Opinion
XXXXX
02-28-2018
In the Matter of a Proceeding Under Article 6 of the Family Court Act HASSINA S., Ahmad S., Petitioner(s), v. NADIA S., Ahmad S., Hassina S., Respondent(s).
Charu Narang, Esq. for Hassina S. Odette J. Belton, Esq., Assistant Public Defender for Ahmad S. Frederick P. Lester, Esq., Attorney for the Children Nadia S. (default)
Charu Narang, Esq. for Hassina S.
Odette J. Belton, Esq., Assistant Public Defender for Ahmad S.
Frederick P. Lester, Esq., Attorney for the Children
Nadia S. (default)
Dandrea L. Ruhlmann, J.
This is a novel case. Crucial to this Court's determination was Father's decision to harbor his children with relatives in the Pakistani–Afghan region and his protracted refusal during the pendency of this action to disclose their location. Petitioner–Mother Hassina S. (Mother) sought shelter at the United States Consulate in Islamabad, Pakistan after Respondent–Father Ahmad S. (Father) assaulted her. She connected with SAATHI of Rochester, Inc. at the Consulate. SAATHI is a nonprofit organization which assists victims of domestic violence who are of South Asian descent. Counsel, retained with SAATHI assistance, represented Mother throughout these proceedings. Mother first appeared in August 2015 before a Monroe County Family Court Attorney Referee alleging international abduction of the parties' children and domestic violence perpetrated by Father against her and the couple's four children Heela S. (DOB: 00/00/2006), Hosai S. (DOB: 00/00/2007), Mariam S. (DOB: 0/00/2010) and Ahmad Zameer S. (DOB: 0/00/2015). Mother was granted an ex parte temporary order of protection and residency of the children. Mother was in New York, Father was in Missouri and the children were in Pakistan with Respondent Nadia S., paternal aunt (Aunt Nadia). Father was ordered to return the children to Mother.
The case was transferred to this Court which issued Orders and, or Writs of Habeas Corpus on September 15, 2015; January 8, 2016 and January 29, 2016, all requiring disclosure of the children's location and their immediate return. Father did not comply with this Court's Orders and, or Writ, feigning a lack of knowledge of the children's specific address until February 2016, when the Court advised Father a warrant for him might issue (see Family Ct Act § 153 ). Mother was compelled to travel to Afghanistan twice to retrieve them.
The children ultimately were returned to their Mother at the United States Consulate in Kabul, Afghanistan. Although Aunt Nadia was subject to the jurisdiction of the Court she never appeared. Father and Aunt Nadia impeded the judicial system both by providing the Court with a nonexistent address for the children and continually refusing to disclose the children's location as they were being moved between Pakistan and Afghanistan. Father continues to reside in Missouri where the family lived from 2009 until 2014.
After the return of the children and during the pendency of this action, on December 22, 2016 Pakistan deposited its instrument of accession to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, becoming effective March 1, 2017. Afghanistan is not part of the 1980 Hague Child Abduction Convention.
The Monroe County Family Court's temporary order of protection expired and the Court exercised emergency jurisdiction after both parents filed petitions for custody. Father filed a petition for custody in the Circuit Court of Clay County, Missouri at Liberty on October 13, 2015. The Court engaged in the required Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) communication with the Circuit Court of Clay County, Missouri at Liberty but despite its home state status, that Court declined to exercise jurisdiction (see Domestic Relation Law § 75–I). The Missouri Court also declined to make a child custody determination, dismissing the matter on March 17, 2016. On July 22, 2016, Father filed a petition to enforce this Court's temporary order of visitation, granting him periods of supervised visitation in Monroe County and Skype access to the children. It is in the children's best interests that Mother is awarded sole custody and primary physical residency of the children. Father is awarded supervised visitation and independent access to the children's providers. The Court does not find that Mother violated the temporary order of visitation.
This case spanned more than two years. The trial alone spanned over sixteen months with fifteen days of testimony. It was protracted in large part because of the difficulty in both the use of two interpreters (Urdu and Pastu), and live video stream for remote testimony of certain witnesses, as well as Father's availability to travel to court.
Mother was the sole witness for her case-in-chief. Father himself, and nine (9) other witnesses, testified on his behalf; including four neighbors, Michael B., Carrol T., Phyllis T. and Daniel H.; and four of his relatives, more specifically; two uncles Erwar Z. and Zolmay Z. and two cousins, Lailuma S. and Mirwais Z., as well as a long time family friend Atefa A.
The Court took judicial notice of the following exhibits: Petitioner's Exhibit 1—Answer and Cross Claim for Custody verified by Father on August 12, 2016; Petitioner's Exhibit 2, Income and Expense Statement of Father sworn to December 19, 2016, and filed with Monroe County Family Court on December 20, 2016; Petitioner's Exhibit 3—Income and Expense Statement of Father sworn to on October 13, 2015, and made a part of the Findings and Recommendations of Dismissal (page 8, line 4) of the Circuit Court of Clay County, Missouri at Liberty filed on March 17, 2016, whereby the Circuit Court of Clay County, Missouri at Liberty refused to entertain ongoing jurisdiction; Petitioner's Exhibit 6—a nonexistent address placed on the record by Father's then counsel Lawrence Krieger, Esq.: House Number 31741, Street Number 59, Bahria Town Islamabad, Pakistan; and Petitioner's Exhibit 10—a representation that Rawalpindi and Islamabad are two separate towns in Pakistan. The Court took judicial notice of Petitioner's Exhibit 4—Father's Answers to Interrogatories but gave them no weight.
The Court received into evidence several photographs of the family: Respondent's Exhibits A(1) (four photographs), A(2), A(3), A(4) and A(5) (two photographs); Exhibit B(1) and B(2) (two photographs); Exhibit C(1) (two photographs), Exhibit C(2) (three photographs) and C(3); Exhibit E (four photographs); Exhibit F (nine photographs); Exhibit G(1) (two photographs), G(2), G (3) and G(4); Exhibit H(1) and H(2); and Exhibit I; and certain videos of the family (visuals only, not audio): Exhibit K—birthday in Kansas City; Exhibit L—visit to Chuck E. Cheese in Kansas City; Exhibit M—children in Bahria Town, Pakistan in August 2015; Exhibit N—Mother and children in Pakistan in 2014; and Exhibit P—Skype call list created by Father. The Court also held an in camera meeting with the three eldest children (see Lincoln v. Lincoln, 24 NY2d 270 [1969] ; Family Ct Act § 664 ).
The Court weighed more heavily the testimony of Mother and Father although much of their testimony was diametrically opposed to the other. The Court found both parents' testimony to be suspect at times, however, Mother overall was a more credible witness.
Best Interests
This case involves an initial custody determination. Although the parties lived together as a family in Missouri from 2009 until 2014 this is not a relocation case to which application of the factors set forth in Matter of Tropea v. Tropea (87 NY2d 727, 740–741 [1996] ) need be applied. Although a court may consider the effect of a parent's relocation as part of a best interests analysis, relocation is but one factor among many in an initial custody determination (Matter of Saperston v. Holdaway , 93 AD3d 1271 [4th Dept 2002], appeal dismissed by 19NY3d 887 [2012] and 20 NY3d 1052 [2013] [the primary focus of the court must be on the children's best interests, not the mere fact of relocation] ). The relevant issue is whether it is in the best interests of the children to reside primarily with the mother or the father (see generally Eschbach v. Eschbach , 56 NY2d 167, 172–174 [1982] ).
Factors courts have carved out to ascertain the best interests of children, include (1) the continuity and stability of the existing custodial arrangement, including the relative fitness of the parents and the length of time the present custodial arrangement has continued; (2) the quality of the children's home environment and that of the parent seeking custody; (3) the ability of each parent to provide for the children's emotional and intellectual development; (4) the financial status and ability of each parent to provide for the children; and (5) the individual needs and expressed desires of the children as well as the need for children to live with siblings ( Fox v. Fox , 177 AD2d 209, 210 [4th Dept 1992] ; see also Eschbach v. Eschbach , 56 NY2d 167, 172–173 [1982] ). Further in determining the best interests of a child, a court must consider any "abduction, elopement or defiance of the legal process" ( Robert T.F. v. Rosemary F. , 148 AD2d 449 [2d Dept 1989] citing Friederwitzer v. Friederwitzer , 55 NY2d 89, 94 [1982] ) as well as the effects of domestic violence ( Hendrickson v. Hendrickson , 147 AD3d 1522 [4th Dept 2017]. The Court must evaluate the totality of the circumstances, no one factor is determinative ( Matter of Cross v. Casewell , 113 AD3d 1107 [4th Dept 2014] ). Great deference is accorded to the determination of the trial court (id. ). The Court has considered each of these factors in evaluating what custodial arrangement is in the children's best interests.
Fitness and Stability
The evidence adduced at trial, including the testimony from Father and his witnesses, established that Mother always has been the children's primary caretaker. The family lived together in Kansas City, Missouri from 2009 until June of 2014. Father often was away from home for weeks at a time because he was employed as an interpreter by the United States Army. One extended assignment out of town was when he worked in Hawaii for three months.
Mother's care of the children in Missouri was portrayed by witnesses for Father as lackadaisical and at times harmful. Father produced as witnesses the parties' former neighbors from Kansas City, Carrol T. and Phyllis T. They testified that Mother on several occasions, left her daughters unsupervised in the front yard for more than thirty (30) minutes after the girls returned home on the school bus. While the Court finds these former neighbors' testimony credible, such evidence of events, remote in time, is insufficient to deem Mother unfit.
Witnesses also described Mother as possessing a short temper. Another neighbor, Michael B. testified to having heard from outside the house Mother screaming in her native language and the parties' daughters crying. Mother claims the screaming was because she was then suffering abuse at the hand of Father. Father's cousin, Mirwais Z., who owned a liquor store, testified that once in a fit of rage Mother chased Father through the store throwing and breaking bottles. Mother denied this event happened. The same cousin accused Mother of shutting the girls in a closet, slapping and screaming at them. Father's uncle Erwar Z. also lamented that Mother placed Heela's hand on a hot stove for punishment, although he conceded he did not observe this alleged abuse. He testified that Mother allowed them to play with scissors and sharp pencils even after he warned her that the children might be injured. Father's cousin, Lailuma S., testified while living with the family in Missouri, she observed Mother beat the parties' daughters. Mother denied this occurred.
Nor did the Court's in camera with Heela align with this allegation.
On cross examination Uncle Z. admitted he had sought political asylum in 1996 based upon conversion to faith other than Islam, but would not acknowledge publicly such faith based upon his fear of retribution from the Taliban.
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The witnesses who found fault with Mother uniformly admitted they did not relay their concerns to anyone, including Father. The Court finds many of Father's relatives who acted as witnesses to be incredible (see Matter of Louise E.S. v. W. Stephen S. , 64 NY2d 946, 947 [1985] [respect is to be accorded the trial judge's advantage in observing the demeanor of the witnesses]; see also Hendrickson v. Hendrickson , 147 AD3d 1522 [4th Dept 2017] ; and see Matter of Cross v. Casewell 113 AD3d 1107 [4th Dept 2014] ). They appeared favorably biased toward him. For example, Father's cousin Lailuma S. admitted she knowingly lied to the United States Consulate to obtain a tourist VISA fully intending to immediately apply for political asylum. She then acknowledged the inherent danger and limitations imposed upon women in Afghanistan, but testified the parties' three daughters, were safe and better off without their parents in that country, than in the United States. Only one of Father's witnesses (the wife of paternal grandfather's close friend) had any contact with Mother (which consisted of two telephone calls) since the family left Missouri in June 2014.
Father's witnesses portrayed him as a hard working and patient parent and husband; however, they did not observe the family together often because Father was usually working. When they were together Father was often watching television with the children, playing with them or reading to them. Neighbor Carrol T. observed Father on occasion playing outside in the yard with the children. Witnesses observed Father to be invested in the marriage and were surprised to learn that it was Father, not Mother, who initiated the divorce. Father further produced pictures and videos (without audio) in support of his request for custody. A review of the pictures and videos, reveal brief periods of relative stability for the family while in Missouri. See Exhibits A(1)–(5); B(1–2); C(1)–(3); E; F; G(1)–(4); H(1)–(2); I; K; L; M; and N.
Still this Court cannot ignore the events after June 2014: the children were forced to live an unstable life when the family returned to Pakistan to help care for Father's ailing mother, Zhara S. (paternal grandmother) and to attend maternal uncle's wedding. Mother testified that Father only stayed in Pakistan for two weeks before returning to Missouri. She was pregnant with their fourth child and was eager to return to give birth in a United States hospital. She had given birth to two children in Pakistan and one child (Mariam) in Missouri and she longed for the comforts and modernization of the United States hospital system. Mother gave birth in February 2015 to the couple's fourth child, a son Ahmad Zameer (called Zameer) in Pakistan, absent Father.
Father refused to allow Mother and the children to return to the United States. He left the children's passports with his sister, Aunt Nadia in Pakistan. He took Mother's United States' passport, her permanent resident card and the children's permanent resident cards with him back to Missouri. The "visit" extended from weeks to months.
Mother testified that after approximately twelve months in Pakistan she inquired at the United States Consulate as to how she and the children could return to America without documentation. Father's family tipped him off to her visit to the Consulate and shortly thereafter, in late June 2015, Father returned to Pakistan. Under the pretext of marriage counseling Father took Mother to an attorney and had her sign a Pakistani divorce decree. The attorney then informed her of what she had signed.
Domestic Violence
After returning home from the attorney's office, Father told Mother he no longer wanted her or the children with him in the United States. Mother testified that she and baby Zameer were injured because she was holding Zameer when Father began to hit her all over her body, pull her hair, punch her and twist her hands. He threw her to the ground and beat her with a badminton racket in the presence of all of the children, Aunt Nadia and paternal grandmother.
Mother fled without her shoes or hijab (traditional head covering) and sought refuge with an uncle who provided her with taxi fare to the United States Consulate in Islamabad, Pakistan. She arrived at the Consulate with a swollen face, injured hands and bruising all over her body and was given immediate assistance. Father threatened that he would break her legs if she returned for the children.
Father disputes Mother's allegations of domestic violence but admits he left the children in the Pakistani–Afghan region from June 2014 until February 2016 even after he returned to the United States. His version of the parties' "visit" is quite different. He testified that Mother enjoyed her time in Pakistan, wanted to give birth to their fourth child there to be close to her own mother, was reluctant to leave and wanting a divorce, eventually abandoned her three daughters and her newborn son.
Mother testified that this was not the first incident of domestic violence: Father beat her within days of their 2005 arranged marriage in Pakistan in the presence of paternal grandmother and Aunt Nadia who did nothing to help and instead joined Father by kicking and punching her. When Mother left Father, Mother's family intervened and gained assurances from Father that it would not happen again. Mother testified the beatings continued. While living in Missouri, she feared reporting the abuse because Father threatened he could send her back to Afghanistan. He controlled her ability to communicate because she was forbidden to attend English classes with other Afghani women in their Missouri neighborhood. He forbade the children from speaking English at home.
After the family returned to Pakistan in 2014 the beatings continued. For example, once Mother was physically punished for not displaying respect for paternal grandmother by standing and giving her her seat. Instead Mother continued to sit and watch television. Father pulled her hair, slapped her and punched her. Some incidents of abuse were in the presence of the children who were hurt trying to stop it. As described earlier, Mother was holding Zameer when Father beat her for the last time.
After Father returned to the United States in Summer 2014, he controlled Mother's finances in Pakistan by failing to provide her with money to care for the children. He gave money to Aunt Nadia and paternal grandmother to parse out as they saw fit. For example, Aunt Nadia accompanied Mother on trips to the market to buy necessities and to the children's school. Mother testified that she was given only enough money to purchase one school uniform for each child so she washed the uniforms each night.
Noncompliance with Court Orders
Father did not comply with this Court's Orders and, or Writ, feigning a lack of knowledge of the children's specific address until February 2016, when the Court advised Father a warrant for him might issue (see Family Ct Act § 153 ). Mother was compelled to travel to Pakistani–Afghan region twice to retrieve the children.
Mother first traveled from Rochester, New York to Islamabad, Pakistan only to discover that Father had misled the Court with a false address. See Petitioner's Exhibit 6. She returned to the United States without the children. Father testified that paternal grandmother and Aunt Nadia refused to reveal their exact location in Afghanistan or any contact information, making the children's address impossible to obtain. Yet Father's Uncle Zalmai testified he had consistent contact through calls, skypes and visits with paternal grandmother. Upon cross-examination Father conceded he leased a residential property in Rawalpindi–Islamabad region of Pakistan before the parties' children returned to the United States with Mother. Father was not a credible witness.
As a former highly regarded United States Army interpreter, Father's prior service is laudable. Still Father seemed intent on engendering the Court's favor by his renditions of his American patriotism. He also pontificated about notions of proper parenting. Finally Father's testimony waxed fanciful. Father testified he feared his children would become terrorists if left in Mother's care. After repeatedly denying knowledge of his children's whereabouts in Afghanistan, he testified that his earlier refusal to disclose the address was based on a threat from the Taliban (of which maternal grandfather was purportedly a member). This threat culminated in an incident where his infant son was kidnapped while Aunt Nadia pushed him in his stroller. Father explained only the decisive actions of kind Pakistani citizens ensured the baby's quick and safe return.
As the children were being secreted between Pakistan and Afghanistan (a designated war zone) Father was in Missouri working at his family's taxi cab business. The children, including newborn Zameer, were without either parent for approximately six months.
Home Environment
Mother has provided for the four children, with the assistance of SAATHI and the Monroe County Department of Social Services, since they were reunited in February 2016. Mother's own education was limited, having ended at age seven (7).Mother and the children live in a comfortable apartment in a suburb of Rochester, New York. Each child sleeps in his or her own bed. SAATHI provided Mother with a car. Maternal grandmother relocated from Afghanistan to the United States and now lives with them. Maternal grandmother is able to provide care for baby Zameer while Mother is at work.
Father remains in the family's home in Missouri. He is no longer employed by the United States Army but now runs his family's taxi service, working long hours. Father testified that both paternal grandmother and Aunt Nadia recently moved in with him in Missouri and that they would assist in the care of the children, should he be granted custody. Aunt Nadia evaded this Court's jurisdiction and thus was complicit with Father in concealing the location of the children. Based on the totality of the evidence, as aligned with the children's in camera interview, Aunt Nadia is an inappropriate child care provider.
Emotional and Intellectual Development
Father is an intelligent and industrious person. He was an interpreter for the United States Army and although he requested and was supplied with a Pashtu interpreter for trial, he can speak four languages, including English, fluently. The evidence adduced at trial supports that while the family lived in Missouri, Father attended the children's doctors' appointments (with Mother) and interacted with the children's teachers (on his own) simply because he enjoys a command of the English language, which Mother clearly did not. Father complained the girls were late to school, when he traveled out of town for his work.
While in Pakistan, it is uncontroverted that when the school year began, Mother, with Aunt Nadia's assistance, enrolled the children in an Askiri school in Peshawar. Mother later withdrew the children believing they were at risk after a terrorist killed more than 100 children at a different Askiri school. Mother testified that she discussed her safety concerns with Father and he said something to the effect of "so what? If all of the children die, our children will be one of them." Both parents concede that Aunt Nadia had an advanced degree in education; however, Mother denied that Aunt Nadia tutored their children, and testified the children tested significantly behind grade level when they re-enrolled in school in the United States.
Since the children arrived in Rochester, New York in February 2016, overall Mother has shown to be a supportive parent who is gaining more intellectual prowess. With the support of SAATHI, Mother has had the children seen by a pediatrician and ensured they are up to date with well child checks and immunizations. When Mother arrived in New York she could not speak English and could not write in any language (except the children's names). By the trial's conclusion, Mother had mastered basic English, enabling her to work part time at the children's school. Any educational setbacks the girls suffered are due in part to the multiple transitions they have had to make. Mother has enrolled all the children in school and ensures they attend. Mother takes English classes and her command of the language is improving. She celebrates holidays and birthdays by doing special activities with the children.
Finances
Father's financial situation is unclear. He still lives in the family's home in Missouri. He filed an income and expense report with the Missouri Court reflecting a much higher income than the income he disclosed when he filed a similar report in New York. He twice retained and released private attorneys in Rochester. He now is represented by the public defender who may require him to pay a share of the cost of his defense. Mother and children receive help from social services and SAATHI. Child support issues were addressed by a Support Magistrate in Rochester, New York and Father was ordered to pay $50 per month in child support.
Children's Desires
The children wish to remain together and this increases their stability (see Ebert v. Ebert , 38 NY2d 700, 704 [1976] ). Based on the girls' preference and his substituted judgment for Zameer, due to his age of 2 years, the Attorney for the Children strongly advocates awarding sole custody to Mother (see Matter of McDermott v. Bale, 94 AD3d 1542, 1543 [4th Dept 2012], quoting Family Ct Act § 241 [the purpose of an attorney for the children is "to help protect their interests and to help them express their wishes to the court"] ) (see Matter of Viscuso v. Viscuso , 129 AD3d 1679, 1680 [4th Dept 2015], quoting 22 NYCRR 7.2 [d] [3] [an attorney for a child may substitute his judgment when convinced that a child "lacks the capacity for knowing, voluntary and considered judgment"] ).
Although a child's wishes are not determinative ( Matter of Anthony C. v. Kristine Z. , 38 AD3d 1317 [4th Dept 2007] ; Matter of Casolari v. Zambuto , 1 AD3d 1031 [4th Dept 2003] ; Matter of Hughes v. Wiegman , 150 AD2d 449, 450 [2d Dept 1989] ); "they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful" (Matter of Stevenson v. Stevenson , 70 AD3d 1515 [4th Dept 2010], lv. denied 14 NY3d 712 [2010]but cf Braga v. Bell , 151 AD3d 1924 [4th Dept 2017] ). Here the children are 11, 10, 7 and 2 years old, and the Court has considered what the Attorney for the Children has advocated on their behalf, given their ages and maturity. Moreover, the Court gleaned the children's maturity from an in camera interview with each of the eldest three girls (see Lincoln v. Lincoln, 24 NY2d 270 [1969] ; Family Ct Act § 664 ). The Court's in camera interviews with the children align with Mother's position.
Sole Custody
It is uncontroverted that the Sultani children have experienced significant trauma, torn between two parents, two cultures, three countries and four languages. The marked shift in position of the children during the pendency of the case demonstrates the girls undoubtedly are influenced by whoever is the primary residential parent. Consistent with the in camera interview, the children's current vitriol for Father arises out of their past trauma and Mother's disdain for him. Father testified that he observed Mother directing their son to "spit at him" through the screen during a Skype call.
Both parents demonstrate certain deficits in parenting. On cross examination Mother admitted recently driving with a suspended license. Father testified at times his Skype calls were unanswered and Mother has been late for his limited visits. Mother explained that sometimes the Skype device malfunctioned or a child refused to sit still for the entire session. If Skype did not work properly she ensured the children would speak to Father on the telephone.
The Court finds the parties cannot act together. Mother and Father's acrimonious relationship renders them unable to communicate in a civil manner (see Matter of Betro v. Carbone , 50 AD3d 1583 [4th Dept 2008] ; see also Hill v. Trojner, 137 AD3d 1671 [4th Dept 2016] ). The Court carefully has considered all the factors and weighing all factors in sum, the scale tips in favor of Mother. The Court finds for Father to rebuild a healthy relationship with his children, therapeutic counseling and, or visitation should occur. Mother shall assist in facilitating such counseling and, or visits.
Supervised Visitation
The Attorney for the Children advocates that the children's visits with Father continue to be supervised. Visitation is a joint right of the noncustodial parent and of the children; however, where it would be either harmful to the welfare of a child or where a parent has in some manner forfeited his right to access, a limitation on parental visitation is warranted ( Weiss v. Weiss , 52 NY2d 170, 175 [1981] [citations omitted] ). "A parent's supervised visitation with a child is required only where it is shown that unsupervised visitation would be detrimental to the child" (Matter of Powell v. Blumenthal , 35 AD3d 615, 616 [2d Dept 2006] [Family Court improvidently exercised its discretion in awarding father unsupervised visitation]; cf. Matter of Elnatanova v. Administration for Children's Services , 34 AD3d 802 [2d Dept 2006] [one element to consider is evidence of domestic violence, and Family Court properly found that the child's visits with the father should be supervised] ).
Supervision is not limited to instances where a court fears for a child's physical safety; rather, a court may also consider whether a parent is having a negative impact on a child's emotional well-being (cf. Matter of Frank M v. Donna W , 44 AD3d 495 [1st Dept 2007] [while affirming Family Court's finding that unsupervised visitation would negatively impact the child's well-being, the Court emphasized that supervision was meant to be temporary, where almost two years had lapsed]; but cf Rosario WW v. Ellen WW , 309 AD2d 984 [3d Dept 2003] [where only one monthly supervised visit was inadequate for a father who previously had a positive relationship with the children—despite that father had violated prior orders of protection, had called the child names and had a history of violent behavior toward the mother and children] ). "Supervised visitation is not considered a deprivation to meaningful access to a child" (Matter of Carl J.B. v. Dorothy T. , 186 AD2d 736, 738 [2d Dept 1992] ; see Matter of Abranko v. Vargas , 26 AD3d 490 [2d Dept 2006] [although father engaged in 3 ½ years of therapy, unsupervised visitation was not in the children's best interests because father's therapy failed to address significant issues] ), yet supervision may interfere with the parent-child relationship ( Frank M, 44 AD3d 495 ).
To date, Father has failed to provide proof that he has applied for permanent resident status for his three children who are not United States citizens: Heela, Hosai and Ahmad Zameer. Mariam, the parties' third daughter, is a citizen of the United States. The children once again might be taken by Father to Pakistan and/or Afghanistan, if this Court did not require supervision over Father's visitation. Upon Father's submission of Mariam's United States passport and the three children's permanent resident cards to Mother, Father may apply to this Court for a modification of the supervision requirements.
THE COURT HAVING SEARCHED THE STATEWIDE REGISTRY OF ORDERS OF PROTECTION, THE SEX OFFENDER REGISTRY AND THE FAMILY COURT CHILD PROTECTIVE RECORDS, AND HAVING NOTIFIED THE PARTIES AND THE ATTORNEYS OF THE RESULTS OF THESE SEARCHES AND THE COURT HAVING CONSIDERED AND RELIED UPON THE SAME:
NOW THEREFORE, it is
ADJUDGED that Father's violation petition under docket number(s) V–00078/79/80/81–15/16B is dismissed with prejudice; and it is further
ADJUDGED that it is in the best interests of the children for Mother to have sole custody; and it is further
ORDERED that Mother shall have primary physical residency of the children; and it is further
ORDERED that Father shall be able to visit with the children at their elementary school and/or any other school the children attend in compliance with any regular school policies for parents visiting their children at school, provided that the children shall not be permitted to leave the school premises during any period of visitation with Father; and it is further
ORDERED that Father shall be entitled to supervised visitation at the Society for the Protection and Care of Children (SPCC) in Rochester, New York as can be arranged or at a location and with a supervisor as mutually agreed to by the parties and he shall not leave the premises of any visitation location with the children and the Court hereby refers this case to both SPCC's therapeutic and supervised visitation program and Mother and Father shall cooperate with SPCC; and it is further
ORDERED that Father shall inform Mother at least 48 hours in advance of any visitation he intends to exercise with the children; and it is further
ORDERED that this Court shall retain exclusive continuing jurisdiction; and it is further
ORDERED that Father shall continue to enjoy Skype computer access with the children twice a week on Wednesday and Sunday at 7:00 p.m. until 7:20 p.m. Eastern Standard Time; and it is further
ORDERED that neither parent shall disparage the other parent nor shall they allow third parties to do so; and it is further
ORDERED that both parents shall have independent access to all of the children's providers, and each parent shall have the right to consult independently with said providers; and it is further
ORDERED that both parents shall keep the other apprised of their current address and telephone number; and it is further
ORDERED that Mother shall continue to notify Father of the names and contact information (including address and telephone number) for the children's service and care providers including educational, medical, mental health, psychological, daycare and extra curricular activities; and it is further
ORDERED that neither parent shall use corporal punishment against the children nor allow third parties to do so; and it is further
ORDERED that neither parent use or be under the influence of excessive alcohol or illegal drugs in the presence of the children, nor shall they allow third parties to do so; and it is further
ORDERED that the children are to be transported by a driver with a valid driver's license; and it is further
ORDERED that both parents are to timely notify each other in the event of a medical emergency involving the children; and it is further
ORDERED that neither parent shall permanently remove the children from Monroe County or counties adjacent to Monroe County without the express written permission of the other parent (notarized) or a court order from a court of competent jurisdiction permitting such removal and more specifically Father shall not remove the children from the location of his supervised visit ; and it is further
ORDERED that no other person shall be referred to as "father" or any similar name and no other person shall be referred to as "mother" or any similar name to the child.