A.C., Plaintiff, v. M.C., Defendant. (2023)

The Court is called upon to determine whether a change of legal custody from joint custody to sole legal custody to the Father is in the best interest of the children in this post-judgment action where there is ongoing conflict between the parties and one of the children has been hospitalized for in-patient care and treatment numerous times for self-harm and suicidal ideation.

Procedural History

The parties entered into a custody and parenting time stipulation of settlement dated January 12, 2021 [NYSCEF No.12] and a stipulation of settlement dated January 12, 2021 resolving the financial and ancillary issues [NYSCEF #11] between them in their contested divorce action. The children were represented by the same attorney for the children who appears herein. The parties were allocuted on these stipulations and on the grounds for divorce on April 5, 2021 [NYSCEF #34]. These stipulations of settlement were incorporated but not merged into a judgment of divorce dated January 14, 2022 [NYSCEF #25].¹

There are two (2) children of the marriage: S., age sixteen (16); and A., age nine (9). Following the judgment of divorce, S. has experienced extensive mental health challenges and numerous incidents of self-harm that will be addressed herein-below. Both parties live in Brooklyn where children attend different schools.

Defendant-father, through counsel, filed an emergency order to show cause signed February 9, 2022 [NYSCEF #62] seeking:

A) Enforcing the parties' Custody and Parenting Time Stipulation of Settlement dated January 12, 2021, as to the parties' 50/50 shared physical custody; and

b) Reappointing Cheryl Charles-Duval, Esq. as Attorney for the Children;

c) Directing that the Plaintiff take parenting classes and engage in family therapy with the parties' older daughter, S.C. (DOB REDACTED), and for Plaintiff to attend and complete anger management classes; and

d) Ordering Plaintiff to pay 100% of the costs and expenses for reappointment of the Attorney for the Children; and

e) Ordering Plaintiff to pay for Defendant's counsel fees and costs for enforcement of the parties' Custody and Parenting Time Stipulation of Settlement dated January 12, 2021; and

f) So-Ordering the parties' Custody and Parenting Time Stipulation of Settlement dated January 12, 2021; and

g) Such other relief the court deems just and proper.²

On February 15, 2022, the Mother through counsel filed an order to show cause seeking:

A) Modifying the parties' Judgment of Divorce, dated January 14, 2022 and entered in the Office of the Clerk of the County of Kings on January 18, 2022, to provide Plaintiff with sole legal and residential custody of the two (2) minor children, to wit, S. (born in 2007) and A. (born in 2014);

B) Directing Defendant to have therapeutic access with the two (2) minor children, to wit, S. (born in 2007) and A. (born in 2014) as deemed appropriate by the treating medical professionals;

C) Granting such other, further and different relief in favor of the Plaintiff as to this Court may seem just, proper and equitable.

The Court re-appointed the attorney for the children who represented the children in the prior divorce action by written order dated February 16, 2022 [NYSCEF # 126]. The Court also, based on the parties' inability to reach a decision on therapy for S. and given the allegations of substance abuse and self-harm, issued a written order dated February 28, 2022, with numerous provisions related to deadlines to select a therapist, meeting with the parenting coordinator pursuant to the stipulation of settlement and selecting a forensic evaluator [NYSCEF #131]. At the hearing herein the plaintiff-mother withdrew her request for sole legal custody.

On March 14, 2022, the Father filed a cross-motion seeking:

a) Directing that Defendant shall have final medical decision making authority on behalf of the parties' two (2) children, namely: S.C. (DOB REDACTED) and A.C. (DOB REDACTED); and

b) Directing that, pending a hearing in this matter, Defendant shall have temporary medical decision making authority on behalf of the parties' two (2) children, namely: S. (born in 2007, currently 14 years old) and A. (born in 2014); and

c) Directing that Defendant shall be listed as the primary contact on both Children's, namely: S. and A. (DOB REDACTED), medical records; and

d) For such other relief as the Court deems just and proper.

Based on the issues and allegations presented, including the need for medical/placement decisions on behalf of S., the Court issued a written order dated March 17, 2022 scheduling an emergency hearing for March 25, 2022 [NYSCEF #186]

On August 8, 2022, the Mother filed an emergency order to show [NYSCEF #239] seeking:

(a) Modifying the Temporary Order on Consent dated August 8, 2022 which provides the parties shall alternate parenting time with the two (2) minor children, to wit, S.C. (DOB REDACTED) and A.C. (DOB REDACTED) for thirty (30) days to provide that the children shall continue to reside with the mother and have alternate weekends with the father and liberal dinner access during the week pending written agreement or further order of the Court;

(b) Granting such other, further and different relief in favor of the Plaintiff as to this Court may seem just, proper and equitable.

This application was filed when S.'s release from her current in-patient treatment was imminent (within hours) and the parties had been unable to reach an agreement as to how they would integrate S. back home and to parenting time with each of them. As a result of this application, the parties, on consent, entered into a stipulation in which they agreed to a parenting time schedule alternating thirty (30) days and thirty (30) days [NYSCEF #237]. Thereafter there was a subsequent stipulation on consent of the parties and the attorney for the children that parenting time exchanges be outside of a local police precincts [NYSCEF #296].

During a court appearance on November 16, 2022, the parties consented on the record to expand the Father's parenting time from Wednesday dinner visits to three (3) Wednesday overnight visits and the remaining Wednesday continuing as a dinner visit which was consented to in a written order [NYSCEF #303]; however, just two day later on November 18, 2022, the Mother filed an order to show cause seeking:

1) Modifying the current access orders to suspend any and all overnights at the Fathers home for the two (2) minor children, to wit, S. (DOB REDACTED) and A. (DOB REDACTED) pending written agreement or further order of the Court;

(2) Granting such other, further and different relief in favor of the Plaintiff as to this Court may seem just, proper and equitable.

After extensive oral argument on the record the Court granted the Mother's ex parte relief to suspend the Father's overnight parenting time with S. pending an evidentiary hearing and ordered that the parties "shall immediately arrange for the child S. to be seen by her psychiatrist forthwith and to further discuss with both the therapist and psychiatrist the possible impact on S of any further suspension. Parent coordinator may assist."

The Father filed a cross motion dated December 2, 2022 seeking:

a) Directing that Defendant shall have sole legal decision making authority on behalf of the parties' two (2) children, namely: S. (DOB REDACTED) and A. (DOB REDACTED); and b) For such other relief as the Court deems just and proper.

Thereafter the parties entered into a stipulation on consent further modifying the temporary parenting schedule [NYSCEF #360] for the Father to have alternating weekends and alternating Wednesday overnights with the children.

Since the parties' commenced this post-judgment litigation they have been embroiled in a nearly constant back-and-forth of cross applications as to whether there should be a change from joint legal custody to sole legal custody and what the parenting schedule should be for the best interests of the children given the critical substance abuse and self-harm challenges faced by the parties' oldest child and her repeated in-patient hospitalization.

The Court heard testimony over twelve (12) days: March 6, 2023, March 8, 2023, March 10, 2023, March 13, 2023, March 27, 2023, May 4, 2023, May 8, 2023 May 19, 2023, May 31, 2023, June 1, 2023, June 5, 2023 and June 12, 2023, and July 7, 2023 (in camera).

Forensic Evaluation and Report

The Court appointed Dr. William Kaplan to conduct a forensic evaluation by written order dated April 12, 2022 [NYSCEF #231]. Dr. Kaplan issued a written forensic report dated December 20, 2022. Both parties, claimed financial constraints, declined to call Dr. Kaplan to testify assert (#388, p. 60-62). As such, the value of the forensic is limited because although it was admitted into evidence pursuant to 22 NYCRR 202.18 there was no testimony or ability for either party to cross-examine the forensic. Nor was the Court able to access the credibility of the expert. As such, the Court must place very limited weight on the evaluation. It is well-established that "[t]he recommendations of court-appointed experts are but one factor to be considered and are entitled to some weight. However, such opinions are not determinative and must not be permitted to usurp the judgment of the trial judge" (Pritchard v Coelho, 177 AD3d 887, 888 [2 Dept.,2019; Matter of Flores v Mark, 107 AD3d 796, 798 [2 Dept.,2013]).

At the conclusion of the trial, the Court conducted an in camera interview with each of the children separately on July 7, 2023 in the presence of the attorney for the children. The attorneys for the parents were each given an opportunity to submit proposed questions for the Court to consider prior to the in camera.

Summations

Plaintiff's summation dated July 17, 2023 [NYSCEF #365].

Defendant's summation dated July 17, 2023 [NYSCEF #377].

Attorney for the Children's summation dated July 18, 2023 [NYSCEF #387].

Parties' Positions

The Father seeks to change the parties' stipulation of settlement from joint legal custody to an award to him of sole legal and physical custody of the children.

The Mother withdrew that portion of her initial relief requested seeking sole legal custody and by the time of trial requested that the Court continue joint legal custody but to change the parties' stipulation of settlement to award her final decision making and to change the 50/50 parenting time in the parties' stipulation of settlement to make her the primary residential parent with the Father having parenting time every other weekend and a midweek dinner visit with the children.

The attorney for the children initially advocated for a change of custody to the Father; however, by the time the trial was completed and she submitted her summation that as an advocate for her clients that the parties continue joint custody and that the children have shared (50/50) parenting time with each parent.

Based on the relief requested by the parties, the Court may either award sole legal custody to the Father or continue joint legal custody. The Court may not, based on the predicate applications before the Court, consider an award of sole legal custody to the Mother, but can consider her request for the primary residential parent be designated to be the the sole decision maker. Although the Court notes said request in effect would render the Plaintiff the custodial parent leaving the concept of joint custody in name only.

Discussion

The Mother's Communication with the Father

The Mother clearly despises and resents the Father which has resulted in her exercising exceedingly poor judgment in how she speaks and behaves toward the Father which at times has inappropriately taken place in front of the children. She explicitly blames the Father for the challenges S. faces without any awareness of her own culpability in the toxic and dysfunctional family dynamic and the inherent strain the parents' challenges to constructively communicate places on the children, especially on S. who has had numerous incidents of substance abuse and self-harm since the action for divorce.

The Mother is unwilling or unable to acknowledge the severity and gravity of her improper behavior, its impact on the children and how it may have contributed to the children's current struggles. The Mother's testimony that she "always" conducts herself calmly when with the children was belied by the record including disturbing video and audio recordings going back years into the marriage in which the Mother clearly did not exercise "calm" behavior in front of the children even when the children were asking her, in effect, to calm down. The Mother's efforts to blame this behavior on prior actions by the Father, including her allegations of domestic violence during the marriage, was unavailing and the Court found the Mother's testimony not credible related to the Father's alleged domestic violence against her.

Evidence admitted at trial includes written correspondence in which the Mother makes ad hominum attacks on the Father including explicitly homophobic statements against the Father and deplorable racially derogatory attacks about his current girlfriend [Defendant's Exhibit T] which the Court does not condone and rejects. The Court found that the Father's girlfriend testified credibly and that while struggling with challenges related to her own daughter she has become a support network both for the Father and for S. and, testimony showed, was a resource for S. in her professional role. The Court finds that the Father's current girlfriend responded to the Mother's unsubstantiated personal attacks in a professional and non-hostile manner.

The Court does not find credible the Mother's allegation that the Father's current girl-friend intentionally sent a suggestive e-mail to the Father to the family's shared e-mail account. The Court found the Father's current girlfriend testified credibly that she only intended for the e-mail to go to the Father's personal e-mail and she did not know how the e-mail ended up forwarded to the family's shared e-mail account and it was clear that the Father's current girl-friend was very embarrassed by the event.

The Mother's lack of insights into her own behavior and her utter resistance to acknowledge and accept the role her behavior and lack of judgment have likely contributed to the emotional turmoil that these children have grown up not only experiencing but directly witnessing. The Mother is quick to blame everyone else for the events herein except for herself. The Mother's inexcusable behavior towards the Father in front of the children during the marriage and to date, which clearly was an ongoing course of conduct from the evidence presented — including video evidence --- is evidence of her ongoing lack of parenting insight which even now she appears unable or unwilling to acknowledge and modify.

Videos in evidence as Defendant's Exhibits L-R belie the Mother's representation as to her behavior in front of the children and show her disparaging the Father in front of the children and, as late as 2019, actively putting S. in the middle of arguments in which the Mother viciously berates the Father over S.'s repeated protestations that the Mother stop which the Mother ignores.³ These video records spanning from 2013 into 2019 include highly tumultuous and disturbing displays by the Mother of a consistent course of conduct of disparaging the Father in front of the child and of attempting to involve the children, especially S., in the dispute.⁴

When asked on cross-examination about her conduct in front of the children and her actively trying to engage S. in disparaging conversations about her Father the Mother attempted to excuse her behavior claiming that the videos did not show the context of the dispute. The Mother's attempt to create a narrative where the family conflict was, in effect, solely a result of the Father's alleged shortcomings is not supported by the testimony and evidence at trial. What the Mother does not appear to understand is that what is relevant from these videos is the Mother's judgment related to her involvement of the children while in the videos the Father clearly attempts to remove S. from the confrontation and to get the Mother to leave S. out of the incident (Defendant's Exhibits L-R) and the fact that the Mother appears unable even now to acknowledge that she also acted in such a manner as to contribute to the family conflict during the marriage. The Court does not adopt the Mother's belief that the challenges S. faces are solely the "fault" of the Father and finds that the Mother's unwillingness or inability to acknowledge that S.'s self-harm incidents and her substance abuse issues that are more likely related to the poor judgment of both parties during the marriage and the palpable on-going parental discord and animosity which the Mother's actions greatly exacerbate. The Mother truly lacks insight as to the impact of her own behavior negatively impacts the children. Tellingly, when questioned on cross-examination about her many documented instances of disparaging the Father in front of the children and how this conduct may have impacted the children, the Mother answered with some version of "no comment" over and over (Tr. 3/13/23, pp. 457-504). In effect, the Mother took the position that she did not have to explain herself.

Incredibly while answering on cross-examination the Mother often answered "no comment" but then on redirect she attempted to answer the same question posed on cross that she previously refused to answer. The Court sustained an objection to this attempt. It was consistent with the Mother's overwhelming attempt to control the narrative.⁵

The Court notes that during this litigation at times the Mother entered into consent stipulations related to parenting time to avoid going to emergency evidentiary hearings but within days sought additional relief, in effect, seeking to vacate to change what the parties had just stipulated on consent. At other times, the Court was required to conduct emergency hearings related to S.'s care including on one occasion when S. was going to be released from in-patient care within a few hours and no plan had been reached on how to transition S. back into out-patient care and parenting time.

Further, the Court finds credible the Father's testimony that on or about October 16, 2022, the Mother put her car into drive and started to drive off while he was still putting the parties' youngest child into the back seat of that car (Tr. 5/8/23, p. 917-919). The Mother's contention that she was not aware that the Father was still buckling one of the children into the car further highlights her utter disregard for the Father or for her having any pretense of demonstrating civility towards him in front of the children. From observing the parties demeanor and testimony, the Court notes that the Mother appears exceedingly resistant to nurturing the relationship between the children with their Father.

In her testimony, the Mother repeatedly and explicitly blames the Father for S.'s substance abuse problems and self-harming. During cross-examination the Mother testified (#390, p. 98):

Q. And then you on the next page write, "I will have this conversation with P.C.⁶ A man who doesn't know what "P.H.P." mean, and made my daughter an alcoholic, is in no position to say what is good." Do you recall writing that?

A. Yes, I did.

Q. And is it your testimony that Mr. C. -- I will quote you -- "made my daughter an alcoholic"? Is that your testimony? Yes or no.

A. Yes.

Q. And is that what you believe today?

A. I do believe that.

The Mother further testified that she believes that S.'s relapses and self-harm incidents are the result of S. returning to the Mother's home where she follows the parenting guidelines that the parties agreed to while using the parenting coordinator while the Father does not adhere to the same rules and routines when S. is in his home (#393, pp. 21-22; Plaintiff's Exhibit 55). The Mother testified that this inconsistency between the parents' homes was destabilizing to S. The Mother testified to her continuing excessive narratives that went way beyond the scope of the questions (#393, p. 23):

A. It was a difference in the guidelines and the rules, like social media, spike necklace in one house it's okay, the other house not. Sleeping time in one house, she can be awake all night, other house not. Because when she's tired, then she doesn't act -- when she comes back, she's tired, and then she's more stressed and more walking on the shells all the time. That's what I meant.

The Mother also testified on re-direct that part of her objection to the 50/50 parenting time was that the Father was not timely in his responses or in keeping her informed of what was going on with S. while in his care (#393, p. 25):

A. I meant not giving her care right after we found out when she had incidences, no responses, not getting her help in a timely manner.

The Mother clearly believes that she is the more capable parent and that the children do not benefit from being with the Father and that, if anything, his role and influence in their life is negative and, as she repeatedly testified, "the" cause of S.'s substance abuse challenges and self-harm incidence.

The Father's Communication with the Mother

Throughout this post-judgment litigation, the Mother has maintained that the Father is not willing or able to respond quickly enough to make joint custody workable and that he does not provide a stable enough home environment to continue a shared (50/50) parenting time arrangement. The Father contends that the Mother is overbearing and controlling and wants to exclude him from the children's lives. The Father asserts that the Mother, in effect, "buries" him in a volume of communications making it impossible to keep up with responses.

Testimony and evidence show that the Father has at times became overwhelmed and responded to the Mother's incessant communications by, in effect, "shutting down" or engaging in avoidance behaviors; however, the Court finds the Father's testimony credible that when he has done so it was simply because he was unable to respond to the barrage of communication from the Mother.

The Father testified that this pattern of communication from the Mother is particularly problematic for him because he has less flexibility over his daily work schedule than the Mother and, he contends, the Mother uses her ability to start work early in the morning to afternoons off and that she continuously dashes off disjointed messages to him which jumble information and make it hard to know what to respond to. The Father conceded that because of the Mother's excessive communications he sometimes may have missed important messages. This sentiment was shared by some of S.'s treating professionals who specifically responded to the Mother's numerous (sometimes hundreds) e-mails that her level of communication made it more likely that important messages could be lost.

The Mother contends that because the Father is passive and unresponsive she is left to do most of the logistics work to find and obtain treating professionals and health care services for the children. Evidence at trial support the Mother's testimony that she provides the Father with the information she finds and seeks his suggestions and feedback but that he does not respond in a reasonably timely manner. The Court finds credible the Mother's testimony that the Father does not take necessary steps to keep himself informed of developments related to the children and instead relies on her to update him. Testimony and evidence at trial show that the Father, instead of recognizing and appreciating the Mother's extraordinary efforts on behalf of the children, and especially S., to obtain options for treatments and to facilitate the logistics of getting S. to her many treatment sessions, the Father often accuses her of paraphrasing or manipulating the children's health care professionals. The Father continues to see the Mother's actions through his perception that she is only "out to get him". While testimony and evidence at trial show that the Mother did engage in a course of conduct intended not to support the Father's meaningful participation it is also important for the Father to recognize that the Mother's energetic pursuit of services did serve S.'s best interests especially during the period of time early on when the Father was unable to recognize the gravity of the situation S. was facing. At that time, while the Mother's actions may have been "too much" the Father's actions were "too little".

The Court does not find credible the Father's position that the Mother purposefully excluded him from school contact forms or that it was the Mother's responsibility to update contact information: the Father had every opportunity as a legal custodial parent of the children to update any missing contact information from school forms and his reliance — or insistence — that the Mother do it, in effect, for him was misplaced. The Father has behaved at times during this litigation as if it was the Mother's responsibility to do much of the "leg work" for the family and the Court finds that this is not appropriate.

The Court notes that evidence at trial shows that as early as September 2021, the parents were reminded in an e-mail from the parenting coordinator they were using at the time that "Both parents, as they do not get along and do not seem to trust one another, must each contact any health provider to gain information. The parents cannot rely on one another at this time" [Plaintiff's Exhibit 6]. The Father's stance, at times, that the Mother could not be "trusted" but his lack of urgency in pursuing options for the children must be noted and is of concern. If the Father was not confident in the information or options the Mother proffered it was his responsibility to seek out clarification or other options not merely to dismiss, at times, those made by the Mother. Even into 2023 the Father has, at times, made ultimatums to the Mother about treatment providers without apparently obtaining viable alternatives. One example is the Father's message to the Mother in January 2023 that he was withdrawing consent for the parties' youngest child A. to continue with her existing art therapy so he would "not pay after January and I expect a therapist in network in February" [Plaintiff's Exhibit 20] yet there in no indication that the Father took initiative to find viable alternatives. The Father's attempt to shift the responsibility to the Mother to find an alternative when he was withdrawing consent was inappropriate.

Testimony and evidence at trial show that the Father has, at times during this litigation, not initially taken S.'s incidents seriously and the Father conceded that he did not initially understand the severity of the situation. While the Father's initial lack of understanding the severity of the situation as relayed by the Mother is understandable within the overall context of the dynamic between them during the marriage [Plaintiff's Exhibit 35], testimony and evidence also showed that the Father has continued to make changes since the parties divorced to be more available to the children and that he does currently understand the severity of S.'s current situation. The Court finds that these parents have disparate perspectives and parenting styles and that when combined they better serve these children than if either parent was to have final decision making under the unique facts and circumstances presented.

The Court rejects the Mother's contention that the Father selectively responding at times to communications that she believed were "emergencies" is a basis to award her final decision making, particularly under the facts and circumstances presented. Rather, the Court finds that the Father (as have many of S.'s treating professionals and/or institutions) made valiant efforts to keep up with the Mother's excessive level of communications all while trying to maintain his employment and to be present for the children while they were in his care.

It is wholly disconnected for the Mother to expect — much less demand as she does — that the Father respond to each and every of the numerous and at times voluminous e-mails she sends or to seek to enforce the 48 hour protocol for e-mail responses when she sends so many communications during the Father's work day and during weekends when he has parenting time with the children. Testimony and evidence showed that many of the messages sent by the Mother related to financial or logistic matters and, while no doubt important, were not as the Mother tried to claim "emergencies" that would have justified how many messages she sent.

The Court also notes that testimony and evidence showed that the Mother often continues one subject from an initial thread across other communication methods and/or mixes discussions of one topic in with discussion of other topics making it exceedingly difficult to keep track of what she addresses, proposes and/or whether a response has been made in the "appropriate" thread. The Court rejects the Mother's repeated and condescending accusations in these communications that the Father is, in effect, not smart enough to follow her convoluted communications. The Mother's diligent efforts on behalf of the children can be a benefit to the children but not if she continues to present them in such a haphazard and convoluted methodology. It appears that the Mother often dashes off a message to the Father with every new piece of information she obtains without gathering sufficient information and then presenting it in a comprehensive manner.

Excessive Communication

The nature and extent of e-communications was a central theme in this litigation. Evidence and testimony at trial established that the Mother engaged in a constant flurry of digital communication consisting of many hundreds of pages of digital threads/chains in a collaborative parenting time app as well of hundreds and hundreds of text messages and e-mails.

The parents, clearly recognizing that the level of communications was unsustainable, tried numerous methodologies to communicate more effectively with one another. Since the divorce, they tried to utilize two successive parenting coordinators but those efforts were unsuccessful. More recently attempted to use another individual to help them communicate related to the children. One of the parenting coordinators tried to limit the parents to one e-mail daily unless in the event of an emergency. The Father contends that the Mother was unable to comply with this limit. The Mother contends that e-mails and texts she sent exceeding this limit were all responsive to some form of ongoing "emergency" related to S. and therefore were not subject to the one-a-day e-mail limit.

The Mother's numerous other "explanations" for her pattern of excessive communications attempting to downplay the level of communications are disingenuous: including her contention that numerous responsive e-mails did not, in effect, "count" toward any communication count because these subsequent messages where, essentially, continuations of the initial e-mail because the subsequent e-mails were labeled "part 2, part 3, etc " This testimony by the Mother lacked credibility and belied the evidence.

The Mother's excessive communications was an ongoing issue; however, one example suffices to show the level of the issue.⁷ On October 4, 2022, the Father sent an e-mail to the Mother stating that she sent him "41 messages, not including text messages" during one of his parenting days with the children (Defendant's Exhibit X). There is no indication that there was any substance abuse or self-harm incident on that day. The Mother repeatedly attempts to "explain" her excessive communications with claims that the Father exaggerated the number of e-mails she sent because, in effect, "follow up" e-mails or subsequent e-mails labeled "part 2, part 3, etc" should not count. The Mother's explanations and efforts to downplay her excessive communications are belied by testimony and evidence at trial.

The Mother must begin consolidating her communications into cohesive messages and the Court will, herein-below, address protocols for communication because the way the Mother has used communications was often not in the children's best interest they have created a greater likelihood that an important communication may be lost.

The Court further notes that the Mother often sends these e-mails during the Father's work day. While such a communication would be appropriate to notify the Father of an imminent emergency the Court finds that the Mother sending these communications during the Father's work day when he is unable to respond quickly but "starting the clock running" is not in the children's best interest. These children benefit from the consideration and perspective of both parents and the way the Mother has, at least at times, communicated with the Father has not truly provided him with a meaningful opportunity to participate.

The evidence also showed that the Mother repeatedly e-mailed the Father during his parenting time with the children: clearly, when the children are with the Father, the possibility that a true "emergency" exists that requires many e-mails to notify the Father is, at best, very low since the children are already with him. The Mother's sense of urgency related to ministerial issues is not, in and of itself, an "emergency" which requires her to excess a once-a-day message to the Father: the Mother can compile all of her thoughts into one concise short daily summary and provide that to the Father without the need for dozens of messages throughout the day. The Mother's apparent compulsion to message the Father and others, including some of S.'s treating professionals, repeatedly has several troubling effects, two important ones being that the volume of messages makes it nearly impossible for the Father to reasonably respond to the messages within the 48 hour provision of the parties' stipulation of settlement and even more problematically, it only serves to distract the Father from focusing his attention on quality parenting time with the children who clearly need and deserve to have the greatest level of love and attention from their parents given the circumstances that this family faces.

The Court is concerned that the Mother's choice to communicate piecemeal and during the Father's work hours and on days when he already has limited parenting time with the children — given the excessive number of those communications — could be unduly disruptive to his ability to meaningfully participate than in truly seeking his input. Testimony and evidence at trial showed that the Mother's work schedule involves communications from her home where she works with international contacts. Thus, the Mother often works with international time zones that allow her to work very early in the day to be done working by the afternoon.

At some points the Mother's use of correspondence has devolved into using tools intended to create accountability and a safe place to communicate as tools to create "gotcha" moments and, it appears, to attempt to manufacture "proof" to use in this proceeding in an effort to show that the Father does not meaningfully participate in major decision making presently; however, this claim is belied by the testimony and evidence. The Court does not find credible the Mother's testimony that the Father has intentionally or purposefully not been timely in responding to her inquiries about how to proceed with S's care and that he has not taken a proactive role in obtaining services and viable alternatives for S. The Court finds that the Father's inability to respond at times was a result of the Mother's voluminous and disorganized communications.

The Court cautions the Mother that any belief she has that she is the "superior" parent is misplaced and that at this time the Father has an equally important voice in major decisions related to these children. Any future interference by the Mother with the Father's participation in major decisions could have future consequences.

The Mother's excessive communications also impact the children's service providers. Testimony and evidence showed the that Mother repeatedly sent excessive numbers of communications to S.'s in-treatment providers and that these providers at times told the Mother that the level of her communications created a risk that important messages might be missed. One example was when the Father alleged that the Mother sent hundreds of e-mails to the Father and a treatment center where S. was receiving in-patient care for a few months. The Father contends that the Mother sent over 800 emails while the Mother claims she "only" sent 204 e-mails during that period claiming that e-mails responsive to initial e-mails, in effect, did not "count" (#392, pp. 12-14). While the Mother may be anxious about the process this level of communications — even assuming her claimed number of messages — can only serve to take focus away from S.'s care especially where the provider responds that the level of communications is problematic. While the Court understands the Mother's deep concern she must understand that, as one treating professional responded to her deluge of e-mails "exactly my point that we will miss these important emails while trying to navigate the other ones" [Defendant's Exhibit Z].⁸

The Court does not adopt the Father's position, at this time, that the efforts by the Mother to obtain services are motivated primarily by a desire to exclude him from the process. Credible testimony and evidence show that the Mother — at times relentlessly, as detail herein-above — makes repeated attempts to include the Father in the decision making process if, often, in a convoluted manner.

S.'s Hospitalizations:

Over the last two (2) years S. has been hospitalized numerous times. The parties stipulated [JN #1] that S. was been hospitalized as follows:

"xxxxxxxx. in person hospitalization for 6 weeks between June 3, 2021 and July 16, 2021; xxxxxxxxxxxxxxxxxxxxxx. Hospital between November 26, 2021 and December 17, 2021; xxxxxxxxxxxxxxxxxxx Hospital between January 27, 2022 and February 18, 2022; Between February 22, 2022 and March 16, 2022 S. was in xxxxxxxxxxx partial day program; "E" from May 11, 2022 to August 10, 2022; on February 16, 2023 S. was brought to the pediatric emergency room at xxxxxxxxxxxxxxxxxxxxxx Hospital in New York City for suicidal ideation and was released on the same day  ⁹ ."

The parties further stipulated that "[f]ollowing her discharge from "E", S. has been in the "R" Center Program" where she has been in treatment since the end of August 2022 (#392, p. 98).

Parents' Prioritization of Treatments: CBT/DBT  ¹⁰ vs Substance Abuse Treatment

While the parents both appear to agree that S. will benefit from continuing both "talk therapy" and substance abuse treatment it is also clear that the parents each appear to prioritize different aspects of S.'s ongoing treatments with the Mother clearly prioritizing "talk therapy" and the Father focusing on substance abuse treatment.

The Court does not find credible the Father's attempt to characterize the Mother's attempts to augment S.'s treatment with "talk therapy" as in some way manipulative: there are a number of reports from S.'s treating professionals that specifically reference "prioritizing" "talk therapy" for S. [Defendant's Exhibit E). The Mother credibly testified that as of the date of trial she acknowledged that S. needs on-going treatment for substance abuse and "talk therapy" treatment.

The Father's excuse that he believed the Mother's rendition of information could not be trusted is misplaced: the Father had every ability and right to follow-up with providers or obtain information directly for himself but was unable or unwilling to do so with any consistency or reliability. There was no testimony that any provider denied him access or information related to S.'s treatment.

The Court finds credible the Father's testimony that S. continue in her substance abuse treatment and that this is an important part of her care. The Court does not adopt the Mother's stated belief that substance group therapy is detrimental to S.'s treatment and she should remain open to what therapies and treatments S. and her treating professionals believe may be useful especially given S.'s age. If S. believes that a particular form of therapy is useful that should be provided some consideration especially where that therapy process is also supported by her treating professionals. At age 16, the child's position and desires for certain therapies must be given substantial weight. During recordings in evidence that included the parents, S. and S.'s treating professionals at "E" it was clear that S. strongly wanted to continue group therapy and that this was considered a viable option by the treating professional. The Court notes that in some recordings of meetings with treating professionals the Mother appears to "talk over" the professional and — even more troubling — to cut-off S. when S. attempts to participate in the conversation about her ongoing treatments. At one point, S. even told the Mother that it was, in effect, "her treatment" and that the Mother should listen to her [Defendant's Exhibit FF]. In that recording, S. tells the Mother "You keep interrupting me, you keep interrupting me. I'm trying to talk and you're saying one second, one second " and later in the same recording she says in response to the Mother " This is for me. This is my thing. Not your thing" [Defendant's Exhibit FF].

The Court notes that the attempts to, in effect, present fact witnesses positions by way of recording them did not offer much insight into the underlying issues because without calling the witness there could be no sworn testimony or cross examination. These recordings did offer insight into the Mother's attempts to control the narrative even when speaking with S.'s treating professionals and her ability to overpower the Father and S. They also showed that, at least at that time, the Father was unable or unwilling to assert himself to counter the Mother's attempts to overpower the dynamic.

The Court is troubled by the Mother's apparent difficulty in listening to those around her whether they are the Father, S.'s treating professionals or S. herself. Her inability to listen and her single-minded focus on achieving "her goal" is troubling to the Court and is an important factor in why the Court finds that awarding her final decision making would not be in the children's best interest. The Mother is so purposeful in her pursuit of the best for the children that at times she becomes fixated and cannot or will not hear the advice or recommendations of treatment professionals or institutions if they deviate in any way from her formulated opinion.¹¹ More troubling is that sometimes this causes the Mother to not listen to the children. The record is replete with heart-breaking instances where the Mother — so agitated by her feelings towards the Father — refused or was unable to hear S. imploring her to stop: this gravely concerns this Court.

The Mother's perseverance in seeking and obtaining services will best serve the children if modulated by the Father's ability to listen to S.'s treating professionals and facilitate a meaningful dialogue that also takes into account S.'s perspective which often is overlooked by the Mother. The Mother must remember that S. is quickly approaching 17 years old and while she appears well-invested in her treatment and therapies she may not maintain that same investment if her perspective is not at least heard and considered. The Father appears to have an ability to calm S. when agitated and the Mother often calls on him when S. needs a calming influence. While the Mother speaks rapidly and in an often hostile manner, the Father is soft spoken, almost reluctant and appears hesitant to engage the Mother. The Mother was overly assertive and controlling in her testimony and actions while the Father was the opposite.

S.'s Current Treatment Schedule

As of March 2023, S. is in "talk therapy" sessions each Tuesday at 6:30 and each Thursday at 4:00 with Ms. P and she participates in virtual sessions at "R" Center each Tuesday at 5:30 and each Thursday at 5:30 (#392, p 129-130).

The Mother testified that logistically S. cannot be in-person for all these therapy sessions because some happen in Brooklyn and some in Manhattan so the sessions with "R" Center were converted to telehealth appointments (#392, p. 130-131; Plaintiff's Exhibit 46).

Stability and Routine: Different Parenting Styles

Testimony and evidence showed that the Mother heavily structures the children's time and fastidiously maintains a routine while they are in her home. Testimony shows that the children are scheduled in nearly continuous extracurricular activities and tutoring which includes even more for S. who also has numerous treatment and therapy sessions each week [Plaintiff's Exhibit 24; Plaintiff's Exhibit 25; Defendant's Exhibit D]¹² . The Mother contends that structure and routine are critical to maintaining S.'s stability and she heavily criticizes the Father for not ensuring that S. maintains rigid sleep schedules, screen "black-out" times and that he gives her, in effect, too much autonomy. The Mother also contends that the parents need to maintain diligent oversight of where S. goes and who she spends time with during social time.

The Court finds that the Mother's friend's testimony related to the Mother's efforts to facilitate S.'s part-time employment in her café was credible. It appears that the intention was positive and that both the Mother and her friend took these steps to assist S. and to provide her with a sense of stability and productive independence and the Mother should not be penalized for doing so. The attempts by the Father to discredit the Mother's efforts to support S.'s apparent voluntary part-time employment in her friend's café — including at times the Mother even giving her friend the money to cover S.'s "salary" — appeared more oriented to casting dispersion on the Mother than on considering whether the experience was beneficial to S.. Care must be given that neither parent schedule events during the other parent's parenting time unless there is written consent or emergency.

Testimony and evidence show that the Father takes a vastly more relaxed approach to the children's time and enforces a less structured routine while they are in his home. The Father has demonstrated a higher prioritization on providing S. privacy and autonomy. The Court notes that the Father appears to prioritize S.'s adherence to her treatment and therapy sessions over her extracurricular activities while the Mother appears more focused on S. participating in high-level academic performance when things such as tutoring may interfere with therapy. The Mother has taken positions related to S.'s therapy that appear to show that she prioritizes S.'s performance on certain Regent's exams over therapy sessions.

Parties' Struggles to Establish Shared Home Expectations

The parents have struggled to form consistent and predictable expectations and routines for S. in both homes during the height of her struggle with these critical issues. The Court notes that evidence at trial, including correspondences from S.'s treating professionals as early as 2021, repeatedly noted the importance of the parents setting "clear and consistent message" for S. related to home limit setting in each home that "should be followed in both households, as with any other boundary/limit" [Plaintiff's Exhibit 5]. While his resistance to collaborating with the Mother on shared protocols within their homes may be extremely challenging for him given the dynamic of the parents during the marriage, the Father does not appear to recognize the mixed messaging this lackadaisical application of the joint parenting guidelines give to S. such as what access she has to electronic devices and what medication and sleep routine she follows in each home. It appears that, at times, the Father's less structured approach and his resistance to taking a position that, in effect, "S. wouldn't like" was not in S.'s best interest and resulted in more conflict because S. was empowered in the conflict between the parents. This is highlighted by the disagreement between the parents on how to address S.'s attachment to a particular item of jewelry: a necklace with large spikes [Plaintiff's Exhibit 45]. The Mother requested removal of the necklace as a potential trigger to S.'s self-harm incidents while the Father declined to keep the necklace away from S. while in his home taking the position that removing the necklace from S. would cause conflict [Plaintiff's Exhibit 12]. The Court is concerned by the Father's slow realization that maintaining structure and predictability for the children is important and that he, at times, has not understood the value of providing stability to S. through maintaining a "united front" with the Mother on such issues. The "united front" must also include the Mother maintaining a united front with the Father. The dynamic of one parent overpowering the other does not serve the children. Neither of the parents truly fosters a relationship with the other and there is a clear power imbalance. The spiked necklace should have been removed: however, the manner in which the Mother chose to do so was an error in judgment which caused a relapse and extension of S.'s in-patient care.

Often during this litigation, the Mother was "too much" and the Father was "not enough." The Court notes that at times during this litigation, when S. was dangerously out of control and the police were called it was the Father who was able to calm S.

Mother's Lack of Self-Awareness

Despite these concerns about the Father, the Court has grave concerns about the

Mother's inability or unwillingness to acknowledge her role in the family conflict and how her poor judgment may have contributed to the family conflict and S.'s current struggles. The vitriol the Mother repeatedly uses against the Father is disturbing and repugnant. Despite the passage of time since the divorce, the Mother's communications to the Father have continued to involve disparagement and chicanery. The Court finds credible the Father's testimony that the Mother started to drive her car while he was still helping to buckle one of the children into the car. Not only could this have placed the Father and the child in danger but the message it conveys to the children is that the Mother has disdain for the Father.

The Court must contend with how to weigh the Mother's substantial lack of parental insight as to how her behavior impacts the children and how her visceral and often vocal disdain for the Father impacts her ability to foster a meaningful relationship between the children and the Father. The Mother speaks with such derision and condescension about the Father it would be hard to imagine how her feelings and expressions about him would not impact the children and exacerbate existing stresses and tensions for the children who have already witnessed extreme conflict. Under many other circumstances, the Mother's ongoing behavior towards the Father in the presence of the children and her apparent inability to resist directly involving S. in those disputes may be dispositive and preclude her from custody because they rise to such a level of inappropriateness and the Court has truly and painstakingly examined the testimony and evidence searchingly to reach the decision herein.

Here, the unique challenges facing S. present a situation where major decisions must often be made quickly and efficiently — at times — daily, critical and shifting treatment decisions to ensure the health and safety of these children where one of the children has such ongoing mental health struggles. As such, the Court must focus on whether these parents can communicate in a manner consistent with continued joint custody and, if not, 2) whether the Court should grant the Father's application for an award of sole legal custody and shared (50/50) parenting time inasmuch as the Mother withdrew her application for sole custody; and 3) whether it is in the children's best interest to give the Mother final decision making. These are not simple decisions, and each alternative is fraught with juxtaposing interests and concerns. The Court must also be mindful that this is not a de novo determination: the parties reached an agreement which was incorporated but not merged into the Judgment of Divorce.

Joint Legal Custody

It is well-established that "[a] party seeking modification of an existing court-ordered custody arrangement must "show the existence of such a change in circumstances that modification is required to ensure the continued best interests of the child" (Matter of Connell—Charleus v. Charleus, 192 AD3d 890, 890, 140 N.Y.S.3d 752 [internal quotation marks omitted]; see Matter of Errante v. Murry, 172 AD3d 711, 712, 99 N.Y.S.3d 379)" (Robinson v. Mustakas, 214 aAD3d 880 [2 Dept., 2023]; see also Matter of Dubouse v Narita, 214 AD3d 798 [2 Dept.,2023]).

Both parties each blame the other for triggering S.'s incidents of substance abuse and self-harm; however, it appears that a central part of the continued disruptive environment S. faces is because both parents are trying to control the other: the Mother by micromanaging the Father and the Father shutting the Mother out when she overwhelms him. This dynamic between the parties is not a change of circumstance: rather, if anything, the Father's ability to communicate with the Mother has improved not deteriorated in the time since the divorce in 2021 and they agreed to joint custody in their stipulation of settlement.

Here, despite the challenges presented by their divergent parenting styles and the continued strained relationship between the parties which, it appears undisputed, was extremely strained at the time they entered into their stipulation of settlement consenting to joint custody, the record shows that the parties have managed to make major decisions related to the children in a way that serves the children's best interests. The Mother withdrew her application for sole legal custody and the Father did not meet her burden or showing the requisite change in circumstances (see generally Liang v O'Brien, 216 AD3d 1101 [2 Dept., 2023]).

Final Decision Making

The Court notes that repeatedly during this litigation when S. had substance abuse or self-harm incidents the parents were able to make major decisions on her behalf. The Court denies the Father's application for a change of custody. To give the Father custody would likely place S. in danger because he does not have the ability to act and react quickly in crisis or to investigate the resources available during this ongoing struggle. The Father has not demonstrated, at this time, that he is the parent solely most capable of providing for the children's best interests or that the children would benefit from not having the Mother involved in making those decisions. Whether because he is unwilling, unable or has simply been overwhelmed by the Mother, the Father has not demonstrated that it would be in the children's best interest for him to have sole legal custody inasmuch as he has, often, relied on the Mother's persistent efforts to obtain and pursue treatment and therapy options for the children. Even if the Court found that the Father had demonstrated the predicate of a subsequent change of circumstances to change the parties' joint custody to award him sole custody the Father has not demonstrated that he is able to be the parent solely responsible for seeking out and obtaining services for the children or that he could do so in a timely manner. Nor does the Court believe that the Father's parenting style provides the necessary degree of monitoring S. needs at this time. The Court does not believe that, at this time, leaving the Father as sole decision maker is in the best interests of the children.

The Court finds that the best interests of the children require, at this time, that the Court continue the parties' stipulation of settlement related to joint legal custody. Here, the children benefit from the more balanced perspective that exists having both parents continue to make major decisions for them rather than having one parent make all those decisions. The parents do communicate — albeit not in a model way, at times — and with the limitations and modifications imposed herein hopefully that communication will continue in a much more controlled and productive manner (see generally Grasso v Grasso, 51 AD3d 920 [2 Dept.,2008]).

These parents, unfortunately, often face situations where the "day-to-day" decisions that must be made for S. are often major decisions and are potentially life or death. The Court finds that it is in the children's best interest that these major decisions continue to be made with the benefit of the joint capability of the parents who each bring unique and valuable skill sets, parenting styles, perspectives and demeanors to these important considerations.

The Court also notes that the child A. has been often overlooked given S.'s severe and troubling issues. The parents must not overlook A. and the Mother is cautioned that she may also not exclude the Father from decisions regarding A. At this time, it appears that the parents' communications surrounding A. do not have the same level of tension or discord as there has been surrounding communications related to S.. The parents' relationships with A. is just as important as the one between them and S. and the joint custodial relationship with her does not appear from the testimony to be significantly impacted. Given that S. will emancipate, for custody purposes, in May 2025, while A. will only be 11 years old, a change of custody now would have a much more significant impact on A. than it would on S. The children appear to be a significant source of strength and resilience for one another and thus the Court is reluctant to separate them for custody purposes. It is well-established that " 'absent an overwhelming need to do so' it is in the child's best interest to continue living with his or her siblings" (Mitzner v Mitzner, 209 AD2d 487, 489 [2 Dept.,1994]) and that "[t]he stability and companionship to be gained from keeping the children together is an important factor for the court to consider" (Eschbach v Eschbach, 56 NY2d 167, 173 [1982]).

It is clear to the Court that the Mother's tenacity in pursuing options for the children can be an asset to the children if she learns to organize and to modulate her communications. Any delays in responding to the Mother's overwhelming borage of messages lies at the Mother's feet not in any fundamental shortcoming of the Father. The Court finds that giving the Mother final decision making would not be in the children's best interest because the Court does not find that the Mother has demonstrated any meaningful indication that she would take the Father's opinion into consideration if she is not required to do so. It would empower her to exclude the Father which would be devastating to the children and not be in their best interest. The Court has had the opportunity to observe the parties and believes that to give the Mother final decision making would, in effect, be to give her permission to completely disregard the Father and isolate him from the children's lives. After hearing all the testimony and evidence and having observed the parties, the Court finds that to give the Mother final decision making, which is in effect custodial determination, would obliterate the Father's ability to participate and would negate his role as a calming, nurturing modulator of the harshness and unilateral actions of the Mother and would also be more likely to place S. in danger. As such, the Court denies the Mother's application for final decision making finding that it would not be in the children's best interest at this time. To do so would in effect make joint custody a label in name only.

50/50 Parenting Time

While the Mother may, as the Father contends, "over-schedule" the children she clearly does so motivated by an intense desire to help S. navigate her current challenges and to give these children every opportunity to excel. The Mother testified credibly that maintaining S.'s routine and predictable behavior guidelines are critical for S.'s stability and that the Father struggled or declined to reasonably supervise S. and maintain the parenting protocols that the parties jointly agreed with the parenting coordinator.

The Court finds that the Father's failure to enforce the parenting protocols is not motivated by any lack of care rather was a reflection of his desire to avoid conflict with S.; however, this lack of consistency is not in the children's best interest. The Father failed to understand how critical it as to S. to have a consistent, predictable and reliable set of expectations in both homes during what has been a highly tumultuous time of being in and out of in-patient treatment centers and hospitals and in constant and extensive therapy programs. The Mother though must not overschedule the children and shall cease from doing so.

The Mother testified credibly that the Father has been unable to maintain consistency for S. while she is in his home and, as such, she does not believe that continuing a 50/50 schedule is in the children's best interest (#393, pp. 84-85):

"Manage her [S.] schedule, give her medication on time, make sure she has everything that she needs when she goes to school and when she comes back from school. When she's stressed and crying, make sure that I know what's going on in her life and then engage with her therapist and doctors. And make sure I'm available for her when she's dealing with issues."

The Mother testified that she is concerned about the Father's ability to supervise S. during extended parenting time (#393, p. 91):

"So [the Father's] schedule when S. comes home, basically she will be by herself. And the medication was another concern. And having being alone after, I was afraid she will get back into, you know, all the things. That was my concern. "

The Father's attempt to be the "good guy" with S. was ultimately not an exercise of good judgment under the facts and circumstances and may have, inadvertently, contributed to some level of conflict within the family because S. received mixed messages. The Court of course recognizes S.'s desire for less supervision: for without supervision she can do what she wants. These parents must quickly come together to find a balanced approach to deal with what will be a lifetime struggle. Legal parenthood ends at 18; however, it is a lifetime care and love for a child, even an adult one that will need to continue. That love and concern for a child does not end at 18 but the legal alternatives are certainly impacted and limited. Certainly, the Father did not always exercise best judgment in his supervision of S. which under the unique facts and circumstances provided called for a heightened level of supervision. The Court recognizes that the Father's attunement to S.'s situation has improved since her first hospitalization. The Court finds credible the Father's testimony that he initially did not understand the seriousness of the situation. Testimony and evidence show that the Father does now understand and appreciate the situation and the Court also recognizes the Father's efforts to be as available as he can to participate in S.'s care. The Father has made great improvement in his ability to provide daily care for the children; however, the Court finds under the facts and circumstances presented that the Father's approach to day-to-day supervision of the children is overly lenient and predicated on his attempts to avoid conflict with the children, especially S.

The Court finds credible the testimony and evidence that the Mother consistently provides a more stable and supervised environment for the children on a daily basis. The Court finds that continuing the 50/50 parenting time is not in the children's best interest and that the parenting schedule detailed herein will, at this time, provide the children with greater stability. The transitions back and forth lead to a lack of stability. These children need stability.

In reaching this determination, although not dispositive, the Court is also mindful of the children's extensive extracurricular, tutoring and therapy schedules after school and that the Mother's employment provides her with logistical availability to transport the children in the afternoons to extracurricular activities and treatment and therapy sessions.

It appears that the Father has far less autonomy and flexibility over his schedule and time due to his employment situation through no fault of his own. The Father has made every effort to be as available as possible and has even obtained a car to help transport the children to activities that the Mother scheduled at inconvenient locations to the Father and he has had his mother travel from France to assist with the children while in his care. The Court found that the maternal grandmother testified credibly related to the family's past trips to France and that she credibly refuted allegations by the Mother related to an alleged incident of domestic violence resulting in an alleged injury during one of those trips. The maternal grandmother appears to be a resource to the Father and to the children.

Parenting Time

The Court recognizes that S. will turn seventeen (17) years old in May 2024 and that in less time than these parents have been litigating this post-judgment custody dispute S. at age eighteen (18) will be legally emancipated for custodial purposed and neither the parents nor this Court will have jurisdiction over S.'s physical custody. However, until such time as S. emancipates this Court must address the parties' parenting time.

The Mother has demonstrated a greater understanding of the need and positive impact on S. of daily structure, routine and accountability while the Father has taken a vastly more casual approach to supervision of S. while she is in his home. The Court, in part, recognizes that the practical effect of S.'s gender and age rightfully limit the Father's ability to monitor S.'s physical self-harm given that she has engaged in cutting incidents on parts of her upper body that would not be appropriate for the Father to monitor or observe and the Court does not fault the Father for instances when he has not observed those self-harm incidents.

No parent could monitor every movement and action of a child in S.'s situation, the Court heard credible testimony, which he conceded, of the Father declining to implement and enforce the parenting guidelines the parents voluntarily agreed to using a parenting coordinator. As such, the Father creates an environment where S. is expected to follow the "rules" — rules he participated in creating and setting with the assistance of one of the parenting coordinators the parents selected — while in the Mother's home but where he does not diligently enforce those same rules while S. is in his home. The attorney for the children took the position that these rules were often too stringent.

The Mother has, from as early as June 2021 after S. was admitted to xxxxxxxxxx, recognized the importance of establishing stability for the children during S.'s moments of crisis. Testimony and evidence at trial showed that the Mother sought a recommendation from S.'s treating psychiatrist, Dr. B., in June 2021 about how to best transition S. home from her in-patient hospitalization [Plaintiff's Exhibit 22].

Credible testimony and supporting evidence at trial revealed that the Mother reached out to the Father about pausing the 50/50 shared parenting time and allowing the children to reside primarily in one home for a time to provide more stability for the children. The Court finds it very significant that the Mother even proposed that if the Father did not want her home to be the "stabile" home that she would consent to the children being full-time at his home until S. was feeling better and more stable. The Mother proffered (Plaintiff's Exhibit 39) text messages where she asked the Father to consider "to keep kids at one place and provide them stability till they feel better. Your place or mine." She also provided an e-mail chain (Plaintiff's Exhibit 40) in which she suggested that the parties revert to the prior parenting schedule to provide less stress to S. until she stabilized and to reduce increased anxiety S. was experiencing during the recent transition to 50/50 parenting time. The Father rejected the proposal asserting that "I will call police to enforce the agreement if you refuse to return [children]" to which the Mother responded that "[t]his is not legal or doctor matter. This is a parenting matter" and that "I am ok to reverse and see them on weekends if you want to provide them stability instead."

The Father's response to the Mother's attempt to collaborate with him on what may be most responsive to S. was telling: instead of engaging with the Mother, the Father responded without any room for flexibility to address the immediate situation the parents faced with S. and by threatening to call the police on the Mother. The Father did not even address her offer to, in effect, give up some of her parenting time and allow him to be the one to have the children in his home most of the time out of her concern for what was in S.'s best interest.

While divergent parenting styles certainly may not be dispositive in many cases, given the unique challenges S. faces the Father's lack of "follow through" on things like parenting guideline agreements and presenting a "united front" by the parents for S.'s physical and mental health during this extremely tumultuous time is very concerning to the Court particularly as the juxtaposition between his permissive and conflict-avoidant parenting approach appears to cause S. distress when she returns to the Mother's home where the parents' guidelines rules remain in effect. The Court understands the Father's hesitancy to "upset" S. while she is in his home; however, the Father does not appear to understand or appreciate the impact on S. of such divergent and inconsistent parental oversight and the onus it places on the Mother who is left to be, in effect, the "enforcer" [Plaintiff's Exhibit 45]. The shift back and forth between these two divergent approaches appears to exacerbate the family turmoil which appears to foster S.'s susceptibility to trigger incidents of substance abuse and/or self-harm. Additionally, the parenting guidelines must be flexible enough to reflect on S.'s age and soon to be emancipation: they are unrealistic.

The Father has demonstrated an improved understanding of the importance of heightened attentiveness to S. and to monitoring her daily activities during his parenting time over the course of this litigation. Credible testimony and evidence at trial showed that the Father takes a much more lenient parenting style and that his approach has empowered or allowed S., at times, greater opportunities to engage in unsafe activities such as purchasing drugs in public parks and drinking alcohol found in his home that he "forgot" was in his refrigerator from months before. Given the severity of the situation presented, the Court finds these oversights troubling.

The Mother appears keenly aware and attentive to supervising, as best she can given the child's near emancipation age, S.'s coming and going and vigilantly attempting to help S. avoid foreseeable potential temptations for substance abuse and situations that trigger self-harming behavior and must be somewhat modulated to account for S.'s age. While the Mother's fixation on "scheduling" S.'s time may at times appear overbearing, the Court finds credible that a predictable and structured routine appears more advantageous to S. than the Father's tendency to let S. have autonomy over her time in his home. It's the overstructured that need to be modulated. The Court notes that despite entered into a series of protocols related to S.'s phone usage during certain hours and homework time the Father conceded during testimony that he has not followed those guidelines to avoid conflict with S. (T. 893).

The Court cautions the Mother that while structure may help support S. the intense scheduling may, in and of itself, become "overwhelming" and too much for S. at times. The Mother's ability to "control" S. will soon end as she will emancipate in less than two (2) years (May 2025) and neither she, the Father or this Court will have jurisdiction over S. The Mother's extreme attempts to control S.'s every moment of time and movement is not reasonable and is quickly becoming less tenable.¹³

The Court finds the Father's testimony credible that the Mother was completely non-receptive to any activities the Father suggested that were more centrally located between the parties' homes and that even when the parties agreed on a particular activity for the children the Mother specifically selected a location for that activity that was, he contends, intended to be harder for him to participate in logistically because instead of being between the parties' homes the Mother would select a location that was even farther away from the Father's home. The Mother is admonished and ORDERED that she shall not enroll the children in activities during the Father's parenting time detailed-herein without his express, written consent. If the children are currently enrolled in any such activities they shall be permitted to continue until the current sessions end and may only re-enroll if the Father consents. The Court further notes that testimony and evidence at trial support the Father's contention that the Mother, who apparently has greater access to financial resources, has at times chosen activities for the children that the Father had told her were not financially sustainable for him.

The Court finds that based on the totality of the circumstances it is not in the children's best interest to share (50/50%) parenting time at this time. The Court need not, at this time, reach whether or not the Father's is in compliance with the terms of the parties' stipulation of settlement that he remain within forty (40) minutes travel time clause of the parties' stipulation of settlement that was a predicate for the parties shifting to a 50/50 shared parenting time schedule because the Court finds that 50/50 parenting time is not in the children's best interest.

The Mother is better situated logistically and more willing to provide a daily stability, routine and monitor the children at this time which, under the unique facts and circumstances presented here, is of upmost importance. The Court further notes that the Mother's greater logistic flexibility in her employment and her representation that she is able to structure her work day so that she is available to the children and to get them to their respective extracurricular activities and treatments/therapies while the Father has less flexibility to facilitate these logistics for the children is an asset to the children during this particularly challenging time.

The Father shall have parenting time with the children every other weekend from Thursday at dismissal from school with return to school on Monday morning. If there is no school on Friday the Father shall pick-up the children from the Mother, curbside, by 4 p.m, if his work schedule permits. If there is no school on Monday the Father shall drop-off the children to the Mother by 10 a.m.. The Father shall have overnight parenting time with the children every Wednesday from dismissal from school with him returning the children to school on Thursday. If there is no school on Thursday, the Father shall return the children to the Mother by 10 a.m. The Court notes that S.'s treatment sessions remain of top priority. The testimony at trial showed that, at this time, S.'s sessions are on Tuesdays and Thursdays so the Wednesday overnight parenting time will not disrupt those sessions.

Communication Protocol

The Mother has demonstrated a lack of good judgment in how often she communicates with the Father related to issues surrounding the children. Instead of collecting information and providing it in a concise manner she dashes off messages to him — often many messages within a very short span of hours — which is not in the children's best interest as it confuses the issues and results in confusion with less likelihood that the parents will be able to reach a joint decision in a timely and efficient manner.

Apparently recognizing this themselves and attempting to improve the situation by using two (2) different parenting coordinators and, more recently, a "family therapist" (Ms. R.) to help them communicate effectively and efficiently with one another the parties' communications continue to devolve.¹⁴ The quality of their communication, which apparently is limited to electronic means, appears more motivated now to craft and curate a litigation "paper" than in effectively and efficiently reaching a collaborative plan for S.'s care. The Court recognizes that both parents deeply love these children and that the children each love both parents deeply; these children deserve better from these two professionally successful and capable parents than they are getting. Neither of them should be proud of their past behavior towards one another.

The parents are strongly cautioned to adhere to appropriate communication as detailed herein-below.

The parents shall exclusively use the communication app they have selected to use for any communications. The parents are each hereby limited to sending ONE message a day on each topic thread in that app. The parents is prohibited from starting new threads in an attempt to circumvent this limitation. The parents must consolidate requests into once daily concise requests. If either parent posts a second message to the thread before the other parent has had time to respond in the schedule below the calculation of the response window shall recalculate based on the date/time of the second message. Sending multiple "parts" of a communication shall constitute a "new" communication. The parents must learn to think, pause and consider before pressing "send".

The parent receiving any communication shall have 36 hours to respond from 9 p.m. on the day of receipt regardless of what time the e-mail was sent prior to 9 p.m. Non-response shall be deemed consent to the request, provided the one e-mail rule has been followed.

Either parent must send communication to the other parents notifying them of any immediate emergency, notwithstanding the one a day limit, while the children are in his/her care. Any such communication must be labeled "EMERGENCY" in the subject. Emergency is defined as related to imminent harm, risk, medical or if an emergency is declared by the government or National Weather Service.

If the app the parties have been using becomes unavailable the Father shall notified the Mother of an e-mail address where she shall send any communications related to major decision making.

Counsel Fees

By written stipulation dated June 12, 2023 [NYSCEF #364], the parties stipulated to waive their right to an evidentiary hearing on the issue of counsel fees and costs and consenting to submitting the issues to the Court by written papers (see Reehill v Reehill, 181 AD2d 725 [2 Dept.,1992]; Pinto v Pinto, 260 AD2d 622 [2 Dept.,1999]). The Court notes that notwithstanding the hostile tenor of the parents' relationship that to their credit all three attorneys participated in the process professionally and with extreme competence. They all zealously represented their clients and were always prepared and courteous. Notwithstanding an extremely trying and concerning situation.

The Mother's Counsel Fee Request

The Mother did not seek a request of counsel fees in any of her moving applications prior to the evidentiary hearing. She submitted a retainer agreement with her counsel dated January 19, 2022 with an hourly rate of $425. Billing records show she incurred more than $185,918.41 in counsel fees related to this post-judgment application of which she avers $47,132.97 are due and owing. A copy of her affidavit of net worth dated July 15, 2023 is NYSCEF #368.

The Mother seeks an award of counsel fees in the sum of $50,000 and that the parties share (50/50%) the cost of the attorney for the children. She contends in her affidavit in support dated July 17, 2023 that she "lack[s] the resources, savings and other means to pay my own attorney for the services rendered in this matter and will likely need to obtain additional loans and incur additional debt in order to pay my own counsel fees" [NYSCEF #366]. She asserts that she paid 60% of the forensic fees and is not seeking reallocation of that expense.

The Mother's personal income tax returns show: 2020, $104,337; 2021, $229,570; 2022, $376,152. She asserts that her current income is $100,000 annually.

She avers that her 2022 income was an "anomaly" because she "received separation pay from my former employer equivalent to 17 weeks of salary (approximately $50,000), began new employment, as well as took on multiple contract projects in order to meet my mounting bills of legal fees and medical bills (for our daughter S.)". The Mother asserts that she withdrew more than $82,000 from her retirement plan in January 2023 to pay expenses and took a home equity loan for $70,000 to fund her expenses. She contends she carries a more than $600,000 mortgage, has more than $30,000 in credit card debt, owes the attorney for the children more than $15,000 and her own attorney more than $47,000. She asserts that the Father currently owes her more than $18,000 toward one of the in-patient treatment centers.

The Mother asserts that she has no family to help her with expenses and that she has "done everything to in my power to earn additional income and liquidate funds in an effort to pay counsel fees "

The Mother's attorney argues that the Mother is entitled to an award of counsel fees because "this trial was unnecessary and should have been avoided". She contends that "[t]hroughout the action, the Plaintiff was forced to defend herself and produce writings to disprove the baseless allegations and clarify her positions" and that the Mother should not be required to financially contribute to the Father's counsel fees because he "elected to be represented by two (2) highly competent attorneys " [NYSCEF #367].

The Father's Counsel Fee Request

The Father initially sought an award counsel fees and the cost of an attorney for the children to be paid by the Plaintiff-Wife in his order to show cause signed February 9, 2022 [NYSCEF #62].

He submitted a retainer agreement with his counsel with hourly rates from $250-$600 for attorneys who worked on the case. Billing records show he incurred $362,870.85 in counsel fees related to this post-judgment application of which, according to the attorney affirmation in support of his application, $167,844.85 are due and owing [NYSCEF #379 attorney affirmation; NYSCEF #381 copies of billing invoices]. A copy of his affidavit of net worth dated July 14, 2023 is NYSCEF #384.

The Father seeks an award of counsel fees for 100% of the counsel fees he incurred in this action to his attorney, out of pocket expenses (transcripts) in the sum of $5,526.90; $22,812 for the sum he paid toward the forensic; the sum of $38,567 toward legal fees he paid to the attorney for the children. The Father avers that he will "pay any balance due and owing to the attorney for the children directly."

He avers in his affidavit dated July 17, 2023 [NYSCEF #378] that he "emptied out" a French retirement account of $20,000 in or about October 2021 to pay his retainer for $10,000 and that he has used most of the $277,845.00 in equitable distribution from the parties' 2021 divorce settlement to pay legal fees incurred in this post-judgment actions. He avers that of that equitable distribution he currently has $48,110.20. He further avers that he has funded this litigation with "a hardship loan through my 401k" in the sum of $37,000 and that he "took out a personal loan through [a credit card] in the amount of $25,000" and that he received a "one time gift" of approximately $17,000 from his mother "to help pay for legal fees and expenses and for S.'s medical care" [NYSCEF #378].

The Father avers that his gross income from his employment was $154,754.55 in 2022 and that he was also able to earn $4,737 from "freelance work" in 2022 but that "[f]reelance work has been very slow. I only had two projects. It is also difficult to take on extra work with the litigation." The Father's personal income tax returns show the following incomes: 2020, $113,035; 2021, $148,460; 2022, $129,626.

The Court notes that given the issues involved — including what both parents have characterized as costly treatment programs for S. — the parents' inability to put their personal feelings about their past relationship behind them and to invest more than $600,000 to litigate, in effect, who is the "worse" parent immediately after the divorce was finalized is troubling. They each spent days of trial notwithstanding the Court's numerous admonition going through hundreds of e-mails. Certainly, these children would have been better served had the parents used their time, effort and energy and conserved these massive amounts of financial resources for the benefit of the children particularly where, as here, the children have ongoing treatment costs. Based on the financial means of these parents and the volume of debt each incurred to litigate this matter it is hard to know how they will continue to have financial resources to provide the level of services that S. has required and may likely continue to need access to.

Both parties have gone into debt to litigate this post-judgment action. It appears without dispute that the treatment expenses for S., which have been at times several thousand dollars a day for in-patient treatment, and therapy costs for both children going forward will be a financial reality these parents will continue to face. The Court finds that under the unique facts and circumstances presented that it would not be appropriate to award either party counsel fees. That is not to say that the parties' attorneys have clearly earned what they have been asked to do by their clients.

Both parents engaged in actions that resulted in the staggering litigation costs incurred; however, to make either parent responsible for the costs incurred by the other at this time would be inappropriate especially where it is likely that both parents will face continuing expenses relating to the continued treatment and therapy needs of these children. It is notable that these parents spend over a half a million dollars in counsel fees but never called the forensic evaluator to testify or any of S.'s treating professionals as fact witnesses.

To award counsel fees to either party herein would only create more financial burden than these parents have invested in this battle between them and would not, at the end of the day put either parent in a better position given the future costs they face.

Attorney for the Children's Fees

The attorney for the children filed an affirmation of fees dated September 22, 2023 [NYSCEF #400] in which she affirms that she billed $105,185 for services rendered for her clients in this action and attaches invoices.

Pursuant to the appointment order the parties are equally (50/50%) responsible for the fees subject to reallocation. She affirms that the parties have paid the following: the Mother, $30,117; the Father, $40,067.75. She affirms that the parties currently owe her the following: the Mother, $22,475.50; the Father, $12,524.75. The Court finds that it would not be appropriate to reallocate the shared (50/50) apportionment of the counsel fees due to the attorney for the children based upon their income resources, debt and expenses.

Forensic Evaluation Costs

Pursuant to the appointment order on consent the parties paid, subject to reallocation: the Mother, 60%; the Father, 40%. The parties aver that they have made the following payments toward the forensic evaluation: the Mother, $34,218; the Father, $22,812.

Based on the affidavits submitted by the parties on consent related to counsel fees and costs, the total for the forensic evaluation was $57,030. The Court hereby reallocates the cost of the forensic from the Mother, 60%/Father, 40% to both parties sharing the cost of the forensic 50/50 based on the totality of the financial circumstances presented. As such, the Father shall reimburse the Mother for the 10% of the forensic evaluation cost. Based on the parties' affidavits, 10% of the cost associated with the forensic evaluation is $5,703  ¹⁵ . The Father shall reimburse the Mother for that sum within ninety (90) days of service of the judgment of divorce with notice of entry by regular and certified mail. If the Father fails to pay this $5,703 as detailed herein, the Mother may enter judgment with the Office of the County Clerk against the Father, together with costs and statutory interest from the date of service with notice of entry of the Decision and Order, together with an affirmation of non-payment without need for further Court order on fourteen (14) days notice directly to the Father by regular and certified mail. Any payments shall be in conformance with the Part 26 and Part 36.1 of the Rules.

This shall constitute the decision and order of the Court.

ENTER:

_____________________________

Hon. Jeffrey S. Sunshine,

J.S.C.

FOOTNOTES

1.   The Court notes that the underlying divorce action was assigned to another Justice of the Supreme Court and the Judgment of Divorce was signed by that Justice. Inasmuch as that Justice was no longer assigned to a matrimonial part by the time the post-judgment order to show cause was filed it was assigned to this Part.

2.   The Court notes that the wife's proposition that the father was somehow disingenuous in filing the emergency order to show cause just days after the judgment of divorce was signed the Court notes that the parties entered into the stipulation related to custody and parenting time more than a year prior. The filing of the emergency order to show cause days after the judgment of divorce was signed by the prior assigned Justice appears related to procedural considerations not to nefarious or disingenuous intention.

3.   The Court notes that the Mother also engaged in graphic disparagement of the Father's income and sexual abilities in e-mails in evidence; however, those e-mails appear to have been only between the parties directly and did not appear to involve the children.

4.   The Court closed the courtroom to the public while these disturbing videos that the children were in were played.

5.   The Court took numerous recesses for the mother to evaluate her continued refusal to answer questions posed as opposed.

6.   P.C. is the parent coordinator.

7.   This hearing in many ways was a battle of the e-mails.

8.   The Court notes that the Mother's compulsion to e-mail extended to sending e-mails directly to the Court during the beginning of this post-judgment litigation until she was admonished that she could not communicate ex parte with the Court and that communication must be through her attorney. The Mother did cease communicating by e-mail with the Court.

9.   This evaluation was directed by the Court.

10.   Cognitive Behavioral Therapy and Dialectical Behavior Therapy are forms of psychotherapy "talk therapy" (hereinafter referred to as "talk therapy").

11.   The conduct has even extended to the Mother, as reported in the forensic evalatuion, attacking the ethics of the attorney for the children which included insinuation that the attorney for the children and the Father's current girl-friend may be, in effect, in league together because they both allegedly belonged to a certain bar association.

12.   A. is also in therapy.

13.   While not dispositive and certainly only of limited weight inasmuch as neither party called the forensic to testify, the Court notes that Dr. Kaplan noted in the forensic report as part of his recommendation that "[t]here must be a willingness on the part of the parents to give [S.[ freedoms consistent with her age and in consideration of her current psychiatric status. If the parents are too rigid or dictatorial with S., rebellion is the inevitable outcome. This caveat is directed more at the mother based on her previous history with S." [page 54]. This assessment that the Mother's extreme efforts to micro-manage S. may ultimately be counter-productive appears consistent with the testimony and evidence at trial.

14.   The Father contends that Ms. R is not a "family therapist" but someone the Mother has chosen. The Father must be included in any family therapy and if Ms. R is not acceptable, he should consider an alternative.

15.   $57,030 x .10 = $5,703.

Jeffrey S. Sunshine, J.