Matter of W.Y. v I.V.
2010 NY Slip Op 50285(U) [26 Misc 3d 1227(A)]
Decided on February 24, 2010
Family Court, Richmond County
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This opinion is uncorrected and will not be
published in the printed Official Reports.
Matter of W.Y. v I.V.
Decided on February 24, 2010
Family Court, Richmond County
IN THE MATTER OF A CUSTODY PROCEEDING W.Y., Petitioner,
Linda Rackis, Esquire
30 Bay Street
Staten Island, New York 10301
Attorney for Respondent Mother
James A. Dollard, Esquire
1265 Richmond Avenue
Staten Island, New York 10314
Attorney for the Child
Jody L. Bahar, Esquire
390 Manor Road
Staten Island, New York 10314
Catherine M. DiDomenico, J.
Petitioner Father (hereinafter "Father") and Respondent Mother (hereinafter "Mother) are the parents of Christopher (D.O.B. 12/8/97), twelve years old and Kiyanna (D.O.B. 1/26/92), eighteen years old. The parties never married, but were involved in an intermittent and volatile relationship for about eight years (1994-2002). [*2]
Mother alleges that, in June 1994, Father brutally assaulted her by, among other things, burning her with a hot clothes iron for which he was arrested, convicted after guilty plea and incarcerated (the "June 1994 Attack"). The parties broke up shortly after Father's arrest. Two years later, in 1996, they reconciled and conceived Christopher. After the birth of Christopher in 1997, the parties continued to see each other. They moved in together in 2000. Their relationship ended sometime in 2002.
On April 6, 2006, Father filed a Petition for Visitation with the children Kiyanna and
Christopher. On September 8, 2006, the parties entered into a Final Order of Visitation
(hereinafter the "September 2006 Stipulation"). It provides Father with visitation on alternate
weekends and holidays and grants Father access to information regarding the health, education,
and welfare of Christopher and Kiyanna. This agreement is silent on the subject of who has
custody of these children.
Two months later, on November 14, 2006, Father filed pro se to modify the September 2006 Stipulation. In that Petition, Father claimed that there was a physical altercation on November 11, 2006 between Mother and Christopher which resulted in Mother being arrested for child abuse and the children being removed from her care by the Administration for Children's Services ("ACS") (hereinafter the "November 2006 Incident"). Family Court ordered Mother not to interfere with Christopher residing with Father nor with Kiyanna residing with the maternal grandmother pending further ACS investigation. On November 17, 2006, a fully stay away Order of Protection was issued on behalf of Christopher against Mother subject to a court ordered visitation schedule.
On June 11, 2007, Mother pled guilty to disorderly conduct for the November 2006 Incident. A Full Stay Away Final Order of Protection was entered against Mother on behalf of Christopher subject to Family Court Orders until June 10, 2008 (Sciarrino, J). Mother was granted a visitation schedule with Christopher from Family Court.
On April 25, 2007, Father consented to an order suspending all visitation with Kiyanna. In June 2007, Father was arrested for allegedly assaulting Kiyanna. On July 16, 2007, Mother filed a Petition for Custody of Christopher and Kiyanna. Mother's Petition alleged that she has always been the custodial parent of both children and that it would not be in the children's best interests for custody to be awarded to Father. On December 15, 2008, Father consented to a Final Order of Custody of Kiyanna to Mother.
A fact-finding hearing was held before this Court on the cross custody petitions for Christopher on February 4, 2008, March 5, 2008, March 7, 2008, March 13, 2008, May 9, 2008, and June 24, 2008. An in camera with Christopher was held on June 24, 2008. On January 31, 2007, Family Court Services rendered a forensic report that was not introduced at trial by any party. On September 2, 2008, on application of Mother and the Attorney for the Child, the Court Ordered a forensic evaluation by Dr. N.G.B. to specifically address, among other issues, "the psycho pathology of the abuser and of the victim, whether the child may be in danger of [*3]becoming a future victim or a witness to the abuse of some other victim, the child's developmental needs given the fact that he lived in the polluted environment of domestic violence and the remedial efforts that should be undertaken with regard to all parties concerned." See Wissink v. Wissink, 301 AD2d 36 (2d Dept. 2006).
After receipt of Dr. N.G.B.'s report dated February 24, 2009 (the "N.G.B. Forensic"), the trial continued on April 2, 2009 and June 11, 2009. On June 11, 2009, the Attorney for the Child requested that Dr. N.G.B. interview Christopher again to explore an alleged change in Christopher's position. On consent of all parties, Dr. N.G.B. interviewed Christopher and submitted an addendum to his report dated September 18, 2009 (hereinafter the "Addendum"). All parties rested on September 21, 2009. Written summations were submitted by all counsel.
At trial, Father testified on his own behalf and called (1) P.Y, fact witness; (2) W.K. fact
witness and (3) Dr. N.G.B.. Father introduced the following documents into evidence: Petition
(Petitioner's 1); photograph (Petitioner's 2); Dr. N.G.B.'s curriculum vitae (Petitioner's 4); the
N.G.B. Forensic (Petitioner's 5); and the Addendum (Petitioner's 6). Mother testified on her own
behalf and introduced the following documents into evidence: photographs (Respondent's A 1-5)
and (Respondent's B 1-2).
Findings of Fact
After considering the testimony of the witnesses, and observing them testify, and after careful review of the documentary evidence introduced at the fact-finding hearing, the Court finds that it is in Christopher's best interest for an order of sole custody to be granted to Mother. The following facts have been proven by a fair preponderance of the evidence at trial:
A. Father's Testimony
1. Domestic Violence.
Father has an extensive criminal history. In 1985, Father was convicted for possession of a
weapon. In 1993, Father pled guilty to possession of a controlled substance. In 1994, Father pled
guilty to Assault in the Third Degree and served 173 days in jail for acts of violence committed
against Mother (the "June 1994 Attack'). Notwithstanding that he pled guilty, Father told this
Court that he was innocent of those charges and was made to plead guilty by his then defense
lawyer. Specifically, at this trial, when presented with gruesome photographs of Mother with two
black eyes, scratches on her face, and a horrific burn mark on her thigh sustained during the June
1994 Attack, Father couldn't "recall" whether Mother's injuries were all caused by him because
allegedly earlier that day she had been attacked by three unidentified females. With respect to the
imprint of a hot iron visible on Mother's inner thigh, Father did recall that he was ironing his
shirt and claimed that Mother was burned "accidentally" during the course of a physical
altercation between them. Father admits that he remained in the apartment that night and was
awoken early the next morning by police officers banging on the door to arrest him. This Court
finds not credible the testimony by Father as to what happened during the June 1994 attack.
[*4]The Court further finds incredible Father's denial that in 2000, he did not smash Mother's car windshield while Mother and Kiyanna (then 8 years old) were inside the vehicle. At this trial, Father claimed he recalled being accused of this incident but could not remember whether any glass actually fell on the child.
In 2003, Father pled guilty to harassment involving a bar fight. In June 2007, Father was arrested for Assault in the Third Degree for acts of violence against the child Kiyanna. In that case, Kiyanna accused him of pulling her hair, grabbing her arm causing bruising. At this trial, Father denied that he assaulted Kiyanna and stated that the case was dismissed as against him. Specifically, he testified that he calmly confronted Kiyanna in an effort to get her to stop kissing a boy in public. This Court finds not credible Father's version of these events.
With respect to his relationship with Kiyanna, Father admitted that he has not visited with
her since the Fall of 2006 and that he does not pay child support for her. He claims he did not
know there was an Order of Protection against him in favor of Kiyanna. Father could not recall if
he ever attended or completed a batterer's program or anger management course in connection
with any of his convictions.
Father did not know that Mother was pregnant with Christopher and was not present at his birth. He filed for Paternity for Christopher because he was not certain that Christopher was his child.
Over Mother's objection, Christopher has lived continuously with Father pursuant to Court
Order since the November 2006 Incident. Father concedes that the November 2006 Incident is
the only time Christopher claims his Mother hit him. With respect to that incident, Father
credibly testified that he received a voice mail message from Christopher who was crying. Father
drove to Mother's home and took Christopher to file a police report. Christopher was taken to St.
Vincent's Hospital where he was treated for a bruise on his leg approximately a quarter of an
inch in length. Mother was arrested the following day. Father sought therapy for Christopher
after this incident, but changed therapists because he believed the therapist was "too concerned"
with returning Christopher to Mother. (Tr. 3/5/08 p. 50).
Father has another son from a previous relationship, Shayquan (13). Shayquan's mother has
physical custody of him. As is the case with Kiyanna, Father has not had any contact with
Shayquan since 2006. He blames Christopher and Kiyanna's Mother for his lack of contact with
Shayquan. He claims that Mother and Shayquan's mother have joined together to make false
allegations about him. Father recognizes that Kiyanna, Christopher and Shayquan have a close
relationship and enjoy spending time together.
3. Current Status. [*5]
Father received a high school diploma and some college credits. He is employed by Lispire as a case manager. Father works Monday through Thursday 1:00 p.m. until 9:00 p.m. and Sundays from 10:00 a.m. until 6:00 p.m. Christopher attends school daily from 8:00 a.m. until 3:00 p.m. Father claims he picks Christopher up from school daily, helps him with his homework, and leaves again for work around 4:00 p.m. Father returns home from work at 9:00 p.m.
Father and Christopher have a close relationship. Father claims that Christopher's grades
have improved since he began living with him. He takes Christopher to extra curricular activities
including football and track. Father filed for custody of Christopher because he feels Mother's
home is unsafe because of fighting between Christopher and Kiyanna.
B. Mother's Testimony
1. Domestic Violence.
Mother has a college degree. She works two jobs involved in the care of disabled adults. She is primarily employed as a case manager for Lifestyles. Mother's second job is as a counselor with Lifespire. She works Monday through Friday 8:00 a.m.to 4:00 p.m for Lifestyles and Tuesday 3:00p.m.-11:00 p.m. and Wednesday 4:00 p.m.- midnight for Lifespire. Her mother provides childcare when she is working.
Mother's criminal history includes a shoplifting charge from 2002 that did not result in a conviction and a violation that resulted from the November 2006 incident. With regard to that incident, Mother credibly testified that, on Saturday November 11, 2006, she was at work when Father picked up Christopher for football practice at about 9:30 a.m. Father was supposed to pick Christopher up the night before to begin his weekend visitation with Christopher, but he never showed up. When she arrived home from work at 1:00 p.m., she discovered that Father had already dropped Christopher back home and left him with Kiyanna (14). When Mother telephoned Father to ask what Christopher was doing back home, Father berated her, cursed at her, and hung up the phone.
Later that night, at about 6:00 p.m., Christopher and Kiyanna got into a fight over cookies. Mother was in the shower when she heard yelling and screaming. She hurried out of the shower and separated the children. She took out a belt. She claims that she did not strike Christopher, but only banged the belt on the island in her kitchen. The Court does not credit Mother's statement that she did not hit Christopher.
Father picked Christopher up shortly thereafter. The police arrived at Mother's home at approximately 9:45 p.m. After interviewing Mother and Kiyanna separately, the police arrested Mother. At ACS's alleged recommendation, Kiyanna was placed with the maternal grandmother and Christopher remained with his father. Mother received a letter from ACS indicating that this incident had been deemed "unfounded". Since this incident and over Mother's objection, Christopher has remained living with his father pursuant to court order. Mother currently visits [*6]with Christopher every Monday, Thursday and alternate weekends.
On the subject of domestic violence, Mother credibly testified that Father was abusive towards her throughout their relationship. Mother credibly testified that, at the time of the June 1994 Attack, Father punched Mother in the face several times with a closed fist and scratched her neck. Father made Mother kneel in front of him. With Mother on her knees, Father held a hot clothes iron inches from her face then dropped it to the ground where it landed on Mother's thigh. Notwithstanding the horrific injuries and excruciating pain Mother sustained, Father forced her to sleep on the floor without medical attention. After Father fell asleep, Mother crawled out of the apartment and sought refuge at a neighbor's house until police arrived. Father was immediately arrested. Mother admits she visited Father in jail twice after this incident. Their relationship ended while Father was incarcerated.
Mother and Father resumed their relationship again about two years later in 1996. Mother conceived Christopher shortly thereafter. Mother and Father broke up again by the time Mother realized she was pregnant. Father denied he was Christopher's father and demanded Mother abort Christopher. To that end, Mother credibly testified that Father showed up at Mother's apartment, took her car keys and drove her to a Brooklyn abortion clinic. He tried to follow Mother into the testing room but was prevented from accompanying Mother by clinic staff. Mother told the clinic social worker that she did not want to abort her baby but was afraid of what Father would do if she did not go through with the procedure. With the assistance of clinic workers, she was escorted out the back door of the clinic. At this trial, Father admitted driving Mother to an abortion clinic but claimed it was for a different pregnancy.
When she was three months pregnant, Mother filed for child support for Kiyanna and Christopher. At that time, Father denied he was the father of Christopher and filed for Paternity. Mother credibly testified that, three years later, in 2000, Father moved in with Mother. Christopher was then two years old and Kiyanna was then eight years old.
On February 2, 2002, Mother and the children left Father again and moved in with the
maternal grandmother because Father threatened to hurt her again. In November 2002, Mother
purchased a two family home with her mother and has lived there ever since.
C. N.G.B., Phd.
Dr. N.G.B. is a licensed Forensic Psychologist. Dr. N.G.B. is the Director of the New York Center for Neuro-Psychologic and Forensic Behavioral Science. Dr. N.G.B. has testified as an expert in numerous custody proceedings. At trial, Dr. N.G.B. was qualified as an expert over Mother's objection. The Dr. N.G.B. Forensic was admitted into evidence over Mother's objection; the Addendum Report was admitted on consent. Father called Dr. N.G.B. as a witness. All parties had an opportunity to thoroughly cross examine Dr. N.G.B..
Dr. N.G.B. credibly testified that his evaluation consisted of four parts (1) clinical interviews; (2) mental status; (3) psychological testing; and (4) parent/child interaction. Dr. N.G.B. interviewed Mother, Father, Christopher and Kiyanna and reviewed various documents [*7]provided to him by all parties. Dr. N.G.B. met with each of the parties for two sixty minute interviews. The Dr. N.G.B. Forensic contained the following recommendations: Christopher should remain with Father; Christopher should continue to have liberal visitation with Mother; and Father and Kiyanna should meet with a therapist to work out their differences.
Dr. N.G.B. addressed the November 2006 Incident with Mother, Father, Christopher and
Kiyanna. Dr. N.G.B. believed that Mother engaged in an act of corporal punishment on
Christopher that day which made Christopher afraid of his Mother and Kiyanna. He does not
believe that Christopher is currently afraid of Mother or Kiyanna. He noted that Christopher
misses his Mother and Kiyanna. Dr. N.G.B. also noted that Father's close relationship with
Christopher is "very hurtful" to Kiyanna. Kiyanna reported that she is not close with Father that
he does not visit or telephone her. Kiyanna felt that Father paid more attention to his nephews
than her. Kiyanna reported that Father threatened her with a belt in the past, and grabbed her
arms and hair.
On the subject of domestic violence, Dr. N.G.B. testified that a person's propensity for domestic violence is an extremely important issue. It was important for Dr. N.G.B. to determine if there was a history of Father hitting Christopher. He explained that, if it was true that Mother was the victim of domestic violence at the hands of Father, it would "raise serious doubt as to the kind of person Father is". (Tr.4/2/09 p.55). Dr. N.G.B. further testified that, if Father denied his past behavior, his denial would suggest that the past behavior has not been "worked through". Dr. N.G.B. further testified that, "for example if he was someone who is uncontrollably angry, perpetually violent that would have much more massive impact on how I would have shaped my conclusions in this case". (T. 4/2/09 p.41). When asked what would happen if a person committed domestic violence without undergoing any sort of rehabilitation, Dr. N.G.B. stated that every relationship engaged in by the perpetrator would "probably reflect a tendency towards domestic violence". (T. 4/2/09 P. 85).
The Addendum was admitted into evidence without objection and without further
testimony from Dr. N.G.B.. Critical information contained in that report includes the disclosure
for the first time that Father has also hit Christopher and that Father's girlfriend now lives in the
house with Father and Christopher. The Addendum also indicates that Mother has not hit
Christopher for quite some time; that Christopher feels he is not seeing Mother enough; and that
this child is apparently conflicted as to which parent he should reside with. Dr. N.G.B.
recommends that Christopher continue residing with Father and that Christopher spend three or
four weekends per month at Mother's home and additional time during the week.
Mr. Y. testified that he is Father's uncle. Mr. Y. has known Father since birth. Mr. Y.
believes Father is a good father. Mr. Y. testified that he has witnessed Father and Christopher
together and he believes they have a close relationship. Mr. Y. testified that Father and
Christopher spend a lot of time with extended family. Mr. Y. further testified that he could not
say anything bad about Mother.
Mr. K. testified that he is Father's best friend. Mr. K. has known Father for twenty five years. Notwithstanding Father's testimony that he picks Christopher up from school, Mr. K. testified that he sees Christopher five days per week because he picks Christopher up from school, helps him with his homework and takes him to football practice.
Mr. K. claimed he had no knowledge about the details of the June 1994 attack. Mr. K. claimed that he put money in Father's account while he was in jail but they never discussed the incident. Mr. K. testified that he visited Ms. V. while Father was in jail but could not recall if they discussed the incident.
The Applicable Law
a. The Applicable Standard.
It is undisputed that there is no Final Order of Custody for Christopher. Where, as here, there
is no final order of custody, the standard to be applied by this Court is the same as for an initial
custody determination, namely what is in the best interest of the child. See Eschbach v.
Eschbach, 56 NY2d 167 (1982). The substantial change of circumstances standard,
applicable where a party seeks to modify an existing custody order, does not apply. See Khaykin v. Kaneva, 47 AD3d
817 (2d Dept. 2008). The September 2006 Stipulation which presumes custody to
Mother of Christopher is only a factor to be considered by this Court in determining what is in
Christopher's best interest . See Khaykin v. Kanayeva, 47 AD3d 817 (2d Dept.
2008) (informal custodial arrangements and temporary orders of custody, issued in the
absence of a hearing are factors to be considered in the ultimate determination of the child's best
interest.); Bessette v. Pelton,
29 AD3d 1085 (3d Dept. 2006); Bruce BB. v. Debra CC., 307 AD2d 408 (3d Dept.
There is "no prima facie right to custody of the child in either parent." DRL Secs. 70[a]; 240 [a]. When determining custody, the Court must consider the totality of the circumstances including the relative fitness of the parties and quality of their home environments. See Matter of Blanc v. Larcher, 11 AD3d 458 (2nd Dept. 2004). Factors to be considered include the parental guidance provided by the custodial parent, each parent's ability to provide for the child financially, the relative fitness of each parent, and the effect an award of custody to one parent might have on the child's relationship with the other parent. See McGovern v. Lynch, 62 AD3d 712 (2d Dept. 2009). The weight to be afforded to each of the various factors is within the discretion of the trial court and requires an evaluation of the testimony, character and sincerity of all of the parties involved. See Bourne v. Bristow, 66 AD3d 621 (2d Dept. 2009). While the child's preference must be considered, it is not determinative, particularly where the child is young and vulnerable to influence by the non custodial parent. See Granata v. Granata, 289 AD2d 527 (2nd Dept. 2001).
Where there is a documented history of domestic violence, it is error to award custody to
[*9]the abusive parent without the benefit of a comprehensive
psychological evaluation. See Wissink v. Wissink, 301 AD2d 36 (2d Dept. 2003).
The Court must specifically consider the effect of acts of domestic violence proven at trial
and explain how the Court's findings in that regard factored into its decision. Domestic
Relations Law §240(1)(a). This analysis is required, regardless of whether the child has
witnessed or been a direct victim of the violence. (See Reed, N.Y.L.J. 12/6/02,
Richmond Co., Sunshine, J.). The recommendation of court appointed experts may be
considered as one factor in the Court's analysis. See Matter of Berrouet v. Greaves, 35 AD3d 460 (2nd Dept.
2006). If the Court chooses to reject the recommendation of the forensic evaluator, it must
fully explain its reasoning. See Berstell v. Krasa-Berstell, 272 AD2d 566 (2d Dept.
Applying these principles to this case, and after considering the testimony of both parties, and the in camera with Christopher, the Court finds that it is in Christopher's best interests for an Order of Sole Custody to be granted to Mother. The June 1994 Attack by Father against Mother and the November 2006 Incident between Mother and Christopher were proven by a fair preponderance of the evidence at trial. While Mother has acknowledged her wrongdoing in the November 2006 Incident, and expressed deep remorse for losing her temper that day, Father evidenced no such acceptance of responsibility nor any insight that his beating and burning of Mother in the June 1994 Attack was deeply reprehensible. The passage of time does not diminish the horrific nature of Father's brutal acts against Mother nor does it render this attack irrelevant to this analysis. See Gonzalez v. Gonzalez, 15 AD3d 481 (2d Dept. 2005). To the contrary, the fact that Father was able to engage in these acts of violence then incredibly deny responsibility for those acts or otherwise feign a lack of recollection as to the relevant details that did not support his version of the events, indicates to this Court "a character that is manifestly unsuited" for long term parenting of Christopher. See Paul Seth G. v. Antoinette M., 227 AD2d 620 (2d Dept. 1996); Acevedo v. Acevedo, 200 AD2d 567 (2d Dept. 1994); Rohan v. Rohan, 213 AD2d 804 (3d Dept. 1995).
This Court's concerns are heightened because there was no evidence at all offered by Father that he ever sought mental heath counseling or any form of rehabilitation for his violent behavior. See Cobourne v. James, 35 AD3d 734 (2d Dept. 2000). Against this background, the single act alleged against Mother toward Christopher (the November 2006 Incident), while not condoned by this Court, simply pales in comparison to the burning and beating of Mother by Father and the permanent physical and psychological scarring sustained by Mother as a result of this depravity.
While the Court respects the opinion of Dr. N.G.B., the Court declines to follow his recommendation that custody be granted to Father. See Berstell v. Berstell, 272 AD2d 566 (2d Dept. 2000). First, Dr. N.G.B.'s evaluation consisted of two sixty minute interviews of each of the parties in this case and a one hour parent child observation. Even when considered with the second interview of Christopher, the time spent was simply not sufficient to allow Dr. N.G.B. to engage in the analysis necessary to fully understand the impact of domestic violence in this case. Wissink v. Wissink, 301 AD2d 36 (2d Dept. 2003). Second, Dr. N.G.B. was not made aware of [*10]several critical facts that were proven during this trial. For example, Father told Dr. N.G.B. that his drug and gun possession criminal cases were dismissed when, in fact, during this trial, it was proven that Father plead guilty and was convicted in both proceedings.
Third, review of the Dr. N.G.B. Forensic makes clear that the June 1994 Attack was not sufficiently explored with the parties. Father told Dr. N.G.B. that Mother hit him and he hit her back during those altercations, in effect, that he acted in self defense, a position completely inconsistent with the facts proven at this trial and the version of events told by Mother in the forensic interview. Dr. N.G.B. did not discuss with Father the graphic photographs of Mother's injuries from the June 1994 Attack which were provided to him by Mother. In addition, Dr. N.G.B.'s recommendation that Christopher reside with Father was based in large part on his understanding that there were no incidences of physical beatings of Christopher by Father. However, as set forth in the Addendum Report, Christopher did disclose that his Father hit him with a belt (Pet. 6).
Equally unknown to this Court, and not made part of Dr. N.G.B.'s analysis is, sufficient information about Father's now live in paramour, her relationship with Christopher and indeed, whether it is safe or appropriate for this child to be ordered to reside with her. Father failed to call his paramour as a witness at trial and failed to provide any evidence at all as to her background, character or fitness to participate in the parenting of Christopher. See Vecchiarelli v. Vecchiarelli, 238 AD2d 411 (2d Dept. 1997).
Father generally claims that Christopher's school work has improved since residing with him. However, that claim was not supported by any documentary evidence. More persuasive is Mother's credible testimony that Christopher has always been an excellent student. Father also expressed concerns over the sibling fighting between Christopher and Kiyanna. While it is evident that Christopher and Kiyanna did fight in the past, some of which were physical altercations, there was no proof of any such incidents during the three years Mother has had visitation. Furthermore, Christopher stated he is not afraid of his sister or Mother. To the contrary, he misses being with both of them.
The lack of any relationship between Kiyanna and Father is also disturbing to this Court. He has not visited with this child since November 2006 and has failed to financially support her which is deeply distressing to Kiyanna. Father blames Mother for his poor relationship with his daughter. It is clear, however, that Father abandoned that relationship over two and a half years ago when he consented to an order suspending his visitation with Kiyanna and never moved to reinstate visits with that child. In addition, Mother has, for many years and on her own accord, fostered a long standing and loving relationship between Christopher, Kiyanna and Shaqyan, another child with whom he maintains no relationship. Clearly, Mother understands the critical need for sibling relationships or she would not voluntarily nurture a relationship between her children and their half sibling from another mother. See Giatras v. Giatras, 202 AD2d 389 (2d Dept. 1994).
The Court has considered the fact that Christopher has now lived with Father pursuant to [*11]a temporary order of residence for a little over three years. However, that fact alone does not warrant an order of sole custody to Father after considering the totality of the circumstances. See See Eschbach v. Eschbach, 56 NY2d 167 (1982); Khaykin v. Kanayeva, 47 A.D .3d 817 (2d Dept. 2008). It is not disputed that Mother was the primary caretaker of Christopher from birth until the November 2006 incident, when he was eight years old. See Vinciguerra v. Vinciguerra, 294 AD2d 565 (2d Dept. 2002). She has also enjoyed liberal visitation with Christopher during the course of these proceedings with Christopher visiting at least two days during the week and alternate weekends, including overnights.
Last, as a practical matter, unlike Father's schedule, Mother's work schedule allows her to be home with Christopher on Mondays, Thursdays and Fridays shortly after he returns from school. In Mother's home, Christopher resides with his maternal grandmother who cares for him when Mother is working. At Father's home, except for a short time in the afternoon, Christopher is left with an unrelated babysitter until Father returns home from work at 9 p.m. This Court finds that it is better for Christopher to live at Mother's house where he is cared for by his mother, his grandmother and now 18 year old Kiyanna as opposed to spending substantial time with an unrelated babysitter.
For these reasons, the Court finds it is in Christopher's best interest for an Order of Sole Custody to be granted to Mother. This decision is in agreement with The Attorney for the Child's position who believes that, given the Father's history of violence, an Order of Custody to Father would expose Christopher to a substantial risk of imminent harm. While the proof at trial did not support a finding that Father currently poses an imminent risk of harm to Christopher, this Court does agree that Father is not fit to act as a sole custodial parent for Christopher. This determination is based on Father's complete lack of candor with this Court when testifying, his failure to express remorse for acts of violence against Mother, his failure to assume any responsibility for even his own decisions, including his guilty pleas which he blamed on his lawyers, and his failure to seek any treatment to address his anger or the domestic violence episodes proven at this trial. While Mother was also not believable when she denied hitting Christopher, on balance, that one incidence alone does not render Mother unfit to be sole custodian of Christopher, particularly given her remorse for that unfortunate event and the absence of any additional incidents over the past three years. See Gonzalez v. Gonzalez, 15 AD3d 481 (2d Dept. 2005).
Accordingly, Father's Petition is denied. Mother is granted a Final Order of Sole Custody of Christopher subject to Father's visitation which shall continue pursuant to the September 2006 Stipulation. This Order shall be effective, after the Attorney for the Child has had an opportunity to explain this decision to Christopher and prepare him for his return to Mother's home, but no later than March 8, 2010.
E N TER:
Dated: February 24, 2010CATHERINE M. DIDOMENICO
Staten Island, New York