Opinion
No. XX/13.
2013-02-25
MARY E., Plaintiff, v. USHER E., Defendant.
Brynde Berkowitz, Esq., Brynde Berkowitz, P.C., Woodmere, for Plaintiff. Bathsheba Epstein–Hersko, Esq., The Law Offices of Batheba Hersko PLLC, Brooklyn, for Defendant.
Brynde Berkowitz, Esq., Brynde Berkowitz, P.C., Woodmere, for Plaintiff. Bathsheba Epstein–Hersko, Esq., The Law Offices of Batheba Hersko PLLC, Brooklyn, for Defendant.
Melissa Bonaldes, Esq., Brooklyn, for the Children.
JEFFREY S. SUNSHINE, J.
In this custody dispute the Court is presented with a myriad of issues related to, inter alia, the custody of two 13 year old twins one of whom suffers from a severe eating disorder. The court is faced with allegations domestic violence, reciprocal claims of power imbalances, severely oppositional behavior and alienation. Complicating the issues are a family dynamic where both parents exercise poor judgment and lack insight.
Procedural Background
The court is called upon to determine custody of the parties' minor children, twins, G.E. and M.E.
who were born in August 1999. This matter was tried on the following dates: November 14, 2011; February 17, 2012; February 22, 2012; March 6, 2012; March 14, 2012; April 2, 2012; April 30, 2012; May 2, 2012; and June 18, 2012. Counsel submitted written summations in September and October of 2012. The court contacted counsel for both parties' on numerous occasions requesting a copy of the trial minutes.
The names of the children that are still minors under the age of 18 and are referenced herein have been abbreviated for privacy purposes; to wit, M.E. and G.E.
On May 15, 2009 the plaintiff-mother filed a petition for an order of protection against the defendant-father, and a petition for an order of custody of the minor children of the marriage in Family Court, Kings County. On May 21, 2009, the father also filed a petition for an order of protection against the mother and a petition for an order of custody of the minor children of the marriage in Family Court, Kings County.
On May 17, 2010, in this court the plaintiff-mother brought an action for divorce against the father on the ground of cruel and inhuman treatment. On July 6, 2010, this court consolidated the Family Court petitions on consent into the Supreme Court, Kings County. At the time of the consolidation, there were five (5) minor children of the parties' marriage. To date, all of the parties' children other than the two (2) youngest daughters, G.E. and M.E., have reached the age of majority for purposes of a custody determination.
The temporary order of protection was withdrawn by the mother in family court. She claimed, later in Supreme Court, that the temporary order of protection was withdrawn by her then attorney without her consent.
On October 5, 2011, this court issued an order providing that the minor children, Suzzane who is known by the name Shani (hereinafter referred to as Shani) (who has since reached the age of majority), G .E., and M.E. have alternate weekend visitations with the father, visitations on every Wednesday, and that the children spend the religious holiday, Succot, with the father in the presence of the adult siblings in October of 2011. The parties', in total, have eight (8) children.
The trial for the custody of the minor children, Shloimy, Motty, Shani, M.E. and G.E., commenced on November 14, 2011. The court appointed Rebecca Fort, Esq. to represent the male children Shloimy and Motty, and Melissa Bonaldes, Esq. to represent the female children Shani, G.E. and M.E. When the children reached that age of majority, eighteen (18), Ms. Fort was relieved as counsel for Shloimy and Motty and Ms. Bonaldes was relieved as counsel for Shani.
Dr. Rodrigo Pizarro
was appointed as a neutral forensic evaluator and conducted a forensic custody evaluation, dated April 8, 2011, regarding this matter, pursuant to 22 NYCRR 202.18. On February 17, 2012, in light of G.E.'s alleged diagnosis of a severe eating disorder this court issued an order, sua sponte, directing that Dr. Pizarro conduct an update to his forensic custody evaluation. Dr. Pizarro conducted an updated evaluation and issued an addendum, dated March 8, 2012. On March 14, 2012, Dr. Pizarro testified in court subject to cross examination. The reports were admitted into evidence on consent.
Dr. Pizarro has an MBA in Health Care Administration from Baruch College and an MD from Buenos Aires University. He was recertified in Forensic Psychiatry in 2011, recertified in Child and Adolescent Psychiatry in 2009, and recertified in Psychiatry by the American Board of Psychiatry & Neurology Inc. Dr. Pizarro obtained residency training in Forensic Psychiatry at New York University Medical Center from 1998 to 1999.
The pendente lite order dated February 17, 2012, also provided that G.E. remain in treatment for any eating disorder(s) as long as her treating doctors deemed medically necessary or further order of the court. Furthermore, the parties' were to enroll G.E. in therapy with Dr. Leah Davidowitz, a social worker who specializes in the treatment of eating disorders and was recommended by G.E.'s treating physicians. The order further provided that the parties' keep each other fully informed as to any issues regarding the children's medical and mental health care and well being, and that they communicate with each other via e-mail.
The Facts
The parties' were married on December 29, 1986, in New York.
The parties' have eight (8) children of the marriage. The two (2) minor children, G.E. and M.E., are twins, currently thirteen (13) years old, and were born August 27, 1999.
Defendant's Summation and Memo of Law states that the parties' were married in 1984 in Israel. Decision and Order by this court, dated January 6, 2011, and documents submitted to the court prior to that Decision and Order, indicate that the parties' were married in New York in 1986.
The family for whom the father worked for introduced the father and the mother to each other. At the time they were introduced to each other, the mother was living with an individual related to the father's employer.
The father works as a warehouse manager at a paper factory. The mother previously worked as an insurance broker and is currently unemployed. She currently attends law school and the father testified that the mother was enrolled in law school for the last two and a half (2 1/2) years that they lived together.
Prior to the commencement of this action, the parties' resided together, with their children, at the marital residence in Brooklyn, New York. The father continues to live at the marital residence with one adult son of the parties' born on October 5, 1992. The parties' adult children visit the father at the marital residence during Jewish holidays and at other times.
On May 18, 2009, the mother moved with the minor female children to OHEL Children's Home and Family Services, a domestic violence shelter, where she lived for one and a half (1 1/2) years. In November 2010, the mother moved with the parties' three (3) minor daughters
, to a one (1) bedroom apartment. Since January 2012, the mother has lived with three (3) of the parties' daughters in a three (3) bedroom apartment. The male children, at times, lived with the father but mainly resided at a yeshiva.
At that time, Shani was a minor.
Domestic Violence
The mother testified that throughout the course of the parties' marriage the father physically abused her, exercised emotional and financial control over her, and he controlled access to her personal possessions. This court heard testimony from the mother, from Esther Katz (hereinafter referred to as Katz), Director of the Domestic Violence Shelter at OHEL, and from Shoshannah Frydman (hereinafter referred to as Frydman), who is a social worker and Director of Family Violence Services for Metropolitan Council whom is the mother's therapist. They both testified that the father exercised financial and emotional control, and that he verbally and physically abused the mother.
Frydman testified that based upon her experience and conversations with the mother, she thinks that the father was controlling towards the mother and that there were instances when he physically abused her, as well as a pattern of emotional control, financial control and control of the mother's personal belongings. Katz testified that “Mary experienced that marriage, their marriage is very controlling, that there was a few incidents of physical abuse, ongoing issues around emotional control, financial control. She described not having access to things within their own martial home.”.
Frydman testified that the mother discussed with her an incident that occurred in the winter of 2009 where the parties' “... were in their bedroom and there was some kind of verbal altercation and then at some point [Usher E]. picked up a glass frame, a picture frame, and threw it, and it shattered.” Frydman testified that during this incident, M.E. was outside the bedroom door and that G.E. ran out of the house. Neither of these witnesses observed what they testified to and it is conceded that these witnesses never spoke with the father. Instead, they are reporting what they were told by the mother.
The mother testified that between the years 2007 to 2009 the father pushed her down the stairs on two (2) different occasions. She testified that “[o]ne time when the husband pushed me, then they [G.E. and M.E.] covered themselves under the blanket because they didn't want to see anything”.
The mother testified that she was pushed down the stairs on another occasion, that [o]nce when I was going up the stairs and my husband pushed me down and I roll[ed] down all the way, all floors, all [the] way down to the first floor. [Shani] witnessed it and she was screaming. She went upstairs.
And the father was trying to close her mouth, so nobody should hear her. So she ran upstairs to her bed.... So the father went up and was trying to cover her head with the pillow so nobody should hear her, because the boys were coming later. She was saying loud that she's going tell everybody everything.
The mother testified that Shani, M.E., and G.E. witnessed the abuse that the father inflicted on the mother. She testified that “[m]any times when my husband used to yell, [G.E]. used to run out of the house, [M.E.] would try to protect me.” Katz also testified, based on what the mother told her, that the children witnessed the father subjecting the mother to emotional abuse by yelling, going into rages, and withholding help in the house. The mother also testified that the father would lock the door to a room which contained the mother's clothes, to deny the mother access to her clothes. Katz received this information that she testified to from speaking to the mother.
The mother testified that the father exercised extreme financial control. The mother avers that the father has been denying her access to any money since 2005. The father testified that prior to 2005, the mother was in control of household finances, but that from the years 2005 to 2009 he took control of the finances, because he discovered that the mother was hoarding and secreting money that he had given to her, rather than using it for the children or the household. He testified that he learned first hand that the mother diverted the financial statements from the home. From the years 1999 through 2003 she controlled the finances and signed all of the checks. He posits, and it is not refuted, that the wife systematically siphoned joint assets into her own name.
It is undisputed that on May 18, 2009, the mother left the marital residence with her three (3) youngest daughters, Shani, G.E., and M.E., and moved into a domestic violence shelter operated by OHEL Children's Home and Family Services (OHEL). The mother testified that although she “... never wanted to leave home because [she] didn't want to break the family”, she left the marital home to live in the shelter because “... I was really suffering. I felt that there was big effect on the children and I was afraid to stay home [.]” She testified that in 2009, she started feeling that she could no longer live in the marital home with the father, that she could not tolerate it, that she felt like she was “living on egg shells”, and that she could not predict what would happen the next day.
At OHEL, the mother met with Katz with whom she spoke to regularly for advice, domestic violence treatment and therapy. Katz, a social worker herself, testified on direct examination that she believed that the mother had post traumatic stress syndrome “... [b]ased on her reaction to our discussions, based on her overall—there was underlying anxiety, fear and hyper-vigilance when discussing certain situations with regard to her history.” During cross examination she testified that “[w]hen you would discuss anything to do with the earlier trauma that she related, she would get very upset. She would cry; sometimes she would get angry.” Earlier trauma refers to the last four (4) years of the marriage. Furthermore, “[t]he court case is [sic] and of itself brings up a lot of post-traumatic stress symptoms.” Katz also testified that the father was opposed to the mother studying or advancing herself, and that the father did not give her money unless she begged.
Katz testified that the father did not help or allow the children to help the mother with household chores, even when the mother was confined to a wheelchair after she was in a car accident that caused an injury to her spine. Katz also testified that the father controlled the mother by forcing her to go to bed at midnight, whether she wanted to or not. The mother told Katz this on one (1) occasion after the mother called the Shalom Task Force, a referral service for abused women in the Orthodox Jewish community. She testified that the father pulled out the telephone wires from the mother's telephone so that she would not be able to make phone calls or receive help. Katz also testified that the father told the mother that if she ever tried to leave then she would lose all of the children. This testimony clearly indicated that Katz was relying on the reports of others and although she comes to the conclusion that all of this happened she readily admits that she does not have first hand knowledge.
The mother testified that her minor children, G.E. and M.E., witnessed violence between the father and the mother, and that she requested that their school offer G.E. and M.E. therapy with regard to domestic violence.
The father testified, quiet adamantly, that he did not physically abuse the mother. He testified that he did not push the mother down a flight of stairs and that he did not lock a door that denied the mother access to her clothes. Dr. Pizarro, the forensic evaluator, testified that in his opinion no domestic abuse took place between the mother and the father, or the children. In relaying his observations of the children and his conclusions regarding alienation and domestic violence, Dr. Pizarro testified as follows:
In this particular case when I talked to all the older children, number one, they all said that there was no abuse in that home; that the father was not an abusive person; the father never did any thing that would justify such a rejection.4
Then when I talked to the younger girls, the three girls, and I asked them specifically about things that the father had done to the mother or themselves, they could not give me any examples or any descriptions of anything that the fathers would do
or would have done that would justify the rejection. That is a couple of elements.
The court notes that the hearsay reliance of the forensic evaluator cannot be the basis for this court to render its decision. The court also notes that the son, Moishy, did testify and that his testimony was consistent with the reports to Dr. Pizzaro.
A third element is my own observation of the girls in the office with the father, in which they did not seem scared at all.
Actually, I would say that they were scary in the sense how they gang up on the father, how they yell at him and challenge him and confront him and accuse him of not giving money to the mother. They told him he had to give the mother whatever the mother wanted....
Later in his testimony, Dr. Pizarro stated
[s]o that level of aggression towards the father—what I would say is that you would expect in cases in which the main complaint is that the father was this monster that was abusive and that is why they don't want to see him, I would have expected to see them as acting more scared, frightened rather than so aggressive ...
It was clear from all this, and even when I got collateral information from other sources, nobody would give me any kind of information that would support any instance of abuse by the father.
The Parties' Parenting History and Ability to Parent
The mother is the primary care giver and is more involved than the father in the daily lives of their minor children, as well as the other children of the parties' marriage whom have reached the age of majority. The father testified that he was not very involved in the children's education, medical providers, and therapists, and that he relied on the mother to run the household and to care for the children. The father testified that if he is awarded custody of the children he would either send the children to boarding school in Israel or have one of his adult daughters look after them.
Dr. Pizarro's evaluation also notes that the father does not have a history of being the primary care giver, but that the “mother is not putting the children's needs first as she is invested in maintaining control from a victim position rather than addressing the children's needs”.
Katz testified that she thinks that the mother is a good mother because of her observations that the mother was concerned about how the children were behaving and handling themselves, and how they were treating each other. Katz testified that the mother sought advice regarding the emotional needs of the children and for suggestions as to how she could provide the children with attention. Katz also testified that the mother keeps abreast of the children's progress in school and that she was aware that the children were completing their homework assignments. Frydman similarly testified that the mother's primary concern is the emotional well being of her children.
On the issue of whether the father would be able to provide care of the children, Dr. Pizarro testified that “[t]he father has no proven record [regarding being caregiver to the children], so its very difficult for me to comment on that. I think it's a question mark”. The mother, when asked by the attorney for the child if she thought the father was a good father, stated that she did not know. The father testified that during visitations he did not cook meals for the parties' minor aged daughters, he bought prepared foods for them instead.
Miriam Rothken (hereinafter referred to as Rothken), a social worker at Jewish Board of Family and Children Services, testified that she treated G.E. for over one (1) year beginning in January of 2011. Rothken also conducted parenting sessions between G.E. and her mother, where she would help the mother learn how to discipline G.E. and to help G.E. understand that her mother is to discipline her when needed. Rothken testified that when she first began working with G.E. and her mother she had the impression that G.E. was not accustomed to being disciplined by the mother. However, Rothken testified that it seemed to her that since she began working with her, the mother's ability to provide structure and discipline and her ability to parent improved.
The mother introduced into evidence a letter that Moishy wrote to the mother, wherein Moishy apologizes to the mother for the negative things that he said to Dr. Pizarro during the preparation of the forensic report. The letter was entered into evidence without objection. The mother proffers to the following language in the letter: “I assume that it can be because a franzic [sic] Report, it has noting [sic] to do with me it wasent [sic] in my hands at all Just [sic] like the girls where [sic] also involved unwilled.” In fact, the letter from Moishy also begs the mother to talk to him, and indicates that he suspects that the mother is not talking to him because of his involvement in the preparation of Dr. Pizarro's forensic report, for which, he tells her, he is sorry. Moishy testified at trial that the father encouraged him to have a relationship with his mother after she moved to the domestic violence shelter. The mother claims that the two recently emancipated male children were estranged from her due to the acts of the father. The record indicates the opposite. In compeling testimony, Moishy talks of his desperate search to locate his mother over an extended period of time. In his written communication to his mother he appears to beg her to speak with him.
Dr. Pizarro testified that the mother does have some good insight in making the right decisions for the child in certain areas. For example, he testified, that the mother expressed more interest then the father in the children receiving a college degree. However, Dr. Pizarro testified that the children, G.E. in particular, have not adjusted well to living with the mother since 2009. He testified that G.E. is a very compromised child, that she has poor control, is very oppositional, and she has a serious eating disorder. Dr. Pizarro also testified that the mother has a problem setting guidelines for G.E. and that this is particularly problematic given G.E.'s diagnosis of a serious eating disorder. He testified that in his assessment things have grown worse for G.E. since living with the mother in 2009. Dr. Pizarro testified that, in his opinion, for issues that have an underlying psychological component, the mother has not shown good judgment.
Dr. Pizarro further testified that the father cares about [G.E.]. “Many parents that end up being rejected are parents that were not perfect either because he was working all the time and in synagogue the rest of the time and not really much in the house. Or because he is not very psychologically minded, doesn't listen very well to what the kids are saying; the kids may end up with the impression that he doesn't care.”. However, the fact that [G.E.] says the father does not care, ... isn't not just about the fact that this father may not listen well to what she is saying. I think this is a product of alienating behavior.” At cross examination, Dr. Pizarro was asked “... Do you have an opinion as to weather [sic] or not both parties' or either party have a real understanding of how their behavior has affected their children?” He answered “[n]o. I have an opinion and the answer is no. I have an opinion and I think that they don't have an understanding.”
Allegations of Secreting and Hoarding Money
The mother testified that father exercised excessive financial control over her. The father, on the other hand, testified that the mother exhibited a pattern of hoarding and secreting food and money. He testified that she has been dishonest about the money he gave her before they were physically separated. The father testified that he took control of the household finances because the mother was hoarding money, rather than using it for the household and the well being of the children.
The father testified that in the beginning of the parties' marriage he would give the mother his paycheck. In 2004 he discovered that financial statements and other mail were rerouted from the marital residence to a post office box. He testified that prior to 2005 the mother was secreting marital money by transferring the money from their joint accounts into her individual name. The statements of these accounts were also sent to the post office box.
The father testified that he tried to resolve the situation with the mother by speaking to his Rabbi, David Eichenstein, with the mother. The father testified that Rabbi Eichenstein counseled him to take control of the household finances to save his family because the mother was not using the money for the household. He testified that in 2005 the mother said they were “running tight” on money and teachers told him that the children were wearing the same clothes for weeks at a time. The father testified that prior to their separation he would give the mother money to buy clothes but the mother obtained used clothing that was intended for the poor. He also testified that he gave her money to hire someone to clean the house but that she did not use the money for that purpose, and instead had the children clean the house.
The father also testified that the mother told him that school tuition was $3,000.00 per year and did not tell him that she was using a “voucher,” which allowed her to pay $16.00 each month. He testified that he would give the mother money to pay the tuition bills without seeing the tuition bills himself and he thought the money was utilized for tuition. The father testified that in 2008 he received a telephone call and a letter from the school stating that the children could not attend school unless tuition was paid. The father testified that in September 2008, the children did not go to school for approximately ten days because they did not have an admission card, which would only be provided if the tuition was paid. The father testified that the mother asked the father for a check to pay the tuition bill but that at that point he wanted to see the bill before giving her a check. He went to the school to pay the tuition on this occasion. The father testified that he discovered that the mother obtained a school voucher and was paying $16.00 per month while he was giving her $275.00 per month towards tuition. Due to this behavior, the father believed he needed to take control of the household finances and did so from the years 2005 to 2009.
The father believes that the mother chose to live in a domestic violence shelter so that she could assert total control over the children and hide from people who were suing her in a matter related to her insurance business. The father avers that at the time she moved out of the marital residence, the mother had sufficient funds to move into a private apartment, rather than a domestic violence shelter. The father proffers several exhibits in support of his testimony that the mother had access to a significant amount of money at the time that she moved to the domestic violence shelter and his allegations that she has been hoarding money rather than spending it on the children. The father introduced into evidence the mother's affidavit dated August 11, 2010, in which the mother states that she settled a lawsuit in the Southern District Court of New York, where she was named as a defendant, by paying $100,000.00.
The mother admitted that in an affidavit, dated July 8, 2010, she wrote that “my children and I were forced to live in a public shelter for more than one year due to my husband's refusal to give us any money for shelter”. The father avers that the mother's statement that she was forced to live in a shelter because of lack of access to funds cannot be true because the mother had access to a significant amount of money at the time. The father also avers that this statement directly contradicts her testimony at trial that she moved to the domestic violence shelter because of the abuse from the father, rather than the reason that she did not have access to money. The father avers that this inconsistency demonstrates that the mother's allegations of domestic violence are not credible. The mother's affidavit, dated August 11, 2010, states, to the contrary, “[t]o make it abundantly clear, that the reason, and the only reason I left the comfort of our splendid three thousand (3,000) square foot home, and moved into a crowded public shelter, with three (3) of our children, was because of the Defendant's constant acts and threats of violence which were intolerable.”.
The father also introduced into evidence several bank account statements, which, taken together, indicate that in May and June of 2009 the total balance of some of the mother's bank accounts equaled $81,224.36, including joint bank accounts held by the mother and the mother's late father
The mother testified that her father who died in 2007 and that in 2009 she had access to the monies in the joint accounts she held with the father but claims she could not use those monies.
The name of the corporation has been abbreviated for privacy purposes.
The bank account statements indicate that aside from the joint bank accounts with her father, the accounts held solely in her name and in the name of A corporation totaled $33,458.01. The mother testified that it was possible that she had $33,000.00 in A's corporate bank account and that she did not use any of the funds in A's corporate bank account to find an apartment when she moved to a domestic violence shelter. The father testified, and proffered bank account statements in support of his testimony, that the statements from A corporation's accounts were sent to a post office box rather than the marital residence to hide the accounts from the father. The father also introduced into evidence the mother's 1099 tax forms that show that she earned $849,531.70 in 2005 and $185,072.66 in 2006, as an insurance broker. The father also introduced checks into evidence, which he contends demonstrate that the mother signed the vast majority of the checks from the parties' joint bank account from February 1999 to 2003.
The mother testified that she set up the A corporation. for tax purposes and that she used it to deposit income she earned from insurance commissions and to pay certain bills.
The father testified that the mother is obsessed with money and that she told him that if the parties' resolved the financial issues by agreeing to give her money, she would then settle the visitation issue with him.
Hospitalization and Diagnosis of Severe Eating Disorder
Throughout the course of this litigation there have been substantial periods of time when both G.E. and M.E. as well as Shani refused to visit with their father. On January 15 or 16 2012, G.E. was hospitalized for two (2) weeks at the eating disorder unit of North Shore Long Island Jewish Hospital. Prior to being hospitalized, in the summer of 2011, G.E. and M.E. went to summer camp, where G.E. first began expressing concerns about being overweight. In the fall of 2011, G.E. began to eat less and less. After being hospitalized, G.E. began seeing Dr. Martin Fisher, and his medical partner Dr. Einstein, who specialize in the treatment of eating disorders and are affiliated with North Shore Long Island Jewish Hospital.
During G.E.'s hospitalization both parents visited their daughter. This Court notes that the mother failed to initially advise the father that their daughter was hospitalized. When he was notified about the hospitalization, the father called numerous hospitals, over a number of days, to locate their daughter since the mother did not advise the father which hospital where G.E. was a patient. G.E. was diagnosed with “Eating Disorder NOS, with an overall presentation similar to Anorexia Nervosa.”
After being hospitalized, G.E. refused to return to visits with the father.
Dr. Pizarro testified that G.E. was diagnosed with eating disorder NOS (not otherwise specified) with an overall presentation similar to anorexia because her condition did not fit the specific weight criteria required for a diagnosis of anorexia. He testified that the reason for this was that she was hospitalized when her weight was going down, and that the hospital was able to feed her enough to increase her weight.
In addition to an eating disorder, Dr. Pizarro reports that G.E. presents many symptoms consistent with oppositional defiant disorder. He stated that G.E. was described by her therapist as “... stubborn, oppositional and difficult”. G.E. was often “... out of control at home” and “... that the mother cannot set limits” for her. In the initial report, Dr. Pizarro also stated that:
• In many cases of alienated children, the children reject one parent but on the other hand exhibit an overall good adjustment when living with their aligned parent and in school with friends.
• However, [Shani] and [G.E.] do not exhibit an overall good adjustment. Most sources, even therapists chosen by the mother described them as stubborn, oppositional and difficult, which was convergent with my own observations.
• [G.E.'s] therapist stated that [G.E.] functions overall OK in school but that she is out of control at home and that the mother cannot set limits. This is typical of children with Oppositional Defiant Disorder. They usually respond well to the structure provided by neutral settings such as school, but are out of control at home because of the parental dysfunction.
Dr. Pizarro's updated report, dated March 8, 2012, identifies G.E.'s eating disorder as an extreme increase in her level of oppositional behavior:
• [G.E.], who had impressed me as a maladjusted and oppositional child, has increased her level of oppositional behavior to an extreme, as Anorexia Nervosa is an extreme version of oppositionality and negativism, in which a patient literally can starve herself to death, rejecting any help or attempt to influence her by family or professionals.
Dr. Pizarro testified that his own observation is that the child is very oppositional, stubborn, and difficult. Frydman, the mother's therapist, who has seen G.E., testified that G.E. can be very stubborn, difficult, act out and that she seemed to fight a lot with her sister Shani. Dr. Pizarro's reports that oppositional defiant disorder does not respond well to individual therapy alone. He states that G.E. would respond better to parenting training because G.E. would respond better to a parent who disciplines her in a firm and consistent manner. Dr. Pizarro states in his report that people with oppositional defiant disorder respond to high levels of structure, and that when adolescents are placed in the midst of high conflict, some adolescents may benefit from detachment from both parents.
Dr. Pizarro testified that G.E.'s eating disorder is a serious diagnosis where the parent must force the child to eat and that he has concerns with the mother being the primary care giver to G.E.. He testified that one of the issues with the disorder is stubbornness on the part of the patient in eating food. Dr. Pizarro testified that “[t]he mother is the one who has been the primary parent for all these years and even under the mother's care this child, not only developed the disorder, but also was struggling with the disorder, even after the hospitalization.” Dr. Pizarro testified further that the mother told him that she is trying to feed G.E., but G.E. sometimes she refuses, this is when the mother tries to negotiate and compromise with the child. The mother is not always successful in having G.E. follow the menu required to treat the eating disorder. Dr. Pizarro testified that Dr. Leah Davidowitz, G.E.'s therapist, told him that her impression, based on what the child was telling her, is that the child does not follow the whole menu, required for treating the eating disorder, and she is eating less calories than what she is required to eat. He testified that the mother constantly complains that she cannot control things, that she has difficulty controlling the children. At the initial evaluation interview she stated that she cannot control them or make them talk to him. Additionally, he testified that he observed that the children were out of control and being disruptive in his office; because of this, he is concerned and questions whether the mother will be able to force G.E. to eat.
Dr. Pizarro's updated report avers that the mother told him that after being hospitalized, G.E. gained some weight in the hospital, and that the hospital advised that she should be treated in a day treatment program. Dr. Pizarro's indicates in his updated report that the mother told him that G.E. wanted to go back to school and to her friends and was not participating in the hospital activities. It appears that the mother decided to use out patient therapy rather than the day treatment option, contrary to the advice of G.E.'s treating physicians. It is undisputed that the physicians referred them to Dr. Leah Davidowitz who trained at North Shore Long Island Jewish Hospital in eating disorders and practices in Brooklyn .
Dr. Pizarro testified that the mother's decision to use an out patient therapy option, rather than a day treatment option when the doctors at the hospital advised that G.E. requires the day treatment option was a “red flag”. He testified that the mother did not seem to understand or consider the seriousness of the situation when she made that decision.
When faced with a safety concern about G.E.'s treatment during this trial, the court on the record, with all the attorneys and litigants present, did verify her treatment status with the treating physician from North Shore Long Island Jewish Hospital.
In his updated report, Dr. Pizarro stated that
[G.E.], who had impressed me as a maladjusted and oppositional child, has increased her level of oppositional behaviors to an extreme, as Anorexia Nervosa is and extreme version of oppositionality and negativism, in which a patient literally can starve herself to death, rejecting any help or attempt to influence her by family or professionals.
From his experience with alienated children, Dr. Pizarro testified that individual therapy will not work for G.E. because she is maladjusted, has problematic behavior, and because G.E. has not been able to make a connection with a therapist before. Dr. Pizarro also testified that rather than individual therapy, what would work in such a situation is when there is a combination of judicial intervention that gives the alienated parent significant blocks of time, and to have some repair therapy between the alienated parent and the child.
Dr. Pizarro, in his updated report, opines that some of the factors likely contributing to the child's maladjustment and negativism are the exposure to a dynamic of high conflict and the exposure to alienating behaviors, driven by the mother. The updated report also indicates that since May 2009 G.E. has lived under the almost exclusive control of the mother and she was functioning as a maladjusted child for a long period of time. Additionally, G.E.'s situation has worsened and developed into a serious eating disorder and yet G.E. has not been able to develop any meaningful therapeutic relationships.
On March 6, 2012, the mother testified that G.E.'s vital signs and weight had improved and that her emotional state was improving, including her willingness to attend therapy. The mother introduced into evidence G.E.'s report cards in support of her testimony that G .E. is doing well under the mother's care.
The father testified that the mother has an eating disorder, where she would eat a large amount of food and then vomit in the childrens' bathroom.
The father also testified that the mother took G.E. off the father's medical insurance because she claimed she could not pay half of the co-pay, which would be $25.00 per visit. It appears to this Court that this decision, while herself having tens of thousands of dollar, raises serious judgment and credibility concerns.
This Court notes that no further evidence was proffered to support the father's allegation that the mother also suffers from an eating disorder, however, this Court observed the mother and notes that she presented extremely thin.
Parental Alienation
Dr. Pizarro reported that because of the mother's influence the daughters,
G.E. and M.E., are alienated from the father. Furthermore, the children are completely aligned with the mother and alienated from the father, and that they were opposed to having any contact with him as well as their adult siblings. Dr. Pizarro indicates in his report that the alienation of the father is driven by the mother, and that the mother has influenced them to the point that they act out the mother's aggression against the father. The mother possesses problematic personality traits that are fueling the daughters' alienation from the father, as well as resulting in enmeshment and problematic behaviors in the girls.
Dr. Pizarro testified that
[w]hen the child is alienated it means now his or her mind has changed. Now he or she cannot so that, doesn't have the strength to say, you know what, regardless of my parents' conflict, I'm going to maintain a relationship with all my parents.
What the child is saying is I cannot do that, I am so weak I need to kind of terminate one parent and align myself completely with the other.
Dr. Pizarro testified that based on his interviews and assessment, he concluded that the children were alienated from their father. Dr. Pizarro testified that he reached this conclusion because when he asked the children, Shani, M.E., and G.E., what specifically the father had done to the mother or to the girls, they could not give examples or descriptions of anything the father had done that would justify their rejection of him. Dr. Pizarro testified that the children could not give him any justifiable reason for the animosity and rejection of the father.
Dr. Pizarro testified that another factor that led him to his conclusion that the minor daughters were alienated was that all of the adult children told him that there was no abuse in the home. Dr. Pizarro testified that when he talked to all the adult children, they all stated that the father was not abusive and that he never did anything to justify the rejection by the children. Finally, Dr. Pizarro testified that another factor that led him to his conclusion regarding alienation were his own observations of the minor daughters. He testified that from his own observation of the girls in his office with the father, they did not seem to be afraid of him at all. He testified, that “[a]ctually I would say that they were scary in the sense how they gang up on the father, how they yell at him and challenge him and confront him and accuse him of not giving money to the mother. They told him he had to give to the mother whatever the mother wanted.” Rather then being afraid of the father, Dr. Pizarro testified that “[t]hey were actually in a way parroting or repeating many things that probably the mother had been saying to me in her individual session.” He testified that in his opinion, it was clear the children were influenced by what the mother was thinking and that their demeanor showed that they were not afraid of the father. He testified that “[t]hey were actually even saying to him if you give her money, what she wants, maybe we will consider going and seeing you.” Dr. Pizarro also testified that “[i]t was clear from all this, and even when I got collateral information from other sources, nobody would give me any kind of information that would support any instance of abuse by the father.”
Dr. Pizarro testified that both G.E. and M.E. were severely alienated. Since his initial evaluation, M.E. started to see the father, and she has “... shifted her dynamics from severe alienation to a different dynamic”
but that G.E. continues to be severely alienated. Dr. Pizarro's updated evaluation indicates that G.E. continues to be alienated and meets the criteria for a dynamic of severe alienation. Dr. Pizarro stated that G.E.'s complaints about the father continue to be vague, trivial, and not severe enough to justify the rejection of the father. He further testified that M.E. continues to be emotionally harmed by remaining in the mother's care. Dr. Pizarro testified that ... Issue is when I saw then originally both of them were rejecting the father, both of them were voicing clearly they wanted to stay with the mother.
At the time of update, M.E. had continued to attend visitations with the father, after both G.E. and Shani. stopped seeing the father. The update reports that given the history of severe alienation, and the fact that she lives with the mother and two (2) severely alienated siblings, M.E. still remains at risk for future alienation, because it would be very difficult for her to withstand alienating pressure in a household where the favored parent continues to exhibit alienating behaviors and the two other siblings, G.E. and Shani., are severely alienated.
But at the same time I found them to be alienated, and the dynamics of alienation, one characteristic is again, what you see is a blurring of the boundaries between children and the parents, so the favored parent and the children are enmeshed. There is not enough separation. There is not a sense of person or self worth for either of the characters in the picture.
The question of whether having G.E. live with her father would cause her more harm was significant, but that G.E. was already very compromised in her current situation while she was living with the mother, according to Dr. Pizarro's testimony. In his updated evaluation he discussed that the course of action to be taken would depend on whether the presence of an eating disorder in G.E. indicates that she has become an extreme case in which the child is so fragile that it is better to avoid continuous exposure to the marital conflict by allowing the child to remain with her favored parent and sever contact with the alienated parent. In Dr. Pizarro's opinion, the fact that the child could not report any bad experience while visiting the father indicates that it could still be worthwhile to implement measures usually recommended for cases of severe alienation rather than concluding that this is an extreme case, where the recommended course of action would be to terminate the relationship between the father and daughter. Dr. Pizarro, in his testimony, proposed that G.E. should either be placed with her father or in a residential program where they can address the eating disorder and provide her with neutral space. Dr. Pizarro testified that “[s]omething needs to be done, whether it is to place her with the father or first, actually place her in some sort of residential program where they can address the issue of the eating disorder, where she is given a neutral place where her eating disorder is treated, where she is spared from toxic influences.” He proposed first providing for uninterrupted time with the child and the alienated parent, the father. Dr. Pizarro's proposal for a residential program would be to first, allow contact only with the alienated parent, not allowing contact with the alienating parent, and focus on the connection with the rejected parent; second, after making progress in terms of reconnecting with the alienated parent, to then allow the alienating parent to start visiting or start having contact. Dr. Pizarro testified that to reconnect with the alienated parent, often the alienating parent has to have some buy in because the alienated child is usually enmeshed with that alienating parent and is taking cues from that parent. For example, Dr. Pizarro testified that the father said to him that when they were trying to negotiate, the girls would visit him, and that when the negotiations failed or things were not going the way the way the mother wanted, then the children would stop coming to visits.
Dr. Pizarro testified that because alienation is an extreme situation, the responses to judicial intervention could also be extreme. He testified that he has seen situations where alienated children rapidly reconnect with the alienated parent, after being directed to live with the alienated parent. In other situations, Dr. Pizarro testified, he has seen children get much worse, very disruptive, anxious and do not have the mental strength to maintain the connection and have difficulty transitioning to living with the alienated parent.
Dr. Pizarro testified that the older children of the parties' marriage who reached the age of majority tried to communicate with the mother, but she was not returning their calls. He testified that estrangement from the family and alienation from the father was affecting the emotional well being of the children. It is clear to this Court that the mother has, at times, severed contact with some of her adult children and some of the male children during their minority, and that she has separated the minor daughters from their older male siblings. The mothers posits that one of the reasons she could not have contact with the sons was that she feared the location of the domestic violence shelter would become known to the father. Yet, the fact that an individual or family lives in a shelter should not be a bar to visitation in a neutral location that does not compromise the necessary confidentiality of the shelter location.
Dr. Pizarro testified that while the children were in the domestic violence shelter in May 2009, they did not see the father or the older siblings for several months. They began to see him again in late 2009 for a few months and then did not see him again until the spring of 2010 when they again stopped seeing him.
In the fall of 2011, the children began to visit the father regularly on Saturdays and Wednesdays. Shani visited the father's house for the religious holiday Succot in 2011. After that visit she talked to her lawyer, Ms. Bonaldes, and was advised that because she had reached the age of majority she was no longer required to visit the father. At the time of Dr. Pizarro's updated report, Shani was over eighteen (18) years of age and decided to sever her contacts with the father and her adult siblings.
It appears that on one (1) occasion, after the minor daughters began regular visits with the father, when the children were scheduled to have a visit with the father, G.E. wanted to change the day of the visit so that she could see her friend who traveled in from Los Angeles. The father refused to allow G.E. to cancel their scheduled visitation to see her friend, and G.E. was upset and walked three (3) miles unescorted from the father's residence to her mother's residence. The mother testified that when G.E. arrived at the mother's residence, she was breathless, looked pale and went to bed. The mother did not contact the father when G.E. came home. The mother also testified that the father did not contact her to ascertain G.E.'s whereabouts. The father testified that he heard M.E. speaking to the mother after G.E. left the father's residence. Dr. Pizarro testified that
Sometimes rejected parents, they do small little things that don't necessarily rise to the level of abuse or don't rise to a level that will justify the rejection, but there are little things that the children perceive as problematic and they use them to confirm they are justifying rejecting the parents.
If a parent says, no, it's my time and you should come to my home, instead of doing that, the reality is that he has a right to do that and it shouldn't be such a terrible thing, but the child may perceive is as a lack of empathy, lack of concern. See, in a way it contributes to the alienation.
This Court finds it shocking that the parents are more interested in blaming each other for a 12 year old child's apparent running off on her own, more that the underlying issue and the danger that has surfaced as a result of their failure to communicate.
Dr. Pizarro testified that the father gave him a compact disc with recordings of the mother saying that the father was mistreating her, which the father claimed were taped by the parties' son, Motty who was seventeen (17) years of age at the time the recordings were made. Dr. Pizarro testified that the father explained to him that the son recorded the mother after the father took control of the household finances when the mother became very angry with the father. He testified that the father told him that Motty became so upset with the mother that he decided to record the mother speaking about the father and gave the recording to the father. The court has not heard the content nor seen a transcript of the recordings, nor will the court rely on this hearsay.
Hoarding of Food
The father testified credibly that the mother would freeze food for months and reheat the food when she gave it to the children. He testified that the children did not want to eat the food since it was spoiled and that the mother would only serve this spoiled food to the children, not to the father.
The father also testified that the mother would tightly regulate food for the children, and enters as an exhibit an initial filing with the Family Court, dated May 21, 2009, in which he complained of the mother's tight regulation of food.
The father testified credibly that the mother did not allow the children to enter the kitchen to take food on their own accord. They simply were not allowed to open the refrigerator or a kitchen cabinet on their own.
The father avers that his allegations of hoarding food and money are consistent, while the mother's allegations of domestic abuse are inconsistent. He points to the mother's allegations that the father threatened her with an electric drill in a Family Offense Petition dated May 15, 2009, and that these allegations were absent from her later allegations in this court.
The father testified that the mother would not allow him to give food to the children because, she would tell him, she knows what is good for the children and that he does not.
Dr. Pizarro interviewed the adult children of the parties' marriage and in his evaluation reports that the adult children corroborated the father's allegations of hoarding and tightly regulating the children's access to food.
Moishy, an adult child of the parties' marriage is 22 years of age, and was interviewed by Dr. Pizarro. Dr. Pizarro testified, without objection, that Moishy stated “[i]t was very common for the mother to deprive them of food, to give them second hand or used clothes to wear. She never washed their clothes ... But their was a sense of being deprives of food and care”. Moishy testified that when he was young he was not allowed to take food out of the cabinet in front of the mother. Moishy also testified that the father would secretly send him food and clothes when he was away at school because it would bother her if she knew.
The mother testified that she did not tell the children that they could not have access to the refrigerator or that they could not go into the kitchen cabinets. She also testified that she cooked fresh food for supper every night while she lived with the father.
The testimony of the son Moishy, reveals that there clearly were issues in the home, regarding access to food and concerns about asking for food. The court finds his testimony credible and does not believe that he testified only after being told to do so by his Rabbi. There were additional adult children who were in the court house prepared to testify. The court asked if their testimony would be “cumulative” and requested an offer of proof. Instead of going forward with the offer of proof the father withdrew the request to call the remaining adult children.
This Court notes that the fathers avers that the mother grew up in an orphanage. However, the mother contends that she grew up in a dormitory in Israel.
Parental Communication
The father testified that mother is unable to communicating with him regarding the children. The attorney for the children also avers that the mother has failed to effectively communicate with the father. On February 17, 2012, this court issued an order and decision directing the parties' to communicate with each other regarding the health of the parties' minor children. The mother testified that she has been communicating with the father via email. The father testified that mother used emails to manipulate him. He testified, for example, that she set up an appointment on Long Island at the hospital at 3:00 p.m. and emailed him the information, knowing that it was a time and place that he could not attend.
The father testified that he learned of G.E.'s hospitalization only after he was called by the mother's friend. The father testified that this friend did not inform the him which hospital G.E. was in, and that when he learned she was hospitalized he spent the night telephoning hospitals to locate G.E.. The mother did not tell the father that G.E. was taking the medication Lexapro,
or that G.E. was under the care of Dr. Berger, a psychiatrist. Also, the father testified that the mother failed to advise Dr. Berger about the divorce litigation nor did she provide the doctor with the father's contact information. Dr. Pizarro testified that the mother has often not involved the father in the children's lives or worked together with the father. The Court gives credence to the father's position that the mother has purposefully and systematically excluded the father.
G.E. was diagnosed with anxiety and prescribed Lexapro (in liquid form), an antidepressant, by her psychiatrist. Dr. Pizarro's updated report indicates that G.E. took the Lexapro but that she became very quiet on it and that she subsequently stopped taking the medication. He reports that Dr. Berger then prescribed Riperidone (in pill form), an anti-psychotic, but that G.E. refused to take it, would spit it out, and claim that she could not swallow it. The father testified that G.E. cannot take pills.
On April 2, 2012, the attorney for the child cross examined the mother as follows,
19 Q With regards to G.E.'s course of treatment, who
20 made the decision as to what course of treatment should be
21 followed as between you and [Usher E.]. ?
22 A Now or before?
23Q Now, with regard to G.E.'s eating disorders?
24 A The therapy. Their therapy was recommended by Dr.
25 Lasky and they coordinated.
1 Q [Mary E.]. ?
2 A What was the question?
3 Q I am going to try and break it down for you.
4 Who, between you and [Usher E.], who decided what
5 doctor G.E. should receive treatments from?
6 A As regards Dr. Fisher, it was with her therapist
7 when it came about that she's having issue with eating
8 disorders
9 THE COURT: Can you answer the question,
10 please. Was it you or [Usher E.] ?
11 A I did not—it was her therapist
12 Q Who chose the therapist between you and [Usher E.] ?
13 A Right now, the hospital.
14 Q Who gave consent for G.E. to receive treatment,
15 you or [Usher E.] ?
16 A I did
17 Q Who decided that G.E. should have the outpatient
18 treatment as opposed to follow the recommendation for
19 inpatient treatment, you or [Usher E.] ?
20 A Dr. Laskin because initially she recommended
21 inpatient
22 MS EPSTEIN–HERSHKO: Objection
23 THE COURT: Sustained.
Discussion
Order of Protection
Domestic Relations Law section 252 authorizes the Supreme Court to issue
an order of protection in either a pre-judgment or post-judgment matrimonial proceeding ( see alsoDomestic Relations Law 240[3] and N.Y.S. Constitution Articles 6 & 7). An order of protection granted by the Supreme Court in a matrimonial action may require a party to stay away from the home, school, business or place of employment of the protected party, “and to stay away from any other specific location designated by the court.” (Domestic Relations Law § 252[1][a].)
The standards for determining when an application for an order of protection should be granted in a Supreme Court matrimonial proceeding are found in section 812 of the Family Court Act. The party moving for the order of protection must prove that the other party has committed one or more of the crimes listed in section 812 and are said to constitute a “family offense” within the meaning of the Family Court Act ( see Richardson v. Richardson, 80 AD3d 32910 N.Y.S.2d 14 [2 Dept.,2010]; see also Fakiris v. Fakiris, 177 A.D.2d 540, 575 N.Y.S.2d 924 [2d Dept 1991].) There are, under the current statute, 19 “family offense” crimes enumerated in section 812 and they range from disorderly conduct, to sexual abuse, to stalking, to assault, including the varying degrees. The elements of each of the enumerated crimes are set forth in the corresponding sections of the Penal Law. Unlike in a criminal prosecution, where each element of the crime must be proved beyond a reasonable doubt, the party alleging the commission of a family offense for purposes of obtaining an order of protection in the Supreme Court need only prove the allegation by a fair preponderance of the evidence ( see Matter of Drury v. Drury, 90 AD3d 754, 934 N.Y.S.2d 337 [2 Dept.,2011]; see also Rubackin v. Rubackin, 62 AD3d 11, 875 N.Y.S.2d 90 [2 Dept.,2009]; Rankoth v. Sloan, 44 AD3d 863, 844, N.Y.S.2d 357 [2 Dept.2007]; Jastremski v. Jastremski, 30 AD3d 424, 818 N.Y.S.2d 108 [2 Dept.,2006].)
In the Supreme Court, the court may issue an order of protection pursuant to Domestic Relations Law section 240[3]. That order of protection, once granted, can provide certain conditions which require the enjoined party to obey (see Domestic Relations Law § 252[1] a-g). Additionally, Domestic Relations Law section 252[3][b] provides:
An order of protection entered pursuant to this subdivision may be made in the final judgment in any matrimonial action, or by one or more orders from time before or subsequent to final judgment and during the minority of any child whose custody or visitation is the subject of a provision of a final judgment or any order. An order of protection may be entered notwithstanding that the court for any reason whatsoever, other than lack of jurisdiction, refused to grant the relief requested in the action or proceeding.
Inasmuch as the Family Court petitions were consolidated into the Supreme Court matrimonial action herein on July 6, 2010, the Supreme Court is a court of general jurisdiction, this court has the authority to determine the issue of the order of protection in the context of the consolidated divorce action ( see People v. Davis, 27 A.D.2d 299, 278 N.Y.S.2d 750 [1 Dept., 1967]; see alsoDomestic Relations Law §§ 240[3] and 252 and NYS Constitution Articles 6 and 7).
Unlike in a criminal prosecution, where each element of the crime must be proved beyond a reasonable doubt, the party alleging the commission of a family offense for purposes of obtaining an order of protection in the Supreme Court need only prove the allegation by a fair preponderance of the evidence ( see Matter of Drury v. Drury, 90 AD3d 754, 934 N.Y.S.2d 337 [2 Dept.,2011]; see also Rubackin v. Rubackin, 62 AD3d 11, 875 N.Y.S.2d 90 [2 Dept.,2009]; Rankoth v. Sloan, 44 AD3d 863, 844, N.Y.S.2d 357 [2 Dept.2007]; Jastremski v. Jastremski, 30 AD3d 424, 818 N.Y.S.2d 108 [2 Dept.,2006].)
It is clear to this Court from the testimony at trial that both the father and the parties' adult son who testified verily believe in a family unit where the father goes to work while the mother stays at home fulfilling what the father believes is the traditional role of cook, cleaner and care taker of the children. The court believes that the father does not understand or support the mother's desire to study and obtain a law degree, or to be independent; it is evident that he holds this against her.
This Court believes that the children did not witness acts of physical violence but the children and others were told by the mother about acts of violence. If true, the mother's allegations of domestic violence against the father could warrant an order of protection. However, the court notes that there are inconsistencies in the mother's allegations of domestic violence against the father and based upon the standard of proof, to wit a fair preponderance of the evidence, the court cannot reach the conclusion that the mother is the victim of physical domestic violence.
This Court does believe that there is an exercise of power and control through money that both parties' have used against each other during the course of the marriage and the divorce action. In the mother's affidavit dated July 8, 2010, she affirmed that she was forced to live in a public shelter because of the father's refusal to give money for housing. A little more than one (1) month later the mother, in a affidavit dated August 11, 2010, affirmed that the “only reason” she moved to the public shelter was because of the father's abuse. This Court notes that the mother appears to have had access to a significant amount of money when she moved into the public shelter. This is not to say that the court believes that only individuals of limited means should have access to domestic violence shelters but it belies the mother's July 8, 2010, affidavit where she asserts that she went to the shelter since she did not have money for housing. Domestic violence shelters should and must be available as a safe haven to all individuals, notwithstanding economic circumstances.
In the mother's Family Offense Petition dated May 15, 2009, which the father moved into evidence, the mother complains the father (1) glued the door lock to a room for the third time in three (3) months to prevent her from studying; (2) pushed the mother down the stairs in 2008, and that this was witnessed by the parties' daughter Shani; and (3) threatened the mother with an electric drill in February of 2009. Neither the mother nor any other witness testified to the incident contained in the petition, where the father allegedly threatened the mother with an electric drill. The mother testified that the father pushed her down a flight of stairs on two (2) separate occasions. The father contends that the mother's fall down the stairs was accidental. The parties' son Moishy testified that the mother suffered a spinal injury from an accident and that, on occasion, he picked the mother up from the floor after falling.
Katz testified that the mother's conduct was consistent with that of an abused woman. Frydman testified that on one (1) occasion the father threw a glass frame during the course of a verbal altercation. Katz and Frydman did not witness any incidents of domestic violence to which they testified to; they relayed on the alleged acts of domestic violence that the mother conveyed to them and they never spoke with the father. Their testimony, therefore, is given less weight ( see Palumbo v. Palumbo, 292 A.D.2d 358, 738 N.Y.S.2d 90 [2 Dept., 2002] [“The Supreme Court properly gave little weight to the defendant's expert where expert's conclusions were based on inadequate information and a biased one-sided description of events provided by the defendant”] ).
The court finds that the mother and father have at different times exercised improper extreme financial control over each other which created a shift in the power imbalance from the mother to the father. Further, the court finds that the mother never credibly explained the issues relating to claims of lack of funds while possessing substantial sums of money or the father's claims that tuition monies that he gave the mother to forward, to being sent to the school. The failure to provide funds or exercise of control of funds by the father was a major source of stress and conflict that the daughters G.E. and M.E. are intimately aware. The court finds the mother's secrecy and her actions of hoarding food and assets, as well as the testimony of their son, Moishy, to be pivotal. The court finds based upon the testimony that the mother exhibits behavior consistent with secreting of assets and that she has taken a less than forthright approach regarding finances and food with the father as well as with this court. The court finds that credible the mother's behavior of secreting assets and her behavior of hoarding food. The court believes that such behavior caused problems in having food and money available for the benefit of the children in the household. As a result of the in camera interview and the trial testimony, it is clear to this Court that there is a strong correlation between the father's access to the children and money.
The mother's application for a final order of protection is denied. The court rejects any notion proffered by the father that if domestic violence is not reported or corroborated or if medical attention was not sought, that it may not have happened. The court bases its decision relating to an order of protection directly on a legal failure of standard of proof and the fact that the mother's testimony was not credible ( see Rankoth v. Sloan, 44 AD3d 863, 844, N.Y.S.2d 357 [2 Dept., 2007] ). The father's testimony was credible notwithstanding the courts disagreement with his view of the role of women in society. Clearly, domestic violence remains unreported in society based on a host of factors and this court would never consider the failure to report or corroborate domestic violence as a basis to deny an order of protection.
Custody
It is well established that the trial court is given great deference to assess the character and credibility of the parties' ( see Bassuk v. Bassuk, 93 AD3d 664, 939 N.Y.S.2d 863 [2 Dept., 2012 [“Determinations as to custody and visitation are ordinarily a matter for the hearing court, and its determination will not be set aside unless lacking a sound and substantial basis in the record' (Matter of Awan v. Awan, 63 AD3d at 734, 880 N.Y.S.2d 683).”]; see also Massirman v. Massirman, 78 AD3d 1021, 911 N.Y.S.2d 462 [2 Dept., 2010]; citing Peritore v. Peritore, 66 AD3d 750, 888 N .Y.S.2d 72 [2 Dept., 2009]; citing Varga v. Varga, 288 A.D.2d 210, 211, 732 N.Y.S.2d 576 [2 Dept., 2001], citing Diaco v. Diaco, 278 A.D.2d 358, 717 N.Y.S.2d 635 [2 Dept., 2000]; see also Ferraro v. Ferraro, 257 A.D.2d 596, 598, 684 N.Y.S.2d 274 [2 Dept., 1999] ). In determining a child's custody, the court is to act as parens patriae and must base its determination on the “child's best interests” ( see Tropea v. Tropea, 87 N.Y.2d 727, 741 665 N.E.2d 145, 642 N.Y.S.2d 575 [1996],see also Opray v. Fitzharris, 95 AD3d 1020, 944 N.Y.S.2d 263 [2 Dept., 2012]; Awan v. Awan, 63 AD3d 733, 880 N.Y.S.2d 683[2 Dept.,2009]. In doing so, the court must make a decision based upon the totality of the circumstances, ( see Eschbach v. Eschbach, 56 N.Y.2d 167, 172 436 N.E.2d 1260, 451 N.Y.S.2d 658 [1982] ), which includes evaluating which parent will best provide for the child's “emotional and intellectual development, the quality of the home environment, and the parental guidance to be provided.” (Matter of Louise E.W. v. W. Stephen S., 64 N.Y.2d 946, 947, 477 N.E.2d 1091, 488 N.Y.S.2d 637 [1985];see Plaza v. Plaza, 305 A.D.2d 607, 759 N.Y.S.2d 368 [2 Dept., 2003]; see also Brown v. Brown, 97 AD3d 568, 947 N.Y.S.2d 179 [2 Dept., 2012] [“The court must consider various factors, ranging from the quality of each parent's home environment and ability to provide for the child financially, emotionally, and intellectually, to the determination of which parent is more likely to foster future contact with the noncustodial parent”] ).
In Mohen v. Mohen, the Appellate Division, Second Department held:
There is no “prima facie right to the custody of the child in either parent” (Domestic Relations Law § 70[a]; § 240[1][a]; § 240[1][a]; see Friederwitzwer v. Friederwitzwer, 55 N.Y.2d 89;Matter of Ricco v. Ricco, 21 AD3d 1107). “Factors to be considered include the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and the ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent” ( see Kaplan v. Kaplan, 21 AD3d 993, 994–995,quoting Miller v. Pipia, 297 A.D.2d 362, 364).
The Supreme Court properly identified the factors that were to be considered in rendering its custody determination. It also properly concluded that an award of the sole custody to one parent, rather than joint custody to both parents, was in the best interest of the child given the level of acrimony between the parties and their inability to function together in a manner necessary for a joint arrangement ( see Pambianchi v. Goldberg, 35 AD3d 668, 689;Granata v. Granata, 289 A.D.2d 527, 528).
(Mohen v. Mohen, 53 AD3d 471, 472–473, 862 N.Y.S.2d 75 [2 Dept., 2008] ).
Another significant factor in the determination of custody is which parent will assure that the child maintains a meaningful relationship with the other parent ( see DeViteri v. Saldana, 95 AD3d 1221, 944 N.Y.S.2d 635 [2 Dept., 2012]; see also Vasquez v. Ortiz, 77 AD3d 962, 909 N.Y.S.2d 155 [2 Dept., 2010]; Tori v. Tori, 67 AD3d 1021, 890 N.Y.S.2d 74 [2 Dept., 2009]; Matter of Bliss v. Ach, 56 N.Y.2d 995, 998, 453 NYS3d 633 [1982] ). The court recognizes that interference with the relationship between a child and a noncustodial parent by the custodial parent has been said to be “... so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as a custodial parent” (Diaz v. Diaz, 97 AD3d 747, 948 N.Y.S.2d 413 [2 Dept., 2012] citing Chebuske v. Burnhard–Vogt, 284 A.D.2d 456, 458, 726 N.Y.S.2d 697 [2 Dept., 1995] ). “Parental alienation of a child from the other parent is an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the [offending party] is unfit to act as custodial parent' (Entwistle v. Entwistle, 61 A.D.2d 380, 384–385, 402 N.Y.S.2d 213;see Bobinski v. Bobinski, 9 AD3d 441, 780 N.Y.S.2d 185;Stern v. Stern, 304 A.D.2d 649, 758 N.Y.S.2d 155;Young v. Young, 212 A.D.2d 114, 122, 628 N.Y.S.2d 957).” see Doroski v. Ashton, 99 AD3d 902, 952 N.Y.S.2d 259 [2 Dept., 2012] ). As such, the court must negatively view any behavior or actions by a parent that limits access between the children and the other parent or attitude that appears to demean the other parent to the children ( see Zafran v. Zafran, 28 AD3d 753, 814 N.Y.S.2d 669 [2 Dept., 2006] [“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” (Weiss v. Weiss, 52 N.Y.2d 170, 175, 436 N.Y.S.2d 862, 418 N.E.2d 377). Parental alienation of a child from the other parent is an act inconsistent with the best interest of the child ( see Bobinski v. Bobinski, 9 AD3d 441, 780 N.Y.S.2d 185;Stern v. Stern, 304 A.D.2d 649, 758 N.Y.S.2d 155) ...”] ). This court must determine what is in the best interest of the children and make a custody determination that will promote the children's greatest welfare and happiness.
It is also well established that the court must take into account any incidents of domestic violence when making a custody determination ( seeDomestic Relations Law § 240(1)(a); see also Matter of Wissink v. Wissink, 301 A.D.2d 36, 749 N.Y.S.2d 550 [2 Dept., 2002] ). In the court's view, even one (1) act of violence against a spouse violates human dignity and is damaging both to society, the individual against whom the acts of violence were perpetrated and the family unit.
The attorney for the child takes the position that she supports her clients request for custody to be with the mother but substitutes judgment for them and supports an order of visitation based upon the fact that they have been alienated.
In counsel's written summation, she stated “[t]hrough out [sic] the litigation, both in Family Court and in Supreme Court, my clients have consistently stated they do not want to visit with [Usher E.]. Based on the testimony and evidence offered during the trial, I am substituting judgment for my clients and support visits for them with their father.” Counsel proffered the relevant section of the New York State Bar Association, Committee on Children and the Law “Standards for Attorneys Representing Children in Custody, Visitation and Guardianship Proceedings June 2008”. The standards direct, in part, the limited circumstances wherein an attorney may substitute judgment; “(1) [t]he attorney has concluded that the Court's adoption of the child's expressed preference would expose the child to substantial risk of imminent, serious harm and that this danger could not be avoided by removing one or more individuals from the home, or by the provisions of court-ordered service and/or supervision; or (20 the attorney is convinced that the child is not competent due to an inability to understand that factual issues involved in the case, or clearly and unequivocally lacks the capacity to perceive and comprehend the consequences of his or her decisions....”.
It is well established that the court is not required to follow, or to agree with, the recommendations of a court appointed expert ( see Zelnik v. Zelnik, 196 A.D.2d 700, 601 N.Y.S.2d 701 [1 Dept., 1995]; see also Berrouet v. Greaves, 356 AD3d 460, 825 N.Y.S.2d 719 [2 Dept., 2006] ). The expert opinion, while relevant, is not determinative. This court has considered the Dr. Pizarro's forensic report dated April 8, 2011, and his update to that forensic report dated March 8, 2012, as well as his extensive testimony; but this court makes the determination of custody based on review of the record as a whole including, but not limited to, Dr. Pizarro's testimony in court. The court will not rely upon hearsay in Dr. Pizarro's report to be used as a method of testifying ( see Lubit v.. Lubit, 65 AD3d 954, 885 N.Y.S.2d 492 [1 Dept., 2009] [“... the testimony of the expert was admissible since the expert opinion was primarily based upon direct knowledge derived from the expert's psychiatric interviews of the parties' and their children, alone and in combination [citation omitted]. To the extent that the expert's report and testimony may have incorporated inadmissible hearsay, we find that the admissible evidence in the record, including the portion of the expert's report that did not include hearsay, was sufficient to support the trial court's conclusion, and we would independently reach the same result based on the unobjectionable portions of the record.”] ).
Based upon the testimony of the parties', the adult child Moishy and the in camera interview the court finds Dr. Pizarro's conclusion, that the mother's alienation of affections of the children toward the father, to be valid. Furthermore, the court finds that the mother has not addressed problems regarding G.E.'s oppositional behavior, and that she has in some ways enabled G.E.'s oppositional behavior. This Court also recognizes the import of Dr. Pizarro's testimony that if G.E. is in an extreme situation of alienation, providing for sole custody to the father, the alienated parent, may cause even more harm to the children.
After meeting with the children in camera and having given due consideration to the evidence presented herein, the court believes that, at this juncture, removal from the mother would be inappropriate and could cause further harm to the children ( see Lew v. Sobel, 46 AD3d 893, 849 N.Y.S.2d 586 [2 Dept., 2007] [“While one parent's alienation of a child from the other parent is an act inconsistent with the best interests of the child ( see Zafran v. Zafran, 28 AD3d 753, 755, 814 N.Y.S.2d 669), here, the children's bond to the alienating parent is so strong that a change of custody would be harmful to the children without extraordinary efforts by both parents and extensive therapeutic, psychological intervention.”] ). Furthermore, the court has no authority to remove the child from both parents and place her in a residential program, which is one of Dr. Pizarro's suggestions ( see Bennett v. Jeffreys, 40 N.Y.2d 543, 356 N.E.2d 277 [1976] [“Absent extraordinary circumstances, narrowly categorized, it is not within the power of a court, or, by delegation of the Legislature or court, a social agency, to make significant decisions concerning the custody of children, merely because it could make a better decision or disposition.”] ).
It is clear to the court that therapy alone will not solve the alienated state of their two (2) children. While the mother has begun to repair her relationship with the adults sons, the court hopes that the continued growth of that relationship will not diminish because this custody decision has been rendered. The court is concerned the mother only reinstituted contact with some of her children as part of an overall litigation strategy. The attorney for the child posits that the court should order, as a condition of custody and visitation, certain requirements. This Court is of the opinion that each of the parties' could serve to benefit from therapy. The parents would also benefits from extensive parental training, specifically how to work with a child with oppositional behavior. The mother needs to examine the correlation between her own upbringing, her need to control food and money, the alienation of these children and G.E.'s illness. The father must develop the skills necessary to cope with seriously alienated and oppositional children, one of who suffers a potentially life threatening illness. However, although “... 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 ( see Matter of Lane v. Lane, 68 AD3d at 997–998, 892 N.Y.S.2d 130;Matter of Thompson v. Yu–Thompson, 41 AD3d 487, 488, 837 N.Y.S.2d 313;Jordan v. Jordan, 8 AD3d at 445, 779 N.Y.S.2d 121;Matter of Williams v. O'Toole, 4 AD3d 371, 372, 771 N.Y.S.2d 546).” (Smith ex rel. Hunter I. v. Dawn F.B., 930 N.Y.S.2d 75 [2 Dept,.2011] ).
This Court has considered the position articulated by the forensic evaluator that since nothing else has been effectual in dealing with the oppositional behavior and the danger of the eating disorder that G.E. is experiencing that total isolation from the mother for a period of time would be justified. The Court has a number of grave concerns with such an approach, primarily that the forensic expert concedes the risks of such an approach could be great. “[T]he judicial preference of keeping siblings together, where possible, in order to encourage close familial relationships, is firmly established ( see Eschbach v. Eschbach, 56 N.Y.2d 167, 173 [1982] ).” (Mohen v. Mohen, 53 AD3d 471, 862 N.Y.S.2d 75 [2 Dept.,2008]; see Murray v. Hall, 294 A.D.2d 504, 742 N.Y.S.2d 368 [2 Dept.,2002]; see also Mitzner v. Mitzner, 209 A.D.2d 487, 619 N . Y.S.2d 51 [2 Dept.,1994]; Giatras v. Giatras, 202 A.D.2d 389, 608 N.Y.S.2d 520 [2 Dept.,1994] ).
Not only would the separation of M.E. and G.E. not be in either of these children best interest it is clear to this Court that the father is ill equipped to take care of them or understand them. To place them in the care of others or send them to Israel as he suggests, which he concedes he must do would be to vest a non parent who is not a party to this action with custodial authority such as an older sibling or a yeshiva. Nor does this Court have the authority to place a child or children in a setting without the permission of a parents in a proceeding other than an Article 10 proceeding. Yet something must be done. While most of the focus has been on G.E. given the seriousness of her condition, the plight of M.E. who is more willing to visit with the father cannot go unnoticed. It is a fragile relationship that must be cultivated. The Court is also concerned that the mother will permit Shani to interfere in the process.
The alienation of the children is secondary but interconnected to the severe oppositional conduct of G.E. and the eating disorder that she is presently experiencing. Dr. Pizzaro's testimony regarding the mother's refusal to carefully consider and heed the treatment plan given by the doctors is grave concern. The mothers adamant refusal to place G.E. in a residential or day treatment program and rejecting the recommendations of those experts in the field coupled with her rejection of therapy lead this Court to one alterative and that is ordering the father full and sole custody for the purposes of medical treatment which includes the placement of the child in a medically acceptable residential treatment or day treatment program. The possible placement of G.E. in a residential pr day treatment program apart from her sister must be explained to M.E. and dealt with appropriately, if it occurs. The mother has systematically and purposefully been secretive, non communicative and outright deceptive in not involving him in the process. She has purposefully not made professionals aware of his existence and desire to be kept informed and concern, discontinued private insurance coverage under the guise of finances and even hid from the father the child's hospitalization. It is clear that she has become an ally of the child in building a wall around the child all under the ever present financial dispute and secret financial transactions for which she engages. Her quest to prove that she is a victim of domestic violence (she clearly was a victim of control as well as a perpetrator of control) is built on her being the sole reporter of the incidents of domestic violence. When taken in the context of all of her other actions and her inconsistent written statements and the evasive nature of her testimony elicited at trial, the Court must find that she has falsely reported that she is such a victim of physical violence and that she utilized the claim to gain entrance into the shelter system and obtain benefits that would not cost her money. There clearly was a power imbalance which should be a basis for an individual to seek shelter in a domestic violence shelter. The power imbalance developed when the economic control over the finances shifted from the mother to the father. The total control over finances exercised by the father totally impacted the mother. This Court understands why the father took control of the finances however, that he did it to such an extreme is problematic. This Court does not doubt that this was a home fraught with mutual conflict, locked rooms and computers which both denied access to the others, food not permitted to be eaten and from all reports a lot of yelling and screaming. What resulted was a chaotic household with children who were severely impacted and parents who are unable to cope with the emotional conflict or protect the children from the reverberations of the conflict. He is of the belief that if the wife took on what the father perceived to be the traditional role of house wife and stay at home mother, ceasing attendance at law school, then all would be right for their daughters. Such a view is simplistic and lacks insight.
This court is aware that at the heart of this family's dysfunction is the issue of money and control thereof. This court finds credible the mother's claim that the father exercised control over financial matters after a certain period of time and that the court believes that exercise of control had a devastating impact on her. The court also believes that she has enlisted the children, G.E. and M.E., in both the negative impact that she has experienced as a result and her quest to obtain control over finances. She also excluded her sons who were under the age of 18 at the time believing that they were siding with the father because they wanted reconciliation of the family unit. Ironically, the court also finds credible the father's claim that he had to exercise control over finances because of the mother's secreting of assets, her manipulation of finances, and the fear she imposed on the family unit regarding access to food and clothing. The Court rejects the mother's position that the father has economically bribed the children that are with him.
To say that the mother has been disingenuous with to the court and the father in her financial revelations would be an understatement and this has substantially impacted this family unit. Her failure to reveal her true assets and sources of income and her decision, based upon this falsity, was to live with the children for a year in a shelter; and the un-refuted testimony related to the tuition payments and vouchers when coupled with claims that substantial sums of money existed and the repercussions of her behavior was that the children were told they cannot attend their school; and the testimony of the party's son, Moishy's compelling testimony relating to access to food and the mother's actions of refusing to talk with him because of his testimony are telling.
What is at the core of the parties' dispute is that each of them operate in the extreme—which results in extreme situations and both parties' holding diametrically opposed positions. It is extreme for the mother to secret assets, and to be so disingenuous regarding her availability of monies. It is extreme to have a child hospitalized and not inform the father. It is extreme to not tell of a doctor's appointment until a late afternoon e-mail which would not allow for enough notice for the father to attend. It is extreme to cut off communications with one's male children and sever all communications. It is extreme to disregard recommendations for residential treatment programs for one's daughter who is diagnosed with an anorexia-like condition. It is extreme for the mother to not notify the children that the father was going to visit them at their summer camp in accordance with this Court's order, when then children would only see the father once they obtained their mother's approval. The mother was, at times, so evasive in her answers or lack thereof that her credibility is questioned.
Similarly it is extreme for the father to believe after all that has transpired that mother should just come home and be a homemaker and to drop out of law school. It is extreme to not fully pay court ordered child support, or not communicate to the other parent when a child runs away from visitation. It is extreme to reintroduce a child to the former marital residence after duping them into saying they would be going to a neutral location and it is a extreme not to reschedule a visitation when your child has a rare out of town guest. It is extreme to think that you can become a custodial parent but leave the day to day parenting to others.
The mother's testimony about physical violence is not credible in light of the issues presented and her inconsistent statements and claims that she is a victim of extreme control by the father which is at the core of her to decision to leave the marriage and residence. The court does not fault the mother for leaving the marital residence and seeking shelter. The control exercised by the father especially upon an individual who herself needs to control was overpowering. The court will not second guess the decision of the mother to seek refuge in a domestic violence shelter. The court believes that once she lost control of the assets and some of her own financial issues related to her insurance business became the subject of a federal court action, she was faced with total loss of control and fear.
As a result of the forensic evaluation and the testimony of the treating social worker and the in camera interview, it is clear to the court that M.E. is willing to visit with her father and is not adverse to a relationship with him. This is not to say that she is not influenced by G.E.'s defiance. It is also clear that G.E. is extremely opposed to any contact with the father and is resistant to any therapeutic intervention. This Court firmly believes that the mother, notwithstanding her claims to the contrary, is responsible for the alienation of these children from the father and does not properly address G.E.'s oppositional behavior and severe eating disorder. This is not to say that the father has complete understanding of this complex combination of oppositional behavior and eating disorder. Neither parent in this matter possesses a clarity of the issue that G.E.'s relationship with her sisters and mother also add to the alienation that she experiences. Similarly, neither parent is fully able to cope or effectively contend with these children. These factor, complicated with an extended nuclear family, which has been involved in the dispute creates a volatile environment.
The mother posits that their adult children are economically dependent on the father and therefore bias in their presentations. The court found Moishy's testimony and writing to be quiet credible. He struggled with the requirement of listening to his Rabbi who told him he had to come to court to testify. It was evident in his demeanor that he was very uncomfortable on the witness stand, and he struggled to understand each question posed to him. Clearly bewildered, he neither fully understood his younger sisters position, adopted the ill-conceived theory posited by his father that if his mother came home all would be better, and was devastated by the mother's exclusion of him and some of his siblings from her life by her own choice. The mother's action of isolating the minor daughters from the father and then to allege that the sons established an alliance with the father only strengthened and exacerbated the conflict.
In consideration of the testimony and the facts and circumstance herein, the mother shall have custody of the parties' minor children with the exception that the father shall have full decision making custody as it relates to any medical or mental health related issue for the minor children. This includes but is not limited to placing G.E. in a residential or day treatment program. The mother shall not interfere with the father's custodial authority as it relates to medical issues. She shall fully cooperate in assuring the child has proper medical insurance coverage and reimbursements. “The law has become well settled that, in an appropriate case, a court may award physical custody to one parent and divide spheres or zones of decision making' between the parents ( see Ring v. Ring, 15 AD3d 406, 790 N.Y.S.2d 51 [2 Dept.,2005]; see also Winslow v. Winslow, 205 A.D.2d 620, 613 N.Y.S.2d 216 [2 Dept.,1994] ).
Access
The father shall have access to the minor children every other weekend from pick up on Friday two (2) hours before sunset when the children are in school and drop off Sunday night at 9:00 p.m.
In the event there is a three (3) day weekend with the Monday school schedule cancelled, the father shall drop off the children at school on Tuesday morning. In the event there is no school, such as, but not limited to when there is summer recess, the father shall pick up the children from the mother or activity on Friday three (3) hours before sunset and return them to the mother or their scheduled activity on Monday at 8:00 a.m., or commencement time of any regularly scheduled activity, whichever is earlier. The mother shall not schedule extracurricular activities during the father's parenting time with the children without the father's prior written consent or court order.
The basis for this drop off schedule is that the father leaves for work early in the morning.
During the weeks following a weekend when the father does not have regularly scheduled parenting time with the children he shall have overnight parenting time on Tuesday evenings with pick up from school, after school program, or summer program with drop off at school or activity on Wednesday morning at 8:00 a.m. or commencement time of any regularly scheduled activity, whichever is earlier.
Each parent shall have two (2) weeks of uninterrupted parenting time with the children during the summer recess. The parties' shall alternate all holidays if the children do not have school. The parties' shall also alternate religious holidays. The religious holidays theses parties' observe shall be specifically delineated in the proposed interlocutory judgment The children shall always be with the mother on Mother's Day and with the father on Father's Day and shall share the time with the parents on the children's birthday.
The parent who does not have regularly scheduled parenting time with the children on their birthday shall have parenting time for three (3) hours with the children if the date falls on a school day and six (6) hours with the children if the date falls on a weekend or a day when there is no school.
In the event either parent travels with the children out of the tri-state area for more than two (2) consecutive overnights, the parent traveling with the children shall provide a copy of the travel itinerary, including any travel tickets and working telephone number(s) where the other parent shall be able to have reasonable contact the children each day during the travel period at reasonable times.
The father shall have access to all education records, the right to attend all parent teacher conferences, receive all report cards, standardized test results, admission test notifications. The mother shall have the rights to have access to all medical and health related records and attend all doctor, hospital, or treatment appointments. If either of the children are admitted to a hospital or receive emergency medical treatment, the parent with the child at that time shall notify the other immediately and shall be allowed to attend and visit the child and participate in planning of the child's medical treatment. If the parties' cannot agree on the child's medical treatment, the ultimate determination shall be with the father. The parties' shall be able to telephone the children when they are with the other parent.
Conclusion
There is no basis in the record to support a final order of protection. The mother is awarded custody of the infant children of the marriage, except as provided. The father is awarded full custody for purposes of determining medical and health needs and treatment of the two (2) remaining infant issues of the marriage, G.E. and M.E. Neither parent shall prejudice the children against the other parent or impair the children's regard for the other parent. The mother shall encourage the children to attend visitation with the father in accordance with this decision.
Settle an expedited interlocutory judgment of custody, on notice together with a copy of this decision with notice of entry, forthwith. A final pretrial conference regarding the financial issues shall be held on March 5, 2013, and trial dates shall be selected.