S.A.F., Plaintiff, v. A.M.F., Defendant. (2026)

The following documents were considered in connection with the motion by Order to Show Cause of the Plaintiff, dated September 22, 2026, (hereinafter "Motion Sequence No. 1"), seeking the entry of an Order granting the following final relief (hereinafter "Final Relief"):

1. On an interim and emergency basis, and going forward, granting the Plaintiff pendente lite exclusive use and occupancy of the parties' Marital Residence located at [Redacted], and directing the Defendant to vacate the same;

2. On an interim and emergency basis, and going forward, awarding the Plaintiff temporary sole legal and residential custody of the parties' children, [Redacted], born [Redacted], and [Redacted], born [Redacted] (the "Children"), during the pendency of this action;

3. Directing that all parenting time between the Defendant and the Children be supervised until further order of this Court, with a mechanism for the expansion of such parenting time upon proof of the Defendant's engagement in the level of care recommended by her treatment providers;

4. Appointing a forensic evaluator, the fees and costs of which shall be borne equally by the parties, and directing the parties to execute all authorizations necessary for the evaluator to obtain records;

5. Appointing an Attorney for the Children, the fees and costs of which shall be borne equally by the parties; and

6. For any other and further relief this Court finds appropriate;

And further seeking this Court's entry of an Order granting the following immediate ex-parte relief on an interim basis pending a resolution regarding the Final Relief in Motion Sequence No. 1 (hereinafter "Interim Relief"):

1. ORDERED, that pending the hearing and determination of this Order to Show Cause, the Plaintiff shall have exclusive use and occupancy of the parties' Marital Residence located at [Redacted]; and it is further

2. ORDERED, that pending the hearing and determination of this Order to Show Cause, the Defendant shall vacate the Marital Residence within 24 hours of service upon her of a copy of this Order, and shall be permitted to remove therefrom her clothing, personal effects, professional materials and personal papers; and it is further

3. ORDERED, that pending the hearing and determination of this Order to Show Cause, the parties' children, [Redacted] and [Redacted], shall reside with the Plaintiff at the Marital Residence; and it is further

4. ORDERED, that pending the hearing and determination of this Order to Show Cause, the Defendant's parenting time with the Children shall be supervised, at such times and in such manner as may be arranged by the Plaintiff, who shall not unreasonably withhold such parenting time; and it is further; and

5. ORDERED, that the Police Department of the Town of [Redacted], the Westchester County Police Department, and any other law enforcement agency having jurisdiction, are authorized to assist in the enforcement of this Order, including by keeping the peace during the Defendant's removal of her belongings from the Marital Residence.

PAPERS NUMBERED

Order to Show Cause

Plaintiff's Affirmation in Support

Plaintiff Counsel's Affirmation in Support

Exhibits A-D 1-7  ¹

Relevant Factual and Procedural Background

This matrimonial action was commenced on September 18, 2026, with the filing of a summons with notice (hereinafter "Summons"),² seeking the dissolution of the parties' marriage pursuant to New York State Domestic Relations Law (hereinafter "DRL") § 170(7) based on an irretrievable breakdown of the marriage for a period of at least six months, and further seeking additional ancillary relief including but not limited to sole legal and residential custody of the parties' minor children, to wit: [Redacted] (D.O.B.: XX/XX/XX); and, [Redacted] (D.O.B.: XX/XX/XXXX) (hereinafter the "Children"). The Summons also included the following required matrimonial notices: (1) notice of automatic orders; (2) notice concerning continuation of health care coverage; and, (3) notice of guideline maintenance (hereinafter "Matrimonial Notices").³

Simultaneously, Plaintiff filed a motion by order to show cause being Motion Sequence No. 1,⁴ seeking the above-referenced Final Relief and Interim Relief, as well as a request for judicial intervention.⁵ The undersigned was thereafter assigned to preside over this matter, and on the same date Motion Sequence No. 1 was conformed (hereinafter "Conformed Order"),⁶ by this Court, denying entirely the Interim Relief requested; directing service of Motion Sequence No. 1 on the Defendant via e-mail and text message on or before 6:00 p.m. that day (September 22, 2026); and, further directing the parties to appear on September 23, 2026 at 2:00 p.m. to address the application.

On September 22, 2026, Plaintiff's counsel filed an affirmation of service, confirming that the Summons, Matrimonial Notices, Motion Sequence No. 1 and this Court's Conformed Order were served in accordance with the directives of the Conformed Order.⁷

No other submissions were received with respect to Motion Sequence No. 1.

On September 23, 2026, appearances were made before this Court by Plaintiff, Plaintiff's counsel, and Defendant who following being advised of her right to retain counsel confirmed that she was not an indigent litigant seeking the appointment of counsel and proceeded as a self-represented litigant being provided the following documents which were marked and filed as court exhibits: (1) part rules; and (2) self-represented litigant information sheet.⁸ As noted below, a later appearance was made by the court appointed guardian ad litem for Defendant.

Legal Analysis

1. This Court's Sua Sponte Appointment Of A Guardian Ad Litem.

Several vehicles exist under New York State Law to protect litigants who are either impaired or incapacitated. Pursuant to New York State Civil Practice Law and Rules (hereinafter "CPLR") § 1202, a court may, on motion or sua sponte, appoint a guardian ad litem (hereinafter "GAL") for a litigant:

"(a) By whom motion made. The court in which an action is triable may appoint a guardian ad litem at any stage in the action upon its own initiative or upon the motion of:

1. an infant party if he is more than fourteen years of age; or

2. a relative, friend or a guardian, committee of the property, or conservator; or

3. any other party to the action if a motion has not been made under paragraph one or two within ten days after completion of service.

(b) Notice of motion. Notice of a motion for appointment of a guardian ad litem for a person shall be served upon the guardian of his property, upon his committee or upon his conservator, or if he has no such guardian, committee, or conservator, upon the person with whom he resides. Notice shall also be served upon the person who would be represented if he is more than fourteen years of age and has not been judicially declared to be incompetent.

(c) Consent. No order appointing a guardian ad litem shall be effective until a written consent of the proposed guardian has been submitted to the court together with an affidavit stating facts showing his ability to answer for any damage sustained by his negligence or misconduct."

The appointment of a GAL for a litigant has been held appropriate when a trial court has determined the individual to be in an "apparently chronic irrational and agitated state" resulting in the individual's inability to effectively litigate their case without assistance (Anonymous v. Anonymous, 256 AD2d 90 [1st Dept 1998]).

Here, Plaintiff's counsel engaged in oral argument with respect to the instant application wherein she asserted that the Defendant has spent the last several months prior to the commencement of this action engaging in a roadmap for self-destruction wherein her mental health struggles have resulted in her failure to comply with the treating instructions of her mental health professionals, engaging in yelling within the marital domicile, and expressed her suicidal ideations within her written journal. Plaintiff's counsel asserts that this situation has left Plaintiff concerned about the safety of both herself and the Children, leading her to request the relief sought in Motion Sequence No. 1. In response, Defendant acknowledges that she struggles with her mental health and has disagreed with her medical providers, but asserts that the family has not previously been involved in any intervention by either law enforcement or child protective services. While Defendant further asserts that she is a good mother and fully employed, she confirmed that she has expressed her thoughts about engaging in self-harm within her journals which she indicated was where she felt safe expressing her own thoughts. Defendant presented two documents, each consisting of a single-page, which were collectively marked and filed as a court exhibit (hereinafter "Defendant Letters"), which have been disregarded by this Court as unsworn letters.⁹

Upon inquiry of this Court, Plaintiff's counsel asserted his client's position that Defendant was an impaired person requiring the appointment of a guardian ad litem, and Defendant provided her position that she sought the appointment of a GAL. This Court requested the immediate appearance of [Redacted], who was then appointed as GAL for Defendant. The GAL confirmed that no conflicts of interest existed preventing her consent to the appointment, as did Plaintiff's counsel and Defendant. To effectuate this appointment, a guardian ad litem order of appointment was entered,¹⁰ after which the GAL signed and presented the following documents to the Court which were then filed: (1) a guardian ad litem consent to appointment;¹¹ and, (2) a guardian ad litem financial affirmation.¹²

2. Interim Relief Requested.

a. Exclusive Use and Occupancy of the Martial Residence.

The Appellate Division Second Department has provided guidance with respect to when a trial court may grant a party exclusive use and occupancy of a marital domicile during a matrimonial proceeding, providing:

"Courts are statutorily empowered to award one spouse temporary exclusive use and occupancy of the marital residence during the pendency of divorce proceedings (see Domestic Relations Law § 234). Such an order is appropriate only upon a showing that the relief is necessary to protect the safety of persons or property, or one spouse has voluntarily established an alternative residence and a return would cause domestic strife (see e.g. Taub v. Taub, 33 AD3d 612, 822 N.Y.S.2d 154). In light of the defendant's voluntary establishment of an alternative residence for herself and the existence of an acrimonious relationship between the parties, we agree with the Supreme Court's determination granting that branch of the plaintiff's motion which was for temporary exclusive use and occupancy of the marital residence and denying that branch of the defendant's cross motion which was for temporary exclusive use and occupancy of the marital residence (see Amato v. Amato, 133 AD3d 695, 696, 21 N.Y.S.3d 104)."

(Goldman v. Amramova-Goldman, 185 AD3d 1012 [2d Dept 2020]).

While an award of exclusive occupancy generally requires the court to hold a hearing before making such a determination, such an award may be made without a hearing upon the determination that persuasive evidence exists that such an award is necessary to protect the safety of persons and property (see Formato v. Formato, 173 AD2d 274 [1st Dept 1991]).

Based upon the submissions made to this Court and the oral argument received today, this Court hereby grants Plaintiff interim exclusive use and occupancy of the real property known as [Redacted] (hereinafter "Marital Domicile"), subject to the right of Defendant to appear with law enforcement to remove from the premises the following items: (1) clothing; (2) personal effects; (3) professional materials; and (4) personal papers.

b. Sole Temporary Physical and Legal Custody of the Children.

"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]).

"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]).

"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 DRL § 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]).

Absent evidence of an emergency situation, prior to making a custody determination, even on an interim basis, the Court is required to hold a hearing (Rodger W. v. Samantha S., 95 AD3d 743 [1st Dept 2012]; Lela G. v. Shoshanah B., 151 AD3d 593 [1st Dept 2017]).

Based upon the submissions made to this Court and the oral argument received today, this Court determines that an emergency exists which requires immediate court intervention to protect the safety of the Children and hereby grants Plaintiff interim sole legal and physical custody of the Children.

3. Other Relief.

To the extent any interim relief pending a hearing and determination of Motion Sequence No. 1 has not been addressed herein, it is hereby denied. To the extent any interim relief has been granted herein, it has been granted based upon the Court's determination that an emergency situation exists warranting such relief without having first held a hearing, and that a hearing shall be scheduled to address such relief during the scheduled status conference outlined herein-below.

Based upon the foregoing, it is hereby:

ORDERED that by September 24, 2026, [Redacted] shall register as a NYSCEF user in this action in the capacity as GAL for Defendant; and it is further

ORDERED that Motion Sequence No. 1 is granted to the extent that the Interim Relief requested therein is granted to the extent set forth herein; and it is further

ORDERED that Motion Sequence No. 1 shall be subject to the following briefing schedule: (1) October 2, 2026, shall be the deadline for Defendant to file and serve via e-mail any answering submissions and/or cross motions to Motion Sequence No. 1; (2) October 9, 2026, shall be the deadline for Plaintiff to file any answering submissions to any cross motions filed, with no reply submissions being accepted, and this date serving as the return date for Motion Sequence No. 1 and any cross motions filed with no appearances required; and it is further

ORDERED that, a status conference shall be held on October 16, 2026, at 9:00 a.m., wherein all parties, counsel and the GAL shall appear to for a preliminary conference at which time a hearing shall be set forth pertaining to the interim relief requested; and it is further

ORDERED that Plaintiff's counsel shall serve via e-mail a copy of this Decision and Order with Notice of Entry by September 24, 2026, and shall file an Affidavit of Service on NYSCEF by that date; and it is further

ORDERED that Plaintiff's counsel shall order a copy of the Court Transcript from the September 23, 2026 appearance, shall pay the entire cost of same, and shall submit same to be so ordered by October 23, 2026; 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: September 23, 2026

White Plains, New York

ENTER:

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

FOOTNOTES

1.   Note: While no responsive submissions were received pertaining to the ex parte relief sought, both parties appeared on the return date and engaged in oral argument as to the relief requested.

2.    See, NYSCEF Doc. No. 1.

3.    See, NYSCEF Doc. No. 1, Pgs. 3-5.

4.    See, NYSCEF Doc. Nos. 2-8.

5.    See, NYSCEF Doc. No. 9.

6.    See, NYSCEF Doc. No. 12.

7.    See, NYSCEF Doc. No. 13.

8.    See, NYSCEF Doc. Nos. 14 & 15.

9.    See, NYSCEF Doc. No. 19; Note, unsworn letters are inadmissible and must be disregarded pursuant to well-settled law.

10.    See, NYSCEF Doc. No. 16.

11.    See, NYSCEF Doc. No. 17.

12.    See, NYSCEF Doc. No. 18.

James L. Hyer, J.