DER v SLR

[*1] DER v SLR 2008 NY Slip Op 51593(U) Decided on July 22, 2008 Supreme Court, Kings County Sunshine, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 25, 2008; it will not be published in the printed Official Reports.

Decided on July 22, 2008
Supreme Court, Kings County

DER, Plaintiff,

against

SLR, Defendant.



XX/08



Dewette C. Aughtry, Esq.

Attorney for the Plaintiff

105 Court Street, Suite 412

Brooklyn, New York 11201

Rick Stein, Esq.

Attorney for the Defendant

1609 Kings Highway

Brooklyn, New York 11229

Lance Kramer, Esq.

Attorney for the Child

26 Court Street, Suite 613

Brooklyn, New York 11242

Jeffrey S. Sunshine, J.

Procedural History

On default this court awarded plaintiff-father custody of the parties' child whom

is five (5) years of age. In August 2005, during a contested divorce proceeding, defendant-mother removed the parties' child to California. [*2]

The father commenced a divorce action on October 31, 2003, alleging cruel and inhuman treatment (see Domestic Relations Law 170 [1]). Initially, the mother appeared pro se but later retained counsel. The mother was allegedly served with the summons with notice in an action for divorce on November 3, 2003, at Kings County Family Court.

On December 2, 2003, the father filed an order to show cause seeking visitation with the parties minor child which was granted. The matrimonial proceeding was stayed on February 6, 2004, when the father was deployed to Iraq. Thereafter, upon his return, the parties entered into a written stipulation on the issues of custody and visitation on August 12, 2004, which the court "so ordered". The parties' stipulation resolved the issues of custody and visitation and provided that the mother would have custody of the child and that she could relocate with the child to California. The stipulation provided:

On consent, the mother shall have sole custody of the infant [name omitted] DOB [exact date omitted] 2002 subject to schedule of visitation to be arrived at by the parties and counsel. The father shall visit with the child on next court date. On consent, the issue of relocation is resolved and the mother shall not be asked to relocate with the child from the State of California. California shall remain the child's residence. The issues of visitation, child support, and all other unresolved issues as listed on the P.C. order are, including venue, for future litigation, reserved for trial.

In late December 2004, while in the mother's custody, the child returned from a visit with the father with redness around his penis. On December 30, 2004, allegedly concerned about the child's well-being, the mother took him to the emergency room. At the hospital, a doctor filed an Administration for Children's Services (ACS) report questioning whether the child had been sexually abused.

It is unrefuted that, fearing that the child would be taken away, the mother cut the child's hospital security bracelet, and took him to Connecticut, after learning that ACS was investigating both parents. Thereafter, ACS placed the child with the paternal grandparents, and both parents were named as respondents in an Article 10 abuse proceeding.

In response to the ACS petition, an Article 1028 hearing was held in Kings County Family Court, (see FCA 1028), where the Hon. Arnold Lim initially issued an order, inter alia, restricting the child's removal from the State of New York.

On January 3, 2005, the parties appeared in this court but the divorce action was stayed until the Article 10 proceeding was concluded. Additionally, this court issued an order restricting the child's removal from the State of New York. On March 14, 2005, Judge Lim issued a decision and order granting the mother's 1028 application. In his decision, Judge Lim stated:

At the conclusion of this heavily contested hearing, the court concludes that the child's medical condition on or about December 30, 2004, was not an injury. Therefore, it does not need to inquire further whether it was the result of sexual or physical abuse or neglect. The [*3]1028 application by the respondent mother is granted for reasons stated herein.

The court finds Dr. Ajl's expert opinion on this matter wrong. His conclusion was based upon a cursory investigation that was incomplete and procedurally flawed. When weighed against the pediatric expert opinion of Dr. McMahon, the child's life long treating physician, the court finds the later's testimony more credible, persuasive and convincing...

...Moreover, the court found the explanations by both parents persuasive...Although the court finds the respondent mother's testimony contrived and tailored, nonetheless, there is simply no evidence to suggest that she did anything to the child nor allowed anyone to care for the child who may have done something to him. There is no evidence that the respondent father did anything nor is there anything that remotely points out that anyone else may have caused the child's condition.

The respondent mother denied making many statements that all the testifying witnesses said she made. Although this calls into question her credibility based upon her truthfulness as to collateral matters, the court is convinced that as to the ultimate issue in this 1028 hearing, there is no imminent risk to the child's life or health if he were to be returned to her. Although her behavior was arguably inappropriate when she removed the child from the hospital on January 5, 2005, without first notifying hospital personnel, nonetheless, there were no medical or other safety concerns at this juncture. The child was simply awaiting test results and no longer in need of any treatment. Removing the child rose to neither any civil or criminal infraction... Her conduct must be viewed in the context of a bitterly contested matrimonial action and not as a child protective one.

On April 13, 2005, the mother's then attorney was relieved as the attorney of record for the mother. On July 15, 2005, Judge Lim issued an order dismissing the abuse petition based upon ACS's withdrawal of it's petition against the parents without prejudice.

On July 18, 2005, following the Article 10 proceeding, the parties were scheduled toresume the matrimonial proceeding; however, the mother never appeared at the adjourn date. Sometime in August 2005, the mother with the child left New York and relocted to California. The father maintains that he never knew the whereabouts of his child after the mother absconded with him to California.

On September 22, 2005, the father asked this court for an order of temporary custody and moved to suspend child support. After the father's counsel allegedly sent a notice of inquest to the mother's last known address, an inquest was held on October 6, 2005. During this proceeding, the father was granted full custody, on default, and the mother was ordered to pay child support in the amount of $25.00 per month. The judgment of divorce was signed on December 15, 2005. [*4]

On July 26, 2007, the father filed a writ of habeas corpus in the Supreme Court, Kings County which stated:

10. Until recently, Respondent's [mother's] actual present address was unknown to the Petitioner [father]. On or about July 24, 2007, Petitioner's attorney was served with an Order to Show Cause regarding Respondent's attempt to obtain custody of the minor child in the State of California. A copy of said Order to Show Cause is annexed hereto as Exhibit 4. The Court in California has denied Respondent's request for custody, without prejudice, until jurisdictional issues are resolved. A hearing is scheduled for July 30, 2007.

Prior to the filing of the writ, the mother brought an action in California seeking custody of the parties child. However, upon discovery of the writ, the California court found that New York State was the appropriate jurisdiction to litigate the issue of custody and denied the mother's request for custody. The father flew to California with the writ of habeas corpus, served it on mother, and obtained physical custody of the parties child.

On the return date of the writ of habeas corpus, the mother, together with her family members, appeared before this court. The default custody order was continued, the mother was assigned counsel pursuant to the then newly enacted Judiciary Law 35(8) and a law guardian [FN1] was appointed for the child. Although the mother was granted supervised visitation, she was fearful for her safety and would not return to any venue in Kings County nor would she agree to a family member providing supervision. As such, Eileen Montrose, LCSW, was appointed to supervise visitation. Recently, on consent, visits have been expanded to include overnight unsupervised visits every other weekend. The child is currently living with his father, the father's fiancÉ, the fiancé's child from a prior relationship and the couple's newborn infant. This decision is rendered after a full trial on the issue of custody and visitation.[FN2]

[*5]Facts

The father, who is thirty- two (32) years of age, and the mother, who is thirty (30) years of age, were married in New York in May 2002. While married, the father worked as a first grade teacher and the mother worked as a mandarin interpreter. The parties knew each other for only a short time prior to their marriage, at which point, the mother became pregnant with the parties' child. In December 2002, the mother gave birth to a son. At the time of the son's birth the parties were living separately; however, during the early days of the marriage, the parties lived at the mother's relative's residence in Brooklyn. A great amount of the parties' marriage can be characterized as tumultuous and there were incidents of domestic violence.

The Parties' Contentions

In support of her request that she be awarded full legal custody of the child, the

mother alleges that the father is merely trying to avoid paying child support and that he does not really care about custody. She argues that, until recently, the father lacked involvement with the child since the child was conceived. The mother contends that the father demanded a paternity test to prove his relationship to the child, but even after paternity was established, the father had little to do with the child. The mother avers that, as recently as 2005, the father was willing to forego custody of the child, in favor of the mother.

The mother argues that if the father is awarded custody, he will limit access between her and her child. The mother contends that the father will be influenced by his parents, who do not like her, and that they would encourage him to keep the child from her. She claims that the father's parents took away the father's use of a car when they learned the couple were seeing each other after the divorce was commenced. The mother further contends that while the child was living with the father, her sister who was visiting from California called the father hoping to see the child. The mother asserts that the father refused to allow her sister to visit the child, even though the visit would have taken place while the father was at work and would not have interfered with any plans he may have had with [*6]the child. In contrast, the mother testifies that she will allow the father to see the child as she did in December 2004 when she complied with court orders and flew the child from California to New York to see his father. Furthermore, the mother contends that she voluntarily brought the child to the New Jersey Army base so that the father could visit with the child prior to being deployed to Iraq; however, the father avers that her visit to the Army base was motivated more by an attempt to divert more of his military paycheck than to provide him access to their child.

The father acknowledges that he previously consented to the mother having full custody of the child on the condition that he would be allowed to have a substantial and meaningful relationship with the child but he contends this has not been the case. After returning from a two (2) year tour of duty in Iraq, the father claimed he saw the child briefly in December 2004, but that following this, the mother allowed him little contact with the child until August 2007. The father claims that the mother took the child to California in violation of court orders in August 2005 and that she hindered his ability to see the child for the next 23 months. The father asserts that he desperately sought the location of the child during this period, but that he could not find him until July 24, 2007, when the mother sought court intervention on the issue of custody in California.

The mother contends that she did not think about the father's relationship with the child before leaving for California in August 2005 because the father showed no interest in the child prior to that time and he did not call at all during the two (2) months before she left. Additionally, the mother avers that she took the child to California because prior to the Article 10 proceeding, her life and her family were in California and that the many court dates in New York made it impossible for her to get a job and to support her son.

She further contends that on June 1, 2005, the court ordered $1,000.00 in attorney fees for the divorce action; however, once the father changed the proceeding to a contested divorce, the money was insufficient for counsel.[FN3]

Following the Article 10 dismissal by the Family Court, the mother failed to appear before this court for the matrimonial proceeding. The mother claims that the father's attorney informed her that the July 18, 2005, court date would be rescheduled and that because she was not represented at the time she had no way to check for herself. She [*7]further contends that she had never missed a court date in either Supreme or Family Court prior to this and that she would have been there for the July 18, 2005, court date if she had known that she was required to appear. The mother also asserts that she believed that the Supreme Court order, stating that she could not leave New York State, was vacated when the Article 10 proceeding was dismissed on July 15, 2008. The father claims that his counsel reminded the mother that she must appear at the court proceeding on July 18, 2005.

On August 25, 2005, the mother contends that she was beaten and attacked by a group of women one block from her apartment. She alleges that the father was behind the attack because one of the aggressors was from his hometown. It was this incident, the mother avers, that was her primary motivating factor in deciding to return to California, because it was a place where she felt that she and her child were safe. The court notes that initially it was the mother who was arrested as a result of that altercation. It remains unclear whether those charges ever resulted in a prosecution.

While the mother admits that leaving New York was wrong, she contends that if the father wanted to see his son, there were several actions he could have taken. First, she avers that the father had her cell phone number but that he never called. Second, the father could have located her through her bank account, into which he deposited money. Lastly, the father testified that he was informed by his health insurance provider that the child was obtaining medical care in California.

The mother testified that she and the child lived in California open and notoriously; she had a California driver's license, she was employed and the child attended public school. She also testified that she lived in close proximity to her own immediate family in California. Under these circumstances, the mother contends that the father could have located his son if he so chose. The mother contends that the father was aware of other addresses for the mother which he did not utilize in attempting to provide notice to her.

Furthermore, the mother concludes that the father's averred efforts to locate her and the child were limited and disingenuous. The father claims that he hired a private investigator; however, the mother contends that the "investigator" was a family friend whom the father admits that he did not pay. The court notes that this alleged "investigator" was never called as a witness at the trial. The father testified that he filed reports with the police and national missing child agencies, but he acknowledged that he did not provide them with pertinent information such as child was in receipt of medical treatment in California or the name and location of the doctor who provided that medical treatment.

Upon arriving back to New York, pursuant to the orders of the California and New York Courts, the child was placed in the father's physical custody. The father immediately moved the child in to live with his new blended family. The father contends that he provides a stable and economically sound home. The father is newly employed as a New York State corrections officer earning an annual income of $45,000.00 plus health and [*8]dental benefits for himself and his children.[FN4] Within this household, the father testified that the child has a set schedule for playing, eating and resting. Additionally, while in the father's custody the child is expected to do certain things independently like lotion himself, put away his toys, eat properly at the table, draw his own bath and bathe alone at times. The father argues that a regimented lifestyle will teach the child valuable and necessary skills to lead a more productive life. He further contends that his home is safe and any allegations that the child's finger and teddy bear were burned in his bedroom are false.[FN5]

The mother contends that the father's militaristic parenting style is not appropriate for a young child. The father testified that he imposed, on this child whom is five (5) years of age, what he considers proper punishment, including standing over the child to make sure he does not fidget during meals, taking away food when it is not eaten in a timely fashion and withholding snacks as a form of punishment. It is undisputed that on one occasion, after prior warnings , the father did exercise corporal punishment on the child. The mother argues that these are not appropriate disciplinary techniques, and also, that a young child should not be required to run his own bath, monitor the temperature of the bath water and to apply lotion to himself without adult assistance. Although denied by the father, the mother asserts that the father's fiancÉ spanks the child and that the father has hit him on several occasions. She complains of disparate treatment between her son and father's fiancÉe's child even though they live together as a "blended" family. The mother alleges that this disparate treatment further alienates the son.

The mother argues that the father's violent personality is not appropriate for raising a child. She contends that during her pregnancy, the father pushed her down a staircase. The mother's sister, who testified at trial, witnessed the incident and testified that the father was the physical aggressor. During this same incident, the mother claims that the father ripped the telephone out of the wall to prevent her from calling the police, a fact the father does not dispute. The father alleges that the wife was the initial aggress who sprayed him with pepper spray and that he merely threw a sheet over her so that he could "hold her down" and "calm her."

The mother is concerned that the father will not provide appropriate medical attention [*9]when necessary. The mother avers that the father did not act appropriately when their son developed a rash. The mother testified that during one of her recent unsupervised visits with the child, she noticed that he had a rash, so she brought him to a pharmacist who prescribed cream for ringworm. Later, when the mother inquired about the rash to the father, he allegedly became angry and told her that she acted inappropriately when she took the child to the pharmacist. The mother contends that the father was the one who acted inappropriately when he refused to take the child to see the doctor. When asked what he would do in a similar situation in the future, the father said he would take the child to the doctor when his work schedule permitted.

The mother argues that she has the child's best interests at heart and that he is of the upmost importance in her life. She claims that in the past she has structured her work schedule in order to facilitate the child's schedule and that she would do so again if she is granted custody. Additionally, she contends that she has always made it a priority to send the child to schools for gifted children and that she is concerned that the father does not encourage or nurture the child's full academic potential. The court notes that during his testimony, the father appeared ambivalent about allowing his son to be tested for gifted schools.

The mother submitted photographs into evidence that were deisnged to show that the child was happy and comfortable when he was living with her in California. The father testified that the mother has a much more liberal attitude regarding the child's upbringing, and that she lets the child do whatever he wants to do.

There was a substantial amount of testimony, by both parties, about the child wearing costumes throughout the year in California. The father contends that the costumes were part of an ongoing plan by the mother to mask the child's identity when he went outside while they lived in California so that the father could not locate them. The mother contends that the child enjoyed dressing up as a "super hero" and that she allowed him to do because he enjoyed it.

There appears to be a genuine philosophical dispute between the parties over priorities. The father is appropriately concerned about meeting his employment obligations and commitments. The mother sees the father's work obligations as interfering with the child's needs and she views the father's inflexibility as not being in the child's best interest. The mother works part time, despite having completed some college courses, claiming that her child care obligations allow her to braid hair for a living at this time. The mother does not seem to appreciate the importance of the father having, and importantly keeping, a secure job so that he is able to provide financial support for his dependants, as well as to enjoy the personal dignity of full time employment. The mother must recognize that neither party can afford for the father to lose his job. On more than one occasion, during these proceedings, the father alleged that he feared the mother would interfere with his employment and that she might even contact employers in an effort to discredit him. [*10]

The mother appears to require that the child receive immediate medical attention even for seemingly minor issues and she would have this court believe the child has a multitude of medical issues. While the father claims the child is perfectly healthy and, unless an emergency exists, routine medical care can be postponed or wait until a convenient time.

The father argues that the mother is psychologically unstable and unfit to be a mother. He contends that her mental state is volatile and that it leads her to make bad decisions. He argues that the mother's reactionary behavior led her to abscond with the child on various occasions, which repeatedly deprived him of his right to see his son for substantial periods of time.

The mother admits taking their child and leaving New York was inappropriate and she stated that in future stressful situations she would act differently. She reiterates that being a good mother is the most important aspect of her life. She alleges that she was truly in fear of her safety and well-being after she was attacked in Brooklyn and that is what propelled her to take the child to California and asserts that she genuinely thought that she did not have to come back to the divorce action.

Both parents agree that the child should be raised in accordance with Muslim religious beliefs and practices; however, the mother believes that the father does not practice these religious beliefs in strict accordance with religious principles.Discussion

The parties herein extensively litigated before this court the question of who would

be a better parent and, therefore, who should be awarded legal custody. The child has spent most of his life in his mother's custody and, from all accounts, he appears to have a very strong relationship with her and to be very affectionate towards her. The court also notes that the child has spent the last year with his father and is bonding with him as well. During the proceeding, there was a substantial amount of testimony on both sides concerning who cares more about their child's well-being and who would provide him with a more nurturing home environment and with a brighter future. Furthermore, it is evident from the in camera interview that the child loves both parents.

It is well established that the trial court is given great deference to assess the character and credibility of the parties (see Varga v Varga, 288 AD2d 210, 211, 732 NYS2d 576 [2 Dept 2001], citing Diaco v Diaco, 278 AD2d 358, 717 NYS2d 635 [2 Dept 2000]; see also Ferraro v Ferraro, 257 AD2d 596, 598, 684 NYS2d 274 [2 Dept 1999]). In determining a child's custody, the court is to act as parens patriae and must base its determination on "child's best interests" (see Tropea v Tropea, 87 NY2d 727, 741 642 NYS2d 575 [1996], see also Finlay v Finlay, 240 NY 429, 148 NE 624 [1925]). In doing so, the court must make a decision based upon the totality of the circumstances, (see Eschbach v Eschbach, 56 NY2d 167, 172 451 NYS2d 658 [1982]), which includes evaluating which parent will best provide for the child's "emotional and intellectual development, the quality of the home environment, and the parental guidance to be provided." (Matter of Louise E.W. v W. Stephen S. 64 NY2d 946, 947, 488 NYS2d 637 [1985]). [*11]

Recently, in Mohen v Mohen, the Appellate Division of the Second Department, held: There is "no prima facie right to the custody of the child in either parent" (Domestic Relations Law § 70[a]; § 240 [1][a]; see Friederwitzwer v Friederwitzer, 55 NY2d 89; Matter of Ricco v Ricco, 21 AD3d 1107). "Factors to be considered include the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and the ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent" (Kaplan v Kaplan, 21 AD3d 993, 994-995, quoting Miller v Pipia, 297 AD2d 362, 364).The Supreme Court properly identified the factors that were to be considered in rendering its custody determination. It also properly concluded that an award of sole custody to one parent, rather than joint custody to both parents, was in the best interests of the child given the level of acrimony between the parties and their inability to function together in a manner necessary for a joint arrangement (see Pambianchi v Goldberg, 35 AD3d 668, 689; Granata v Granada, 289 AD2d 527, 528).

(Mohen v Mohen, ___AD3d___[2 Dept 2008]).

It is also well established that the court must take into account any

incidents of domestic violence when making a custody determination (see Domestic Relations Law 240 [1]; see also Matter of Wissink v Wissink, 301 AD2d 36, 749 NYS2d 550 [2 Dept 2002]). The court cannot minimize the domestic violence that both parties admit. The court is especially concerned about the incident when the mother fell down the stairs when she was pregnant and the mother's use of pepper spray on the father before the child was born and while the parties were still married and living together.[FN6]

While the court cannot determine who was the initial aggressor in the incident of domestic violence testified to, the court finds credible the mother's sister's testimony, that she saw the father engaged in throwing the mother, while pregnant, down the stairs and that the father prevented the mother from calling 9-1-1. The mother's sister reports that she herself is a child protection caseworker in California.

Another significant factor in the determination of custody is which parent will assure that the child maintains a meaningful relationship with the other parent (see Matter of Bliss v [*12]Ach, 56 NY2d 995, 998, 453 NYS2d 633 [1982]). The court finds credible the mother's contention that the father's parents apparent dislike for her will have an adverse affect on her relationship with her son if the father is awarded custody. The court does not find credible the paternal grandfather's testimony that he liked the mother. Testimony establishes that he cursed at her and that he aligned himself with his son consistently throughout the proceeding and in ways that clearly undermined the credibility of his testimony. The paternal grandparents have played a significant role in the child's life and in this divorce action. During the Article 10 proceeding they initially had custody of the child and it was they who retained counsel for their son and began this lawsuit on his behalf. The court does note that the mother may have acted in a manner which, at times, did not vest them with much faith or trust in her, including her purposeful withholding of the child from his father and the paternal grandfather when they attempted to pick the child up for a scheduled visitation, her promise to spend the weekend and to bring the child to their home but then failed to come or to telephone at the agreed upon time and her unilateral act of redirecting the father's entire pay check without permission.[FN7]

It appears that both of the parents have engaged in a pattern of purposefully limiting the access that the other has with the child. This must stop. The court is concerned with the mother's manipulative tactics to prevent the father and child from having a meaningful relationship. The mother denied the father access for 23 months when she took the child to California. The court does not find credible the father's claim that he did not know the child was in California; however, this does not excuse the mother's conduct of leaving during the course of the proceeding. During the course of the instant trial, while the child was in the father's custody, the father was not sensitive about making up his son's missed supervised visits with the mother caused by his work schedule and he did not promptly complete the forensic evaluations. In fact, it appears to the court that the father at times sought to delay the completion of the forensic evaluation thereby prolonging the litigation. Additionally, it is undisputed that the father denied the maternal aunt access to the child, when she visited from California, even though her visit would not have interfered with the father's plans with the child.

In addition to maintaining a meaningful relationship between both parents and child, the court acknowledges the strong judicial preference of keeping siblings together, in order to encourage closer familial relationships (see Eschbach v Eschbach, 56 NY2d 167, 173, 451 NYS2d 658 [1982]). The fact that the father is engaged to a women who has a child from a prior relationship does not make them siblings. The father's newborn child is a [*13]half-brother; however, that relationship is new and tenuous at best. The court believes that the short period of time the siblings have been together is not a reason to deny the mother custody.

It is clear from the testimony that both parties have good intentions in raising the child; however, the court finds it of some concern that the father places expectations on the child that may be beyond his age and capacity. While the father is understandably proud of his son's progress in becoming independent while he has lived with him, the court questions whether the child's growing independence is more a result of natural maturation than a reflection of the father's parenting techniques. Alternatively, the court recognizes that under the mother's care, the child is not held to impractical standards for his age, but that she may, in some ways, overindulge the child and that she may tend to overprotect him.

In determining the best interests of the child, the court must also consider which parent will provide for the child's emotional and intellectual development (Matter of Louise v W. Stephen S., 64 NY2d 946, 947, 488 NYS2d 637 [1985]; see also Berrouet v Greaves, 35 AD3d 460, 461, 825 NYS2d 719 [2 Dept 2006]). The mother has gone to great lengths to provide the son with education alternatives. The father has shown more ambivalence about letting the child test for gifted schools. The court is concerned about the fathers explanation as to why he had sexual relations with the mother when she came to the Army base.[FN8]

There is no doubt that the child has developed relationships with both of his parents; however, the court recognizes that the child has a deeper and more developed relationship with his mother. The fact that one parent was the primary caretaker for a majority of the child's life is a factor for the court to consider, (Crum v Crum, 122 AD2d 771, 771, 505 NYS2d 656 [2 Dept 1986]),and the court recognizes that here the mother has been the primary caretaker. The court acknowledges the father's contentions that he has made efforts throughout the child's life to form a meaningful relationship with his child. The court also recognizes that when the father finally took steps to get custody of his son he created a home environment that he felt was best suited for the child; however, this court believes that his full commitment to his child is only newfound. It is of significance to this court that the child has been uprooted from the environment and lifestyle that he has been accustomed to for the vast majority of his life and placed into a blended family where he does not receive the same attention and affection as he did under his mother's care, and the father did not fully appreciate the consequences this had on the young child. [*14]

This court must determine what is in the best interest of the child and what custody situation will promote the child's greatest welfare and happiness. While a child's preference is not determinative of the court's decision, it is a factor in the totality of circumstances (see Ebert v Ebert, 38 NY2d 700, 382 NYS2d 472 [1976], see also Dintruff v McGreevey, 34 NY2d 887, 888, 359 NYS2d 281 [1974]). This court recognizes that the child wishes to live with his mother and to continue to see his father, but the child is only five (5) years of age.

This decision, narrowly comes down in favor of the mother at this juncture, so long as she understands that she cannot limit the father's access to the child. The mother has been the parent who has met all of the child's emotional and developmental needs until the writ of habeas corpus was granted giving the father custody on default. The child thrived in her presence and she has devoted herself unconditionally to his nurturing, care and progress. The father's inappropriate aggression and belief that he can pull a telephone out of a wall to prevent the police from being called are of grave concern to the court (see Matter of Wissink v Wissink, 301 AD2d 36, 749 NYS2d 550 [2 Dept 2002]). Thus, the mother's application for custody, which is supported by the attorney for the child, is granted.

It should be noted that, in making its determination, the court considered Dr. Amal O. Madani's forensic testimony and report concerning the parent's emotional support for the child; however, taking all of the above into consideration, this court rejects the proposition that the mother is unfit to raise the child.[FN9] It is well established that the court is not required to follow, or to agree with, the recommendations of a court appointed expert (see Zelnik v. Zelnik, 196 AD2d 700, 700, 601 NYS2d 701 [1 Dept 1995], see also Berrouet v Greaves, 35 AD3d 460, 825 NYS2d 719 [2 Dept 2006]). Although Dr. Madani did not give a clear recommendation as to which parent should have custody, the court acknowledges Dr. Madani's testimony that the mother is an affectionate, attentive, encouraging parent that sets appropriate limits. The court also recognizes that the mother has consistently provided the child with a loving and secure environment to learn and grow from the time that he was born. She has placed particular attention on the child receiving the best education available to him so that he might reach his greatest potential. She routinely took him swimming and to the library and she enrolled him in a school for gifted children and she has gone to great lengths to create a home where the child is active and creative in ways that will stimulate his intellectual and physical development. It is clear to this court that the child and the mother have a strong and significant emotional bond. It is also evident to the court that she has far greater insight into the child and his emotional, educational and developmental needs than the father does.

The court also notes Dr. Madani's testimony that the father lacks the ability to adequately empathize with the child or respond to him in a way that makes him feel comforted. This [*15]court is concerned about the father's decision to introduce his child instantly into his newly blended family without considering the emotional impact it might have on the child. This is especially true given that he had just been abruptly removed from his mother the only caretaker he has ever known by the court. Significantly, and contrary to the suggestion of the court appointed evaluator, the father has not obtained any professional therapeutic assistance for the child to help him cope with the abrupt interruption of his mother's care and custody.

At trial, during questioning, the mother admitted that she protested outside of the Supreme Court building while the proceeding was ongoing. When questioned about this at trial, she indicated her frustration with the court process because the custody trial had been delayed when the father was in mandatory training for his new employment as a corrections officer and as a result of the hearing before J.H.O. Gans. Furthermore, she sent two (2) letters to Dr. Madani, the forensic evaluator, after being confronted with certain inconsistencies in her testimony and her failure to respond to requests for information. The letters caused Dr. Madani to become emotionally distressed on the witness stand. At one point during her testimony, the doctor began to cry on the witness stand and a recess was called.

The court recognizes that the mother feels that she was a victim of a husband who exerted power over her. She remains very sensitive to situations where she perceives, correctly or not, a power differential.[FN10] It is crucial for the mother to think before she acts in stressful situations, especially when she feels overwhelmed, it is her obligation to provide the child with a stable parental influence and not to deny the father access to his child.

The mother's judgment causes her to take rash action, such as sending letters to the forensic evaluator, cutting a security bracelet and removing the child from a hospital during an ACS investigation and leaving for California in the middle of a trial, are all extreme reactions making the mother's situation far worse than it needed to be. While this court does not condone many of the mother's actions, it finds her to be credible when she testified that she would behave differently in the future. The court also notes Dr. Madani's testimony that the mother displays high anxiety in stressful situations, and when the proceedings are over she is likely to be less anxious and to conduct herself in a more pragmatic manner.

Testimony reveals that the father is extremely angry and hostile towards the mother. He truly does not know what she will claim or what excuse that she will come up with to try to interfere with his access to the child.

The court notes that the mother's contention that she would remain in New York because she will ultimately inherit a house, which belongs to her grandmother-like Aunt, appears to be a plan whose realization may never come to fruition. It would require the consent of [*16]at least a dozen relatives and others. Her reluctance to provide that information to the neutral forensic, who was utilizing the information to determine if the mother had stable roots in the community or was a flight risk, is of concern to the court; however, it is the court's opinion that the mother is no longer a flight risk and that she fully understands that she may not abscond with the child from the jurisdiction of the court or limit the father's access to the child. She must also recognize that any future claims she makes regarding the father's relationship or acts with the child will warrant close scrutiny.

The mother must learn to recognize that her immediate desire to flee or to strike out whenever challenged or confronted with a position inapposite to hers is inappropriate and counter productive to her and her child. She must stop acting out of impulse without considering the consequences of her actions or she will have lost this one last opportunity to have custody of her child. The court cautions the mother not to give into her impulses or to jump to erroneous conclusions and urges her not to file reports with authorities unless there is a good faith basis to do so.

This opportunity is being provided to the mother in part because of the domestic violence, clear power imbalance and the court's belief that the father knew all along where the child was (in California) and waited for an opportune time in his life to regain custody of the child. Given the information presented in the father's writ application, the court had no alternative but to place the child in the father's care during this substantiated period of time of litigation with the mother having limited access to the child. The mother should have never left New York with the child; however, the court agrees with the attorney for the child that the father's explanations of trying to locate the mother and child were disingenuous.

The court will hold the mother to her testimony that she will reside in New York City as a requirement for retaining custody of the child. In doing so, the court finds that the mother is credible as to her intentions to provide meaningful contact between the child and father. The court recognizes that the mother has created a suitable home for the child to move into with a new room for the child. Under this scenario, the father will be able to have regular visits with the child.

The court recognizes that these two parties have very different parenting styles and very different outlooks on life. While each must respect the others parenting styles, they must understand that their child deserves, and must have, full cooperation of both parents in order to thrive. The court negatively views any attitude or actions that limit access to the child or that appears to demean the other parent to the child (Stern v Stern, 304 AD2d 649, 649, 758 NYS2d 155

[2 Dept 2003]).

In determining custody, the court must not look upon this decision as a vehicle for punishing the mother, but must remember that the true test of determining custody between parents who have a significant negative history is what is in the best interests of the child. [*17]

The child shall have parenting time with the father, every other weekend, to be picked up from school on Friday at the conclusion of the school day and returned, directly to school, on Monday morning at the beginning of the school day.[FN11] If the father cannot make arrangements to have the child returned to school at the conclusion of the weekend, he shall return the child to the mother, curbside only, on that Sunday at 8:00 p.m., with telephone notice to the mother Additionally, the father shall pick up the child, each week, at the conclusion of the school day one mid-week day each week if the father's schedule permits and shall return him to school the next morning. The father shall present the mother with a copy of his work schedule,

by e-mail, within 24 hours of receipt. Pursuant to the mother's representations to the court, she shall reside in New York City. During the summer, the parents should alternate four weeks each with the child, and this summer, the mother shall have the month of August with the father having visitation alternate weekends to ease the transition. During these weekends, the father shall pick the child up on Friday at 9:00 a.m. and drop him off Sunday at 5:00 p.m. curbside (if the father has work during one of these weekends, he shall meet with the child during his mid-week day off). The parties shall alternate New Year's day, Martin Luther King day, President's weekend, school winter recess, school spring recess, Memorial day, Labor day, Columbus day, Thanksgiving weekend and school winter intercession New Year's Eve. The parties should also alternate religious holidays. Commencing September 2008, the father will have the child for Labor day weekend and the parties will alternate holidays accordingly thereafter. The child shall always be with the mother on Mother's day and the father on Father's day.

The father shall have unfettered access to all medical, dental, psychologic and educational records of the child. The father shall receive notification of all medical appointments and school events and extra curricular activities and shall attend same if he so desires. He shall have the right to attend all parent teacher conferences, receive all report cards, standardized test results, admission test notifications and doctors appointments. If the child is admitted to a hospital or receives emergency medical treatment he shall be notified immediately and shall be allowed to attend and visit the child and participate in planning for the child's medical treatment. The father shall be able to telephone the child each day at a time agreed upon by the parties and said conversations shall not be monitored. During periods of vacation each party shall know the location and telephone number to enable access to the child. The child's passport shall be maintained by the father. If the mother seeks to leave the country with the child she shall do so only with written permission of the father (said permission shall not be unreasonably withheld) or court order. The father shall be informed and receive copies of all plane tickets purchased on behalf of the child.

The application to vacate the default judgment is granted as it relates to the issue of custody and visitation (which were not referred to the JHO) to the extent indicated [*18]herein. As stated herein the mother has, as it relates to custody and visitation, met the threshold of excusable default and a meritorious defense. Issues of custody and visitation should be decided on the merits (see Carlin v Carlin, __NYS2d___ [2 Dept 2008]).

The application related to the confirmation of the JHO's report on the balance of the default was not been made in an expeditious fashion and in order prevent further delay to the custody and visitation determination the application to confirm the JHO's report will be decided by a separate decision.

Settle an amended judgment on notice together with a copy of this decision.

E N T E R

JEFFREY S. SUNSHINE

J.S.C. Footnotes

Footnote 1:The term "law guardian" has been replaced with the more appropriate term "attorney for the child" (see 22 NYCRR 7.2).

Footnote 2: The mother has moved inter alia to vacate the judgment of divorce. That issue (except for that branch of the motion dealing with custody and visitation) was referred to J.H.O. Louise Gruner Gans to hear and report pursuant to 22 NYCRR Part 122. At present, the court is awaiting motions to confirm or disaffirm said report. Upon the return of the child to New York and pursuant to the mother's motion, the court in exercising the equity powers of the court and pursuant to DRL 240 bifurcated the question of custody, appointed a forensic evaluator chosen by the parties and held this evidentiary hearing on the issue of custody and visitation.

The question of custody is such an important one, that clearly both sides should have an opportunity to an evidentiary hearing. It is necessary to hold a full evidentiary hearing on the issue of custody (see Carlin v Carlin, __NYS2d___[2 Dept 2008], see also Dintruff v McGreevey, 34 NY2d 887, 359 NYS2d 281 [1974]). The last order of custody in this matter was the default order contained as a decretal paragraph in the December 15, 2005 judgment of divorce. The August 12, 2004 so ordered stipulation was stayed on January 14, 2005, by this court when the abuse petition was filed and after this court discussed the procedural timetable for completing the 1028 hearing with Judge Lim. The father's position at that time wasthat the Article 10 proceeding constituted a change in circumstances. Clearly, much has transpired between the August 2004 so ordered stipulation and the date of trial, as outlined herein, which would constitute a change in circumstances warranting this evidentiary determination (see Bey v Perez, 39 AD3d 631, 833 NYS2d 613 [2 Dept 2007], see also Benjamin v Benjamin, 249 AD2d 348, 670 NYS2d 361 [2 Dept 1998]).

Footnote 3: The mother's contention is incorrect, the father's counsel and mother on or about June 1, 2005 informed the court that they reached a settlement. On consent, for the sole purposes of having an attorney review the agreement, father provided the limited sum of $1,000.00 to review a proposed agreement. Shortly thereafter, prior to this review, the mother fled to California. The $1,000.00 check for her counsel to review the proposed stipulation was noted in the memo portion of the check and the letter of transmittal accompanying the check. It should also be noted that at that time Judiciary Law 35(8) had not been enacted and there was no mechanism in place for Supreme Court to appoint publicly financed counsel for parties in custody visitation disputes. (see Judiciary Law 35(8) effective April 13, 2007).

Footnote 4: While the father is in a superior economic position that alone should not be a basis to award him custody (see Lester v Lester, 178 AD 205, 165 NYS 187 [2 Dept 1917], see also D'Alessandro v Parasi, 60 AD2d 897, 898, 401 NYS2d 531 [2 Dept 1978]).

Footnote 5: During the course of the trial, the child obtained, what Dr. Madani described as a "very small superficial thin mark on his finger." The mother demanded that the neutral forensic expert notify ACS and moved before this court for a change in custody alleging the child was burned by a space heater. No Article 10 proceeding or "indicated case" has been filed, and the pendente lite application was denied.

Footnote 6: The father claims the mother sprayed him with pepper spray in the face without cause. The mother claims she sprayed him in self defense.

Footnote 7: The father claims that the mother wrongfully intercepted father's entire income when she had access to his monies while in the service. The mother claims she went to the Army base in New Jersey prior to the father being sent to Iraq so he could see their son and to straighten out some financial arrangements.

Footnote 8: The parties admitted to having sexual relations when the mother brought the child to see the father on the Army base. The father claimed that there was no emotional significance, nothing to that sexual encounter, and analogized it to only having his needs met as a soldier going off to war.

Footnote 9:The court does not request or require such a recommendation. It is up to the court to make the final determination.

Footnote 10: This includes that the mother was pro se at the time she left she left for California, where the father had private counsel, as well as she feared for her safety in New York City.

Footnote 11:The child is to be returned to school on Tuesday mornings at the beginning of the school day if the weekend includes a holiday Monday.