E.B. v M.B.
Annotate this CaseDecided on December 12, 2013
Supreme Court, Kings County
E.B., Plaintiff,
against
M.B., Defendant.
XX/13
Olga Suslova, Esq.
Attorney for the Plaintiff
2740 East 16th Street
Brooklyn, New York 11235
The Mandel Law Firm
By: Madelyn Jaye, Esq.
Attorneys for Defendant
370 Lexington Avenue No.505
New York, New York 10017
Elaine McKnight, Esq.
Attorney for the Child
142 Joralemon Street #6D
Brooklyn, New York 11201
Jeffrey S. Sunshine, J.
Procedural Background
This Court is called upon to determine custody of the parties' minor child who was born in January 2009. The plaintiff-wife commenced this action for divorce on January 5, 2012. The Court appointed an attorney for the parties' minor child by written order dated February 24, 3012. This Court bifurcated the issues of custody and visitation in this matter. The issues of custody and parenting access were tried on October 22, 2012; [*2]October 23, 2012; February 25, 2013; February 27, 2013; March 4, 2013; and March 7, 2013. The plaintiff proceeded to inquest on the issue of grounds, pursuant to Domestic Relations Law 170(7), on the record on October 23, 2012 and the granting of divorce was held in abeyance until resolution of all ancillary matters. At the conclusion of trial testimony on March 7, 2013, the Court adjourned the matter to May 24, 2013 for submission of minutes and written summations. On May 24, 2013, the Court was first informed that neither party had provided the attorney for the child with copies of the trial minutes. The Court adjourned the matter to June 14, 2013 for the attorney for the child to prepare a written summation. The matter was marked fully submitted on October 25, 2013.
The Facts
The plaintiff-mother and the defendant-father met in August 2006 when the
plaintiff traveled to the United States from Russia. The plaintiff returned to Russia but the parties kept in contact and she traveled back to the United States in early 2007 on a business visa. The parties married in a civil ceremony on June 12, 2007.
The plaintiff-mother is thirty (30) years of age and holds a bachelor degree in business administration from a university in Russia. She testified that she is employed as a collection coordinator at a nursing service in New York, where she has worked for five (5) years.
The defendant-father is thirty-two (32) years of age and holds a computer science degree. He testified that he is employed as a system administrator at a commercial carpet installation firm where he has worked since the parties married.
The parties have one (1) child who was born in January 2009. She is currently four (4) years of age. Testimony, including the mother's testimony, revealed that the father eagerly anticipated the arrival of the parties' child and was actively involved in the mother's pregnancy by being present for prenatal doctor visits and at the delivery. The mother testified that she discovered that she was pregnant in May 2008. She testified that she was anxious about the pregnancy because she had only been working at her job for three (3) months when she found out she was expecting. The mother testified that the father was "pretty much calm" and that "[h]e was so happy to know" that she was pregnant and that he insisted that there would be "no problems" because his parents were available to help.
The father testified that he accompanied the mother to her prenatal appointments, that he was present for the delivery and that he actively participated in the day-to-day care of the infant child when she was born by changing diapers, bathing and getting up to sooth and feed the child so that the mother could rest. The mother testified on direct that she breast-fed the child until she returned to work and that the father assisted equally in day-to-day care giving of the child during the first months. The mother testified that "[a]t the very, very beginning, when [the parties] just brought [the child] from the hospital, we both used to jump to her" whenever she woke up during the night. [*3]
The mother testified that when her maternity leave was over in late May 2009 that her mother — the maternal grandmother — traveled from Russia to New York to help with the child from approximately June 2009 to January 2010. She testified that when her mother returned to Russia she selected a daycare for the child but that after a few weeks she stopped sending the child to the daycare because she was teething and developed repeated ear infections. The mother testified that in February 2010 her father-in-law, the paternal grandfather, agreed to stop working to take care of the child during the day while the parties were working. She testified that she was happy that the child could stay at home with the grandfather because he would be "giving her great care" and because it was difficult for her to take time off from work when the child was sick. She testified that beginning in February 2010 the paternal grandfather came to the parties' house at 7:00 a.m. each workday and provided child care during the day while the parties were working. The mother testified that the father arrived home before her and spent time with the child until she returned home from work and then he would leave to work a second job during the evenings.[FN1] She testified that while the father was working nights from November 2009 to May 2011 she returned home around 6:30 p.m. and the father left to work his second job by 7:00 p.m.. The father testified on redirect that he stopped working his second job in the evenings because he felt that he was not spending "enough time with [the child]...."
The father testified on cross-examination by the attorney for the child that from November 2009 to May 2011 he was off each Wednesday and spent that day providing child care to the child.
QUESTION:Could you describe the schedule then of when you saw [the child] during that two-year period, like when she was 11 months, old and the next two years?
ANSWER:The year of 2011, actually me and my friend, we rearranged the schedule. I was home either on Wednesday or Thursday; one day during the week and I was home on weekend. So either Saturday or Sunday.
QUESTION:Do you mean that you didn't go to your other job on Wednesday, either?
ANSWER:No.
QUESTION:So you spend the entire Wednesday with [the child]?
ANSWER:Yes, I did.
QUESTION:Now, when you spent that Wednesday with [the child], what would you do? [*4]
ANSWER:We would read books, watch cartoons, play some games, do puzzles, go out. It if was warm outside, take her to to the park that's near the house. I would take her to play dates with her cousin.
QUESTION:Were you able to bathe her during that Wednesday?
ANSWER:If [the mother] would come home late, then yes.
QUESTION:Were you able to brush her hair and her teeth during those Wednesdays?
ANSWER:Yes.
QUESTION:How was she fed? How did that happen?
...
ANSWER:I would actually be the one to feed her, before she starts the therapy class. And then when she starts the therapy should would, the therapy lasts about 30 minutes. When it was over, [the mother] would usually come home and I would go to the store.
The father testified on direct that prior to the divorce proceeding the parties and the child spent almost every weekend with the paternal grandparents in a house in the Pocono mountains but that since the mother commenced the divorce proceeding she has effectively not allowed the child to spend overnights with the paternal grandparents.
QUESTION:2011, how did you [the child] and [the mother] spend weekends together?
ANSWER:We used to go to my summer house almost every weekend.
QUESTION:And where is that?
ANSWER:It's in Poconos, Pennsylvania.
QUESTION:And did anybody else join you on these weekend trips?
ANSWER:Usually we went with my parents. [The mother] was present sometimes, but not all the time.
QUESTION:So, just take out a given month, how many weekends would you say you made trips to the Poconos, say, out of four weekends?
ANSWER:Time frame, right now?
QUESTION:Prior to the filing of the divorce. Let's say the last several months prior to filing of the divorce.
ANSWER:Almost every weekend.
QUESTION:And did [the mother] accompany you on those weekends?
ANSWER:No, not lately, no.
QUESTION:And what about, making these trips to the Poconos since filing of the divorce, how often have you made weekend trips to the Poconos since? [*5]
ANSWER:Probably less than five times.
QUESTION:How many weekends since filing the divorce in September of 2012 [sic], has [the child] spent with her grandparents?
ANSWER:Overnight? Two, three times.
The mother testified that in September 2011 the parties began discussing a divorce so she left the marital residence with the parties' child and moved into an apartment she rented. The mother conceded that she left with the child without the father's consent. The mother testified that she found and enrolled the child in a day care three (3) blocks away from the apartment she rented. The mother testified that she moved back into the marital residence with the father once the litigation began because she wanted to be closer to the child who had to return to the marital residence. The mother testified that the parties and the child currently reside in the marital residence together even though she continues to maintain the separate apartment she rented when she initially left the marital residence with the child in September 2011. The mother returned to the marital residence when the Court directed that the child be returned to the marital residence.
Day-to-Day Parenting Access During Litigation
The parties offered vastly divergent testimony regarding which one of them spends more time with the child and who provides the majority of the day-to-day care for the child.
The mother testified on direct that she believed that she was and always had been the child's "primary caregiver" because she "spen[t] more time with her trying to notice all these little changes going on with her"; however, the mother also testified that "both" of the parties cared for the child, fed her and changed her diapers and did the child's laundry after they returned home from work and before leaving for work in the morning and that "both" of the parties have taken time off from work to stay home and care for the child when she was sick. The mother testified that she believes she is "more skilled" and "more natural" as a care giver for the child than the father is yet she conceded on cross-examination that she had no prior child-care experience before the parties' child was born.
The mother testified that she spends more time caring for the child on a daily basis. The mother testified that on a typical weekday she wakes up at 7:00 a.m., picks out the child's clothes, feeds her breakfast and helps the child brush her teeth and hair so she is ready to leave for daycare by 8:00 a.m. The mother testified that because the day care she selected for the child is located close to the apartment she hoped to relocate to with the child but is not conveniently located to the marital residence where the parties and the child currently reside that she must travel to drop-off the child at day care each morning before work. She testified that because of the travel necessary the paternal grandfather usually drives her and the child to daycare each morning at 8:00 a.m. and then the paternal grandfather drives her to work. She testified that the child is in daycare from 8:00 a.m until 6:00 p.m. She testified that the father picks-up the child from daycare each [*6]weekday at "[a]pproximately six [6:00 p.m.]" and takes the child home where he spends time with her until approximately 7:30 or 8:00 p.m. when the mother returns home. The mother testified that she spends time with the child from the time she returns home until the child goes to bed at 10:30 p.m. or 11:00 p.m.
On direct-examination, the mother testified that she cooked most of the child's meals during the week and that the father is unable to provide the child with cooked meals; however, on cross-examination the mother testified that during the week the child actually eats breakfast and lunch at daycare and that the father feeds the child dinner during the week and that the father feeds the child all of her meals on Sundays.
On direct examination, the father testified that he picks-up the child from daycare each weekday at 5:30 p.m. and when they get home he feeds the child dinner, helps the child complete her homework and then spends time playing and doing activities with the child until the mother returns home. The mother initially testified on direct that the father usually completes the child's homework with her "before [she] even get[s] home" and that she bathes the child after she gets home; however, on cross-examination the mother testified that both she and the father "do equal parts" in helping the child with homework.
The father testified that he regularly takes the child to other children's birthday parties and to play dates during the week before the mother returns home and that he leaves work an hour early once a week to take the child to swimming classes from 4:30 to 5:30.
QUESTION:Has [the mother] ever taken [the child] to swim class?
ANSWER:No, she has not.
QUESTION:Has [the mother] ever come to watch [the child] at swim class?
ANSWER:I haven't seen her that [sic].
...
QUESTION:What were the reasons you decided to sign [the child] up for swim class?
ANSWER:Well, my grandmother and myself took [the child] to the beach a couple of times. And she doesn't have fear of water. She just storms the waves, and loves swimming, and it will be been [sic] efficient for her later development, to attend the swimming class.
QUESTION:Why do you think it would be beneficial to her?
ANSWER:It helps eye-and-arm coordination. It helps counting. For example, when she counts strokes, it will help her at the PreK, and later when she does to school.
On cross-examination, the father testified that he spoke to the child's pediatrician prior to enrolling her in swimming classes and conceded that the doctor warned him about [*7]the child's prior history of inner ear infections.
He testified that prior to commencing the divorce the mother often came home between 8:00 and 9:30 p.m. but that after she commenced the divorce the mother began coming home between 7:00 or 8:00 p.m. The father testified that the mother still often arrives home between 9:00 or 10:00 p.m. several nights a month without explanation or advance notice to him.
QUESTION:And what time does [the mother] arrive home?
ANSWER:She started to arrive home earlier than usual, usually from 7 to 8 o'clock, between 7 and 8.
QUESTION:And that's earlier than usual?
ANSWER:That's earlier than usual, yes.
QUESTION:What was usual?
ANSWER:Before the divorce she used to arrive home from 8 to 9:30. Sometimes later.
QUESTION:Do you and [the mother] file a joint tax return?
ANSWER:Yes, we did.
QUESTION:Do you know if she receives any overtime for the time after 5 o'clock?
ANSWER:No, she doesn't.
...
QUESTION:Did you ever ask [the mother] why she arrived home so much after her workday ended?
ANSWER:Yes, I did.
QUESTION:And what did she tell you?
ANSWER:That she is working.
QUESTION:What about recently, what, say in the last month, month of February, recently, how often would you say [the mother] arrived home after her usual 8 o'clock, or?
ANSWER:To the best of my knowledge, six times.
QUESTION:And would you say to the best of your knowledge that was after 9 o'clock?
ANSWER:Yes, it was after 9 o'clock.
QUESTION:How would you happen to remember this?
ANSWER:Because I kept a calendar.
On cross-examination the mother acknowledged that she returns home several hours after her workday ends and conceded that she does not receive overtime compensation at work for working on weekends or for working past her employer's normal business hours of 9:00 a.m. to 5:00 p.m.. She testified that she only returns home several hours after her work day ends because she is "taking [her] time to travel from [*8]work, home." On cross-examination the mother conceded that she sometimes arrives home on weeknight as late as 9:30 or 10:00 p.m. when she has "some kind of event going on" and that she does not notify the father in advance when she will arrive home late.
The father called his aunt, B. B., as a fact-witness and she testified that she is employed by a nursing service in New York and has been for twenty (20) years. She testified that she and the mother used to work in the same department of the company but that the mother now works in a different department on another floor of the building. On direct examination, she testified that the average workday is "[f]rom 9 to 5..."
QUESTION:Would it be typical for somebody at [the nursing service] to work until, say, 8 or 9 p.m. at night?
ANSWER:No, unless you have a special assignment.
QUESTION:And how unusual would you say that would be?
ANSWER:It's very unusual to work so late. The problem is, that at 6 o'clock in the building, in the winter time, heat turned off [sic]; and, summertime, air condition [sic] turn off. So it's impossible to stay after 6 o'clock in the building. And also if you are not under, if you are not a manager, if it's a lower position, you have to have somebody, you have to work under supervision after 6 o'clock. It's a company law.
B. B. further testified on direct that working late or working on weekends would surprise her because "the company approach right now is work from home. Even if you do have to do something, you have an ability to work from home."
The mother conceded on cross-examination that on nights when she arrives home late the father feeds, bathes and gets the child ready for bed.
QUESTION:Isn't it true that, isn't it true that you, one very frequent occasions, get home significantly later than 8 o'clock?
ANSWER:True.
QUESTION:And on those occasions, when you get home later, what are some of the times that you arrive home, on average?
ANSWER:9:30; 10.
QUESTION:So when you arrive home at 9:30 or 10, at night, who is taking care of [the child]?
ANSWER:Either [the husband], or his parents.
The father testified that when the mother returns home during the weekday evenings that she "takes a little bit of time to dress down, to eat dinner, about 30 minutes or an hour" before she begins to spend time with the child. The mother testified that she and the child typically spend time cooking, cleaning or playing with toys on weekend evenings from when she gets home to when she and the child go to bed. [*9]
The mother testified that the parties observe a "default" weekend schedule whereby she spends Saturdays with the child and the father spends Sundays with the child. She testified that her typical Saturday routine with the child is to wake up around 8:00 a.m. to play with toys and then they have breakfast and go outside if the weather permits. She testified that she takes the child to parks and museums with her friends and other children. She testified that she cooks the child breakfast, lunch and dinner each Saturday. She testified that she gives the child a bath around 9:00 p.m. and then she goes to bed on the sofa with the child around 10:00 p.m. She testified that she wakes up with the child around 8:30 or 9:00 a.m. on Sundays and then the child spends the rest of the day with the father.
The mother testified that the parties communicate between themselves to alternate weekend days if they want to switch days with the child. She testified that if she "cannot do on Saturday" that she will "give [the father] like two days and then he'll give me her for another two days." The mother testified that the parties coordinate between themselves so that if she sees that he is "busy with [the child] doing something" that she tries "not to interfere unless he leaves her and [she] can step in and continue" and that the father "basically tries to do the same."
The father testified that the mother does not encourage the child to spend time with him and during the litigation created situations where the child was less likely to want to spend time with him because the mother had kept the child up late the night before. The father testified that the mother kept the child out late the night before Father's Day Sunday 2012 and as a result the child was tired on Father's Day morning when he was supposed to spend time with the child.
The mother testified that on the Saturday of Father's Day weekend 2012 she and the child spent the Saturday with the paternal grandparents, without the father, and that they returned home "late night at about ten [10:00 p.m.]" and that the next day when the child woke up she "was not actually too willing to leave the house" to accompany the father on a pre-arranged play date with a friend of the father's and another child. The mother testified that the child was "crying" and did not want to leave the house but that the father took her to the outing anyway. The mother also testified that the following weekend the father took the child to the beach during his Sunday with the child even though she "warned him that she is not quite well" because the child had a "runny nose" and she should not "spend too much time near the water...." On cross-examination, the mother testified that she did not encourage the child to go with the father on Father's Day or to rest so that she would be ready to go with the father.
QUESTION:Do you recall testifying that [the child] was too tired, you thought [the child] was too tired to go and fly kites with [the father] on [Father's Day] with the plans that he had made this Sunday?
ANSWER:I testified that she didn't want to go. I don't know the reason [*10]if she was tired, or she just didn't want to go.
QUESTION:Isn't it true that you testified that she was exhausted, because you had a long day the day before?
ANSWER:I don't remember that.
QUESTION:Did you encourage her to be rested so that she could have a Father's Day day [sic] with her father on Father's Day?
ANSWER:No, I did not.
Medical Decisions
The parties presented divergent testimony regarding who primarily took the child to doctor's appointments and oversaw her medical care. The mother initially testified that from 2009 until May 2011 she often took time off from work whenever the child had doctor's appointments and that the paternal grandfather drove them to and from the appointments. The father testified on redirect that prior to the mother commencing the divorce both of the parties took the child to doctor's appointment but he testified that he took the child more frequently than the mother did. The mother subsequently conceded that the father also took off from work to take the child to doctor's appointments and to stay home with the child when she was sick. The father testified on cross-examination that it was only after the mother commenced the divorce that she started staying home more to care for the child when she was sick.
QUESTION:Isn't it true that [the mother] is usually the first one to stay home with [the child] whenever she needs to?
ANSWER:After the divorce, it's true. ...
The father testified that, in addition to taking the child to the majority of her routine doctor's appointments, he was the parent who noticed when the child was sick and needed additional medical attention. He testified that the mother often dismissed his concerns about the child's health and disparaged or undermined his attempts to get her medical attention.
On direct examination, the father testified that he took the child to an ear, nose and throat specialist at Weill Cornell Medical Center, despite the mother opposed seeking a specialist opinion, because the child suffered from repeated earaches and colds.
QUESTION:Plaintiff testified about taking [the child] to, that you took [the child] to a specialist that wasn't necessary. Can you tell me what the specialist said to you; was there a diagnosis?
ANSWER:Specialist was the ear, nose and throat specialist. And I particularly picked a specialist at the Weill Cornell Medical Center. It is not a typical Russian doctor that we used to go to. And he determined that [the child] has enlarged adenoid, and some water in ears. [*11]
QUESTION:Can I ask you, do you think if the specialist had no diagnosis would you, do you think that it would have been a waste of time to bring her?
ANSWER:It's never a waste of time to get a specialist opinion.
The mother testified that she believes that the father's involvement of specialists is unnecessary for the child whom she believes will outgrow her childhood ailments with time. The mother did not dispute that she objected to the father taking the child to be evaluated by specialists and indicated that she believes that the father's involvement of specialists as a negative result of influence by the paternal grandparents. The mother initially testified that paternal grandparents are "very involved and caring and supportive" of the parties' child and was relieved when the paternal grandfather offered to provide daily child care for the young child; however, she subsequently testified that while she is "okay" with the child continuing to spend time with the paternal grandparents she is concerned that they have "a great influence on [the father]" and that their influence leads the father to seek what she believes to be unnecessary medical care for the child.
QUESTION:Okay. And are you testifying that that influence by his family on [the father] is not good?
ANSWER:Sometimes it's not.
QUESTION:Can you give me an example of some influence they have had on him that was not good for [the child]?
ANSWER:If you say that, like, for me it's not good, that means sometimes it's extra efforts that are taken for nothing. When they insisted taking her to the specialist while she had like runny nose and all that, happened to be for nothing, because her pediatrician already told us that it's just a process. She grows and she catches colds. So it's an ongoing process. And once she grew up, it is going to be better. So with all that, we still, [the father] still took her to the specialist, who didn't find, who didn't find nothing. So, to me, that was like extra effort, and that was an influence of his family who actually insisted on making such a visit. And for [the child], that was not like the most pleasant experience going to the doctor for the same result. I mean, there's nothing wrong; she was not hurt. She is not harmful for her, but it's, like, extra efforts that still, you know, bring us back to the same result. So, to me, sometimes, you know when you care too much, it's not like too good.
The father testified that the mother's lack of insight into the child's health and need [*12]for medical attention was not limited to her lack of enthusiasm for specialist evaluation and care. On direct examination, the father testified that a few months before the trial he noticed that the child had a rash but that despite bringing the rash to the mother's attention she was not concerned and suggested that the parties "wait it out" and not seek any medical attention for the rash. The father testified that he took the child for an evaluation and she was diagnosed with hand, foot and mouth disease.
QUESTION:And did you discuss the rash with [the mother] when you noticed it?
ANSWER:Yes, I did.
QUESTION:And what did she say to you?
ANSWER:She said it's probably not something significant and we should wait it out.
QUESTION:And what did you say?
ANSWER:I took her to the doctors.
QUESTION:And when you took her to the doctors and it was diagnosed as?
ANSWER:HFMD. Hand, foot and mouth disease.
QUESTION:Did [the child] need to stay home from school with this?
ANSWER:She stayed home for the whole week. Actually, there's no medication for this disease; you just have to wait it out.
QUESTION:And who stayed home with [the child]?
ANSWER:I was at home for the same week because I contracted the disease from her.
QUESTION:And when you contracted the disease from her, were you very ill?
ANSWER:I was able to take care of [the child] only for certain days. And then the rest of the time my mother or Layla helped out, because the very first day, on Monday, I had a high fever and the last two days my throat was swollen so I couldn't.
QUESTION:Did [the mother] stay home from work to help take care of [the child] or you?
ANSWER:No, she didn't.
The father also testified that even once the child received medical attention the mother was not mindful in administering medications to the child when they were prescribed. On direct examination, the father testified that he had to monitor the child when she needed to take medications, such as antibiotics, because in the past when the mother administered medication she was not conscientious about administering in compliance with the prescription directions. He testified about an instance when he discovered that the mother was administering the child's antibiotics with milk even [*13]though the antibiotic label indicated that the antibiotic should not be taken with milk.
QUESTION:What did you read on the label; what did the label say?
ANSWER:It mentioned that it shouldn't be given with milk.
QUESTION:Did you ask [the mother] why if the label said it shouldn't be given with milk she was giving it with milk?
ANSWER:She said that she didn't notice it.
Education
The father testified that the mother repeatedly made unilateral decisions regarding the child's education without consulting him both before and after she commenced the divorce proceeding and that the mother dismissed his concerns and objections to some of her decisions. The mother testified that in September 2011 she decided to enroll the child in day care because "she really needed to be around the kids of her own age". The father testified that he did not agree with the mother's selection of day care for the child but that she enrolled the child in the day care anyway over his objections.
QUESTION:Plaintiff testified that you visited the day care. Did you agree to the same day care that plaintiff —
ANSWER:We didn't.
QUESTION:Didn't agree?
ANSWER:We didn't agree.
QUESTION:Why did you not agree?
ANSWER:Couple of reasons, but the reason why I didn't want her to go there, because primarily it was a Russian-speaking day care. And the second reason, it wasn't conveniently located to our present place of residence.
QUESTION:Why did it matter to you that it was a Russian-speaking day care?
ANSWER:Because [the child] will have problems when she grows up and goes to PreK and starts school, that she doesn't know any English. She will have trouble understanding.
The mother testified during cross-examination by the attorney for the child that the child is fluent in Russian and speaks very little English.
QUESTION:[The child's] not fluent in English, though?
ANSWER:No, she's not.
QUESTION:Was there a reason why you chose a Russian-speaking day care, as opposed to an English-speaking day care?
ANSWER:Because I want [the child] to be able to understand me, and [the father], in our native language. I'm pretty sure as soon as she starts PreK and further school, English will eventually [*14]become her mostly common language. She'll eventually speak English with no problem. I wanted to save something that will connect me to [the child] in the future.
The mother testified that the child speaks limited English.
QUESTION:You said [the child] speaks some words in English?
ANSWER:35, 50 words.
QUESTION:Could she communicate in sentences in English?
ANSWER:Very simple stuff, like, Mom, I okay.' ...
When questioned regarding the child's ability to enter public school, the mother testified that she did not believe the child would be at any disadvantage despite only speaking a few English words.
QUESTION:The preschool that you are looking at, is it a public preschool?
ANSWER:Yes.
QUESTION:Do you know what the primary language spoken at the primary PreK school is in New York?
ANSWER:She will still go to ESL class, where English is not her primary language, she will be together with the other kids who don't speak English. ...
QUESTION:Do you believe that it's more difficult to begin an English-speaking school as a non-English speaking student?
ANSWER:No, I think at this age, at the age of four, kids are very easy to pick up languages. And I think she might be even benefit from being, like, bilingual child. And if she learns the third language at this point it's going to be even better for her. It's not a problem of her not knowing enough English at this point.
G. B., the father's mother called as a witness by the father, testified that she worked as an English-as-a-second-language teacher for twenty (20) years and that she had "concern" about the child not speaking English as her first language at home. She testified that "[s]ince [the child] was born here she was supposed to have English as her first, not second language." She testified that she noticed that the child was "not happy when some kids in the playground addressed to her in English, and she was not able to respond to them, and didn't understand what they were saying." G. B. testified that in response she taught the child the phrases "How old are you?" and "What's your name?" and that the child "started to go around the playground and ask the kids, what's your name, and how old are you..." She said that she and the father thought it was "very funny" because "at that time [the child] didn't even wait for the answer." [*15]
The father testified on cross-examination by the attorney for the child that he and the mother are not in agreement about future educational plans for the child, including which pre-kindergarten schools in which to register the child. He testified that there were three schools in the district near the marital residence where he wanted the register the child, but that the mother objected and unilaterally registered the child at a school closer the apartment she rented.
QUESTION:So you and [the mother] have not come up with a conclusion about where you are going to register the child for school?
ANSWER:No.
QUESTION:Of these three schools, are they near your home?
ANSWER:Less than a mile, yes.
QUESTION:What about the distance from the apartment [the mother] rented, how far are they from there?
ANSWER:Well, the distance between our apartments is about 3.2 miles. So I would say two-and-a-half. Two-and-a-half miles.
The mother did not dispute that she repeatedly made educational decisions for the child without discussing them with the father during the course of litigation and did not offer any explanation for why she did not discuss the decisions with the father other than her repeatedly stated belief that she is the better parent to make the decision.The mother conceded that during the litigation she selected a daycare and a pre-kindergarten without discussing the selection with the father.
Passport
The father testified that he and the mother had a disagreement about whether to obtain a Russian passport for the child who already has a United States issued passport.
QUESTION:When [the mother]'s parents were visiting, she begged me to make [the child] a Russian citizen with Russian passport. And I refused, because if she's a United States citizen and she travels somewhere on a different passport she won't be backed up by the U.S. government.
QUESTION:Did she give you a reason why she insisted on a Russian, getting a Russian passport?
ANSWER:She said to travel to Russia visa free.
QUESTION:Is there any reason that you know of that she can't travel to Russia with her American passport?
ANSWER:Russia is not a part of the Hague Convention.
QUESTION:Is there a reason why she can't travel?
ANSWER:Absolutely not.
QUESTION:With American passport and get to Russia?
ANSWER:Yes, she can go to the Consulate and get a visa. [*16]
QUESTION:So, why did you not agree to letting her get the Russian passport?
ANSWER:Because, like I said, Russia not part of the Hague Convention. And the Hague Convention does not, if the country is not in the Hague Convention, does not recognize a child abduction as a crime, and will not cooperate with returning the child. And I'm afraid if they go there, since [the child] doesn't know any English, her purpose was to get there and not return back.
The mother offered no testimony regarding her position on the child's passport and future international travel plans.
Early Intervention Therapies
The mother testified that the child experienced some special needs in the past which were treated with early intervention programs starting when the child was four (4) months old. The mother testified that the child received physical therapy, speech therapy and "a special instructor" who was trying to "help her develop" by learning shapes and colors. The mother testified that the child was also treated by a speech therapist because she "didn't speak" until she turned three (3) years of age. The mother, on cross examination, testified that the child did not receive any assignments to work on in between her therapy sessions.
QUESTION:And did these therapists assign exercises and things to do with [the child], in between their visits, in between the week?
ANSWER:No. There was no assignments in between.
QUESTION:Is it possible that you were not aware of them but that there were assignments for [the child] to do during the week?
ANSWER:I don't think so.
QUESTION:Who was generally present when the therapist worked with [the child]?
ANSWER:Grandfather.
QUESTION:Isn't it true that [the father] was generally present?
ANSWER:Sometimes.
QUESTION:When the therapist would come to work with [the child], did the therapist have a form to be signed at the end of each session?
ANSWER:Yes. But that doesn't meant that if [the father] signed that, he was actually at the session. I could be with her but could have ask him later, while doing something with her, to sign the form to let the person go out.
QUESTION:Isn't it true that if [the father] signed the form he had to be there? [*17]
ANSWER:In the house. Yes.
QUESTION:Do you know if [the father] worked with [the child] during the week between sessions to — on the exercises that the therapists provided?
ANSWER:I don't know that.
The mother testified that the early intervention programs ended when the child turned three (3) years old and started daycare because "she got enrolled in a day care and around the kids of her age and she started talking."
The father testified that he was usually present to let the therapists in to the home to work with the child and that the physical therapist gave the child exercises to do during the week in between sessions.
QUESTION:... Who was present when the therapist would arrive at your home, generally?
ANSWER:90 percent of the time I would be the one to open the door for the therapist, or my father.
QUESTION:And who was present to observe the therapies?
ANSWER:I was present, for the most part.
QUESTION:And who spoke to the therapist at the end of the session?
ANSWER:If I was present, at the end, then that would be me.
QUESTION:Did the therapist ever give you exercises or things to do in between, in the week in between the therapies?
ANSWER:Physical therapist did, yes.
QUESTION:What kinds of therapy things did the physical therapist give you to do, homework to do?
ANSWER:He suggested that we work on her muscles, that I would give her massages, that we walk up and down the stairs, to make her — to help her balance.
QUESTION:And did you do that?
ANSWER:I did that.
QUESTION:And did you do anything else to help her balance?
ANSWER:I also bought her a balance board, called Vew-Do.
...
QUESTION:And how often would you do the stairs with the balance board with [the child]?
ANSWER:Almost every day.
The father called A. B., one of the early intervention therapists who treated the child, as a witness. On direct examination, A. B. testified that she works for the Department of Education and also provides early intervention therapy through an agency [*18]called Challenge as a second job. She testified that the father and mother hired her to provide early intervention therapy for the child from the time she was approximately two (2) years old until she turned three (3) years old.
QUESTION:Who was generally at the house when you arrived?
ANSWER:Generally when I provide my lessons, generally was the father.
QUESTION:And did anybody, or the father participate in the lessons?
ANSWER:I wanted to say, that father was all time [sic] participated. And I even tell for myself, that how he's good, devoted father, because he really participated. ...
A. B. testified that the father "always participated" and "he always ask [sic] me always, how to do this, this, this, what is homework assignment, how he can work with the baby, during these days, when I come next time, and had a lot of patience, you know, very, very patient...."
QUESTION:Now, who did you discuss [the child]'s progress with, as a rule?
ANSWER:He, all time, he ask me, What is the progress,' and what I plan to do next time, and how it will be worked, and what he's supposed to do to improve the progress, you know, to make it, to make achievement much more sooner.
QUESTION:How often was [the mother] present for?
ANSWER:I saw her, too, but much seldom because she wasn't at home. She was working. I never ask, where is mother. I never ask it. And what I know, that sometimes when lesson finished, and I just try to put my coat on, and mother call him to say that she is supposed to come soon. And he was waiting for her, because after that, in my time, when I was present he was leaving. He use his bicycle to go. I never ask here. But I saw that he was ready for, to wait, to go [sic].
On cross-examination, A. B. testified that she provided the father with homework assignments to practice with the child during the week, including doing puzzles, between the therapy sessions. She testified that she provided the assignments to the father because he was generally the person who participated in the therapy sessions with the child. On cross-examination by the attorney for the child, A. B. testified that she believed the child had reached her developmental levels when the therapy sessions stopped at her third birthday.
The father testified that he attempt to continue the child in intervention therapies after she turned three years old, but that the services lapsed because the coordinator did [*19]not return his telephone calls.
QUESTION:What, if any, problems does [the child] have now?
ANSWER:She still have problems speaking, even in Russian. She still has problems expressing her feelings. And also, speaking certain words correctly, pronouncing the words correctly.
QUESTION:So what services would you perceive she would need?
ANSWER:She would certainly benefit from speech.
The mother testified that the parties do not always agree on how to discipline the child but that they "try to stay on the same page" because they are living together but that she believes that she has "more patience to talk to [the child]" about consequences for disobedience and discipline that the father does. The mother testified that the father "doesn't give, like, a lot of explanation, right at once" and that "he's not taking his time to explain a lot to her. He just does, right away" while she will explain to the child two or three times why the child must do or not do something before she will discipline the child for not listening.
Sleeping Arrangements
The mother testified that the child used to sleep independently in a child's bed but that after she commenced the divorce proceeding she moved the child to sleeping with her on a sofa in the living room of the marital residence. The mother testified that she did not believe that the child suffered any harm from sleeping with her on the sofa instead of continuing to sleep independently in a separate bed. On cross-examination by the attorney for the child the mother testified that the child still has a bed of her own in the marital residence that the father bought for her but that the child will no longer sleep in her own bed.
QUESTION: Is there any reason why [the child] doesn't sleep in her own
bed?
ANSWER:There are two reasons. [The child] doesn't get used to her own bed. And the bed right now that we have is, to me, it's not 100 percent safe. It's a pretty high bed, like two-level bed, with a little leather [sic]. And it has metallic frame on it. So I'm not, like, I let her sleep there, but like to me, myself, I have to be like, you know, I cannot sleep well when [the child's] sleeping there.
QUESTION:Is it a bunk bed you are describing?
ANSWER:No, it's a kid's bed, but it has a little leather ladder, so [the child] can go on top. It has a a [sic] little house, like a space underneath. Not a regular bed, like, normally will be, like, not too high. [*20]
The mother continued to testify on cross-examination by the attorney for the child that her concern with the bed was that it has metal sides and if the child turns she may "hit herself on the side." The father testified that he purchased a "loft bed" for the child and he would prefer for the child to continue to sleep independently but that the mother will not allow the child to sleep in her own child's bed.
QUESTION:Can you describe the bed you got for [the child]?
ANSWER:It's a loft bed, a little bit less than five-and-a-half feet long — I mean high. It's a twin size bed, metal frame. There is a little bit of playground area underneath the bed, pink color, her favorite color. And the bed even has a slide that [the child] used to slight [sic] down on, but then [the child] refused."
QUESTION:Do you have, where do you have this bed in your apartment?
ANSWER:The bed is still in the living room.
The father testified that he did not agree with the mother sleeping with the child on the sofa when the child had a bed.
QUESTION:Plaintiff testified that [the child] doesn't sleep in her own bed. How do you feel about that?
ANSWER:I really don't like that she doesn't sleep in her own bed.
The father further testified that he tried to "create a schedule for [the child] to sleep in her own bed" but that when it was the mother's turn to tuck the child into the child's bed that the mother "would pick [the child] up from the bed and put [the child] to sleep on [the mother's] bed."
The father testified that he "tried to make it a point" for the child to be in bed by 8:30, 9 o'clock but that "it never worked out" because "[the mother] came home late...9 o'clock or later, and she would want to spend some time with [the child]. And that's why it would disrupt the pattern. [The mother] would play with her until 10 o'clock and then she would put [the child] to sleep." On cross-examination by the attorney for the child the father testified that the child's bedtime remains "very irregular" and that if he is awarded custody that he would move the child's bedtime to "much earlier" so that she would be ready to start PreK.
Religious Observance
The mother testified that she is affiliated with the Russian Orthodox Church and that she takes the child to religious services and activities at her church. The father testified on direct that he observes the Jewish faith.
QUESTION:How would you like [the child] to be raised with respect to religion?
ANSWER:I would like [the child] to respect all of the religion, regardless of her own. [*21]
QUESTION:If you had custody of [the child] how would you handle her religious upbringing?
ANSWER:Well, I would make sure she knows about both of her religions, the holidays and the customs.
QUESTION:Do you believe that will happen if [the mother] were to have custody of [the child]?
ANSWER:I don't think so.
QUESTION:Why do you say that?
ANSWER:Because she's not very fond of Judaism.
QUESTION:Can you give an example?
ANSWER:Yes. One of them is Rosh Hashanah holiday. I was supposed to take [the child] to my grandparents for dinner. And I discussed the schedule with [the mother]. And by the time I called her, [the child] was sleeping so I had to go to my grandparents by myself.
...
QUESTION:Any other examples?
ANSWER:There was a holiday, at the day care, that were was, operator shot a video of, and gave everybody CDs. When we were watching the video she was smirking when they were doing the dance with the Jewish star; she was, making her laugh. And smirks.
QUESTION:And how did that make you feel?
ANSWER:Also sad.
G. B., the father's mother, testified on direct examination that she did not believe that the mother would encourage the child to learn about both of the parties' religious observances if she is awarded custody.
QUESTION:Why?
ANSWER:Because, I have heard that since, something that would tell me otherwise, that she's not really tolerant for the Jewish religion.
QUESTION:Did you witness anything, specifically, yourself?
ANSWER:Yes, I did.
QUESTION:What?
ANSWER:So once we were watching the video from [the child]'s Christmas party, so when it came to the part, since it was Hanukah time as well, there was a part of the party devoted to Hanukah, to this religious holiday, so the kids were wearing Jewish outfit, and girls were wearing the yellow stars of David on their forehead. And they were singing a Jewish [*22]song as well. So [the mother] made a disapproving face, so she smirked and said that she does not understand why at the Christmas party, they should have anything related to Jewish religion. Also, she says not all kids in the day care are Jewish, they don't have to do it. So she disapproved definitely of this. Also she said she was going to send that video to her family in Russia, and they would make a joke of it.
G. B. also testified, similar to the father's testimony, that during the litigation the father planned to bring the child to a Rosh Hashanah celebration with the paternal family but that the father came alone because the mother put the child to bed several hours earlier than her usual bedtime without any explanation despite knowing the father's plans to take the child to the celebration.
QUESTION:Do you know why?
ANSWER:Because he said that when he came home after work, she was sleeping, it was around 6 o'clock. So it was not the usual time for her to sleep.
QUESTION:Was that gathering planned?
ANSWER:It was planned beforehand. So [the mother] knew that he was going to take [the child] over there.
The father testified on cross-examination by the attorney for the child that he wants the child to grow up and make her own decision about religious observance.
QUESTION:In terms of [the child]'s religion, what is your position about how she's going to be raised in what religion?
ANSWER:She's baptized now. And I wasn't against it. But I actually wanted [the child] to grow up and make her own choice. If she wants baptized or wants to follow in Judaism. When [the mother]'s parents were visiting they kind of insisted she has to be baptized, and I didn't mind it and I agreed to that.
The father testified that his parents have been very involved in the child's life since she was born. In support of his testimony, he called his mother, G. B., as a witness. On direct examination, G. B. testified that she was present in the delivery room with the parties when the mother gave birth to the child and that she assisted the parties with day-to-day child care for the child during the first two (2) months after she was born by preparing dinner each day, taking the child for walks, bathing the child and putting the child to bed. She testified that after the mother went back to work after her maternity leave ended that she help provide child care for the child on Wednesdays and Thursdays and that the parties and the child spent the weekends with the paternal grandparents in the [*23]father's house in the Poconos. G. B. testified that during 2010 the mother spent almost every weekend with the father, the child and the paternal grandparents but that during 2011 the mother "didn't go much" to the Poconos with them on the weekends only going "maybe two times..." G. B. further testified that in 2012 the weekend trips to the Poconos with the child stopped almost entirely "[b]ecause [the mother] didn't want to let [the child] go with us, so we were there maybe a couple of times, with, almost with [the father]" since it was "not worth to go there for one day" and the parties "decided to split Saturdays and Sundays between themselves...." She further testified that prior to the mother filing for divorce the child "usually sleep over" at the paternal grandparents home "at least one night for the weekend" but that "[the mother] doesn't let [the child] sleep over" anymore. G. B. testified that when the child spent weekends with the paternal grandparents she took her to the beach, the Botanical Gardens, to English and Russian "shows" and that she taught the child "the alphabet" before the mother commenced the divorce. G. B. further testified that if the mother is awarded custody of the child that she does not believe that she would see the child often.
QUESTION:Why?
ANSWER:Because she already cuts us out of [the child]'s life. And she's slowly doing this, doesn't lets [the child] stay with us overnight. I even offered last summer to take vacation and take [the child] to go to the Poconos with me and my husband. She didn't even say anything, so she just ignored my question, so I accepted that as no. I see this is what is going on. So I'm very afraid I will not see her as much as I wanted to.
On cross-examination G. B. conceded that she often tells the mother "after the fact" that she bought tickets for the father to take the child to shows and that the mother has never refused to let the child go to a show with her or the father. G. B. also testified on cross-examination that the parties "always share" in the responsibilities of organizing the child's birthday parties. She testified that the father often asks her for advice about caring for the child.
The mother testified on direct examination that she believes that she should have primary custody of the child because she "feel[s] that [she] spend more time with [the child], and [she] have been doing so from the very beginning" and that she has "been more involved with her care" and that she has been "doing that all by [herself]" while she feels that the father tries "to involve other people, like his immediate family" in caring for the child. The father conceded on cross-examination that he has left the child with the paternal grandparents at times during his time with her. He also testified on cross-examination that he often includes the paternal grandmother in activities when he spends time with the child.
QUESTION:Isn't it true that most of the outings with [the child] involve [*24]your parents?
ANSWER:Yes.
...
QUESTION:Isn't it true that your parents always attend those shows with you?
ANSWER:My father doesn't.
QUESTION:But your mother does?
ANSWER:For the most part, yes.
...
QUESTION:Isn't it true that always Sundays that you spend with [the child] always involves your grandparents as well?
ANSWER:Yes.
On cross-examination by the attorney for the child, the mother conceded that she does not spend more time with the child rather that she believes she spends more "quality time" with the child.
QUESTION:It's your testimony that you believe that you spend more time with [the child]? Is that correct?
ANSWER:That's true.
QUESTION:And, but as counsel pointed out, it's not more time you spend with her, it's your belief that you spend more quality time. Is that correct?
ANSWER:I would say so, quality time.
QUESTION:Am I correct in saying it's not literally more time?
ANSWER:No, it's not literally more time. It's more quality time.
QUESTION:And by "quality time," do you mean that you play with her more than [the father] does?
ANSWER:I would be together with her more than [the father] does.
QUESTION:Is that, when you say that, does that mean that you, because we're not talking about a length of time now, we're talking about quality. What do you mean when you say "quality time"?
ANSWER:That means that we, it's not even like, I understand what you are trying to ask. It's meaning spending more time with her, being, playing with her, trying to occupy her with some kind of hand crafts, or some other activities; even just cooking together or doing like household chores together. Maybe not that much going outside or taking her to the shows, but, you know, spending the rest of the time together.
QUESTION:And is it your belief that spending time cooking with [the [*25]child] and playing with [the child] makes you a better parent than [the father] does, or it?
ANSWER:I do believe that spending more time, more quality time with [the child] makes me a better parent —
QUESTION:But we're already described you believe quality time is when you cook with her, do crafts with her, and play with her. Correct?
ANSWER:Doing homework, learning something, reading through books, yes, a variety of things.
QUESTION:And it is your testimony that [the father] never cooks with her?
ANSWER:I didn't say never. He can try to cook once in a while, slowly be helping.
QUESTION:What about [the father], ever do crafts with her?
ANSWER:Sometimes he does.
QUESTION:And we heard testimony that [the father] takes [the child] swimming every week. Correct?
ANSWER:He goes to swimming classes, right.
QUESTION:And do you think that's spending quality time with [the child]?
ANSWER:It is.
QUESTION:I think you, you testified back in October that you in a sense believe that your parental judgments are better than [the father's] judgments. Is that correct?
ANSWER:I think so.
QUESTION:And could you explain to me, at least, and the Court, in what way you believe that your parental judgments are better than [the father's] parental judgments?
ANSWER:I do believe that the more time you spend with [the child], you can notice little changes in [the child], like, easily, in [the child's] behavior, like, if I sleep with [the child] I can hear [the child's] breathing. I can feel [the child], like, having fever or not. I can identify if [the child's] sick or not. I can tell you if [the child] is hungry or not; what color [the child] likes, what kind of clothing [the child] will like better. I know [the child's] taste. I know [the child's] friends. I know the kind of like toys he [sic] [the child] would like.
QUESTION:So, in comparison, do you think [the father] doesn't know when [the child] is sick or wouldn't know when [the child] has a temperature? [*26]
ANSWER:I would notice that earlier. He would need like more time to identify that.
The father testified on direct examination that he believes that he spends more quality time with the child.
QUESTION:Between you and [the mother], who would you say spends more quality time with [the child]?
ANSWER:I do.
QUESTION:And how would you define that?
ANSWER:I do homework with her about 90 percent of the time. We do extracurricular activities with her. I take her to swimming classes. ... On Sundays we go to the zoo. We spend time with my friends. We go to play dates. And she sees her friends, plays with them.
The mother testified on cross-examination by the attorney for the child that even if she does not spend more hours with the child than the father and even if the father provides at least equal amounts of the child's day-to-day care that she still believes that her parenting style makes her a more fit parent than the father.
QUESTION:And I think you are describing that as making you a better parent, or having better parental judgment?
ANSWER:That's what I think, we just have different parenting skills. He's more, like, authoritarian. I'm more authoritative. So it's just, like, different styles. And I believe that comes from the way we were brought up, we were brought up differently.
QUESTION:Would you say that that makes [the father] a less fit parent that you are?
ANSWER:It may make him less fit parent. But he can still contribute. ...
QUESTION:Is it your testimony that you believe that you, inside of you, instinctively, you are a better parent for this child than [the father] is?
ANSWER:No. I just more skilled, I would say or more, I notice things easily. Like, I don't need the reminder; I'm more responsible. I'm more, I don't know, I'm more, like, mindful. ...
QUESTION:... in any case, what I'm trying to get at is, do you believe that [the father] is not able to take care of [the child]?
ANSWER:He might be able, but I'll do that better. For [the child], [the child] will get better care from me, because I don't need, like, I don't need a reminder to take care of her. He will need a reminder to take her over there, to feed her, to cook, to remind [*27]his mom to bring food to the house, because we don't have, like, because he doesn't have, like, certain food at home. So he will probably manage. [The child], [the child] will not die, it's not a big harm. We all can bring up a child, right. He will be capable to, but it's not in [the child's] best interests. It's going to be, like, somehow I would do that better, because I've been already doing all that. So I'm more skilled and more into that.
QUESTION:Are you saying that at some point you believe, notwithstanding that the two of you live together, the two of you lived together with your child, you've always lived together with your child, that you somehow have a better handle or better idea of what's in [the child's] best interests?
ANSWER:Yes, I think so.
QUESTION:And that's because you don't need reminders to feed her or take care of her?
ANSWER:Partially because of that.
QUESTION:And do you have any other children?
ANSWER:No, that's the only child.
QUESTION:Do you have experience with children? Other than your [child]?
ANSWER:No, I don't have any experience with children.
QUESTION:Is it a fact that you ask other people, let's say her teachers or the people at day care for advice in taking care of [the child]?
ANSWER:No. Mostly, it's because I do a lot of observations of [the child's] behavior, and sometimes asking for advice, sometimes using my own judgment.
QUESTION:And that's really in the way described, that is to say, sometime after 8 o'clock at night during the week, and then every Saturday? That's the time you are observing [the child]?
ANSWER:Yes.
The father testified on cross-examination by the attorney for the child that he does not believe that the mother is more patient with the child or that she would be a better custodial parent because he perceived the mother as making decisions for the child without exploring the options available or seeking input from him or advice from anyone else. He also testified that he believes that the mother's insistence on attempting to parent the child without involving him in important decisions and by excluding the paternal grandparents from the child's life will interfere with his ability to have a meaningful relationship with the child if the mother is awarded custody. [*28]
QUESTION:You are saying that you don't perceive [the mother] as being patient with [the child]?
ANSWER:No.
QUESTION:And what's the basis of that statement?
ANSWER:For the most part, she does not consult with anybody. She thinks that she knows better for the child. Does not consult with me if she wants to do certain things, and I find out about this later. I come home late. I found out she did such and such, and sometimes — which is not in the best interests of [the child].
QUESTION:Give me an example.
ANSWER:An example would be taking her to the doctors, taking her to the dentist, the incident when [the child] put a checker piece in her nose, I found out about this two days later. What if it was a real emergency.
The father testified on direct that the parties attended court-ordered parenting education and that he believed the class was useful.
QUESTION:Did you follow the advice you were given?
ANSWER:To the letter.
QUESTION:Did [the mother] follow the advice?
ANSWER:I don't think so.
...
QUESTION:What do you mean by that?
ANSWER:She has a friend visiting her from Russia, supposedly her former boyfriend, and they were together Botanical Garden. And they took [the child] with her, with them.
QUESTION:Why was that not following the advice given?
ANSWER:Because, during the divorce proceedings we were not supposed to let [the child] meet somebody of the opposite sex.
While the mother conceded that she often only returns home late in the evening several hours after her workday ended she testified that if the Court awards her sole custody she will change her work schedule to be able to pick-up the child from day care and provide all of her evening care. The mother proposed that the Court award her sole legal custody of the parties child and that the Court direct the following two-week alternating parenting schedule: Monday through Wednesday with the mother; Thursday through Sunday with the father; Monday through Wednesday with the mother; Thursday with the father; and Friday through Sunday with the mother.
On cross-examination by the attorney for the child the mother testified that she did [*29]not believe that the child would miss spending time with the father if she is awarded sole custody and awards the father parenting access according to her proposed schedule.
QUESTION:Do you think that [the child] will miss spending this time [after day care] every day with the father if you were awarded sole custody?
ANSWER:[The child] will not. She will still have that time.
QUESTION:[The child] won't have half the time. Correct?
ANSWER:Yeah, but with the activities, [the child] will not miss that time.
QUESTION:And do you have a basis for that conclusion?
ANSWER:(Pause.)
THE COURT:Answer, please.
ANSWER:I do [sic] will do that. I will try to give [the child] all that that he's giving [the child] in the rest of the time that is left. The half of the time I'm taking from him, I'll be the one to give all that, that he gives [the child] at this time.
QUESTION:But my question actually isn't whether or not [the child] will miss you; it's whether or not [the child] will miss the time [the child's] now spending with the father.
ANSWER:No, she will not, because she will be spending that time with me, doing the same things he does in that particular time with [the child] now.
The father requests that the Court award him sole custody of the child.
QUESTION:And why?
ANSWER:Because, up to this point I was the one who did, who made sound decisions about [the child]'s health, about her education, about her extracurricular activities; because I'm the one who rearranges my work schedule to take [the child] to the swim classes.
The father testified on cross-examination by the attorney for the child that if he were awarded sole custody of the child that he proposed that the parties enjoy equal time with the child according to the following two-week alternating parenting access schedule: Monday through Wednesday with the mother; Thursday through Wednesday with the father; Thursday through Sunday with the mother.
The father testified on cross-examination by the attorney for the child that he believed that it is important for the child to spend time with the mother and that he would encourage the child to do so by being flexible with the access schedule to accommodate the mother's schedule.
[*30]
QUESTION:... What visitation would you offer to the mother if you got
olet sole custody?
ANSWER:We try to work out a schedule, but it didn't work out. But I would give her access to [the child] as much time as she wants.
QUESTION:And when you say "as much time as she wants." What she wants is every day and every weekend.
ANSWER:Not every day and every weekend. But let's say she wants to meet with her one day that's not on the schedule; I would have no problem with that.
QUESTION:Go ahead.
ANSWER:If she will need a certain weekend for example if she arranged something special, I would have no problem.
The father testified on cross-examination that while he currently leaves for work earlier than the child leaves for day care that he would change his work schedule to accommodate the child's schedule if he is awarded custody of the child.
QUESTION:So how would you take [the child] to the day care?
ANSWER:I would rearrange my work schedule.
QUESTION:Who would be getting [the child] ready in the morning: brushing her teeth, brushing her hair?
ANSWER:I will.
...
QUESTION:Who would be cooking for [the child]?
ANSWER:If I have to, I will.
QUESTION:And who would be picking her up from school?
ANSWER:Also I will.
The father also testified on cross-examination by the attorney for the child that the paternal grandparents would also be available to help him drop-off and pick-up the child from day care when necessary.
At the conclusion of testimony, the Court made inquiry of the father on the record.
COURT:Would you say it's fair to say that both you and [the mother] have been posturing for control of this child as a result of this litigation?
ANSWER:Maybe, to some extent.
On the record, the attorneys for the parties and the attorney for the child represented that they did not believe that any additional information would be gleaned by the Court conducting an in camera interview of the child, who is four (4) years old, and [*31]waived an in camera interview. The Court notes that the parties did not represent that any issues were present that may warrant court appointment of a forensic evaluator to conduct a psychological or psychiatric evaluation of the parties. It was clear to the Court that the issues presented could be determined by evidentiary trial without the need for expert opinion. The Court believes that not every custody determination requires appointment of a forensic evaluator and the concomitant intrusion into the parties' lives and the financial expense that such evaluations often involve.
In her post-trial summation, dated June 5, 2013, the attorney for the child supports an award of "joint legal custody and equally shared parenting time" for the child but notes that if the Court awards sole custody to one parent that she would support an award of custody to the father based on his "willingness to share time and decision making with [the mother]" and his demonstrated ability to support the mother's role in the child's life.
Grounds
On October 23, 2012, the wife testified as to the grounds for divorce pursuant to DRL 170(7) without opposition. The wife stated that as of April 2011 the relationship between herself and the husband broke down irretrievably. The Court reserved decision on grounds until all of the ancillary issues have been resolved.
Custody
The parties thoroughly litigated before this Court the question of which parent should be awarded legal custody of the parties' four (4) year old child. Both parents provided testimony at trial concerning who spends more "quality time" with the child and the parties offered vastly differing testimony regarding their respective involvement in the child's day-to-day life during the marriage, including their respective roles in the child's early intervention therapies from the time she was almost two (2) years old until she turned three (3) years old.
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 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:
[*32]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 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]).
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 recognizes that this mother and father in the case at hand have demonstrated different parenting styles; however, the parties must learn to appreciate the positive parenting attributes they respectively previously contributed to raising their child and they must learn to understand that their child deserves, and must have, cooperation between [*33]her parents in order to thrive and achieve her greatest potential.
The Court finds credible the father's contention that the mother attempts to passively interfere with his relationship with the child by manipulating the child's sleep schedule so that the child is unavailable and/or less willing to participate in meaningful holidays such as Father's Day and Rosh Hashanah. The Court notes the uncontroverted testimony that the mother put the child to bed before 6:00 p.m. so that the child was unavailable to accompany the father on the evening when the paternal family planned to observe Rosh Hashanah despite the mother's insistence that the child routinely not go to bed until 10:30 p.m. so that she could spend time with the child after returning home, without clear explanation as to why she was returning home several hours after her workday ended. This Court is concerned about the mother's unwillingness to facilitate the child's scheduled time with the father. The Court also notes the uncontroverted testimony that the mother arrived home late with the child the night before Father's Day Sunday 2012 and that the effect was that the child was tired and less willing to accompany the father on a previously planned Father's Day outing. The Court notes the mother's testimony that she did not encourage the child to be ready to go with the father.
The Court is concerned with the mother's demonstrated unwillingness to place the child's long-term need for independence, stability and adequate rest for her daily endeavors, including school, by implementing a nightly routine where the child stays awake until 10:30 or 11:00 p.m. or later despite the father's attempts to establish a routine whereby the child goes to bed in her own bed at an earlier hour in order to get more regular nightly rest. The Court notes that the mother's only basis for undermining the father's attempts to cultivate an earlier evening routine for the child appears to be the mother's desire to spend time with the child only after returning home several hours after her workday ends instead of returning home earlier despite her ability to do so. The Court notes the uncontroverted testimony at trial that the mother's workday is from 9:00 a.m. to 5:00 p.m.; however, the mother testified that she "takes her time" returning home from work and routinely does not arrive home until 7:30 p.m. or later and the father's uncontroverted testimony that the mother arrives home as late as 9:00 or 10:00 p.m. several weeknights a month without notifying him in advance.
The Court notes the often present challenges of balancing career development and child-care obligations for working parents; however, in this case, the Court finds credible the uncontrovered witness testimony that employees in the mother's position at her place of employment are not permitted to work after regular business hours of 9:00 a.m. to 5:00 p.m. and that the employees are permitted to work remotely from home if there is additional work necessary to complete special projects. Trial testimony established that several times a month the mother does not return home until 9:00 or 10:00 p.m. or even later. The mother did not offer any explanation for why she often returns home many hours after her workday ends and leaves the father at home with the child not knowing when she will return for the evening to take over child care for the child. [*34]
The Court notes the mother's apparent attempt to delay the child from learning English. The Court notes the mother's testimony that she does not believe it will hinder the child in any way for her to begin public school in English-as-a-second-language classes rather than in English-speaking classes. The Court further notes the mother's testimony that her decision to enroll the child in Russian-speaking daycares and to keep the child from actively learning English until she begins public school is based on her desire to keep Russian as the child's first language so that she and the child will have something "shared" between them. On cross-examination the mother conceded that the child will enter public school classes at an avoidable disadvantage by speaking only a few English words and phrases, but stated that she believes that the child will catch up quickly with her classmates' ability to speak English once she begins public school. The Court, while sensitive to the import of cultural identification, questions the mother's decision to prioritize her desire to "share" Russian as a first-language over preparing the child in every way possible to enter English-speaking public school classes by enrolling her, as the father desired, in an English-speaking daycare. This choice by the mother, against the father's concerns, appears to evidence a willingness by the mother to satisfy her own desire for an attenuated "connection" through language with the child over the child's long-term best interests as her inability to communicate effectively in English may hamper her early understanding and progress as she enters public school.
The mother's actions during the litigation and her testimony at trial reveal that she has a less than accurate perception of the respective time the parties spend with the child and the many contributions the father makes to the child's day-to-day care. The mother appears to dismiss summarily and without basis the value of the time and activities the father spends with the child. The mother initially testified that she spends more time with the child; however, trial testimony, including the mother's testimony on cross-examination, established that, contrary to the mother's initial testimony on direct examination that she has "been doing [primary care] all by [her]self", the father actually spends significantly more hours with the child on a daily basis and provides much more of the routine day-to-day care for the child such as picking the child up from daycare, feeding the child dinner, taking time off from work to take the child to swimming lessons, doing homework with the child each evening and bathing the child than the mother does. When questioned by the attorney for the child about the discrepancy between her perception of the time she spends with the child and the actual time she spends with the child the mother conceded that while she may actually spend fewer hours with the child than the father does she continues to believe that the time she spends with the child has more "quality" value than the time the father spends with the child. The Court notes that the mother was unable to articulate why the time she spends with the child and the activities she does with the child differ in any meaningful way from the time and activities the father enjoys with the child. The mother testified that she believes that the time she spends with the child cooking, doing "hand crafts" and "household chores" and [*35]"reading through books" make her a "better parent" than the father who described his activities with the child as doing puzzles, reading, flying kites, doing sports and helping the child ride her bike. Furthermore, despite the father providing much of the child's day-to-day care the mother's testimony revealed that she has a negative perception of the father's parenting ability and his inclusion and reliance on his parents. The mother's insistence that she is the "better parent" because she would attempt to provide most or all of the child's day-to-day care without significant involvement from the father or the paternal family even though they are and have been actively involved in the child's daily life is not based in sound reason and further belies the mother's unwillingness to concede that the child has thrived under the existing shared parenting arrangement informally observed by the parties.
The mother further testified that she believes that she has better parental judgment than the father in part because she routinely sleeps with the child and is, therefore, able to "notice" changes in the child earlier than the father. The mother testified that sleeping with the child enabled her to tell if the child is "hungry or not" and "what color she likes" and "what kind of clothes she will like better...."
The mother further criticized the father's involvement of the paternal grandparents to assist in the child's routine care; however, inexplicably, the example provided by the mother of alleged inappropriate "influence" by the paternal grandparents was the father's decision to take the child to a specialist for her constant ear and nose problems even though the specialist found that the child had enlarged adenoids and water in her ears. The mother's classification of the father's decision to take the child to an eyes, ears, nose and throat specialist as "car[ing] too much, it's not like too good" again belies an unwillingness of the mother to seek the assistance of others, even a medical specialist, despite having a child who faced reoccurring ear and nose problems. The mother must learn that seeking appropriate assistance of others, including family and trained professionals, is not evidence of deficient parenting skills rather it may often represent resourcefulness.
The mother's testimony reveals that she has poor insight into the intrinsic value of the child maintaining an active and involved relationship with both parents. The mother's testimony during trial strongly indicates that if she were awarded sole custody she would significantly downplay the father's role in the child's life and minimize the child's contact with the paternal family who, from the child's birth until the mother commenced this divorce proceeding, provided almost daily care and support to the child. The mother emphatically testified that if she is awarded custody of the child that she will take over the activities and time that the child previously enjoyed with the father and does not believe that doing so would have any detrimental impact on the child. The Court finds particularly notable the mother's testimony that she does not believe that the child will miss the time she currently spends with the father if the Court awards the mother custody and the child were to spend that time with the mother instead of the father. The Court is [*36]concerned that the mother appears not to comprehend that the child's independent relationships with mother and father are not interchangeable and that both relationships are uniquely and equally valuable to the child. On cross-examination by the attorney for the child the mother repeatedly refused to acknowledge the natural love and affection the child has for her father and that there would be any importance in the child maintaining continuity of the time and activities that she enjoys with the father if the mother is awarded custody. It appears to the Court that the mother's rigid adherence to her dismissive perception of the father's role in the child's life and the role he has contributed to the child's routine and development thus far in her life leaves the mother unable to form an accurate understanding of the child's emotional and developmental needs which include a meaningful relationship with the father. Additionally, her active attempt to move from the marital residence and unilaterally establish a new residence with the child without the father's consent or Court permission during the litigation evidences that the mother does not respect the child's right to access to the father and the father's right to access to the child.
The Court notes that in addition to consistently providing many, if not most, of the child's day-to-day care, the record revealed that the father was primarily involved in participating in and facilitating the homework from the child's early intervention therapy session. Trial testimony established that the father was most often the parent who participated in the therapy sessions and was the sole parent who participated in the child's therapy assignments in between the child's weekly developmental and physical therapy sessions.
The Court is also concerned about the mother's decision during the litigation to enroll the child in a daycare located conveniently to the mother's new rental apartment but not to the marital residence. The mother's unilateral action evidences her belief that she alone, without seeking any input from the father, is best equipped to make major decisions for the child. Testimony revealed that the mother subsequently enrolled the child, without consulting with the father, in a pre-kindergarten near the apartment she rented despite the fact that the Court had not made a determination regarding custody of the child. The Court notes that the mother's consistently made unilateral decisions regarding the child's education during the litigation without consulting the father and, despite the ongoing litigation, the mother has not made any meaningful attempts to include the father in decisions relating to the child's education. It is evident from her continued exclusion of the father that the mother does not believe that the father is entitled to participate meaningfully in important decisions relating to the child.
The Court notes the testimony by the father and the paternal grandmother that the mother demonstrated disrespect and insensitivity toward the child participating in a Star of David celebration during a multi-religious holiday party at the child's daycare during the Christmas/Rosh Hashanah season, despite the fact that the father and his family observe the Jewish religion. [*37]
Based on the record, it is this Court's belief that the mother's disregard for the right of the child to a relationship with the father and the value of an ongoing, meaningful relationship between the child and the father would likely have an adverse effect on the father's relationship with the child if the mother is awarded sole custody. The Court finds that the father is the parent most likely to facilitate access between the child and the other parent. The Court notes that it is the mother's insistence, as demonstrated by her actions during this litigation, that joint custody is not a viable alternative that prevents this Court from awarding joint custody.
This Court finds credible the father's testimony that he would actively include the mother in decisions relating to the child if he is awarded custody. Furthermore, the Court notes that the father does not appear to have the same ambivalence towards the value of the mother's role in the child's life. The record established that while the father does not always agree with the mother's parenting approach he continues to support the mother maintaining an active and meaningful role in the child's life. The Court finds credible the father's testimony that he would continue to encourage the child to spend time with the mother and that he would facilitate the mother spending additional, flexible time with the child in order to enjoy special activities in addition to any Court ordered parenting time awarded to the mother. The Court notes that the father advocates an equal parenting time arrangement with each parent enjoying fifty (50%) percent of the time with the child.
This Court is concerned about the mother's apparent inability to identify and/or reluctance to seek medical attention for potentially serious ailments involving the child. The Court notes the uncontroverted testimony that the mother did not seek treatment for the child when the child developed pink eye. Subsequently, in response to noticing that the child had a rash when he picked her up from daycare, the father took the child to the doctor who diagnosed "hand, foot and mouth disease" even though the mother did not believe that the rash was significant.
The Court finds credible the father's testimony that he was equally responsible for seeing to the child's health care and for taking the child to doctor's appointments. The Court also finds credible the father's testimony that the mother often made doctor's appointments for the child without notifying him about the appointment until after the fact.
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). Throughout the child's life the mother has repeatedly made unilateral decision regarding [*38]the child's education without consulting the father. Joint custody would not be an appropriate award in this matter given the mother's unwillingness to consult and collaborate with the father on major issues, such as education, concerning the 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 the father's testimony at trial was far more credible than the mother's testimony. The father's actions relating to the child, including his consistent participation in the child's early intervention therapy and his willingness to accommodate the mother's unexplainably unpredictable evening schedule, clearly demonstrate a willingness to nurture the children's best interest while the mother consistently makes decisions that she believes will best serve her personal relationship with the child even if it will interfere with the child's ability to have a meaningful relationship with the father. The father's decisions regarding the child's medical care and his consistent dedication to participating in her early intervention enrichment therapies, including his role in conducting the child's weekly homework assignments, were made with the child's best interest as the strongest consideration. Most notably, 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.
This Court's decision is based upon the Court's own observations, credibility 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 aware that the father testified that if he was awarded sole custody of the child that he would propose that the parties alternate parenting time with the child according to the following repeating two-week schedule: one week with the mother and the following week with the father. The Court notes that while the attorney for the child supported an award of custody to the father if the Court awarded sole custody to one parent that the attorney for the child did not support any specific access schedule for the parents to enjoy with the child. Despite the Court's final determination that it is in the child's best interest to award the father sole custody this Court does not find that, based on the particular facts and circumstances presented here, an alternating schedule of a week with the mother and then a week with the father would also be in the child's best interest. Given the young age of the child, who is only four (4) years old at this time, and the mother's demonstrated unwillingness to communicate with the father regarding even significant issues involving the child, including her lack of insight and insistence on "waiting it out" instead of seeking appropriate medical attention for the child on several occasions and her actions even during this proceeding evidencing her belief that she does not need to seek the father's input on important decisions relating to the child, such as which school to enroll her in and whether it is appropriate for the mother to relocate to another residence with the child without consent. Based on the mother's history of failing [*39]to communicate with the father regarding major decisions involving the child, including her hesitancy to obtain appropriate medical attention for the child, and the young age of the child, the Court finds that it is not in the child's best interest to go a full week between seeing either parent. The Court is also concerned regarding the mother's willingness to facilitate meaningful communication and access between the father and the child if the mother was awarded an uninterrupted week of parenting time with the child given her testimony at trial that she did not believe that the child would miss time with the father if she spent more time with the mother and her pattern of interfering, albeit at times passively, with the father's parenting time during the course of this litigation. The Court finds that under the facts and circumstances herein, the mother shall have parenting time with the child as follows: alternating weekends with pick-up at the father's residence at 6:00 p.m. every other Thursday, commencing Thursday, December 19, 2013, and drop-off to school the immediately following Monday morning. The mother shall have mid-week overnight parenting time with the child each week on Tuesdays from 6:00 p.m. to drop-off at school the immediately following Wednesday morning. This provides the mother and the father with almost equal amounts of parenting time with the child and ensures that the young child has meaningful access with both parents on a regular basis.
The holiday schedule herein shall supercede the mother's Wednesday dinner parenting time. Pick-up and drop-off for the Wednesday mid-week parenting time shall be at the father's residence.
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, and New Year's Eve. Commencing December 2013, the father shall have the child for the New Year's day holiday and the parties shall alternate holidays thereafter.
Testimony revealed that the mother observes Christian holidays and the father observes Jewish holidays. The child shall spend the major Christmas holidays with the mother and the major Jewish holidays with the father in keeping with the parties' respective routine celebration and observance practices prior to the divorce proceeding. Pick-up and drop-off for all holiday and school recess parenting time shall be from the father's residence. 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. The Court notes that the 6:00 p.m. pick-up time is to accommodate the testimony regarding the mother's workday hours of 9:00 a.m. to 5:00 p.m. This holiday schedule shall supercede the regular parenting time schedule.
HOLIDAYODD YEARSEVEN YEARS
New Year's Day (pick-up 10:00 a.m.; drop-off 8:00 p.m.)MOTHER
FATHER[*40]
Martin Luther King weekend (pick-up Thursday 6:00 p.m.; drop-off Monday 8:00 p.m.)FATHERMOTHER
President's Day weekend (pick-up Thursday 6:00 p.m.; drop-off Monday 8:00 p.m.)MOTHERFATHER
February/Winter School RecessFATHERMOTHER
Easter/Passover/Spring School RecessMOTHERFATHER
Memorial Day weekend (pick-up Thursday 6:00 p.m.; drop-off Monday 8:00 p.m.)FATHERMOTHER
Labor Day weekend (pick-up Thursday 6:00 p.m.; drop-off Monday 8:00 p.m.)MOTHERFATHER
Columbus Day weekend (pick-up Thursday 6:00 p.m.; drop-off Monday 8:00 p.m.)FATHERMOTHER
Thanksgiving weekend (pick-up Wednesday 6:00 p.m.; drop-off Monday at school)MOTHERFATHER
December/Winter School Recess (pick-up December 26 9:00 a.m.; drop-off December 31 10:00 a.m.)FATHERMOTHER
New Year's Eve (pick-up December 31 9:00 a.m.; drop-off January 1 10:00 a.m.)MOTHERFATHER
Each parent shall have three (3) weeks of uninterrupted parenting time with the child each summer. In ODD YEARS, the mother shall notify the mother, via e-mail, no later than May 1 of which two (2) consecutive weeks she will take the child during summer vacation and the father shall notify the mother of which two (2) consecutive weeks he will take the child by May 15. In EVEN YEARS, the father shall notify the mother of which two (2) consecutive weeks he will take the child no later than May 1 and the mother shall notify the father of which two (2) consecutive weeks she 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 father shall have parenting time with the child on his birthday from 6:00 p.m. to 8:00 p.m.. The mother shall have parenting time with the child on her birthday from 6:00 p.m. to 8:00 p.m.. Pick-up and drop-off for the parent's birthday dinner parenting time shall be from the father's residence.
The parent who does not have regularly scheduled parenting time with the child on the child's birthday shall have parenting timing as follows: if the child's birthday falls on a weekday, for two (2) hours immediately after school with pick-up from the child's school and drop-off to the other parent's residence; if the child's birthday falls on a weekend or a day when there is no school, from 2:00 p.m. to 8:00 p.m. with pick-up and drop-off from the other parent's residence. [*41]
Either parent may take the children out of New York State for vacation during his or her parenting time. If either parent plans to vacation with the children outside of New York, that parent must provide the other parent with the address and telephone number and itinerary, including any round-trip air plane ticket, by e-mail within twenty-four (24) hours prior to departure.
Neither parent shall take the child out of the United States without written consent from the other parent or an Order from the Court. The father shall retain possession of the child's passport. Whether the mother travels with the child outside of the United States with the father's written consent or a Court order permitting same, she shall return the child's passport to the father when she returns the child to the father at the next regularly scheduled parenting exchange. The mother shall not obtain a foreign (non-United States) passport for the child without the father's written consent or an Order from the Court.
Each party shall give twenty-four (24) hour advance notice in writing via e-mail to the other party if the regularly scheduled parenting time 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 schedule to begin in accordance with the parenting schedule herein.
To accommodate the parties' work schedules, the children's school schedules or extracurricular activity schedules, the parties may temporarily modify the parenting schedule herein, on consent, if the modification is reduced to writing and signed by each of the parties or confirmed by both parties by e-mail.
Each party shall provide the other with a telephone number where he or she can be reached during the time with 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 72 hours of any changes to this information. The father shall not relocate with the child outside Kings County without the mother's written consent or a Court order permitting same.
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 parties shall not disparage the other party in front of the child and shall make every effort to assure that anyone who provides child care for the child at any time does not disparage either of the parents in front of the child. The parties are admonished not to attempt to alienate in any way, either by statement or in action, the child from the other parent. The child shall not be known by any other last name than "B."
The mother shall have reasonable access to all medical, dental and psychological records of the child. The father shall notify the mother of all non-emergency medical [*42]appointments within twenty-four (24) hours of when they are made and the mother shall be permitted to attend all doctors appointments. 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 room care or admittance to any health care service center or hospital. If the child is admitted to a hospital or receive 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 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 immediately 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 any illness(es), accident or other circumstances or event 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 for a reasonable period of time each day between 6:00 p.m. and 8:00 p.m. unless the child has a regularly scheduled activity or extracurricular activity and on the weekends. The child shall have the right to daily reasonable phone 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. 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 any sporting event, religious ceremony, school graduation or extracurricular competition or public event.
Conclusion
The Court is well aware of the Court of Appeals decision in Braiman and the subsequent history of case law following the Braiman decision. The Court is also aware [*43]of the many societal and technological changes since Braiman which make effective co-parenting a more acceptable solution even in more difficult custody determinations. There is the increased utilization of parent coordinators, where appropriate; modern technology which allows schools and childcare providers greater flexibility in communicating with both parents simultaneously; and methods of electronic communication which generates a lasting "paper trail" of the substance, and sometimes tone, of the communication between the parents. The accessibility to and widely used face-to-face communication platforms, such as Skype and Facetime, allow parents and children to "visit" and "see" one another although separated by distance or complex schedules. These technological advances can, in some situations, where parents have a demonstrated ability to communicate with one another, made it conceivable for a Court to award joint custody even where the parties litigated the issue of custody. Yet, in the case at bar, the mother has throughout the litigation maintained a course of conduct which evidences her belief that she does not need to consult with the father regarding important decisions relating to the child. The mother has a demonstrated track record of taking actions without consulting with the father and, therefore, a crucial component necessary for successful joint custody is strikingly absent. The mother's own testimony revealed her belief that less time spent with the father can be supplemented or easily remedied simply by the child spending more time with her. The mother's unilateral decision to leave the marital residence with the child and lease another apartment without the father's consent and her subsequent selection of a day care based on her assumption that she would have custody of the child clearly evidence her lack of understanding regarding the importance of the father's role in the child's life. Furthermore, the mother's lack of a plausible explanation regarding why she arrives home many hours after her workday ends and keeps the child awake late as a result is of concern. The mother's refusal to recognize the import of a child sleeping in his or her own bed and offering an excuse for interfering in the child's ability to sleep on her own is of concern, as is the lack of insight into the child's medical needs.
The record established that the father has a dedicated support network of family resources available to him in providing care to the child and the Court has carefully considered whether it is that support network which is the basis for him to provide more effective parenting and if the lack of a local family support network for the mother, through no fault of her own, is prejudicing her standing in this custody dispute. The Court further notes that while the mother has continued to benefit directly from the father's support network of family during this litigation — the paternal grandfather continued to provide daily transportation of the mother and child to the day care the mother selected near her apartment — she consistently criticized the father and maintained that he is less equipped than she is to be the child's primary care giver because he utilizes his support network of family. The Court does not believe that the fact that the father has more of a local support network of family than the mother does makes him more or her [*44]less qualified to be the child's custodial parent. The Court does believe that, after observing the mother and the father, adjudging their respective credibility and carefully assessing the nature of their acts and behavior during this litigation, that the mother has failed to demonstrate that she possess insight into the fact that the child has a right to meaningful access to the father and that lack of insight or willingness to cultivate access and a meaningful relationship between the father and child would not make an award of sole custody to the mother in the child's best interest.
Furthermore, the mother's unwillingness to consult and include the father in major decisions regarding the child does not enable this Court to consider making an award of joint custody. Throughout this litigation, the mother appeared to consistently and actively interfere with the father's access to the child and to put her own convenience and desires ahead of the child's best interest as evidenced by her trying to establish a new residence and taking the child with her to continuing to sleep with the child on a sofa under the guise that she can better assess the child's breathing and better know the child's favorite color and what she prefers to eat.
In the litigation at bar, the father has demonstrated a consistent willingness to promote access and a meaningful relationship between the mother and the child. Furthermore, the Court finds credible the father's testimony that he will continue to consult with the mother regarding major decisions relating to the child and will provide access to the mother. As such, under the facts and circumstances presented here, the Court finds that an award of sole custody to the father is in the child's best interest and under existing New York law joint custody would not be an amenable solution because the mother will not consult with the father which would be necessary to effectuate a proper joint custodial relationship.
Settle an interlocutory judgment, on notice together with a copy of this decision with notice of entry within 30 days. A pre-trial conference on the financial issues and to set a date for trial of those issues shall be held on January 3, 2014 at 9:30 a.m.
E N T E R
JEFFREY S. SUNSHINE
J.S.C.
Footnotes
Footnote 1:The father testified that for approximately a year and a half he worked evenings without pay at a friend's liquor store in the hopes of earning an interest in the store but that he quit working there when the arrangement did not come to fruition.
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