Matter of Hussain A.R. v Jennifer J.B.

[*1] Matter of Hussain A.R. v Jennifer J.B. 2020 NY Slip Op 50664(U) Decided on June 10, 2020 Family Court, Kings County Vargas, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 10, 2020
Family Court, Kings County

In the Matter of a Proceeding under Article 6 of the Family Court Act, Hussain A.R., Petitioner,

against

Jennifer J.B., Respondent.



V-02341-18/18B, D



The Mother was self-represented; the Father is represented by Miriam Zakarin, Esq., of Treuhaft & Zakarin, LLP, 40 Worth St 10th floor, New York, NY 10013, Phone: (212) 725-6418 mtreuhaft@gmail.com ; and the attorney for the Child is Catherine Kalos, Esq., Children Law Center, 44 Court Street, Brooklyn, NY 11201, ckalos@clcny.org .
Javier E. Vargas, J.

Papers Numbered

Summons, Petitions, Affidavit & Exhibits Annexed. 1, 2

Order to Show Cause, Affirmation & Exhibits Annexed 3

Affirmation in Response 4

Affidavit in Response 5

Court Proceedings Transcripts 6

Upon the foregoing papers and for the following reasons, the Motion by Petitioner Hussain R. (hereinafter "Father"), for, inter alia, sole custody of the subject Child, the reinstatement of supervised visitation for Respondent Jennifer B. (hereinafter "Mother") and payment of counsel fees, is granted as provided hereinbelow.

I.

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The following facts and procedural history summarize in relevant part this Court's factual recitation by Short Form Order dated January 23, 2020, which is incorporated herein. After a romantic relationship which procreated an out-of-wedlock Child, Father enjoyed liberal visitation with the Child. However, issues arose because of Mother's reluctance to provide [*2]visitation to Father, prompting him to commence proceedings for enforcement and contempt against the Mother in her residential State of Texas. By Order dated December 1, 2015, the Texas Court of Appeals in Houston, affirmed a finding of contempt against Mother, suspended her incarceration and directed her to pay legal costs and expenses to Father. It appears that this contempt finding against Mother unleashed her subsequent campaign of unrelenting and vitriolic litigation against the Father in the Judicial District Court of Fort Bend County, Texas.

Based on numerous court appearances and the Mother's "litigious nature, [lack of] credibility and unnecessary or duplicative motions," the Texas District Court (Pope, J.) found that Mother "has a history of hiding/secreting the Child, has failed to surrender the Child to [Father] on numerous occasions and in direct defiance of Court orders, has a history of intentionally avoiding peace officers who attempted to serve Writs of Attachment for the Child, is a credible risk for fleeing with the Child, has attempted to gain access to the Child without a Court ordered mandatory supervisor, has discussed litigation with the Child and told [her] to be fearful of [Father] and her paternal grandfather [and, relevantly,] has made baseless claims that the Child is neglected or uncared for while in the possession of [the Father, whom she] has claimed is abusive and violent * * *, claims [which] are completely unfounded." Pursuant to those findings against the Mother, the Texas District Court (Pope, J.) issued an Additional Temporary Order in Suit Affecting the Parent-Child Relationship dated February 3, 2017, continuing the parties as joint legal custodians of the Child, but with Father having the "exclusive right" of decision-making authority regarding the Child's medical, educational and financial needs; directing that Mother only have supervised visitation with the Child on alternate weekends; and ordering the Mother to pay $680 per month in child support to the Father.

Despite the pendency of those heavily-litigated proceedings in Texas, by Petitions dated February 9, 2017 and September 29, 2017, the Mother commenced the instant proceedings against Father in Kings County Family Court, filing a Writ of Habeas Corpus for the immediate return of the "unlawfully retained" Child to her, seeking sole legal custody of the Child and an order of protection against him. While the Mother recalcitrantly sought this Court's intervention by filing several Petitions based on stale Orders which had previously given her custody, this Court dismissed the proceedings for lack of subject matter jurisdiction as Texas had retained exclusive, continuing jurisdiction over the Child's custody and visitation. In fact, by Order in Suit to Modify Parent-Child Relationship dated January 18, 2018, the Texas District Court (Pope, J.) issued a Final Order, on Mother's default, continuing the parties' joint legal custody of the Child; requiring each party to consult with one another but giving the Father the "exclusive right" to make decisions regarding the Child's medical, educational and financial needs; giving Mother only supervised visitation on weekends; directing the Child to be enrolled in individual therapy; and permanently enjoining the Mother from disparaging and engaging in various actions against the Father and his family, and from "harassing, following or stalking" the Father and the Child. All the Texas Orders were appropriately registered by the Father in New York, over the Mother's objections. It should be noted that Mother's appeals from all of these previous Orders have been rebuffed and all the Orders affirmed by the Texas Court of Appeals (see Braden v Rahim, No. 14-17-01014-CV [Tex. App., Feb. 22, 2018]; Braden v Rahim, No. 14-18-00126-CV [Tex. App., November 26, 2019]).

II.

After numerous court conferences with the Attorney for the Child's assistance, this Court gradually increased the Mother's parenting access with the Child beginning with unsupervised [*3]day visits, then sandwich visits until recently permitting the Mother to have alternate weekends and extended holiday visitation with the Child. Unfortunately, within a short period of time, Mother has progressively reverted to her old behavior of litigiousness and interference with the Father's care and custody of the Child. In fact, during the Coronavirus Pandemic which currently envelops the Country, the Mother has been contacting the Family Court and its Court Attorney on several occasions - sometimes more than twice a day — despite this Court's express directives prohibiting the same. Upon the request of the AFC, on April 30, 2020, the Undersigned set up a Skype for Business conference to entertain a proposed Order to Show Cause by Mother requesting sole custody of her Child and a temporary order of protection against the Father, claiming that he has behaved boorishly towards her, hurt the Child and threatened to kill her and the Child during a visitation exchange, thereby requiring NYPD police intervention.

At the Skype conference, the Mother gave her version of the events of April 24, 2020, while the Court was able to observe her cadence and demeanor. The Father explained that it was the Mother who had kept the Child without permission for two additional days, came uninvited to his residence with the police accusing him of domestic abuse, rape and harassment, and instructed the Child via texts to escape the Father's house in the middle of the night without alerting him, disregarding the Child's safety. After hearing all counsel, the parties and the Attorney for the Child, who denied that anything untoward happened to the Child, this Court, by Order dated April 30, 2020, denied Mother's applications and continued her alternate weekend visitation by implementing more safeguards for the exchanges. In the meantime, Mother's interfering behavior has apparently continued unabated.

As a result, by Order to Show Cause dated May 5, 2020, Father moves for an Order of this Court: (1) granting him temporary sole custody of the Child; (2) reinstating supervised visitation for the Mother with the Child at Comprehensive Family Services ("CFS") with her responsible for 100% of its costs; (3) directing the Mother to continue to attend individual psychotherapy at least once weekly; (4) ordering the New York City Administration of Children Services ("ACS") to produce to this Court all records of reports called in with regard to the subject Child; (5) transferring the Westchester County Family Court proceedings initiated by Mother and vacating the Temporary Restraining Order entered against the Father; (6) granting a full stay away Temporary Order of Protection be entered in Father's favor; (7) holding the Mother in contempt of this Court's orders; and (8) making the Mother responsible for attorney's fees and costs for the preparation and drafting of this Motion and the repeated court appearance on the matter.

In support of the Motion, Father reiterates that Mother has continuously engaged in a crusade to undermine and interfere with his custodial arrangement by disobeying the Court Orders. Among other actions, the Mother violated the Orders by obfuscating the Father with a slew of emails designed to retain the Child without permission for additional visitation days, instructing the Child to run away from Father's home amid the Pandemic, and commencing a family offense proceeding and obtaining a Temporary Order of Protection against the Father from the Westchester County Family Court, seeking the same relief that she unsuccessfully sought from this Court on the same day and deliberately concealing it from the undersigned. The Order to Show Cause (Vargas, J.), returnable on May 27, 2020, temporarily reinstated supervised visitation to the Mother under the auspices of CFS and consolidated herein the Westchester County Family Court and vacated the Temporary Order of Protection surreptitiously [*4]obtained by Mother.

In her 455-page opposition papers, Mother instinctively denies any and all of the Father's allegations against her, claims that Father is the one who constantly disobeys the court orders, repeats the allegations of domestic violence, harassment and "rape" against him, and argues that her visitation should continue unsupervised until she regains full custody. She maintains that an order of protection is necessary to protect her from the Father's constant harassment, insults and mental health issues. She counsels that the Court should issue "clear and practicable orders" to prevent any scenes and minimize conflict between the parties. Relevantly, she attaches to her papers the Texas Orders, prior Court transcripts, and the totality of her four hours of text conversation with the Child on April 24, 2020, wherein she makes statements to the Child such as "you need to just leave. I don't understand why you didn't just push past him in front of the police officers," "you are clearly going to have to leave and make a scene," "all the cards are in your hands right now, whether you realize it or not," "you have to document this stuff and tell your attorney, her boss and your social worker" and confirmed to the Child that she "should just to bolt out" of the Father's house.

In her Affirmation in Response, the Attorney for the Child affirms that the Child has consistently expressed her love and desire to have more visits with Mother, yet glosses over the Mother's repeated violations of this Court Orders. Instead, the Attorney maintains that the Court should make clearer orders "to minimize conflict and confusion" without giving the parties any discretion, permit more unsupervised visitation and let the Child go by herself to the visitation exchanges. The Attorney for the Child recognizes that "this protracted litigation, the conflict between the parties, and the repeated involvement of the police and child welfare investigators in [the Child]'s life, is detrimental to [her] well-being." It should be noted that she has previously affirmed that the Child is beginning to show signs of distress, anxiety and withdrawal during her interviews because of the pressure placed upon her. After oral argument and carefully reading the papers, the Court reserved decision.

III.

When adjudicating visitation rights, the Court's first concern is "the welfare and the interests of the child" (Matter of Lincoln v Lincoln, 24 NY2d 270, 272 [1968]; see Matter of Goldhaber v Rosen, 119 AD3d 862 [2nd Dept. 2014]). "Visitation is a joint right of the noncustodial parent and of the child (Weiss v Weiss, 52 NY2d 170, 175 [1981]; see McGrath v D'Angio-McGrath, 42 AD3d 440, 441 [2nd Dept. 2007]), and the 'denial of visitation rights to a natural parent is such a drastic remedy that it should only be considered when there is substantial evidence that visitation would be detrimental to the welfare of the child'" (Bubbins v Bubbins, 136 AD2d 672 [2nd Dept. 1985] [internal quotation marks omitted]). "Supervised visitation is appropriately required only where it is established that unsupervised [parental access] would be detrimental to the child" (Cervera v Bressler, 50 AD3d 837, 839 [2nd Dept. 2008]; see Rosenberg v Rosenberg, 44 AD3d 1022, 1024 [2007]; Matter of Gainza v Gainza, 24 AD3d 551 [2nd Dept. 2005]). "The determination of whether parental access should be supervised is a matter left to the trial court's sound discretion, and its findings will not be disturbed on appeal unless they lack a sound and substantial basis in the record" (Matter of Henry v Tucker, 157 AD3d 893 [2nd Dept. 2018]; see Matter of Kraft v Orsini, 136 AD3d 916, 917 [2nd Dept. 2016]).

Applying these principles to the matter at bar, the Father's Motion must be granted. The record reflects that the parties are involved in a protracted and incredibly acrimonious litigation for over six years centered on which parent will have more parental access with the Child. [*5]Based on Mother's history of thwarting and discouraging Father's visitation as evidenced by the Texas Court's findings against her dating back to 2014, Mother lost physical custody of the Child in the Texas Court in February 2017. After Texas's relinquishment of jurisdiction, this Court and the AFC have engaged in well-intentioned efforts to try to gradually increase and normalize Mother's visitation with the Child with her best interests at heart, but Mother appears to be her own worst enemy. During the pendency of this proceedings, the Mother's presence in New York has led to police intervention, her arrest and criminal trial based on serious allegations, numerous ACS reports against the Father involving the Child and requiring her to be repeatedly interviewed, harassment at the paternal grandparents' home and other numerous violations of Court Orders.

As stated in this Court's prior Decision, Mother has reverted to her old ways when she acknowledged travelling with the Child outside the jurisdiction, unilaterally removed the Child early from school, and took the Child to doctors and duplicate dentist visits, all without Father's knowledge or permission. These actions coupled with her current undisputed behavior in keeping the Child for additional days of visitation without the Father's permission, summoning the police to the Father's residence for a so-called "welfare check," and filing a family offense proceeding against the Father in contravention with this Court's Orders, call for a reexamination of her visitation. A possible finding of contempt against the Mother, however, should await an evidentiary hearing where the other disputed allegations must be "established by clear and convincing evidence" (El-Dehdan v El-Dehdan, 26 NY3d 19, 29 (2015); see Judiciary Law § 753[A][3]).

Nevertheless, this Court has observed during court appearances, conferences and oral arguments that Mother displays contempt for the Father, acts with dogged obstinacy in her positions, engages in frequent verbal attacks and insults against counsel and the AFC, routinely exhibits outbursts in court requiring the intervention of court officers, and twists the Court Orders and directions to suit her own benefit. Mother also inappropriately blames the Father and the Attorney for the Child for all of the Child's emotional and other psychological problems without recognizing - let alone taking responsibility - that her own actions, attacks and outbursts during the exchanges have greatly contributed to the Child's state. The Father must also tone down his interactions with Mother. The negative emotional toll caused to this 13-year-old Child by the contrived incidents by the Mother and her constant drama cannot be credibly disputed.

This conclusion was vividly demonstrated by the Mother's relentless text messages for over four hours with the Child in which she, among other things, disparages the Father to the Child, speaks to her about the litigation, deceptively informs the Child that she was standing by with police officers near the Father's house to assist her escape, insinuates that Father is mentally unfit, misleads the Child into believing that she and Mother have the sole decision-making discretion without regard to Court mandates and, most distressingly, repeatedly pressures the Child to "bolt out" or leave her home without the Father's knowledge in the middle of the night and without the protection of any facial covering in the midst of this Pandemic. It should be noted, in particular, that Mother provided specific instructions throughout their interaction as to how the Child was to escape, by telling her, for example, to wait until Father goes to the bathroom and that Child "need(s) to yell and scream and run. There is just no way " (sic). With these behaviors, the Father has made more than a proper showing that the continuation of Mother's unsupervised visitation "would be harmful to the Child's welfare or not in her best interests" (Pandis v Lapas, 176 AD3d 836, 837 [2nd Dept. 2019]).

This Court has agonizingly considered the Child's position as advanced by both the Mother and the Attorney for the Child regarding the continuation of unsupervised visitation. While the Child's wishes are some indication of what is in her best interests and "are entitled to great weight" (Matter of Melissa C.D. v. Rene I.D., 117 AD3d 407, 408 [1st Dept. 2014]; see Matter of Licato v Jornet, 146 AD3d 787 [2nd Dept. 2017]), those expressed wishes are only one of numerous factors to be considered and do not dictate a certain result in determining the best interests of the Child (see Eschbach v. Eschbach, 56 NY2d 167, 173 [1982]; Matter of Byron M. v Sasha A., 2020 NY Slip Op 02243 [1st Dept. 2020]). After examining the Mother's undisputed actions and carefully reviewing her text/email communications with the Child, this Court has to assume its parens patriae role to protect the Child from the immediate and long-term psychological harm due to the instability and disruptions caused by the Mother. Contrary to the AFC's intimations, the Court will not empower this adolescent Child, as if she were the parent herself. Although she is a participant in the process, the Child must be viewed as one who does not have the same emotional capabilities and development as an adult. This view is further reinforced by the text communications documenting the Mother's attempts to shift the blame to the Child herself for not escaping the Father's home. The Court finds, therefore, that it will be in her best interests to have only supervised visitation with the Mother as previously ruled by the Texas Orders.

IV.

During the continued pendency and trial of these proceedings, the Court will therefore temporarily modify its Order dated April 30, 2020, as follows:

1. Mother is to have supervised visitation with the Child at least once a week for two hours. Additional hours may be had only as agreed upon between the parties in writing subject to the supervisor's input and availability.2. Mother is to select a social worker/therapist to supervise her visits from the following providers: (a) Mr. Richard Spitzer, LCSW, ACSW, of Comprehensive Family Services, located at 450 Lexington Avenue, 4th floor, New York, NY 10017, (212) 267-2670; (b) Ms. Beth Orenstein, LMSW, at (646) 761-2004; (c) Ms. Eileen Montrose, LMSW, of Family Kind, Ltd., 178 Columbus Ave., New York, New York, (718) 946-8155; or (d) Ms. Diane Hesseman, LMSW, of Family Kind, Ltd. with email info@FamilyKind.org and telephone (718) 788-6784 or (646) 402-2933. These supervisors have indicated that they currently are available to supervise visits on a virtual basis, and will be available to supervise in-person visits when the Pandemic crisis has abated. 3. The Mother shall telephone the social worker/therapist, notify the Father of the selected supervisor, schedule virtual appointments convenient to both parties and the Child, and cooperate in all respects with the observed and evaluated visits.4. The selected social worker/therapist is to observe and evaluate the visits between the Mother and the Child, and provide a written report to the Court in advance of the next court date of July 27, 2020, and any future dates. 5. In accordance with the Texas Orders, and after previously making appropriate inquiry into the financial status of the parties, reviewing their financial affidavits and being satisfied that both litigants are financially able to pay the costs of the services provided for herein, the Mother shall be solely responsible for 100% of the compensation for said supervised visits, and any court appearance by the supervisor in connection therewith.6. Neither of the parents or third parties are to insult or disparage the other parent to or in [*6]the presence of the Child, nor are they permitted to quiz the Child about the other parents' actions or whereabouts, nor discuss the pending proceedings with the Child or in her presence.7. The Mother is not to coach, quiz or question the Child about her interactions or conversations with the Attorney for the Child.8. Given her history of frivolous and vexatious litigation in both Texas and New York, Mother is hereby prohibited, unless reviewed and authorized by an attorney, from filing any new writs, motions or petitions in the courts of New York State or any other state or territory without prior approval of the undersigned Judge.9. This Court has repeatedly indicated that if the Mother does not obey and adhere to these directives, the Court may consider the issuance of costs or sanctions against her, order the Mother to pay for counsel fees, restrict the Mother to supervised visitation again, or change custody forthwith.10. The Court is hereby issuing a full stay away and refrain Temporary Order of Protection in favor of the Father.11. As previously and repeatedly warned about by the Court, the Mother is hereby ordered to pay to the law firm of Treuhaft & Zakarin, LLP, the sum of $2,000 for over six hours of work necessitated by her litigious applications, constant emails and actions, to be paid by money order or certified check within 30 days of this Order.12. This Order shall remain in effect until further order of the Court. 13. In all other respects, the provisions of the Texas Final Order of Custody and Visitation not superseded herein remain in full force and effect, including the provisions permitting telephone/electronic communications between the Mother and Child, the permanent injunctions against Mother, and the continuation of separate psychotherapy for the Mother and the Child.

V.

In accordance with the foregoing, Father's Motion is granted in part and a hearing shall be had in the future on the contempt allegations against the Mother. Because the events giving rise to Father's contempt application are highly relevant to the ultimate custody and visitation determination, this Court hereby holds in abeyance and consolidates the contempt application with its ultimate custody trial. The parties are directed to continue cooperating with the forensic evaluation of Dr. Peter J. Favaro in order to proceed to that trial expeditiously. The Court is hereby reminding the parties of the court appearance scheduled for July 27, 2020 at 2:30 p.m. The foregoing constitutes the Decision and Order of this Court.

E N T E R:

Dated: June 10, 2020

Brooklyn, New York__________________________________________

J.F.C.