Opinion
V-XXXXX-XX
01-31-2019
In the Matter of a Proceeding Under Article Six of the Family Court Act T.G., Petitioner, v. V.Z., Respondent. In the Matter of a Proceeding Under Article Six of the Family Court Act V.Z., Petitioner, v. T.G., Respondent.
Petitioner is represented by Lance Simon, Esq. Respondent is represented by Michael Barrows, Esq. Debra Bloom, Esq., was appointed attorney for the child.
Petitioner is represented by Lance Simon, Esq.
Respondent is represented by Michael Barrows, Esq.
Debra Bloom, Esq., was appointed attorney for the child.
Conrad D. Singer, J.
The matter before the Court concerns an initial custody determination as to one child, I.Z. (D.O.B. 02/05/2013) (hereinafter, I. or the "child"), who is the biological child of the parties herein, T.G. (hereinafter the "mother") and V.Z. (hereinafter the "father"). The within Decision and Order follows a full fact-finding hearing which commenced on January 31, 2018 and continued on multiple subsequent dates, during which time the Court heard testimony from several witnesses, including the parties; conducted an in-camera examination of the subject child; and had the opportunity to examine the parties' respective petitions and the exhibits entered into evidence.
The current proceedings were commenced on December 6, 2016 when the mother filed her petition seeking sole legal and sole residential custody of the child, in which she alleged that the father is "psychologically abusive" towards the mother and the child. (Mother's Petition for Custody , dated Dec. 6, 2016, ¶ 12). On December 13, 2016, the father filed his cross-petition for sole legal and sole residential custody of the child, in which he alleged, inter alia , that he has been the primary caregiver for the child and that the mother "absconded" with the child to the maternal grandmother's home in Great Neck while filing "meritless" family offense and custody petitions. (Father's Cross-Petition for Custody , dated Dec. 6, 2016, ¶ 12). The father further alleged that the mother's son, who also resides in the Great Neck home, posed an "imminent and serious risk of danger to the child". (Father's Cross-Petition for Custody , ¶ 12).
By Order dated January 5, 2017 (X, J.), the father was temporarily granted sole residential and sole legal custody of the child; the mother was directed to immediately return the child to the parties' former marital residence where the father was still living, in Middle Village, Queens, New York (the "Middle Village residence"); the parties were directed for the mother to have "reasonable visitation with the child as mutually agreed upon by the parties", but no overnight parenting time between the mother and the child outside of the Middle Village residence, and the mother's sister J.G. was ordered to "stay away and refrain from any and all contact with the child".
By Order dated March 21, 2017, the Court (X, J.) appointed Paul Marcus, PhD, as the forensic evaluator on this matter. Dr. Marcus testified as a witness during the fact-finding and his forensic evaluation report was entered into evidence.
The fact-finding hearing in these proceedings commenced on January 31, 2018. At that time, the mother appeared and was represented by Lance D. Simon, Esq . The father appeared and was represented by Michael C. Barrows, Esq. The Attorney for the Child was Debra Bloom, Esq. The mother's witnesses consisted of the father, D.O., D.G., J.G., Officers E.L. and G.M., and the mother. The father's witnesses consisted of the father, J.B., M.S. and N.M.
The parties' rested on their respective cases on November 15, 2018 and were directed to submit their written summations by December 13, 2018. Following successive adjournment requests, the parties' deadline to submit summations was adjourned to January 25, 2019. In the interim, the mother discharged Mr. Simon as her counsel, filed a consent to change attorney form and filed her written summation, pro se , on January 23, 2019. The father's counsel, the Attorney for the Child, and the mother, pro se , submitted their respective written summations by January 24, 2019.
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SUMMARY OF TESTIMONY: MOTHER'S CASE
V. Z.:
The father was the first witness on the mother's case. The father has worked at JP Morgan Chase since 2004. His hours are 9:00 AM to 5:00 PM, and he works in Jersey City on Monday through Thursday; on Fridays he works from his home in Middle Village, Queens.
The father testified that under the Order then in place, the father had temporary sole legal and temporary sole residential custody of the child. The parties followed a 50/50 parenting time schedule, under which the father's parenting time began Sunday evening at 6:00 PM through Wednesday morning at 9:00 AM when he dropped the child off at daycare in Rego Park, Queens. The mother's parenting time began at 6:00 PM on Wednesday evening when she picked up the child from daycare and ended on Sunday evening at 6:00 PM. The father testified that the child had started taking gymnastics class which started at 5:30 PM in Rego Park and that he hired a man named "F." to drive the child from daycare to gymnastics class. He initially hired F. as a "handy man" to fix some of his appliances and he did not conduct a background check on F. before he hired him to drive the child to gymnastics. (Transcript , February ["Feb."] 1, 2018, 19:5).
The father also hired a woman named "Z." to prepare meals for the father and the child. (Transcript , Feb. 1, 2018, 27:2). On the days that the father would pick up the prepared food from Z.'s residence in Forest Hills, Queens, he would arrive home with the child by 7:30 PM, and the father would then feed the child dinner. (Transcript , Feb. 1, 2018, 27:19).
The father testified that the parties met at the end of 2005 while he was a patient at the dentist's office where the mother then worked as a dental assistant; they started dating in 2006 and started living together soon thereafter. (Transcript , Feb. 1, 2018, 38:11). The father further testified that the mother has a son named D. from a previous marriage, who lived with the parties from around March 2007 through June 2016. (Transcript , Feb. 1, 2018, 41:18).
The father testified that the mother "kidnapped" I. on December 2, 2016, but he "guessed" that the mother had taken the child to the Great Neck, Long Island home of the mother's sister, J.G. ("J."). (Transcript , Feb. 1, 2018, 48:8). The father did not call the police, he just texted the mother and asked her where the child was.
At the time the father testified, the child was attending daycare at C.D.P.; she started there from when she was about three years old. (Transcript , Feb. 1, 2018, 52:1). He further testified that Russian was the primary language spoken at the daycare, but English was taught "all the time". (Transcript , Feb. 1, 2018, 53:8).The father testified that he found the daycare program but both parties liked the program and he consulted with the mother on selecting that daycare program.
The father testified that he owns the two-family home in Middle Village where the parties had once lived together. He put the mother's name on the deed when he purchased the house in 2010. (Transcript , Feb. 1, 2018, p. 61, line 16). The father further testified that he and the child live in a two-bedroom apartment in the lower floor of the house and a tenant resides in a two-bedroom apartment on the upper floor. The house has a common entrance for both apartments. The father further testified that he and the child also have access to the basement of the house, which has an additional bedroom and kitchen. (Transcript , Feb. 1, 2018, 63:16).
The writ of habeas corpus (Petitioner's ["Pet."] Exhibit ["Ex."] 2) and custody petition (Pet. Ex. 3), both filed by the father on December 13, 2016, were entered into evidence on consent. The father testified that the mother "kidnapped" the child on December 2, 2016 and that he learned where the child was on December 3, 2016, but that it was "impossible" for him to contact the child because there was an order of protection that required him to stay away from the child. (Transcript , Feb. 1, 2018, 71:14).
The father testified that he brought two family offense petitions against the mother during the underlying proceedings; the first petition was dismissed, and the father withdrew the second petition in exchange for the mother not coming into the Middle Village residence. The father's family offense petition filed in January 2017 (Pet. Ex. 4) and the order dismissing the father's family offense petition (Pet. Ex. 5) were both entered into evidence on consent. The father confirmed that the mother was not permitted to return to the jointly-owned residence from January 2017 to June 23, 2017. (Transcript , March ["Mar."] 6, 2018, 19:16). The father confirmed that he did not want the mother to reside in the jointly-owned home where the parties previously cohabitated and confirmed that he did not want the child to live with the mother's sister J. He further confirmed that the child's overnights with the mother are spent in Great Neck. The father's second family offense petition against the mother, filed July 7, 2017, was entered into evidence on consent. (Pet. Ex. 6). The father confirmed that he filed his second family offense petition against the mother within 2 to 3 weeks after his first offense petition was dismissed.
The Court's July 7, 2017 Ex-Parte Order of Protection against the mother and in favor of the father was entered into evidence on consent. (Pet. Ex. 7).The Order of Dismissal dated December 6, 2017, was entered into evidence on consent. (Pet. Ex. 8). The father confirmed that the mother was required to stay away from the parties' jointly-owned Middle Village residence from July 7, 2017 through the dismissal on December 6, 2017. The father further testified that during that time both the mother and the child stayed with the mother's sister J.
The father's family offense petition filed October 27, 2017 on behalf of the child and against the mother's sister J. was entered into evidence on consent. (Pet. Ex. 9). The father denied knowing that the child was required to stay in a hotel for several nights as a result of the father being issued the order of protection against the sister J. The father confirmed that after he received the order of protection against J., the mother requested from him approximately $ 100,000.00 through a line of credit on their jointly-owned home so that she could secure another home and he denied that request. (Transcript , Mar. 6, 2018, 34:8). He also denied the mother's requests for documents concerning proof of payment for their jointly-owned home and for his car. The father testified that the family offense petition he filed against J. on the child's behalf was settled by J. consenting to a final stay-away order of protection in favor of the father and the child, except for certain visiting times between the aunt and the child.
The father confirmed that a tenant was residing in the jointly-owned Middle Village residence and that the mother had served the tenant with a 30-day notice to vacate the apartment so that the mother could live there. He testified that he did not permit the mother to live in the apartment because it was a "terrible situation" for the father and the child when the mother was in the house. (Transcript , Mar. 6, 2018, 42:4).
The father testified that the child's pediatrician was "Glendale Pediatrics" until the group refused to keep her as a patient, which occurred when she was approximately four years old. The father testified that he had custody of the child at that time and he took her to a new pediatrician in Forest Hills, Queens, without talking to the mother first. (Transcript , Mar. 6, 2018, 46:19).
The father testified that he felt the child's daycare, "Creative Discovery Preschool", provided the child with a good environment. He testified that it did not bother him that the school did not call him to notify him after the child had sustained what he described as a "minor injury" during daycare. (Transcript , Mar. 6, 2018, 49:17). An email from the mother to the school, copied to the father, was admitted into evidence over the objection of the mother's counsel. (Pet. Ex. 10). The father testified that the child slipped on the stairs, that he examined her body for marks after the fact and observed a "significant" bruise on the side of the child's abdomen. (Transcript , Mar. 6, 2018, 56:6). He subsequently called the daycare to ask what happened, but he did not reprimand the school for not calling him and notifying him.
The father testified that during the underlying litigation he took the child to Disneyland, to a ski resort in upstate New York and to Cape May. The father testified that he did not inform the mother that he was taking the child to Disneyland beforehand. He informed the mother that he took the child to Cape May after the fact.
On cross-examination by the father's counsel, the father testified that before he filed his family offense petitions against the mother, she filed a family offense petition against him, which was dismissed. The father testified that he withdrew his second family offense petition against the mother in exchange for her agreement that the mother would not have access to the house. The transcript from the parties' December 6, 2017 appearance before the Court (X, J.) was entered into evidence on consent. (Respondent's ["Resp."] Ex. A). The father confirmed that during that appearance the Court read from a letter update from the forensic evaluator Dr. Marcus and stated that "under no condition" should the mother or her sister J. have access to the jointly-owned home because it was "a formula for disaster" due to the child being present for "many traumatic experiences". (Transcript , Mar. 6, 76:4).
The father then expanded upon his earlier testimony about not wanting the mother in the jointly-owned home. He testified that the mother had "set him up" on multiple occasions, including one occasion where the mother called the police on the father and alleged that he assaulted her. The father was criminally charged but the charges were ultimately dismissed.
The father testified that the parenting time schedule in place during the fact-finding hearing did not address summer holidays and that he reached out to the mother to work out a schedule, but she did not respond. He also testified that the mother had refused the father's request for her to bring the child to a birthday party being thrown for the child's friend from gymnastics class. The father also testified that on another occasion he asked the mother to bring the child to a gala event for gymnastics that was during the mother's parenting time, but the mother never responded. The father further testified to an occasion where he texted the mother to ask her to bring the child to a concert event at the daycare, but the mother never responded to the text and she did not bring the child to the event. The father gave up on trying to work out additional access schedules with the mother. (Transcript , Mar. 8, 13:24).
The father testified that the mother filed her family offense petition against him on December 2, 2016 and obtained an order of protection against him. The father filed his writ of habeas corpus on December 13, 2016. He testified that he did not see the child between December 2 and December 13, 2016 and the mother did not return the child to the Middle Village residence during that time. The father testified that the return date on his writ of habeas corpus was December 15, 2016, that he was in court on that date and the mother was in court on that date, but that she did not bring the child to court. On that date the mother's order of protection was vacated by the Court. The transcript from the December 15 proceedings before Judge X. was then entered into evidence on consent. (Resp. Ex. C). The Temporary Order of Custody and Visitation that resulted from that December 15, 2016 court appearance was entered into evidence on consent. (Resp. Ex. D). Such granted the father temporary sole residential custody, granted both parties joint legal custody, with reasonable parenting time for the mother as agreed between the parties, ordered that the child be immediately returned to the MIDDLE VILLAGE. residence and ordered that the child be re-enrolled in the Creative Discovery Daycare.
The father testified that the mother did not return the child to the Middle Village residence on December 15, December 16, December 17 or December 18, 2016. On December 16 the father went to the mother's residence with a police officer and the mother refused to give the child to the father because he did not bring a car seat. (Transcript , Mar. 8, 24:10). On December 17 the father purchased a new car seat. He returned to the residence on the 17th but was unable to get the child. On the 18th he went to get the child and the mother had him arrested. The father testified that he was released without bail. The father testified that the mother did not return the child to the Middle Village residence on December 19, 20, 21, 22 or 23 and that he did not see the child again until January 1, 2017 because the mother went to Family Court and obtained an order of protection against the father and in favor of the child. The father appeared before Judge X. on January 5 and the order of protection was vacated.
The father confirmed that his family offense petition filed against the sister J. was settled by a final order of protection with a full stay-away against J. except for certain supervised visits between J. and the child. (Transcript , Mar. 8, 2018, 38:17). The father testified that he agreed to the carved out supervised visits because he believed it would be better for certain specific events that the child be able to see her aunt.
The father testified that the child's pediatrician refused to continue treating her after discovering that the mother had given the doctor false vaccination records indicating that the child had received vaccinations in Moldova when in fact that child had not. The father further testified that after he discovered the fraudulent records he decided not to disclose the child's new pediatrician's information to the mother. The father stated that the mother continued her efforts to prevent the pediatrician from vaccinating the child. (Transcript , Mar. 9, 2018, 15:17). The father testified that he has since gotten the child vaccinated; the child had received two shots at the time of the fact-finding hearing. He stated that the mother threatened him that he would "rot in jail" if something were to happen to the child due to vaccinations. (Transcript , Mar. 9, 2018, 19:10).
The father testified that he did not inform the mother about the man F. who drove the child from daycare to gymnastics because the mother had threatened the woman who previously drove the child to gymnastics and the father was afraid that the mother would threaten F. as well. The father testified that regarding his refusal to give the mother $ 100,000.00 from their jointly-owned home so that she could purchase her own home, that the mother had previously offered the father "hundreds of thousands of dollars" to buy out the father's interest in their home. (Transcript , Mar. 9, 2018, 32:1).
He testified that the mother had attempted to set him up, including by submitting false ACS reports against the father.
On cross-examination of the father by the Attorney for the Child, the father testified that he changed the locks on the doors of the Middle Village residence after the mother left the house on December 2, 2016. He testified that the mother did not have any personal property in the house at the time he changed the locks. The child's clothes were not in the house either at that time.
On re-direct-examination by the mother's attorney, the father read aloud portions of the transcript from the December 6, 2016 appearance before Judge X. and confirmed that the mother did not "agree" with the father that she would stay away from the Middle Village residence. (Transcript , Mar. 9, 2018, 53:10). The father testified that he could not recall if on December 15, 2016 he had contacted the mother to get the child and when the mother's attorney asked why he could recall certain other events, the father responded that he "recall[s] the events that make sense for" him. (Transcript , Mar. 9, 2018, 54:10). The father testified that he did not recall that on December 18, the day the father previously testified the mother and J. set him up, that the mother texted him that she was at the Middle Village residence. He testified that he did not recall choking the mother when he found her in the Middle Village residence on December 18, 2016. (Transcript , Mar. 9, 2018, 55:20). He recalled that he walked downstairs where he bumped into J. and saw the child crying because she had heard the mother screaming. (Transcript , Mar. 9, 2018, 56:2). The father denied choking the mother and called that "bullshit". (Transcript , Mar. 9, 2018, 56:15).
The father confirmed that he had previously testified on direct-examination that only the mother was not permitted to remove the child from New York state. (Transcript , Mar. 9, 2018, 57:22). The father then read from a Court order (Y, J.) entered into evidence as Respondent's Exhibit D, which stated that "neither party" would be permitted to remove the child from New York. (Transcript , Mar. 9, 2018, 58:19). The father denied that court orders only apply to the mother and testified that court orders apply to him but testified that it was repeated throughout the course of the hearings that the mother could not remove the child from New York and the father could not recall the judge talking about it with respect to the father. (Transcript , Mar. 9, 2018, 59:18).
On re-cross-examination of the father by the father's attorney, the father testified that the mother did not previously make any representations about needing a mortgage to purchase his share of the Middle Village house. He testified that on December 16, the mother refused to give the father the child and she did not give the father the car seat that she had taken so that he could take the child home. He testified that on December 17 he purchased a car seat and that on December 17 the police accompanied him to the mother's house. The father testified that on December 18 he went into the Middle Village residence and the mother was already on the phone with the police, and the father was arrested. He confirmed that the district attorney dismissed the charges against him without going to trial. The certified Certificate of Disposition from Queens County Criminal Court was entered into evidence. (Resp. Ex. H).
D.O.:
The mother's second witness was D.O., the office manager for the dental office where the mother works as a hygienist. Ms. O. testified that her work duties included making the mother's work schedule. She testified that the mother is a "wonderful human being" and that the office staff and the patients all love the mother. (Transcript , Mar. 9, 2018, 70:9). She testified that the mother makes her own schedule. The mother tells Ms. O. the days and hours she wants to work and Ms. O. books patients for her. On cross-examination by the father's counsel, Ms. O. testified that it is not a problem for the mother to take a week off from work on short notice.
D.G.:
The mother's next witness was D.G., her son from a previous relationship. Mr. G. was approximately eight years old when he met Mr. Z. He testified that he initially got along well with the father, but that he subsequently observed the father to be "a different type of person". (Transcript , Mar. 9, 76:22). He further testified that he lived with the mother and the father until the end of high school and then moved in with his aunt. He testified that when he lived with the parties, the father "beat him" with his fists or a belt, usually on Mr. G.'s back or his lower body. (Transcript , Mar. 9, 2018, 83: 4). He testified that his mother usually did not witness this behavior, but Mr. G. would tell her afterwards and she would always argue with the father about it.
Mr. G. testified that when he was around eight or nine years old he had a steroid-resistant syndrome, which caused him to feel nauseated and caused him difficulty with walking long distances. (Transcript , Mar. 9, 2018, 89:12). Mr. G. testified about doing activities with the child including going to the park and going ice skating in Great Neck Mr. G. sometimes picks up the child from daycare.
On cross-examination by the father's attorney, he testified that the father took Mr. G. on two trips; one to Nicaragua and another to a different Central American country. He acknowledged the possibility that the father took him on other trips outside of the United States and confirmed that the father had once visited him at boarding school and they had also biked together once a month.
He testified that the father hit him approximately once a week to subdue him and that he told his mother weekly for three years. (Transcript , Mar. 9, 100:15). There were arguments between the mother and the father every week and on two occasions the mother and Mr. G. stopped living with the father. Mr. G. was asked if the father had once called the police on him because he had twisted his mother's arm and hurt her. Mr. G. responded that he "didn't recall". (Transcript , Mar. 9, 101:5). Mr. G. further testified that he "didn't recall" twisting his mother's arm and hurting her. (Transcript , Mar. 9, 101:8). Mr. G. denied ever striking, hitting or pushing I.
On cross-examination by the Attorney for the Child, Mr. G. testified that the father occasionally left bruises when he hit Mr. G. and that Mr. G. never reported the beatings to any teachers, athletic coaches or extracurricular leaders.
J.G.:
The mother's next witness was her sister, J.G. Ms. G. testified that when the parties started dating Ms. G. felt that the father was not the right person for the mother and she didn't want to have any interaction with him. Once the parties started living together, the parties started having dinner with the mother's family and Ms. G.'s relationship with the father became "cordial". (Transcript , Mar. 13, 5:17). Ms. G. testified that things started escalating and it seemed like the father was setting the stage to exit the relationship. On one occasion Ms. G. argued with the father after she observed the father call I. "stupid" because she had called D.G. her brother. The mother told Ms. G. about finding emails indicating that the father was trying to obtain custody of the child and trying to sell the house. She also told Ms. G. that the father was physically abusing her, calling her names in front of the child and forcing the child to do things.
The mother came to stay with Ms. G. at her home in Great Neck in the beginning of December 2016. Ms. G. testified that she told the father that he would no longer be getting his way. The mother obtained an order of protection against the father in early December and Ms. G. told the father about that order of protection.
Ms. G. testified that on December 16, 2016 the father came to Ms. G.'s home in Great Neck with two or three police cars trying to get the child out of the house. The child did not leave the house that day. Ms. G. testified that the father threatened to "burn [them] down" in front of the police officer that day. (Transcript , Mar. 13, 2018, 20:13). On December 18, Ms. G. accompanied the mother and the child to the Middle Village residence.
Ms. G. testified that she was downstairs with the child when she heard the mother screaming and a lot of commotion upstairs; the child started crying. Ms. G. picked up the child to take her upstairs and she saw the father coming down the stairs. She testified that the father tried to get the child and he scratched her with an object in his hands. Ms. G. called the police and as the father ran through the back door, the police met him outside and the father was arrested. The child was inside with Ms. G. when the father was arrested.
Ms. G. testified that the police interviewed the mother and her and they subsequently received an order of protection against the father. She denied ever going to court and filing for an order of protection against the father or against anyone else prior to the fact-finding hearing. She denied ever calling CPS on the father.
Ms. G. testified that the father sought an order of protection against Ms. G. on two occasions- on July 7th and on October 31st. She testified about two incidents occurring on June 28th and July 4th where Ms. G. went to the M.V. house. On June 28th the father called the police and the police stayed at the house for about three hours. The police directed the parties to move their belongings to separate sides of the house and not interact with each other.
Ms. G. testified that on July 4th the mother called her crying because the father had her arrested for breaking in to the Middle Village residence. At the mother's request, Ms. G. brought the deed to the house to prove that the mother was an owner. Ms. G. arrived at the house, the police left and Ms. G. stayed there until about 6:00 PM. The mother then called and asked Ms. G. to return to the house and she returned at about 10:00 PM. She testified that she observed the father on the mother's side of the apartment, "harassing" the mother to leave the house. (Transcript , Mar. 13, 2018, 40:6). Ms. G. testified that she and the father then had a conversation in which the father agreed that he and the mother needed to discuss matters civilly and that the father was "very open" to discussing the house, and then Ms. G. left the Middle Village residence. (Transcript , Mar. 13, 2018, 41:11).
Ms. G. testified that on July 7th the mother called her crying and told her that the father was harassing her. Ms. G. went to the house on July 7th and waited with the mother for the police to arrive. The police arrived around 4:00 AM on July 8th. Ms. G. testified that the child started crying and wet herself. Ms. G. testified that she tried to explain to the police that there must have been a misunderstanding because Ms. G. and the mother had met with ACS the day before. Ms. G. tried to make a phone call to the ACS worker who the mother and Ms. G. had spoken to the day before; the police officer took the phone away from Ms. G. and handcuffed her. (Transcript , March 13, 2018, 50:3). Ms. G. testified that she was arrested and brought to the precinct, but she did not know the basis for the arrest. She testified that after being arrested she learned that she was the subject of a family offense petition by the father. She appeared in criminal court in connection with the order of protection and it was dismissed.
On October 31, the police presented Ms. G. with an order of protection filed by the father on behalf of the child against Ms. G. At that time the child was residing in Ms. G.'s house in Great Neck. Ms. G. testified that the order of protection was resolved by Ms. G. consenting to a stay away order. The order of protection required Ms. G. to leave her house or else the child would be "essentially" homeless. (Transcript , April ["Apr."] 11, 2018, 35:20). Ms. G. testified that the order of protection included a carve out for certain specific times when the families would be present so that the child would not be excluded from the holiday celebrations, including Easter.
Ms. G. testified that the only time she called the police on the father was July 4, 2017.
On cross-examination by the father's attorney, Ms. G. testified that after the mother filed an order of protection and was temporarily awarded custody, the mother then brought the child to Ms. G.'s house and enrolled the child in a daycare program in Great Neck. Ms. G. was aware that the Court subsequently ordered the child to be returned to the M.V. residence and ordered the mother to re-enroll the child in the daycare program in Queens. (Transcript , Apr. 11, 2018, 46:10).
Ms. G. testified that the father came to her house on December 16, 2016 to attempt to take the child back to the Middle Village residence as required by Judge X.'s order, but the child was not returned to the father on that day. She testified that she had a car seat for the child, but the mother's son D.G. had the car when the father tried to pick up the child. D. returned that evening, but the mother did not then return the child to the father.
Ms. G. testified that she called the police on the father on July 4, 2017 after an argument with the father. She recalled grabbing plates from the father's hand, closing a kitchen cabinet on him and telling him that he should "not look for troubles" and should go downstairs. (Transcript , Apr. 11, 2018, 58:22).
Ms. G. testified that she had become aware that the father abused the mother mentally and physically before the December 2016 court filings.
Regarding her arrest on July 8, 2017, Ms. G. testified that she went to the Middle Village residence because her sister was crying. When she arrived at the residence Ms. G., the mother and the child fell asleep and they woke up to the police knocking loudly on the door. Ms. G. testified that she stayed in the house even though she was advised by the police that there was an order of protection and that she should leave the house. She was then arrested.
Ms. G. confirmed that the father filed a family offense petition against her in July 2017 and filed a family offense petition against her on behalf of the child in October 2017, and that both these petitions were resolved by Ms. G. consenting to final orders of protection in favor of the child and the father. The final orders of protection against Ms. G. were entered into evidence on consent. (Resp. Exs. I and J).
Ms. G. testified that she has in the past helped the mother by crafting emails or text messages to the father and that she helped the mother write a letter to the father's attorney in the parties' partition action.
On cross-examination by the Attorney for the Child, Ms. G. testified that while the mother was on the phone with the father on December 2, 2016, Ms. G. took the phone away from the mother, told the father that he was "not going to get away with it" and that the mother would be getting an order of protection against him. (Transcript , Apr. 12, 2018, 18:8). Ms. G. confirmed that when she called the police on the father the child witnessed her father be arrested. On re-direct-examination by the mother's attorney, Ms. G. testified that she was in the parties' Middle Village residence on the day in December when the father was arrested and that she sustained a scratch by the father scratching her with a knife, but no blood was drawn. She testified that on that day she observed the father yelling and screaming at the mother to leave the house and that he was going to call the police. She further testified that she observed the father walking around the house with a camera on his head and cameras strapped to his chest.
On re-cross-examination by the father's attorney, Ms. G. testified to authoring a text message that was sent to the father on the mother's behalf, in which she wrote to the father that Judge X. was corrupt, but the father had "wasted his money" because there was a new judge on the case. A copy of the text message was entered into evidence on consent. (Resp. Ex. K). She also testified that, with respect to the father's immunization of the child, she helped the mother write a text message to the father stating that the mother would sue the father and "everybody that [he] talk[s] to" if anything were to happen to the child. (Transcript , Apr. 12, 2018, 62:20). She also wrote a text message on the mother's behalf about going to a grievance court and an Appellate Court with respect to the forensic provider Dr. Marcus.
On re-re-direct by the mother's counsel, Ms. G. testified that she had described Judge X. as "corrupt" because the mother had gone to a court appearance without counsel, at which the Court denied her request for an adjournment to obtain counsel and vacated the order of protection against the father. She testified that the father had told her that "he paid a lot of money for the top attorney firm that has the Judge in the pocket". (Transcript , Apr. 12, 2018, 71:15).
On re-re-cross by the Attorney for the Child, Ms. G. confirmed that on the day Judge X. denied the mother's request for an adjournment to retain counsel, the mother rejected Judge X.'s offer for assigned counsel.
Officers E.L. and G.M. :
The mother subpoenaed two police officers, Officer E.L. and Officer G.M., who testified as the next witnesses on her direct case. Officers L. and M. responded to the father's call on July 3, 2017. The domestic incident report that was prepared by the officers on July 3, 2017, was entered into evidence on consent. (Pet. Ex. 14). Both officers testified that when they arrived at the M.V. residence they observed the father outside the building and the mother inside the building. Officer L. testified that he and his partner determined that no crime had occurred because the mother still resided in the Middle Village residence and therefore could not have burglarized the residence. The officers prepared a domestic incident report and "separated" the parties, directing the father to stay in the basement of the house and the mother to stay upstairs. Both parties complied.
Officer L. testified that approximately two years earlier he had been the responding officer to a reported family assault involving the mother and the father. He could not recall the month of the incident, but he recalled observing the mother having some red marks around her neck which seemed like lacerations. He further testified that he did not document his observations about the marks on the mother. He testified that the father was arrested that day in connection with the incident. He further testified that he was not the arresting officer that day, so he did not delve into the case too much. (Transcript , Apr. 11, 2018, 23:13).
On cross-examination by the father's attorney, Officer L. denied that the mother had advised him that she had sworn under oath that she lived in Great Neck and confirmed that she stated to him that she lived in Queens. On re-direct-examination, Officer L. testified that the mother did not show him any proof that she owned the home and that he had never seen any documents establishing ownership but that he heard from the mother and the father that she had ownership. (Transcript , Apr. 11, 2018, 25:22).
Officer G.M. testified, on cross-examination by the father's attorney, that he did not recall any court order requiring the father to go to the basement of the residence.
T.G.:
The mother testified as the next witness on her direct case. The mother testified that she and her son were both born in Moldova. She testified that D.'s father has not tried to contact her since the last time they spoke, which was when D. was seven or eight years old.
She met the subject father while she was working as a dental assistant and he was receiving a dental treatment. They started dating around December 2005 and started living together around 2007-2008. When the instant litigation started the mother was living in the Middle Village residence.
When the child was born the mother was living in the Middle Village residence with the father and with D. She testified that her relationship with the father declined over time because the father never accepted D. as his child or acted as a father figure for him.
The mother testified that the father and D. once got into a fight and the father stabbed him in the leg with a screwdriver. The mother did not witness the fight but learned about it from the father after the fact. She testified that she and the father then started arguing because the mother does not believe in disciplining a child by hitting or hurting him. (Transcript , Apr. 23, 2018, 7:3).
She testified that D. was diagnosed with a serious kidney condition when he was about six or seven years old, and that the hospital "suspected" it was caused by D. having a reaction to a vaccine. (Transcript , Apr. 23, 2018, 8:21). The child was treated by a pediatric nephrologist and was medicated with steroids. She testified that this occurred at the start of her relationship with the father. She testified she and the father both decided not to vaccinate I. due to D.'s condition and because the father's nephew was autistic, which the father had attributed to vaccines.
The mother testified that when the parties learned that the child needed to be vaccinated to attend preschool, the father tried to figure out a way of getting a certificate so that they could put the child in school without having her vaccinated. She testified that the father paid a couple to obtain a certificate of vaccination from Moldova; that the parties then found a new doctor who accepted the father's health insurance and then submitted the vaccine records to that doctor.
The mother testified that the child started daycare when she was approximately two years old. The mother testified that when the child was in daycare the mother woke up at 5:30 AM to get herself ready, and that she would prepare breakfast for the father, the child and the mother's son D. She testified that she would wake up the child to do her morning hygiene like brushing her teeth and washing her face. She would drop the child to daycare and then take the train to work. Most evenings she would pick up the child from daycare, otherwise the father or occasionally the mother's sister J. or D. would pick her up.
The mother testified that when the child was about two years old the mother started working again as a dental hygienist and that is where she works now. She testified that she has a set work schedule but that she can make her own work hours and can leave early or arrive late if need be.
She testified that when the mother still lived with the father he left for work sometime around 7:00 AM and sometimes arrived home as late as 9:00 PM. She testified that the father didn't do anything in the home and that he only spent time with the child on the weekends. Even then, the father spent the first half of Saturday skyping and communicating with his family before he spent time with the child. She testified that there were times that the father forced the child to eat food and that he would bang his hand on the table and yell at the child to eat faster. If the mother tried to protect the child, the father pushed the mother away and told her not to interfere.
The mother testified that the parties selected the child's daycare together, but the mother did not really like the program when the child started because there was no English spoken because the teachers only spoke Russian.
The mother's family offense petition filed December 2016 was admitted into evidence over objection by the father's counsel. (Pet. Ex. 15). The mother testified that she filed the petition because the father was trying to get rid of the mother. She testified that, as an example, he moved the title of the car from both parties' names into his name only. (Transcript , Apr. 23, 2018, 30:23). She testified that the father threatened to put her into a mental institution and threatened to make her commit suicide. She testified that there were other occasions that he pulled her hair and pushed her on the side. The mother did not have an attorney when she filed the family offense petition. She obtained an order of protection against the father and in favor of her and the child.
The mother and the child then moved into her sister J.'s home in Great Neck and the mother registered the child for a preschool in Great Neck that she felt was most appropriate for the child. The mother paid for the program through the end of the year. The child attended daycare there for one week before the mother next appeared in Family Court. She testified that she appeared before Judge X. without an attorney; that Judge X. denied her request to adjourn the court date to retain counsel, and that the outcome of the appearance was that she was ordered to return the child to the daycare in Queens, the father was granted sole residential custody and both parties were granted joint legal custody of the child.
The mother testified that she believes Judge X. is corrupt because he denied her adjournment request to permit her to choose an attorney "on a very important date" of her life. (Transcript , Apr. 23, 2018, 44:12). She further testified that the father told her he had Judge X. "in his pocket" because the law firm representing him had made a donation to the Judge. (Transcript , Apr. 23, 2018, 44:23). She also testified that on the last court date Judge X. granted the father a "stay-away" order of protection in the child's favor and against the mother's sister J. She testified that the same day in court, Judge X. received a letter from the forensic provider Dr. Marcus in which he stated that "under no circumstances" should the mother and father reside in the same residence. (Transcript , Apr. 23, 2018, 45:18). She testified that the Judge then ruled for the mother to stay away from the Middle Village residence, which essentially made the mother and the child homeless.
The mother testified that she had been residing in her sister J.'s house since December 2, 2016 and that she had attempted to return to the Middle Village residence during the litigation. The mother testified that on December 15, 2016, the same date of the court appearance, the father texted the mother late in the day and said that he would pick up the child the following day. She testified that on December 16, 2016 the father showed up at the sister's house with two or three police cars. She testified that she had gotten both her clothes and the child's clothes ready to move to the Middle Village residence, but the father started yelling that he would not take the mother too; he would only take the child. She testified that the father did not take the child that day because he did not have a car seat.
On December 18, J. drove the mother to the Middle Village residence and they called the police so that the police could escort them into the house. The mother testified that she called the father and that they were waiting outside the house for a very long time. The mother did not want to keep the child in the car for so long, so she tried to get into the house. The lock to the home was changed so she used her keys to the gate and entered the house through the kitchen door. She testified that the father entered the house while she was preparing a bath for the child and the mother met him in the hallway where he grabbed her by the neck and yelled at her to get out of the house. The mother ran outside the house barefoot and without a jacket. The police arrived and they brought the mother back in the house. The police then arrested the father and the mother returned to J.'s house in Great Neck.
The mother plans to live in Great Neck in her own house, which is currently under renovations. The mother's son D. and the child will reside with the mother in her house. The mother testified that if she is awarded custody, the child will attend the Lakeville School in Great Neck. The mother contends that she should be awarded custody of the child because she can offer the child stability and she has the flexibility to change her work schedule to accommodate the child's schedule. The mother testified that she has never had to use the afterhours program at the child's current daycare because of her flexible work schedule and help from her family members.
The mother testified that she has always been the child's primary caretaker, as well as that she has always cooked for her, washed her and prepared her to go to school. She testified that when the child returns to her after being with the father, her clothes are stained, her face has food stains, and it is very difficult to comb her hair. She testified that she has purchased educational books on several subjects including vocabulary and math and that if granted custody she would continue practicing English with the child. The mother testified that she was seeking sole residential custody because she wants the child to have big opportunities and her community offers different activities, including ice skating, tennis and the "best education". (Transcript , June 25, 2018, 36:17). The mother testified that she was seeking sole legal custody because throughout the litigation she had tried to communicate with the father and the father was more concerned about his own interests and his own convenience. (Transcript , June 25, 2018, 37:1). The mother testified that the day prior she had texted the father and asked if they could sign up the child for summer camp and the father responded that she would attend summer camp at her current daycare. She further testified that he offered for the mother to take I. to a summer camp during her parenting time, while he would bring the child to the Queens Creative Discovery daycare during his parenting time. (Transcript , June 25, 2018, 37:13).
On cross-examination by the father's attorney, the mother confirmed that a resident card is required to enter the Great Neck parks. She disputed that she had denied the father's request to use her resident card to enter the parks, but testified that she had not given him the card. A text message from the father to the mother dated June 3, 2017 was entered into evidence. (Resp. Ex. L). The mother confirmed that she never responded to the father's text message requesting that she take the child to the birthday party of a friend from daycare. She acknowledged that there could be other occasions where the mother had failed to respond to the father's efforts to share information with her.
The mother acknowledged that the father had from time to time informed her about the child's medical conditions and acknowledged that the father had decided during the litigation that he wanted the child to be vaccinated. She confirmed that the father had taken the child to a physician for immunizations. On June 8, 2017, the father advised the mother that the daycare was missing the child's vaccination information and that he was going to take the child to the doctor to be vaccinated. (Resp. Ex. L). (Transcript , June 25, 2018, 52:19). The mother denied that she sent that doctor false immunization records from the Republic of Moldova to prevent the father from having the child vaccinated. She testified, however, that she did not want the father to vaccinate the child.
The mother confirmed that she threatened the father with litigation if anything happened to the child because of vaccinations. She confirmed that she had threatened to call the police and tell them that the father was holding the child hostage because there was a disagreement as to when the father's parenting time ended and the father was refusing to drop off the child earlier than 6:00 PM. She then confirmed that the father had texted her that he would let the mother know if he could drop off the child earlier than 6:00 PM.
The mother has been residing in her sister's house in Great Neck since December 2016. The mother obtained an ex-parte order of protection, then moved with the child to her sister's house and enrolled the child into a new daycare program in Great Neck. The mother was subsequently ordered by Judge X. to return the child to Queens and to reenroll the child in the prior daycare program. She was making approximately $ 80,000.00 annually at the time she moved into her sister's house in December of 2016 and her salary has remained approximately the same in the two years since.
The mother acknowledged there was an order of protection in place that required the mother's sister to stay away from the child and confirmed that she continued to live with her sister through the time of the fact-finding notwithstanding that order. The mother denied that she had the ability to rent an apartment in December 2016. She testified that she could not rent an apartment because she was looking for a permanent solution and she could not find anything longer than a one-year sublease and did not want to subject the child to the distress of moving out of an apartment. She denied that she had sufficient funds to move into an apartment but testified that she could not recall the amount of money she had in her bank account in December 2016.
The mother testified that she used to contribute to daycare costs but no longer does. She confirmed that she denied the father's request for her to contribute to the costs.
The mother testified that she accommodated the father's request for additional parenting time to enjoy the Jewish holidays with the child. The father's attorney had requested to switch a weekend in March 2017 so that the father could celebrate a Jewish holiday with the child. The mother testified that she gave permission to switch the weekend but further noted that they did not ultimately switch for the holidays.
The mother confirmed that with respect to the proceeding where she contends Judge X. refused her the right to select her counsel, Judge X. had in fact offered to assign her counsel and she rejected that offer.
The mother confirmed that she has alleged the father has been physically and emotionally abusive to her and that she initiated the underlying proceedings by filing a family offense petition in December 2016. She acknowledged there were no allegations in her family offense petition that the father physically abused her. She testified that she did not include the allegations of physical abuse in the family offense petition because she filled out the petition as best she could and due to everything she was experiencing emotionally she could not include all the allegations in the petition. She testified that it was important to include allegations that he removed her name from the car title because he threatened her that soon she would not need anything. She testified that she "didn't know" if it had been important to include physical abuse allegations in the petition at that time. The mother retained an attorney after filing the December 2, 2016 family offense petition. She confirmed that she never amended the family offense petition to include allegations of physical abuse.
The mother testified that if she were granted custody, the child should be with the non-custodial parent Friday through Sunday and should be with the custodial parent during the week when the child is in school. The mother testified that holidays and school breaks should be divided in alternating years. She testified that having a holiday schedule and school break schedule is beneficial for the child. The mother confirmed that the parenting time order from Judge X. addressed the week and the weekends and did not address holidays and summer breaks. She further confirmed that she refused the proposed holiday and summer parenting schedule sent by the father's attorney.
The mother testified that if she were granted custody, there should be flexibility as to the father's parenting time with the child, including by giving the father an additional hour if needed or permitting the father to drop off the child late, if he were to notify the mother in advance. The mother testified that in the past, the father has not notified the mother that he was going to be late until after he was already late. A text message from the father to the mother dated February 19, 2017, was entered into evidence on consent. (Resp. Ex. S). In the text message the father advised the mother that he was stuck in traffic and would be 25 minutes late. The mother responded that there is no traffic and stated that he must be at the drop off point at 6:00 PM sharp. The mother admitted that she did not know if there was traffic and she did not know what was going on. The father's text message was sent at 5:51 PM, in advance of the 6:00 PM drop off.
The mother confirmed that on one occasion she had threatened to have the father arrested for kidnapping the child. She agreed that she would need to work with the father to co-parent the child and acknowledged that on multiple occasions she told the father not to text her because she felt that he was "harassing" her. The mother confirmed that the father sent her a text message asking her to replace security cameras in the Middle Village residence and the mother responded that the father was harassing her. A text message from the father to the mother in which he requested that the mother use a helmet for the child when the child was ice skating was entered into evidence on consent. (Resp. Ex. U). The mother confirmed that she responded to the father's request about the helmet by telling him to stop making himself relevant and to stop texting her "ridiculous requests". (Resp. Ex. U). The mother stated that she believes the father's request for her to purchase a helmet for ice skating is a "ridiculous request". The mother confirmed that she believes it is in the child's best interest to ice skate without a helmet.
The mother was shown text message communications with the father in which the father offered to give the mother additional time with the child and the mother responded that he must stick to the pick up and drop off order that was in place. Rather than have the father drop the child off an hour later, the mother asked the father to be on time. The mother confirmed that the father never indicated that he could not be on time.
The mother confirmed that she had refused to accommodate the father's request for an additional day of parenting time so that he could take the child on vacation, and that she responded to his request by stating that she had other plans and could not accommodate the request. She responded to his further proposals for alternate parenting time arrangements by stating that she already had plans. The mother testified that if granted custody, she would "try [her] best" to accommodate parenting time requests from the father. (Transcript , August ["Aug."] 23, 2018, 174:1). She recalled only one time during the custody proceedings where she had agreed to switch her parenting time with his to accommodate the father's requests.
The mother testified that the father notified the mother about getting I. vaccinated to attend school "after the fact". (Transcript , Aug. 23, 2018, 177:19). After the father's attorney refreshed her recollection, the mother confirmed that the father had notified her that the daycare was missing information relating to I.'s immunizations. (Transcript , Aug. 23, 2018, 179:15). A text communication between the mother and father was entered into evidence on consent. (Resp. Ex. X). The mother read aloud the father's text message advising her that daycare was missing information relating to the child's immunization and that he was going to call the doctor's office to make an appointment for the child. She maintained that the father did not give her advance notice that he intended to get the child vaccinated. (Transcript , Aug. 23, 2018, 185:3). The mother confirmed that father had advised her and notified her of some of the daughter's ailments during the underlying proceedings and acknowledged that he had advised her of the medications he was giving the child. (Transcript , Aug. 23, 2018, 187:8). The mother could not recall if she had similarly given the father any such information about the child.
The mother testified that she recalled notifying the father that if he did anything to jeopardize I.'s health with respect to immunizations, then she would have him "rot in jail". (Transcript , Aug. 23, 2018, 193:21). She also recalled calling the father an "ignorant moron" about the subject of immunizations. (Transcript , Aug. 23, 2018, 194:2). The mother testified that she called the father an "ignorant moron" and told him that he had some type of mental disorder because she was upset over the situation and that she believed it was appropriate for her to do that. (Transcript , Aug. 23, 2018, 194:11).
On cross-examination by the Attorney for the Child the mother testified that she believed that her plans during the weekends had been more important than the father having some vacation time with the child. She testified that her plans during the three weekends proposed by the father consisted of extra family time one weekend, a friend's birthday party another weekend, and family visiting from Canada the third weekend. The mother testified that she believes the father is a fit parent for I., that the father is a good father and that he is not a threat to the child.
On re-direct-examination by the mother's attorney the mother read from her family offense petition dated December 2, 2016. She stated that the allegations in her family offense petition included that she suffered psychological, emotional and mental abuse. (Transcript , Aug. 23, 2018, 211:19). The mother testified that she previously paid for I.'s daycare, from the time that the child started daycare, until the mother left the Middle Village residence in December 2016. She further testified that because the child had been taking ice skating lessons for six months, the father's request for her to wear a helmet was "unreasonable", but if the father had requested that the child wear a helmet while riding a bicycle, then that request would be "reasonable". (Transcript , Aug. 23, 2018, 220:2).
On re-cross-examination by the father's attorney, the mother confirmed that the father had permitted the mother to take the child during his parenting time so that the child could spend time with D. for his birthday. She also confirmed that she did not respond to requests from the father that during her parenting time she take the child to the birthday party for the child's friend from the child's daycare. She also failed to respond to the father's request that she take the child to an event celebrating the end of the summer daycare program. She confirmed that in June 2017 the father asked the mother to take the child to a gala event for the child's gymnastics class and that she did not recall responding to his request. She agreed that part of co-parenting with the father is communicating about the child's events but then admitted that she did not communicate with him and ignored his efforts to communicate. She acknowledged that the child might have wanted to go to the events.
Text message communications between the parties were entered into evidence (Resp. Exs. AG and AH) and the mother acknowledged that when the father offered the mother an additional hour of parenting time, she responded that the court-ordered parenting schedule needed to be followed. She testified that if granted custody she would act differently than she acted throughout this litigation.
On re-re-direct-examination by the mother's attorney, the mother testified that there were times that the father denied the mother's request for additional parenting time, including to attend two birthday parties in Great Neck in October 2018. The father told the mother that he did not want to modify the arrangement from the court order. The mother further testified that under the current parenting time schedule, the mother has no weekend parenting time and the father has denied the mother's request for weekend parenting time.
The mother confirmed that she called the father an idiot when he wanted to vaccinate the child while the child was sick, as the child's immunity was low so it wouldn't be right for her to be vaccinated.
The mother testified that her behavior during this litigation was caused by her being upset about what was going on in the litigation and that she probably acted based on those circumstances. She testified that in the future she would be a better co-parent and would not bad-mouth the father. She would try to understand and put herself in the same position as him and try to put the child's best interests first.
On re-re-cross-examination by the father's attorney, the mother confirmed that the father had permitted the child to attend Great Neck parties on his parenting days. The mother denied prioritizing her being upset over the child's best interests.
On re-re-cross-examination by the Attorney for the Child, the mother testified that she has acted certain ways in the past and that she would hopefully act differently in the future. She testified that one of the things that happened was that she was made to leave her house.
On re-re-re-direct-examination by the mother's attorney, the mother testified that there were two instances where the father did not give her additional parenting time and that since the Court's October 2018 parenting time order, the father has not given the mother any weekend parenting time with the child.
SUMMARY OF TESTIMONY: FATHER'S CASE
V. Z.:
The father testified as the first witness on his direct case. He testified that he had recently offered to give the mother weekend parenting time in exchange for her agreeing to bring the child to extracurricular activities including dance and swimming. He further testified that the mother had denied his request for a Great Neck resident card to enter the parks, and that was problematic for him.
The father also testified that he did a lot of activities with the child, including building Legos and doing puzzles, to prepare the child for applying to the Queens Gifted and Talented Schools program. He brought the child to the test in January 2018. He spent two weeks going to the schools, asking questions and looking at schools, and then he applied to certain schools for the child. The father testified that he had been authorized under a court order to enroll the child in school when he did.
He testified that if he were granted residential custody, he would do everything possible to get the child re-enrolled in the Gifted and Talented Schools program. His plan would be for the child to attend the afterschool program for a few hours and the mother would have parenting time with child after school two days per week, through 6:00 PM. On the other school days, the nanny would stay with the child following the afterschool program through the father's return home at 6:00 PM. On Fridays the father would pick up the child directly from school as he works from home. The parents would alternate weekends with the child and the mother would facilitate the child participating in her weekend activities even during her weekend parenting time.
The father testified that in the years before the mother left the Middle Village residence the parties split the daycare costs and that the mother has not paid for daycare since she left the home. On inquiry from the Court, the father testified that the interim parenting time schedule ordered by this Court was "OK" to keep if there's "nothing better".
The father testified that he had videos of the mother exercising poor parental judgment, consisting of video clips of the mother, and video clips of the mother and her sister J. The video clips were not placed into evidence.
On cross-examination by the mother's attorney, the father testified that he believes it would be better for the child to be with the nanny after school than to be with the mother, who is available.
He testified that he found the child's nanny before the start of the Great Neck school year. He testified that he vetted the nanny by interviewing her, taking her driver's license, and visiting her apartment, which he found to be "very nice". He testified that he did not consult the mother in interviewing the nanny and he did not conduct a background check, but he offered to have the mother conduct one.
The father confirmed that the mother left the Middle Village residence, obtained a temporary custody order, moved in with her sister in Great Neck, and then enrolled the child in a daycare program in Great Neck. He did not pay for the Great Neck daycare program, nor did he pay for any activities the mother had enrolled the child in after she moved out, including ice skating and swimming. He confirmed that he earns a higher income than the mother and that he lives in the Middle Village residence that is co-owned by the mother.
The father acknowledged that he has used questionable language to the child, including an incident when the child was three years old and the father told the child to tell the mother to bathe her bottom.
On cross-examination by the Attorney for the Child, the father testified that he has enrolled the child in gymnastics and dance in Queens and has also enrolled her in afterschool activities in Great Neck as well. He testified that when the parties still resided in the Middle Village residence as an intact family, the parties had jointly enrolled the child in dance and gymnastics class.
On re-redirect-examination of the father by the father's attorney, the father testified that the mother did not consult with the father before enrolling the child in extracurricular activities in Great Neck, while the Queens extracurricular activities that the child was in enrolled in -- dance and gymnastics -- were the same ones the parties had jointly agreed to.
He testified that the mother had previously interfered with the father hiring someone to take the child to gymnastics. A woman whose child was in the same daycare program had agreed to take the child to gymnastics class, but then the mother called and said that she was not to do that anymore. The mother's interference caused an interruption in this woman driving the child to gymnastics.
The father testified that he provided the mother with the nanny's driver license information and eventually her telephone number and that the mother was free to do investigation of her.
On re-cross-examination by the mother's attorney, the father testified that when the family was intact, he took the child to the activities most of the time. Dance was on Saturdays, gymnastics was on Sundays. The father testified that after the mother left the Middle Village residence, he also signed the child up for weekday gymnastics classes.
J.B.:
The father's second witness on his direct case was J.B., who cooks and prepares food for the child. Ms. B. testified that she has had an opportunity to observe the father with the child twice a week over the last two years. She testified that the child always comes well-dressed and clean.
On cross-examination by the mother's attorney, Ms. B. testified that she does not know the father in any capacity outside of her cooking for him. She testified that the father comes to her home after work, which is sometimes around 7:00 PM or 8:00 PM. If they arrive at 8:00 PM, the father takes the food and leaves immediately. She testified that in the previous week she cooked 6 or 7 meals for the father and child, consisting of two soups, cheese blintzes, chicken cutlets, two kashas, buckwheat, rice and gefilte fish.
M.S.:
The father's next two witnesses were from ACS. The first witness was M.S., a child protective specialist for ACS who conducted several unannounced home visits to assess the condition of the father's home and determined that the home was free of clutter, there was a bed for the child, and was free from any health or safety hazards. Ms. S. observed the interactions between the father and child and determined that the child was not fearful of the father, appeared happy and was appropriately dressed. She further testified that she was never able to corroborate the mother's statements regarding the father verbally abusing the child or keeping the home in an inappropriate condition and she confirmed that the opposite was true- the home was kept in a clean condition.
N.M.:
The second ACS worker who testified, N.M., testified that on an initial home visit to the Middle Village residence the toilets were dirty and the food in the refrigerator appeared to be less than fresh. The father had told her that he did not have much knowledge about cooking food and Ms. M. informed him that he should be conscientious about the freshness of food that is fed to the child. She testified that she met with the father twice in addition to their initial meeting, and that on her second home visit, Ms. M. observed that the food smelled "fine" and the toilets were clean.
Dr. Paul Marcus, Ph.D.:
The father's next witness was the forensic provider, Dr. Paul Marcus, Ph.D. Dr. Marcus was appointed as the forensic provider pursuant to Court Order by Judge X. dated March 21, 2017. Dr. Marcus's forensic evaluation was entered into evidence over objection by the mother's attorney. (Resp. Ex. AO).
Dr. Marcus testified that his "basic conclusion" was that both parties were "fairly adequate parents". Dr. Marcus further testified that the mother tended to demonize the father and make extreme allegations against him, while the father was more modulated. He testified that the father also had misgivings about the mother but was more willing to share parenting time with the mother. Dr. Marcus characterized the sister J. as a "major factor" in the mother's problems with the father.
Dr. Marcus testified that because the mother is prone to demonize the father and make far-fetched allegations against him, she would not effectively foster the father's relationship with the child. He testified that the mother "infantilized" the child and doted over her in a very anxious way. Dr. Marcus was most unsettled by the mother's attitude toward the father.
On cross-examination by the mother's attorney, Dr. Marcus denied being involved in a "Father's Rights" movement. He was once interviewed in a newspaper and misquoted as being "pro-father". He testified that he has no bias toward either fathers or mothers and has no vested interest in either individual beyond the forensic evaluation.
Dr. Marcus testified that in characterizing the mother as "demonizing" the father and the father as having "misgivings" about the mother, he relied in part upon transcripts from proceedings before Judge X., and he possibly received the transcripts from the father or the father's attorney. (Transcript , November ["Nov."] 15, 94:25). He did not recall writing a letter to Judge X. in 2017 ahead of submitting the forensic evaluation.
He testified that the mother was a "just adequate" parent based on the mother still allowing the child to sleep in her bed when the child was nearly five years old and having put it into context with what the mother did with her son D., which was continuing to dress him at nine years old and bringing the child breakfast at twelve years old. (Transcript , Nov. 15, 100:23). He testified that the son nearly dying when he was about ten years old was not pertinent to his conclusions about the mother.
The doctor testified that the mother's son D. has a good relationship with the child and that the father "overstated" the problems of that relationship. (Transcript , Nov. 15, 2018, 103:23). He testified that he did not know that a CPS indication against the mother cited to in his evaluation was subsequently "unfounded", but that outcome would not significantly change his conclusions.
He testified that he characterized the mother as a "foolish fanatic" in his forensic evaluation based on the mother making statements that were so extreme that they were foolish. (Transcript , Nov. 15, 2018, 140:13). Dr. Marcus testified that the mother's view of the father was "100% negative". However, at the same time she stated that he loved the child. Dr. Marcus agreed that the mother's statement that the father "loves" the child but can't take care of the child does not alone give rise to the conclusion that she is a "foolish fanatic" but it is an example of her bifurcated thinking. He testified that to say on the one hand (as the mother did) that the father is a "great father", but then, on the other hand, to say that he can't take care of the child's day to day needs, is to make irreconcilable statements. (Transcript , Nov. 15, 2018, 141:22).
Dr. Marcus testified that he is not presently on the Second Department panel of forensic evaluators and denied that his removal related to billing practices. He testified that it was a "good thing" that the mother had purchased her own home and was living separately from her sister J. (Transcript , Nov. 15, 2018, 156:14).
Dr. Marcus's report contrasts the characterization of the mother as presenting at times as a "foolish fanatic" with that of the father, who Dr. Marcus states did not trash the mother but instead noted her limitations and he at least seemed willing and able to evaluate his own role and made efforts to self-correct.
IN-CAMERA EXAMINATION
An in-camera-examination of the child was conducted. The Court will not reveal the substance of the interview with the child other than to state that the Court has considered the child's testimony and has given such the appropriate weight in reaching its decision.
WRITTEN SUMMATIONS
The mother submitted her written summation, pro se . She argues primarily that she was treated unfairly by Judge X., and that she is entitled to sole legal and sole residential custody of the child. She argues that while her daughter needs both parents in her life, the father is incapable of co-parenting and that the child would benefit from being with the mother and her mother's family from Sunday evening through Friday evening, and with her father 3 weekends a month, from Friday evening through Sunday evening.
The father argues through counsel that the father has demonstrated his ability to prioritize the child's interest ahead of his own and that the mother has a demonstrated pattern of refusing to co-parent with the father. The father's counsel further argues that the evidence demonstrates that both parents are capable of caring for the child and the mother is the parent less likely to foster the child's relationship with the non-custodial parent. Accordingly, the father's counsel argues that the father should be awarded sole legal and sole residential custody of the child.
The Attorney for the Child argues that the testimony and evidence demonstrates the mother's inability and/or unwillingness to co-parent with the father and that she has, on multiple occasions, interfered with the father's parenting time. The mother argues that the father should be granted sole residential and sole legal custody of the child, with a liberal parenting time schedule for the mother.
DISCUSSION
In this initial custody determination, this Court must "consider what arrangement is in the best interests of the child under the totality of the circumstances". (Matter of Goodman v. Jones , 146 AD3d 884, 885 [2d Dept. 2017] ; see also Monasterska v. Burns , 121 AD3d 903 [2d Dept. 2014] ; Eschbach v. Eschbach , 56 NY2d 167, 171 [1982] ). In determining the child's best interests, the court should consider a number of factors, including the relative fitness of the parents, the quality of the respective home environments, the quality of parental guidance, the ability of each parent to provide for the child's emotional and intellectual development, and the effect an award of custody to one parent might have on the child's relationship with the other parent" ( Matter of Goodman , supra , 146 AD3d at 885 ; Quinones v. Quinones , 139 AD3d 1072 [2d Dept. 2016] ).
The Court notes that the issuance of an interim order awarding one parent custody may be another factor considered in making an initial custody determination. ( McDonald v. McDonald , 122 AD3d 911, 912 [2d Dept. 2014] ). In this case, however, the Court considers the existence of the interim order temporarily awarding the father sole legal and sole residential custody of the child, rendered by another Family Court judge without any hearing, to be a relatively inconsequential factor compared with those factors borne out during the full evidentiary fact-finding hearing.
Indeed, this Court first became acquainted with these parties at the start of what turned out to be an extensive and lengthy fact-finding hearing, at which point the parties already had extensive litigation history arising from their cross-filing of family offense petitions before Judge X. It is apparent from the fact-finding hearing's testimonial and evidentiary record that both parties are guilty of advancing their own selfish agendas at the cost of causing their only child, who has only recently turned six years old, to bear witness to her parent's respective efforts to degrade, demoralize and gain revenge upon each other. The parties' conduct to this point causes this Court concern over their ability to successfully parent the child if both parents do not immediately and drastically change the way they communicate and behave towards each other. Unfortunately, it is evident to this Court that both parents are either ignorant to or are in denial of the truth that their beloved child is the person who will suffer the most because of their efforts to cause pain and anguish to the other parent. That the parents continue to engage in such a destructive course of conduct is particularly bewildering to this Court considering both parents' credible testimony that they love and care for and about their daughter.
Over the course of the fact-finding the Court had the opportunity to observe and assess the witnesses' demeanor and credibility, as well as to evaluate and consider the evidence presented, including the testimony offered and the exhibits received. The Court was repeatedly required to instruct both parties (and several of the parties' witnesses) on proper courtroom etiquette and conduct. Both parties lacked the ability to respond to questions in a cogent manner and both suffered from an apparent compulsion to respond to questions with colloquies of extraneous and irrelevant information.
Overall, the Court finds that factor of "relative fitness" as a parent weighs equally in both parents' favor. While the Court finds no reason to doubt the mother's testimony that before the underlying litigation she was the child's primary caretaker and was primarily responsible for feeding and bathing her, the Court further finds that the mother failed to introduce any competent evidence demonstrating that the father is not equally fit to take care of the child. The Court finds that the testimony from the mother and her sister J. about the father's alleged physical abuse of the mother was incredible, as was testimony from the mother's son D. that the father "beat" D. on a weekly basis. Moreover, if D.'s testimony was true, and the mother knew that the father was regularly "beating" D. to such extent as to occasionally leave bruises but took no substantive action beyond "arguing" with the father, then such conduct on the mother's part calls into question her parental judgment as far as protecting her child's safety and welfare.
Rather than find that the father is "less fit" to parent the child, the evidence demonstrates that the child is clean, healthy and relatively well-fed while in the father's care. The Court is not troubled by the fact that the father, like many fulltime working parents, relies on a third party to prepare food for the child. The evidence further demonstrates that both parties love and nurture the child and desire to promote the child's intellectual and physical well-being, including by encouraging the child's involvement in extracurricular activities such as ice skating and swimming and working on the child's English language skills. Overall, the Court finds that the evidence does not indicate that one parent is superior to the other as to their "relative fitness" as a parent.
Regarding the quality of the parties' respective home environments, while the mother testified that the child is returned to her with stained clothes and her face stained with food stains, the Court finds that the mother failed to present any credible evidence that such is true and that the father's home environment is insufficient or improper to raise the child. (contrast , Matter of Palmatier v. Carman , 125 AD3d 1139 [3d Dept. 2015] [the record reflects that the living conditions in the mother's home were such that the child was residing in a filthy, dilapidated trailer overrun with multiple animals and covered in animal feces and infested with flies and cockroaches]; Matter of Eunice G. v. Michael G. , 85 AD3d 1339 [3d Dept. 2011] [testimony at trial demonstrated that the child regularly returned from visits with her father with dirty, greasy hair, dirty clothing, bad breath, an odor of urine and sometimes feces, and sometimes stains in her underwear, and was returned to the mother's residence with head lice on more than one occasion] ).
The mother currently lives in her sister's home, where the mother's son D., her niece, and her parents also reside. The mother has testified, however, that she will be moving into a house in Great Neck that is currently under renovations. The mother provided no evidence as to what the quality of the home environment will be in that future house. However, the mother credibly testified to having a strong family support network, which support will presumably continue once she lives in a different house but in the same geographical area. Overall the Court finds that the quality of home environments factor does not weigh significantly in either parent's favor.
The Court finds that both parties have exhibited behavior that calls into question their ability to provide parental guidance for the child's emotional and intellectual development. Both parties at different times have displayed a disregard for complying with court orders, including when the father inexplicably took the child on vacation out of New York state, in contravention of a court order prohibiting either parent from removing the child from the state, and the mother's failure to immediately return the child to the Middle Village residence in December 2016.
However, the Court finds that, overall, the mother's behavior indicates that she is less capable of developing the child emotionally and intellectually. First, the Court is troubled by the mother's baffling decision to continue involving her sister J. in the mother's contentious and antagonistic disputes with the father, including by permitting the sister to write text messages to the father under the guise of coming from the mother, and by permitting or requesting that the sister accompany her to the Middle Village, when the sister's presence was guaranteed to exacerbate any potential conflict with the father. The Court also finds that the mother exercised poor parental judgment when she, upon receiving an ex-parte temporary custody order, immediately enrolled the child in a different daycare program, rather than maintain some stability in the child's life by keeping the child in the same daycare program that the mother admitted both parents had jointly selected.
The Court is further troubled by the testimony and evidence demonstrating that on more than one occasion the Mother refused to respond to the father's text messages relating to the child, including the father's attempts to inform the mother about certain extracurricular activities that could be beneficial for the child, including birthday parties and recitals. The mother admitted to there being possible additional occasions where she had ignored the father's efforts to share important information with her. Moreover, the testimony and evidence further demonstrate that on multiple occasions the mother responded in an overly aggressive manner to a relatively neutral text communication from the father and that she overreacted on other occasions as well, including when she rejected the father's request that the child use an ice-skating helmet as a "ridiculous request", instead of considering the safety implications of the request. Likewise, the mother overreacted when she threatened to report to the police that the father was holding the child hostage in a disagreement between the parties about what time the father should drop off the child. There was no testimony whatsoever that the father refused to return the child, rather the evidence established that the father intended to inform the mother if he was able to drop of the child earlier.
The testimony and evidence were somewhat unclear as to each parent's role in delaying or preventing the child from being vaccinated, but the Court finds that the mother again displayed an inability to think and behave rationally relating to the topic of vaccines. Rather than engage in any semblance of a reasonable discussion or debate over vaccinations, the mother admitted to threatening to sue the father and have him "rot" in jail to dissuade him from vaccinating the child.
The Court notes that the father has also exhibited questionable parental judgment, including by his apparent withholding information and documents from the mother that she needed to obtain a mortgage on a new home so that she could presumably move out of her sister's home, and his inexplicable conduct in changing the locks to the house once the mother moved out of the home that they own together. Such conduct evidenced the father putting his selfish needs ahead of cooperating with the mother and thus ahead of his child's interests. Overall, however, the evidence demonstrates that the father is the parent who is more likely to provide better guidance for the child's emotional and intellectual development.
Regarding the effect that an award of custody to one parent might have on the child's relationship with the other parent, the Court finds that both parties have, at times, acted in ways that cause the Court concern as to their ability to foster and facilitate the child's relationship with the other parent. As mentioned above, the Court is troubled by both parties' apparent willingness to embarrass and gain revenge upon the other parent by having him or her arrested, even at the cost of subjecting their child to the trauma of witnessing such arrest. The Court is likewise troubled by both parties' tendencies to resort to assistance from third parties over trying to amicably co-parent with each other. The mother's reliance on her sister J. proved on numerous occasions to exacerbate the mother's disputes and disagreements with the father. The father, in turn, admitted that he would prefer to rely on third parties to transport the child to and from school and extracurricular activities, when the mother credibly testified that she has a flexible work schedule and is ready, willing and able to take care of the child when the father is at work.
However, overall, the Court finds that the father has demonstrated greater flexibility and willingness to work with the mother when it comes to agreeing upon parenting time arrangements. The Court notes the testimony from both parties that the mother has outright rejected past attempts from the father to agree upon alternate parenting time arrangements, including holiday and summer time parenting schedules, which parenting time the mother acknowledged on cross-examination is beneficial for the child. The Court is also troubled by the evidence that when the father made numerous requests that the mother swap parenting time to permit him to take a vacation with the child, the mother rejected each request by responding that she had already made plans for each of the proposed alternate weekends. The Court finds the mother's proclaimed desire to rigidly adhere to court-ordered parenting time schedules particularly problematic given her demonstrated disregard for other aspects of court orders, including the directive that the child be immediately returned to the Middle Village residence. In total, the Court finds that the father is more likely to successfully foster a relationship between the child and the mother as the non-custodial parent. (Matter of Edwards v. Edwards , 161 AD3d 979 [2d Dept. 2018] ("The record demonstrates that the mother interfered with the relationship between the father and the children in a manner inconsistent with the best interests of the children, and also demonstrates that the father is more likely than the mother to foster a relationship between the children and the noncustodial parent") ].
The Court has considered Dr. Marcus's forensic evaluation and testimony at the fact-finding hearing and has given appropriate weight to the same in reaching its final determination but has not deferred any portion of its decision-making role to the forensic evaluator, noting that the opinions of court-appointed experts, while entitled to some weight, "are not determinative" and "do not usurp" this Court's judgment. ( Nikolic v. Ingrassia , 47 AD3d 819, 821 [2d Dept. 2008] ). In considering such, the Court has taken into account the fact that Dr. Marcus is no longer on the panel of approved forensic providers, his testimony which favored the father, and the allegations that Dr. Marcus's office refused to provide the mother's attorney with certain collateral documents and data.
In this case, having weighed the factors relevant to an initial custody determination, and based on this Court's assessment of the witnesses' credibility and demeanor at trial, and its evaluation of the testimony and evidence received, the Court finds that, under the totality of the circumstances, the father is the parent better able to provide for the child's emotional and intellectual guidance, is the parent who, on the whole, has acted with superior parental judgment, and is the parent more likely to foster and facilitate a meaningful relationship with the mother as noncustodial parent. Under all of the circumstances presented here, it is in the child's best interest for the father to have sole legal and sole residential custody of the child, with substantial and significant regular parenting time to the mother. ( Eschbach , supra , 56 NY2d at 174 ). The mother is therefore required to consult with the father on all medical, health, welfare and educational decisions relating to the child while the child is in her care, and the father shall have sole decision-making authority on all medical, health, welfare and educational decisions. However, while the father shall ultimately have sole decision-making authority, he shall first consult with the mother before making any major medical, health, welfare and educational decisions.
The Court has searched the statewide registry of orders of protection, the sex offender registry and the Family Courts' warrant and child protective records and has considered and relied upon the above noted results of these searches in making its decision.
Accordingly, it is hereby
ORDERED, petition for custody filed by the mother, T.G., under docket number V-12287-16 is hereby DENIED in its entirety and the mother's petition is DISMISSED; and it is further,
ORDERED , that the petition for custody filed by the father, V.Z., under docket number V-12244-16, is hereby GRANTED, and the father shall have sole residential custody of the child, I.Z. (D.O.B. 02/05/2013) and shall have sole legal custody of the child; and it is further
ORDERED, that the father shall have sole decision-making authority on all medical, health, welfare and educational decisions. However, while the father shall ultimately have sole decision-making authority, he shall first consult with the mother before making any major medical, health, welfare and educational decisions; and it is further
ORDERED , that any outstanding temporary orders that have been issued under Docket Numbers V-12287-16 and V-12244-16, including the temporary orders of protection dated August 24, 2018 and issued against the father under Docket Number V-12287-16, and against the mother under Docket Number V-12244-16, are hereby vacated; and it is further,
ORDERED, that commencing Friday, February 8, 2019, the mother shall have parenting time with the child on alternating weekends, from Friday at the conclusion of school, through Sunday at 6:00 PM; and it is further
ORDERED , that for the mother's alternate weekend parenting time described above, the mother shall be responsible for picking up the child from pre-school, daycare or school at the commencement of said weekend parenting time, and at the conclusion of her alternate weekend parenting time shall be responsible for transporting the child to the children's play area at the Xxxxxxx Xxxx in Douglaston on Northern Boulevard ("Xxxxxx Xxxx"), where the father will pick up the child at 6:00 PM on Sunday; and it is further
ORDERED , that the mother shall have weekly dinner visits with the child from the conclusion of school until 7:30 PM on every Wednesday, with her returning the child at 7:30 PM to Xxxxxx Xxxx, and it is further
ORDERED , that if the father intends to leave the child with a third-party child care provider for a period of three (3) hours or greater, which three-hour period shall include any traveling time, the mother shall have the right of first refusal to care for the child during that absence; and it is further
ORDERED , that the parents shall adhere to the following secular holiday parenting time schedule, which shall supersede the regular weekly parenting time schedule and the alternate weekend parenting schedule:
• On President's Day from 9:00 AM until 8:00 PM, the father shall have the child for parenting time in even years, the mother shall have the child in odd years;
• On Memorial Day from 9:00AM until 8:00 PM, the father shall have the child for parenting time in even years, the mother shall have the child in odd years;
• On July 4th from 9:00AM until 8:00 PM, the father shall have the child for parenting time in odd years, the mother shall have the child in even years;
• On Labor Day from 9:00 AM until 8:00 PM, the father shall have the child for parenting time in even years, the mother shall have the child in odd years;
• On Thanksgiving Day from 9:00 AM until 8:00 PM, the father shall have the child for parenting time in odd years, the mother shall have the child for parenting time in even years;
• On New Year's Eve Day starting at 12:00 Noon on December 31st to New Year's Day at 12:00 Noon on January 1st, the father shall have the child for parenting time in odd years, the mother shall have the child for parenting time in even years, with "odd" and "even" being measured by the year in which New Year's Eve Day falls; with
• All of the above pickups and drop offs shall occur at Xxxxxx Xxxx; and it is further
ORDERED, that when the child is attending school, the parents shall have parenting time with the child for the Christmas/New Year's Eve school recess period as follows: beginning December 26th at 9:00 AM until December 28th at 8:00 PM, the father shall have the child for parenting time in even years and the mother shall have the child for parenting time in odd years, and beginning at December 28th at 8:00 PM until December 31st at 12:00 Noon, the father shall have the child for parenting time in odd years and the mother shall have the child for parenting time in even years. Such Christmas-New Year's recess parenting time shall supersede the parties' regular weekly parenting time schedule and alternate weekend parenting time schedule; and it is further,
ORDERED, that the parents shall have parenting time with the child in the Winter and Spring recess periods, as follows: for the Winter recess (typically in February), the father shall have the child for parenting time in even years and the mother shall have the child for parenting time in odd years; for the Spring recess, the father shall have the child in odd years and the mother shall have the child in even years. Such school recess parenting time shall not interfere with the other parent's alternate weekend parenting time but shall supersede the regular weekly parenting time schedule. The school recess parenting time shall commence at 10:00 AM the first weekday that school is closed to the beginning of the other parent's alternate weekend, or, if the parent who has the child for the school recess parenting time also has alternate weekend parenting time that immediately follows the recess period, then until the end of the parent's alternate weekend parenting time; and it is further,
ORDERED , that the parties shall adhere to the following parenting time arrangement with respect to religious holidays, and that such religious holiday parenting time shall supersede the parties' regular weekly parenting time, alternate weekend parenting time and the winter, spring and Christmas/New Year's school recess parenting time schedules and that, unless indicated otherwise below, such religious holiday parenting time shall begin on the eve of the holiday, four (4) hours before the holiday begins, and shall end three (3) hours after the holiday is over, or as otherwise agreed to by the parties in future writing:
• The mother shall have the right of first refusal to parenting time with the child on the following Christian holidays:
• Good Friday;
• Easter Sunday;
• Christmas Eve/Christmas Day from December 24th at 9:00 AM through December 26th at 9:00 AM;
• The father shall have the right of first refusal to parenting time with the child on the following Jewish holidays:
• Rosh Hashanah (2 days); Yom Kippur; Purim; and Shavuot;
• Sukkot- the father shall have the right of first refusal to the first 4 days of the holiday in odd years and shall have the right of first refusal to the last 5 days of the holiday in even years;
• Chanukah- the father shall have the right of first refusal for the first 3 nights in even years and shall have the right of first refusal to the remaining nights in odd years;
• Passover- the father shall have the right of first refusal to the first evening and the first 4 days of the holiday in even years and for the first evening and the following 3 days in odd years if such does not conflict with Easter; and it is further,
ORDERED, that each party shall be entitled to one uninterrupted seven (7) day week in July and one uninterrupted seven (7) day week in August for uninterrupted summer parenting time with the child. In odd years the mother shall be entitled to select her uninterrupted summer parenting time weeks first, and shall provide the father with written email notice and text message notice of her selected weeks no later than May 1 of the same calendar year preceding that summer; the father shall then provide the mother with written email notice and text message notice of his selected weeks no later than May 15 of that same calendar year; in even years the father shall be entitled to select his uninterrupted summer parenting time weeks first and shall provide the mother with written email notice and text message notice of his selected weeks no later than May 1 of the same calendar year preceding the summer; the mother shall then provide the father with written email notice and text message notice of her selected weeks no later than May 15 of that same calendar year. The foregoing two (2) week summer parenting time shall supersede the mother's regular weekly parenting time and the parties' alternate weekend parenting time described above; and it is further
ORDERED , that if the mother's regular weekly parenting time or alternate weekend parenting time does not fall on any of the following occasions, then the mother shall be entitled to at least three (3) hours of parenting time on the mother's birthday and shall be entitled to parenting time from 9:00 AM to 8:00 PM on Mother's Day; and it is further
ORDERED , that if the mother's regular weekly parenting time or alternate weekend parenting time falls on any of the following occasions, then the father shall be entitled to at least three (3) hours of parenting time on the father's birthday and shall be entitled to parenting time from 9:00 AM to 8:00 PM on Father's Day; and it is further
ORDERED , that the mother and the father shall each be entitled to a portion of the child's birthday and Halloween as follows: if the child's birthday and/or Halloween falls on a weekend, then the parent who does not have parenting time on that day shall have three (3) uninterrupted hours of parenting time with the child; if the child's birthday and/or Halloween falls on a weekday, including a weekday when the mother would ordinarily have a dinner visit with the child, then on that day the mother shall exercise parenting time from the end of school until 6:30 PM or until the time that the father gets out of work, whichever is later; and it is further
ORDERED , that the mother shall be entitled to complete, detailed information and reports from all medical personnel, teachers and education personnel and others providing care for the child, and the father, as soon as practicable, shall notify the mother of any and all doctors' appointments, medical treatments, teacher conferences or counseling sessions or meetings involving the child and the mother shall have the right to be in attendance; and it is further,
ORDERED , that the mother is entitled to attend any public events in which the child is involved in, including, but not limited to, sporting events, plays, recitals or any such extracurricular activities; and it is further,
ORDERED , that the father shall avoid enrolling the child in any extracurricular activities that take place during the mother's regular weekly parenting time, and if such scheduling cannot be avoided, then the mother shall be entitled to "make-up" parenting time on a different weekday night as agreed to between the parties in a future writing; and it is further,
ORDERED , that the mother shall take the child to all school-related extra-curricular activities that occur during her weekends; and it is further,
ORDERED , that each party shall notify the other if the child is to be away from their respective residence for more than one (1) overnight and shall provide the other with the location, complete itinerary information with respect to travel and the telephone number at which the child may be reached; and it is further,
ORDERED , that each party shall allow the other party to have reasonable daily telephone and computer contact with the child when the child is in their respective care; and it is further,
ORDERED, that the parties shall not communicate with each other except in writing by email or text and that such communications shall be limited to discussing the child's health, welfare, safety and well-being as well as other parenting issues, including scheduling parenting time; and it is further,
ORDERED , that unless specifically noted herein, all pick ups and drop offs shall occur at Xxxxxx Xxxx; and it is further,
ORDERED, that any other relief requested that is not addressed herein is deemed denied; and
ORDERED , that there shall be such other parenting time as agreed to between the parties in a future writing.