IN RE: an Article 6 Custody/Visitation Proceeding Leah S (Respondent (2026)

Introduction and History

The parties on this matter are Ms. Leah S ("Ms. S" or "Mother") and Mr. Devon M ("Mr. M" or "Father"). They are the parents of the subject children ("Children"), Levi M and Ari M who are now 13 and 11 years old, respectively.

The parties were married on November 13, 2011. They separated in 2015 and ultimately resolved their divorce with a Stipulation and Settlement Agreement ("Settlement Agreement") on May 22, 2017. The Judgment of Divorce ("Divorce Judgment") was entered on February 23, 2018. See Pet. Ex. 12 (Judgment of Divorce, Feb. 9, 2018, Kings County Supreme Court, Index No. 12744/15, Hon. Rachel Adams) and Pet. Ex. 13 (Stipulation and Settlement Agreement, May 22, 2017, Kings County Supreme Court, Index No. 12744/15).

The Divorce and Stipulation & Settlement Agreement

On May 22, 2017, the parties entered into the Settlement Agreement, which awarded the Father primary residential custody of the Children commencing on July 1, 2017, subject to the Mother's parenting time. See Pet. Ex. 13 (Settlement Agreement). The Mother's parenting time was ordered to be "alternating weekends from nightfall on Saturday through Tuesday morning drop off at school, and on the other weekends . . . [from] Sunday at 6:00 p.m. through Tuesday morning when the Children return to school." Id. The parties were awarded joint legal custody of the children, which required meaningful consultation including use of a parenting coordinator before either parent exercised their right to make a final decision in their sphere of influence. Specifically, the Mother had final decision-making with respect to medical decisions and the Father had final decision-making with respect to educational decisions. Pet. Ex. 13, Settlement Agreement, Article V, pp. 5-6. Mr. M was given primary physical custody subject to Ms. S's parenting time. Id.

Notably, the Settlement Agreement also included the following terms:

7. The parties agree that the Children shall attend a Jewish Orthodox school but shall also have access to secular education that enables the Children to earn a high school diploma.

28. The parties agree that the Children shall be raised in the Jewish religion. Both parties agree to keep kosher homes and observe Shabbos and religious holidays with the Children.

Pet. Ex. 13, Settlement Agreement.

On or about March 12, 2020, Mr. M married Shterna Z (AKA Shterna M or "Ms. Z"). See Ct. Ex. III: Stipulation of Facts at Trial, dated October 25, 2023. Mr. M and Ms. Z resided together at 561 Adirondack Avenue, Apt. 2, Brooklyn, New York, with the subject children as well as three other children: Ms. Z's son, Mendy B (date of birth X/XX/2013), and two daughters of Mr. M and Ms. Z's marriage, Rivka M (date of birth XX/XX/2021) and Chaya M (date of birth XX/XX/2022). See Ct Ex III. At some point during the trial on the instant petitions, Mr. M and Ms. Z separated.

Prior to September 18, 2020, Ms. S's parenting time was occurring differently than as stipulated to in the Settlement Agreement. Though the parents' testimony at trial conflicted as to how exactly Ms. S's parenting time was occurring, both parents agreed that Ms. S, at a minimum, usually had parenting time on Thursdays and Sundays, as well as some secular holidays.

The Commencement of the Instant Proceeding

On September 15, 2020, Ms. S filed an "Emergency Order to Show Cause to Change Custody" in Queens County Family Court. On September 17, 2020, Ms. S was granted a temporary order of visitation until September 24, 2020. See Temporary Order of Visitation (V-07250-1/20/20A, Queens County Family Court, Court Attorney Referee Marily Moriber). On September 18, 2020 Ms. S filed an "Emergency Order to Show Cause to Change Custody" in Kings County Family Court.^{1  2} See Emergency Order to Show Cause to Change Custody, filed September 18, 2020, V-09798-9-20/20A.³ Among other concerns, the Mother alleged that the children were being inappropriately touched by their stepbrother, Mendy, and on September 24, 2020, the Court ordered the children to spend an extended visit with the Mother. See Pet. Ex. 19, Order dated 9/24/2020 (Darvil, J.). The Court (Darvil, J.) limited Mr. M's access to the children to unsupervised day visits and forbade Mr. M from bringing the Subject Children to his home or allowing interaction between Mendy and the Subject Children. Id. The Court also directed a Court Ordered Investigation by the Administration for Children's Services ("ACS") pursuant to Family Court Act § 1034. The report that was called into the State Central Register ("SCR") was eventually deemed "unfounded" against Mr. M.⁴

On October 23, 2020, the Court (Vargas, J.) ended the extended visit and reverted the parenting time schedule to that of the Settlement Agreement  ⁵ with a provision that the Stepmother and Mendy would live in a separate location. Shortly thereafter, on November 4, 2020, the Court (Vargas, J.) again modified the parenting time schedule, so that the Father would have parenting time for three weekends per month, again with the provision that the Stepmother and Mendy would live in a separate location. On December 23, 2020, the Court (Vargas, J.) then again reverted to the parenting time schedule of the Settlement Agreement, this time allowing the re-introduction of the Subject Children and Mendy.

On January 20, 2021, trial began on these petitions in front of the Honorable Judge Javier Vargas; however, on April 12, 2021, counsel agreed that that there had been a substantial change in circumstances since the entry of the May 22, 2017 Settlement Agreement, and that trial on the Children's best interests would continue only after a full forensic evaluation.

On July 29, 2021, Mr. M filed his own modification petition under docket numbers V-09798-9-20/21C. On October 12, 2021, Ms. S filed an additional modification petition (V-09798-9-20/21D) requesting permission to relocate with the Children.

On December 2, 2021, the Court (Vargas, J.) entered the visitation order that has continued throughout the trial, which includes the parenting time schedule of the Settlement Agreement in addition to adding alternate weekends from Friday to Monday for Ms. S.⁶ See Pet. Ex. 19.

Forensic Evaluation

When deciding issues of custody or parental access to a child, a court may, if warranted, seek the expertise of a mental health professional to perform a forensic evaluation of the parent and child to obtain relevant information regarding the emotional, psychological, physical, and social well-being of the family. See Family Ct Act § 251[a]; Koppenhoefer v Koppenhoefer, 159 AD2d 113 [2d Dept 1990]. "The recommendations of court appointed experts are but one factor to be considered and are entitled to some weight." Matter of Nikolic v Ingrassia, 47 AD3d 819, 821 [2d Dept 2008]. The court is not automatically bound to follow all of the recommendations of the court-appointed forensic evaluator; rather, it must consider all of the relevant and available evidence before it. See Vaysman v Conroy, 165 AD3d 954 [2d Dept 2018]; Tatum v Simmons, 133 AD3d 550 [1st Dept 2015].

On April 13, 2021, Judge Vargas entered an order for a forensic evaluation after both parents consented to such. On June 16, 2021, the Court appointed Dr. Zvi Joseph Weinreb, who had 15 years of experience doing forensic custody evaluations. The order included standard language requiring a final report to be submitted within 90 days. However, the report took approximately 18 months to complete and was fully submitted on February 3, 2023. The final report recommended that Ms. S be awarded legal and physical custody and that she be permitted to relocate to Washington state. See Court Ex. I.

The Honorable Javier Vargas left the Family Court bench in 2022, and the matter was transferred to the current jurist in September 2022.

The forensic evaluation was completed in February 2023. Counsel then filed voluminous cross motions in limine and Mother's counsel filed motions to compel production of subpoenaed records and for contempt against Hatzalah and United Lubavitch Yeshiva of Ocean Parkway (ULYOP).

Ms. S and Mr. M are each requesting sole legal and physical custody of the children.

The Trial & Evidence

This Court held a hybrid  ⁷ fact-finding hearing over the course of numerous court appearances over the course of more than two years, beginning on October 30, 2023. The Court initially scheduled 43 hours of trial time given the voluminous number of proposed exhibits and witnesses. This amount of trial time proved to be inadequate, and the Court continually scheduled more time as the trial progressed. In addition to the length of the testimony of the various witnesses and the number of exhibits introduced, additional delays were caused by attorney, witness, or jurist illness, the difficulty in scheduling trial time with four busy attorneys and the Court's packed calendar, and a serious technology issue that arose in the late spring of 2025.

On June 11, 2025, the Court became aware that, following an upgrade of the courtroom technology by the Division of Court Modernization ("DCM"), there was a period of six weeks in which the court's FTR  ⁸ recording system failed to record all participants who appeared remotely in Part 1 due to DCM's misconfiguration of the courtroom's audio system. This six-week period included the entire cross-examination of Mr. M by Counsel for the Mother, Ms. Amin, and the Attorney for the Child Levi, Ms. Ambats, on the court dates of April 28, April 30, May 2, and May 9, 2025. While Mr. M's response to counsel's questions were recorded on the FTR recording system, counsel's cross-examination questions were not as they were appearing remotely. Counsel was promptly informed and advised to propose amendments to the transcripts where Ms. Amin and Ms. Ambats were recorded as "inaudible." Only Ms. Amin submitted such amendments; the Court, which took diligent notes during the trial, also provided proposed amendments. The Court compared the proposed transcripts and merged the proposals into one final proposed amendment transcript for each date. All counsel were afforded ample time to review the transcripts and object if needed. See Order re: Proposed Transcript Amendments, dated January 7, 2026. There was no objection to the revised transcripts or to the Court entering the transcripts as Court Exhibits. No party requested a reconstruction hearing. Cf People v Bethune, 29 NY3d 539, 544 [2017] ("Short of each party's stipulation to revisions of the transcript, a reconstruction hearing will in many cases constitute the best means of resolving apparent errors in a record.").

Throughout the trial, all parties were represented by counsel.⁹ The Court called forensic psychologist Dr. Joseph Weinreb as the Court's witness and entered the following documents as exhibits without objection:

Ct. Ex I: Psychological Evaluation, dated 2/3/2023, Dr. Joseph Weinreb

Ct. Ex II: Dr. Weinreb's notes and raw data

Ct. Ex III: Stipulation of Facts at Trial, dated 10/25/2023

Ct. Ex IV: Reconstructed Transcript from 4/28/2025

Ct. Ex V: Reconstructed Transcript from 4/30/2025

Ct. Ex VI: Reconstructed Transcript from 5/02/2025

Ct. Ex VII: Reconstructed Transcript from 5/09/2025

Ms. S testified on her own behalf and called the following witnesses: Mr. M; Mr. M's wife, Ms. Z; Ms. S's sister, Ms. Brown; and Elana Sigall, who was deemed an expert in education.¹⁰ Ms. S introduced the following documents into evidence:

Pet. Exs. 1A-1SS: Text messages and emails

Pet. Ex. 2: New York City Administration for Children's Services Court Ordered Investigation Report dated 10/22/2020

Pet. Ex. 3: Hatzalah Crown Heights records

Pet. Ex. 4: United Lubavitch Yeshiva of Ocean Parkway (ULYOP) records for Levi and Ari M

Pet. Ex. 5: Department of Education ("DOE") records for Levi M

Pet. Ex. 6: DOE records for Ari M

Pet. Ex. 7: Curriculum Vitae for Elana Sigall

Pet. Ex. 8: Adler Dental records for Levi and Ari M

Pet. Ex. 9: KiddSmiles records for Levi and Ari M

Pet. Ex. 10: Northwell Health Pediatric Neurology records for Levi M

Pet. Ex. 11: Neuropsychological evaluation (2022) for Levi M

Pet. Ex. 12: Judgment of Divorce, dated 2/9/2018

Pet. Ex. 13: Signed Stipulation and Settlement Agreement, dated 5/22/2017

Pet. Ex. 14: Affirmation by Mr. Devon M, dated 5/3/2022

Pet. Ex. 15: Affirmation by Mr. Devon M, dated 5/4/2022

Pet. Ex. 16: Affirmation by Mr. Devon M, dated 9/8/2022

Pet. Ex. 17: Order dated 9/24/2020 (J. Darvil, Kings County Family Court)

Pet. Ex. 18: Order dated 9/17/2020 (Ref. Moriber, Queens County Family Court)

Pet. Ex. 19: Order dated 12/2/2021 (J. Vargas, Kings County Family Court)

Pet. Ex. 20: Order dated 3/8/2022 (J. Vargas, Kings County Family Court)

Pet. Ex. 21: Order dated 7/6/2023 (Ref. Paley, Kings County Family Court)

Pet. Ex. 22: Order dated 7/15/2024 (Ref. Paley, Kings County Family Court)

Pet. Ex. 23: Neuropsychological Evaluation of Ari M (2024)

Pet. Ex. 24: Neuropsychological evaluation of Levi M (2024)

Pet. Ex. 25: Photograph of Ms. S (2015)

Pet. Ex. 26: Photograph of Levi and his first cousin (2015)

Pet. Ex. 27: Letter from Dr. Fernandez-Carbonell, M.D. re: Levi, dated 10/27/21

Pet. Ex. 28: Emails between the parties, starting 9/12/2024 (Subject line: Pickup tomorrow)

Pet. Ex. 29: Emails between the parties, starting 9/8/2024 (Subject line: Pickup tomorrow)

Pet. Ex. 30: Emails between the parties, starting 12/21/2024 (Subject line: Re: Not discussing the court case with the children)

Pet. Ex. 31: Photograph of Ms. S with Levi, October 2015

Pet. Ex. 32: Order dated 7/15/2024 (Ref. Paley, Kings County Family Court)

Pet. Ex. 33: DOE classroom observation of Levi, dated 3/28/2025

Mr. M testified on his own behalf and called Ms. S as his only other witness. He introduced the following documents into evidence:

Resp. Ex. A: Affidavit by Elana Sigall, dated 4/20/2022 (part of Ex D to Motion #6)

Resp. Ex. B: Emails from 1/31 — 3/26/2025 (Subject line: Fwd: Dental appointments)

Resp. Ex. C: Emails from 1/26 — 2/12/2025 (Subject line: Fwd: Tour Request)

Resp. Ex. D: Emails from 2/2 — 2/4/2025 (Subject line: Fwd: Mid winter break)

Resp. Ex. E: Yeshiva and Mesivta of Brooklyn General Studies Progress Report, 2024-2025 (Ari)

Resp. Ex. F: Yeshiva and Mesivta of Brooklyn General Studies Report Card, 2024-2025 (Levi)

Resp. Ex. G: Modification Petition under docket nos. V-09798-9-20/20A, filed 12/21/20

Resp. Ex. H: Email dated 2/7/2013 (Subject line: Fwd: dentist)

Resp. Ex. I: Email dated 6/7 — 6/15/2016 (Subject line: Wellness Checkup/Vaccinations for Ari)

Resp. Ex. J: Email dated 11/30 — 12/6/2016 (Subject line: Levi's 4-Year Well Visit)

Resp. Ex. K: Emails between parties, starting 2/20/2017 (Subject line: Dental Checkup)

Resp. Ex. L: Emails between parties, starting 3/21/2017 (Subject: Dental Checkup)

Resp. Ex. M: Emails between parties, starting 5/10/2017

Resp. Ex. N: Text messages between parties, dated 5/28/2019

Resp. Ex. O: Text messages between parties, dated 6/3 — 6/4/2019

Resp. Ex. P: Text messages between parties, dated 7/1 — 7/4/2019

Resp. Ex. Q: Text messages between parties, dated 1/5 — 1/7/2020

Resp. Ex. R: Text messages between parties, dated 1/8 — 1/9/2020

Resp. Ex. S: Text messages between parties, dated 1/22/2020, 2/12/2020

Resp. Ex. T: Text messages between parties, dated 2/16/2020

Resp. Ex. U: Text messages between parties, dated 3/11/2020

Resp. Ex. V: Text messages between parties, dated 3/23/2020

Resp. Ex. W: Text messages between parties, dated June 2020

Resp. Ex. X: Text messages between parties, dated 6/1/2020

Resp. Ex Y: Text messages between parties, undated

Resp Ex Z: Email from Mr. M, dated 11/14/2017

Resp Ex AA: Text messages between parties, dated 5/15/2019

Resp Ex BB: Emails between the parties, dated February-March 2016 (Subject line: School Info for Leviy)

Resp Ex CC: Email forwarded from Ms. S, dated 9/6/2016 (Subject line: Fwd: Welcome to Gan Chabad UPK 2016-17! Enrollment Forms & School Calendar)

Resp. Ex. DD: Emails between the parties, dated 8/12/2016 (Subject line: Dental Checkup)

Resp. Ex. EE: Emails between the parties, dated 10/5/2016 (Subject line: FW: Information on Applying to KDG in NYC)

Resp. Ex. FF: Emails between the parties, dated 11/30/2016 (Subject line: Parent Teacher Conference for Levi)

Resp. Ex. GG: Text messages between parties, dated 2/8/2017

Resp. Ex. HH: Emails between the parties, dated 3/17 (Subject line: NEW DATE Pre-K Class Parent Teacher Conference March 28)

Resp. Ex. II: Emails between the parties, dated 4/4/2017 (Subject line: Re: ULY Decision Letters)

Resp. Ex. JJ(1): Emails between the parties, dated 6/15/2017 (Subject line: Interview Confirmation)

Resp. Ex. JJ(2): Text messages between parties, dated 6/15/2017

Resp. Ex. KK: Text messages between parties, undated

Resp. Ex. LL: Emails between the parties, dated 8/23/2017 (Subject line: Mom's visit 9/14-9/19)

Resp. Ex. MM(1): Emails between the parties, dated 9/1/2017 (Subject line: Mom's visit 9/14-9/19)

Resp. Ex. MM(2): Text messages between parties, undated

Resp. Ex. NN: Emails between the parties, dated 11/1/2017 (Subject line: Trial Lunch Program)

Resp. Ex. OO: Text messages between parties, dated 12/21/2018

Resp. Ex. PP: Emails between the parties, dated 10/17 — 10/18/2021 (Subject line: Re: Ari)

Resp. Ex. QQ: Emails between the parties, dated 3/15 — 3/16/2016 (Subject line: Potty Training/Barbara)

Resp. Ex. SS: Leah S "Dating Resume," undated

Resp. Ex. TT: Emails between the parties, dated 5/24/2017 (Subject line: Changes to schedule coming up)

Resp. Ex. UU: Texts between the parties, dated 6/19/2017

Resp. Ex. VV: Emails between the parties, dated 4/23 — 4/25/2018 (Subject line: Summer Schedule with the boys)

Resp. Ex. WW: Emails between the parties, dated 6/18 — 6/21/2018 (Subject line: Summer Schedule with the boys)

Resp. Ex. XX: Email from Ms. S, dated 9/17/2018 (Subject line: Upcoming schedule)

Resp. Ex. YY: Texts between the parties, dated 9/1/2019

Resp. Ex. AAA: Texts between the parties, dated 2/20/2020

Resp. Ex. BBB: Text from Ms. S, undated

Resp. Ex. CCC: Texts between the parties, dated 1/10/2020

Resp. Ex. DDD: Ari 22-page IEP with projected date of implementation 11/12/25

Resp. Ex. EEE: Ari 11-page Prior Written notice (notice of recommendation)

Resp. Ex. FFF: Ari's Psychoeducational Evaluation, dated 9/9/25

Resp. Ex. GGG: Levi's Psychoeducational Evaluation, dated 9/9/25

Resp. Ex. HHH: Levi's IEP, November 2025

Resp. Ex. III: Emails between parents and DOE re: Levi's IEP evaluation

Resp. Ex. JJJ: Emails between parents and Attorney Amin

Resp. Ex. KKK: Email between the parties dated May 1, 2025 (AKA Luria email)

The Court held an in camera interview with each of the Children on March 4, 2026.¹¹ See generally Matter of Lincoln v Lincoln, 24 NY2d 270, 273 [1969].

Credibility

This Court has had the unique ability to observe the witnesses' demeanor and testimony and assess the parties' character and credibility over an extended period of time given the length of this trial. See Fisher v Summers, 244 AD3d 1118, 1119 [2d Dept 2025] ("Since custody determinations depend to a great extent upon the trial court's assessment of the character and credibility of the parties and witnesses, deference is accorded to that court's credibility findings.").

First, the Court finds Ms. S's testimony to be extremely credible, consistent, and specific. She was earnest in her testimony and exhibited genuine insight into her relationship with Mr. M and with her Children. She was never defensive and generally humble. Over the course of the trial, the Court found Ms. S to be authentic and honest and clearly committed to her Children's best interests. She also exhibited better insight into her co-parenting relationship with Mr. M than he did and was self-reflective about her own prior shortcomings. In but one example, she took shared responsibility for not getting a second dental opinion with respect to Ari's tooth despite Mr. M not wanting one when Ms. S had final decision-making in the medical sphere. At that time, she explained, she was trying not to "rock the boat", Tr. 3/11/25, p. 95, and instead keep peace between her and Mr. M. She testified that she has realized that "going against [her] intuition of getting a second opinion, that there was actually other consequences . . . more than just trying to keep the peace . . . It was that keeping the peace was at the sacrifice of [Ari's] health." Tr. 3/11/25, p. 95, lns. 15-19.

Overall, throughout her testimony, Ms. S was clear and candid; she was emotional when it came to discussing Mr. M's treatment of her during their marriage and cried as she talked about the inappropriate touching her sons experienced by their step-brother in their Father's home as well as when she talked about what an ideal coparenting situation would look like.

The Court finds that Mr. M was not as credible in his testimony as Ms. S. Mr. M testified with confidence and assurance on direct examination, but he was forced to retract, concede, or otherwise admit numerous statements on cross-examination, revealing to the Court that he was not always entirely forthcoming. Mr. M editorialized many of his responses to questions on cross-examination by stating that he took certain actions (e.g., unilaterally deciding where the children would attend camp) on advice of prior counsel. The Court infers that Mr. M stated this to absolve himself of some of these actions which were contrary to the Children's best interest. However, a person is not absolved of wrongdoing because he relied on his attorney's advice. Anonymous v Arkwright, 5 AD2d 790 [2d Dept 1958]; see also Stanelevitz v City of New York, 173 Misc 5 [NY City Ct 1939] ("[O]ne acts upon the advice of one's lawyer ... at his own peril."). "In taking the advice of counsel, if he was advised as he states, ... he took the responsibility of an adverse decision and its consequences. This rule of law . . . rests on the sound public policy that each individual, by himself, shoulders the responsibility for obeying the law, [and] would be rendered meaningless if one could excuse his derelictions by simply asserting his reliance on others." People v Forsyth, 109 Misc 2d 234 [Sup Ct 1981] (citing Butterly & Green, Inc. v Lomenzo, 36 NY2d 250 [1975]) (internal quotations and citations omitted). While it was clear that Mr. M loves both children a great deal, his testimony was often defensive and inconsistent.

The Court does not credit the testimony of Ms. Shterna Z, the Children's stepmother. Ms. Z was remarkably hostile and evasive on the stand. She was particularly incredible when speaking about the inappropriate touching of the subject children by their stepbrother, Mendy. Ms. Z claimed that the only incident she recalled between Mendy and the subject children was an instance where Mendy tried to take off Ari's clothing while they were jumping on the trampoline. Ms. Z testified that she "didn't think of it as anything significant" warranting letting Ms. S know. Tr. 3/14/24, p. 52, lns. 22-23. She claimed at one point that this was "developmentally appropriate" behavior based on an alleged conversation with her own therapist from years before about a "a completely different situation that had happened, not even with [her], with somebody else entirely." Tr. 3/14/24, p. 51, lns. 12-14. Later she described the behavior as "silly hyper having fun..." Tr. 3/14/24, p. 110. Throughout her testimony, Ms. Z would flatly deny that any inappropriate touching occurred, claim that she had only heard "bits and pieces" of what the lawyers claimed Levi and Ari alleged, minimize the incident, and feign ignorance of what had transpired in 2020, claiming that she didn't want to "get involved in these messes." Tr. 3/14/24 p. 112 lns. 2, 8-9. Ms. Z was also incredible when speaking about an incident in which she had restrained Levi, first claiming that he went outside for a little bit, calmed down, and then came back in, but then admitting later on re-cross examination that Levi had actually then taken the train from Brooklyn to Queens by himself, after dark, without any money or a cell phone, and Mr. M had to call the Jewish police. Compare Tr. 3/14/24, pp. 99-100 with Tr. 3/14/24, pp. 109-110.

The Court credits the testimony of the other witnesses: Ms. Brown, Ms. S's sister, and Elana Sigall, the educational expert retained by Ms. S. The Court found that Ms. Sigall was extremely knowledgeable and thorough in her testimony regarding the Children's education and needs.

The Court largely credits the testimony of Dr. Weinreb  ¹² ; however, it does not give resounding weight to all of his testimony and report and declines to follow all of his recommendations. Akerele v Garnett, 226 AD3d 671, 672 [2d Dept 2024] ("The court was not required to follow the recommendation of a forensic evaluator[.]") (citing Matter of Pierce v Caputo, 14 AD3d 877, 879 [2d Dept 2023]; Cunningham v Brutman, 150 AD3d 815, 816 [2d Dept 2017]. Even disregarding the forensic testimony, given the sheer volume of documentary and testimonial evidence in this case, the Court finds that it had more than enough evidence before it to make an informed decision as to the children's best interests. See Pandis v Lapas, 176 AD3d 837 [2d Dept 2019] ("An updated forensic evaluation is not required where, as here, the court possessed sufficient information to render an informed decision regarding custody consistent with the subject children's best interests") (internal citations and quotations omitted).

Dr. Weinreb spent over 15 hours interviewing the parents and the children, observed the parents and children together, and reviewed over 100 documents and close to 600 pages of data. He testified on October 30, 2023, and January 29, 30, and 31, 2024 and was admitted as an expert in forensic psychology. In making his recommendation, he considered the parties' and children's history (social, educational, vocational, financial, legal, substance abuse, physical health, mental health, and relationship, etc.).

The Court agrees with Dr. Weinreb's general assessment of the dynamic between the parents and his assessment regarding the educational issues in this case. However, Dr. Weinreb testified in 2023 and 2024, and unfortunately passed away in 2024. As such, he was not able to opine on developments in the case since then, and thus the Court cannot give overwhelming weight to Dr. Weinreb's testimony and report. See Connolly v Walsh, 126 AD3d 691, 694 [2d Dept. 2015] (where the court gave undue weight to forensic evaluator's report, which was "prepared nearly 18 months prior to...its decision, with the last interview conducted almost two years prior thereto").

The Court disagrees with Dr. Weinreb's recommendation to allow Ms. S to relocate out of the state. Mr. M was and continues to be an involved parent who has a strong relationship with his sons. Cf. Matter of Baker v Spurgeon, 85 AD3d 1494 [3d Dept 2011] (granting custody to the mother and allowing her to relocate when the father was not an involved parent in that he did not know the names of the child's teachers or friends at school, did not attend parent-teacher conferences, rarely attended the child's extracurricular activities, had never taken the child to a doctor's appointment). Dr. Weinreb himself found that Mr. M has a positive relationship with the children and provides them with appropriate care. See Tr. 1/29/24, p. 31 lns. 3-9. The Court finds that Dr. Weinreb disproportionately minimized the relationship between the children and their father when recommending whether to permit Ms. S to relocate. See Tr. 1/29/04, pp. 32-33. Permitting relocation to the other side of the country would unjustly limit Mr. M's parenting time and would not be in the best interests of the children. Furthermore, Dr. Weinreb failed to fully address the effects of relocation in his conversations with the children. While he stated that the children wanted to live with their mother and that they expected a change in schooling, he did not explore how that would affect the children's relationship with their father, stepmother, or stepsiblings, or siblings on their father's side. The Court believes that Dr. Weinreb's findings and final recommendation disproportionately relied on his assessment of Mr. M's reaction to the incident regarding Mendy and inappropriate touching of the boys. While the Court believes this was a very serious situation that was mishandled by Mr. M (as discussed in Physical Custody, infra), it does not tip the scales in favor of relocation as it does not outweigh the strength of the current relationship between Mr. M and the Children.

Legal Analysis

"Modification of a court-approved stipulation setting forth terms of custody or visitation is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the best interests and welfare of the child." Greenberg v Greenberg, 144 AD3d 625, 629 [2d Dept 2016]; see Friederwitzer v Friederwitzer, 55 NY2d 89 [1982]. In the instant case, there has been a stipulation that a change of circumstances has occurred since the entry of the prior order, which was entered on consent on April 12, 2021. See Ct. Ex. III (Stipulation of Facts at Trial); Order — General dated April 12, 2021 (Hon. Javier E. Vargas). Thus, the Court's analysis is solely as to what is in the best interests of the Children. The Court finds that a modification of the prior custody order is required to serve the best interests of the Children.

"The essential consideration in making an award of custody is the best interests of the child." Miller v Pipia, 297 AD2d 362, 364 [2d Dept 2002]. "When deciding whether a modification is in a child's best interests, factors to be considered include the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent. Stability and continuity in a child's life are important factors." Fiore v Gima, 227 AD3d 1071, 1073 [2d Dept 2024] (citing Martinez v Gaddy, 223 AD3d 816, 817 [2d Dept 2024], lv to appeal denied, 41 NY3d 907 [2024], and lv to appeal denied, 41 NY3d 907 [2024]).

Legal Custody

"Joint custody is inappropriate where the parties are antagonistic towards each other and have demonstrated an inability to cooperate on matters concerning the child." Freeborn v Elco, 188 AD3d 677 [2d Dept 2020]; cf Matter of Ruiz-Thomas v Ruiz, 96 AD3d 859, 860 [2d Dept 2012]. "Joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion." Freyer v Macruari, 234 AD3d 755, 756 [2d Dept 2025] (internal citations and quotations omitted). However, joint custody is inappropriate where parties have "evidenced an inability to cooperate on matters concerning the child." Matter of Connell-Charleus v Charleus, 192 AD3d 890, 891 [2d Dept 2021]. See also Toro v Williams, 167 AD3d 634, 636 [2d Dept 2018].

While the parties have had constructive communication at times, it has varied throughout the years since they separated. Ultimately, the parties have been unable to have effective communication to make decisions jointly about their children.

Ms. S credibly testified about the change in Mr. M's communication with her throughout and after the divorce proceeding: "It had gotten better. When we were, you know — when we were in court it had gotten better. I had seen positive changes . . . [T]here was a stark change immediately after." Tr. 03/11/2024, pp. 60-61. The evidence at trial supports this.

The record demonstrates that after the divorce judgment was entered, the parties' relationship significantly deteriorated. The Father belittled and obstructed the Mother when she tried to communicate with him about the children. See Robinson v Mustakas, 214 AD3d 880, 881 [2d Dept 2023]. He often left her out of major decisions on both educational issues, where he had final decision-making ability, and medical issues, on which she had the authority to make the final decision. This disregard for the mother's input and involvement at times endangered the children's physical and psychological well-being in and outside of school. See Zambas v Condon, 227 AD3d 729 [2d Dept 2024] ("The evidence showed that the father's demonstrated inability to cooperate with the mother on matters concerning the child and the father's lack of judgment which, at times, endangered the child physically and emotionally, made continued joint legal custody inappropriate.").

While it is clear that both parents love the Children very much, the evidence presented at trial demonstrates that Ms. S is "better suited to provide for the child[ren]'s well-being," and thus the Court awards Ms. S sole legal custody as defined in the sections infra, with the notable exception that the parents are to have shared legal custody regarding religion. Martinez v Gaddy, 223 AD3d 816, 818 [2d Dept 2024], lv to appeal denied, 41 NY3d 907 [2024], and lv to appeal denied, 41 NY3d 907 [2024].

Religion

Religion, specifically the parents differing practices of Judaism, is a backdrop to many of the issues in this case.¹³ Mr. M continues to be a practicing Hasidic Jew in the Chabad Lubavitch sect while Ms. S still practices Judaism but is no longer part of the Hasidic Lubavitch sect.

"As a matter of policy, the initial posture of the courts with respect to the religious upbringing of a child should be one of noninterference." Spring v Glawon, 89 AD2d 980, 981 [2d Dept 1982]. "When presented as an issue, religion may be considered as one of the factors in determining the best interest of a child, although it alone may not be the determinative factor." Aldous v Aldous, 99 AD2d 197, 199 [3d Dept 1984]. The Court emphasizes that it passes "no judgment on either parent's religious beliefs or practices." Matter of Gribeluk v Gribeluk, 120 AD3d 579, 579-80 [2d Dept 2014].

"New York courts will consider religion in a custody dispute when a child has developed actual religious ties to a specific religion and those needs can be served better by one parent than the other." Aldous, 99 AD2d at 199. "Courts have consistently upheld the validity of agreements as to the religious and moral training of a child, particularly when confirmed by a judgment." Spring, 89 AD2d at 981 (internal citations omitted). "Clauses in custody agreements that provide for a specific religious upbringing for the children will only be enforced so long as the agreement is in the best interests of the children." Weisberger v Weisberger, 154 AD3d 41, 52 [2d Dept 2017].

The parties agreed in their Settlement Agreement to raise the Children "in the Jewish religion." Settlement Agreement, ¶ 28. Both parents agreed "to keep kosher homes and observe Shabbos and religious holidays with the Children." Id. They did not agree to raise the Children in any specific sect of Judaism, nor did they specify the specific restrictions or strictness with respect to kosher rules, observance of Shabbos and other religious holidays (which can and does vary between various Jewish sects, movements, and traditions). At the same time, in the same Settlement Agreement, the parties agreed for the Children to "attend a Jewish Orthodox school" with the additional qualification that they "shall also have access to secular education that enables the Children to earn a high school diploma." Settlement Agreement, ¶ 7.

This portion of the Settlement Agreement has remained unchanged in the more than nine years since the Settlement Agreement was entered. Both parents have continued to raise the Children Jewish in the way each practices the religion and culture. Additionally, for the last four years, the Children have spent alternate weekends Friday to Monday with their Mother in addition to the parenting time awarded in the Judgment of Divorce. See Pet. Ex. 20, Order dated 3/8/2022 (J. Vargas, Kings County Family Court).

The Court credits the Mother's testimony that the Children's upbringing was not "as insular as it was made out to be [by the Father in his testimony]." Tr. 11/03/2025, p.46, lns. 5-6. While the Father would have this Court believe that the Children do not know a world outside their religious community in Crown Heights, Brooklyn, the Mother's credible testimony made it clear that this is not the case. First, and significantly, the Children spend time with the Mother's family, who are not Jewish, including the Mother's sister and her children, Ari and Levi's cousins. The children spend approximately a week in Washington with their maternal family each year, and the maternal family spends approximately a week in New York visiting each year. Additionally, even while the Mother and Father were married, Ms. S would seek out enrichment and other activities for the children outside the Crown Heights religious community including Mommy and Me classes, trips to the Botanic Garden, the Museum of Mathematics, Story Time at the public library, and making friends with people of various backgrounds in the park. There was no testimony that Mr. M has any family in New York City or that the Children have any relationship with any family he may have.

When asked on the stand, "[D]o you think that overall, it has been good for the children to be raised Orthodox before your divorce through after the divorce?", Ms. S answered thoughtfully and with the true nuance of her Children's reality:

I'm having a hard time answering that question, because I, I mean they're being raised Jewish, but I don't think they're necessarily being raised Orthodox. Like they're going to an Orthodox school, their father's house is an Orthodox observing house, my house is not and they have always been with both of us and had -- under the influence of both of us. So, is it positive that they're Jewish? Yes, I do think so. I think it's nice to have that identity, it's nice to have some moral foundations. It's nice to have qualities and rituals and customs. I believe that the things that I expose the children to that maybe their father disagrees with are positive in their life, like certain books that they can read. You know there's a -- like they've both have a love of reading now, that I feel like I have helped, you know, get them started with and involved with, going to science museums. Like there's tons of things that I think that I -- that I've done that's, that's positive.

Tr. 3/11/2024, pp. 99-100.

Mr. M fears that the inconsistency between his and the Mother's household causes confusion for the children. For example, the Father told Dr. Weinreb that his "biggest" concern at one point was that the Mother had given the children "dipping mints," which were not religiously kosher. Tr. 1/30/24, p. 130, lns. 22-24; see also Ct. Ex. I (Psychological Evaluation), p. 28, 30. He told Dr. Weinreb that he felt she was not up to his level of observance of the Sabbath and holidays. Tr. 1/30/24, p. 130-131. The Father claimed to not increase his observance after the divorce, but the mother alleged that he had grown more observant. Tr. 1/30/24, p. 132, lns. 16-22. In either event, their divergent manner of practicing Judaism began prior to their separation in 2015 and appears to have only grown farther apart since then although no evidence was presented of any harm to the Children as a result. Cf Baalla v Baalla, 158 AD3d 676, 678 [2d Dept 2018] ("[T]he father's actual or perceived insistence that the child follow Islam and actual or perceived threats to abscond to Morocco with the child had a serious adverse effect on the child's relationship with him and, thus, made an award of sole custody to the mother appropriate.").

The Court finds that, on the other hand, the Mother is far more accepting and supportive of the Children's actual reality: their religious upbringing is multifaceted and involves a more expansive practice of Judaism than what they experience when with their Father in the Crown Heights Chabad-Lubavitch community. When asked whether she thought it creates confusion for her Children to live in one home that is Orthodox and one that is more secular, her answer demonstrated to this Court how her views on the issue of religion and the differences in her and Mr. M's home positively impact her parenting and that her guidance in these areas is in the Children's best interests:

I think that there's a difference of religion or a difference of practice of religion in many split families or even in families that are still married, but the parents have different views on things. I think that the confusion that could subsequently come about from that, is usually because things are not taught in a way or things are expressed in a way that don't leave space for everyone to coexist together. I think that it's important to have understanding and respect. I mean, that's like a huge part of Chabad, is that if you're Jewish, you're Jewish. It doesn't matter what level you are or what you are, that was like the main attraction to that, feeling a sense of belonging without necessarily doing everything exactly like everyone else. So, I, I don't necessarily think that it would be -- it would cause harm and I think that you can take any points of where there might be confusion and use it as a place to have learning. You know, like let's have respect for people, if they're like this or they're like that. I think those are things that you parent to.

Tr. 3/11/2024, pp. 100-101.

Later in the trial, Father's counsel asked Ms. S whether she thought it might be "productive", for example, when the Children spend Passover with her, to ask the Father what some of the most important "points" to include might be, for example a specific kind of matzah used in the Crown Heights Chabad-Lubavitch community. Ms. S agreed that such communication would be productive but poignantly explained:

However, it's been very hard to try to have civil conversations. I've had a very challenging time. We've been in court for five years. We're still having the same types of non-communicative, arguments with each other. Things have gotten better as the court's eye and with your counsel specifically, things have gotten better. I am fearful that it's going to devolve again. So, I would like — what you're saying right now to me, is like the ideal outcome, right? Like, I would love to have somebody who I can have these types of meaningful conversations with. I don't feel like that's where we're at...I love the scenario you're presenting right now. I would — if , if this is an option, and it would go both ways, right? Like it would be the same thing where I'm asked and respected and honored in certain things as well . . . that's an ideal co-parenting relationship.

Tr. 9/26/2025, p. 63, lns. 7-24.

The Court finds maintaining the clause from the parties' Settlement Agreement that the Children be raised Jewish serves their best interests as they have been raised Jewish their entire lives and thus have "developed actual religious ties to a specific religion." Aldous, 99 AD2d at 199. However, given the Children's upbringing in two different homes that practice Judaism in different ways, this Court does not find that one parent over the other is better suited to serve those needs but rather that continuing the status quo in this area is in their best interests. To the extent that the conflict regarding educational decision-making is tied to religious differences, that is discussed below and resolved by awarding one parent final decision-making as to major educational decisions.

The Court therefore awards joint legal custody with respect to major decisions solely on religion. Thus, each parent shall be permitted to continue to raise the Children Jewish in a way that reflects their own practice of the religion and culture, and each shall be permitted to enroll the Children in religious studies during their respective time without the other's consent.

The Court also notes, that given the Children's respective ages and intelligence, they likely already — or will likely soon — have their own opinions and decisions about how they wish to express or observe their religion. Those decisions should be treated with respect and neither parent should make either child feel guilty or apologetic for their personal, maturely developed religious beliefs and choices.

Educational Decision-Making

Educational decision-making is the most salient issue in this trial. In their divorce Settlement Agreement, the parties agreed for the Children to "attend a Jewish Orthodox school" with the additional qualification that they "shall also have access to secular education that enables the Children to earn a high school diploma." Settlement Agreement, ¶ 7. The Mother had no per se opposition to this when the parties divorced and thus agreed to the Children attending Jewish Orthodox schools with the qualifying provision regarding the high school diploma. Thus, the Children have been enrolled Jewish Orthodox yeshivas continuously since their parents' divorce. Mr. M clearly fears that if Ms. S were awarded educational decision-making that she would enroll them in public school.

Ms. S's initial concerns regarding her Children's school were that was that it was six days per week which included Sunday, her only weekend day parenting time under the Settlement Agreement. Additionally, many of the school breaks during which she was awarded parenting time in the Settlement Agreement were not part of her Children's school schedule. Thus, her parenting time with her Children was greatly reduced from what the Settlement Agreement appeared to provide.

In 2020, Ms. S developed serious concerns about the education her Children were receiving in the yeshiva. During the COVID pandemic, the Children were receiving remote instruction, and it became clear to Ms. S that the Children were not receiving a sufficient secular education and were not getting the support they needed in school. Her concerns increased when they returned to in-person schooling and Levi experienced serious behavioral challenges in school.

Levi and Ari are both highly intelligent children with special needs. Levi has been diagnosed with Attention-Deficit/Hyperactivity Disorder ("ADHD"), and doctors have noted features of both Disruptive Mood Dysregulation Disorder ("DMDD") and Oppositional Defiant Disorder ("ODD"). See, e.g., Pet. Exs. 5, 24, 27; Resp. Ex. GGG. He has had numerous evaluations, including a DOE evaluation for an IESP (although not an IEP), a neuropsychological evaluation, a behavioral assessment, and a psychoeducational evaluation, recommending, inter alia, an assigned paraprofessional, small class sizes and teacher-to-student ratios, and counseling. See, e.g., Pet. Exs. 5, 24, 27, 33; Resp. Exs. GGG, HHH. Without any intervention or supports, Levi's behavior can be very challenging to manage inside and outside the classroom — he can be restless, agitated, distractable, and defiant. See Pet. Ex. 5, DOE Records for Levi M. Ari is also diagnosed with ADHD (see Pet. Ex. 23; Resp. Ex FFF) and has had multiple evaluations (though, like Levi, has not received a DOE evaluation for an IEP). These evaluations have recommended speech therapy, occupational therapy, and counseling for him.

This Court does not believe that Ms. S's request for educational decision-making is based in a surreptitious desire to completely remove the Children from the Orthodox Jewish community. Rather, Ms. S has consistently exhibited sincere concern about the Children's lack of an adequate secular education (e.g. science, math, global studies) about which she had believed she and Mr. M were on the same page. She has also consistently exhibited sincere concern about the Children's lack of adequate special education supports tailored to their specific needs. The Settlement Agreement requires that the Children attend a school that would lead to a high school diploma; this demonstrates to the Court that parties were aligned on the importance of a secular education at the time of the divorce even while agreeing the Children would attend an Orthodox school. Settlement Agreement, ¶ 28. However, at that the time of the divorce, the Children were quite young; Levi was in preschool, and Ari was not even preschool age. See Tr. 03/05/2024, p. 96. Neither parent knew what special needs their Children might have or what educational setting would serve their best interests. It is also unlikely that either parent knew what services or educational settings were available in the Jewish Orthodox schools, whether they would be able to meet their children's needs, or what the school year schedule looked like. However, at the time the Settlement Agreement was signed, Ms. S trusted that Mr. M would make decisions in the boys' best interests. See Tr. 3/5/24, p. 40, lns. 14-16; see also Tr. 11/17/25, p. 13 lns. 6-11; 3/11/24 pp. 94-95, 96 lns. 5-6. Additionally, at the time the Settlement Agreement was signed, Levi was attending a Chabad Lubavitch preschool which provided for the same days off/holidays that public schools provide along with the Jewish holidays. The Court also notes that at no point during this proceeding has Ms. S formally requested permission from this Court to permanently move the children to public school.

The Court credits Ms. S's testimony regarding the communication between her and Mr. M with respect to the Children's schooling and how it changed over time. Communication between the parties regarding Levi's school — which began before the Settlement Agreement was signed and while Levi was in the middle of his preschool year — was "positive and open." Tr. 3/05/2024, p. 97, ln. 19. See, e.g., Pet. Exs. 1, 1A, 1B; Resp. Exs. I, J, BB, QQ. Thus, it made sense that, at the time the Settlement Agreement was signed, Ms. S would trust Mr. M with the final decision on education. However, shortly after the Settlement Agreement was signed — which required that the "parties shall discuss all major decisions concerning the Children, including but not limited to decisions relating to medical, religion, and education"¹⁴ — Mr. M began making decisions in a unilateral fashion, despite Ms. S asking to be involved in the process of choosing Levi's school that year and being part of the process including family interviews and orientation. Tr. 3/05/2024, p. 99; Settlement Agreement, Article V, ¶ 6, p. 5.

The Mother obtained the assistance of an educational consultant, Elana Sigall, with whom she was connected through Footsteps, an organization that offers services and assistance to people leaving the Orthodox Jewish community. Tr. 9/26/2025, p. 83, lns. 2-4. The Mother first reached out to Footsteps for low-cost legal services referrals and then for therapy services. At the time of her September 2025 testimony, the Mother was also volunteering at Footsteps to provide math tutoring to young men and women who had not previously received much math or science education.

Ms. S credibly testified that the Father unilaterally made educational decisions without her involvement, beginning with Levi's initial school enrollment, when she was informed only weeks before the school year began that the father had already enrolled him in a school without meaningful conversations or her agreement. See Pet. Ex. 1F. She testified that this pattern continued throughout the children's education, including enrollment decisions made without her consent or meaningful input. See Pet. Ex. 1S. The Court finds that Ms. S was frequently excluded from communication regarding the children's education and was not provided with critical information by either the school or the Father. Ms. S credibly testified that she was not informed of or invited to parent-teacher conferences for several years and was not receiving report cards until she affirmatively requested them from the school. Tr. 3/11/24, p 92—93; see Resp. Ex. OO. She further testified that the boys' school, ULYOP (United Lubavitch Yeshiva of Ocean Parkway), did not communicate directly with her regarding the children's behavioral incidents, and that she only learned of major incidents through an automated system and that there would be no follow up unless she proactively requested a meeting. Tr. 3/11/24, p. 35; see also Pet. Ex. 1Y. Ms. S testified that she repeatedly attempted to address her concerns with the father by text message, email, and in person, including suggesting the involvement of a parent coordinator or exploring alternative school placements, but her concerns were either dismissed or ignored. See Pet. Ex. 1Y. She credibly testified that "[h]is response was that the school that the children are in is the most appropriate educational setting . . . " Tr. 3/11/2024, p. 48, lns. 8-10.

Ms. S also credibly testified about another example of an educational decision made, this time about Ari, without informing or discussing it with her. Although Mr. M informed Ms. S, when Ari was in preschool, that the school asked for him to be evaluated for services, she did not learn until her extended visit with the Children at the end of 2020 that Ari had an Individualized Education Services Plan (IESP) that had been put into place in preschool and carried over into his elementary school. Ms. S only learned this when Ari's occupational therapist reached out to her. Tr. 3/5/2024, pp. 80-81. Ms. S then learned that he was also receiving services for speech, and that she had not been invited to the IESP meetings. When she reached out to the school, they told her they could not share information because they stated she was not a custodial parent which was untrue as she had joint legal custody.

Ms. S testified that ULYOP did not employ a behavioral specialist, did not have teachers trained in special education, and did not have a school psychologist available to address students' behavioral and educational needs. Tr. 3/11/24, pp. 29—30. She further testified that she became increasingly concerned about Levi's placement after he began exhibiting significant behavioral dysregulation, including wandering the halls, leaving the classroom without supervision, and engaging in dangerous conduct, including grabbing a power drill and using it in a "threatening manner" toward a principal, yet "[i]t didn't really seem like there was anything that was being done about it." Tr. 3/11/2024, p. 32.

Ms. S testified that Levi had accumulated 15 or more incident reports and was frequently removed from the classroom and sent to the principal's office — at times, daily — for inattentiveness and behavioral difficulties, and that the school failed to provide meaningful intervention or academic support, instead allowing him to remain out of the classroom environment. Tr. 3/11/24 at 35—36; see also, e.g., Pet. Ex. 5, DOE Records for Levi M. She further testified that the school failed to implement recommended supports, including counseling and a behavioral intervention plan, and that during periods when the school social worker was unavailable (which was often for long periods of time), there was no other resource to provide him with counseling. Levi is a child that does not enjoy school, which is typical for a student with special needs who is not receiving the "correct program for them." See Tr. 1/30/24 p. 145-146 (Testimony of Dr. Weinreb). Ms. S recognizes that he is "suffering" without the support he needs (Tr. 1/30/24 p. 147 lns. 6-11) and is thus the parent more suited to ensure these necessary supports are implemented in the correct educational setting for Levi.

With respect to Ari, Ms. S testified that the services being provided did not "seem like it is working towards the goals that are set up in the IESPs." Tr. 3/11/24, p. 44. She testified that, ultimately, she does not believe that — given both children's IESPs and identified needs — that their educational needs were being adequately met. Tr. 3/11/2024, p. 117.

Ms. S credibly testified that the Father's decision to maintain the children in a school that was not meeting their needs, despite mounting evidence of academic and behavioral harm, reflected a failure to appropriately respond to their educational needs, explaining that his weaknesses included placing the children in "a school that is not right for them given everything we've learned over the years." Tr. 3/11/24, pp. 81-82. She further testified that, based upon her interactions with school staff, she believed the school's approach to students with ADHD was inadequate and that the school lacked appropriate special education programming or support services, explaining that the school's approach appeared to be that children "need to just come medicated and deal with it," rather than providing appropriate behavioral and educational interventions. Tr. 11/17/25, p. 32.

Ms. S's testimony established that she is the better suited parent to exercise educational decision-making because she researched schools, understands the Children's needs, sought help whenever the Children needed it, and attempted whenever possible to collaborate with Mr. M on these issues. She testified that she actively sought to address the Children's educational deficits by obtaining private tutoring and supplemental academic support after learning that they were significantly behind in English, and she worked to expose them to additional academic content to improve their educational functioning. See Tr. 11/17/25, p. 65. She further testified that, if granted educational decision-making authority, she would seek to enroll the children in a Jewish school capable of meeting both their religious and academic needs, explaining, "I do not want to sacrifice their education," and that she wanted them to be "exposed to the full core curriculum" and attend a school where college would remain a viable option. Tr. 11/17/25, pp. 89, 118.

Ms. Elana Sigall testified on the Mother's direct case and was deemed an expert in education with a focus on general and special education and school placement. The Court found Ms. Sigall to be extremely credible in her assessment of how the Children were doing at ULYOP, ULYOP's failure to meet the Children's educational needs, and the insufficiency of the school's secular education to prepare the Children to attend or graduate from high school with a diploma. Tr. 6/3/24 pp 101-104; Tr. 6/24/2024, pp 13-14, 33, 52, 57. Her expert testimony fully corroborated Ms. S's concerns regarding the children's needs and the failure of ULYOP to meet those needs.

Ms. Sigall conducted a comprehensive evaluation of the children's educational functioning and the programming available at ULYOP. Ms. Sigall participated in two IESP meetings, reviewed voluminous DOE documentation, neuropsychological evaluations, report cards, work samples, incident reports, and the school handbook, and personally visited ULYOP. Based upon this review, Ms. Sigall opined that ULYOP was not equipped to meet the children's academic, behavioral, or developmental needs. With respect to secular education, Ms. Sigall testified that the children received only approximately five hours per week of English and mathematics instruction, with no evidence of instruction in science or social studies, and that both children were already performing below grade level in core academic subjects. Tr. 6/24/24 at 48—51, 57. She further testified that, as a result of these deficiencies, the children were not being prepared to attend or graduate from a high school that would permit them to earn a diploma. Tr. 6/24/24 at 57—58.

Ms. Sigall testified that Levi exhibited significant emotional distress within the school environment and required intensive behavioral supports, including access to trained professionals capable of implementing structured behavioral interventions and providing a safe and supportive environment. Tr. 6/3/24 at 107—108. Ms. Sigall further testified that ULYOP did not have adequately trained special education personnel to meet his needs, noting that the school's purported special education support was provided by an individual who had completed only minimal training. Tr. 6/3/24 at 101—102. She opined that Levi's emotional well-being and self-esteem were negatively impacted by his continued placement at ULYOP and recommended that he be removed from that school as soon as possible. Tr. 6/24/24 at 28—29. See also, e.g., Pet. Ex. 5, DOE Records for Levi M ("Levi is presenting significantly concerning behaviors at school due to which the school believes that he would benefit from special education services and support, including a one-to-one paraprofessional. He has a history of hitting adults when frustrated, feeling out of place or unable to comprehend or follow through with a task. In a recent incident the security guard had to pick him up from outside and return him to the school. Levi struggles with staying focused, completing assignments, following directions, remaining seated and remaining in the classroom. Levi often engages in defiant behaviors. He leaves the classroom and has attempted to leave the school building necessitating someone following him. He is unsafe in the classroom and needs assistance and supervision throughout the day as well as assistance to self-regulate. He might leave the school grounds. Levi's academic functioning is significantly impacted by his behaviors"); Pet. Ex. 11, Neuropsychological Evaluation for Levi M (2022); Resp. Ex. GGG, Psychoeducational Evaluation for Levi M (2025).

Ms. Sigall also testified that Ari has documented speech and language disabilities, cognitive delays, and was performing below grade level, and that his testing reflected borderline intellectual functioning. Tr. 6/24/24, pp. 91—93. Despite these documented needs, the school did not demonstrate awareness of his academic deficits and, at times, conveyed inconsistent information to the family regarding his functioning. Tr. 6/24/24, pp. 33—34. Incident reports reviewed by Ms. Sigall documented repeated behavioral dysregulation, including biting, hitting, and fighting, without evidence of meaningful behavioral intervention or specialized support. Tr. 6/24/24, p. 64. Ms. Sigall opined that Ari required specialized instructional support from trained professionals capable of addressing his academic and behavioral needs and testified that, if he remained at ULYOP, he would likely fail to make meaningful academic progress and would fall further behind. Tr. 6/24/24, pp. 66—68; Tr. 6/23/24, p. 103.

Based upon her comprehensive review, which the Court fully credits, Ms. Sigall concluded that neither child had access to the structured, individualized, and therapeutically appropriate educational environment necessary to address their academic deficits, hyperactivity, emotional regulation, and safety needs. See Tr. 6/3/24, pp. 107—108; Tr. 6/24/24, pp. 66—68. She recommended that both children be placed in a school offering a comprehensive secular curriculum and integrated co-teaching classrooms staffed by certified special education professionals capable of providing appropriate academic instruction and behavioral support. See Tr. 6/24/24, p. 110.

The Court also credits the findings of Dr. Joseph Weinreb, a clinical and forensic psychologist with over thirty years of experience as a school psychologist, with respect to the Children's educational needs and his recommendation that the Mother be awarded education decision-making. Dr. Weinreb testified about how important it was that the Children be in an appropriate educational setting, particular given the Children's diagnoses of ADHD and their educational and behavioral challenges. He expressed concern that ULYOP lacked the professional resources necessary to meet those needs, stating, that the school did not have "the tools necessary or needed to implement the support that Levi needs," nor "a sophisticated group that can carry out a sophisticated plan clinically." Tr. 10/30/2023, p. 110.

The Court agrees with Dr. Weinreb's assessment regarding the Father's failure to include the Mother in educational decision-making. Even though the Father had final educational decision-making authority, he did not have the right to "totally exclude Ms. S," and that she should have been notified of meetings and provided with IESP documentation. Tr. 10/30/23, pp. 87, 95. Dr. Weinreb further opined that Mr. M "did not select a school that caters to all of Levi's special needs," despite having the ability to choose a placement with appropriate clinical and educational support. Tr. 6/3/24, pp. 117—118. Dr. Weinreb recognized that as a member of the Lubavitch community, the Father might want to keep the Children in a Lubavitch school but opined that, "if he hasn't looked around for other schools [ ] that would be a better fit then I, I think that's a problem." Tr. 10/30/23, p. 118. Dr. Weinreb explained that if one's religious sect does not have a school that can provide for a Child's "specific educational needs," then they "have to then come to that realization and see if they can widen the scope and look at other yeshivas that may provide the education their child needs." Id.

The Court agrees with Dr. Weinreb's conclusion that the Mother should have educational decision-making in that she "is better suited both in terms of her ability to work with the children in a broader way, broadening out their horizons, doing the things that she was doing with the children to supplement their education" and her ability to share educational information with the Children's Father. Tr. 10/30/2023, p. 96. He further testified that the mother would be "the most trusted parent to Levi in an educational setting with an aid and a behavior intervention plan to best address his needs." Tr. 1/29/24, p. 146. Dr. Weinreb further opined on why he felt the Mother was the parent who could be more trusted to put the children in an appropriate educational setting: "Because the mother has great investment in the children growing and becoming proficient in the skills that you need, both school skills and also life skills that will then ultimately help the children to remain good students in good standing." Tr. 1/30/2024, p. 146, lns. 14-18.

While the Court does believe that Mr. M wants his Children to receive a good education — both he and Ms. S are college-educated — the Court believes that Mr. M either lost sight of this value in the face of his conflict with Ms. S or prioritized keeping the Children in a Hasidic school over their being in an appropriate educational setting for their needs. Mr. M was willfully ignorant of how serious the boys' issues were at school, as well as of the lack of an appropriate secular education, and prioritized keeping them at the yeshiva for religious purposes (rather than finding an appropriate educational setting) despite the many issues.

Mr. M's testimony on cross-examination regarding the quality of the Children's schooling was particularly incredible and demonstrated a lack of insight into his children's needs. Despite admitting that ULYOP lacked any science and social studies classes and that the children did less than three hours a week of mathematics or English Language Arts, he doubled down and refused to admit that this could not possibly suffice for a high school diploma. He additionally attempted to circumvent the plain language of the Settlement Agreement, saying that he meant for a high school diploma to also mean GED-equivalency. The Court finds it incredible that Mr. M, who has a master's degree in education, could confuse the work involved with obtaining a full New York high school diploma with taking the GED exam. Mr. M's testimony regarding his sons' special education needs was particularly evasive and undermined his claim that he was the parent best suited to advocate for their needs. See Ct. Ex VII (Reconstructed Transcript of 5/9/25), pp. 23-24, 31, 41. In one breath, he attempted to blame the children's struggles in school entirely on Ms. S's supposed "refusal" to consent to medication while concomitantly downplaying said struggles, claiming that his children did not necessarily "need" special education services. Id. at pp. 39-41; see Ct. Ex VII (Reconstructed Transcript of 5/9/25), p. 107 ln. 5. Even after hearing the testimony of the Mother's educational expert, the Father remained committed to keeping the Children in the schools, and the Court had to order the Children moved from the school. See Order - General dated 7/15/24 (Paley, Ref.).

Ultimately, the Court finds that Mr. M is not suitable to retain educational decision-making for two main reasons — first, the educational decisions he was making were not in the children's best interests, and second, that he failed to meaningfully involve Ms. S in educational decision-making. The documentary evidence and the testimony of Ms. S, Ms. Sigall, and Dr. Weinreb conclusively established that Ari and Levi are children with special needs who require behavioral and educational supports to succeed in school, and Mr. M still appears to be in denial about this.

Additionally, the Court declines to re-interpret the parties' Settlement Agreement regarding the parties' agreement that the children would "have access to an education that enables the Children to earn a high school diploma." Settlement Agreement, p. 7. Mr. M would have the Court re-interpret the Stipulation to define "high school diploma" as a high school diploma equivalent, such as taking the GED exam. "[A] matrimonial settlement is a contract subject to principles of contract interpretation, and a court should interpret the contract in accordance with its plain and ordinary meaning." Colucci v Colucci, 54 AD3d 710, 712 [2d Dept 2008]. "Where such an agreement is clear and unambiguous on its face, the intent of the parties must be gleaned from the four corners of the instrument, and not from extrinsic evidence." Levi-Marchessault v Marchessault, 162 AD3d 650, 651 [2d Dept 2018]. From the plain language of the Stipulation, the parties agreed to have the Children earn the credits for a high school diploma and not take a high school equivalency exam.

The testimony clearly established that the Children have not performed well (socially or academically) at Orthodox Jewish yeshivas, that many if not all of the Orthodox Jewish yeshivas accessible to this family — either locationally or financially — do not have services and personnel available to meet their special needs, and that expanding the pool of available schools in which they may enroll would be in their best interests. Cf. Weichman v Weichman, 199 AD3d 865 [2d Dept 2021] ("The child had been enrolled in the same yeshiva since he was two years old, where he was doing well socially and academically, and the plaintiff failed to establish that her desired plan of enrolling the child in a different type of yeshiva or a public school would be in the child's best interests."). See, e.g. Karetny v Karetny, 283 AD2d 250, 250-51 [1st Dept 2001] ("The record supports findings that the child has Tourette's Syndrome, a neurological disorder aggravated by stress, that the child's symptoms diminished considerably once defendant took her out of the yeshiva she had been attending for three years and enrolled her in public school, that the longer school day at yeshiva is a source of stress for the child, and that adherence to the stipulation is therefore not in the child's best interests."). The evidence at trial ultimately demonstrates that only Ms. S, and not Mr. M, is open to exploring a wider pool of schools in an effort to find the appropriate educational setting for the Children.

In sum, Ms. S has relentlessly advocated for Levi and Ari in their school setting and has not shied away from their special needs; rather, she is keenly aware and educated regarding the children's needs and tirelessly endeavors to ensure their needs are met in school. The Court finds she is the parent far more likely to consider the other parent's point of view when making educational decisions.

Mr. M himself affirmed over a year after this case began and over a year before this trial started that his "parental judgment and honor is to resort to the advice of the Court appointed professionals whatever that advice may be." Pet. Ex. 15 (Affirmation of Devon M, May 4, 2022), p. 9, ¶ 16 (emphasis added). This Court accepts Dr. Weinreb's recommendation that Ms. S be awarded educational decision-making.

Medical Decision-Making

Per the Settlement Agreement, Ms. S has final decision-making regarding the children's medical issues. Prior to separating, the parents had already picked out a pediatrician together. As Mr. M had primary physical custody per the Settlement Agreement, he was usually the parent who took the children to the pediatrician. However, as the years went by, Mr. M stopped informing Ms. S of issues that surfaced during these appointments, referrals to specialists for these issues, or appointments with said specialists. While there were occasions when he did proactively reach out to her, the bulk of evidence and testimony revealed that Mr. M prevented Ms. S from exercising her decision-making ability by keeping her in the dark about their children's health, minimizing any perceived problems, and stonewalling access to information. In analyzing this dynamic, Dr. Weinreb testified that "Mr. M showed a prolonged and consistent disregard for working together with Ms. S," (Tr. 1/30/23, p. 55 lns. 6-7) in that "he basically didn't consider her relevant and . . . has a longstanding pattern of not even including her in medical decisions." Tr. 1/30/23, p. 54, lns. 11-13. While a custodial parent may occasionally forget to inform a co-parent about a routine medical issue, the Court finds that Mr. M gatekept information in that he unfairly blocked Ms. S from access to medical information and usurped her medical decision-making authority. See also Tr. 1/30/23, pp. 90-91, 94. In the end, this failure by Mr. M to communicate and co-parent with Ms. S not only harmed their co-parenting relationship but also put the children's health at risk.

Very notably, on the Jewish holiday of Simchat Torah in 2018, Levi was hit by a car while in the care of his father and taken to the hospital via ambulance. Mr. M never informed Ms. S about this incident. When Ms. S eventually found out, it was from Levi himself and not Mr. M. Ct. Exhibit V (Resettled Tr. of 4/30/25, p. 79, lns. 9-13). Alarmed, Ms. S "reached out to Mr. M immediately," but Mr. M denied anything serious had happened and claimed Levi simply bumped into a parked car, fell, and hit his head. Pet. Ex. 19; Ct. Exhibit V (Resettled Tr. of 4/30/25, pp. 81-82); Tr. 3/5/24 pp. 20-28. Mr. M's claims are undermined by the fact that it was Simchat Torah and a Saturday, when it is strictly forbidden to ride in a car for Hasidic Jews. Violating this rule, for a person so strict in observance of the Jewish faith, could only mean there was an imminent threat to one's health. Mr. M, however, denied that anything happened; when that denial was challenged, he sought to deny that the incident was serious, that an ambulance came, or that Levi went to an emergency room, and only changed his statements when confronted with evidence to the contrary. See Pet. Ex. 3 (Hatzalah Ambulance Call Report, p 3, indicating transport to Maimonides Medical Center). The Hatzalah records indicate that then-5-year-old Levi had been hit by a motor vehicle driven at less than 10 miles per hour by an unknown driver. Pet. Ex. 3. Even on the stand, Mr. M was evasive about and sought to minimize this incident. See Ct. Exhibit V (Resettled Tr. of 4/30/25, pp. 79-102). This was emblematic of Mr. M's modus operandi of no communication about, denial of, and then minimization of the issues regarding the children. See Tr. 10/30/23, pp. 54, 58-64, 70-72 (testimony of Dr. Weinreb regarding this incident and Mr. M's treatment of Ms. S).

Another example of Mr. M excluding Ms. S from medical decisions, despite her court-ordered authority to make such decisions, arose with regard to Ari's dental care. During the children's extended visit with Ms. S in October 2020, Ms. S was informed by the children's dentist that Ari needed a filling, and there was a chance the tooth needed to be extracted. Ms. S testified that she was "alarmed" at this, as she specifically remembered discussing the possibility of getting a second opinion on that same tooth earlier that year with Mr. M because although the filling looked "weird," the advice the dentist gave was equally peculiar. Tr. 3/5/24, p. 84, lns. 13-16. Ms. S testified that Mr. M brushed it off at the time. Ms. S, after realizing she was being "stonewalled" by Mr. M, then took the children to a new dentist, where it was revealed that the children needed many other dental procedures that she considered unusual for their age, including crowns. Tr. 3/5/24, p. 87 ln. 20. See Pet. Ex. 9, pp. 14 ("hypoplastic enamel #3, #8, #19, showed areas to mom. Mom was unaware of these areas, was not shown by previous dentist,"); 42 ("explained to mom that a lot of the fillings that were done at previous office have recurrent decay, rec replacing. Showed mom xrays of decay and clinical decay"); 43-45 (detailing fillings, extractions, and crowns for Ari at age 7). Notably, Ms. S took responsibility for not unilaterally getting a second dental opinion with respect to Ari's tooth, despite Mr. M not wanting one when Ms. S had final decision-making in the medical sphere. During her testimony, she explained that, at that time, she was trying not to "rock the boat," Tr. 3/11/25, p. 95, and instead was trying to keep peace between her and Mr. M. She testified that she has realized that "going against [her] intuition of getting a second opinion, that there was actually other consequences . . . more than just trying to keep the peace . . . It was that keeping the peace was at the sacrifice of [Ari's] health." Tr. 3/11/25, p. 95, lns. 15-19.

There are other examples of Mr. M failing to communicate with Ms. S about medical issues, appointments, and referrals and making unilateral decisions in violation of the Settlement Agreement. During the summer of 2020, Ms. S learned from the pediatrician that Ari had failed his hearing exam and received a referral for an ENT. When she spoke with Mr. M about it later, he told her that it happens "every year" and that they already had an ENT that they were working with. Tr. 3/5/24, p. 38, ln. 11. This was the first time Ms. S had heard that Ari had hearing issues. As she stated during her testimony, "I wasn't going to ask about something I didn't know about." Tr. 3/5/24, p. 39. Then in January 2021, Ms. S reached out to Mr. M in effort to find an eye doctor to address Ari's blurred vision. Pet. Ex. 1N. Mr. M unilaterally found a doctor and made an appointment and sent the information to Ms. S without acknowledging her request to work together to find a referral. Tr. 10/30/2023, pp. 50-51. In response, Ms. S asked Mr. M to cancel the appointment and research first whether this doctor would meet Ari's specific medical needs. Mr. M did not respond to her and took Ari to the appointment anyway. Tr. 10/30/2023, pp. 50-51.

Mr. M testified on direct examination that Ms. S was not involved with and did not ask about the boys' medical care. When confronted with numerous exhibits which contradicted this claim (e.g. Petitioner's 1NN, 1L), Mr. M backtracked and then claimed that Ms. S was making "most" medical decisions without him. Tr. 4/30/25 pp. 55, 70. This latter statement was in direct contradiction of the evidence and his prior testimony and further diminishes his credibility.

There was also testimony regarding the diagnosis and treatment process for Levi's ADHD, which is now being treated with medication. Mr. M claimed that Ms. S unreasonably withheld her consent to treat Levi with psychotropic medication. The Court, however, credits Ms. S's explanation that she wished to try other treatment options first pursuant to Dr. Fernandez's medical opinion. A letter written by Dr. Fernandez, admitted as Petitioner's Exhibit 27  ¹⁵ , lends further credence to Ms. S's position that other treatment options — including implementation of an IEP — should be tried first, and medication could be tried if the other measures were not sufficient. The Court understands and finds completely reasonable her initial hesitancy to jump straight to medication; the Court further appreciates Ms. S's thoughtful consideration about treating Levi's ADHD with medication as well as her ultimate decision to permit it. Thus, the Court does not find merit in Mr. M's argument that the Mother's decision-making was flawed with respect to giving Levi ADHD medication.

Ultimately, the Court finds that Mr. M did not handle the various medical issues discussed above and other situations in a way that facilitated coparenting in the best interests of the children in that he displayed disregard for major issues affecting the children's health, Ms. S's input, and the court-ordered final decision-making authority awarded to Ms. S in the medical sphere. In contrast, Ms. S, when exercising medical decision-making — such as when she took the children to a new dentist in 2020 — was communicative and monitored the children's health closely.

For the reasons above, the Court finds it is in the best interests of the Children to award Ms. S authority to make medical decisions regarding the Children. See Matter of Felty v Felty, 108 AD3d 705, 708 [2d Dept 2013] ("Also supporting the Family Court's custody determination was evidence establishing that the mother is better able and more prepared to closely monitor certain issues pertaining to the children's medical condition."); Akerele, 226 AD3d at 672 ("Additionally, although both parents had a positive relationship with the child, the father appears better suited to manage the child's chronic medical needs.").

Domestic Violence

"In cases in which domestic violence is alleged, and the allegations are proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the best interests of the children." Levitin v Levitin, 167 AD3d 589, 590 [2d Dept 2018]; see also Domestic Relations Law s. 240(1).

In this case, Ms. S claims that Mr. M engaged in a pattern of emotional and verbal abuse that ultimately culminated in a physical incident in October 2015. Ms. S credibly testified that Mr. M would belittle, insult, stonewall, and undermine her whenever she expressed an opinion or did something wrong, even when making a "simple mistake." Tr. 3/11/24, p. 57 ln. 3.

In October 2015, Ms. S stated that she and Mr. M had gotten into an argument the morning of Levi's birthday party. At some point, Mr. M could not find his keys and asked Ms. S to give him hers, but Ms. S declined as she was preparing for the birthday party and needed to be in and out of the house all day. Mr. M went over to her purse, and Ms. S told him to stop and grabbed it back, telling him he could not go through her things. Mr. M responded by saying, "Your things are my things because I'm your husband," Ms. S tried to grab her keys back, and Mr. M grabbed her arm and pushed her against the wall. Ms. S testified that he left a red mark on her arm and that a bruise formed there by the next day. Ms. S did report this incident to the police, but she did not file a family offense petition or request an order of protection in any other proceeding. However, she testified to not feeling safe in her home and that she did not have anyone close enough in her community that she felt she could stay with at the time. Ms. S cried during her testimony as she talked about this time period. Shortly after the incident, Ms. S took the Children and flew to Seattle to spend time at her sister's home. Mr. M then drained their joint bank account — her only checking account — and she emailed him many times when she was in Seattle asking how she was supposed to get back without access to the joint bank account. Mr. M filed a Petition for Writ of Habeas Corpus and had Ms. S served with divorce papers while she was still in Seattle.

Mr. M denied the allegations of domestic violence on direct examination and described them as "false allegations." Tr. 4/28/25, p. 55, lns. 1-2. At one point, he claimed she was "caught to be lying," (id. at ln. 17) but then retracted his statement, saying that he was instead able to "identify that Ms. S didn't take the proper protocol that would've have to happen in such a situation most likely." Id. at ln. 23-24. Mr. M did not explain what this "proper protocol" was. He stated that the photograph provided as Pet. Ex. 25 was not evidence of this incident and rather alleged that the injury depicted in the photograph was a result of an incident between Ms. S and her partner. Mr. M claimed that Ms. S's hair was different in that it was longer in the photo than it had been during their marriage. Ms. S rebutted this in later testimony, stating that she had been growing out her hair at the end of their marriage and provided evidence to that effect in Petitioner's Exhibits 25, 26, and 31. The Court credits Ms. S testimony — and not Mr. M's — about this incident.

The Court finds that the Petitioner has proven, by a fair preponderance of the evidence, that Mr. M committed Harassment in the Second Degree against the Petitioner. "A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person" by inflicting physical contact or threatening to do so, or by engaging in a course of conduct intended to seriously alarm or annoy such person. Penal Law § 240.26. Ms. S testified credibly that Mr. M subjected Ms. S to physical contact in that he grabbed her forcefully enough to leave bruising during the incident in question. See Pet. Ex. 25 (photograph of bruise). The Court can infer from the circumstances, including his statements during the incident and demeaning conduct throughout the marriage, that Mr. M intended to alarm and intimidate Ms. S. There is no evidence that the Children were present during this incident.

Dr. Weinreb classified the event as a "one-time domestic violence [incident] where the father was the perpetrator and the mother was the victim." Tr. 1/29/2024, p. 23, lns. 1-2. Dr. Weinreb did not find a pattern of physical violence necessary to warrant using a structured screening tool for domestic violence, but he suspected that there were more incidents than the one that was reported. Tr. 1/30/24, pp. 113-115. This suspicion was rooted in how Mr. M treated Ms. S as the inferior parent by degrading her and belittling her opinions. Dr. Weinreb testified that the domestic violence (verbal, emotional, and physical) inflicted by Mr. M was consistent with the results of his Millon test results of turbulent personality disorder. He worked consistently to minimize her opinions, impact, and existence by yelling at her, calling her names in front of the children, and gaslighting her. Mr. M's dominating behavior continued after the separation. Of note to the Court, in Pet. Ex. 1OO, Mr. M states that Ms. S is not an "equal parent." This sentiment is significant to the Court, revealing how Mr. M thinks of himself as better than or dominant over Ms. S.

While the Court credits Ms. S's version of the incident that day, the Court disagrees with Dr. Weinreb that there were likely other physical incidents. By the time of her testimony during this trial, the parties had been divorced for quite some time and separated even longer. Ms. S's testimony appeared unguarded, and this Court does not believe she withheld disclosure of any further incidents of physical violence during the parties' marriage. Also, while the Court did find it troubling that Dr. Weinreb never spoke to Mr. M alone about the allegation of a one-time physical incident, the Court had the unique opportunity to hear each party testify firsthand about the incident during trial and finds that testimony to be even more determinative on the issue of what actually occurred. Khan v Potdar, 185 AD3d 822, 824 [2d Dept 2020] ("The court, having the benefit of observing and listening to the witnesses firsthand, credited the mother's testimony concerning acts of domestic violence by the father."); Felty, 108 AD3d at 707 ("[T]he Family Court, having the benefit of observing and listening to the witnesses firsthand, credited the mother's allegations of domestic violence by the father, and found that his denials thereof lacked veracity.")

The Court has considered the proven domestic violence as it relates to the best interests of the Children and finds that this proven incident of physical violence corroborates this Court's finding that Mr. M did not see Ms. S as an equal parent or partner either during their marriage or in the years following their divorce and supports this Court's finding that he acted unilaterally numerous times in various areas as a parent in the years following their separation. The power dynamic created by this pattern and the culminating violent incident contributes to this Court's finding that joint decision-making is unfeasible with these parties.

For the reasons above, the Court hereby grants the Mother legal custody including final decision-making with respect to major educational and medical issues and shared legal custody with respect to religion.

Physical Custody

"Any court in considering questions of child custody must make every effort to determine what is for the best interest of the child, and what will best promote its welfare and happiness, ... [and] primary among those circumstances to be considered is the quality of the home environment and the parental guidance the custodial parent provides for the child." Eschbach v Eschbach, 56 NY2d 167, 171-72 [1982]. "[T]he court must inquire into the emotional, intellectual, physical, and social needs of the children." Koppenhoefer v Koppenhoefer, 159 AD2d 113, 116 [2d Dept 1990].

The Court finds that the current parenting time schedule is not in the Children's best interests. Both parents are bonded with and deeply love the Children. While each parent may offer the Children differing home environments, they each offer the Children guidance that the other parent may not. Although Mr. M has been the primary residential custodial parent, Ms. S's parenting time with the Children increased since the filing of the instant petitions such that they spend significant time with her and have for the past five-and-a-half years. The Court finds that Ms. S has provided Ari and Levi with a safe, stable living environment over the course of the proceedings which have been pending for almost half of the boys' lives and that she and the boys should have significantly more time together. The Court finds that a 50/50 split in physical custody is appropriate and in the best interests of the Children in this case.

This is not to say the Court has had no concerns about the home environment Mr. M has provided. In approximately February 2020, Mr. M and Ms. Z married and moved in together along with Levi, Ari, and Ms. Z's son Mendy, who has autism spectrum disorder. From that time until September 2020, the family lived together in a three-bedroom apartment on Adirondack Avenue, and Levi and Ari would visit Ms. S at her home. On September 7, 2020, Ari, who was six years old at the time, reported to Ms. S that his stepbrother Mendy (then six or seven years old) had touched his penis. Tr. 3/5/24, p. 41 lns. 19-20. Based on the information Ari gave Ms. S on that day, she thought it had been a one-time incident that had been addressed by Ms. Z. Ms. S assured Ari that it was inappropriate for Mendy to have done that and encouraged him to report it if it happens again. Ms. S informed the children's therapist, Ms. Lebovic. On September 13, 2020, Ari again raised the issue of Mendy touching his penis; however, this time, Ari said that it was happening all the time, and Levi corroborated what Ari alleged. Ms. S subsequently called in a report to the State Central Registry and filed the instant modification petition. A Court Ordered Investigation ("COI") under Family Court Act § 1034 was ordered by Judge Vargas, and the resulting report was admitted as Pet. Ex. 2. The report details the forensic interview of the subject children by Child Advocacy Center staff, where both Ari and Levi confirmed that Mendy had touched their penises and buttocks on multiple occasions while living in the Adirondack Ave. home with Mr. M, Ms. Z, and Mendy. Both children informed Ms. Z and Mr. M at the time, who intervened by sending Mendy to his room and talking to him. The report notes distress experienced by the children as a result of the situation; for example, Ari reported that he had punched Mendy in the back and face for touching him, and that he preferred living with Ms. S "because no one is touching his penis." Pet Ex. 2, p. 9.

The Court finds that for a period of time between March 2020 and September 2020, the Children's stepbrother Mendy repeatedly touched the Children's penises and buttocks. These allegations were cross-corroborated by Levi and Ari, and neither child has recanted the allegations in the more-than-five years since the incidents occurred. While ACS "unfounded" the allegations, this merely means that ACS did not find by a fair preponderance of the evidence that Mr. M and Ms. Z failed to exercise a minimum degree of care regarding the situation. Social Services Law § 422[5][2]. It does not mean that the incidents did not occur. In fact, Mr. M agreed on cross-examination that even if ACS deemed the case unfounded, it didn't necessarily mean that the inappropriate touching did not occur. Tr. 1/31/24 p. 230 lns. 14-17.

Contrary to ACS's finding, this Court finds that the actions — or lack thereof — taken by Mr. M and Ms. Z were decidedly not appropriate and entirely insufficient. As per the COI Report, "[t]he children indicated that they have told both their stepmother Z and their father about the innaprsopriate [sic] touching. Although both the stepmother and their father have addressed the situation with Mendy by sending him to his room and talking to him. [sic] The sexual innapropriate [sic] touching continues." Pet. Ex. 2, p. 6. It is clear that sending the child Mendy to his room did nothing to stop the harm being perpetrated, and that further intervention was necessary. Cf. Miller v Norton, 237 AD3d 711, 714-15 [2d Dept 2025] ("[W]hile this so-called 'incident' reflected the parties' different parenting philosophies, the mother's actions were well within the broad range of appropriate parenting conduct and therefore, it was an abuse of discretion to limit the mother's parental access in reliance on that incident."). In addition, although Ms. Z and Mr. M had the Children enrolled in therapy, the children saw the same therapist as their stepbrother, the alleged perpetrator, creating a likely conflict of interest. See generally NASW Code of Ethics Standard 1.06, Conflicts of Interest. This is further supported by Levi's response to his mother when she suggested to the boys (prior to her call to ACS) that they tell their therapist about Mendy's conduct, Levi "exploded, saying he has told her and she doesn't listen/excuses the behavior." Ct. Ex. I (Forensic Evaluation, p. 51). Most egregiously though, Mr. M failed to inform Ms. S at all about what was occurring in his home.

This Court would not necessarily call these incidents "sexual molestation," especially given the boys' relative ages and Mendy's special needs (i.e. Mendy is autistic). This is not to minimize what occurred or excuse Mr. M and Ms. Z's lack of appropriate response. However, it is another fact that this Court considers in the totality of all the circumstances in this case and this family, over the last five years. The Court does find that the incidents impacted the Children and that such were minimized by Mr. M and Ms. Z and that the lack of communication with Ms. S was inexcusable.

This situation demonstrates again Mr. M's characteristic pattern of no communication about, denial of, and then minimizing issues regarding the children. See Medical Decision-Making section, supra; Tr. 10/30/23, pp. 54, 58-64, 70-72 (testimony of Dr. Weinreb regarding the 2018 car incident and Mr. M's treatment of Ms. S). In this case, Mr. M failed to inform Ms. S of what had occurred, then flatly denied that any inappropriate touching occurred (See Pet. Ex. 1Q; Tr. 1/31/24 pp. 223-24), and finally minimized the issue and blamed the boys themselves (Tr. 1/31/24 pp. 208, 228) (describing it as "solicited behavior" and "developmentally appropriate").

When Ms. S learned about the inappropriate touching, Ms. S was deeply disturbed (see Tr. 3/5/24, p. 41) and acted decisively and appropriately by separating the boys, petitioning the Court for extended parenting time to keep them away from Mendy until clinically recommended. See Pet. Ex. 17 (Temporary Order of Visitation dated 9/24/20, Darvil, J.). As explained by Dr. Weinreb, Ms. S has a "gift" for connecting with and calming down the children. Tr. 1/30/24, p. 151 lns. 18-25.

The Court was also concerned by another incident in December 2023 in which Ms. Z physically restrained Levi, who was twelve years old at the time. Ms. Z testified that she, weighing 175 pounds, sat on a "skinny" boy of approximately 70 pounds, because he was being disrespectful and not following directions. Tr. 3/14/24, pp. 114-115. Ms. Z testified, incredibly, that she didn't believe it was "bothersome" to Levi even though Ms. Z admitted that he was "agitated" at the time. Tr. 3/14/24, pp. 80, 117. When Levi got angry and left the house, Ms. Z did not try to block the door, follow him, or call the police herself. Levi ended up taking the train from Brooklyn to Queens by himself, after dark, without any money or a cell phone, and Mr. M only called the "Jewish police"¹⁶ approximately twenty-five minutes after he left the home. Tr. 3/14/24, pp. 109-110. Levi ended up at Ms. S's home that evening. When Ms. S contacted Mr. M, he told her that he had called the Jewish police. Ms. S asked him to instead come speak to Levi in person and he obliged. After Mr. M arrived, however, Levi and Mr. M had an argument that ended by Mr. M physically picking him up and putting him into the car while Levi screamed and cried.

The Court finds that Ms. S is better suited to facilitate communication between the parties. Steward v Okon, 238 AD3d 1055 [2d Dept 2025]; Pierce, 214 AD3d at 879; Akerele, 226 AD3d at 672. The evidence presented established that Ms. S was open, cooperative, and transparent in her communication with Mr. M; the same could not be said for Mr. M, who was evasive, domineering, and opaque. Ms. S, in her testimony, also established that she is far more accepting of Mr. M's lifestyle than he is of hers (see, e.g., Tr. 3/11/2024, pp. 99-101) and was far more credible when testifying regarding her sincere desire to peacefully and cooperatively co-parent. Such finding is a weighty factor in this Court's decision to award Ms. S shared physical custody with Mr. M.

This Court does not find it is in the Children's best interests for Ms. S to have primary physical custody notwithstanding the issue raised above. First, the Children are now five-and-a-half years older than when the incidents with Mendy occurred. They were six and eight years old, respectively, at this time and are now 11 (almost 12) and 13 years old, respectively. Second, neither Mendy nor Ms. Z reside in the home with the Children any longer and, although Mr. M wishes to reconcile with Ms. Z, there was no evidence that such reconciliation is on the horizon. In the meantime, the boys get older. They are bonded with their Father and likely have a connection to the community in which they live. The Court does not believe a reversal of the current parental access schedule at this point in their lives is in their best interests nor is it in line with any expressed position via their respective attorneys.

The Court believes that a parental access schedule that gives the parents a 50/50 split would serve the Children's best interests. As educational decision-making is transferred to Ms. S, Mr. M will be able to continue to be engaged in his Children's education by being aware of and assisting with schoolwork. Ms. S on the other hand, will have far more time with the Children than she has had and will now be able to engage with them on their daily schoolwork. Both parents will have time to do recreational activities with the Children, see friends in their respective neighborhoods and, generally, guide the Children as they get older.

For all the reasons above, the Court finds that it is in the best interests of the Children for primary physical custody to be modified to shared 50/50 physical custody as delineated in the Parental Access and Holiday Schedule annexed hereto.

Children's Preferences

"While not determinative, the child's expressed preference is some indication of what is in the child's best interests. Of course, in weighing this factor, the court must consider the age and maturity of the child and the potential for influence having been exerted on the child." Eschbach, 56 NY2d at 173. A court may give great weight to the preference of teenagers (see, e.g., Matter of O'Connor v Dyer, 18 AD3d 757 [2d Dept 2005] (transferring custody to the father when the 17-year-old child expressed a strong preference for such)) but may give less weight to the opinion of very young children, as "the desires of young children ... do not always reflect the long-term best interest of the children." Nehra v Uhlar, 43 NY2d 242, 249 [1977].

The child Ari is now 11 years old. His preference, as expressed by his attorney, is to spend equal time with each of his parents. The Court gives great weight to this opinion in that it is clear that Ari both loves and feels comfortable with each of his parents. The Court agrees that equal time with each of his parents during the school year is in Ari's best interests. However, the Court does believe that Ms. S is the more fit parent to monitor Ari's education and thus has fashioned a parental access schedule wherein the Children spend more time with Ms. S during the middle of the school week. The Court has made every effort to provide equal time with each of the parents for school breaks.

On the very last day of testimony, February 2, 2026, the attorneys for the parents requested to recall their respective clients to ask a few questions regarding updates since their testimony; there was no objection, and the Court allowed it. Most notably, the testimony established that Levi was not currently visiting with his Mother. Each parent had a different belief as to why this had occurred, but there was no definitive answer or supporting evidence and no attorney asked to call any other witness on this issue or present any other evidence. The Court's in camera took place after this last day of testimony.

There are so many possible reasons why Levi may have been upset and not visiting with his mom as of the last date of trial: alienation, confusion, anger, an argument with his mother or brother, tension in his relationship with Ari, negative commentary about his mother. This Court will not speculate as to what the basis was for this and cannot assume that Levi's recent behavior will continue or has continued. The Court has considered the totality of the circumstances and the evidence, as well as the subsequent in camera interview with Levi, and is unable to give significant weight to this recent turn of events as there is simply no evidence as to the real reason and no party has sought any continuance to present any.

Significantly, even given the information provided on the last day of trial, Levi's attorney did not take any position regarding the outcome of this case. The AFC spoke with the child Levi multiple times, both virtually and in person, and was present for the in camera interview. However, Levi maintains his position that "he does not wish to state an opinion regarding the outcome of pending petitions." Ambats Aff., p. 6 (submitted in lieu of an affirmation). Levi's AFC also determined that substituting judgment for Levi would be inappropriate. Id. As such, the Court believes it is in Levi's best interests to spend equal time with his parents and will order such.

Relocation

"A parent seeking to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed relocation would be in the child's best interest." Jose v Guilford, 188 AD3d 1209, 1210 [2d Dept 2020] (citing Gustave v Harris, 176 AD3d 937, 938 [2d Dept 2019]. See Matter of Tropea v Tropea, 87 NY2d 727 [1996]; Matter of Giraldo v Gomez, 49 AD3d 645, 645 [2d Dept 2008]. The burden is on "the parent seeking to move to demonstrate that relocating with the child is in the child's best interest." Dockery v Reid-O'Garro, 161 AD3d 1147, 1147 [2d Dept 2018]. "In determining whether a proposed move is in a child's best interests, courts are 'free to consider and give appropriate weight to all of the factors that may be relevant to the determination." Mackey v Reaves, 246 AD3d 808, 810 [2d Dept 2026]. "While the respective rights of the custodial and noncustodial parents are unquestionably significant factors that must be considered, it is the rights and needs of the children that must be accorded the greatest weight, since they are innocent victims of their parents' decision to divorce and are the least equipped to handle the stresses of the changing family situation." Tropea, 87 NY2d at 739. The Court of Appeals has held that,

[I]n all cases, the courts should be free to consider and give appropriate weight to all of the factors that may be relevant to the determination. These factors include, but are certainly not limited to each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.

Tropea, 87 NY2d at 740-41.

"The weighing of these various factors requires an evaluation of the testimony, character, and sincerity of all the parties involved." Feery v Feury, 168 AD3d 729, 730 [2d Dept 2019].

In the instant case, Ms. S sought, at least at one point, to relocate out of New York City with both of the Children — namely, to Washington state or, in the alternative, Pittsburgh, Pennsylvania. Her proposed parenting plan at summation, however, did not include any reference to relocation, and Ms. S testified toward the end of the trial that she wasn't necessarily seeking relocation anymore. Having received no affirmative withdrawal of this request, though, the Court will address it.

The Children are bonded to each of their parents, and this Court does not find that their bond with their Mother is greater than that of their bond with their Father. See Feery, 168 AD3d at 730 ("The court . . . was properly concerned about the impact that the move would have on the father's relationship with the child."); cf Matter of Ceballos v Leon, 134 AD3d 931, 932 [2d Dept 2015] (where the trial court should have permitted relocation with mother when the Child had "primary emotional attachment" to the mother). In fact, from the time of the 2017 divorce until at least the initiation of these Family Court proceedings, the Father has been their primary caretaker and has been their residential custodian. Cf Matter of Fegadel v Anderson, 40 AD3d 1091, 1093 [2d Dept 2007] (Child's best interests served by relocating with Mother who had been primary caretaker since divorce); Dockery v Reid-O'Garro, 161 AD3d 1147, 1148 [2d Dept 2018].

Currently, the Children spend substantial time with each of their parents, and thus there is no question that a move across the country — or even to Pittsburgh, which is significant distance from New York City — would greatly reduce the amount of time the Children spend with their Father. The Court does not believe that such a substantial reduction in quality time with their Father is in the Children's best interests. See Lyons v Sepe, 163 AD3d 567, 569 [2d Dept 2018] ("The mother [ ] failed to show that relocation would not have a negative impact on the quantity and quality of the child's future contact with the father, who had exercised most of his parental access rights and indicated that he desired to continue participating in the child's life") (internal quotation marks omitted). Furthermore, the Children have two younger sisters in Brooklyn, and the boys would miss out on a tremendous amount of quality time were they to relocate. See Matter of Ceballos v Leon, 134 AD3d 931, 932 [2d Dept 2015] ("the child's relationship with her half-sibling, who resides in Florida, will be disrupted if she remains in the father's care, and the record indicates that the child and her half-sibling have developed an emotional bond"); Matter of Fegadel v Anderson, 40 AD3d 1091, 1093 [2d Dept 2007]. Thus, the Mother's request for relocation is denied.

The Court hereby grants Ms. S and Mr. M shared 50/50 physical custody as outlined in the attached Parental Access and Holiday Schedule and grants Ms. S legal custody with the exception of major decisions about religion which remains joint. As stated so eloquently by the Second Department in Weisberger v Weisberger, "[w]hile the arrangement set forth here may not fully satisfy both sides of this dispute, courts do not always have the perfect solution for all of the complexities and contradictions that life may bring — the parties must forge a way forward as parents despite their differences." Weisberger v Weisberger, 154 AD3d 41, 56 [2d Dept 2017].

Dated: May 29, 2026

Laura M. Paley

FOOTNOTES

1.   The actual modification petition was not filed until late December 2020 under the same dockets (V-09798-9-20/20A) as the Order to Show Cause. This unusual procedure for Family Court appears due to limitations on filing during this time during the Covid-19 pandemic.

2.   The Queens matter appears to have been dismissed due to the filing in Kings County Family Court only three days later.

3.   Ms. S later filed an enforcement petition under dockets V-09798-9-20/21B on February 21, 2021 but withdrew these petitions on September 13, 2022.

4.   Stipulated to by the parties on the record during trial on November 28, 2023.

5.   For the Mother, "alternating weekends from nightfall on Saturday through Tuesday morning drop off at school, and on the other weekends . . . [from] Sunday at 6:00 p.m. through Tuesday morning when the Children return to school." Pet. Ex. 13, Divorce Stipulation.

6.   This Court has also ordered additional holiday parenting time for Ms. S, over Mr. M's objection. See Pet. Ex. 20 (Order dated 3/8/2022, J. Vargas); Pet. Ex. 21 (Order dated 7/6/2023, C.A.R. Paley).

7.   By "hybrid" hearing, the Court means that some participants appeared remotely via Microsoft Teams. Ms. S's counsel was permitted to appear remotely on all dates as she had moved to Texas during the course of the litigation. The only witnesses who were permitted to testify remotely were the forensic evaluator, Dr. Weinreb, and Ms. S's sister, Ms. Brown. Ms. Brown lives in Washington state. Some of the attorneys, other than Ms. S's attorney, also appeared remotely on several dates. There was never any objection from anyone with respect to the manner — in person or remote — in which the testimony was given or in the manner the attorneys appeared.

8.   FTR stands for For the Record and is the product/application used in Family Court proceedings in which live court reporters are not used.

9.   The Father was represented by two different attorneys over the course of this trial. His first attorney was allowed to withdraw as counsel on May 9, 2024, upon the Court granting his motion to be relieved. See Order on Motion #19, dated May 9, 2024. The Child Levi was represented by John Orlando (from the assigned counsel panel) until January 9, 2025 when his representation abruptly ended due to the attorney's unfortunate and untimely death. Levi was then assigned a new attorney from the assignment counsel panel, specifically Rachel Ambats, Esq. Ari was represented by the Children's Law Center (CLC) since June 2021 although his specific attorney changed several times and even once in the middle of trial. During trial he was first represented by David Polsky, Esq. and later Maia Smith, Esq.

10.   Ms. Sigal was qualified as an expert in education with a focus on general and special education and school placement. Tr. 6/3/24, p. 81, lns. 2-4.

11.   The Court requested all counsel to send proposed questions or areas of exploration for the in camera interviews. Only Ari's attorney and Ms. S's attorney submitted questions; Mr. M's attorney and Levi's attorney did not.

12.   Dr. Weinreb testified over the course of four appearances for nearly 11 hours total. Sadly, on March 24, 2024, Dr. Weinreb passed away. Dr. Weinreb was the Court's witness, and all of the attorneys at the time had the opportunity to cross-examine him prior to his passing. The Mother's counsel had begun a re-cross examination which was not completed before Dr. Weinreb died. On April 30, 2025, on the record, the Court struck the testimony from the re-cross examination Mother's Counsel had begun given that other counsel did not have such an opportunity. Counsel for the Father made an oral motion on that date to strike Dr. Weinreb's testimony and evaluation from the record and order a whole new forensic evaluation. The Court denied the motion on May 9, 2025. See Order dated May 9, 2025. As stated in the body of this decision, even disregarding the forensic testimony, given the sheer volume of documentary and testimonial evidence in this case, the Court finds that it had more than enough evidence before it to make an informed decision as to the Children's best interests.

13.   Although there are many issues in this case which do not relate to that conflict, the most salient issue in this case — educational decision-making — is inextricably interwoven with this fact and is discussed in further detail below.

14.   The Divorce Stipulation further states that "The parties shall meaningfully consult with each other . . . in advance so that meaningful discussion between the parents may take place before a decision needs to be made and shall attempt to agree upon on all major decisions concerning the Children, including but not limited to (i) the selection of the Children's schools . . . " Divorce Stipulation, Article V, ¶ 6, p. 5.

15.   Admitted without objection.

16.   The Court notes that counsel and parties used this term to refer to Shomrim, a volunteer public safety patrol that operates in Jewish neighborhoods. See, e.g., Shomrim Crown Heights, https://shomrimch.com/ (last accessed April 30, 2026).

Laura M. Paley, J.