G. v. A.H., V-18655-7/19, V-01953-5/20

CourtNew York County Court
Writing for the CourtAriel D. Chesler, J.
Citation72 Misc.3d 1216 (A),150 N.Y.S.3d 571 (Table)
Decision Date06 August 2021
Docket NumberV-18655-7/19, V-01953-5/20
Parties In the Matter of a Proceeding under Article 6 of the Family Court Act, A.G., Petitioner, v. A.H., Respondent.

72 Misc.3d 1216 (A)
150 N.Y.S.3d 571 (Table)

In the Matter of a Proceeding under Article 6 of the Family Court Act, A.G., Petitioner,
v.
A.H., Respondent.

V-18655-7/19, V-01953-5/20

Family Court, New York, Bronx County.

Decided on August 6, 2021


For petitioner mother A.G., Rachel Seger Cobos, Esq., 206 E. 163rd Street, Bronx, New York 10451, (914) 740-8151rachel@segercoboslaw.com

For Respondent father A.H., Harry M. Forman, Esq., 840 Grand Concourse, Suite 1A, Bronx, NY 10451, (718) 292-5299, hflaw71@gmail.com

For subject child R.H., The Children's Law Center by Jamie Beitler, Esq., 820 Concourse Village West, 5th Floor, Bronx, NY 10451, (718) 741-3400, JBeitler@clcny.org

For subject children N.H. and M.H., Katherine Tracey, Esq., Post Office Box 382, Bronx, New York 10471, (718) 612-4525, traceylegal2@gmail.com

Ariel D. Chesler, J.

NOTICE: YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER A COURT HEARING, RESULT IN YOUR COMMITMENT TO JAIL, FOR A TERM NOT TO EXCEED SIX MONTHS, FOR CONTEMPT OF COURT.

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF RECEIPT OF THE ORDER BY THE APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

It is the rare case in which the Court in a custody and visitation matter must consider denying visitation entirely to a parent or limiting a parent to supervised visitation. This is such a case. The father's conduct over the course of the parties’ relationship included abandoning and unlawfully imprisoning the mother and the parties’ eldest child in the country of Jordan for seven years, where they were isolated, deprived of food, and subjected to cruelty by the father's relatives, and were entirely dependent on the father's family for all their basic daily needs. When the mother and eldest child came to the United States and lived with the father in Ohio, the father continued to exhibit an extreme level of control over the mother and the eldest child. He denied the mother access to her identification documents, prevented her from working or having her own bank account, and monitored her movements. He would also scream, curse and threaten the mother and the eldest child, a daughter, and would demand their daughter dress in a certain way. In some instances, these episodes would escalate to physical violence directed at the mother and daughter. Separately, the father repeatedly forced the mother to have sexual intercourse with him. All of this conduct led to this Court issuing a five-year final order of protection in favor of the mother and all three children.

Further troubling is the father's violations of orders of protection, efforts to locate the mother despite such orders, failure to comply with the safety protocols of the supervised visitation ordered by this Court, and his complete and continuous failure to respect the authority and jurisdiction of this Court and related failure to comply with various orders of this Court, including directives to turn over the mother's and children's passports and other identification documents.

It is in this context and set of circumstances that this Court now grants the mother sole legal and physical custody of the children, denies the father any visitation or contact as to the child R.H., and grants the father limited visitation and contact with the children N.H. and M.H., as will be further described below.

Background and Procedural History

The parties were married in an Islamic religious ceremony in the Dominican Republic in 2002. The parties have three children: R.H., born XX/XX/XXXX in the Dominican Republic; N.H., born XX/XX/XXXX in Ohio; and M.H., born XX/XX/XXXX in Ohio. In 2004, the parties and R.H. traveled to Jordan. At some point, a period of time after they arrived in Jordan, the father left Jordan; the mother and R.H remained there until 2012 when they came to Ohio to live with the father.

On November 28, 2018, the mother filed a petition for an order of protection in Ohio. In that pro se filing, the mother alleged that the father had threatened to kill her and her friends if she did not do what he said; that he "ke[pt] trying to force [her] to have sex with him"; that the father "control[led] everything around [her]"; that he tracked her phone in order to know who she called and where she went; that he "lie[d] to people and spread[ ] rumors" about her, in order to ensure that she had no one upon whom she could rely for help; and that he "stalk[ed]" her on social media and created "fake accounts," pretending to be women, in order to follow her.

Although the mother obtained an order of protection in Ohio, the father sent associates to intimidate the mother to drop the case. Thereafter, on or around December 5, 2018, the mother left the family home in Ohio, and fled to New York with the children. The mother and the children initially stayed with a maternal uncle in Yonkers, New York, and then moved into the shelter system, with a confidential address.

On January 28, 2019, the Ohio court issued an order dismissing the mother's domestic violence petition, without prejudice, due to her failure to appear for the hearing that had been scheduled for December 21, 2018, or to respond to an attempt to contact her on January 8, 2019.

This matter commenced in June 2019 when the mother filed pro se family offense and custody petitions in Kings County. A temporary order of protection was issued and the matters were transferred to Bronx Family Court. On August 19, 2019, the mother appeared before this Court and the father appeared by his counsel. The Court extended the temporary order of protection and assigned counsel for the mother. When the matter returned on September 19, 2019, based on the allegations in the petitions and other factors, this Court took emergency jurisdiction of the custody petition.

Meanwhile, a custody proceeding had been commenced by the father in Ohio on April 18, 2019. Although efforts were made by this Court to learn the status of the matter in Ohio, no definitive answer was obtained from Court staff in Ohio. Thereafter, it was learned that the Ohio Court had issued a final order of custody to the father on default on October 4, 2019.1 On October 29, 2019, the father appeared with counsel after filing a writ of habeas corpus demanding the return of the children as well as a motion to dismiss the mother's custody petition. The children were ordered to be produced to Court and an attorney was assigned for them.2

At the next conference on November 11, 2019, the Court was advised that the mother was never served with the petition in the Ohio matter and had filed a motion to stay and dismiss the Ohio default order. The children were also made available to their attorney who opposed any visitation for the father, and the writ of habeas corpus was deemed satisfied.

A jurisdictional conference was arranged with the Honorable Anthony Capizzi of the Common Pleas Court of Montgomery County, Ohio for December 18, 2019. Counsel for the parties in both this matter and the Ohio matter, as well as Judge Capizzi and this jurist appeared at the conference. Judge Capizzi advised that at that point the Ohio default custody order had been vacated based on issues with service, but that the vacatur decision had been appealed by the father.3 Ultimately, based on an agreement between the two courts it was determined that New York should retain jurisdiction. Therefore, this Court issued an order on December 18, 2019 reflecting that agreement and stating that New York had jurisdiction and would retain the case. This order thus resolved any jurisdictional concerns and settled that issue. The Court separately denied the father's motion to dismiss this proceeding. In another order issued that same date, the father was directed to turn over passports, social security cards, birth certificates and all personal documents for the children by January 10, 2020.

At the conference on January 29, 2020, the Court was advised that the father had failed to turn over any documents as ordered. The Court issued another order directing the father to turn over all documents in his possession by February 7, 2020. This order added a contempt warning in the event it was not followed. At that time, the father had also filed his own custody petition in New York and, based on safety concerns raised, the Court directed him to have visitation with the parties’ two younger children through Safe Horizon. The visitation order specified that all communication during the visits would be in English and that the father was not to question the children about their residence, school or neighborhood as they were living in a confidential shelter. At that time, a pretrial conference date was set for March 2020 and trial dates were selected in April and May 2020. The pandemic would come to greatly delay the proceedings and trial in this matter.

Unfortunately, due to the COVID-19 pandemic and issues with the father changing attorneys, the next time the matter could be heard was in September 2020. Some of the delay was caused because there was an issue arranging for the father's prior counsel to sign a consent to change attorney form. Safe Horizon had facilitated a number of visits with the two younger children between February and March 2020 and provided a report to the Court. While there were positive...

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