V.R. v J.C.

[*1] V.R. v J.C. 2023 NY Slip Op 51093(U) Decided on April 4, 2023 Supreme Court, Westchester County Patel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 4, 2023
Supreme Court, Westchester County

V.R., Plaintiff,

against

J.C., Defendant.



Index No. [Redacted]

Anar Rathod Patel, J.

In this post-judgement proceeding, Plaintiff moves by Order to Show Cause (Mot. Seq. 2) for an order (1) awarding Plaintiff sole legal custody of the parties' unemancipated child; (2) directing that Defendant's access with M.C. be therapeutically supervised; (3) appointing a neutral forensic evaluator; (4) pursuant to CPLR § 602 and New York Domestic Relations Law (DRL)§ 252 (6), removing to itself the recently filed Family Court case (File No. [Redacted], Docket No.: [Redacted]) under Family Court Act Article 4 and consolidating it with the within matrimonial action; (5) an award of counsel fees; and (6) such other and further relief which to this Court seems just and proper.

Pursuant to the Decision and Order of this Court dated November 1, 2022, the determination of legal custody of the child and issue of counsel fees was referred to a hearing, and all other requests for relief were denied. NYSCEF Doc. No. 109. The Court later consolidated Defendant's petition filed in Family Court, wherein Defendant seeks "regular physical access with additional dates and times," with the instant action.

The Court presided over a hearing as to custody and access in this matter on December 21 and 22, 2022, and January 3 and 25, 2023. After considering the procedural history of this case, the papers in support of and opposing Motion Sequence 2 (see NYSECF Doc. Nos. 60—82, [*2]84—92, 93), the testimony of the parties and witness at trial, the documents admitted into evidence, and the post-trial submissions of counsel, the Court hereby makes the following findings of fact and reaches the following conclusions of law.

Factual And Procedural History

The parties were married on May 14, 2016, and are the parents of M.C., born on [Redacted]. Pursuant to a stipulation of settlement dated February 13, 2021 ("Stipulation"), NYSCEF Doc. No. 31, which was incorporated but not merged into the parties' judgement of divorce entered on April 2, 2021, NYSCEF Doc. No. 33, the parties agreed to joint legal custody of M.C., with Plaintiff having primary physical custody and Defendant having parental access as set forth in the Stipulation at Article VII (Custody and Parenting Time), which is Tuesdays and Thursdays from 5:00 p.m. to 7:30 p.m. and alternating Saturdays from 3:00 p.m. to 9:00 p.m. and alternating Sundays from 9:00 a.m. to 2:00 p.m., depending on the week. The Stipulation further allows for Defendant to have graduated access to M.C. over time. Specifically, Section 7.8 provides that Defendant may commence overnights with M.C. in January 2023, "provided that [Defendant] has suitable housing." At the time the overnights commence, Defendant shall have one overnight per week on alternating weeks when Defendant has Saturday access (i.e., Saturday at 3:00 p.m. to Sunday at 9:00 a.m.). When M.C. reaches eight (8) years of age, Defendant "can have every other weekend; however, upon commencement of overnights, [Defendant] shall only have one (1) midweek dinner, on Thursdays preceding the weekend he does not have overnights with [M.C.]." NYSCEF Doc. No. 31 at 8—9.

Pursuant to Section 7.3 of the Stipulation, the parties agreed to jointly make all "Major Decision(s)" concerning health, education, and welfare; selection of summer camps; religious education and training; and the selection of colleges. Id. at 5—7. In the event that the parties disagree as to a Major Decision, they agreed to "jointly consult with the relevant professional(s)," pursuant to Section 7.5. Id. at 7. The parties further agreed, pursuant to Section 7.6, "that in the event of a dispute under this Agreement, they shall retain a mutually agreeable parent coordinator to support and facilitate their parenting of [M.C.] and to assist them in the event that the Parties have a dispute as to a Major Decision relating to [M.C.]." Id. at 7—8.

Further relevant to the instant proceeding is Article XIII (Civil Order of Protection) of the Stipulation, whereby the parties entered into a civil order of protection, which was so-ordered by the Court (Loehr, J.) ("Civil Order"). NYSCEF Doc. Nos. 23, 31 at 18. The Civil Order states that, inter alia, Plaintiff shall discontinue a Family Court proceeding, which resulted in an order of protection; Defendant shall remove guns from their current location by March 2021, and shall not possess firearms for a period of two years from the date of the Civil Order; and Defendant shall refrain from assault, stalking, harassing, threatening, and otherwise any misconduct against Plaintiff for a period of two years from the date of the Civil Order. Id.

Following the entry of the Judgement of Divorce, Plaintiff filed an Order to Show Cause (Mot. Seq. 1) in January 2022, seeking, inter alia, a full stay away order of protection as to Defendant pursuant to DRL §§ 240(3) and 252. NYSCEF Doc. Nos. 35—45; Pl. Tr. Exs. 5—6. The primary basis for the relief sought was Defendant's alleged violation of the Civil Order. Plaintiff's Affidavit provides numerous text messages between herself and Defendant commencing in or around August 2021 evidencing harassing communications, which do not concern parenting of the child. Rather, Defendant questions the unraveling of their marriage and probes into Plaintiff's personal life. Plaintiff also provides a phone call log which shows that Defendant called her repeatedly—thirty-five (35) times—on the morning of November 24, 2021, [*3]between 8:24 a.m. and 8:35 a.m., and, as Plaintiff's testimony at trial demonstrated, these calls were unrelated to M.C. See Tr. 36:13—37:6. The parties appeared before the Court (Loehr, J.) on March 25, 2022, at which time the parties consented to, and the Court issued, a full stay away order of protection ("March 2022 OOP") in Plaintiff's favor, with an allowance for visitation between Defendant and M.C.; the order expired on March 24, 2023. NYSCEF Doc. No. 52, Pls. Tr. Ex. 7. The March 2022 OOP also directs Defendant to immediately surrender his firearms to the [Redacted] Police Department.

Despite the March 2022 OOP being in effect, Plaintiff filed the instant Order to Show Cause (Mot. Seq. 2) on July 14, 2022, seeking, inter alia, sole custody of M.C. NYSCEF Doc. No. 60. She avers that joint legal custody is no longer possible and states that Defendant has thwarted parenting decisions concerning, for example, dental treatment, therapy, and childcare for M.C. Furthermore, she avers that Defendant's harassing communications have not ceased—let alone subsided. Plaintiff attaches to her Order to Show Cause a series of messages from Our Family Wizard (OFW) during the relevant time period which evince the same type of behavior and harassing communications that previously occurred over text message, and the category of communications that was barred unequivocally by the operative March 2022 OOP. See NYSCEF Doc. Nos. 78—79. Additionally, during the brief time period since the March 2022 OOP was issued, the parties engaged in a manner that resulted in two police encounters. See Pl. Tr. Exs. 8 (April 5, 2022 Police Report) and 11 (July 12, 2022 Police Report). The parties appeared before the Court (Colangelo, J.) on August 4, 2022, and consented to engaging in parenting coordination with [Redacted]. NYSCEF Doc. No. 97. The Court also appointed [Redacted], Esq. as Attorney for the Child. NYSCEF Doc. No. 98.

The parties appeared before this Court (Patel, J.)[FN1] on November 1, 2022, at which time they informed the Court that the parenting coordination sessions with [Redacted] had been unproductive. See also NYCEF Doc. No. 99 (Sept. 21, 2022 Letter from. [Redacted] to the Court stating that the sessions "have been nothing more than a screaming match."). Accordingly, pursuant to the November 1, 2022 appearance and the Decision and Order of this Court dated November 1, 2022, the determination of legal custody of M.C. and access was referred to a hearing. NYSCEF Doc. No. 109. As referenced supra, Defendant filed a Petition for Modification of an Order of Custody and Parental Access on May 22, 2022 in Family Court. NYSCEF Doc. No. 86. Defendant asserts that "there has been a substantial change in circumstances since the entry of the Judgement of Divorce, in that the Respondent frustrates Petitioner's access with the child, including swapping of days, canceling of access, interference with FaceTime calls " Id. at 4. Defendant seeks a regular access schedule with additional access dates and times with M.C. and an order enjoining Plaintiff from altering the access schedule.

The Court presided over a hearing as to custody and access in this matter on December 21 and 22, 2022, and January 3 and 25, 2023. At the close of the hearing, parties consented to an extension of the March 2022 OOP pending a decision and order of the Court; accordingly, the Court extended the March 2022 OOP for a period of six months. Parties were further directed to file—and the parties subsequently submitted—post-trial briefs. NYSCEF Doc. Nos. 137, 145, 146.

Post-Trial Proceedings

Following the completion of the hearing, on February 14, Plaintiff filed a letter with this Court seeking a pre-motion conference based on Defendant's filing of five (5) police reports during the period of December 29, 2022 through January 24, 2023 related to allegations that, in connection with exchanges of M.C. at Plaintiff's home, Defendant was being followed by Plaintiff's friend.[FN2] NYSCEF Doc. No. 132. The parties appeared before the Court on March 16, 2023, at which time the Court amended the existing March 2022 OOP such that all exchanges of M.C. are to occur at a public location and the parties are directed to exit a one-mile radius of the specified location immediately after the exchange ("Amended OOP"). While the March 2022 OOP was extended post-hearing, the Court set the Amended OOP to expire on April 30, 2023, pending a decision of the Court. NYSCEF Doc. Nos. 147, 153. In making its determination to amend the March 2022 OOP, the Court specifically quoted from the five police reports which indicate, inter alia, that the alleged offender did not speak to or otherwise threaten Defendant, and that Defendant repeatedly told police officers that he wanted the interaction to be documented for court purposes and, on at least one occasion, stated to law enforcement that a judge directed Defendant to document such interactions. NYSCEF Doc. No. 153.

On March 21, 2023, Plaintiff filed yet another letter with the Court requesting that the Court hold a hearing as to Defendant's alleged violation of the Amended OOP issued by this Court five days earlier. NYSCEF Doc. No. 149. Plaintiff alleged that Defendant videotaped her and child during an exchange of M.C. that, per the Amended OOP, took place at a public location. Plaintiff alleged that Defendant threatened to call the police if Plaintiff failed to hand over M.C., who was distressed and crying. Id. Parties appeared before this Court on March 28, 2023, at which time Defendant's access with M.C. was temporarily suspended for a period of fourteen (14) days on the basis that Defendant videotaped the exchange, escalated an interaction that resulted in trauma and anxiety to the child that physically manifested, and threatened to file yet another police report. As an alternative to holding a criminal contempt hearing on a violation of the order of protection, parties consented to a temporary suspension of Defendant's access to M.C. and discussed a proposed plan for therapeutic visitation to ensure the safety and best interests of the child on a prospective basis. The Court directed parties to return for a status conference on April 11, 2023. NYSCEF Doc. No. 152.

Trial Proceedings

Testimony of Plaintiff Mother

The parties married on May 14, 2016, and have one child: M.C. (born [Redacted]). Plaintiff presently resides with M.C. in a home she owns in [Redacted], New York, and Defendant resides in [Redacted], New York. Plaintiff is a tenured teacher with twelve years of experience. She presently teaches Science, Technology, Engineering and Mathematics (STEM) to children in pre-Kindergarten through second grade.

Plaintiff testified that the parties' marriage became challenging after the birth of their [*4]daughter. She described that M.C. was a difficult baby and the parties did not align on their parenting styles. Immediately after M.C. was born, Plaintiff testified that Defendant had to return to work—he was in training at the [Redacted] District Attorney's Office—and therefore she acted as the primary caregiver for M.C. and, for a period of time, was living with her mother, who assisted in caring for the child. Plaintiff testified that "the responsibility was on me" and she was "mostly making the choices for" M.C., including bathing, feeding, and the selection of a babysitter for when she returned to work as a teacher in September 2017. Tr. 13:20—14:6. Plaintiff further testified that the parties fought with respect to her parents' involvement in the parties' finances. Additionally, on cross-examination, Plaintiff acknowledged that she engaged in an extra-marital affair in 2019, and that the parties thereafter engaged in marriage counseling for a period of six months.

Plaintiff stated that despite participating in marriage counseling and efforts to resolve their arguments, the parties continued to argue. She described an incident whereby Defendant berated Plaintiff on the street in [Redacted] in front of M.C., who was two-years old at the time. Tr. 18:21—24 ("It was 9 o'clock on a Friday. He walked down the entire street of [Redacted] interviewing people saying, 'Would you like to fuck my wife? She fucks anyone.' In front of a two-year old child."). Upon returning home, Plaintiff testified that she went into the bedroom with M.C., locked the door, and called the police.

Plaintiff filed for divorce in February 2020. During the pendency of the divorce proceedings, Plaintiff testified that the parties were civil towards each other, although Defendant would attempt to contact her and she "tried not to respond to [the communications]." Tr. 25:18. Ultimately, the parties resolved custody and access as to M.C. and agreed to "co-parent jointly as two people of a child and make decisions together and continue the visitation schedule" set forth in the Stipulation. Tr. 27:8—10. Plaintiff testified that, in connection with entering into the Stipulation, the parties agreed to the Civil Order that directed Defendant not to harass Plaintiff; to stay away from her home, the restaurant at which she worked, and the school at which she worked; and to limit the subject of communications to parenting of M.C. only.

Following resolution of the divorce action, and despite having agreed to joint decision making and the Civil Order, the parties continue to engage in arguments—often surrounding pick-ups and drop-offs of the M.C. as well as "Major Decisions"—and Plaintiff states that she continues to be harassed in violation of the Civil Order and the March 2022 OOP. Plaintiff testified that Defendant continues to inquire into her personal life and whereabouts. In tandem with the harassing communications, she testified that, over time and since the Stipulation, joint decision-making related to M.C. has become "impossible." See also Tr. 165:7—11 (Q: "Am I correct that you believe that decisions cannot be made by you and [Defendant] jointly unless the communication is respectful and within boundaries that do not no include your personal life?"; A: "Correct"). Initially, she stated that Defendant allowed her to make decisions for the child, including, for example, decisions related to school, childcare, and medical treatment. She stated that during the period of time directly following the February 2021 Stipulation, she did not consult with Defendant on decision making because "he didn't question anything." Tr. 30:15.

At some point, in or around August 2021, Plaintiff testified that Defendant began sending her "highly inappropriate [text] messages." Tr. 32:3; see Pl. Tr. Ex. 5. For example, Defendant wrote to Plaintiff "[s]ince you haven't legally changed your last name does that mean I still have a chance or am I reading into this too deep." Pl. Tr. Ex. 5 at 8. Plaintiff testified that despite not responding to such messages, they continued. Defendant inquired into Plaintiff's personal life [*5]and, in one string of text messages, sent pictures from the parties' wedding. Plaintiff testified that "[c]ommunications with him through text message became unbearable," Tr. 33:19, and that Defendant "continued putting personal feelings into the raising of our daughter." Tr. 35:18—19. Aside from the text messages, Plaintiff testified—as corroborated by a cell phone call log—that Defendant would repeatedly call her and for reasons wholly unrelated to parenting of their child. In one instance, Plaintiff described that Defendant called her thirty-five (35) times during an approximate four-minute period. Tr. 36:8—37:6; Pl. Tr. Ex. 5.

On July 14, 2022, Plaintiff filed an Order to Show Cause seeking for the Court to, inter alia, award her sole legal custody of M.C. and direct that Defendant's access with M.C. be therapeutically supervised. She sought this relief because Defendant "wasn't following the Civil Order—the original order that we had in place. The text messages continued. The phone calls continued." Tr. 38:9—13. Plaintiff testified that the parties appeared before Judge Loehr on March 25, 2022, at which time the Court issued a Temporary Order of Protection. Plaintiff described that she understood the March 2022 Order would allow for the parties to communicate only using Our Family Wizard (OFW). When asked whether the March 2022 Order addressed her concerns, Plaintiff stated that the situation "improved in the fact that there were no text messages being sent to me anymore but the Our Family Wizard messages then began to be a harassment." Tr. 39:18—20.

In addition to the harassing communications, Plaintiff provided testimony concerning two incidents of police involvement. First, she testified that, in February 2022, Defendant consented to a change in the access schedule so that M.C. could attend a Broadway show with Plaintiff on Tuesday, April 5, 2022. Once the March 2022 OOP was issued, Defendant notified Plaintiff that he was withdrawing his consent to the change in access schedule and would arrive at Plaintiff's home at 5:00 p.m. on Tuesday to pick up M.C. On the night of Broadway show, Defendant filed a police report and, accordingly, Plaintiff testified that the police responded to her residence at 5:01 p.m. that night. Pl. Tr Ex. 8. The April 5, 2022 Police Report indicates that a call was made at 5:01 by Defendant, and police arrived at Plaintiff's home at 5:04 p.m. The Report states: "when [Defendant] arrived at [Plaintiff's] house today for a custody exchange, he learned that that [Plaintiff] had taken [M.C.] into New York City and that they were not available for said exchange. He requested that the incident be documented." Id. Plaintiff avers that Defendant filed a false police report given the documented communications between and involving the parties notifying Defendant that Plaintiff and M.C. planned to attend the Broadway show on the evening of April 5, 2022.

Plaintiff described a second incident on July 12, 2022, that occurred during an exchange of M.C. at her home. Plaintiff testified that "[M.C.] at that point started to begin having anxiety going with [Defendant] for visitation," Tr. 43:25—44:1, and, to address some of the anxiety, Plaintiff purchased a watch for M.C. so she could tell the time and call Plaintiff on her own. See Tr. 45:23—25 ("There were signs of anxiety prior [to] [sic] me buying the watch. When she came home from a visit and said I'm not allowed to call you"); see also Tr. 144:20—145:2 ("Giving her a watch for a comfort reason [it] [sic] is not my concern that there's a GPS tracking device in it."). During this exchange, M.C. was anxious and began to cry, and then the parties began to argue. Defendant accused Plaintiff of using a GPS tracking feature in M.C's watch. Because M.C. was crying, Plaintiff removed her from Defendant's car at which point Defendant stated, "I'm calling the cops if you don't put her back in the car." Tr. 44:23—24. Plaintiff took a recording of this interaction on her iPhone. Pl. Tr. Ex. 15. Plaintiff did not return M.C. to the [*6]car and subsequently, Defendant filed a police report at 5:10 p.m. that day. Pl. Tr. Ex. 11. The July 12, 2022 Police Report states that Defendant reported that he engaged in a verbal disagreement with Plaintiff regarding the watch M.C. was wearing. The Report stated that police interviewed M.C., "who was visibly upset," and stated she wished to remain with Plaintiff that evening. Id.

Plaintiff described a pattern of interaction with Defendant whereby she attempted to engage in joint decision-making as to M.C., Defendant initially withheld his consent, and then ultimately agreed with Plaintiff's proposal but caused a delay in the decision-making process and required a voluminous number of communications. Having observed that M.C. was exhibiting signs of separation anxiety from Plaintiff, Plaintiff sought to engage M.C. in psychotherapy with "the goal [ ] to make transitions easier for her" with respect to a variety of situations including extracurricular activities, babysitting, and exchanges between the parents. Tr. 53:21; see also Tr. 128:20—25. She reached out to a therapist in August 2020, and again in September 2021. She consulted with Defendant over OFW on July 5, 2022, and provided reasons why she thought M.C. should receive therapy and the contact information for a proposed therapist. Pl. Tr. Ex. 14. Defendant responded that he needed to speak with his attorney on the issue "[s]o this will likely have to be placed on hold!" Id.; see also Tr. 113:16—23. Ultimately, M.C. began therapy—Plaintiff testified that therapy has helped M.C. including with respect to exchanges between the parents.

Similarly, Plaintiff testified that she consulted with Defendant about enrolling M.C. in summer camp and that he ultimately agreed after twelve (12) messages. See Pl. Tr. Ex. 14; see also Tr. 163:13—14 ("He already agreed to the camp she was attending. I just added a week to it."). During the period of June through August 2022, Plaintiff also consulted with Defendant about dental treatment for M.C., which involved the use of laughing gas to calm M.C. while getting dental x-rays because "[s]he was crying too much." Tr. 62:6; see Pl. Tr. Ex. 14. Initially, Defendant refused to give his consent to the use of laughing gas and stated he needed to speak with his attorney. Ultimately, M.C. received the dental treatment and the issue resolved. Plaintiff further testified about the inability to engage in joint decision making on the selection of a babysitter, who would provide childcare on Mondays to allow for Plaintiff to work until 5:15 p.m. Plaintiff stated that the topic arose in June 2022, and she offered to switch days with Defendant so he could spend Monday evenings with M.C. instead of Tuesday evenings; Defendant responded that he "can't switch my day, as per my attorney" because there was an order of protection in place. Tr. 66:5—19; see Pl. Tr. Ex. 14. When Plaintiff followed up with Defendant in August 2022 and stated that she was interviewing candidates, Defendant protested that Plaintiff had hired a babysitter without his consent. Ultimately, Plaintiff selected a babysitter and provided that person's contact information to Defendant.

Testimony of Defendant Father

Defendant presently is employed as an electrician at [Redacted], where he has worked for approximately one year. Prior to that he worked at the [Redacted] District Attorney's Office and as a corrections officer. During the marriage, the parties resided at [Redacted] in [Redacted], which is a co-operative unit that was owned by Plaintiff although Defendant stated the parties split the household costs equally. Since the parties divorced, Defendant has resided in [Redacted] and rents the basement studio apartment of a single-family residence; the landlord resides in the upstairs apartment.

Defendant testified that the parties' marriage became "extremely rocky," Tr. 200:18, after [*7]the birth of their child, who he described as a "difficult baby" due, in some part, to a soy protein deficiency and inability to sleep through the night. Tr. 197:14, 200:4—11. Defendant testified that he would do anything he could "to take away from of those stressors," Tr. 215:8—10, such as bathing, feeding, playing with, and putting M.C. down to sleep. He also accompanied M.C. to doctor's appointments and jointly made medical decisions as to M.C. with Plaintiff. He further stated that "[M.C.] was attached to [Plaintiff]. [Plaintiff] was home with her for a great deal of the time. She had her maternity leave followed by a two-week break and then she would return back home to be with [M.C.] for the whole summer." Tr. 198:14—17.

Defendant stated that, upon discovery that Plaintiff was having an extra-marital affair in March 2019, he went to the home of his in-laws for a "24-hour stay over, just to get myself away from the situation that we had just had." Tr. 206:16—17. At that time, he turned over his firearms to his in-laws. Thereafter, he was in and out of the marital residence, and stayed in an Airbnb for some periods of time when he was otherwise not in the home. Defendant testified that the parties sought marital counseling as well as independent counseling. During this period, he would see M.C. on Tuesdays, Thursdays, and Saturdays for a few hours at a time; he did not have overnights with M.C. Sometime in January or February 2019—prior to the commencement of the divorce proceeding, Defendant filed a petition in Family Court for greater access time with M.C.

Ultimately, the parties reached a resolution pursuant to the Stipulation, that addressed, among other terms, Defendant's access time with M.C. See Pl. Tr. Ex. 2. Defendant testified that, with respect to the orders of protection that were in place prior to that time, the parties agreed to a Civil Order of Protection in connection with the global settlement which he described as "[b]asically just like an order of protection just on the civil side from my understanding." Tr. 213:23—24. He acknowledged that, per the Stipulation, parties agreed to communication through OFW with respect to M.C., and described that the parties communicate about various topics including FaceTime calls, appointments for M.C., and decision-making.

With respect to decision-making, Defendant testified that M.C. should have two parents who can co-parent effectively and he views Plaintiff as the "cause of the argument." Tr. 258:12. Regarding specific examples where he alleges he was not consulted about major decisions, Defendant stated that Plaintiff raised the issue of M.C.'s dental treatment after a "very poor interaction" with the child's then-dentist. Tr. 223:4. He responded to Plaintiff that they should seek a new dentist to treat M.C.; Plaintiff then sought out dentists, exchanged communications with Plaintiff about the process, and eventually made an appointment with a new dentist. Defendant stated that he only learned who the dentist was upon receiving a bill from Plaintiff and conducting his own online search. Defendant further testified that Plaintiff did not consult him with respect to therapy for M.C. He stated that he only learned of the therapist after Plaintiff had scheduled an appointment with the selected therapist. Plaintiff provided the name of the therapist to Defendant, who stated he was against forced to conduct an online search to obtain more information. Defendant stated that Plaintiff notified him that the therapist would be reaching out to him, although he decided to contact the therapist directedly. Ultimately, he agreed that M.C. should move forward with the therapy. Tr. 226:15—17.

Defendant described that, with respect to childcare, "there was no communication between [Plaintiff] and [himself] regarding childcare from the divorce on." Tr. 228:3—4. He stated that, during summer of 2022, M.C. told him that she had a new babysitter prompting him to reach out to Plaintiff to inquire further. Plaintiff indicated to him that he could change his [*8]access schedule from Tuesdays to Mondays and also have an additional one hour of access time with M.C. to which Defendant responded "That I could not accommodate," Tr. 228:20—21, because his work schedule would not allow for it. He also stated that he could not modify the access schedule because the order of protection "prohibited" him from doing so. Tr. 229:1—4. On cross-examination by Plaintiff's counsel, Defendant stated that he ultimately did speak to the babysitter and admitted that Plaintiff does not require his approval to hire a babysitter that works during her access time.

When asked about decision-making by the AFC, Defendant agreed that the parties already have joint decision-making pursuant to the Stipulation, however the parties have been unable to work together on decision-making as it relates to M.C. He indicated that, despite the language of the Stipulation stating that parties will retain a parenting coordinator where disagreements arise, the parties did not engage a parenting coordinator prior to the Court Order appointing a parenting coordinator. He further agreed that, instead, Plaintiff would research the issue and provide the name of the treating professional she wanted to engage. Defendant conceded that "[a]fter challenging [Plaintiff's] proposals on these major decisions, [he] ultimately yielded to her choice" "because [he] ultimately decided that the proposal was in [M.C.'s] best interest." Tr. 348:2—7. Defendant also testified that, despite the Court Order appointing a parenting coordinator, at a certain point, he stopped attending the parenting coordination sessions because he felt the sessions were not productive in terms of resolving the parties' arguments.

When asked about the current access schedule and his application for greater access with M.C., Defendant testified that he has not commenced overnights with the child because "[f]inancially I have got myself tied up right now that I can't get out of the residence that I'm currently at." Tr. 237:7—8. He has and continues to live in a studio apartment and does not have a separate room for the child; he testified that he would like to offer M.C. a separate bedroom so that he can commence overnights. He is now seeking "[a]s much access as [he] can get." Tr. 238:24—25. His testimony is that, although the parties are abiding by the agreed-upon Stipulation which allows for a graduated access schedule, he is "get[ing] the absolute bare minimum time with [M.C.]" and he is "looking to accomplish overnights." Tr. 259:1—3. He testified that he is planning to move to [Redacted] where he will be living in a two bedroom with a friend. Notably, Defendant testified that "[w]ith respect to [M.C.'s] environment and with respect to [his] ability to exercise access, nothing [has] [sic] changed substantially since February [2021]." Tr. 355:25—3.

Defendant testified that, with respect to exchanges of M.C., he audio records "every single transaction," Tr. 288: 8, and has hundreds of video/audio recordings of the exchanges. He testified that he takes these actions due to the operative order of protection. He also documents in a spreadsheet every FaceTime call with M.C., the duration of the call—which is not to exceed fifteen (15) minutes per the Stipulation, and notes relevant to the call. He stated that he does so because Plaintiff often cuts the FaceTime calls short of the allotted time.

Lincoln Hearing

At trial, the AFC stated she would not be making an application to the Court for a Lincoln hearing and stated that she would leave the issue to the discretion of the Court. The decision to conduct a Lincoln hearing to determine the best interests of the child in a custody dispute is within the discretion of the trial court. See Matter of Desroches v. Desroches, 54 AD3d 1035, 1036, 864 N.Y.S.2d 551, 553 (2d Dept. 2008). Here, given the age of the M.C., that [*9]there was no application from the parties or the AFC, and the Court's determination that a Lincoln hearing would not offer anything of value to the extensive proof that has been presented at trial, the Court declined to conduct a Lincoln hearing.

Legal Analysis

"In any child custody dispute, the court's paramount concern is to determine, under the totality of the circumstances, what is in the best interests of the child." Matter of Olea v. Diaz, 194 AD3d 721, 722, 143 N.Y.S.3d 583 (2d Dept. 2021); see Eschbach v. Eschbach, 56 NY2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 (3d Dept. 1982). There is "no prima facie right to custody of the child in either parent." DRL § 70[a]; DRL § 240 [1][a]. Factors to be considered include, inter alia, "(1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent's relative fitness, including his or her ability to guide the child, provide for the child's overall well-being, and foster the child's relationship with the noncustodial parent; and (5) the child's desires." Matter of Montebello v. Montebello, 184 AD3d 565, 566, 123 N.Y.S.3d 539 (2d Dept. 2020) (internal quotation marks omitted); see Matter of Olea, 194 AD3d at 722. Importantly, the parent's ability to place the children's needs above his or her own in fostering a continued relationship with the non-custodial parent is an appropriate consideration. Lohmiller v. Lohmiller, 140 AD2d 497 (2d Dept. 1998); Janecka v. Franklin, 150 AD2d 755, 756 (2d Dept. 1989).

Joint custody is encouraged "as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion." Braiman v. Braiman, 44 NY2d 584, 589—590 (1978); see Matter of Hreat v. Hreat, 189 AD3d 1237, 1238 (2d Dept. 2020). However, joint custody is inappropriate where "the parties are antagonistic towards each other, do not communicate at all, and have demonstrated an inability to cooperate on matters concerning the child." Matter of Connell-Charleus v. Charleus, 192 AD3d 890, 891 (2d Dept. 2021); see Matter of Laura A.K. v. Timothy M., 204 AD2d 325, 326 (2d Dept. 1994).

" 'Modification of a court-approved stipulation setting forth terms of custody or [parental access] is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the best interests and welfare of the child.'" Walter v. Walter, 178 AD3d 991, 992 (2d Dept. 2019), quoting Greenberg v. Greenberg, 144 AD3d 625, 629 (2d Dept. 2016). Courts have deemed there to be a substantial change in circumstances where "the parties' relationship is so acrimonious that it effectively precludes joint decision-making." Picado v. Doan, 90 AD3d 932, 933, 934 N.Y.S.2d 495 (2d Dept. 2011).

Because custody determinations depend to a great extent upon assessment of character and credibility, deference is accorded to the trial court's credibility findings which shall not be disturbed unless they lack a sound and substantial basis in the record. See Matter v. Dolan Masterton, 121 AD3d 979, 980, 995 N.Y.S.2d 123 (2d Dept. 2014).

Credibility

Both parties offered testimony at trial and were subject to direct and cross-examination by opposing counsel and the AFC. The Court recognizes that both parties are loving towards their child. Plaintiff presented as calm, thoughtful in her answers—including with respect to the disposition she is seeking, and knowledgeable as to M.C. and her respective needs. Her answers were clear and consistent, and the Court did not identify any actual or apparent contradictions in her testimony. Plaintiff appeared to answer each question truthfully; she was forthcoming and cooperative on cross-examination even when posed with difficult questions.

Defendant presented as sincere in his desire to gain greater parenting time with M.C. He [*10]conveyed a desire to be an involved parent to M.C. The Court, however, observed that he was often evasive in his responses and that, over the course of four days of trial, his testimony reflected meaningful contradictions. This observation is evident, for example, in his answers concerning the central issues of custody and access. On one hand, Defendant proposes that the parties continue to share legal custody and engage in decision-making as to the child, while on the other hand he admits to refusing to engage in the Court-ordered parenting coordination sessions. When asked what access time he is seeking, Defendant could not articulate a proposed access schedule and resigned to stating, "As much as I can get." Tr. 238:24—25. Defendant conceded that he has not obtained suitable housing to have overnights with M.C. even though the Stipulation allowed for him to commence overnights in January 2023. The Court would expect that Defendant, having agreed in the Stipulation to procure suitable housing to commence overnights, would be focused on following through with the parties' own agreement before petitioning for greater access time. The Court further observed that Defendant was combative towards Plaintiff and Plaintiff's counsel—going so far as accusing Plaintiff of engaging in a romantic affair with her counsel.

Modification of Legal Custody

Substantial Change in Circumstances

The record and evidence produced at trial clearly demonstrate that the parties' relationship has become so acrimonious that it effectively precludes joint decision-making and negatively affects M.C. Since entry of the Judgement of Divorce, Plaintiff has filed two Orders to Show Cause on the basis of continuing harassing behavior and communications perpetrated by Defendant—these are in addition to the Civil Order annexed to the Stipulation. She further provides specific examples whereby Defendant engaged in obstructive behavior that prevented the parties from engaging in joint decision-making as to M.C. Defendant attempts to rebut this argument by stating that "there are no instances of decision making regarding [M.C.] where the parties failed to make and where Mr. [Redacted] failed to consent to a decision in [M.C.]'s best interests." NYSCEF 146 at 7. This admission is the essence of Plaintiff's own argument in favor seeking sole custody—despite thwarting and delaying major decisions that affect M.C., Defendant eventually acquiesces to Plaintiff's recommendation because it is in the best interest of the child.

Defendant further alleges that "Plaintiff is not as concerned over [M.C.]'s relationship with [Redacted]." Id. The Court does not credit this argument as Defendant proffered no evidence suggesting that Plaintiff has, for example, disparaged Defendant to M.C. or otherwise impeded Defendant's regular access schedule with M.C. Finally, Defendant alleges that "Plaintiff's unwarranted fear [ ] does not rise to the [ ] [sic] level of an extraordinary circumstance." Id. Defendant misapprehends Plaintiff's argument—Plaintiff's application is not premised on fear of Defendant, rather Plaintiff contends that "[i]t was not until after the order of protection was entered in March 2022 that the Defendant began to logjam almost every decision." NYSCEF Doc. No. 17 at 9.

The record and testimony at trial makes it abundantly clear that the parties' ability to communicate has deteriorated such that they are unable to co-parent M.C. effectively and amicably. In fact, Defendant's own admission that he records each and every exchange of M.C. and documents each FaceTime call with M.C. confirms to this Court that the parties can no longer communicate and work together to serve the best interests of the child. The Court agrees with the AFC's position that "testimony at trial [ ] illustrated the flaws in the current decision-[*11]making protocol and the need for a court-ordered structural and foundational change to that process." NYSCEF Doc. No. 145 at 1. Accordingly, the Court finds that Plaintiff has established a substantial change in circumstances warranting modification of a joint custody agreement.

Best Interests of the Child

The Court may in its discretion consider a variety of factors that bear upon the best interests of the child in a custody determination. Based on the facts and evidence proffered, the following non-exhaustive factors are of particular relevance here: stability of the parents, ability to provide a suitable home environment for the child, which parent has historically acted as the primary caregiver, the ability to provide for the intellectual and emotional needs of the children, demonstrated willingness to prioritize the needs of the children over the parties' own needs, willingness to foster a relationship with the non-custodial parent, and prior disregard of Court Orders.

Plaintiff has undoubtedly acted as the custodial parent throughout the divorce proceedings and post-judgment, and consistently has provided for the child's emotional and intellectual needs. For example, upon identifying possible signs of separation anxiety exhibited by M.C., Plaintiff immediately began researching therapeutic treatment for M.C., including vetting of different therapists, and shared that information with Defendant. To further address M.C.'s separation anxiety, Plaintiff purchased a watch for M.C. to wear that allows for the child to keep track of time and call her mother directly, thereby alleviating any potential stress associated with her separation anxiety. Despite Defendant's suspicions, there was no evidence put forth that Plaintiff has used the watch device to track Defendant while the child is with him.

Plaintiff has demonstrated that she is a stable parent and she has provided a suitable home environment for M.C. She has been working as a full-time teacher for over a decade and earns a regular salary. There are no allegations of erratic or otherwise improper behavior perpetrated by Plaintiff. By contrast, Defendant's employment has turned over at least three times since the parties' married, and, by his own admission, he has not obtained suitable housing such that he can commence overnights. Defendant testified that, at least to some extent, he is not in a financial position to procure suitable housing that allows for M.C. to have her own bedroom.

The Court also considers Defendant's past behavior with respect to exchanges. Defendant has failed to consider the needs of the child and potential adverse impacts of actual or threatened police involvement on the child. The Court heard testimony concerning two incidents where Defendant called the police and filed a police report concerning an exchange, and a third incident in March 2023 where Defendant threatened to call the police. The parties do not dispute that their five-year old child suffers from separation anxiety, for which she receives ongoing treatment to specifically address, among other issues, exchanges between the parents. In each of these incidents, there was no evidence of an immediate threat of harm to the parties or the child that required immediate police involvement. Rather, it appears to this Court that Defendant resorted to calling the police to threaten or otherwise intimidate Plaintiff and in a manner that patently fails to consider the needs and wellbeing of the child.

Defendant argues that sole custody is improper where Plaintiff interferes with his visitation rights and his relationship with the child. In counsel's post-trial submission, she states "Plaintiff has repeatedly demonstrated to this Court her unwillingness to try to accommodate Court ordered parental access, often planning activities and events on [Defendant's] time. Trial Tr. 150—151:12:7." NYSCEF Doc. No. 146 at 8. The citation directs the Court to Plaintiff's [*12]testimony concerning alleged interference with Defendant's access related to the scheduling of FaceTime calls, which was the subject of parenting coordination sessions. Plaintiff testified that since 2021, she has notified Defendant approximately fifteen (15) to twenty (20) times that the daily FaceTime calls need to be rescheduled due to an activity involving the child that conflicts with the schedule. By that account, over the approximate twenty-six (26) month period since entering into the Stipulation, there have been 15—20 instances where Plaintiff has requested to reschedule a FaceTime call so as not to require a four/five-year old child to, for example, leave a birthday party, an extracurricular activity, or a movie. There is no allegation that Plaintiff canceled the calls with any improper intent, did not provide notification, and did not offer to reschedule the calls. There are also no additional allegations or evidence offered by Defendant supporting a finding that Plaintiff has interfered with Defendant's visitation, access, or relationship with M.C.

With respect to decision-making, the record is clear that Plaintiff attempted to consult with Defendant regarding Major Decisions, but, at some point, the parties' communication on the issue at hand became unproductive such that Plaintiff resorted to moving forward with a decision she believed to be in the best interests of the child. Perhaps, even more compelling, is Defendant's admission that each decision, to which he has initially protested, was in the best interests of M.C. and one which he ultimately agreed with.

Accordingly, the Court directs that Plaintiff is awarded sole legal custody of M.C., and that following consultation with Defendant, Plaintiff shall be given final decision-making authority as to all major matters including medical, dental, psychological, psychiatric, religion, education, and extra-curricular activities. Consultation shall mean that each party shall convey to the other party his/her opinions on whatever matters affecting the child need to be resolved via OFW, setting forth the issue that needs to be resolved and that parent's proposed resolution at least three (3) days in advance of such decision being made. Final decision on that issue shall not be made until after consideration of the other parent's position, and a written response to same is made. The Court notes that the AFC joins in Plaintiff's application for an award of sole custody of M.C. NYSCEF Doc. No. 145.

With regards to Plaintiff's request that Defendant's access with M.C. be therapeutically supervised, the Court directs that the parties and counsel appear at the scheduled April 11, 2023 status conference to address the terms of Defendant's access. For the reasons discussed supra and pursuant to the appearance before this Court on March 28, 2023 that gave rise to Defendant's temporary suspension of access to M.C., the Court will address reinstating Defendant's access with M.C. as set forth in the Stipulation and the terms of such access at the upcoming status conference.

All other terms of the Stipulation and Judgement of Divorce not discussed herein shall remain undisturbed.

Modification of Access Schedule

Substantial Change in Circumstances

Defendant seeks modification of the existing access schedule to afford him greater time with M.C. based on a change in circumstances. Defendant does not articulate the modification he is seeking including, for example, how much additional time, a proposed schedule, and the basis for such a request. Plaintiff concedes that the Stipulation provides for a graduated access schedule as described supra and that he has been unable to provide a bedroom for M.C. to use on overnights so that he can execute on the agreed-upon graduated access schedule. Defendant's [*13]assertion that there has been a change in circumstances due to "Plaintiff repeatedly demonstrating her inability to work with [Defendant] in any sincere way to ensure that there was a nurturing relationship between [Defendant] and [M.C.]" is without merit and any basis in the record. As discussed, there has been no evidence to substantiate a finding that Plaintiff has improperly interfered with Defendant's access or his relationship with the parties' child. Furthermore, Defendant admitted on cross-examination by the AFC, that "with respect to [M.C.'s] environment and with respect to [his] ability to exercise access, nothing's changed substantially since February [2021]." Tr. 355:25—356:23.

Accordingly, Defendant has failed to establish that there has been a substantial change in circumstances since the parties entered into the Stipulation in February 2021 and therefore, the Court cannot proceed to an analysis of whether such a modification would be in the best interests of M.C. See Lao v. Gonzales, 130 AD3d 624, 625 (2d Dept. 2015) (determination that father failed to establish a change in circumstances since the order of custody and visitation was supported by a sound and substantial basis in the record). The parties shall continue to abide by the Stipulation (Article VII) with respect to Defendant's access with M.C., subject to further directives and orders of this Court.

Extension of Order of Protection

Pursuant to DRL § 252, the Court has the authority and discretion, having "the benefit of seeing and hearing the witnesses," to extend an order of protection for "good cause shown" and for a "reasonable period of time." Molloy v. Molloy, 137 AD3d 47, 53 (2d Dept. 2016). Although DRL § 252 does not define "good cause", courts have applied the term based on the consideration of a variety of factors including to ensure the safety and well-being of the petitioner. Id.

Upon the completion of the hearing, the parties consented to an extension of the March 2022 OOP pending the decision and order of the Court in these proceedings. Based on events that transpired post-hearing, the Court issued an Amended OOP on March 16, 2023 to remain in effect until April 30, 2023, pending a decision and order of the Court. Pursuant to an appearance before the Court on March 28, 2023, as an alternative to holding a hearing on Defendant's alleged criminal contempt, the parties consented that Defendant's access with M.C. would be temporarily suspended for a period of fourteen (14) days.

Here, Plaintiff's application for an extension of the Amended OOP/March 2022 OOP, is reinforced by events post-hearing that involve harassment, filing of false of police reports, and threats of filing additional police reports. The incidents giving rise to the application involve the child, who has been physically present during these incidents, and have resulted in anxiety and emotional distress to the child. The Court finds that there is good cause to extend the Amended OOP beyond the date of this Decision and Order for a period of one year. The Court directs that the Amended OOP shall remain in effect until April 5, 2024. The Court will consider any further application concerning the length of the period and terms of the order of protection at the parties' appearance on April 11, 2023.

Accordingly, it is

ORDERED that the branch of Plaintiff's Motion Sequence 2 seeking an award of sole legal custody of the parties' unemancipated child, M.C. (date of birth XX XX, 2017), to Plaintiff is GRANTED; and it is further,

ORDERED that the branch of Plaintiff's Motion Sequence 2 seeking that the Court direct that Defendant's access with M.C. be therapeutically supervised is GRANTED to the extent that [*14]the Court will address the terms of Defendant's access at the scheduled April 11, 2023 status conference; and it is further,

ORDERED that Defendant's application seeking a modification of the parenting access schedule as set forth in the parties Stipulation of Settlement entered into on February 13, 2021 is DENIED; and it is further,

ORDERED that all other relief requested and not decided herein is denied.

The foregoing constitutes the Decision and Order of this Court.

Dated: April 4, 2023
White Plains, New York
HON. ANAR RATHOD PATEL, A.J.S.C. Footnotes

Footnote 1:This matter was reassigned from J. Colangelo to J. Patel on October 6, 2022.

Footnote 2:During his testimony at trial, Defendant stated that he believed he was being followed by a vehicle registered to Plaintiff's friend since the summer of 2022, and that the individual was intending to intimidate him. Tr. 248—252; 267—269. On cross-examination, he admitted to having filed seven (7) police reports related to alleged stalking by the individual, who he referred to as a "pedophile" during a parenting coordination session. Tr. 288—292.