Nathan B. v Inbar B.

[*1] Nathan B. v Inbar B. 2005 NY Slip Op 51195(U) Decided on May 26, 2005 Supreme Court, Kings County Ambrosio, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 26, 2005
Supreme Court, Kings County

Nathan B., Plaintiff,

against

Inbar B., Defendant.



48288-2000



Mark M. Holtzer, Esq.

Attorney for Plaintiff

Snitow Kanfer Holter & Millus, LLP

575 Lexington Avenue

New York, New York 10022

Robert D. Arenstein, Esq.

Attorney for Defendant

295 Madison Avenue

New York, New York 10017

Elizabeth J. Fee, Esq.

Law Guardian

26 Court Street, Suite 2503

Brooklyn, New York 11242

Michael A. Ambrosio, J.

This case raises the issue of custody of the children CB, age 11 and SB, age 10. CB and SB are the children of the parties who married in August 21, 1991 and separated in August 2000.

Inbar B, the defendant-mother, commenced this post-judgment proceeding for custody of the children contending that she is entitled to custody pursuant to a separation agreement executed by the parties on September 21, 2000. She further claims that Nathan B, the plaintiff-father, is an unfit parent who has engaged in a conspiracy to eliminate her as a parent of the children.

The court conducted a trial on the best interest of the children (see, Friderwitzer v Friderwitzer, 55 NY2d 89; Eschbach v Eschbach, 56 NY2d 167). The trial was held before this court on November 3, 4, 10 and 16, 2004; December 15 and 16, 2004; January 14, 2005; February 3, 8 and 15, 2005 and March 1, 2005. In addition to the parties and nine other witnesses called by the parties, the court heard from Paul Hymowitz, PhD, a licensed psychologist who performed a forensic evaluation of the parties and the children. The court conducted an in camera interview of the two children in the presence of their law guardian on March 11, 2005. The record of this interview was ordered sealed except for purposes of appellate review. Written summations from counsel were received on March 31, 2005. The court has had a full opportunity to consider the [*2]evidence presented with respect to the issues in this proceeding, including the testimony offered and the exhibits received. The court has further had an opportunity to observe the demeanor of the various witnesses called to testify and has made determinations on issues of credibility with regard to these witnesses. The court now makes the following findings of fact and conclusions of law:

A. FINDINGS OF FACT

The parties were married in 1991. The marriage was a troubled one marked by mistrust. When plaintiff-father accepted a teaching position in Rhode Island, the defendant-mother accused him of having an affair. The parties reunited and moved to Israel where the children were born. They ultimately returned to New York but continued having marital conflicts. This time the plaintiff-father accused the defendant-mother of infidelity.

The parties could not reconcile their differences and separated in August 2000 when the plaintiff-father left the marital residence. On September 21, 2000, the parties entered into a separation agreement which gave the defendant-mother sole custody of the children and permitted her to relocate with the children to any jurisdiction within or outside the United States at any time she wished without the consent of the plaintiff-father or the permission of the court (Defendant's Exhibit B).

The defendant-mother received a Get, which is a Jewish religious divorce, from the plaintiff-father on September 24, 2000. Shortly thereafter the defendant-mother traveled on vacation to Florida with Menachem Madar, a young man who had been visiting with the parties while he attended a local Yeshiva.

The plaintiff-father had a change of heart about the custody provisions of the separation agreement and retained Paul Siminovsky, the attorney who several years later was involved in the alleged bribery scandal surrounding Justice Garson. Siminovsky wrote a letter dated November 14, 2000 to the defendant-mother expressing the plaintiff-father's misgivings about the separation agreement (Plaintiff's Exhibit 9). The following day, the defendant-mother commenced a family offense proceeding against the plaintiff-father in the Kings County Family Court (Plaintiff's Exhibit 4). On November 24, 2000, the plaintiff-father filed a visitation petition in the Family Court (Plaintiff's Exhibit 5). The Family Court appointed Marjorie Steinberg of the Children's Law Center as law guardian for the children.

The plaintiff-father became concerned that the defendant-mother was on the verge of relocating with the children out of the state and possibly to Israel. He therefore kept the children in his care on December 7, 2000 after picking them up from school. That evening the defendant-mother returned to the Family Court and filed a writ of habeas corpus seeking the immediate return of the children. It should be noted that there was no order of custody from any court in effect when the plaintiff-father retained physical custody of the children on December 7, 2000. In any event, Judge Elkins did not direct the immediate return of the children to the defendant-mother but instead allowed them to remain in the plaintiff-father's care until December 11, 2000.

The following day, December 8, 2000, the plaintiff-father commenced this divorce action and filed an Order to Show Cause asking the Supreme Court, inter alia, to set aside the custody provisions of the separation agreement and to restrain the defendant-mother from removing the children from the State. Justice Yancey signed the Order to Show Cause on behalf of Justice Garson and temporarily enjoined the defendant-mother from removing the children from the State or from [*3]interfering in their school enrollment at Bais Yaakov. Justice Yancey also allowed the children to remain in the care of the plaintiff-father until December 13, 2000, the return date of plaintiff-father's Order to Show Cause.

On December 12, 2000, the parties appeared before Family Court Judge Nora Freeman at which time she, sua sponte, transferred the visitation and writ petitions to Supreme Court (Plaintiff's Exhibit 6). In doing so, Judge Freeman contemplated issuing a further order restraining either parent from removing the children from the jurisdiction and admonished both parties to keep the children in the jurisdiction until they appeared in Supreme Court before Justice Garson (Court's Exhibit 16, page 20).

On December 13, 2000, the case appeared before Justice Garson for the first time. What transpired at this court appearance, according to the defendant-mother, was a lynchpin in her ill-fated decision to flee with the children to Israel the very same day. The defendant testified that Justice Garson conducted several nefarious ex-parte conferences with the plaintiff-father, his attorney, Mark Holtzer, Siminovsky, plaintiff-father's Family Court attorney and Marjorie Steinberg, the law guardian appointed in the Family Court. Defendant-mother claims she was totally excluded from those conferences with Justice Garson after which they emerged from his robing room and entered into a "stipulation" to which she was not a party that deprived her of her right to custody of the children pursuant to the separation agreement. Two years before the alleged corruption scandal surrounding Judge Garson broke, defendant-mother claims she was so fearful that Justice Garson was colluding with the plaintiff-father to deprive her of custody that she had no alternative but to leave for Israel with the children.

The defendant-mother's testimony regarding the December 13th court appearance was directly contradicted by among other witnesses, Marjorie Steinberg, the children's then court appointed law guardian. Ms. Steinberg, who is an impartial and uninterested witness employed by the Children's Law Center, credibly testified that although the defendant appeared without a lawyer, she fully participated in the conference which was not conducted by Judge Garson, as defendant-mother claims, but by his Law Clerk, Larry Rothbart. Ms Steinberg testified that Mr. Rothbart spent a considerable amount of time explaining to the defendant-mother the legal implications were she to remove the children to Israel. Ms. Steinberg noticed nothing indecorous or improper about that conference and flatly denies that an ex-parte conference ever occurred. The court fully accepts Ms. Steinberg's account of the court appearance and finds defendant-mother's testimony to be entirely incredible as to what transpired in court on December 13, 2000.[FN1]

After the conference with Mr. Rothbart, Justice Garson issued a temporary order which, inter alia, granted joint custody to both parties, enjoined them from removing the children from the jurisdiction, and restrained the parties from interfering with the children's enrollment in school. According to the transcript of those proceedings, Justice Garson explicitly and adamantly warned the defendant-mother not to remove the children from the jurisdiction and ordered her to surrender the children's passports by 4:00 p.m. the following day. He then returned the children to her care.

Undaunted, the defendant-mother absconded to Israel with the children on the same afternoon following the court appearance. According to SB, the defendant-mother told them that they were [*4]going to the supermarket when in fact they were headed directly for the airport with airline tickets which were purchased days before the December 13th court appearance. The following day, Justice Garson issued a warrant for defendant-mother's arrest and transferred legal custody of the children to the plaintiff-father.

The defendant-mother left for Israel with Menachem Madar and Peninah Ellyahu, the children's maternal grandmother who happened to be visiting from Israel at the time. The children continued to reside in Israel with the defendant-mother, Mr. Madar, whom she married on December 25, 2000, and their grandmother. After learning the whereabouts of the defendant-mother and the children, the plaintiff-father filed a Hague Convention petition and frequently visited the children in Israel during the pendency of his petition in the Israeli courts. Finding that the children were wrongfully removed and not believing the grave risk of harm exception purportedly alleged by the defendant-mother, the courts in Israel including its Supreme Court, ordered the children returned to their habitual place of residence in Brooklyn.

The children were returned to the plaintiff-father's care in New York on August 16, 2001. The defendant-mother, however, opted to remain in Israel with Mr. Madar. According to defendant's testimony, she did not come back with the children because "she was about to become pregnant" which she states then occurred in October 2001. Upon the children's return the plaintiff-father placed them in counseling with Naomi Kattan, CSW; of the Jewish Board of Family and Children's Services and enrolled them in Bais Rivka School. According to the children's school records which were introduced into evidence at trial, both children have been doing remarkably well in school (Plaintiff's Exhibit 12).

On November 25, 2001, the plaintiff-father married Shterna Blumes. CB, who was approximately eight years old and SB, who was six years old at the time they were returned to the United States developed a very close bond with their stepmother and chose, without any prompting from their father, to call her "Ema" (the Hebrew name for mother).

On November 27, 2002 [FN2], approximately fifteen months after the children were returned from Israel, the defendant-mother came back to the United States and appeared before Judge Garson. Judge Garson issued a one-year order of protection prohibiting the defendant-mother from having any contact with the children. On December 3, 2002, Judge Garson modified the order by allowing the defendant-mother telephone communication with the children.

On May 3, 2003, the defendant-mother then moved to set aside all prior orders issued by Justice Garson and for custody of the children in accordance with the parties' now three-year-old separation agreement.[FN3]

This case was reassigned to this court after Justice Garson's arrest. The court promptly assigned Elizabeth Fee, Esq. as law guardian, directed Dr. Katherine Smith to complete a forensic evaluation of the parties and the children and immediately instituted supervised visitation for the defendant-mother with the children. Visitation was supervised by Billa Bendet, CSW,MSW. According to Ms. Bendet, although the children at times had difficulty trusting the defendant-mother [*5]and remained guarded around her, the visits went fairly well and the children genuinely enjoyed visits with their mother (Defendant's Exhibit M).

Tragically, in November 2003, Dr. Smith died unexpectedly without completing her evaluation. This necessitated a new forensic evaluator, Dr. Paul Hymowitz, who was selected with the consent of the parties.

Supervised visitation progressed so well that by February 2004 the children were enjoying unsupervised and expanded overnight visits with the defendant-mother pursuant to the order of this court (see Court's Exhibit 12, 13 and 15). Meanwhile, in the summer of 2004, the defendant-mother engaged the assistance of Dr. Jeffrey Seinfeld, a psychoanalyst and professor of social work at New York University, in order to repair her relationship with her daughters. She consulted with Dr. Seinfeld approximately three times. According to Dr. Seinfeld, the defendant-mother seemed "traumatized" by the loss of her children and continued to believe that the plaintiff-father and his wife, Shterna, were unduly influencing the children in an effort to destroy any bonds between her and the children.

On October 9, 2004, an incident occurred in the defendant-mother's home which caused her to unilaterally decide to end visitation with her daughters. It is not clear what actually transpired. According to the defendant-mother, the children arrived to her house for a scheduled visit but refused to remove their coats. The defendant speculated that they may be wearing recording devices. In any event, the children seemed agitated and distressed and insisted on returning to the plaintiff-father's home. She acceded to their request and shortly thereafter the police arrived and informed the defendant-mother that they were investigating a complaint that an infant had been subjected to excessive corporal punishment. The source of that police complaint was the defendant - father who had called the police when the children arrived back to his home in an "inconsolable" state and SB told him that she saw her mother "slap the baby."

Visitation between the defendant-mother and the children did not resume until March 2005. The defendant elected to have therapeutic supervised visitation with the children under the supervision of her therapist, Dr. Seinfeld. The children continue to see their mother in this setting to this date. There have been no unsupervised contacts since the October 2004 incident. The children remain in the plaintiff-father's care with whom they have resided since August 2001.

B. CONCLUSIONS OF LAW

The best interest of the children is always the primary consideration in child custody matters, (Friderwitzer v Friderwitzer, 55 NY2d 89). Among the factors to be considered is the quality of the home environment and the parental guidance the custodial parent provides for the children, the ability of each parent to provide for the child's emotional and intellectual development (Porges v Porges, 63 AD2d 712) and the relative fitness of each parent. The court concludes based upon the credible evidence adduced that the best interest of CB and SB would be served by an order of sole custody to the plaintiff-father.

The totality of the circumstances in this case clearly demonstrates that the plaintiff-father is better suited to provide the children with a more stable and secure home environment. Moreover, the plaintiff-father has shown himself to be a very able and competent parent who, as primary caretaker for the children for the past four years, has been responsive to their individual needs and has provided them with the necessary structure to foster their emotional and intellectual development. [*6]

The moment the children were returned to his care in August 2001, the plaintiff-father put them in therapy and enrolled them in school. Undoubtedly, the children had been through a traumatic experience when they were whisked away to Israel by the defendant-mother without any preparation whatsoever. Since their return, the plaintiff-father has gone to great lengths to make the children feel secure and stable in a loving home environment. Significantly, the children expressed in their interviews with both Dr. Hymowitz and the court, a desire to remain living with their father. Although the preference of the children is not outcome determinative of a custody case, it is entitled to consideration. The law guardian also supports the children remaining with their father. Stability is a matter of great significance to these children, particularly after the events leading up to their return to New York by the Israeli courts.

Dr. Hymowitz whose testimony the court fully credits reached a similar conclusion [FN4] (Law Guardian's Exhibit 1). According to Dr. Hymowitz, the plaintiff-husband and his wife, Shterna, have provided the girls with a stable and secure home environment. The children are deeply bonded to their father and are also very attached to their stepmother. The plaintiff-father has a keen understanding of his daughters as separate individuals with needs distinct from his own.

In contrast, the defendant-mother has demonstrated an inability to understand and meet the developmental needs of the children as independant beings because of her irrational beliefs centered on a sense that everyone who challenges her point of view is somehow against her. Dr. Hymowitz opined that she suffers from a personality disorder. Indeed, she continued in her testimony to insist she is being "punished" for illegally removing the children from the United States. She claims to be the victim of corruption by Judge Garson, a claim which was entirely belied by the testimony of Marjorie Steinberg who testified that at the defendant-mother's only meeting with Judge Garson before she fled to Israel, Judge Garson did not engage in any improper conduct. More to the point, Judge Garson, who was allegedly colluding with the plaintiff-father to deprive her of custody on December 13, 2000, returned the children to her care on that very day. Ironically, defendant-mother both justified leaving the jurisdiction because of Judge Garson's allegedly corrupt conduct and yet apologized for having done so.

The defendant-mother also challenges the motivations of other professionals in the case, such as Naomi Kattan, the children's therapist, and Elizabeth Fee, the law guardian. The defendant-mother contends both of these individuals have systematically acted to eliminate her as the children's mother. There is simply no credible evidence to support this conclusion. The law guardian in particular was instrumental in the resumption of visitation between the defendant-mother and the children and has demonstrated no bias against the defendant-mother. The court believes the law guardian has diligently and professionally represented her clients' interest.

There is also no credible evidence to support defendant-mother's contention that the [*7]plaintiff-father has engaged in parental alienation. To the contrary, the plaintiff-father has shown he can deal with the defendant-mother in a reasonable and non-retaliatory way and there is no evidence he interfered with her visitation rights during the pendency of this proceeding.

The defendant-mother externalizes the blame for her actions on others and takes very little responsibility for how her own behavior has impacted on the children. For example, she absconded to Israel with the children thereby removing them from their school, family and friends without any preparation whatsoever. She could not even tell them the truth the day she fled informing the children they were going to the supermarket when in fact they were headed to the airport. In addition, the defendant-mother precipitously and unwisely suspended unsupervised visitation with the children in October 2004. She also told the children that Dr. Smith, the former forensic evaluator who passed away unexpectedly, had died because she was against their mother. She utterly fails to take into account how these gross errors of judgment might have effected the children instead dwelling on her own misconceived and unfounded claims that she has been victim of a gross miscarriage of justice.

The testimony of Shneur Zalman Goodman perfectly illustrates what is so deficient about defendant-mother's focus in this custody trial. The defendant-mother called Goodman, her relative, as a witness to testify that, in the midst of this very hotly contested custody proceeding, the plaintiff-father, who knew Goodman as a relative and ally of the defendant-mother,[FN5] suddenly admitted to him that Judge Garson had been bribed in this case [FN6]. Goodman, who was also present in the defendant's home the night of the October 2004 incident and frequently visited her home, would have us believe that the plaintiff-father would suddenly blurt out such a statement to a relative who is clearly allied with the defendant-mother. Goodman's testimony was so far fetched and incredible that the court does not credit it at all. As this type of worthless and, perhaps, suborned testimony shows, the defendant-mother has spent very little time focusing on what would be the children's best interest instead using the bulk of this eleven-day custody trial to dwell on how, according to her, the whole system and virtually every player in this custody case have conspired against her to deprive her of the children. Even assuming, arguendo, that she was the victim of judicial corruption, and there is no evidence to support this conclusion, the remedy to vindicate her sense of injustice is to punish the judge, not to willy-nilly, and without any consideration for the best interest of the children, return them to her care.

In the end, the defendant-mother fails to see what is obvious to any reasonable person. There is no conspiracy to eliminate her as a parent. Rather, the children, who were quite young at the time, naturally bonded to their father and his wife during a period of 20 months when defendant-mother had virtually no contact with her children. Defendant-mother did not return with her children to the United States in August 2001 but waited approximately 15 months to attempt to see them and never provided a plausible reason for this 15-month delay before returning to New York. Even after she returned, she did not see the children until May 2003. That these young children started calling their stepmother "Ema" during their natural mother's extended and unexplained absence is no surprise and [*8]of her own doing.

Finally, notwithstanding everything that has transpired in the lives of these children over the past five years, the mother nevertheless claims that the court should give "priority" to the parties' separation agreement and return the children in accordance with the terms of that agreement. The law is well-settled that the court is not bound by the parties' separation agreement and that it is but one factor to be considered in determining custody. (See, Grossman v Grossman, 772 NYS2d 559 [2nd Dept., 2004]; Rheingold v Rheingold, 4AD3d 406 [2nd Dept., 2004]. Adhering to the terms of the separation agreement would be contrary to the children's best interest for the reasons set forth in this decision. Under the circumstances of this case, it would make little sense to change custody back to the defendant-mother. It would be too disruptive and likely traumatic to the children. It is in the best interest of the children to continue the stability already established by their father.

Based on the foregoing it is hereby ordered that;

The plaintiff-father is awarded sole custody of CB and SB.

The defendant-mother shall continue to have supervised visitation in a therapeutic setting with Dr. Seinfeld, whom she chose to supervise the visits. Any unsupervised visitation shall be guided by Dr. Seinfeld's recommendation in consultation with the plaintiff-father and the law guardian. If the parties and the law guardian are unable to agree as to future visitation outside of a therapeutic setting, the court will entertain any appropriate applications.

This constitutes the Decision and Order of the Court.

Dated: May 26, 2005

______________________________

Michael A. Ambrosio Footnotes

Footnote 1:Ms. Steinberg's testimony was supported by the credible testimony of the plaintiff-father. It was further supported by the testimony of Paul Siminovsky, who was called by the defendant.

Footnote 2:On November 27, 2002, defendant-mother appeared in court before Judge Garson with her three-month old child by Mr. Madar (Court's Exhibit 5, Transcripts from November 27, 2002, page 6 ).

Footnote 3:The court issued a decision on these applications on May 3, 2004.

Footnote 4:Defendant-mother's counsel makes much of the fact that Dr. Hymowitz's forensic report was introduced into evidence over his objection. The court adheres to its decision at trial that the report was admissible pursuant to court rules. The defendant-mother had the report three months before trial and Dr. Hymowitz testified for almost eight hours and was subjected to a rigorous cross-examination by defendant's counsel. The report itself is largely comprised of Dr. Hymowitz's interviews with the parties and the children and most of the collateral sources which he references in his report were also witnesses during the trial and were subjected to full cross-examination. Under the circumstances, the defendant was given a full and fair opportunity to challenge every aspect of Dr. Hymowitz's report.

Footnote 5:When the children were removed by the Israeli authorities in order to return them to the United States, they were found in the home of Goodman's family.

Footnote 6:These allegations prompted the court to order the minutes and immediately refer it to the District Attorney's Office which apparently interviewed Mr. Goodman and took no further action.