Opinion
V-03422/07.
Decided September 30, 2009.
Anne Mueller, Esq., Harrison, New York.
E. Michael Kosan, Esq., Fredman Baken Kosan, LLP., New York,
David Peck, Esq., Attorney for the Subject, Harrison, New York, Juge.
"Sex, lies and videotapes" ostensibly could be the caption for this vituperative custody battle between the two parents of the subject child U. C. (DOB: 12/14/06) (hereinafter the "Subject Child") who is turning three this December and who has been the subject of the proceedings before this Court virtually since she was two months old. As noted further herein, however, this "red herring" simply is a smokescreen behind which actually exists two loving parents to the Subject Child, each of whom has demonstrated him and her self to be appropriate care-givers, but each of whom, respectively, has manifested such distrust and ill will toward the other that each has compromised the best interests of the Subject Child and neither can mask his/her own hostility toward the other — and couldn't do so even in the presence of the forensic examiner. See Report of Seymour Moscovitz, Ph.D., received by the court on July 3, 2007, pp. 13-15, (Ct. Ex. 1).
Chronology of Proceedings
The Subject Child was born on December 14, 2006. Approximately two months later, Petitioner-father J. H. filed custody and family offense petitions, dated February 27, 2007, seeking custody of the Subject Child and an order of protection against Respondent-mother S. P. on behalf of himself and the Subject Child. Ms. P. also filed petitions, dated February 28, 2007, seeking a writ of habeas corpus (which petition was dismissed by the Court) and a custody petition seeking sole legal and physical custody of the Subject Child. On May 3, 2007, Mr. H. withdrew the family offense petition. On June 21, 2007, Mr. H. filed another family offense petition (which was dismissed by the Court for failure to state a cause of action).
While these matters were pending, Mr. H. filed another family offense petition which was dismissed, a modification of custody petition that was dismissed, another family offense petition (which subsequently was dismissed without prejudice), and a modification of custody petition of the Court's interim order of custody and access, and a violation petition alleging a violation of this Court's interim order of custody and access (which also was dismissed without prejudice); Ms. P. also filed a modification petition seeking to change the Court's interim order of custody and access.
The Court held a fact finding matter on the pending petitions on July 11, 2007. The trial was not concluded on that date and was continued on October 17, 18, 19, and 22, 2007; January 9, 2008, February 29, 2008, May 19, 2008, June 2, 2008, June 20, 2008, October 15, 2008, October 21, 2008, and October 24, 2008. Counsel for the parties and the attorney for the Subject Child submitted written summations to the Court on or about January 5, 2009. Entered into evidence were binders of photographs, pages and pages of documents, an audio tape, a compact disc and printed versions of emails, among other evidence.
Each of the parties testified as did Lori Figueroa, sister of Mr. H.; April Stinger, mother of T., the at-the-time-of-trial 13 year old daughter of Mr. H.; Mayra Bloom, a former professor of Mr. H.'s at Sarah Lawrence College; Ingrid McColin, friend of Ms. P., Jeff Aiden, friend of Ms. P.; Dr. Seymour Moscovitz, Ph.D., forensic examiner of the parties, at Westchester Jewish Community Services; and Carmen Candelaria, Supervisor of Supervised Visitation Experts. The transcript of the proceedings is approximately 1000 pages in length and the exhibits entered into evidence number more than 100 pages and photographs, among the other evidence. While the Court has considered all of the testimony and evidence submitted, given the extensive nature of the record, the Court will address only the crucial testimony and documents critical to its decision on the best interests of the Subject Child.
For the reasons set forth below, this Court hereby grants sole legal custody of the Subject Child to Mr. H. with shared physical custody of the Subject Child between Mr. H. and Ms. P. as set forth further in this Order.
Tenor of Proceedings
On March 5, 2009, the first court proceeding in this matter when both parties were present before this Court, counsel for Ms. P. set the tone as to his client's views about Mr. H.:
The first court appearance, February 27, 2009, was Mr. H.'s ex parte application to this Court for an order of protection and temporary custody.
This information was conveyed to the Court by Jeffrey Salant, Esq., who, at the time, was retained counsel for Ms. P. Ms. P. subsequently retained another attorney John Ferrauto, Esq., of Farrauto Berman, who relieved Mr. Salant. Thereafter, Ms. P. subsequently retained another attorney, Anne Mueller, Esq., who relieved Mr. Farrauto and who currently represents Ms. P.
[Counsel for Ms. P.]: . . . but you should understand, Judge, that this gentleman has been involved — and I have documentation right here, Judge — he seems to make bizarre, dark, sick, abusive, bestiality, all kinds of movies. There's pictures of him, Judge . . .
The testimony at trial evidenced that Mr. H. has made over forty films and he credibly testified that he has won several awards for such films. See Oct. 22, 2007 Tr. at 74, 84; January 9, 2008 Tr. at 17-21; see also July 11, 2007 Tr. at 61, 77-79.
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These are pictures of him, Judge, doped out. These are pictures of him drugged out. These are pictures of him passed out. . . . This is him with Ted Bundy's mother. . . .He's involved with Susan Atkins, who was Charles Manson's protege, one of those sick parties. . . .This is the person we're dealing with, Judge.
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Transcript of Proceedings, March 5, 2007, pp. 7-8.
In fact, it was this very theme — that Mr. H. is sick, twisted and perverted and abuses drugs and alcohol — that Ms. P. used to conduct a pervasive smear campaign against Mr. H. which included, among other things, Ms. P.'s posting of a web site that she entitled "ChildAbuse.Joey," which purported to contain films and other of Mr. H.'s work ( see Petitioner Ex. 7); sending an email to Mr. H.'s college professor stating that "[Mr. H.] has already lost custody of his older daughter due to neglect and abuse" and stating that Mr. H. "is extremely manipulative, dangerous, [and] has a "problem with alcohol (possibly drugs) . . . "( see Petitioner Exhibit 1); and communicating to the mother of Mr. H.'s thirteen year old daughter that Mr. H. had used that daughter's likeness and voice in disturbing films and productions" (July 11, 2007 Tr. at 47, 165, 168, 174) which resulted in (1) the mother of the other child initiating court proceedings in that other state seeking only supervised contact between Mr. H. and that daughter ( see Petitioner Ex. 5; July 11, 2007 Tr. at 28-29, 38-39); and (2) having Mr. H.'s right and privilege to introduce his two daughters to each other for the first time usurped by Ms. P.. ( see July 11, 2007 Tr. at 132 and 203).
Ms. P. only removed the site from the internet after court order. See Oct. 22, 2007 Tr. at 22-23; January 9, 2008 Tr. at 202-203; Oct. 15, 2008 Tr. at 166.
In addition, Ms. P. was directly responsible for involving Mr. H.'s thirteen year old daughter in these proceedings — to the detriment of Mr. H.'s relationship with that child. ( See July 11, 2007 Tr. at 135-136). Ms. P. ensured that T. was aware of a custody dispute between Mr. H. and Ms. P. (July 11, 2007 Tr. at 135-136) over the Subject Child. Ms. P. also paid for T. to be transported to New York for these proceedings (ostensibly to have her testify against her father) (July 11, 2007 Tr. at 123). Indeed, Ms. P. even intervened to prevent Mr. H. from hugging his daughter in the courthouse waiting area (July 11, 2007 Tr. at 129-130) which resulted in the child "crying hysterically" ( see July 11, 2007 Tr. at 129) and being brought out of the courthouse ( id.). Ms. P. also volunteered to testify in the proceedings in Virginia against Mr. H. ( see July 11, 2007 Tr. at 207).
Q:" . . . How would T. [sic] know that there was a custody fight between her father and Ms. P. about a baby?
A: "Because S. would call the house." . . . "T. [sic] would ask me, you know, why she was calling so much because she knew that I didn't know S. prior to this."
July 11, 2007 Tr. at 135-136.
These efforts to ruin Mr. H.'s reputation among his friends, family and the public via the internet are not the only indicia of the depth of Ms. P.'s odium toward Mr. H.. When Ms. P. was interviewed by Dr. Moskovitz at Westchester Jewish Community Services ("WJCS") in May 2007 — two months after David Peck, Esq., attorney for the child, already had expressed in court while Ms. P. was present that he observed the Subject Child to be safe with both parents ( see March 28, 2007 Tr. at 11), — Ms. P. "[u]pon introduction, . . . registered her concerns about the father, conveying a sense of urgency, as she felt the child was in imminent risk of harm while in the father's care." (Ct. Ex. 1 at 3.) Dr. Moskovitz observed that "Ms. P. would prefer that the father have as little to do with the child as possible." (Court Ex. 1 at 7.; Oct, 24, 2008 Tr. at 54.) He also noted that "[Ms. P.] maintained that it is more important [for the Subject Child] to have a primary attachment to her mother" and that Ms. P. expressed "worr[y] that equal time with each parent will have serious negative effects [on the Subject Child], including that the Subject Child may be "at risk of becoming psychopathic' if away from its mother." (Ct. Ex. 1 at 7, 8 and 14; July 11, 2007 Tr. at 28.)
As a seasoned judge — and family court judge —, this Court never before has seen such intentioned malevolence tendered by one party to the other in proceedings of this nature.
Nonetheless, Mr. H. also appears before this Court with "unclean hands." First, his belligerent behavior towards Carmen Candelaria during the supervised "safe exchanges" — in the presence or earshot of his daughter — often was at the expense of the Subject Child's best interests. ( See Report of Supervised Visitation Experts, Ct. Ex. 2.) Ms. Candelaria testified that "Mr. H. made quite a few issues . . . Almost like I was an advocate for the mother, an accusation that I was, you know, for her. It was a tremendous amount of emails of such. (Oct. 24, 2008 Tr. at 164-165.) In addition, Ms. Candelaria credibly testified that Mr. H. made many telephone calls, in addition to the emails, to complain about Ms. P.. (Oct. 24, 2008 Tr. at 166.)
Second, Mr. H.'s reactions to Ms. P. during this custody battle — through emails and discussions with others — have been overtly hostile, demeaning and suspicious of her actions. ( See Oct. 28, 2008 Tr. at 93-94; 145.) For example, Mr. H. responded to an December 27, 2007 email from Ms. P. by stating, in pertinent part: "You have committed repeated FALSE ALLEGATIONS and CRIMES against me S., and the court is well aware of them, DEFAMATION, SLANDER, LIBEL. All of your crimes are documented and have been discussed with my legal team. . . ." ( See Respondent Ex. K.)
As noted further herein, the Court notes that Ms. P. also is an active participant in the acrimony between the parties — but she fails to recognize it. For example, at the interaction observed by Dr. Moskovitz, Ms. P. questioned Mr. H. about a rash on the Subject Child, questioned Mr. H.'s veracity about not getting messages from WJCS and "admonished" Mr. H. for leaving a tag on the Subject Child's clothing. (Ct. Ex. 1 at 13.) This Court believes that, even to date, Ms. P.t would not recognize the hostility in her communication to Mr. H.. Of course, the Court notes that Mr. H. reacted to each of these exchanges with responding accusations and hostility. Id.
Indeed, the credible testimony makes clear that, on occasion, Mr. H. has compromised the best interests of the Subject Child solely in reaction to concerns expressed by Ms. P. For example, Ms. P. expressed concerns to the Subject Child's day care and to Mr. H. about allergies the Subject Child may have to eggs. Mr. H. viewed Ms. P.'s interaction with the day care staff on this issue as an intrusion and an insult to his parenting ability and reacted angrily to Ms. P.'s contentions about the allergies. (Oct. 24, 2008 Tr. at 93-94,97-101.) Likewise, Mr. H. reacted in the same fashion to similar issues as to the Subject Child's congestion, and other health matters. (June 20, 2008 Tr. at 32-34.) It appears that, if Ms. P. expressed concern about the Subject Child, Mr. H. would dismiss or minimize the validity of such concerns — solely because the concerns were expressed by Ms. P. Mr. H.'s communications to Ms. P. — defensive, hostile and suspicious of Ms. P.'s motives — also served as fodder for the conflict between the two parties.
The Credibility of Witnesses
In making its determination on the issue of custody, this Court must evaluate the testimony, credibility, character, temperament, demeanor and sincerity of the parties and other witnesses. Joanne M. v. Carlos M., 2006 NY Misc.; LEXIS 4048; 235 N.Y.L.J. 82. With respect to credible testimony, the Court found Lori Figueroa, Mayra Bloom, and Ingrid McColin and Jeff Aiden, as well as Dr. Seymour Moscovitz and Carmen Candelaria to be quite credible. The Court found that April Stringer's credibility, as noted further herein, was compromised by her own self-interest — to wit, succeeding in her quest to obtain supervised visitation in Virginia against Mr. H. as to their daughter T.
The Court also notes that, with respect to many of the material facts, each of the parties was only marginally credible. Each party's version of events was clearly colored by each's own self interest — and motives — each seeking to have this Court view him/her in a favorable light and seeking to have this Court view the other party in a negative light. The Court finds significant and concurs with the determination of Dr. Moskovitz that each party was "an informant of variable reliability" ( see Ct. Ex. 1 at 3, 8).
Ms. P.'s Credibility
For the reasons set forth herein, the Court did not find Ms. P. credible as to most of the material facts and her testimony was disturbing to the Court. Particularly noteworthy is Ms. P.'s perception that she has been "victimized by outside and malevolent forces", especially Mr. H.. (Ct. Ex. 1 at 8.) The Court found that Ms. P.'s testimony was replete with express statements and intimations that Mr. H. had orchestrated the entire incident — removal of the Subject Child from her care in February — to hurt her. For example, Ms. P. testified that "[Mr. H.] used his skills as a social worker to put [her] in a terrible position which he set up long ago." ( See July 11, 2007 Tr. at 73.) Ms. P. also informed Dr. Moskovitz that "[Mr. H.] turns everything around and "corrupts" everything." (Ct. Ex. 1 at 6.) ( See October 15, 2008 Tr. at 45: "[Mr. H.] has everything manipulated,. . . .") "Well, I'm very concerned about the way [Mr. H.] has been lying to me and manipulating me, . . . he may, you know, bad-mouth me so much or he may hate me so much that, you know, this will reflect on the child . . ." (Oct. 15, 2008 Tr. at 103). Ms. P. testified:
Although Dr. Moskovitz found both parties' reliability to be "variable," the Court notes that Dr. Moskovitz's assessment that Mr. H. s's desire to have himself viewed in the most favorable light possible — "he tended to provide a sanitized personal narrative " — is the fact that compromised his credibility. (Ct. Ex. 1 at 8). In contrast, Ms. P.'s reliability as an informant appears to stem from her lack of personal insight into her own shortcomings and her view that Mr. H. has "bad mouthed" her and manipulated the situation. Ct. Ex. 1; Oct. 15, 2008 Tr. at 103, 109.
To me it is extremely important that a child has both parents, but it's what happened. That's why I said it, and this is extremely frightening to me.
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It is extremely frightening to me the why [sic] he lied to the court and had her removed None of this is true. And if he continues . . . And he continues to come to the court and tell lies about me, I mean, that's not who I am. I mean, he completely comes up, you know, with stories, and that's the other thing. He seems to be always needing some drama in his life. But that has nothing to do with, you know, being a good father, you know, whatever, but what my biggest concern is and what I have said it, they [sic] way he is attacking me and trying to turn things around and trying to say I'm insane, I'm suicidal, and he tries to get this to people and he really believes it. It's very scary to me.
Oct. 15, 2008 Tr. at 109.
The Court finds that Ms. P.'s testimony was wholly colored by her skewed perception that Mr. H.'s goal is to ruin her life.
The Court finds very disturbing Ms. P. s tendency to believe that she is the victim of a scheme by Mr. H. to undermine and malign her; likewise disturbing is Mr. H.'s behavior toward Ms. P. during the litigation which also suggests that he views every act by Ms. P. as a means to undermine him. As noted herein, the parties' mutual distrust has compromised the Subject Child's best interests.
Even more worrisome is the fact that Ms. P. is wholly in denial as to her hostile and aggressive behavior toward Mr. H.. ( See e.g., Oct. 21, 2008 Tr. at 54, 65.) Dr. Moskowitz noted that Ms. P. is "defensively unwilling to acknowledge psychological problems." (Ct. Ex. 1 at 7.) The Court notes that, while Ms. P. was testifying on inquiry by both her own attorney as well as counsel for Mr. H., she prevaricated frequently, seeking to explain her view of the circumstance in which she finds herself, rather than answer the question that was asked. Notably, at one point during her testimony on October 17, 2007 when asked about some of her decision-making regarding access time to the Subject Child during the litigation, Ms. P. sought to deflect responsibility for the decision onto her attorney. (Oct. 17, 2007 Tr. at 70-71.) The inescapable conclusion is that Ms. P. is unable to accept or recognize her part in creating the vituperative and volatile relationship that exists between Ms. P. and Mr. H..
Upon inquiry by counsel for Mr. H. about Ms. P.'s email to Professor Bloom (Petitioner Ex. 1) as compared to her description of Mr. H.'s emails to herself as "attacking and intimidating," Ms. P. refused to recognize any comparison:
Q:Now, would you, using the same standard that you were using to describe Mr. H.'s emails to you, would you describe this email [Petititioner Ex. 1] as either attacking of Mr. H. or intimidating?
A:No.
Oct. 12, 2008 Tr. at 54.
Mr. H. also had a tendency to digress from inquiry on both direct and cross examination in an apparent effort to make himself look more favorable to the Court.
Most disturbing to this Court is Ms. P.'s view of herself as a victim of Mr. H.'s machiavellian intentions. Ms. P. has failed to recognize that, as characterized by Dr. Moskovitz, her own "overzealous preoccupations and concerns" have led to behavior that included driving by Mr. H.'s home to monitor his care of the Subject Child and "failing to maintain appropriate boundaries." (Ct. Ex. 1 at 14.) Ms. P. characterized Mr. H.'s email communications to her as intimidating and frightening ( see Oct 21, 2008 at 34, 36 and 65.), but refused to recognize that her own emails to Mr. H. likewise were accusatory, hostile — and, with respect to the communication that she sent to Professor Bloom, outright false and slanderous. ( See Respondent Ex. K and Petitioner Ex. 1.)
On December 27, 2007, Ms. P. sent Mr. H. an email, that states, in relevant part, ". . . Try to keep [the Subject Child] dry so she won't come back with a diaper rash again. Since you are trying to blame the diaper rash on me I now have someone looking at her every time there is an exchange. . . ." "Return her shoes and hat tomorrow that U. was wearing two weeks ago. I always return your clothes for U. as well." (Respondent Ex. K.) Although Mr. H.'s reply email of December 31, 2007 was blatantly hostile and insulting, Ms. P. was unable to recognize that her own email, albeit not as overt, was hostile and insulting as well.
The evidence establishes that Ms. P. has characterized Mr. H.'s view that she has mental health issues as "bad mouthing" her and that he was trying to "set her up." It appears that Ms. P. cannot even entertain the possibility that Mr. H.'s concern about her mental health was a valid or sincere concern — one he expressed on several occasions to her friends and to several different professionals. ( See January 9, 2008 Tr. at 207.) (A view, the Court notes, that apparently is shared, to some degree, by Dr. Moskovitz; see Ct. Ex. 1 [Diagnostic Impression] at 8.) Irrespective of whether Mr. H. was or is correct in his assessment of Ms. P.'s mental health or what her mental health was at different points in their relationship, the Court is persuaded that it was sincere concern, not machiavellian strategy, that motivated Mr. H.'s comments and actions on that issue. (Jan. 9, 2008 Tr. at 207.)
The same sincerity cannot be said about Ms. P. Her motivations — kicking Mr. H.'s door while shouting "You're a terrible father", posting "ChildAbuse.Joey" on the internet until ordered by a Court to remove it, telephoning April Stringer and planting seeds of dissension between Mr. H. and his daughter T., emailing Dr. Bloom slanderous and false statements about Mr. H., and communicating similar information to numerous other of Mr. H.'s colleagues and/or family members ( see Oct. 22 2007 Tr. at 45, 46), did not arise out of sincere concern but rather arose out of Ms. P.'s anger and desire to smear Mr. H.'s reputation and separate him from the Subject Child.
Mr. H.'s Credibility
Notwithstanding the Court's serious concerns about Ms. P.'s credibility (and her perception of herself and the matters pertaining to this litigation), the Court likewise had difficulty finding Mr. H. credible on numerous material facts. The Court concurs with Dr. Moskovitz's assessment that Mr. H. skewed the information he conveyed to place it in a light most favorable to himself. ( See Ct. Ex. 1 at 8.) The Court also found that any sincere concerns Mr. H. previously had had about Ms. P. during their relationship now have been replaced with overt hostility and suspicion.
The Court finds particularly disturbing certain testimony of Ms. P. on October 17, 2007. Specifically, when counsel for Mr. H. inquired about certain decisions made by Ms. P., Ms. P. stated to the court: "I mean, do I have to answer . . . ? Ms. P. went on to state, "It's making me just uncomfortable, everybody staring at me. I have, like, all these men here staring at me." (Oct. 17, 2007 Tr. at 71). This testimony was bizarre, not only for its content but for its inaccuracy. On that date, apart from a court officer and a court clerk, the only individuals present in the courtroom included this Court (female), Ms. P. (female), her attorney (female), Mr. H. (male), his attorney (male), and Mr. Peck, the law guardian (male). Thus, on that day, as well as during the entire course of the proceedings, there were as many women participating in the proceeding as men.
The only logical conclusion the Court may draw to such testimony is that when Ms. P. realized that her effort to defame Mr. H. did not succeed in her securing custody of the Subject Child, she began characterizing herself as a victim of Mr. H.'s "violence and intimidation" in the hope that she could secure custody by claiming domestic violence. Neither tact was persuasive or credible.
The parties' testimony about the creation of "docufessional.com" and whether Mr. H. had an role or knowledge about its creation and contents spanned too many pages of transcripts for its relevance or importance to this case. Mr. H.'s professed ignorance about that site showed only a motive to lie — to wit, trying to distance himself from anything that might put him in a negative light and trying to emphasize any information that would put Ms. P. in such a light. Irrespective of Mr. H.'s role in the content or creation of docufessional.com, the real focus of the issue is Ms. P.'s creation of "ChildAbuse.Joey." and her dissemination of that site on the internet.
Statement of Law
It is well settled that "joint custody involves the sharing . . . of responsibility for and control over the upbringing [of the child] . . . and imposes . . . an obligation to behave in a mature, civilized and cooperative manner in carrying out joint custody." Brown v. Skalwold, 228 AD2d 749, quoting, Drummond v. Drummond, 205 AD2d 847. The parties, their family members and friends, all testified to the acrimonious relationship between the parties. Thus, the record clearly establishes that joint custody of the Subject Child between Mr. H. and Ms. P. is wholly inappropriate in light of the extreme rancor between them. The credible testimony establishes that they are unable to communicate or engage in cooperative decision making with respect to issues affecting the child. Brown v. Skalwold, 643 NYS2d 732.
Indeed, the evidence establishes that the parties barely communicate, and, when they have communicated, there is significant verbal abuse between each other. As the credible evidence established — through Ms. P.'s own admission — Ms. P. does not want Mr. H.'s email or telephone calls. ( See Oct. 15, 2008 Tr. at 137-138.) Likewise, the evidence shows that the communications between Mr. H. and Ms. P. are replete with accusations and insults. ( See Respondent Ex. K.)
Thus, as joint custody is not appropriate, the primary consideration with respect to determining custody of the Subject Child is the best interest of the child considering a variety of factors including the quality and stability of the respective home environments, the parties' past performance with respect to parenting, and the relative fitness and ability to provide for and guide the child's intellectual and emotional development. Brown v. Skalwold, 643 NYS2d 732.
In appropriate cases, the Court also is mandated to consider the issue of domestic violence as a factor in determining the best interests of the Subject Child. See DRL § 240. Specifically, Domestic Relations Law § 240(1)(a) requires that for domestic violence to be considered by the court as a mandatory factor in its determination of custody, two elements must be met (1) the allegation must be contained in a sworn pleading; and (2) the allegations must be proven by a preponderance of the evidence. See DRL § 240; Joanne M. v. Carlos M., 2006 NY Misc.; LEXIS 4048; 235 N.Y.L.J. 82. The Court notes that public policy protecting children from exposure to domestic violence also enables this Court to consider the issue of domestic violence as a factor in the best interests analysis. See Joanne M. at 36-37.
Here, each party has alleged acts of domestic violence by the other. Mr. H. alleged that Ms. P. has hit him, slapped him and engaged in other acts of physical violence against him. Ms. P. also has alleged physical violence by Mr. H. against her, together with verbal abuse. In large measure, the testimony of each was only marginally credible on most of these issues and did not bear out incidents of domestic violence. However, Ms. P. admitted her behavior which was the basis of Mr. H.'s original petition to this Court — kicking Mr. H.'s door and yelling denigrating statements to Mr. H. when he refused her access — all while holding the Subject Child in her arms. ( See Ct. Ex. 1 at 6.) The Court considers this fact as one of the factors in its best interests analysis.
With respect to the other factors to be considered by this Court as to the Subject Child's best interests, although the record at trial established that Ms. P. initially had been the primary caretaker of the Subject Child in the first month or so, as the litigation has been pending since the Subject Child has been approximately two months old, and each party has shared physical custody of the Subject Child relatively evenly during the litigation, both parties equally have had significant roles in the Subject Child's upbringing.
Indeed, the testimony of each party and of the family and friends of each party, as well as Dr. Moskovitz and Carmen Candelaria, credibly established that each party has had a significant role in the upbringing of the Subject Child. The credible evidence also has established that Mr. H. is a loving, caring, nurturing parent and that he has a very good relationship with the Subject Child. Likewise, the credible evidence makes clear that Ms. P. is a loving, caring, nurturing parent to the Subject Child and enjoys a good relationship with her daughter.
With respect to the quality and stability of the respective homes, the credible evidence established that each party has a stable environment for the Subject Child. During the pendency of this matter, Ms. P. relocated to a new residence. Nonetheless, each party's household consists, at this time, solely of him or herself and the Subject Child and each party has appropriate accommodations for the Subject Child.
The evidence also established that both parties have made appropriate child care arrangements for the Subject Child when that party is working or unable to care for the Subject Child.
With respect to the parties' past parenting performance, the credible evidence raised the Court's concerns as to the parenting abilities of each of the parties. Mr. H.'s history with respect to his relationship with his older daughter T. is not great. It is apparent from the credible testimony of Mr. H. and Ms. Stringer, that their youth, their short relationship before T. was born, Mr. H.'s relocation away from Virginia, and Ms. Stringer's subsequent marriage, all are factors in Mr. H.'s "distant" relationship with his daughter. Mr. H. bears responsibility for allowing his relationship with his older daughter to flounder. Nonetheless, the Court notes that Ms. Stringer did not promote that relationship and "just wanted to raise her daughter." (July 11, 2007 Tr. at 142.) Notably, Ms. Stringer did not consent to overnight visits between Mr. H. and his daughter (July 11. 2007 at 147) and sought child support from Mr. H. only after he initiated court action to obtain overnight visits. (July 11, 2007 Tr. at 163.)
Ms. Stringer admitted during her testimony that she informed her daughter that the child had to see her father "because the court ordered [her] to do so." (July 11, 2007 Tr. at 121). Ms. Stringer also admitted that she had told the child the reason Ms. Stringer didn't want her to go [for the overnight visits] was because "New York, . . . had a lot of crime and [Ms. Stringer] just didn't want [the child] to go to New York." Id. at 122. Astoundingly, Ms. Stringer apparently failed to recognize that informing her child that the court required the visits and that Mr. H. lives in a crime-laden environment could be a factor in the child's reluctance to visit her father in New York or might have a deleterious effect on the father's relationship with that child. Id.
Although Ms. P. has no prior parenting experience as the Subject Child is her first, Ms. P.'s interference between Mr. H. and his older daughter demonstrates, at the very least, poor parental judgment, to wit, placing her desire to obtain evidence adverse to Mr. H. s over the need of T., Mr. H.'s daughter, to have a healthy, bonded relationship with her father.
Ms. P.'s contention that she contacted Ms. Stringer about T.'s participation in some of Mr. H.'s films and/or trailer for a film out of concern for the child is wholly incredible and unavailing. (July 11, 2007 Tr. at 35-36) . Ms. P. knew for more than a year of Mr. H.'s use of the Subject Child's image and voice in the film and trailer but did nothing about it until after the litigation commenced. Id at 34-35.
Ms. P.'s record of interfering with Mr. H.'s relationship with his other child is sufficient in itself to evidence that she will not foster a relationship between Mr. H. and the Subject Child. However, there also was sufficient credible evidence adduced at trial to establish that Ms. P.'s actions after Mr. H. sought an order of protection were designed to smear Mr H.'s reputation and minimize or eliminate any relationship between Mr. H. and the Subject Child.
With respect to the parties' relative fitness regarding the Subject Child's emotional and intellectual development, this case has stymied this Court. The Court has strong concerns about each of the parties' fitness. Although the credible evidence established that each party clearly has strong regard and care for the Subject Child, Ms. P.'s actions demonstrate the depth of her ill will toward Mr. H. and her utter disregard for Mr. H.'s access to and relationship with either of his children — T. and the Subject Child.
The credible evidence also shows that Mr. H.'s own apparent bitterness about Ms. P.'s actions has caused him to engage in behaviors that are petty and inappropriate and that he reacts to almost any action taken by Ms. P. as to the Subject Child as if her sole goal is to undermine Mr. H. — irrespective of the benefit such action may have for the Subject Child.
In light of the Court's finding upon the credible evidence that both parties are relatively equal with respect to fitness and parenting, this Court's decision necessarily turns on the effect the award of custody to one parent will have on the other parent.
Indeed, another proper and relevant consideration in determining the best interests of the Subject Child is the "effect that an award of custody to one parent might have on the child's relationship with the other parent." Bliss v. Ach, 56 NY2d 995, 998. A custodial parent's interference with the relationship between a child and the noncustodial parent has been said to be "an act so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as a custodial parent." Maloney v. Maloney, 208 AD2d 603, 603-4.
Here, it is this Court's sad conclusion that, although each parent has demonstrated the ability to care for, shelter, and nurture the Subject Child equally well, neither party has demonstrated an ability to foster and promote the relationship between the Subject Child and the other parent. In fact, both parties have evidenced an inability to promote the other's relationship with the Subject Child and each believes that the Subject Child should reside with him/her and not the other parent.
In light of the embittered and embattled positions of these parents, this Court must choose "the lesser of two evils" in terms of a primary legal custodian and custodial parent and issue an order that, in theory, if not in practice (that lies in the hands of the parties) promotes the best interests of the Subject Child.
Based upon the credible evidence, this Court is convinced that Ms. P. would not encourage any relationship between Mr. H. and the Subject Child. Indeed, the Court believes that, based on Ms. P.'s past actions, if Ms. P. were to obtain sole legal custody of the Subject Child, she would work to discourage the Subject Child's relationship with Mr. H.. In fact, the Court shares Mr. H.'s concerns that, should Ms. P. given sole legal custody, there would be very little bar to prevent Ms. P. from relocating the Subject Child to Germany — outside Mr. H.'s reach and access — where she has family support. The Court notes that Ms. P. testified that her occupation — web design and consulting — is not location specific ( see Oct. 15, 2008 Tr. at 68, 69) and that she has no family (other than the Subject Child) within the United States ( see Oct. 15, 2008 Tr. at 97-99; Ct. Ex. 1 at 3). The calculated acts taken by Ms. P. to ruin Mr. H.'s standing in the eyes of his family, his daughter, his friends and co-workers in connection with this proceeding support this Court's determination that Ms. P. would be prone to undertake a unilateral move to relocate the Subject Child out of Mr. H.'s reach if she were to obtain legal custody.
Although the Court is concerned that Mr. H. also has exhibited an animus toward Ms. P. during the course of these proceedings, in considering all of the credible evidence, the Court finds that Mr. H. is more likely to foster and encourage the Subject Child's relationship with her mother than Ms. P. would encourage the Subject Child's relationship with her father. ( See October 22, 2007 Tr. at 53.)
Accordingly, for the reasons articulated above and as set forth below, and having weighed all of the factors, the Court finds that, upon consideration of all of the credible testimony and evidence, and, upon consideration of all the factors with respect to the Subject Child's best interests, sole legal custody of the Subject Child to Mr. H. with physical custody of the Subject Child to be shared by the parties, with her primary residence in Mr. H.'s household subject to the shared physical access schedule set forth under the terms and conditions herein, is in the best interests of the Subject Child.
Based upon the foregoing, it is hereby ORDERED that any and all prior Orders or interim Orders concerning custody and/or visitation with the Subject Child are hereby superceded by this Order; and it is further
ORDERED that J. H. shall have sole legal custody of the Subject Child, but the parties Mr. H. and Ms. P. shall share physical access of the Subject Child as set forth herein with the Subject Child's primary residence at her father's home; and it is further
ORDERED that the parties' respective access time with the Subject Child shall follow the framework of the interim order that has been in place, to wit, each party shall have scheduled access time with the Subject Child from one Monday until the Monday of the following week, with pick up and drop off occurring at the Subject Child's day care (or school when the Subject Child attains school age) and the other parent shall not be present when the parent is dropping off or picking up the Subject Child; and it is further
ORDERED that the parent whose aforementioned scheduled access is not occurring on that particular Monday to Monday schedule may have access to the Subject Child during that week from Thursday between 4:00 and 5:00 p.m. (picking up from day care or school, or, if day care or school is not open, pick up and drop off as set forth further herein) until the next morning and shall return the child to day care and/or school (or as set forth further herein if day care or school are not open); and it is further
ORDERED that, if the Subject Child's day care (or school) is not open or available for the exchanges to occur for each party's scheduled access, the exchanges shall occur at the babysitter Kelly O'Toole, and if she is not available or no longer is the babysitter, then the exchanges shall occur at (1) the home of whomever the designated babysitter is at the time if such pick up and drop off can occur at such location consistent with the each party's respective access schedule; or (2) the YWCA Safe Exchange Program at which time the exchanges of the Subject Child shall be at 5:30 p.m. or at such other times as the parties agree consistent with the schedule availability of the YWCA Safe Exchange Program; and it is further
ORDERED that no party shall disparage the other in the presence of the Subject Child nor allow any third party to do so; and it is further
ORDERED that, subject to the terms of communication between the parties for six months via the Parent Coordinator as set forth further herein, all communication between the parties shall be in writing via email; and it is further
ORDERED that, subject to the terms of communication between the parties for six months via the Parent Coordinator as set forth further herein, Mr. H. shall provide in writing to Ms. P. on October 1 of each year (except for 2009 — when he must provide the information within sixty days of receipt of this Order) the names of any and all of the Subject Child's educational, medical, dental providers and any other providers in connection with the Subject Child's general health and welfare including day care providers even if such providers have not changed from year to year as well as written notice of any changes and any new contact information for such providers within thirty days of her receipt of such information; and it is further
ORDERED that, subject to the terms of communication between the parties for six months via the Parent Coordinator as set forth further herein, Mr. H. shall provide to Ms. P. within sixty days of receipt of this Order releases allowing Ms. P. to access information, records or documents from all such educational, medical and dental providers without having to obtain same from Mr. H. directly and, thereafter, subject to the terms of communication between the parties for six months via the Parent Coordinator as set forth further herein, Mr. H. must provide any additional releases sought by Ms. P. as to such information, records or documents within thirty days of his receipt of a written request by Ms. P. for the same; and it is further
ORDERED that, subject to the terms of communication between the parties for six months via the Parent Coordinator as set forth further herein, Mr. H. shall provide to Ms. P. in writing, via email to an email address provided, in writing, by Ms. P. to Mr. H., notice of any and all scheduled doctor's appointments and dentist appointments within 72 hours of making such appointments or within a reasonable time frame if such appointments are made on less than 72 hours notice; and it is further
ORDERED that the parties shall each have the right to celebrate Easter in alternate years with the Subject Child, with Mr. H. having Easter with the Subject Child in odd years, and Ms. P. having Easter with the Subject Child in even years irrespective of a regular access schedule or vacation access; and it is further
ORDERED that at 5:00 p.m. on the Wednesday prior to Thanksgiving through Friday at 10:00 a.m. Mr. H. will have access to the Subject Child in even years and Ms. P. will have the same Thanksgiving schedule in odd years. In the event that Thanksgiving falls during either party's access schedule with the Subject Child weekend, that party will have access to the Subject Child in accordance with that access schedule and the party does not have to return the Subject Child on said Friday after Thanksgiving; and it is further
ORDERED that, in even years on Christmas Eve until 11:00 a.m. on Christmas Day, Ms. P. shall have the Subject Child then Mr. H. shall be afforded uninterrupted access to the Subject Child beginning at 11:00 a.m. on Christmas Day through 6:00 p.m. the following day (unless Christmas access falls within Mr. H.'s regular access schedule) until the Subject Child is school age and then until 6:00 p.m. of the evening preceding the re-commencement of the Subject Child's school calendar. In odd years the parties' aforementioned access with the Subject Child during the Christmas holiday and recess shall be the reverse; and it is further
ORDERED that every Mother's Day shall be spent by the Subject Child with Ms. P. and every Father's Day shall be spent by the Subject Child with Mr. H. irrespective of any other scheduled access time; and it is further
ORDERED that the aforementioned Easter, Thanksgiving, Christmas and Mother's Day and Father's Day access shall be referred to as "Holiday Access" for the purposes of this Order; and it is further
ORDERED that each party shall have three weeks of vacation access each year (hereinafter "vacation access") with the Subject Child which vacation access shall supercede each party's regularly scheduled access time with the Subject Child except as set forth herein. Under no circumstances, except as agreed to by the parties, shall either party's vacation access interfere or interrupt the other party's Holiday Access to the Subject Child. Each party's vacation access, until the Subject Child attains school age, is to occur within the summer months of June, July and August (consistent with a typical school calendar); after the Subject Child attains school age such vacation access by either party with the Subject Child may occur during any or part of the Subject Child's February school recess, Spring school recess and summer vacation, consistent with the child's academic calendar, but that no more than two weeks vacation access (fourteen days) be consecutive except as set forth further herein. During all such vacation access the party who has access to the Subject Child must ensure that the Subject Child attends school if the Subject Child is school age and school is in session during any part of the vacation access, unless otherwise agreed to by the parties. As noted above, such vacation access shall supercede any regularly scheduled access except as set forth below; and it is further
ORDERED that if any such vacation access abuts a week in which that party ordinarily would have access to the Subject Child such that that party's access to the Subject Child would exceed fourteen consecutive days, that party must transfer the Subject Child to the other parent after the fourteenth consecutive day, and then the regular access schedule shall re-commence, unless otherwise agreed by the parties; and it is further
ORDERED that, subject to the terms of communication between the parties for six months via the Parent Coordinator as set forth further herein, each party must provide in writing via email to other party, on or before May 15 of each year, the which weeks he/she plans to utilize his/her vacation access during the summer months; and thereafter, when the Subject Child attains school age, each party must provide in writing via email to the other party reasonable notice (in excess of fourteen days) in advance of his/her intention to exercise some or part of his/her vacation access with the Subject Child for the Winter/December or February and/or Easter/Spring School recesses; and it is further
ORDERED that, if either of the parties dispute the selected vacation access schedule of the other party, Mr. H. shall have the right to choose his vacation access in even years and Ms. P. shall have the right to choose her vacation access in odd years; and is further
ORDERED that, if either party fails to meet the timetable set forth in the paragraph above as to written email notification to the other party (subject to the terms of communication between the parties for six months via the Parent Coordinator as set forth further herein) of his/her intention to utilize his/her vacation access during any of those periods set forth above, the other party may notify, in writing via email (subject to the terms of communication between the parties for six months via the Parent Coordinator as set forth further herein), that party of his/her intention to use all or part of his/her vacation access with the Subject Child within a reasonable time in advance of such use consistent with the terms set forth above; and it is further
ORDERED that the Subject Child is not to leave the contiguous states of the United States without prior written permission by the other parent or Court order; and it further
ORDERED that this Order does not prevent either party from leaving New York State with the Subject Child during his/her access time with the Subject Child as long as the Subject Child continues to reside in New York and is returned to the state at the end of the trip and such trip shall not interfere with the other party's access schedule or with the Subject Child's school calendar (when she attains school age); and it is further
ORDERED that should either party be away from home with the Subject Child for more than one night, that party is required to provide to the other parent, in writing, subject to the terms of communication between the parties for six months via the Parent Coordinator as set forth further herein, the address and contact telephone number of the location or locations where the Subject Child will be staying, as well as an itinerary including flight information, if any; and it is further
ORDERED that Mr. H. shall list the mother Ms. P. as an "emergency contact" person or other such contact person on any and all forms requesting such information, as same may pertain to the Subject Child; and it is further
ORDERED that when the Subject Child turns four years old (4) each party shall have reasonable telephone contact with the Subject Child while the child is with the other parent not to exceed one telephone call per day; each party shall promote said telephone contact between the Subject Child and the other party including initiating such telephone call for the Subject Child and the other parent if no call previously had occurred that day and, under no circumstances shall either parent circumscribe the length of such telephone calls unless such call exceeds fifteen minutes in duration and then such call may be ended at the direction of either parent, and each parent must continue efforts to make such contact each day until the call occurs; and it is further
ORDERED that neither party shall disparage the other nor allow any third party to do so in the presence of the child; and it is further
ORDERED that each parent shall encourage a healthy and loving relationship between the Subject Child and the other parent; and it is further
ORDERED that, subject to the terms of communication between the parties for six months via the Parent Coordinator as set forth further herein, each party shall give 48 hours advance written notice to the other in the event he/she will not be able to comply with the access schedule set forth in this order; and it is further
ORDERED that each party shall ensure that the Subject Child is properly given any and all medication as prescribed for him by a licensed physician and, subject to the terms of communication between the parties for six months via the Parent Coordinator as set forth further herein, Mr. H. shall inform Ms. P. in writing via email of all such medications and prescribed dosages and shall provide same to Ms. P. when the Subject Child is in Ms. P.'s care; and it is further
ORDERED that within ten days of receipt of this Court's order, unless the parties can agree on a parent coordinator, each party shall submit in writing to the Attorney for the Subject Child the names and contact information of three parent coordinators and the Attorney for the Subject Child shall then submit the list to the Court, including three names (and contact information) of his own choosing, should he so choose, without indicating which party chose which name. The Court then will randomly select one such parent coordinator from the list for the parties to use for the purposes set forth herein; to wit, for a period of six months from entry of this Order, the parties shall communicate with each other (consistent with all of the provisions set forth herein) about the Subject Child only through the Parent Coordinator as set up and arranged with that Parent Coordinator; and thereafter, the provisions in this Order regarding written communication via email by one party to the other about the Subject Child shall take effect; and it is further
ORDERED that, should either party contend that the other party has failed to comply with the terms of this Order, the parties must meet at least once on such issue with such Parent Coordinator to try to resolve the matter before requesting any judicial intervention. Ms. P. shall bear seventy five (75) percent of the cost of the Parent Coordinator; Mr. H. shall bear twenty five (25) percent of the cost of the Parent Coordinator; and it is further
ORDERED that each party shall bear fifty percent (50) of the cost, if any, of the YWCA Safe Exchange Program; and it is further
ORDERED that David Peck, Esq., Attorney for the Child, shall remain assigned to the matter for a period of six months after the date of this Order to ensure that the parties are communicating via a parent coordinator and Mr. Peck shall communicate such in writing to the Court with copies to each party confirmation of same; and it is further
ORDERED that Ms. P. is directed to turn over to Mr. H. forthwith, via the Attorney for the Child, if it has not been done so heretofore, the original passport, birth certificate, social security card and any other relevant medical and legal documents of the Subject Child within her possession, custody or control; and it is further
ORDERED that any and all petitions filed by either party while this matter was sub judice, be and hereby are deemed moot and are dismissed pursuant to this Court's Decision and Order.
This constitutes the Decision and Order of this Court.