Rochel H. v. Joel H., XX/17.

• Court: United States State Supreme Court (New York)
• Citation: 57 N.Y.S.3d 677 (Table)
• Docket Number: No. XX/17.,XX/17.
• Parties: ROCHEL H., Plaintiff, v. JOEL H., Defendant.
• Decision Date: 04 May 2017

57 N.Y.S.3d 677 (Table)

ROCHEL H., Plaintiff,
v.
JOEL H., Defendant.

No. XX/17.

Supreme Court, Kings County, New York.

May 4, 2017.

Neuhaus & Yacoob, LLC, by Joel Yacoob, Esq., Brooklyn, Attorney for Plaintiff.

Mary Grace Condello, Esq., Brooklyn, Attorney for Defendant.

The Legal Aid Society, by Amy Serlin, Esq., Brooklyn, Attorney for the Children.

JEFFREY S. SUNSHINE, J.

Rarely has this Court been required to determine the issues of custody and parenting time facing the stark realization that both parents have in the past posed significant risks to the other parent and to their young children. It is clear to this Court that the power struggle between these parents, which involves their community and the parties' extended families, supersedes their focus on their children's best interests.

The Court does not have jurisdiction to award custody of these children to an extended family member in this proceeding (see generally Williams v. Frank, 148 AD3d 815, 49 NYS3d 703 [2 Dept.,2017] ). Furthermore, given the extensive testimony at trial regarding the inappropriate actions and involvement of the extended family there is little indication that there would be a suitable family member option available to the Court.

These parents, their families and competing interests in the Satmar community in Williamsburg, Brooklyn, have waged unending attacks on one another apparently with little mindfulness or insights into how their inter-personal and community battles have negatively impacted their three (3) young children. As a direct result of these parents' actions during this litigation their young children have been subjected to multiple investigations by the Administration for Children's Services; involvement of the New York Police Department; body checks at homes during the middle of the night and an extended hospitalization; multiple interviews by caseworkers for the Administration for Children Services; sessions with a forensic evaluator in the course of preparing a court-ordered forensic evaluation report; countless meetings with the attorney for the children in this proceeding and in the neglect proceeding. The result has been that these children, from a very young age, have lived in a constant state of emotional trauma and physical upheaval and unpredictability.

The record established that the parties, the parties' extended families and members of the parties' communities all actively engaged in deplorable behavior intended to influence these children and to indoctrinate them in an attempt to achieve a perceived advantage in this custody dispute. Each parent attempted to alienate and to abscond with one or more of the children without the consent of the other parent. This Court is gravely concerned that, given the extent to which the parents purposefully exposed these young children to this dispute and their power struggle, these three (3) children will forever bear the emotional and psychological scars. The parties', grandparents', school and the community's prioritization of gaining an advantage in this dispute above shielding the children made these children the ultimate victims of this power struggle. There has been collateral litigation in numerous forums: Family Court, Criminal Court, Federal Court, Article 78 proceedings and ACS administrative hearings.

Neither party has demonstrated an awareness of how their actions—often placing the children in the midst of their tumultuous vendetta—detrimentally impact these children not just in the present but for a lifetime.

This tragedy unfolds against the backdrop of a plaintiff-mother who has chosen not to obtain proper and consistent treatment for her mental health challenges which has undermined her ability, at times, to properly supervise the children; a defendant-father ill-equipped to deal with the plaintiff's post-partum depression; and the parties' families and community networks that actively encouraged the parties to engage in self-help.

THE FACTS

The parties were married in a religious ceremony on December 15, 2005 in Kings County. The parties are members of an orthodox Satmar Jewish community in Brooklyn, New York. There are three (3) minor children of the marriage, C.H. born March 21, 2007 (now age 10); E.H. born July 26, 2008 (now age 8); and A.H. born October 7, 2009 (now age 7).

The plaintiff commenced this action for a divorce by filing the summons and complaint on February 5, 2013.¹ Plaintiff subsequently filed the request for judicial intervention which was filed on March 12, 2013. On May 1, 2013, defendant's first counsel in the Supreme Court action, Margery A. Greenberg, filed a notice of appearance.

Prior to commencing the divorce action in Kings County Supreme Court the parties have an extensive litigation history in Kings County Family Court, which is more fully detailed herein below.

A preliminary conference order was signed by this Court in the pending divorce action on June 20, 2013. On November 13, 2013, the remaining open visitation dockets in the Family Court matter (V10627–9/10 and V07696–8/10) were consolidated to this Court. On November 20, 2013, Dr. Mary Carlin was appointed by written order on consent by the Court to conduct a forensic evaluation of the parties and the parties' children.

On March 20, 2014, the parties entered into a consent stipulation, which the Court "so-ordered", providing temporary residential custody of the parties' children to the plaintiff and visitation to the defendant subject to the October 21, 2013 Family Court order. On April 10, 2014, the parties submitted a consent stipulation, through counsel, modifying the March 20, 2014 temporary order regarding the dates of defendant's visitation, the method of pick-up and drop-off of the children, signed by defendant's counsel Margery Greenberg, Esq. and plaintiff's then co-counsel Joel Yacoob, Esq.

On June 3, 2014, the parties entered into a consent agreement that the defendant would have supervised visitation with the parties' three (3) children and that the defendant "was offered an opportunity for a hearing on Friday June 6, 2014, but hereby waives his right to a hearing."

The parties were each represented by more than one attorney during the course of this custody dispute which extended over a period of 4.5 years. The plaintiff was represented by Eric A. Schwartz, Esq. at the commencement of this action on January 20, 2013 when the summons was filed. Thereafter, Mr. Schwartz Esq. and Mr. Joel Yacoob, Esq. represented plaintiff as co-counsel for a short while. Mr. Schwartz was substituted as counsel for Joel Yacoob, Esq. in July 2014 who continues to represent the plaintiff. Defendant has been represented by the following attorneys of record: Margery A. Greenberg, Esq. from May 01, 2013 until October 16, 2014; Simon Schwarz, Esq. who filed a "limited appearance" on November 12, 2014 but subsequently filed a full appearance on January 16, 2015; Mary Grace Condello, Esq. from October 06, 2015 to May 6, 2016; Eric Holzer, Esq. appeared for defendant in May 2016 after defendant discharged Ms. Condello; defendant again retained his prior attorney Mary Grace Condello, Esq. on June 2, 2016 after discharging Mr. Holzer. M. Condello continues to be defendant's attorney of record at this time.

The children were represented throughout this litigation by Amy Serlin, Esq. on behalf of The Legal Aid Society. The Court notes that Ms. Serlin had previously represented the children during the prior Family Court neglect proceeding against defendant before plaintiff commenced this divorce action in January 2013. Ms. Serlin, to her credit and the credit of the Legal Aid Society, agreed to serve as the attorney for the children and accepted assignment in this Supreme Court proceeding because of her extensive familiarity with the children and extensive history of litigation between the parties in Kings County Family Court from representing the children during the neglect proceeding.

The Court heard testimony in the trial on custody and parenting time on the following dates: November 19, 2014; June 8, 2015; November 16, 2015; November 17, 2015; November 18, 2015; November 23, 2015; November 30, 2015; December 7, 2015; December 17, 2015; January 7, 2016; January 11, 2016; February 9, 2016; March 1, 2016; March 2, 2016; March 7, 2016; April 18, 2016; May 6, 2016; May 9, 2016; May 11, 2016; June 28, 2016; July 20, 2016; July 21, 2016; July 26, 2016; July 27, 2016; September 9, 2016; September 27, 2016; December 15, 2016; December 21, 2016; January 3, 2017; January 4, 2017; and January 6, 2017. The Court heard oral summations on February 3, 2017. The transcript of the oral summations was provided to the Court on February 10, 2017 and this matter was marked sub judice on that date. The Court appointed Dr. Mary Carlin as the forensic evaluator by written order dated November 20, 2013. Dr. Carlin's written forensic report is dated June 10, 2015. The Court conducted separate in camera interviews with each of the three (3) children in the presence of the attorney for the children and a Yiddish interpreter.

In addition to the parties' testimony, the Court heard the testimony from the court appointed forensic expert Dr. Mary Carlin. The Court also heard testimony from the following plaintiff's witnesses: Dr. Alfredo Nudman; D.K. [maternal grandfather]; and Sylvia Madison. The Court also heard testimony from the following defendant's witnesses:...