Opinion
Index No. V-15291-18
06-07-2021
In the Matter of a Custody/Visitation Proceeding Pursuant to Article 6 of the Family Court Act, Mireille M.R., Petitioner, v. Albert R., Respondent. In the Matter of a Custody/Visitation Proceeding Pursuant to Article 6 of the Family Court Act, Albert R.,Petitioner, v. Mireille M.R.,Respondent.
The mother was represented by Danica L. Brown, Esq. from Fried Frank, One New York Plaza, New York, New York 10004, Tel: +1.212.859.8032, Danica.Brown@friedfrank.com; Father was represented by Roger N. Schumann, Esq. from David I. Pankin, P.C., 48 Willoughby Street, 2nd Floor, Brooklyn, NY 11201, Tel: 718-243-2444, rogerschumannlaw@gmail.com; and the Child was represented by Leanna Duncan, Esq., The Children's Law Center, 44 Court St., Fl 11, Brooklyn, NY 11201, Phone: (646) 493-5591, lduncan@clcny.org.
The mother was represented by Danica L. Brown, Esq. from Fried Frank, One New York Plaza, New York, New York 10004, Tel: +1.212.859.8032, Danica.Brown@friedfrank.com; Father was represented by Roger N. Schumann, Esq. from David I. Pankin, P.C., 48 Willoughby Street, 2nd Floor, Brooklyn, NY 11201, Tel: 718-243-2444, rogerschumannlaw@gmail.com; and the Child was represented by Leanna Duncan, Esq., The Children's Law Center, 44 Court St., Fl 11, Brooklyn, NY 11201, Phone: (646) 493-5591, lduncan@clcny.org.
Papers Numbered Summons, Petition for Custody & Exhibits Annexed 1 Summons Petition for Custody & Exhibits Annexed.. 2 Exhibits and Evidence 3 Court Proceedings Recordings. 4
Upon the foregoing papers, the evidentiary virtual bench trial presided by the undersigned from March 16 to May 6, 2021, the exhibits admitted into evidence and for the following reasons, the Petition by Petitioner Mireille R. (hereinafter "Mother") and the Cross Petition by Albert R. (hereinafter "Father"), for custody and visitation of the parties' Children, are granted in part and denied in part in accordance with the following decision.
I.
After meeting on a neighborhood street in Brooklyn, New York, in 2013, the Father and Mother dated for two years and got married on October 30, 2015. The Father was born and raised in Jamaica becoming a U.S. citizen after several years in New York, while the Mother immigrated from Haiti and her status remains in transition. Their union procreated the subject Children, J.R. and T.R. It is undisputed that the Father was the breadwinner of the family, working long hours during the day as a construction foreman and in the evening as a taxi driver, while the Mother remained at home as the homemaker and primary caretaker of the Children. With his salary, he would cover all the family expenses and carrying charges of their marital residence located at 927 East 87th Street in Brooklyn, New York, including electricity, telephone, car payments, cable, and the home mortgage. The family lived together for five years at that residence with the Mother's adult daughter from a previous union, Shirley B., age 23, who helped in the childcare and housing chores.
Although known to the household, the family kept secret the Father's acts of domestic violence against the Mother throughout the marriage, as related at trial and evidenced by New York State Domestic Incident Reports and Court Ordered Investigations ("COI") conducted by the New York City Administration for Children Services ("ACS"). However, on June 4, 2018, it was the Father who cynically commenced a Family Offense proceeding against the Mother in Kings County Family Court, alleging that she had verbally mistreated him, engaged in hysterics and was "always angering me." This resulted in the issuance of a Temporary Order of Protection (Vargas, J.) in Father's favor restraining the Mother from harassing, menacing, stalking, or committing any criminal offense against him. His Petition was eventually dismissed as withdrawn.
By Amended Petition dated July 24, 2018, the Mother then commenced her own Family Offense proceeding against the Father in the same court, alleging that he has engaged in a pattern of threats, menacing and harassment by constantly yelling, cursing and belittling her in front of the Children; has committed acts of sexual and physical assaults against her; and has tried to choke her after buying groceries for the family in front of the discount department store, BJs, in January 2017. By Temporary Order of Protection dated June 13, 2018, this Court (Vargas, J.) excluded the Father from the marital residence, ordered him to stay away from the Mother, prohibited all communications with her other than regarding custody and visitation issues, precluded him from obtaining a license to carry weapons, and ordered him to refrain from harassing, stalking, assaulting, menacing, sexually touching, or committing any criminal offense against the Mother. That Temporary Order of Protection was extended throughout the proceedings and trials.
Simultaneously, by Petition for Custody dated June 13, 2018, Mother commenced the instant proceeding against Father in Family Court, seeking sole legal and physical custody of the parties' Children, affirming that she "has always been the primary caretaker of the Children," that Father refuses to help her in caring for the Children complaining that "it is a waste of his time," and that he never has time to care for them while she works, instead dropping them off at the Paternal Grandmother, Mrs. Rosa F.'s home. In response, Father filed his own Petition for custody of the Children against the Mother. During the pendency of these proceedings from 2018 until 2021, several Temporary Orders of Visitation (Vargas, J.) were issued by the Undersigned giving the Father alternate weekend visitation with the Children at the Paternal Grandmother's residence, ordering the parties to refrain from insulting or disparaging each other in front of the Children, or discussing the litigation with them, and prohibiting the infliction of excessive corporal punishment upon the Children. The Court appointed the Children's Law Center as the Attorney for the Children.
Numerous court appearances before the Undersigned ensued, where the parties lodged several complaints against each other, for instance: complaining that the Father was not always present during the visitation, alleging that the parties left the Children alone, implying that the Father engaged in inappropriate sexual behavior with one Child, and accusing the Mother of inflicting corporal punishment upon the Children. The Father repeatedly showed the Court photos of burns sustained by one of the Children while the parties were still together. Based on those allegations, the Court ordered two separate ACS Court Ordered Investigations dated July 2, 2018 and November 24, 2020, which did not find any child protective concerns at either of the parents' homes. Although the COIs reveal that both parents and their residence were appropriate for the Children, they did not support any of the Father's allegations against the Mother and showed that the Father relied heavily on the Paternal Grandmother for all homemaking and childcare during his parenting time. Specifically, the November 2020 COI affirmed that Mother has been the primary caretaker and supervisor of the Children since birth, corroborated that Father had physically assaulted her in the past in front of the Children and, relevantly, stated that both Children wanted to live with the Mother and visit with the Father and Grandmother on weekends. II.
Because the parties did not reach an agreement to settle either their Family Offense or Custody proceedings, the Court presided over two separate trials, commencing with the Family Offense hearing on August 13, 2018, and continuing September 25, 2018, December 19, 2018, and April 1, 2019. During that combined fact-finding and dispositional hearing - which transcript and evidence was incorporated on consent into the custody proceeding, the Mother testified in a credible and consistent manner to several incidents of domestic violence by the Father committed against her mostly in front to the Children. She testified that Father choked her in January 2017, upon returning to their car after buying groceries at the BJ's Store because he got angry with her about spending money, yelled at her in front of the Children and put his hands around her neck aggressively pressing her neck for one to two minutes until someone passed by and he stopped choking her. She testified that she could not breath, was very scared, and tried to get his hands off, but that thankfully he stopped just when she couldn't breathe anymore. Her neck hurt all over while he was squeezing it.
Around the month of September 2017, the Mother testified that on two occasions the Father forced her to have sexual relations with him and raped her after coming to her bedroom and telling her that "he wanted to cum" by placing his penis in her mouth and taking off her clothes, all while the Children were sleeping nearby. In an emotional way, she explained that it felt like an order from him to sexually perform because he was constantly insulting her and threatening to call federal agents from the United States' Immigration Control & Enforcement ("ICE") to have her deported back to Haiti. In the same vein, sometime in 2018, the Father boasted that he is the master and owner of the house, "he does as he pleases" and that Mother "was his property and could do whatever he wants to do with her." According to Mother, she felt like she was "nothing," "no one" and that "she felt better in her country" of Haiti. "She want[ed] to be free as a human being." She testified that Father had also punched her in the right side of her face and had occasionally put his body on top of her around January 2018. It should be noted that the Court observed that the Father sports a height of 6'1" and weighs over 280-290 pounds, while the Mother is 5'5' and weights a little over a hundred pounds.
The Mother also testified that in May 2017, the Father once left his black handgun on his bed in a menacing way for everybody to see, including their Children who were present in the house at the time, making her "feel unsafe" and terrified because he had previously told her "that if he could kill her and the kids, he will." She took a picture of the gun on the bed, which was admitted into evidence, and informed her Daughter and Paternal Grandmother that "he put the gun where they could see it." In another occasion, Mother stated that Father put his hands on each side of her pillow and threatened her that "if I could kill you and get away with it, he will kill her." Throughout the trial, the Mother testified that she was very "afraid" of the Father and detailed other incidents of verbal abuse by him, including yelling at her without reason, insulting and belittling her calling her names like "whore," "a nobody," "skank" and "bumbaclott," which is a vulgar Jamaican insult or an interjection expressing disgust or anger for a person.
Upon cross examination, the Mother testified that she did not call the police or seek medical attention despite the several assaults she suffered from the Father because she was afraid of him, his insults, and his threats to deport her with ICE. She did not tell the police about the handgun incident even though she found it because of that fear of the Father. The Mother further explained that she was also afraid of the police authorities because she is currently undocumented after coming here to New York in a fiancé's K-1 Visa with another man and overstaying her permit, but that then she met the Father, who married her and applied for her Green Card or permanent residence in the United States. However, she testified to filing two Domestic Incident Reports with the New York Police Department, which showed that nobody was arrested but that she told police about the Father's abuse and of him having dreamt about having sex with her adult Daughter. She reiterated that she did not ask for help because she was afraid of Father and what he could do. For that same reason, she did not call or go to the Police Precinct despite it being just ten blocks from her home. With that, the Mother concluded her testimony and documentary presentation.
Following the denial of Father's motion to dismiss for failure to establish a prima facie case, the Father's case began with him testifying that the Mother was merely pursuing the Family Offense proceeding because under the Violence Against Women Act that was the only way that she could get a Green Card without him sponsoring her. He denied ever raping her anally or otherwise because Mother was "insatiable" and "would like to have sex every day." Father complained that he was paying a lot of money for the Mother's immigration attorneys and documents, and claimed that Mother got angry with him after her immigration application was denied. He blanketly denied ever threatening, sexually abusing, hitting, or doing any harm to Mother, and although acknowledging that they had their arguments, he claimed that it was the Mother who was aggressive towards him. He acknowledged always shopping at BJ's, but nothing about the choking incident.
Next to testify was the Paternal Grandmother, who testified that she sees the Mother almost five times a week and has a very close relationship with her, even talking about romantic relationships. The Grandmother testified that she had never seen the parties arguing, choking, or hitting each other, except for one occasion when Mother came to her home in 2018 saying that she was going to leave Father. Mother never mentioned to her that he was abusive verbally, sexually, physically, or otherwise. However, on cross examination, the Grandmother acknowledged that she mostly visited the Mother during the day when Father was working or absent, so that may provide an explanation as to why she never saw them arguing.
After concluding the trial and deliberating on April 1, 2019, the Family Court found the Mother credible in that she established that Father committed several family offenses against her and created an environment of fear and apprehension, preventing her from going to the police, the doctor or seeking help. Specifically, the Undersigned found that the Father had committed the family offenses of attempted assault in the third degree (Penal Law §§ 110.00, 120.00), harassment in the second degree (Penal Law § 126.40), sexual misconduct (Penal Law § 130.20), forcible touching (Penal Law §130.52), and criminal obstruction of breathing or blood circulation (Penal Law §121.11), and further found the existence of aggravating circumstances against him in that he had committed some of the family offenses in the presence of the Children, had used a gun to scare the Mother, and there was physical injury to her.
Thereupon, on April 1, 2019, the Court issued a final Order of Protection (Vargas, J.) for five years directing the Father, among other things, to stay away from the Mother, her home and place of employment; to refrain from assaulting, harassing, menacing, or committing any criminal offense against her; to refrain from communicating with her, except for custody & visitation issues; and prohibiting him from obtaining a license to carry weapons, until and including March 31, 2024. Upon Father's appeal, the Appellate Division, Second Department, upheld the five-year Final Order of Protection against him, with a minor modification (see ___AD3d___, 2020 NY Slip Op 06130 [2nd Dept. 2020]). III.
While the case was sub judice, the terrible Covid-19 Pandemic descended upon the World temporary paralyzing nonemergency matters pending in all New York courts, and thereby requiring the implementation of virtual proceedings and conferences using Skype and then Microsoft Teams platforms. All counsel and parties in the Family Court became proficient and began utilizing the virtual format for their pending proceedings. Several conferences were held virtually in this case via Teams before the Undersigned. Despite the Final Order of Protection against him, the Father recalcitrantly wanted to pursue the Children's custody claiming that the Mother was neglectful, immoral and unworthy of custody.
During a virtual court conference via Microsoft Teams, the Father's counsel respectfully requested for the Court to help him dissuade the Father from going to trial to pursue custody of the Children, based on the existence of the Final Order of Protection against him and the fact that his visitation was going well. The Court delicately informed the Father that, although it will keep an open mind and hear all evidence in the case, precedent generally would not support an order of custody to him given the existence of the five-year Final Order of Protection, which was just affirmed on appeal. Interrupting, the Father engaged in an angry diatribe belittling the court proceedings, stating that the Mother had accused him of putting his penis on one of the Children's butt and how could she be custodian and give him more visits, does "she wants me to continue raping my Child?" Neither the Court nor the Attorney for the Child was aware of that shocking allegation. He also started threatening counsel that whoever gives custody to Mother "should have a slow and painful death." The Court warned the Father not to engage in any behavior which might be construed as threatening the Court or counsel, or he could be held in contempt of court.
Since trial courts have wide latitude and discretion regarding trial procedure (see CPLR 4011; Family Court Act 165), the Undersigned presided over the bench trial on a virtual basis after the parties consented on the record to the same (see C.C. v. A.R., 69 Misc 3d 983, 988-989 [Sup Ct, Kings County 2020]). The custody trial began on March 16, 2021, continued on March 17, 2021, and concluded on May 6, 2021. The first witness to testify was the Mother who testified that she has always been the primary caretaker of the Children, has attended to their educational and medical needs, has always being the one going to parent/teacher conferences and arranged for the Children's playdates and extracurricular activities. The Mother specifically testified about their son, Taylor, who would misbehave in school, hit other children in the classroom, and throw himself on the floor with tantrums, when the Father was home. Taylor also had speech and mispronunciation issues, and that she alone arranged for speech and other therapies for him. She maintained that after the Father moved out of the residence, that Child has been doing well in school, became a "real model in his class," and has demonstrated an intelligence and multiplication ability not seen before. She also spoke about her other Child, J.R., who had just started kindergarten, and could not stay calm and still, but who has also improved his conduct since the Father's departure.
The Mother testified that a typical day at their residence commences with her making breakfast for the Children, arranging for them to take showers, eating breakfast, and getting them ready for school and getting a car service to take them to school. After school, she is the one who welcomes them back home, makes them wash up, have a snack, do their homework with her help, and eat the dinner she prepared. Other than the Maternal Grandfather and her Daughter, the Mother readily acknowledged that the Paternal Grandmother constitutes her support system and a big help for her, frequently visits the family, and provides childcare when she works. The Mother is the one who cleans up the house every day, sometimes with the Children's help by picking up their toys and shoes. The Children are "very healthy and have no major illnesses," she schedules appointments and takes them to the doctor and dentist. The Mother also testified that for fun the Children like to dance to music, play hide and seek, solve puzzles, and play with spelling games to help them with their spelling, grammar, and writing. Because of the advent of the Covid Pandemic, they currently do not have many playdates at this time, but play with their cousins and she plans to engage them in more extracurricular activities once the Pandemic subsides.
The Mother acknowledged that she disciplines the Children sometimes by slapping their wrists, forbidding television or by making them read a book to think about what they did wrong. She considers her strongest assets to be very loving, sacrificing and doing everything to better their Children, and spoiling them to a fault. After the Father left, she testified that she was finally able to work more outside the home, and got a job two to three times a week as a certified nursing assistant at the Borough Park Nursing Home and the Chateau Nursing Home in Brooklyn. She was forced to work because the Father has failed to provide financial help for them and owes her over $60,000 in child support. In fact, in November 2020, the Mother offered the Father to have visitation every weekend in order for her to have more time to work to support the family. However, the Father declined that offer, despite the Court issuing a Visitation Order to that effect on the record in open court. When she works, it is only the Maternal Grandfather, Paternal Grandmother and her adult Daughter who provide childcare assistance.
In fact, Mother testified that the Father has never shown much interest in the Children, their education, their speech therapy and has never gone to the school or parent/teacher conferences always claiming that he "is too busy." She maintained that he has never questioned or shown interest in her decisions regarding the Children's medical issues, education or religious upbringing. Only once did the Father objected to the Children getting a vaccine, but it was a school requirement and she went ahead to inoculate them. Despite all this, the Mother affirmed that she would foster a good relationship between the Children and Father for "whatever he wants to do," any additional time and activities that he would like them to be engaged with him. She claimed to have "no hatred towards the Father even though they cannot be together," and will put the Children's interests first and give him whatever visitation he wishes.
On cross examination, the Mother recognized that she has reported the Father to the Administration for Children Services because the Children have been hurt under his care or, in her view, exposed to inappropriate things at Father's residence. On one occasion, the Paternal Uncle Michael F. - who has mental issues of schizophrenia - slapped one of the Children at the Grandmother's house and ACS recommended not to leave the Children alone with him. On another occasion, in June 2019, one of the Children fell in the park and broke his arm while under the supervision of the Father and Grandmother, prompting Mother to call ACS. Those ACS investigations were unfounded against the Father for child protective issues. Mother then rested her case for custody.
In response, Father commenced his case with his direct examination testifying that he was born in Jamaica, and lives in a private home with the Paternal Grandmother and his brother, the Paternal Uncle. He stated that he has a religious education from the Clearview Ministry Bible Study. He explained that he met Mother in 2013, but did not want to get married to her, who had come to America with a man from Haiti and broke up with him, and that she got pregnant almost immediately which caused him to get "upset" and "mad for five months." However, he eventually came around to accept the Child and they had another one and lived at the marital residence together for five years. Although the Father was always gainfully employed during the marriage and supported the family and their living expenses, he claimed that he is not currently working full-time since November 2018, because he suffered an injury and has several surgeries to his back pending and claims to be earning only $400 per week with Uber and some construction works. However, he owns the marital residence where the Mother and Children reside, but claims that the mortgage payments have not been paid, it is in foreclosure and he "cannot afford anything." He has three other children from another mother.
The Father further testified that the subject Children visit him twice a month and that he "has a great time with Children and take them to places," like the park or the zoo. He candidly acknowledged that he "never sees the Children alone because the Grandmother is always with them...we are never alone." The Grandmother "is always there and his other three kids come over when these kids come." Although the Father complained that the Children are not appropriately dressed for the weather and appear to be always hungry when the visitation starts, he "just play around [and] have fun" with them and "watch TV together." He emphasized that he "just play and enjoy my time with the kids there." If he were granted custody, the Father testified that he would impart good morals to the Children and "groom them to achieve more in life," than with the Mother, who "lacks morals."
The Father's mood turned sour when he started testifying about the Mother saying that she was a "bad housekeeper," "not a fit parent" and showed photos to the Court of a cluttered kitchen sink, dirty toilet and bathroom and claimed that the house was full of cockroaches when they were together. According to Father, the Mother was always sitting on the couch, chatting on the phone or watching television with the Children. He testified that the Mother has a bad relationship with the Paternal Grandmother, her own family and the Maternal Grandfather. Although he claimed that Mother spanks the Children all the time, he then testified that he "do[es]n't think these kids are growing within a discipline" and are totally unruly and ungovernable. On the other hand, he "never hits the children." He also complained that the Mother never had time for the Children and never watched them carefully at home, and that is why the Children got hurt sometimes. In fact, he testified that the Mother went to Florida to "meet with a man" regarding her immigration status and stayed there for six days without planning for the Children's care here in New York. He stated that he "cannot believe anything from" the Mother, "not a word she says;" "she does not love the Children."
On cross examination, the Father testified that he has not lived with the Children since 2018 and that he does not know where they go to school, their teachers and "doesn't know what is going on" with them. He has never asked for the Children's reports card or progress report, nor bought any books for the Children to help them with their reading, nor any clothing for them as the Grandmother is the one who does that. Nothing prohibited him from obtaining the Children's school information or records. Although he had seen the Child J.R. having educational delays, the Father testified that he will "not go out of the way" to address J.R.'s educational and spelling issues, but will hire someone to help him. He didn't know at what time the Children woke up or when they went to sleep because he was always working. Although the Father complained that the house was dirty and unkept upon returning home from work, he never offered to help the Mother with the chores or cleaned the house, because "she made the mess" so she has to clean it. He had never made a report to anyone against the Mother about the house being full of cockroaches and rats, or her hitting the Children or their alleged constant hunger and challenged cleanliness. The Father rested and concluded his case presentation.
On May 6, 2021, after almost four years of trial in the Family Offense and Custody proceedings, all parties rested their cases and summed up with the Father asking the Court for "100% custody" arguing that the Mother is an unfit and neglectful parent who lies, travels without the Children, "may have had an extramarital affair," and only got married to him and pregnant to get her Green Card or permanent residence in the United States. He provided no proposed schedule of parenting time, vacation time or any alternative schedules in the event that the Mother were granted custody. In her summation, the Mother maintains that she should be granted custody of the Children because she has been the primary caretaker of the Children since birth, enrolled them in school, takes them to their doctors' appointments, and take care of all their needs. She convincingly argued that the Father had "disengaged from the Children's lives" and only sees them during the weekend without asking about their schooling, teachers, or their health. She suggested that the same visitation schedule be continued for the Father on alternate weekends.
In her summation, the Attorney for the Children supports that custody should go to the Mother with significant visitation to Father. Although both parties have credibility issues, the Attorney for the Children argued that the Mother is not so concerned about the Father's care of the Children as she has permitted visitation uninterrupted. She suggested that perhaps a 50/50 split in physical custody would work. At the completion of the trial and summations, the Court reserved decision and administratively adjourned the matter for the same to June 10, 2021. IV.
A court deciding an initial custody petition must determine what is in the children's best interests, the paramount consideration in any custody dispute (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Matter of McFarlane v Jones, ___AD3d___, 2021 NY Slip Op 02392 [2nd Dept. 2021]). The court must consider, among other things, "(1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent's relative fitness, including his or her ability to guide the child, provide for the child's overall well-being, and foster the child's relationship with the noncustodial parent; and (5) the child's desires" (Matter of Khan v Potdar, ___AD3d___, 2019 NY Slip Op 72783[U], lv denied 36 NY3d 902 [2020]; see Matter of Supangkat v Torres, 101 AD3d 889, 890 [2nd Dept. 2012]). Additionally, if domestic violence is alleged, and proven by a preponderance of the evidence, "the court must consider the effect of such domestic violence upon the best interests of the child," along with all the other relevant factors (Domestic Relations Law § 240[1][a]; see Matter of Eckstein v Young, 176 AD3d 813, 815 [2nd Dept. 2019]; Matter of Biancoviso v Barona, 150 AD3d 990, 992 [2nd Dept. 2017]; Matter of Wissink v Wissink, 301 AD2d 36, 39 [2nd Dept. 2002]). Ultimately, "inasmuch as a court's custody determination is dependent in large part upon its assessment of the witnesses' credibility and upon the character, temperament, and sincerity of the parents, the court's exercise of its discretion will not be disturbed if supported by a sound and substantial basis in the record (Matter of Supangkat v Torres, 101 AD3d at 890; see Matter of Rulinsky v West, 107 AD3d 1507 [2nd Dept. 2013]).
Applying these principles to the matter at bar, the Court hereby awards sole legal and physical custody to Mother. This Court has been presiding over this litigation since 2018, has seen the parties numerous times, is very familiar with the issues in the case and with the parties' demeanor. The record shows that both parents love the subject Children in their own way, but that the Mother is better suited to provide for the overall well-being of the Children's lives. She has always been the primary caretaker of the Children, has attended to their educational, therapeutic and medical needs, has always being the one going to parent/teacher conferences and has arranged for the Children's playdates and extracurricular activities. While the Mother showed a nuanced understanding of the Children and their emotional and educational needs and wants, the Father himself displayed a patriarchal point of view, disengaged from the Children and characterized his relationship with the Children as one of just playing and having a good time.
Perhaps because the Father appears to lack formal higher education, his testimony and actions made clear that the Children's education was not a priority for him. He was not aware - or seemed to seriously care - about the Children's school, educational deficits, extracurricular activities or medical necessities. On the other hand, the Mother diligently arranges for the Children to attend school, either in person or virtually, and is available to help, encourage and supervise them during the school day. It was undisputed that both Children are doing really well in school. If she has to work, she has family members who can watch the Children including the Grandfather, her Daughter and the Paternal Grandmother. Although the Father professes to love the Children and care about their wellbeing, actions speak louder than words. He has submitted no evidence of any assistance that he has provided to the Mother in caring for the Children, financially or otherwise; he owes significant child support arrears and is letting their residence go into foreclosure. It thus become clear that the Mother has continuously been the Children's only caretaker, emotional supporter and education supervisor throughout their lives, such that awarding her sole custody would "promote stability," enrich their educational potential and provide a loving home environment for the Children (Matter of Recher v Velez, 143 AD3d 828, 829 [2nd Dept. 2016]).
Not only is the Mother clearly better able to provide for the Children's wellbeing, but she is also more likely to foster their relationship with the Father than he would with respect to the Children's relationship with her (see Matter of Eckstein v Young, 176 AD3d at 814-815; Matter of Saylor v Bukowski, 170 AD3d 862, 863 [2nd Dept. 2019]). Some courts have found that an unwillingness to facilitate that relationship is "an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the [parent] is unfit to act as a custodial parent" (see Entwistle v Entwistle, 61 AD2d 380, 384 [2d Dept 1978]). Throughout the trial here, the Father has displayed a bitterness and poorly veiled hatred toward the Mother, insulting her morals, her truthfulness, and her overall fitness as a mother on the record in open court. Indeed, he would not answer when he was asked whether he will foster the Children's relationship with the Mother. This condescension towards the Mother would be totally incompatible with an award of custody to the Father.
Moreover, the Court verily believes that an award of custody to the Father will merely translate into an award of custody to the Grandmother or his Adult Daughter, Nia R., given his anachronistic paternal views and his apparent disengagement from the Children. The Father testified repeatedly at trial that he would never be left alone taking care of the Children. Either the Grandmother or his Daughter would always be present. In fact, even when the Mother traveled to Florida to visit her brother and work on her immigration papers for a week, the Father declined to stay with the Children for those days or make proper arrangements for their care, instead shipping them to their babysitter's house or to the Paternal Grandmother for their care. His repeated claims that the Mother was a terrible homemaker reigning over a rat and cockroach infested house, are belied by the COIs in evidence describing a clean, neat and organized house.
Finally, having the benefit of observing the witnesses' demeanor and listening to their testimony firsthand during the Family Offense and the Custody proceedings, the Court finds the Mother more credible than the Father as to the allegations of domestic violence. Consistent with the Family Offense proceeding, this Court credits her testimony that he had committed several acts of domestic violence against her in the past, including in front of the Children, which weighs against awarding the Father custody of the Children (see Matter of Eckstein v Young, 176 AD3d at 815; Matter of Felty v Felty, 108 AD3d 705, 707 [2nd Dept. 2013]; Costigan v Renner, 76 AD3d 1039, 1040 [2nd Dept. 2010]). The Children apparently described the Father when angry as looking like the fictional character, Hulk. Even one of the Children, T.R., was mimicking the Father's aggressive behavior by hitting his brother and other children in school, but that behavior disappeared once the Father left the marital residence and their interaction was reduced to visitation. Based on all that, as advocated by the Attorney for the Children, the Father should be awarded liberal visitation rights with a clearly delineated code of conduct wherein he is prohibited from displaying to the Children his anger and condescension for the Mother. V.
In accordance with the foregoing, this Court hereby grants Mother's Petition for Custody to her, denies Father's Cross Petition for custody, and issues the following Final Order of Custody and Visitation:
1. The Mother shall have sole legal and physical custody of the Children.dd. In even years, the Father will have Easter Day. In odd years, the Mother will have Easter Day.
2. The Father shall have alternate weekend visitation with the Children from Saturdays at 4:00 p.m. to Sundays at 6:00 p.m., commencing on November 27, 2020.
3. The Father is to arrange for the Paternal Grandmother to do all the pick-ups of the Children for his visitation at Mother's residence curbside, and the Mother shall be responsible for picking up the Children at the end of visitation at Grandmother's residence. Upon the expiration of the Final Order of Protection, the Father shall do all the exchanges curbside at Mother's residence.
4. Both parties shall have liberal and reasonable electronic/telephonic access with the Children when they are with the other parent.
5. In addition, the parties shall share other times as follows:
a. The Mother will have Mother's Day each year, and the Father will have Father's Day each year.
b. February school break: The Father will have the February school break each year.
c. In Even years, the Father will have the Spring/April school break. In odd years the Mother will have that break.
e. In odd years, the Father will have Thanksgiving Day. In even years, the Mother will have Thanksgiving Day.8. Neither of the parties is to insult or disparage the other to or in the presence of the Children, nor to discuss these proceedings with or in the presence of the Children. 9. Neither the parents nor third parties shall inflict excessive corporal punishment on the Children. 10. The Children shall be under adult supervision at all times during the visitation. 11. Father shall have access to the Children's educational, medical, dental and extracurricular activities with the Mother adding the Father's name to the school's BlueCard and providing him the initial information. 12. During the Covid Pandemic, the parents are to provide the Children with masks/cloth face coverings, engage them in frequent handwashing and practice social distancing as required by government regulations. 13. The Mother is also ordered to provide the Father with copies of the Children's Social Security cards, passports, and medical forms as soon as practicable.
f. In odd years, the Father will have Christmas Eve and the Mother will have Christmas Day. In even years, the Mother will have Christmas Eve and the Father will have Christmas Day. In addition, in even years the Father will have the December school break from the last day of school until New Year's Day at 3:00 p.m. In odd years, the Mother will have the December school break under the same terms.
g. On the Children's birthday, each parent shall see the Children on that special day.
6. The Father shall also be entitled to four (4) weeks of time with the Children each summer (July -August). The Father shall notify the Mother of the weeks he is selecting by May 15th of each year. Both parties will be permitted to travel outside of the state and country with the Children on advanced notice to the other parent with a full itinerary of dates, travel, hotels, and contact information where the Children can be reached at all times.
7. There should be any other visitation as agreed upon between the parties. The parties may also modify or expand the schedule on mutual consent in writing.
The foregoing constitutes the Decision, Order and Judgment of the Court. The June 10, 2021 court appearance is hereby canceled.
E N T E R:
Dated: June 7, 2021 Brooklyn, New York J.F.C.