D.A. v. N.A.

• Docket Number: Index No. 2206/2016
• Decision Date: 21 November 2023
• Parties: D.A., Plaintiff, v. N.A., Defendant.
• Court: New York Supreme Court

2023 NY Slip Op 51298(U)

D.A., Plaintiff,
v.
N.A., Defendant.

Index No. 2206/2016

Supreme Court, Westchester County

November 21, 2023

Unpublished Opinion

Hon. James L. Hyer, J.S.C.

Basic Background & Procedural History

The parties to this matter were married on March 13, 2003, in Yorktown, New York. Together, they have one unemancipated child - R.A. (born XX/XX/2007) (hereinafter referred to as the "Child").

Plaintiff commenced this matrimonial action on June 16, 2016, with the filing of a Summons and Complaint.

The parties settled the ancillary issues by a written Stipulation of Settlement entered into between the parties on August 14, 2019, which was so-ordered by the Hon. Helen M. Blackwood, A.J.S.C. on August 15, 2019, and an Addendum to Stipulation of Settlement entered into between the parties on August 15, 2019, which was so-ordered by the Hon. Helen M. Blackwood, A.J.S.C. on August 15, 2019 (hereinafter referred to as "Stipulation #1").

A Judgment of Divorce was entered by the Hon. Helen M. Blackwood, A.J.S.C. on September 11, 2020, which dissolved the parties' marriage pursuant to New York State Domestic Relations Law § 170(7), being that the parties' marriage had irretrievably broken down for a period in excess of six months and incorporated by reference the terms of Stipulation #1 (hereinafter referred to as the "Judgment of Divorce"). The Judgment of Divorce further noted that it was, "Ordered and Adjudged that the issues of custody and child support have not yet been determined by the Court and shall be determined by the Court at a later time..." (Judgment of Divorce at 3).

On August 26, 2021, the parties entered a Custody and Visitation Stipulation (hereinafter referred to as "Stipulation #2"), which set forth terms by which the custody and access of the Child were agreed upon, including, but not limited to, the following:

WHEREAS, the Parties desire that this Stipulation, which is entered into after due and considered deliberation, shall be and constitute an agreement and stipulation between them with respect to the custody and visitation of the Child. The Parties acknowledge and agree that this Stipulation constitutes their entire understanding between them and they agree that the following provisions will constitute a full and final resolution of all their respective claims pertaining to custody and visitation of the Child; and that this Stipulation shall be So-Ordered by the Supreme Court of the State of New York, County of Westchester; and

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WHEREAS, the Parties acknowledge that it is their intention through this Stipulation to provide a stable environment for the Child; and

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1. The Parties wish to make a provision for the custody and parenting time with the Child in a manner that takes cognizance of the paramount important of the Child's welfare and well-being. The Parties shall share joint legal custody of the unemancipated Child, to wit R.A., born XX/XX/2007 (the "Child"). The Mother shall have sole physical custody and the Child shall reside primarily with the Mother subject to the rights of the Father, including but not limited to, the holiday, recess and summer vacation schedule as set forth in this Stipulation.

2. The care and custody of the Child by the Mother shall be under the supervision of WCDSS upon certain terms and conditions through November 12, 2021. The Mother shall comply with the following terms and conditions of supervision:

a. The Mother shall immediately open a voluntary preventative services case with the Westchester County Department of Social Services;

b. The Mother shall provide the Child with all recommended services and timely transport her to all appointment from Westchester County Department of Social Services;

c. The Mother shall cooperate with supervision by WCDSS, such supervision shall include, but not be limited to, case planning, casework counseling, and announced and unannounced visits to the Mother's residence, and the Mother shall follow any and all recommendations from such casework counseling;

d. The Mother shall cooperate with the Child's treating professionals, including, but not limited to, family therapy, and the Mother shall follow any and all recommendations resulting therefore;

e. The Mother shall not disparage the Father in the presence of the Child and the Mother shall refrain from any and all negative comments about the Father in the presence of the Child;

f. The Mother shall sign releases necessary to allow WCDSS to monitor her compliance with services and this Agreement;

g. The Mother shall sign new HIPPA consent forms to allow WCDSS to verify that she is in therapy;

h. The Mother shall sign new consent forms for the Child's medical doctors, therapists, and school to allow WCDSS to obtain information and speak with them regarding the Child;

i. The Mother shall work with St. Christopher's Health Homeworker and Single Point of Access worker to ensure the Child's physical and emotional and mental health needs are being met; and

j. The Mother shall immediately notify WCDSS of any changes in her address and/or phone number.

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6. The Mother and Father agree that it is of paramount importance for each of them to remain involved in parental decisions and guidance for the Child. The Parties acknowledge that the welfare of their Child is their primary concern, and that neither party will take any action whatsoever to arbitrarily interfere with or impede the custodial rights provided in this Stipulation.

7. Each party agrees to make every reasonable effort to cooperate with the other in all matters affecting the Child's well-being, including her physical, mental, emotional, educational, and spiritual well-being. The parties further agree to advance the Child's emotional and physical well-being and to secure for the Child the affection of both Parties. Each party shall use his or her best efforts to keep all conversations, notes, and documents concerning any parental disagreements away from the Child.

8. The Parties shall make every reasonable effort to foster a feeling of love and affection between each parent and the Child. Neither party shall do anything which may estrange the Child from the other party, or which may hamper the free and natural development of the Child's love and respect for the other party. Each party shall refrain from any act or statement that might tend to reduce the Child's respect and affection for the other party, and shall use his or her best efforts to prevent such actions by any family member or other third-party. Neither party shall denigrate the other in the presence of the Child nor shall they permit, to the extent of their capacity, others to do so. Neither the Mother nor Father shall utilize the Child as a go-between or messenger between the parties. The Parties shall endeavor to not discuss or involve the Child in the Parties' litigation. Neither party shall, directly or indirectly, influence the Child so as to prejudice them against the other party. Neither party shall disparage the other parent in the presence of the Child and both parties shall refrain from any and all negative comments about the other party in the presence of the Child.

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19. The Parties agree that they shall not unreasonably interfere with the other party's parenting time or the Child's normal and usual activities, including but not limited to the Child's normal religious observances, school schedules, extracurricular and social activities, counseling or health and educational needs or requirements...

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21.... Neither party shall interfere with or prohibit the Child from contacting the other party, either by telephone, e-mail, text, or other form of communication.

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23. The Parties have read the following Children's Bill of Rights and agree to respect and comply with same:

a. The right not to be asked to "choose sides" between their parents;

b. The right not to be told the details of bitter or nasty legal proceedings going on between their parents;

c. The right not to be told "bad things" about the other parent's personality or character;

d. The right to privacy when talking to either parent on the telephone;

e. The right not to be cross-examined by one parent after spending time with the other parent;

f. The right not to be asked to be a messenger from one parent to the other;

g. The right not to be asked by one parent to tell the other parent untruths;

h. The right to not be used as a confidant regarding the legal proceedings between the parties;

i. The right to express feelings, whatever those feelings may be;

j. The right to choose not to express certain feelings;

k. The right to be protected from parental warfare; and

l. The right not to be made to feel guilty for loving both parents.

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27. The Mother and Father shall each write a letter to the Child (in English) stating the importance of having the other party in the Child's life and giving permission to the Child to have and maintain a good relationship with the other party. The letter shall also state what the specific ways the Mother and Father support having the other party in the Child's life and why. The Child, Mother and Father shall be provided with both letters, which shall occur before the Father's first regularly access schedule weekend visitation.

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1. Regular Access Schedule:

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b. The Parties shall take into consideration the Child's wishes as to the visitation/access time that is to take place between the Parties and the Child.

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2. Holiday and Recess Schedule:.... Except as otherwise set forth herein, in the event that a holiday, recess, or vacation

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