On or about 10 June 2003, an action was filed seeking divorce on the ground of cruel and inhuman treatment, and ancillary relief. On 23 December 2003, both parties’ applications for temporary custody were denied and an injunction was issued prohibiting either party from taking the children out of the United States. A New York Family Lawyer said the plaintiff was granted omnibus pendente lite financial relief pursuant to an order dated 24 February 2004. On 8 February 2005, the parties entered into a written parenting-time stipulation. On 1 February 2005, the trial of the action commenced. On that date, an inquest was conducted and plaintiff was granted a judgment of divorce on the ground of constructive abandonment. Entry of the judgment of divorce was stayed pending the determination, after trial, of ancillary issues. The trial continued on 2 February 2005; days thereafter; and concluded on 4 March 2005. At the conclusion of the trial, the Court reserved decision, pending receipt of post-trial memoranda and summations which were thereafter served and filed by both plaintiff’s counsel, defendant’s counsel and the law guardian. The parties stipulated that the issue of counsel fees would be determined upon the submission of affirmations which were thereafter served and filed and marked. The plaintiff testified on her own behalf and called seven witnesses. The defendant, on the other hand, testified on his own behalf, and called his mother and a private investigator, as witnesses. The expert appointed by the Court to conduct a custody forensic evaluation also testified.
On Custody:
A New York Custody Lawyer said each party sought sole legal and physical custody of the children.
The plaintiff attempted at trial to portray herself as a loving and devoted parent, who has been the primary caretaker, and enjoys a close and constructive relationship with the children; her testimony during the course of the trial did establish that she has historically been the primary care giver for the children, however, trial testimony also revealed that she has repeatedly exercised profoundly poor judgment, including shoplifting from a department store at a time when she was accompanied by the children, engaging in a sexual liaison at the marital abode while the children were in the home, leaving the parties’ sons in a bathtub without proper supervision, and meeting with a paramour in the presence of the children; nonetheless, plaintiff argued that she has been the victim of abuse by the defendant throughout the marriage, that her inappropriate behavior is the result of such abuse, that custody of the children should not be awarded to a perpetrator of domestic violence, and that the defendant has been an absent parent, largely uninvolved in the children’s upbringing.
A Queens Custody Lawyer said the defendant emphasized both the plaintiff’s inappropriate conduct and poor judgment and his own involvement in his children’s lives; he offered that he will continue to provide the children with stability, moral values, emotional and intellectual growth, encourage a warm relationship and contact with their mother and he stated that he would keep the children from harm’s way.
Under the rules, when confronted with the monumental task of determining which parent is to be awarded primary custody, a court must initially ferret out the credible testimony and make findings of fact on which the ultimate determination can be supported. Notwithstanding the effort that goes into the process, the result, in reality, is often nothing more or less than the Court’s forecast or best estimate of future events, specifically as to which parent would be the superior custodial care giver, able to provide a more stable and safer environment, both physically and emotionally. For any court considering questions of child custody, the standard by which the courts are guided is to make every effort to determine what is for the best interest of the child, and what will best promote its welfare and happiness. In determining the best interests of the child, the Court must review the totality of the circumstances presented. In making a best interests determination, the factors to be considered include the quality of the home environment and the parental guidance provided for the child; the ability of each parent to provide for the child’s emotional and intellectual development; the financial status and ability of each parent to provide for the child; the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child’s relationship with the other parent. In addition, the Courts may consider the length of time of the present custody arrangement and which parent is the more likely to assure meaningful contact between the child and the non-custodial parent. In making its determination on the issue of custody, the Court is to evaluate the testimony, credibility, character, temperament, demeanor and sincerity of the parties and other witnesses.
Here, after an exhaustive review of the trial testimony, exhibits and the proceedings, the record is replete with instances where the plaintiff withheld and/or misrepresented information. Most telling is the Court’s finding that the plaintiff misled the court appointed expert in an effort to convince him that her bruises were the result of abuse, by advising him that she had been seen previously at a hospital. Apparently, the plaintiff went to the medical expert’s office in December 2002, specifically for the purpose of documenting the bruises on her hip and thigh, but the bruises were, in reality, the result of a vein stripping procedure. Plaintiff’s expert relied to some extent on these records in assessing plaintiff’s credibility and forming his opinion. Plaintiff’s portrayal of herself, as a financial mendicant surviving only upon the good graces of the defendant, was intentionally exaggerated. Plaintiff conceded at trial that she had the use of defendant’s bank account and credit cards. In fact, plaintiff’s evidence shows that she made thousands of dollars in charges for necessities such as groceries and drug store items as a signatory on the defendant’s credit card in December 2001. Nevertheless, the plaintiff clearly was not treated as an equal or a partner by the defendant. She was excluded from ownership in the marital residence and, to a large degree, from participation in financial decisions. It was the defendant who orchestrated the plaintiff’s filing for bankruptcy after saddling her with debt. The defendant’s various claims that he often consulted with plaintiff concerning employment and other financial matters, do not ring true. In view of defendant’s controlling nature, it is indeed conceivable that his dominion over plaintiff may have risen to the level of emotional abuse, and it is not impossible that he physically abused plaintiff on one or more occasions. Regardless, a Court must deal in proof and not speculation, and the plaintiff here has shown herself to be unworthy of belief. Besides, the chronology of events in this case is telling. Plaintiff’s first reports of domestic violence to neighbors and her resort to the Family Court, occurred only after she became engaged in an extramarital affair. After careful and thorough consideration of all of the evidence, the Court is not convinced that plaintiff was the victim of domestic violence in the nature of physical abuse and that she fabricated allegations of the same in order to persuade the Court to award her custody of the children.
A Queens Custody Lawyer said undoubtedly, both parents have demonstrated substantial shortcomings in their ability to provide for the welfare of their children. The plaintiff, who has historically been the children’s primary caretaker, has clearly demonstrated that she cannot be trusted to safeguard the children and promote their best interests over her own needs and desires. The defendant, on the other hand, has shown himself to be a controlling individual who has not been primarily responsible for the care and upbringing of the children. It seems clear that neither party can be expected to willingly engage in fostering a healthy, loving relationship between the children and the other parent. Joint custody seems highly improbable. Joint custody involves the sharing by the parents of responsibility for control over the upbringing of the children, and imposes upon the parents an obligation to behave in a mature, civilized and cooperative manner in carrying out the joint custody arrangement. Joint custody should not be imposed on parents who do not communicate; who are unwilling or unable to cooperate; who are unwilling or unable to set aside their personal differences, and work together for the good of the children.
Here, where the Court has found that the plaintiff has fabricated instances of physical violence against the defendant, and the defendant has historically exercised absolute control over the family’s financial issues, it is highly unlikely that the parties will be able to act as equal co-parents and make constructive co-operative decisions regarding their children. Thus, joint legal custody was clearly inappropriate.
Nevertheless, a Queens Family Lawyer said the Court notes the position of the law guardian on the ultimate issue of custody: that evaluating the requisite factors relevant to the best interests of the children including the ability of either parent to provide parental guidance, to provide for the children’s intellectual and emotional development, to provide for the children’s needs, and to foster a positive relationship with the non-custodial parent, it is submitted that the father would provide a more suitable, consistent, stable and safer environment both physically and emotionally for the children.
Here, the plaintiff’s fabrication of allegations of instances of physical domestic violence, viewed together with her repeated failure to put the children’s needs above her own and her poor judgment and inappropriate conduct, clearly disqualify her from being the parent responsible for making decisions regarding the children’s upbringing and welfare. While the defendant has not historically been the children’s primary caretaker, he has, however, historically had child care assistance from his parents, who have resided with the children and cared for them since the children’s births. The defendant has not persuaded the Court that he has customarily subjugated his own needs to the best interests of the children. It is clear that throughout the marriage the defendant has exercised total dominion over the family’s finances and has not viewed or treated the plaintiff as an equal partner in their marriage. Based upon all the facts and circumstances, the best interests of the children will be best served by awarding legal custody to the defendant. Thus, the defendant was awarded legal custody of the children. However, the parties were directed to have equal parenting-time with the children. Neither parent can take the children outside the United States without leave of Court or without the acknowledged and notarized written consent of the other parent. In the event either party removes a child of the marriage from the United States without a court order permitting same or the written, acknowledged and notarized consent of the other, the parent remaining in the United States is deemed to have been awarded sole legal and residential custody prior to said removal, and the removal of the child or children from the United States constitutes criminal custodial interference as defined by the New York State and Federal Law.
On Equitable Distribution:
The plaintiff was awarded $33,910.75 of the defendant’s 401k, title to and possession of the 1997 automobile, and the defendant was required to pay the plaintiff a distributive award of $223,502.42 for the marital residence, bank accounts, stocks, 1947 Ford, tax refund, and credit for student loan payments. On 22 October 2004, plaintiff entered a money judgment against the defendant in the sum of $17,212.69 as and for outstanding interim counsel fees of $15,000.00 and pendente lite arrears of $1792.87 and interest thereon. Said judgment remained unsatisfied as of the date of trial and was assigned by plaintiff to a law firm, her second counsel of record, discharged by her prior to trial. The plaintiff also assigned said law firm the right to an interim counsel fee of $950.00 awarded to her pursuant to an order dated 18 August 2004 for costs she incurred enforcing the pendente lite order. In addition, the Court has awarded the plaintiff’s first attorney of record $10,000.00 in counsel fees and her trial attorney $ 20,000.00 in counsel fees. In sum, the defendant owes the total sum of $271,665.11 to the plaintiff. The defendant was directed to pay said sums within 180 days of the date of the decision and order. The plaintiff may continue to occupy the marital residence until 30 days after the defendant pays the sum of $ 271,665.11 in full, together with any interest that may have accrued on any money judgment(s). The pendente lite order dated 24 February 2004 is continued until such time as plaintiff relocates away from the marital residence. The maintenance and child support commences upon the plaintiff’s vacatur from the marital residence. The defendant was ordered to transfer title to the Caravan to the plaintiff within ten days of her vacatur of the marital residence. Until such time, the pendente lite order shall govern the parties’ rights and obligations vis a vis said automobile.
To reiterate, plaintiff was awarded a money judgment against the defendant in the sum of $223,502.42 as and for the sum due for her distributive award. She may file said judgment in the office of the Nassau County Clerk forthwith, but interest shall not accrue and she may not execute thereon until the refinance or sale of the marital residence or the expiration of 180 days from the date whichever occurs soonest. In the event the defendant fails to timely pay said distributive award, the plaintiff is entitled to interest on said distributive award from the date payment was due at the statutory rate. In the event the defendant elects to sell the marital residence prior to or after the date on which payment of $271,665.11 was due, plaintiff must be provided a copy of the contract of sale within ten days from the execution thereof, and she shall be afforded a reasonable notice of the closing date. In the event the defendant paid the sum of $271,665.11, with interest from the date payment was due, at or before the closing, the plaintiff shall vacate the marital residence within 30 days of her receipt of payment or 72 hours of the date of closing whichever occurs sooner.
On Parenting Time:
Once the plaintiff relocates away from the marital residence, she and the defendant will have equal parenting time with the children. The children shall spend one week with the plaintiff and one week with the defendant unless the parties agree to an alternative shared parenting schedule. In the event the defendant elects to remain in the marital residence, the children shall attend school in that district and the plaintiff shall obtain housing in a proximity to the marital residence such that the children can be transported to and from school generally in less than 20 minutes. In the event the defendant elects to sell the marital residence prior to the plaintiff’s vacatur, each party shall relocate not more than a 20 minute ride from the marital residence, unless the parties agree to both relocate to a location where each shall obtain housing not more than a 20 minute ride from the children’s schools. In the event the defendant sells the marital residence after the plaintiff has vacated the marital home and established a residence in compliance with the terms of the decision and order, he shall relocate not more than a 20 minute ride from the children’s school, unless the parties agree otherwise and upon such agreement both relocate to premises not more than a 20 minute ride from the children’s schools. The parties were directed to alternate legal and religious holidays and school recess periods.
On Maintenance:
Plaintiff requires maintenance of $2000.00 a month from the time she vacates the marital residence until 24 months from the date of the decision and order. Thus, commencing on the date plaintiff vacates the marital residence, the defendant shall pay her amaintenance of $2000.00 a month until the death of either party, the plaintiff’s remarriage or the expiration of 24 months from the date of the decision and order whichever occurs soonest.
On Child Support:
In cases of equally shared parenting time, the higher income spouse is deemed to be the non-custodial parent for purposes of calculating child support. The Domestic Relations Law of the State of New York sets forth the guidelines provided by the Child Support Standards Act (CSSA) which must be used in determining child support. The CSSA provides that child support shall be determined by multiplying the combined parental income of the parents, up to $80,000.00, by the appropriate percentage and then allocating the amount between the parents. In 1995, the Court of Appeals in the case of Cassano v. Cassano established that the CSSA shifts the emphasis from a Bancing of the expressed needs of the child and the income available to the parents after expenses to the total income available to the parents and the standard of living that should be shared with the child. With regard to combined parental income in excess of $80,000.00, the court has discretion to apply the statutory percentages of the CSSA, or to apply the factors contained in DRL 240(1-b)(f) or both.
Child support was awarded as follows:
On Arrears:
The pendente lite award provided for the interim needs of the plaintiff and the children commencing 3 December 2003 and the defendant was providing voluntary support between the commencement of the action and said date. The pendente lite order will continue until the plaintiff’s vacatur of the marital residence. Thus, the maintenance and child support awarded is not retroactive.
On Child Care Expenses
The parties do not incur child care expenses since the defendant resides with his parents. However, in the event the defendant’s parents are unable or unwilling to provide child care, the plaintiff shall pay 20% and the defendant shall pay 80% of child care expenses incurred by both parties to enable them to pursue employment and/or education.
On Health Insurance:
Defendant was directed to maintain medical, dental and hospital insurance coverage for the issue of the marriage commensurate with the coverage in effect as of 1 December 2004; he must provide such coverage for the plaintiff until entry of a judgment of divorce; he shall pay 80% and plaintiff shall pay 20% of all un-reimbursed and/or non-covered necessary medical, dental, orthodontic, optical and prescription expenses incurred on behalf of the issue of the marriage, including medically necessary psychological expenses; and the plaintiff must pay her own uncovered expenses.
On Life Insurance:
The defendant was directed to maintain life insurance coverage in the sum of $500,000.00, naming the defendant as trustee for the benefit of the children until the youngest is emancipated.
On Attorney’s Fees:
The plaintiff was represented by three law firms during the course of the action.
Based on all of the evidence adduced at trial, the findings as to the relevant and material factors, the respective financial circumstances of the parties and the disparity in their earning capacities, and after considering the assets available to plaintiff to satisfy the counsel fees she has incurred, the Court awards her the sum of $30,000.00 inclusive of legal fees and disbursements in addition to the interim awards of $15,000.00 and $950.00. The defendant must pay the said counsel fees within 180 days after the date of the order, as follows:
$10,000.00 to the first law firm, the sum of $20,000.00 to the second law firm, and no portion of the $30,000.00 awarded shall be paid to the third law firm as said firm has received the rights to over half their total billings of $33,300.00 by way of the assignments. Said law firms may file said judgments in the office of the Nassau County Clerk forthwith, but interest shall not accrue and said law firms may not execute thereon until the refinance or sale of the marital residence or the expiration of 180 days from the date hereof whichever occurs soonest. In the event the defendant fails to timely pay said counsel fee awards, said law firms is entitled to interest on said awards from the date the payment was due at the statutory rate. The defendant must give reasonable notice of the date scheduled for closing of any mortgage refinance or sale of the marital residence to the three law firms that appeared as counsel of record for the plaintiff. The defendant is liable for 100% of the fees charged by the CPA and the law guardian, and the cost incurred to appraise the marital residence.
The plaintiff was directed to submit a proposed Findings of Fact, a Judgment of Divorce, and all the requisite supporting papers to the Matrimonial Center Intake Office within 60 days of the date of the decision and order. Failure to do so may result in the action being deemed abandoned and notice of compliance with the order must be forwarded to the court.
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