AL v. AN (2022)

The following papers were read on Motion Sequences #001 and #002, numbered by NYSCEF, to wit: Documents 2-9, 11-13, 15, 18-29, 34-40, and 42-46. The court heard oral argument on Motion Sequences #001 and #003 on August 10, 2022. This is a combined Decision and Order on Motion Sequences #001 and #003. Motion Sequence #002 was withdrawn by Defendant on August 10, 2022, in court, on the record.

I. Statement of Facts

The parties were married on June 19, 2010, and there are two children of the marriage, namely V.K., born on XX/XX/2013 (age 8), and Z.K., born on XX/XX/2017 (age 4). The marital residence is located at XXXX, Staten Island, New York. The Plaintiff wife is a court reporter working part-time in Brooklyn, New York, and the Defendant husband is an attorney and partner in a law firm in New York, New York.

On July 6, 2022, each party filed a Family Offense Petition in the Richmond County Family Court, alleging that the other committed a family offense, and each sought an Order of Protection excluding the other from the marital residence. Both were denied their requested relief, however, were granted an ex parte Temporary Order of Protection (TOP). The TOP was not a “full stay away” order, however, it encapsulated the “standard terms.”

The basis for the filing the Family Offense Petitions were incidents alleged to have occurred on July 1, 3, and 5, 2022. Defendant alleges inter alia that on July 1, 2022, the Plaintiff verbally abused him in front of the children and threatened to stab him. He further alleges that Plaintiff punched him in the face. Defendant alleges inter alia that Plaintiff verbally and physically attacked him on June 3, 2022, at, and/or near the Plaza Hotel, in New York New York, while they attended an award ceremony, and during subsequent related festivities the same evening. Defendant further alleges that on July 5, 2022, at about 6:45PM, that he came home from work with the children (the children attend summer camp nearby Defendant's work office), and was “verbally assaulted” by the Plaintiff, whom, he alleges, took his work briefcase, and went into her vehicle in the driveway at the marital residence. Defendant claims that while he was trying to retrieve his briefcase from the Plaintiff, she struck him with the vehicle, although he was not injured. These facts and circumstances are alleged to have occurred in the presence of the children. According to the Plaintiff, the Defendant chased her into her car and broke the door handle of the vehicle. The court is unaware of any other incidents involving alleged domestic violence by and/or between the parties, where the parties resorted to either the courts or the New York City Police Department for assistance. The Defendant alleges that the Plaintiff has mental health issues, and that he came to know that she was prescribed a mental health drug known as Prozac, when she began to complain about the side effects. There is evidence that the Plaintiff has frequented mental health providers, however, Plaintiff's papers seemingly gloss over the issue, and/or posit that the Defendant has manufactured this mental health narrative as part of a litigation strategy. There are some indicia that the Defendant was planning, if not, orchestrating his exit from the marriage, from certain writings and an e-mail that he sent to himself. The Plaintiff denies having any mental health issues.

As a result of the incident on July 5, 2022, the Defendant unilaterally removed himself and the parties’ two children from the marital residence. The Defendant did not consent to the relocation of the children. Plaintiff claims that the removal of the children from the home, was in the best interest of the children, as he claims that the Plaintiff is abusive and volatile. Plaintiff claims that she has always been the children's primary caretaker, and that the Defendant exercises poor judgment, has a lack of impulse control, and is causing irreparable harm to the children.

Prior to the above-referenced alleged incidents, the parties were having difficulties in their marriage, which caused them to seek counselling. The parties retained the joint therapy of a marriage counsellor called K.G., proffered by Defendant. As part of the papers reviewed on these motions, K.G. provides an affidavit and a letter [addressed to Plaintiff's counsel] in which she states that the Plaintiff is a “potential danger” to her children and a direct danger to the Defendant. She further states that in her opinion, it is “unsafe for An.K. and the children to be around the Plaintiff.” Plaintiff refers to K.G. as an “unscrupulous therapist” who is enabling Defendant's “litigation strategy.” The court notes that it is unusual for a LCSW to provide such a letter or affidavit, about a client, against her interests. K.G. never made any reports to the Administration for Children's Services (ACS) with regard to her concerns about the safety of the children, although she is a mandated reporter. Defendant Husband has never reported any issues about the safety, health, and general welfare of the parties’ children to ACS. Both parties raise concerns over each other's parenting abilities.

On July 11, 2022, Plaintiff filed Motion Sequence #001 seeking the following relief:

[a] An Order Requiring that the Defendant immediately return the children to the marital residence;

[b] An Order granting Plaintiff temporary sole legal and physical custody of the parties’ children;

[c] An Order enjoining and restraining the Defendant from removing the children from Staten Island, without an agreement by the parties, or Order of this court;

[d] An Order awarding Plaintiff exclusive use and occupancy of the marital residence;

[e] An Order granting Defendant a temporary parenting schedule consisting of alternate weekends from Saturday at 10:00AM through Sunday at 4:00PM and a mid-week dinner visit;

[f] Ordering the consolidation of Richmond County Family Court actions, specifically, File No.: 44568; Docket No.: O-02447-22 and O-02452-22;

[g] An Order granting such other and further relief as the court deems just and proper.

On July 18, 2022, Defendant filed a Cross-Motion (Motion Sequence #003) seeking the following relief:

[a] An Order of temporary custody of the minor children of the marriage;

[b] An Order of exclusive use and occupancy of the marital residence;

[c] An Order directing Plaintiff to release her treatment records from K.G., her most recent therapist, and, E.R., her previous therapist, and

[d] Such other, further, and different relief as this court deems, just, proper, and equitable.

The court conferenced the matter with the attorneys and the parties on July 20, 2022, and issued a briefing schedule for the motions, an order for supervised visits with the children by the Plaintiff mother, an Order for an Investigation by the Administration of Children's Services, and an Order Appointing Attorney for the Children. The court received a report from ACS on August 10, 2022, which entailed a basic account of the parties’ recent activities in and out of court. The report was neutral at best, and based upon the report, there is no danger to the children in the presence of either parent.

The court heard from the Attorney for the Children, Brian O'Halloran, Esq., who provided the court with insight as to the experience of the children within the household. The children witnessed the altercation in the driveway between their parents, and it clearly left an impression upon them. The Court Ordered Investigation highlights the children's experience. The children are presently residing with the Defendant father and the paternal grandmother, at her home in Staten Island. ACS reports that the home has two full bathrooms, three bedrooms, a finished basement with a play area for the children, laundry room, and a spare bedroom. The children share a bedroom with two twin beds, a dresser, clothes, and toys. The Defendant father has his own room with a bed and a dresser, and the parental grandmother has her own room with a bed and a dresser. ACS noted plenty of food and a working smoke/carbon monoxide detector.

II. Discussion

A. Pendente lite Custody and Exclusive Use and Occupancy of the Marital Residence

An order affecting or modifying custody, even temporarily, must be based on the best interests of the child, under the totality of the circumstances (See Matter of Street v Palmer, 187 AD3d 1197, 1198 [2d Dept 2020]; see also, Matter of Sullivan v Moore, 95 AD3d 1223, 1223 [2d Dept 2012]). “In any action concerning custody or parental access where domestic violence is alleged, the court must consider the effect of such domestic violence upon the best interest[s] of the child[ren], together with other factors and circumstances as the court deems relevant in making an award of custody” (Matter of Poltorak v Poltorak, 167 AD3d 903, 905 [2d Dept 2018]).

“The general rule is that, while temporary custody may be granted without a hearing, ‘where sufficient facts are shown by uncontroverted affidavits, it is error as a matter of law to make an order respecting custody, even in the pendente lite context, based on controverted allegations without having had the benefit of a full hearing” (Matter of Garcia v Ramos, 79 AD3d 872, 873 [2d Dept 2010] [emphasis supplied]; see also, Matter of Poltorak, 167 AD3d at 905-906). In this case, the parties’ affidavits assert competing claims of physical violence by the other parent, and allegations of mental health issues, severe enough to allegedly cause “danger” to the children. Consequently, it would be improper for this Court to render a temporary custody determination without a full hearing.

Moreover, this Court does not possess sufficient information to render a temporary custody determination without the benefit of a hearing. Unlike cases where a determination may be made without a hearing as to the children's best interests, the Court is relatively unfamiliar with these parties, as they have only both appeared before the court briefly over very few court appearances, on the records for a few minutes each time; likewise, the Attorney for the Children was only recently appointed to represent the children and; and the written COI report returned to the Court in connection with this Court's concerns was “unfounded,” and an Article 10 proceeding was not deemed warranted. Under these circumstances, the Court does not possess adequate relevant information to enable it to make an informed and provident determination as to the children's best interests. (compare with, Matter of Perez v Sepulveda, 51 AD3d 673, 673 [2d Dept 2008]). At this juncture, it appears that custody of the minor children of the marriage will be an issue at trial. In consideration of the claims by each of the parties against the other in connection with their parental ability, this court Orders a forensic evaluation, simultaneously herewith. The cost for same shall be payable in the following proportion 100% for the Defendant and 0% for the Plaintiff, subject to reallocation at trial.

Until this Court renders a decision after hearing on the issue of pendente lite custody and exclusive use and occupancy of the marital residence, the status quo shall be maintained by the parties, including the Plaintiff's use and occupancy of the marital residence. The current supervised parenting schedule shall remain unchanged, until further Order of the court.

B. Consolidation of the Richmond County Family Court Actions

The Plaintiff requests that this Court consolidate the Richmond County Family Court actions, specifically, File No.: 44568; Docket No.: O-02447-22 and O-02452-22. Defendant does not oppose this request. The Second Department maintains a strong preference for having one judge decide all of the matters concerning the family before it. In that respect, the decision is a precursor of the long maintained “one family-one judge” philosophy repeatedly advocated by Chief Judge Kaye (see, e.g. The State of the Judiciary 2002 at 7, available at www.courts. state.ny.us./ctapps/StofJud2002.pdf; Lippman, Court Reform: Vital to Judicial Accountability; NYLJ., December 6, 2006, at 2, col. 1). If the Court were to deny the motion for consolidation, then this family's legal problems would be addressed not by one but by several judges.

Plaintiff's application for consolidation of the Richmond County Family Court actions, specifically, File No.: 44568; Docket No.: O-02447-22 and O-02452-22, is GRANTED, however stayed pending the next in-person appearance by both parties, whereupon, the Supreme Court shall issue temporary orders of protection, to both parties, on the record, in court.

C. Limited Discovery for Hearing

On August 10, 2022, this Court issued a Short Form Order, wherein the parties, on consent, were ordered to exchange releases for the records of agreed upon medical and mental health providers, including social workers, therapists, and counselors. This Court is keenly interested in those records, and notes that they will be expected for the purposes of the pendente lite custody and exclusive use and occupancy hearing.

This Court will allow for limited, relevant discovery for the hearing. The Court will conference with counsel on this matter on or about August 31, 2022, and issue a separate discovery order at that time.

The parties are cautioned that this pendente lite fact-finding hearing will not be an exercise in berating one another in open court, instead, it will be an opportunity for the Court to evaluate the issues previously raised by the parties, and they shall conduct themselves in a respectful and dignified manner.

D. Decretal Paragraphs

Based upon the foregoing, it is hereby,

ORDERED, that the matter is set down for a fact-finding hearing on the issue of pendente lite custody, and pendente lite exclusive use and occupancy of the marital residence, and it is further;

ORDERED, that Plaintiff's application for consolidation of the Richmond County Family Court actions, specifically, File No.: 44568; Docket No.: O-02447-22 and O-02452-22, is GRANTED, however stayed pending the next in-person appearance by both parties, whereupon, the Supreme Court shall issue temporary orders of protection, to both parties, on the record, in court, and it is further;

ORDERED, that pending a determination after a fact-finding hearing on the issue of pendente lite custody, and pendente lite exclusive use and occupancy of the marital residence, the status quo shall be maintained by the parties, including the Plaintiff's use and occupancy of the marital residence and the children shall continue to reside with the Defendant father at the paternal grandmother's home. The current supervised parenting schedule shall remain unchanged, until further Order of the court, and it is further;

ORDERED, that counsel is to contact the Court within 5 days of this Decision and Order to schedule an expeditious date for the aforementioned conference call and fact-finding hearing, and it is further;

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

Any remaining issues not decided herein are referred to the trial court. This shall constitute the Decision and Order of the Court.

Ronald Castorina, Jr., J.