Opinion
07-24-2023
C.B., Plaintiff, v. Y.B., Defendant.
Patrick Garcia, Esq., Attorney for the Plaintiff. Brad Nacht, Esq., Attorney for the Defendant. Joel Borenstein, Esq., Attorney for the Children.
Unpublished Opinion
Patrick Garcia, Esq., Attorney for the Plaintiff.
Brad Nacht, Esq., Attorney for the Defendant.
Joel Borenstein, Esq., Attorney for the Children.
JEFFREY S. SUNSHINE, J.
FACTS AND PROCEDURAL BACKGROUND
The parties married on May 18, 2014. There are three (3) children of the marriage: B.B. (D.O.B.:7/2015, age:7); A.B. (D.O.B.: 8/2016, age 6); and R.B. (D.O.B. 11/2018, age 5). In December of 2015 the family moved to Israel, where they resided together until June of 2018. It appears that the maternal grandfather was a major contributor to the support and welfare of the parties and their children in Israel. That support subsequently ended and it appears to be a major source of the conflict between the parties. After an alleged incident of domestic violence and a violation of an order of protection , the Defendant was excluded from the marital home in Israel.
Both parties testified to this order of protection that they concede was issued from a Court in Israel. Neither party provided any documentation of this order of protection or the terms to this Court during this litigation.
While the Defendant-Father was incarcerated for violation of the order of protection, the Plaintiff-Mother returned with the children to the United States. The Defendant-Father alleges that upon Plaintiff's return to the United States, the Plaintiff-Mother allegedly requested that he relinquish his rights to the children. In July of 2018, upon his release from incarceration, while still residing in Israel, Defendant-Father commenced custody litigation pursuant to the Hague Convention. An agreement was subsequently reached resolving that litigation with the children remaining in New York. Defendant then returned to the United States shortly thereafter in December of 2018.
The parties have been embroiled in extensive litigation originally commenced in Family Court with proceedings initiated by the Defendant-Father. Both parties acknowledge that they are members of a close-knit religious community in Brooklyn, New York and that all three (3) of their children attend Yeshiva in Brooklyn, New York, associated with the community in which they belong.
The Plaintiff-Mother commenced this action for divorce on April 9, 2019. It was brought to the Court's attention that the forensic evaluator initially appointed by this Court was also coincidentally the same forensic evaluator appointed in a custody dispute between the husband's new significant other (Ms. X) and her own spouse in a separate Family Court proceeding. After application and oral argument on the issue, the forensic evaluator's request to be removed from this case because he had interviewed parties in both cases, was granted. Thereafter, a second forensic evaluator was appointed but quickly sought to withdraw based upon his concerns regarding the process. This Court thereafter appointed a third forensic evaluator to conduct a forensic evaluation in this matter on May 7, 2021. The forensic report dated September 9, 2021 was admitted into evidence on consent as Court Exhibit 1.
During this litigation, the parties entered into an Interim So Ordered Stipulation on consent dated June 21, 2019, which was allocuted on the record, that provided for Defendant's parenting time. The June 21, 2019 stipulation was subsequently modified by a So Ordered Stipulation on consent dated September 12, 2019. The September 12, 2019, stipulation was further modified by a So-Ordered Stipulation dated December 17, 2019, which provided:
"[o]n consent the parties hereby agree that the father shall have parenting time with the children on Sundays 1-6, Saturdays at temple of (sic) the parties agree. Additional parenting time for father as the parties agree. Soberlink is to continue prior to each visit per the June 2019 Order and this stipulation modifies the 9/12/2019 stipulation regarding parenting time access."
Both parties are represented by assigned counsel as are the children. The Defendant's prior assigned counsel was relieved on consent on January 24, 2022, based upon her unavailability, due to schedule conflicts, and Mr. Brad Nacht, Esq. was substituted as assigned counsel. Plaintiff had privately retained counsel, who was relieved, and substituted by assigned counsel, Mr. Patrick Garcia, Esq.
Toward the conclusion of the trial, Plaintiff-Mother requested by correspondence to have a different attorney assigned to her. Mr. Garcia consented to being substituted and moved to be relieved. The Plaintiff-Mother did not file a Substitution of Counsel. The Defendant's counsel objected to Mr. Garcia's application to be relieved inasmuch as the trial was almost over and asserted that the delays involved in granting the application would be prejudicial to his client, the father, who had limited access to the children. It was apparent to the Court that the mother, notwithstanding her desire for a new counsel, was actively involved with directing and providing which questions to be asked during trial. The Court denied the application to be relieved on the record on November 9, 2022, as the trial was nearing conclusion, there was no basis to remove counsel and it would be prejudicial to the Defendant.
Once COVID-19 protocols permitted, an in-person evidentiary hearing was conducted on June 23, 2022, June 24, 2022, September 6, 2022, September 15, 2022, September 16, 2022, October 21, 2022, November 9, 2022, November 10, 2022, December 8, 2022 and December 21, 2022. The Court conducted separate in-camera interviews with the two (2) oldest children on February 10, 2023. The third child, who was born after the parties separated, had difficulty separating from the mother outside of the courthouse and was not interviewed. All counsel were informed by the Court on February 17, 2023, that there was no in camera interview of the parties' youngest child aged 5. Counsel conferred and consented to the Court waiving the in-camera of the youngest child.
The difficulties in this marriage appear to stem from use of alcohol by the Defendant-Father and questionable judgment and control by the Plaintiff-Mother and her genuine concerns about the Defendant-Father together with extensive community and family involvement, together with misinformation and false narratives surrounding issues of alcoholism; personality disorders; dependency on drugs; friendships between women; and suicide/suicidal ideations. These parties appear to rely upon a complex set of community relationships where far too many people apparently well intentioned are involved in providing information and far too many misconceptions, rumors and innuendos become accepted "fact" regardless of whether those "facts" comport with the truth.
The Defendant-Father avers that he religiously married another woman during this litigation. That partner is hereto referred to as "Ms. X".
There is a complex dynamic involving Ms. X: the mother's family and Ms. X's family have known each other in the community for many years. The Plaintiff and her family and friends appear to rely on community knowledge in forming their opinions and decisions. These strongly held opinions and narratives related to Ms. X's prior addiction to prescription drugs include that she attempted suicide simply because she checked herself into a psychiatric institution and engaged in self detoxification. Contrary to Plaintiff's narrative surrounding this fact, the Court notes that entering a psychiatric institution for addiction does not necessarily mean one is suicidal or attempted suicide. There has never been any proof of suicide or suicidal ideations which Ms. X vigorously and credibly denies.
At the time of the trial, Defendant-Father represented that he and Ms. X have two (2) children together and are expecting a third child. One of the children from this relationship has Down syndrome. The significant hostile conflict directed by the Plaintiff-Mother towards Ms. X was palpable to the Court during the trial. The Plaintiff-Mother is openly and unapologetically hostile to Ms. X. Also clear to the Court were Ms. X's apparent genuine attempts to deflect Plaintiff's hostility and Ms. X's steady efforts to minimize conflict in what was an understandably difficult situation.
Plaintiff-Mother contends that the Defendant-Father has a history of alcohol abuse and domestic violence that he has never adequately addressed. She argues that unless Defendant-Father obtains therapy he cannot be trusted around the children without supervision. Defendant-Father contends that the Plaintiff-Mother has continuously sought to deprive him of access to the children and, as a result, he has only had limited and restricted access to the parties' children. He argues that he is seeking regular and meaningful access with the children, without restrictions or conditions, on alternate weekends - Friday to Sunday, and for weekday dinner visits to replace the virtual visits that Defendant had in place at the time of trial. Defendant-Father would also like alternate holidays, including meaningful religious holidays, "so that the children may enjoy holiday celebration with their mother and her family as well as with him and his family." [T. 6/23/2022, p. 17, 22-24]. The Attorney for the Children argues that the children do not express fear or concern about spending time with their father and supports the Defendant's request for unsupervised parenting time.
Plaintiff's Contentions
Plaintiff's sister, who is employed as a reporter at a major newspaper, testified credibly on her behalf on June 23, 2022. The sister testified that at the time of trial she no longer had contact with the Defendant-Father. The sister stated that her most recent interaction with the Defendant-Father occurred in "2019 or late 2018" at her nephew's bar mitzvah. [T. 6/23/2022, p. 49, 12-14]. The sister testified that when she and the Defendant-Father had regular contact their interactions were limited to holidays, sabbath, weddings and a few text messages and telephone conversations. The sister testified that the Plaintiff-Mother called her on May 18, 2018, stating:
"[T]hat she was afraid. That her husband was ranting. That he wasn't making sense. And that she was afraid right now, and she made (sic), she needed me to be on the phone with her." [T.6/23/2022, p. 30, 3-6].
The sister testified that she had a twenty (20) minutes telephone conversation with the Defendant-Father which caused her to become "very afraid over the course of that time." [T.6/23/2022, p. 31,24-25]. She asserts that during the conversation the Defendant-Father was slurring, sounded extremely angry to her and kept repeating the same things over and over in a way that didn't follow the normal pattern of conversations. She stated that during the conversation the Defendant-Father allegedly repeatedly stated, "I don't owe you an apology, but very soon I am going to owe you an apology", which she perceived as a threat. [T.6/23/2022, p. 34,3-4]. The sister testified that the Defendant-Father did not confirm nor deny whether his statements were in fact threats.
The sister testified that when she visited the parties at their home in Israel in 2017, she observed the Defendant-Father "consuming more alcohol than [she] thought was appropriate for either a Friday night or a Saturday." [T. 6/23/2022, p. 40, 13-15]. That she observed the Defendant-Father consume more than four (4) drinks within two (2) hours, and that when she saw the Defendant-Father at holidays and on the Sabbath, "[she] rarely saw him sober." [T. 6/23/2022, p. 43, 21]. She asserts that the Defendant-Father would be slurring, become very boisterous and be unable to walk "upright or as straight." [T. 6/23/2022, p. 44, 8-9]. She also stated that he would play very "wildly" with the children, by "throw[ing] them up in the air" or "turn[ing] them upside down." [T. 6/23/2022, p. 44,10-13]. On cross-examination, she conceded that none of the children got hurt and "were having a nice time" when Defendant-Father played with them [T. 6/23/2022, p. 51, 3-7].
The Plaintiff-Wife's eldest sister, Dr. A., who is employed as a veterinarian testified on her behalf on June 23, 2022. Dr. A. testified that she takes the children to synagogue every Saturday for their "supervised" visitations with the Defendant-Father. She testified that the children are usually at the synagogue with their father for approximately "two-and-a-half hours." [T.6/23/2022, p. 78, 10]. Dr. A. stated that she consistently monitored the visitations and was maybe absent three or four times in the past year, and that the Plaintiff-Mother instructed her that the parameters of the visitations (which Plaintiff-Mother had unilaterally set) at the synagogue are that "the children should mostly be downstairs in the children's program" or "in the sanctuary, except for breaks to go the bathroom." [T. 6/23/2022, p.66,7-12]. She asserted that the Defendant-Father did not comply with the parameters of the visitations because the children were "rarely in the children's program." [T. 6/23/2022, p.67, 1-2].
Dr. A. testified that she would often find the children "in a stairwell" or "downstairs in the basement" with their father. [T.6/23/2022, p.67, 11-12] and whenever she observed that the children were not in the prescribed parameters during the visitation, she would inform the Plaintiff-Mother, who would then go and remind the children that they are "supposed to be in the synagogue or in the children's program." [T.6/23/2022, p.85, 4-5]. On cross-examination, Dr. A. conceded that during the two-and-a-half hours they were supposed to be spending with their father, the children were often distracted:
" Q: And at the same time they are spending time with their father, they are also distracted, I don't mean that as a pejorative, but they are distracted by playing with other kids, or doing what other children are doing in the children's center?
A: Yes." [T.6/23/2022, p.79, 10-15].
Dr. A. also testified that on the holiday of Simchas Torah in 2021, a celebration where fathers typically dance with their children, she observed the Defendant-Father exclusively dancing with Ms. X's child for approximately 15 or 30 minutes. She testified that she heard the Defendant telling the parties' eldest child, B.B., "No", when he requested to dance with the Defendant-Father. [06/23/2022, p. 71, 8]. Dr. A. testified that B.B. was "inconsolable" after the Defendant-Father told him "No." [T. 6/23/2022, p. 71, 13]. Dr. A. testified that she did not observe the Defendant-Father console or comfort B.B., instead he continued to dance with Ms. X's son.
It was revealed during trial that Defendant is listed as the child's father on his birth certificate.
On June 23, 2033, the Court also heard testimony from Plaintiff's mother, hereto referred to as "the maternal grandmother", on behalf of Plaintiff. The maternal grandmother testified that she used to attend Sabbath when the parties lived together in New York and the Defendant-Father was allegedly "always drinking." [T.6/23/2022, p.106, 5-7]. She also testified "sometimes he picked up some drifters in the [synagogue], which is the big [synagogue] there" for a meal and to drink with. [T.6/23/2022, p.123, 16-17]. She alleges that on occasions that the Defendant-Father would drink he would become "rowdy", "loud" and would be "laughing too much." [T. 6/23/2022, p. 108, 25]. The maternal grandmother testified that she observed Defendant-Father consume "pretty close to a whole bottle" of vodka when she visited the parties in Israel. [T. 6/23/2022, p. 96, 14]. She testified that after the Defendant-Father exhibited the following behavior after he consumed the alcohol:
"He was rowdy. He was loud. He was red in the face. He was laughing hysterically. He was very impolite. And made not nice gestures to [her]." [T. 6/23/2022, p. 96, 20-23].
The maternal grandmother also testified that while she was staying at the parties' home in Israel, she returned to the parties' home one weekend after visiting friends and discovered that the apartment had been destroyed by the Defendant-Father, who left handwritten letters all over the apartment. She stated that the apartment was in the following condition:
" A: The doors were off the hinges. The windows were off the tracks. The screens were off. There were plants where the flowers were cut off, and just the stem left on. There was a pot of raw meat and spices. There was a whole bunch of spices, standing next to each other on the counter, without caps on.
THE COURT: Without?
THE WITNESS: Caps. Caps. The cap that covers the spices.
THE COURT: Thank you.
A: There was a picture of a [R]abbi, a big picture. So a picture of a [R]abbi. And it was cut out, and [Defendant's] certificate of graduation was inserted inside. Just a little embarrassing, but his underwear and her underwear were tied together on their beds. And the guest room, I was staying, the bed was covered with all the clothes out of the closet.
Q: When you say [Defendant's] certificate, what kind of certificate are you referring to?
A: A rabbinic, something rabbinic certificate. And there was, there were letters. I don't remember what they said. But something about an act, method actor. I don't remember the letters. But I believe you have them." [T. 6/23/2022, p. 99-100].
On cross-examination, the maternal grandmother conceded that she did not offer to the forensic evaluator in the instant matter any of the incidents that she testified to in open court.
On June 24, 2022, the Court heard testimony from the Plaintiff's childhood friend, Ms. T.S., who asserted that she was testifying for the safety of the children. Ms. T.S. testified that in 2014 and 2015 she used to visit the Plaintiff once a month for Sabbath dinner. She testified that during this time the Defendant-Father would "bring home some young boys he met at the synagogue" for dinner. [T.6/24/2022, p. 153, 9-10]. She testified that the Defendant would bring home anywhere from five to fifteen boys he met at the synagogue for dinner and Defendant-Father "would drink a lot with the other men at the meal. She avers that when Defendant-Father would drink, he would become extremely affectionate [with Plaintiff]" and would have "bloodshot eyes and [be] red in the face". [T.6/24/2022, p. 154, 18-20]. She testified that he would consume more than four cups of vodka, and that she would sometimes visit on a Thursday evening and the Defendant-Father would "come home with some men to have a social gathering [known as "Farbrangen"]." [T.6/24/2022, p. 155, 22-23]. Ms. T.S. further testified that the Defendant-Father and the men would consume approximately two to three bottles of alcohol and that she observed the following:
"Well, there was always vodka out. And other kinds of alcohol. And when I came out, the place was trashed. And clearly alcohol had been drunk. It was empty cups. The bottle of alcohol was less than what was started with." [T.6/24/2022, p. 156, 9-14].
Although the children weren't born as yet, Ms. T.S. testified that Defendant-Father's behavior created a danger for the children in 2014.
Ms. T.S. testified that on March 3, 2022, she attended B.B's "Siddur party" at his school (as required by religious custom). She avers that although the men were separated from the women (as also required), she could hear Defendant-Father screaming B.B.'s name louder than the other parents during the performance. She testified that after the performance the Defendant-Father grabbed B.B. from off the stage and started to dance with him. She avers that B.B. ran off to the Plaintiff-Mother in the middle of the dance and buried his face in her lap.
She also testified that in May to July of 2021, Plaintiff-Mother called her every Sunday "sounding extremely afraid" and "her voice was shaking." [T.6/24/2022, p.164, 21-22]. She avers that she would immediately drop what she was doing and go over to Plaintiff-Mother's house where she would find Defendant-Father standing outside alone, "pacing back and forth or [he would] be sitting on the bench for an hour or so", waiting for the children. [T.6/24/2022, p.165, 12-13]. On cross-examination, Ms. T.S. conceded that Plaintiff-Mother did not take the children outside to their father. She avers that about "75 percent" of the time she saw the Defendant-Father outside of Plaintiff-Mother's home on Sundays in 2021 she believed he was drunk. [T.6/24/2022, p.186, 15].
Plaintiff-Mother's friend, Ms. T.B. also testified on her behalf on June 24, 2022. Ms. T.B. testified that she and Plaintiff have been close friends for ten (10) years, and she works for the Department of Education. She testified that she interacts with the children multiple times a week and "majority of the time when the children interact with [Defendant-Father], [she] see [Defendant-Father] [a]nd have some of interaction." [T.6/24/2022, p.192, 16-17].
Ms. T.B. testified on July 14, 2017, she visited the parties in Israel. She testified that she, the parties and the children (B.B. and A.B.) went away for a weekend and Defendant-Father was the driver. She avers that Defendant was acting extremely odd:
"He was laughing hysterically. Very loud. He was (sic)kept calling people, and then hanging up. He seemed to be intoxicated, based on his face, which was red. The car smelled like alcohol. And his behavior, he was swerving in and out of lanes. He was speeding. And everyone was getting very nervous. [Plaintiff-Mother] asked [Defendant-Father] to please switch to the driver's side and he refused." [T.6/24/2022, p.194, 8-18].
Ms. T.B. conceded on cross-examination that although she smelled alcohol on Defendant, she still placed the children into the car and proceeded on an hour-and-a-half drive with the Defendant as the driver. Ms. T.B. stated that although she was scared for her own safety and the children's safety, she "didn't want to get between [her] friend and her husband [,] so she didn't do anything [to Defendant]. [T.6/24/2022, p.233, 23-24].
Ms. T.B. testified that on June 20, 2021, she observed Defendant-Father exiting an Uber with the three (3) children. She avers that she observed "not a single car seat" in the Uber for the children who were ages two, four and five at the time. [T.6/24/2022, p.204, 1-3]. Ms. T.B. also testified that she observed Defendant-Father pick-up and drop- off the children majority of the time. She states that she observed:
"[Defendant-Father] let the children run from the corner of the block, back home, crossing multiple driveways. While he walked slowly behind them. About a half a block." [T.6/24/2022, p.204, 13-16].
She testified that during the pick-ups and drop-offs he "reeked of alcohol" and "his face was all red." [T.6/24/2022, p.206, 19-20]. She also testified that after visitation on Saturdays, she and the Plaintiff often have to go find the Defendant-Father. She asserts that the Defendant-Father is supposed to be in either the "children's playroom or in the main sanctuary", however she would often find the Defendant and the subject children in different places such as "in a side stairwell", "down in the basement" or "in different rooms." [T.6/24/2022, p.216, 14-19].
Ms. T.B. testified that on March 19, 2022, she approached the Defendant-Father to discuss an incident between him and the parties' daughter, A.B.:
"I went downstairs to [Defendant]. I asked him what had happened. He looked at [A.B.], his second daughter, and said, '[A.B.], what happened?' She came behind me, and refused to speak. He then approached to say, 'Well, she was getting rowdy, and she kicked me.' 'When kids get wild, things happen.' And I said, 'Did you kick her back?' And he didn't deny it." [T.6/24/2022, p.208-209, 1-9].
The Plaintiff-Mother testified on September 6, 2022. Plaintiff testified that after the parties moved to Israel their financial situation did not improve and their marital relationship became strained. She testified that as their financial situation became more difficult over time the Defendant-Father began to drink more alcohol. [T.9/06/2022, p. 8, 19-22]. She testified that in the beginning of their relationship the Defendant-Father was "just drinking hard alcohol on the weekends", however, towards the end of their relationship in 2018 he began consuming "very large quantities" of alcohol daily. [T.9/06/2022, p. 9, 5-9].
Plaintiff-Mother asserts that when the parties were in Israel, Defendant would provide sporadic and inconsistent childcare and that his drinking would interfere with his ability to care for their children because it caused him to sleep a lot. She asserts that he had allegedly fallen asleep at the park with their son, B.B. [T. 9/06/2022, p.9, 15-16], and that there was an incident after the birth of the parties' second child, A.B., where Defendant fell asleep while caring for the infant. Plaintiff-Mother testified that the Defendant-Father was supposed to be caring for the child while she slept, however after she heard the infant's continuous cries, she went to check on them and found Defendant-Father "asleep on the couch with an empty bottle of vodka leaning on the floor near the couch." [T. 9/06/2022, p.11,3-7].
Plaintiff- Mother asserts that towards 2017-2018 Defendant-Father's drinking led him to become angry and he was allegedly unable to control his temper around the children. Plaintiff- Mother testified that the Defendant-Father started to exhibit erratic behavior, which caused her to fear for her and their children's safety . Plaintiff-Mother asserts that she contacted the police in Israel to "help" the Defendant-Father and a fifteen (15) day restraining order was issued against the Defendant-Father in her favor. [T. 9/06/2022, p.24, 2-7]. Plaintiff testified that the restraining order ordered the Defendant-Father to stay away from her and the parties' apartment in Israel .
During this time, the Plaintiff was pregnant with the parties' third child and the other two children were ages two and one years old.
Plaintiff represents that the parties' children were not included in the restraining order.
Similar to her mother's testimony, Plaintiff- Mother testified that the restraining order directed Defendant-Father to stay away from the marital apartment in or around May or June of 2018 but that she returned from a weekend away and when she returned to the apartment it was "unrecognizable." [T. 9/06/2022, p. 25, 20]. She stated that all of the doors had been removed from the hinges, all of the air conditioner units were removed from the wall and everything from the shelves and closets were removed and "piled up in collateral manners (sic) on different surfaces in the home." [T. 9/06/2022, p.25]. Her "expensive pots" that she received as a wedding gift and a bunch of new spices were emptied into the garbage. [T. 9/06/2022, p.74, 5-8]. Plaintiff submitted pictures of the condition of the apartment which were admitted into evidence as Plaintiff's Exhibit 1-11. Defendant contends that the pictures submitted by Plaintiff do not clearly reflect the "trashed" apartment that the Plaintiff describes. Defendant particularly points to the fact that the Plaintiff-Mother testified that "all of the air conditioning units had been removed from the wall," however, Plaintiff's Exhibit 10 shows an air conditioner unit still attached to the wall in the living room. During cross-examination, the Plaintiff-Mother clarified that Plaintiff's Exhibit 10 displays that the living room had merely been "reorganized" with other furniture pieces that was not in the living room space previously. [T. 9/06/2022, p.72].
Plaintiff-Mother also testified that she found notes signed by the Defendant-Father all over the apartment, which indicated to her that he was the one that was responsible for the condition of the apartment. Photographs of the various notes were submitted into evidence in bulk as Plaintiff's Exhibit 16-23 and Plaintiff's Exhibit 26-27. Plaintiff-Mother testified that she reported the violation of the restraining order, which resulted in the Defendant-Father's arrest. She asserts that the restraining order was extended to three (3) months. Plaintiff testified that after the order of protection was extended, she moved back to New York with the children in June 2018 because she was allegedly afraid that the Defendant would kill her and their children.
Plaintiff-Mother testified that the parties stipulated order provided:
"That there is to be visitation every Sunday from one p.m. to six p.m. that [Defendant-Father] is to use Soberlink to prove his sobriety, approximately, an hour and a half before the visit and, approximately, halfway through the visit, but not anything further than that. [She] supposed to receive an e-mail from [Defendant] telling [her] where he plans to take the children. We are both supposed to follow their dietary guidelines. The children cannot eat certain foods or else they are in a lot of stomach pain and they have a lot of issues. Pick up and drop off is supposed to happen in front of the home and we are not supposed to speak despairingly of each other to the children." [T.9/06/2022, p. 35, 1-13].
Plaintiff-Mother further testified that visitation was to occur "[i]n the temple sanctuary where everyone congregated and prayed and in the children's program that was supervised by the teacher of sorts." [T.9/06/2022, p. 38, 11-13]. She further stated that the stipulation provided that the father was not to take the children into a car that doesn't have safe car seats without letting her know beforehand. [T.9/06/2022, p. 35, 19-20].
The Court notes that the So Ordered Stipulation on consent dated June 21, 2019, provides in pertinent part that:
"4. During Defendant's parenting time, Defendant shall be responsible for feeding the children lunch and providing time with snacks as appropriate. All meals and snacks shall be gluten-free and dairy-free. Mother shall provide food. Defendant shall also put [A.B.] down for a nap at 1:30 p.m. each day Defendant has access to the children."
"9. On each day Defendant is to have access to the children as provided in paragraph 2 above, Defendant shall test with Soberlink (utilizing the protocols set forth by Soberlink and as set forth herein):
a. Prior to the commencement of Defendant's access, between 9:30 a.m. and 10:30 a.m.; and
b. During Defendant's parenting time, between 12:30 p.m. and 1:30 p.m."
The Defendant's parenting time access provided in the So Ordered Stipulation dated June 21, 2019, was ultimately modified by a So-Ordered Stipulation dated December 17, 2019, which provided:
"[o]n consent the parties hereby agree that the father shall have parenting time with the children on Sundays 1-6, Saturdays at temple of (sic) the parties agree. Additional parenting time for father as the parties agree. Soberlink is to continue prior to each visit per the June 2019 Order and this stipulation modifies the 9/12/2019 stipulation regarding parenting time access."
Plaintiff-Mother asserts that the Defendant-Father would not comply with the stipulation because he would not take the children to either of the two places specified in the stipulation. She testified that:
" Q: Let's refer ourselves to the location where the visitation was supposed to occur, what did you learn about that where the visitation was occurring that caused you alarm?
A: [Defendant] was not taking the children the majority of the time to either of the two places that were specified in the stipulation. He would either be found in the hallways, in stairwells and outside of the building at times." [T.9/06/2022, p. 38,14-21].
The Court notes that there are no provisions in the parties' three (3) stipulations specifying that visitation shall occur in the children's program and in the temple's sanctuary as the Plaintiff-Mother testified.
Plaintiff-Mother also testified that on Sundays, the Defendant-Father would inform her that he would take the children to the park or his apartment, however, she alleges that he would be found at various other locations. Plaintiff testified:
" Q: What about on the Sundays?
A: On Sundays he would tell me he would take them, for example, to the park and to his apartment and he would be found at various other locations. Mostly at the home of his partner and his partner's sisters', various sisters', homes.
Q: Did you ask [Defendant] about why he was not taking the children to a location he represented to which he would take them?
A: Yes.
Q: What did he say?
A: He would respond angrily, would not answer the questions." [T.9/06/2022, p. 38-39].
She also testified that the Defendant-Father also failed to comply with the agreement that safe car seats would be installed if he transports the children in a vehicle. She testified that on June 6, 2021, at approximately 6:00 p.m.:
"[She] had driven passed (sic) a van and seen one of my children getting out of the car. As I drove passed (sic) the van, I saw [Defendant-Father] along with the other two children getting out of the car and I did not see a single car seat in that car. He was drunk that day." [T.9/06/2022, p. 40, 17-21].
The Court notes that the "So Ordered" Stipulation on consent dated June 21, 2019, provides in pertinent part that:
"6. During Defendant's parenting time, Defendant shall not drive with the children, nor shall he leave the children alone with a third party. If Defendant plans to take the children to a location other than his home, he shall notify Plaintiff in advance via email. If Defendant has (2) legal car seats for the older children, he may drive with them upon prior notice to mother. If he has an infant car seat and car, he may take all three (3) children with legal car seats upon prior notice to the mother."
The Plaintiff-Mother avers that in June of 2021, when the children were ages five (5), four (4) and one (1), at pick-ups and drop-offs the father would allegedly wait at a distance and allow the children to walk unaccompanied down the city block, and not drop them off in front of her house as designated in the parties' stipulation agreement. Plaintiff avers:
" Q: Now, in transporting the children to and from the visitation, how was he supposed to accomplish that?
A: We lived in a very small community, and a small neighborhood. He would sometimes pick them up with a stroller.
THE COURT: He would?
THE WITNESS: With a stroller for the younger child before she walked.
A: But it was often not in front of the home. The children would have to come to him far from home, approximately, down the City block. Drop off would be similar to this where he would drop them off about a block away and the kids would have to find their own way home.
Q: So he would drop the kids off and they would be on their own to walk down the sidewalk?
A: Down the sidewalk. Sometimes across the street unaccompanied before our youngest was really walking confidently and very slowly and stumbling." [T.9/06/2022, p.39-40].
Plaintiff-Mother also asserts that the Defendant-Father does not give their children his full attention during their face time calls or during the synagogue visits. She testified that the Defendant-Father allegedly spends more time with Ms. X's children. [T. 9/15/2022, p. 7, 16-18]. She particularly refers to the incident on the holiday of Simchat Torah in 2021, where the Defendant-Father exclusively danced with Ms. X's eldest son, instead of the parties' children, when it is traditionally acceptable for a father to dance with his children around the torah. The Plaintiff-Mother attest:
" A: I was referencing what happened on Simchat Torah where he picks (name omitted) up. Put him on his shoulders, when it was, it was traditionally acceptable for a father to dance with his children around the torah and celebrate the torah.
And in a fit of anger, and he was very drunk, he took (name omitted) and refused to give him to the other family members who had their arms reached out, because it was very embarrassing for our three children to not have the opportunity to dance with their father." [T. 9/15/2022, p. 21, 17-25].
Plaintiff-Mother asserts that although the children's pediatrician recommends "that the children not eat certain foods that caused them harm, which are gluten, dairy, oats, soy and corn," the Defendant-Father would still feed the children those restricted foods during his visits. [T. 9/06/2022, p. 42, 13-15]. She testified that from approximately August of 2019 to June of 2021 the children would return from visits with the Defendant-Father after allegedly consuming the restricted foods and experience stomach pains, diarrhea and excessive blood in their stool. [T. 9/06/2022, p. 42, 16-18]. Plaintiff alleges that when she informed the Defendant-Father of the children's dietary restriction, and when she complained about him feeding the children the restricted foods, he would become extremely angry.
Plaintiff-Mother states that she does not want to foster a relationship between the parties' children and Ms. X's children because it is unclear to the children, ages 7, 6 and 5, whether Ms. X's children are also Defendant's children. [T. 9/15/2022, p. 10, 16-17]. As proof, Defendant-Father submitted as Defendant's Exhibit B, an email correspondence between the parties dated June 7, 2022, where Plaintiff requests that Defendant refrain from "pushing a relationship between [X's] son and [their] children." Plaintiff-Mother conceded on cross-examination that she has informed the parties' children that Ms. X's eldest son, was not their father's child.
According to Plaintiff-Mother, Ms. X and the Defendant are not married because the parties' "Jewish divorce is not yet complete." [T. 9/15/2022, p. 57,15]. Plaintiff-Mother denies telling the children not to speak or be near Ms. X. However, she concedes that she opposes the children fostering a relationship with Ms. X because she is concerned about their physical safety and emotional well-being. She testified that Ms. X allegedly has a history of substance abuse that she alleges is triggered by "birth and in the postpartum period." [T. 9/15/2022, p. 16,17-18]. Additionally, the Plaintiff avers that her concerns stem from the fact that Ms. X allegedly does not have access to her eldest daughter from a prior marriage. She testified that she will believe that Ms. X will not be a danger in the presence of her children once she proves to her that she is "clean, sober and has managed to prove to no longer be neglectful or abusive." [T. 9/15/2022, p. 18-19]. Plaintiff-Mother concedes that Ms. X seemed earnest in her interview with the forensic evaluator regarding her recovery process and she credits her for prioritizing her recovery. Plaintiff appears to be concerned that Ms. X will slip and fall back into her old habits. She argues that Ms. X provided inconsistent time periods relating to how long she has been sober, and this concerns her. She states that Ms. X "seemed inconsistent when she said she had been clean from drugs for six years, but then for four years." [T. 9/06/2022, p. 104, 24-25]. Plaintiff testified that in order for her to feel comfortable with Ms. X being present around the children she will need to have "[r]andom drug and alcohol tests. Therapy. To resume her, I believe it was called the [R.L.], which was a support group for a 12-step program." [T. 9/15/2022, p. 49, 1-3].
Plaintiff argues that the children would frequently return from visits with the Defendant-Father upset and they allegedly appear to be more reluctant to engage with him both virtually and in-person. She avers that this led her to believe that there is a problem during the children's access time with the Defendant-Father. Plaintiff-Mother further avers that she wants the Defendant-Father to have a relationship with the children when he is sober. On cross-examination, Plaintiff concedes that she does not believe that this Court Order, on consent, of two (2) Soberlink a day for each visit, and certified negative test results are adequate to establish Defendant-Father's sobriety. She also argues that the CSAC evaluation issued by Inter-Care to determine whether Defendant had a substance abuse problem was inadequate. She avers that she found the records incomplete.
She states that to prove his sobriety, she would require the Defendant-Father to:
"A: Similarly, I would say it would require random follicle testing. Not planned. And not breathalyzer. For drugs and alcohol. But more importantly, it would need to be a very, it would need to be somewhat genuine, and attending a 12-step program, a rehabilitation program, something to show that he valued a sober life. Because I very much want him to have a relationship with the children sober." [T. 9/15/2022, p. 51, 11-19].
Defendant's Contentions
On September 19, 2022, the Defendant-Father's uncle, hereinafter referred to as "Uncle D.B.", testified on Defendant's behalf. Defendant's uncle who testified that he is an ordained rabbi, stated that he has known the Defendant since he was a baby and have spent a considerable amount of time with him at numerous family occasions. He asserts that he has never observed the Defendant-Father drink to excess on any of the occasions that he spent with him. He asserts that on the occasions that the Defendant-Father and Ms. X visited his home neither of them consumed any alcoholic beverages. Uncle D.B. stated that Defendant-Father "made a point of explaining that because of the proceedings, with his ex, with [Plaintiff], that he is not allowed to drink anything at all." [T.9/19/2022, p. 80,4-7].
Uncle D.B. also testified that he was present at the Defendant-Father's religious marriage to Ms. X. He testified that he and his wife walked the Defendant-Father and Ms. X to the marriage canopy. Uncle D.B. avers that although the parties are still civilly married, under Jewish law both parties are eligible to get remarried. He testified that approximately three (3) days after Defendant and Ms. X's religious ceremony, he encountered Plaintiff-Mother at a bus stop, and she allegedly yelled at him for attending the wedding and stated that he should be "ashamed of himself for having walked [the Defendant-Father] to the chuppah ." [T.9/19/2022, p. 86, 9-10]. Uncle D.B. asserts that the Plaintiff-Mother was alleging that she did not receive a religious divorce because the Defendant did not give her a Get . Uncle D.B. alleges that to his knowledge Plaintiff-Mother had received a Get. He states that the officiating rabbi verified that a Get was provided, and he asserts that "if [he] thought the [wedding] was against Jewish Law, he wouldn't have [participated in the ceremony]." [T.9/19/2022, p. 84, 19-20].
Marriage canopy
A Get is a Jewish religious divorce (see DRL 253).
On September 19, 2022, October 21, 2022 and November 10, 2022, Ms. X testified on Defendant-Father's behalf. Ms. X testified that she and the Defendant-Father religiously married on April 30, 2021. She asserts that in order to get married to the Defendant she presented receipt of a Get, to show that she was not linked to any other man, and Defendant-Father had to present Plaintiff-Wife a Get. Ms. X testified that she saw an e-mail from the head of the Bais Din of America stating, "[a]ny rabbi or anybody that need to know that (sic) a [G]et was given, they can contact me." [T.9/19/2022, p.114, 21-23]. She testified that the Defendant-Father herein is also the father of her two (2) sons and that she also has a fourteen (14) year old daughter from a previous marriage. At the time of trial, she stated that she was involved in a custody litigation regarding her daughter in Family Court. She vehemently denies ever being involved in any neglect or abuse proceeding or any proceedings to terminate the parental rights of her fourteen (14) year old daughter. On cross-examination, Ms. X conceded that her daughter currently resides with her ex-husband and his wife and that she has not seen her daughter in-person since she was four (4) years old. She testified that she does not have "face-to-face contact" or "telephone contact" with her daughter and that "access right now is [limited to] sending letters and packages and gifts." [T.10/21/2022, p. 59, 8-9]. Ms. X blames her ex-husband and his wife for the difficulty in establishing a relationship with her daughter. She testified as follows:
" Q: Have you attempted to make contact with (name omitted) since you have been clean?
A: Yes, at the time that I have been clean, my daughter actually wanted to see me. Everything changed when my ex-husband got remarried, and they moved her to a different community." [T.10/21/2022, p. 63-64].
Ms. X also accuses Plaintiff-Mother of being "vindictive" and trying to hurt her by "emailing [her] ex-husband trying to help him get [her] daughter away from [her]." [T.11/10/2022, p. 72, 1-2].
Ms. X testified that she observed the Defendant-Father being excited about the Sunday visits with the children. She testified that she would join the Defendant-Father and the children on the visits and observed both the Defendant-Father and the children happy to spend quality time together. She avers that the Defendant-Father would always carry one child on his shoulder, and another would be walking beside him while he pushed the baby carriage. She avers that A.B. and B.B. would often fight for turns to be carried on their father's shoulders and that if it was nice outside, he would spend the day in the park with the children, and he would take them for ice cream or ices. She testified that in the winter they would spend most of their time in his basement playing games, and he would cook lunch and dinner for them. [T.9/19/2022, p. 120-121]. Ms. X testified that she was impressed with how the father cared for the children:
"I was so impressed with everything, because he took care of everything, very, very, which is what I thought was beautiful about him, was that he was able to be a one-man show. I happen to end up joining the visits. But he was able to do it all by himself. Food. Changing diapers at the time. In the beginning she was in diapers. I saw the process of when she started toilet training. And she had some accidents. But he was on top of everything. So it was really amazing to see the quality time they get to spend with each other. And both children, all the children and [Defendant] really enjoyed this time. Like it was very special. And he would read them stories. Play games with them. [B.B.] was so excited he made himself a little closet. Shelf. In [Defendant's] house. Apartment. It was his. I thought (sic) [Defendant] can't touch it because he will know what he put on that shelf. That's his shelf. It was kids that were so happy to be with their Dad. And the same with [Defendant] and the kids." [T.9/19/2022, p. 124-125].
Ms. X asserts that Defendant "always e-mailed [Plaintiff-Mother] where he is taking the children. He didn't say who he will be with because [she] don't (sic) think that he needed to. As a courtesy, he always e-mailed where he will be with his children." [T.11/10/2022, p. 46, 16-19]. However, she concedes that if the Defendant stopped by her apartment to say hi with the children, he would not mention that in the e-mail. She contends that after she and the Defendant-Father religiously married the Sunday visits between the Defendant and the parties' children allegedly ended. An e-mail correspondence from Ms. X to Plaintiff-Mother dated September 9, 2021, which was admitted as Plaintiff's Exhibit 14, shows Ms. X pleading with Plaintiff to resume the Sunday visitations between the Defendant and the children. In pertinent part, Ms. X states in the correspondence that "[i]f [Plaintiff] really cared about [the children] and can't stand the fact of us being a family or me seeing them then the least you could have done is requested that [Defendant] gets his visits as always without me present. I would happily oblige, knowing the most important thing is for the kids to at least have their dad." Although Ms. X was aware that the Plaintiff-Mother opposed her joining the Defendant and the subject children during the visits, Ms. X contends that her presence at the visits did not prevent the Defendant from connecting with the children and that it was appropriate for Defendant to invite her to the visitations with the children because:
"This was [Defendant's] chance to rebuild his life at the new - we were going to be together for life, he should also get a chance to start rebuilding his life, for the good of the children. They should get to know the woman he is going to marry, or have children with, so actually, I believe that he did the right thing, inviting me to all those visits." [T. 10/21/2022, p. 81, 10-16].
Ms. X testified that after an interaction between her and the Plaintiff-Mother in 2021 on the holiday of Shavous at [ name of synagogue omitted ] she has learned to "keep her distance" around Plaintiff-Mother and not interact with the children in the presence of Plaintiff-Mother. Ms. X testified that the children are also aware not to interact with her in the presence of their mother and would look around before initiating any interaction with her. Ms. X testified that on Shavous in 2021 after she and the Defendant religiously married, she saw Plaintiff and the children leaving the synagogue and when she said "hi" to the children, the Plaintiff-Mother directed the children: "do not talk to her."[T.9/19/2022, p. 130, 3]. Ms. X also testified in December 2021 at A.B.'s birthday party, the Plaintiff- Mother and her friend Ms. T.B. allegedly abruptly took the children away approximately half hour into the party hosted by the Defendant-Father after she observed Ms. X arriving to the party, thereby ending the party.
Religious holiday.
Ms. X testified that on approximately two (2) occasions, the Plaintiff-Mother terminated video visits with the children after they acknowledged Ms. X, as a result, she asserts that she tried to stay out of frame of the video calls because she did not want the Defendant-Father to miss out on talking to the children. She asserts that she and Defendant-Father live in a small apartment and her eldest son, who is a toddler, would sometimes run into the room while the Defendant-Father is conducting the video calls, and if the child was seen in the video call the Plaintiff-Mother would abruptly terminate the call. Ms. X asserts that within a year, she has observed the Plaintiff-Mother allegedly terminate the Defendant's video calls with children approximately forty (40) times if her eldest son is seen in the video.
Ms. X readily concedes that she had an addiction to the prescription drug Percocet, which began on October 15, 2008. She testified credibly that she began using the drug after she was prescribed the drug in the hospital after the birth of her daughter. She stated that she and her ex-husband used the drug recreationally for five (5) years. She testified that she began to experience withdrawal symptoms from the Percocet that she was abusing when she curtailed using the drug, which she mistakenly interpreted as psychiatric issues at the time. She averred "there is a big disconnect between mental health and substance abuse" and as a result she went to the psychiatric ward, where was prescribed psychiatric medication. [T.10/21/2022, p.34, 2-3].
Ms. X testified that she eventually went into a "rehab" facility and was placed on the maintenance drugs, Suboxone and Methadone. On cross-examination, Ms. X testified that Suboxone and Methadone made her feel very sick, so she stopped taking them "cold turkey" many times. This would lead to the "worst withdrawals", which led her to request to be voluntarily placed in a psychiatric ward to recover. [T.10/21/2022, p.47, 1-2]. Ms. X adamantly asserts that she was never admitted into a psychiatric ward as result of an attempted suicide and that all her admissions into the psychiatric ward were due to her withdrawals.
Ms. X testified that she finally stopped taking methadone "cold turkey" in September 2016. She asserts that she has been clean and sober since September 2016. She testified that she is currently part of a fellowship for young Jewish people in recovery herein referred to as "R.L.". She testified that she started to attend the recovery group in 2016 and she participates by attending meetings and their recovery retreats twice a year. She asserts that prior to religiously marrying the Defendant herein she used to "religiously [go to R.L.] every Sunday and every Thursday" [T.10/21/2022, p.48, 22-23], however, she concedes that at the time of trial she did not attend meetings as often as she used to. Ms. X states that she currently "stay[s] away from any type of pills, unless it is like dire that [she] must take Benadryl for a reaction, but in general, I don't take any pills." [T.10/21/2022, p. 38,15-17].
Ms. X states that her recovery does not include abstaining from alcohol because she never had an issue with abusing alcohol. Plaintiff submitted pictures of Ms. X and the Defendant dining out and there is a glass of wine displayed in each picture which were admitted into evidence as Plaintiff's Exhibit 12A and 12B. Ms. X conceded that she occasionally consumes alcohol and the glass of wine displayed in the pictures was her beverage. She contends that she has never observed the Defendant-Father consuming alcohol. She states that Defendant-Father informed her he has never had a problem with excessive drinking and that he was under the care of mental health professional in Israel because he wanted to calm the Plaintiff-Mother and to save his marriage. She further alleges that he does not consume alcoholic beverages because he states that "his ex-wife has all these allegations towards him, and he wants to make sure that there is not even a shred of truth to it." [T.10/21/2022, p. 40-41]. She testified that whenever they visit other homes for [sabbath], the Defendant-Father "would bring grape juice with him every time, to make sure that he makes [a blessing] only on grape juice." [T.10/21/2022, p. 41, 3-5].
Defendant-Father testified on November 10, 2022 and December 8, 2022. He testified that he met the Plaintiff through his paternal aunt who is a matchmaker, and he "made it clear through the match marker that [he] wanted to live and raise his family in Israel. [T.11/10/2022, p. 80, 17-18]. Defendant alleges that the Plaintiff-Mother was verbally abusive and never offered him any support during the marriage. Defendant contends that the Plaintiff tried to convince him to check himself into a mental facility and when he didn't agree to go, she called the police and accused him of threatening her. Defendant-Father testified that this resulted in him being arrested.
Defendant-Father refutes all of Plaintiff's claims that he excessively consumed alcohol. He alleges that due to Plaintiff's allegations of his excessive drinking he has not consumed any alcohol in three (3) years. Similar to Ms. X's testimony, Defendant averred that he would "personally before the Sabbath place a bottle of grape juice in [his] locker so [he] can make the blessing over a glass of grape juice." [T.11/10/2022, p. 109, 19-21]. He contends that prior to his decision to stop drinking he would consume alcohol "at appropriate times when adults consume alcohol," such as on Sabbath when he made a blessing over wine and in the evening at social gathering with friends and family. [T.11/10/2022, p. 106-107]. Defendant-Father concedes that he may have fell asleep while caring for his daughter, A.B., one night after working all day. However, he vehemently denies falling asleep with an empty bottle of vodka near him while caring for her. Defendant also concedes that he had a telephone conversation with Plaintiff's sister on May 18, 2018. However, he refutes the allegations that he directed any threats towards the Plaintiff during his telephone conversations. Defendant-Father explained that when he stated that "he will owe [Plaintiff's] family an apology" he "thought that [Plaintiff's sister ] was going to help her sister leave with the children against [his] will and [he] made it clear that was [his] way of making it clear that [he] was going to do anything in [his] power and anything in [his] power (sic) to stay in [his] children's lives." [T.11/10/2022, p. 97, 1-3].
Defendant testified that after he returned to New York, the Plaintiff did not permit him to visit the children, so upon the recommendation of his family and friends he commenced an action in Family Court for visitation. After an Order to Show Cause for visitation was filed in Family Court, the parties consented that the Defendant-Father would have visitations in the community on Sundays, Tuesdays and Thursdays.Defendant testified that as a condition to the visitations, he consented to Soberlink. Defendant-Father submitted duly certified records from Soberlink from June 21, 2019 to November, 2021, which were admitted into evidence as Defendant's Exhibit D. The Court notes that the certified records indicates that there were ninety-seven (97) complaint testes and zero (0) positive tests.
Defendant-Father conceded that due to his work schedule he forfeited the Tuesday and Thursday visits. [T.11/10/2022, p. 100, 17-18]. However, he retained the Sunday visits, until the Plaintiff-Wife unilaterally terminated all visitations in Summer of 2021 . Defendant asserts that since the Sunday visits were terminated, he is limited to roughly two (2) hours of visits supervised by the Plaintiff's sister at the Plaintiff's synagogue and that during the two-hour supervised visit he and the subject children would stay in the synagogue at their table. He conceded that despite Plaintiff's distaste , he would bring candy for the children as an incentive for them to spend time with him. Defendant testified how he would bring treats and snacks for the children prior to Sabbath:
The Court notes that it is conceded that visitations were unilaterally terminated by the mother on June 20, 2021, pending the forensic report.
Defendant asserts that he belongs to another synagogue, but he goes to the Plaintiff's synagogue so that he can see the children.
See email correspondence from Plaintiff to Defendant dated March 31, 2022, admitted into evidence as Defendant's Exhibit C where she instructed the Defendant as follows: "please don't give the kids sugar on shabbos. They get hyper and I don't want you to get impatient and hurt them again."
"So religious Jew, we don't carry in our community. So that means you come to synagogue with nothing, only the clothes you are wearing obviously, and so if I want snacks for them, I have to go before the Sabbath, Friday afternoon, go into the synagogue, call the keeper, and he will let me in, and I put them on the side so that I could give them a treat." [T.12/8/2022, p. 6, 15-22].
He testified that he would sometimes "find a little nook or cranny in the synagogue in the stairwell, in a hallway" for privacy and so they wouldn't disturb the prayers, and that during the visitation the children would have to break to "check-in" with the Plaintiff-Mother. [T.12/8/2022, p. 7, 4-5]. Defendant testified that these "check-ins" during the visits were disruptive and frustrating and would essentially "spoil" the visit. He contends that there was a "distance" when the children returned from the "check-ins", and that they were no longer "joyful." [T.12/8/2022, p. 9, 11-12]. He contends that "the children can't recover from such interruptions during [their] measly visits." [T.12/8/2022, p. 9, 19-20]. Defendant-Father asserts that most times during the visit the youngest child, R.B. would go away from the visit, and he would be left with the two older children.
Interestingly, the Plaintiff submitted text messages between her and Defendant which were admitted into evidence as Plaintiff's Exhibit 29, which shows the Defendant-Father pleading with her for a video call with the children which she refused and stated, "we will make up the call tomorrow." Defendant testified that after Plaintiff did not allow him to have his "court ordered video calls" with the children he called the police and had them show up to her residence. [T.12/8/2022, p. 26, 141-142].
Defendant-Father further contends that the video calls are not a substitute for the in-person visits because:
"It makes it harder because then the plaintiff is there on call, and she you know, has commentary, an opinion, and a lot of times she will dominate the phone call. I'm thankful when it's one of the friends that make the phone call. Recently it was her mother making the phone calls, and I take what I am given and I make the best of it. I try really hard." [T.12/8/2022, p. 10-11].
Defendant testified that if Plaintiff-Mother saw anyone other than Defendant on the video calls with the children she would terminate the call. However, when Defendant testified in court on December 8, 2002, he credited the mother for allowing Ms. X and his eldest son with Ms. X to participate on the most recent video calls. He asserts that Plaintiff's reasoning for terminating the calls were that there's a court order that only he was permitted on the call and having other people on the call took away from the children's focus. [T.12/8/2022, p. 24-25]. He argues that he would like for the video calls to be interacting with his family. Defendant contends that during the video calls he would "like for [his] children to be able to see [his] whole family, [his] friends, [his] relatives to be a part of [his] life." [T.12/8/2022, p. 26, 8-10].
In regard to the destruction of the parties' apartment in Israel. Defendant testified:
"Here, I am kicked out on (sic) my own home. My mother-in-law and wife are living there, but they are not respecting the place. So I rearranged the furniture in order just to mess with them, honestly. It was childish and inappropriate." [T.12/8/2022, p. 37, 10-14].
Defendant further testified that:
"[He] set up all the spices on the counter, and I removed all the caps from them. I set up the living room not as a living room, but more as like a lounge, chill out, you know, like not of a family segment. I set up the table with [Plaintiff'] wig. [Plaintiff] is a license[d] wigologist, and I set up her stand in attempts to hint to her that maybe it's time that she help out with the bills. I covered the guest bedroom with anything I could find in the apartment because it's clearly my mother-in-law wanted to be in our lives. So I made her a bed next to us in the master bedroom and I tied my underwear and [Plaintiff's] underwear to say that, you know, this is my wife. I would like to, you know, be with her, but you are more than welcome to sleep in the bed next to us, but you know, if you don't need to respect our personal space. It's your daughter and I'm her son-in-law and you are welcome." [T. 12/8/2022, p. 37-38].
Defendant testified that he and the Plaintiff-Mother have very different views on parenting. Defendant described his views as "making it the best experience for [the children], taking them out as much as possible, having them explore, try new things, giving them the best time possible." [T. 12/8/2022, p. 44, 16-19]. Defendant contends that the mother has a stricter approach to parenting which he does not agree with. In comparison to parenting his children with the Plaintiff and parenting his children with Ms. X, Defendant contends that he is "granted the ability to parent" with Ms. X. He alleges that he is "allowed to console [his] children [with Ms. X] when they cry. [He is] allowed to hold [his] children whenever [he] want (sic)." [T. 12/8/2022, p. 41, 22-25].
In opposition to Plaintiff's testimony, Defendant testified that the children do not have any allergies or any food sensitivities. Additionally, he alleges that the Plaintiff-Mother excludes him from decision-making concerning the children. He refers to Plaintiff allegedly changing B.B's school due to the subject child being bullied without notifying him. He contends that he found out after he noticed the child wearing a hat with the new school's name.
An e-mail from Defendant to Plaintiff dated April 3, 2022, which was admitted in evidence as Plaintiff's Exhibit 23-B references a rumor about "[Plaintiff and Ms. T.B.] being a lesbian couple[.]"
Defendant concedes that he was referred to Inter-Care by the forensic evaluator for substance abuse evaluation and it was determined that he had an "alcohol use disorder uncomplicated mild." [T. 12/8/2022, p. 66, 9-14]. The certified evaluation records from Inter-Care were admitted into evidence as Plaintiff's Exhibit 24. During cross-examination, Defendant conceded that at least three of the answers he provided on the self-reported questionnaire were not accurate. On cross-examination, he also conceded that in Israel, he was prescribed medication to help with "acute alcohol withdrawal." [T. 12/8/2022, p. 116, 6].
Substance abuse evaluation facility.
Defendant-Father testified that he would like for the children to sleep in his house. He testified that he has "a three bedroom [apartment] and [they] would designate a bedroom for the children, additional bedroom with beds and dressers, clothing and toys, and a house full of food and warmth, kindness, love." [T. 12/8/2022, p. 51, 22-25]. He further testified that he is seeking for the children to stay with him every other weekend and every other holiday.
On December 21, 2022, the court-appointed forensic evaluator testified. The forensic evaluator testified that based on her interview and document review she recommends that the Defendant should have a substance abuse and alcohol evaluation. The forensic evaluator asserts that "there was enough information in the documents, in the collateral reports, and during the interviews that caused [her] to believe that [Defendant] had an alcohol problem." [T.12/21/2022, p.78, 6-9]. She testified that there were a lot of indications that there was a misuse of alcohol by Defendant-Father.
The forensic evaluator avers that she recommends that the Defendant-Father takes random drug tests and continue monitoring through Soberlink because he "tends to minimize his problems overall" and does not yet recognize his problem. The forensic evaluator also recommends that the Defendant-Father enroll in R.L. because it "has a twelve-step program elements (sic) in a culturally sensitive way." [T.12/21/2022, p.24, 9-12].
The forensic evaluator testified that she observed that compared to Plaintiff's parenting style the Defendant-Father had a "permissive" parenting style, and that in contrast the Plaintiff-Mother had a more "authoritative" parenting style. She testified that Plaintiff's parenting style was "[v]ery firm. She offers rewards for good behavior. [T.12/21/2022, p. 20, 8-14].
The forensic evaluator further testified that when she observed Defendant's visit with the subject children she had concerns about Defendant-Father's level of supervision. She avers that:
"When I observed [Defendant], we were outdoors in a large, open area, and the children were very happy being with him. [A.B.] was very affectionate with him. But I had some concerns about the level of supervision, the very large area, and the children would be spread out. I had concerns about the way we arrived to the area. The youngest child, [R.B.], only two years old at the time, [Defendant] wasn't holding her hand; the other two, but not the youngest hand. I was concerned about that." [T.12/21/2022, p. 21, 18-25].
The forensic evaluator concedes that she did not have the opportunity to observe the Defendant with the children in a similar "home setting", engaging in regular day-to-day as she did with the Plaintiff, and she did not have the opportunity to observe the Plaintiff with the children outside the confines of her apartment as she did with the Defendant. She further testified that although Defendant managed to successfully supervise the children during the visit, she attests to "personally [feeling] anxious during parts of the hour" because "the children were spread out and there were a lot of people around." [T.12/21/2022, p. 22, 4-8]. She avers that there were times during the visit when she observed the children "forty to fifty feet" away from the Defendant. [T.12/21/2022, p. 22, 11].
The forensic evaluator asserts that the Plaintiff-Mother was justified in limiting visitations due to following safety issues:
" A: There were safety issues. There were three things that [Plaintiff] was concerned about. One was the use of car seats, the other was not being where [Defendant] said he would be, and third there was bad-mouthing the mother. So, two of those I think are safety issues. Car seats, which [Defendant] admitted that he failed to use car seats on one occasion, and also he admitted that he did leave the park, where he said he would be, momentarily to go to a store. So, [Plaintiff] became concerned because she didn't see him in the park. [T.12/21/2022, p. 21, 7-15].
Notably, the forensic evaluator concedes that when the Plaintiff-Mother informed her, that "the father, is not following orders from the doctor with respect to [the children] dietary restrictions and allergies" that may have been an instance of exaggeration. Additionally, she testified that she has concerns pertaining to Ms. X's reduced attendance at R.L. She testified that although Ms. X has been in remission, she is concerned that having another child is an additional stressor and she believes that it raises the risk of relapse. The forensic evaluator asserts that she is concerned that the Defendant-Father has problem with "paying attention to a lot of things at once. [T.12/21/2022, p.84, 5]. The Court has considered the results of the psychological testing conducted by the forensic evaluator.
DISCUSSION
"Visitation is a joint right of the noncustodial parent and of the child" (Weiss v. Weiss, 52 N.Y.2d 170, 175 [1981]). "It is well settled that a noncustodial parent should have reasonable rights of visitation, and that the denial of such rights is such a drastic remedy that an order doing so should be based on substantial evidence that visitation would be detrimental to the welfare of the child" (Janousek v. Janousek, 108 A.D.2d 782, 784 [2d Dept 1985]). "In order for the noncustodial parent to develop a meaningful, nurturing relationship with the child, visitation must be frequent and regular" (Matter of Anthony M.P. v Ta-Mirra J.H., 125 A.D.3d 868, 868 [2d Dept 2015]; Matter of Rodriguez v Silva, 121 A.D.3d 794, 795 [2d Dept 2014]; Pollack v. Pollack, 56 A.D.3d 637, 638 [2d Dept 2008]).
The Court's first concern when adjudicating visitation rights is the welfare and interests of the child (Matter of Anthony M.P. v. Ta-Mirra J.H., 125 A.D.3d 868, 868 [2d Dept 2015]). "As a general rule, some form of visitation by the noncustodial parent is always appropriate, 'absent exceptional circumstances, such as those in which it would be inimical to the welfare of the child or where a parent in some manner has forfeited his or her right to such access'" (Zafran v. Zafran, 28 A.D.3d 753, 755 [2d Dept 2006] quoting Weiss v. Weiss, 52 N.Y.2d 170, 175 [1981]; see Johnson v. Kelly, 193 A.D.3d 735 [2d Dept 2021]; Matter of Gonzalez v. Ross, 140 A.D.3d 869, 871 [2d Dept 2016]). Supervised visitation is required where it is established that having unsupervised visitation would be detrimental to the child (Matter of Anthony M.P. v. Ta-Mirra J.H., 125 A.D.3d 868, 868 [2d Dept 2015]). The determination of whether visitation should be supervised is left to the court's discretion, and its findings will not be disturbed on appeal unless they lack a sound and substantial basis in the record (Id.; Liriano v. Hotaki, 176 A.D.3d 710, 711 [2d Dept 2019]; In re Mario D., 147 A.D.3d 828, 829 [2d Dept 2017]; Matter of Mikell v. Bermejo, 139 A.D.3d 954, 955 [2d Dept 2016]; Irizarry v. Irizarry, 115 A.D.3d 913, 915 [2d Dept 2014]).
The facts herein certainly lead to serious questions. The Defendant-Father and Plaintiff-Mother clearly have a highly antagonistic relationship. They both have acted in an immature manner. The Court recognizes that the Defendant-Father may be loud and extroverted. He acts out in ways that scare people and, even if he is not intoxicated, his actions raise significant concerns pertaining to him caring for the three young subject children. Defendant-Father is unfocused and while, in his mind, his intentions may be correct, his conduct leads others, including the Court, to pause.
The Defendant-father also appears to not know how to deal with his anger and clearly had tremendous difficulty dealing with outside interference in the parties' marriage and the ultimate demise of the marriage. This is evident from the Defendant-Father's actions in Israel concerning destruction of property, which he refers to as "rearranging" to get the attention of the Plaintiff-mother. His decision to act in such a way, particularly when there was an order of protection in place, demonstrates lack of impulse control and immaturity.
The Court believes that the Defendant-Father abused alcohol in the past. The testimony of the witnesses presented by the Plaintiff-Mother as it relates to Defendant-Father's past drinking were credible. The Court notes that the Defendant-Father provides a multitude of excuses to explain or minimize any allegation relating to accusations of his alcohol abuse. While it appears that Defendant-Father currently has his drinking under control and has stopped drinking, he must recognize that his relationship with alcohol must be treated and recognized as a lifelong commitment and is a component of his parenting time.
The Court finds credible the Defendant-Father's claim and the testimony of Ms. X that the Defendant-Father is currently sober; however, the Court does not find the Defendant's denials of his past alcohol use to be credible. It appears that his relationship with Ms. X and his desire to see his children is a major reason for the Defendant-Father's present sobriety. The Court does not find credible the Plaintiff-Wife's belief that Ms. X is a negative influence on the Defendant-Father. In fact, Ms. X's presence appears to be a positive stabilizing factor in the father's life currently.
Although Plaintiff-Mother has been the primary caretaker of the three (3) subject children, Defendant-Father consistently criticizes the Plaintiff-Wife's authoritative parenting style. The Court notes that the Defendant-Father wants to be the "Pied Pieper", the one to have fun, be gregarious and loud, and show his children that he loves them. His inability to see the children in a natural setting safely leads to hurried makeshift-imposed visitations under watchful eyes of the wife's friends and relatives in synagogue stairwells on Saturday mornings. This constrained access does not nurture the relationship between the children and the Defendant-Father or provide an opportunity for those relationships to grow organically.
Plaintiff-Mother is very protective of the subject children. The Court finds that the Plaintiff-Mother is controlling, attempts to micromanage the Defendant-Father's parenting and does not facilitate frequent and regular visitations for a meaningful relationship to foster between the children and the Defendant-Father. Plaintiff-Mother also unilaterally acts without court permission. The Plaintiff-Mother has, in effect, imposed her own supervised visitations in an environment that does not permit the father to bond or have any privacy with the children. The Court finds it credible that the mother's actions in purposefully interfering with the father's access are directly related to her utter, palpable disdain for Ms. X. The Court finds that the Plaintiff-Mother's self-imposed "supervised visitations" were not appropriate or necessary. The father's two-hour "supervised visitations" in the synagogue on Saturdays are filled with distractions from parenting time, namely the Children's Program and the children's appropriate desire to play and interact with their peers. This constrained setting is not beneficial in helping the father and subject children form any type of meaningful relationship or bond. Additionally, the mother does not approve of any of the father's family members to supervise visitation. As verified by the text messages between the parties admitted into evidence as Plaintiff's Exhibit 28, where the Plaintiff-Mother states that the Defendant's father was "not an acceptable third party" for her self-imposed supervised visitation.
The Court must make it absolutely clear to the Plaintiff-Mother: it is not for her to dictate who is appropriate to supervise visits between the Defendant and the subject children. It is clear to the Court that the Plaintiff-Mother will reject anyone who recognizes Ms. X in a positive manner. Attempting to ensure that Ms. X has no presence in the children's lives appears to be the primary concern for Plaintiff-Mother.
The Court recognizes and understands the Plaintiff's desire to have the Defendant focus on the subject children during the video calls. She believes that any distraction during the video calls will take away from the Defendant-Father fostering a meaningful relationship with the children during his limited parenting time. However, the Court notes that it is Plaintiff's attempts to control the circumstances of Defendant's parenting time that has led to his limited parenting time and she does not appear to exercise the same attention and case in fostering his parenting time with the children as she does at, in effect, punishing him by taking away parenting time anytime Ms. X's presence is introduced - even fleetingly - to a parenting time session.
It was not appropriate for the Plaintiff-Mother to terminate the video calls if anyone other than the Defendant-Father appears on the video. The Court notes that there was no court order or stipulation specifying who can or cannot be present during the video calls. The Court finds that Plaintiff-Mother's termination of the video calls was an inappropriate act that results in not only hurting the Defendant, but also hurting the children. Her behavior in terminating these calls sends a very manipulative message to the children and must cease.
It should be noted that the Court recognizes that "[i]f a parent makes a good faith allegation based on a reasonable belief supported by facts that the child is the victim of child abuse, child neglect, or the effects of domestic violence, and if that parent acts lawfully and in good faith in response to that reasonable belief to protect the child or seek treatment for the child, then that parent shall not be deprived of custody, visitation or contact with the child, or restricted in custody, visitation or contact, based solely on that belief or the reasonable actions taken based on that belief" (see DRL §240(1)(a)). The Court finds that it was unsafe for the father to transport the children in a vehicle without appropriate car seats and that he must have car seats, window guards and other safety protocols in place. However, the Court disagrees with the forensic evaluator that the mother's actions were proper. While the mother's initial decision to exercise withholding the children was appropriate, the mother did not have the right to exercise such long-term separation unilaterally and implement her own designed supervised visitation without court permission. The mother's obligation if she genuinely believed the children were in danger was to seek court intervention in a timely fashion after she discontinued or altered the father's parenting time schedule. Instead, her choice to unilaterally make herself the "final authority" on the children's access to their father demonstrated poor judgment.
The testimony of Ms. X makes it clear to the Court that Ms. X has credibly and unabashedly confronted her past and has courageously pursued a new life for herself and her children with mindfulness and powerful insights about her past and, equally as important, about the future she is pursuing. The Court finds that Ms. X's testimony was candid and credible. Her candor regarding her troubled past was made with full recognition of the path she traveled and the changes she made to be on the successful journey she is on now. Rarely has this Court had the opportunity to hear a witness testify with such compelling candor about such difficult circumstances. Ms. X's dignity and focus on how circumstances impact the children under the challenges presented is a credit to her character and something that has clearly benefited the Defendant-Father. Ms. X appears to have more understanding and respect for the gravity of these parties' actions on their children than the parties have had at times during this litigation.
This Court understands Plaintiff's concerns raised during the trial; however, Plaintiff must learn to distinguish any legitimate concerns about the father's past behavior from her absolute disdain for Ms. X. Plaintiff-Wife will benefit when she is willing to acknowledge and to accept that Ms. X is not the enemy.
The fact that Defendant-Father has now religiously married Ms. X and has had children with her means that she is a part of Defendant and the parties' children's lives regardless of Plaintiff-Wife's personal feelings about Ms. X. Ms. X appears genuine in her recovery and the Court recognizes that there may be setbacks, but recovery and sobriety for both of these individuals does not equate to a life sentence of supervised visitation, disconnected videos, children being told not to speak with or accept a new partner or conditions of visitation supervised by a cadre of well-intentioned friends in a house of worship.
The Court does not condone the name calling between the parties. The Court finds the language the Plaintiff-Mother uses to refer the oldest child that Ms. X and Defendant share to be deplorable. Pursuant to the e-mail correspondence between the parties dated November 7, 2021, admitted into evidence as Defendant's Exhibit E. The Court finds it incredible that the Plaintiff-Mother would refer to a child - a toddler - in such vulgar terms, too shocking to put in a written decision. It's also unacceptable for the Defendant to e-mail the Plaintiff - the mother of his children - stating that "when [G]od was giving out brains he gave you rocks!" Pursuant to the e-mail correspondence from Defendant to Plaintiff dated June 7, 2022, admitted into evidence as Plaintiff's Exhibit 25-A. This type of hostility, immature name calling, and crude comments between the parties shall stop immediately if the parties intend to move forward and recognize that these children deserve two parents.
Further, the Court rejects the Defendant's contention that the mother's reliance on a network of women in the community means that she has or has had a sexual or romantic relationship with one or more of them.
While the Court understands that the father did not appreciate the maternal grandmother's interference in their marriage, the Court believes that the father is losing sight of the fact that the Plaintiff-Mother was alone with two young children, one whom was an infant at the time, in a foreign country and sought out her mother for protection and comfort. The Court must recognize the genuine concern of the Plaintiff and the maternal grandmother based upon the father's behavior and drinking and the maternal grandmother's credible role and concern for her daughter and grandchildren. Although the father saw it as an interference, the Court disagrees and sees it as a proper concern for a daughter and her grandchildren.
The Court notes that the Defendant's misplaced motives as to why he moved the beds and tied the parties' underwear together but finds those actions to be problematic, inappropriate and a cause for concern.
"A court may not order that a parent undergo counseling or treatment as a condition of future visitation or re-application for visitation rights but may only direct a party to submit to counseling or treatment as a component of visitation" (Matter of Smith ex rel. Hunter I. v. Dawn F.B., 88 A.D.3d 729, 730 [2d Dept 2011]; Matter of Lane v. Lane, 68 A.D.3d 995, 997 [2d Dept 2009]; Matter of Williams v. O'Toole, 4 A.D.3d 371, 372 [2d Dept 2004]; Coley v. Steiz, 215 A.D.3d 830, 832 [2d Dept 2023]).The Appellate Division determined in Jordan v. Jordan that the "mother's argument that the Supreme Court should have mandated the father's completion of an alcohol treatment program and submit to random alcohol testing, as conditions of future unsupervised visitation is beyond the scope of relief a court may order" (Jordan v. Jordan, 8 A.D.3d 444, 445 [2d Dept 2004]).
Accordingly, this Court does find the mother's contentions that the Court should mandate the father submit to random alcohol testing, drug testing or attend a 12-step program, as conditions of future unsupervised visitation with the subject children is with merit and is beyond the scope of relief this Court may order.
"The recommendations of court-appointed experts are but one factor to be considered and are entitled to some weight. However, such opinions are not determinative and must not be permitted to usurp the judgment of the trial judge." Pritchard v. Coelho, 177 A.D.3d 887, 888 [2d Dept 2019]; Matter of Flores v. Mark, 107 A.D.3d 796, 798 [2d Dept 2013]. The Court finds that the forensic evaluator's testimony was somewhat tainted based on her inability to see the children with the father in a home setting and a view that because Ms. X has a prior issue with dependency and that it was not a good choice for the Defendant to make, because of the likelihood that Ms. X's drug addiction would return.
Although dependency is a lifelong struggle, it does not mean with absolute certainty that it will result in a relapse or set back. Clearly though, it will rely upon far more of not only a commitment to sobriety by both Defendant-Father and Ms. X, but active professional treatment and monitoring, which neither of them unfortunately are currently participating in. Clearly, if the Defendant-Father is serious about his long-term recovery, he must be serious about his recovery continuing. Defendant shall enroll in and participate in a mutual support group as a component of his parenting time. See Hardy v. Hardy, 194 A.D.3d 1043, 1045 [2d Dept 2021]; Matter of Welch v. Taylor, 115 A.D.3d 754, 756 [2d Dept 2014].
The Court agrees that the father's unfocused ability to monitor all three (3) children at the same time in a "park setting" which was described by the forensic evaluator is a cause for concern. The forensic evaluator's testimony related to what she herself observed and had to deal with clearly raises concerns about the father's ability to properly care for all three (3) children at the same time in a public setting and his lack of exercise of proper parental control is problematic particularly given the young age of the children. It is also consistent with the mother and her witnesses' testimony about the father while alone with the children in a public setting.
In addition to overnight unsupervised visitations, the father is seeking parenting time access with the children on Thanksgiving, during summer and winter vacations, as well as the following religious holidays: Rosh Hashanah, Yom Kippur, Sukkot, Hanukkah, Purim, Passover, Lag BaOmer, Shavuot. The mother is seeking that the father's visitation be supervised and opposes the father's request for parenting time access during the children's summer and winter vacations. At this time for the reasons stated herein, the Court does not grant the father's request for overnight visits or for parenting time during winter vacations. The father may make an application to expand his parenting time after a one (1) year period consistent with this opinion and any facts and circumstances then existing.
Custody
This Court finds that the best interests of the children require that primary legal custody be awarded to the mother, which the father did not oppose. The mother though cannot and should not view this decision as a wholesale right to abrogate the father's parental role implicitly or explicitly. The mother must recognize that with custody comes certain obligations and mandates to include the father and get his input on all issues of health, education, welfare and religious upbringing.
Parenting time access
The Court is aware of the position of the two older children. The preference of the child, while not determinative, is a factor to be considered and entitled to some weight (see generally Liriano v. Hotaki, 176 A.D.3d 710, 711-12 [2d Dept 2019]). Additionally, the Attorney for the Children on behalf of his clients supports the father having unsupervised visits with the children.
Based on the totality of the evidence, this Court does not find that supervision of the father's visitation with the subject children is warranted at this time. However, the Court does not believe that the Defendant-Father currently possess the necessary parental control and ability required to care for all three (3) of the young children on his own at the same time in a public setting, except for periods of exchanges. Therefore, the Court finds that it is necessary that the father be accompanied by Ms. X or another adult relative whenever he takes the children outdoors in a public setting. The exclusion of Ms. X must end and her inclusion at this time must be viewed as a positive and not a negative. The Court finds that there is no basis for the Plaintiff's opposition to Ms. X accompanying Defendant during his parenting time. The Court further notes that the parties' children now have half-siblings as a result of Defendant's religious marriage to Ms. X and having her and those siblings participate in parenting time is beneficial to all the children.
Parenting Time with B.B and A.B.
This Court finds that under the facts and circumstances herein, the father shall have parenting time with the parties' two eldest children, B.B. and A.B. as follows: during daytime hours on each Saturday at the conclusion of services and alternating Sundays, effective July 31, 2023. The father's parenting time on each Saturday shall commence after synagogue ends an hour after sundown, where the children shall be returned in front of their mother's residence or synagogue, if that is where the mother indicates she will be on that particular Saturday. The Court is concerned about the father's ability to manage all of the children at the same time while on the streets or while in parks and other public setting. The father shall have parenting time on alternating Sundays commencing at 12:00 p.m. until 6:00 p.m. Pick-up on Sundays shall be at 12:00 p.m. in front of the mother's residence and drop-off shall be at 6:00 p.m. in front of the mother's residence. Times shall be strictly observed, unless agreed otherwise in writing.
Parenting Time with R.B.
Due to the parties separating prior to the parties' youngest child, R.B., being born the youngest child does not have a close connection or relationship with the Defendant-Father. The Court believes that R.B. may find it difficult, at this time, to have one-on-one time with the Defendant-Father, therefore, it is important that R.B.'s sibling (B.B. and A.B.) be present during visitation with the father so that R.B. can have familiarity. The Court believes that over time the Defendant-Father would have the opportunity to form a meaningful relationship and develop better parental control to manage the three (3) subject children at the same time. In regard to R.B., the father shall have parenting time as follows:
• For the first three (3) months: The father shall have parenting time on alternating Saturdays with R.B., accompanied by her siblings. The father's parenting time with R.B. shall commence after synagogue ends and last for a duration of three (3) hours. That the child shall be returned to her mother after the three (3) hour parenting time, curbside or synagogue, if that is where the mother indicates.
• For the following three (3) months: The father shall have parenting time on each Saturday with R.B. accompanied by her siblings for a duration of four (4) hours after synagogue and alternating Sundays for three (3) hours commencing at 12:00 p.m. and that the child shall be returned after the parenting time, curbside or synagogue, if that is where the mother indicates.
• After six (6) months: R.B. shall have the same parenting time schedule as her siblings, B.B. and A.B.
On the week that the father does not have parenting time, the Defendant and the subject children shall have a Wednesday dinner from 4 p.m. - 7:30 p.m.
After twelve (12) months the father may apply for a modification of parenting time to expand to overnight visitation. See generally Griffin v. Danzy, 160 A.D.3d 642, 644 [2d Dept 2018] [The Appellate Division determined the requirements imposed by the Family Court such as introducing the overnight visitation gradually, while ensuring the assistance of the children's home health aide, were designed to protect the children while encouraging the bond between the children and the father.].
Subject to the limitations of time for R.B for the first six (6) months.
IT IS HEREBY ORDERED that the parties shall alternate in odd and even years civil and religious holidays. If a holiday is celebrated in the evening, parenting time shall be for a duration of four hours, two (2) hours before sunset until two (2) hours after sunset. If a holiday is celebrated in the daytime parenting time shall be from 12:00 p.m. until 7: 00 p.m. This alternating schedule will commence with the father having Rosh Hashanah this year. Father shall have one week vacation with the children in July and one week vacation in August commencing in 2024. The father's parenting time during those weeks shall be from 10:00 a.m. until 8:00 p.m. Pick-up and delivery shall be outside of the mother's residence.
As to the fact that there was no testimony or submission as to each specific holiday and why either parent should celebrate, if the parties cannot agree to the odd/even schedule they may make and an application to the Court.
If the mother has a good faith belief that the father is under the influence of drugs or alcohol during parenting time with the children, she may temporarily suspend visitation; however, if she does so she must also move before a court of competent jurisdiction for a change of parenting time within two (2) court business days. The mother must understand that a pattern of repeated allegations, if found unsubstantiated by the Court, against the children's other parent may have implications on future parenting time applications.
Soberlink
Inasmuch as the Defendant is a sabbath observer and requiring him to utilize the Soberlink device would interfere with his religious restrictions, Soberlink is discontinued.
Mutual Support Group
Defendant shall enroll in and participate in a mutual support group as a component of his parenting time. See Hardy v. Hardy, 194 A.D.3d 1043, 1045 [2d Dept 2021]; Matter of Welch v. Taylor, 115 A.D.3d 754, 756 [2d Dept 2014].
Ms. X's interaction
The requirement that Ms. X must be present for all visitations that occur outside the residence, except for pick-up and delivery, shall be in effect for a period of eighteen (18) months or subject to further order of a court of competent jurisdiction.
The mother may NOT prohibit the children from interacting with Ms. X and she is prohibited from disparaging Ms. X to the children or in the presence of the children and she shall take whatever steps are necessary to remove the children from any person who is disparaging Ms. X in front of the children.
No Disparagement
Neither parent shall prejudice the children against the other parent to impair the child's regard of the other parent.
Father's Day/Mother's Day
For Mother's Day and Father's Day, the parent who has access pursuant to the schedule with the respective children shall designate four (4) hours when the other parent shall see the child if requested.
Children's and Parent's Birthday
For the children and parent's birthday, the parent who has access with the respective children shall designate four (4) hours when the other parent shall see the child if requested.
Car Seats, Window Guards, Smoke Detectors and Carbon Dioxide detectors \
When transporting the children in a vehicle, each child must be secured by appropriate child safety seats in compliances with existing regulations. Each of the parties' residence must have window guards, smoke detectors and carbon dioxide detectors installed.
Food allergies
If there are any food products that the children cannot have due to food allergies there must be medical proof provided in writing which shall be provided to the other parent. The parents shall take appropriate measures to ensure that any medically necessary dietary restrictions supported by medical proof shall be complied with.
Medical Intervention
Each parent must be notified immediately, within two (2) hours, if a child is hospitalized and have full access to the child, facility and doctors and professional staff.
The father shall have reasonable access to all age-appropriate medical, dental, psychological/ mental health records of the children. The father should be able to attend all physician appointments, except in an emergency. If there is an emergency each parent shall be entitled to attend to the child at a doctor's office or hospital as soon as possible.
No non-emergency elective surgery shall be authorized without consultation and notice to the non-custodial parent upon twenty-one (21) days prior notice by e-mail.
School Records
The father is hereby authorized to access any and all information related to the children's progress in school, including grades and deportment, and he shall be permitted to attend any and all school functions, and to meet with the children's teachers.
The father shall be listed as the children's non-custodial parent on all school/camp registration and information forms so that he will receive all information regarding the children's school activities and events directly related to the children's school.
The father shall receive all school/camp notices and report cards by e-mail from the mother unless the school/camp sends them directly to him within twenty-four (24) hours of receipt by e-mail.
The father shall be provided with all notices for Parent/Teacher/guidance counselor meetings or events within twenty-four (24) hours of receipt by e-mail.
The father shall be consulted as to any proposed change in school/camp upon sixty (60) days prior notice in writing via e-mail.
Access Outside of Scheduled Parenting Time
Each parent shall be permitted to speak with the children when the children are not with them be telephone, video calls or by other electronic means for a reasonable amount of time every other day between 5:30 p.m. and 7:30 p.m. The children shall have the right to every other day reasonable phone access and contact with both parents irrespective of which parent has parenting time with the children on that day. The mother may NOT interrupt or discontinue the call except in an emergency effecting the safety of a child.
The mother may not discontinue any video visits or other visits with the father and children, nor should she be able to control if his other children or Ms. X are present during visitations.
Relieving Court-Appointed Counsel
The attorney for the children and the court-appointed attorney for plaintiff and defendant are hereby relieved subject to compliance with the Judiciary law section 35(8). At this time, plaintiff and defendant appears self-represented on the financial issues between the parties.
This matter is scheduled for an IN-PERSON trial scheduling conference on the ancillary issues on August 17, 2023 at 10: 00 a.m., where both parties are self-represented. A list of Bar Associations and other sources of legal referral will be uploaded to NYSCEF for the parties to access.
Conclusion
Either counsel may settle an interlocutory judgment on notice. Pending settlement of the interlocutory judgment the parenting schedule and provisions herein shall be obeyed as a decision and order of the court.
This shall constitute the decision and order of this Court.