Lawrence R. v Kimberly R.

[*1] Lawrence R. v Kimberly R. 2009 NY Slip Op 51866(U) [24 Misc 3d 1243(A)] Decided on August 25, 2009 Family Court, Nassau County Greenberg, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 25, 2009
Family Court, Nassau County

Lawrence R.,

against

Kimberly R.



V-xxxx-xx



Office of the Nassau County Attorney for the Department of Social Services

Rachael Rayzak, Deputy County Attorney, Family Court Bureau

Gail M. Berkowitz, Esq.

Attorney for Respondent Mother

Robert G. Delgrosso, Esq.

Attorney for Respondent Father

Terry A. Johnson, Esq.

Attorney for the Child

Ellen R. Greenberg, J.

Before the Court are cross petitions filed by the father and the mother seeking custody of the child Lawrence R., Jr. born June 1, 1998. The father, Lawrence R., filed his petition on December 27, 2007. The mother, Kimberly R., filed her petition on December 31, 2007.

The child is currently in the temporary custody of the Department of Social Services (hereinafter referred to as "DSS") as the result of a removal pursuant to an Article 10 neglect proceeding. He was placed by DSS with the paternal grandmother, Elizabeth A., in January, [*2]2006 pursuant to § 1017 of the Family Court Act.

Currently, the DSS is ready to return the child to a parent but has no position as to which parent. As each parent has filed for custody of the child, a hearing was held leaving that determination to be made by this Court.

The parties have a long and protracted history in the Family Court. While this Court has presided over all relevant proceedings involving this family since January of 2007, the parties have been involved in numerous proceedings before other Judges of the Nassau Family Court dating back to May, 2000.

Many petitions were filed and abandoned including custody and support proceedings by the mother against the father. There is an extensive history of domestic violence between the parties and petitions seeking Orders of Protection were filed by both parties against the other, most of which were either dismissed or withdrawn. The mother did however have a stay away Order of Protection against the father, in 2000 and in 2006. There were a number of attempts at reconciliation by the parties.

In reaching a determination regarding custody of this child, a discussion of the neglect proceeding is necessary.

A neglect petition was filed by DSS on October 19, 2004 against both parents. The allegations were as follows: a) Respondent mother has failed to provide said child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment, or by any other acts of a similarly serious nature. Respondent mother and respondent father have failed to provide said child with proper supervision or guardianship, and said child's physical, mental and emotional health have been impaired and/or are in imminent danger of becoming impaired as a result of the failure of respondent mother and respondent father to exercise a minimum degree of care, requiring the aid of this court to wit:b) On or about 9/18/04, six-year-old Lawrence presented at Nassau University Medical Center with bruises on the back of both legs, the left thigh and the upper back, which appeared to be three to four days old. Lawrence disclosed to Children's Protective Services (hereinafter referred to as "CPS"), hospital staff and a police officer that respondent mother caused the bruises by hitting him with a belt.c) On or about 9/19/04, respondent mother was arrested in connection with the injuries caused to the child.d) Respondent father has repeatedly engaged respondent mother in domestic violence at the family residence. Respondent father was arrested twice in approximately the past four months for domestic violence perpetrated against respondent mother. Respondent father is also the subject of an active stay-away Order of Protection, which respondent father has repeatedly violated by living at the residence with respondent mother. Respondent father has created a hostile environment that places said child at risk. Respondent mother has [*3]repeatedly allowed respondent father in the residence despite the active stay-away Order of Protection.

At the Preliminary proceeding, Orders of Protection were issued against each of the parents in their absence: that the mother refrain from assault, stalking, harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats or any criminal offense (general refrain) against the child as well as refrain from any acts of corporal punishment against the child.

An Order of Protection was issued against the father that he refrain from acts of corporal punishment and domestic violence against or in front of the child.

The child was not removed from the custody of the parents at the initial filing of the neglect petition.

Shortly thereafter, at the arraignment, the Order of Protection as against the mother was modified that she stay away from the child except for supervised visitation approved by DSS.

On March 30, 2005 the neglect petition against the father was adjourned in contemplation of dismissal for twelve months.

On the same date, the mother consented to a finding of neglect pursuant to § 1051 of the Family Court Act. A final Order of Supervision was entered for twelve months with a specific condition that she enroll in and complete an anger management program. A final Order of Protection on behalf of the child was also issued against the mother containing a general refrain. The issuance of this final order vacated the previous order which had only allowed for the mother to have supervised visitation.

Two months later, on May 27, 2005 DSS filed a Violation petition against the mother alleging that she threw several glasses at the father which shattered on the child's bed while the child was sleeping, and additionally that she had not been consistent with the anger management counseling.

As a result, the Order of Protection against the mother was modified reinstating the stay away order on behalf of the child except for supervised visitation.

In January, 2006 DSS brought another Violation petition against the mother alleging that she was not complying with the stay away Order of Protection and that she was caring for the child in her home. As to the father, the DSS restored his adjournment in contemplation of dismissal based on allegations that he allowed the mother to care for the child in violation of the Order of Protection. It was alleged that both parties were not cooperating with DSS.

On January 25, 2006 the child was removed and placed in foster care. On January 31, 2006 the child was placed in the custody of his paternal grandmother, Elizabeth A. Orders of Protection were issued against both parents allowing only supervised visitation with the child. On May 31, 2006 the mother admitted to violating the previous Order of Disposition and the father consented to a finding of neglect pursuant to § 1051 of the Family Court Act. The Order of Protection against the mother was finalized allowing visitation as approved by DSS. The Order of Protection as to the father was finalized issuing a general refrain as well as no corporal punishment be used against the child.

It is at this time, in May, 2006, that the father moved into the home of his mother where the child had already been living. [*4]

In November, 2007 this Court modified the Order of Protection as to the mother, no longer requiring that visits be supervised. Thereafter, while the child remained in the custody of his paternal grandmother, and the father continued to live in that home, the mother began visitation on alternate weekends.

The custody petitions were filed by each parent in December, 2007. The parties attempted to resolve the issue through conferencing and mediation but were unable to do so.

A fact finding hearing on the issue of custody was held over a number of dates: December 12, 2008, December 16, 2008, January 6, 2009, January 22, 2009, February 2, 2009, February 10, 2009, May 7, 2009, June 3, 2009, July 6, 2009, July 27, 2009 and July 28, 2009.

For the purposes of this hearing the father proceeded as the petitioner and the mother as the respondent.

The father testified and called the following witnesses on his direct case: Elizabeth A., the child's paternal grandmother, Martha DelValle, the DSS caseworker and Stephanie Carter, a DSS caseworker.

The mother, Kimberly R., testified and called the following witnesses: Hector B., Prentella McSwain, the child's teacher and Sumintra R., the maternal grandmother.

On rebuttal the father testified as did Elizabeth A., the paternal grandmother and Sean R., the father's cousin.

The Court also held two in camera interviews with the child, in the presence of the child's attorney.

Petitioner's Case

The Petitioner father began his testimony describing the circumstances leading up to the filing of the neglect petition. He then described his current living arrangements; that he has been living with his son, grandmother and mother since May, 2006.

Mr. R. testified that he is employed, as a dealer-mechanic for a fuel oil company earning $83,000 annually. He testified that he runs the shop of approximately thirty employees and fifteen trucks. His hours are from 8 A.M.- 6 P.M., sometimes working later in the winter and often only until 2 P.M. in the summer months. He testified that while he does not work weekends he will work on Saturdays if necessary, in the winter.

Mr. R. testified that he sees his son every morning getting his clothes ready for school. His mother or grandmother will prepare breakfast and he will put Lawrence, Jr. on the school bus three or four mornings per week. He indicated that either his mother or grandmother will take the child off the bus each day. Mr. R. testified that he is not always home for dinner.

Mr. R. indicated that he has always provided financially for his son. He testified that he has provided food and clothing as well as medical care, counseling and tutoring.

Mr. R. testified that he has not received any financial assistance from the child's mother although he did state that on one occasion the mother did buy a shirt, pants, socks and underwear for the child.

Mr. R. testified as to his role in his son's education. Mr. R. testified that the child is in special education, has been diagnosed as ADHD and takes medication. He indicated that he follows up with the child's medication as prescribed. He testified that he is aware of his son's counselors and physicians. He testified that Lawrence, Jr. sees a child psychologist and that he takes him to all his counseling appointments. He indicated that he helps the child with his homework, goes to PTA [*5]meetings, has hired a tutor to come to the home three times per week to work with his son, and that he speaks with the child's teacher on a regular basis. Mr. R. discussed his son's reading, math, social studies and science scores indicating that the child is not doing as well in school as he should be.

Mr. R. testified that he has not prevented the mother from going to the school, yet she has had no involvement in the child's schooling. He did indicate however that he saw her at one meeting at the child's school.

Mr. R. testified that he has taken Lawrence on vacation during the summer, going to Disney, Las Vegas and Great Adventure. He stated they have also gone to the park and to Coney Island Wildlife Society.

Mr. R. stated that his relatives live on the same block and that Lawrence goes everyday to their home riding his bicycle. He also testified that the child has friends who live next door who he sees regularly as well as many other friends who often join them for activities. He indicated that Lawrence is active and runs around, watches TV and plays video games.

Mr. R. also stated that he bought his son an architectural drafting program and an erector set. Mr. R. explained that due to Lawrence, Jr.'s schedule with the tutor and visitation, he does not partake in any other activities such as soccer or karate.

Mr. R. testified that there has been no relationship with Ms. R. and no contact between them. He stated that he does not have a telephone number where he can reach her.

There was extensive testimony as to incidents of domestic violence during the marriage. Mr. R. explained that any time he and his wife had an argument she would call the police and always "hold this over his head." He testified that he did not commit these acts of domestic violence but that he consented to the Orders of Protection being entered against him because he could not afford to go to trial.

On cross examination Mr. R. first denied having any convictions, then indicated he had "no clue" as to how many convictions he had. He finally stated that he "believed" he was convicted of a B misdemeanor and given probation for a year.

Orders of Protection were moved into evidence indicating that Mr. R. did have at least two Orders of Protection against him in 2003 and 2004, as well as a conviction to harassment in April, 2005.

Mr. R. stated that all the orders of protection were incidents involving his wife. Mr. R. testified specifically as to two incidents involving disputes with Ms. R. He indicated that on one occasion while he and his wife were attempting reconciliation, he was sleeping in the marital residence in the master bedroom when another guy, Hector B., broke through the window. The police came and Mr. R. was arrested because the Order of Protection against him was still in effect. He denied any act of domestic violence at that time. He stated that after that night he moved out of the residence and moved back three months later after the Order of Protection was vacated. He stated, "I moved back, her stuff was gone."

He also testified to an incident when he was living at the house and his wife had already moved out several months earlier. He stated that he arrived home at approximately 3 P.M. to find that his wife and her "boyfriend" referring to Hector B., had locked him out. He indicated that he called the police but no arrests were made.

Mr. R. also testified that he cooperated with any programs ordered by the Court including anger management, group counseling and domestic violence counseling although he denied having [*6]committed any acts of violence. Mr. R. stated that he did everything he was supposed to do including random drug and alcohol testing explaining that he never used drugs and never went to treatment for drugs. Mr. R. stated that he did every program that was asked of him, stating, "I did it to satisfy the Court." Mr. R. insisted that he had no violent behavior, that it was Ms. R. who had violent behavior.

He described an incident where Ms. R. threw a glass toward the child's bed while the child was in it, leaving broken glass on their son's bed. He also described an incident where Ms. R. destroyed the house. Photos were admitted into evidence which he described as what was left of their son's room as a result of Ms. R.'s actions.

Elizabeth A., the paternal grandmother, also testified. She reported that she lives with her mother, her son and her grandson. She indicated that she is home in the morning and described the morning routine, making breakfast and helping to get Lawrence, Jr. to the school bus. She indicated that she works until 10 or 10:30 at night and is not home for dinner. Ms. A. stated that the paternal great grandmother takes Lawrence, Jr. off the bus and prepares a snack and dinner. Ms. A. testified that she sometimes takes the child to doctor and therapist appointments. Ms. A. testified that Mr. R. provides for his son financially, takes him to doctor appointments and is involved with the school. She stated that on weekends, Lawrence, Jr. sleeps until 10 A.M., that he plays video games and watches T.V. She discussed his diet as well as his learning issue and his medication, indicating that either she or her mom will give the medicine to Lawrence, Jr. Ms. A. denied any acts of domestic issues in the home, denying raised voices or screaming. Ms. A. was not certain as to why her son was in Criminal Court previously, but did testify that he received a certificate for completing anger management classes. She testified that her grandson has been living with her for three years because he was severely beaten and that at one point she supervised visits between the mother and child for approximately six to eight months.

The petitioner also called Martha DelValle, the CPS caseworker. Ms. DelValle testified that she has been a caseworker for CPS approximately eight years. Ms. DelValle indicated that this case was assigned to her in October, 2004 when the allegation of excessive corporal punishment was brought against the mother alleging that she hit the child with a belt, leaving bruises on his body.

Ms. DelValle indicated that in January of 2006 while she was supervising the family, the child disclosed to her that there had been an altercation in the home where Ms. R. threw a glass statue which hit the wall while he was in the bed. The child reported that he had to cover himself with the blanket. Ms. DelValle stated that she went to the home and observed glass all over the child's mattress and floor and that the house was in disarray. She said the mother blamed the father for breaking the glass.

Ms. DelValle testified that at that time the mother would not allow her to speak with the child unless she was present. Ms. DelValle went to the school to speak with the child, as did the mother. Ms. DelValle described an incident at the school, stating that the mother refused her access with the child. Ms. DelValle testified that Ms. R. was verbally abusive to her and tried to swing at her, requiring security to get involved. She also testified that the mother made many threats against her and accused her of having an affair with her husband, Mr. R.

Ms. DelValle also indicated that Ms. R. made allegations that the father was smoking crack. Ms. DelValle indicated that she had the case for two and a half years and never saw any evidence of that, but nevertheless an investigation was conducted where the father was taken to the hospital. [*7]He was released and the investigation closed. She added that she believes Mr. R. was tested for drug use but she never received any results that were positive for drugs.

Ms. DelValle further testified that she knew the father had a history of Orders of Protection against him but was not certain as to the dates or how many orders there actually were.

Ms. DelValle did testify however that she recalled that the parties were reuniting at one time and that Ms. R. was planning on dropping the charges against Mr. R. She reported that Mr. R. came home to find Ms. R. with an apparent boyfriend. The police were called and Mr. R. was arrested due to the active Order of Protection.

Ms. DelValle indicated that due to the accusation by Ms. R. against her, she chose to be removed from the case.

The petitioner also called Stephanie Carter as a witness. Ms. Carter testified that she is a caseworker for the DSS and was assigned this case in May, 2007. Ms. Carter testified that she met with Mom, Dad and the child. She also stated that she met with the grandmother, Elizabeth A. She stated that she visited the home and observed the child's room. She confirmed that in addition to the child and Ms. A., the father lives in the home as well as the child's great grandmother.

She testified that she knew the child was in counseling and confirmed with the therapist that therapy is ongoing. Ms. Carter stated that Mr. R. also went to individual counseling which she believed he completed in November, 2008.

Regarding Ms. R., it was reported by Ms. Carter that while the mother was ordered to attend counseling by the court, she was unable to determine if it was ongoing. Ms. Carter testified that Ms. R. told her that she was not going to go to counseling, but would speak to a counselor over the phone.

Ms. Carter also testified that she was unable to confirm Ms. R.'s address. She stated that she sent the night staff to her residence, but that the mother was not there except for perhaps on one occasion. Ms. Carter stated that the child reported that his mother has a new place, but Ms. R. denied it. Ms. Carter indicated that there was no restriction on moving, so she failed to understand why Ms. R. would deny it. Ms. Carter stated that on the day she was present in court to testify, Ms. R. told her that she still lives with her mother in Queens.

Additionally, Ms. Carter reported that Ms. R. had lost contact with her sometime in August or September, 2008. She stated she then had a conversation with Ms. R. in January, 2009, which turned out to be their last conversation. Ms. R. stated it wasn't necessary for them to meet anymore because all Ms. Carter ever does is ask questions about how the visits are going and that CPS does not want her to have the child anyway. Ms. Carter reported that she meets regularly with the father every month, since the time she was assigned the case.

On cross examination, Ms. Carter stated that Lawrence, Jr. told the evening staff that he hated living with his father and grandmother. When she discussed this with him, he stated that he wished he could live with both his mother and father and did at one time say he wanted to live with his mother. She added that the child stated he did not want to live with his father and grandmother because the grandmother nags him all the time; that she always follows him around and asks if he is hungry. He also stated that he wants to live with his mother so he could be with his cousins. The child also reported an incident of yelling and cursing between the father and grandmother on Easter Sunday, 2008.

Ms. Carter also testified that Ms. R. made an allegation that the child watches pornography [*8]at the father's home which both father and child denied.

Ms. R. reported an incident where the child did not get picked up from school and called her. Ms. Carter testified that this was a one time occurrence because a cousin was picking him up from school and was late.

Respondent's Case

The respondent, Kimberly R., called Hector B. as her first witness. Mr. B. testified that he knows Kimberly R. through his employment at a hospital where they met six or seven years ago. He indicated that they are strictly friends and that he has been engaged to someone else for three or four years. Mr. B. stated that Ms. R. said she was divorced and he knew that she had a child. He stated that he did not know that Ms. R. and Mr. R. lived together. Mr. B. testified that he knows Mr. R. and has seen him on approximately four occasions.

He stated that the first time he met Mr. R. was when he was building a wall for Ms. R. in her home. He indicated that he had a confrontation with Mr. R. who was mad and came at him. He testified that Mr. R. pointed his finger at his nose, was "flicking" his finger at his nose, but he said there was never physical contact.

Mr. B. described a second incident where he encountered Mr. R. He testified that one night at about 9:30 P.M. he received a phone call from Ms. R. who was hysterical, telling him to come over because Mr. R. was in the home acting weird and throwing himself at her. He testified that he got in his car and went to her home from his home, taking about thirty minutes travel time. He indicated that he knocked about six times and nobody answered the door. He said he heard screaming and heard "help me, help me." After knocking one more time, he knocked the window down and climbed into the house through the window. He testified that once inside, he saw Mr. R. by the door and Ms. R. by the other room wrapped in a blanket shaking, scared and crying.

He stated that while he had a confrontation with Mr. R. at this time, there was no physical fighting. The police arrived and Mr. R. was arrested because of the active Order of Protection that Ms. R. had against Mr. R.

Mr. B. also described another incident where he met Mr. R. He explained that he was at the home of Ms. R., changing the locks for her when Mr. R. arrived home. Mr. R. was upset and started screaming but Mr. B. was clear in his testimony that Mr. R. never touched him.

Mr. B. described a fourth incident where he met Mr. R. He indicated that Mr. R. came to the hospital, where Ms. R. worked, with his son. Mr. B. testified that Mr. R. ordered her to get into the car or he would not let her see the child. Mr. B. described Ms. R. as shaken and scared.

Kimberly R.

Ms. R. testified that she is originally from Guyana, South America and that she came to the United States when she was thirteen years old. She indicated that she is now thirty years old. Ms. R. testified that she met Mr. R. while still in high school when she was seventeen or eighteen years old and he was thirty-three years old.

Ms. R. stated they were married on September 9, 1997 and that she was always abused by Mr. R. She stated that he was always insulting her, saying she was not good enough, stupid or dumb. She reported that this got really bad after the child was born.

Ms. R. stated that the child was born on June 1, 1998. During her testimony, Ms. R. referred to the child as Devin, not Lawrence. When asked by the Court, Ms. R. explained that Devin is the child's middle name and she has called him Devin since birth because she and a friend were pregnant [*9]at the same time and they both named their children Devin.

Ms. R. testified that when the child was born, her mother-in-law claimed the baby was not Mr. R.'s because he was light skinned. She stated that her mom came and got her because Mr. R. did not want this baby. She stated she stayed with her mom for three or four weeks and Mr. R. visited only one time.

After four weeks, Ms. R., reported, that Mr. R. got an apartment in Lindenhurst. They moved there and Ms. R. testified that her sister went with her. She testified that Mr. R. was angry because she did not ask him if the sister could go to the home and he choked the sister. Ms. R. stated she begged her mom not to have him arrested because she was not working at the time.

Ms. R. reported that she had to get many Orders of Protection against Mr. R. She testified that on one occasion in 2003 in Queens, they were coming from her mom's house with the child in the car when they got into an argument. She testified that they argued and Mr. R. put a key to her head resulting in gushing blood.

She said that he violated the Order of Protection on another occasion when he struck her in the chest with the remote, for which he was convicted and placed on probation. She also said he once hit her in the stomach causing her to pass out.

Ms. R. said he was fighting, pushing her around, hitting her, throwing things and breaking china. She went on to say that he is always fighting with his mother, cursing, using the "F word" in front of the child, cursing at her, calling her a "fucking bitch", calling his mother stupid and dumb as well as calling her sister these words as well. Ms. R. stated she was afraid of him but stayed with him because "in my culture you are not supposed to leave your husband."

Ms. R. testified that she observed Mr. R. using drugs in 2004, seeing white dust on his nose, and that he used nasal spray. She said she reported the drug use to Ms. DelValle at that time. She indicated she tried to get him help but he only accused her of trying to get custody of the child.Ms. R. then explained the incident involving Mr. B. coming through the window.

As she told it, she and Mr. R. got into an argument where she begged him to leave. He continued to argue but then he left. She stated that she called Mr. B. after Mr. R. left to make sure he did not come back. She said he had pushed her and hit her.

Ms. R. testified that she heard knocking, but could not get out of the bedroom because Mr. R. closed the door. This is when Mr. B. came through the window, which distracted Mr. R., so she was able to leave the room. The police came and questioned all three of them. They arrested Mr. R. because the Order of Protection was in place.

On cross-examination, Ms. R. said she did not recall telling Mr. B. that she was divorced, but eventually stated that she probably had told him she was divorced but was not sure.

Ms. R. testified that she called Mr. B. to tell him that Mr. R. was in the marital bedroom and called Mr. B. with Mr. R.'s phone. She said Mr. B. came to the house late but does not recall the time. She testified that she called the police that night but does not recall if she called more then once nor whether she told them the reason for the call was because there was an intruder.

Ms. R. said the police came but she could not recall what happened or if she and Mr. R. were fighting when she called the police. When asked on cross examination if she told the police that she had gone to court the day before to vacate the Order of Protection, she reported "I think so."

Ms. R. stated she did not remember what she said to the police and she did not remember if she told the police whether Mr. R. had been hitting her or if she told them there was an intruder. [*10]

Ms. R. testified that she called police because she and Mr. R. were fighting and because they heard banging on the window. She stated she never heard knocking on the door, only on the window.

At one point Ms. R. stated that she could not remember all the details as it had been so long ago, but then she did state that she did claim Mr. R. was beating her but she did not tell this to the police. She told the police there was an intruder.

In fact, Ms. R. testified at one point that she called the police because there was banging on the windows and she thought an intruder was coming into the house. She testified further that she told the police she did not want her husband arrested and that she had gone to court to vacate the Order of Protection.

Ms. R., upon further questioning by opposing counsel, stated she did not remember, that so much happened so fast and she did not recall all the questions by the police.

After having her recollection refreshed by listening to the 911 tape, Ms. R. admitted she did not tell the operator that her husband was assaulting her or that she was being hurt. But then she stated that she did tell the operator she was being hurt; that her husband was choking her, so she grabbed his cell phone and called. She stated that Mr. R. was within ten feet of her when she made the call. She claimed she had no idea who was knocking on the window. Ms. R. then stated that she called the police because of the banging on the window and because she was being choked. Ms. R. testified that she called Mr. R.'s counsel that night to advise him that Mr. R. had been arrested.

Regarding her cooperation on the neglect petition, Ms. R. testified that she completed a parenting program as well as a domestic violence program, that she went to therapy and counseling as required, which she said benefitted her quite a bit.

Ms. R. testified that she has a medical background and has an associate's degree and a state license as a medical assistant. She indicated that she is currently attending York College, finishing her bachelor's degree in accounting. She stressed the importance of education, pointing out that her sister has an accounting degree and her mother has a teaching degree in Guyana. She explained how both her mother and sister assist her in caring for the child.

She expressed concern with Mr. R. caring for the child in that he works long hours and is often not around and that the paternal great grandmother does not know how to read and write. She testified that the child does not get enough help with his school work and that he spends too much time playing video games and watching television. She testified that while the child has been diagnosed as ADHD, she does not believe he needs medication.

Ms. R. also expressed concern regarding the child's diet. She indicated that as he has ADHD, processed food is not good for him and that he has too much sugar in his diet. She testified that she feeds him milk for calcium, as well as fish, meat, vegetables, beans, rice and chicken, whereas he eats spaghetti, pizza, Chinese food and hot dogs when with his father.

Ms. R. further testified that the child is learning from his father to be disrespectful toward women in that the child has said women are dumb.

She testified that she is the better parent to have custody of the child because she will be there for him, she will be nurturing and will give him love and affection and she will help him with his education.

Ms. R. assured the court that she will facilitate visits with Mr. R. as she wants him to remain open with the father and would never come between them. She testified though, that she has had [*11]difficulty contacting her son and has had to call many times because they turn off the phone or hang up, resulting in claims by Mr. R. that she keeps calling their home.

Ms. R. testified that she lives with her mother and sister in Queens.

She testified that she works Monday through Friday at an accounting firm on Wall Street and that she leaves the house at 8 A.M. returning between 5:30 and 5:45 P.M. She attends York College on Tuesday and Thursday evenings from 8:30-10:30 P.M. as well as Saturdays from 8 A.M. until 3 P.M. Although, on the next court date during cross examination she indicated that she completed her degree. She indicated that currently she has parenting with the child from Friday at 7 P.M. through Sunday at 5 P.M. every other weekend but on the weekends that she does not have him, the father has allowed her to have him Friday to Saturday at 5 P.M. if he has to work on Saturdays. She stated that she also used to pick him up on Wednesdays but stopped that because of her schedule.

Ms. R. described the time that she spends with her son. She indicated that they go to Temple on Sundays, spending time with other family members, including other children. She takes him to Barnes & Noble and museums and obtained a library card for him. She stressed the importance of education explaining that he needs extra help with a number of subjects. She bought him Hooked on Phonics as well as other books which she said were recommended by the child's teacher, Prentella McSwain. She explained that she helps him with his homework on weekends especially his reading and reading comprehension and that she mostly does educational activities with the child.On cross examination Ms. R. testified that she bought her son his school clothes consisting of four pair of pants and four shirts. She stated that she has not provided any money for the child's support.

When asked about the allegations of corporal punishment and the consent findings entered by her, Ms. R. denied hitting her son, saying "I think I was charged...they said I beat my son." She said she was told there were marks on him but then admitted seeing the marks. She indicated that the marks were caused by Mr. R.

When questioned about the broken glass in the child's bed, Ms. R. acknowledged that she heard the testimony that her son said she threw the glass but she denied doing so, stating that she was not home. She stated that she does not believe that DSS had any basis to take her child.

Prentella McSwain was called to testify by Ms. R.

She testified that she is Lawrence, Jr.'s teacher. She stated that she has been teaching for twenty-two years and holds a Master's degree in education.

Ms. McSwain testified that Lawrence, Jr. is in her current fifth grade class which is an inclusion class where she has sixteen general education students and five to six special education students. Lawrence is one of the special education students. The special education teacher works in the classroom with Ms. McSwain, addressing the needs of the special education students.

Ms. McSwain reported that initially Lawrence had not been doing as well as he should have been doing, but she has begun to see a great change. Ms. McSwain reported that she has been working with the father on a regular basis. She indicated that in September, Mr. R. attended the school's Meet the Teacher Night. Ms. R. was not present at that time. She stated that she also had a conference with the father where they discussed Lawrence's grades and behavior, and she met with Mr. R. again in December after she sent out the November progress note. She specifically stated that she has had many conversations with Mr. R. who came when she called, saying "whatever you need." He has been very willing to work together. She acknowledged that the tutor working with [*12]Lawrence has resulted in many benefits in the area of homework. She sees that Lawrence is trying harder.

Ms. McSwain reported that Lawrence gets along with peers and while he can sometimes get loud, there are no behavior problems and she does not find him to be disrespectful.

Ms. McSwain did state that she met Ms. R. on one occasion in the principal's office and also spoke with her a few weeks prior to testifying where mom called, concerned about how Lawrence is doing in school.

Ms. McSwain did testify about an afterschool program that would benefit Lawrence but added that he is not able to participate because of a transportation issue. The program takes place after the bus has left, thereby preventing him from participating, as he needs to get home by the school bus.

Sumintra R. testified that she is Kimberly's mother. She indicated that she is originally from Guyana and came to the United States in 1992. She stated she had been a teacher in Guyana.

She indicated she lives in Queens with her two daughters, the respondent and her twenty-five year old sister. She described her home and stated that Devin, her grandson comes almost every weekend. They have other family members with children living nearby who Devin sees regularly.

Sumintra R. testified that her daughter and Mr. R. had a rocky marriage and described incidents of domestic violence where her daughter was bleeding from the head and face. She also described an incident of violence toward her younger daughter by Mr. R.

Ms. R. described some of the activities they do with the child; going to the park, a rocket show, Sesame Place. She testified that her daughter cooks for the child and reads to him and helps him with his school work as does she.

On cross examination, Sumintra R. testified that she does not have a teaching certificate, nor a college degree and does not have any background in Special Education. She testified that she is aware that her grandson has been diagnosed as ADHD but does not know his special needs.

Ms. R. testified that she did not know why her grandson was in foster care and believes her daughter lost custody of him because of fights between her daughter and her husband. She stated that she never heard that her daughter was inappropriate with the child. She never knew that her daughter hit the child with a belt leaving bruises. She said she never observed the father to behave inappropriately toward the child.

When asked about seeking custody herself, Ms. R. testified that, her daughter, told her that the caseworker said that she, the grandmother, could not have the child in here care because she lived in Queens. She said she filed for custody of the child but was told that she could not have custody because she did not live on Long Island.

The mother, Kimberly R., testified a second time regarding an incident in February. She testified that when she picked her son up for her weekend of parenting, he was not feeling well. She indicated that after caring for him overnight she had to bring him to the hospital where he was diagnosed as dehydrated and admitted for two to three days.

She testified that she called the father on the way to the hospital, to inquire about the medical insurance but he refused to give it to her and hung up on her. Ms. R. testified that she called again to advise Mr. R. that the child was hospitalized, and he stated, "what do you want me to do" and hung up again. Ms. R. stated that Mr. R. refused to give her the insurance information. Ms. R. stated that she believes it was neglectful of the father that her son was dehydrated and needed [*13]hospitalization. She believes he should have gotten better care.

Ms. R. also testified as to an incident where Mr. R. left the child alone. She claimed that he was left alone by the father but she does not know how long he was left alone. She did not, however, call CPS or file any complaint.

When questioned by the child's attorney, Ms. R. indicated that she is now pregnant with her fiancé's child as a result of in vitro fertilization. She stated that she told Lawrence, Jr. about her pregnancy and he was happy.

On rebuttal, Mr. R. called the caseworker, Stephanie Carter who testified that she investigated a claim that the child was left alone. She stated that the child denied that he was left alone on that particular date. The child stated that he was at his Uncle Sean's house.

Ms. Carter also stated that she spoke with the father about the allegation. She stated she was unable to speak with the mom who was not at the maternal grandmother's home when night staff went there to speak with her.

Ms. Carter further reported that she is not able to reach the mother and indicated that she does not have the mother's new phone number.

Ms. Carter also testified that she spoke with the child regarding his illness that required hospitalization. Her supervisor spoke with the hospital and was told he had a viral infection.

Mr. R. also testified on rebuttal. He denied that his son was ever left alone, but stated that he was with the father's cousin, Sean, for a few hours when his mother and grandmother went on vacation. This was confirmed by testimony of both the grandmother, Elizabeth A. and the cousin, Sean R.

Mr. R. also testified that on or about February 22, 2009 he received a phone call from Ms. R. telling him that the child was in the hospital. He stated that he asked her some questions. She told him he is in the Jewish hospital and hung up. He stated her call came in with the caller identification blocked and he was unable to reach her to find out exactly where his son was hospitalized.

Mr. R. stated that earlier that day, Lawrence ate at McDonald's with his cousin Sean. When Mr. R. picked him up, they went home to wait for the mother to pick him up at 6 PM. According to Mr. R., Ms. R. arrived at 9 PM.

Legal Analysis

Domestic Relations Law § 70(a) states, "In all cases there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child and what will best promote its welfare and happiness and make award accordingly."

DRL § 240.1(a) states, "... the Court shall enter orders for custody and support as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child."

When making a custody determination the Court must make said determination based on the best interests of the child when considering the totality of the circumstances. Friederwitzer v. Friederwitzer, 55 NY2d 89, 447 NYS2d 893 (1982).

The factors to be considered in determining the best interests of the child, are quality of the home environment and the parental guidance the custodial parent provides for the child, financial status and the ability of each parent to provide for the child, ability of each parent to provide for the [*14]child's emotional and intellectual development and desires of the child. "The weighing of these various factors requires an evaluation of the testimony, character and sincerity of all the parties involved in this type of dispute." Eschbach v. Eschbach, 56 NY2d 167, 451 NYS2d 658 (1982).In the instant matter this Court has had the unique opportunity to observe the parties over the course of many months. This Court has observed the demeanor of each of the parties both while testifying and while seated at the counsel table during all of the testimony. The Court has assessed the credibility of the parties during their testimony. The Court has considered all the evidence that was introduced at this hearing and has considered the in camera testimony of the child, Lawrence, Jr. While forensic evaluations were conducted for purposes of the disposition on the neglect proceeding, they were never introduced into evidence at this custody hearing due to the mother's objection and the father's eventual agreement. As a result, they have not been reviewed nor considered by this Court.

After a careful review of all the testimony and evidence, this Court has determined that based on the totality of the circumstances, physical custody shall be awarded to the father, Lawrence R., with alternate overnight weekend visitation to the mother.

In the instant case, while there has not yet been any award of custody to either parent, the child has been in the custody of the paternal grandmother since January, 2006 with the father residing in that home since May, 2006.

The stability of one home in a child's life is but one factor which must be considered when making a custody determination. This factor, however, can certainly be overcome if all other factors demonstrate that remaining in that home is not in the child's best interests.

Having considered the quality of the home environment and the parental guidance provided by the father, the financial status and the ability of each parent to provide for the child's emotional and intellectual development, it is clear to this Court that remaining in the home of the father is in the child's best interests.

The home where the child has been living includes the child, the father, the paternal grandmother and the paternal great grandmother. Each of these family members has a large and active role in the upbringing of the child. The father has a supervisory position in a fuel oil company. While he works long hours in the winter months, his hours in the summer are much shorter. His position affords him flexibility allowing him to leave at any time, if necessary, to address the needs of his son. Mr. R. has been actively involved in the education of his son, remaining in constant contact with the child's teacher either by telephone or in person. He has hired a tutor who works with the child three times per week assisting him with his homework and educational issues. The child's teacher testified that the father has been very involved in the child's education and special needs, unlike the mother who she met on only one occasion and spoke with on the telephone on another, seemingly in preparation for this court proceeding. The Court recognizes that the mother has not had custody of the child, but this has not prevented her from having a more active role in the child's education. It is clear to the Court that Ms. R. is aware of the importance of a good education. She testified that she is the better parent in this regard. She testified that she reads with her son, takes him to Barnes & Noble, buys books that were recommended by the teacher and takes him to the library and museums.

Ms. R. made a point of stating that the child needs someone to sit with him and work with him, and she does not feel he is getting help while with the father. She never credited the father for [*15]providing a tutor who has been working with the child three days a week.

While the grandmother works outside of the home, she is home each morning, involved in the morning routine and the great grandmother is in the home, available to take the child off the school bus each day and to prepare a snack and dinner.

It is clear that the father has the ability to support the child financially as he has a successful position earning $83,000 annually. He testified that he has bought everything for the child while the mother has offered nothing financially. He stated that the mother did buy clothes for the child on one occasion, while Ms. R. testified that she bought all of the child's school clothes. She did acknowledge that she has not contributed to the support of the child. It does not appear that the mother is in the same financial position as the father. She testified that she works at an accounting firm on Wall Street but there was no testimony as to her salary.

The Court must also consider the child's emotional and intellectual development. Shortly after the Court's in camera interview with Lawrence, Jr., Ms. Johnson, the attorney for the child requested that the court meet with the child again. Ms. Johnson reported to the Court that the child had stated to her that his mother questioned him as to what he discussed with the Court during the initial interview and that the mother told him if you do not want to live with me then I will have another baby and you will not have to see me anymore. After that meeting, it was reported that the mother did not appear for scheduled visitation on four occasions while the child waited for her to arrive.

The Court did meet again with the child. Ms. R. was also questioned with regard to these allegations. Ms. R. denied ever telling her son that she would move away. She was adamant that she did not discuss any of these proceedings with the child after the child's first in camera interview with the Court. She stated that she would never discuss this court case with the child. While she denied the allegations, the Court, found her protestations not credible. Additionally, it was duly noted that Ms. R. indicated that she is in fact pregnant and became pregnant around the same time of the in camera and the alleged statements to the child. She acted spitefully when she failed to visit with her son on four occasions.

It is clear to this Court that Lawrence, Jr. loves his parents and misses his mother very much when he is not with her. While there was a point in time when the child reported to the caseworker that he wanted to live with his mother, the Court is not bound by the desires of the child. See Ebert v. Ebert, 38 NY2d 700, 382 NYS2d 472 (1976). The child is eleven years old. His wishes cannot be superior to what is in his best interests especially when those wishes are manipulated by one parent. Nehra v. Uhlar, 43 NY2d 242, 401 NYS2d 168 (1977).

This Court had the unique opportunity to observe the demeanor of the parties throughout this protracted proceeding. The Court assessed the credibility of each of the parties as well as all of the witnesses who testified in this proceeding.

The Court found Mr. R. to be credible over the course of many months, observing him to be calm and mild mannered. Mr. R. answered all questions posed to him. The Court credits his testimony.

The Court also observed the demeanor of Ms. R. and assessed her credibility. The Court did not find Ms. R. to be credible, but rather found her to be highly incredible. Ms. R.'s testimony was theatrical, to be kind. Her responses were slow and deliberate. She was able to testify easily to anything that showed her in a positive light but conveniently could not recall anything that was in [*16]any way a negative reflection on her.

It is clear that throughout the history of this case, Ms. R. has not been cooperative. She refused to allow Ms. DelValle, the initial caseworker to meet with the child in her absence. In fact, she threatened Ms. DelValle and on one occasion attempted to strike Ms. DelValle necessitating intervention by security.

Ms. Carter testified that she has been unable to locate Ms. R. although numerous attempts were made. Mr. R. also indicated that he does not have the mother's phone number and has been unable to reach her.

The Court does not credit most of Ms. R.'s testimony. Her actions over the many years of these proceedings indicate that she is calculating and manipulative. It is clear that she feels tremendous hostility toward Mr. R. and as a result is not able to move forward. She has even chosen not to call her son by his given name which is the same name as her husband's name. Throughout these proceedings only Ms. R. and her mother referred to the child as Devin.

Ms. R. made many allegations against Mr. R. over the years, all of which were investigated and unfounded to wit: she reported that he used drugs and reported that the child watches pornography while in his care.

While Ms. R. testified a second time for the sole purpose of reporting an incident where her son became sick in the care of the father, needing hospitalization, the Court does not find that this incident renders the father unfit.

Children often become sick. There is nothing in the record that supports Ms. R.'s belief that Mr. R. was neglectful on that occasion.

The neglect proceedings began due to allegations of excessive corporal punishment committed by Ms. R. Ms. R. entered into a consent finding. During these proceedings she now claims that she knows about those allegations because she "was told" about them. She testified that Mr. R. was the cause of the bruises on her son's body.

When questioned on cross examination, Ms. R. denied having thrown the statue in the direction of her son's bed and stated that it was Mr. R. who committed that act.

The Court has great difficulty believing anything that was testified to by Ms. R. Even her friend Hector B. stated that Ms. R. had told him that she was divorced, an apparent lie, which, she later indicated she may have told him.

It appears to this Court that the incident involving Mr. B. was calculated and orchestrated by Ms. R. It was clear from the testimony that Ms. R. called both Mr. B. and then the police for the sole purpose of having Mr. R. arrested.

The Court listened to the 911 tape of her phone call where she is whispering to the operator, while knocking is heard in the background. The Court credits Mr. R.'s version of events, that he was sleeping while attempting a reconciliation with his wife, when another man came climbing through his window. Moments later the police arrived and arrested him. When testifying during cross examination, Ms. R. was unable to ger her story straight regarding this incident. She stated that she told the operator her husband was choking her. There was no such statement on the tape of the 911 call.

Additionally, the Court does not believe Ms. R.'s claim that Mr. R. refused to give her insurance information and hung up on her during the child's recent hospitalization.

Rather, the Court credits Mr. R.'s testimony that Ms. R. failed to notify him in a timely [*17]manner that the child had been hospitalized. The Court also credits Mr. R.'s testimony that the mother intentionally withheld information from him which would have enabled him to visit his son in the hospital and that he was unable to call her as he had no contact information for her. It is corroborated by the caseworker's testimony that Ms. R. often could not be contacted.

The mother's manipulative conduct, consisting of numerous false allegations against the father must be considered. Such conduct "demonstrates a purposeful placement of her self-interest above the interests of others" and "is so inconsistent with the best interests of the child that it raises, by itself, a strong probability that the offending party is unfit to act as a custodial parent."

Mohen v. Mohen, 11 NY3d 710 (2d Dept. 2008), Matter of Gago v. Acevedo, 214 AD2d 565, 625 NYS2d 250.

DRL § 240.1(a) requires that the court consider the effect that any act of domestic violence has upon the best interests of the child. See Matter of Wissink v. Wissink, 301 AD2d 36, 749 NYS2d 550 (2d Dept., 2002).

The Court acknowledges the existence of Orders of Protection against the father on behalf of the mother. There is no indication however, that these acts of domestic violence took place in the presence of the child. On the other hand, there is testimony that Ms. R. has demonstrated violent behavior when using excessive corporal punishment on the child and when throwing the statue which shattered in the child's bed. The broken glass in the child's bed was observed by the caseworker. Additionally, there has been no incident of domestic violence by Mr. R. for over three years and the Court notes there was no physical violence toward Mr. B. who Mr. R. found in his home on three separate occasions.

Ms. R. would have the Court believe that Mr. R. is an unfit parent. Quite the contrary. Mr. R. has demonstrated that he cares greatly for his son and has done whatever is necessary for him to thrive and succeed. In fact, while there has been alternate weekend visitation with Lawrence, Jr., Mr. R. has permitted Ms. R. to have Friday night and Saturday visits during his weekends, when it is necessary for him to work on Saturdays during his busy season.

It is clear that Mr. R. has his son's best interests in mind, and has been able to successfully move beyond his failed relationship with Ms. R. Ms. R. on the other hand is unable to do so.

The Court must consider which parent will foster a relationship with the other parent. Bains v. Bains, 308 AD2d 557, 746 NYS2d 721 (2d Dept., 2003). Mr. R. has already demonstrated that he would facilitate visitation. He has allowed Ms. R. to have parenting time while he is working, and there is no reason to believe that he would not continue to do so.

This Court is confident that based on her actions, if awarded custody, Ms. R. would not facilitate visitation at all.

Based on the foregoing, the Court finds that it is in the child's best interests that custody of the child, Lawrence, Jr. be awarded to the father with alternate weekend visitation to the mother.

Ordered that, custody is awarded to the father, Lawrence R., with alternate weekend visitation to the mother, Kimberly R., and any other visitation as agreed between the parties including telephone communications; and it is further

Ordered that, both parents are to refrain from denigrating the other parent to the child or from allowing anyone else to do so; and it is further

Ordered that, there shall be no use of corporal punishment of any kind by either parent; and it is further [*18]

Ordered that, custody to the DSS is hereby vacated; and it is further

Ordered that, the permanency hearing scheduled for September 11, 2009, under docket numbers NN-xxxxx-xx/xx and NN-xxxxx-xx/xx, is hereby vacated.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

ENTER:

__________________________________

Honorable Ellen R. Greenberg

Dated:August 25, 2009Judge of the Family Court