Matter of C.O'C. v M.McD.

[*1] Matter of C.O'C. v M.McD. 2009 NY Slip Op 51875(U) [24 Misc 3d 1244(A)] Decided on April 21, 2009 Family Court, Westchester County Duffy, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 21, 2009
Family Court, Westchester County

In the Matter of Proceedings under Article 6 of the Family Court Act C.O'C., Petitioner,

against

M.McD., Respondent.



V-12682-04/08M



Eugene Dougherty, Esq. Attorney for Respondent

One Water Street, 3rd Floor

White Plains, New York 10601-1009

Gregory Salant, Esq.

Attorney for Petitioner

Harold, Salant, Strassfield & Speilberg

81 Main Street

White Plains, New York 10601

Therese R. Malach, Esq.

Law Guardian

470 Mamaroneck Avenue

White Plains, New York 10605

Colleen D. Duffy, J.

Although the Subject Child of this proceeding, E. McD. (DOB: 5/19/04) (hereinafter "Subject Child") is not yet five years old, this case already has had a long history before this Court. Over the last four-plus years, virtually the Subject Child's entire life, this Court has issued no less than four written decisions in connection with matters between the two parties, Petitioner-father C. O'C.l and Respondent-mother M. McD. (hereinafter "Petitioner-father" and "Respondent-mother", respectively); has held numerous court conferences over the years with the parties, their counsel and the law guardian; and has heard testimony from the parties as well as other witnesses in connection with the parties' custody and access to the Subject Child. As a result, this Court has issued numerous orders — both interim and final regarding access to and custody of the Subject Child by the parties.

[*2]History of the Case

On July 13, 2005, this Court entered an Order, issued on April 27, 2005, setting forth the terms of custody of and access to the Subject Child by the parties (hereinafter the "July 2005 Order"). The July 2005 Order was stipulated to by the parties on consent, without a hearing.[FN1]

Thereafter, in connection with another proceeding between the parties, in October 2005, the Court issued an interim order, on consent, continuing the terms of the July 2005 Order, granting one specific additional visit to Petitioner-father of October 28, 2005, and directing that Petitioner-father's then-girlfriend L. McD.[FN2] not sleep alone with the Subject Child who at that time was approximately seventeen months old.

In 2006, in connection with another proceeding between the parties, initiated by Petitioner-father seeking a modification of the July 2005 Order, the Court held a fact-finding and issued a Decision and Order, entered April 5, 2006 (hereinafter "April 2006 Order")[FN3], modifying the July 2005 Order to allow the Subject Child to attend Petitioner-father's planned upcoming wedding despite alternative plans by Respondent-mother, providing alternate overnight weekend visitation by the Subject Child to Petitioner-father, directing that each of the parties attend the PEACE program, and clarifying the terms of the July 2005 Order regarding the parties' respective vacation access schedules with the Subject Child and the notification requirements by each of the parties to the other in connection with such vacation schedules.

The April 2006 Order also continued all of the terms of the July 2005 Order that were not inconsistent with the April 2006 Order.

The Proceeding On Inquest

On March 10, 2008, Petitioner-father filed new two petitions pursuant to Article 6 of the Family Court Act: seeking to (1) modify the July 2005 Order and the April 2006 Order regarding the Subject Child; and (2) alleging that Respondent-mother violated the terms of the 2005 and 2006 Orders. [*3]

Specifically, Petitioner-father claimed that Respondent-mother (a) failed to sign releases, as required by the 2005 Order, which would allow Petitioner-father access to the Subject Child's medical records, (b) failed to consult with the Petitioner-father prior to making decisions about the Subject Child's medical needs; and (c) not participated in the New York State Parent Education and Awareness Program as ordered by this Court in the April 2006 Order.

On April 15, 2008, this Court held a preliminary proceeding on the petitions whereby Petitioner-father appeared with counsel, Gregory Salant, Esq., Harold, Salant, Strassfield & Spielberg, LLP; and Respondent-mother personally appeared with counsel Richard A. Bara, Esq. Respondent-mother entered denials to both petitions and this Court re-assigned Law Guardian Therese Malach, Esq. who had not been given notice of the preliminary proceeding date. This Court adjourned the matter to May 29, 2008 for conference on all matters.

On May 29, 2008, the parties with counsel appeared before this Court for conference and the Law Guardian appeared on behalf of the Subject Child. On that date, the Law Guardian reported to this Court during an attorneys' conference that she had sent letters to the Respondent-mother requesting that Respondent-mother make the Subject Child available to the Law Guardian and that the Law Guardian received no response from Respondent-mother.

On that date, Respondent-mother through her counsel made an oral application to have the Law Guardian removed as counsel for the Subject Child. The Court denied the oral application and directed that any such application must be made on written notice of motion.[FN4] The parties were unable to reach a resolution of the matters and this Court issued interim orders directing that (1) Petitioner-father shall have the right of first refusal to care for the child on the days that the Respondent-mother is at work and (2) Respondent-mother shall provide Petitioner-father with her work schedule when she is apprised of same; and (3) requiring Respondent-mother to ensure that the Subject Child is made available for the Law Guardian to meet with her. The matters were then adjourned for fact finding on October 1, 2008.

On July 1, 2008, Respondent-mother's attorney Mr. Bara filed an Order to Show Cause seeking to withdraw as counsel for Respondent-mother on the grounds that he had been unable, despite numerous attempts, "to have any significant contact or communication" with his client since the May 29, 2008 court appearance. See Affirmation of Richard Bara, Esq., dated June 30, 2008, attached to the July 1, 2008 Order To Show Cause.

Mr. Bara affirmed that he had scheduled two appointments to meet with Respondent-mother in June to address the orders the Court had directed at the May 29 [*4]court appearance. According to Mr. Bara's affirmation, Respondent-mother cancelled one appointment and simply failed to show up for the other. Mr. Bara also represented that a June 20, 2008 letter that he sent to Respondent-mother seeking to have her contact him about the October 1, 2008 trial was not responded to by Respondent-mother. See Attachment to Affirmation of Richard Bara, Esq.

The Order to Show Cause by Mr. Bara was heard by this Court on July 17, 2008. Petitioner-father appeared with counsel, Mr. Salant, Mr. Bara appeared and the Law Guardian appeared on behalf of the Subject Child. Respondent-mother failed to appear or oppose the proceeding by any means and did not communicate with this Court by any method as to a reason why she did not appear or consent to or oppose Mr. Bara's application.

Based on the papers submitted by Mr. Bara and there being no opposition to the relief sought, this Court granted Mr. Bara's Order to Show Cause and relieved Mr. Bara from representing the Respondent-mother.

On October 1, 2008, this Court held a fact finding on all matters. Petitioner personally appeared and was represented by Mr. Salant. The Law Guardian for the Subject Child also appeared. Respondent-mother failed to appear, did not contact this Court as to why she failed to appear, and never made any application for an adjournment of the matter. Petitioner-father requested this Court to proceed to fact-finding upon inquest. There was no opposition to Petitioner-father's application, the Court noted that Respondent-mother was properly noticed to appear in Court as she was present when the court date was set, and therefore this Court proceeded to Inquest.

On that date, this Court issued a Decision and Order After Inquest, entered November 5, 2008 (hereinafter the "November 2008 Order"), vacating and superceding the 2005 and 2006 Orders and granting sole legal custody of the Subject Child to Petitioner-father with shared physical custody of the Subject Child by the parties under certain terms and conditions set forth in the November 2008 Order.

The Instant Proceeding

Currently at issue before this Court is Respondent-mother's application, filed by Order to Show Cause on October 30, 2008, to vacate the November 2008 Order [FN5], as well as a cross motion by Petitioner-father, dated November 19, 2008, opposing Respondent-mother's motion to vacate and seeking counsel's fees in connection with [*5]the Inquest.

Petitioner-mother is asking this Court to excuse her default on the scheduled trial date of October 1, 2008 and to vacate the November 2008 Order contending that she failed to appear because she "had inadvertently wrote [sic] an incorrect date on [her] calendar." Petitioner-mother also asserts that she has a meritorious defense to Petitioner-father's assertions that she violated the terms of the custody order requiring the parties to confer on major decisions regarding the Subject Child's health, education and general welfare and that she failed to comply with Court orders requiring her to sign releases allowing Petitioner-father access to the Subject Child's medical and dental records.

For the reasons set forth herein, Petitioner-mother's motion to vacate is granted, in part, and Respondent-father's cross motion for attorneys fees also is granted.

Vacating a Default in a Custody Case

The Court has a liberal policy with respect to vacating defaults with respect to issues of custody. See Russo v. Camarasana, 26 AD3d 367 (App. Div. 2d Dep't 2006). Indeed, "[u]nless there is sufficient evidence before the court to enable it to undertake a comprehensive independent review of the child's best interests, . . . a determination of custody matter should only be made after a full evidentiary hearing." David A. A. v. Maryann A., 41 AD3d 1300 (App. Div. 4th Dep't 2007) citing Miller-Glass v. Glass, 237 AD2d 723 (App. Div. 3rd Dep't 1997).

Pursuant to CPLR 5015(a)(1), the Court may vacate a default if Respondent-mother can establish that she had a reasonable excuse for her default and a meritorious defense. See also Coates v. Lee, 32 AD3d 539 (App. Div. 2nd Dep't 2006). As noted below, this Court finds that Respondent-mother does not have a reasonable excuse [FN6], but, if credible, may have a meritorious defense to Petitioner-father's allegations.

In custody cases, the overriding considerations are the best interests of the child. David A. A. at 480. The determination to vacate an order entered upon default is within the sound discretion of this Court. Coates, at 837; Atkin v. Atkin,55 AD3d 905 (App. Div. 2nd Dep't 2008). Thus, the requirements of CPLR 5015 must be considered within the context of the best interests of the Subject Child. See Russo at 553. Indeed, the need to avoid a "roller coaster treatment of custody" (Schloss v. Schloss, 405 NYS2d 717, 718 (App. Div. 1st Dep't 1978)) dictates that a full evidentiary hearing on this matter should be held if there is not sufficient evidence before the Court to enable it to undertake a comprehensive independent review of the Subject Child's best interests. David A. A. at 480. This is so despite the fact that the excuse proffered by [*6]Respondent-mother is not credible or reasonable. See Id. at 480; Miller-Glass at 982.

Here, the Court notes that the July 2005 Order granting sole legal custody to Respondent-mother was entered on consent of the parties, without a fact-finding. In addition, although the Court held a fact-finding in 2006 and had the opportunity to evaluate the testimony of each of these parties regarding the Subject Child at that time, that proceeding was narrow in scope as the issues before the Court in that matter involved whether, despite alternative plans by Respondent-mother, Petitioner-father could have additional access to the Subject Child for the special occasion of his wedding as well as clarifying one of the access terms in the July 2005 Order regarding the parties' vacation schedules with the Subject Child.

Respondent-mother's right of sole legal custody of the Subject Child pursuant to the July 2005 Order was not at issue in that proceeding and no testimony or evidence was offered on that issue. See April 2006 Order.

Thus, the only evidence before this Court regarding the Subject Child's best interests with respect to the issue of legal custody is the uncontroverted testimony of Petitioner-father at Inquest. Although the Court credits Petitioner-father's credible testimony during Inquest, it notes that, in addition to awarding additional access time with the Subject Child to Petitioner-father, based on Petitioner-father's testimony, it reversed a three-year old order, entered on consent, that delineated the decision-making authority of the parties regarding the Subject Child by granting sole legal custody to Petitioner-father.

The Court also notes that the Law Guardian does not oppose the motion to vacate and that during the October 1 Inquest the Law Guardian indicated that she had not had the opportunity of observing the interaction between Respondent-mother and the Subject Child, albeit because of Respondent-mother's refusal to cooperate. See Court Tr., Oct. 1, p. 56.

Thus, it is this Court's position, particularly in light of the Subject Child's young age, and the prior existing order that has been in place since 2005, entered on consent, giving Respondent-mother sole legal custody, that a full evidentiary hearing on the issues of legal and physical custody of the Subject Child is in the Subject Child's best interests. David A. A., at 479; Schloss at 717; Atkin at 578 (determination to vacate default is within sound discretion of the Family Court).

Although Respondent-mother should, and, as set forth further, will be sanctioned for her conduct (or, in this case, her failure to act), the Court's need to determine the best interests of the Subject Child cannot be subjugated even to Respondent-mother's apparent deliberate failure to appear.

Petulance Not Inadvertence [*7]

As noted above, the Court finds that Respondent-mother has not articulated a credible excuse for her failure to appear on October 1, 2008. Indeed, the record of the May 29, 2008 court conference, Respondent-mother's failure to communicate with her counsel, her failure to even retain counsel until October 6, 2008, and her failure to cooperate with the attorney for the Child despite court order to do so all belie her contention that her absence on October 1 was inadvertent.

The scheduled date of October 1 was mentioned by this Court no less than six different times during the May 29 proceeding, including the Court making reference to the fact that the upcoming October 1 was a Wednesday. See Court Transcript, May 29, 2008, pp. 107, 108, 112, 115, 119. The Court's last words to counsel and the parties in this case during the May 29 conference were "Alright, October 1." See Court Tr., May 29 at p. 119. In addition, on that date, consistent with court protocol, the Court provided to each party, including Respondent-mother, written notification of the next court date of October 1, 2009. Moreover, on June 20, 2008, Respondent-mother's own attorney, Mr. Bara, sent a letter to Respondent-mother indicating that he and she needed to meet because "[t]he case is now scheduled for trial on October 1, 2008." See July 1 Order to Show Cause by Richard Bara, Esq. Thus, it is simply not believable that Respondent-mother failed to appear because she inadvertently wrote the wrong date for the trial on her calendar.

Notably, Respondent-mother never supplied a copy of that purported calendar to the Court with either of her affidavits nor did she indicate to the Court what the purported alternate date was supposed to be. Significantly, there is no record in the Court's files that Respondent-mother showed up at court on some purported alternate date for the fact-finding.

Respondent-mother's contention that she has never missed any other court date simply also is incredible. She failed to appear on the scheduled date of July 17, 2008 for the Order to Show Cause brought by Mr. Bara. At no time did this Court excuse her appearance on that date nor did she ever contact the Court either via telephone or in writing to ask to be excused because she did not oppose the motion. All other counsel and Petitioner-father were present as directed by the Court in the Order to Show Cause to appear. Respondent-mother was not.

After Mr. Bara's application was granted, Respondent-mother did not contact the Court to seek assigned counsel and no attorney filed a notice of appearance on behalf of Respondent-mother until October 8, 2008. See Notice of Appearance of Eugene R. Dougherty, Esq., dated October 7, 2008, filed with the Court on October 8, 2008. Indeed, the Attorney Affirmation attached to Respondent-mother's Affidavit in Opposition and Further Support of Respondent's Order to Show Cause, dated December 2, 2008, evidences that Respondent-mother did not even retain counsel until October 6, 2008 - five days after the Inquest. See Retainer Agreement, dated October 6, 2008, attached to Affirmation of Eugene Dougherty, Esq. It appears that Respondent-mother retained her current counsel only after being served with [*8]Petitioner-father's proposed order after inquest, via notice of settlement, by counsel for Petitioner-father on October 2, 2008. See Notation of 10/2/2008 "served order with notice of settlement" attached as Ex. D "Invoice of Professional Services" by Harold, Salant, Strassfield & Spielberg to the Notice of Cross Motion by Petitioner-father, dated November 19, 2008.

The timing of these acts— combined with Respondent-mother's failure to sign HIPPA releases or contact the law guardian as directed by the Court on May 29 — is evidence that Respondent-mother had no intention of actually attending the scheduled court date.

Indeed, Respondent-mother's actual reason for failing to attend the October 1 fact-finding appears to be simply petulance — her annoyance with the Court proceedings and the Court's rulings — and is evidenced in her comments to the Court during the May 29 proceeding when Respondent-mother articulated that she believed the Court's interim order on that date was "ridiculous." See Court Tr., May 29 at pp. 115-116. Respondent-mother's unhappiness with the Court's interim order apparently led her to decide not to cooperate with Court directives or even with her own at-the- time newly-retained attorney [FN7].

Following the May 29 proceeding Respondent-mother apparently ceased any significant contact with her attorney, failed to appear on July 17, 2008, did not retain new counsel on her behalf until October 6 -after receipt of the proposed order after Inquest, did not execute the HIPPA releases necessary to allow Petitioner-father access to the Subject Child's medical records as directed by the Court on May 29, and did not contact the Law Guardian to make the Subject Child available to the Law Guardian despite this Court's instruction to do so during the May 29 conference. See Court Tr. May 29 at pp. 71-72.

Respondent-mother's petulance with the Court proceedings and its May 29 interim order manifested itself as a failure to act. Much like "Bartleby, the Scrivener"[FN8], Respondent-mother "preferred not to" interact with her attorney, hire a new attorney, execute releases, contact the law guardian or participate in the Court proceedings, and, like Bartleby, has suffered the consequences when matters (and life) proceeded [*9]forward despite her absence.

Such behavior by Respondent-mother cannot be countenanced or rewarded. Petitioner-father with counsel and the Law Guardian appeared on July 17 and then on October 1 and proceeded to Inquest. As Respondent-mother has failed to articulate any reasonable basis for her failure to comply with court directives and her absence on the scheduled trial date in fact, the evidence shows that her failure to appear was deliberate and motivated not by inadvertence but by her annoyance with the Court process and its Orders this Court hereby imposes upon Respondent-mother the costs incurred by Petitioner-father for such proceedings and orders Respondent-mother to pay the reasonable fees and costs incurred by Petitioner-father as set forth below in connection with the October 1 proceeding within thirty days of her receipt of this Order.[FN9] Reasonable Attorneys Fees Awarded

Section 237(b) of the Domestic Relations Law empowers the court to award counsel fees in matters pertaining to child custody and visitation. See DRL §237(b). An award of counsel fees pursuant to DRL 237(b) is a matter within the sound discretion of the trial court and the issue is "controlled by the equities and circumstances of each particular case." See DRL § 237(b); see also Walker v. Walker, 255 AD2d 375 (App. Div. 2nd Dep't 1998). The Court may consider, as here, the fact that Respondent-mother engaged in conduct or failed to act which resulted in unnecessary litigation as a basis for the award of fees to Petitioner-father. See Ciampa v. Ciampa, 47 AD3d 745 (App. Div. 2nd Dep't 2008). The Court also has considered that fact that each of the parties has, and has always had in the proceedings before this Court, his/her own privately retained counsel in determining that an award of counsel fees is appropriate in this matter. Id.

Petitioner-father has sought the amount of $5,000.00 (five thousand dollars) in attorneys fees. The Court has reviewed the cross motion and exhibits attached thereto and finds that the costs and fees incurred by Petitioner-father for counsel in connection with preparing for inquest and the subsequent work to prepare the inquest order as set forth in Exhibit D to Petitioner-father's Cross Motion are reasonable and appropriate. Respondent-mother's failure to appear on the scheduled trial date caused Petitioner-father to incur those costs. She must be responsible for them.

The Court notes that its award of counsel fees excludes any fees and costs incurred by Petitioner-father with respect to opposing Respondent-mother's appeal to stay this Court's Decision after Inquest as such an award would not be appropriate from this Court. Any such application for such fees appropriately should have been made to the Appellate Division. See DRL § 237(b) (court's award of attorneys fees "may be made in the order or judgment by which the particular . . . proceeding is finally [*10]determined.")

Accordingly, upon this Court's consideration of the fees and costs incurred by Petitioner-father for his counsel's preparation for and in connection with this Court's Inquest, the Court hereby awards counsel fees to Petitioner-father in the amount of $3170.00 (three thousand one hundred and seventy dollars) which constitutes the costs for professional services from 9/24/2008 through 11/7/2008, excluding the services on 11/4/08, as set forth on Ex. D to Petitioner-father's Cross Motion, finding such costs to be reasonable and customary in connection with this case.

Respondent-mother is ordered to pay, within 30 days of service on Respondent-mother of this Decision and Order, attorneys fees to Mr. Salant of Harold, Salant, Strassfield and Spielberg, counsel for Petitioner-father, in the amount set forth above $3,170.00 (three thousand one hundred and seventy dollars).

Interim Order

Although the Court grants Respondent-mother's motion to vacate the default, for the reasons set forth below, the Court will continue its November 2008 Order as an Interim Order pending fact-finding on the underlying petitions (see Coates at 837).

This Court may modify an existing custody order when a party demonstrates "a change of circumstances which reflects a real need for change to ensure the best interests of the child." See Eschbach v. Eschbach, 56 NY2d 167, 172 (1982). In October 2008, the Court made such a change to the April 2005 Order based upon credible testimony, albeit on Inquest, that demonstrated that Respondent-mother had wholly failed to comply with her obligations, as sole legal custodian, to "consult in advance in a meaningful fashion with the father concerning major issues concerning the child's health, education, religious upbringing and general welfare." See April 2005 Order.

The Court noted at the Inquest that Respondent-mother's award of sole legal custody and residential parent of the Subject Child was, pursuant to the April 2005 Order, "subject to her obligation to consult" with Petitioner-father.

At the Inquest, serious issues were raised with respect to Respondent-mother's parental judgment in major decision-making with respect to providing Petitioner-father access to medical and dental records about the Subject Child as well as certain health and educational issues pertaining to the Subject Child. This Court held that Respondent-mother failed to consistently send the Subject Child to preschool after having decided to enroll the Subject Child and provided very limited access to Petitioner-father with respect to the Subject Child's health and dental records, despite prior Court rulings and directives. See Court Tr., Oct. 1, p. 62-63. The credible testimony evidenced that the Subject Child had missed over fifty days of preschool [*11]while in the care of Respondent-mother to the detriment of the Subject Child with respect to maintaining a stable and consistent schedule. Petitioner-father credibly testified that the absences made it difficult for the Subject Child to regularly attend pre-school without tantrums and crying. The Court also heard credible testimony regarding Respondent-mother's inappropriate handling of certain of the Subject Child's health issues.

It would be an abrogation of this Court's obligation to determine the best interests of the Subject Child if this Court were now to ignore that evidence pending a full trial. The fact that Respondent-mother now disputes, via affidavit, such evidence cannot derail this Court's determination of the best interests of the Subject Child based on the information available to the Court. Indeed, a change to the current November 2008 Order "should not be ordered merely on the strength of an affidavit where there is a conflicting affidavit nor should the court modify custody based solely on the filing of a motion." Virgil M.J. v. Dianne M., 820 NYS2d 846 {12 Misc 3d 1166(A)} (NY Fam. Ct. 2006).

Accordingly, based on the foregoing, and all of the proceedings had herein, it is this Court's position that the terms and conditions of the Court's November 2008 Order After Inquest shall continue, as an Interim Order as set forth below, pending a full trial on the issues alleged by Petitioner-father in his original petitions.

Accordingly, IT IS HEREBY ORDERED that the Decision and Order After Inquest, entered November 5, 2008 is hereby vacated; and it is further

ORDERED that Respondent-mother must pay Petitioner-father's attorneys fees in the amount of $3,170.00 within thirty days of service of this Order; and it is further

ORDERED that the matters are set for a conference on May 29, 2009 at 10:00 a.m. so that counsel and parties may select with the Court a date for an all day hearing; and it is further

ORDERED that, pending a trial on the matter, it is in the Subject Child's best interests for the 2005 and 2006 Orders to be modified as follows:

ORDERED that temporary sole legal custody of the Subject Child E. MCD. (DOB:5/19/2004) is hereby awarded to C. O'C.; and it is further

ORDERED that C. O'C. and M. MCD. are awarded temporary joint physical custody of the Subject Child; and it is further

ORDERED that C. O'C. shall keep M. MCD. apprised of any major issues regarding the Subject Child, including but not limited to the Subject Child's health, education, religion and general welfare. However, decision making authority on all such issues is hereby awarded to C. O'C.; and it is further [*12]

ORDERED that the provision in the 2005 Order directing that L. MACD. (a.k.a. L. O'C) is not be alone with the Subject Child is hereby vacated; and it is further

ORDERED that if M. MCD. is scheduled to work or requires a caretaker for the Subject Child for any time period of an hour or greater she shall immediately notify C. O'C. and give him the right of first refusal to care for the Subject Child; and it is further

ORDERED that the parties' access schedule with the Subject Child shall be as follows:

Petitioner-father shall have the Subject Child on alternating weekends from Friday after school, or 4:30 p.m. if there is no school, through Monday mornings whereby Petitioner-father shall ensure the Subject Child is taken to school on Monday mornings, or if there is no school until Monday at 6:30 p.m. However, in the event Petitioner-father has to work on Monday, his weekend shall end on Sunday evening at 6:30 p.m. Such alternating weekends shall take place on the weekends in which Petitioner-father is not required to work; whenever Petitioner-father's work schedule is modified and such modification effects the alternating weekend schedule as set forth herein, Petitioner-father shall immediately notify Respondent-mother so the alternating weekends can be changed to the opposite weekends; and Every Wednesday from after school, or if there is no school at 12:30 p.m., overnight through Thursday morning whereby Petitioner-father shall ensure the Subject Child is taken to school, or if there is no school until Thursday at 6:30 p.m.

An additional five (5) overnights per month to be selected by Petitioner-father, with advance notice to Respondent-mother, to be taken on weekday evenings, preferably on evenings in which Respondent-mother is working the following day. Such overnight weekday visits shall commence after school, or 12:30 p.m. if there is no school and shall end with Petitioner-father ensuring the Subject Child is taken to school the following morning, or if there is no school until 6:30 p.m. that day; and it is further

ORDERED that Respondent-mother shall have the Subject Child at all other times except as set forth further herein; it is further

ORDERED that the parties shall adhere to the following holiday/vacation schedule with the Subject Child:

Easter Sunday shall be alternated each year with Petitioner-father having the Subject Child on Easter Sunday in odd years (2009, 2011, etc.) and Respondent-mother having the Subject Child on Easter Sunday in even years (2010, 2012, etc.); and

July 4th shall be alternated each year with Respondent-mother having the Subject Child on July 4th in odd years (2009, 2011, etc) and Petitioner-father having the Subject Child on July 4th in even years (2008, 2010, etc.) For purposes of this order, July 4th shall be defined as commencing on July 4th at 10:00 a.m. and ending on July 5th at 10:00 a.m.; and

Thanksgiving Holiday shall be alternated each year with Petitioner-father having the Subject Child on Thanksgiving Holiday in even years and Respondent-mother having the Subject Child on Thanksgiving Holiday in odd years. The Thanksgiving Holiday shall be from the day before Thanksgiving Day at 6:30 p.m. through the following Sunday at 6:00 p.m.; and [*13]

Respondent-mother and Petitioner-father shall annually alternate spending Christmas Eve with the Subject Child with Petitioner-father having the Subject Child on Christmas Eve in odd years and Respondent-mother having the Subject Child on Christmas Eve in even years. For purposes of this Stipulation, Christmas Eve shall be defined as commencing on December 24th at 3:00 p.m. and shall end on December 25th at 10:00 a.m.; and

Respondent-mother and Petitioner-father shall annually alternate spending Christmas Day with the Subject Child with Petitioner-father having Christmas Day with the Subject Child in even years and Respondent-mother having Christmas Day with the Subject Child in odd years. For purposes of this Stipulation, Christmas Day shall be defined as commencing on December 25th at 10:00 a.m. and shall end on December 26th at 6:30 p.m.; and

The Subject Child shall be with Petitioner-father on Father's Day. In the event Father's Day falls on Respondent-mother's weekend, Petitioner-father shall be with the Subject Child from 10:00 a.m. through 7:00 p.m. that day; and

The Subject Child shall be with Respondent-mother on Mother's Day. In the event Mother's Day shall fall on the Petitioner-father's weekend, Petitioner-father shall return the Subject Child by 10:00 a.m. that day; and

The parties shall alternate spending Halloween with the Subject Child with Respondent-mother having Halloween with the Subject Child in even years and Petitioner-father with the Subject Child in odd years; and

The parties shall alternate the Christmas/New Years break with the Subject Child each year with Petitioner-father having such break with the Subject Child in even years and Respondent-mother having such break with the Subject Child in odd years. For purposes of this order, the Christmas/New Years break shall commence on December 26th at 6:30 p.m. and shall end the evening before school recommences at 6:30 p.m.; and

The parties shall alternate spending Mid-Winter recess (a.k.a. February break, or President's week) with the Subject Child with Petitioner-father having such break with the Subject Child in even years and Respondent-mother having such break with the Subject Child in odd years; and

The parties shall alternate spending Spring recess (a.k.a. Easter Recess) with the Subject Child with Petitioner-father having such break with the Subject Child in odd years and Respondent-mother having such break with the Subject Child in even years; and

Each party shall have the right to four (4) uninterrupted weeks, from a Saturday to a Saturday, with the Subject Child during the summer months; such weeks may be consecutive or non consecutive but there shall not be more than two consecutive weeks taken at one time unless the parties agree otherwise. Each parent shall give the other written notice by May 15th of every year as to which four (4) weeks he/she elects to share with the Subject Child during the summer. In the event there is conflict of which weeks the parties will have with the Subject Child during the summer, Petitioner-father shall have first option of which weeks in even years and Respondent-mother shall have the first option of which weeks in odd years.

In the event a Monday is legal holiday in which the Subject Child does not have [*14]school, whichever parent was with the Subject Child during the preceding weekend shall have the right to spend that day with the Subject Child; and it is further

ORDERED that the holiday/vacation schedule as set forth herein shall supersede the regular access schedule set forth above; and it is further

ORDERED that the parties shall have the right to provide for additional access periods with the Subject Child as the two of them mutually agree upon.

The Court has considered the following in connection with its decision: Order to Show Cause by Respondent-mother, dated October 30, 2008, and affidavits and exhibits attached thereto; Affirmation of Therese Malach, Attorney for the Child, dated November 12, 2008; Notice of Cross Motion by Petitioner-father, dated November 19, 2008, and affidavits and exhibits attached therto; and Affidavit of M. McD. in Opposition and in Further Support of Respondent's Order to Show Cause, dated December 2, 2008; Order to Show Cause by Richard Bara, Esq, dated July 1, 2008 and exhibits attached thereto; Audio Transcript of Proceeding of July 17, 2008; Notice of Appearance of Eugene R. Dougherty, Esq., dated October 7, 2008, filed on October 8, 2008.

This constitutes the Decision and Order of this 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 COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

Dated: April 21, 2009

Yonkers, New York

ENTERED:

____________________________________Colleen D. Duffy

Judge of the Family Court

cc:

Footnotes

Footnote 1: In connection with that proceeding, the Court issued a Decision and Order, and thereafter an Amended Decision and Order, entered January 26, 2006, directing that the parties privately pay the law guardian for her costs and fees and specifically allocating those costs and fees between the parties.

Footnote 2: L. McD. now is Petitioner-father's wife and they now have a daughter, who is the half-sibling of the Subject Child.

Footnote 3: While the 2006 matter was sub judice, the Court issued an interim order, dated March 7, 2006, specifically delineating overnight visitation dates by Petitioner-father with the Subject Child for the months of February, March and April 2006, and continuing all other provisions of the July 2005 Order.

Footnote 4: No such written motion was ever submitted to this Court.

Footnote 5: On October 1, 2008, the Court provided counsel for Petitioner thirty days to file a proposed access schedule for the parties in connection with this Court's decision after Inquest on that date. Thus, the November 2008 Order was entered a few days after the proposed access scheduled was received by the Court.

Footnote 6: Indeed, the Court finds Respondent-mother's excuse incredible as noted further herein.

Footnote 7: Respondent-mother was represented in the proceedings before this Court in 2005 and 2006 by different counsel at that time - Vincent P. D'Andrea, Esq. Mr. Bara filed his notice of appearance with this Court as counsel for Respondent-mother on April 15, 2008. His Order to Show Cause to be relieved as counsel for Respondent-mother was granted July 17, 2008.

Footnote 8: "Bartleby, the Scrivener": A Story of Wall Street" is a novelette by Herman Melville which first appeared in Putnam's Magazine, in two parts, November and December 1853. Bartleby, a scrivener, refuses to proceed, first with work, then with life itself. Bartleby's downward spiral and ultimate demise are premised on his "preference not to." Melville's narrator of Bartleby's story opines at the end, "Ah, Bartleby! Ah, humanity!"

Footnote 9: The Court notes that Petitioner-father has not sought attorneys fees for costs incurred by the law guardian in connection with the October 1 Inquest. Accordingly, the Court has not awarded any costs or fees incurred by the Law Guardian.