J.T.P. v T.S.P.

[*1] J.T.P. v T.S.P. 2021 NY Slip Op 50912(U) Decided on September 16, 2021 Supreme Court, Monroe County Dollinger, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 16, 2021
Supreme Court, Monroe County

J.T.P., Plaintiff,

against

T.S.P., Defendant.



Index No. 17/9174



David Stern, Esq.

Attorney for Plaintiff

Rochester, New York

Steven Levitsky, Esq.

Attorney for Defendant

Rochester, New York

Paul E. Meyer, Esq.

Attorney for the Child

Rochester, New York
Richard A. Dollinger, J.

In this matter, the Court struggles with an unusual child visitation issue. A father, non-compliant with court-ordered evaluations, seeks to preserve his status as a joint custodial parent and expand his time with his now nearly teenage son. His son, often disquieted by the conduct of [*2]his mother, seeks more time with his father, which his mother opposes. The Court, after hearing therapists, both parents and interviewing the child, is left with a mish-mash of contradictory evidence that produces a difficult but necessary result.

This couple were divorced in March 2020 after a trial before this Court. In its opinion granting the divorce, the Court criticized the veracity of the father and, in the final analysis, granted a divorce. Before that decision, the couple ironed out an agreement providing for joint custody and a form of visitation that gave the father time with his now 12-year-old son while the mother worked on weekends. Thereafter, the mother filed a family offense petition in family court, alleging that she had been threatened by the father. Six months later, the father filed an order of protection on behalf of his son, alleging that the son had been struck and injured by the mother's husband. The mother eventually moved to transfer the family offense petitions to this Court, commence a forensic evaluation of both parents and the son, reappointment of the attorney for the child, restrict contact with the father and ask Child Protective Services (CPS) to respond to a request for information regarding the father's conduct with the son. The father opposed the application, arguing that transfer was not required, there was no "probative value" in a forensic evaluation, and the CPS investigation was tainted because the investigator's believed the "self-serving narratives" of the mother over the facts given by her son. The father argued that the child should have more time with him. In its subsequent order, the Court transferred the family court matter to Supreme Court, re-appointed an attorney who had previously served as the child's attorney, granted the mother access to CPS reports, ordered a forensic evaluation of the parents and child and appointed the evaluator but denied the mother's requests to terminate contact between the father and the child. The Court concluded that the issues of custody, primary residence and visitation would be resolved by the Court. The Court convened a hearing and held a Lincoln hearing with the subject child.[FN1]

Before embarking on a review of the proof in this matter, the Court acknowledges that any change in stipulated visitation requires proof by a preponderance of the evidence that a substantial change in circumstances has occurred and the parent then must show that modification of the underlying order is necessary to ensure the child's continued best interests." Matter of Austin v Smith, 144 AD3d 1467, 1467-1468 (3d Dept 2016). As the Court of Appeals has indicated, "the weighing of these various factors requires an evaluation of the testimony, character and sincerity of all the parties involved in this type of dispute." Eschbach v. Eschbach, 56 NY2d 167 (1982). The factors to be considered by this Court include "each parent's ability to furnish and maintain a suitable and stable home environment for the child, past performance, relative fitness, ability to guide and provide for the child's overall well-being and willingness to foster a positive relationship between the child and the other parent." Matter of Austin v Smith, 144 AD3d at 1468.

1. Primary Residence

The parents have widely different living arrangements. The mother has a home, which she shares with her current husband and a new child. The son has his own room there and the [*3]son attends school from his mother's home address. The father rents an apartment and the issue of whether the child has his own sleeping quarters in the father's residence is in dispute before this Court. The father and mother have significantly different incomes: the mother's income as a doctorally-prepared nurse is more than double the income of the father who testified that he worked as a substitute teacher for city school district. The mother provides health insurance for the child. Prior to the divorce, throughout the child's life, during the pendency of this action and the extensive time that has elapsed since it was filed, the child has primarily resided with the mother. In this Court's view, the mother's residence offers a more stable and established living arrangement for the child. Therefore, this Court, after reviewing all the evidence, concludes that the mother should be the primary residential parent.

2. CUSTODY OF THE SON

The prime factor is resolving custody in this matter is the couple's prior agreement, which established joint custody of the child. This Court, backed by ample precedent, is loath to disturb an agreed joint custody for the son. However, the central question, as noted above, is two-fold: has there been a change in circumstances and, if so, are the does the evidence continue to support joint decisions making by this couple? On both scores, the credible evidence establishes a change in circumstances that militates against continuing full joint custody because it is contrary to the best interests of the child.

A. Acrimony Between the Parents

Initially, the undisputed evidence establishes that there has an abundance of friction and acrimony between these parents since the divorce. There are pending orders of protection brought by father on behalf of his son against the mother's new husband and orders of protection involving the father and the mother's new husband. In addition, the record in this case clearly establishes an unacceptable level of interpersonal friction between the mother and the father, apart from the orders of protection. The mother's testimony contained a litany of episodes involving conflict between herself and her former spouse. There were numerous episodes in which the parents gave contradictory testimony regarding their interactions, even in the presence of the child. While there were disputes over interactions between the parents, there is undisputed evidence of the substantial antagonism by the father against the mother. The Court admitted a transcript of a telephone call, ostensibly between the mother and her son. The transcript reveals the father calling the mother a "liar" more than a dozen times in the course of the call and telling that directly to his son. The call clearly reveals the father hectoring the son, telling him that he needed to "man up" and "fight for yourself." He mocks the mother when she apologetically says that she does not want the son in the "middle" of the discussions with the father: the father repeats her comment about being "sorry" and adds "she's (indecipherable) lying to you, bro." In the trial testimony, there was ample evidence of the strained and highly acrimonious relationship between these parents beyond the phone call. Based on the trial testimony, the phone call was not an anomaly in the couple's interactions but more the norm. The increased acrimony, centered on the father's demands for more time, is a change in circumstance that alone justifies revisiting the custodial arrangement.

B. The Father's Failure to Participate in the Court-ordered Evaluation

The husband's antagonism to the court-ordered forensic evaluation process — since the divorce — reveals a character flaw that militates against continuing full custodial rights. When [*4]both parties raised questions about parental fitness to continue serving as joint custodial parents, the Court appointed a highly-reputed psychologist to evaluate both parents and the child. The Court appointed evaluator has previously testified before this Court on several occasions. In this matter, he testified that the father did not participate in the evaluation, refusing to schedule appointments and canceling them at his whim. The evaluator even contacted the father's counsel in an effort to arrange evaluations but the father never appeared. The evaluator described the father's conduct as amounting to "delays, objections, protestations, obfuscations, allegations and generally opposition, as well as passive-aggressive communications, first by phone and subsequently be email."[FN2] The evaluator commented that even though the father had not participated, there was a "wealth of data . . . to appropriately offer diagnostic impressions and associated commentary regarding recommendation for future action."[FN3] The evaluator, in his report to the Court, concluded that the various sources of information painted "a clear picture of an individual who, although appearing to be capable of brief, intermittent periods of the facade of cooperation, suffers significant instability in cognitive behavioral and emotional functioning." The evaluator further noted:

While brief instances of sincere concern for his son are also evident in some of the material presented, such interludes seem to be quickly eclipse by manic, paranoid and labile behavior and thinking. He appears intolerant of having his demands unfulfilled, cloaking his discontentment in accusations and denigration of those he perceives to have thwarted his demands. Such diatribes tend to be obvious Scorey rambling and manipulative as well as fraught with efforts to control situations/dialogue including self righteous protestations and self-serving invocations of his sons needs or best interest. His enmeshment with [the child] is extreme. Parental alienation is another applicable description for [the father's] behavior and its impact on the child.

The evaluator noted that his diagnostic impressions of the father included "other specified personality disorder with cluster B personality features (including some combination of narcissistic, antisocial borderline or histrionic features)." The evaluator added: The possibility of a mood disorder is also noted; concerns regarding cogency of his thinking as well as paranoia are also noted but might be subsumed under the aforementioned diagnostic impressions. The possibility of a substance abuse disorder [*5]must also be considered given the extreme variability in his apparent mood and behavior.

The evaluator testified that the father "lacked the ability to differentiate his needs from those of the child." He concluded by recommending that the father undergo "full forensic psychological, psychiatric and substance abuse (including hair follicle testing)" but added: Given the history of his failure to comply with not only the currently ordered a valuation but also his documented resistance to other services that have been offered it is likely that outpatient evaluation's will not suffice.

The evaluator concluded that child should be extracted from the father's "toxic behavior and influence until such time as father's behavior and mental health can be thoroughly evaluated." The evaluator recommended intensive in-patient treatment for the child as an antidote to the father's enmeshment and control.

This Court notes that the evaluator's observations are not based on a completed forensic evaluation and, in making these judgments about the father mental state and enmeshment with his son, the evaluator admittedly relied on third-party sources and information.[FN4] While, in usual circumstances, the Court would discount such observations, in this instance, the Court gives them a reasonable credence when evaluated against the backdrop of the father's failure to cooperate or even appear for the forensic evaluation. Having refused to participate with the evaluator after a court order, the father cannot reasonably complain when the evaluator's conclusions are based his otherwise best-available information and the evaluator is subjected to extensive cross-examination on his observations during the trial. In short, any after—the-fact complaint by the father about the adequacy or accuracy of the forensic evaluator's conclusions is misplaced. The father's lack of participation, in this Court's view, shields a refusal by the father to seek professional intervention in this matter and undercuts his claims regarding his own psychological condition, his skills as a beneficial figure in his son's life and his ability to determine his child's best interests as a joint custodial parent.

C. The Father's Conduct Thwarted the Court Ordered Evaluation of the Son

The father's character is further revealed by his refusal to allow his son to fully participate in the ordered evaluation process. The evaluator met with the couple's son but only once at the mother's residence. The evaluator testified that the father, who had insisted on taking the child to meet with the evaluator, further insisted that any evaluation be done at his residence and the father never scheduled the child again. The father never signed releases for the child. The father's conduct in declining to facilitate the child's evaluation by the court-appointed evaluator further suggests that the father has sought to undermine the Court's order for a full psychological analysis of this family as a prelude to a determination of the best interests of the child. These actions, in this Court's view, are further evidence of an apparent fear on the part of the father that the evaluator would unmask the exact nature of the father's relationship with his son. Despite the [*6]lack of access as a result of the father's non-compliance, the evaluator, utilizing the same third-party approach he advanced in evaluating the father, described the child as "emotionally fragile" and concluded that the child was "enmeshed with the father" and "alienated from the mother."[FN5] The evaluator acknowledged that the son was "fearful" in his mother's home, that the son had told him that his mother's spouse had slapped him and that he was being kept against his will in his mother's home. In the summary of his analysis, the evaluator wrote:

As noted, [the child] is a highly anxious, confused, and conflicted pre-teen who appears to have been subject to explicit (relatively successful) attempts to alienate him from his mother and stepfather. Although this evaluation was not completed in its entirety, the emotional damage to [the child] is evident, and resulting from the combined factors of these efforts at alienation, his failure to adapt to parental divorce, reactions to his abberant behavior by his mother and stepfather in a false sense of entitlement apparently fostered by his father. His use of certain terms, the structure of his verbalizations, demeanor and overall presentation all speak to the extreme likelihood of [the child] having experienced influences to promote him to be alienated from his mother and stepfather even if there is some objective truth to one or more of his complaints.

Finally, the evaluator testified that the son would at least need in-patient therapy to re-balance his relationships with his mother.

The father's conduct in refusing to coordinate the son's visit with the evaluator raises serious questions about his concern for the son's best interests. The evaluator, based on information from all sources, concluded that the son's psychological attachment to his father required remediation and suggested that a longer-term in-patient treatment plan for the son would be needed. The father, by failing to permit a further evaluation of the son, refused to acknowledge what the evaluator documented were a series of emotional and potentially more long term psychological challenges for the son.

D. The forensic evaluation of the mother

The evaluator also testified to the mother's status as well and proffered a 20-page forensic analysis. He indicated she had signs of an anxiety disorder. He noted that "insight is lacking and she appears to have an overdetermined understanding of the son's estrangement from her." The report describes her as "mildly anxious" but when stressed, she is "prone to persistent behaviors that are often fruitless" and she too often was willing to "take the bait" in her dealings with her son and his father. The evaluator described the mother as "very frustrated" and "despairing" in her dealings with her son. The evaluator's report made several recommendations for the mother including psychotherapy to develop improve behavioral responses to her husband's rejection and provocation as well as psychodynamic approach to help her better integrate her emotional and intellectual process. The evaluator described a compelling need for family therapy with her son although, adding "pursuit of this form of treatment must await greater preparedness for this form of clinical intervention." Significantly, the evaluator did not make any observations that the [*7]mother lacked capacity to be a full custodial parent or that her conduct threatened her son's best interests. The mother was full compliant with the evaluator's requests.

E. The Father's interaction with the child's long-time therapist

The forensic evaluator's conclusions regarding the father's hostile approach to any intervention or analysis of his relationship with his son are buttressed by the testimony and working notes of the therapist who interacted with his son for more than two years. The therapist in January 2021 discontinued sessions with the child because of the father's belligerent, condescending and hostile attitude toward her work. In a summary admitted at trial, the therapist said that the child had:

" . . . an unhealthy reactive attachment to his father. This attachment seems to promote some of the disruptive behaviors we see from [the child]. The attachment alienates him from his mother."

The therapist, in her notes, indicated that after interactions with the father while this matter was pending she did not feel comfortable in engaging with the father because of "his recent behavior with me" and a "history of menacing behavior with others," adding that "intervening [with the child] has been impossible with [the father's] continuing influence." She added that none of her recommendations, including family therapy programs and forensic psychological evaluation were followed by the father.

The therapist's notes track a child in turmoil. At one point, the child said he "did not like being with his mother." Prior to the custody stipulation two years ago, the child became "more anxious" and became "more angry with his mother," because she opposed the child having more time with his father. After six months under the stipulation, the therapist testified that the son was "very anxious" and "distraught." Significantly, the father repeated the same conduct that had impacted the forensic evaluation: he would not allow the mother to take the child to the therapist. The therapist testified that when the child was — after the stipulation— with the father and "he had difficulty attaching to anyone else." She noted that the child has "behavioral outbursts" including disciplinary measures at school. She described that the child had a "reactive attachment disorder" and was prone to anxiety and impulsivity when not with his father.

The father's emails to the child's therapist provide ample justification for the therapist to discontinue treatment with the child and expose the father's demeaning character. The father's emails are accusative and intimidating: he claims that the therapist's evaluation is "self-serving to her present state of emotions," adding that she was "no better than some others involved" and "your personal opinion and your opinion of yourselves clouds your judgment." At another point, he accuses the therapist "anxiety over [her] education and he adds that perhaps it is you that has reactive disorder" and at another point he writes that "maybe it is you who could use a therapy visit." The therapist, an African-American woman, indicated the father's emails were inappropriate and he made racial slurs in text messages. In her testimony, she said the father had described as holding "an affirmative action degree." In several instances, these exchanges arose in the context of the father's application for an extension of family medical leave act benefits which the therapist declined to authorize. She concluded: "I just won't tolerate your disrespect, racism, hostility towards me and your inability to accept 'no' regarding your paperwork."

In any reading of the admitted therapist's notes and email exchanges, the father's [*8]belligerent, rude and bullying personal characteristics are evident. The therapist's notes are evidence that bolster the forensic evaluator's conclusions regarding the father's enmeshment with his son and interpersonal difficulties when dealing with anyone who seeks to re-direct the son into an improved relationship with his mother. When all of these professional observations are combined and credited, the picture of the father as a joint custodial parent, able to make joint decisions in the child's best interests, is non-existent.

5. The Father's Prior Testimony and its Consequence

This Court, in resolving this couple's divorce, concluded in a written opinion that the father lacked candor on crucial evidentiary matters.[FN6] There is abundant authority to permit this Court, in evaluating the father's veracity, to consider the prior determinations that he lacked candor in testifying in this Court. The combination of a prior lack of veracity, when combined with his refusal to participate in a court ordered evaluation, strongly militates against the Court granting any weight to the father's testimony on any part of the relationship between his son and his mother and his relationship with his ex-spouse. Under these circumstances, this Court can draw adverse inferences from the father's conduct refusal to participate in the court-ordered evaluation and would be easily justified in doing so. In In re Dilmaghani, 78 AD3d 39, 48 (1st Dept 2010) an attorney discipline case, the appeals court said "the Panel rightfully drew an adverse inference from his failure to submit proof that he . . . attends some form of anger management therapy." See Matter of In re Timmia S., 111 AD3d 838, 839 (2d Dept 2013] (failure to take court ordered drug test warranted adverse inference). See also Interest of B.J.B., 07-20-00278-CV, 2021 WL 1343520, at *4 [Tex App Apr. 9, 2021], reh denied (May 19, 2021), review denied (July 16, 2021). While not a New York case, it is instructive in this instance. There, the court said the "failure to attend parenting classes, individual counseling, and psychological or drug/alcohol" counseling warranted adverse inference in a custody case. Here, the adverse influence is easily derived from the facts of this matter: since the agreement on custody and visitation was signed there has been a change in the father's circumstances and evidence establishes that the father currently lacks the temperament, judgment and interpersonal skills to make joint decisions in the best interests of his son.

In considering a change in custody, the Court notes that several appellate courts have held that while an "acrimonious relationship" between the parents can doom a joint custody plan, still others have concluded that acrimony alone is not sufficient to defeat a joint custody agreement. Matter of Charles N.N. v. Jaclyn A.M., 193 AD3d 653 (1st Dept 2021)(while joint custody may not be warranted when the parties' relationship is acrimonious such determination, without more, does not mean that shared custody is inappropriate); Matter of Steingart v Fong, 156 AD3d 794 [*9](2d Dept 2017). In Matter of Steingart v Fong, the Second Department noted that when an antagonistic relationship exists between the parties, it may be appropriate, depending upon the particular circumstances of the case, to give each party decision-making authority in separate areas, citing Matter of Hardy v Figueroa, 128 AD3d 824, 826 (2d Dept 2015); Jacobs v Young, 107 AD3d 896, 897 (2d Dept 2013. The Court added that "the division of authority is usually made either somewhat evenly, in order to maintain the respective roles of each parent in the child's life or, although unevenly, in a manner intended to take advantage of the strengths [or] demonstrated ability" of each parent. Matter of Steingart v Fong, 156 AD3d at 796, citing Chamberlain v Chamberlain, 24 AD3d 589, 592 (2d Dept 2005). In this matter, it is also apparent that the father, despite his seemingly antagonistic profile and non-compliance with court directives, has staked out one special zone in which he has built a close relationship with their son. The father has encouraged and fostered a strong religious sensibility in the child, advocating Bible study and other pursuits. There is evidence that the son has a continuing interest in this area and his relationship with his father is a cornerstone of that experience. This Court acknowledges that there is ample evidence in this matter to strip the father of joint custodial rights in toto but, the Court declines to take that step because, despite the overwhelming evidence of the father's intolerant behavior with his former wife and the professionals who testified in this matter, the relationship between father and son in religious matters seems to be grounded in a healthy spiritual orientation. The evidence establishes that the mother has supported the child's religious activities with the father, including driving the child to those activities. Therefore, this Court makes this area — religious activities — a zone of interest for the father and he shall have final decision-making authority in that area subject to several provisions: first, he must consult with the mother before making any final decisions in these areas. Second, he may not exercise that authority contrary to the best interests of the child or to defeat the mother's time with the child. Third, any reasonable costs associated with these activities shall be shared evenly between the parents.

Conversely, the mother, holding an advanced degree in nursing, shall have zones of interests that include education and healthcare and all other custodial choices, including extracurricular activities. The mother has supported her son's educational and extracurricular activities including martial arts, archery and soccer. As a consequence, she shall have final decision-making in all areas but religion, provided that she must consult with the father before any final decision (except in emergency circumstances), her decisions are not contrary to the best interests of the child and do not defeat the father's time with the child. The mother's decision making shall not apply to the selection of a college or post-secondary education and on those issues, the parents shall share decision-making.

Importantly, the mother's decision-making shall also apply to any therapy needs of the child and any longer term therapy. The evaluator recommended a longer term in-patient treatment to remedy the child's attachment disorder to his father. The mother asked this Court to order that treatment. The Court declines to make that decision and instead, vests the mother with that choice, after consultation with the father. The mother has the final choice and, given her healthcare background, she can balance the pros and cons of that choice after consulting with the father. The cost of any such treatment should be shared evenly between the mother and father. While this Court would be initially inclined to share those costs on a pro rata basis, the fact that [*10]the evaluator and the child's therapist find the origin in the son's extreme attachment to this father in the father's conduct and the father both refused to participate in the Court-ordered evaluation and refused to make his son available for the evaluator, leads the Court to conclude that the cost of any such treatments — or any additional therapy for the child — should be shared evenly between father and mother after both utilize or exhaust any available insurance reimbursement for those costs.

Therefore, joint custody remains but the each parent is given zones of interest in which to make final decisions after consultation with the other parent.

C. Visitation

Under the terms of the separation agreement, the father had weekend visitation from Friday after school or afternoon to Monday morning. The visitation continued until this Court authorized a Wednesday evening visit with the father in response to strong advocacy from the attorney for the child and the father and with the mother's concurrence. Importantly, in evaluating the status of this matter, the mother acknowledged during the trial that the recent temporary order, which had added a Wednesday evening visitation to the father's schedule, had allowed a smoother transition and made the child feel more comfortable with her and in her home. In fact, the Lincoln hearing confirmed an improvement in the child's visitation with his mother after adding time with his father on Wednesday nights.[FN7] In all the evidence produced in the hearing, the parents — in one of their few agreements — acknowledged that the child's relationship with his mother and his orientation to living with his mother had improved when the father's time has been expanded to Wednesday.

With respect to visitation, the Court is leery of expanding the father's time with the child to any significant extent. The therapist and court-appointed evaluator described the father's enmeshment with the children and the father's refusal to participate in the court-evaluation undermines his claims for more time with his son. The father's lack of candor further erodes the Court's confidence in his ability to foster a strong relationship with his mother, which is one of the most important criteria for evaluating a parent's involvement with a child. In that respect, the evaluator pinpointed the dilemma for the Court. While the evaluator was discussing the consequences of a possible referral to in-patient care, the dilemma suggested is the same now before this Court on whether to expand the father's time to include a Wednesday evening or, as the father requests, an overnight on Wednesday:

Recognizing a risk and also noting that in the one session this child had with the clinician he appeared to be both frantic and extremely emotionally fragile, consideration must be given as the whether any risks of short-term emotional distress (including risks of provocative potentially self injurious behaviors) is outweighed by the potential long-term and enduring dysfunction that is likely if the child does not receive definitive residential [*11]or inpatient treatment devoid of any interference by his parents and particularly the father.

The evaluator concluded that "a protective level of care does appear indicated." In short, the evaluator poses the challenge in deciding the visitation aspect of this matter: are the best interests of this child currently best served by adding the Wednesday evening or overnight with the father on a permanent basis or, given the father's destructive attitude and failure to recognize the child's best interests, whether the Court should curtail the Wednesday evening visits and further circumscribe the father's access to the child? In response, this Court, aided by the advocacy of the child's attorney, concludes that the budding evidence that the additional time with the father during the middle of the week has improved the child's relationship with his mother and her current family, supports the former solution. This Court cannot turn a blind eye to the change which occurred during the months before the trial and thereafter when all parties have acknowledged that the addition of mid-week visit with the father has improved the child's relationship with his mother, soothed some frictions between the child and his mother's husband and improved the child's overall disposition. All counsel agreed with this documented change. Even the mother, who argued against more time for the father, noted the child's improvement.

Based on these factors, the best interests of the child suggest that the added weekday evening with the father should be accommodated in an overall visitation plan. The son's improved outlook and acceptance of his mother and her home as a consequence of added time outweighs the Court's otherwise substantial skepticism of the father's conduct throughout this proceeding. This Court, while reluctant to absolve the father from his non-compliant and improper conduct, must serve the best interests of the child in this family unit. While the son's choice is not dispositive, it is nonetheless sufficient, when combined with recent evidence of his improved demeanor and somewhat strengthened relationship with his mother, to alter the agreed visitation plan by adding a Wednesday evening from after school until 8:30 or the end of religious instruction to the schedule.

D. CONCLUSION

In conclusion, the shift in the custodial arrangement, the assignment of zones of interest and the slight modification in visitation is justified as a matter of alw and fact. The mother is best capable of maintaining a suitable and stable home environment. Both parents have psychological stresses but, based on the credible proof before this Court, the father's far outweigh the mother's and raise serious questions about his fitness and willingness to foster a positive relationship between the child and his mother. Psychological stresses plague this family and, in this Court's view, the compromise resolution advanced here holds some promise to reduce those stresses and allow this child to mature, harvesting the best of both parents and avoiding the conflicts and tensions that have characterized the time since the divorce. The mother remains the primary residential parent. Joint custody continues but the parents are allocated zones of interests to recognize aspects of their relationship to the child and avoid further conflicts. The visitation schedule is altered to include a Wednesday evening with the father consist with this decision.

SUBMIT ORDER ON NOTICE 22NYCRR 202.48.

Dated: September 16, 2021

__________________________________

Richard A. Dollinger, A.J.S.C. Footnotes

Footnote 1:After the hearing, the parties agreed to allow this Court to determine whether records from Monroe County Sheriff's Department, the child's school district or the Child Protective Services should be admitted. The Court declines to admit any of those proffered documents.

Footnote 2:As an example of the emails from the father, the evaluator's email chain, introduced at trial, included the following from the father: This [the evaluation] in my opinion is another ruse by the judge and court system to extend the proceedings, delaying justice for [the child] in an effort to make more money for his counterparts like [the AFC] who does nothing to represent his client but has his hand out constantly. I expect no better from you, [the evaluator]. Justice delayed is justice denied. The Court also admitted a series of emails from the mother, involving exchanges from the mother and father. The father's emails are speckled with derogatory comments about the Court, the attorneys involved, the hearing process and the evaluator.

Footnote 3:The father's lack of communication and response to the evaluator led this Court to issue an order requiring the delivery of any information from third parties regarding the family to the evaluator.

Footnote 4:The evaluator reviewed materials from the Monroe County Mental Health (Fit Program), Monroe County Department of Social Services, Hillside Children's Center, Villa of Hope, Khadijah Tillman LC SW-R, Robert Robin PhD, Youth Family Partnership, University of Rochester Medical Center, Elmwood Pediatrics, Sherman Elementary School and materials from the wife's attorney and the AFC. In the case of the father's evaluation, the evaluator also examined a thumb drive provided by the mother's attorney. The thumb drive was admitted as evidence in the trial.

Footnote 5:In his final analysis, the evaluator in his report listed as diagnostic impression of the son: disruptive mood dysregulation disorder, separation anxiety disorder, generalized anxiety disorder, parent-child relational problem and disruption of family by separation or divorce.

Footnote 6:In its prior opinion resolving the divorce, the Court wrote: Simply put, the Court is unconvinced that the husband testified truthfully about a series of important matters — even his relationship with his spouse — and his credibility on a range of other issues — future employment, his hunt for job opportunities, his claims for financial support — casts a cloud over the Court's consideration of his claims. See J.T.P. v. S.T.P., unpublished, Feb. 2020.

Footnote 7:The Lincoln hearing with the child was marred when deputies outside the courtroom discovered the father was holding his phone to the courtroom window and either videotaping or photographing his son during the Lincoln hearing. The Court excused the child, brought the father into the courtroom, advised the father that such recording violated the rules of the courthouse and the court and intruded on the private nature of the Lincoln hearing. The Court asked for access to the father's phone to determine what had been recorded. The father refused access and thereafter, the Court ordered him removed from the Courthouse.