Jin C. v. Juliana L.
| Decision Date | 08 March 2013 |
| Docket Number | No. XXXXX.,XXXXX. |
| Parties | JIN C., Plaintiff, v. JULIANA L., Defendant. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Virginia Geiss, Esq., Brooklyn, Attorney for Plaintiff.
Sharyn M. Duncan, Esq., Brooklyn, Attorney for Defendant.
Randi L. Karmel, Esq., New York, Attorney for the Child.
The court is called upon to determine custody of the parties' one (1) minor child who was born in July 2008. The child is currently four (4) years old. The court bifurcated the issues of custody, visitation and the mother's application for a final order of protection.1 This matter was tried on: October 18, 2011, October 20, 2011, November 10, 2011 and January 26, 2012. Both parties were represented at that time by attorneys of their own choosing. 2 The Court directed the parties to submit minutes from the trial dates and written summations by March 26, 2013. This Court received a complete set of minutes on January 4, 2013.
The parties were married on December 28, 2007 in a civil ceremony in Brooklyn, New York. There is one (1) child of the marriage, a daughter, born in July 2008. The child is currently four (4) years old. Prior to the commencement of this action, the parties resided together, with their child, in Brooklyn, New York. The father commenced this action for divorce on November 25, 2009, less than two (2) years after the parties married.
The father has been employed by a rail road as a signal inspector for over ten (10) years. The mother was born in Indonesia and holds a Bachelor's degree in business management. The mother testified that she worked at a construction company as an accountant for two (2) years prior to giving birth and that she started working at another company, “R”, doing business accounting approximately four (4) months after the child was born. The mother testified that the paternal grandmother provided child care for the child while she and the father were at work but that she quit working two (2) months later because she objected to the manner in which the paternal grandmother took care of the child. The mother testified that she began working again in September 2009, approximately seven (7) months after leaving her employment at “R”, as a bookkeeper for the “N.A.” school. She testified that she left her employment at the “N.A.” school two (2) months later because the child was sick.
The parties both testified that they had a high-conflict relationship before they separated; however, the parties offered vastly conflicting testimony regarding alleged physical and verbal abuse during the marriage. The mother testified that the father did not provide for her during the pregnancy and that he “made a lot of mistakes” during the marriage. She testified that the father physically and verbally abused her during the marriage.
The father denied the mother's allegations of physical abuse and testified that it was the mother who physically and verbally abused him during the marriage. He testified that before the parties separated the mother “made a big thing out of everything,” that she objected to the time he spent with the paternal grandparents and his extended family and that she threatened to call his co-workers and the police if he did not comply with her demands.
The parties appeared for a preliminary conference before this Court on March 5, 2010 and this Court ordered that the mother make the child available so the father could have supervised parenting time, based on her allegations of physical violence, with the child every Saturday until the next adjourn date on March 15, 2010. The temporary order of visitation was subsequently extended by the Court at the subsequent court appearances on March 15, 2010, April 19, 2010 and May 5, 2010.
At the May 5, 2010 court appearance, the parties entered into a written consent stipulation, which this Court so-ordered, providing that the parties' child would not leave the United States without Court permission until further order of the Court. This Court issued temporary orders of protection in favor of both parties against the other.3
This Court requested a courtesy Court Ordered Investigation by the Administration for Children's Services (A.C.S.) on May 7, 2010 in response to the parties' counter-allegations regarding alleged domestic violence in the presence of the child and allegations that the father observed a bruise on the child's head.
The parties offered vastly different testimony regarding a shopping trip the family took to Kings Plaza Mall in Brooklyn, New York on October 18, 2008. The parties agreed that they parted at the mall to shop separately—the father shopping on his own and the mother taking the parties' young daughter in her stroller—and agreeing to meet again at 5:30 p.m.
The mother testified that when the father met her after shopping, he roughly pulled the stroller out of her hands and began to push the stroller and the parties' daughter to the parties' parked car, and that when she tried to follow them the father kicked her in her right thigh causing her pain so that she could not walk any further. The mother testified that the father took her purse and abandoned her in the mall parking lot without any money or means of transportation. She further testified that she had to borrow $10.00 from a mall security guard to hire a car service to get home.
The father denied hitting or kicking the mother at any time during the October 18, 2008 incident and testified that he was delayed by several minutes because he was in a check-out line and that during that time he missed several telephone calls from the mother. He testified that when he met the mother a few minutes after 5:30 p.m. that she yelled, called him names and kicked his foot in front of the infant daughter. He further testified that he began pushing the daughter's stroller away from the mother in an attempt to shield the child from witnessing the mother's behavior. He testified that the mother kicked and/or struck him approximately ten (10) times while he was pushing the stroller but that he did not use any return physical force towards her. The father testified that he did not kick the mother but that the mother hurt herself when she “charged” at him and that she hurt herself when she fell after he moved himself and the child in the stroller quickly out of her way to avoid her attack. He further testified that he left the mall with the parties' daughter after the mother said she was telephoning the police and was going to report that he hurt her. He testified that he returned to the mall to find the mother after he took the parties' daughter to the maternal grandparent's home so she would not witness the mother's behavior. The father testified that he later met with the mother at a neighbor's house and that the mother again threatened to telephone the police and report that he hurt her if he refused to sign a statement that she would get custody of the parties' daughter. He testified that she attempted to slap him when he refused to sign the statement and that the mother then telephoned the police. He testified that the police did not arrest him or file a report against him when they arrived. The mother testified that the police did not file a report against the father because she intervened and requested that they not arrest him.
The father testified that he took the daughter to the paternal grandparents' house on the afternoon of August 31, 2009 because the mother had a job interview. He testified that when the mother arrived at the paternal grandparents' house at approximately 6:00 p.m. she demanded that he drive her and the daughter to the marital residence. He testified that he told the mother that her request was unreasonable because it was rush hour and because he was painting a room in the paternal grandparents' home and needed a few more minutes to finish but that he would drive the family home very soon. He testified that he ultimately complied with the mother's demand to avoid an argument. He testified that while he was driving the mother and daughter home the mother, who was sitting in the back seat of the car with the daughter in a car seat, began hitting him and pulling his hair while he was driving on the highway. He testified that when the parties arrived at the marital residence the mother began throwing kitchen utensils and dishes at him and that the daughter started to cry and ran to him. The father testified that he tried to shield the child from seeing what the mother was doing with his body but that the mother picked up a knife with a six (6) inch blade and began approaching him. He testified that he grabbed the mother's hand and pulled the knife out and that the mother fell. He testified that when she got up she threatened to kill him and then she hit him in the face with a crystal bowl and her fists several times. He testified that the daughter was present during the struggle and that she began to cry. The father testified that he left the marital residence to avoid further confrontation with the mother. The father testified that, as a result of the mother's action on August 31, 2009, he feared for his safety. The father received medical treatment at Coney Island Hospital but testified that he did not file a police report on the night of the incident because the mother had a second-round job interview the following day and he did not want to interfere with her interview because she is the mother of their daughter and he knew how difficult the job market was at the time and he did not want her to be arrested. On direct examination, the father testified that:
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