Opinion
File No. 194558
09-29-2022
In the Matter of a Proceeding under Article 6 of the Family Court Act v. E.P.B., Respondent. T.D., Petitioner,
Counsel for Plaintiff T.D. Law Office Of Ava G. Gutfriend By: Ava Gutfriend, Esq. Counsel for Defendant E.P.B. Fava Law Group, PLLC By: Marco E. Fava, Esq. Attorney for the Child E.P.B. The Law Office of Elizabeth S. Wilder By: Elizabeth S. Wilder, Esq.
Unpublished Opinion
Counsel for Plaintiff T.D.
Law Office Of Ava G. Gutfriend
By: Ava Gutfriend, Esq.
Counsel for Defendant E.P.B.
Fava Law Group, PLLC
By: Marco E. Fava, Esq.
Attorney for the Child E.P.B.
The Law Office of Elizabeth S. Wilder
By: Elizabeth S. Wilder, Esq.
Ariel D. Chesler, J.
It is an unfortunate reality and tragedy that certain acts and behavior exhibited by a parent are so dangerous, cruel and contrary to the best interest of a child that, despite an unquestioned bond and love that exists between parent and child, it is unsafe to permit the parent to have unsupervised access with the child or to permit that parent to continue as a joint custodian.
In this case, since the 2016 order of joint legal and physical custody was issued, the father controlled and dominated the child's physical custody and decision-making for the child to the exclusion of the mother, and severely limited the mother's access to the child over a course of years. In March 2019, when the parties withdrew pending matters in Bronx Family Court, the father coerced the mother to sign an out-of-Court agreement "mediated" by the father's then-girlfriend which purported to grant the father sole custody and which forced the mother to have only supervised access with the child, also to be supervised by the father's then-girlfriend. In early 2020, the father decided to relocate with the child to Florida without an agreement or Court permission, and despite being aware of the mother's opposition to the move and writs of habeas corpus issued by the Court against him and his mother, he fled with the child to Florida.
When the child was returned to New York at the Court's direction in March 2020, the Court issued a temporary order granting the mother temporary sole physical and legal custody of the child and directing the father to have supervised visitation. The child has been residing with her mother since that time.
Both parties filed petitions to modify their 2016 order of joint custody, although the father eventually withdrew his petition. The mother also filed a violation petition and the father filed a motion seeking to hold the mother in contempt.
After various delays due to the pandemic, among other things, the evidentiary trial in this matter was concluded in February 2022, and oral summations were made to the Court in July 2022.
The Court now grants the mother sole legal and physical custody of the child, and grants the father supervised visitation and contact with the child.
I. Background and Procedural History
The parties have one child together, a daughter, E.P.B, born XX XX, 2015. When the child turned one year old the parties had already begun their legal conflict. This first proceeding ended with an order dated June 8, 2016, which awarded the parties joint legal custody and shared physical custody with an alternating week schedule. The order also provided that any modifications to the physical custody schedule must be in writing.
In October 2016, only four months after the order of joint custody was issued, the father filed a modification petition alleging changed circumstances related to the mother's move to Pennsylvania. The father also raised concerns about the mother's mental health and judgment, the instability of her housing, and the child's having witnessed domestic violence between the mother's cousin and the cousin's girlfriend. In May 2017, the father filed a petition raising similar concerns. During the same time period in 2017, the mother filed her own modification and enforcement petitions claiming the father was not cooperating with the order of joint custody.
Based on the allegations and concerns raised by the father, between 2017 and 2018 a series of orders were issued by the Court granting the father temporary custody of the child and limiting the mother to supervised visitation. Initially, the mother was directed to have visits through ACS and later through Comprehensive Family Services. In addition, the Court requested a Court Ordered Investigation of the parties' homes, and mental health evaluations of both parties were conducted.
On March 25, 2019, the parties appeared in Court for a scheduled conference and, based on an out-of-Court agreement, withdrew all the petitions that were then pending, resulting in orders of dismissal being issued on all those petitions. No new order of custody was issued at that time, nor was the parties' 2019 agreement presented to be so-ordered or incorporated into a Court order.
It was later learned that the parties' agreement, dated March 20, 2019, appointed the father's then-girlfriend - V.A. - as mediator of all custody disputes. The agreement also purported to grant the father sole legal and physical custody and directed that any changes to custody had to "go through" V.A. Finally, the agreement provided supervised visitation for the mother for a period of six months, to be supervised by V.A., and increased the mother's time thereafter.
On March 2, 2020, the mother filed a petition for a writ of habeas corpus alleging that the father had not let her have visitation for a while and that there was a misunderstanding about the parties' March 2019 agreement. However, after speaking with her assigned counsel and advising the Court that the father had moved to Florida and had left the child in the care of the paternal grandmother, this petition was withdrawn and the next day a new petition was filed against the paternal grandmother - S.P.B.
On March 3, 2020, the Court issued a writ of habeas corpus directing that the child be immediately returned to the mother. Although the writ was served on the grandmother by the Sheriff on March 3, 2020, the child was not produced. On the next court date - March 5, 2020 - the grandmother appeared without producing the child. The grandmother, even after being assigned counsel, refused to cooperate with the return of the child. The father was reached on the telephone and appeared telephonically on the record. He admitted that the child was removed from the State of New York and was with him in Florida. At that point, he was directed by the Court to immediately return the child to Court by the next day and that his mother would be held by the Department of Corrections until he did so.
On March 6, 2020, the father appeared and produced the child. The writ was deemed satisfied and the grandmother was released from detention. At the same time, the Court appointed an attorney for the child, assigned counsel for the father, and put the matter on for recall. The matter was recalled and the Court heard from the AFC after she was able to interview the child.
On the same day, the Court then issued a temporary order of custody to the mother and directed the father to have supervised visitation through Safe Horizon. In addition, the Court ordered the Father not to interfere with the Mother's care and custody of the child; that the child's school not release the child to the Father, the paternal grandmother, paternal aunt or V.A.; that the child shall not be left in the care of the father, paternal grandmother or paternal aunt or V.A.; that the child is not to be removed from New York; that the parties handwritten agreement dated 3/20/19 is invalid and unenforceable; and that all orders of the court may only be modified by the court.
Since March 6, 2020, the father has had supervised visitation through Safe Horizon and Comprehensive Family Services and the Court has periodically received reports regarding the visits.
The trial in this matter was held over eight days between June 14, 2021 and February 28, 2022.
II. Trial
A. Evidence
The Court took judicial notice of and admitted into evidence the various petitions and orders referenced above. In addition, the Court admitted into evidence the numerous supervised visitation reports and the parties' March 20, 2019 out-of-Court agreement, certain text messages and photographs, and other records provided by the father.
B. Testimony
1. The Mother's Testimony
The Court finds the mother's testimony credible. The mother testified in an honest, detailed, and genuine way, and although she was imprecise at times, there was nothing that seriously called into question the credibility of her testimony.
In response to the Court's opening question about what she was seeking in the case, the mother explained that she wanted to "work out a deal" and make sure the father saw their daughter but also ensure that he not kidnap her again and that there were boundaries. At the time of trial, the child was six years old and living with the mother and the mother's three-year-old daughter M.D. in Yonkers.
The mother's understanding of the 2016 order was that the parties had shared custody which meant that they had a week-to-week schedule. For a while (a few months), the schedule worked well until the mother moved to Pennsylvania, where she lived for about six months, and the father filed false accusations about her in Court. Specifically, a few months after the 2016 order was issued the mother began living in Pennsylvania, including when the father filed a modification petition in October 2016.
The mother admitted that she moved often to various residences following the 2016 order.
Even after she moved to Pennsylvania, she would pick up her daughter in New York every other week and then return her at the end of the week. There were no problems with the schedule until October 2016. However, there were issues with decision making as the father took over all decision making and "called the shots"; she did not have any say and she was scared of him. For example, on one occasion the father "gave her a hard time" getting her daughter's insurance card. During that time, the father would also not tell her about their child's medical appointments, and she "wasn't allowed" to know the location of the doctor.
The father began asking if they could exchange the child every month rather than every week but the mother did not agree to that.
The mother explained the father has a temper and when he's mad he "gets crazy." She was also scared because he is an "MMA" fighter and his hands are "registered," and he would threaten "consequences." The father also changed after his brother was shot and killed in Ohio. Specifically, he would act "good" and then act "bad" and was "flippy-floppy." There was an incident where they got into a physical altercation and the father tried to take her phone from her and they were hitting each other. She also saw him punching walls. It was after that altercation that he called the police and told them the mother is crazy and the mother was taken away in an ambulance. The father had also told her that he is schizophrenic and bipolar. She went with the father to his doctor/therapist upstate who handled these concerns. The father also took a lot of medication but she was not sure what it was.
Although the mother was shown a medical record from March 12, 2019 showing the child was seen "in the presence of the mother," the mother stated she was not in fact there and that perhaps it was V.A. who was there.
Although the father's case was withdrawn in December 2016, the mother had moved to Staten Island and there was still friction between the parties. The father made visiting and picking the child up difficult for the mother. At around that time in early 2017, the mother was pregnant and the father's then-girlfriend V.A. threatened the mother a few times; she also told the father about these threats. The mother also filed many police reports because the father was not letting her pick up the child.
The mother moved back to the Bronx around June of 2017.
The mother met V.A. when the subject child was one year old. She knew that she and the father were in a relationship and had a child together. At some point, the mother and V.A. were friendly. However, the mother and V.A. had an argument when the child was four years old during which V.A. said she was the child's mother. The mother told the father that she was concerned that the child thinks she has two mothers. The father told her to "get over it" and that V.A. was her mom too. The mother also observed that V.A. had a tattoo on her arm of the child's name. On other occasions, the mother also told the father that V.A. was being disrespectful, and he told the mother to ignore her.
At some point in the first five months of 2017, the father also insisted that he had full custody of their child. The mother was confused and came back to Court to ask about the order of joint custody. But the father told her that she had no "say so" and that their daughter lived with him and she had to follow whatever he tells her.
At that time, the father lived both in Connecticut and in the Bronx with his mother. However, the parties always exchanged the child in the Bronx. The mother had been to the paternal grandmother's home in the Bronx. At that time, the father lived there with his mother and two sisters.
The mother's view of the paternal grandmother's involvement in raising the child was that she thought she was the child's mother. In fact, the paternal grandmother made a lot of decisions for the child.
The mother recalled the father filing another petition in May 2017 but could not recall all the accusations he had made. She was confused about the father making allegations about her boyfriend threatening him as the two had never met. At that time, the judge handling the case ordered her to have visits through ACS. However, ACS did not do many visits and made it hard for her to see her daughter.
The mother explained that after an altercation between her and the father in 2017 the father called the police, told them the mother was crazy and she was taken by ambulance to a hospital. Although the mother was admitted to the hospital she was released the next day and directed to engage in therapy. She has never been psychiatrically hospitalized other than this time. She had also never needed a therapist for mental health concerns prior to this time.
During that time period, she recalled having only four visits through ACS and between June and September 2017 she had no phone contact with her daughter, about which she was "emotional." And, in 2017 and 2018 the case kept getting delayed and "the Courts" kept her from seeing her daughter.
The mother clarified that ACS visits ended at the end of 2017 because ACS could not continue to monitor the visits. She was frustrated with the delays and the Court process, and ultimately, she had no supervised visits between December 2017 and December 2018. In fact, she was unable to see her daughter until all the matters were withdrawn in March 2019. The mother had also given birth to her younger daughter in November 2017, but the two girls did not see each other before March 2019. Therefore, the subject child did not meet her sister until she was more than one year old; the mother was emotional and thought it was "not right" that the children did not get to meet at an earlier point.
There were orders directing supervised visitation issued on September 29, 2017 and November 8, 2017 among others and thus the Court was controlling visitation.
Between 2017 and 2019, the mother lived in the Bronx. At some point the paternal grandmother would let her see her daughter inside her house but would not let her take her outside the house. Thus, although she was having some visits they were controlled by the father and his mother. However, once the Court proceedings commenced and ACS visits were ordered these unsupervised visits stopped. In summary, the only visits she had between May 2017 and March 2019 were for a few months period in 2017 through ACS. The mother attempted to get more visits by filing petitions.
The Court clarified on the record that orders issued on December 22, 2017 and April 9, 2018 directed visits to take place through ACS.
In March 2019, V.A. reached out to the mother to discuss an agreement. In fact, she never discussed a resolution with the father but only with his then girlfriend. She and V.A. met at a McDonald's and the mother was told that the agreement would continue the shared custody but the mother didn't understand what V.A. was saying. The mother understood that if she signed the paper she would be able to see her daughter.
Months later, the father told the mother that she had to follow six months of supervised visits which she did not understand. She thought the agreement would mean returning to the prior arrangement when she had regular access. When the parties were in Court in March 2019, the mother's prior lawyer told her that "they were trying to make her sign over her rights" and the mother told her lawyer she did not understand the agreement she had signed.
Although the mother admitted she signed the March 2019 agreement, she stated that she didn't understand certain things and that the written agreement was different from what V.A. had explained the deal would be. When all the matters were withdrawn in March 2019, the mother believed the parties were returning to joint custody under the order issued by the Court. However, the father told her that if she did not follow the signed agreement they would be back in Court.
She was able to see her daughter the day after the Court cases were dropped at a Chuck E. Cheese. Specifically, V.A. brought her daughter to meet her, as if it was a supervised visit. That first visit lasted about 30 minutes and her two daughters were able to meet. The mother was also invited to attend a fourth birthday party for her daughter in Connecticut. Thereafter, V.A. would meet her at a park with her daughter whenever she was able.
Although she thought she still had joint custody, she did not want to keep fighting with the father and was worried that if they returned to Court she would be prevented from seeing her daughter again. In any event, between March 2019 and March 2020, she saw her daughter under V.A.'s supervision around one time each week. Most visits would last around 30 minutes. Anytime she spoke to the father about having more time, he would insist he had full custody and that her visits had to be supervised. In part, he explained that the visits had to be supervised because he did not want their daughter around the mother's fiancé, S.G.
In September 2019, the father and V.A. had an altercation. Thereafter, between September 2019 and February 2020, the father agreed to allow the mother to have unsupervised visits. The father allowed her to see the child a few times a week and there were not the same time restrictions. However, she was only allowed to have visits at the paternal grandmother's home with two exceptions where she was allowed to take the child out for a day. During these visits, either the paternal grandmother or paternal aunt S.R. were there. The parties continued to argue about whether they had joint custody.
The mother did not return to Court until March 2020 because she was "fed up" with the court process and the father using the courts against her.
In September 2019, the father also raised the idea of moving to Florida, but the mother did not agree that the child could move there as it was "way too far." She also thought that such a move would be unfair and she wondered how she would see the child.
Between March 2019 and February 2020, the mother also observed the father discipline the child. For example, in April 2019 at the paternal grandmother's home after an incident in which the child lied, she saw the father hit the child with a belt twice on the child's butt and tell her to look at the "f'ing wall." The child began crying. Soon after, she was "off punishment" and allowed to play again.
Another time she saw the child start crying and asking why the mother couldn't take her. The father reacted by telling the child to "get in the f'ing room." He was screaming at her and came towards the child with a belt. The mother did not see what happened next. The mother never intervened during these incidents because she was afraid of the father; he is much bigger than the mother. She was also scared of him because when she and the father were in a relationship she suffered a lot of mental and verbal abuse.
The mother disciplines the child by taking away her iPad or other toys. She never hits her.
In or around September 2019, she was visiting the child at the paternal grandmother's home and was alone with the child and father. In private, the father tried to "make a move" on her or give her a kiss, and she rejected him. He in fact tried to have sex with her by "whipp[ing] out his private area" but the mother ran out of the room. A few months later, the father similarly tried to have sex with her and asked if she "was gonna give up the buns" which means "give up some ass." The mother did not appreciate this behavior especially since she had a boyfriend, and she felt uncomfortable seeing her daughter at that home.
Between March 2019 and March 2020, the father invited the mother to the child's school once for a play. The mother understood that V.A. had enrolled the child in school because V.A.'s name was on all the paperwork with the school. She saw a Blue Card at the school with V.A. listed; the father and his sister S.R. were also listed. V.A. had been listed as the child's mother.
The mother had gone to school in February 2020 after the father denied her the right to have an overnight visit. The father was also preventing her from picking the child up from the school which led the mother to further investigate, and the school "gave her a hard time" about picking up her daughter. When she had asked the father about this issue, he told her to "take it up with his mother" because he had moved to Florida.
The mother later learned that the father had given the school a copy of the 2019 out-of-Court agreement.
The mother explained that at around the time she went to the school, their child had gone on vacation to Florida with the father and returned to New York on February 27, 2020. When she attempted to pick her daughter up from school, the school told her she was not permitted to do so. The mother was confused and showed the school the 2016 Court order, and the school claimed it had to be updated.
She then went to Court and filed for a writ of habeas corpus. When the Court issued the writ, she went to the school with the sheriff at around noon on or around March 3, 2020. The sheriff had called the school in advance and directed that the child should not be released to anyone else. However, when they arrived, they discovered the child had been released. The sheriff then called the father; the mother could hear the sheriff and the father yelling at each other. She also heard the father claim the child was in New York, then Florida. The mother also learned that the father's sister - L.P. - had picked up the child.
When she was at the school and trying to communicate with the father, he texted her that it would be her fault that the child is taken from him, that he is the better parent, and that the mother couldn't afford the child. She also personally read a text that the father sent to the mother's sister which said "because of your sister my mother went to jail and my daughter won't have a father." The mother did not have a conversation with the father after that time.
After the child was released to her in March 2020, she did not have conversations with the father. He tried to call her and wrote her a couple times. In August 2020, she received a voice message from him in which he said that he was told it was okay to call her and to do video calls with the child. She had no further contact or communication with the father after August 2020 and he never called to ask about the child's health or welfare.
On the day the child was released to her she observed the father following her and she was "speed walking" until she got into her sister's car with the child. She also heard him yelling to the child "don't worry" and "Daddy's gonna get you back." The child began crying and the mother hugged her and said "Daddy is always going to be in your life."
Between March and August 2020, the mother did receive communications from the father's sisters G.B. and E.B.. The mother knew G.B. well and at one point lived with her in Iowa with the child when the child was around two months old. However, her good relationship with Gretna ended when the parties started coming to Court. The mother was also upset by a threatening voice message that Gretna left her on or around March 20, 2020. She also got an upsetting message from Elizabeth in early March 2020, and overall received up to 30 messages from her.
When the father began having supervised virtual visits through Safe Horizon the mother overheard him threatening their daughter that he would have the mother's other daughter taken from her. In or around March 2020, the mother overheard the father saying other concerning things, including calling the child a liar about going to the mother's sister's house. In June 2020, the mother heard the father telling the child that her dog died because she missed the child, which the mother found to be inappropriate. After that call, the child broke down crying. There were a few other times the mother heard the father asking inappropriate questions of the child during visits, including about the mother's fiancé.
It was very difficult when the child came to live with the mother in March 2020. If not for therapy, the child would not have "opened up" to her mother. Some days the child would break down crying and the mother did not know what was going on with her. The child would often open up to the mother's fiancé but not the mother, and would say that the father told her she had two mommies.
The mother never told the father about the child's therapy. Even though there was no order preventing her from speaking to him she was concerned about how he manipulates what she says.
The mother's fiancé did not live with her but stayed over sometime and was with her and the child a lot. He is also the father of the mother's younger daughter. Although he loves the subject child, her fiancé is afraid to get too close because of allegations made by the father. He does buy her things and take them all out.
The mother lived in a large 1-bedroom apartment for around a year; the subject child and her sister shared a bedroom. They have two beds in the room, two chairs, toy organizers, a big bucket of toys, a toy car, and a television. The mother sleeps in the living room on a sofa bed. There is also a large kitchen in the apartment, and a bathroom.
The mother ran her own business, an online boutique for women; she was also attending an online school for business. She can set her own hours for this work. She will be available to be with her kids when they are done with school each day. She also expected to be done with the school in a year. Although her fiancé wanted to marry in a year, the mother thought they should wait longer. While she might want a bigger apartment in the future she intends to remain in Yonkers.
The child was in first grade. She previously went to school for Pre-K in the Bronx and the mother had "no say" in selecting her school. The mother didn't say anything because she didn't want to argue with him. The father just advised her that the child would attend the school near his mother's home, which was PS 55. V.A. was the one who invited the mother to the child's first day of school.
Currently, the child has some special needs. She is hyper and loses focus. The mother had to refocus her often when she was learning virtually. The child also has an IEP and the school will evaluate her further. She has had a difficult time setting these things up because the father has the child's documentation and he is still listed as the head of the child's household on her medical insurance. The child also needs to stay in therapy and may need a new referral.
Although she asked the father about the pediatrician, she was not allowed to go to appointments and was told "it's fine" or "it's under control." Once she was disallowed from going to the emergency room when the child may have had an asthma attack. The father insisted he had all the rights and wouldn't even share the child's Medicaid card. She had many conversations with the father about this over the years.
The mother wants the child to spend time with the father and have a relationship, but perhaps only take her for day visits. She was concerned about other people getting involved in their parenting decisions and she just "wants peace." She knows the child loves her father, and the mother wants her to have a father in her life. In terms of coparenting, she was hopeful the parties could "come together." She did not want to fight or have drama or problems.
If the father remained living in Florida, the mother would try to work out a visitation schedule based on all of their schedules. The mother would be okay with the child sleeping over at the father's home but was concerned about her going to the paternal grandmother's home. The mother would also be okay with the child spending longer amounts of time with the father in Florida. However, she was also concerned about the father kidnapping the child, manipulating her, or having other people around her that brainwashed her because "no child deserves that." She was also concerned about the father hitting the child and questioning the child.
The mother did not have the father's address in Florida or his phone number. The mother's address was confidential and she did not give the father her current phone number. She was worried that the father and his mother and sisters are "malicious" and "become crazy."
2. The Father's Testimony
The Court finds that the father's testimony was often incredible, inconsistent and self-serving even though he was credible at certain times. Most significantly, the father was particularly incredible when he claimed not to know about pending court proceedings at the time he came to New York from Florida for the specific purpose of returning with the child to his new home in Florida. Nor is it credible that the mother agreed for him to move with the child to Florida as he claimed. In contrast, he was credible when he admitted to "freaking out" about the mother's threats to take him to court over his intended move to Florida. He was not believable when he claimed the mother was able to pick the child up at her school even though she was not on the Blue Card. The court also finds his claims that he kept the mother involved and informed about their child and his denial of using corporal punishment to be incredible. The father's claims regarding his concerns about the mother's mental health are also unsupported by any other evidence.
The father testified that he had been living in Orlando for about one and one-half years. He lived alone. His son - Eddie Jr., born on September 9, 2018 - lived primarily with his mother, V.A., in the Bronx. The father was no longer in a romantic relationship with V.A. He co-parented with her and had alternating holidays and the Summer with their son. He had another five-year-old son - L.B. - who lived with his mother, C.M., in Iowa. He sees L.B. every other month but mostly does video chats with him.
Prior to that he lived with his mother in the Bronx for about 28 or 29 years of his life. He also lived in Waterbury, Connecticut for around six months from January to June 2019. He finished trade school and runs his own business in Orlando replacing automotive glass. Previously, for around two years, he was an EMT for the Bronx 911 system. He also served in the Army National Guard.
According to the father, since the child was born, he and the mother did everything together to set up the child's medical providers. They both attended the intake appointment with Dr. Tenzin, the child's pediatrician. The parties had discussed selecting a doctor and they chose this one based on the recommendation of the father's sister, S.R. He thought the mother seemed fine with using this doctor. He also claimed the mother did attend medical appointments.
The father denied hitting the child with a belt and cursing at her. He explained that during the incident when the mother told him their daughter had lied, he gave the child a look and spoke to her about why it's not good to lie. He then took away her toys and "put her on time out." He also explained that the child was generally good and he would just correct her verbally and she would say "sorry." He never hit her with a belt.
Regarding the mother's claim that he had tried to have her admitted to a psych ward, he insisted that she "did that on her own." He specified that in February 2016, everyone in his family was grieving because his brother had been murdered. This included the mother who was close to his brother. At that time the mother was writing the father messages on Facebook and one day he arrived home from work to find the mother locked in the room with the child. The lights were off and the mother had a knife and she had previously written that she wanted to kill herself. He grabbed the baby and the mother got mad.
The father admitted that the child appeared to be fine when he arrived. He also admitted that the mother left with EMS willingly.
The police were called and he saw them check the baby and then go into the bedroom. EMS soon followed and took the mother out and to Bronx Lebanon Hospital. The mother remained in the hospital for two or three days and was then released.
Another incident happened in February 2016. The mother saw that another girl "liked" a photo the father posted on Instagram and started hitting him and trying to take his phone. This happened in front of the child, his mother and his sister and niece. The next thing he knows the police arrived. The police saw her hitting him and removed her and EMS came again. The mother was taken to the hospital but stayed for a shorter period because the father went and asked for her to be released. After these incidents the mother saw a therapist to discuss her anger and jealousy issues.
The father admitted that a few months after these incidents he agreed to an order of joint legal custody with the mother. He noted that the mother appeared more stable at that time.
According to the father, he never knew the mother's exact address. He only knew the general places she was staying in Pennsylvania, the Bronx or Staten Island. At the time of the 2016 agreement the mother was residing down the hall from his mother's home where he and the child were living. At the end of 2016 the mother moved to New Kensington, Pennsylvania which was around six hours away from New York. The mother told him she moved because she had problems with her cousin with whom she had lived, and moved in with her brother and cousin in Pennsylvania. He recalled the mother lived in Pennsylvania until early 2017.
In the months after the 2016 order, the parties exchanged the child every week without problem. The parties were able to exchange the child in the building where everyone was living at the time. He never withheld the child from the mother during that time period.
After the mother moved to Pennsylvania she wanted to change the parental access schedule. The mother did not drive and took the bus from Pennsylvania. They then agreed to exchange the child every two weeks. Most exchanges took place in New York because the mother did not want him to know where she lived. However, he did pick up the child once after the mother told him that her brother was abusive with his children and got into a fight in front of her and the child. The mother made him meet her at a cross street rather than give him the exact address.
The father took the child to the doctor after picking her up from Pennsylvania because she had a very bad diaper rash and acted "jumpy" as if she were traumatized. It was after this incident that he filed a petition in Court. At some time thereafter the mother told him she moved to Staten Island with her cousin's wife.
The exchanges continued every two weeks while the mother was living in Staten Island between January and April 2017. There were no issues with the mother getting parental access during that time. From May 2017, when the mother moved to the Bronx, through August 2017 the mother continued to see the child every two weeks. At that time, the mother also asked him to visit their child at his home because she did not feel safe bringing the child to her home in Staten Island because her cousin's boyfriend "was like trying to rape her" and was "on the sex offenders list."
In 2017 the father filed a petition because he was being threatened by the mother's boyfriend Stephen. He had alleged that the mother was not stable, put the child in harm's way, and that she and her boyfriend are trying to set him up to be killed or arrested and take the child from him.
During that proceeding the mother was ordered to have supervised visits through Comprehensive Family Services but the intake appointment never happened. The father believed that someone never set up the visits, and nobody ever contacted him from CFS. Visits then happened through ACS although only "some of them happened." A few times he went to "the visits" and they did not take place. When the visits did not take place, the child would cry, and not want to talk or play. According to the father, visits happened with ACS through the end of 2018. He believes there was also a visit in January 2019. He admitted that there were long stretches of time that the mother went without seeing the child, and that he had filed "plenty" of petitions in 2016 and 2017.
After January 2019, the next time the mother was able to see the child was in March 2019 after the father withdrew his petition. He withdrew his case because he thought he, the mother and V.A. had reached an agreement for the mother to be in the child's life; they came up with some conditions and signed an agreement and had it notarized. The agreement was negotiated; each party gave input and V.A. "played mediator." He believed the agreement was drafted by V.A., the mother and the mother's sister. The agreement was signed at a notary office. At the time of the agreement the father lived in Connecticut.
The father admitted that although he told his attorney about the agreement, he never told the Court and it was never mentioned in the courtroom. He also acknowledged that he chose to write the contract rather than go into court to modify their prior order.
Under the agreement the mother had frequent visits supervised by his mother, sister or V.A. The father explained that he and various family members were concerned that the mother had "always ended up in bad situations" and they insisted on supervised visitation to ensure the mother and child were safe. However, following the agreement they co-parented well and even talked directly without issues. The father also believed that V.A. could be a fair mediator at the time.
Between March and December 2019, the parties had discussions about Florida. At first, moving to Florida was "just an idea." Later the discussions were serious. They discussed it in person and came to an agreement. They agreed that he would take a trip to Florida with their daughter, and then the child would return and stay with the paternal grandmother and the mother on an alternating basis through August 2020. They had also discussed the mother having parental access during holidays and summer.
The father's intent by the end of 2019 was to move with the child to Florida. He signed the lease on his Florida apartment on March 1, 2020. He did not draft a new agreement that permitted the relocation. He thought it was fine to move without a court order because the mother said it was okay. He could not recall when the mother consented to the move but it was done verbally. The father also did not think a move to Florida would impact the mother's relationship with the child because the mother could call or visit whenever.
Yet, he never enrolled the child in school in Florida or told the New York school she was being dis-enrolled.
In February 2020, he took a trip to Florida with the child, his mother, his sister, S.R., and his son. He told the mother about this vacation and the mother visited to say goodbye before they left. She also spoke to the child every other day during the trip which lasted from February 13, 2020 until February 25, 2020. The father remained in Florida while everyone else had returned to New York. The child had returned to New York and was being watched by the paternal grandmother.
The father came back to New York during the first week of March 2020. Specifically, he came to get the child and bring her to Florida because the mother had threatened him about returning to Court and seeking custody. He was nervous and wanted to make sure the child was safe and he "went and got her." He admitted he "freaked out" and made an "emotional decision" because he was "scared [the child] would be taken away" and he would "never get to see her again." He then returned the child to New York immediately after the Court directed him to do so.
According to the father, the mother threatened to send the child to live in Pennsylvania with the mother's sister, and threatened that her sister's boyfriend would shoot the father if he came onto the property and they would ensure he never saw the child again.
The father explained that over a couple of days he drove 14 hours to New York arriving on March 3, 2020, retrieved the child, and then immediately began driving back to Florida on the same day. He may have started driving to New York on February 28, 2020. He did this because he was scared and rather than stay in New York and deal with the issues. He explained that his sister S.R. had picked the child up from school and then he got the child from his sister. He had asked his sister to pick up the child so he could sleep.
According to the father, the conflict about the move occurred because on February 12, 2020, the mother had an "episode" and she and V.A. got into a physical altercation. Specifically, the mother smacked V.A. and started fighting "on top of the kids." Thereafter, the mother did not give him permission to move. While this was all happening, his mother did not tell him about the court proceeding in March 2020 because she did not want him to worry and thought she could handle it.
The father recalled when he was on the phone with the Court in March 2020 and was told to bring the child back to New York. He denied knowing about the court proceeding when he went to retrieve the child from New York and took her to Florida, and claimed not to know anything until he was called by the Court. He did not remember the exact day he came to get the child.
Since the mother was given temporary custody, the father only had one in-person visit with the child. He was supposed to have other in person visits but they did not take place. He understood that the mother canceled the visits in March and September 2021. The father also had video and phone visits. Many of those visits were missed as well. He also had gaps in visits because CFS changed the assigned social worker and the father was waiting to hear from them.
The father described his bond with the child as "amazing," and explained how they did everything together and he taught her how to fix cars. He also stated that the child had a great relationship with his mother. The child is also close with this sister S.R. and S.R.'s daughter E.D., who is like a best friend and sister to the child.
The child is also a loving, protective older sister to the father's son and calls him "her baby." In addition, the child had a good relationship with V.A. who treated the child as if it were her daughter. The child called V.A. "mama" and "mu-mu"; when she did that the father would remind her that the mother was her mother.
The father admitted that the mother was not on the child's Blue Card at the school and claimed that he was the one who had filled out the card. He also admitted that V.A. was on the card. He explained that he had not listed the mother on the card because was not reliable and was living in various locations. The father had also enrolled the child in her school and had included the mother's information in the application. He told the mother that the child would be enrolled at the local school and she never had a problem with that. He also maintained that there were times the mother was able to pick the child up from the school in the Fall of 2019.
He agreed, however, that it would be important for the mother to be contacted if there was an emergency. On the other hand the father did not think who was included on the Blue Card had anything to do with co-parenting.
The father had tried to reach out the mother since the March 2020 order was issued but she won't take his calls. He also thought he wasn't allowed to contact her during the proceedings. He does not know what school the child is currently enrolled in or anything about her therapist.
The father asked the Court to keep the 2016 order of joint custody in place. However, he also wanted the child to come live with him in Florida. He explained that she could attend Orlando Christian Prep, across from his house. Because he is a veteran and gets benefits, the child could go to that private charter school. He also believed that Florida was a better, safer environment for children.
III. Discussion and Decision
A. Parties' Positions
The mother proposes she be awarded sole legal and physical custody of the child. She also proposes that the father be granted supervised visitation only through the Society for the Protection and Care of Children. She also proposes that the father participate in individual therapy with a clinical psychologist trained in parenting and domestic violence counseling. She further proposes that after no less than six (6) months of the proposed supervised visits and therapy the father may petition to modify the visitation order.
In the event the mother is granted custody, the father proposes that he have daily video chats with the child, six weeks of parental access in the summer, alternating holiday and school breaks, and up to a week of time during the school year upon thirty (30) days' notice.
The Attorney for the Child also supports an award of sole legal and physical custody to the mother with the father having independent access to the child's medical and educational records and the mother obligated to update him regularly about the child's welfare. In addition, the AFC also proposes that the father have weekly supervised video visits, and should be able to send gifts, cards and letters to the child. She also suggests that he have in person supervised visits on Thanksgiving, Christmas Eve and Christmas Day, New Year's Eve and New Year's Day, Easter, the child's birthday, the father's birthday, and the birthdays of the father's other children, as well at other time with at least 4 weeks' advance notice.
The AFC also suggests that the visits can be supervised by CFS, Safe Horizon, NYSPCC, or by a person mutually approved by the parties. The AFC further recommends that the father be permitted to bring his mother or his other children to visits.
B. Change in Circumstances
"A custody or visitation order may be modified only upon a showing that there has been a subsequent change of circumstances and modification is in the child's best interests" (Matter of Santiago v Halbal, 88 A.D.3d 616, 617 [1st Dept 2011]). The first or "controlling 'material fact' is whether or not there is a change in circumstances so as to warrant an inquiry into whether the best interests of the children would be served by modifying the existing custody arrangement." (Robert OO. v. Sherrell PP., 143 A.D.3d 1083, 1084 [3d Dept 2016]; see also Sergei P. v. Sofia M., 44 A.D.3d 490 [1st Dept 2007]). Once a change in circumstances has been demonstrated, "the parent then must show that modification of the underlying order is necessary to ensure the child's continued best interests." (Matter of Menhennett v Bixby, 132 A.D.3d 1177, 1179 [3d Dept 2015]; see also Christopher H. v. Taiesha R., 166 A.D.3d 548 [1st Dept 2018]).
In this case, there have been many significant changes of circumstances since the parties agreed to share joint custody in 2016. Initially, at the time of the agreement the parties lived in the same building in the Bronx and followed their agreement to share custody and alternate weeks with the child.
In addition to the various changes in the mother's residence over time, and the years of litigation which severely limited the mother's parental access, the evidence demonstrated that the father, aided by various family members, exercised total control and possession of the child and dictated the mother's involvement and ability to co-parent and visit the child.
More specifically, the father consistently and repeatedly limited the mother's access to the child's school and doctors, tightly controlled her time with the child with certain occasional exceptions, raised the child to believe his girlfriend was also her mother, threatened the mother with litigation and in fact followed through on his threat which ensured her access was limited. After years of litigation and when the mother was desperate to see the child, the father and various family members manipulated the mother into signing an unconscionable out-of-Court agreement which purported to give him sole custody and demanded she have supervised visits.
Finally, in a brazen, terrifying, and knowingly illegal act, the father's control culminated in his purposely taking the child from her school and kidnapping her to Florida without any regard to then pending court proceedings. Rather than deal with his conflict with the mother in Family Court he resorted to self-help of the most dangerous sort, to wit, taking a child across state lines and over a thousand miles from her home without any authority to do so and without regard to the mother's custodial rights or her relationship with their child.
In sum, there has been a significant change of circumstances warranting further inquiry into whether the child's best interests would be served by revisiting the 2016 order of joint custody.
C. 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]).
Here, although the prior custody order has been in effect since 2016 the undisputed evidence is that the schedule and joint custodial arrangement outlined in the order actually lasted only a few short months. In other words, there is not a long history of compliance with the 2016 order. Indeed, both parties testified that they had mutually agreed to change the schedule. In addition, and much more significant, the father immediately took control of any major decisions for the child and, even when he kept the mother informed of them, he excluded her from any decision-making role.
However, the custodial arrangement that has been in place since March 2020 pursuant to the order of this Court is that the mother is the primary parent. There is no record evidence raising any concerns with her parenting or the welfare of the child since March 2020. In fact, the Attorney for the Child has reported that the child is doing well in the mother's care. The mother also explained how she enrolled the child in therapy to help her "open up" and heal from the trauma she has experienced.
Next, the Court considers, as it must, the factor of domestic violence (see DRL 240[1]). Here, the allegations of domestic violence and particularly control are extensive. First, the mother explained her reasonable fear of the father based on his temper, having witnessed him punch walls, "get crazy," and having engaged in a physical altercation with him during which he hit her. The father continuously leveraged that fear by exerting coercive control over every aspect of the child's life. The mother also experienced the father repeatedly threaten to take her to Court, threats he carried through with to ensure his control over the child. Similarly, the father was able to use allegations about the mother's mental health to exert control, have the mother hospitalized, and then repeatedly use that fact against her despite no concerns being established about her mental health in Court or otherwise.
Overall, the father aided by his mother, sisters, and V.A., engaged in a widespread collaboration to maintain total control and possession of the child, to frustrate and impede the mother's ability to co-parent the child, and dictate the mother's access to the child. Their collective behavior brings to mind the adage that "possession is nine-tenths of the law." Here, the father and his family used their possession of the child to force the result they desired despite the actual law and joint custody order that existed. This is purposeful control of the most serious order.
A critical factor in any custody determination is the ability to facilitate the child's relationship with the other parent. While there were some concerns raised about the mother's ability to ensure the father's contact with the child, she raised valid concerns about the father's conduct during the supervised visits. And, once admonished by the Court she fully complied with supervised visitation. Further, despite all that had occurred she advocated for more time for the father.
In contrast, the father at every turn frustrated the mother's access and failed to follow the order of joint custody. He went so far as to have the mother arrested following a physical altercation with him, and utilized his claim that she was mentally ill to continue his control. He continued a two-year campaign of litigation to ensure the mother could not challenge his "superior" right to parent and possess their child.
In addition, the father, aided by other family members, manipulated and deceived the mother into signing an outrageous out-of-Court agreement which purported to give the father sole custody and the mother supervised visitation. The agreement was made at a time when the mother was desperate to see her child, and was "mediated" by a clearly biased V.A., who was one of the individuals most responsible for interfering with the mother's rights. Finally, this agreement usurped the power and role of the Court to resolve custodial conflicts and modify orders of custody, demonstrating the lengths the father would go to get his way.
Finally, in the most brazen and extreme act designed to defy the Court and frustrate the mother's rights, the father drove to New York, had family members help retrieve the child from school, and fled to Florida all while he was aware of the mother's efforts to pick up the child from school and the existence of court proceedings demanding the return of the child to the mother. In sum, the father's ability and will to frustrate the mother's rights have no bounds.
The testimony regarding the parties' respective homes is not a significant factor in this case. Suffice to say that the child would be well cared for in either home. Although, it is noted that the child's home has always been in New York and remaining here rather than leaving all she knows for Florida is another factor dictating she remain with her mother. Overall, the child's safety and stability are supported by remaining with her mother.
The Court does not give significant weight to any evidence regarding the parties' finances.
Contrary to the father's repeated claims, there is no evidence to support any mental health concerns for the mother, and thus this is not a factor that can be properly considered. However, the Court does consider the serious harm the father caused to the child's mental health by separating her from her mother for extended periods of time, confusing her about who her mother is, kidnapping her to Florida, and by the various hurtful statements he made to the child during supervised visits. Similarly, there are concerns about the father's use of corporal punishment whereas the mother did not discipline the child physically.
The best interests of the child would also be furthered by allowing her to remain living with her sister who she has lived with for the past two and one-half years and with whom she is strongly bonded.
The Court does consider the position of the Attorney for the Child who strongly advocated that the only result that would protect the child's best interests would be an award of sole legal and physical custody to the mother.
Although the father wishes to return to the order of joint custody, the reality is that he could never be trusted to follow such an order, and the circumstances here - including an acrimonious relationship between the parties, lack of communication, and years of litigation - do not support the continuation of joint custody.
In sum, the evidence strongly warrants that this Court grant sole legal and physical custody of the child to the mother. The mother shall notify the father of any medical emergencies involving the child and any major decisions for the child's health or education, shall provide the father regular and periodic updates about the child's health including medical reports, and shall provide access for the father to receive the child's report card.
Further, given the history of manipulation by the father, the parties may not modify or change this order of custody without review and approval by a Court of competent jurisdiction.
D. Visitation
Although in general non-custodial parents have a right to visitation with their children (See Weiss v. Weiss, 52 N.Y.2d 170, 175 [1981]), where issues of safety and harm to children are raised, as here, the best interests of the children may require no visitation or limited and/or supervised visitation.
Here, the Court must conclude based on the circumstances in this case that unsupervised access poses a significant risk and is therefore not feasible or in the best interest of the child at this time. Indeed, the position of the attorney for these child supports only supervised visitation for the father. Among other things, the father never addressed the issue of his kidnapping effort, never engaged in therapy or domestic violence counseling, and never demonstrated true insight or accountability for his actions.
While the supervised visitation reports show a clear bond between father and child and overall were positive, they do not support an award of unsupervised visits which continue to carry a risk of flight, especially given that the child is only seven years old. Nor can some other form of supervision, such as utilizing family members, be deemed appropriate here given the involvement of the father's family in frustrating the mother's rights and relationship with the child. In sum, supervised visitation is appropriate and necessary for the child's safety.
Notably, supervised visitation is not considered a deprivation of meaningful access to children (see Matter of Graham v White, 16 A.D.3d 583 [2d Dept 2005]; Lightbourne v. Lightbourne, 179 A.D.2d 562 [1st Dept 1992]).
Here, the father's past conduct of exercising various means of control and violence, violating orders of this Court, combined with his kidnapping the child to Florida provides an ample basis for a determination to deny him unsupervised visitation (see Matter of Lane v Lane, 68 A.D.3d 995 [2d Dept 2009]).
It is the determination of this Court that the risk of flight and the potential for severe negative impacts on the child's safety, mental health and well-being in giving the father any unsupervised visitation warrant a direction that the father be limited to only supervised visitation through Comprehensive Family Services to be paid for by the father (see Matter of Arcenia K. v Lamiek C., 144 A.D.3d 610 [1st Dept 2016]).
As suggested by the Attorney for the Child, the father should have weekly supervised virtual video visits with the child, as well as 3 hours of supervised visitation in person with the child on the following holidays if advance four weeks advance notice is provided: Thanksgiving, Christmas Eve and Christmas Day, New Year's Eve and New Year's Day, Easter, the child's birthday and the father's birthday. Further, the father may have similar supervised in-person visits in New York at other times upon four weeks advance notice and based on the availability of CFS.
Further, based on the serious concerns raised here, as part of this order of custody and visitation, the Court is sua sponte issuing an order of protection on behalf of the subject child (see Family Court Act § 656; see also Jamel W. v. Stacey J., 136 A.D.3d 552 [1st Dept 2016]; Anderson v. Harris, 73 A.D.3d 456 [1st Dept 2010]). The Court is authorized to issue such an order even absent a specific request for one (Melody M. v. Robert M., 103 A.D.3d 932 [3d Dept 2013]) and may issue these orders in assistance of its custody order and as a condition of its custody order (see FCA § 656). In this case, such an order is "reasonably necessary to provide meaningful protection to the mother and the parties' child, and to eradicate the root of the family disturbance" (Matter of Mistretta v Mistretta, 85 A.D.3d 1034, 1035 [2d Dept 2011]; see also Stephanie M. v. Edgar C., 187 A.D.3d 580 [1st Dept 2020]). Notably, the order of protection is warranted by the father's lack of insight as to his own past behavior, and his failure to comply with court orders and respect the Court's authority.
It is this Court's opinion that in order to fully protect the mother and child and provide them with peace and security an order of protection is needed for until the child turns 18 years old (see Anson v. Anson, 20 A.D.3d 603 [3d Dept 2005][permitting FCA 656 order of protection until child turns 18]; Krista I. v. Gregory I., 48 A.D.3d 696 [3d Dept 2004][same, noting that FCA 656 "poses no bar to an order of protection of this duration"]; Stitzel v. Brown, 1 A.D.3d 826 [3d Dept 2003][upholding FCA 656 order of protection barring any contact with the children until the youngest child's 18th birthday]; Kristian J.P. v. Jeannette I.C., 87 A.D.3d 1337 [4th Dept 2011][modifying FCA 656 order to the extent of directing the stay away provision be in effect until the youngest child's 18th birthday]; Thomas v. Osborne, 51 A.D.3d 1064 [3d Dept 2008][finding that Family Court acted within its discretion in issuing FCA 656 order of protection until the child's 18th birthday given the profound and negative impact the concerning behavior had on the child]).
Visitation is thus granted to the father on condition that the order of protection be complied with by the father until March 20, 2033 when the child turns 18 years old. The requirements of the order of protection are as follows: 1) The father shall refrain from committing a family offense, as defined in subdivision one of section eight hundred twelve of the Family Court Act, or any criminal offense against the child; 2) The father shall stay away from the child, her home, her school, and any daycare or babysitters; 3) The father shall not interfere with the mother's care and custody of the child or remove her from the jurisdiction, or have a third party do so; 4) The father shall not communicate with the child in any manner, including using a third party to do so, except for the court ordered visitation contained in this order.
While attending counseling or mental health treatment cannot be a condition for obtaining visitation rights, the Court has the authority to direct a parent to participate in psychological treatment as a component of a custody or visitation order order. (See Matter of John A. v. Bridget M., 16 A.D.3d 324, 331 [1st Dept 2005], lv denied 5 N.Y.3d 710 [2005]; see also FCA 656, Jamel W. v. Stacey J., 136 A.D.3d 552 [1st Dept 2016]). Here, as a component of this order the Court also directs that the father attend individual psychotherapy with a focus on parenting and domestic violence.
Accordingly, the father may have supervised contact and visits once he arranges and pays for them with Comprehensive Family Services. The father shall also attend therapy as directed. The mother and child's address must remain confidential, and the father shall not investigate their location or ask the child any location-identifying questions.
In addition to the supervised visits, the mother shall establish a dedicated email address for the child and exchange the address through counsel. The father may write to the child at this dedicated email no more than once per week and the mother will, with the assistance of Comprehensive Family Services, review the emails for inappropriate content or questions, show the emails to the child and encourage her to respond.
E. Contempt and Violation
The father's motion for contempt is hereby denied. To the extent the mother briefly failed to comply with the supervised visitation order she provided valid, convincing reasons for her actions. She also complied with the order once corrected by the Court.
The mother's violation petition is deemed satisfied by the relief granted on her custody modification petition.
Accordingly, it is
1) ORDERED that the mother's modification petition is granted, and the mother's violation petition and the father's contempt motion are denied and dismissed; and it is further
2) ORDERED that the mother is granted a final order of sole physical and legal custody of the children; and it is further
3) ORDERED that a final order of supervised visitation is awarded to the father through Comprehensive Family Services as outlined herein.
4) ORDERED that an order of protection for the child pursuant to FCA 656 shall be issued in assistance of this order of custody until the child's 18th birthday.
5) ORDERED that the parties may not modify or change this order of custody without review and approval by a Court of competent jurisdiction
This constitutes the decision and order of the Court.