Opinion
Index No. 365279/2021
12-18-2023
K.M., Plaintiff, v. T.O., Defendant.
Counsel for Plaintiff Warshaw Burstein, LLP By: Eric Wrubel, Esq. and Alexis Cirel, Esq. Counsel for Defendant Pro Se Attorney for the Children Nelson, Robinson & El Ashmary PLLC By: Daniel Robinson, Esq.
Unpublished Opinion
Counsel for Plaintiff Warshaw Burstein, LLP By: Eric Wrubel, Esq. and Alexis Cirel, Esq.
Counsel for Defendant Pro Se Attorney for the Children Nelson, Robinson & El Ashmary PLLC By: Daniel Robinson, Esq.
Ariel D. Chesler, J.
BACKGROUND
The Court held a trial on the issues of an order of protection and the custody of the parties' children over four days in January 2023. Unfortunately, there were very significant delays in obtaining the trial transcripts and therefore related delays in the parties ability to submit written summations.
It must be noted that much of the father's written summation refers to matter dehors the record and cannot be considered. Similarly, it must be noted that the father, who chose to represent himself at the trial, was unable to submit various documents due to evidentiary concerns or procedural failures on his part. However, the Court was able to conduct a fair and full trial at which it heard from both parties and both parties were able to cross-examine the witnesses.
The parties were married in December 2009. At the time of trial, the father was 49 years old and the mother was 49 years old. There are three children of the marriage, the eldest T.O. is 10 years old, and the twins W.O. and R.O. are 6 years old. The mother works in the [redacted] industry and has a public and social media presence. The father has had various positions as an analyst and in banking/finance.
In September 2021, the mother filed a motion seeking a restraining order after the father sent concerning communications to her employer designed to harm her career and reputation. Shortly thereafter, the mother filed a separate motion seeking various financial relief, a custody schedule, and an order of protection.
Both motions were resolved in orders issued on October 12, 2021. The father was enjoined from interfering with the mother's employment, including contacting any individual or entity affiliated with her employer, directly or indirectly. In addition, the mother was granted exclusive occupancy of the parties' Bridge Hampton residence, and the father was directed to stay away from the mother's residence, place of employment, and the children's school, other than on specified times pursuant to the interim parenting schedule or upon the agreement of both parties; to refrain from committing a family offense or any criminal offense against the children or plaintiff, including, without limitation, harassment and stalking; and to refrain from disparaging plaintiff to or in the presence or earshot of the children.
Separately, an interim access schedule was put in place which required the father's access to be supervised by his family or agreed upon supervisors. He was also to have liberal video and phone call access with the children.
Then, on November 4, 2021, the parties entered into a stipulation which set forth an expanded access schedule for the father, including a holiday schedule, but continued the "stay away" and "refrain from" directives in the prior order. The father was also to remain compliant with "therapeutically indicated mental health treatment."
In March 2022, the mother learned that someone had sent flyers to her employer's main offices which included partially nude images of her as well as outrageous allegations about the mother being racist and a prostitute, clearly intended to negatively impact Plaintiff's career and reputation. The flyers also included a QR code which led to a website. Video footage at the scene showed a male in a black ski mask leaving the posters at the location and the mother was confident that it was the father that had done so. Notably, the content of the accusations was identical to the communications the father had previously sent to her employer.
The mother immediately obtained a full stay away order of protection in Manhattan Family Court. The order of protection also directed the father to take down any photographs or recordings of the mother on the internet.
The mother then filed a motion seeking various relief, including a contempt finding, suspension of the father's unsupervised parental access, and directing the seizure and forensic analysis of the father's electronic devices. On March 11, 2022, this Court directed the preservation and analysis of the father's devices, and suspended the father's access.
Following a conference on March 14, 2022, the Court issued an interim order ordering: a psychiatrist to conduct a mental health evaluation of the father; that a forensic analysis be conducted on the father's computers, laptops, tablets, cell phone and any other smart devices; that the father continue to have in-person parental access with the children on alternate weekends and at other times arranged by the parties supervised by Comprehensive Family Services (CFS) and supplemented by supervision from agreed upon family members and/or responsible individuals. Separately, the Court consolidated the Family Court family offense proceeding with this action.
Although the Court directed the parties to submit a further stipulation on parental access, the father refused to do so, and on May 13, 2022 the Court so-ordered a proposed order submitted by mother's counsel. This interim order granted the mother temporary sole custody, and permitted the father access on alternate weekends and one midweek visit to be supervised by CFS or certain approved family members and friends. The father was also permitted virtual access with the children according to a specific schedule. Both parents were instructed not to disparage the other in front of the children.
After the father failed to identify a mental health expert and engage in a mental health examination, in August 2022 the Court ordered such an examination to be conducted by the Family Court Mental Health Services.
In October 2022, after the father sent disturbing emails to the Court indicating he planned to sue the mother's employer, the mother filed a motion seeking to suspend the father's parental access without supervision by CFS. The Court granted that relief on an interim basis.
On October 21, 2022, a contempt proceeding was held. At that time, in the face of a damning forensic analysis of his devices, the father finally admitted under oath and on the record that he was the one who had left the flyers at the mother's employer and created the damaging website in violation of prior orders of the Court. The Court adjudged him in contempt, continued the interim orders requiring CFS to supervise all visits and, following further submissions, issued an order granting the mother a credit of $222,153.94 in equitable distribution based on all the counsel and expert fees incurred due to the father's contempt. The Court also continued the full order of protection which had been consolidated from Family Court.
TRIAL
At trial, the Court heard from both parties and from Dr. Alison Baxter, Ph.D. The Court generally credits the mother's testimony. She provided detailed, credible, and forthright testimony. Similarly, the Court credits the testimony of Dr. Baxter, who performed a mental health examination of the father. Dr. Baxter presented as professional and thoughtful, and as someone who was thorough and took her work seriously. She provided significant insight into critical concerns in this case.
On the other hand, while the Court credits the father's account of his love for the children and in part credits certain testimony regarding their early years and activities enjoyed together, it is impossible to credit his testimony on disputed issues. Indeed, he was disorganized, argumentative, self-serving, and he failed to follow many directions from the Court regarding his testimony and proposed exhibits. He also had been dishonest with the Court, for example in his months long denial that he had been the one to leave the flyers at the mother's work. Further, his testimony must be considered in conjunction with Dr. Baxter's findings regarding his mental health, desire to harm the mother, and lack of empathy for her or the children.
The Mother:
The mother testified that although the parties were married on December 19, 2009, they went on their honeymoon in the summer of 2010. They also traveled to Europe the following summer. However, she first became concerned about his behavior when they moved in together in 2010. He would use abusive language, such as "go pound sand," and "don't touch my shit you fucking bitch." The mother would speak to her therapist about this abusive language.
During their trip to France one of the summers, the parties disagreed about when to get drinks and the father purposely kicked her legs while they were walking down the steps of the Eiffel Tower as if he wanted to trip or injure her. Afterwards, they continued to argue at a café, and the father then left the table and she did not even know how to get to the hotel from where they were. The mother explained that these were examples of frequent erratic behavior, extreme anger, and extreme blowups by the father.
The mother has been teaching [redacted] classes at various [redacted places] and to private clients since 1997. She also wrote about [redacted] and made some [redacted] DVDs. In 2011, she was doing this same work but was also a brand ambassador for certain brands. As part of her work she was involved in many photo shoots. In 2018, she began working for her current company, teaching various classes on an online streaming platform. With this job, the mother felt financially stable and had health insurance, and it was "a dream come true job." Over time her base salary grew, and she earned far more than she had in previous jobs. She also had a good relationship with her colleagues at work, and they socialized outside of work as well. She was very successful at her work, had great turn out for her classes and received positive feedback.
Before the pandemic, the mother was teaching 12 or 13 classes a week for her employer. She also had private clients and made money by being an online influencer and promoting products. She may earn between $50,000 or $80,000 extra each year from influencer work.
The father would often look at things at her laptop without permission, such as work related photographs and would then accuse her of dating other people and call her names.
She also taught private clients often in their own homes. However, once in 2015 she agreed to teach a class in her apartment for a couple who were visiting from Pennsylvania. The father and T.O. went out during the class and returned when the clients had left. However, the clients returned because they forgot their umbrellas and the father then ran into them in the lobby. He responded by barging into the apartment, yelling, enraged, and saying "why the fuck would you make me see your clients." She replied that "maybe he was the only one who felt awkward." He then threw the mother against the wall with a hand around her throat choking her and said "don't you ever call me awkward again you fucking bitch."
Although the mother contemplated leaving at that time, she became scared after speaking with an attorney about obtaining an order of protection.
The parties had trouble conceiving children and they used IVF for their first child, T.O. According to the mother, the father got angry when the mother would ask for help with her IVF shots. In fact, he would threaten to punish her for asking for help. The mother explained that the IVF process was "intense" and included blood work and other testing, as well as self-administered shots twice a day for many days. She also had to receive a painful "trigger shot" as part of the egg retrieval process. Eventually, they created five viable embryos. With perhaps one exception, the father was not involved in any of the shots or the appointments.
The parties used IVF again to conceive their twins and the father was not very involved. The father was also not supportive of having more children but the mother wanted more children, especially so they had siblings.
After T.O.'s birth, the father got worse, had "Jekyll and Hyde" moments, and made comments indicating he was jealous of the baby, such as "I'll let you two make out together." Once, the father got very upset and he grabbed T.O. and locked himself and T.O. in a bedroom and would not let the mother inside.
Throughout the marriage, the mother was concerned about these incidents and the couple even tried marriage counseling. In response, the father said "don't you ever fucking make me do that again." At some point, the father told his therapist if the mother hurts him it's his goal to "hurt her ten times more."
At some time after T.O. was born the parties were driving to visit the father's family for Easter in Upstate New York. When they stopped at a rest stop the father became angry and started yelling. The mother took T.O. out of the car and jumped out as the father drove away as the door slammed on the mother's leg and left a visible bruise. The mother then began chasing after the car. Eventually, she got back in the car and the father insisted she was the problem.
The mother denied that the parties had a fight about using a car seat.
In 2014, she took T.O. on a work trip with her to Germany. During the trip the father began sending her messages calling her a bitch and complaining about her ordering the wrong light bulbs.
The father also made sexual demands of her including demanding oral sex every morning, as well as in the car with the children present.
After T.O. was born, the father would play with him and do things like build train tracks. He also did some feedings. But, most of the feeding and bathing and other parenting duties were done by the mother and a nanny. After the twins were born, the father was not very involved with them. He rarely gave them baths and did not feed them. He did not change many diapers. The mother conceded that the father was working many hours.
Most mornings, the father would be asleep and not help with the children. The mother would leave for work at 8:30 or 9 AM. The father would also work late. They hired a full time nanny who works between 30 and 40 hours each week.
For T.O.'s first birthday, they had a party in the late morning at their apartment. The father got drunk and spilled a bloody Mary on the couch. For T.O.'s second birthday, they went to Idaho to visit her family, but the father went on a trip to Nantucket with his friend.
In December 2017, the mother woke up the father one morning because she had been up all night with a flu and needed help. He did not help following her first request. The second time she asked for help the father got "pissed," began cursing and pushing her, and then started slamming the bathroom door so much that the doorknob came off.
In March 2021, they were all in BridgeHampton and the mother was trying to get all the children lunch. The mother asked the father to help and he began cursing at her and then threw her into the kitchen counter. He also repeatedly said "I am going to smash your head into the wall." The incident was reported to CPS and the father had to speak to someone about it. The mother also filed a police report related to this incident.
The mother also told her brother and sister-in-law about the incident and it was suggested the parties give each other space. The father then willingly stayed in the BridgeHampton home for a couple of months, while the mother stayed in the New York City apartment. The father also began seeing a therapist - Dr. D.
The father also smoked marijuana throughout the marriage in spurts, sometimes all day, and sometimes every day after work. He continued to do this after the twins were born. He would smoke in their apartment at times, and the mother would get frustrated and ask him to smoke outside. However, the father was "less likely to fly off the handle" when he was smoking.
During Memorial Day Weekend of 2021, the parties had come back together. The parties had an argument over a tent the mother had ordered. The father was angry and blocked the mother on text messages. He also refused to talk to her when they all drove out to BridgeHampton that weekend. He also refused to speak to her the next day.
Then, on Sunday of that weekend, the mother told the father she would be returning back to the City with the children, as they had done many times in the past when she had to teach a class on a Sunday. He responded that she had to leave the kids with him. The father then hid her car keys so she couldn't leave, which was a problem since she had to arrive at work by a certain time, which was mandatory.
The parties continued to argue and the father kept telling the mother that she is not taking the car keys. The mother eventually called the police but they took no action. The mother then called an Uber and returned to the City with the children via Uber.
On cross-examination, the mother admitted that the day before she called the police the father had asked for a divorce. However, she maintained she called the police because she was in danger and did not know what the father might do. The mother also admitted to calling the father's boss/mentor, who was also her friend, about getting the father a new job. The mother also called the father's ex-wife and the father's former employer. She could not recall why she called the father's mother.
Shortly thereafter in June 2021, the mother commenced this action. The parties were able to agree to a temporary access schedule, pursuant to which the father had every Wednesday and alternate weekends with the children. Each parent also had exclusive occupancy of either the City apartment or the BridgeHampton home, but would switch residences as agreed. As part of the agreement, the father was supposed to continue engaging in therapy.
In July 2021, the mother observed a bruise/scratch on R.O.'s cheek after he was returned to her by the father.
At around that time, the father also stopped paying rent on the apartment as well as various other bills. He also took all the apartment furniture.
In September 2021, the father contacted the Chief Creative Officer at the mother's employer via text. In his texts, he disparaged the mother and her family via text messages. The mother believed these texts could destroy her work and her role as an influencer. It felt like the father was trying to cancel her.
The mother applied to the Court and obtained a restraining order directing the father not to contact her employer. Separately, she sought an order of protection for herself and the children. In support of her requests, she submitted journal entries from a digital journal she kept and would document incidents immediately or soon after they occurred. These diary entries from 2015 through 2018 reflected the mother's concern about the father's emotionally and physically abusive behavior. In one 2017 entry, the mother described the father getting angry that she woke him up, breaking a door handle, and pushing her in front of the children and saying "I'm going to kill you."
In March 2022, after it was discovered that the father left flyers at her employer with horrible accusations of racism and nude photographs of the mother, the mother obtained an order of protection and requested supervised visitation for the father, both of which were granted. However, at the time of trial the father had not set up visitation with CFS as directed by the Court.
The incident with the flyers was one of the worst things the mother has gone through because it seemed the father was out to destroy her. It impacted her role at work and her locker was moved. She felt ostracized at work and awkward. She was also shocked because she thought they were turning a corner and the parties could have a steady parenting time schedule. She still has PTSD from this incident and fears for her safety. She also hired private security for some time and changed all her locks.
The mother described the children as being in a good place at the time of trial. In contrast, she noted earlier times when R.O. would return from a visit with his father and appear angry and would curse at her. R.O., a first grader, is improving at school, and enjoys singing in a youth choir, art, and playing the drums. W.O., who is also in first grade, loves reading and playing piano. T.O. is in fourth grade, and plays piano and trombone. All three boys are active and take rock climbing, gymnastics, and soccer classes. They all also enjoy swimming. She has also taken the children to many museums and Zoos around New York City. On some weekends they go to Bridge Hampton, while other times the children have playdates, birthday parties, or other activities. The mother also takes the children regularly to their pediatrician and dentist.
The mother's parents are very close with the children and come visit from Idaho often, perhaps six times a year. Her dad taught them to ride bikes, has taken them camping, and makes special cakes for their birthdays. The children and her parents also engage in frequent video calls and text message exchanges.
At the time of trial, the children had not seen the father for a few months. The mother believed that T.O. missed his father and that the children need a good and stable father. The mother always complied with the interim visitation orders and wants to promote access between the father and the children.
In response to the father's questions, the mother denied calling a co-worker the "N word" in front of the children and denied hearing her mother say that they were a "proud racist family." Although she admitted taking the children to a warehouse for her family' business in Idaho, she denied the children saw anything inappropriate or were exposed to sex toys or pornography. The mother also denied an incident where R.O. allegedly drowned or where the kids were left unattended at a pool.
The mother also admitted on cross-examination that the father gave the kids baths, took them to various museums and events around the City, took them fishing and biking. Yet, she claimed that the father often came home from work very late, sometimes at 10 or 11 PM or in the early morning. She also explained that the father did many of these activities with the children when he was between jobs, and was otherwise not very "hands on" with the children.
She denied interfering or limiting the father's Facetime calls with the children. She was unaware there had been issues with these calls. The father was able to text the children. Previously, he was able to have video calls with the children supervised by his parents. In one such call in 2022, he began cursing at the mother and she walked out of the room. In general, the video calls were difficult because the kids could be distracted.
Ultimately, the mother wished to be granted sole legal custody and to be the primary residential parent. She was afraid for the children to be around their father and asked to terminate his access to the children.
The Father:
The father testified that at the time of trial he had not seen the children for almost four months. He noted that he missed holidays and milestones and wanted the "healing process" for his family to start. He explained that the children are the light of his life and they need him.
On cross-examination, he acknowledged that he could have seen his children by using CFS but he had not done so. He had not followed up with CFS about what the visitation schedule would be. Nor did he alert them he had been laid off so they could reassess the cost of supervision. In response to questions from the AFC, the father stated that he would set up visits with CFS.
He again admitted that he had distributed the inappropriate fliers at the mother's place of employment in violation of Court orders but noted it had happened almost a year earlier. He recognized he made an "enormous mistake" with the fliers and assured it was not something that's going to repeat itself. He claimed that he tried to comply with all the parenting orders and he apologized if he had "slipped up recently."
On cross-examination, he denied he made the flyers to destroy the mother's career. While he claimed that he had remorse about his actions he did not apologize to the mother.
Responding to the findings of Dr. Baxter, the father claimed that he was subjected to emotional control by the mother during the marriage. He added that he was bullied by the mother and claimed that the mother also bullied the children and her coworkers. He also believed that the mother's anorexia defined who she was and was a big part of everything, and stated she had control issues with everything.
According to the father, at the beginning of the parties' relationship he learned that the mother was having relations with a "bunch of dudes." He then broke up with her, but they reconciled. He claimed that he learned that the mother says whatever she thinks you want to hear, such as when she promised to move to Pittsburgh with him in 2008 but then reneged. In any event, he thought they had a lot in common as they were both small town kids who ended up in a big city.
At the parties' wedding in Idaho, the father concluded that the mother's family was different from other people in that they did not care about his concerns.
In connection with their travels, the father claimed that the mother constantly made scenes wherever they went, including fighting with children in the playground and with people on the sidewalk and bus. He claimed these incidents happened when they were on their Honeymoon in Italy, and she was removed from a bus.
He claimed he always wanted to be a dad, and that he attended all the IVF treatments with the mother. However, when T.O. was born the marriage became a disaster. Although he was working 80 hours a week and was not home all day he wanted to be part of bath time and feeding and certain decisions. But, the mother excluded him from these things. He also felt isolated because the mother would sleep with T.O. Over time they went to many therapists to deal with their conflict.
When they had the twins, it was a crazy time and he was working as a stock analyst. Again, the mother excluded him from decisions about the pregnancy including about having twins as he only wanted one more child. But, he loves the twins more than life itself. When they twins arrived it was very hard and he could not sleep.
Eventually things settled down when they began sleep training but then the maternal grandmother came to visit and "blew up" the plan. According to the father, the mother and her mother would exclude him from the kids. The mother became rude and began threatening to leave him or to take the children to Idaho.
During the marriage, he took the children to parks and playgrounds, museums, Lincoln Center and to many other places around the City. He fed them, bathed them, and played with them. He read books to them. They built Legos and train tracks. He took them fishing and to Disney World. He toured all the schools and helped put together the applications for the children. He taught the children about math, birds and the alphabet. He was a very involved parent.
The father described an incident in December 2018 in which there was a dispute about whether T.O. could play video games in the living room. The mother came into the room and screamed at the paternal grandmother and called her a "fucking bitch." At that point, the father began recording the incident and the mother responded by calling the police. He denied that he committed any acts of violence that warranted calling the police.
Regarding the upstate Easter trip, the father averred that the mother was refusing to place T.O. in his car seat while they were driving. He then pulled over and refused to drive without the car seat being used. He asserted that the mother had her own reality and different interpretations of things.
In March 2020, just before the pandemic, he, the mother, and her parents were discussing the mother's career. During that talk, the mother referred to a co-worker as a "disgusting fucking N word." The father privately told her that she can't speak that way in front of the children. The mother proceeded to run out of the room and complain to her parents that the father was upset she said the "N word" and then she began screaming at him in front of the children.
He went on to claim that the mother's family were racist and White supremacist, that the maternal grandmother sits on an Idaho indoctrination force that is against teaching Black history in schools, and that they all have horrific views on modern society.
The father also described a gathering on December 24, 2020 at the home of the mother's brother at which inappropriate racist jokes were being told in front of himself and the children. The father expressed concern that the maternal uncle owned a "porn warehouse" and that the children were exposed to porn stars and adult toys. He claimed he had personally seen these things out in the open when the children were in the warehouse.
Despite being upset by these racist jokes, the father still kept in touch with the mother's family and used their condo to ski.
During the pandemic, the parties and the children stayed at their Hamptons home and they both took care of the kids there. While the mother was very busy with work, he had little work and thus was taking care of the kids all the time.
In early 2021, he decided not to stay in the same room with the mother and she was furious. Also around that time he left the home when the maternal grandparents came to visit and the mother was upset by that.
The father also spoke more generally about various minor disputes and disagreements about parenting that the parties had and which he noted in a diary. For example, he mentioned an incident from February 2021 when the parties disputed how many Lego sets he should have bought for the children.
In March 2021, the day after she reported the father to the police, the mother liquidated half a million dollars from the parties' bank account.
At some point, the father started seeing a therapist, Dr. D. Because of the conflict in the marriage, the father understood it was recommended that the parties live separately for some time to reduce tension. The parties agreed to the trial separation, although the mother viewed it as him abandoning the children.
The father separately expressed concern about the mother using the children in her social media posts, and specifically talked about one incident in which she "guilt tripped" the children about participating in a social media post.
On June 4, 2021, he stopped speaking to the mother when she said she would report him for child abduction after he offered to take the children to the beach. The next day he asked for a divorce.
According to the father, the mother was furious with him for all the conflict, for the trial separation, and for asking for the divorce.
Then on June 6, 2021, early in the morning she got physical with him, was punching, grabbing and shoving him, and he told her to stop. The mother then called the police and told them she was afraid even though she was not in any danger. He claimed they had an agreement that he would take the children and she would take an Uber to work. The police arrived and the mother threatened to take the children from him and told the police he raped her, abused the children and was a drug addict. He explained the dispute to the officers. Ultimately, the mother returned to the City with the children in an Uber.
Immediately thereafter, the mother made a series of calls to his boss, his boss's wife, his former employer, his ex-wife, and his parents. The father intimated that these calls were made in an effort to destroy him because at the time of the calls he was looking for a new job.
Once they separated and parental access was worked out, the father claimed the mother was not cooperative with arranging FaceTime calls. She would place the children's iPad on the floor or under a blanket. He believes that the mother also blocked his text messages on one of the children's devices. Once during an exchange of the children the mother handed him a bag full of poop.
Regarding R.O., the father was concerned that the mother resisted following the advice of the pediatrician and enrolling R.O. in therapy. R.O. then had various disciplinary concerns at school which had to be addressed. He also claimed that the mother did not share medical information with him.
The father also claimed there was an incident in the summer of 2021 where R.O. was left unsupervised at a pool and had a "drowning scare." Another child had to drag him out of the pool.
The father wanted to have joint decision making and a 50/50 parenting schedule with the children, with an alternating week schedule. He also asked that the order of protection be lifted so that he could be involved in the children's school. He wanted to be deeply involved with the children. He maintained he would follow whatever the Court orders.
Dr. Baxter:
Dr. Baxter's report was entered into evidence as a Court exhibit. She was deemed an expert in clinical psychology, psychology, and forensic psychology. In her report, she described her interview with the father as follows:
"He seemed not to make observable efforts to avoid disparaging [the mother], and made frequent negative references to her. He did not appear to consider her perspective, nor did he acknowledge any negative behaviors on his part except for the negative consequences any behaviors may have garnered. To the contrary, [the father] expressed pleasure at harming [the mother] socially and/or occupationally, though he made no admissions with regard to physical violence. He frequently made statements which appeared misleading on further inquiry, and acknowledged having been dishonest to the court in the past. His statements in many realms were contradictory within the span of minutes or less. Thus, his information appears to have unusually poor reliability."
Notably, although Dr. Baxter made multiple attempts to speak to the father's treating therapist - Dr. D, MD - she never heard back from him. The father advised that he had been seeing Dr. D since March 2020 but the father did not find the therapy to be helpful, nor does he feel he had a good relationship with his therapist. Dr. D reportedly diagnosed the father with "impulsivity issues," but the father disagreed, describing himself as "a planner."
Dr. Baxter did not think her central conclusions would have been impacted by speaking to Dr. D.
In interviewing the father, Dr. Baxter found that he "did not appear to make any efforts to avoid disparaging [the mother]; to the contrary, he seemed to take every opportunity to speak poorly of her. He displayed a lack of empathy toward her [he] willingly expressed extremely disparaging opinions and statements about [the mother], and volunteered that he 'despise[d]' her. He further indicated that he wished negative outcomes for her and had no remorse for his behavior toward her, except as it impacted his credibility and his access to his sons."
Although the father admitted he had violated orders of protection by contacting the mother's employer, he expressed his regrets were solely related to his current lack of access to his children. He stated that he has "no regrets over pain to [the mother]," and that he thinks "[the mother] deserves to be ruined."
Dr. Baxter found that the father meets the criteria for a provisional diagnosis of Narcissistic Personality Disorder. She concluded that the father:
At trial, Dr. Baxter explained that "personality disorders represent enduring and pervasive pattern of function and in some cases mal-effective function. It's different than what is expected from that individual's culture and affects their emotional and cognitive and behavioral functioning, you know, particularly in an interpersonal context. She added that he presented at a rather high level of lack of empathy and grandiosity, and also appeared arrogant.
presented with a grandiose sense of self, a lack of responsibility for his own behaviors, and little to no empathy for any others. He particularly has no empathy for his estranged wife... His actions with regard to attempting to intimidate his wife into cooperation in their divorce settlement are suggestive of any individual who does not accept limits on himself within a relationship. This suggests that he engages in coercive control within close, personal relationships. Many individuals who engage in intimate partner violence do not engage in physical violence because the emotional violence of coercive control is sufficient to have their demands met; the violence becomes unnecessary. However, this coercive control is a form of violence in the minds and lives of the individuals it is inflicted upon... [the father] appears not to be making an effort to spare the children from involvement in the divorce. He has texted his older son... blaming the child's mother and the court system for his own failures to attend visitation, rather than taking responsibility for the current circumstances that has led to the need for professional supervision of visits. Thus, he has involved his son in the divorce and the custody disagreement, rather than shielding his son...
Dr. Baxter further found that:
"[the father's] lack of insight and understanding of social mores and appropriate behavior is such that he is likely to continue if not escalate such behaviors without strict supervision and limits. It is concerning that he continues to disparage and diminish the court's authority, and refuses to accept limitations as appropriate. He accepts no limits on himself, and is therefore not likely to follow court directives without the threat of immediate consequences and/or assured negative impact on himself. While he may have an impulse control disorder, he appears able to control his behavior in the short-term, suggesting that his failures of control are due to his inflated sense of self-worth and denigrations of others and their authority."
Dr. Baxter explained that the father's lack of insight limited his ability to gain from therapy. And, she opined that he poses notable risks to the health and emotional well-being of his sons because of his violence, coercive control, manipulation, and denigration of the mother. According to Dr. Baxter, the risks he posed were significant because he was not attempting to de-escalate and demonstrated a willingness to violate Court orders.
Dr. Baxter also expressed concern that involving his children in the litigation, texting them in violation of orders, and refusing to pay for supervised visits demonstrated that the father had little empathy for his children.
When asked about the import of the father representing himself at trial without counsel, Dr. Baxter stated "I think likely there is a connection in individuals who have a narcissistic personality disorder often overestimate their capacity and capabilities."
Ultimately, Dr. Baxter recommended that the father continue in therapy "with a provider who has experience in treating narcissistic personality disorders to address his attitudes of contempt toward [the mother], his narcissistic attitudes, lack of empathy, need for excessive admiration, and his irresponsibility/lack of accountability." She also suggested a parenting class. She further recommended that the orders of protection for the mother and the children should be continued at the court's discretion, as the father "continues to endorse pleasure in his wife's suffering."
At trial, however, Dr. Baxter acknowledged that Narcissistic Personality Disorders are hard to treat because "Very often individuals with narcissism fails to recognize the way in which their disorder negatively impacts their own life, the lack of empathy makes them, sort of insensitive at best to the impact the disorder might have on others and thus they rarely seek out treatment. When in treatment, they very often feel they know more than the clinician and are, therefore, resistant to suggestions and to insight." She added that "they very often find if difficult to tolerate criticism because it triggers a low self-esteem."
Regarding parental access for the father, Dr. Baxter stated that if he was able to conform to the expectations of behaviors in a professionally supervised visitation setting that could mitigate potential harm to the children. Yet, she agreed that if the father refuses to engage in the therapy recommended and engage in a parenting class, "it would be safest" if he had no contact with the mother and his children.
Dr. Baxter remarked that the father's refusal to engage in supervised visitation is related to his disorder because each supervised visit would constitute a "repeated narcissistic injury," personal attack, or "ego blow" rather than seeing it as a corrective process.
Mother on Rebuttal:
On rebuttal, the mother testified that she never used a racial slur in front of the children to describe a colleague and had never used the "N word." The mother also described a romantic relationship she had with an African-American man in 2005 or 2006. She also spoke about another African-American man - her first true love - and submitted a photograph with him.
Regarding a Christmas Eve event at her brother's home in 2020, the mother denied hearing any inappropriate racial jokes made at the gathering. The mother also denied making racist comments about Serena Williams and noted that she in fact had gone to watch Serena Williams final match, and had in fact taught Venus Williams in her [redacted] classes.
Summations:
In her summation, the mother requests a permanent order of sole legal and physical custody. She promotes either no parental access or the father or minimal supervised contact. Finally, she seeks a final order of protection until the youngest children turn 18.
The AFC supports the mother being granted sole legal and physical custody and an order permitting the father supervised access with the children.
In his summation, the father asks for joint custody of the children and a 50/50 parental access schedule. The significant amount of evidence that the father first provides in his summation cannot be considered as it was not properly introduced at trial.
DISCUSSION
A. Order of Protection
On a family offense petition, the petitioner has the burden to demonstrate, by a fair preponderance of the evidence, that respondent committed the alleged family offenses (Family Ct Act § 832). Whether a family offense has been committed is a factual issue to be resolved by the trial Court, and its determinations regarding the credibility of witnesses are entitled to great weight on appeal (see Matter of Linda H. v Ahmed S., 188 A.D.3d 597 [1st Dept 2020]).
The mother's testimony, which the Court credits, established that the father committed various family offenses against her.
First, the mother testified that the father kicked her heels as they descended the steps of the Eiffel Tower during a vacation, as if he wanted to trip her. The mother recounted many incidents in which the father screamed and cursed at her. The mother's diary entries from 2015 through 2018 reflected the mother's concern about the father's emotionally and physically abusive behavior. In one 2017 entry, the mother described the father getting angry that she woke him up, breaking a door handle, and pushing her in front of the children and saying "I'm going to kill you."
In 2015, following an argument about her clients, the father cursed at her and threw the mother against the wall with a hand around her throat choking her in front of T.O.
The Court also credits the mother's testimony regarding the Easter road trip. During an altercation/argument at a rest stop, the mother took T.O. out of the car and jumped out as the father drove away as the door slammed on the mother's leg and left a visible bruise. The father left the mother and T.O. on the side of the road.
In December 2017, in response to the mother's request for help with the children, the father began cursing and pushing her, and then started slamming the bathroom door so much that the doorknob came off.
In March 2021, they were all in Bridge Hampton and the mother was trying to get all the children lunch. The mother asked the father to help and he began cursing at her and then threw her into the kitchen counter. He also repeatedly said "I am going to smash your head into the wall."
During Memorial Day Weekend of 2021, the parties all drove out to BridgeHampton. On Sunday of that weekend, the mother told the father she would be returning back to the City with the children, as they had done many times in the past when she had to teach a class on a Sunday. He responded that she had to leave the kids with him. In response, the father hid her car keys so she couldn't leave, resulting in the police being called.
In September 2021, the father contacted the Chief Creative Officer at the mother's employer via text. In his texts, he disparaged the mother and her family via text messages. The mother believed these texts could destroy her work and her role as an influencer. It felt like the father was trying to cancel her.
The mother applied to the Court and obtained a restraining order directing the father not to contact her employer. Separately, she sought an order of protection for herself and the children.
In March 2022, after it was discovered that the father left flyers at her employer with horrible accusations and nude photographs of the mother in violation of court orders, the mother obtained an order of protection.
The mother explained that the incident with the flyers was one of the worst things she had gone through because it seemed the father was out to destroy her. It seriously impacted her role at work, and she still has PTSD from this incident and fears for her safety. She also hired private security for some time and changed all her locks. Notably, the father admitted that he had contacted her employer in September 2021, and again in March 2022, in violation of the restraining order. The father was found in contempt of court based on his admission that he had violated the court order.
A person is guilty of harassment in the second degree (PL 240.26) when, with intent to harass, annoy or alarm another person:
1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same; or
2. He or she follows a person in or about a public place or places; or
3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.
A person is guilty of stalking in the fourth degree (PL 120.45) when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct:
1. is likely to cause reasonable fear of material harm to the physical health, safety or property of such person, a member of such person's immediate family or a third party with whom such person is acquainted; or
2. causes material harm to the mental or emotional health of such person, where such conduct consists of following, telephoning or initiating communication or contact with such person, a member of such person's immediate family or a third party with whom such person is acquainted, and the actor was previously clearly informed to cease that conduct; or
3. is likely to cause such person to reasonably fear that his or her employment, business or career is threatened, where such conduct consists of appearing, telephoning or initiating communication or contact at such person's place of employment or business, and the actor was previously clearly informed to cease that conduct.
A person is guilty of assault in the third degree (PL 120.00) when:
1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime (PL 110.00).
The instances in which the father kicked the mother's legs as she descended the Eiffel Tower, put his hands around her throat, drove away from her and struck her with the car door, and threw her into the kitchen counter each constitute attempted assault in the third degree. Significantly, there was insufficient evidence establishing injuries from the incidents, which would be necessary to show a completed assault.
These same physical incidents, as well as the father's numerous threats to cause physical harm to the mother constitute the offense of harassment in the second degree in that the father subjected the mother to physical contact and threatened to do the same.
Finally, the father engaged in an intentional course of conduct in connection with the mother's employer which, especially after he had been ordered by the Court to cease such conduct, he knew or should have known would have caused the mother to reasonably fear that her employment or career was threatened. This established the offense of stalking in the fourth degree.
Notably, a number of these incidents took place in the presence of the children. The father also demonstrated an inability to comply with orders of the Court, and admitted violating same. These factors are aggravating circumstances to be considered by the Court (see FCA 842, 827[vii]).
Given the foregoing, the Court finds it appropriate and necessary to issue a final order of protection for the mother and children with the same conditions as have been in place in the temporary order of protection. The order will have an exception for any court ordered visitation.
Although the mother requests that such order of protection continue until the youngest children turn 18, the risk factors present in T.D. v. E.P.B., 76 Misc.3d 1217 (A) [Fam. Ct. Bronx Cnty. 2022]), upon which the mother relies, are not present here. In T.D., the father had kidnapped the child to another state in a terrifying violation of the custody orders in effect in that case. However, because of the aggravating circumstances that do exist in this case, and the very concerning testimony from Dr. Baxter regarding the father's disorder, inability to respect court orders, and his taking pleasure in harming the mother, the order of protection will remain in effect for a period of five years. The order of protection may be extended thereafter if appropriate as provided by statute (see FCA 842).
B. Custody
No parent has a prima facie right to custody over another parent and custody awards must be based only on the child's best interests and in promotion of the child's health and happiness. (Domestic Relations Law §70[a]). No one factor is determinative of custody; rather, the Court is required to consider the totality of the circumstances. Among the factors to be considered are the respective ages of the children, the financial circumstances, the home environment of each parent, the parental fitness of each parent, the preferences of the children, and a goal of keeping siblings together. (See Eschbach v. Eschbach, 56 N.Y.2d 167, 172 [1982]). When applicable, the Court must also consider the length of time of any prior custodial arrangement and ensure stability for the children. (See Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 94 [1982]). Overall, "[m]atters of custody are within the sound discretion of the trial court" (Matter of Deanna V. v Michael C., 179 A.D.3d 445, 446 [1st Dept 2020]).
Initially, the Court considers, as it must, the factor of domestic violence and its impact on the children (see DRL 240[1]). Here, the concerns regarding domestic violence are very significant. This Court has now found them to have been proved by a preponderance of the evidence and is issuing a five-year order of protection for the mother and children which prevents any contact for the father unless ordered by the Court.
Further, this factor carries considerable weight because a number of the incidents took place in front of the children. In addition, the father has demonstrated an inability to comply with Court orders raising continuing concerns about how he will behave in the future outside the view of the Court. His purposeful efforts to damage the mother's career were appalling and caused the mother not only to fear for her physical safety but for her financial stability and that of the children. While the father admitted his destructive behavior with regard to the mother's employer, he seemed to minimize the import of his actions, and demonstrated a continued lack of insight into the gravity of his actions.
Moreover, Dr. Baxter's compelling report and testimony warrant fears about the father in the long term in that he takes pleasure in harming the mother, has no empathy for her or the children, certainly not over his own needs, may have impulse control issues, lacks insight, and needs a new course of treatment. Specifically, she recommended he continue in therapy "with a provider who has experience in treating narcissistic personality disorders to address his attitudes of contempt toward [the mother], his narcissistic attitudes, lack of empathy, need for excessive admiration, and his irresponsibility/lack of accountability."
The Court also considers that the mother has been the primary caretaker for all three children throughout their entire lives, that she has continued in that role admirably, and that the children are thriving in her care. Indeed, the children are excelling in school and are well cared for overall. Relatedly, the overall safety and stability of the children would be supported by awarding the mother custody.
While the father was certainly more involved during certain time periods when he was between jobs or during the pandemic, he often worked long hours which prevented him from being as involved with the children's day to day needs. This conclusion does not ignore the many trips and activities the father did with the children when he was able. Nor does it negate the love and affection the father and children may have for each other.
In this Court's judgment a comparison of the respective parental fitness of the parties warrants a determination that the mother is a far superior parent, and that the physical safety, mental health, and overall well-being of the children have been seriously harmed by the father's conduct and would be further harmed were he to be granted custody, or even joint custody and equal time.
Beyond the need for a final order of protection and for the father to engage in treatment, the father's extremely poor parental judgment is demonstrated by his failure and refusal to see his children for many, many months as permitted through supervised visits. The Court has heard from the AFC that the children desire to see and maintain a relationship with their father and there is no doubt that his failure to engage in supervised visits has caused the children pain.
The Court did not hear much testimony regarding the respective homes and finances of the parties and thus this factor is not given much consideration. However, the Court did hear testimony regarding the father's failure to financially support the children which is a fundamental failure on his part. Regardless of the conflict between the parties, it is a key obligation of all parents to financially provide for their children, and failing or refusing to do so is certainly against their interests.
Further, while there is no prior order of custody that precedes this case, the status quo for a significant time, including during the pendency of these proceedings, has been that the mother has been the primary parent, and continuing this arrangement would ensure stability for the children.
It is separately noted that despite all of the concerns about the father's behavior the mother has consistently made efforts to facilitate his parenting time in even the most challenging times. This factor weighs in favor or her being granted custody as an ability to foster the children's relationship with the other parent is critically important.
An award of sole custody to the mother is also warranted by the position of the AFC who supports the mother being granted sole legal and physical custody of all the children. It is also important for the three siblings to remain together in one primary, supportive and safe home.
The Court also considers that if the father were to be granted custody of the children there is a substantial risk that he would frustrate her role as a parent and would not facilitate her involvement and time with the children, which would be detrimental to their best interests.
It is also clearly inappropriate to consider an award of joint custody in this case. Given the order of protection and continuing concerns about the father's behavior and diagnosis, and the inability of the parties to communicate in a healthy, collaborative manner, this matter is certainly very distant from the circumstances which would support joint custody. Joint custody may be appropriate where the parties have a stable, amicable relationship, and are capable of having productive conversations about the children. Joint legal custody would never be appropriate in this case where a final 5-year full stay away order of protection has been issued (see Deserie D.G. v. Jonathan C., 184 A.D.3d 538, 539 [1st Dept 2020][ The "finding of the parties' acrimonious relationship, evinced by domestic violence and extensive litigation history, and the finding that the parties do not communicate about the child further supports the Family Court's decision [to award the mother sole custody and to deny joint custody]").
In sum, the totality of the evidence strongly dictates that this Court grant sole legal and physical custody of the children to the mother, which is in their best interests.
C. Visitation
It is well settled that non-custodial parents have a right to visitation with their children, that such visitation is a joint right of the noncustodial parent and children, and that the noncustodial parent plays a valuable role in guiding and loving their children (See Weiss v. Weiss, 52 N.Y.2d 170, 175 [1981]). Yet, where issues of safety and harm to children are raised, as here, the best interests of the children may require no visitation or limited and/or supervised visitation. Indeed, substantial proof that visitation would be harmful to a child will justify denying a visitation request (Matter of Mohammed v Cortland County Dept. of Social Servs., 186 A.D.2d 908 [3d Dept 1992]; see also Derek G. v. Alice M., 187 A.D.3d 465 [1st Dept 2020][holding that the presumption that visitation is in the best interests of the child is rebuttable, and that proof that visitation would be harmful to the child will justify denying the request]).
Notably, supervised visitation is not considered a deprivation of meaningful access to children (see Matter of Graham v White, 16 A.D.3d 583 [2d Dept 2005]; Lightbourne v. Lightbourne, 179 A.D.2d 562 [1st Dept 1992]). In Zappin v Comfort, 155 A.D.3d 497, 498 [1st Dept 2017]), the First Department affirmed an order granting the father supervised visitation in circumstances similar to those presented in this matter. In Zappin, as here, the evidence showed that the father "had physically and verbally harmed the child's mother, engaged in abusive litigation tactics, and lacked the emotional restraint and personality to look after the child's best interests" and there was a sound and substantial basis for "finding that unsupervised visitation would have 'a negative impact on the child's well-being.'" Also similar to this matter, in Zappin the Court had also issued a five-year order of protection after finding the father had committed various family offenses.
Although the mother and Dr. Baxter raise concerns about the father having any contact with the children, including supervised contact, the Court did not hear definitive evidence from an expert supporting a termination of the father's access. While Dr. Baxter was both illuminating and convincing, the scope of her evaluation was limited to the father's mental health and she did not conduct a comprehensive forensic review of the entire family or interview the children. Thus, she could not opine as to the detrimental impacts a complete termination of access might have on the children.
It is also significant that the AFC notes the children "wish deeply to spend time with their Father" and implores the Court to grant him parenting time supervised by an appropriate professional. The AFC, while recognizing the father's failure to avail himself of supervised visits in the past year, also suggests it inappropriate to deprive the children of the opportunity to see their father through supervised contact in the future.
It is truly unfortunate that despite this Court providing the father ample opportunity to have regular and consistent contact with his children, he has refused to engage. At an earlier point in the proceedings, the father had more routine and regular contact with the children supervised by his parents or other agreed upon adults. However, he violated the Court's interim orders and decided to engage in outrageous conduct towards the mother by attacking her livelihood. Although the Court then directed supervised visits to be overseen by a professional, at no time, including up to the time of trial, did the father set up such visits.
Based on the father's diagnosis, including his lack of empathy and insight, his violations of Court orders, the necessity of the order of protection, and his refusal to participate in supervised visits thus far, the Court must conclude that unsupervised access poses a risk and is therefore not feasible or in the best interests of these children.
However, the Court has concerns that terminating all access would only add to the pain and confusion the children must feel. It is thus the determination of this Court that based on the evidence and circumstances in this case it is appropriate for the father to have access with the children through Comprehensive Family Services to be paid for by the father (see Matter of Arcenia K. v Lamiek C., 144 A.D.3d 610 [1st Dept 2016]). Such supervised visits are to take place on alternate weekends for at least four hours on a weekend day. In addition, the father may have video calls with the children once per week to be supervised by CFS.
As components of this order, the father shall also engage in a parenting class as recommended by Dr. Baxter. He shall also enroll with a treatment provider with an expertise in his personality disorder, one who is able to address the concerns raised in this case.
It is truly the hope of the Court that the father can get the help he needs, think foremost about his children's best interests, and immediately reconnect with them in the manner set forth in this Decision.
This constitutes the Decision and Order of this Court.