EB v. VB (2023)

I. Procedural History

Plaintiff EB and Defendant VB were married on September XX, 1995, in Kokshital, Kazakhstan. (tr at 7, lines 1-12 [October 19, 2022]) There are two children of the marriage, to wit: AB, born July XX, 1996, and BB, born October XX, 2008. (NY St Cts Filing [NYSCEF] Doc Nos. 10). The action for divorce was commenced by Summons and Verified Complaint on or about May 31, 2018. (see id). Plaintiff was represented by counsel on all issues of this action for divorce. Defendant, although a homeowner, did not retain counsel. The court appointed counsel to Defendant pursuant to the assigned counsel plan. The attorney was appointed solely fo the purpose of handling issues regarding the child.

A preliminary conference was held on September 4, 2018 and an order was issued on consent that Plaintiff would be granted a divorce pursuant to Domestic Relation Law § 170 [7] Irretrievable Breakdown, after the resolution of the ancillary issues. Plaintiff filed a Verified Complaint on or about May 31, 2018. (NY St Cts Filing [NYSCEF] Doc Nos. 4). Defendant filed an Answer on or about June 15, 2018. (NY St Cts Filing [NYSCEF] Doc Nos. 6). During the trial the parties resolved all issues except custody, parenting-time and child support of the infant child, BB, born October XX, 2008. (tr at 2-3 [November 18, 2022, PM Session]). Child support will be based on the documents that were provided to the Court under Uniform Civil Rules Part 202.16. (tr at 2, lines 13-20 [November 18, 2022, PM Session]).

Trial commenced on October 19, 2022, and was held on the following dates, November 15, 2022 and November 18, 2022. The Trial concluded on November 18, 2022. The court conducted an in camera interview with the unemancipated child BB on October 20, 2022, with the AFC, and Court Reported present. The purpose of the interview was for the court to ascertain the child's preference, as to the issue of custody and parenting time, as well as to inquire as to the allegations and contentions of the parties. The parties were provided with an opportunity to submit written questions. During the trial, the Court heard testimony from five witnesses the Plaintiff, the parties oldest child, AB, born July XX, 1996, Plaintiff's mother, ZA, Plaintiff's father, AA, and the Defendant. Updated statements of net worth were submitted by the Plaintiff via NYSCEF document number 67 on October 5, 2022 and by the Defendant via NYSCEF document number 59 on May 17, 2022. Plaintiff submitted written summation via NYSCEF document number 79 on December 27, 2022, Defendant submitted written summation via direct email to the Court on February 10, 2023, and AFC submitted written summation via NYSCEF document number 82 on February 15, 2023. This is a Decision and Order after trial.

II. Facts

The issues for the trial court are as follows: (a) determination of the physical and legal custody of the child, to wit: BB, born October XX, 2008 and (b) child support for the child, BB.

There is no controversy as to the following facts (1) the parties were married on April XX, 1995 (NY St Cts Filing [NYSCEF] Doc Nos. 10); (2) there are two children of the marriage, to wit: AB, born July XX, 1996, and BB, herein after referred to as BB, born October XX, 2008. (see id); (3) commencement date of the action is May 31, 2018 (NY St Cts Filing [NYSCEF] Doc Nos. 4); and (4) the Plaintiff shall take the divorce on the grounds of irretrievable breakdown of the marriage (NY St Cts Filing [NYSCEF] Doc Nos. 10).

The Plaintiff and Defendant resolved all issues of equitable distribution, and an inquest was completed on November 18, 2022 (tr at 2-12 [November 18, 2022, PM Session]). Plaintiff testified that she resides on Staten Island, New York with the parties' two sons, her mother and her father (tr at 6, lines 7-8 [October 19, 2022). Defendant testified that he lives in a home that he owns in Woodbourne, New York (tr at 46, lines 21-25 [November 18, 2022, AM Session]). Defendant further testified that since July 2022, he has had parenting-time with BB every other weekend from Friday night at 7:00 PM or 8:00 PM until Sunday night at 7:00 PM or 8:00 PM. (tr at 49-50 [November 18, 2022, AM Session]).

III. Determination of Physical and Legal Custody of the Child, to wit: BB

Plaintiff testified that she resides with the parties' children and her parents in the same home in Staten Island, New York, since the purchase of the home in 2012. (tr at 6, lines 1-12 [October 19, 2022]). Plaintiff has a separate bedroom, her parent's have a separate bedroom, the parties' oldest son has a separate bedroom, and the child, BB, has a separate bedroom in the Plaintiff's residence. (tr at 6, lines 16-19 [October 19, 2022]). Plaintiff was questioned about her employment:

Q. What is your working schedule right now?

A. Right now, I'm working two days a week Monday and Thursday. On Monday my hours [are] ten to seven and Thursday one to nine.

Q. And what do you do the rest of the week?

A. [T]he rest of the time I work at home. I take work to my home and I work, but I have a very flexible schedule; I do when I have time and according to my other engagements. (tr at 11, lines 1-23 [October 19, 2022]).

Plaintiff testified that the parties' oldest child, AB, assists in taking care of the child, BB. "On the days when I'm working he picks up the child [BB] from school. My child [BB] also goes to the yacht club and when I'm working and he [BB] goes to the yacht club, AB takes him there and picks him up." (tr at 13, lines 3-6 [October 19, 2022]).

Plaintiff testified that the child, BB, is currently enrolled in his first year of high school at McKee Career Technical School, High School. (tr at 15, lines 21-24 [October 19, 2022]). The school is approximately 17 to 20 minutes away from Plaintiff's home by car and there are options to get to the school from Plaintiff's home by public transportation. (tr at 17, lines 6-10 [October 19, 2022]). BB has been accepted into the architectural program at his school. (tr at 16, lines 21-23 [October 19, 2022]). Plaintiff also testified that she has a support system in the event of an emergency, which includes her son, her father, and neighbors to assist in getting BB to school. (tr at 17, lines 19-22 [October 19, 2022]). Plaintiff further testified that the child, BB, has hobbies that include the yacht club, fishing, exercise, and the care of animals. (tr at 15, lines 2-5 [October 19, 2022]). Plaintiff has two dogs in her home. (see id).

Plaintiff questioned regarding the temporary Order of protection she sought against the Defendant on December 1, 2018.

Q. Explain under what circumstances you decide[d] to go and file for an Orderof Protection?

A.On December 1, [2018], I went into my son's [BB's] room to discuss his school issues. [Defendant] was in the room. He has been living in my child's bedroom and he was sleeping in the same bed with him for several months. When I entered the room my son [BB] was sitting at the computer with a headset and was playing games. [Defendant] [was] lying on the bed. [Defendant] was drunk. I started talking to the child [BB] but [Defendant] interrupted me. We started arguing and, during this argument, [Defendant] wished we were all dead, including my parents. I approached him and told him not to say anything like this about my family anymore. He approached me, I leaned on the wall, he pushed me in the head, in the forehead with his finger. He said if I would come close to him anytime in the future . . . he would knock out all of my teeth. After that I went to the Family Court and filed a petition. (tr at 19, lines 6-23 [October 19, 2022]).

The Court took judicial notice of the Temporary Order of Protection dated January 22, 2019 with an expiration date of February 14, 2019.

Plaintiff was questioned regarding a subsequent Order of Protection.

Q. Can you please describe circumstances under which your received [an] Order of Protection from [the] Criminal Court?

A. It happened on February 5, 2019. I came home from work, it was nighttime. I approached [Defendant] asking him to give me the document showing the mortgage amount we had paid within the year because I was preparing the income tax and we were paying [the] mortgage half-half. He refused in a very rude manner. I told him I have a right to see the document. After that he called me a bitch and he told me he is not obligated to give me anything. (tr at 25, lines 14-24 [October 19, 2022]).

After that, [Defendant] went upstairs to the second floor, he was already drunk. He started insulting everybody who was in the house. Then he approached me and extended his hand with his phone close to my face and, after he finished insulting me, I was very emotional, and he was taping me. Then I said I will do the same to you, I'll take my phone and videotape you. So I started videotaping him. He knocked the phone out from my hand and hit me on the chest. (tr at 26, lines 1-9 [October 19, 2022]).

The Court took judicial notice that the Defendant was arraigned, and the Criminal Court issued a Temporary Order of Protection in favor of the Plaintiff in connection with CR-000830-19RI with a top charge of Criminal Contempt in the Second Degree (Penal Law 215.50 [3]). Plaintiff testified that she received a one-year Order of Protection from the Criminal Court. (tr at 29, lines 7-8 [October 19, 2022]).

Plaintiff testified to the conditions in their household when the parties were living together:

Q. While [Defendant] was living with you in the same household, have you observed him drinking?

A. Yes, I did.

Q. What have you observed?

A. The last two or actually one-and-a-half years we were residing together I observed him drinking practically every day. It was terrible to observe.

Q. At the time he was drinking, in what room did he reside?

A. When we live together, he lived in the room with me.

Q. In what room [did] he resided [SIC] between September of 2018 and February 5, 2019?

A. He lived in the child's [BB's] room.

Q. How many beds [in BB's room]?

A. There's one bed. It's a couch.

Q. Have you observed him sleeping in the room?

A. Yes, they were sleeping in the same room, in the same bed. (tr at 47, lines 2-16 [October 19, 2022]).

Plaintiff was questioned as to whether the parties' older child was closer to Plaintiff or closer to Defendant. Plaintiff testified, "The child, [AB] wanted to have a closer relationship with his father but the father was insulting him. He was beating him." (tr at 17, lines 9-11 [November 15, 2022]).

AB, hereinafter referred to as AB, the parties' 26-year-old child testified to his relationship with the Defendant.

Q. Can you please describe what relationship do you have with your father [Defendant]?

A. I have no relationship with my father [Defendant].

Q. For how long?

A. I would say since I'm 12 years old.

Q. Is there any specific reason why you don't have a relationship with your father [Defendant]?

A. Mental and physical abuse.

Q. You just mentioned that there was mental abuse. What do you mean by saying that?

A. He would constantly call me a fagot and make fun of my appearance, the clothes that I wear. He said that I should wear a bag, a period bag because I am not a man and every time, I step out of the house I got fucked by men.

Q. Did that affect you so much?

A. Yes. It affected me.

Q. You mentioned that there was physical abuse as well?

A. Yes.

Q. Can you remember any specific instances where there was physical abuse?

A. My father [Defendant] put up cameras all over the house and I did not like that so I took one off and when he realized that, he punched me in the face. (tr at 36-38 [November 15, 2022]).

Q. When did you come to America?

A. When I was 9 years old.

Q. Do you remember your feelings toward your father [Defendant] when you just came to America?

A. There was a lot of tough love and that tough love got crueler and crueler as the years went by and I never understood why.

Q. Did he physically beat you up?

A. Yes.

Q. On how many occasions?

A. It was a good number of occasions, plenty of occasions. We would get into physical altercations every time I didn't do something that he liked or maybe something that I did that he didn't like, maybe I disobeyed him. It was always like that and I thought it was okay. But it turns out, it really wasn't because it affected me.

The Court: [W]hen counsel asks you how many occasions, would you say it's more than once?

The Witness: Yes.

The Court: More than five times?

The Witness: Yes. (tr at 38, lines 5-25 [November 15, 2022]).

The Court: More than ten times?

The Witness: Yes.

The Court: More than twenty times?

The Witness: Yes.

The Court: More than fifty times?

The Witness: I don't know exactly the number but it was, it was a lot of times.

The Court: What, if any, physical abuse did you sustain? In other words, could you be specific and tell the Court exactly what the physical abuse consisted of over those many times that you allege it occurred?

The Witness: Just bruises, stuff like that[.]

The Court: Sir, are you alleging that you were hit?

The Witness: Yes.

The Court: In what fashion; a fist, a hand, with an instrumentality?

The Witness: Just fists, fist. (tr at 39, lines 1-23 [November 15, 2022]).

AB further testified that the police had been called to the parties' home in response to these incidents and that the Defendant was arrested in 2018. "We had an order of protection and he [Defendant] was intoxicated at the time." (tr at 41-42 [November 15, 2022]).

The Court: I need to ask you some questions about this living arrangement, this sleeping arrangement. Is it your testimony that your father slept in the same bed as [BB]?

The Witness: I believe so, yes, they stayed in the same room together.

The Court: How big is this room? What is the size of the room?

The Witness: It's the smallest room in our house.

The Court: Would you say it was the size of ten feet by ten feet or larger than that?

The Witness: I'm not so sure.

The Court: Okay.

The Witness: But it's the smallest room.

The Court: What is the size of the bed, if you know?

The Witness: I don't really know.

The Court: Twin size bed, full size bed, queen size bed or king?

The Witness: It's not that big but it's, like, you know. . .

The Court: Is it large enough for two people?

The Witness: Maybe, yeah. Maybe.

The Court: [H]ow old was [BB] at the time that he was sleeping with your father?

The Witness: About eleven. Ten, eleven.

The Court: And did you think that this was unusual for him to be sleeping in bed with him?

The Witness: Yes, because I feel like as he was entering his teenage years, he should have had his own room and his own space. (tr at 43-44 [November 15, 2022]).

The Court: Do you know where your father slept?

The Witness: No, but I am assuming in the same — I have seen them lay together before.

The Court: Lay together in bed?

The Witness: Yeah, I came in and saw them laying together. I didn't think much of it.

The Court: They were fully clothe?

The Witness: Yeah.

The Court: And this was in the evening or during the day?

The Witness: Evening.

The Court: Bedtime?

The Witness: Yeah, and my dad told me to get out. (tr at 72, lines 1-15 [November 15, 2022]).

AB testified that, while there was physical and mental abuse by the Defendant upon him, there was never any sexual abuse. AB further testified that he was unaware of any sexual abuse by the Defendant upon BB. (tr at 44-45 [November 15, 2022]).

AB further testified regarding Defendant's consumption of alcohol when he resided at the marital residence.

The Court [Y]ou testified earlier that your father drinks alcohol. With what frequency does he drink alcohol, to your knowledge?

The Witness: I would say six to — I would see six to seven beer cans every day in the garbage.

The Court: Is it your testimony that your father drinks alcohol on a daily basis?

The Witness: When he lived in the house, yes.

The Court: And does he drink it to the point of intoxication, to your knowledge, in your impression?

The Witness: Yes.

The Court: And how do you know?

The Witness: Because of the smell and because of his behavior.

The Court: And what about the behavior allows you to believe that he's intoxicated at those times?

The Witness: He would get aggressive with everybody.

The Court: Was he not aggressive when he wasn't drinking?

The Witness: He was still aggressive, but it escalated.

The Court: [E]xplain to the Court what you mean by aggressive behavior while consuming alcohol.

The Witness: He would pick fights with everybody over the smallest things and then, you know, God forbid somebody disagreed with him, he would get in your face and try to show us who is the man of the house.

The Court: And how frequently would that occur?

The Witness: Every three days. Every two, three days, something like that. (tr at 52-53 [November 15, 2022]).

ZA, mother of the Planitiff, and AA, father of the Plaintiff, provided credible testimony that they are active participants in the child's, BB, life and contribute to creating a warm, loving, and nurturing environment for BB. Both grandparents contribute to the care of the child, BB, and the child, benefits from residing with his extended family.

Defendant testified that following his exclusion from the marital home by the full Order of Protection, he lived in his car for three years. (tr at 45, lines 1-4 [November 18, 2022]). Defendant testified that he took care of his personal hygiene by using the facilities at supermarkets and the YMCA. (tr at 45, lines 9-13 [November 18, 2022]).

Defendant was further questioned about this period of time.

Q. [Y]ou mentioned that starting February of 2019, you lived in your car. Do you remember what your annual income in 2018, your personal annual income, how much money you made in 2018?

A. I don't remember.

Q. How much money have you made in 2019?

A. I cannot tell you exactly now.

Q. Approximately.

A. From 60, $70,000.00 a year, I believe. (tr at 62, lines 3-11 [November 18, 2022]).

Defendant testified that in February 2022, he purchased a home in Woodbourne, New York, which is approximately 115 miles from Staten Island and depending on traffic conditions has a one-way travel time between 2 hours and fifteen minutes to 2 hours and forty minutes. (tr at 47 [November 18, 2022]). Defendant further testified that his home is a three-bedroom home. (tr at 48 [November 18, 2022]). Defendant testified that one of the three bedrooms was used as a bedroom for BB. (tr at 49, lines 12-15 [November 18, 2022]).

Defendant testified regarding his relationship with his oldest son, AB.

Q. [D]id you ever call him [AB] like a girl, or a woman, or a fagot, or things like that that he testified to?

A. Yes, I call him a girl because he, at that time, couldn't do anything by himself. (tr at 52, lines 21-25 [November 18, 2022]).

Defendant testified regarding his use of alcohol.

Q. [D]o you drink alcohol?

A. Sometimes I can have a beer.

Q. You have been described by several witnesses as at times being intoxicated. Have you been intoxicated in the presence of your family?

A. I never been intoxicated to the point as they described.

Q. So, what does that really mean, you haven't been intoxicated to the point that they described? Have you been intoxicated, in your opinion?

A. If a can of beer means intoxicated.

Q. Have you ever had more than a can of beer at a sitting or in a day?

A. When you live in the house where four people are trying to kick you out and make an argument and calling 911 for no reason, I could have a can or two, just sitting outside. (tr at 553-54 [November 18, 2022]).

Defendant denied drinking when BB comes to spend weekends with him, "I have no need to drink. I am happy we are spending time together. We don't see each other for two weeks. We are spending time together." (tr at 54, lines 14-16 [November 18, 2022]).

Defendant testified regarding sharing a bed with the child, BB, while he was residing in the marital home.

Q. When you were living in the home on Staten Island, did there come a point in time when you were staying in the same room as [BB]?

A. Yes.

Q. And do you remember for approximately how long that was?

A. A few months, until I was kicked out of the house.

Q. And can you describe how that worked, that you and him were sharing a room.

A. I was kicked out of the master bedroom. I didn't have a place to stay. So [BB] was kind enough to let me at least sleep a couple of hours before I go to work.

Q. [H]ow many beds were in [BB's] bedroom?

A. One sofa bed.

Q. Did you and [BB] sleep in the same bed?

A. Yeah.

Q. Was there enough room for that?

A. There was enough room for that.

Q. Okay.

A. And besides, [BB] was scared. Somebody scared him. He was scared of a ghost because he saw somebody, like, somebody walking so he asked me. (tr at 56-57 [November 18, 2022]).

Defendant testified regarding his visitation schedule before he had overnight parenting-time with BB.

Q. At the time when Judge Castorina awarded you two separate days [for parenting-time] without overnights, Saturday and Sunday, and you could see your son [BB] two days in a row but not overnights, did you ever use that opportunity to visit your child [BB] Saturday and Sunday?

A. We have Sunday visitation. No, I didn't. (tr at 67, lines 20-25 [November 18, 2022]).

Q. I refer again to June and July of 2022 when Judge Castorina allowed you to see your son [BB], not Sundays only, but also Saturdays. Have you ever, during that period of time, visited your child on Saturday?

A. No.

Q. [W]hat is the reason?

A. I don't remember. We agreed with Sunday. We continued to see each other on Sundays. (tr at 68, lines 16-24 [November 18, 2022]).

Custody orders are required to be entered "as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child." (Domestic Relations Law § 240 [1] [a]).

"In making a determination as to what custody arrangement is in the children's best interests, the court should consider the quality of the home environment and the parental guidance the custodial parent provides for the children, the ability of each parent to provide for the children's emotional and intellectual development, the financial status and ability of each parent to provide for the children, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the children's relationship with the other parent[.]" (see Matter of Schultheis v Schultheis, 141 AD3d 721 [2d Dept 2016], citing Matter of Hutchinson v Johnson, 134 AD3d 1115 [2d Dept 2015]).

"There is 'no prima facie right to the custody of the child in either parent[.]' " (see Matter of Schultheis v Schultheis, 141 AD3d 721 [2d Dept 2016], quoting Domestic Relations Law § 70 [a]). "In adjudicating custody and visitation rights, the best interests of the child is the paramount factor to be considered[.]" (see Matter of Connolly v Walsh, 126 AD3d 691 [2d Dept 2015], citing Eschbach v Eschbach, 56 NY2d 167 [1982]).

High school age children typically struggle in adjusting. It is a time in which they experience physiological, mental, and social changes. It is a time for personal growth and unfortunately a time for experimentation and testing boundaries. The child, BB, is a well-adjusted young person, who seems to be doing well in school and has activities he is engaged in the community, including the yacht club. All BB's activities, schooling, and presumably friends are all within relatively easy reach via public transportation or via transportation provided by one of the three drivers who live with the child, Plaintiff, grandfather and brother, AB.

"In making a determination as to what custody arrangement is in the children's best interests, the court should consider the quality of the home environment and the parental guidance the custodial parent provides for the children, the ability of each parent to provide for the children's emotional and intellectual development, the financial status and ability of each parent to provide for the children, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the children's relationship with the other parent[.]" (see Matter of Schultheis v Schultheis, 141 AD3d 721 [2d Dept 2016], citing Matter of Hutchinson v Johnson, 134 AD3d 1115 [2d Dept 2015]).

The evidence demonstrated that the household where BB presently resides is a warm, safe, and caring environment with four responsible adults, Plaintiff-Mother, grandfather, grandmother, and older brother. Testimony was also provided that the neighbors are friendly and willing to assist. The environment is familiar and known to BB and there is a level of security and support available that would not be available were the child relocated to Woodbourne, New York.

The uprooting of a fourteen-year-old high school student and requiring him to move to upstate New York approximately 115 to 120 miles to attend a new school, that removes him from his social circle would create additional stress on the child unnecessarily. The Defendant cannot offer the same levels of support to the child that he receives with the Plaintiff. Defendant has no support structure in place. No testimony was offered by the Defendant that there was even a neighbor that he could rely on in a pinch. In the event of an emergency, the child, in an unfamiliar environment and with no family, friends or neighbors, would have no one to call upon other than the Defendant. While the Plaintiff only goes to work two days per week and works from home the other days in addition to having three other adults to provide support, the Defendant, working for an alarm company, offered no testimony of the same flexibility of schedule.

Credible evidence has been presented that the Defendant has a violent and abusive temperament, particularly when consuming alcohol. Defendant's conduct toward the Plaintiff was verbally and physically abusive and resulted in the Defendant's arrest and the issuance of a Final Order of Protection from the Criminal Court in connection with docket CR-XXXXXX-19RI. (tr at 28-29 [October 19, 2022]).

Plaintiff testified regarding the relationship between the oldest child, AB, and the Defendant. Plaintiff testified that the Defendant would insult and beat the oldest child, AB. (tr at 17, lines 9-11 [November 15, 2022]). The child, AB, now 26-years-old, offered extremely credible testimony that he and the Defendant have not had a relationship, since AB was 12 years old. (tr at 36, lines 16-18 [November 15, 2022]). AB testified that the Defendant inflicted both physical and mental abuse on him, would "constantly call [him] a fagot and make fun of his appearance[.]" (tr at 36, lines 21-25 [November 15, 2022]). AB further testified that Defendant physically beat him on numerous occasions with his fists causing him to receive bruises. (tr at 39 [November 15, 2022]). The court was particularly concerned with the emotional nature of AB's testimony. He seemed like a lost soul, beaten down and abused by the Defendant father. It appeared to the court, that AB's trauma seemingly unaddressed, has affected his life, and its trajectory. He appeared to be a kind and humble young man, with a broken spirit, caused by the actions of the Defendant father, over years of verbal and physical abuse. The tears he shed on the witness stand, and the words with which he delivered the account of a young life, severely abused by a drunken, violent father, will stay in this court's mind, long after this matter has been decided. These are the cases that weigh heavily on this court's mind, long after they are procedurally resolved.

Further credible testimony was provided by the Plaintiff's father, AA, who witnessed the Defendant's abusive treatment of the child, AB. "The father [Defendant] was insulting to his oldest son [AB] on a regular basis and he put kind of a barrier up between the two brothers. He [Defendant] called him [AB] a girl. He said you are a girl. And very other bad words [SIC], like you are a scoundrel, you are a jerk." (tr at 33, lines 18-25 [November 18, 2022]).

Credible evidence has been presented that the Defendant has issues with alcohol abuse. Plaintiff testified that during the last year and a half of the marriage, she observed Defendant drinking practically every day. (tr at 47, lines 6-7 [October 19, 2022]). AB testified that the Defendant was intoxicated at the time of his arrest. (tr at 41, lines 1-6 [November 15, 2022]). AB testified that he observed the Defendant drunk and smelled alcohol on his breath a good number of times. (tr at 41, lines 15-22 [November 15, 2022]). AB further testified that when Defendant would become intoxicated, he would become more aggressive than when he was sober. (tr at 43, lines 9-13 [November 15, 2022]).

Plaintiff's mother, ZA, testified that she observed the Defendant drunk and was able to discern his intoxication by "his face, in his eyes and the odor. You could smell the odor.' (tr at 15, lines 6-12 [November 18, 2022]). Plaintiff's father, AA, testified to an incident in 2019. "I saw my son-in-law [Defendant] being drunk, who was insulting my daughter [Plaintiff], my wife, my oldest grandson. He put his finger in front of her face. He kicked her phone from her hand, pushed her away. And I was very concerned about what he's capable of doing." (tr at 30-31 [November 18, 2022]).

Defendant has testified that he doesn't drink on the weekends that BB comes for parenting-time because "I have no need to drink. I am happy we are spending time together." (tr at 54, lines 14-15 [November 18, 2022]).

The Court has further concern regarding the Defendant's judgment. Defendant testified that prior to his removal from the marital home, Defendant shared the same bed with the child, BB, for a few months. (tr at 56-57 [November 18, 2022]). Defendant further testified that following his exclusion from the marital home by the full Order of Protection, despite having and income of $60,000.00 to $70,000.00 per year, Defendant chose to live in his car for three years. (tr at 45, lines 1-4 [November 18, 2022]).

"Weighing the factors relevant to any custody determination requires an evaluation of the credibility and sincerity of the parties involved." (see Anonymous 2011-1 v Anonymous 2011-2, 136 AD3d 946 [2d Dept 2016]). The Court has considered these factors as part of its determination of custody in the best interests of the Child.

The Court had an in camera with the child, BB, and is aware of the child's preference. "[W]hile the children's attitudes were to be given consideration, that did not mean that their wishes were to be determinative. The best interests of a child, particularly over the long term, often require the overbalancing of subjective desires by more dependable objective criteria[.]" (see Ebert v Ebert, 38 NY2d 700 [1976]; citing Dintruff v McGreevy, 34 NY2d 887 [1974]).

"The court should also consider the child's wishes, weighed in light of their ages and maturity." (see Matter of Schultheis v Schultheis, 141 AD3d 721 [2d Dept 2016], citing Eschbach v Eschbach, 56 NY2d 167 [1982]). "[W]hile not necessarily determinative, the child's expressed preference is some indication of what is in his or her best interests and, in weighing that factor, a court must consider the age and maturity of the child as well as the potential for influence having been exerted on the child." (see Matter of Newton v McFarlane, 103 NYS3d 445 [2d Dept 2019], quoting Matter of Nevarez v Pina, 154 AD3d 854 [2d Dept 2017]).

While reviewing the testimony of the parties, the child's older brother, AB, and the Plaintiff's parents, this Court evaluated the above factors to determine the best interest of the child for the purposes of determining legal and residential custody of the Child, BB.

Plaintiff has demonstrated that she is the primary caretaker of the child and has a support system in place. Plaintiff has arranged with her employer to be available for the child most days during the week and on the two days per week that she goes to work, there are three other adult family members present in the home. Defendant, who has relocated 115 to 120 miles away from the child's current home in Staten Island, would not be similarly available to the child due to work obligations and does not have any support network.

Credible evidence has been provided to the Court that demonstrates the Defendant has been physically and mentally abusive to members of the marital household, he uses alcohol excessively to negative effect, and he has exercised poor judgment.

Based on the testimony, the Plaintiff-Mother is better able to provide appropriate guidance to the child. Plaintiff has demonstrated the ability to ensure the child has a stable supportive environment. Plaintiff is financially stable and has met all the child's financial needs. Plaintiff demonstrates her support and fosters the relationship between the child and the Defendant by proposing a very liberal parenting-time schedule for the Defendant. Accordingly, after consideration of the totality of these factors and the best interests of the child, BB, sole legal and sole residential custody is GRANTED to the Plaintiff.

IV. Defendant Parenting-Time

Defendant-Father shall have parenting-time with the child, BB, as follows:

1. Every other weekend from Friday evening at 7:00 PM through Sunday evening at 9:00 PM. The parties may expand weekend parenting-time as the parties agree.

2. Every other week during the school summer recess. The parties may expand school recess parenting-time as the parties agree.

3. Recesses from school for a duration of at least a week during the school year are to be alternated and rotated on an annual basis with the Defendant having the child for the first recess following this Decision and Order.

4. The following holiday schedule will take priority over the regular parenting-time schedule:

a. Plaintiff-Mother shall have the child for every Mother's Day.

b. Defendant-Father shall have the child for every Father's Day.

c. Holidays shall be alternated and rotated on an annual basis and Defendant shall have parenting-time for the first holiday following this Decision and Order.

5. Pickup and drop-off of the child shall be in front of the nearest New York City PoliceDepartment precinct to the Plaintiff's home. The parties may agree to another mutually acceptable location.

V. Child Support

A parent has an obligation to provide support for his or her child's basic needs, an obligation which is addressed in Domestic Relations Law § 240 [1-b] [c] [1], [2]." (see Cimons v Cimons, 53 AD3d 125 [2d Dept 2008]).

"The Child Support Standards Act (Domestic Relations Law § 240 [1-b] [hereinafter CSSA]) provides 'a precisely articulated, three-step method for determining child support' (citing Elias v Elias, 101 AD3d 938, [2d Dept 2012]; quoting Matter of Cassano v Cassano, 85 NY2d 649 [1995]). This three-step process includes (1) computing a combined parental income, (2) multiplying that income, up to a certain income cap, by a specific percentage, and (3) determining the amount of income that should be considered for child support purposes if the combined parental income exceeds the income cap (Matter of Cassano v Cassano, 85 NY2d 649 [1995])." (see Boltz v Boltz, 178 AD3d 656 [2d Dept 2019]).

Accordingly, child support for the child, XX, born October XX, 2008, is awarded to the Plaintiff commencing the date of this Decision and Order in the monthly sum of $1,106.40 [One Thousand One Hundred and Six Dollars and Forty Cents].

VI. Uncovered and Unreimbursed Medical Expenses of Child

It is ORDERED that all the child's uncovered and unreimbursed health expenses, including but not limited to hospital, medical, prescription, psychological, dental, orthodontic, optical, and related health care expenses shall be divided on a pro-rata basis. Plaintiff is responsible for 42% of all the child's uncovered and unreimbursed health expenses and the Defendant is responsible for 58% of all the child's uncovered and unreimbursed health expenses.

VII. College Educational Expenses

It is ORDERED that all college educational expenses for the child, BB, born October XX, 2008, including, tuition with a SUNY tuition cap, room, board, books, fees, extracurricular expenses that are agreed to in advance by the Plaintiff and the Defendant, and reasonable transportation to and from school each academic year, until the sooner of each child reaching age 22 or graduates shall be divided on a pro-rata basis. Plaintiff is responsible for 42% of all college educational expenses and the Defendant is responsible for 58% of all college educational expenses.

VIII. Decision and Order after Trial

IN SUMMARY, IT IS HEREBY ORDERED AS FOLLOWS:

ORDERED that legal and residential custody of the child, BB, born October XX, 2008, is GRANTED to the Plaintiff, and it is further;

ORDERED that commencing the date of this Decision and Order, the parenting-time schedule defined in this Decision and Order is GRANTED to the Defendant, and it is further;

ORDERED that commencing the date of this Decision and Order, Defendant shall pay child support to the Plaintiff for the child, BB, born October XX, 2008, in the monthly sum of $1,106.40 [One Thousand One Hundred and Six Dollars and Forty Cents], and it is further;

ORDERED that all the uncovered and unreimbursed health expenses, including but not limited to hospital, medical, prescription, psychological, dental, orthodontic, optical, and related health care expenses for the child, BB, born October XX, 2008, shall be divided on a pro-rata basis. Plaintiff is responsible for 42% of all the child's uncovered and unreimbursed health expenses and the Defendant is responsible for 58% of all the child's uncovered and unreimbursed health expenses, and it is further;

ORDERED that all college educational expenses for the child, BB, born October XX, 2008, including, tuition with a SUNY tuition cap, room, board, books, fees, extracurricular expenses that are agreed to in advance by the Plaintiff and the Defendant, and reasonable transportation to and from school each academic year, until the sooner of each child reaching age 22 or graduates shall be divided on a pro-rata basis. Plaintiff is responsible for 42% of all college educational expenses and the Defendant is responsible for 58% of all college educational expenses, and it is further;

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

The foregoing shall constitute the Decision and Order of this Court after trial.

Dated: March 6, 2023

Staten Island, New York

E N T E R,

____________________________________

HON. RONALD CASTORINA, JR.

JUSTICE OF THE SUPREME COURT

Ronald Castorina Jr., J.