Jin C. v Juliana L.

[*1] Jin C. v Juliana L. 2013 NY Slip Op 50397(U) Decided on March 8, 2013 Supreme Court, Kings County Sunshine, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 8, 2013
Supreme Court, Kings County

Jin C., Plaintiff,

against

Juliana L., Defendant.



XXXXX



Virginia Geiss, Esq.

Attorney for Plaintiff

26 Court Street, Suite 2410

Brooklyn, New York 11242

Sharyn M. Duncan, Esq.

Attorney for Defendant

32 Court Street, Suite 707

Brooklyn, New York 11201

Randi L. Karmel, Esq.

Attorney for the Child

425 Park Avenue, 27th Floor

New York, New York 10022

Jeffrey S. Sunshine, J.

Procedural Background

The court is called upon to determine custody of the parties' one (1) minor child who was born in July 2008. The child is currently four (4) years old. The court bifurcated the issues of custody, visitation and the mother's application for a final order of protection.[FN1] This matter was [*2]tried on: October 18, 2011, October 20, 2011, November 10, 2011 and January 26, 2012. Both parties were represented at that time by attorneys of their own choosing.[FN2] The Court directed the parties to submit minutes from the trial dates and written summations by March 26, 2013. This Court received a complete set of minutes on January 4, 2013.

The Facts

The parties were married on December 28, 2007 in a civil ceremony in Brooklyn, New York. There is one (1) child of the marriage, a daughter, born in July 2008. The child is currently four (4) years old. Prior to the commencement of this action, the parties resided together, with their child, in Brooklyn, New York. The father commenced this action for divorce on November 25, 2009, less than two (2) years after the parties married.

The father has been employed by a rail road as a signal inspector for over ten (10) years. The mother was born in Indonesia and holds a Bachelor's degree in business management. The mother testified that she worked at a construction company as an accountant for two (2) years prior to giving birth and that she started working at another company, "R", doing business accounting approximately four (4) months after the child was born. The mother testified that the paternal grandmother provided child care for the child while she and the father were at work but that she quit working two (2) months later because she objected to the manner in which the paternal grandmother took care of the child. The mother testified that she began working again in September 2009, approximately seven (7) months after leaving her employment at "R", as a bookkeeper for the "N. A." school. She testified that she left her employment at the "N.A." school two (2) months later because the child was sick.

The parties both testified that they had a high-conflict relationship before they separated; however, the parties offered vastly conflicting testimony regarding alleged physical and verbal abuse during the marriage. The mother testified that the father did not provide for her during the pregnancy and that he "made a lot of mistakes" during the marriage. She testified that the father [*3]physically and verbally abused her during the marriage.

The father denied the mother's allegations of physical abuse and testified that it was the mother who physically and verbally abused him during the marriage. He testified that before the parties separated the mother "made a big thing out of everything," that she objected to the time he spent with the paternal grandparents and his extended family and that she threatened to call his co-workers and the police if he did not comply with her demands.

The parties appeared for a preliminary conference before this Court on March 5, 2010 and this Court ordered that the mother make the child available so the father could have supervised parenting time, based on her allegations of physical violence, with the child every Saturday until the next adjourn date on March 15, 2010. The temporary order of visitation was subsequently extended by the Court at the subsequent court appearances on March 15, 2010, April 19, 2010 and May 5, 2010.

At the May 5, 2010 court appearance, the parties entered into a written consent stipulation, which this Court so-ordered, providing that the parties' child would not leave the United States without Court permission until further order of the Court. This Court issued temporary orders of protection in favor of both parties against the other.[FN3]

This Court requested a courtesy Court Ordered Investigation by the Administration for Children's Services (A.C.S.) on May 7, 2010 in response to the parties' counter-allegations regarding alleged domestic violence in the presence of the child and allegations that the father observed a bruise on the child's head.

Kings Plaza Mall Incident, October 18, 2008

The parties offered vastly different testimony regarding a shopping trip the family took to Kings Plaza Mall in Brooklyn, New York on October 18, 2008. The parties agreed that they parted at the mall to shop separately — the father shopping on his own and the mother taking the parties' young daughter in her stroller — and agreeing to meet again at 5:30 p.m.

The mother testified that when the father met her after shopping, he roughly pulled the stroller out of her hands and began to push the stroller and the parties' daughter to the parties' parked car, and that when she tried to follow them the father kicked her in her right thigh causing her pain so that she could not walk any further. The mother testified that the father took her purse and abandoned her in the mall parking lot without any money or means of transportation. She further testified that she had to borrow $10.00 from a mall security guard to hire a car service to get home.

The father denied hitting or kicking the mother at any time during the October 18, 2008 incident and testified that he was delayed by several minutes because he was in a check-out line and that during that time he missed several telephone calls from the mother. He testified that when he met the mother a few minutes after 5:30 p.m. that she yelled, called him names and kicked his foot in front of the infant daughter. He further testified that he began pushing the daughter's stroller away from the mother in an attempt to shield the child from witnessing the mother's behavior. He testified that the mother kicked and/or struck him approximately ten (10) times while he was pushing the stroller but that he did not use any return physical force towards [*4]her. The father testified that he did not kick the mother but that the mother hurt herself when she "charged" at him and that she hurt herself when she fell after he moved himself and the child in the stroller quickly out of her way to avoid her attack. He further testified that he left the mall with the parties' daughter after the mother said she was telephoning the police and was going to report that he hurt her. He testified that he returned to the mall to find the mother after he took the parties' daughter to the maternal grandparent's home so she would not witness the mother's behavior. The father testified that he later met with the mother at a neighbor's house and that the mother again threatened to telephone the police and report that he hurt her if he refused to sign a statement that she would get custody of the parties' daughter. He testified that she attempted to slap him when he refused to sign the statement and that the mother then telephoned the police. He testified that the police did not arrest him or file a report against him when they arrived. The mother testified that the police did not file a report against the father because she intervened and requested that they not arrest him.

August 31, 2009 Incident

The father testified that he took the daughter to the paternal grandparents' house on the afternoon of August 31, 2009 because the mother had a job interview. He testified that when the mother arrived at the paternal grandparents' house at approximately 6:00 p.m. she demanded that he drive her and the daughter to the marital residence. He testified that he told the mother that her request was unreasonable because it was rush hour and because he was painting a room in the paternal grandparents' home and needed a few more minutes to finish but that he would drive the family home very soon. He testified that he ultimately complied with the mother's demand to avoid an argument. He testified that while he was driving the mother and daughter home the mother, who was sitting in the back seat of the car with the daughter in a car seat, began hitting him and pulling his hair while he was driving on the highway. He testified that when the parties arrived at the marital residence the mother began throwing kitchen utensils and dishes at him and that the daughter started to cry and ran to him. The father testified that he tried to shield the child from seeing what the mother was doing with his body but that the mother picked up a knife with a six (6) inch blade and began approaching him. He testified that he grabbed the mother's hand and pulled the knife out and that the mother fell. He testified that when she got up she threatened to kill him and then she hit him in the face with a crystal bowl and her fists several times. He testified that the daughter was present during the struggle and that she began to cry. The father testified that he left the marital residence to avoid further confrontation with the mother. The father testified that, as a result of the mother's action on August 31, 2009, he feared for his safety. The father received medical treatment at Coney Island Hospital but testified that he did not file a police report on the night of the incident because the mother had a second-round job interview the following day and he did not want to interfere with her interview because she is the mother of their daughter and he knew how difficult the job market was at the time and he did not want her to be arrested. On direct examination, the father testified that:

Q:What happened after you left the house?

A:I left my house, I went — my car was on the driveway, I went inside my car. I'm not a hundred percent driving. I don't want to cause any car accident or unsafe for other and myself. So I was sitting on my car around maybe ten, fifteen minutes, until I get more — I get more clear minded. After 15 minutes and I decide to go to [*5]police precinct. I saw the police officer.

Q:Did you do that?

A:Yeah, I went there and I saw the police officers Diomede.

...

Q:What, if anything, happened while you were at the precinct speaking to this police officer?

A:When I was in the precinct speaking to Officer Diomede, I want to file a police report about the incident. I explained to him the whole incident, and he give me the police report to fill out. Meantime, he was talking to me. Once I finished, fill out, I have to go with the police car, go arrest Ms. L. And from there I was talking to Officer Diomede. I cannot have her arrested because she have a second testing.

THE COURT:She has what?

THE WITNESS:She has second full day testing on the new job in "N.A." School.

Q:What do you mean?

A:Next day, she had to go to the job interview, which is on the second testing period.

Q:Second interview?

A:Yes. But it's testing period, though. Second day, full day testing period. And I was talking to Police Officer Diomede. I loved her so much and she is the daughter of my — she is the mother of my daughter. And nowadays the job not easy. So I cannot have her get arrested because of the incident on the police report...

He testified that he missed two (2) days of work as a result of the injuries he received from the mother on August 31, 2009.

The mother denied hitting the father or throwing any kitchen utensils or objects at the father during the August 31, 2009 incident. The mother testified that she, the father and the child were at the paternal grandparents' home on August 31, 2009 but that the father refused to take her and the child home to the marital residence until almost 9:00 p.m. despite it being past the time when the child was usually fed and put to bed. The mother testified that the father refused to permit her to feed the child but that at 10:00 p.m. she "could not take it" anymore and that the father punched her in the face when she tried to feed the child. She testified that, as a result, she felt "dizzy" and her lip bled. She testified that she thought that she was "going to die" because of the cut on her lip. She testified that she began to scream and that the father grabbed her wrist, twisted her shoulder and choked her when she threatened to telephone the police.

November 3, 2009 Incident

The father testified that on November 3, 2009 he informed the mother that he was taking the daughter to visit with the paternal grandparents because they had been away for several weeks. He testified that while he was driving he heard several telephone calls come into his cellular telephone during the approximately ten (10) minute drive to the paternal grandparents' house but that he did not answer the telephone calls because he was driving. He testified that when he arrived at the paternal grandparents' house he found out that the mother had telephoned the paternal grandparents several times in addition to calling his cellular telephone in the time it took him to drive from the marital residence. The father testified that the mother left at least one [*6](1) message on his telephone cursing him out in Chinese. He testified that when he returned with the daughter to the marital residence at approximately 8:30 p.m. the mother "forcibly" grabbed the child and that the child began to cry as a result. The father testified that he went into the kitchen to avoid further confrontation with the mother but that she followed him and began throwing kitchen plates and utensils which hit him. He further testified that the mother stabbed him with a pen on his right elbow causing him to bleed and then she telephoned the police and accused him of hitting her. He testified that he declined to file a police report against the mother at that time because it upset the daughter to have the police in the house.

November 4, 2009 Incident

The father testified that the mother forcibly removed the daughter from his arms while saying that he was not a fit parent and that she would not allow him to hold the child and that the child began to cry. He testified that she left the marital residence in her pajamas and filed a report with the police alleging that he took her cellular telephone. The husband testified that the mother returned to the marital residence with two (2) police officers and requested that they arrest him in front of the child but the police did not arrest him.

Family Court Temporary Order of Protection

The father testified that he filed a family offense petition in Family Court on November 5, 2009 and obtained a temporary order of protection against the mother which was served on her by the police on November 7, 2009. The father testified that, on November 14, 2009 at approximately 1:30 a.m. the mother again brandished a kitchen knife at him and demanded that he withdraw the temporary order of protection against her or that she would file complaints with the Department of Buildings against his parents. The father testified that, as a result of the mother's actions on November 14, 2009, that he feared for his safety. The father further testified that on November 18, 2009 the mother again threatened to file complaints against him if he did not withdraw the temporary order of protection and then left the marital residence at approximately 3:30 a.m. The father testified that he telephoned the police at that time out of concern for the mother.

The father commenced a divorce proceeding against the mother on November 25, 2009 and the mother was served with the divorce summons on December 4, 2009.

December 4, 2009

The father testified that he telephoned the police on December 4, 2009 after the mother transferred $146,000.00 out of the United States, packed two (2) pieces of luggage and tried to remove the daughter from the marital residence on the same day that she was served with the summons for divorce. The father testified that he telephoned the police and that, as a result, the mother did not remove the daughter from the marital residence; however, he testified that three (3) days later on December 7, 2009, he returned from work and found that the mother, the daughter and the luggage were gone. He further testified that he filed a missing person report. The father testified that after the mother left with the child on December 7, 2009 she refused to let him see the child again for three months until March 6, 2010 when this Court ordered that the father have parenting time with the child.

The mother does not dispute that she transferred $146,000.00 to Jakarta, Indonesia on December 4, 2009. She testified that on December 4, 2009 she attempted to leave the marital residence with the child to attend a belated Thanksgiving celebration with friends. She testified [*7]that the father refused to allow her to leave with the child, forcibly removed the child from her arms and said that he threatened to "hide" the child. The mother concedes that she packed two (2) suitcases on December 4, 2009 but testified that the luggage contained her personal documents, mail and a set of Quick Books study guides which she planned to store at her friend's house. During cross-examination on January 26, 2012, the mother testified that:

Q:Now, on that same day, you also wired $160,000 to Indonesia?

[after an evidentiary ruling the testimony continued]

A:I can't remember.

Q:You can't remember? Well, do you remember that you testified on the last date that you wired a $160,000 to Indonesia on the same date as you were celebrating Thanksgiving?

A:Ms. Geiss, I told you already, I can't remember.

Q:Okay.

A:We living not in the past.

Q:Answer my question. Thank you.

A:I answer already. Thank you.

THE COURT:Witness is directed not to argue with counsel and to answer the question. Thank you.

Q:What is your best recollection about when you sent $160,000 out of the country as we are sitting here today?

[after an evidentiary ruling the testimony continued]

A:I can't remember.

Q:Was it in the year 2009?

A:I can't remember.

Q:You have no idea?

A:I have no idea.

[after an evidentiary ruling the testimony continued]

Q:What was the reason that you sent that $160,000 back to Indonesia at the time that you did?

A:That money belong to my family for a long time for a education.

Q:It is going to who?

A:For me, education.

Q:Is it going for your education. What education was that?

A:I'm supposed to take a Master's degree.

[after an evidentiary ruling the testimony continued]

Q:Would you agree that you sent that money back to Indonesia after you had been served with the divorce papers?

A:I disagree with that, because Mr. C. — him knows that.

...

Q:Ms. L., did you send the money back to Indonesia before or after you were served with the divorce papers?

A:I can't remember the date.

[after an evidentiary ruling the testimony continued] [*8]

Q:At the time that you sent the money back, did you have any funds in order to provide yourself or A.C. [child's name redacted] with food, clothing and shelter?

A:(No response.)

Q:Did you have any other monies to provide for yourself are?

A:I had unemployment. I am not working.

Q:So, you had unemployment. What was the amount of your benefit?

A:$348.

Q:So, you remember the amount of your unemployment benefit — in December 2009; is that correct?

...

A:Yes, I remember.

The mother conceded that she removed the child from the marital residence on December 7, 2009 without the father's consent and she testified that after removing the child she did not notify the father about where the child was or the child's well-being.

Q:Did you contact Mr. C. to tell him that his daughter was okay after you left?

...

A:I can't remember.

Q:You can't remember?

...

A:I said already, I didn't remember.

Q:Did you call Mr. C. on the eighth and tell him that A.C. [child's name redacted] was okay?

A:I never called Mr. C.

Q:What?

A:I never called him.

The mother testified, on cross-examination, that:

Q:Do you think that it is a good thing for A.C. [child's name redacted] that she is spending as much time with Mr. C. as she is right now?

A:Spending much time?

Q:That, she is living with him and visiting with you. Do you think that's a good thing for A.C. [child's name redacted]?

A:No.

...

Q:You know, how much time do you think that A.C. [child's name redacted] should spend with Mr. C.?

[after an evidentiary ruling the testimony continued]

A:I don't know, because he always work. I don't know the answer.

Q:So, you don't have an opinion on the issue?

A:I said, I don't know. [*9]

The father testified that on March 6, 2010, the first day he saw the child after the mother removed her from the marital residence without his consent, he observed that the child had a bruise on the right side of her face. At trial, the father presented photographs, which were entered into evidence, in support of his testimony regarding the child's bruised face. The mother testified that the bruises were a result of the child falling in her crib on the morning of March 6, 2010 because the child (who was less than two years (2) old at the time) did not want to go to parenting time with the father.

During the court appearance on June 14, 2010, the father's parenting time was extended from supervised time on Saturdays to weekend parenting time from Friday evening until Sunday evening with pick-up and drop-off at the 61st Police Precinct. At the court appearance on August 13, 2010, the parties withdrew their respective family offense petitions against one another and they entered into a consent written stipulation, which the Court so-ordered, providing that the father's parenting time was extended with pick-up and drop-offs continuing at the 61st Police Precinct.[FN4]

The Court notes that shortly before the October 6, 2010 hearing, the mother appeared in the Queens County Family Court, pro se, and obtained an ex parte temporary order of protection against the father. The mother's application in Queens County indicated that there were "no prior applications" for an order of protection, notwithstanding the applications in the matrimonial action before this Court or the two (2) prior Kings County Family Court applications for orders of protection which were withdrawn, on the record in open court, after the Kings County Family Court proceeding was consolidated, on consent, into the matrimonial action pending before the Supreme Court.

The Court held an all day temporary custody hearing on October 6, 2010. Both parties were represented by counsel of their own choosing during the hearing. At the conclusion of that full evidentiary hearing, this Court issued an oral decision finding that the father was a more stable parent, at that time, for the care of the parties' young child. The Court issued a simultaneous written Order, dated October 7, 2010, awarding the father temporary custody and directing that the father settle an Order, on notice, with a copy of the minutes. Based on the mother's continuous accusations against the father during parenting time exchanges the Court directed, over the mother's objection, that pick-up and drop-off continue to take place at the 61st Police Precinct.[FN5] During that court [*10]appearance, this Court, after conferring with the referee from Queens County Family Court, temporarily stayed the ex parte Queens County Family Court temporary order of protection in favor of the mother against the father pending a formal application by the mother for a temporary order of protection before this Court no later than October 12, 2010. The mother did not seek an order of protection against the father following this Court's October 6, 2010 decision.

The Court issued a subsequent written decision dated November 29, 2010 in which the Court noted that based on the hearing it was the Court's belief that the father was a victim of domestic violence by the mother.

In October 2010, the mother filed, pro se, at the Appellate Division, Second Department leave to appeal the orders of this Court dated October 6, 2010 and October 7, 2010 and to be awarded custody of the child pending hearing and determination of the appeals, for reinstatements of an order of protection, for poor person relief, to relieve the attorney for the child and for appointment of a new attorney for the child, and to change venue of the matter to the Queens County Family Court. On November 18, 2010, the Appellate Division, Second Department rendered a decision and order on motion wherein it was:

ORDERED that the branch of the motion which is for leave to appeal is denied; and it is further,

ORDERED that the branches of the motion which are to be awarded custody of the subject child pending hearing and determination of the appeals, for the reinstatement of a certain order of protection, for poor person relief, to relieve the attorney for the child and appoint a new attorney for the child, and to change venue of the matter to the Family Court, Queens County, are denied as academic; and it is further,

ORDERED that the application is denied.

(C. v. L., Slip Opinion No: 2010 NY Slip Op 88235(U) [2 Dept., 2010])

The father testified that whenever he dropped-off the child to the mother at the Precinct after his parenting time the mother would "strip search" the child "in front of everybody in the precinct." He testified that the mother removed the child's clothing, in public, at the precinct approximately seven (7) times and that she often involved the police to examine the child for any marks, even when it was only an irritation from a mosquito bite. The father also testified that the mother attempted to interfere with his court-ordered parenting time by repeatedly taking the child to the emergency room immediately before his parenting time was supposed to begin [FN6], making repeated reports to [*11]A.C.S. alleging that he was mistreating the child and by filing police reports against him alleging that the child suffered physical harm because he did not adequately supervise or care for her during his parenting time.[FN7] The father testified that the mother often disparaged him, in front of the child, during parenting time exchanges. On direct examination the mother was unable to answer how, if at all, she encouraged the child to go to the father during parenting time exchanges. On January 26, 2012, during cross-examination, the mother testified that:

Q:Okay. Did you think it might have a negative impact on A.C. [child's name redacted] to not see her father for several months?

A:Anyway, I don't think so.

On cross-examination by the attorney for the child, the mother testified that:

Q:You testified that earlier — you had testified earlier, not today, but previously, that Mr. C. is a good father; is that correct?

A:He's a good father? No.

Q:Do you believe he is a good father?

A:Until now, I still can say that he's not really a good father.

Q:He's not?

A:He's not.

The father further testified that he has no contact with the child when the mother has parenting time with her. The father testified that he was unable to speak with the child during the mother's parenting time because the mother refused to provide him with a working telephone number or the address of her residence for more than a year during the proceeding. The mother did not dispute that she did not provide her telephone number or address to the father during the proceeding. The mother conceded on cross-examination that the father never withheld or interfered with her parenting time with the child pursuant to the temporary custody award and parenting time Order of the Court. The mother testified that:

Q:But, my question is, is the child always there for you to visit according to the Judge's order?

A:Yes. ... [*12]

The father testified that on September 5, 2010 when he picked up the child from the Precinct for his court-ordered parenting time he observed that the child had "very big bruises" on her upper lip and lower lip area and that she had a cut that was bleeding on her finger. The father presented compelling pictures, which were entered into evidence, of the child's face in support of his testimony.

In addition, the father testified that the mother attempted to interfere with his parenting time by unilaterally attempting to change the court-ordered parenting time schedule. The father testified that on Sunday, September 19, 2010 when he arrived at the Precinct to pick-up the child for his parenting time the mother told him that he must drop-off the child the following morning at a daycare in Queens despite the Court Order directing that pick-up and drop-off be at the Precinct.

The father testified that the mother's behavior in front of the child at the pick-up and drop-offs at the Precinct continued to be volatile up to the time of trial. He testified that on August 7, 2011 when she brought the child to the Precinct for his parenting time the mother yelled at him in Chinese, while he was holding the child, that he was a "very bad" person and a "low-life." The father testified that the child is bilingual speaking and understands both Chinese and English.

On cross-examination, the father testified that after the Court awarded him overnight visitation and then full temporary custody of the child he moved his bed into the child's bedroom because "she need [sic] a lot of attention at night" such as when she has nightmares or needs help during the night because she is still in potty-training.

The father testified that he and the child currently reside with the paternal grandparents. He testified that he works from 8:00 a.m. to 4:00 p.m. Monday through Friday and that he has four (4) weeks of annual leave and that his job provides flexibility for when he needs to take time off to take the child to doctor's appointments or when the child is sick. He testified that he leaves for work at 7:15 a.m. so the paternal grandparents take the child to preschool because she is still very young and he does not want to wake her up earlier than necessary, but that he picks her up every day after school. He testified that the child is doing well in school. He testified that he, the child and the paternal grandparents typically eat dinner together but that he is solely responsible for bathing the child and preparing her for bed each night. He testified that the child gets along "really good" with the paternal grandparents and that he and the child have "a lot of good communication."

The mother testified that she was the child's primary care-giver during the marriage and that she alone purchased all of the child's food and clothing during the marriage. She testified that the father refused to buy more milk for the child until the milk available in the marital residence was completely gone and that he refused to take her to the grocery store so she had to walk to buy more milk. The mother testified that she observed the father speaking disparagingly to the child in Chinese when she was an [*13]infant and that the child develops a rash when she is with the father. During cross-examination by the attorney for the child, the mother testified that:

Q:You stated that A.C. [child's name redacted] only gets a rash when she's with her father; is that correct?

A:Yes.

Q:When you see A.C. now, does she have a rash every time she comes from her father's home?

A:Yes.

Q:So, it is your testimony that A.C. has a rash every single week?

A:Yes.

Q:And, is it your testimony that when she is with you, she no longer has the rash?

A:Yes.

When questioned whether she took the child to the doctor in response to the rash the mother testified that:

Q:Did you take her to the doctor?

A:No.

Q:Did you give her any cream or ointment?

A:Oh, yeah.

Q:Which one?

A:Eucerin.

Q:That's not a prescription medication; am I correct?

A:It's not a prescription.

The mother testified on redirect that she first noticed that the child had a rash on October 13, 2010; however, the mother previously testified that she took the child to the emergency room on several occasions prior to October 2010 for treatment for a skin rash. In November 2010, the mother filed a child abuse/neglect report against the father based on the child's rash. After an investigation, the report was deemed unfounded.

The father testified that it was his understanding that the mother had lived in seven (7) different places since the divorce proceeding began. He further testified that he did not know where the mother was living at the time of trial and that the mother's telephone number was no longer working and that she did not provide him with her current telephone number until the date the trial began.

On cross-examination the mother testified that since the commencement of the divorce proceeding she lived in three (3) domestic violence shelters and that she also lived for a short time in Connecticut before obtaining her current apartment. On direct examination, the mother testified that she has been living in a one bedroom apartment in Harlem, obtained through the New York City Housing Authority, since June 2011. She further testified that the apartment has a bathroom and a kitchen and that the child has a trundle bed in the bedroom where the mother sleeps. The mother testified that she [*14]equipped the apartment with a humidifier to help the child's skin condition and an air purifier. She testified that she currently works two (2) days a week from 8:30 a.m. to 5:30 p.m. as a part-time bookkeeper in Manhattan. She testified that, at the time of trial, she was in counseling. On cross-examination the mother testified that it takes approximately an hour and ten (10) minutes for her to get the child from her apartment in Harlem to the child's school in Brooklyn.

On February 4, 2011, the Court appointed Dr. Nancy Duggan, Ph. D., as a neutral forensic evaluator to prepare a written forensic evaluation of the parties and the child. The neutral forensic report, dated May 30, 2011, was entered into evidence. Dr. Duggan testified on November 10, 2011.

Dr. Duggan testified that both parties cooperated with her interviews. She testified that the father made frequent positive remarks about the mother during his interview but that the mother did not make any positive remarks about the father.[FN8] Dr. Duggan testified that the mother appeared to lack any insight into her actions and how they resulted, in part, in the father being awarded temporary custody of the child during the proceeding. Dr. Duggan testified that, based on the mother's history of causing disruptions in front of the child during parenting time exchanges and her history of repeatedly taking the child to the hospital to prove that the child was sick, that she did not recommend a 50/50 parenting time arrangement. Dr. Duggan testified that when the mother "is extremely anxious some of her behaviors are self-defeating" and that she used the child to "press her agenda" by engaging in "excessive" behavior, such as repeatedly taking the child to the emergency room for a rash, in an effort to gain custody of the child.[FN9] Dr. Duggan further testified that the mother's "hyper emotional" behavior and "agitation when distressed, led to instances of poor judgment" which, at times, negatively affected the child's welfare, such as when the mother repeatedly hit the father in the head while he was driving with the mother and child in the backseat of the car. Dr. Duggan testified that she believed the father would be less likely to impede the child's access to the mother than the mother would be to impede access to the father and that the mother would try to interfere with the relationship between the father and child if she could.

The custody trial began on October 18, 2011.

[*15]Discussion

Order of Protection

Domestic Relations Law § 252 authorizes the Supreme Court to issue an order of protection in either a pre-judgment or post-judgment matrimonial proceeding (see also Domestic Relations Law 240 [3] and N.Y.S. Constitution Articles 6 & 7). An order of protection granted by the Supreme Court in a matrimonial action may require a party to stay away from the home, school, business or place of employment of the protected party, "and to stay away from any other specific location designated by the court." (Domestic Relations Law § 252 [1] [a].)

The standards for determining when an application for an order of protection should be granted in a Supreme Court matrimonial proceeding are found in section 812 of the Family Court Act. The party moving for the order of protection must prove that the other party has committed one or more of the crimes listed in section 812 and are said to constitute a "family offense" within the meaning of the Family Court Act (see Richardson v. Richardson, 80 AD3d 32910 N.Y.S.2d 14 [2 Dept.,2010]; see also Fakiris v Fakiris, 177 AD2d 540, 575 N.Y.S.2d 924 [2d Dept 1991].) There are, under the current statute, 19 "family offense" crimes enumerated in section 812 and they range from disorderly conduct, to sexual abuse, to stalking, to assault, including the varying degrees.[FN10] The elements of each of the enumerated crimes are set forth in the corresponding sections of the Penal Law. Unlike in a criminal prosecution, where each element of the crime must be proved beyond a reasonable doubt, the party alleging the commission of a family offense for purposes of obtaining an order of protection in the Supreme Court need only prove the allegation by a fair preponderance of the evidence (see Matter of Drury v. Drury, 90 AD3d 754, 934 NYS2d 337 [2 Dept.,2011]; see also Rubackin v. Rubackin, 62 AD3d 11, 875 N.Y.S.2d 90 [2 Dept.,2009]; Rankoth v. Sloan, 44 AD3d 863, 844, NYS2d 357 [2 Dept. 2007]; Jastremski v. Jastremski, 30 AD3d 424, 818 NYS2d 108 [2 [*16]Dept.,2006].

Furthermore, section 812 of the Family Court Act states that, as relevant here, "In any proceeding pursuant to this article, a court shall not deny an order of protection, or dismiss a petition, solely on the basis that the acts or events alleged are not relatively contemporaneous with the date of the petition, the conclusion of the fact-finding or the conclusion of the dispositional hearing."

The Supreme Court may issue an order of protection, pursuant to Domestic Relations Law section 240 [3], that, once granted, can provide certain conditions which require the enjoined party to obey (see Domestic Relations Law 252 [1] a-g). Additionally Domestic Relations Law section 252 [3] [b] provides:

An order of protection entered pursuant to this subdivision may be made in the final judgment in any matrimonial action, or by one or more orders from time before or subsequent to final judgment, or by both such order or orders and the final judgment. The order of protection may remain in effect after entry of a final matrimonial judgment and during the minority of any child whose custody or visitation is the subject of a provision of a final judgment or any order. An order of protection my be entered notwithstanding that the court for any reason whatsoever, other than lack of jurisdiction, refuses to grant the relief requested in the action or proceeding.

This Court notes that the father did not seek a final order of protection against the mother and that the father allowed the temporary order of protection granted by this Court against the mother to lapse during this proceeding.

The Court finds the mother's testimony regarding the father's alleged physical acts and verbal acts to lack credibility and the father's denial thereof to be credible. As such, the mother's application for a final order of protection is denied. This Court issued a written decision dated November 29, 2010 in which the Court found that it believed that the father was a victim of domestic violence by the mother. The Court notes that the father received emergency room treatment and missed work for two (2) days as a result of injuries by the mother.

Credibility

It is well-established that the "trial court, which had the opportunity to view the demeanor of the witnesses, was in the best position to gauge their credibility" (Massirman v. Massirman, 78 AD3d 1021, 911 N.Y.S.2d 462 [2 Dept.,2010], quoting Peritore v. Peritore, 66 AD3d 750, 888 N.Y.S.2d 72 [2 Dept.,2009]; see also Varga v. Varga, 288 AD2d 210, 732 N.Y.S.2d 576 [2 Dept.,2001], quoting Diaco v. Diaco, 278 AD2d 358, 717 N.Y.S.2d 635 [2 Dept.,2000]; Ferraro v. Ferraro, 257 AD2d 596, 684 N.Y.S.2d 274 [2 Dept.,1999]), and that "[i]n a non-jury trial, evaluating the credibility of the respective witnesses and determining which of the proffered items of evidence are most credible are matters committed to the trial court's sound discretion" (Goldstein v. Guida, 74 AD3d 1143, 904 N.Y.S.2d 117 [2 Dept.,2010], quoting Ivani v. Ivani, 303 AD2d 639, 757 [*17]N.Y.S.2d 89 [2 Dept.,2003], quoting L'Esperance v. L'Esperance, 243 AD2d 446, 663 N.Y.S.2d 95 [2 Dept.,1997]; see also Schwartz v. Schwartz, 67 AD3d 989, 890 N.Y.S.2d 71 [2 Dept.,2009]; Krutyansky v. Krutyansky, 289 AD2d 299, 733 N.Y.S.2d 920 [2 Dept.,2001]).

The trial court's assessment of the credibility of witnesses and evidence is afforded great weight on appeal (see Alper v. Alper, 77 AD3d 694, 909 N.Y.S.2d 131 [2 Dept.,2010]; see also Massirman v. Massirman, 78 AD3d 1021, 911 N.Y.S.2d 462 [2 Dept.,2010]; Schwartz v. Schwartz, 67 AD3d 989, 890 N.Y.S.2d 71 [2 Dept.,2009]; Jones-Bertrand v. Bertrand, 59 AD3d 391, 874 N.Y.S.2d 152 [2 Dept.,2009]; Wortman v. Wortman, 11 AD3d 604, 783 N.Y.S.2d 631 [2 Dept.,2004]). This Court had the opportunity to observe the parties during numerous court appearances and four (4) days of trial on custody and parenting time. Based thereon, this Court finds that there are severe credibility issues with the mother's testimony. The mother often testified in a matter designed to obscure her answers and she was repeatedly argumentative with counsel during cross-examination.[FN11] The Court had to repeatedly direct the mother to answer the questions asked of her during cross-examination.

This Court finds the mother's testimony regarding her actions on December 7, 2010 not to be credible. Specifically, this Court finds the mother's testimony that she was taking the child to a belated Thanksgiving celebration with two (2) suitcases packed with documents and Quick Books study guides on the same day that she was served with the summons for divorce and subsequently transferred almost $150,000.00 out of the United States not credible.

This Court finds that the father testified sincerely and credibly during the trial.

Custody

It is well established that the trial court is given great deference to assess the character and credibility of parties (see Massirman v. Massirman, 78 AD3d 1021, 911 [*18]N.Y.S.2d 462 [2 Dept.,2010];see also Peritore v. Peritore, 66 AD3d 750, 888 N.Y.S.2d 72 [2 Dept.,2009]; 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]). It is well established that in determining custody, the Court must act as parens patriae and base its determination on the best interests of the children (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]).

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 Friederwitzwer, 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" (see 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 the sole custody to one parent, rather than joint custody to both parents, was in the best interest 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. Granata, 289 AD2d 527, 528)

(Mohen v, Mohen, 53 AD3d 471, 472-473, 862 N.Y.S.2d 75 [2 Dept., 2008]).

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 Vasquez v. Ortiz, 77 A.D.3d 962, 909 N.Y.S.2d 155 [2 Dept.,2010]; see also Tori v. Tori, 67 AD3d 1021, 890 N.Y.S.2d 74 [2 Dept.,2009]; Matter of Bliss v. Ach, 56 NY2d 995, 998, 453 N.Y.S.2d 633 [1982]). The Court recognizes that an "interference with the relationship between a child and a noncustodial parent by the custodial parent has been said to be so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as custodial parent" (Diaz v. Diaz, 97 AD3d 747, 948 N.Y.S.2d 413 [2 Dept.,2012], citing Chebuske v. Burnhard-Vogt, 284 [*19]AD2d 456, 458, 726 N.Y.S.2d 697 [2 Dept., 1995]). As such, the Court must negatively view any behavior or actions by a parent that limits access between the children and the other parent or attitude that appears to demean the other parent to the children (see Frey v. Ketcham, 57 AD3d 543, 869 N.Y.S.2d 160 [2 Dept.,2008]; see also Zafran v. Zafran, 28 AD3d 753, 814 N.Y.S.2d 669 [2 Dept.,2006]; see also Bobinski v. Bobinski, 9 AD3d 441, 780 N.Y.S.2d 185 [2 Dept.,2004]; Stern v Stern, 304 AD2d 649, 649, 758 NYS2d 155 [2 Dept 2003]).

In the seminal case of Braiman v Braiman, the New York Court of Appeals rejected joint or shared custody where the parties are in bitter conflict and do not agree to such an arrangement (44 NY2d 584, 378 N.E.2d 1019, 407 N.Y.S.2d 449 [1978]). The Court stated in Braiman that, "[i]t is understandable, therefore, that joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion. As a court-ordered arrangement imposed upon already embattled and embittered parents, accusing one another of serious vices and wrongs, it can only enhance familial chaos." Id. at 589-90 (internal citations omitted). Joint custody would not be an appropriate award in this matter given the mother's refusal to communicate with the father and her extreme physical volatility towards the father.

This Court must determine what is in the best interest of the child and make a custody determination that will promote the child's greatest welfare and happiness. This Court has considered the Dr. Duggan's neutral forensic report dated May 30, 2011 as well as her extensive testimony; however, this Court makes the final determination of custody based upon review of the record as a whole including, but not limited to, Dr. Duggan's testimony in Court regarding her direct contact with the parties and the child. It is well-established that the Court is not required to follow, or to agree with, the recommendations of a neutral 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]). The Court will not rely upon hearsay in Dr. Duggan's report to be used as a method of testifying (see Lubit v. Lubit, 65 AD3d 954, 885 NYS2d 492 [1 Dept. 2009].)

The Court is extremely concerned regarding the mother's violent physical behavior in and around the parties' daughter and notes that the mother's actions directed at the father often placed the daughter potentially in harm's way. The father testified credibly regarding the mother throwing household items, including dishes and kitchen utensils at him and in the direction of the daughter so that he had to shield the daughter with his body so that she would not be hit. The father also testified credibly that the mother yelled at him in front of the daughter causing the daughter to cry on numerous occasions.

The mother has repeatedly attempted to deny the father access to the child and to interfere with the relationship between the father and child. The mother conceded that she removed the child from the marital residence and that she "never" telephoned the father letting him know the whereabouts of the child or that the child was okay after she left. The mother conceded at trial that she did not provide the father with the address [*20]where she and the child were residing or a working telephone number where he could reach them until the custody trial began almost ten (10) months after she left with the child. The mother also conceded that she did not allow the father to see the child for several months after removing the child from the marital residence and that she only provided the father access to the child after this Court issued an Order granting the father parenting time.

The mother has continued to attempt to hinder the relationship between the father and the child by speaking disparagingly to the father in the child's presence during parenting time exchanges after this Court awarded the father temporary custody. This Court finds that the mother's actions during this proceeding reveal that she places her own interests ahead of the best interests of the child. Furthermore, the mother testified that she believes that the father is "not a good father" and that it is not in the child's best interest to spend time with him.

This Court is concerned by the mother's decisions to undress the child and subject her to bodily searches in public areas of the police precinct during parenting time exchanges. This Court is also extremely concerned regarding the mother's decision during this proceeding to take nude photographs of the young child's genitals and to submit the color photographs to the Court as exhibits to written applications.[FN12]

The Court notes that the mother conceded that she repeatedly took the child for emergency room treatment of a rash she alleges only occurs after the child has parenting time with the father. The Court notes that the mother conceded on cross-examination that the child's skin is being treated with over-the-counter cream and not by any prescription medication. The Court further notes that the mother filed an A.C.S. report against the father because of the alleged rash and that following an investigation the A.C.S. report found that the mother's report was not indicated. The Court is concerned that the mother would be more likely to utilize custody to prevent access between the father and the child if she were awarded custody of the parties' child.

The father's decisions as they related to the child during this proceeding were more in keeping with the child's best interests than the mother's decisions and his testimony at trial was far more credible than the mother's testimony. The father's credible testimony revealed that he repeatedly attempted to shield the child from the mother's physical and emotional outbursts. The Court finds that the father is the parent most likely to support the necessary contact and relationship between the child and the other parent and to place the child's best interest above his own. The father sincerely and credibly cares for the child. He plans for her well-being and will provide for more stability than the mother.

This Court's decision is based upon the Court's own observations, credibility [*21]findings and the witnesses' testimony at trial. The father's application for sole legal custody and final decision-making, which is supported by the attorney for the child, is granted. The mother shall have parenting time with the child as detailed herein below.

Parenting Time

The Court is concerned about the extensive history of disruptive behavior by the mother toward the father in the presence of the child during the parenting time exchanges at the 61st Police Precinct. Furthermore, the child is very young and, as such, she is unable to walk by herself for parenting time exchanges curbside. All parenting time exchanges shall be at the 61st Police Precinct. This Court finds that under the circumstances herein, commencing on Friday, March 15, 2013, the mother shall have parenting time with the child as follows: alternating weekends from 6:00 p.m. on Friday to 8:00 p.m. on the immediately following Sunday. The mother shall have a dinner visit with the child from 5:00 p.m. to 8:00 p.m. every Wednesday.[FN13]

The Court is concerned about the stress that the mother's behavior, including her undressing and searching the child in public view at the police precinct, and verbal outbursts directed at the father, cause the child during pick-ups and drop-offs. Furthermore, the Court is concerned about the travel time necessary for the mother to transport the child from her residence to the pick-up and drop-off location in Brooklyn which she testified is over an hour and fifteen (15) minutes away. The holiday schedule herein shall supercede the mother's alternate Wednesday dinner parenting time. Pick-up and drop-off for the Wednesday mid-week parenting time shall also be at the 61st Police Precinct. The Court cautions the parties that they are not to disparage the other party in front of the child at any time, including during parenting time exchanges.

Holiday Schedule

The parties shall alternate New Year's day, Martin Luther King weekend, President's Day weekend, February school recess, Spring school recess, Memorial Day weekend, Labor Day weekend, Columbus weekend, Thanksgiving weekend, Winter school recess, New Year's Eve and any religious holidays. Commencing March 2013, the father shall have the child for Easter weekend and the parties shall alternate holidays thereafter. Pick-up and drop-off for all holiday and school recess parenting time shall be from the 61st Police Precinct. Unless otherwise specified herein, pick-up shall be at 6:00 p.m. on the first day of the holiday period until 8:00 p.m. on the last day of the holiday period. This holiday schedule shall supercede the regular parenting time schedule.

HOLIDAYODD YEARS

[*22]EVEN YEARS

New Year's Day (pick-up from Police Precinct [FN14] 10:00 a.m.; drop-off at Police Precinct 8:00 p.m.)MOTHER

FATHER

Martin Luther King weekend (pick-up from Police Precinct 6:00 p.m. on Friday; drop-off at Police Precinct 8:00 p.m. on Monday)FATHERMOTHER

President's Day weekend (pick-up from Police Precinct 6:00 p.m. on Friday; drop-off at Police Precinct 8:00 p.m. on Monday)MOTHERFATHER

February/Winter School RecessFATHERMOTHER

Easter/Passover/Spring School RecessMOTHERFATHER

Memorial Day weekend (pick-up from Police Precinct 6:00 p.m. on Friday; drop-off at Police Precinct 8:00 p.m. on Monday)FATHERMOTHER

Labor Day weekend (pick-up from Police Precinct 6:00 p.m. on Friday; drop-off at Police Precinct 8:00 p.m. on Monday)MOTHERFATHER

Columbus Day weekend (pick-up from Police Precinct 6:00 p.m. on Friday; drop-off at Police Precinct 8:00 p.m. on Monday)FATHERMOTHER

Thanksgiving weekend

(pick-up from Police Precinct 6:00 p.m. on Wednesday; drop-off at Police Precinct 8:00 p.m. on Sunday)MOTHERFATHER

Christmas Eve (pick-up from Police Precinct 10:00 a.m.; drop-off at Police Precinct at 8:00 p.m.)FATHERMOTHER

Christmas Day (pick-up from Police Precinct 10:00 a.m.; drop-off at Police Precinct at 8:00 p.m.)MOTHERFATHER

December/January Winter School Recess (pick-up at Police Precinct on December 26 10:00 a.m.; drop-off at Police Precinct on December 31 10:00 a.m.)FATHERMOTHER

New Year's Eve (pick-up from Police Precinct on December 31 10:00 a.m.; drop-off at Police Precinct on January 1 10:00 a.m.)MOTHERFATHER

Each parent shall have two (2) weeks of uninterrupted parenting time with the child each summer. In ODD YEARS, the father shall notify the mother, via e-mail, no later than May 1 of which two (2) consecutive weeks he will take the child during summer vacation and the mother shall notify the father of which two (2) consecutive weeks she will take the child by May 15. In EVEN YEARS, the mother shall notify the father of which two (2) consecutive weeks she will take the child no later than May 1 and the father shall notify the mother of which two (2) consecutive weeks he will take the child by May 15.

The mother shall have parenting time with the child on Mother's Day from 9:00 a.m. to 8:00 p.m. and the father shall have parenting time with the child on Father's Day from 9:00 a.m. to 8:00 p.m. This shall supercede the regular weekend parenting time schedule.

The mother and father shall have parenting time with the child on their respective birthdays from 6:00 p.m. to 8:00 p.m. If the father's birthday occurs during a weekend with the mother has parenting time with the child the mother shall return the child to the father for a dinner visit from 6:00 p.m. to 8:00 p.m. on his birthday. If the father's or mother's birthday falls on a Friday or Saturday that parent shall return the child to the other parent for his or her regularly scheduled [*23]Saturday and/or Sunday parenting time after the birthday dinner visit. Pick-up and drop-off for the birthday dinner parenting time shall be at the 61st Police Precinct.

The parent who does not have regularly scheduled parenting time with the child on the child's birthday shall have parenting timing for three (3) hours with the child if the date falls on a school-day and six (6) hours with the child if the date falls on a weekend or a day when there is no school.

Either parent may take the child out of New York for vacation during his or her parenting time. If either parent plans to vacation with the child outside of New York, that parent must provide the other parent with the address and telephone number and itinerary, including round-trip air plane ticket, by e-mail within twenty-four (24) hours prior to departure. This Court is concerned regarding the mother's decision to transfer approximately $150,000.00 to Indonesia and to pack suitcases and attempt to leave the marital residence with the parties' young child on the same day as she was served with the Summons for Divorce in this proceeding. Those concerns, coupled with the fact that the mother has family and ties to Indonesia and in as much as Indonesia is not a signatory to the Hague Convention, the mother shall not take the child out of the country, or file a passport application in this or any other country, without written consent from the father or an Order from the Court. The father shall retain the child's passport.

Each party shall give twenty-four (24) hour advance notice in writing via e-mail to the other party if the visitation cannot take place as ordered herein. If the mother is more than thirty (30) minutes late to pick-up the child for her parenting time, without advance notification, the father may deem the mother's failure to comply with the parenting schedule as a forfeiture of the entire block of parenting time until her next block of parenting time is scheduled to begin in accordance with the parenting schedule herein.

To accommodate the parties' work schedules, the child's school schedule or extracurricular activity schedules, the parties may temporarily modify the parenting schedule herein, on consent, if the modification is confirmed by both parties by e-mail.

Each party shall provide the other with a working telephone number where he or she can be reached during the time when he or she has parenting time with the child. Each parent shall provide the other with a current address and will notify each other within seventy-two (72) hours of any changes to this information.

The mother shall provide the father with the address of her current, and any future, residence.

Each parent will immediately notify the other regarding any emergency involving the child for which medical attention is sought.

Neither parent shall prejudice the child against the other parent or impair the child's regard for the other parent.

The mother shall have reasonable access to all medical, dental and psychological records of the child. The father shall notify the mother of all medical appointments and school events and extracurricular activities. The mother shall be permitted to attend all age and gender appropriate doctors appointments. The mother shall not take the child to doctor's or emergency rooms for treatment absent emergency. In the event of an emergency during the mother's parenting time she may act to ensure the child's immediate health and to protect the child but she must immediately notify the father and must continue to contact him until she is successful. Likewise, the father shall immediately notify the mother of any major emergency requiring emergency [*24]room care or admittance to any health care service center or hospital. The mother shall notify hospital personnel and any treating doctors that she is not the custodial parent and that the father must be notified. If the child is admitted to a hospital or receives emergency medical treatment, the father shall notify the mother immediately by telephone call and text message and the mother shall be allowed to attend and visit the child during treatment and recovery. At all times, the father, in addition to all of his rights as custodial parent, shall have final decision-making over the child's medical care, except if the mother is required to make an immediate medical decision in an emergency situation occurring during her parenting time with the child.

The father shall provide the mother with the contact information, including name, address and telephone number, of the child's health care providers and the child's health insurance information. The father shall provide the mother with any information regarding changes to the child's health insurance.

The parents shall notify the other by e-mail before the other parent's next scheduled parenting time begins of his or her knowledge of any medical appointments, illness(es), accidents or any other circumstances or events that may affect the child's health or physical or emotional well-being.

Each parent shall be permitted to speak with the child when the child is not with them on the telephone or by other electronic means every day between 6:00 p.m. and 7:00 p.m. unless the child has a regularly scheduled activity or extracurricular activity. The child shall have the right to daily reasonable telephone access and contact with both parents irrespective of which parent has parenting time with the child on that day.

The mother is hereby authorized to access any and all information related to the child's progress in school, including grades and deportment, and she shall be permitted to attend any and all school functions, irrespective of which parent may have parenting time with the child on that day, and to meet with the child's teachers.

The mother shall be listed as the child's parent on all school registration and information forms so that she will receive all information regarding the child's school activities and events directly from the child's school. The mother shall not interfere with the child's school or after-school extracurricular activities. Neither parent shall hinder, in any way, the other parent from attending any public event that the child is involved in, including, but not limited to sporting event, religious ceremony, school graduation or extracurricular competition or public event.

Conclusion

Settle an interlocutory judgment, on notice together with a copy of this decision with notice of settlement within 30 days.

E N T E R

JEFFREY S. SUNSHINE

J.S.C Footnotes

Footnote 1:The Court granted mutual temporary orders of protection to the parties during the pendency of this proceeding; however, the Court stayed the mother's temporary order of protection, after a full hearing on the record, by written Order dated October 6, 2010, with leave to make a formal request for a continued temporary order of protection by October 12, 2010. On consent, the parties withdrew their family offense petitions against one another by so-ordered written stipulation on August 13, 2010. The mother did not make an application for a continued temporary order of protection.

Footnote 2:The mother has been represented by four (4) different attorneys of record during this proceeding. She was initially represented by pro se counsel, Gibson, Dunn & Crutcher by Kelly Graces, Esq. until March 10, 2010 when a consent to change attorney was filed and the mother was substituted pro se. On May 5, 2010, this Court appointed William Hoffman, Esq. as the attorney for the mother pursuant to the Judiciary Law on the issues of custody, visitation and order of protection. On August 10, 2010, the mother was again substituted pro se on consent. On August 13, 2010, Mr. Hoffman moved by Order to Show Cause, to be relieved. His application was rendered moot based upon the pro se substitution and the fact that the mother had already retained private counsel, George Gilmer, Esq., unbeknownst to Mr. Hoffman. On November 17, 2010, the mother stated on the record in open court that she wished to discharge Mr. Gilmer and made an oral application that the Court again appoint her counsel pursuant to Judiciary Law 35(8)(b). On December 2, 2010, this Court appointed Sharyn M. Duncan, Esq. as her counsel pursuant to Judiciary Law 35(8)(b).

Footnote 3:This Court extended the mutual temporary orders of protection at the subsequent court appearances.

Footnote 4:The father's parenting time was extended to include alternate Thursday mornings until Tuesdays evenings and, on the following weekend, parenting time from Sunday afternoons until Monday mornings.

Footnote 5:This Court issued an order on October 7, 2010 providing that if the mother brought any future Family Court petitions she must notify the assigned Family Court Judge or Referee of the pending divorce action in before this Court.

Footnote 6:The father testified that the mother and the child are covered by his health insurance and that during this proceeding he received notification that the mother took the child to the emergency room on at least three (3) occasions and that she did so immediately before his scheduled court-ordered parenting time was supposed to begin. This Court issued a written decision, dated November 29, 2010, in which the Court directed the mother not to bring the child to the emergency room absent a medical emergency.

Footnote 7:The father testified that on October 17, 2010 after he picked-up the child from the Precinct for his court-ordered parenting time he observed the mother laying on the ground by his feet taking pictures of his shoes while he was putting the child into her car seat in his car. The father testified that he had inadvertently put on mismatched shoes that day and the mother appeared to be attempting to photographically document his wardrobe mistake.

Footnote 8:Dr. Duggan testified that the father frequently stated that he learned a lot from the mother, that she was frugal with the family finances and that she would have been a perfect wife had it not been for her disagreements with his extended family. Dr. Duggan testified that the mother described the father as controlling, angry and a bully.

Footnote 9:The mother testified on cross-examination that the rash has never been so bad that the child was unable to attend preschool and that the rash is being treated with a hydrocortisone or Eucerin cream. The mother also testified on cross-examination that the creams used to treat the child's rash are over the counter creams, not prescription treatments.

Footnote 10:Section 812 of the Family Court Act states that, as relevant here, "The family court and the criminal courts shall have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree as set forth in subdivision one of section 130.60 of the penal law, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, criminal obstruction of breathing or blood circulation, strangulation in the second degree, strangulation in the first degree, assault in the second degree, assault in the third degree or an attempted assault, criminal obstruction of breathing or blood circulation or strangulation between spouses or former spouses, or between parent and child or between members of the same family or household except that if the respondent would not be criminally responsible by reason of age pursuant to section 30.00 of the penal law, then the family court shall have exclusive jurisdiction over such proceeding."

Footnote 11:The Court notes that the mother requested a number of different language interpreters, including multiple Chinese dialects, a Malaysian interpreter and an Indonesian interpreter during the course of the proceeding. This Court issued a detailed written decision, dated November 29, 2010, on the issue of the mother's requests for interpreters and found that, under the facts and circumstances of this case, it was proper to deny the mother's request for an interpreter. The Court found that the mother understands and successfully communicates in English. The Court noted that the mother, who is a United States citizen, filed numerous motions hand-written in English as a pro se litigant, openly engaged in English conversations in the court room with the attorneys in the case, including the attorney for the child, appeared pro se before the Appellate Division. She testified in English and often answered questions on the record in English before the previously requested interpreters had translated the question during court appearances before this Court. The Court further notes that the Court had to repeatedly admonished the mother to slow down the pace her testimony during the custody trial so that the court reporter could take down her testimony.

Footnote 12:The Court notes that the pictures of the child's genitalia were removed by the Court on the record from the mother's motion and sealed by Order dated November 9, 2010.

Footnote 13:Now that the child is approaching school age, the mother's temporary parenting time access schedule of 6:00 p.m. on Wednesday until 6:00 p.m. on Sunday every other weekend is no longer in the child's best interest. Testimony at trial established that it takes the mother between an hour and fifteen minutes and an hour and half, one way, to transport the child from the mother's residence to the child's school in Brooklyn. The Court is concerned with the impact that so much transportation time may have on the young child's ability to participate fully in school.

Footnote 14:For the purposes of this chart, the "Police Precinct" shall be the 61st Police Precinct.