D.G. v S.G.

[*1] D.G. v S.G. 2009 NY Slip Op 51923(U) [24 Misc 3d 1249(A)] Decided on September 3, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 3, 2009
Family Court, Westchester County

D.G., Petitioner/Respondent,

against

S.G., Respondent/Petitioner.



V-05378-03-07N



Stephen P. Gold, Esq.

Gold & Duker

470 Mamaroneck Avenue Suite 210

White Plains, New York 10605

Lawrence S. Horowitz, Esq.

199 Main Street

White Plains, New York 10601

Timothy Brennan, Esq.

Counsel (at the time of the Proceeding)

One North Broadway, Suite 412

White Plains, New York 10601

Brett Kimmel, Esq.

The Law Firm of Brett Kimmel, P.C.

275 Madison Avenue, Suite 1711

New York, New York 10016

Colleen Duffy, J.

This case has had a long history before this Court as detailed extensively in this Court's Decision and Order After Fact Finding, entered December 22, 2006 (hereinafter the "2006 Order") and modified by order entered on June 25, 2007 (hereinafter the "2007 Order"), which decisions on the facts are adopted herein by reference. In short, for virtually the entire life of the Subject Child A. G (DOB: 9/15/02) (hereinafter, the "Subject Child"), the parties have been litigating matters — specifically, family offense proceedings, custody and visitation disputes, and matrimonial and child support matters — in this Court as well as in state court in California.

With respect to court filings in this Court by the parties subsequent to the 2006 Order, seven petitions were filed by the parties; five by Petitioner/Respondent father D. G (hereinafter "Mr. G.") and two by Respondent/Petitioner mother S. G ("hereinafter "Ms. G") each alleging that the other party violated this Court's 2006 and 2007 Orders. The petitions filed by Mr. G again requested a change in custody and any other such [*2]further relief as the Court may find just. The petitions, one of which already was dismissed by the Court, filed by Ms. G requested a change in the parties' access schedule to the Subject Child seeking to increase in Ms. G's access time.

The Court consolidated the remaining petitions for the purposes of fact-finding and held a fact finding matter on these petitions on May 28, 2008. The proceeding was not concluded on that date and was continued on May 29, October 7 and 14, 2008, and February 3, 5, 6, 9 and 10, 2009. The only two witnesses who testified are the parties. While the Court has considered all of the testimony and evidence submitted, given the extensive nature of the record — which is more than 900 pages of trial transcripts and numerous exhibits — the Court will address only the crucial testimony and documents critical to its decision on the best interests of the Subject Child.

This is one of the worst type of custody cases before the Court — two parents who apparently hate each other more than they love their child. In light of the history of the parties, the likelihood is that — notwithstanding this decision and order litigation between them about the Subject Child will continue until he turns 18.[FN1]

Unfortunately, although this Court truly believes that both parties love the Subject Child, it is clear that neither parent will sincerely promote the Subject Child's relationship with the other. Indeed, the evidence shows that each — through their inability to communicate and compromise — has attempted to undermine the other's relationship with the Subject Child. Thus, it is this Court's sad conclusion that, although each parent has demonstrated the ability to care for, shelter, and nurture the Subject Child equally well, neither party has demonstrated an ability to foster and promote the relationship between the Subject Child and the other parent.

With respect to credible testimony, the Court found that, with respect to many of the material facts, each of the parties was only marginally credible. Each party's version of events was clearly colored by each's own self interest - and motives - each purporting to act in the best interests of the Subject Child but each of whom clearly often was not. Nonetheless, the Court does not discount all of the testimony of either party. Rather, based on what the Court has found to be credible testimony and evidence, as noted further herein, this Court finds that each party has established certain of the allegations in the petitions pending against the other regarding violations of this Court's 2006 and 2007 Orders.

The Court also finds that the evidence shows that each party continues to demonstrate not only a disregard for this Court's Orders but also the authority and orders of the California Court (with respect to the undisputed testimony that the parties have failed to procure medical insurance coverage for the Subject Child despite a California court order requiring the same).

It is this Court's determination that each party also has demonstrated improper motives — that is, without consideration of the best interests of the Subject Child with respect to the litigation and matters herein. First, as previously noted by this Court in its 2006 Order, Ms. G has failed — and continues to fail — to meet her obligation as the [*3]primary custodian of the Subject Child to foster a healthy relationship between the Subject Child and the father. For example, in one instance Ms. G placed the Subject Child on the telephone with Mr. G so that the Subject Child could inform Mr. G that he did not wish to spend Halloween 2007 with his father (despite the terms of the Court order which afforded Mr. G that particular date with his son). See Ex. 7. In addition, the Court finds credible Mr. G' version of the events at the parties' chance meeting at a post office wherein Ms. G directed the Subject Child to ask Mr. G if he could leave with his mother even though it was still Mr. G' visitation with the Subject Child.

The Court also credits as credible Mr. G's testimony that Ms. G has disparaged and denigrated him in the presence of the Subject Child and others, calling Mr. G names such as "Idiot" and yelling at him in front of the Subject Child and telling him "I hope you die." See May 28, 2008 Transcript ("Tr.") pp. 76-78, 80; Feb. 3, 2009 Tr. p. 9.

In addition, the Court finds credible Mr. G's contention that Ms. G repeatedly puts the Subject Child in a position of having to "choose" between his parents by directing the Subject Child to make such inquiry of his father, to wit: "Ask your dad if you can come with me . . ." ( see Oct. 7, 2008 Tr. p. 39); ". . .do you want your father to pick you up? . . . (see Oct. 9, 2008 Tr. p. 119); "you have to ask [your father]" (see Feb. 9, 2009 Tr. p. 125); and, when the Subject Child is speaking to Mr. G on the telephone, "get off the phone" or "hang up the phone" (see May 28, 2008 Tr. pp. 49-50).

Such behavior manifests not only poor parental judgment by Ms. G but also her contempt for Mr. G's parenting time with the Subject Child and evidences Ms. G's need to "win" the Subject Child's affections away from Mr. G.

Nonetheless, Mr. G also appears before this Court with "unclean hands." The Court notes that it has found Mr. G in contempt of court, after a hearing, in connection with these very proceedings due to his surrepetitious taping of the Court proceedings and his lying about so doing upon this Court's inquiry to him. See Feb. 5, 2009 Tr. at pp. 2-3.[FN2] The Court also notes that Mr. G surrepetitiously taped telephone conversations that he had with Ms. G as well as with his son to gather "evidence" for this proceeding. Mr. G' propensity to tape such conversations demonstrates, at the very least, poor parental judgment; to wit, placing his own need to have his child live with him above the privacy rights of the Subject Child as well as the need of the Subject Child to continue in his stable residence and to have an assurance of future stablility.

Mr. G' propensity to file violation petitions for even de minimus violations — such as not obtaining from Ms. G certain educational, medical and school event information that she is required to provide but which information clearly is available to Mr. G to find out on his own without undue effort also evidences Mr. G' litigation zeal and a clear intent by Mr. G to continue to litigate the issue of the Subject Child's custody until, presumably, he obtains custody or the Subject Child turns 18.

Mr. G' own testimony also evidences his inability to make appropriate parental judgments when it relates to Ms. G's decision-making or her role as sole legal [*4]custodian. For example, Mr. G has criticized Ms. G's choice of church and religious activities although, as sole legal custodian, it is within Ms. G's purview to make such choices. Irrespective of whether the Subject Child should or should not be raised in the Assyrian faith and cultures, Ms. G is the sole legal custodian entitled to make a decision on that matter. Rather than respect Ms. G's position as sole legal guardian on this matter, Mr. G has questioned that decision-making claiming that Ms. G's choices about the Subject Child's activities and her selection of a church are inconsistent with raising the Subject Child in the Assyrian tradition.

Thus, this Court is in the unenviable position of again hearing testimony from two squabbling parents whose credibility and motives each are quite suspect and who each accuse the other of violating the terms of the 2006 and 2007 Orders and each of whom has demonstrated a propensity to ignore this Court's orders if such orders do not suit him/her.

The Court concurs with the Law Guardian's conclusion that both parties have evidenced an inability to promote the other's relationship with the Subject Child and that because each believes that the Subject Child should reside with him/her and not the other parent they each have failed to cooperate with each other to ensure the best interests of the Subject Child. Indeed, their failure to cooperate has undermined the best interests of the Subject Child. For example, Mr. G' scheduling of vacations that interfered with the mother's one weekend per month access to the Subject Child, without appropriate make-up visitation, is troubling. Ms. G's refusal to allow Mr. G to have the Subject Child during a time period which included both his graduation ceremony and his family visiting from California likewise is troubling. The Subject Child thus missed seeing relatives from California, including his grandparent, as well as missing an important milestone in his father's life. And, Ms. G's refusal to change the drop off site for visitation from Mr. G' home to the church where Mr. G was volunteering speaks volumes about the pettiness to which each party will stoop to avoid accommodating the other — all to the detriment of the Subject Child.

What to do? Since the Court can't split the child in half nor is it terminating either parent's parental rights, in essence, this Court must choose "the lesser of two evils" in terms of a primary custodial parent and issue an order that, in theory, if not in practice (that lies in the hands of the parties), promotes the best interests of the Subject Child.

Accordingly, for the reasons articulated above and as set forth below, the Court cautiously continues the existing custody arrangement of sole legal and physical custody of the Subject Child to Ms. G with liberal visitation to Mr. G as set forth further herein, but revokes and supercedes the terms of the 2006 and 2007 Orders and replaces such Orders with the specific terms and conditions set forth further herein.

As an initial matter, while the best interests of the child is the primary consideration in a child custody proceeding, a modification of an existing custody arrangement should be allowed only upon a sufficient showing of a change in circumstances warranting a real need for a change in order to insure the continued best interests of the child. See McCauliffe v. Peace, 176 AD2d 382, 383 (App. Div. 3rd Dept. 1991); Meola v. Meola, 301 AD2d 1020. Moreover, "priority, in the first instance, will be accorded an existing custodial arrangement," with the weight accorded to such arrangement dependent upon "whether the prior disposition resulted from a full hearing [*5]or a stipulation." See Maher v. Maher, 1 AD3d 987 (App. Div. 4th Dept. 2003) citing Friederwitzer v. Friederwitzer, 55 NY2d 89.

Here, after several years of "failed" stipulated orders on consent as to legal custody and Mr. G' access to the Subject Child, the Court had a full hearing on this issue of custody and access which resulted in the 2006 and 2007 Orders.[FN3] Thus, the Subject Child's right to stability and permanency with the same parent — after a full hearing on the issue — should only be undermined if the "totality of the circumstances warrants a change that is in the best interests of the Subject Child." Matter of Salvati v. Salvati, 221 AD2d 541 (citations omitted).

The Court notes that, in its past Decision and Order arising out of the 2006 hearing, the Court had observed that a change in legal and physical custody of the Subject Child could be warranted if Ms. G were to persist in behavior that undermines Mr. G's relationship with the Subject Child.

As noted above, although the Court does find that each party has established certain violations by the other of the 2006 and 2007 Orders, and Ms. G has continued to fail to promote the relationship between the Subject Child and his father, in view of the totality of the circumstances, Mr. G has failed to establish that a change in custody to him at this time will ensure the Subject Child's best interests. Indeed, the history of the parties now has shown that neither party can be relied upon to promote the other's relationship with the Subject Child and the Court has no reason to believe that the interaction, lack of cooperation and acrimony between the parties will be ameliorated if custody were to change.

Notably, the evidence at trial demonstrates that Mr. G used the language of the 2006 Order which provided him two weeks vacation (superceding the regular visitation schedule) to effectively trump Ms. G's one weekend per month with the Subject Child. Mr. G also has precluded Ms. G from enjoying any consecutive time periods with her son beyond those prescribed in the 2006 and 2007 Orders to the Subject Child's detriment as the Subject Child has missed social and maternal family events.

In addition, Mr. G has made clear that he believes it is a priority that the Subject Child be raised with Assyrian language and traditions and that the Subject Child is exposed to Assyrian culture and religion. Feb. 5, 2009, Tr. pp. 12-14; 28-30; 42-45. Mr. G testified that Ms. G has failed to do so. Feb. 5, 2009, Tr. pp. 14-17. Mr. G's testimony made it clear to this Court that, if Mr. G were to have legal custody of the Subject Child, the child's educational, social and religious experiences would be dramatically changed so that Mr. G could achieve what he believes Ms. G has failed to do with the Subject Child.

Mr. G testified that — on this issue which he views as paramount he disagrees with Ms. G's decisions up-to-now as sole legal custodian and would make changes that likely would change significantly the Subject Child's current existence in all areas — [*6]social, educational and religious. See Feb. 5, 2009 Tr. at 16-17 (to wit, learning Assyrian language is more important than summer camp). Thus, a change in legal and physical custody from Ms. G to Mr. G would mean not only a change in the Subject Child's daily routine from living primarily with his mother to living primarily with his father, it would result in a dramatic upheaval of the Subject Child's current existence on almost all fronts.

This Court finds that, despite Mr. G having established violations by Ms. G, a change in legal and physical custody of the Subject Child to the father is not an appropriate remedy here as the mutual acrimony and lack of cooperation between the parties is not likely to be abated and the Subject Child's best interests would not be served.

Moreover, the Court notes that, with respect to his access to the Subject Child, in this current proceeding, Mr. G testified to only a handful of instances in a period of almost two years in which Ms. G intentionally interfered with his access to the Subject Child. In most of those instances, although Mr. G did not have the visitation he sought with the Subject Child, he did have access to the Child, though less than that to which he was entitled pursuant to the 2006 and 2007 Orders. Moreover, although Mr. G does not speak to the Subject Child over the telephone as often or as long as he would like to under the 2006 and 2007 Orders, he did admit that he does speak to the Subject Child.

The Court also does not find credible Mr. G's testimony that he has been unable to participate in his son's educational events and planning as the evidence is clear that it is only Mr. G' discomfort with ensuring that he is in the "loop' of information and activities that has precluded him from independently obtaining all requisite information in a timely fashion. The Court makes the same finding with respect to Mr. G' access to information about medical and other service providers. The evidence at trial makes it quite clear that Mr. G' violation petitions about Ms. G's affirmative obligation to provide to him doctor and educational information, even though established, would not, in and of themselves, rise to a level of a change of custody. The Court also finds, that despite the violations established by Mr. G, a change in physical or legal custody simply is not warranted in this case.

Nonetheless, the Court finds that the evidence adduced at trial dictates that the current Order concerning custody and visitation must be changed for the best interests of the Subject Child. Accordingly,

IT IS HEREBY ORDERED that any and all prior Orders concerning custody and/or visitation with the Subject Child are hereby superceded by this Order as set forth further herein.

Turning to the issue of this Court' s contempt finding againstMr. G, the Court notes that, the penalty for civil contempt is limited to a "fine and imprisonment, or either" (Judiciary Law § 753[A]; Family Court Act § 156); see Labanowski v. Labanowski, 4 AD3d 690, 693 (App. Div. 3rd Dept. 2004). Based on these proceedings, the Court finds that an appropriate remedy for Mr. G's contempt is the admonishment already given to him by this Court existing in this Court's record and financial remuneration, to wit, Mr. G will be financially obligated to pay seventy five percent of the entire cost of an approved parent coordinator as set forth further herein. [*7]

For all of the reasons articulated above, and upon consideration of all the credible testimony and evidence, and, upon consideration of all of the factors with respect to the Subject Child's best interests, the Court orders the following:

ORDERED that Ms. G be afforded sole legal and physical custody of A. G, date of birth, September 15, 2002; and it is further

ORDERED that within three months (90 days) of receipt of this Order, Ms. G shall arrange for the Subject Child to commence psychological counseling with a family therapist, psychologist or certified social worker, and both Ms. G and Mr. G shall bear the cost equally (50 percent each) of any out-of-pocket costs for such counseling (to wit, costs that are not covered by or are unreimbursed through either parties' health coverage); and it is further

ORDERED that both Ms. G and Mr. G shall cooperate and participate with, as required, the Subject Child's therapy/counseling (including, but not limited to, attending any and all sessions as required by such therapist/counselor); and it is further

ORDERED that Ms. G shall provide in writing to Mr. G and to the Attorney for the Subject Child the name and contact information of such therapist/counselor on or before the expiration of the 90 days referenced above; and it is further

ORDERED that Ms. G shall execute a release provided to her by the Attorney for the Child to allow any such therapist/counsel to communicate with the Attorney for the Child so that such attorney may ensure that this Order is complied with by the parties; and it is further

ORDERED that Ms. G has an affirmative obligation to provide in writing to Mr. G on October 1 of each year the names of any and all of the Subject Child's educational, medical, dental providers and any other providers in connection with the Subject Child's general health and welfare including day care providers even if such providers have not changed from year to year as well as written notice of any changes and any new contact information for such providers within thirty days of her receipt of such information; and it is further

ORDERED that Ms. G provide to Mr. G within thirty days of receipt of this Order releases allowing Mr. G to access information, records or documents from all such educational, medical and dental providers without having to obtain same from Ms. G directly and Ms. G must provide any additional releases sought by Mr. G as to such information, records or documents within thirty days of her receipt of a written request by Mr. G for the same; and it is further

ORDERED that Ms. G provide to Mr. G in writing, via email to an email address provided, in writing, by Mr. G to Ms. G within fourteen days of receipt of this Order, notice of any and all scheduled doctor's appointments and dentist appointments within 72 hours of making such appointments or within a reasonable time frame if such appointments are made on less than 72 hours notice; and it is further

ORDERED that Mr. G shall have five weeks of visitation each year (hereinafter "vacation visitation") which is to occur within any or part of the Subject Child's February school recess, Spring school recess and summer vacation, consistent with the child's academic calendar, and that no more than two weeks visitation (fourteen days) be consecutive except as set forth further herein. During all such vacation visitation Mr. G must ensure that the Subject Child attends school if the Subject Child's school is in [*8]session during any part of the vacation visitation. Such vacation visitation shall supercede any regularly scheduled visitation except that, to the extent that any such visitation supercedes the mother's scheduled weekend with the Subject Child, Ms. G shall have make up time for such weekend during a weekend of her choosing (but not within that fourteen day or seventeen day period as noted below); and it is further

ORDERED that if any such vacation visitation abuts a weekend in which Mr. G ordinarily would have visitation such that his access to the Subject Child would exceed fourteen consecutive days, on two separate occasions during each calendar year, Mr. G may extend such vacation visitation to beyond the fourteen consecutive days, to no more than seventeen such consecutive days, unless otherwise agreed by the parties, on the condition, as noted above, that Mr. G ensures that the Subject Child attends school if the Subject Child's school is in session for any part of that extended vacation visitation; and it is further

ORDERED that any regularly scheduled visitation that Mr. G ordinarily would have that would extend such vacation visitation to beyond seventeen consecutive days becomes additional access time for Ms. Ge with the Subject Child - solely connected to that particular vacation visitation block in that particular year and then Mr. Gs' regular visitation will resume; and it is further

ORDERED that each calendar year, subject to Mr. G' selection of his five vacation visitation weeks, during the summer months in which the Subject Child's school is not in session (or, if Mr. G has not exercised his vacation visitation during the Subject Child's other school breaks such as February recess, Spring or Easter recess, Winter/Christmas recess), Ms. G shall have two weeks (seven days or fourteen days or seventeen days as set forth herein) of access time with the Subject Child (hereinafter "vacation access"), which vacation access shall supercede Mr. G' regularly scheduled visitation; and it is further

ORDERED that should Ms. G's vacation access with the Subject Child abut her regularly scheduled weekend with the Subject Child, Ms. G's vacation access may extend to seventeen consecutive days provided that Ms. G ensure that the Subject Child attend school if the Subject Child's school is in session during any part of that vacation access; and it is further

ORDERED that any regularly scheduled access that Ms. G ordinarily would have that would extend her vacation access to beyond seventeen consecutive days becomes additional visitation time for Mr. G with the Subject Child - solely connected to that particular vacation access block in that particular year and then Mr. G' and Ms. G's regular weekend access time will resume; and it is further

ORDERED that Mr. G must notify Ms. G in writing by May 15th of every year as to which weeks he plans to utilize during the summer school recess and reasonable notice (in excess of fourteen days) in advance of his intention to exercise some or part of his vacation visitation for the Winter/December or February and/or Easter/Spring School recesses; and it is further

ORDERED that if Mr. G fails to meet the timetable set forth in the paragraph above as to written notification to Ms. G of his intention to utilize his vacation visitation during any of those periods set forth above, Ms. G may notify, in writing, Mr. G of her intention to use all or part of her vacation access with the Subject Child within a [*9]reasonable time in advance of such use; and it is further

ORDERED that each month Mr. G shall have weekend visitation with the Subject Child from after school on Friday where he picks up the Subject Child until Monday morning when he transports the Subject Child to school in a timely fashion; except for the third weekend of each month which shall constitute Ms. G's access time with the Subject Child, and, if a month has more than four weekends (which means that the Friday of that weekend falls within the same month as four other Fridays of that same month), Ms. G shall have access time with the Subject Child during such "fifth" weekend; and it is further

ORDERED that Ms. G shall not be present at school during Mr. G' pick up or drop off time of the Subject Child to school; and it is further

ORDERED that in the event that the Monday following Mr. G' weekend visitation is a legally recognized holiday in which the child's school is closed, then said weekend visitation shall be extended until Monday at 5:00 p.m.; and it is further

ORDERED that Mr. G shall have visitation with the Subject Child on alternate Wednesdays commencing at 5:00 p.m. and continuing through the beginning of the Subject Child's school day the next morning where the father shall transport the Subject Child to school in a timely fashion unless the following day is a legally recognized school holiday in which the Subject Child's school is closed, and then such visitation shall be extended until 5:00 p.m. and on those alternate Wednesdays when there is no overnight visitation as set forth herein, the father shall have visitation with the Subject Child from 3:30 p.m. until 7:30 p.m.; and it is further

ORDERED that if either party travels with the Subject Child in excess of one overnight, the traveling party shall provide to the other parent, in writing, in advance of such travel, a contact telephone number and address at which the Subject Child may be reached; and it is further

ORDERED that in the event that Ms. G employs or otherwise uses a babysitter to care for the Subject Child, other than a brief excursion for errands (to wit, two hours or less) she shall first notify Mr. G, who shall have the right

Of first refusal" to care for the Subject Child in lieu of the Subject Child being cared for by a babysitter except that any summer camp in which the Subject Child is enrolled shall not constitute "babysitter" for the purposes of this paragraph but a "day care" (not day camp) shall; and it is further

ORDERED that neither party shall remove the Subject Child from the contiguous United States without the written consent of the other party, or prior Court approval; and it is further

ORDERED that the parties shall each have the right to celebrate Easter in alternate years with the Subject Child, with Mr. G having Easter with the Subject Child in odd years, and Ms. G having Easter with the Subject Child in even years irrespective of scheduled visitation weekends, vacation access or vacation visitation; and it is further

ORDERED that at 5:00 p.m. on the Wednesday prior to Thanksgiving through Friday at 10:00 a.m. Mr. G will have visitation with the Subject Child in even years and Ms. G will have the same Thanksgiving schedule in odd years. In the event that Thanksgiving falls on Mr. G' alternate weekend, the father will have visitation in accordance with the weekend visitation schedule and does not have to return the [*10]Subject Child on said Friday after Thanksgiving; and it is further

ORDERED that in even years on Christmas Eve until 10:00 a.m. on Christmas Day Ms. G shall have the Subject Child then Mr. G shall be afforded uninterrupted visitation beginning at 10:00 a.m. on Christmas Day through 6 p.m. of the evening preceding the commencement of the Subject Child's school. In odd years the parties' aforementioned access with the Subject Child during the Christmas holiday and recess shall be the reverse; and it is further

ORDERED that every Father's Day shall be spent by the Subject Child with Mr. G irrespective of any other scheduled visitation — including vacation access by Ms. G from 10:00 a.m. through 7:00 p.m.; and it is further

ORDERED that every Mother's Day shall be spent by the Subject Child with Susy G irrespective of any other scheduled visitation — including vacation visitation — from 10:00 a.m. through 7:00 p.m.; and it is further

ORDERED that the mother shall list the father as an "emergency contact" person or other such contact person on any and all forms requesting such information, as same may pertain to the Subject Child; and it is further

ORDERED that each party shall have reasonable telephone contact with the Subject Child while the child is with the other parent not to exceed one telephone call per day; each party shall promote said telephone contact between the Subject Child and the other party including initiating such telephone call for the Subject Child and the other parent if no call previously had occurred that day and, under no circumstances shall either parent circumscribe the length of such telephone calls unless such call exceeds fifteen minutes in duration and then such call may be ended at the direction of either parent, and each parent must continue efforts to make such contact each day until the call occurs; and it is further

ORDERED that neither party shall disparage the other party in the presence of the child, nor allow third parties to do so in the presence of the child; and it is further

ORDERED that each parent shall encourage a healthy and loving relationship between the Subject Child and the other parent; and it is further

ORDERED that each party shall give 48 hours advance notice to the other in the event he/she will not be able to comply with the visitation terms of this order; and it is further

ORDERED that each party shall ensure that the Subject Child is properly given any and all medication as prescribed for him by a licensed physician and Ms. G shall inform Mr. G of all such medications and prescribed dosages and shall provide same to Mr. G when the Subject Child is in Mr. G's care; and it is further

ORDERED that Larry S. Horowitz, Esq., Attorney for the Child, shall remain assigned to the matter for a period of six months after the date of this Order to ensure that the Subject Child is enrolled in therapy as herein provided and shall communicate in writing to the Court with copies to each party confirmation of same; and it is further

ORDERED that other than the school pick up and drop off of the Subject Child by Mr. G as set forth in this order, Ms. G shall transport the Subject Child to commence and conclude visitation with Mr. G to Mr. G' home in Yonkers or other location identified by Mr. G such location other than his home, to be provided, in writing, via email, by Mr. G to Ms. G in advance [*11]of such drop off or pick up, but such location may not be located in an place which would require Ms. G to travel in excess of four (4) miles from the ordinary home drop off location; and it is further

ORDERED that the father shall have such other and further visitation as the parties may agree; and it is further

ORDERED that within ten days of receipt of this Court's order, unless the parties can agree on a parent coordinator, each party shall submit in writing to the Attorney for the Subject Child the names and contact information of three parent coordinators and the Attorney for the Subject Child shall then submit the list to the Court, including three names (and contact information) of his own choosing, should he so choose, without indicating which party chose which name. The Court then will randomly select one such parent coordinator from the list for the parties to use for the purposes set forth herein; to wit, should either party contend that the other party has failed to comply with the terms of this Order, the parties must meet at least once on such issue with such parent coordinator to try to resolve the matter before requesting any judicial intervention. For the reasons previously noted herein, Mr. G shall bear seventy five (75) percent of the cost of the parent coordinator; Ms. G shall bear twenty five (25) percent of the cost of the parent coordinator; and it is further

ORDERED that Ms. G's notice of motion, filed with this Court on August 7, 2009, is hereby dismissed as moot;[FN4] and it is further

ORDERED that Ms. G's petition, filed on August 14, 2009, alleging a violation of the 2007 Order is hereby dismissed, without prejudice, with leave to renew only after the parties comply with the terms of this Order, to wit, meet with the parent coordinator in an effort to resolve the matter without court intervention consistent with the terms of this order; and it is further

ORDERED that, based upon the foregoing, the scheduled court date of September 16, 2009 be and hereby is deemed moot and no court appearances are required by any party or counsel on that date.

This constitutes the Decision and Order of this Court.

DATED: September 3, 2009

Yonkers, New York

ENTERED: [*12]

___________________________

COLLEEN D. DUFFY

FAMILY COURT JUDGE

DISTRIBUTION:

Stephen P. Gold, Esq.

Gold & Duker

470 Mamaroneck Avenue Suite 210

White Plains, New York 10605

Lawrence S. Horowitz, Esq.

199 Main Street

White Plains, New York 10601

Timothy Brennan, Esq.

Counsel (at the time of the Proceeding)

One North Broadway, Suite 412

White Plains, New York 10601

Brett Kimmel, Esq.

The Law Firm of Brett Kimmel, P.C.

275 Madison Avenue, Suite 1711

New York, New York 10016 Footnotes

Footnote 1: Of course, the parties may very well continue to litigate issues about child support until the Subject Child turns 21.

Footnote 2: This Court reserved decision on the consequences of this Court's contempt finding against Mr. G. The Court's admonishment of Mr. G on the record, and, as set forth further herein, the assessment against him of the majority of the costs associated with paying for the parent coordinator constitutes the Court's determination of consequences as to the contempt.

Footnote 3: Although prior Orders were in existence effectively from the birth of the Subject Child, the proceedings in 2006 arose out of petitions filed by Mr. G alleging that Ms. G violated the terms of an order, entered on consent in 2005, which granted sole legal and physical custody of the Subject Child to the mother with Mr. G being afforded a specific schedule of visitation.

Footnote 4: Ms. G's contention that the Order to Show Cause, filed on July 2, 2009, and her subsequent notice of motion seeking the same relief, filed August 7, 2009, to wit, to resettle the 2006 and 2007 Orders, necessarily must be resolved before this Court issues further rulings in this matter, is unavailing. The Court notes that it issued such decision and orders after hearing and finds sufficient the terms and conditions of said orders. Notwithstanding, given the testimony before this Court, the 2006 and 2007 Orders are herein superceded and vacated by this Order.