The parties were married on 1992 and on 2005, the Mother filed for divorce. The couple resolved the issues arising from their marriage and agreed to joint custody of the two subject children, a daughter age 12 and a son age 14. The children would have visitation with each parent pursuant to the detailed schedule set forth and as mutually agreed to by and between the parties. Since then, the children have been spending Mon-Tues with Father, Wed-Thurs with Mother and alternating weekends with each parent. With the exception of Thanksgiving, all holidays are shared equally. The parties agreed that they would alternate Thanksgiving as follows: two years to Mother and one year to Father. Both children excel academically. Neither child is alleged to have special needs.
Petitioner Father is 43 years old. He lives alone with two dogs. He has been engaged since February 2006 to his girlfriend who he intends to marry when the case is over. After his marriage, the Father told his ex-wife he intends to relocate where his fiancé lives and works. As of the time of his trial testimony, the children had met the Father’s fiance approximately six times.
The Father is self employed as a real estate agent and an insurance salesman. He was employed as a Vice President at a division of a Bank, for about eighteen months, but is no longer employed there. A New York Family Lawyer said that no evidence was introduced as to the Father’s current income. The Mother said that she believed her ex-husband may be supporting himself by selling marijuana and using equity from the home. The Mother alleges that their daughter five bags of illegal drugs in his Father’s cellar. The Father admitted that he was arrested for marijuana possession when he was 32 years old.
The Mother is 42 years old and works out of the home as an insurance agent for her father’s insurance company. She lives with her husband and her parents in her parent’s home. Prior to her remarriage, she always provided health insurance coverage for the children. Pursuant to the Judgment, Father is required to contribute 50% toward any unreimbursed medical and/or dental expenses. According to Mother, Father contributes to dental expenses from time to time.
A New York Custody Lawyer said that the Mother remarried to a man who has a severely autistic and mentally retarded teenage son who spends significant time with Respondent Mother and the children at their Mother’s home.
The current husband works full time as a school bus driver for special education children. Like Mother, he also has medical insurance and other benefits as part of his employment. The Stepfather is currently providing the subject children with medical and dental coverage. Mother claims to have a massive support system of friends and family.
The relationship between the Mother and her daughter has been strained since the she remarried. The daughter has had incidents with Mother and her maternal grandmother where she is alleged to have spoken disrespectfully to them or otherwise not followed the rules of the home.
A Nassau County Family Lawyer said that the record revealed that in June 2007, Family Court entered an Order against Father for child support arrears. Mother filed an enforcement petition against Father for nonpayment of that Order. Father paid the arrears during the course of the trial. Father admits that he is required to maintain a life insurance policy for the benefit of his children. Father further admits that he allowed his life insurance policy to lapse several years ago. Father is further required to contribute to a College plan per year, per child. Father admits he has not contributed to the plan for several years. Father admits he decided to put the money he is required to save for college tuition into real estate and his home. Father admits he owns several vehicles and pays insure these vehicles. On the subject of why the parties divorced, the Father said that during the marriage Mother withdrew from him which resulted in his having affairs.
On January 6, 2005, while the divorce proceeding was pending, Mother filed a Family Offense Petition against the Father. A temporary order of protection was issued against Father in which Father was ordered to stay away from Mother except for court ordered visitation contact. That same day Father filed a Family Offense Petition against Mother. No Temporary Order was issued on that Petition. Days later, the Father filed a Supplemental Family Offense Petition against Mother on behalf of himself and the children. No Temporary Protection Order was issued on that Petition.
On March 21, 2005, after a contested trial where both parties were represented by counsel, a finding of Aggravated Harassment was made against Father and a five year Final Protection Order was issued in favor of the Mother against Father. Based on the Court’s finding, Father was ordered to attend anger management as a condition of the Final Protection Order. A finding of Harassment was entered against Mother. A one year limited Final Protection Order was issued against Mother on behalf of Father. A three year limited Final Protection Order was issued against Mother on behalf of the subject children with the added conditions that Mother not use corporal punishment on the children and that she attends anger management. No evidence was submitted at this custody trial as to whether either parent ever complied with Family Court’s Order that they each attend anger management.
According to a Queens Family Lawyer, on 2005, an appeal was filed which was dismissed. On, the Father filed a Violation Petition against Mother. That same year, Father filed another Violation Petition against Mother which was dismissed for failure to appear for trial. Father filed another Violation Petition against Mother on 2007. This Petition was joined for trial with Father’s 2006 Violation Petition. After trial on 2007, all petitions brought by Father against Mother were dismissed and Father was enjoined by Family Court from filing any further petitions against Mother.
The Father admits that, in December 2006, Mother invited him to her house to discuss their daughter’s behavior. At that time Mother told Father their daughter’s behavior was out of control. While Father claims he could not now recall the details of that meeting, Mother credibly testified that Father instructed their daughter at that time to obey Mother and the rules in her home. Father claims that Mother admitted to him that she smacked their daughter in the face. Notwithstanding the Mother’s alleged admission in that regard, the Father left their daughter in the Mother’s care that same evening.
Approximately a week later, Father brought her daughter to a local police precinct to report an incident of domestic violence by Mother. The Father could not recall the details of this particular report made against Mother and no further evidence was elicited on this subject at trial. Father did acknowledge that he has called the police a number of times on Mother and has filed several incident reports against her. On at least one occasion, he brought the children to the police precinct with him. Some of these reports had to do with missed visits.
In total, since 2004, Father filed nineteen petitions against Mother in Family Court, including five petitions to modify child support. Mother has filed twelve petitions against Father in Family Court including several for enforcement of child support. The constant litigation between the parents has resulted in multiple trials in multiple courts, multiple investigations by the Administration for Children’s Services (ACS), multiple lawyers, and multiple forensic evaluations, all of which have caused the subject children to be interviewed on a myriad of occasions by a number of professionals.
Over years of bitter litigation and days of trial, each party has recounted to this Court a litany of incidences that have occurred between them. Some of these instances may be best described as petty with each parent bearing a share of the responsibility such as Father putting his daughter on a motorcycle after he found out she rode a quad with Stepfather, Mother changing her daughter’s dental appointment to occur on a day Father had visitation and Father switching it back to a day Mother could take her. Rather than dignify these incidences, the Court discusses in this opinion only those significant events which weighed most heavily in this Court’s decision to grant sole child custody to Mother.
In this case, both parties agree that the current joint custody arrangement set forth in the Judgment is not working given the deteriorating relationship between them. After considering the evidence in this case including the in camera examinations, and for the detailed reasons set forth below, this Court finds that, while Mother has clearly made her own errors in parenting, on balance, she is more fit than Father to serve as the sole legal custodian of the subject children.
During his lengthy testimony before this Court, Father was not credible on all of the events critical to this Court’s decision. For example, his explanation as to how marijuana wound up in his daughter’s lunch box when he was undeniably the sole guardian of that young child at that time was particularly preposterous. He has reported Mother to ACS approximately nine times which, among other consequences, subjected the children to numerous interviews. On one occasion, Father alleged Mother gave their son a dangerous instrument which, in fact, was a wooden souvenir knife from Mother’s honeymoon vacation. The fact that Father called ACS on Mother without seeing the knife, or asking Mother about it, suggests that he has little appreciation of the adverse effects these investigations have on the subject children and their relationship with Mother.
Father’s interference in the children’s relationship with Stepfather, which ranges from punishing their son for time spent with Stepfather to rewarding the children for clandestinely reporting negative incidences that occur in Mother’s home, is another major area of concern to this Court. He has encouraged his daughter to document in books incidences involving Mother and Stepfather which he incredibly claims was to further her therapy. Rather than helping the children develop strategies to deal with their mother’s remarriage, Father presents as ready to capitalize on any mistake or misstep by Mother in her parenting of the children. This is particularly destructive to their daughter whose behavior suggests that she is still struggling with the effects of this divorce and the remarriage of her mother.
Indeed, after many days of trial testimony, this Court has serious concerns about Father’s parenting and his ability to place the children’s interests before his own needs. His decision making with respect to the securing of mental health treatment for the children is extremely troubling. Father fired two of the children’s therapists, and forbid the doctor from working with the children. Although afforded ample opportunity to do so, Father was unable to explain to this Court why he would deprive the children of mental health services given that many of the children’s emotional issues stem from the toxic relationship between him and their mother.
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