A.S. v N.S.

[*1] A.S. v N.S. 2020 NY Slip Op 50116(U) Decided on January 31, 2020 Supreme Court, New York County Dawson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 31, 2020
Supreme Court, New York County

A.S., Plaintiff,

against

N.S., Defendant.



305910/2019



Attorney for the Plaintiff- Michelle Weinberg, Esq.

Attorney for the Defendant- Judy White, Esq. and Michelle Spector, Esq.

Attorney for the Children- Dawn Cardi, Esq.
Tandra L. Dawson, J.

Defendant N.S. (hereinafter the "Father") filed an Order to Show Cause on January 22, 2020 seeking an order: (1) that the Plaintiff A.S. (hereinafter the "Mother") be supervised while having access to the parties' newborn in the hospital and pay for the costs of the supervision; (2) granting the Father temporary custody of the baby upon birth subject to court ordered supervised parental access rights for the Mother pending a final custody determination; (3) order that the baby be discharged to the Father upon the baby's discharge from the hospital; and (4) issuing a temporary order of protection in favor of the parties' baby upon the baby's birth directing the Mother stay away from the baby except for court ordered supervised parental access.

During a court conference on December 18, 2019, counsel first raised issues related to the unborn baby. The court instructed the Father's attorney to immediately file an order to show cause related to these issues so that it could be fully briefed prior to a hearing, which was scheduled in advance of the receipt of the motion for January 29, 2020 in an abundance of caution given the baby's birth was anticipated in February. However, counsel for the Father did not file the instant order to show cause until January 22, 2020—seven days prior to the scheduled hearing, which did not afford enough time to allow for the motion to be fully briefed.

To compound matters, the Mother gave birth to the baby, XXX (DOB 1/XX/2020) (hereinafter "the Child")[FN1] , early, necessitating an emergency conference. During the conference the court issued a short form order on January 23, 2020 ("Short Form Order") ordering that, pending hearing, it is consistent with the Child's best interests to go home from the hospital with the Mother. The court also ordered that the parties will split time (50/50) with the Child [FN2] so that the Child will have the opportunity to bond with each parent and his two siblings. The court [*2]ordered that the Mother not be alone with the Child and that the baby nurse hired by the Mother (and trained by CFS's B.T.) was to be present with the Mother whenever the Child is in the Mother's care.

The Short Form Order dated January 23, 2020 resolved prongs (1) and (3) of the Father's Order to Show Cause. The hearing on January 29, 2020 [FN3] to determine the issue of temporary custody of the Child and whether a temporary order of protection should be entered against the Mother and in favor of the Child proceeded. However, the court is mindful that counsel for the Mother and the Attorney for the Child did not have the opportunity to submit opposition to the Father's motion and oral argument is scheduled for February 20, 2020. The unusual and unique circumstances of this case, coupled with the testimony below, required modification of the access schedule set forth in the Short Form Order immediately pending a full custody hearing which is to be scheduled on this motion's return date.

Fact-Finding

Dr. T.G.[FN4]

Dr. T.G. was called by the Attorney for the Children. Dr. T.G. testified about her education, training and background. (AFC-Exh. 2- Expert Aff. and CV) Dr. T.G. previously testified as an expert in family and criminal court on issues related to child abuse and pediatrics. After voir dire by the Father's attorney, Dr. T.G. was deemed an expert in the field of pediatrics.

Dr. T.G. is the pediatrician for all three of the parties' children. She has been caring for O.S. since he was 15-months old and L.S. and O.S. since birth. Dr. T.G. has known the Mother for many years and treated the Mother's younger sibling. Dr. T.G. has known the Father since O.S. became her patient, and she has met and spoken with the Father many times. She saw the Child twice since his birth. The first time she saw the Child was with the baby nurse and the maternal grandmother. The Mother was available by the phone during the visit. Dr. T.G. believes that the Mother did not personally attend as there was no court order and the Mother was concerned that if she attended she would be violating a court order. This past Monday, she saw the Child with the Mother and baby nurse while the Father was on the telephone.

Dr. T.G. testified that she believes it was important for the Mother to be present to discuss breastfeeding as it can be difficult during the first few months of a baby's life and she wanted to see if it was going well. She testified that the Child is doing well and has gained weight since being discharged, which is unusual as that goal is generally reached at 7-10 days. Dr. T.G. testified that ideally, she would like both parents at the Child's appointment.

Dr. T.G. testified that during the first 3-4 days after giving birth, colostrum is secreted from the Mother's breasts. Colostrum is full of nutrients, immunoglobulins and antibodies that are highly beneficial for a newborn. Dr. T.G. testified that she relied on the American Academy [*3]of Pediatrics (AAP) recommendation of exclusive breastfeeding for the first six months of a baby's life, and up to a year (with food) and beyond as being mutually beneficial for mother and child. She testified that the evidence is overwhelming as to the health benefits of breastfeeding, which include a significant decrease in respiratory infections, gastrointestinal illness, Sudden Infant Death Syndrome (SIDS), asthma, childhood leukemia, obesity [FN5] and hospitalization. Dr. T.G. testified that L.S. was breastfed for the first five months of his life. Dr. T.G. testified that ideally the Mother should be in close proximity to the baby and the baby should be allowed to feed on demand; skin to skin contact is important as the baby is looking for the Mother's smell.

Dr. T.G. testified that the current schedule is a setup for breastfeeding to fail as expressing breastmilk for the first 2-3 months of life generally leads to decreased milk production that makes breastfeeding usually not sustainable to six months of age. Dr. T.G. testified that it will be very difficult for the Mother to sustain her milk supply given the current schedule. She testified that it is preferable for a mother not to pump for the first months of the baby's life, and if an event makes that difficult, to not to miss more than one feeding. She opined that twelve hour stretches of not nursing is problematic for establishing an efficient feeder and sufficient milk supply.

On cross-examination, Dr. T.G. testified that she spoke with the Father before and after the Child's birth and they discussed the introduction of formula if exclusive breastfeeding was not possible. The Father did not discuss attachment issues or what care he would have in the home with Dr. T.G.. Dr. T.G. testified that about 90% of the mothers in her practice breastfeed, and that the percentage reduces as time goes on to approximately 50% at six months of age. She testified that babies who are bottle fed breastmilk are getting the same nutritional benefit as feeding at the breast, with some exceptions that in her opinion are not minor.

Dr. T.G. testified that she knows that the Mother has supervised visits with O.S. and L.S. and at one point was arrested. She was also aware that the Father videotaped the Mother but she has not seen those videos. Dr. T.G. was then shown one of the videos, where L.S. was about one month old that was videotaped around December 20, 2018. (Court Exh. 1 [FN6] ) After viewing the [*4]video, Dr. T.G. testified it was concerning as it portrayed an overwrought mother who was having a hard time feeding her son and was behaving inappropriately. While she opined that it showed psychological issues, she did not believe O.S. to be at risk. Dr. T.G. testified that if a mother has been diagnosed with anxiety and depression it is more difficult for a mother to breastfeed and that the newborn may not feed as well. At the time the video was taken, Dr. T.G. was aware that O.S. was seeing a number of specialists and that the Mother was stressed. O.S. would store food in his mouth and there was concern that he would choke or vomit. Dr. T.G. testified that L.S. was vomiting at five months old and to the best of her recollection he was diagnosed with reflux and was prescribed medication. The Father discussed the Mother's mental well-being with Dr. T.G. and he told her that he was concerned that O.S.'s feeding issue created stress at home and anxiety and stress. Dr. T.G. testified that as of today the Child is being breast and bottle-fed, is not having issues latching on and is gaining weight but it did not change her opinion that the current schedule is a setup for breastfeeding to fail.

B.T.

The Attorney for the Children called B.T.. Ms. B.T. is the XXXX of Comprehensive Family Services (CFS) and has been for the past 7 years. Her responsibilities include training, hiring new staff and she also handles her own cases. Ms. B.T. also has a background in child and sex abuse and described her education and employment background. CFS provides social work services to court-involved families. Ms. B.T. testified that CFS was assigned to the Smith family in August 2019 to supervise the parenting time between the Mother and O.S. and L.S.. In 2018, CFS began to offer a nanny supervision service that was created in response to court requests seeking solutions for families in conflict; the program offers assistance in selecting, vetting, training and supervising childcare workers. (AFC-Exh. 4) Pursuant to this court's order dated January 23, 2020, CFS was directed to train and supervise the Child's baby nurse [FN7] . (AFC-Exh. 5)

In terms of screening and supervising the Mother's baby nurse, Ms. B., provided Ms. B.T. with 5 references, and she spoke with two. Ms. B.T. also spoke with Ms. B. about her experience, how many families she's worked with, flexibility and other issues. As a result of those conversations Ms. B.T. testified that she agreed to work with Ms. B.. Ms. B.T. created a list of responsibilities and guidelines that she gave to Ms. B.. (AFC-Exh. 6) Ms. B.T. testified that she discussed each of the behaviors in the document with Ms. B. and that any concerns or observations would need to be reported to Ms. B.T., such as any increase in the Mother's frustration or decrease in tolerance level, the Mother struggling with caring for the baby, changes in eating/sleeping patterns for both the Mother and the Child, mood swings, rapid speech and racing thoughts. In addition, she spoke with Ms. B. about feeding issues, and that hyper-focus on feeding needs to be reported to Ms. B.T.. She testified that she gave Ms. B. examples of mood swings, rapid speech, racing thoughts, uncontrolled periods of crying and told her that any of these observations need to be reported right away, in addition to anything out of the ordinary she observed given her 20 years of experience. After having these conversations with Ms. B., Ms. B.T. found her to be a good candidate for the baby nurse.

Ms. B.T. also gave Ms. B. an information sheet as to post-partum depression as it is her understanding that this is an area of concern for the Mother. She also described symptoms of post-partum depression to Ms. B. to look for and if observed, Ms. B.T. instructed her to immediately remove the baby from the Mother's care and contact Ms. B.T. on her cell phone, which she has with her all day. Ms. B. was also told to speak with the CFS workers that are in the home should an issue arise. Ms. B.T. testified that she would immediately notify the court if Ms. B. informed her of an issue, as well as instruct Ms. B. to protect and safeguard the Child.

Ms. B.T. testified that she plans to drop-in on the Mother and Ms. B. when her staff is not there. Ms. B.T. testified that she went to the Mother's home yesterday morning and observed the Mother and Ms. B. in the home for just under an hour. Ms. B. was instructed to not leave the Child alone with the Mother, and Ms. B.T. observed where she sleeps, which is in a room that has a crib for the Child. If Ms. B. needs to go to the bathroom, she must not leave the baby alone with the Mother. If the baby is sleeping, Ms. B. was instructed that she can leave the baby in the crib while she uses the bathroom, as it is in the crib's line of sight. Ms. B.T. also instructed Ms. B. that only she would have the ability to terminate her services. CFS staff will also report their observations to Ms. B.T..

Ms. B.T. also told Ms. B. that one of her primary duties is to provide breastfeeding support to the Mother and care for the Child. Ms. B.T. testified that she provides reports to the court as directed. Ms. B.T. spoke with the Father and explained the nanny supervision program and gave him the opportunity to ask any questions.

On cross-examination, Ms. B.T. testified that she met Ms. B. on the day after the baby was born (January 22, 2020) and gave her some training for about an hour while the maternal grandmother was present. Ms. B.T. approved Ms. B. later that day after she spoke with two of her references. Ms. B.T. testified that she left for vacation on Thursday (January 23, 2020) and met with Ms. B. again yesterday (January 28, 2020). During the "drop-in" visit, the doorman called the Mother to announce Ms. B.T.'s arrival.

Ms. B.T. testified that she did not train any baby nurses in 2019 and the program did not exist in 2018. She testified that Ms. B. is the first baby nurse she's trained, but the training is the same as what she provides to other workers. She testified that the only difference is in the tasks, such as changing diapers for a baby vs. an older child, etc. Ms. B.T. testified that in her administrative role at CFS she has hired many social workers.

Dr. H.G.

The Attorney for the Children called Dr. H.G.. Dr. H.G. studies the effect of early adverse and protective life experiences on the health and development of children. (AFC-Exh. 10) She has not testified in any court before or been deemed an expert by any court. She testified that she is the recipient of an 11-million-dollar grant by the National Institute of Health to study the effect of early life experience on health and development. She has also recently published a book, which she testified is the first scholarly text on this issue that has created a new interdisciplinary field.

Dr. H.G. is a developmental psychologist who studies how children develop and ways to maximize good outcomes and minimize negative consequences. She testified in detail about her background, research projects and articles she published. The court deemed Dr. H.G. to be an expert in developmental psychology with an expertise in early infant mental health, ages zero to 5-years.

To prepare for her testimony today Dr. H.G. testified that she reviewed the video tapes [*5](Court Exh. 1), text messages, notes and performed an updated literature review. She testified that infant mental health began to be studied in the 1970's and the field has since grown. She testified that the professional consensus is that a strong attachment to the biological mother is beneficial to the child even if the mother is compromised. She testified that attachment theory highlights the importance of the mother-child relationship during the child's first year and is pivotal as the foundation for a child in later years. She testified that failure of a child to securely attach in the first 6-8 months of life impairs development of future relationships.

Dr. H.G. testified that nursing is a continuation of what happens during gestation and delivery, and cited studies showing that a mother's brain is altered to make the mother vigilant, protective and responsive to the baby. She testified as to the term "synchrony," which she described as a process where the mother and child's heart rates link up while interacting, which helps mother and infant remain on the same wavelength and requires contact and nursing. She testified that the long-term benefits of a positive attachment to the mother enables children to: self-regulate, lowers stress levels, have a stronger immune system, have better language development and makes a child less likely to externalize (i.e. aggression) or internalize (i.e. depression).

She testified that newborns are familiar with their mother's smell, voice and that the best approach is to allow unlimited and unconstrained access between the mother and child for the first two to three months of the baby's life, and significant access thereafter. She opined that secure attachment can form even during adverse situations such as divorce or adoption but noted that mothers are biologically "primed" to do this effectively and efficiently, while it is not the father's "default" and the brain changes are not automatic. However, she testified that infants with two fathers were able to attach when one of the father's took on the role of primary caregiver.

Dr. H.G. testified that an infant must form an attachment with one person before attaching to others. She opined that infants who are adopted also develop attachment, although adoption is viewed as an adverse early experience. Dr. H.G. testified that unless the Mother is physically or mentally unable (catatonic/hallucinating) to provide care, mothers are biologically primed and hard-wired to care for the baby. She testified that during the first three months of life the infant should have one consistent primary caregiver, with others coming in periodically. At age 3 to 6 months, she testified that the baby is more social and can be shared between two or three caregivers. She noted that that the importance of mother-baby bonding is not about gender or bias, but rather about biology and brain.

On cross-examination, Dr. H.G. opined that if a baby nurse is in the home along with the mother it is akin to the mother being assisted by the father or her parents. The baby would prefer the mother's smell to the baby nurse's smell or anyone else so the attachment bond would not form with the nurse. She opined that while the videos she viewed (Court Exh. 1) demonstrated disturbing and emotionally deregulated behavior by the Mother, there were also parts that were emotionally nurturing parts, such as when the Mother said "I love you. I want you to eat." She opined that if the Mother has support and safeguards are put in place, having her be the primary caregiver would give the baby an advantage for the first 3, preferably 6 months, of his life, particularly given this child is at a disadvantage given the divorcing parents, and divorce is classified as an adverse childhood experience.

Dr. H.G. testified that a baby can develop attachment with bottle feeding if there is consistency in caregiving. When asked about surrogate pregnancy, Dr. H.G. testified that it is [*6]possible that the baby will attach to the non-biological mother. She testified she would not classify anxiety or depression as a significant mental health disorder as such to warrant someone other than the mother being the infant's primary caregiver, and that the biological mother is the preferred caregiver from a biological perspective during the child's first few months of life. She opined that a baby could recover from the death of a caregiver but it is not optimal. She testified that because of changes that occur in a mother's brain due to pregnancy and birth, father's cannot intuit in the same way and that such behaviors would have to be learned. She testified that there are not many studies on early bonding with fathers because father's as primary caregivers during infancy is a recent development.

Dr. A.R.

The Attorney for the Children called Dr. A.R.. The parties stipulated that Dr. A.R. is an expert in forensic evaluation. He prepared a report as to parental access to the Child. (AFC-11) In preparation for this report he performed a literature review, summarized several articles and spoke with Dr. T.G. and Dr. K.[FN8] . Dr. A.R. was unable to find any research that dealt with a child as young the Child and most of the studies were about children over the age of 3. He has never been asked to opine about the access schedule of a child age zero to three months. He testified that he is familiar with attachment studies and opined that the indirect effect of the Mother not being able to breastfeed would be detrimental to the Child, but he is unaware as to what degree infants are adaptable.

He testified that his main concerns are breastfeeding and the physical health of the Child and is concerned that if the Mother does not spend significant time with the baby breastfeeding her milk supply would suffer. He was unaware of any studies as to impact on a child's mental health from not being breastfed.

He testified that when the Mother began seeing Dr. A.R. she refused to acknowledge any responsibility for her behavior, blaming everything on the Father. By the end of the session the Mother acknowledged that her behavior in the videos was horrible and was more self-aware. He testified that the Mother was defensive at first but that began to change. He observed the Mother feeding O.S. and L.S. at mealtime and found it unremarkable. He testified that the Mother seemed less anxious and overwhelmed with the children and was calm and loving. Dr. A.R. opined that all the texts he read and the videos he saw demonstrated that the Mother was overwhelmed and to some extent out of control. However, given she is receiving psychiatric treatment, taking Zoloft and has the support of her family she appeared stable. He testified that he is aware of the baby nurse and safeguards that are currently in place and opined with a medical degree of certainty that the Child will be safe under the Mother's care at this point in time.

On cross-examination Dr. A.R. opined that Zoloft is an appropriate medication for the Mother but is "allegedly" safe for nursing mothers. Dr. A.R. testified that he views this case as "lower conflict" compared to the thousands of cases he's evaluated. Dr. A.R. testified that he has no reason to believe that the Mother would have a psychotic episode. He testified that post-partum depression is characterized by low mood compounded by anxiety, agitation, irritability and anger, while psychosis is a more serious level of pathology, and includes symptoms such as delusional thinking, paranoia and disordered thinking. When he viewed the videos he opined [*7]that the Mother was very agitated and frustrated but did not appear the least bit psychotic.

As to overnight access considering primary attachment, Dr. A.R. testified that if the parties are sensitive the child can form attachments to more than one individual. He opined that the research as to primary attachment is outdated and that he is more interested in the multiple vs. primary attachment model. He testified that research supports that children form an attachment to both of their parents, and the strength of the attachment is a function of how much time the parent spends with the child. Dr. A.R. described his observation of the Father and Children as "lovely," the Father was warm, the children loved him and it was a positive interaction. Dr. A.R. opined that if the Father had primary care of the Child he does not doubt the Child would be loved, however, he is concerned about breastmilk, and that it continue to be available. He could not opine as to the impact of pumping vs. feeding at the breast as he is not a lactation expert.

Dr. J.G.

The Mother called Dr. J.G.. Dr. J.G. testified as to her educational background and qualifications as set forth in her curriculum vitae. (P-Exh. 1) She is currently in private practice focusing on women's mental health with a focus on reproductive psychology. She treats women pre-pregnancy with mood and anxiety disorders and women with post-partum depression. She was deemed an expert witness in reproductive psychiatry/perinatal mood and anxiety disorders court about five times, the most recent was in the Bronx Family court in October 2019. The court deemed her an expert in reproductive psychiatry/perinatal mood and anxiety disorders without objection.

Dr. J.G. testified that post-partum depression occurs from 1-2 weeks up to a year after birth. Symptoms include low mood, tearfulness, lack of joy/interest, changes in energy/concentration, insomnia and in extreme cases suicidal thoughts or ideation. Often it includes feelings of depression and psychomotor agitation that she described as involving fidgeting and pacing. Dr. J.G. testified that postpartum is very treatable and most women return to their pre-pregnancy baseline. She testified that there are three levels: the baby blues (onset first 1-2 weeks after birth with normal variation of intense emotions that subsides in a few weeks); postpartum depression (longer lasting; anywhere from weeks to months; symptoms build and can resolve within a few weeks with treatment) and post-partum psychosis.

Dr. J.G. testified that if the Mother previously had postpartum, safeguard measures would include seeing a mental health professional on a weekly basis so she can be monitored and selective serotonin reuptake inhibitors ("SSRI") are often prescribed. She testified that poor neonatal adaptation syndrome affects 20-30% of infants exposed to SSRI's late in pregnancy. She testified that anxiety not related to postpartum can be treated with mental health treatment and support.

She testified that postpartum psychoses (referred to as PPE) is a rare condition that affects 1-2 in 1,000 women and has an abrupt onset of symptoms that include erratic behavior, extreme insomnia, delusions. PPE is often confused with postpartum but it is distinct.

Dr. J.G. prepared a report that included a list of items she reviewed. (P-Exh. 3) She did not meet with the Mother but based on her review of the videos and text messages, Dr. J.G. opined that the Mother appeared to be suffering from mental health issues but could not diagnose her as she was not treating her at the time. Based on what she observed Dr. J.G. testified that she would recommend that the Mother engage in weekly therapy, SSRI's, continue to care for newborn and make sure she gets enough sleep and support. If the Mother was doing these things [*8]Dr. J.G. testified it would suggest a positive prognosis.

On cross-examination Dr. J.G. testified it is common for a mother with anxiety postpartum disorder to have secondary depression and vice versa. The diagnosis between anxiety and postpartum anxiety would be differentiated based on timing of onset.

The Mother's Summation and Proposed Disposition

The Mother requests that she be awarded interim custody of the Child for a minimum of three months, with the Father having a total of 4 hours of parental access per day, in two-hour increments. The Mother proposes that the Father's access schedule be 12:00-2:00 p.m. and 8:00-10:00 p.m., which would allow O.S. and L.S. to spend time with the Child, while also giving the Father one-on-one time with the Child.

The Mother argues that there is no basis for the court to require that the Mother be supervised with the Child given Dr. A.R.'s testimony that the Child is safe in her care, coupled with the Mother taking pro-active steps to obtain treatment. The Mother relies on Dr. T.G. and Dr. A.R.'s testimony to argue that the current schedule would cause the Mother's breastmilk supply to decrease as she would not be to nurse the Child for 12-hour periods of time. She further argues that allowing the Child to develop a "secure primary attachment" is vital to his well-being and, according to Dr. H.G., the biological mother is the optimal choice given the attachment began in utero and it would take longer for the Child to attach primarily to the Father as he would first have to recover from the loss of attachment to the Mother. She argues that Dr. A.R.'s testimony related to the attachment theory should be discounted given he conceded he is not an expert in this area and the articles he cited were almost exclusively from the years 1999 and 2000 and did not address infants age zero to six-months old.

The Father's Summation and Proposed Disposition

The Father argues that the sole issue before this court in fashioning an access schedule related to the Child is whether safety is more important than breastfeeding. The Father requests that the current schedule (50/50) should continue with different configuration of hours.The Father argues that both the Plaintiff and Attorney for the Children failed to demonstrate that the Child would be safe with the Mother given neither produced the baby nurse, and asked that a negative inference be drawn. He contends that the training given by Ms. B.T. to the baby nurse is inadequate and that the "spontaneous drop-in's" by CFS are not spontaneous at all, given the doorman gives the Mother notice of Ms. B.T.'s presence downstairs [FN9] . The Father argues that there is no evidence that the Mother is exclusively nursing the Child, which is bolstered by her attorney's questioning of Dr. A.R. as to whether the Father uses the same types of bottles as the Mother.[FN10]

He contends that neither the Plaintiff nor Attorney for the Children produced a single witness as to the issue of the Mother's mental health. He argues that while Dr. J.G. testified that with treatment for postpartum a mother will return to "baseline behavior," we don't know [*9]whether the Mother's baseline behavior includes what is evidenced in the videos. (Court Exh. 1) The Father submits that the Mother's lack of transparency as to her mental health issues is evidenced by her failure to produce Dr. K.'s complete records.

On the issue of breastfeeding, the Father argues that we don't know whether the Mother is consistently breastfeeding, which undermines Dr. T.G.'s testimony regarding maintaining the Mother's breastmilk supply, which is purely speculative. He submits that of paramount importance is that the Child receive the health benefits of breastmilk. The Father argues that Dr. H.G.'s testimony on attachment theory is outdated, was severely undermined by Dr. A.R., and would essentially revert the standard used for custody determinations to the rejected "tender years doctrine."

The Attorney for the Children's Summation and Proposed Disposition [FN11]

The Attorney for the Children argued that the testimony of Dr. A.R., Dr. T.G., Ms. B.T. and Dr. J.G. demonstrate that the Child is completely safe in the Mother's care and that she has no safety concerns about the Child being in the Mother's full-time care for the next six-months in accordance with her proposed disposition. She submits that the Mother is regularly treated by a psychiatrist, is taking Zoloft, resides with her parents who provide in-home support and has a full-time baby nurse and refers to Dr. A.R.'s testimony noting the significant changes he observed in the Mother over the past seven months. The Attorney for the Children also pointed to Ms. B.T.'s testimony as to the ample safeguards in place to insure the Child's safety, and particularly Ms. B.T.'s directive to the baby nurse that the Child's should be immediately removed from the Mother's care if she had any concern that the Mother were a danger to the infant.

The Attorney for the Children argues that Dr. T.G., Dr. A.R. and Dr. H.G. all agreed that breastmilk was of paramount importance for the Child, and noted Dr. T.G. and Dr. A.R.'s concern about the Mother being able to maintain an adequate milk supply if the Child is not able to directly nurse from the Mother's breast under the current schedule, which could lead to the Child preferring to take milk from a bottle as it is easier for him. Lastly, the Attorney for the Children argues that Dr. A.R.'s testimony on attachment theory is not inconsistent with Dr. H.G.'s testimony given his acknowledgement that none of his cited literature involved children of the Child's age or had to do with the physical science of attachments. She submits that the Child should not be deprived of the optimal choice of his biological mother to fill the essential role of primary attachment figure.

The Attorney for the Children proposes that for the period of time that the Child is 0 to 3-months old that the Father have access from 12:00 p.m. to 2:00 p.m. and 7:00 p.m. to 9:00 p.m., which would increase to four consecutive hours and one entire weekend day from 10:00 a.m. to 6:00 p.m. when the Child is 3 to 6-months old. If the Father is unavailable during his access time, the Child should remain in the Mother's care rather than a third-party. Further proposed terms include:

• The Father be responsible for pick up and drop off during the day and a third-party (preferably the baby nurse or the Mother's parents) at night;• Ms. B.T. should continue to train the baby nurse as needed, have sole authority to fire [*10]the baby nurse and perform unannounced drop-ins. The baby nurse should be directed to contact Ms. B.T. immediately should there be a safety issue and remove the baby if she is unable to connect with Ms. B.T.;• The Child is not to be out of the baby nurse's presence except when he is with the Father;• The order of protection should be modified to allow both parties to be present for the Child's doctor's visits, or if the Father refuses to consent to this modification, that the parties follow Dr. T.G.'s recommendations as to who should appear at the visits. If Dr. T.G. has no opinion, the parties shall alternate attending doctor's visits;• The Mother is to continue a minimum of weekly therapy with Dr. Keiserman (or more if recommended) and take medication as recommended; and• Both parents are to receive parenting education.

Findings of Fact and Conclusions of Law

Any award of custody must serve the child's best interests. See, Eschbach v. Eschbach, 56 NY2d 167 (1982). The court's determination of what is in the child's best interests is paramount in deciding who will have custody, even on a temporary basis. See, Friederwitzer v. Friederwitzer, 55 NY2d 89 (1982); Lela G. v. Shoshanah B., 151 AD3d 593 (1st Dep't 2017); Grigoli v. Grigoli, 29 AD3d 792 (2d Dep't 2006). In making such a determination, several factors must be considered including the quality of the home environment, the ability of each parent to provide emotional and intellectual development, and the financial status and ability of each parent to provide for the child. Eschbach v. Eschbach, supra., at 172.The court must consider the totality of the circumstances in making its determination. Eschbach v. Eschbach, supra., at 174; Friederwitzer v. Friederwitzer, supra.

In considering the totality of the circumstances as they have been presented during the course of the proceedings, the court has assessed the testimony, demeanor, and credibility of each witness. This case presents a novel situation given the Child's birth in the midst of a hotly contested child custody battle. By prior temporary order of the court, the Child's brothers, O.S. and L.S., primarily reside with the Father, and the Mother has supervised access. Were it not for the Child's age, the court would order the same schedule for the Child pending a full hearing. However, given the Child is just days' old, additional factors require consideration to determine what is in his best interests.

The court heard extensive testimony on the benefits of breastmilk, which is not in dispute and was echoed by counsel and all of the experts. At issue is whether bottle feeding vs. feeding at the breast would have a negative impact on the Mother's breastmilk supply, which in turn would be detrimental to the Child. The court credits Dr. T.G.'s testimony that it will be difficult for the Mother to sustain her milk supply under the current schedule. Further, Dr. A.R. testified that his main concern was that the Child be able to have breastmilk, and that it continue to be available. He could not opine at to impact of pumping given he is not a lactation expert. In an optimal situation, the Mother would be able to breastfeed the Child on demand 24/7. However, this is not an "optimal" situation given the court has concerns about the Mother given her past behavior towards O.S. and L.S., which often included berating and force-feeding O.S. and pushing the Father while he was holding L.S.. See, Court Exh. 1 and fn. 6. Contrary to Dr. H.G.'s characterization, the court viewed the videos and did not find any parts to be "nurturing."

While the court commends the Mother's recent efforts in receiving mental health [*11]treatment and medication, the Child's safety is of paramount importance. The court credits Dr. A.R.'s testimony that in his professional opinion, and with a medical degree of certainty, the Child will be safe under the Mother's care. The court further credits Ms. B.T.'s testimony as to the safeguards currently in place, which includes supervision and training of the baby nurse, along with spontaneous drop-ins. The Attorney for the Children indicated that she had no safety concerns given the current safeguards. Accordingly, the court finds that the current safeguards are sufficient to insure the Child's safety under the Mother's care with the following exception: the court agrees with the Father that Ms. B.T.'s "spontaneous drop-ins" are not presently spontaneous at all, and directs that the Mother inform the doorman that Ms. B.T. should be allowed up to the Mother's residence without being announced and further that Ms. B.T. be given a key so she may enter without ringing the bell.

Contrary to the Father's argument, the question before this court is not whether safety is more important than breastfeeding, given the current safeguards allow the Child to be safe while also providing him the benefits of breastmilk. To ensure an adequate milk supply, the court finds that the current schedule must be modified on a temporary basis as set forth below.

Notably, the Father's summation did not address the issue of a temporary order of protection. Given the current safeguards in place, Dr. A.R.'s opinion, to a medical degree of certainty, that the Child will be safe under the Mother's care at this point in time, and the fact that the Father has not presented any evidence that the Mother is currently a threat to the Child, the court declines to enter a temporary order of protection in favor of the Child pending a full hearing in this matter.

Accordingly, it is therefore,

ORDERED that the court's short form order dated January 23, 2020 is modified, effective immediately, as follows:

Until such time as the Child is two months old (3/21/2020), the Father shall have two three-hour visits with the Child per day to be arranged by the parties such that the Mother is not away from the Child more than nine consecutive hours. If the parties cannot agree to a schedule, then the Father shall have the Child from 6:00 a.m. to 9:00 a.m. and 9:00 p.m. to midnight. The Mother is to nurse the Child immediately prior to the visit unless he is sleeping and the parties are directed to be flexible and adjust the time to allow the Child to nurse prior to a visit;

Beginning March 21, 2020 and up until April 20, 2020, the Father's visits shall increase by one hour per visit for a total of two, four-hour visits by extending the aforementioned visits by one-hour (i.e. 6:00 a.m. to 10:00 a.m. and 9:00 p.m. to 1:00 a.m.) unless the parties agree otherwise;

Beginning April 21, 2020, the Father's access shall be increased to one eight-hour block of time [FN12] with the Child. Such access shall increase by two-hours every two-weeks thereafter until the Father has the Child for twelve-hours per day until such time as the court enters a final order of custody in this matter;

Daytime pick-ups and drop-offs by the Father; evening pick-ups and drop-offs by the baby nurse or the Mother's parents;

Ms. B.T. shall continue to supervise and train the baby nurse and shall have the sole authority to terminate the baby nurse's employment. The baby nurse shall be with the Child at all times except when he is with the Father. Costs for the baby nurse shall be paid by the Mother;

Ms. B.T. shall continue to inform the baby nurse as to issues/symptoms of concern and direct the baby nurse to immediately report any issues of concern to Ms. B.T.. If Ms. B.T. cannot be reached the baby nurse is to immediately remove the Child from the Mother's care until such time as Ms. B.T. can be reached and offer further instruction. Ms. B.T. shall report any such issues to the court as soon as possible;

The Mother shall instruct her doorman not to announce Ms. B.T.'s arrival and Ms. B.T. shall be given a key for the purposes of random drop-ins; and it is further

ORDERED that the Father's request for a temporary order of protection in favor of the Child is deferred to a full-hearing on this matter; and it is further

ORDERED that the Mother shall continue to receive psychiatric care on weekly basis, more if recommended, and continue to take medication as recommended; and it is further

ORDERED that order of protection is modified to allow both parties to attend yhe Child's doctor's visits as recommended by Dr. T.G.; and it is further

ORDERED, that all prior orders, except as modified herein, remain in effect; and it is further

ORDERED, that any relief not expressly granted is denied;

Dated: January 31, 2020

_________________________________

HON. TANDRA L. DAWSON Footnotes

Footnote 1:The parties have two other children, to wit: O.S. (DOB XX/XX/2015) and L.S. (XX/XX/2017) who primarily reside with the Father and have supervised visits with the Mother.

Footnote 2:Counsel for the parties were directed to submit an order detailing the schedule of how the parties would split days with the Child.

Footnote 3:Given the time-sensitive issues, counsel was limited to approximately 2 hours each to present their respective case so that the hearing could be concluded in one day and commenced at 9:30. Given colloquoy and numerous objections, the hearing concluded at approximately 6:45 p.m.. The Father's attorney did not present any witnesses as her expert witness (which neither the court nor counsel were provided notice of) was unavailable to testify for several weeks.

Footnote 4:The court relies on her notes in summarizing witness testimony as this decision could not be delayed for receipt of the transcripts given the Child's age.

Footnote 5:She testified that obesity is prevented by nursing at the breast vs. just drinking breast milk.

Footnote 6:The Mother objected to admission of this video for several reasons, including the doctrine of completeness, authenticity and hearsay, as well as admission of this video is the subject of a motion to preclude pending before this court that has not yet been decided. The videos are highly disturbing; some depict the Mother forcing O.S. to eat while shouting at him. At times she yelled "fuck you, O.S.," "you're disgusting." L.S., who was an infant at the time was often in the room. In one video the Mother was forcing O.S., who was seated in a high chair, to eat while yelling at him. When the Father, who was holding L.S., tried to intervene, the Mother's yelling increased and she got up and pushed the Father while he was holding L.S.. The Mother's rage and inability to self-regulate in the videos was alarming and palpable and the court cannot ignore the potential psychological and emotional impact on O.S. and L.S. as a result. While the court noted the Mother's objection, this video was admitted to allow expert witnesses to opine as to what safeguards, if any, should be put into place to insure the Child's physical, emotional and mental safety while in the Mother's care on a temporary basis pending a full hearing given the highest priority is to insure the Child's safety. See, Court Exh. 1.

Footnote 7:Although counsel referred to Ms. B. as the "baby nurse," she is not a registered nurse.

Footnote 8:Dr. K. is the Mother's treating therapist.

Footnote 9:The Father also requested access to the baby nurse and copies of whatever documentation regarding the baby nurse is in Ms. B.T.'s possession. The parties submitted counter-proposed orders on this issue, which will be addressed shortly.

Footnote 10:The Father's objection to this line of questioning was sustained and accordingly cannot be considered as part of the record.

Footnote 11:Although not expressly stated, the court presumed that the Attorney for Children is substituting judgment on behalf of the Child given his age.

Footnote 12:The parties presently have arranged a 12-hour on/off schedule. Accordingly, the court is not specifying hours but rather directing the parties to continue the same schedule, commencing the Father's access time at the same time for blocks of 8, 10 and 12-hours as directed herein.