Opinion
08-09-2021
In the Matter of a Proceeding Under Article 6 of the Family Court Act D.D., Petitioner, v. R.M., Respondent.
Jennifer Moran, Esq., and Sari Friedman, Esq., Counsel for Petitioner. Karen Charrington, Esq., Counsel for Respondent and Patricia Sokolich, Esq., Attorney for Children.
Unpublished Opinion
Jennifer Moran, Esq., and Sari Friedman, Esq., Counsel for Petitioner.
Karen Charrington, Esq., Counsel for Respondent and Patricia Sokolich, Esq., Attorney for Children.
Conrad D. Singer, J.
The following papers were read on these Motions:
Attorney for the Children's Motion by OSC 1
Respondent Father's Affirmation in Support of the Application by Attorney for the Children 2
Petitioner Mother's Cross-Motion 3
Attorney for the Children's Affirmation in Opposition to
Cross-Motion and Reply 4
Respondent's Affidavit in Opposition to Cross-Motion and In
Further Support of Contempt Motion 5
Petitioner's Reply Affirmation in Further
Support of Cross-Motion 6
Before the Court in this custody and parenting time proceeding is the Attorney for the Children's ["AFC"] motion, filed by Order to Show Cause, which seeks an Order: 1) adjudging the petitioner mother, D.D. ("petitioner" or "mother"), in violation of the parties' So-Ordered Stipulation of Settlement placed on the record on June 12, 2018 ("Stipulation"), which was incorporated, but not merged, in their Judgment of Divorce dated August 29, 2018 ["Judgment of Divorce"]; 2) holding the petitioner in civil contempt of court pursuant to Judiciary Law § 753; and 3) Pursuant to DRL §240 and FCA §651, modifying the custody terms set forth in the parties' Stipulation and granting the respondent father, R.M. ["respondent", or "father"], sole legal and sole residential custody of the parties' children, nine-year-old D.M. [DOB 0/00/00] and five-year-old E.M. [DOB 0/00/00] [the "Children"].
The respondent father's attorney filed an affirmation in support of the AFC's Contempt Motion.
The petitioner cross-moved by Notice of Motion, requesting an Order that: 1) removes the AFC from this case, on the basis of a conflict of interest; 2) re-appoints the Court-Appointed forensic evaluator, Dr. P.F.; 3) schedules an in camera interview between the Court and the subject Children, outside of the presence of the current AFC; 4) modifies the terms of the Judgment of Divorce, directing that the respondent's parenting time with the subject Children be limited to therapeutic visitation; 5) directs that all communication between the parties occur in writing, via email; 6) denies the relief requested in the AFC's application in its entirety; and 7) grants the petitioner such other and further relief as the Court deems just and proper.
The AFC filed an Affirmation in opposition to the petitioner's Cross-Motion and in further support of her Contempt Motion against the mother.
The respondent also filed an Affidavit in opposition to the petitioner's Cross-Motion and in further support of the AFC's Contempt Motion.
The petitioner's attorney filed a Reply Affirmation in further support of the petitioner's cross-motion.
The AFC's Contempt Motion and the petitioner's Cross-Motion for Removal of the AFC are determined as follows:
The AFC's Contempt Motion consists of an affidavit in support by the respondent father, an affirmation in support by the AFC, and exhibits attached thereto. The AFC's Contempt Motion seeks an Order determining that the mother has violated the parties' Stipulation dated June 12, 2018. Therefore, the Court hereby disregards those examples of the mother's allegedly alienating conduct included in the father's supporting affirmation which predate the prevailing custody order. Relevant to the Court's determination, the father contends that he is entitled to weekly parenting time every Tuesday and Thursday from 2:45 PM to 6:30 PM, and every other Friday to Sunday from 6PM to 6PM, and that he has not seen or Face-Timed with the Children since March 16, 2021. (Affidavit in Support by R.M., dated June 11, 2021 ["M. Aff. In Support"], ¶¶ 2 and 3). He alleges that although he has arrived at the mother's home to pick up the Children for all his Court-ordered parenting time, the mother has refused to bring the Children out of the house, and she claims that the Children are afraid of the father and that they do not want to see the father. (M. Aff. In Support, ¶ 3).
The father contends that the children's alleged fear of him stems from an incident that occurred in early March of 2021, when the mother told the daughter D. to use her iPad to record the different rooms around the father's house and to send the mother the videos, or else the mother would access the videos by breaking into the father's iCloud account. (M. Aff. In Support, ¶ 20). He further alleges that on several occasions he caught the daughter taking video in each room and that the daughter admitted to him that the mother asked her to do it. (M. Aff. In Support, ¶ 20). The father contends that the daughter has been afraid to visit with him since that incident, and that there is nothing that he said or did that would cause the child to be afraid of him. (M. Aff. In Support, ¶ 20).
The father also alleges that the mother canceled the last four days of his court-ordered Christmas vacation with the Children in January of 2020 [ M. Aff. In Support, ¶ 16], and that on April 7, 2020, she allegedly used a fabricated Covid-19 diagnosis to cancel his spring break vacation with the Children. (M. Aff. In Support, ¶ 17). The father contends that on April 7, 2020, she made up a story that the father's girlfriend E. snuck into their daughter D.'s room and cut her hair while she was sleeping and that the mother convinced the daughter that such allegations were true. (M. Aff. In Support, ¶ 18). He alleges that on October 31, 2020, the mother told the father's friend that she wanted to harass the father's girlfriend until she eventually hits the mother so that the mother could get her arrested and sent back to Florida. (M. Aff. In Support, ¶ 19). The father fails to set forth a basis as to why the alleged incident between the mother and the father's friend would constitute a violation of the parties' prevailing custody order.
The father also contends that on April 15, 2021, the AFC sent a letter to the mother's counsel to facilitate the father's parenting time with the children. (M. Aff. In Support, ¶ 26; Exhibit 12 attached thereto). He further contends that the mother's attorney refused to consider the AFC's proposal, and that it is unclear whether her attorney informed the mother about the request. (M. Aff. In Support, ¶ 27). The AFC's motion includes a list of dates on which the father has allegedly missed parenting time with his children. (M. Aff. In Support, ¶ 27; Exhibit 13 attached thereto).
The AFC's Contempt Motion also includes the AFC's affirmation, in which she argues that "this is a clear case of parental alienation" and that therefore a change in custody is warranted at this time. (Affirmation of Patricia Sokolich, Esq., dated June 11, 2021 ["Sokolich Aff. In Support"], ¶ 4). The AFC alleges that the mother has insisted to her that she encourages the children to visit with their father and that they are afraid to spend time with their father because they believe that his girlfriend is going to poison them. (Sokolich Aff. In Support, ¶ 7). The AFC contends that the children have told her that they do not want to see their father. (Sokolich Aff. In Support, ¶ 8). However, she further contends that they have never told her that they are afraid of their father or that he is mean to them. (Sokolich Aff. In Support, ¶ 8). She contends that the father appears for every pick-up, but the Children refuse to leave with him. (Sokolich Aff. In Support, ¶ 9).
The father's attorney submitted an affirmation in support of the AFC's Contempt Motion. The father's attorney contends that the AFC has extensive history representing the Children and that she has always communicated their desires without substituting her judgment. (Affirmation in Support of the Application by the Attorney for the Children, dated June 25, 2021; ["Charrington Aff. In Support" ¶¶ 5 and 6). The father's attorney further contends that the AFC requested that her office be used as a drop off location to facilitate visits between the Children and their father and that the mother refused the AFC's offer to do such. (Charrington Aff. In Support, ¶¶ 18 and 19). The father's attorney further contends that, "[u]nless this Court takes drastic action, Petitioner will continue her acts of unwarranted self-help and alienation to the detriment of the Children". (Charrington Aff. In Support, ¶ 25). The father's attorney further joins in the AFC's application to have the parties and/or children evaluated by L.J.G., LCSW-R to report her findings as to the issue of parental alienation. (Charrington Aff. In Support, ¶ 26).
The petitioner's Cross-Motion to Remove the AFC includes an affidavit from the mother, in which she contends that she has not orchestrated or encouraged the circumstances which have caused the father to miss parenting time with the Children. (Affidavit in Support of Cross Motion and in Opposition to Order to Show Cause, dated June 24, 2021 ["D. Aff. In Support of Cross-Motion"], ¶ 7]. She further contends that the Children are outright refusing to go with their father and that they are telling their mother, their therapist, and their attorney that they do not want to go with their father and that they are afraid to go with their father. (D. Aff. In Support of Cross-Motion, ¶ 7). The mother asserts that on March 9, 2021, the children returned home complaining that the father called the mother mean names and the daughter advised that the father took away her iPad and television privileges because she would not agree to lie for him to tell the Court and her attorney that she wanted to live with him. (D. Aff. In Support of Cross-Motion, ¶ 8). She further contends that on March 18, 2021, the children returned late from their parenting time with their father and the daughter was extremely upset because the father threatened her that he would take away her iPad forever unless she told the Court that she wants to live with the father. (D. Aff. In Support of Cross-Motion, ¶ 9).
The mother contends that the Children refused to go to their father's house for his next scheduled date of parenting time, despite the mother pleading with them to go. (D. Aff. In Support of Cross-Motion, ¶ 10). She contends that when she advised the father that the Children were refusing to come out for his parenting time, the father called the police, the police came into the mother's home and witnessed the Children being extremely upset. (D. Aff. In Support of Cross-Motion, ¶ 11). The mother contends that the Children thereafter continued to refuse to exit the mother's home for their court-ordered parenting time with the father. (D. Aff. In Support of Cross-Motion, ¶¶ 13, 14, 15 and 19). The mother contends that the father again called the police for one of the occasions where the Children refused to come out of the mother's house. (D. Aff. In Support of Cross-Motion, ¶ 15). The mother cites to various other dates where the Children refused to attend the father's scheduled parenting time. The mother also cites to numerous dates in April through June 24, 2021, where the father did not show up for parenting time with the Children. (D. Aff. In Support of Cross-Motion, ¶ 21).
The Court is highly troubled by the mother's representation that she has a recording of an alleged incident involving the Children crying and refusing to go to their father's home for parenting time on March 19, 2021 and is also troubled by the mother's offer to provide same to the Court. (D. Aff. In Support, ¶ 10). The Court is inclined to find such footage to be self-serving and unreliable, and absent consent from all parties and unless such recordings are accepted into evidence, declines to review the same.
The mother argues that the AFC's Contempt Motion against the mother shows that the AFC has a conflict of interest and that she has inappropriately aligned herself with the father. (D. Aff. In Support of Cross-Motion, ¶ 23). She argues that the AFC has made no effort to speak to the children since April 1, 2021 or prior to filing the Contempt Motion. (D. Aff. In Support of Cross-Motion, ¶ 24). She argues that she has sent the AFC numerous emails outlining her concerns which have been ignored and have gone unanswered. (D. Aff. In Support of Cross-Motion, ¶ 25).
The petitioner's attorney argues that the AFC should be removed because the AFC has expressed increasing hostility and disregard towards the mother and has now improperly aligned herself with the father by making a motion on his behalf. (Affirmation in Support by Jennifer Moran, Esq., dated June 24, 2021 ["Moran Aff. In Support of Cross-Motion"], ¶¶ 4 to 5). The petitioner's counsel also requests that the Court reappoint Doctor F. to conduct a further forensic evaluation, due to there being sharp factual disputes arising from the accusations raised in the parties' respective applications. (Moran Aff. In Support of Cross-Motion, ¶ 9).
The petitioner's counsel further argues that the Court should conduct a new in-camera interview with the Children, conducted outside the presence of the current AFC. (Moran Aff. In Support of Cross-Motion, ¶ 10). The petitioner's attorney further argues that the father's parenting time with the Children should be limited to therapeutic parenting time, due to the alleged breakdown that has occurred in the relationship between the father and the Children and to ensure the Children's safety and emotional well-being. (Moran Aff. In Support of Cross-Motion, ¶ 16). The petitioner's attorney opposes the AFC's application for a change in custody and argues that the record reveals that the deterioration of the relationship between the father and the Children is due to his own behavior towards the Children. (Moran Aff. In Support of Cross-Motion, ¶ 19).
In the AFC's reply papers in further support of her Contempt Motion and in opposition to the petitioner's Cross-Motion, the AFC argues that, based on her years-long involvement with the family, the Children's refusal to visit with their father is a direct result of the mother's alienating behavior. (Affirmation in Opposition to Cross-Motion and Reply by Patricia Sokolich, Esq., dated July 7, 2021 ["Sokolich Opp. To Cross-Motion and Reply"], ¶ 5). She further argues that, in her opinion, her clients stating that they do not wish to visit with their father is the direct result of the mother's alienating behavior and that the mother's conduct has rendered the Children "incapable of 'knowing, voluntary and considered judgment'". (Sokolich Opp. To Cross-Motion and Reply, ¶¶ 5 and 6). Therefore, she indicates that she is justified in substituting judgment for the Children and advocating a position that is contrary to their wishes. (Sokolich Opp. To Cross-Motion and Reply, ¶¶ 5 and 6).
The AFC does not dispute the mother's contentions that she (the AFC) did not speak to the Children prior to filing the instant application. (Sokolich Opp. To Cross-Motion and Reply, ¶¶ 19 and 20). Rather, argues that the mother has acted improperly when the AFC has previously conducted virtual meetings with her clients, including by influencing the Children's responses to the AFC's questions. (Sokolich Opp. To Cross-Motion and Reply, ¶ 20). The AFC further contends that the mother and her attorney refused the AFC's offer to bring the Children to her office for the AFC to possibly facilitate the exchange of the Children for the father's parenting time. (Sokolich Opp. To Cross-Motion and Reply, ¶ 22). The AFC argues that she has "absolutely not improperly 'aligned'" herself with the father, that she is diligently and zealously representing her clients and that, it "just so happens" that the position that she has taken on her clients' behalf aligns with the father's position. (Sokolich Opp. To Cross Motion and Reply, ¶ 23).
In the father's affirmation in opposition to the mother's Cross-Motion for Removal of the AFC and in further support of the AFC's Contempt Motion, the father acknowledges that he disciplined the daughter by temporarily taking away her iPad. (Affidavit in Opposition and Reply by R.M., dated July 19, 2021 ["M. Aff. In Opp to Cross Motion and in Reply"], ¶ 10). He affirms that he did not take away her television or video game privileges and that he had a great conversation with the daughter in which he explained why it was not right for her to video record his home. (M. Aff. In Opp to Cross Motion and in Reply, ¶ 10). He further affirms that, during the same conversation he told the daughter that she would not have her iPad for a period but that she would still be able to do everything else that she usually does . (M. Aff. In Opp to Cross Motion and in Reply, ¶ 10).
The father has offered to furnish "proof" of the conversation to the Court. To the extent that the father means that the conversation was videotaped, the Court is highly troubled by such offer, just as it is troubled by the mother's offer to furnish video recording(s) of the children refusing to leave the house for parenting time (see fn 1, supra). The Court is inclined to find any such footage to be self-serving and unreliable, and absent consent from all parties and unless such recordings are accepted into evidence, declines to review the same.
The father denies the mother's contention that he instructed the Children to tell the Court anything in exchange for keeping their iPad privileges. (M. Aff. In Opp to Cross Motion and in Reply, ¶ 11). He asserts that he only calls the police when the mother purposefully denies him parenting time with the Children. (M. Aff. In Opp to Cross Motion and in Reply, ¶ 17). The father does not dispute the mother's assertions that he has not showed up for his court-ordered parenting time on multiple dates spanning from April of 2021 to the end of June 2021. (D. Aff. In Support of Cross-Motion, ¶ 21).
In her reply affirmation in further support of the mother's Cross-Motion, the mother's attorney contends that it is undisputed that the AFC has not spoken to the subject Children since April 1, 2021 and that during that meeting the Children told her that they did not want to see the father. (Reply Affirmation of Jennifer Moran, Esq., ¶ 21). The mother's counsel also disputes the AFC's determination that the Children lack the capacity for knowing, voluntary and considered judgement and that therefore it would be appropriate for her to substitute judgment, since the AFC has not spoken with the Children in over three months. (Reply Affirmation of Jennifer Moran, Esq., ¶ 7). The mother's counsel also argues that the AFC's affirmation lacks specificity and that it does not give any examples of alienating conduct by the mother. (Reply Affirmation of Jennifer Moran, Esq., ¶ 8). The mother's attorney argues that the mother is not engaging in "self-help" in "denying" the father his parenting time, but, rather, she has attempted to foster the relationship between the Children and the father and "has been met with extreme resistance by the children". (Reply Affirmation of Jennifer Moran, Esq., ¶ 10).
ATTORNEY FOR THE CHILD'S CONTEMPT MOTION
The elements necessary to support a finding of civil contempt are as follows:
"First it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect. Second, it must appear, with reasonable certainty, that the order has been disobeyed. Third, the party to be held in contempt must have had knowledge of the court's order, although it is not necessary that the order actually have been served upon the party. Fourth, prejudice to the right of a party to the litigation must be demonstrated". (Wood v. Wood, 134 A.D.3d 1028, 1029 [2d Dept 2015]).
In Wood v. Wood, the Second Department held that the trial court erred in granting, without first conducting a hearing, a father's motion seeking civil contempt against the mother for her alleged failure to comply with the visitation provisions in the parties' stipulation of settlement. (134 A.D.3d at 1029). A hearing must be conducted on a contempt application where factual disputes exist which cannot be resolved on the papers alone. (See Wood v. Wood, 134 A.D.3d at 1029).
The Court finds that the AFC's Contempt Motion largely fails to set forth any alleged violation by the mother, except that the parties' motion papers present sharply disputed factual allegations about whether the mother has violated the provisions of the parties' prevailing custody order which govern the father's parenting time, and whether the father's rights have been prejudiced by any such violation. It is alleged in the father's affidavit supporting the AFC's Contempt Motion that he arrived at the mother's home to pick up the Children every day that he is entitled to have parenting time, but that he has not seen or Face-Timed with the Children since March 16, 2021, and that the mother refuses to bring the Children out of her house. (M. Aff. In Support, ¶ 3). In contrast, the mother contends that she has encouraged the Children to attend parenting time with the father, but that they have vehemently refused to do so, that the father repeatedly ignored the mother's requests that he engage in a joint session with the Children and their therapist to address the children's concerns, and that the father did not show up for his court-ordered parenting time on numerous dates in April, May, and June of 2021. (D. Aff. In Support of Cross-Motion, ¶¶ 7, 10 and 21).
As the parties' motion papers present factual issues which cannot be resolved on the papers alone, the AFC's Contempt Motion will be scheduled for a hearing forthwith.
The AFC's application for a modification of the parties' prevailing custody arrangement is denied. If the mother establishes a change of circumstances in the forthcoming hearing on her pending modification petition, the Court will thereafter determine the appropriate custody arrangement following a "full and plenary hearing" addressing the best interests of the children. (See Matter of Brin v. Shady, 179 A.D.3d 760, 761-62, 116 N.Y.S.3d 688, 690 [2d Dept 2020]; Matter of Thomson v. Battle, 99 A.D.3d 804, 806 [2d Dept 2012] ["In a proceeding pursuant to Family Ct. Act article 6 seeking modification of a prior custody order, a full and comprehensive hearing is required due process requires that a parent be afforded a full and fair opportunity to be heard"]).
MOTHER'S CROSS-MOTION FOR REMOVAL OF THE AFC
The Court finds that the mother has failed to establish a basis for removing the AFC. "Absent a conflict of interest or failure to diligently represent the best interests of the child, the attorney for the child should not be removed". (Sagaria v. Sagaria, 173 A.D.3d 1096, 1097 [2d Dept 2019]). First, the petitioner fails to establish that there a conflict of interest exists. The Court finds that the AFC filing a Contempt Motion that is supported by the father is not necessarily indicative that the AFC has improperly aligned herself with the father. The fact that an AFC supports or opposes relief sought by a particular parent is not evidence of bias. (See Matter of Donna Marie C. v. Kuni C., 134 A.D.3d 430, 431 [1st Dept 2015]). In this case, the Court finds that the mother has presented no evidence "supporting a conclusion that [the AFC] had a personal, unreasonable prejudgment of any of the issues affecting [her] clients which interfered with [her] representation of them". (See Matter of Donna Marie C., 123 A.D.3d at 431; see also Matter of Carballeira v. Shumway, 273 A.D.2d 753, 756 [3d Dept 2000]).
The petitioner's attorney also argues that the AFC should be removed because she has not spoken to the children since April 1, 2021 and that therefore, she could not appropriately substitute judgment for them. The Court finds that the AFC has adhered to the requirements which govern substituting judgment for the child, 22 NYCRR 7.2(d)(3). (See also Matter of Krieger v. Krieger, 65 A.D.3d 1350, 1352 [2d Dept 2009]). The AFC contends that the reason she has not spoken to the Children is because the mother has acted improperly during the AFC's prior attempts to interview her clients. Certainly, the AFC could have sought court intervention if she believed that the mother was acting improperly when she has attempted to interview her clients during the last few months. Nevertheless, the AFC has extensive history representing the Children, and in the time that the parties' custody petitions have been pending before the Court, the Court has not found any basis to determine that she has not diligently and zealously represented her clients.
The Court finds that the petitioner has failed to establish a basis for removing the AFC from this case.
Considering the sharply disputed factual allegations concerning the cause for the father's missed parenting time since March of 2021, and considering that Dr. F.'s forensic evaluation dated September 21, 2020, precedes the relevant disputed factual allegations set forth in the parties' motion papers, the mother's request to reappoint Dr. F. is granted in that Dr. F. is reappointed for the limited purpose of submitting an updated forensic evaluation, limited to the issue of interference with parental rights. All parties are directed to cooperate with Dr. F. and Dr. F.'s updated report must be completed and submitted to the Court no later than September 9, 2021. The parameters of the reappointment of Dr. F. will be more fully addressed below.
The petitioner's request that the Court conduct an in-camera interview with the Children is denied at this time, except that the Court shall conduct an in-camera interview with the Children, with their attorney present, in connection with the mother's pending modification petition.
The petitioner's request for a modification of the parties' custody arrangement to limit the father's parenting time to therapeutic parenting time is denied. If the petitioner establishes a change of circumstances in the forthcoming hearing on her pending modification petition, the Court will thereafter determine the appropriate custody and parenting time arrangement following a "full and plenary hearing" addressing the best interests of the Children. (See Matter of Brin v. Shady, 179 A.D.3d 760, 761-62, 116 N.Y.S.3d 688, 690 [2d Dept 2020]; Matter of Thomson v. Battle, 99 A.D.3d 804, 806 [2d Dept 2012]).
For the foregoing reasons, the AFC's Contempt Motion is granted to the limited extent of scheduling a hearing as discussed above and is otherwise denied. The petitioner's Cross-Motion to Remove the AFC is denied except that Dr. F. will be reappointed for the limited purpose of providing the Court with an update as discussed above.
Accordingly, it is hereby:
ORDERED, that the AFC's Contempt Motion is granted to the extent that there will be a hearing conducted on the issue of whether the mother has violated the parties' prevailing Custody Order as it concerns the father missing parenting time since March 18, 2021 and whether the rights of the father have been prejudiced by any such violation; and it is further
ORDERED, that such hearing will be conducted forthwith, after receiving input from the attorneys on their respective schedules; and it is further
ORDERED, that Dr. P. F., whose office is located at 000 P. W. Blvd., P.W., New York 00000, whose telephone number is 516-000-0000, is hereby reappointed to conduct an updated and limited forensic evaluation in this case, limiting such update to the issue of interference with parental rights, and to appear and testify if subpoenaed by a party herein; and it is further
ORDERED, that if Dr. F. will be unable to complete this assignment and updated report by September 9, 2021, then upon receipt of this Decision and Order and no later than seven (7) days from the execution of this Decision and Order, Dr. F. shall notify all counsel and the Court of his inability to accept assignment; and it is further
ORDERED, that the petitioner's counsel shall serve a copy of this Decision and Order on Dr. F. within 48 hours of receipt of this signed Decision and Order and notify all counsel of such; and it is further
ORDERED, that all parties shall contact Dr. F. to commence the updated evaluation within 48 hours of receiving notice that Dr. F. has been served with a copy of this signed Decision and Order; and it is further
ORDERED, that upon the request of Dr. F., absent an order limiting such disclosure, the parties shall provide releases such that Dr. F. may speak with any healthcare professional, therapist, or school personnel and procure any other records, reports, or material, relevant to the parties or child(ren) that he believes will be of assistance in conducting the evaluation; and it is further
ORDERED, that Dr. F. shall not delegate components of the updated evaluation to any individual without prior approval of the Court; and it is further
ORDERED, that counsel for the parties shall provide copies of any and all documents, papers or other material requested by Dr. F. and shall simultaneously furnish those materials to opposing counsel and the attorney for the child(ren); and it is further
ORDERED, that neither party's counsel, nor the attorney for the children, shall have any contact with Dr. F., except with regard to scheduling, payment issues and in exchanging documents as provided above; and it is further
ORDERED, that if Dr. F. determines that exigent circumstances exist requiring court intervention, he shall also notify counsel for the parties and the attorney for the children; and it is further
ORDERED, that if the parties cooperate with Dr. F. but Dr. F. still cannot provide the updated written evaluation report to the Court by the first scheduled day of the fact-finding, the fact-finding will still commence as scheduled but all counsel shall be entitled to re-call witnesses and inquire of those witnesses regarding issues or concerns that they would have originally addressed had they already had the updated forensic report; and it is further
ORDERED, that if at any time after the reappointment, Dr. F. finds that he cannot complete the updated evaluation in the time required by this written Decision and Order, he shall immediately notify the Court in writing and all counsel in writing of such, along with a detailed explanation as for the reason for the delay and the anticipated date of completion; and it is further
ORDERED, that Dr. F. shall include in his updated report a list of all documents and/or persons consulted; and it is further
ORDERED, that the original updated report and 3 copies shall be submitted to the Court. Copies shall be furnished by the Court to counsel upon their execution of the appropriate affirmation. The updated report shall not be shown to the parties or third parties absent court order. Counsel may share the content of the updated report with their clients. Upon completion of this matter the copies of the updated report shall be returned to the Court for disposal; and it is further
ORDERED, that upon receipt of a discovery request pursuant to Article 31 of the CPLR after submission to the Court of Dr. F.'s updated report, Dr. F. shall make available to the Court and counsel for all parties, including counsel for the children, a copy of all underlying data and notes utilized in preparation of the updated report, subject to further order of the Court prohibiting or regulating the manner of the disclosure of these materials; and it is further, ORDERED, that Dr. F. shall not make a recommendation to the Court as to which parent ultimately should have custody of the children and further shall not make a recommendation as to the other specific issues that are to be addressed in the updated report; and it is further
ORDERED, that the updated report may go into evidence as a Court exhibit. Unless stipulated and ordered otherwise, any party wishing to call Dr. F. as a witness shall subpoena Dr. F. and shall be responsible for the cost of his testimony; and it is further
ORDERED, that Dr. F.'s retainer shall be paid within fourteen (14) days of the Court's execution of this Decision and Order and prior to any updated evaluation commencing; and it is further
ORDERED, that it is agreed by the parties and counsel and consented to that any party's failure to cooperate with Dr. F. or to abide by the terms of this Decision and Order may result in the Court taking a negative inference against that party at fact finding; and it is further
ORDERED, that there shall be an initial retainer of $0,000.00, which shall be paid $0,000.00 by the petitioner and $0,000.00 by the respondent, subject to reallocation at trial, which shall be paid by the parties in their apportioned share within fourteen (14) days of the Court's execution of this Decision and Order; and it is further
ORDERED, that the cap on the updated forensic evaluation ordered is not to exceed a rate of $000.00 per hour, to a maximum of $0,000.00. The Court is directing that a total of 2 adults (D.D. and R.M.) shall be evaluated and a total of 2 children shall be evaluated, and therefore payment shall be apportioned 25% to the petitioner; 25% to the respondent; and 50% pursuant to Section 35 of the Judiciary Law, subject to reallocation at trial; and it is further
ORDERED, that if Dr. F. anticipates that the cost of the updated evaluation and updated report (not including testimony) is likely to exceed the cap set by the Court, then he shall make a supplemental request to the Court on notice to all counsel for additional compensation prior to the expenditure of any additional time; and it is further
ORDERED, that the rate for testifying shall be $000.00 per hour, and shall be paid by the party who calls Dr. F. as a witness, unless that party's share of the cost of the preparation of the updated evaluation was paid pursuant to Judiciary Law; and it is further
ORDERED, that all other requests for relief not specifically addressed herein are deemed denied.
This constitutes the Decision and Order of the Court.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.