E.K. v P.K.
Annotate this CaseDecided on January 7, 2020
Supreme Court, Nassau County
E.K., Plaintiff,
against
P.K., Defendant.
800209/2018
Matthew Seidner, Esq., Law Offices of Seidner & Associates, P.C., attorneys for Plaintiff/Husband: telephone: 516-345-9900; email: mseidner@seidnerlaw.com
Kenneth Weinstein, Esq., attorney for Defendant/Wife: telephone Phone: (516) 742-1400; email: kweinstein@kjwlaw.comPatricia Manzo, Esq., attorney for the children telephone Phone: (516) 942-3457; email: pdmanzoesq@optonline.net
Helen Voutsinas, J.
NOTICE: YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY RESULT IN INCARCERATION FOR CRIMINAL CONTEMPT
Plaintiff/Father, E.K., by and through his attorneys, Law Offices of Seidner & Associates, P.C., commenced this divorce action by filing a summons with notice on or about November 27, 2018. On or about January 29, 2019, Plaintiff filed a Verified Complaint seeking a divorce, permanent custody of the party's two children and various other relief. Defendant/Mother, P.K., by and through her then attorneys, Sunshine & Feinstein, LLP, filed a Verified Answer on or about April 23, 2019.
The parents in this custody proceeding have had a history regarding visitation issues. The parties were married on September 29, 2007. There are two children of the marriage, H.K., born on September 28, 2008 and D.K. born on May 7, 2010. The Mother has a son from a prior [*2]marriage by the name of B. At the time of commencement of this action he was attending college in California.
The issue before this Court is whether there has been a substantial change in circumstances since the Custody and Visitation Order dated, January 13, 2017 issued by the Nassau County Family Court (Sharon L. Clarke, Court Attorney Referee)("Custody Order"). Pursuant to the Custody Order, Plaintiff and Defendant share joint legal custody of the children, Defendant has primary physical custody of the children, and Plaintiff has parental access. Should the Court find that there has been a substantial change in circumstances, then this Court must determine whether, given the circumstances, it is in the best interests of the subject children to modify the Custody Order and grant the Father sole custody.
Ultimately, after much deliberation, and after considering the credible evidence and observing the parties' demeanor for their veracity, this Court has determined that a substantial change in circumstances has occurred. The Court finds that, while the parties may have had, at one point in time, a seemingly amicable working relationship in a bucolic setting, this quickly progressed into one where the Mother has engaged in a continual pattern of parental interference of the children from their Father. That parental interference was so severe that by the time the hearing commenced the children no longer wished to have frequent and regular visitation with their Father. Mostly encouraged by their Mother, they wished rather to spend time with their friends, playing games, going on luxury vacations, playing with their dogs, or spending time with the Mother's new boyfriend.
The parties entered into an oral stipulation, as part of this hearing, to include the litigation of any incidents that occurred following the date of the parties' Separation Agreement, which was dated December 22, 2015. However, this Court must take notice of the Family Court's Custody Order dated January 13, 2017, wherein these alleged violations were litigated.Therefore, this Court will consider all the facts and incidents occurring after issuance of the Family Court's Custody Order dated January 13, 2017.
In addition, the Plaintiff had subsequently filed, on August 30, 2017, a Petition in Family Court for Violation of Court Order. However, that Petition was dismissed upon the Plaintiff's withdrawal of the Petition without prejudice. Therefore, the Court has considered those facts and incidents raised therein.
The parties have two (2) children: H.K, born September 28, 2008 and D.K., born May 5, 2010.
The parties had previously filed an action for divorce in Nassau County Supreme Court, bearing Index Number 203370/2013. The action was discontinued as a result of the parties' execution of a Separation Agreement on December 22, 2015, wherein the parties resolved issues of Equitable Distribution, Maintenance, Child Support and Custody and Parental Access.
Pursuant to the Separation Agreement the Father agreed to pay to the Mother monthly payments as follows: for Equitable Distribution: $4,166.67 per month until December 15, 2020; for Maintenance: $7,708.33 per month; and for Child Support for the two children: $7,291.00 per month. The Father also agreed to pay for the cost of private school up to $32,000.00 per year, per child, and also to pay for the children's extra-curricular activities with a combined cap of $7,000.00 in total, for both children. There is no evidence to suggest that the Plaintiff has ever been late with any payments
THE SUBJECT PETITIONS
Pursuant to an Order dated December 19, 2018, Patricia Manzo, Esq. was appointed [*3]Attorney for the Children.
Plaintiff moved, by Order To Show Cause dated December 19, 2018 (motion sequence no. 1), for an Order, inter alia, 1) granting Plaintiff immediate pendente lite sole legal and residential custody of the parties' minor children, to wit: H.K., born September 28, 2008 and D.K. born May 5, 2010, based on, inter alia, numerous alleged violations of the Custody Order, including, but not limited to, constant interference by Defendant with Plaintiff's scheduled parenting time; 2) alternatively, granting Plaintiff immediate pendente lite parenting time every school week commencing each Sunday at 8 p.m. through Friday after school and alternating weekends; 3) alternatively, scheduling an immediate hearing on the issues of pendente lite custody and parenting time; 4) granting a suspension of Plaintiff's monthly child support obligations pursuant to the Separation Agreement, dated December 22, 2015; 5) holding Defendant in Civil and Criminal Contempt of Court for the willful failure and refusal to comply with the Nassau County Family Court's Order of Custody and Visitation, dated January 13, 2017; and for other relief as this Court deemed just and proper.
Plaintiff alleges that he was denied visitation, or his visitation was shortened by the Mother, on hundreds of occasions. He further alleges that the Mother, due to her exorbitant spending behaviors, would often try to extort money from him, by not allowing parenting time unless Plaintiff paid her additional monies which were not due and owing. He alleges that he often paid her the additional money in order to see the children. In addition, he is concerned that the Mother does not meet the needs of the children in that they were brought to school late, or were absent, approximately forty-seven (47) times during one (1) school year, causing them to have a casual attitude about school. He also presented evidence that the Mother caused H.K. to miss soccer practice on numerous occasions. He also avers that the Mother acts inappropriately towards him in front of the children, causing them to be affected in the way they view him. He also argues that the Mother is unable to follow orders of the Court.
Defendant, P.K., cross-moved, by Notice of Cross Motion dated March 25, 2019 (motion sequence no. 3), for an order, inter alia, modifying the Custody Order and granting Defendant sole legal custody of the parties' minor children. She argues that Plaintiff agreed to keep residential custody with the Mother in the Separation Agreement and when he went before the Family Court in 2016, he agreed to less time with the children. She also argues that it is Plaintiff who had issues with keeping to the parenting schedule. She states that it was not until she found a boyfriend that Plaintiff had any issues with not abiding by the parenting schedule. She states that for years there was not a single time that the children were late for school and that recently the children may have been late to school, but that their absences were excused. She also points out that H.K. has serious health issues that Plaintiff ignored, and which were the reasons that he did not go to school or soccer practice. Defendant also argues that the Father has never taken the kids on vacation, or to dinner and has never bought them clothes. Defendant voiced concerns that the Father's desire for their children to play soccer was too harsh on the boys physically and emotionally and that the responsibility was on her to get the children to practice. She also attempted to portray the Father as cold, verbally abusive and callous, and someone who has only recently taken an interest in the children.
The Court referred the motions to an immediate hearing and the parties agreed that the determination would be final as to custody and visitation. The Court conducted a continued hearing for thirty-five (35) days, with an additional hearing on other alleged ongoing violations for another five (5) days, from April 15, 2019 until August 9, 2019. On June 6, 2019, during the [*4]pendency of the hearing, Defendant discharged her attorneys and decided to proceed pro se. Plaintiff withdrew the branch of his motion that sought to hold Defendant in civil and criminal contempt. Post trial submissions were fully submitted on September 17, 2019.
During the pendency of the underlying hearing, the Court held a separate hearing to determine a temporary change in custody due to alleged ongoing violations that had been occurring during the time that the underlying hearing on the Order to Show Cause was proceeding. By Amended Temporary Custody and Visitation Order dated July 19, 2019, the Court granted the Father sole residential custody with joint legal custody to both parents with a parenting time schedule for the Mother.
Plaintiff alleges that Defendant has consistently violated the Custody Order. He asserts that she violated the Custody Order approximately one hundred sixty three (163) times by interfering with the Plaintiff's scheduled parenting time, requesting advance payment of maintenance and child support payments and by requesting additional funds in exchange for her compliance with the Custody Order. Plaintiff further alleges that the children had been either absent or late to school approximately forty seven (47) times and that she continues to violate the Orders of this Court.
Plaintiff offered 409 exhibits at trial, with many exhibits introduced into evidence on consent, or over Defendant's objection. Defendant offered 51 exhibits at trial, with many exhibits introduced into evidence on consent, or over Plaintiff's objection.
This Court held separate in camera interviews of the children, H.K. and D.K.. Patricia Manzo, Esq., the Attorney for the Children, was present at each interview.
The Court had an opportunity to observe the children closely during their respective extensive in camera interviews. They are both highly intelligent, articulate and charming. They showed a resilience and ability to adapt to situations. H.K. seemed more emotional, torn, yet collected, while D.K. seemed more nervous and unable to control his feelings. This Court found that, particularly when discussing their Father, they presented themselves with a maturity that was unnatural, strange and, at times, canned. They seemed to take on adult roles that were coached and had a clear disconnect for reality and the meaning of what it meant to spend true quality time with their Father. It was obvious that the parents had different theories on parenting, and that the children much preferred to spend time with their Mother, mostly because she believed in parenting that was led by the children and the children's individual desires of either playing with their friends or spending time how they felt was appropriate, rather than a parent led relationship that instituted any type of structure or discipline. This Court finds that the children live a somewhat sheltered life, cloistered with their Mother and select social groups.
Obvious to this Court is a stark contrast to the loving way they describe and perceive their Mother as being perfect and the way they describe their Father. This Court found their perception about their Father to be unrealistic, canned, unfair and ultimately cruel. What is evident to this Court is that nothing in the Father's behavior warranted the children's treatment towards him, while they lived with their Mother. Their Mother, throughout the years, has created a climate and social structure where spending time with their friends, the Mother's boyfriend of nine months, or their dog, were more exciting to the children than being with their Father. Also, any attempts by the Father to see the children became obstructive and cruel in the Mother and children's eyes. The children's sense of reality denied anything positive in their relationship with their Father which defied logical sense based on the Court's observations. The children were [*5]aligned in an unnatural manner with the Mother and their testimony mimicked their Mother's testimony almost word for word. Both children used similar stories that the Mother used on the stand to describe their Father. They denied anything positive in their relationship to an illogical extreme and this Court found no credible evidence of emotional or physical abuse or any other behavior by the Father that would warrant such a response.
The Court considered all of the testimony, the in camera interviews, and the voluminous exhibits entered into evidence. The evidence, (sometimes uncontroverted) included videotapes, text messages and emails from the parties and tape recordings of phone messages indicating a pattern of behavior by the Mother of not allowing the Father to see the children when he wouldn't pay for additional items which he wasn't required to pay for. Most important, the Court was able to observe the demeanor of the parties for their credibility.
TESTIMONY
The Father testified as to the amounts that were due under their Separation Agreement. The Father testified that pursuant to the Separation Agreement, he agreed to provide the Mother monthly payments as follows: for Equitable Distribution: $4,166.67 per month until December 15, 2020; for Maintenance: $7,708.33 per month; and for Child Support for the two children: $7,291.00 per month. An approximate total of $19,166 per month. The Father also agreed to pay for the cost of private school up to $32,000.00 per year, per child, work related babysitting costs of up to $250.00 per week, provided that the Mother provides documentation that she was working during the time payment was requested for, and also to pay for the children's extra-curricular activities with a combined cap of $7,000.00 in total, for both children. Evident from the testimony is that the Mother did not work and was able to live a luxurious and comfortable lifestyle which included multiple lavish vacations during the year, country club association memberships, luxury vehicles and designer clothes.
The Father also testified that child support was due on the first of the month, that he never was late on paying the child support amounts, and in fact he paid before the due date by either direct deposit or check.
The Father testified at great length, both on his own behalf and as the Defendant's witness, about the ways in which the Mother had systematically interfered with his relationship with the children. This Court found Plaintiff to be credible and genuine in his concern for his children. The Father alleged violations enumerated below of the Custody Order, which included lost parenting time due to the Mother scheduling play visits with their friends, failure to disclose their location when she wanted more money, or failure to permit visitation if the Father didn't provide her advance payments of child support or maintenance despite her monthly payments, or if the Father did not comply with the Mother's wishes for the children's activities during his scheduled parenting time.
The Father described a different relationship with his children that included playing sports, building Legos, reading books, doing homework, going to the movies and doing Father-son stuff. This testimony was supported by the Mother's testimony and that of the other witnesses.
During the hearing, it was evident that there was a continued and systematic behavior by the Mother to differ parenting time from the allotted times in the Separation Agreement or the prior orders of the Court. The Father described how he had petitioned in Family Court in 2016 for similar relief and that Referee Clark had issued the Custody Order on January 13, 2017. He testified that following the Custody Order in 2017, he had seen improvement in compliance and [*6]that there had been less than five (5) missed parenting sessions with the children during the first three (3) months of 2017. Thereafter, the Mother engaged in a systematic refusal to comply with the Custody Order, depriving the Father of parenting time. Plaintiff filed a Violation Petition on August 30, 2017 and then withdrew the petition, without prejudice, because the Defendant was compliant, for a while. However, once the Violation Petition was withdrawn, Defendant once again started failing to comply with the Custody Order.During the hearing, Plaintiff alleged one hundred twelve (112) violations of his permitted parenting time from January 17, 2017 to December 13, 2018. The violations continued during the hearing, despite the Court's repeated directives. Plaintiff introduced evidence with regard to the following violations to show a systematic and continued pattern of violating the Family Court's Custody Order, and the Court considered the evidence submitted during the time period commencing January 17, 2017 with regard to the instant application:
April 2, 2017: Plaintiff's parenting time was terminated about three (3) hours early.
April 4, 2017: Plaintiff's parenting time was delayed for thirty five (35) minutes because Plaintiff would not agree to give Defendant a check she had requested on April 2, 2017.
April 6, 2017: Plaintiff did not see H.K. during this scheduled parenting time. Plaintiff had gone to the house to pick up the children. Defendant lies and states that the boys are at two (2) separate houses. After prodding by Plaintiff, he finds out H.K. is actually home, and Defendant states that H.K. just doesn't want to go on the planned visitation.
April 11, 2017: Plaintiff's parenting time was delayed for one (1) hour.
April 29, 2017: Plaintiff allowed Defendant to take the children for dinner on Defendant's birthday. It was also the day of H.K.'s communion. Plaintiff was never reimbursed this missed time. Did not get the children back until 11AM the next day.
May 13, 2017: Defendant evaded Plaintiff for four (4) to five (5) hours because he wouldn't agree to purchase lacrosse gear, causing Plaintiff to miss parenting time. He did not get to exercise his parenting time until 6-7PM.
July 20, 2017: Plaintiff's parenting time was delayed about forty-five (45) minutes. He was able to keep the children an extra thirty (30) minutes at the end of his visit.
July 22, 2017: Plaintiff allowed Defendant to have parenting time with children on Saturday, July 23, 2017, during his scheduled parental access. However, Defendant failed to produce the children on Friday, July 22, 2017 and therefore, he was denied parental access for part of that weekend.
July 25-27, 2017: Defendant took the children on a second summer vacation without Plaintiff's consent, causing Plaintiff to miss both the Tuesday visitation and Thursday visitation.
August 3-5, 2017: Defendant took the children on another trip and denied Plaintiff his Thursday parenting time and weekend parenting time. She refused to return until Plaintiff gave her more money for her mortgage and Rosita (Defendant's nanny). Plaintiff did not see the children until 2PM on Saturday after he transferred additional money to Defendant's account. Defendant had called Plaintiff asking him to transfer money into her account because she didn't have money to get home. All of Plaintiff's obligations were current at the time.
August 15, 2017: Plaintiff was denied his parenting time when the parties argued about a doctor's appointment that Plaintiff was unaware of.
August 21-25, 2017: Defendant took the children on another vacation without Plaintiff's consent, causing Plaintiff to miss his Tuesday and Thursday visitation.
September 28, 2017: Defendant threatened Plaintiff with withholding the children and leaving for Florida if he did not provide the November support check. September 28th was H.K.'s birthday.
October 1, 2017: Plaintiff consented to Defendant taking the children for an hour lunch on his time, however he never got the children back.
October 5, 2017: Defendant scheduled a birthday party for H.K. during Plaintiff's parenting time without inviting him.
October 22, 2017: Defendant is upset that Plaintiff has not given the children a proper dinner and she states that the children "need a parent and not a Nazi."
December 7, 2017: Defendant requested the January support check in advance. When she was denied, she called Plaintiff disparaging names in front of the children and threatened to withhold the children until after Christmas.
March 1, 2018: A verbal altercation arose when Plaintiff did not give her the April support check in advance and Defendant became physical with Plaintiff, blocking him from leaving the house and hitting him. She then pulled H.K. from his game and made various threats.
April 7, 2018: Defendant refused parenting time to Plaintiff during his scheduled parenting time. In addition, Defendant engaged in vile language and behavior towards Plaintiff via text message throughout the day. Defendant disparaged Plaintiff in front of the children, telling them that he is a Nazi and a user and that she would never reconcile with Plaintiff. Defendant also admitted she withholds the children for money, calling the Plaintiff a "paycheck". She also told Plaintiff that he would not have the children without giving her an advance on the May payment.
April 8, 2018: Defendant again told the children disparaging things about Plaintiff. When Plaintiff tried to communicate with the children, Defendant would not allow access to them. Her behavior indicated that she did not foster a relationship with the children and the Father by [*7]blaming Plaintiff for their family being broken. She also threatened to relocate the children to the city. She again berated Plaintiff, calling him a "Nazi" and a liar.
April 13, 2018: Defendant unilaterally set up a sleepover for the children, so that Plaintiff lost his time.
April 14, 2018: Defendant again made plans for the children, so that Plaintiff was denied his visitation. She wouldn't confirm the location of the children.
April 15, 2018: Plaintiff's parenting time was terminated early.
April 17, 2018: Plaintiff denied his visitation due to not advancing a support check.
April 19, 2018: Plaintiff denied visitation again. Defendant had texted Plaintiff at 2:08 a.m. about bringing her a check. The parties were supposed to meet at a dry cleaners on the Long Island Expressway service road at 4:45 p.m. and either parent would take H.K. to Queens for Gotschee practice. Defendant didn't show, nor did she advise Plaintiff. Plaintiff drove to Queens to practice and H.K. wasn't there. Defendant had previously asked for an advance of money, which Plaintiff had denied.
May 1, 2018: Defendant unilaterally scheduled a piano lesson during Plaintiff's parenting time.
May 15, 2018: Defendant showed the children Plaintiff's "single" Facebook post at a family outing.
June 13, 2018: Father's Day. Plaintiff was entitled to Father's Day with the children. Defendant went to the Jersey Shore and demanded that Plaintiff send her money for flat tire. When he refused, she called him an abusive Nazi and said, "so you want to torture me like the Nazis tortured the Jews", referencing Plaintiff's failure to advance her money which she wasn't entitled to. (Plaintiff's Exhibit 207)
June 22, 2018: Plaintiff did not get the children for his overnight visitation.
June 23, 2018: Defendant delayed Plaintiff leaving the house with the children because she wanted to be advanced a check. Defendant said disparaging things (called him a "Nazi") about Plaintiff to the children and hit Plaintiff in the face in front of the children after Plaintiff refused to give her the check. She also threatened that she was going to take the kids off sports.
June 24, 2018: Defendant unilaterally set up a golf lesson on Plaintiff's time.
July 3, 2018: Defendant unilaterally set up a tutoring lesson for H.K. and then denied any visitation time to Plaintiff.
July 4, 2018: Plaintiff denied visitation on a holiday that is his by the agreement.
July 6, 2018: Defendant asked for an advance to pay for her taxes. Plaintiff denied her payment and Plaintiff was denied all of his parenting time.
July 7, 2018: Defendant unilaterally set up events for the children and Plaintiff was denied visitation.
July 8, 2018: Plaintiff denied all his visitation for this entire weekend.
July 12, 2018: When Plaintiff did not advance a support check, he was denied his visitation.
July 17, 2018: Plaintiff denied his visitation.
August 3-5, 2018: Plaintiff denied the entire weekend of visitation when Defendant took the children on a trip.
August 17, 2018: Defendant unilaterally made plans for children, so Plaintiff was denied visitation.
August 18, 2018: Defendant told the children that Plaintiff had a girlfriend. Defendant also refused to let Plaintiff see the children during his scheduled visitation. Plaintiff wasn't permitted to attend H.K.'s golf tournament unless he gave P.K.a check in the amount of $750.00 for Rosita, her nanny.
August 30, 2018: Defendant demanded money for October so she could buy B a plane ticket to go to college. (Plaintiff's Exhibit 247)
September 6, 2018: Plaintiff denied his visitation.
September 11, 2018: Plaintiff's parenting time was delayed with D.K., but fully denied with H.K..
September 13, 2018: Due to a lack of communication by Defendant, Plaintiff could not locate the children. After he did get their location at practice, he was denied his parenting time.
September 14, 2018: Plaintiff allowed the children to stay at Defendant's because they had friends and half-brother over at pick up time during his parenting time.
September 15, 2018: Defendant attempted to discuss payment for activities with Plaintiff in front of the children. When he refused to do so, she told the children that their Father was preventing them from doing activities. Plaintiff was denied his parenting time.
September 16, 2018: Defendant physically took H.K. from Plaintiff after his flag football game and called Plaintiff a Nazi in front of H.K.
September 17, 2018: Defendant threatened to take the children to California if Plaintiff did not [*8]agree to meet with the attorneys.
September 21, 2018: Defendant took the children to California, even though it was discussed that the children would be attending a concert as a birthday gift to H.K. by the Plaintiff that cost thousands of dollars.
September 22-23, 2018: Defendant threatened to not come back with the children absent an advance support check.
September 24, 2018: Defendant lied to Plaintiff by saying she was still in California when she was actually back in New York. She then lied to the children about Plaintiff's health and location. She told Plaintiff that the children were in California when in fact they were in school that morning.
September 25, 2018: Plaintiff was denied his parenting time. Additionally, Defendant got H.K. involved in a parental issue which led to Plaintiff being "uninvited" from his son's birthday party. The Plaintiff had not seen his children from September 16, 2018 to September 27, 2018.
September 28, 2018: Defendant would only let Plaintiff exercise his parenting time at her residence. She then caused a verbal argument in front of the children about H.K.'s birthday.
October 2, 2018: Plaintiff's parenting time was delayed to 6:10PM.
October 4, 2018: Plaintiff was not allowed to take the children (and their two friends) until Plaintiff paid for piano lessons that would occur during Plaintiff's parenting time. Subsequently, Defendant attempted to remove Plaintiff from the car and began hitting the car in front of the children.
October 9, 2018: Due to Defendant's changing of plans, Plaintiff could not bring D.K.to an event for H.K.. However, Defendant did not return home until 11:30PM that evening, so Plaintiff stayed with the children.
October 11, 2018: Plaintiff's parenting time was delayed two (2) hours.
October 12, 2018: Plaintiff was denied his parenting time.
October 13, 2018: Plaintiff was not allowed to take the children until he gave Defendant a check for various expenses. Defendant told Plaintiff that she was going to tell her son the game was cancelled because he wasn't paying the expenses.
October 16, 2018: Plaintiff was forced to execute his parenting time at the barbershop due to Defendant.
October 17, 2018: Defendant threatened to take H.K. off of the soccer team if Plaintiff did not agree to bring him to his practices three (3) times a week.
October 23, 2018: Plaintiff was denied his parenting time with H.K. because Defendant unilaterally signed him up for tennis on Plaintiff's time.
October 25, 2018: Defendant would not allow H.K. to go to soccer until Plaintiff gave her a check.
October 26, 2018: When Plaintiff refused to reissue a check to Defendant, he was not allowed to exercise his parenting time.
October 27, 2018: Plaintiff was denied his parenting time.
October 28, 2018: The release of the children was conditioned on Plaintiff giving Defendant money.
October 31, 2018: In a parent-teacher conference, Plaintiff was made aware of both children's excessive lateness record and absence record.
November 1, 2018: Plaintiff was delayed parenting time with H.K. until after D.K.'s practice at 6:55PM.
November 6, 2018: Defendant unilaterally set up tennis lessons for H.K. during Plaintiff's parenting time, and this continued a weekly basis.
November 7, 2018: Defendant refused to disclose medical information about H.K. to Plaintiff.
November 12, 2018: Defendant grounded H.K. and would not allow him to go to soccer absent an advance support check from Plaintiff.
November 13, 2018: Defendant would not disclose the location of the children. Plaintiff subsequently lost his parenting time with H.K..
November 15, 2018: Defendant would not disclose the location of the children. She then threatened to take the children to Florida absent an advance support check.
November 18, 2018: Defendant instructed D.K.to not speak to Plaintiff at H.K.'s soccer game.
November 19, 2018: Defendant wanted money to purchase a Jeep. Defendant took the children to Florida without Plaintiff's consent, causing Plaintiff to miss his Tuesday visitation and the entire weekend visitation. Plaintiff missed visitation on November 20, 2018, November 23, 2018, November 24, 2018 and November 25, 2018.
November 20, 2018: Defendant informed Plaintiff that she would be taking the children away again during President's Week, which was Plaintiff's time.
November 27, 2018: Plaintiff was denied his parenting time after he was unable to locate the [*9]children.
November 29, 2018: Defendant refused to allow Plaintiff to exercise his vacation time with the children and booked a trip on his time.
December 4, 2018: Plaintiff was denied his parenting time.
December 6, 2018: Plaintiff was denied his parenting time. Defendant began videoing the children asking them which parent they wanted to stay with. Defendant had arrived home with the children and their friends and she asked the children who would they rather go with, their friends or their Father.
December 7, 2018: Defendant unilaterally set up sleepovers for the children on Plaintiff's time.
December 11, 2018: Plaintiff was denied his parenting time when he would not give Defendant reimbursements absent documentation.
December 13, 2018: Plaintiff was denied his parenting time.
In addition to these violations, the Plaintiff testified that he had concerns regarding both children's attendance at school. He testified that the children were often on vacation or home with their Mother rather than school. He also wanted his sons to continue with soccer and Gotschee and that they had missed numerous sessions of both. He also believed that H.K. was a healthy child, except for recurrent croup. He recognized that his son had been in the emergency room on some occasions, but felt that Defendant would administer steroid medication unnecessarily and was over sensitive about his condition.
Plaintiff testified that he works as a surgeon approximately forty (40) hours a week, but is able to set his own schedule as long as he's productive. During the trial, Plaintiff was able to continue working while appearing for over forty (40) days of testimony.
TESTIMONY- P.K.
Defendant, P.K., testified that in the beginning of their separation the parties had an amicable relationship and they would agree and work on suitable schedules that did not necessarily follow the Separation Agreement or Custody Order schedule. She testified that Plaintiff was always welcome in her home and could come and go as he pleased. In addition, she stated that Plaintiff was always welcome to come over for the holidays without an invitation. She introduced evidence showing that he was at her home on numerous occasions. However, what is also evident is that Plaintiff was always welcome to engage with the children on Defendant's terms, including on holidays. Defendant admitted that she told the children that their Father was not interested in spending time with them, when in fact he was trying to see them. She also admitted that she would schedule play dates for the children during his parenting time. She also [*10]testified that if Plaintiff didn't do what she wanted him to do during his parenting time, she would not permit him to see the children. Defendant believed that Plaintiff would want the children to go on their playdates, rather than spend time with him during his parenting time and he would rather spend time with them at another time. She also admitted that she believed that when Plaintiff was not working that he would want to be with his kids. She also testified that she threatened to tell the kids various things about their relationship but stated that they were only threats and that she never got the children involved.
Defendant also admitted to calling Plaintiff a Nazi but stated that there was a basis for her claim.
Defendant further believed that Gottschee was another issue between the parties. She claims that she was not late to practice more than twice, while Plaintiff claims that due to her multiple lateness, H.K. was taken off the team. She stated that most times that H.K. did not go to soccer practice was because of her concern for his health and recurrent croup.
Defendant offered conflicting testimony. At moments she applauded Plaintiff as a good Father, and at other times she testified that Plaintiff was not capable of caring for the children. Based on the credible evidence presented, this Court found no basis for such allegations.
Defendant believes that H.K. has a myriad of health concerns and issues, specifically, a dust mite allergy. Defendant also questioned whether the Father would be able to provide for the children's nutritional needs and offer them advice regarding hygiene or provide an environment that is sensitive to H.K.'s medical condition. She testified that she has gone to extreme lengths, including removing any rugs, making sure that dust is cleaned and installing humidifiers in every room so that H.K. will not be affected by his allergy. She alleged that Plaintiff is insensitive to H.K.'s health issues and has failed to do the same.
Defendant offered conflicting testimony as to H.K.'s involvement in Gotschee. At moments she was excited for her children to participate in Gotschee, while at other moments she was using it as collateral to further her objectives. She argued that H.K., who had a growth delay, should not be playing soccer two (2) years above his age level.
The Defendant was permitted to testify in narrative form and described her parenting style at length, often diverting and not addressing the alleged violations, despite being given multiple opportunities to do so.
TESTIMONY- DR. L
Dr. L testified as a witness for Plaintiff pursuant to a judicial subpoena. Dr. L a board-certified clinical neuropsychologist. She testified that she had seen H.K. on October 31, 2018. Defendant had made an appointment for H.K. because she was concerned about H.K. being bullied. Defendant had stated that H.K. had told her that he did not want live, which prompted [*11]this visit. Dr. L stated that H.K. did not seem distraught, but more concerned about his Mother. He was upset about bullying but expressed that it was getting better, and he expressed hope about the situation. Dr. L found it appropriate for Defendant to bring the child in for an assessment and recommended psychotherapy and anti-bullying education initially on a weekly basis. Defendant had a follow up visit on November 8, 2018 scheduled, but did not show. She had another visit on November 14, 2018. Defendant failed to appear with H.K. on a visit scheduled for December 11, 2018.
Dr. L testified that H.K. appeared to be normal, but he was very concerned about his Mother, who was crying. She observed him comforting her by stroking and hugging her while she was tearful. Defendant also discussed what the other parents said regarding bullying in front of H.K. Dr. L recommended that Defendant decrease the intensity of her emotional reactions while in front of H.K. and to limit discussions about adult matters in his presence.
Plaintiff had not been apprised that H.K. was seeing a therapist until he received the bill.
TESTIMONY- R.P.
R.P. testified on behalf of Defendant. This Court observed the demeanor of the witness and found her testimony to be strained and uncomfortable and this Court finds this witness to be an interested witness, therefore, it will give R.P.'s testimony the appropriate weight in its decision. R.P. testified that she has worked for P.K. for the last five (5) years. She testified that she would cook, clean, watch the children, clean their clothes, play games with the kids and bring them to their practices when the Defendant had appointments. She testified that Defendant was strict about dusting and her housekeeping.
She testified that she observed a close, protective relationship with regard to Defendant and H.K., that H.K., D.K. and B are very close, that the boys play piano and enjoy it and that she's assisted the Mother in putting together soccer goals for practice. She testified that in the fall she put humidifiers for easier breathing of H.K. in each corner of the house.
R.P. testified that the Defendant did not work but was studying for her board exams.
She also testified she would prepare the boys to be picked up at 5:30 p.m. by their Father and that when he would pick up the boys for visitation he would wait outside. R.P. stated that the Father would never enter the home and that the children would resist going with him. R.P. testified that Defendant would tell the children that they must go.
TESTIMONY- DR. J.S.
Dr. J.S., a board certified pediatrician for the children, also testified as to any health issues of the children. He has been practicing for over forty-one (41) years. He testified that both children were healthy, but that H.K. had some issues with croup. He testified that D.K. was well [*12]adjusted emotionally, and H.K. was emotionally stable. He further testified that he had not seen inappropriate behavior from either boy. He testified that H.K. would come in more often with bouts of spasmatic croup, and that he would give H.K. Prednisone, an oral steroid which was the standard of care. He did testify that the steroid could affect the pituitary gland when there is extended use. He stated that Defendant did not bring the children unnecessarily and he did not feel at any point that Defendant was not following his recommendations.
Dr. J.S. testified that at some point H.K. felt tired and he ordered blood work for fatigue, pulmonary medicine and allergy/immunology. He testified that H.K. was referred to Dr. J who had a specialty in pediatric allergy and immunology. Dr. J provided Dr. J.S. with a report which indicated an allergy to dust mites, which could be minimized by pulling up rugs and vacuuming frequently. When asked if a child has a history of croup would there be any reason to be cautious of a dust mite allergy, he responded that it could exacerbate the croup. Interestingly, Defendant withheld the identity of Dr. J, despite repeated requests by Plaintiff.
Dr. J.S. also indicated that he had never met Plaintiff, but they had one conversation on the phone before he took H.K. to the emergency room.
In conclusion, Dr. J.S. did not find the children to be overscheduled and did not recommend against playing soccer. He further stated that a dust mite allergy is common. Dr. J.S. testified that such an allergy would be of concern only if H.K. had symptoms that would keep him from being a kid and keep him from his daily activities, such as running around, playing outside, soccer or piano. He also testified that he sees no reason that H.K. should not be able to play soccer on a daily basis and he has not found that his activities contribute to his croup.
Dr. J.S.'s testimony confirmed that the children should engage in team/group activity at least one (1) hour per day.
TESTIMONY- S.M.
Ms. S.M. testified that she has known the boys for five (5) years, since her son Quinn started pre-K with D.K.in 2014 at Friends Academy. She testified that she has three (3) children: Danny, age 20; Jack, age 18; and Quinn: age 9. She further testified that all her sons graduated from lower, middle and upper school of Friends Academy. S.M. testified that she would see the parties interact because D.K. and Q.M. are on the same flag football and basketball teams and at birthday parties.
S.M. testified that she observed Defendant take the boys to D.K.'s basketball games (her husband was the coach in 2018) and H.K. would sit with her in the stands. She observed when Plaintiff would take D.K. to his basketball games and would sometimes see Plaintiff instruct H.K. to dribble the ball around the court during D.K.'s games. She testified that Plaintiff has picked up the boys from her house for a play date. She testified that she has observed Plaintiff firmly correct H.K. with sports. She testified that at one of the two playdates the boys had at her F Lane home she played basketball with the boys and Plaintiff. She testified that she was in the middle of a game with D.K. and Q.M. when Plaintiff came with H.K. and a friend and they joined in the game. Ms. McCooey further testified that during that game Plaintiff corrected H.K. firmly in front of his friend and that she had empathy for H.K. in that she may have handled it [*13]differently.
She testified that she was friendly with Plaintiff and Defendant through the children. She stated that she had seen Defendant pick up the children, occasionally at drop off and at parent council meetings and health and wellness meetings. She had not observed Plaintiff at any of those meetings. She testified that in 2017-2018 she had observed Plaintiff give instruction to H.K. at sporting events but not to D.K. She has observed Defendant at pick up at the school. She observed a loving relationship between her and the children. She further testified that she believed Defendant was running a business from her home and that Defendant decided to "blend fitness with medicine" and to use social media to engage audiences.
APPLICABLE LAW
To warrant modification of an existing court-sanctioned child custody arrangement, there must be a showing that there has been a substantial change in circumstances, such that the modification is required to protect the best interest of the child. (Matter of Cortez v. Cortez, 111 AD3d 717 [2d Dept 2013]; Matter of Kazel Wagner v. Villegas, 162 AD3d 677 [2d Dept 2018]. The general rules regarding a change of custody have been long established in New York. The paramount consideration which must guide a custody determination is the best interests of the child. (Friederwitzer v. Friederwitzer, 55 NY2d 89 [1982]). As there are no absolutes in assessing best interests, the Court must undertake a thorough, thoughtful, and comprehensive examination of the totality of circumstances specific to the case at hand to discern best interests. (Eschbach v. Eschbach, 56 NY2d 167 [1982]). In so doing, several factors should be weighed. These factors include, but are not limited to, the relative fitness of the parents, any defiance of the legal process, the quality of the home environment, the parental guidance afforded the child, the child's desires, the parent's financial status, as well as the parent's ability to provide for the child's emotional and intellectual development. (Klat v. Klat, 176 AD2d 922 [2d Dept 1991]). The Court has also considered the willingness of each parent to foster a relationship and to assure meaningful contact between the children and the other parent. (Tori v. Tori, 67 AD3d 1021 [2d Dept 2009]). As part of this process, it is incumbent upon the Court to weigh and measure the evidence and the credibility of each witness. The evaluation of a witness' credibility is strictly within the Court's purview, as it is a matter of the Court's discretion whether and to what extent to find a witness credible. (Varga v. Varga, 288 AD2d 210 [2d Dept 2001]). Another proper and relevant consideration is the effect that an award of custody to one parent might have on the child's relationship with the other parent. (Bliss v. Ach, 56 NY2d 995 [1982]).
With regard to the Father's right to visitation herein, the custodial parent has a duty to protect and to nurture the child's relationship with the noncustodial parent, and to ensure access by the noncustodial parent. (J.F. v. L.F., 181 Misc 2d 722 [Family Court, Westchester Cty, 1999](citing, Daghir v. Daghir, 82 AD2d 191 [2d Dept 1981]).
In Young v. Young, 212 AD2d 114, 115 [2d Dept. 1995], the Appellate Division, Second Department stated that:
"The natural right of visitation jointly enjoyed by the noncustodial parent and the child is more precious than any property right" (Resnick v. Zoldan, 134 AD2d 246, 247, 520 N.Y.S.2d 434) and that "the best interests of the child would be furthered by the child being nurtured and guided by both of the natural parents" (Bostinto v. Bostinto, 207 AD2d 471, 472, 616 N.Y.S.2d 58). Indeed, a custodial parent's interference with the relationship between a child and a noncustodial parent has been said to be 'an act so inconsistent with the best interests of the child [*14]as to per se raise a strong probability that the offending party is unfit to act as a custodial parent' (Maloney v. Maloney, 208 AD2d 603, 603-604, 617 N.Y.S.2d 190).
The Second Department has consistently held that a custodial parent's deliberate interference with the relationship between the children and the noncustodial parent, is an act so inconsistent with the best interests of the children as to per se raise a strong probability that the custodial parent is unfit to act as such. (see, Lichtenfeld v. Lichtenfeld, 838 NYS2d 660 [2d Dept. 2007]; Young v. Young, supra).
FINDINGS AND DECISION
In reaching a determination in this matter, the Court has considered the trial evidence, which included the lengthy testimony of the parties, along with the other evidence admitted. The Court also considered the in camera interviews of H.K. and D.K., which were accompanied by the Attorney for the Child, as well as the Attorney for the Child's position, reasoning, and recommendation. The parties had been working with a joint legal custody order with residential custody to the Mother which has proven not to work. Therefore, this Court finds that there has been a substantial change in circumstances.
In this case, the Mother's interference with the relationship between the children and the Father has been in the form of outright denials of visitation, sometimes for money, by making the children unavailable at the scheduled time. In addition, from the Court's observations it included a more subtle, manipulative form of interference, which has created damage to the emotional psyche of the young children as to how they respond to the non-custodial parent.
Most notable is that Defendant did not rebut most of the alleged violations and any proffered rebuttals are unacceptable to this Court. Of paramount consideration is what is in the best interests of the children viewing the totality of the circumstances. As the record demonstrates, Defendant has done nothing to promote the relationship between the Father and children. To the contrary, Defendant has completely undermined their relationship, often calling Plaintiff a "paycheck" and "Nazi" in front of the children. It is also evident to this Court that she has exhibited bouts of aggressive, violent behavior in front of the children. In her violations, it was evident to the Court that she was putting her needs in front of the needs of the children, often using them to further her own economic benefit. Most disheartening was her willingness to share information with the children that she knew would make them cry or damage their emotional wellbeing in order to further her own objectives with Plaintiff, or to hurt Plaintiff. The Father has continued to fight to have access to his children, despite the clear attempts by the Mother to undermine him. The Court recognizes that the Father is working on his parenting skills. However, what the Court finds noble is his willingness to put aside his wishes to see his children when a conflict would potentially occur in front of them. It is evident that Plaintiff was never willing to let the children witness a struggle and instead retreated in the face of battles instigated by Defendant.
This Court finds that if the children were to be left with the Mother, they would have no relationship with their Father given the Mother's constant teaching that it is more fun to spend time with friends or that the Father was too stern or that he did not want to spend time with his children. It is evident that the children aim to please their Mother and in doing so have adopted her beliefs regarding the Father. Even though the children's wishes are a factor to be considered, this Court finds they are not determinative. (Young v. Young, 212 AD2d 114 [2d Dept 1991]).
After observing the witnesses, this Court finds that permitting the Mother to retain custody of the children will only result in the children not being able to maintain a relationship with their Father, as she will continue to act in defiance of the Court's orders. This Court seeks to restore normalcy to the children's lives and give them a chance to have a better childhood by learning that relationships are not measured by what you have, where you go or the luxurious things you are able to do, but rather the quality time you spend with individuals.
It is clear from the record that the Plaintiff has provided for his children since the separation and will continue to do so in a home environment that will allow them to thrive. The children have resided with the Mother most of their life. The Court is mindful that this is an important factor, but also it cannot be the decisive factor. During the pendency of this hearing the Court observed and heard testimony that the children were engaging in behaviors that would likely be detrimental to their emotional wellbeing in the long term. As such, the children will benefit from a change in custody in that they will have emotional and physical stability and a relationship with both parents.
The Court has heard the testimony and finds that Plaintiff was well reasoned in his decisions regarding H.K.'s sports activities as confirmed by Dr. Sheehy's testimony that he saw no issue with H.K. continuing to play soccer.
In light of the totality of the circumstances, the Court concludes that it is in the best interests of the children that the Father be awarded sole legal and residential custody. H.K. and D.K. are handsome, smart, resilient young boys who clearly love their Mother and will continue to maintain that relationship with her. It is clear to the Court that the Father will foster and encourage that relationship with their Mother while working on his own relationship with his children. Even though the children may be angry or disappointed, this Court believes that in the long run this is what is in their best interests, to have a relationship with both parents.
Based on the foregoing, including all of the credible evidence, the Attorney for the Children's recommendation, as well as the in camera interviews, and having considered the relevant factors and assessed the totality of the circumstances, it is:
ORDERED, that the Father, E.K. shall have sole legal and residential custody of the children, H.K. (DOB: 9/28/2008) and D.K. (DOB: 5/5/2010); and it is further ORDERED,
PARENTING TIME
The Mother shall be entitled to parenting time with the children every other weekend, from Friday pickup at school, until Sunday 8 p.m., drop off at the Father's residence, commencing January 17, 2020.
If a major Monday holiday (as defined below) falls on a Monday immediately following the Mother's weekend, she shall be entitled to keep the children through the major Monday holiday, and shall return the children to the Father's home at 7 p.m. on the Monday holiday evening. Major Monday Holidays are: Columbus Day, Martin Luther King Jr. Day, Memorial Day, Labor Day, Other holidays as agreed upon by the parties.
The Mother shall be entitled to parenting time two (2) nights every week, specifically Monday and Wednesday from after school to 8 p.m., drop off at the Father's residence. On said days, the Mother shall be responsible for ensuring that the children attend their after-school activities and extracurricular activities, and that they complete their homework. The Defendant is directed to ensure that the children reasonably complete their homework during the Defendant's parenting time, to deliver all necessary school materials to Plaintiff at the end of her parenting time, and to communicate in writing the status of all homework, projects and reading [*15]assignments.
Commencing with the 2019/2020 school year, and then every other school year thereafter, Mother shall be entitled to parenting time during the following school breaks:
Winter Vacation
Christmas Break
Said parenting time shall be from after school on the last day of school to 7 p.m. on the last day of the break, pick up and drop off at Father's residence.
Commencing with the 2020/2021 school year, and then every other school year thereafter, Mother shall be entitled to parenting time during the following school breaks:
Spring Vacation
Thanksgiving Break
Said parenting time shall be from after school on the last day of school to 7 p.m. on the last day of the break, pick up and drop off at Father's residence.
July 4th/Independence Day Holiday
Commencing with the 2020 calendar year, and every other July 4th thereafter, the Mother shall be entitled to parenting time with the children from 10 a.m. to 10 p.m. In exercising her parenting time, the Mother shall collect the children from the Father's home at 10 a.m. and return the children to the Father's home at 10 p.m.
Summer Vacation
Commencing with the summer of 2020, the Mother shall be entitled to parenting time with the children every year during school summer vacation for two (2) consecutive weeks during June/July and two (2) consecutive weeks during August. In exercising her parenting time, the Mother shall collect the children at 10 a.m. from the Father's home at the beginning of the parenting time and return the children at 7 p.m. to the Father's home at the end of the parenting time. The parties shall submit their proposed vacation dates in writing to the other parent on or before May 1st of that year. If either parent's proposed vacation dates conflict, the Mother shall have precedent over the proposed vacation dates in odd years and the Father shall have precedent over the proposed vacation dates in even years.
The Father shall be entitled to parenting time with the children on Father's Day and on his birthday each year from 10 a.m. to 8 p.m.
Mother shall be entitled to parenting time with the children on Mother's Day and her birthday each year. Father will drop off the children at 10 a.m. at Mother's home and pick the children up at 8 p.m.
The parties shall be permitted to make plans for the children to celebrate their birthdays on their own time. On the child's actual birthday, the Mother shall be entitled to see the children (if the Mother wishes to see both) for a period of three (3) hours between noon to 6 p.m. Mother shall give notice of her preferred three (3) hour window in writing, one month prior to the birthday.
Such other parenting time as the parties agree to in writing signed by both parties.
ORDERED that the children shall attend therapeutic therapy with a therapist familiar with and experienced in treating cases involving parental interference, that the therapist be approved by the Attorney for the Child, that the parties cooperate with the children's therapy and participate in such therapy to the extent recommended by the therapist and that both parties participate in their own individual therapy, if recommended.
ORDERED that neither party shall make any derogatory comments about the other party in the presence of the children or permit any third party to make any derogatory comments about the other in the presence of the children. Neither party shall make any derogatory comments about the other on any internet websites or social networking sites. Neither party shall discuss issues with the children or make decisions with the children before discussing the issue(s) with the other parent nor shall they use the children to pass messages or items to the other party; and it is further
ORDERED that each parent shall be entitled to complete, detailed information from any pediatrician, general physician, dentist, consultant or specialist attending or treating the children of the parties for any reason whatsoever and to be furnished with copies of any reports given by them, or any of them, to the other parent; and it is further
ORDERED that each parent shall be entitled to complete, detailed information from any teacher or school giving instruction to the children, or at which the children may attend, and to be furnished with copies of all reports given by them, or any of them, to the other parent. Each party shall notify the other of any and all teacher conferences or school counseling sessions or meetings involving the children which are brought to his/her attention, and each party shall have the right to be in attendance at such meetings (with the exception of counseling sessions, unless such parental attendance is at the specific request of the counselor); and it is further
ORDERED that each party shall be notified of any and all teacher conferences or counseling sessions or meetings involving the Children as well as all school functions, extracurricular activities, athletic activities, lessons, school or camp events, or other organized activity (including but not limited to visiting days, open houses, school nights, plays, performances, games, honoring ceremonies and graduations) and each party shall have the right to be in attendance only at school functions, school or camp events, visiting days, open houses, school nights, plays, performances, games honoring ceremonies and graduations; and it is further
ORDERED that on all occasions when a party takes the children, or any of them, on trips or vacations, the Father or the Mother, as the case may be, shall provide reasonable advance notice of said trip or vacation to the other party and shall furnish the other party with all relevant information covering said trip or vacation, including destinations, airline flight information, departure and arrival dates and times, name and address of accommodations and a contact telephone number and shall permit reasonable telephone access to the child by the other party during such trips; and it is further
ORDERED that no trip or vacation shall interfere with the children attending school or their required extracurricular activities or athletic activities.
ORDERED that both parties shall comply with the requirements of the "TWO-PARENT PASSPORT CONSENT REQUIREMENT" (Section 236, Public Law 106-113), to wit: In order to secure a passport for the within child/children, both parties must be present for this application or the absent parent must consent in writing. In the event the Mother makes such an application, the Father agrees that he shall cooperate by executing any and all forms necessary for the securing of a passport for said child/children; and it is further
ORDERED that the Defendant/Mother shall have visitation with the children at such other and different times as the parties may hereafter agree; and it is further
ORDERED that the Plaintiff/Father and Defendant/Mother shall be entitled to reasonable daily telephone contact with the children when the children are with the other parent for one period not to exceed fifteen (15) minutes per day; and it is further
ORDERED that the Plaintiff/Father shall hold the Children's passports. Neither party shall travel with the children to a country that is not a party to the Hague Convention. Each party must participate with respect to obtaining passports on behalf of the children. Neither party may travel outside the United States without the written notarized consent of the other party, such consent may not be unreasonably withheld; and it is further
ORDERED that all child support payments are terminated effective December 31, 2019.
Furthermore, Plaintiff's request for attorney's fees is DENIED. Defendant's cross-motion is DENIED in its entirety.
The foregoing constitutes the Decision and Order of the Court.
Dated:January 7, 2020
Mineola, NY
____________________________________
HON. HELEN VOUTSINAS
Justice of the Supreme Court
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