Anonymous K v. Anonymous H

• Decision Date: 06 January 2022
• Citation: 2022 NY Slip Op 50088 (U)
• Parties: Anonymous K, Plaintiff, v. Anonymous H, Defendant.
• Court: New York Supreme Court

2022 NY Slip Op 50088(U)

Anonymous K, Plaintiff, v. Anonymous H, Defendant.

Supreme Court, New York County

January 6, 2022

Unpublished Opinion

MOTION DECISION

DOUGLAS HOFFMAN, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 012) 5, 61, 62 were read on this motion to/for ORDER OF PROTECTION.

This matrimonial action comes before the court upon motion seq 012 by Plaintiff-Wife [Anonymous K] ^[1] ("Plaintiff", "Wife", "Mother") for an order:

a) Pursuant to DRL§§ 240, 252, granting an emergency temporary full stay away order of protection against Defendant [Anonymous H] ("Defendant" "Husband", "Father") on behalf of the children, Bill [redacted], date of birth [redacted] 2007, and Alan [redacted], [redacted] 2009;

b) Reappointing the attorney for the children, Dawn Cardi Cardi & Edgar LLP, 99 Madison Ave 8th floor, New York, NY 10016, (212) 481-7770;

c) Reappointing the forensic evaluator, David L. Wolitzky Ph.D., 100 Bleecker Street, Suite 24F, New York, NY 10012, (917) 952-4477;

d) Pursuant to DRL § 240, directing a modification of the Parenting Plan and Custody Stipulation signed and Stipulated in October of 2016;

e) Granting Plaintiff leave to supplement her application to include any additional requests for relief based on material facts that occur or only become known to her between the date of the making of this application and the time of submission or hearing on this application;

f) Pursuant to DRL §§237, 238, 252(1)(f), directing Defendant to pay the reasonable costs and fees incurred by Plaintiff in the making of this application and the enforcement of any order resulting from it, as well as the enforcement of the relevant provisions in the parties' 2016 Custody Stipulation and Order;

g) Granting Plaintiff such other, further and different relief as the Court may deem just and proper.

During the extensive hearings conducted upon the motion, Defendant [Father] sought enforcement of his parenting rights set forth in the parties' so-ordered custody agreement (the "Agreement" or "Stipulation"), acknowledged by the parties on October 17, 2016. The parties were represented by highly experienced counsel when the Agreement was signed. Since that time, the parties engaged in a process of completing discovery and attempting settlement, made painstaking primarily by Husband's actions in not complying timely with discovery, failing to pay child support and not complying with requirements of multiple pretrial conferences, in addition to both parties filing an array of motions. Both parties' counsel withdrew during this period and Wife has proceeded in the instant hearing pro se. Husband did so as well, until he retained counsel, who was representing him in the financial trial segment of this action, late in the instant hearing.

The subject children herein are now 14 and 12 years of age, respectively. The parties have been living apart for more than 8 years. The Agreement provides in pertinent part that [Mother] shall have primary residential custody of the children subject to [Father's] parenting time, Art. II, par. 4, as specified therein, including, but not limited to, alternate weekends and Wednesday overnights. Importantly, during the summer vacation, as defined therein, each parent shall have two non-consecutive Monday through Friday vacation weeks with the children, with the remainder of the summer divided pursuant to the regular parenting schedule. Art. II, pars. 16, 17. Transitions were to occur at the lobby or building entrance of the residence of a particular parent depending upon the schedule. Each parent has the right to attend all of the children's extracurricular events and competitions. Par. 83. The parents agreed to joint legal custody of the children, Art. III, par. 32 in the context of a detailed decision making protocol, with spheres of final decision making carved out in the Agreement.

Very importantly, the Agreement provides that, "[t]he Parents agree to refrain from physically disciplining the Children, including but not limited to forcefully grabbing, hitting, and spanking the Children. The Parties agree to refrain from bullying or threatening the Children with physical harm." Par. 92. The parties agreed to a non-disparagement clause, par. 95. The Agreement provided that each parent has the right to initiate communication with the subject children by telephone or Skype or equivalent when the children are with the other parent for up to 15 minutes at a specified time, with the custodial parent having the obligation to utilize best efforts to make the children available to speak with the other parent initiating the communication. Par. 98. Relatedly, each parent is required to "encourage, permit and facilitate unlimited daily communication (i.e. telephone, electronic system, text, e-mail, etc.), during reasonable hours, initiated by a Child to the other Parent." Par. 99 (emphasis added).

Through the instant motion, Wife seeks, inter alia, to modify the custody agreement and to obtain an order of protection on behalf of the children based primarily upon allegations of abuse by Husband against Bill and Alan. The court granted the motion to the extent of re-appointing Dawn Cardi, Esq. as attorney for the children and conducting an extensive evidentiary hearing upon the motion. The court also conducted two in camera interviews with both children, the first taking place on August 18, 2020, shortly after the initial return date of the motion, and the second on June 30, 2021, toward the conclusion of the evidentiary hearing.

For the court to modify the custody agreement in the absence of an agreement between the parties to do so, it is well established that [Mother] would have to make a sufficient showing of a material change of circumstances, and then carry the burden of proving that the change would be in the best interests of the children. Yvette F. v. Corey JG Sr., 177 A.D.3d 549 [1st Dept 2019]. See also Matter of Jose M.C. v. Liliana C., 150 A.D.3d 514, 514 [1st Dept 2017]. "In order to modify an existing custody arrangement, there must be a showing of a subsequent change of circumstances so that modification is required to protect the best interests of the child. A parent seeking a change of custody is not automatically entitled to a hearing but must make some evidentiary showing of a change in circumstances sufficient to warrant a hearing." Gurewich v Gurewich, 58 A.D.3d 628, 629 [2d Dept 2009] (emphasis added). The court, therefore, must focus on the showing, if any, of a change in circumstances that is subsequent to the prior order, in this case the October 2016 custody and parenting agreement. See Sergei P. v. Sofia M., 44 A.D.3d 490, 490-91 [1st Dept 2007] ("A parent seeking a change of custody is not automatically entitled to a hearing. Where parents enter into a formal custody agreement, it will not be set aside without a showing of a sufficient change in circumstances since the time of the stipulation, and unless the proposed modification is shown to be in the best interests of the child. Furthermore, no court will modify such an order of custody granted on stipulation, absent such showings."); see also Tarpey v. Tarpey, 77 A.D.3d 912, 913 [2d Dept 2010] ("Where a voluntary agreement of joint custody is entered into, it will not be set aside unless there is a sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interests of the children. Furthermore, a parent who seeks a change in custody is not automatically entitled to a hearing but must make some evidentiary showing sufficient to warrant one") (citations omitted).

As is often the case, the same evidence here established both the material change of circumstances and the need for change in the custody and parenting plan. Throughout the evidentiary hearing, the court sought to encourage stability in the children's lives to the extent practicable under the particular circumstances of this case. As the Court of Appeals stated in Obey v. Degling, 37 N.Y.2d 768, 770 [1975]:

Custody of children should be established on a long-term basis, wherever possible; children should not be shuttled back and forth between divorced parents merely because of changes in marital status, economic circumstances or improvements in moral or psychological adjustment, at least so long as the custodial parent has not been shown to be unfit, or perhaps less fit, to continue as the proper custodian. The rearing of a child requires greater stability than a roller-coaster treatment of custody.

Upon receipt of the motion, the court ordered an investigation of the allegations ("COI") by ACS and directed ACS to appear pre-hearing and during the hearing to present testimony. From the court's perspective, the ACS investigation and testimony by the case worker were lacking in both skill and analysis, although the court does appreciate the efforts by both the ACS court liaison (as always) and child protective specialist ("CPS") to respond on an expedited basis to the court's requests for information concerning the allegations underlying this motion.

Both parties testified at great length during the evidentiary hearing. Natasha Cayemitte, CPS, ACS, testified as the court's witness. Ms. Cayemitte testified in pertinent part that the children did not display any marks or bruises and did not express fear of their father, but stated without explanation that they did not want to see their father. Ms Cayemitte testified that the children did state that their father pinned them down about 15 times, but the child protective specialist did not re-interview Father after hearing that statement from the children. Upon cross-examination by the attorney for the...