K.W. v. W.B.

• Decision Date: 06 October 2023
• Citation: 2023 NY Slip Op 51095 (U)
• Parties: K.W., Plaintiff, v. W.B., Defendant.
• Court: New York Supreme Court

2023 NY Slip Op 51095(U)

K.W., Plaintiff,
v.
W.B., Defendant.

Supreme Court, Westchester County

October 6, 2023

Unpublished Opinion

HON. ANAR RATHOD PATEL, A.J.S.C.

The Court presided over an eleven (11)-day non-jury trial in this matter on the following dates: April 5, 7, 10, 11, 12, 17, 18, 19, 20, 27, and 28, 2023, as to the relief sought in Defendant's Motion Sequence Numbers 20, 24, and 27, seeking, inter alia, sole legal and physical custody of the parties' children, the right to travel with the children without the consent of Plaintiff and approval of the Court, and that Plaintiff be held in contempt of Court for violation of the parties' stipulation as to custody and access. Plaintiff was represented by [Redacted], Esq. and [Redacted], Esq. of the law firm of [Redacted] ^[1]; Defendant was represented by [Redacted], Esq.; the Children were represented by Attorney for the Children [Redacted], Esq.

The Court bifurcated the trial as to the issues of custody, access, international travel, and contempt, and the financial issues related to any modification of child support and counsel fees. The Court refers to its prior Decision and Order on Motion Sequence Number 24 regarding international travel, rendered from the bench and on the record in open court on June 2, 2023, whereby the Court granted Defendant's motion seeking modification of the parties' March 2019 Stipulation, and Revised Judgment of Divorce. See NYSCEF Doc. No. 445. Accordingly, this Decision After Trial addresses Motion Sequence Numbers 20 and 27 as related to the issues of custody and access.

Parties filed the consolidated trial transcripts ("Tr.") on May 30, 2023, and post-trial memoranda on July 6 and 7, 2023. See NYSCEF Doc. Nos. 388, 436-428. After considering the procedural history of this case, the papers in support of and in opposition to Motion Sequence Numbers 20 and 27 (see NYSECF Doc. Nos. 3-48, 177-199, 206-213, 221, 223-228), the testimony of the parties in addition to the twelve (12) witnesses at trial, the documents and audio recordings admitted into evidence, and the post-trial submissions, the Court hereby makes the following findings of fact and reaches the following conclusions of law.

Relevant Factual and Procedural History

The parties were married on June 3, 2015, and are the parents of O.B., born [Redacted], 2013, and A.B., born [Redacted], 2015 (collectively, the "Children"). Plaintiff commenced a divorce proceeding by the filing of a Summons and Complaint on July 14, 2017. Pursuant to the parties' "Stipulation and Order Regarding Custody, Access and Child Support," dated March 22, 2019 ("March 2019 Stipulation"), the parties agreed that Plaintiff Mother would have custody of the Children, who would reside primarily with Plaintiff. Both parties agreed to consult each other as to decisions on major issues affecting the Children's health, education, religion, and general welfare, with Plaintiff retaining final decision-making authority. Ct. Ex. 1 (March 2019 Stipulation) at 4. The parties further recognized and agreed that their Children shall be afforded certain rights including, among others: "the right not to be told details to the underlying litigation between the parties"; "the right not to have a parent denigrate or otherwise engage in conduct or words intended to cause the child(ren) to hold the other party in lower esteem"; "the right to be free of being told untruths to or about the other party"; and "the right to be insulated from the conflicts and tactics by and between the parties." Id. at 9. The parties further agreed to a graduated access schedule as to Defendant whereby, commencing July 1, 2019, Defendant would enjoy access time with the Children on alternating weekends, Wednesday overnights, and alternating Monday night dinners. Id. at 11.

The parties were divorced by Revised Judgment of Divorce dated April 24, 2019, which incorporated but did not merge the March 2019 Stipulation. Six (6) different judges have presided over this case during the past approximately five (5) years, including this Court (Patel, J.), and-to date-thirty-five (35) motions have been filed.

May 26, 2019 Child Protective Services ("CPS") Report

On May 26, 2019, approximately one month after the Revised Judgment of Divorce was entered, Plaintiff filed a report with CPS alleging that (a) Defendant failed to properly supervise the Children during the weekend of May 17, 2019, and (b) Defendant scrubs O.B.'s penis too roughly when bathing him resulting in O.B. having contracted four (4) penis infections while in Defendant's care. Def. Ex. C (5/26/19 Office of Children and Family Services ("OCFS") Case No. 27287517). At the time of this report, O.B. was five years old and A.B. was three years old. The Westchester County Department of Social Services ("DSS") assigned the investigation to case worker [Redacted], who met in person with Plaintiff on May 28, 2019, at which time the case notes state the following:

• "Mother stated that there was a history of [domestic violence ("DV")] which is part of the reason for the divorce"

• "Mother stated the children stated that the father was sleeping, and they walked out of the house and a neighbor brought them inside. Mother stated that she didn't know what to do, so she had a conversation with her therapist and the therapist reported that it is for her to call CPS"

• "Mother stated that in addition to that, the children visit with the father for weekend visits [ sic ] and it appears that [O.B.] has infection or irritation in the penis"

• "Mother stated her daughter is reported to be using the bathroom too much so took [ sic ] [A.B.] to urologist and [ sic ] they found her to be medically clear. Mother stated that all the medical professionals" had told her that "it could be just stress related that she [ sic ] is using the bathroom too much and the routine of her visiting her dad"

• "In addition, mother stated that father has mental health issues that father is reported to be diagnosed with bipolar"

Id. The day before making the report to CPS, Plaintiff brought O.B. to [Redacted] complaining of "painful penis." Def. Ex. DD ([Redacted] Medical Records, O.B.). O.B. was seen by [Redacted], D.O. The visit history notes state, "Mom first noticed this 3 days ago. It was the day she picked him up from his dad's house, and wondered if dad washed him too [ sic ] hard in the bath." The [Redacted] records indicate that O.B. had a history of penis infections starting in/around January 2018. By e-mail dated May 30, 2019, Plaintiff provided her consent to [Redacted] personnel to speak with "social services" about the Children's health. Id.

Additionally, prior to making the report to CPS, Plaintiff brought A.B. to [Redacted] on May 8, 2019, complaining of "frequent urination." Def. Ex. DE ([Redacted] Medical Records, A.B.). A.B. was seen by [Redacted], D.O. The visit history notes state, "[p]atient has been having episodes of frequent urination in school and at home for the last few weeks mother reports she does not think the frequent urination is behavioral." Id. The records further indicate that [Redacted] "would not treat for a UTI [Urinary Tract Infection] at this point." Id. Thereafter, on May 20, 2019, Plaintiff brought A.B. to [Redacted], P.C. The reason for the appointment was "urinary frequency" and the history of present illness is described as "about two weeks ago she developed frequency and urgency (after being with father over a weekend)." Id. The urinalysis test did not show evidence of a urinary tract infection.

The OCFS file indicates that, during the course of the investigation, CPS case workers met with the parties (separately) multiple times, the Children, the daycare provider for A.B. ([Redacted]), the [Redacted] treating pediatrician ([Redacted]), the nurse for the Children's pediatrician ([Redacted]), Defendant's therapist ([Redacted]), and the [Redacted] Police Department; CPS also reviewed a letter from Plaintiff's therapist ([Redacted]). Regarding the allegation of failure to supervise, the case notes indicate that Defendant denied that he fell asleep, stated that he and the Children were "getting ready to go outside to ride a bike," but that he was using the bathroom and the Children went outside ahead of him. Id. He informed the case worker that he looked at the lock and, realizing that O.B. was tall enough to reach the lock, he went to the store to purchase a lock with a chain and a child safety lock, installed the locks, and also installed additional child safety locks throughout his home-as verified by the case worker. Id. Regarding O.B.'s penis infections, the case notes indicate that Defendant informed the case worker that he had communicated previously with O.B.'s pediatrician, who provided a soap and cream for O.B. Id. Defendant denied the history of DV and of mental illness. Id.

The CPS investigation was completed on July 18, 2019. By letter dated August 7, 2019 from OCFS to Defendant, Plaintiff's report was determined to be "unfounded," meaning that "CPS did not find believable proof (credible evidence) that a child was abused or maltreated." Def. Ex. B1 (8/7/19 OCFS Letter).

September 10, 2019 CPS Report

On September 10, 2019, [Redacted] filed a report with CPS to report the allegation that Defendant "put his fingers in his son, [O.B.'s] buttocks. The child asked his father not to do this, but father continued." Def. Ex. G (9/10/19 OCFS Case No. 2735817). The [Redacted] records for this visit indicate that Plaintiff brought O.B. for treatment on September 10, and Plaintiff stated to [Redacted] in private the following:

• "children were returned from school after a weekend with the children's father"

• "[O.B.] told mom, that according to mom, that 'Pappa had put his finger in my butt for a long time.'"

• "mom states that, one time in the past, [O.B.]

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