East v. Usher E.

• Citation: 967 N.Y.S.2d 868,2013 N.Y. Slip Op. 50319,38 Misc.3d 1229
• Decision Date: 25 February 2013
• Docket Number: No. XX/13.,XX/13.
• Parties: MARY E., Plaintiff, v. USHER E., Defendant.
• Court: New York Supreme Court

38 Misc.3d 1229

967 N.Y.S.2d 868

2013 N.Y. Slip Op. 50319

MARY E., Plaintiff,

v.USHER E., Defendant.

No. XX/13.

Supreme Court, Kings County, New York.

Feb. 25, 2013.

Brynde Berkowitz, Esq., Brynde Berkowitz, P.C., Woodmere, for Plaintiff.

Bathsheba Epstein–Hersko, Esq., The Law Offices of Batheba Hersko PLLC, Brooklyn, for Defendant.

Melissa Bonaldes, Esq., Brooklyn, for the Children.

JEFFREY S. SUNSHINE, J.

In this custody dispute the Court is presented with a myriad of issues related to, inter alia, the custody of two 13 year old twins one of whom suffers from a severe eating disorder. The court is faced with allegations domestic violence, reciprocal claims of power imbalances, severely oppositional behavior and alienation. Complicating the issues are a family dynamic where both parents exercise poor judgment and lack insight.

Procedural Background

The court is called upon to determine custody of the parties' minor children, twins, G.E. and M.E.¹ who were born in August 1999. This matter was tried on the following dates: November 14, 2011; February 17, 2012; February 22, 2012; March 6, 2012; March 14, 2012; April 2, 2012; April 30, 2012; May 2, 2012; and June 18, 2012. Counsel submitted written summations in September and October of 2012. The court contacted counsel for both parties' on numerous occasions requesting a copy of the trial minutes.

On May 15, 2009 the plaintiff-mother filed a petition for an order of protection against the defendant-father, and a petition for an order of custody of the minor children of the marriage in Family Court, Kings County. On May 21, 2009, the father also filed a petition for an order of protection against the mother and a petition for an order of custody of the minor children of the marriage in Family Court, Kings County.² On May 17, 2010, in this court the plaintiff-mother brought an action for divorce against the father on the ground of cruel and inhuman treatment. On July 6, 2010, this court consolidated the Family Court petitions on consent into the Supreme Court, Kings County. At the time of the consolidation, there were five (5) minor children of the parties' marriage. To date, all of the parties' children other than the two (2) youngest daughters, G.E. and M.E., have reached the age of majority for purposes of a custody determination.

On October 5, 2011, this court issued an order providing that the minor children, Suzzane who is known by the name Shani (hereinafter referred to as Shani) (who has since reached the age of majority), G .E., and M.E. have alternate weekend visitations with the father, visitations on every Wednesday, and that the children spend the religious holiday, Succot, with the father in the presence of the adult siblings in October of 2011. The parties', in total, have eight (8) children.

The trial for the custody of the minor children, Shloimy, Motty, Shani, M.E. and G.E., commenced on November 14, 2011. The court appointed Rebecca Fort, Esq. to represent the male children Shloimy and Motty, and Melissa Bonaldes, Esq. to represent the female children Shani, G.E. and M.E. When the children reached that age of majority, eighteen (18), Ms. Fort was relieved as counsel for Shloimy and Motty and Ms. Bonaldes was relieved as counsel for Shani.

Dr. Rodrigo Pizarro ³ was appointed as a neutral forensic evaluator and conducted a forensic custody evaluation, dated April 8, 2011, regarding this matter, pursuant to 22 NYCRR 202.18. On February 17, 2012, in light of G.E.'s alleged diagnosis of a severe eating disorder this court issued an order, sua sponte, directing that Dr. Pizarro conduct an update to his forensic custody evaluation. Dr. Pizarro conducted an updated evaluation and issued an addendum, dated March 8, 2012. On March 14, 2012, Dr. Pizarro testified in court subject to cross examination. The reports were admitted into evidence on consent.

The pendente lite order dated February 17, 2012, also provided that G.E. remain in treatment for any eating disorder(s) as long as her treating doctors deemed medically necessary or further order of the court. Furthermore, the parties' were to enroll G.E. in therapy with Dr. Leah Davidowitz, a social worker who specializes in the treatment of eating disorders and was recommended by G.E.'s treating physicians. The order further provided that the parties' keep each other fully informed as to any issues regarding the children's medical and mental health care and well being, and that they communicate with each other via e-mail.

The Facts

The parties' were married on December 29, 1986, in New York.⁴ The parties' have eight (8) children of the marriage. The two (2) minor children, G.E. and M.E., are twins, currently thirteen (13) years old, and were born August 27, 1999.

The family for whom the father worked for introduced the father and the mother to each other. At the time they were introduced to each other, the mother was living with an individual related to the father's employer.

The father works as a warehouse manager at a paper factory. The mother previously worked as an insurance broker and is currently unemployed. She currently attends law school and the father testified that the mother was enrolled in law school for the last two and a half (2 1/2) years that they lived together.

Prior to the commencement of this action, the parties' resided together, with their children, at the marital residence in Brooklyn, New York. The father continues to live at the marital residence with one adult son of the parties' born on October 5, 1992. The parties' adult children visit the father at the marital residence during Jewish holidays and at other times.

On May 18, 2009, the mother moved with the minor female children to OHEL Children's Home and Family Services, a domestic violence shelter, where she lived for one and a half (1 1/2) years. In November 2010, the mother moved with the parties' three (3) minor daughters ⁵, to a one (1) bedroom apartment. Since January 2012, the mother has lived with three (3) of the parties' daughters in a three (3) bedroom apartment. The male children, at times, lived with the father but mainly resided at a yeshiva.

Domestic Violence

The mother testified that throughout the course of the parties' marriage the father physically abused her, exercised emotional and financial control over her, and he controlled access to her personal possessions. This court heard testimony from the mother, from Esther Katz (hereinafter referred to as Katz), Director of the Domestic Violence Shelter at OHEL, and from Shoshannah Frydman (hereinafter referred to as Frydman), who is a social worker and Director of Family Violence Services for Metropolitan Council whom is the mother's therapist. They both testified that the father exercised financial and emotional control, and that he verbally and physically abused the mother.

Frydman testified that based upon her experience and conversations with the mother, she thinks that the father was controlling towards the mother and that there were instances when he physically abused her, as well as a pattern of emotional control, financial control and control of the mother's personal belongings. Katz testified that “Mary experienced that marriage, their marriage is very controlling, that there was a few incidents of physical abuse, ongoing issues around emotional control, financial control. She described not having access to things within their own martial home.”.

Frydman testified that the mother discussed with her an incident that occurred in the winter of 2009 where the parties' “... were in their bedroom and there was some kind of verbal altercation and then at some point [Usher E]. picked up a glass frame, a picture frame, and threw it, and it shattered.” Frydman testified that during this incident, M.E. was outside the bedroom door and that G.E. ran out of the house. Neither of these witnesses observed what they testified to and it is conceded that these witnesses never spoke with the father. Instead, they are reporting what they were told by the mother.

The mother testified that between the years 2007 to 2009 the father pushed her down the stairs on two (2) different occasions. She testified that “[o]ne time when the husband pushed me, then they [G.E. and M.E.] covered themselves under the blanket because they didn't want to see anything”.

The mother testified that she was pushed down the stairs on another occasion, that [o]nce when I was going up the stairs and my husband pushed me down and I roll[ed] down all the way, all floors, all [the] way down to the first floor. [Shani] witnessed it and she was screaming. She went upstairs.

And the father was trying to close her mouth, so nobody should hear her. So she ran upstairs to her bed.... So the father went up and was trying to cover her head with the pillow so nobody should hear her, because the boys were coming later. She was saying loud that she's going tell everybody everything.

The mother testified that Shani, M.E., and G.E. witnessed the abuse that the father inflicted on the mother. She testified that “[m]any times when my husband used to yell, [G.E]. used to run out of the house, [M.E.] would try to protect me.” Katz also testified, based on what the mother told her, that the children witnessed the father subjecting the mother to emotional abuse by yelling, going into rages, and withholding help in the house. The mother also testified that the father would lock the door to a room which contained the mother's clothes, to deny the mother access to her clothes. Katz received this information that she testified to from speaking to the mother.

The mother testified that the father exercised extreme financial control. The mother avers that the father has been denying her access to any money since 2005. The father testified that prior to 2005, the mother was in control of household finances, but that from the years 2005 to 2009 he took control of the finances, because he discovered that the...