T.V., Plaintiff, v. I.Z., Defendant. (2025)

Relevant Background & Procedural History

The parties were married on December 14, 2022, in the County of New York, State of New York. There is one Child of the marriage, E.A.V. (D.O.B.: XX/XX/XXXX) (hereinafter "Child").

Defendant commenced a proceeding in the New York State Family Court known as I.Z. v. T.V., under File Number XXXXXX and Docket Number XXXXXXXXXX (hereinafter "Family Court Proceeding"). On March 22, 2024, an Order of Custody and Parenting Access On Consent was entered in the Family Court Proceeding by the Hon. Melissa Loehr, A.J.F.C., (hereinafter "Custody Order").

The Custody Order confirmed that the parties are the parents of the Child, that Defendant would have sole legal and physical custody of the Child, and that such custody would be subject to a routine access schedule set forth within the agreement as follows:

"A Petition having been filed with the Court by I.Z. pursuant to Article 6 of the Family Court Act, requesting an order of custody involving the subject child, E.A.V. (DOB: XX/XX/XXXX);

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And that both I.Z. and T.V. (hereinafter also referred to as "Petitioner " "Respondent," a "P/party" or the "P/parties") have been declared the legal parents of the subject child as reflected in the child's birth certificate annexed hereto as Exhibit "A";

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Therefore, it is hereby

ADJUDGED and ORDERED upon consent, that it is in the best interests of the child for the Petitioner to have sole legal and primary resident custody of the subject child, E.A.V. (DOB: XX/XX/XXXX), hereinafter referred to as the "child, subject to the Respondent's parenting time as set forth herein; and it is further

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ORDERED, on consent of the Parties, that the Respondent shall have parental access with the subject child as follows:

Until the child turns two years of age: the Respondent shall have parenting time on one weekend day, Saturday on Sunday, per week from 9:00 a.m. to 6:00 p.m. on alternate weekends. The Respondent shall also have one evening per week from 5:00 p.m. to 8:00 p.m. on a week night, during the week prior to the weekend the child is with the Petitioner: and itis further

ORDERED, on consent of the parties, that beginning when the child turns two years of age: The Respondent shall have parenting time with the child one weekend day beginning on either Saturday or Sunday, per week, from 9:00 a.m. until 9:00 a.m. the following morning on alternate weekends. The Respondent shall also have one evening per week from 4:00 p.m. to 8:00 p.m. on a week night, during the week prior to the weekend the child is with the Petitioner; and"

The Custody Order further set forth additional vacation time Plaintiff would have with the Child:

"ORDERED, on consent of the Parties, the Respondent shall have seven (7) days of vacation per year with the child. The Respondent shall be able to travel with the child only within the continental United States. In the event that Respondent takes the Child on any overnight trips lasting more than twenty-four (24) hours outside the State of New ork she shall inform the Petitioner with respect to the physical whereabouts and location of the Child, the method of transportation and provide a telephone number and address where the Child may be reached, at least two weeks prior to the trip, or as soon as practicable. If the Child will travel to and from said overnight trip by airplane, train, boat or bus, the Respondent shall also provide to the Petitioner at least one (1) week in advance the name of the train, bus or airline carrier, the route or flight number and the anticipated departure and arrival times; and it is further"

The Custody Order also provided that Plaintiff shall have additional access time with the Child as agreed to by the parties the consent for which not to be unreasonably withheld:

"ORDERED, on consent of the parties that the Respondent shall have additional and further parenting time with the child as the parties may agree in writing and that such access that the Respondent has herein shall be confirmed in writing, and it is further

ORDERED, on consent of the parties, that the precise dates on which Respondent shall have parenting time as described in this Order of Custody and Parental Access on Consent shall be agreed upon in writing in advance by the parties, consent not to be unreasonably withheld; and it is further"

The Court has not been presented with any evidence that the Custody Order has been amended, modified or vacated other than by this Court, nor has any party taken such position.

On September 10, 2024, this action was commenced by Plaintiff, with the filing of a Summons with Notice, seeking relief, inter alia, for the dissolution of the parties' marriage (NYSCEF Doc. No. 1).

On November 6, 2024, Defendant appeared with counsel by filing an Answer (NYSCEF Doc. No. 5).

On November 18, 2024, Plaintiff filed a Request for Judicial Intervention seeking the scheduling of a Preliminary Conference (NYSCEF Doc. Nos. 6-7).

On November 19, 2024, a Court Notice (NYSCEF Doc. No. 9) was issued scheduling a Preliminary Conference to be held on December 10, 2024, at 3:00 p.m.

On December 10, 2024, a Preliminary Conference was held wherein all parties and counsel appeared after which a Preliminary Conference Order was entered (NYSCEF Doc. No. 18). The Preliminary Conference Order noted the existence of the Custody Order, reserving for consideration at the Compliance Conference the possible appointment of an attorney for Child and forensic evaluator.

On December 18, 2024, Defendant's counsel filed a request for adjournment of the Compliance Conference (NYSCEF Doc. No. 20) which was granted by Order (NYSCEF Doc. No. 21) directing the Compliance Conference to be held on January 3, 2025, at 12:00 p.m.

On December 19, 2024, Plaintiff's counsel requested a second adjournment of the Compliance Conference (NYSCEF Doc. No. 22) which was denied by Order (NYSCEF Doc. No. 23).

On January 15, 2025, an Order Appointing Attorney for the Child was entered (NYSCEF Doc. No. 28) appointing Jasmine Hernandez, Esq., as attorney for the Child.

On January 23, 2025, an Order Appointing Neutral Forensic Evaluator was entered (NYSCEF 29) appointing Rodrigo Pizarro, M.D., as Neutral Forensic Evaluator; which was amended by Order entered on January 31, 2025 (NYSCEF Doc. No. 30); which was again amended on February 11, 2025 (NYSCEF Doc. No. 35).

On February 12, 2025, an Order (NYSCEF Doc. No. 38) was entered directing the submission of a proposed interim custody order comporting with the Court's determination made on the record, scheduling a hearing pertaining to interim custody of the Child and setting forth deadlines for pre-hearing disclosure:

"On February 11, 2025, a Conference was held before the undersigned wherein all counsel and parties appeared. The Attorney for the Children made an application for an order granting interim custody and following oral argument by counsel the application was granted.

It is hereby ORDERED that:

1. By end of business day on February 11, 2025, the attorney for the child shall file a proposed Order of Interim Custody on NYSCEF copied to opposing counsel via NYSCEF comporting with the ruling made on the record during today's conference, which shall remain in effect until such time as this Court makes a final determination of interim custody of the parties' child, which shall be made following a hearing which shall take place on the following days, from 9:00 a.m.-5:00 p.m. each day: February 25, 2025; February 26, 2025; and February 27, 2025.

2. Counsel shall provide pre-hearing disclosure by filing same on NYSCEF by February 21, 2025, including the following: (1) Witness List of all witnesses to testify at the hearing with the understanding that if a witness is not disclosed they will be precluded from testifying at the hearing; and (2) Exhibit List enumerating all exhibits sought to be utilized at the hearing, with copies of each proposed Exhibit filed separately on NYSCEF with the understanding that if a proposed Exhibit is not disclosed pursuant to this directive it may be precluded from use at the hearing."

On February 20, 2025, Plaintiff's counsel filed the following pre-hearing disclosure: (1) Witness List (NYSCEF Doc. No. 42); and (2) Exhibit List (NYSCEF Doc. No. 43)¹ .

On February 21, 2025, the attorney for the Child filed the following pre-hearing disclosure: (1) Witness List (NYSCEF Doc. No. 47); (2) Exhibit List (NYSCEF Doc. No. 48); and (3) Exhibits (NYSCEF Doc. Nos. 49-64).

On February 21, 2025  ² , Defendant's counsel filed the following pre-hearing disclosure: (1) Exhibit List (NYSCEF Doc. No. 65); (2) Exhibits (NYSCEF Doc. Nos. 66-105); and (3) Witness List (NYSCEF Doc. No. 106).

On February 21, 2025, an Order was entered (NYSCEF Doc. No. 46) (hereinafter "Interim Custody Order") which provided:

"NOW, THEREFORE, in consideration of the foregoing, it is hereby ordered, as follows:

ORDERED, that the following access schedule for the child shall commence on February 12, 2025:

a. The Plaintiff, T.V., shall have every Monday from 9:00am to Wednesday 9:00am

b. The Defendant, I.Z., shall have every Wednesday from 9:00am to Friday 9:00am.

c. The parties shall alternate weekends, from Friday 9:00am to Monday 9:00am. The Plaintiff weekend access shall commence access on February 14, 2025.

d. Pick up and drop off shall be at the Defendant's residence, curbside.

e. Such other and further access as the parties agree to in writing.

ORDERED, that until further agreement of the parties or order of the Court, this Order shall supersede the prior Order of Custody, File no. XXXXXX, Docket no. XXXXXXXXXX, dated March 22, 2024."

No other pre-hearing disclosure was filed by any party.

Hearing Testimony and Documents in Evidence

The Court held a Hearing on February 25, 2025; February 26, 2025; and February 27, 2025.

At the Hearing all parties and counsel appeared. At the Hearing the following witnesses provided testimony: (1) Plaintiff T.V.; (2) Defendant I.Z.; and (3) Defendant's mother R.Z. R.Z. was assisted by a Russian Language Court Interpreter who confirmed that he was able to effectively communicate with the witness in the Russian Language. Prior to her testimony, R.Z. expressed her difficulty hearing and was presented by the Court with hearing assistance technology which she confirmed assisted her in accurately hearing what was occurring in the courtroom.

At the Hearing numerous exhibits were admitted into evidence by Plaintiff, Defendant and the attorney for the Child.

Findings of Fact & Conclusions of Law

a. Witness Credibility

As custody determinations depend in large part on the court's assessments of the credibility, character, temperament, and sincerity of the parties, the trial court's determination should be accorded deference, and its determination should not be disturbed unless it lacks a sound and substantial basis in the record (Sanchez v. Rexhepi, 30 N.Y.S.3d 170 [2d Dept 2016]). "In matters of this character 'the findings of the nisi prius court must be accorded the greatest respect' " (Eschbach v. Eschbach, 56 NY2d 167 [1982], quoting, Matter of Irene O., 381 N.Y.S.2d 865 [1975]).

"The memory, motive, mental capacity, accuracy of observation and statement, truthfulness and other tests of the reliability of witnesses can be passed upon with greater safety by a trial judge who sees and hears the witnesses than by appellate judges who simply read the printed record" (Barnet v. Cannizzaro, 3 AD2d 745 [2d Dept 1957]).

Based upon the demeanor and substance of the testimony of Defendant, the Court determined certain portions of Defendant's testimony to lack credibility in that her responses were evasive and did not provide answers responsive to the questions presented to her.

With respect to Plaintiff, the Court found her to be a credible witness based upon the demeanor and substance of her testimony. The Court made this determination based upon an assessment of the witness's character, temperament, and sincerity. Plaintiff provided clear testimony the answers for which were responsive to the questions presented to her.

b. Plaintiff's Request for Interim Modification of Child Custody & Access

"Modification of a court-approved stipulation setting forth the terms of custody or parental access is permissible only upon a showing that there has been a sufficient change in circumstances such that modification is necessary to ensure the best interests and welfare of the child (Baraz v. Polyakov, 198 AD3d 853, [2d Dept 2021]; see also, Sukul v. Sukul, 196 AD3d 661, [2d Dept 2021]). "The paramount concern when making such a determination is the best interests of the child under the totality of the circumstances" (Burke v. Squires, 162 N.Y.S.3d 434 [2d Dept 2022]).

It has long been held that acts of one parent to alienate the other parent from the parties' child will constitute a basis for a determination that a substantial change in circumstances has occurred, "The judicial refrain is unmistakable: a concerted effort by one parent to interfere with the other parents' contact with the child is so inimical to the best interests of the child, that it, per se, raises a strong probability that the interfering parent is unfit to act as a custodial parent" (J.F. v. D.F., 61 Misc 3d 1226(A) (Sup. Ct. Monroe 2018) citing Matter of Avdic v. Avdic, 125 AD3d 1534 [4th Dept 2015]).

"Priority in custody disputes should usually be given to the parent who was first awarded custody by the court or to the parent who obtained custody by voluntary agreement" (White v. Mazzella—White, 84 AD3d 1068 [2d Dept 2011]). "Where possible, custody should be established on a long-term basis, 'at least so long as the custodial parent has not been shown to be unfit, or perhaps less fit, to continue as the proper custodian' " (Jackson v. Jackson, 31 AD3d 386 [2d Dept 2006], quoting, Obey v. Degling, 37 NY2d 768 [1975]).

"Factors to be considered include the relative fitness of the parents, the quality of the home environment, the parents' financial status, the parental guidance given to the child, the ability of each parent to provide for the child's emotional and intellectual development, and the effect an award of custody to one parent might have on the child's relationship with the other parent" (Hogan v. Hogan, 71 N.Y.S.3d 601 [2d Dept 2018]). "Furthermore, in determining custody, while the express wishes of children are not controlling, they are entitled to great weight, especially where their age and maturity would make their input particularly meaningful" (Canella v. Anthony, 4 N.Y.S.3d 533 [2d Dept 2015]). "Entrusting the custody of young children to their parents jointly, especially where the shared responsibility and control includes alternating physical custody, is insupportable when parents are severely antagonistic and embattled" (Braiman v. Braiman, 407 N.Y.S.2d 449 [1978]).

"Moreover, pursuant to Domestic Relations Law § 240(1)(a), in any action or proceeding concerning custody or parental access where domestic violence is alleged, the court must consider the effect of such domestic violence upon the best interests of the child along with all the other relevant factors when the allegations of domestic violence are proven by a preponderance of the evidence" (Scott v. Thompson, 166 AD3d 627 [2d Dept 2018]).

It is well established that a natural parent has a claim of custody of his or her child, superior to that of all others, unless the parent has abandoned that right or is proved unfit to assume the duties and privileges of parenthood (Katherine D. v. Christine D., 589 N.Y.S.2d 1002 [2d Dept 1992]).

"A noncustodial parent is entitled to meaningful visitation, and [d]enial of that right is so drastic that it must be based on substantial evidence that visitation would be detrimental to the welfare of the child" (Izquierdo v. Santiago, 54 N.Y.S.3d 704 [2d Dept 2017] [internal quotation marks omitted]).

The Court determines that a substantial change in circumstances has occurred due to Plaintiff credibly testifying that Defendant has engaged in a repetitive failure to comply with the terms of the Custody Order by providing Plaintiff additional parenting time with the Child and not unreasonably withholding consent for such additional parenting time of Plaintiff with the Child. Defendant's violations of the Custody Order by unreasonably withholding her consent for such additional parenting time by Plaintiff was corroborated by evidence presented to the Court.

Having found a substantial change in circumstances to have occurred, the Court then engaged in an evaluation of if a modification of the Custody Order would be in the best interests of the Child considering a number of factors including, but not limited to: the relative fitness of the parents, the quality of the home environment, the parents' financial status, the parental guidance given to the child, the ability of each parent to provide for the child's emotional and intellectual development, the effect an award of custody to one parent might have on the child's relationship with the other parent, and the existence of domestic violence.

In evaluating these factors, the Court determined that it would be in the best interest of the Child to modify the Custody Order. When engaging in this evaluation the Court considered as a factor the effect of such domestic violence upon the best interests of the child and determined that Plaintiff credibly testified that Defendant engaged in acts of domestic violence against Plaintiff during the parties' marriage including in the presence of the Child. The Court recognizes that domestic violence is often manifested through abusers attempts to engage in power and control over those they seek to abuse, and is concerned that Defendant's violations of the Custody Order by unreasonably withholding consent for Plaintiff to have additional access time with the Child is a continuation of a pattern of domestic abuse of Plaintiff by Defendant seeking to marginalize Plaintiff as an equal parent to this Child deserving of quality access time with the Child.

Accordingly, based upon the submissions made to this Court, along with the testimony and evidence received at Hearing, on an interim basis pending an ultimate determination pertaining to all applications involving custody and access of the Child in this action, the Custody Order shall be modified as set forth below.

c. Request for Other Relief.

Any relief specifically not granted or otherwise addressed herein is denied.

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Based upon the foregoing, it is hereby

ORDERED on an interim basis pending an ultimate determination pertaining to all applications involving custody and access of the Child in this action, the Custody Order shall be modified as follows:

1. Legal Custody — The parties shall have joint legal custody of the Child and shall make all major decisions pertaining to the Child (i.e.: education decisions, health decisions and other general welfare decisions), jointly after good faith and meaningful consultation with each other, and to the extent that the parties cannot agree on a non-emergency major decision pertaining to the Child they shall seek Court intervention. The party having access time with the Child shall make all day-to-day non-major decisions pertaining to the Child;

2. Communication — The parties shall limit all communication with each other by Our Family Wizard with the exception of emergencies pertaining to the Child (i.e.: a medical emergency of the Child, etc.) and to effectuate this provision both parties shall obtain an Our Family Wizard account by February 28, 2025;

3. Physical Custody — The parties shall have joint physical custody of the Child subject to an access schedule as set forth in the Interim Custody Order as follows:

a. Plaintiff shall have every Monday from 9:00 a.m. to Wednesday 9:00 a.m.;

b. Defendant shall have every Wednesday from 9:00 a.m. to Friday 9:00 a.m.;

c. The parties shall alternate weekends, from Friday 9:00 a.m. to Monday 9:00 a.m., continuing in the same alternating manner with the understanding that the Plaintiff weekend access commenced access on February 14, 2025; and

d. Pick-up and drop-off of the Child for access time shall be curbside at the Defendant's residence by only Plaintiff and Defendant who shall not be accompanied by others, including but not limited to, Defendant's mother R.Z.;

4. Children's Bill of Rights— The parties are directed to comply with the Children's Bill of Rights filed with this Court as NYSCEF Doc. No. 142;

5. Custody Order — All remaining provisions of the Custody Order not modified herein shall remain in effect until further determination by this Court; and it is further

ORDERED that Plaintiff shall be the sole custodian of any passports of the Child, issued by any jurisdiction, and shall be the only parent permitted to apply for or seek to renew passports of the Child, and to effectuate this provision, Defendant shall by March 5, 2025, turn over to Plaintiff by traceable overnight delivery any Passports for the Child, in the possession of Defendant with an Affidavit confirming that she has complied with this provision, a copy of which shall be filed with the Court by that date; and it is further

ORDERED that until further Order of this Court neither party shall travel with the Child outside the United States of America; and it is further

ORDERED that Plaintiff's counsel shall serve this Decision and Order with Notice of Entry on Defendant's counsel and the Attorney for the Child by NYSCEF filing by February 28, 2025, and shall file a copy of same with proof of service by that date; and it is further

ORDERED that to the extent any relief sought has not been granted, it is expressly denied.

The foregoing constitutes the Decision and Order of the Court.

Dated: February 27, 2025

White Plains, New York

ENTER:

HON. JAMES L. HYER, J.S.C.

FOOTNOTES

1.   While Plaintiff did not file copies of Plaintiff's proposed Exhibits pursuant to the Court's directives, at Hearing Defendant's counsel and the attorney for the Child confirmed that disclosure of these documents was provided to counsel at the time of filing Plaintiff's pre-hearing disclosure. On February 24, 2025, Plaintiff's counsel filed the Exhibits (NYSCEF Doc. Nos. 107-133).

2.   Defendant's counsel filed a portion of the pre-hearing disclosure (NYSCEF Doc. Nos. 92-105) on February 22, 2025, which the Court permitted as a late filing.

James L. Hyer, J.