notes that while the father's modification petition includes allegations that the mother called S. "out of control" and called her "a monster", it was then revealed during the fact finding that the father regularly and repeatedly went behind the mother's back and undermined her parenting efforts (particularly with S.), which only worsened any tension between the mother and S. The father's allegations that the mother has not adequately addressed S.'s need for psychological counseling was disproved during fact finding, when it was established that S. has been treated by multiple counselors and has also been extensively evaluated in school.
While the Court finds that the mother shares in culpability for the deterioration of the parental relationship, including her conduct toward the father when he tried to drop off the children following Hurricane Sandy, the Court finds that the mother is still more likely than the father to foster the relationship between the children and the father as the noncustodial parent. (Edwards , supra , 161 AD3d at *1).
Furthermore, the allegations from the father's modification petition that the mother excluded him from decisions on education were disproved during the fact finding when the father admitted that the mother has strived to keep the father informed and involved in decision-making regarding the children's health, education and general welfare, even when her efforts were met with indifference or belligerence from the father. The Court notes in particular that the father's initial testimony that the mother did not involve him in decisions regarding the children's education was wholly contradicted by written evidence and testimony that when the mother wrote him to request his input on which school to enroll the children, the father provided no alternatives to the school she suggested and instead dismissed her efforts to reach out to him on the topic.
Accordingly, the Court finds that under the totality of the circumstances there has been no change in circumstances warranting a modification of residential custody from the mother to the father. The father's modification petition is therefore dismissed.
With respect to the mother's modification petition, the Court finds, as discussed above, that under the totality of the circumstances it would be in the children's best interests for the mother to have sole legal custody and for residential custody to remain with the mother. However, the Court finds that the evidence adduced during the fact finding establishes that there is no longer a need to limit the father's parenting time with the children to supervised visitation. The Second Department has held that "[a] non-custodial parent is entitled to meaningful visitation, and the denial of that right is so drastic that it must be based on substantial evidence that visitation would be detrimental to the welfare of the child Supervised visitation is appropriately required only where it is established that unsupervised visitation would be detrimental to the child The determination of whether visitation should be supervised is a matter left to the trial court's sound discretion, and its findings will not be disturbed on appeal unless they lack a sound and substantial basis in the record". ( Mikell v. Bermejo , 139 AD3d 954, 955, 31 N.Y.S.3d 581, 582—83 [2d Dept. 2016] [internal citations omitted ]; see also Spencer v. Killoran , 147 AD3d 862, 862—63, 46 N.Y.S.3d 658, 659 [2d Dept. 2017], leave to appeal dismissed , 29 NY3d 994 [2017] [trial court properly granted petitions to modify mother's parenting schedule to limit her to supervised visits when petitioners, the mother's cousins, had been awarded custody of the children due to the mother's misuse of alcohol, mother had temporarily been allowed unsupervised, scheduled visitation with the children, and the cousins subsequently filed modification petitions following mother recently testing positive for alcohol use] ).
In this case, while the father has demonstrated lack of good judgment on multiple occasions, particularly with respect to his communications with the children and the mother, the Court finds that it has not been established that unsupervised parenting time would be "detrimental to the welfare of the children". In fact, the mother admitted that the father should be permitted to resume unsupervised parenting time with the children. Furthermore, the father testified during the final fact-finding date that he had begun counseling to learn how to appropriately communicate with the mother and with the children.
Accordingly, the mother's modification petition is granted to the extent that the mother is granted sole legal custody of the children, and is otherwise denied, except for the following modifications which this Court deems to be in the best interests of the children:
While the father did not credibly testify or otherwise establish that he reasonably believed S.'s life was ever in danger, the Court finds that the evidence adduced at trial indicates that the deterioration of the parties' relationship has negatively impacted the emotional, mental and overall wellbeing of both children, and further finds that it would be in the best interests of both children to undergo counseling with a New York State licensed social worker or a New Jersey licensed social worker to discuss and deal with their parents' relationship and any concerns they may have regarding their parents and their respective relationships with each parent.
The Court further notes that while there has been no change in circumstances warranting a modification of the parenting schedule from the current custody and parenting time arrangement, given the parents' established practice of each taking one month during the summer, it would be in the children's best interest to modify the current court-ordered parenting time arrangement to comport with that established practice.
THE PARTIES' RESPECTIVE VIOLATION PETITIONS
The father filed two successive violation petitions, arguing that the mother violated the temporary order of protection by first giving the father permission to take the children to a midweek engagement party, then changing her mind and refusing to allow them to attend, then changing her mind again and permitting the children to attend the party with the father. The father also broadly alleged that the mother told the children that the father was evil and "other negative things" and further alleged that the mother took S.'s iPod because S. texted the father on it and hung up on the father twice in front of the children. The Court finds that the father failed to establish that the mother violated the order of protection. Accordingly, the father's violation petition dated May 2, 2017, is dismissed.
In the father's second violation petition he vaguely and broadly alleged that the mother made certain statements to the children including telling the parties' son T. that the father "poisons his mind". The father also alleged that on June 3, 2017 the mother checked the children for wires to see if the father was recording them. The father admitted during the fact-finding that this violation petition was based entirely on hearsay allegations and the Court further finds that the father failed to otherwise establish that the mother checked the children for wires on June 3, 2017.Accordingly, the father's violation petition dated August 16, 2017, is hereby dismissed.
The mother also filed a violation petition against the father, alleging that he violated the temporary order of protection by administering "daily" enemas to S. in direct contravention of recommendations by S.'s treating physicians, and that such conduct constituted a hazardous act that created an unreasonable risk to the health, safety or welfare of S. as well as "reckless endangerment" of S. While the mother's violation petition alleges the "daily" and "regular" administering of enemas to S., with letters from S.'s physicians discussing the potential risks of "regular" enemas, the Court finds that the mother failed to establish that the father administered "daily" and/or "regular" enemas to S. The Court finds that the father failed to credibly testify as to the total number of enemas administered: the father testified that only two enemas were given, while he wrote to the mother that S. missed "most of the time" while administering enemas to herself. Accordingly, the Court finds that the father likely administered more than two enemas in total to S. However, the mother failed to establish that the father administered "daily" or "regular" enemas to S. over any extended period. While the father certainly exhibited poor judgment in failing to first discuss with the mother the protocol of administering the enemas, the mother failed to establish that the father's conduct was a hazardous act that created an "unreasonable risk" to S.'s health, safety or welfare. Furthermore, contrary to the mother's allegations, the Court finds that there was no competent evidence introduced at the fact-finding to establish that the father continued administering enemas to S. after the mother confronted him about it. Accordingly, the Court finds that the mother failed to establish that the administering of enemas violated the order of protection.
The mother's violation petition also included allegations that the father improperly had the mother served with court papers while the mother was waiting for the school bus with the children and made improper statements to the children about the litigation in violation of the temporary order of protection. The mother failed to establish that the father served her with papers at the bus stop with the intent to shame her in front of the children and, furthermore, the mother failed to establish that such conduct constituted the father's "discussing" the litigation or Court matters with the children. Accordingly, the mother's violation petition is hereby dismissed.
THE MOTHER'S FAMILY OFFENSE PETITION
The mother's family offense petition alleges that the father committed the family offenses of assault in the second or third degree and reckless endangerment, based on allegations that the father "began an extremely dangerous and invasive practice of administering daily [or multiple times per week] enemas to S." as a protocol to treat her bedwetting. The mother further alleges that the father's alleged course of conduct constituted "reckless disregard" for S.'s health, safety and wellbeing, and violated S.'s right to privacy. The mother annexed letters from two of S.'s treating physicians addressing the protocol of administering "frequent" enemas.
"The allegations in a family offense proceeding must be ‘supported by a fair preponderance of the evidence’ The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court's determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed if supported by the record". ( Johnson v. Johnson , 146 AD3d 956, 956 [2d Dept. 2017] ).
In this case, the mother failed to establish that the father committed either the family offense of assault in the second degree or assault in the third degree, because there was no evidence that the father caused S. to suffer a serious physical injury as required for assault in the second degree, or to suffer physical injury as required for assault in the third degree. ( Chigusa Hosono D. v. Jason George D. , 137 AD3d 631, 632 [1st Dept. 2016] ; see also Penal Law §§ 10.00[9] [defining ‘physical injury’] and 10.00[10] [defining ‘serious physical injury’]; see also Campbell v. Campbell , 123 AD3d 1123 [2d Dept. 2014] ).
A person commits Reckless Endangerment in the Second Degree as defined by Penal Law § 120.20 when he "recklessly engages in conduct which creates a substantial risk of serious physical injury to another person". ( Penal Law § 120.20 )(emphasis in original). In this case, the mother failed to establish that the father committed the family offense of reckless endangerment because she failed to establish that the father's conduct, with respect to administering enemas to S., "created a substantial risk of serious physical injury" to S. [See Riordan v. Riordan , 128 AD3d 704, 705 [2d Dept. 2015] ; c.f. Lamparillo v. Lamparillo , 84 AD3d 1381 [2d Dept. 2011] [father committed the family offense of reckless endangerment in the second degree where evidence established that the father left his gun on the kitchen table while he took a shower, that during that time the parties' five-year-old son handled the gun with the gun unloaded and the bullets left next to the gun, and that when the father returned to the kitchen he showed the child how to load the gun with ammunition] ). Indeed, the mother failed to establish that the father administered enemas to S. "daily" or "multiple times per week", and, even assuming the father had administered "daily" enemas to S., the mother failed to establish that such conduct created a substantial risk of "serious" physical injury to S. Accordingly, the Court finds that the evidence adduced at the fact finding does not support the issuance of an order of protection based on the mother's family offense petition and the mother's family offense petition is hereby dismissed.
The Court has searched the statewide registry of orders of protection, the sex offender registry and the Family Courts warrant and child protective records and has considered and relied upon the above noted results of these searches in making its decision.
Accordingly, IT IS HEREBY ORDERED that the mother's modification petition is granted to the extent that the mother shall have sole legal custody of the children giving her sole decision-making authority on all major decisions regarding the children's health, welfare, education, religion and parenting; and
IT IS HEREBY FURTHER ORDERED that the mother shall have sole residential custody; and
IT IS HEREBY FURTHER ORDERED that the father shall have parenting time with both children on every other weekend with pick up from school on Friday afternoon until drop-off Sunday evening at 7:30 PM at the mother's residence in New Jersey, and
IT IS HEREBY FURTHER ORDERED that the parties shall adhere to the following parenting time schedule for religious holidays, which supersedes the father's regular parenting time schedule:
• For Rosh Hashanah, the father shall have the children for parenting time in odd years, and the mother shall have the children in even years;
• For Yom Kippur, the father shall have the children for parenting time in even years, and the mother shall have the children in odd years;
• For Sukkot, the father shall have the children for parenting time for the first 4 days of the holiday in odd years and shall have the children for parenting time for the last 5 days of the holiday in even years, with the mother having the children for the first 4 days of the holiday in even years and the last 5 days of the holiday in odd years;
• For Chanukah, the father shall have the children for parenting time for the first 3 nights in even years and the remaining nights in odd years and the mother shall have the children for parenting time for the first 3 nights in odd years and the remaining nights in even years;
• For Purim, the father shall have the children for parenting time in even years and the mother shall have the children in odd years;
• For Passover, the father shall have the children for parenting time for the first 4 days of the holiday in even years and for the last 4 days of the holiday in odd years, with the mother having the children for parenting time for the first 4 days of the holiday in odd years and for the last 4 days of the holiday in even years;
• For Shavuot, the father shall have the children for parenting time in odd years, with the mother having the children in even years; and
IT IS HEREBY FURTHER ORDERED that the secular calendar shall be used to determine odd and even years; and
IT IS HEREBY FURTHER ORDERED that all exchanges of the children for the religious holidays (Rosh Hashanah, Yom Kippur, Sukkot, Chanukah, Purim, Passover and Shavuot), including pick-ups and drop offs, shall be two (2) hours before the holiday starts and 2 hours after the parenting time concludes; and
IT IS HEREBY FURTHER ORDERED that the father's parenting time on the religious holidays shall begin on the eve of the holiday, four (4) hours before the holiday begins, and shall end three (3) hours after the holiday is over, or as otherwise agreed to by the parties in future writing, and
IT IS HEREBY FURTHER ORDERED that if one of the aforementioned religious holidays ends on a Sunday night or a night wherein the next day is a school day and the father has the children for parenting time on that holiday, the father shall return the children directly to school on that next school day, and
IT IS HEREBY FURTHER ORDERED that if one of the aforementioned religious holidays ends on a Saturday night during a weekend when the father does not ordinarily have regular parenting time, and the father has the children for parenting time on that holiday, the father shall return the children to the mother's residence Sunday morning at 10:00 AM, and
IT IS HEREBY FURTHER ORDERED that if one of the aforementioned religious holidays ends on a Saturday night during a weekend when the mother does not ordinarily have regular parenting time, and the mother has the children for parenting time on that holiday, the father shall be entitled to parenting time with the children on the Sunday after the end of the holiday, beginning Sunday morning at 10:00 AM, with the father returning the children directly to school the next day on Monday;
IT IS HEREBY FURTHER ORDERED that the parties shall adhere to the following parenting time schedule for secular holidays, which supersedes the father's regular parenting time schedule:
• On July 4th from 9:00 AM to 8:00 PM, the father shall have the children for parenting time in odd years, and the mother shall have the children in even years;
• On Memorial Day from 9:00 AM to 8:00 PM, the father shall have the children for parenting time in even years, and the mother shall have the children in odd years;
• On President's Day from 9:00 AM to 8:00 PM, the father shall have the children for parenting time in odd years if he is not working and the children are off from school, and the mother shall have the children for parenting time in even years if she is not working and the children are off from school;
• On Labor Day from 9:00 AM to 8:00 PM, the father shall have the children for parenting time in odd years, and the mother shall have the children in even years;
• For Thanksgiving Weekend, the father shall have the children for parenting time in odd years, and the mother shall have the children in odd years;
• For New Year's, on New Year's Eve beginning at 12:00 noon on December 31st to New Year's Day at 12:00 Noon on January 1st, the father shall have the children for parenting time in even years, and the mother shall have the child for parenting time in odd years, with "even" and "odd" being measured by the year in which New Year's Eve falls;
IT IS HEREBY FURTHER ORDERED that for winter break, the father shall have the children for parenting time for the first half of the break in even years and for the second half of the break in odd years, and the mother shall have the children for parenting time for the first half of the break in odd years and for the second half of the break in even years and that in the event that the school winter break is an odd number of days, then the parent with the first half of the break that year shall have the extra day and that from that point forward, the odd day shall be awarded on an alternating basis as it arises; and
IT IS HEREBY FURTHER ORDERED that if the father elects not to exercise his parenting time during a period wherein the children's school or school substitute is closed, the father shall be responsible for one half the actual cost of any substitute program during that period; and
IT IS HEREBY FURTHER ORDERED that if the father's regular parenting time does not fall on any of the following occasions, then the father shall be entitled to at least three hours of parenting time on the father's birthday and Father's Day; and
IT IS HEREBY FURTHER ORDERED that if the father's regular parenting time falls on any of the following occasions, then the mother shall be entitled to at least three hours of parenting time on the mother's birthday and Mother's Day; and
IT IS HEREBY FURTHER ORDERED that each parent shall have one month of uninterrupted summer parenting time, with the summer period being defined as from when school ends until Labor Day, except that the parent not then exercising his or her one month of summer parenting time shall have once a week dinner visits with the children, to be exercised at the sole discretion of the parent having the dinner visit, and that the parties shall confirm in writing no later than April 1 of the subject year which month of the summer the father will have his uninterrupted summer parenting time and which month of the summer the mother will have her uninterrupted summer parenting time; and
IT IS HEREBY FURTHER ORDERED that the mother and the father shall each be entitled to a portion of each child's birthday as follows: if the child's birthday falls on a weekday, the father shall have two (2.0) uninterrupted hours of parenting time with the child; and if the child's birthday falls on a weekend, the parent who does not have parenting time on that day shall have three (3) uninterrupted hours of parenting time with the child; and
IT IS HEREBY FURTHER ORDERED that the father shall be responsible for all transportation from school on Friday afternoons and to the mother's home on Sunday evenings for the father's regular weekend parenting time and that transportation for the father's parenting time outside of his regular weekend parenting time, including parenting time for religious and secular holidays, is the responsibility of the father unless there is a future written agreement between the parties; and
IT IS HEREBY FURTHER ORDERED that the children S. and T. are to be immediately enrolled in weekly one on one counseling with separate New York State licensed social workers or New Jersey State licensed social workers to discuss their parents' relationship and any concerns they may have regarding their parents and their respective relationships with each parent. If the children are already enrolled in such weekly one on one counseling, or in an equivalent course of counseling, then they are to continue in counseling with that provider. Such weekly counseling is to continue for at least one year from the date of this Order. The father shall pay for the counseling for the first year with it alternating yearly thereafter. The parent with whom the children are staying at the time of each child's appointment is responsible for transporting that child weekly to and from the counseling and both parents shall ensure that the children attend the counseling. Payment is to be made to the provider by the responsible parent at least two months in advance, with the mother deciding on the appropriate provider; and
IT IS HEREBY FURTHER ORDERED that the parties shall not communicate with each other except in writing by email or text and that such communications shall be limited to discussing the children's health, welfare, safety and well-being as well as other parenting issues; and
IT IS HEREBY FURTHER ORDERED that neither party shall communicate with the children or allow a third party to communicate with the children any disparaging remarks regarding the other parent, or any remarks that can appear to be disparaging of the other parent, or shall discuss this or any pending or prior litigation with the children; and
IT IS HEREBY FURTHER ORDERED that for a period of one year from the date of this Order, the father shall refrain from any telephonic communication, text communication or written communication with the children that is not supervised by the mother; and
IT IS HEREBY FURTHER ORDERED that mother shall have daily phone contact with the children during the father's parenting time; and
IT IS HEREBY FURTHER ORDERED that the father shall not take either children to any doctors or medical providers except in the case of an emergency; and
IT IS HEREBY FURTHER ORDERED that the father's modification petition and violation petitions are denied in their entirety and are dismissed; and
IT IS HEREBY FURTHER ORDERED that the mother's violation petition and family offense petition are denied in their entirety and are dismissed; and
IT IS HEREBY FURTHER ORDERED that the temporary orders of protection against the father under Docket Numbers V-02530-17/17E and V-02529-17/17E are vacated and that any temporary orders hereunder are vacated; and
IT IS HEREBY FURTHER ORDERED that any other relief requested that is not addressed herein is denied; and
IT IS HEREBY FURTHER ORDERED that there shall be any other parenting times as agreed to by the parties in future writing.