IN RE: a Proceeding Under Article 6 of the Family Court Act (2022)

DECISION AND ORDER

This case addresses several orders to show cause and petitions filed between Andres Q. (Father) and Letitcia Y. A. a/k/a Letitcia Y. R. (Mother) over approximately two years, concerning the only child of their acrimonious relationship, Meleiah Q. (DOB: XX/XX/2013). The Court finds a change in circumstances necessitating a new order of custody. Father established Mother's violations but circumstances militate against Mother serving time in jail  ¹ . The Court entered a temporary order on May 6, 2021 granting the parties alternating weekly parenting time with Meleiah. This schedule shall continue. The parents shall share joint custody and shared residency with each parent exercising designated spheres of influence.

Procedural History

The parties had three prior orders of custody regarding Meleiah. The first two were entered upon the parties' consent on July 10, 2015 and November 27, 2017 respectively before Family Court Referee Thomas W. Polito. The parties agreed to joint custody with Mother having primary physical residency and Father having three to four unspecified periods of residency a week, and thereafter, Father's parenting time with Meleiah increased to include Monday, Wednesday and Friday from after daycare or school until 8:00 p.m., and alternate weekends from Friday until Sunday.

Subsequently, upon Father's default, this Court on January 11, 2019 granted Mother sole custody and primary physical residency. Father continued his alternate weekends with Meleiah, but forfeited his weekday visits.

On May 23, 2019 Father filed a petition seeking to both resume joint custody and increase parenting time with Meleiah. A trial ensued and before this Court rendered a written decision Mother filed an order to show cause and petition on January 31, 2020, seeking to restrict Father to supervised visits. Mother alleged Father both told Meleiah that Mother does not love her and instructed her to harm Mother, by throwing things at her. The Court denied any interim relief. A few days later, on February 3, 2020, Father filed a violation petition alleging Mother without explanation refused him his scheduled weekend visitation.

On July 13, 2020 Mother by order to show cause alleged Father sexually abused Meleiah. This Court pursuant to Family Court Act § 1034 ordered Monroe County Child Protective Services to investigate Mother's allegation of sexual abuse and restricted Father to supervised visits on the next court appearance. On February 17, 2021 Father filed a violation petition alleging Mother had denied him any access to Meleiah.

On April 19, 2021 Father filed an order to show cause and a violation petition based on Mother's continued denial of his supervised visitation. Mother purportedly traveled with Meleiah out of state for a school break and failed to return the child.

At an appearance on April 22, 2021, the Court warned Mother that it would both issue a writ of habeas corpus for the child's return to Father and an arrest warrant for Mother, if Meleiah was not returned.

Mother eventually complied with the Court's directive. This Court entered a Temporary Order of alternating unsupervised residency with Mother and a week of unsupervised residency with Father on May 6, 2021 (the "Week to Week Order"), which continues today.

On December 21, 2021 Mother filed an order to show cause for specified holiday relief which was addressed by the Hon. Alecia J. Mazzo, the Part 1 Judge.

Change of Circumstances

Since entry of the 2019 default order both parties agree that there is a " 'change in circumstances which reflects a real need for change' " (Matter of James D. v Tammy W., 45 AD3d 1358 [4th Dept 2007], quoting Matter of Amy L.M. v Kevin M.M., 31 AD3d 1224, 1225 [4th Dept 2006]). Based on Mother's allegation of sexual abuse and her withholding Father's visits the Court finds there is a sufficient change of circumstances to warrant modification of the Court's prior order (cf. Cowell v Pembrock, 113 AD3d 1118 [4th Dept 2014]) see also Matter of Higgins v Higgins, 128 AD3d 1396 [4th Dept 2015]).

Trial

A protracted trial spanned nine days over the course of thirteen (13) months (due in part to Covid-19 restrictions and scheduling limitations of all counsel). The Court held trial both virtually and in person. Opening statements were waived and the trial began with an order of sequestration on May 26, 2021  ² . The Court determined it would take judicial notice of any and all prior testimony from the Court's earlier trial upon submission of a transcript.

The Court heard testimony from nine witnesses. For Father's case in chief, witnesses included Emanuel Petracca (expert witness), Reverend Herman A., Jr. (maternal grandfather), Rebecca O. (paternal grandmother and supervisor of Father's visits), and Father. Mother's witnesses were Nadia K. (Father's former live-in girlfriend and the mother of Blake S. (DOB:XX/XX/2012)), Christopher S. (Monroe County Road Patrol Deputy), Jennifer P. (therapist from Mt. Hope Family Center), Kara L. (Mother's close friend) and Mother. The Court finds both Father and Mother had gaps in credibility and found witnesses Emanuel Petracca, Herman A., Jr., Christopher S. and Jennifer P. to be credible. The remaining witnesses demonstrated a strong bias toward or against each parent and thus, the Court gave less weight to their testimony (see Matter of Louise E.S. v W. Stephen S., 64 NY2d 946, 947 [1985] [respect is to be accorded the trial judge's advantage in observing the demeanor of the witnesses]; see also Hendrickson v Hendrickson, 147 AD3d 1522 [4th Dept 2017]; and see Matter of Cross v Casewell 113 AD3d 1107 [4th Dept 2014]).

The Court received into evidence thirty-nine (39) exhibits and carefully reviewed each piece of evidence: Petitioner's Exhibit 1 - Emanuel Petracca's Curriculum Vitae; Petitioner's Exhibit 2 - Emanuel Petracca's Assessment and Treatment Plan for the child, Meleiah Q., dated January 21, 2021; Petitioner's Exhibit 3 - photograph of child with Father's cousin's child, Kaylani, eating popcorn; Petitioner's Exhibit 4 - photograph of Father and child sticking their tongues out; Petitioner's Exhibit 5 - photograph of child with some of her young paternal relatives; Petitioner's Exhibit 6 - photograph of Father and child; Petitioner's Exhibit 7 - photograph of child with two of her young paternal relatives; Petitioner's Exhibit 8 - photograph of child eating a meal; Petitioner's Exhibit 9 - photograph of child on sliding board; Petitioner's Exhibit 10 - photograph of child on monkey bars; Petitioner's Exhibit 11 - photograph of child on her bed at Father's house with her stuffed animals; Petitioner's Exhibit 12 - photograph of child holding a bread stick at Olive Garden; Petitioner's Exhibit 13 - photograph of Blake S. (Nadia K.'s son) and Meleiah watching Father and Nadia K. assemble a gingerbread house; Petitioner's Exhibit 14 - photograph of Blake S. and Meleiah playing at a park; Petitioner's Exhibit 15 - photograph of Blake S. and Meleiah at Dave and Buster's restaurant; Petitioner's Exhibit 16 - photograph of Nadia K.'s niece, her son Blake S., Meleiah, Father and Nadia K. at an indoor pool; Petitioner's Exhibit 17 - photograph of Blake S. and Meleiah in a children's playhouse in a Target store; Petitioner's Exhibit 18 - photograph of Blake S. in a Spider-Man mask and out with Meleiah at Father's house; Petitioner's Exhibit 19, photograph of a video taken on November 3, 2018 with Nadia K.'s right arm forming fist; Petitioner's Exhibit 20 - photocopy of Nadia. K.'s telephone number; Petitioner's Exhibit 21 - photocopy of witness Nadia K.'s text message and a picture; Petitioner's Exhibit 23 - flash drive containing three videos - 23A, B and C (six second video of Nadia K. forming a fist, a video Nadia K. sent to Father in December of 2020 of Nadia. K.'s niece, Meleiah and Father, and a video of Meleiah's birthday party); Petitioner's Exhibit 25 - order of protection with maternal grandfather, Herman A., as protected party against Mother; Petitioner's Exhibit 26 - certified transcript of prior trial testimony taken on December 23, 2019; Respondent's Exhibit D - image of mix tape cover of Father with another man pointing gun; Respondent's Exhibit E also received as Respondent's Exhibit Q - copy of a photograph of Father at a gun range; Respondent's Exhibit F - copy of photograph of Mother with Meleiah with birthday cake in the background; Respondent's Exhibit G - copy of photograph of Mother with Meleiah; Respondent's Exhibit H - copy of photograph of Mother and Meleiah with face masks; Respondent's Exhibit I - copy of photograph of Mother with Meleiah; Respondent's Exhibit J - copy of photograph of Meleiah hugging life size Sesame Street character, Elmo; Respondent's Exhibit K - copy of photograph of Meleiah in front of Sesame Street character, Big Bird; Respondent's Exhibit L - copy of photograph of Mother, Meleiah and Mother's adult son from a previous relationship, Jarron; Respondent's Exhibit M - copy of photograph of Meleiah with Jarron; Respondent's Exhibit N - copy of photograph of Meleiah with Jarron; Respondent's Exhibit O - copy of photograph of Mother, Jarron and Meleiah in a car; Respondent's Exhibit P - picture of Father and a friend on vacation in Atlanta in May 2021; Respondent's Exhibit Q also received as Respondent's Exhibit E - copy of photograph of Father at a gun range and the Attorney for the Child's Exhibit 1-A - video.

Best Interests

The Court must next determine what custodial arrangement is in a child's best interests (see Pauline E. v Renelder P., 37 AD3d 1145 [4th Dept 2007]). Factors courts have carved out to ascertain the best interests of children, include (1) the continuity and stability of the existing custodial arrangement, including the relative fitness of the parents and the length of time the present custodial arrangement has continued; (2) the quality of the children's home environment and that of the parent seeking custody; (3) the ability of each parent to provide for the children's emotional and intellectual development; (4) the financial status and ability of each parent to provide for the children; and (5) the individual needs and expressed desires of the children as well as the need for children to live with siblings (see Fox v Fox, 177 AD2d 209, 210 [4th Dept 1992]; see also Matter of Braga v Bell, 151 AD3d 1924 [4th Dept 2017], lv denied 30 NY3d 905 [2017]). Further in determining the best interests of a child, a court must consider any "abduction, elopement or defiance of the legal process" (Robert T.F. v Rosemary F., 148 AD2d 449 [2d Dept 1989] citing Friederwitzer v Friederwitzer, 55 NY2d 89, 94 [1982]); and see Matter of Plaza v Plaza, 305 AD2d 607 [2d Dept 2004]) as well as the effects of domestic violence (Hendrickson v Hendrickson, 147 AD3d at 1522). The Court has considered each of these factors in evaluating what custodial arrangement is in the child's best interests.

Mother's Claims Against Father

Central to the trial was Mother's 2020 sexual abuse claim alleging that Father inserted his fingers into his daughter Meleiah's vagina. Meleiah's purported disclosure of sexual abuse occurred after she swallowed a marble at age six. Mother testified that in early June 2019  ³ , Meleiah was working with small flat marbles during a virtual math lesson, when she swallowed one. Mother took her to the doctor who instructed her to examine the child's stool daily to see if she passed the marble. As Father's weekend approached Mother called him (this one and only time, otherwise she intentionally blocked her telephone number from him) to advise him of the doctor's instructions.

After the weekend, Meleiah at first claimed she did not have a bowel movement. Mother called her pediatrician who scheduled the child for an x-ray, which showed no marble. On the ride home from the doctor's office Mother questioned Meleiah as to whether she was being truthful about not having a bowel movement. Mother cautioned the child about keeping secrets. Meleiah then disclosed that Father put his fingers in her "cookie" (vagina) at nighttime.

Mother was employed at the Society for the Protection and Care of Children (SPCC). Although Mother has a master's degree in mental heath counseling and training with respect to children's sexual abuse, she acknowledged she reacted to her daughter's disclosure by screaming and crying, frightening Meleiah. The next day Meleiah told Mother she was sorry she was "bad" and she did not want to get her Father in trouble. Mother questioned her about "good and bad touches" and any sexual abuse asking "what happened"? Mother testified that Meleiah described one time ("she didn't put a plural on it") when she was in her bed at Father's and he came in her room, scratched her cookie (vagina) and put his finger inside of her.

Mother did not do anything that day. Instead she testified: "I really wanted to make sure that I had processed the situation in the right way so that I could take the next step." On the third day after the child's disclosure Mother called the vice president at SPCC. She next called the personal cell phone of the CEO (of the Bivona Child Advocacy Center)⁴ . Mother shared the disclosure and her "history of being in family court with safety concerns for my child." Mother learned from the Bivona Child Advocacy Center "that it was not therapeutically beneficial for me as her parent, to continue to have these conversations. . . . to refrain from any other questioning around that, unless Meleiah brings it up."

Mother did not heed this advice. Instead she spoke of the abuse with Meleiah on at least three occasions: once before the child met with therapist Joseph Petracca; once in the car with the child's adult brother Jerron and finally when Mother videotaped (AFC Exhibit 1(a)) Meleiah as she questions her about the alleged abuse. The video was recorded after the Court entered a temporary order  ⁵ granting Father weekend visitation, supervised by paternal grandmother. The Court finds Mother clearly engaged in coaching while filming the video. Mother positioned Meleiah sitting next to her (with her arms around her) so both faced the camera. After Meleiah answered each question specifically about the abuse, Mother kissed her head. At trial, Mother attempted to justify her actions. While she acknowledged that she knew not to question Meleiah about the sexual abuse since it might further traumatize her, Mother testified that "[she] was merely clarifying why [Meleiah] did not want to go to her visit [with Father] . . . ." The Court cannot countenance Mother's behavior and finds her interference has tainted the child's disclosure making it impossible for the Court to discern whether the sexual abuse occurred.

Mother's witnesses testified that Meleiah disclosed the alleged sexual abuse to them although each of Meleiah's disclosures significantly varied in detail. Father's ex-girlfriend, Nadia K., was told after her breakup with Father, when Mother befriended her. In August 2020, Meleiah disclosed the sexual abuse to Kara L. , Mother's dear friend, who has known Meleiah since birth, after Kara L. asked Meleiah why she wanted Father's visits supervised. Kara L. , a mandated reporter, reported this disclosure to the authorities.

Jennifer P., licensed in 2021 as a mental health counselor, and employed by Mt. Hope Family Center, is Meleiah's current treating provider. Jennifer P. testified (as a lay witness) that during her fourth session, in March 2021, a very tearful, sobbing and hyperventilating Meleiah told her that Father had touched her "cookie" (vagina). Jennifer P. testified the child's body became "very stiff" when asked about the abuse. She only gleaned that Meleiah was alone with Father when it happened sometime in Summer 2020.

The Court did not qualify Jennifer P. as an expert: she had only treated fifteen children, of those fifteen only four (including Meleiah) she believed had experienced sexual abuse. She admitted she has no training regarding parental coaching and, or alienation. She, like Mr. Petracca, testified that Meleiah struggles with her parents' relationship and is aware of the intense conflict between them. Jennifer P. testified Meleiah fears being away from Mother, otherwise she is a bright, cheerful child.

The Court qualified Father's witness Emanuel Petracca, LCSW-R, as an expert. "The qualification of a witness to testify as an expert rests in the discretion of the court, and its determination will not be disturbed in the absence of serious mistake, an error of law or an abuse of discretion" (People v Johnson, 153 AD3d 1606 [4th Dept 2017], lv denied 30 NY3d 1020 [2017]). Mr. Petracca has 34 years of experience; specifically, dealing with children who have experienced sexual abuse. Mr. Petracca met with Mother alone, Mother and child, the child Meleiah alone, Father alone and Father and Meleiah together. Mr. Petracca opined that Meleiah was not a child who suffered sexual abuse, but rather was a child who suffers emotionally from her parents' ongoing conflict. New York courts have consistently accepted expert testimony regarding a child's behaviors who has been the victim of sexual abuse (see generally, Matter of Nicole V 71 NY2d 112, 118 (1987) rearg denied sub nomine Matter of Frances Charles W., 126 AD2d 936 [4th Dept 1987]; Matter of Amber B., 39 AD3d 743 [2d Dept 2007]. cf Matter of Bethany F., 85 AD3d 1588 [4th Dept 2011] [a court need not hold a Frye hearing regarding to the admissibility of expert testimony of court-appointed mental health counselor in an FCA Article 10 hearing]). Through cross-examination Mother challenged Mr. Petracca's testimony asserting that he departed from established protocols, yet any such departure goes only to the weight to be afforded to his expert opinion (see Matter of Nikita, 77AD3d 1209, 1211 [3rd Dept 2010] and see generally CPLR 4515 (Form of Expert Opinion)).

Mr. Petracca testified that sexually abused children are usually hesitant to describe the abuse. If a child is forthcoming about sexual abuse, it raises concerns as to whether the child has been coached. Meleiah was not hesitant to state she was abused but struggled to give specifics. Eventually she relayed that Father touched her in her bedroom, under her dress, over her underpants, on her "cookie" (vagina).

Mr. Petracca testified that at a joint counseling session when Father entered the room, Meleiah immediately ran to hug him saying "hello daddy." She was comfortable and talkative. Father was appropriate and interacted with her in a nurturing, age appropriate manner. Meleiah only became distressed when Mr. Petracca suggested family therapy with Mother, Father and Meleiah together. Meleiah wanted no part of it. It did not occur. Mr. Petracca's assessment plan recommended the child's contact with Father should immediately increase.

The Court finds the mainstay of Mother's testimony was not credible. Upon cross-examination, Mother admitted that a temporary order of protection she received against Father on October 22, 2018 subsequently was vacated by Attorney Referee Kristin Splain. Referee Splain found that Mother had deleted parts of a text conversation to make Father look as if he was engaged in unprovoked threats to Mother.

As significant, Mother engaged in a pattern of filing escalating claims against Father (and noncompliance with the Court's orders) designed to alienate his affections toward Meleiah (see J.F. v D.F., 61 Misc 3d 1226(A) [Sup Ct Monroe Cty 2018 Dollinger, J.] [alienation of affection is a concerted effort by one parent to interfere with the other parent's contact with the child and is so inimical to the best interests of the child as to render the interfering parent unfit]). Mother's sworn petition filed on May 23, 2019 described Meleiah as being encouraged by Father to harm Mother, specifically by throwing things at her. The evidence at trial portrayed Mother and Meleiah's relationship as consistently warm and loving. No evidence was proffered to show Meleiah returned after spending time with Father and ever sought to harm Mother.

Mother also violated the Court's order when she refused to take Meleiah for visits, asserting the child tearfully refused to go on those visits. In her own words, Mother is seeking full custody because historically Father "has not created a platform where we can productively and positively co-parent together . . . ." Still Mother further testified that she never gave Father her telephone number nor address, instead she simply put the contact information on a piece of paper in the child's backpack.

Mother's own father, Herman A., Jr. (maternal grandfather) testified that Mother is a person who retaliates if she does not get her way. She and Meleiah lived with him and his ex-wife Cheryl A. off and on over the years. Meleiah's biological maternal grandmother is Doretha A.⁶ . Mother testified that she is estranged from both her parents. After Mother's breakup with Father, she was furious with maternal grandfather for what she perceived as him taking Father's side. Mr. A. testified that Mother came to his house, swore at him, hit him in the chest and called him a "child molester pervert," all in Meleiah's presence. Mr. A. testified he asked Mother if she would leave Meleiah with him until she calmed down, but instead Mother drove away angry with the child. Mr. A. thereafter received an order of protection against Mother.

Father's Request For Custody

It is undisputed Father is a consistent presence in Meleiah's life. Father was present at Meleiah's birth and signed an acknowledgment of paternity. He and Mother and Mother's son Jarron lived together for less than a year  ⁷ after Meleiah was born.

Father has a high school education and is a Local 22 union roofer earning approximately $30,000 to $40,000 annually. At trial he lived alone (except for his periods of residency with Meleiah), in a two bedroom one bath cape cod style house in the City of Rochester. Meleiah has her own bedroom, bed, television, a Barbie playhouse, a keyboard, an artist's easel and several stuffed animals.

Father was both behind on child support payments and not working when he testified in July of 2021, explaining that he is laid off each winter and that his union was on strike impeding his return to work. He testified that he usually pays his child support arrears each summer. He acknowledged Mother typically takes Meleiah to her doctor and dentist appointments. Father further testified Mother enrolled Meleiah in school in Greece, New York. Father has acquainted himself with Meleiah's 2020-2021 hybrid schedule and her teachers. Meleiah is academically at grade level and has received awards for being a model classmate.

Father displays a propensity for violent outbursts. He testified that several years before Meleiah was born he and Mother were in a pushing, shoving match  ⁸ . Father tried to appear blameless by stating, "Mother's head hit a window and she was hospitalized." Mother credibly testified after her release from the hospital she filed a police report and received a temporary order of protection, but because Father convinced her not to pursue it, the order was vacated.

Father's ex-girlfriend, Nadia K., who lived with Father for about a year and a half beginning in 2018, credibly testified Father was abusive in their relationship, pushing, hitting and arguing with her. On cross-examination Nadia K. verified Petitioner's Exhibit 19, a photograph of a video taken on November 3, 2018 with Nadia K.'s right arm forming a fist stating she fought Father in self defense.

Once Father became upset by a Facebook post of Nadia K. She testified Father screamed and threw a flat iron at her, which Meleiah witnessed. Nadia K. described another incident of abuse when Father drunk, punched her. Blake (her son who is the same age as Meleiah) and Meleiah were present but asleep.

Although Meleiah was absent, Nadia K. testified that Father again exploded in anger at six year old Blake. Young Blake had peed on the toilet seat and then Father realized Blake likely took his jewelry  ⁹ . Since Nadia K. could not locate the missing jewelry, Father dragged her by her hair, punched her in the face and locked her and Blake out of the house, without her cell phone or car keys. Nadia K. has a one year stay away order of protection against Father.

Mother also has a recent history of volatile relationships. Mother married and divorced China R. Mother admitted on cross-examination the police were called to her home with China for a domestic disturbance. Mother as of June 2022 was in a relationship with Francisco A. for about a year and a half. Mr. A. sees Meleiah about every two or three months because he has a full time job in Newark, New Jersey.

Meleiah's Extended Family

The evidence adduced at trial established that Meleiah is Father's only child. Mother has an older child, Jarron H., now 23 years old, from a previous relationship. Jarron is pictured with Meleiah in some of Mother's exhibits. It is undisputed the siblings have a close bond.

Father described a typical school day with Meleiah from the time she wakes up, until she goes to bed. She often visits her second cousins because they are both close in age, and live nearby, and their home has a pool, hot tub, trampoline and a playground area. It is undisputed that Meleiah has a close relationship with her extended paternal family; which are depicted in Petitioner's Exhibit 3, 5 and 7.

The Attorney for the Child

Meleiah would like to have more time with Mother. The Attorney for the Child substituted her judgment for Meleiah's position, advocating for a shared residency schedule, based upon Meleiah's inability to make a knowing, voluntary and considered judgment due to Mother's apparent influence over her, as well as the concern that following Meleiah's wishes would likely result in a substantial risk of imminent, serious harm as it could be "tantamount to severing her relationship with her father" (Matter of Isobella A., 136 AD3d 1317, 1320 [4th Dept 2016]). The purpose of an attorney for the children is "to help protect their interests and to help them express their wishes to the court"(see Matter of McDermott v Bale, 94 AD3d 1542, 1543 [4th Dept 2012], quoting Family Ct Act § 241 ]). Although a child's wishes are not determinative (Matter of Anthony C. v Kristine Z., 38 AD3d 1317 [4th Dept 2007];Matter of Casolari v Zambuto, 1 AD3d 1031 [4th Dept 2003]; Matter of Hughes v Wiegman, 150 AD2d 449, 450 [2d Dept 1989]); "they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful" (Matter of Stevenson v Stevenson, 70 AD3d 1515 [4th Dept 2010], lv denied 14 NY3d 712 [2010] but cf Braga v Bell, 151 AD3d 1924 [4th Dept 2017]). The Court met with the child in an in camera with Meleiah on November 19, 2019 concerning prior petitions. There was no request for an in camera on the current petitions (see Lincoln v Lincoln, 24 NY2d 270 [1969]; Family Court Act § 664).

Mother testified that since the May 6, 2021 Week to Week Order, "[Meleiah's] more open now about her time on the weeks that she's gone from me and what she did that week. So she always updates me. We also take that Monday night and we'll make a meal together."

Court's Decision

Meleiah's out-of-court statements, "if corroborated, are admissible in custody and visitation proceedings that are "based in part upon allegations of abuse or neglect" (Matter of Montalbano v Babcok, 155 AD3d 1635 [4th Dept 2017] lv denied 31 NY3d 912 [2018] [father allowed son to operate a speedboat for the first time at a dangerous speed and mother's screen shot of father's Facebook page corroborated the child's out- of-court statements to her about the incident]; see Family Court Act § 1046(a)(vi)). Here there was no evidence by an expert witness validating Meleiah's disclosure nor was there any medical evidence to corroborate it.

After considering the totality of the evidence and weighing the best interests factors carefully, the Court finds a child's best interests are protected best by allowing the development of the fullest possible healthy relationship with both parents (see Nimkoff v Nimkoff, 18 AD3d 344 [1st Dept 2005] [Family Court erred in not beginning overnight visitation between father and the children where so recommended by a court-appointed forensic psychologist and by instead focusing on father's demeanor in the courtroom]). A shared arrangement will strengthen her relationship with both her parents.

Mother and Father do not communicate with each other. Mother has been Meleiah's primary caretaker. She intentionally excludes Father. He apparently failed the only time she called him to watch the child's bowel movements to see if the marble passed. Father did not tell Mother anything.

When traditional joint custody - and thus joint decision making with respect to a child - is not possible because of the antagonistic relationship between the parties (see Bliss v Ach, 56 NY2d 995, 998 [1982]; Matter of Brown v Marr, 23 AD3d 1029, 1030 [4th Dept 2005]), it may be appropriate to grant "zones" or "spheres" of decision-making authority to the parties (Delgado v Frias, 97 AD3d 1245 [4th Dept 2012]; Wideman v Wideman, 38 AD3d 1318 [4th Dept 2007]; see also Matter of Ring v Ring, 15 AD3d 406 [2d Dept 2005] [affirming an order granting mother ultimate decision making authority over the child's education and religious issues and father decision making authority over the child's medical and financial issues]; Chamberlain v Chamberlain, 24 AD3d 589 [2d Dept 2005], citing Matter of Penninipede v Penninipede, 6 AD3d 445 [2d Dept 2004] [father awarded joint decision making rights and responsibilities with respect to all health-related decisions involving his daughter]). Even an antagonistic relationship between the parties, without more, does not preclude an award of shared physical custody (see Delgado, 92 AD3d at 1245; see Steingart v Fong, 156 AD3d 794 [2d Dept 2017][awards of shared physical custody with parties given separate decision making authority]).

Mother testified in greater detail about Meleiah's medical needs. She is the parent who coordinates the child's medical and counseling appointments to date. The Court finds that Mother is more adept at being the final decision maker regarding Meleiah's medical and, or counseling needs and her educational needs.

Father may make decisions regarding Meleiah's extracurricular activities. The Court also grants him decision-making regarding Meleiah's faith-based practices or religion.

Father must address his anger issues and the Court orders him to engage in domestic violence and/or anger management counseling and to follow all recommendations. Father shall provide this Decision and Order to his counselor and provide Mother with confirmation that he has completed the program.

THE COURT HAVING SEARCHED THE STATEWIDE REGISTRY OF ORDERS OF PROTECTION, THE SEX OFFENDER REGISTRY AND THE FAMILY COURT CHILD PROTECTIVE RECORDS, AND HAVING NOTIFIED THE PARTIES AND THE ATTORNEYS OF THE RESULTS OF THESE SEARCHES AND THE COURT HAVING CONSIDERED AND RELIED UPON THE SAME:

NOW, THEREFORE, it is

ORDERED that the violation petitions are dismissed; and it is further

ORDERED that the Court finds both a change in circumstances exist and it is in the best interests of Meleiah Q. (DOB: XX/XX/2013) that Mother and Father shall share joint custody and shared residency of Meleiah with designated zones of influence; and it is further

ORDERED that Mother's zones of influence shall be medical and counseling, and educational decisions regarding Meleiah; and it is further

ORDERED that Father's zones of influence shall be those related to extracurricular activities as well as faith-based practices and, or religious decisions; and it is further

ORDERED that the parents shall use a parenting application to facilitate their communications between each other; and if is further

ORDERED that the parents shall continue the schedule of the Week to Week which began by order entered May 6, 2021, as follows:

Father shall continue to have temporary periods of physical residency with the child every other Monday after school until the following Monday where he will drop the child off at school and Mother's week of temporary residency shall commence; and Mother shall continue to enjoy periods of residency with the child every other Monday after school until the following Monday where she will drop the child off at school; and should school not be in session then the parents shall exchange the child at the Public Safety Building as they have been doing since the onset of the Week to Week schedule; and it is further

ORDERED that the following Holiday/Special Day Residency Schedules shall supersede the regular residency schedule; and it is further

ORDERED that Father shall have the following Holiday/Special Day Residency Schedule:

Christmas Eve from noon until Christmas Day at 1:00 p.m. during odd years;

Christmas Day from 1:00 p.m. until December 27th at 7:00 p.m. during even years;

New Year's Eve from noon until New Year's Day at noon during even years;

New Year's Day from noon until January 2nd at 7:00 p.m during odd years;

Easter Saturday at noon until Easter Sunday at 6:00 p.m. during even years;

Easter Sunday at 6:00 p.m. until Easter Monday at 7:00 p.m. during odd years;

The Wednesday before Thanksgiving from noon until Thanksgiving Day at 6:00 p.m. during even years;

Thanksgiving from 6:00 p.m. until the day after Thanksgiving at 7:00 p.m. during odd years;

Father shall enjoy the Spring break from school with Meleiah each year; and it is further

ORDERED that Mother shall have the following Holiday/Special Day Residency Schedule:

Christmas Eve from noon until Christmas Day at 1:00 p.m. during even years;

Christmas Day from 1:00 p.m. until December 27th at 7:00 p.m. during odd years;

New Year's Eve from noon until New Year's Day at noon during odd years;

New Year's Day from noon until January 2nd at 7:00 p.m during even years;

Easter Saturday at noon until Easter Sunday at 6:00 p.m. during odd years;

Easter Sunday at 6:00 p.m. until Easter Monday at 7:00 p.m. during even years;

The Wednesday before Thanksgiving from noon until Thanksgiving Day at 6:00 p.m. during odd years;

Thanksgiving from 6:00 p.m. until the day after Thanksgiving at 7:00 p.m. during even years;

Mother shall enjoy the Winter (and, or February) break from school with Meleiah each year; and it is further

ORDERED, that Mother and Father shall always be able to spend a minimum of two hours with Meleiah on their respective birthdays; and it is further

ORDERED that Mother shall spend Mother's Day with Meleiah; and it is further

ORDERED that Father shall spend Father's Day with Meleiah; and it is further

ORDERED that no party shall be under the influence of illegal drugs or excessive alcohol or marijuana while in the presence of the child; and it is further

ORDERED that no party shall use corporal punishment on Meleiah, nor shall they allow any third party to use corporal punishment upon her; and it is further

ORDERED that no party shall commit any act of violence towards the other party, or to a third party in the presence of Meleiah or to Meleiah nor allow any third party to commit any acts of violence towards a party or to Meleiah; and it is further

ORDERED that neither Mother nor Father shall speak disparagingly about the other parent in the presence of the child; nor shall they allow any third party to speak negatively about the other parent in the presence of the child; and it is further

ORDERED that both parties shall have independent access to all of the child's providers, and each parent shall have the right to consult independently with said providers; and it is further

ORDERED that Mother shall continue to notify Father of the names and contact information (including address and telephone numbers) for the child's service providers including educational, medical, mental health and psychological providers; and it is further

ORDERED that Father shall continue to notify Mother of the names and contact information (including address and telephone numbers) for the child's extra curricular activities and faith based activities; and it is further

ORDERED that Mother and Father shall have the right to communicate with Meleiah by telephone, text, Skype or Facetime or such similar application, at reasonable times and for reasonable periods of time, and the parent having Meleiah shall not interfere with that communication. Meleiah shall always be allowed to communicate with either parent by telephone, text, Skype or Facetime or such similar application, at any reasonable time; and it is further

ORDERED that Mother and Father shall have the right to be present at any event in which Meleiah participates, including extracurricular activities, school events, plays, athletic events, and any other event that is generally recognized by the parents or Meleiah to be important; and it is further

ORDERED that Mother and Father shall participate in any family counseling as directed by Meleiah's counselor and Mother shall give a copy of this Decision and Order to Meleiah's current counselor and any family counselor should family counseling be undertaken; and it is further

ORDERED that neither Mother nor Father shall permanently relocate Meleiah outside of Monroe County without the expressed written, notarized consent of the other parent, and, or an order of a Court of competent jurisdiction; and it is further

ORDERED that neither Mother nor Father shall relocate Meleiah outside of her current school district without the expressed written, notarized consent of the other parent, and, or an order of a Court of competent jurisdiction; and it is further

ORDERED that each parent shall abide by the following Children's Bill of Rights:

[1] The right not to be asked to choose sides between their parents.

[2] The right not to be told of the legal proceedings between the parties.

[3] The right not to be told bad things about the other parties' personality or character.

[4] The right to privacy when talking to either parent on the telephone;

[5] The right not to be cross examined by one parent after spending time with the other party.

[6] The right not to be asked to be a messenger from one party to the other party.

[7] The right not to be asked by one party to tell the other party untruths.

[8] The right not to be used as a confidant regarding adult matters.

[9] The right to express feelings, whatever those feelings may be.

[10] The right to choose not to express certain feelings.

[11] The right to be protected from parental warfare.

[12] The right not to be made to feel guilty from loving both parents; and it is further

ORDERED that Father shall engage in domestic violence and/or anger management counseling and follow all recommendations. Father shall provide this Decision and Order to his counselor and provide Mother with confirmation that he has completed the program; and it is further

ORDERED that this Order shall supersede all prior orders of custody and visitation.

Dated this 18th day of November, 2022 at Rochester, New York.

HON. DANDREA L. RUHLMANN

FAMILY COURT JUDGE

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

FOOTNOTES

1.   President Donald Trump signed an emergency declaration in response to the Covid-19 pandemic on March 13, 2020; New York State Governor Andrew M. Cuomo declared a state of emergency on March 14, 2020, as did Monroe County Executive Adam Bello.

2.   Witness Nadia K. was not sequestered prior to testifying and the Court has considered her testimony in light of the same. "The purpose of sequestration, or exclusion of witnesses from the courtroom during other witness' testimony, is to prevent a prospective witness from being taught by hearing another's testimony" (People v Novak, 41 Misc 3d 737, 739 [Sullivan County Ct 2013] [internal quotes omitted]).

3.   Mother appears to be a poor historian because she consistently testified to the sex abuse disclosure as happening in June 2019 and later corrected the date to be June 2020. There are no medical records to corroborate the date.

4.   Bivona Child Advocacy Center provides comprehensive services for children who have experienced abuse in their families. It provides a child advocacy centered model of services: partnering in one location with various service providers; including law enforcement, child protective services, victim advocacy and health services.

5.   Temporary Order was entered on January 18, 2021.

6.   Maternal Grandmother obtained an Order of Visitation which was entered upon consent of the parents on July 8, 2022.

7.   Father estimated they lived together for six or eight months while Mother estimated they lived together for three months after Meleiah was born.

8.   Mother testified that her son Jarron H. was young at the time and was present during the abuse.

9.   Nadia K. later found the jewelry and returned it to Father.

Dandrea L. Ruhlmann, J.