B.F. v. S.R.

• Docket Number: Docket No. V-23966-14/22F
• Decision Date: 15 November 2023
• Parties: In the Matter of Custody/Visitation Proceeding, B.F., Petitioner, v. S.R., Respondent.
• Court: New York Family Court

2023 NY Slip Op 51285(U)

In the Matter of Custody/Visitation Proceeding, B.F., Petitioner,
v.
S.R., Respondent.

Docket No. V-23966-14/22F

Family Court, Kings County

November 15, 2023

Unpublished Opinion

The petitioner B.F. was represented by Kreuza Ganolli, Esq.

The respondent S.R. was self-represented.

Robert A. Markoff, J.

Recitation, as required by CPLR §2219(a), of the papers considered in the review of the petitioner's motion, by order to show cause, for an order (1) holding the respondent father in civil contempt for failing to comply with court orders issued since August 11, 2022; (2) pursuant to Judiciary Law § 773 imposing civil contempt sanctions in the amount of $50 per day for each day beyond August 11, 2022 that the respondent father continues to fail to comply with the order for forensic evaluation and the order for supervised visitation with the petitioner mother; (3) directing that respondent father pay the petitioner $50 per day; and (4) for such other and further relief as the Court deems just and proper:

Order to Show Cause

Affirmation in Support

Affidavit in Support

Exhibits A-O

Affirmation of S. R. in Opposition to Order to Show Cause and

Cross Motion

Exhibit A

Affidavit of S. R.

Affidavit of T. R.

Exhibit B

Reply Affidavit

Exhibits A-I

Pursuant to a New Jersey judgment of divorce issued in April 2011 (hereinafter "final order of custody"), the mother was awarded primary physical custody of the subject child subject to parenting time with the father. In September 2014, the mother filed a modification petition in New York. In December 2014, the New York Family Court (Katz, J.) determined that New York would retain jurisdiction of custody issues in accordance with an on-the-record discussion between the judges of the New Jersey Superior Court and the New York Family Court. The New Jersey court then issued an order transferring all child custody issues to New York. In October 2018, the New York Family Court (Mulroy, J) granted the mother's modification petition and specified the father's parental access schedule. Thereafter, the parties continued to litigate child custody and visitation issues in New York.

As relevant to the instant motion, on April 19, 2022, the mother filed the subject petition to modify the final order of custody. On June 29, 2022, the mother filed a petition for a writ of habeas corpus alleging that the father failed to return the child after a visit. On July 5, 2022, the father filed a family offense petition against the child's stepfather wherein he alleged that the child reported that she was physically abused by the stepfather. The Family Court (Friederwitzer, J) issued a temporary order of protection on behalf of the child against the stepfather and directed the Administration for Children's Services to conduct a court-ordered investigation of the father's allegations. On July 14, 2022, the court conducted an in-camera interview of the subject child.

By separate orders each dated August 11, 2022, the Family Court (Friederwitzer, J.), among other things, dismissed the mother's petition for a writ of habeas corpus, awarded the father temporary residential custody of the child, and granted the mother temporary visitation with the child "supervised through Safe Horizon." Even so, since August 2022, the mother has had no visits with the child due to the father's failure to arrange visits with the court-appointed supervisors. Additionally, the proceedings on the mother's modification petition and the father's family offense petition have stalled because of the father's failure to comply with court orders directing him to participate in a forensic evaluation, and to produce the child to the attorney for the child (hereinafter "AFC").

The mother now moves, by order to show cause, for an order, inter alia, (1) holding the father in civil contempt pursuant to Judiciary Law §753 based upon his continuing failure to comply with court orders dated August 11, 2022, January 19, 2023, May 1, 2023, and July 25, 2023; (2) pursuant to Judiciary Law § 773 imposing civil contempt sanctions in the amount of $50 per day for each day beyond August 11, 2022; and (3) for such other and further relief as the Court deems just and proper.

In support of her motion, the mother submits, inter alia, the order dated August 11, 2022, in which the Family Court (Friederwitzer, J.) temporarily modified the final order of custody by awarding the father temporary residential custody of the child. On that same date, the court issued a separate order granting the mother temporary visitation with the child "supervised through Safe Horizon." The mother attaches a message from Shannon Hughes, LMSW, who is the Supervising Social Worker for Supervised Visitation Program of Safe Horizon indicating, among other things, that Safe Horizon checked with the father "several times to see if he could bring [the child] for evenings and he said no."

The mother submits the order dated January 19, 2023, in which the Family Court (Friederwitzer, J.) issued an order designating a licensed social worker, instead of Safe Horizon, as the supervision host between the mother and the child. The order directs visits to occur in New York at least one day every other week. Additionally, the order directs that the mother have daily phone/video calls with the child at 9:00 pm, except for Fridays.

The mother submits her own affidavit, to the effect that since August 11, 2011, she has not had a single supervised visit with the child. She avers that "[i]t has been a year since I have seen my daughter." Additionally, the mother avers that since June 2023, she has not spoken with her daughter over the phone, and, indeed, has been blocked from her daughter's phone.

On May 1, 2023, the court (Friederwitzer, J.) issued an order appointing a forensic expert to conduct a child custody evaluation, mental health investigation and parenting assessment to assist the court in determining the health, safety, welfare, and best interests of the child. The order directs the parties, upon receipt of the order, to "telephone the forensic expert, schedule appointments, and cooperate in all respects with the evaluation." The order directs the forensic expert to submit a final report within 90 days from the date of the order.

On June 3, 2023, the forensic expert issued a "non-compliance report" to the Family Court indicating that the mother contacted him, but that the father had not. Further, the forensic expert's report indicates that his office twice followed up with the father's attorney to no avail. The forensic expert reported that the mother was informed that "she [cannot] schedule any further appointments until Mr. R. contacts the office and completes the same initial assignments." On June 28, 2023, the forensic evaluator issued its second "non-compliance report" indicating that "[t]here has been no contact from Mr. R. and the evaluation is stalled as a result." On July 21, 2023, the forensic evaluator issued a third "non-compliance report" again indicating that "[t]here has been no contact" from the father, and the evaluation is stalled. On August 14, 2023, the forensic evaluator issued its fourth non-compliance report to the same effect. To date, the forensic evaluation has not even started due to the father's failure to even call the forensic expert as directed in the order.

By order dated May 1, 2023, the Family Court (Friederwitzer, J.) directed the father to produce the child to the AFC on July 5, 2023, at 4:00 pm. The father failed to produce the child as directed. On July 25, 2023, the parties appeared before this Court (Markoff, J.) for a status conference. The AFC was unable to take any position on behalf of her client because the father still had not produced the child to her. As such, this Court issued an order directing the father to "immediately arrange for production" of the child to the AFC, and further directed the father to comply with all prior orders. This Court warned that "[f]ailure to comply with court orders may form the basis for a contempt motion." The father did not comply with this Court's order which, in effect, prompted the mother to file the subject contempt motion.

In opposition to the mother's contempt motion, the father submits his own affirmation explaining, inter alia, that the reason he had not complied with the court's orders for supervised visitation with the mother is due to the child "refusing to cooperate with the court's orders," and that the child is "refusing to see her mother, talk to her lawyer or participate in forensics." The father asks whether he should "physically force a teenage abuse victim to go somewhere she doesn't want? Should I tie her up and drag her to New York?" Even so, the father affirms that, "the child would be open to reunification therapy in Lakewood, N.J. under the supervision of someone she knows and trusts in a location she feels safe." He also asks why the mother would "choose to not see her daughter for more than a...