S.K., Plaintiff, v. A.K., Defendant. (2026)

This Court is called upon to determine whether to grant the plaintiff-mother's order to show cause seeking to admit the one hundred and eighty-four (184) page forensic report of the court appointed forensic evaluator into evidence subject to cross-examination where the defendant-father is seeking a post-judgment change in parenting time and to determine whether to grant the defendant-father's ADA accommodation request to appear virtually for his testimony and cross-examination based upon his allegation that, inter alia it is mentally challenging for him to appear in-person in an open courtroom where the plaintiff-wife is also present.

Background (Marriage, Divorce and Children)

The parties married in New York in October 2003. Plaintiff-mother commenced a divorce action on July 30, 2019. The parties resolved the divorce action by a Stipulation of Settlement, dated March 4, 2021. A Judgment of Divorce was signed by this Court on May 26, 2021, which incorporated but did not merge the Stipulation of Settlement.

At the time of the Judgment of Divorce, both parties represented that they were living in New York. In or about the Fall of 2021, approximately six (6) months after the parties entered into the Stipulation of Settlement, the defendant-father relocated to Florida without prior notice.

There are six (6) children of the marriage: three (3) of the children are emancipated. The parties' remaining three (3) unemancipated children reside with the plaintiff-mother in Brooklyn, New York: a son, born in September 2009; a daughter, born in May 2011; and a son, born in September 2016.

Plaintiff contends that the father's unilateral relocation causes her and the children hardship because defendant would not travel to New York for parenting time with the children despite him being able and willing to travel to New York for other purposes. Defendant contends that plaintiff is interfering with his parenting time, inter alia, because she is not satisfying his demands related to bringing the children to him for parenting time in Florida.

Legal Representation

Plaintiff is represented by Sanctuary for Families and defendant appears self-represented. At each appearance, the Court has informed the defendant of the risks of representing himself, his right to retain counsel, and the Office of Self Represented and resources available at www.nycourts.gov. The defendant has steadfastly refused to accept the assignment of counsel and has chosen to represent himself. He declined on the record the possibility of exploring whether he was eligible for assignment of government-paid court-appointed counsel because he represented that he did not want to disclose his income and financial resources at that time.

Based on the conflicting interests and divergent desires of the children, there are three (3) attorneys for children appointed government-pay, pursuant to Judiciary Law 35: one child is represented by Martha Schneiderman, Esq. [NYSCEF #147]; one child is represented by Sonali Leslie-Hopkins, Esq. [NYSCEF #155]; and one child is represented by Adetokunbo Oseni, Esq [NYSCEF #203] (see generally Sandiaes v Sandiaes, 239 AD3d 1011 [2 Dept., 2025][finding that it was error for the trial court not to appoint a separate attorney to represent some of the children where there was a conflict of interest in one attorney representing all of the children who did not share the same position regarding custody].

The plaintiff and the three (3) attorneys for the children have, for the most part, appeared in-person. There was also a prior attorney for the child appointed for another child who emancipated at the age of eighteen (18) during this post-judgment litigation. Additionally, Ms. Hopkin was named successor attorney for the child after the previous attorney for the child was no longer on the panel due to medical reasons.

Prior Virtual Appearances

Previously in this post-judgment litigation, the Court granted the defendant the ability to appear virtually as an ADA accommodation based on his representations and supporting documentation that he provided at that time [NYSCEF #204]. Subsequently, the Court granted defendant the ability to appear virtually during plaintiff's testimony and cross-examination as a logistical accommodation because defendant lives in another state and because due to the schedules of the numerous assigned counsel the Court often must continue this trial in shorter time slots to find dates and times when everyone is available. However, as this litigation proceeded it become clear that the defendant was traveling to New York State and also had come to the courthouse for other purposes it appeared that the prior representations by defendant that he could not travel and then that he specifically could not travel to New York State or come to the courthouse may require renewed consideration based upon the objections set forth.

Plaintiff's Order to Show Cause [June 2026; NYSCEF #126]

This post-judgment litigation was initiated by plaintiff filing an Order to Show Cause for Modification, dated June 20, 2023, seeking an order for the following relief [NYSCEF #126]:

"1. Modifying the visitation provision(s) of the parties' Stipulation of Settlement and resultant orders, including the Defendant's parenting time and the Plaintiff's prohibition on relocation, based upon a change of circumstances, including but not limited to, the Defendant's alienation of the Subject Child(ren), and the relocation of the Defendant to the state of Florida; and

2. Granting Plaintiff such other and further relief as the Court deems just and proper."

Plaintiff alleges that both parties lived in New York at the time they entered into the Stipulation of Settlement and that the parenting time schedule was predicated on both parties continuing to live in Brooklyn [NYSCEF #184]. In his March 28, 2025, opposition to plaintiff's application [NYSCEF #189], defendant avers that, "at the time of signing the Stipulation of Settlement, I had no permanent residence in New York and I was not spending most of my time physically located in New York." [NYSCEF#189, page 2]. Notwithstanding the defendant's assertion, the Court notes that in the parties Stipulation of Settlement, the defendant is listed as residing at a Brooklyn, New York address [NYSCEF #185, page 1].

Plaintiff contends that defendant's unilateral relocation to Florida and current refusal to travel to New York for parenting time with the children, causes disruption and instability in her and her children's lives because the children are now forced to travel to Florida to have parenting time with the defendant and, given some of their ages and needs, they cannot travel alone. It is undisputed that the defendant refuses to agree to travel to New York to see the children based upon his alleged disability.

Defendant opposes the plaintiff's application alleging, inter alia, that the plaintiff has interfered with his parenting time since the divorce: he contends that he attempted to schedule overnight visitation with the children throughout the summer of 2021 but that the plaintiff would not cooperate. The defendant did not seek judicial intervention or enforcement at that time. He further alleges that when the Parenting Coordinator, who was agreed to by both parties in the Stipulation of Settlement, resigned after the Stipulation was signed, he tried to find a replacement Parenting Coordinator but, he alleges, the plaintiff again refused to cooperate. Again, the defendant did not seek judicial intervention or enforcement at that time. Instead, it is undisputed that the defendant unilaterally relocated to Florida approximately six (6) months after the parties were divorced.

Defendant contends, in effect, that because of what he characterizes as a deterioration of the parties' ability to communicate, and a perceived inability to cooperate about an adjusted parenting time schedule after he relocated to Florida, his physical and mental health began to deteriorate which, he contends, is the primary reason he must seek an ADA accommodation to appear virtually to litigate the custody and parenting time issues pending before the Court.

Both parties sought numerous adjournments prior to the hearing indicating that they were engaging in mediation and close to resolving the custody and parenting time issues. When no resolution was reached, the Court began an evidentiary hearing on the plaintiff's application related to changing the defendant's parenting time on December 3, 2024. The Court has heard testimony on numerous dates; however, the trial has not concluded because there have been numerous adjournments of the ongoing trial due, inter alia, to adjournment requests on consent, technological challenges due to defendant appearing virtually and adjournments necessitated due to medical situations, technical difficulties to accommodate defendant's prior virtual appearances as well as the logistical calendaring challenges presented by having numerous court-assigned counsel who all have overlapping Family Court commitments.

Forensic Evaluator Appointment

Prior to the hearing, neither party had requested a forensic evaluation; however, after the Court learned during the plaintiff-mother's testimony that one of the children had been placed in a residential facility due to mental health and safety concerns and another was refusing to go to school the Court stayed the on-going evidentiary hearing and appointed Dr. Mark J. Rand to conduct a forensic evaluation by court order dated March 18, 2025 (see generally Sandiaes v Sandiaes, 239 AD3d 1011 [2 Dept., 2025]).

The forensic evaluation was completed and Dr. Rand issued a forensic report. In order to complete the evaluation, Dr. Rand informed the Court on the record with all parties and counsel present that he was delayed in interviewing the defendant-father as he was awaiting licensure approval from the State of Florida to conduct virtual interviews with the defendant based on the defendant's assertion that he could not travel to New York for the forensic evaluation, inter alia, because it was too stressful for him to travel to New York State due, in part to the stress of this litigation. The Court notes that thereafter, defendant traveled to New York to participate in the forensic evaluation.

Dr. Rand has long been scheduled to appear for cross-examination on October 9 2026 and October 13, 2026. Defendant-father seeks an ADA accommodate to appear virtually during any cross-examination of Dr. Rand and to present his case and be subject to cross-examination virtually.

Plaintiff's Order to Show Cause, dated July 13, 2026 [NUSCEF #213]

Plaintiff seeks an order of the Court that:

a. That the forensic evaluation report prepared by Dr. Mark Rand and submitted to this Court on October 15, 2025, is admissible as an export report in whole at trial upon Dr. Rand's testimony and availability for cross-examination by Defendant Father and the Attorney(s) for the Children; and

b. Grant such other and further relief as this Court deems just and proper.

Plaintiff's counsel argues that the forensic report prepared by Dr. Rand, the neutral forensic expert appointed to evaluate the family and to consider the interrelationship of the parties, the children, and the proposed parenting arrangements' impact on the children, if any, should be admitted into evidence without redaction because Dr. Rand will be available for cross-examination. She argues that the exclusion of the hearsay statements throughout the Report, or a partial redaction thereof, prevents the Court from reviewing exactly what the expert believes was necessary to make a proper determination and that redaction of any professionally reliable hearsay would deprive the Court of highly probative evidence resulting from its own court-appointed forensic evaluator concerning matters at the heart of the issues to be decided [NYSCEF #209].

Ms. Schneiderman, Esq., who is court-appointed to represent one of the minor children, supports plaintiff's application that the forensic report be admitted subject to cross-examination. She argues that defendant's claim that he did not have a meaningful opportunity to review the forensic report is not supported by the record because "Defendant declined the opportunity to review the rep ort in the courtroom in New York" and the "Court subsequently permitted Defendant to review the report with an attorney in Florida who is licensed to practice law in the State of New York, and Defendant availed himself of that opportunity" [NYSCEF #222, p. 4]. Defendant concedes that he was given the opportunity to review the report in an attorney's office in Florida (this attorney is admitted to practice in New York, as well) [NYSCEF #220, p. 5]. The Court notes that this was defendant's assertion as to remedy the issue of access to the report and the Court granted this application over the objection of the plaintiff.

Attorney for the Child Supports Admission of the Forensic Reports Subject to Cross-Examination

Ms. Schneiderman argues that the forensic report "demonstrates that Dr. Rand's conclusions are primarily based upon his firsthand interviews of the parties, interviews of the children and his direct observations of each party with the children" and that the "remedy of any untested collateral hearsay is for the court to strike those portions in its determination after cross-examination, not redaction before Dr. Rand is questioned about them" [NYSCEF #222, p. 4].

Defendant Opposes Admission of the Forensic Report Subject to Cross-Examination

Defendant contends that it would be improper for the Court to allow Dr. Rand to testify because plaintiff did not disclose Dr. Rand as an expert witness pursuant to CPLR 3101. Defendant also contends that Dr. Rand's report is "incomplete" and, therefore, should not be admitted into evidence at all as an expert witness report. He argues that the report was "not the subject of expert testimony, contains hearsay, represents an incomplete investigation, and the Defendant did not have equal access to the materials necessary to prepare for trial" [NYSCEF #220, p. 7]. Defendant also contends that plaintiff has not established that Dr. Rand is an expert.

In support of his contention, defendant alleges that Dr. Rand did not contact some collateral witnesses he believes should have been contacted and that, as a result, the forensic report "is incomplete and unbalanced" [NYSCEF #220, p. 3]. Defendant identifies several individuals whom he believes should have been collateral interviews in Dr. Rand's evaluation. Notwithstanding this objection, defendant is also critical of the length of the report contending that he is prejudiced because the report is so "voluminous" and that it includes so many transcripts of interviews with collateral sources [NYSCEF #220, p. 4].

Plaintiff's Reply

Plaintiff disputes defendant's contention that Dr. Rand is not an expert: she contends that all parties were included in the selection of Dr. Rand and that defendant participated in the forensic evaluation. She also contends that defendant has had a full and fair opportunity to review the forensic both in-person in the courtroom and in Florida in his (limited scope) attorney's office, which is the same level of access that the plaintiff has to the report.

The Law

Admission of Expert Reports in Matrimonial Cases

22 NYCRR 202.16(g)(2) governs a party's use of an expert/expert report in matrimonial actions and provides:

(2) Each expert witness whom a party expects to call at the trial shall file with the court a written report, which shall be exchanged and filed with the court no later than 60 days before the date set for trial, and reply reports, if any, shall be exchanged and filed no later than 30 days before such date. Failure to file with the court a report in conformance with these requirements may, in the court's discretion, preclude the use of the expert. Except for good cause shown, the reports exchanged between the parties shall be the only reports admissible at trial. Late retention of experts and consequent late submission of reports shall be permitted only upon a showing of good cause as authorized by CPLR 3101(d)(1)(i). In the discretion of the court, written reports may be used to substitute for direct testimony at the trial, but the reports shall be submitted by the expert under oath, and the expert shall be present and available for cross- examination. In the discretion of the court, in a proper case, parties may be bound by the expert's report in their direct case.

Here, the expert in question is not one called by either party. Dr. Rand, who is on the approved panel of the Appellate Division, Second Department, was appointed by the Court as a neutral expert and he completed the forensic report in that capacity. As such, this scenario is governed by 22 NYCRR 202.18 (Testimony of court-appointed expert witness in matrimonial action or proceeding) which provides, as relevant here:

In any action or proceeding tried without a jury to which section 237 of the Domestic Relations Law applies, the court may appoint a psychiatrist, psychologist, social worker or other appropriate expert to give testimony with respect to custody or visitation . In the First and Second Judicial Departments, appointments shall be made as appropriate from a panel of mental health professionals pursuant to Parts 623 and 680 of this Title. The cost of such expert witness shall be paid by a party or parties as the court shall direct.

Forensic Report May Be Admissible Where the Expert is Available for Cross Examination

It is well-established that " [i]n custody disputes, the value of forensic evaluations of the parent and children has long been recognized and the opinions of forensic experts should not be readily set aside unless contradicted by the record" Ekstra v. Ekstra, 78 AD3d 990, 912 N.Y.S.2d 592 [2d Dept 2010] (quoting Matter of Volpe v. Volpe, 61 AD3d 691, 692, 878 N.Y.S.2d 72 [2d Dept 2009]). "Although forensic evaluations are not always necessary, such evaluations may be appropriate where there exist sharp factual disputes that affect the final determination." Chu v. Chu, 224 AD3d 653, 205 N.Y.S.3d 425 (2d Dept 2024); (Matter of Brown v. Simon, 123 AD3d 1120, 1122, 1 N.Y.S.3d 238)

"A court is not automatically required to accept the recommendation of a court-appointed forensic evaluator but must consider all of the relevant evidence. Moreover, in considering a forensic evaluator's recommendation, the court must take into account the quality of the evaluator's methods and report." Ambrose v. Ambrose, 176 AD3d 1148, 113 N.Y.S.3d 106 (2d Dept 2019).

In Strauss, the First Department found that a forensic report was admissible when the expert's conclusions and the primary source of the report was based on firsthand interviews with the party. Strauss v. Strauss, 136 AD3d 419, 24 N.Y.S.3d 76 (1st Dept 2016). Furthermore, the admissibility of expert opinions based on out-of-court material depends, in part, on whether the source of that material is available for cross-examination. The court noted that since the defendant intended to call as witnesses the individuals interviewed by the expert, thereby making those declarants available for cross examination, it rendered admissible any opinion evidence based on their statements. Id. However, the First Department recognized, "to the extent that any hearsay declarants are not cross-examined, the motion court acknowledges that those portions of the report containing inadmissible hearsay should be stricken or not relied upon." Id.

It is also well established that the Appellate Division Second Department declines to strike forensic reports where no deficiency is shown. In E.V. c. R.V., the Appellate Division, Second Department affirmed the Supreme Court's ruling denying plaintiff's motion to strike the updated forensic report, as the "plaintiff failed to identify any deficiency in the updated forensic mental health evaluation conducted by the forensic evaluator that would warrant such relief." E.V. v. R.V., 153 AD3d 580, 60 N.Y.S.3d 221 (2d Dept 2017).

Hearsay

Hearsay contained in a forensic report prepared by a court-appointed neutral is not automatically subject to redaction; rather, such material can be admitted without objection or over objection, depending on the circumstances of the case. In Ashmore v. Ashmore, the Appellate Division, Second Department rejected the father's contention that the Supreme Court erred in admitting the forensic report and testimony of the forensic evaluator because the report contained hearsay (92 AD3d 817, 939 N.Y.S.2d 504 [2d Dept.,2012]) finding that "[a]lthough the collateral witnesses did not testify at trial, the forensic evaluator testified at trial that her conclusions were based on her interviews with the parties and the children." Id. The Appellate Division also noted that some of the evidence from the collateral witness was separately admitted at trial through other witnesses. Id. Therefore, despite the presence of collateral hearsay, admission of the report was proper because the expert testified and the conclusions in the report were rested on direct interviews. Id.

Similarly, in Lubit v. Lubit, the Appellate Division, First Department held that, "the testimony of the expert was admissible since the expert opinion was primarily based upon direct knowledge derived from the expert's psychiatric interviews of the parties and their children, alone and in combination" (65 AD3d 954, 885 N.Y.S.2d 492 [1st Dept.,2009]; see also Balsz v. A & T Bus Co., 252 AD2d 458, 675 N.Y.S.2d 604 [2d Dept.,1998]). In Lubit, the Appellate Division recognized that even where a forensic report incorporates inadmissible hearsay, reversal is not required if the remaining admissible evidence sufficiently supports the trial court's determination and found that "[t]o the extent that the expert's report may have incorporated inadmissible hearsay, we find that the admissible evidence in the record, including the portion of the expert's report that did not include hearsay, was sufficient to support the trial courts conclusion" (id.).

None of the challenges defendant raises at this time are a basis to preclude the report from coming into evidence; however, they may be the subject of cross-examination of Dr. Rand at trial subject to any appropriate objection(s) and/or offers of proof. In effect, defendant is challenging the basis and reliability of Dr. Rand's opinions, which are issues that go to the weight of the report, not admissibility. Both parties and the attorneys for the children will have a full and fair opportunity to cross-examine Dr. Rand regarding the scope of the evaluation, the information he considered, and the basis for his conclusions subject to objection and offers of proof. After cross-examination, the Court can determine what weight, if any, to give Dr. Rand's opinions. Additionally, if there are individuals whom defendant believes are necessary witnesses to the issues before the Court he can call them as direct witnesses irrespective of whether they were part of Dr. Rand's evaluation, subject to objection and/or other of proof.

The Court has notified defendant on the record of his right to seek counsel at each court appearance. Defendant has been given the opportunity to obtain private counsel and/or to provide financial disclosures so that the Court could ascertain whether he was eligible for court-assigned counsel on the issues of custody and parenting time. Defendant has steadfastly elected not to obtain counsel to represent him and he has refused the opportunity to reveal his financial circumstances. As such, at this time there is nothing to suggest that the defendant is unable to retain another attorney who could appear in Court on his behalf to obtain a copy of the report and/or to conduct the cross-examination. Defendant cannot utilize his apparent voluntarily decision not to obtain counsel — where he has also refused to reveal his financial circumstances — as a basis to assert that the forensic report should not be admitted into evidence subject to cross-examination. Defendant has the right to represent himself; however, he cannot elect to represent himself when he could retain or, if he disclosed his financial means and was found eligible, be assigned counsel and then claim that he is prejudiced based upon not being represented by counsel.

To adopt defendant's argument would be tantamount to granting any self-represented litigant the "veto" power to keep any neutral forensic report they believed was not favorable to them from being part of the trial record. Furthermore, there is no obligation for a forensic expert to interview every provider and/or person who has had any meaningful contact with a child: to require that would in many cases create an insurmountable time and financial burden. The Court notes that the forensic evaluator, at this time, is being paid for by the State of New York subject to reallocation.

The Defendant's ADA Accommodation Request, dated August 6, 2026

By e-mail dated August 6, 2026 at 9:24 a.m. defendant requested an ADA accommodation to appear virtually for the trial dates of October 9, 2026 and October 13, 2026 and for "any future appearances". Dr. Rand has long been scheduled for cross-examination related to the forensic report he provided in this case on October 9, 2026 and October 13, 2026.

During this ongoing litigation, the Court learned through testimony that the defendant is in fact traveling to New York State to meet with the forensic evaluator and came to the courtroom to review the report in person even though the Court had made an accommodate for him to have access to review the report in an attorney's office in Florida. It is also clear from the record so far that the defendant also travels extensively to other States and has traveled internationally during this litigation for recreational purposes including to run road races.

Defendant affirms in his affidavit in support of his August 6, 2026 request for an ADA accommodation to appear virtually for all future trial dates that he can now come to New York State and he can enter the courtroom when the trial is not going on but that he cannot participate in-person for the trial because that is stressful:

I am generally able to function in daily life, including caring for my children. However, my physical and psychological conditions are significantly exacerbated by required interstate travel for litigation and in-person court appearances. Court-related travel and participation in the courtroom, particularly in a trial setting, trigger a substantial increase in psychological distress and physical symptom burden, which interferes with my ability to participate effectively in proceedings. The demands and intensity of an in-person trial environment are materially different and significantly more triggering for my conditions [undated affidavit annexed to August 6, 2026 e-mail request, p. 1].

ADA Accommodation: Standard of Review

The Rules of the Chief Judge 22 NYCRR § 52 provides in relevant part:

"(a) with respect to an accommodation that can be granted only by a judge or judicial officer, a person with a disability, as defined by the Americans with Disabilities Act (42 USC, ch 126, § 12101 et seq.), may apply for one on an ex parte basis. An ex parte application for reasonable accommodation shall:

(1) be in writing;

(2) state the disability and explain how it limits the person's ability to meaningfully participate in the proceedings;

(3) state the accommodation sought and explain why the accommodation is needed;

(4) in no manner refer to the subject matter or merits of the proceeding that is before the court in which the accommodation is sought;

(5) contain an acknowledgement that the requestor is aware that if upon reviewing the ex parte application the court finds that subsection (d)(1) of this Part applies to the request, some disability-related information will need to and shall be disclosed to other parties as a result of making the application, even if the application is withdrawn prior to being decided by the court; and

as provided for by CPLR 2217(b), be accompanied by an affidavit stating the result of any prior application for similar relief and specifying the new facts, if any, that were not previously shown."

NY Comp. Codes R. & Regs. Tit. 22 § 52

Under 22 NYCRR 52, a person with a disability, as defined by the Americans with Disabilities Act (42 USC, ch 126, § 12101 et seq.), may apply for a reasonable, judicial accommodation on an ex parte basis. Under 42 U.S. Code § 12102, the term "disability" is broadly defined as "a physical or mental impairment that substantially limits one or more major life activities," where a "major life activity include[s], but [is] not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working." 42 U.S. Code § 12102 (2018). Further, the ADA Amendments Act of 2008 explains that the term "substantially limits," is not intended by Congress to be significantly restrictive or demand extensive analysis. ADA Amendments Act of 2008, Pub. L. No. 110 325, § 2, 122 Stat. 3553, 3553—54 (2008) (codified as a note under 42 U.S.C. § 12101).¹

Public Policy:

22 NYCRR 52 promotes access to justice and fairness among litigants, by creating confidential procedures for individuals with invisible disabilities seeking reasonable accommodations, while providing protection to the other party's due process rights by providing narrow exceptions for disclosure, including when a Court finds that the information within an applicant's request is "germane" and necessary to the Court's determination of the merits and the information is not already a part of the record and will otherwise likely not become part of the record before it.

Disclosure

Defendant moved for custody of one of the children in the middle of this post-judgment proceeding but, after the forensic report was issued, he withdrew that request. At this time, parenting time and location together with travel arrangements appear to be the remaining issues. Plaintiff's counsel and the attorneys for the children have steadfastly maintained that the defendant is seeking a change of custody and his medical and/or physical condition may directly relate to his application.

The Court directed the disclosure of defendant's request pursuant to 22 NYCRR § 52(d)(1), which provides, in pertinent part:

(d) The ex parte application and all material submitted in support shall be kept confidential by the court and not be disclosed by the court to other participants in the proceeding or the public, except in the following limited circumstances and under the following conditions:

(1) the ex parte application or supporting material contains information about a party's disability that:

(i) the court believes is both germane and necessary for the court to consider in determining the merits of the underlying matter before it; and (ii) is not otherwise part of, nor likely to become part of, the record before it.

In this circumstance, disclosure by the court to other parties and counsel is required [emphasis added], but shall be limited to the existence of the application and the pertinent information, and shall not entitle any other party to be heard on the accommodation application itself; [ ]

The defendant's initial request for parenting time in Florida was based on his claim that his alleged disability prevents him from living in or traveling to New York, and, in effect, that meaningful parenting time can only occur if the Court grants his application for parenting time in Florida. Notwithstanding this claim, defendant has subsequently conceded that he has traveled to New York State during this litigation for numerous purposes although still maintaining that he is unable to appear in-person for trial.

An ex parte application for judicial accommodation and its corresponding materials are confidential and not to be shared with other participants in the proceeding or the public (see 22 NYCRR § 52(d)(1) [2024]). However, the rule requires the Court to disclose the application and its pertinent information, without entitling "any other party to be heard on the accommodation application itself," if the application contains information "(i) the court believes is both germane to and necessary for the court to consider in determining the merits of the underlying matter before it; and (ii) is not otherwise part of, nor likely to become part of, the record before it." Ibid. Here, defendant acknowledged in his application that such disclosure was possible both in written applications and on the record.

Additionally, while there are numerous factors in any parenting time modification determination, these factors include "the ability of each parent to provide for the child's emotional and intellectual development" (Krebsbach v. Gallagher, 181 AD2d 363, 364—65 [2d Dept.,1992] (citing Porges v. Porges, 63 AD2D 712, 713)) and "the relative fitness of the respective parents" (id., citing Matter of Nehra v. Ular, 43 NY2D 242)).

Under the facts and circumstances presented, the Court found that the alleged mental health conditions asserted in defendant's requests were germane and necessary to the underlying issue of a custody modification determination, requiring disclosure under 22 NYCRR § 52(d)(1) and a redacted copy was circulated on notice to all. This redaction excluded any representations related to conditions that did not appear germane to parenting time.

Defendant's Ability to Travel

This Court issued a prior written decision dated July 14, 2025 [NYSCEF #204] related to defendant's prior requests to appear virtually. That decision must be read in conjunction with this decision for the full procedural background, including the defendant's apparent ability to travel extensively and for many other purposes other than the limited purpose of appearing in-person for this trial related to custody and parenting time which was only revealed after that decision was issued.

Throughout this post-judgment litigation, defendant has refused to appear in-person asserting that he cannot appear in-person based on a wide array of shifting explanations from it being too traumatic for him to appear in a room with the plaintiff-mother, to alleging he has a disability that prevents him from traveling specifically to New York (but apparently nowhere else) all while alleging that this disability does not affect his ability to physically or mentally care for the children while they are with him in Florida

In his most recent request, dated August 6, 2026, the defendant concedes that he has previously traveled extensively both to New York State and to other States and internationally but, he contends, that travel was:

for limited purposes, including business, visitation, meeting with the court-appointed forensic evaluator, and briefly accessing an empty courtroom to review materials. However, there is a substantial difference between those limited, time-bound activities and the demands of in-person court proceedings" [undated affidavit submitted by e-mail with defendant's request, p. 2].

Defendant contends that being required to appear for trial in-person "substantially increases psychological stress" for him. Defendant did not provide any documentation from any mental health or medical providers in support of his contention that he cannot appear in-person for the trial.

Financial Impact of In-Person Appearance

Defendant also contends that appearing in-person would "impose a substantial logistical and financial burden" on him. The Court notes that the defendant has repeatedly declined to reveal his financial circumstances or submit an affidavit of net worth in this matter related to the Court's inquiry as to whether he was financially eligible for appointment of court-assigned counsel to represent him. As such, the defendant has not shown that any financial hardship limits his ability to travel. In fact, the defendant concedes in his affidavit that he has traveled electively to travel internationally and to travel to other States to participate in road running events during this post-judgment litigation and that he met with one of his children in California, so without any updated financial documentation from defendant to show otherwise, his claim that he cannot afford to come to New York appears dubious. The challenges to travel that he described in his prior accommodation were subsequently belied by the travel and trips he has made since that time.

Defendant's Ability to Travel

As detailed in the prior written decision dated July 14, 2025 [NYSCEF #204], defendant has traveled extensively during this litigation both to other states and to other countries, while asserting that he cannot appear in-person for this trial. Initially, defendant asserted that he was "too stressed" to travel to New York; however, after it was revealed that he had traveled to New York for other purposes, defendant changed his claim that he can travel to New York and he can come to the courthouse and to the courtroom but only if it is not when the trial is taking place. At times, defendant contends that the stress is related to being physically in the same room as the plaintiff and at other times it is merely being in-person in a room where a trial is happening. The crux of defendant's argument for why he should be granted an ADA accommodation to appear virtually for Dr. Rand's cross-examination and for his own testimony and cross-examination appears to be a claim that it is, in effect, "too stressful" to participate in-person for a trial. Defendant provided no other documentation in support of his assertion

Other than the assertion that there is a generalized "stress" of appearing in-person to participate in post-judgment custody and parenting time litigation the defendant has not offered any specific allegation that would substantiate an ADA accommodation. The litigation process often includes generalized uncertainty, anxiety and/or certain stressors for many litigants. This litigation involves custody and parenting time and, as such, the Court must weigh the general stress that appearing in-person may cause defendant with the best interests of the children. Given the facts and circumstances presented, including defendant's own assertions about his physical and mental well-being, this Court finds that it is in the children's best interest that the defendant appear in-person for his testimony and cross-examination so that his claims may be scrutinized. The Court cannot merely accept the defendant's self-serving assertion that he is "generally able to function in daily life, including caring for my children" when he cannot handle the stress of appearing in a civil courtroom for a few hours at a time related to issues of custody and parenting time. The plaintiff and the attorneys for the children have axiomatical obligation to test this part of defendant's claim now that it has been raised.

Technological Challenges

The defendant's participation by video link has been plagued by technological challenges. These technological challenges have caused delays in this matter including that it has been challenging to control the record given defendant's rapid speed of talking and talking over the Court and others either intentionally or because of technological delays in audio, issues with open microphones and defendant repeated, often irrelevant, objections have all caused delays. Many of these delays would be obviated if defendant was present in the courtroom.

Positions of The Attorneys For the Children

In open court on the record the attorneys for the children all opposed or took no position as to the defendant's application to continue appearing virtually.

Plaintiff's counsel requested additional time — until September 15, 2026 — to respond due to travel plans and at least one of the attorneys for the children being out of the country, which was granted; however, no further written positions were provided to the Court.

Generalized Stress of Trial: Not A De Facto Basis for ADA Accommodation

The Court recognizes that litigants in a contested matrimonial proceeding may often experience heightened levels of uncertainty and anxiety. Generalized stress and/or any general discomfort of participating in-person to litigate a divorce proceeding is not a sufficient basis alone to substantiate an ADA accommodation particularly where, as is the case here, the allegations of the impact of that generalized stress on the individual assert it may have a direct and "germane" impact on the issues before the Court.

Considering the totality of the circumstances and the information provided in defendant's current and past requests, in addition to the specific language in 22 NYCRR § 52 and 42 USC, ch 126, § 12101, this Court finds that the defendant has not satisfied the requirements set forth under NY Comp. Codes R. & Regs. Tit. 22 § 52 for an ex parte judicial accommodation and therefore denies his request to appear virtually for Dr. Rand's cross-examination and for his own direct testimony and any cross-examination and/or redirect testimony he may have subject to future application or court order.

It is well-established that the paramount consideration in custody modification determinations is the best interest of the children (see Krebsbach v. Gallagher, 181 AD2d 363, 364—65 (2 Dept.,1992), citing Eschbach v. Eschbach, 56 NY2d 167 [1982]; Friederwitzer v. Friederwitzer, 55 NY2d 89 [1992]; Keating v. Keating, 147 AD2d 675 [2 Dept.,1989]). The litigation surrounding defendant's ex parte request for judicial accommodation has consumed significant time for both parties.

The Court is aware that Dr. Rand has been scheduled to testify on October 9, 2026 and October 13, 2026 for quite some time and that scheduling this time required extensive efforts. The Court also understands that, at this time, Dr. Rand's time is being paid pursuant to Section 35 of the Judiciary Law [NYSCEF #188] and that conducting any cross-examination of Dr. Rand will be much more efficient if done in-person. Given defendant's stated objections to Dr. Rand's forensic report it appears that defendant will want a full opportunity to cross-examine Dr. Rand without any potential delays.

Here, defendant failed to explain how his asserted mental health challenges specifically relate to being in the same room with the plaintiff or how what he alleges he experiences is any different from the general stressors that any litigant may feel during a contentious divorce or post-judgment litigation. This Court believes that it is in the best interests of the children that the hearing on the issues presented continue as soon as practicable now that the forensic evaluation is completed.

There are currently three (3) government-paid assigned counsel representing the unemancipated children and the plaintiff is represented by Sanctuary for Families: given the scheduling demands inherent with this representation it is challenging to schedule trial dates.

The Court denies the defendant's application to appear virtually for Dr. Rand's cross-examination and/or for defendant's direct and/or cross-examination and any redirect, without prejudice to future applications or to Court order and the Court may on its own or by way of application reexamine if the facts and circumstances remain for the continuation of the ADA accommodation. The Court made it clear that the last few virtually appearances were not ADA accommodations but rather logistical accommodations for defendant given his location and the inability to go day to day due to scheduling. To address any travel challenge, the Court has scheduled multiple successive days for cross-examination of Dr. Rand which obviates any need to travel back and forth for these appearances. The Court will also schedule multiple days for defendant's testimony and cross-examination and any redirect to avoid numerous trips.

Recently, attempting to raise the issue of child support during the trial, the defendant asserted he was trying to avoid ten (10) years of litigation. The Court notes that the defendant cannot continue to appear virtually while traveling to New York State and to other places but selectively alleging that appearing in-person for this litigation is "too much" and is not a basis, without anything more under these facts and circumstances, for an ADA accommodation.

If every individual could avoid appearing in person merely by asserting that coming to Court causes them angst and psychological stress it is likely that few matrimonial actions would proceed in-person.

The Court will establish a protocol for defendant to wait in a different location in the courthouse before the case is ready to be called so that the plaintiff can enter the courtroom before defendant is notified to enter the courtroom and, at the end of the day, will allow him to wait in the courtroom for a defined period of time to allow the plaintiff to leave the courtroom separate and exit the courthouse to avoid the parties inadvertently encountering one another in the courthouse.

Conclusion

Plaintiff's Order to Show Cause [mot. seq. #15] is granted to the extent.

Defendant's August 6, 2026 application for an ADA accommodation is denied.

Any relief requested not specifically granted is denied.

This shall constitute the decision and order of the Court.

ENTER:

HON. JEFFREY S. SUNSHINE

J.S.C.

FOOTNOTES

1.   Read together with 42 U.S. Code § 12102(4)(C), which states in relevant part that "an impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability," the statutory framework appears to reflect an inclusive threshold for establishing a disability. 42 U.S. Code § 12102 (2018).

Jeffrey S. Sunshine, J.