D. v. R.M.

• Decision Date: 09 August 2021
• Docket Number: V-0000-00/X
• Citation: 150 N.Y.S.3d 893 (Table),72 Misc.3d 1218 (A)
• Parties: In the Matter of a Proceeding Under Article 6 of the Family Court Act D.D., Petitioner, v. R.M., Respondent.
• Court: New York County Court

72 Misc.3d 1218 (A)
150 N.Y.S.3d 893 (Table)

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

V-0000-00/X

Family Court, New York, Nassau County.

Decided on August 9, 2021

Jennifer Moran, Esq., and Sari Friedman, Esq., Counsel for Petitioner.

Karen Charrington, Esq., Counsel for Respondent and Patricia Sokolich, Esq., Attorney for Children.

Conrad D. Singer, J.

The following papers were read on these Motions:

Attorney for the Children's Motion by OSC 1

Respondent Father's Affirmation in Support of the Application by Attorney for the Children 2

Petitioner Mother's Cross-Motion 3

Attorney for the Children's Affirmation in Opposition to

Cross-Motion and Reply 4

Respondent's Affidavit in Opposition to Cross-Motion and In

Further Support of Contempt Motion 5

Petitioner's Reply Affirmation in Further

Support of Cross-Motion 6

Before the Court in this custody and parenting time proceeding is the Attorney for the Children's ["AFC"] motion, filed by Order to Show Cause, which seeks an Order: 1) adjudging the petitioner mother, D.D. ("petitioner" or "mother"), in violation of the parties’ So-Ordered Stipulation of Settlement placed on the record on June 12, 2018 ("Stipulation"), which was incorporated, but not merged, in their Judgment of Divorce dated August 29, 2018 ["Judgment of Divorce"]; 2) holding the petitioner in civil contempt of court pursuant to Judiciary Law § 753 ; and 3) Pursuant to DRL § 240 and FCA § 651, modifying the custody terms set forth in the parties’ Stipulation and granting the respondent father, R.M. ["respondent", or "father"], sole legal and sole residential custody of the parties’ children, nine-year-old D.M. [DOB X/XX/XX] and five-year-old E.M. [DOB X/XX/XX] [the "Children"].

The respondent father's attorney filed an affirmation in support of the AFC's Contempt Motion.

The petitioner cross-moved by Notice of Motion, requesting an Order that: 1) removes the AFC from this case, on the basis of a conflict of interest; 2) re-appoints the Court-Appointed forensic evaluator, Dr. P.F.; 3) schedules an in camera interview between the Court and the subject Children, outside of the presence of the current AFC; 4) modifies the terms of the Judgment of Divorce, directing that the respondent's parenting time with the subject Children be limited to therapeutic visitation; 5) directs that all communication between the parties occur in writing, via email; 6) denies the relief requested in the AFC's application in its entirety; and 7) grants the petitioner such other and further relief as the Court deems just and proper.

The AFC filed an Affirmation in opposition to the petitioner's Cross-Motion and in further support of her Contempt Motion against the mother.

The respondent also filed an Affidavit in opposition to the petitioner's Cross-Motion and in further support of the AFC's Contempt Motion.

The petitioner's attorney filed a Reply Affirmation in further support of the petitioner's cross-motion.

The AFC's Contempt Motion and the petitioner's Cross-Motion for Removal of the AFC are determined as follows:

The AFC's Contempt Motion consists of an affidavit in support by the respondent father, an affirmation in support by the AFC, and exhibits attached thereto. The AFC's Contempt Motion seeks an Order determining that the mother has violated the parties’ Stipulation dated June 12, 2018. Therefore, the Court hereby disregards those examples of the mother's allegedly alienating conduct included in the father's supporting affirmation which predate the prevailing custody order. Relevant to the Court's determination, the father contends that he is entitled to weekly parenting time every Tuesday and Thursday from 2:45 PM to 6:30 PM, and every other Friday to Sunday from 6PM to 6PM, and that he has not seen or Face-Timed with the Children since March 16, 2021. (Affidavit in Support by R.M. , dated June 11, 2021 ["M. Aff. In Support"], ¶¶ 2 and 3). He alleges that although he has arrived at the mother's home to pick up the Children for all his Court-ordered parenting time, the mother has refused to bring the Children out of the house, and she claims that the Children are afraid of the father and that they do not want to see the father. (M. Aff. In Support , ¶ 3).

The father contends that the children's alleged fear of him stems from an incident that occurred in early March of 2021, when the mother told the daughter D. to use her iPad to record the different rooms around the father's house and to send the mother the videos, or else the mother would access the videos by breaking into the father's iCloud account. (M. Aff. In Support , ¶ 20). He further alleges that on several occasions he caught the daughter taking video in each room and that the daughter admitted to him that the mother asked her to do it. (M. Aff. In Support , ¶ 20). The father contends that the daughter has been afraid to visit with him since that incident, and that there is nothing that he said or did that would cause the child to be afraid of him. (M. Aff. In Support , ¶ 20).

The father also alleges that the mother canceled the last four days of his court-ordered Christmas vacation with the Children in January of 2020 [M. Aff. In Support , ¶ 16], and that on April 7, 2020, she allegedly used a fabricated COVID-19 diagnosis to cancel his spring break vacation with the Children. (M. Aff. In Support , ¶ 17). The father contends that on April 7, 2020, she made up a story that the father's girlfriend E. snuck into their daughter D.’s room and cut her hair while she was sleeping and that the mother convinced the daughter that such allegations were true. (M. Aff. In Support , ¶ 18). He alleges that on October 31, 2020, the mother told the father's friend that she wanted to harass the father's girlfriend until she eventually hits the mother so that the mother could get her arrested and sent back to Florida. (M. Aff. In Support , ¶ 19). The father fails to set forth a basis as to why the alleged incident between the mother and the father's friend would constitute a violation of the parties’ prevailing custody order.

The father also contends that on April 15, 2021, the AFC sent a letter to the mother's counsel to facilitate the father's parenting time with the children. (M. Aff. In Support , ¶ 26; Exhibit 12 attached thereto ). He further contends that the mother's attorney refused to consider the AFC's proposal, and that it is unclear whether her attorney informed the mother about the request. (M. Aff. In Support , ¶ 27). The AFC's motion includes a list of dates on which the father has allegedly missed parenting time with his children. (M. Aff. In Support , ¶ 27; Exhibit 13 attached thereto ).

The AFC's Contempt Motion also includes the AFC's affirmation, in which she argues that "this is a clear case of parental alienation" and that therefore a change in custody is warranted at this time. (Affirmation of Patricia Sokolich, Esq. , dated June 11, 2021 ["Sokolich Aff. In Support"], ¶ 4). The AFC alleges that the mother has insisted to her that she encourages the children to visit with their father and that they are afraid to spend time with their father because they believe that his girlfriend is going to poison them. (Sokolich Aff. In Support , ¶ 7). The AFC contends that the children have told her that they do not want to see their father. (Sokolich Aff. In Support , ¶ 8). However, she further contends that they have never told her that they are afraid of their father or that he is mean to them. (Sokolich Aff. In Support , ¶ 8). She contends that the father appears for every pick-up, but the Children refuse to leave with him. (Sokolich Aff. In Support , ¶ 9).

The father's attorney submitted an affirmation in support of the AFC's Contempt Motion. The father's attorney contends that the AFC has extensive history representing the Children and that she has always communicated their desires without substituting her judgment. (Affirmation in Support of the Application by the Attorney for the Children , dated June 25, 2021; ["Charrington Aff. In Support" ¶¶ 5 and 6). The father's attorney further contends that the AFC requested that her office be used as a drop off location to facilitate visits between the Children and their father and that the mother refused the AFC's offer to do such. (Charrington Aff. In Support , ¶¶ 18 and 19). The father's attorney further contends that, "[u]nless this Court takes drastic action, Petitioner will continue her acts of unwarranted self-help and alienation to the detriment of the Children". (Charrington Aff. In Support , ¶ 25). The father's attorney further joins in the AFC's application to have the parties and/or children evaluated by L.J.G., LCSW-R to report her findings as to the issue of parental alienation. (Charrington Aff. In Support , ¶ 26).

The petitioner's Cross-Motion to Remove the AFC includes an affidavit from the mother, in which she contends that she has not orchestrated or encouraged the circumstances which have caused the father to miss parenting time with the Children. (Affidavit in Support of Cross Motion and in Opposition to Order to Show Cause , dated June 24, 2021 ["D. Aff. In Support of Cross-Motion"], ¶ 7). She further contends that the Children are outright refusing to go with their father and that they are telling their mother, their therapist, and their attorney that they do not want to go...