D.D. v. R.M., 2022-50181

CourtNew York Family Court
Writing for the CourtConrad D. Singer, J.
PartiesIn the Matter of a Proceeding Under Article 6 of the Family Court Act D.D., Petitioner, v. R.M., Respondent.
Decision Date10 January 2022
Docket NumberV-0000-00/00X,2022-50181

In the Matter of a Proceeding Under Article 6 of the Family Court Act D.D., Petitioner,

R.M., Respondent.

No. 2022-50181

Docket Nos. V-0000-00/00X

Family Court, Nassau County

January 10, 2022

Unpublished Opinion

Sari Friedman, Esq., and Jennifer Moran, Esq., Attorneys for Petitioner, D.D.

Karen Charrington, Esq., Attorney for Respondent, R.M.

Patricia Sokolich, Esq., Attorney for Child.

Conrad D. Singer, J.

The following papers were read on this Motion:

Respondent's Notice of Motion (Motion #6) and Supporting Papers 1

Petitioner's Notice of Cross Motion (Motion #7) and Supporting Papers 2

Respondent's Affirmation in Opposition (Motion #7) and Reply (Motion #6) 3

Petitioner's Affirmation in Reply (Motion #7) 4

The father in these custody modification proceedings, R.M. ("respondent" or "father"), moved for an Order which dismisses the petition filed by the mother, D.D. ("petitioner" or "mother") under Docket Numbers V-00000-00/00X and V-00000-00/00X as moot and pursuant to res judicata. The mother filed a Cross-Motion for an Order which: 1) denies all the relief requested in the father's Motion to Dismiss; and 2) imposes sanctions and costs on the respondent pursuant to 22 NYCRR § 130-1.1. The father filed an affirmation in opposition to the mother's Cross-Motion and in further support of his Motion to Dismiss, and the mother filed an Affirmation in Reply on her Cross-Motion. The Attorney for the Children has not filed any papers in response to the Motion to Dismiss or the Cross-Motion. The father's Motion to Dismiss and the mother's Cross-Motion are determined as follows:

The parties were divorced pursuant to a Judgment of Divorce that was entered on September 5, 2018, and which incorporated but did not merge with their So-Ordered Stipulation entered into in open Court on June 12, 2018. Their prevailing custody/parenting time arrangement is set forth therein and provides as follows: that the mother has sole legal and sole residential custody of the parties' two minor children, D. [D.O.B. 00/00/0000], and E. [D.O.B. 00/00/0000], and the father has court-ordered parenting time on alternate weekends from Friday evening to Sunday evening, every Tuesday and Thursday after school, as well as pursuant to a holiday schedule.

This Court first became acquainted with the parties in May of 2018, when the mother filed a Family Offense petition against the father, which she subsequently withdrew. On July 3, 2019, she filed a modification petition for an Order that would permit her to relocate with the children to Florida and would modify the father's parenting time schedule to accommodate such relocation. ("Relocation Petition"). The mother's Relocation Petition was the first in a flurry of filings brought by both parties, consisting of family offense petitions and custody/parenting time modification petitions.

In December of 2020, the Court conducted a fact finding on the mother's Family Offense petition against the father filed under Docket Number O-00000-00, during which both the mother and father testified, and the Court found, after having closely observed the parties' demeanors, facial gestures and appearances, that the mother lacked credibility while testifying, and that she had failed to prove that the father had committed a family offense. The mother's Family Offense petition was dismissed.

The extensive Family Court litigation involving the mother and father also included related family offense proceedings brought by mother against the father's live-in paramour, E.J. [File Number 000000, Docket Numbers O-00000-20; O-00000-20/20A, O-00000-20/20B and O-00000-20/21C]. As discussed by the parties' respective attorneys in their motion papers, the Court conducted a full fact-finding on the mother's Family Offense and Violation petitions against Ms. J., consisting of multiple days of testimony from witnesses including the mother and the father. On August 9, 2021, the Court issued a decision as stated on the record in open court, in which the Court dismissed both the mother's Family Offense Petition under Docket Number O-000000-20 and Violation Petition under Docket O-00000-20/21C with prejudice after Fact Finding. The mother withdrew her Violation Petition filed under Docket O-00000-20/20B. After finding that the mother had established a violation of the Temporary Order of Protection in the violation proceeding filed under Docket Number O-00000-20/20A, the Court ordered the matter to proceed to a dispositional hearing on that petition. On October 29, 2021, after conducting the dispositional hearing, the Court determined that the appropriate disposition would be to take no action and dismissed the mother's violation petition under Docket Number O-00000-20/20A.

From the time the mother filed her Relocation Petition in July of 2019 to the present, the parties have regularly appeared before the Court and have consistently remained under the Court's supervision. During the months in which the Court operated under the statewide-mandated "Virtual Chambers" model [1], court staff conducted numerous off-the-record attorney conferences and the parties continued to file Orders to Show Cause which were addressed by the Court on an exigent basis. As soon as the Family Court was authorized to return to on-the-record proceedings, the parties resumed appearing before the Court for on-the-record conferences and hearings.

As is evident from the preceding recitation of the procedural history of this case and the related Family Offense proceedings between Ms. D. and Ms. J., the Court has become considerably familiar with the parties to this litigation. Nearly all of the parties' outstanding custody/parenting time modification petitions have been resolved due to the withdrawal of such petitions or by the Court granting an application to dismiss. Only the mother's parenting time modification petition under Docket Numbers V-0000-19/20E and V-0000-19/20E, and which is the subject of the parties' current motion practice, remains pending before the Court.

On June 1, 2020, the mother filed a petition by Order to Show Cause under Docket Numbers V-0000-19/20E and V-0000-19/20E, for an Order which: modifies the terms of the parties' prevailing custody and parenting time Order, to suspend or limit the father's parenting time to supervised parenting time. The mother also sought interim relief, i.e., for the Court to issue an Order, pending the hearing and determination of the matter, to suspend or limit the father's parenting time to supervised parenting time. The Court denied the mother's request for interim relief.

In her Modification Petition filed in support of her Order to Show Cause, the mother alleged that the father continued to allow Ms. J. to be present during his parenting time with the children, in spite of the Temporary Order of Protection ["TOP"] issued against Ms. J., which required her to stay away from the children and from the home, structures or buildings in which they were present. The mother alleged that on May 28, 2020, the father permitted Ms. J. to be present during his parenting time and then asked the children to lie to the mother about it to cover up his violation of the TOP.

In her Modification Petition, the mother cited to the Family Offense petition she filed against Ms. J. under File Number 000000, Docket Number O-00000-20, and called attention to the following allegations set forth therein: the allegation that Ms. J. repeatedly threatened to "poison" the children; the allegation that Ms. J. called her from a blocked number and told her to "watch her back and her kids too"; the allegations that Ms. J. has poured ammonia on the children's clothes, improperly disposed of her son's medication, sent the children back to the mother's house in soiled underwear, and that she allegedly drove recklessly with the children in the car which resulted in a car accident. She alleged that on November 30, 2018, Ms. J. was indicated on inadequate guardianship and excessive corporal punishment due to her conduct toward her own thirteen-year-old son, J.

She also cited to a previous Emergency Order to Show Cause filed April 6, 2020, that she had filed which was based on allegations that the father had, on over twenty occasions, allowed Ms. J. access to the parties' children, and that the father had also allowed Ms. J. to mistreat the parties' children, including by placing urine in their daughter's boot and putting "white stuff" in their daughter's hair. The mother's petition states that a copy of the April 6, 2020 Order to Show Cause was attached thereto as Exhibit E, but the Court has reviewed the petition in its entirety and has not located an "Exhibit E" attached thereto.

The mother also cited to an incident alleged to have occurred on April 7, 2020, in which she learned that Ms. J. had cut a section of the daughter's hair at the roots. The mother also cited to the fact that on April 16, 2020, she filed a Violation Petition against Ms. J., due to Ms. J.'s alleged repeated failure to comply with the TOP issued against her. She cited to the fact that on April 30, 2020, this Court issued an updated TOP against Ms. J., which required Ms. J. to stay away from the children and stay away from any home, structure, and building in which the children are located while the children are in that home, structure, or building.

The mother alleged that on May 28, 2020, in spite of the clear and unequivocal language in the updated TOP issued on April 30, 2020, Ms. J. was present in the home that she shares with the father during the father's parenting time with the children. Ms. D. further alleged that when the parties' daughter returned home at 6:45 PM, the daughter told Ms. D. that Ms. J. was in the house during the father's parenting time, that she was "downstairs near the kitchen" in "sleep clothes that were pink with hearts". She further alleged that the parties'...

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