NO MORE NOTARIES NEEDED FOR COURT

This was noted by a post in November and now, as a reminder, CPLR 2106 was recently amended. The new version will go into effect on January 1, 2024 so it's time to update forms.

CPLR 2106. Affirmation of truth of statement.

The statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in New York in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form:

I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.

(Signature)

At this point, I intend to use the following forms, one for myself as attorney incorporating the new language, and the others for clients and non-attorneys incorporating the new language:

Attorney Form:

JON M. PROBSTEIN, who is an attorney duly admitted to practice before the State of New York and the Commonwealth of Massachusetts and who is filing this document in a court of law. affirms this ___ day of _____, _____, that the following is true under the penalties of perjury (penalties may include fine or imprisonment)

Client Form:  

XXXXX, being the plaintiff/defendant who is filing a document in this action or proceeding in a court of law, affirms this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true:

Non- Attorney Form:  

XXXXX, being an individual who is filing a document in this action or proceeding in a court of law on behalf of plaintiff/defendant, affirms this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true:

Venue Question:

The heading in an affidavit in the state of New York typically includes the state, county, and city in which the affidavit is made...the venue usually takes the form of “State of X, County of Y”. Since the requirement for notarization of affidavits and sworn documents in civil cases in New York state courts has been removed, this is not necessary but IMHO should be used in the Client/Non-Attorney Form until this is clarified by the courts, etc..

IT'S A WONDERFUL LIFE AND ARCH OBOLER

It's usually at this holiday time of year that I remember the endless showings of It's A Wonderful Life on all the local television stations in the mid 1970s. The story goes like this: due to a clerical error, the copyright to the film was not renewed and everyone was convinced that the film entered the public domain and TV stations everywhere could play it without having to pay anyone for the privilege. And what a joy it was to watch the film endlessly during the holiday season, because this was still at a time that Betamax/VHS was in its infancy.

By 1981/82, I was an entertainment lawyer, in that my clients were in the entertainment business.  I was retained by a New York specialty record label Nostalgia Lane and Arch Oboler, who was the creator, writer, director of the famous 1930/40s radio series Lights Out on NBC. Arch actually owned and properly copyrighted the scripts and licensed its use to NBC (although he had taped copies of the broadcasts, he did not claim to own the copyright to the taped copies of the broadcasts, just the scripts). In the late 1970s, Arch licensed to Nostalgia the right to use his copyrighted scripts to market the taped copies of the broadcasts on records and tapes, etc. but another competing company was claiming the taped copies of the broadcasts were in the public domain because NBC never filed or renewed any copyrights to the broadcasts. We commenced a copyright infringement action. The Defendant argued that Arch's radio shows were in no better a position than It's A Wonderful Life and it sure did appear that the industry was accepting this position: if a film/TV/radio broadcast did not have a copyright, anyone can copy it and market it just like It's A Wonderful Life.  

Many times, I spoke to Arch and even visited him at his home outside Los Angeles. He was something out of old Hollywood with plays on Broadway, TV, film (the first 3D movie was by Arch). He and I would discuss his case and the dilemma of other writers like him.  Arch argued that neither his radio series Lights Out or It's A Wonderful Life was in the public domain because the script is the original work and everything else derives from it (like Arch's radio shows, the film It's A Wonderful Life is a derivative work of the copyrighted story The Greatest Gift). Whether it is a movie or a radio show or a TV show, as a derivative work, the consent of the copyright holder of the original work script is required. And although a derivative work can be separately copyrighted, if that copyright expires or is otherwise thrown into the public domain, that does not affect the copyright of the original work script. 

It was a vexatious litigation and trial with the defendant raising some incredulous arguments as well as insisting on the validity of the It's A Wonderful Life defense; but the judge ruled that a derivative work still requires the consent of the underlying original work so that the failure to copyright or renew a derivative work will not affect the copyright of the underlying original work.  The judge even awarded Arch punitive damages. The press was made aware. Anyway, as a side note: on Defendant's appeal, the Second Circuit reversed Arch on the issue of punitive damages (but on remand, he wound up with the same amount in another form). And so Arch Oboler added one last achievement to his name as he will also be remembered for one more thing - his decision is still cited to this very day for the proposition that punitive damages are presumptively not available under the Copyright Act of 1976. Oboler v. Goldin, 714 F.2d 211, 213 (2d Cir. 1983) cited recently in Freeman v. Deebs-Elkenaney, 22-CV-02435 (LLS)(SN) (S.D.N.Y. Feb. 24, 2023). 

Oh yes, eventually the It's A Wonderful Life copyright mess was sort of cleared up and there are no more endless public domain showings (see The Nation - Whose “It’s a Wonderful Life” Is It Anyway?). On the other hand, Arch's works may now be in the public domain as he passed in 1987 and works, some of which were the subject of his litigation in 1980s, are freely available online.

BEING RELIEVED AS COUNSEL IS NOT A UNILATERAL AFFAIR

KALAMATA CAPITAL GROUP, LLC v. AJP REMODELING, LLC, 2023 NY Slip Op 51301 - Kings Co.  Supreme Court 2023:

"The instant action alleges causes of action premised upon a breach of a merchant cash advance contract.

Plaintiff Kalamata Capital Group, LLC is a corporation operating in New York (see NYSCEF Doc No. 30 ¶ 1). Defendants are companies organized or situated in Georgia as well as an individual (see id. ¶¶ 2-3). Allegedly, according to Plaintiff, Plaintiff and Company Defendants entered into an agreement whereby Plaintiff agreed to purchase all rights to Company Defendants' future receivables having an agreed upon value of $78,100.00 (see id. ¶ 6). Individual Defendant Julio Andres Penaranda Jr. personally guaranteed the contract, per Plaintiff (see id. ¶ 8).

Defendants' attorneys, Usher Law Group P.C., answered the complaint and responded to Plaintiff's discovery demands (see NYSCEF Doc No. 4-6, 12-18). They now move to be relieved as counsel (see NYSCEF Doc No. 76).

Defendants' attorneys claim that "undersigned counsel was advised that the Defendants no longer with to be represented by counsel" (NYSCEF Doc No. 76 ¶ 10). On June 20, 2023, a letter was sent by Usher Law Group P.C. to Defendants, purporting to confirm that in accordance with the latter's request, the firm would no longer be representing them, and "In order for this firm to be relieved as counsel for you[r] matter, please sign the attached affidavit and return it to us as soon as possible in the postage paid envelope enclosed" (NYSCEF Doc No. 78 at 2).

During oral argument the Court asked appearing counsel if he wished to provide an in-camera disclosure as to why counsel of record sought to be relieved. Appearing counsel declined the offer and provided no additional information.

II. Movant's Arguments

Movant law firm Usher Law Group cites case law for the proposition that "New York Courts have long held that an attorney mad [sic] end the relationship with a client at any time for good cause and on reasonable notice to the client. (See In re Dunn, 205 N.Y 398, 403 (1912)" (NYSCEF Doc No. 76 ¶ 12). Movant cites a provision of the New York Rules of Professional Conduct, "1.16 (b)(6)," that does not exist (see id. ¶ 13). This asserted provision purportedly "states that a lawyer may withdraw from representing a client if the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client or; (7) other good cause for withdrawal exists so long as it can be accomplished without material adverse effects on the interest of the client" (id.).

III. Discussion

Here, the Defendants' counsel seeks to be relieved. No opposition to Defendants' attorneys' motion has been filed. No appearance has been made in opposition.

In 1912, the Court of Appeals established that an attorney may terminate his relationship with a client in litigation "at any time for a good and sufficient cause and upon reasonable notice" (Matter of Dunn [Brackett], 205 NY 398, 403 [1912]).

"As a general rule, an attorney may obtain leave of court to terminate the attorney-client relationship at any time upon reasonable notice, for a good and sufficient cause, including the client's failure to pay legal fees and the failure to cooperate in his or her representation so as to cause a breakdown in that relationship (see 22 NYCRR 1200.0, Rule 1.16 [c]; Misek-Falkoff v Metro. Tr. Auth., 65 AD3d 576, 577 [2d Dept 2009]; Rivarderneria v New York City Health and Hosps. Corp., 306 AD2d 394, 395 [2d Dept 2003]; Tartaglione v Tiffany, 280 AD2d 543, 543 [2d Dept 2001]; Adler v Mitchell, 2022 NY Slip Op 50665[U], *2, 2022 NY Misc LEXIS 3194, *3 [Sup Ct, NY County, Jul. 25, 2022])" (Ventura v Choi, 2023 WL 4290358, *1 [Sup Ct, NY County, June 29, 2023, No. 805374/2016].) However, an attorney's right to withdraw as counsel is not absolute, and a sound reason must be provided why counsel should be allowed to withdraw (see Matter of Jamieko A., 193 AD2d 409 [1st Dept 1993]).

Conduct on the part of the clients rendering it unreasonably difficult to carry out the employment effectively is a valid ground for terminating the attorney-client relationship (see Rann v Lerner, 160 AD2d 922 [2d Dept 1990]). However, not every dispute between a client and an attorney warrants withdrawal (see Willis v Holder, 43 AD3d 1441 [4th Dept 2007]; LeMin v Central Suffolk Hosp., 169 AD2d 821 [2d Dept 1991].

The courts have an "inherent and statutory power to regulate the practice of law" (Matter of First Natl. Bank of E. Islip v Brower, 42 NY2d 471, 474 [1977]), and that power includes the authority to deny a motion to withdraw "because of the attorney's failure to show good and sufficient cause warranting withdrawal under the Code of Professional Responsibility"^[1] (J.M. Heinike Assoc. v Liberty Natl. Bank, 142 AD2d 929, 930 [4th Dept 1988]; accord Willis v Holder, 43 AD3d 1441 [4th Dept 2007]).

After an attorney has withdrawn it would be foolhardy to believe that the Defendant will easily be able to obtain a new attorney as "whatever the basis of permitted withdrawal, and certainly where it is based on insufficient merit of the claim or defense, prospective new counsel will, understandably, be reluctant to accept the representation" (Diaz v New York Comprehensive Cardiology, PLLC, 43 Misc 3d 759, 764 [Sup Ct, Kings County 2014]).

"The decision to grant or deny permission for counsel to withdraw lies within the discretion of the trial court" (McDonald v Shore, 100 AD3d 602, 603 [2d Dept 2012] [internal quotation marks and citations omitted]).

Moving counsel cites a nonexistent provision of the Rules of Professional Conduct. There is no paragraph (6) of subdivision (b) of Rule 1.16, as cited to by counsel. Rule 1.16 enumerates circumstances under which an attorney may ethically withdraw from representing a client. Subdivision (b) of Rule 1.16 provides:

(b) Except as stated in paragraph (d), a lawyer shall withdraw from the representation of a client when:

(1) the lawyer knows or reasonably should know that the representation will result in a violation of these Rules or of law;

(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client;

(3) the lawyer is discharged; or

(4) the lawyer knows or reasonably should know that the client is bringing the legal action, conducting the defense, or asserting a position in the matter, or is otherwise having steps taken, merely for the purpose of harassing or maliciously injuring any person.

(22 NYCRR 1200.0, Rule 1.16 [b] [emphasis added].)

Permissive withdrawal is governed by subdivision (c) of Rule 1.16:

(c) Except as stated in paragraph (d), a lawyer may withdraw from representing a client when:

(1) withdrawal can be accomplished without material adverse effect on the interests of the client;

(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;

(3) the client has used the lawyer's services to perpetrate a crime or fraud;

(4) the client insists upon taking action with which the lawyer has a fundamental disagreement;

(5) the client deliberately disregards an agreement or obligation to the lawyer as to expenses or fees;

(6) the client insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law;

(7) the client fails to cooperate in the representation or otherwise renders the representation unreasonably difficult for the lawyer to carry out employment effectively;

(8) the lawyer's inability to work with co-counsel indicates that the best interest of the client likely will be served by withdrawal;

(9) the lawyer's mental or physical condition renders it difficult for the lawyer to carry out the representation effectively;

(10) the client knowingly and freely assents to termination of the employment;

(11) withdrawal is permitted under Rule 1.13(c) or other law;

(12) the lawyer believes in good faith, in a matter pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal; or

(13) the client insists that the lawyer pursue a course of conduct which is illegal or prohibited under these Rules.

(22 NYCRR 1200.0, Rule 1.16 [b] [emphasis added].) No paragraph in subdivision (c) of Rule 1.16 was referenced by moving counsel.

In addition to the Rules of Professional Conduct, CPLR 321 (b) (2) states, "An attorney of record may withdraw or be changed by order of the court in which the action is pending, upon motion on such notice to the client of the withdrawing attorney, to the attorneys of all other parties in the action or, if a party appears without an attorney, to the party, and to any other person, as the court may direct."

Furthermore, when an attorney seeks to be relieved of counsel, moving papers must contain specific allegations in order to be relieved as counsel; conclusory statements are not sufficient (see Kramer v Salvati, 88 AD2d 583 [2d Dept 1982]). In Kramer, the Appellate Division found that the moving papers of plaintiffs' attorneys seeking to be relived of their responsibilities based their application on "various differences," but there was "no specification whatsoever of this conclusory assertion" (id. at 583). Supreme Court's denial of the attorneys' motion was sustained.

It must be emphasized that when an attorney undertakes to represent a defendant in a civil action, there exists a presumption that the representation will continue in good faith throughout the course of the litigation (see Moustakos v Bouloukos, 112 AD2d 981 [2d Dept 1985]; Blondell v Malone, 91 AD2d 1201 [4th Dept 1983]). An attorney cannot unilaterally terminate a relationship with clients simply by failing to perform services expressly or impliedly authorized by them (see Leffler v Mills, 285 AD2d 774 [3d Dept 2011]). One should not enter into a client representation with the aforethought that the attorney can earn a quick fee and then let the client loose. "As the saying goes, `in for a penny, in for a pound' (Edward Ravenscroft, The Canterbury Guests; Or, A Bargain Broken, act v, scene 1 [1695])" (People v Graves, 163 AD3d 16, 22 [4th Dept 2018]).

Here, Defendants' counsel's only explanation for being discharged was a conclusory one-sentence statement: "In June of 2023 undersigned counsel was advised that the Defendants no longer with [sic] to be represented by counsel and forwarded a letter confirming the same." The sentence appears to convey that the Defendants forwarded a letter confirming a desire not to be represented by counsel. Actually, counsel prepared an affidavit for the individual Defendant to sign both on his own behalf and on behalf of Company Defendants. The affidavit was sent along with a cover letter. The affidavit was never signed and returned by the individual Defendant. (See NYSCEF Doc No. 78.)

Since no details were provided by counsel, this Court is left in the dark as to why the breakdown in the attorney-client relationship occurred, whether Defendants truly wished to have counsel relieved, and whether they understood the consequences of being without an attorney. One would presume that if they wished counsel to no longer represent them, they would have signed the affidavit and returned it. At a minimum, they would have sent something in writing acknowledging their intentions. However, there is nothing from them.

This does not mean that as a sine qua non a client must execute a writing to memorialize a desire to have counsel relieved as their attorneys. But when counsel offers nothing more than an enigmatic one-line statement without details and without an offer to explain the situation in camera, and despite having the opportunity to sign something to the effect that they don't want the attorneys representing them, the clients do not return it executed, this raises a question on the Court's part as to what has transpired. This Court cannot acquiesce so easily to rendering parties to litigation, especially Defendants in a breach of contract case, without legal representation.

Relieving oneself of counsel is not a unilateral affair. Counsel must show good cause to be relieved. Here, Defendants' counsel has not demonstrated good and sufficient cause with sufficient allegations. Present are none of the above cited reasons for permitting dissolution of the attorney-client relationship — such as a failure to pay legal fees, a failure to cooperate, client actions rendering it difficult to carry out the representation, lack of a meritorious defense, illegal conduct taking place, or the client proposes to undertake illegal conduct. The present circumstances, including the lack of an in-camera explanation and the non-return by Defendants of the pre-written affirmation, prompt this Court to decline to exercise its discretion to relieve counsel from representation.

IV. Conclusion

Accordingly, it is hereby ORDERED that Defendants' counsel's motion to be relieved is DENIED.

[1] The Code of Professional Responsibility was replaced by the Rules of Professional Conduct in 2009."

WHEN A TEENAGER HAS A PREFERENCE FOR A GUARDIAN OTHER THAN A PARENT

A child’s custody preference for a guardian, while entitled to weight, is not determinative.

GUARDIANSHIP OF RAYA, No. 22-P-1100, Appeals Court of Massachusetts, Hampshire (2023):

"HODGENS, J.

Weeks after entering an order appointing the child's maternal grandmother and uncle as her temporary guardians, a judge of the Probate and Family Court found that there was "insufficient evidence" that the mother was "presently unfit." The judge ordered prompt reunification with the mother but offered a "period of transition" if the child "refuse[d] to return to her mother's home." Months later, with the child balking at reunification and the transition not going well, the judge reinstated the temporary guardianship. Almost two years after the original temporary guardianship, the child turned fourteen years old and nominated her maternal grandmother and uncle as guardians. Following a trial, the judge appointed the grandmother and uncle as coguardians after concluding that the mother was unfit due to the child's unwillingness to be parented by the mother and the mother's inability to remedy the near total breakdown in the parent-child relationship. We reverse the guardianship decree.

Background. This matter came before the Probate and Family Court through a petition and verified motion filed by the child's grandmother and uncle on April 3, 2020, seeking appointment as guardians and alleging emergency circumstances. On the same day, a judge allowed the petition and verified motion, appointed the grandmother and uncle as temporary guardians, and noted the exigent nature of the guardianship order: "The Petitioners are concerned about the Mother's ability to protect the child from exposure to Covid-19, a significant history of domestic violence, and an inability to maintain a hygienic living environment for the child as well as the child's expressed fear and refusal to live with the Mother." The judge scheduled a hearing on June 1, 2020, and set June 3 as the expiration date for the temporary guardianship. In the interim, the judge appointed counsel for the mother and the child.

Following the hearing on June 1, the judge declined to extend the temporary guardianship: "After hearing, the Court finds that there is insufficient evidence that [the mother] is presently unfit to parent [the child]." The judge ordered the mother to submit to a "psychological and substance use disorder evaluation." The judge authorized a "period of transition" if the child "refuses to return to her mother's home upon the expiration of the temporary guardianship on June 3." The period of transition would allow for "several weeks in which [the child] spends part of each day with her mother, returning to sleep at her grandmother's home at night." The judge also ordered all parties to participate in family therapy during the transition period.

Four months later, after a hearing in October 2020, the judge allowed the grandmother and uncle's petition to reinstate the temporary guardianship. According to the judge, the transition period had "not gone well," especially after the child objected to the mother's efforts to integrate the mother's current boyfriend and the boyfriend's children "into the picture." The judge expressed particular concern about the mother's decision to go on vacation in Delaware with the boyfriend and his children, while the child refused to accompany her. As the judge put it, "This caused a rupture in their reunification of three weeks, first because of the vacation and then due to the [fourteen] day quarantine period necessitated by a trip to a state that is not on Massachusetts' acceptable location list." The judge concluded that she had "no choice" but to allow the petition because the child "is living full-time with her maternal grandmother, and reunification is stalled." Again attempting to advance reunification, the judge ordered parenting time on a "progressive schedule" that would culminate with the child living with her mother by December 1.

Over the next eighteen months, the temporary guardianship was reviewed and extended six times. In December 2020, the judge concluded that "re-unification is not progressing as had been hoped" and established a reduced schedule of parenting time to enable the child to split her time between living with her mother and her grandmother. By June 2021, the judge noted, "The goal is [to resume] the parenting schedule set forth in the December 14, 2020 Temporary Order, but given [the child's] reticence, this schedule shall not resume immediately." By October 2021, the child refused to spend any time with her mother. The child also refused to participate in any meaningful way in reunification family therapy. The mother continued to invite the child to various activities, sent text messages to her daily, and expressed a willingness to do any activity chosen by the child. The mother also submitted to a psychological evaluation.

On April 27, 2022, the first day of a two-day trial began regarding the guardianship petition. Days later, on May 4, 2022, the child, having reached the age of fourteen, filed a court form entitled "Notarized and Verified Consent or Nomination by Minor." By filing the form and reaching the requisite age of fourteen, the child nominated her maternal grandmother and uncle as guardians pursuant to G. L. c. 190B, § 5-207(a). The trial concluded on May 17, 2022.

The judge issued findings and rulings on July 15, 2022, and noted the absence of any abuse or neglect as well as the absence of any substance use disorder or mental health concern that would prevent the mother from parenting. The judge concluded the mother was unfit because of her inability to remedy the near total breakdown in the parent-child relationship.

Discussion. A court may appoint a guardian for a minor if, among other reasons, "the court finds the parents, jointly, or the surviving parent, to be unavailable or unfit to have custody." G. L. c. 190B, § 5-204(a)(v). "Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age." Adoption of Mary, 414 Mass. 705, 711 (1993). Unfitness contemplates "grievous shortcomings" that would put the child's welfare "much at hazard." Petition of New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975). The party seeking the guardianship, here the child's grandmother and uncle, had the burden of proving by clear and convincing evidence that the mother was unfit. See Guardianship of Kelvin, 94 Mass. App. Ct. 448, 456 (2018). After reviewing the record, we conclude that the child's grandmother and uncle did not meet their burden and reverse the guardianship decree.

The record lacks any suggestion of unfitness based upon the character, temperament, or conduct of the mother. Cf. Adoption of Mary, 414 Mass. at 711. The mother is a single parent, with some college-level education, and works about fifty hours per week. The mother maintains a "spacious" studio apartment with "room dividers" and plenty of room for her daughter. Throughout the court proceedings, the mother participated in parenting time, family counseling, and a psychological evaluation. Indeed, the judge noted the absence of any instances of abuse or neglect by the mother, and she also noted the absence of any substance use disorder or mental health concern that would prevent the mother from parenting. The judge focused instead on the mother's inability to remedy the breakdown in the parent-child relationship and her limited insight into the child's feelings. We conclude that the mother's lack of success at reconciliation does not demonstrate the requisite "high degree of probability" demanded by clear and convincing evidence that the mother is an unfit parent. Cf. Adoption of Iris, 43 Mass. App. Ct. 95, 105 (1997), S.C., 427 Mass. 582 (1998), quoting Tosti v. Ayik, 394 Mass. 482, 493 n.9 (1985), cert. denied, 484 U.S. 964 (1987).

"Unfitness is a concept which cannot be applied in the abstract but requires careful consideration, on the facts of a given case, of the capacity of parents to care for their children." Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 18 Mass. App. Ct. 120, 125 (1984). The child contends that parental unfitness may be found "[w]hen children refuse to return home and when parents cannot parent due to an impasse in the parent-child relationship." We disagree. Unfitness may be established by considering the specialized needs of a child "when combined with the deficiencies of a parent's character, temperament, capacity, or conduct." Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, supra. Although the child expressed a preference for her grandmother and uncle, the present case lacked the requisite parental deficiencies that would warrant a finding of unfitness. For example, this is not a case where the mother was intransigent and made no effort at reestablishing a relationship. See Custody of a Minor, 383 Mass. 595, 601 (1981) (unfitness where child refused to return home and mother "consistently and persistently refused to take steps" to address psychological rift with child). Nor is this a case where the mother suffered from any mental illness or substance use issue that would impair her ability to parent. See Adoption of Arthur, 34 Mass. App. Ct. 914, 914 n.2 (1993) (unfitness where child expressed desire to be adopted and mother "beset with a substantial mental illness and emotional instability exacerbated by alcoholism"). This is also not a case where the mother put the child at risk of harm. See Adoption of Daisy, 77 Mass. App. Ct. 768, 783 (2010), S.C., 460 Mass. 72 (2011) (unfitness where child unwilling to have contact with mother who disbelieved child's claim that her father sexually abused her, and that disbelief "made it unsafe" to return to mother's care due to the risk of further sexual abuse and psychological harm).

We reject the child's contention that her "refusal to be parented" by the mother was a "symptom" and "obvious manifestation" of the mother's unfitness. Our jurisprudence squarely rejects equating a child's custody preference — no matter how stubbornly expressed — with unfitness. While "entitled to weight" in the analysis, the child's preference is "not determinative." Care & Protection of Georgette, 439 Mass. 28, 36 (2003). The child's preference for her grandmother and uncle did not prove the mother had "grievous shortcomings" that would put the child's welfare "much at hazard." Petition of New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. at 646. Although a judge must carefully consider that preference, a teenager cannot render her parent unfit by the simple expedient of refusing to engage with that parent.

The child's nomination of her grandmother and uncle as guardians is also not determinative. Pursuant to G. L. c. 190B, § 5-207(a), "The court shall appoint a person nominated by the minor, if the minor is [fourteen] or more years of age, unless the court finds the appointment contrary to the best interest of the minor." Before displacing a parent's rights and responsibilities and appointing a guardian for a minor in the circumstances presented here, a court must first find the parent "to be unavailable or unfit to have custody." G. L. c. 190B, § 5-204(a)(v). See Guardianship of Kelvin, 94 Mass. App. Ct. 448, 453 (2018), quoting Matter of Hilary, 450 Mass. 491, 496 (2008) ("It is well established that `parents have a fundamental liberty interest in the care, custody, and management of their children'"). The judge properly considered the nomination as further evidence of the child's strong preference but did not suggest, nor do we, that the nomination dispensed with the judicial obligation to assess parental fitness.

We also reject the child's alternative argument that a "constellation" of other factors supports a conclusion of unfitness. According to the judge's findings, for the first four years of the child's life (2008-2012), the mother and child lived with the grandmother. The mother and grandmother worked cooperatively to raise the child, whose father was not involved in the child's life and had left the country before she was born. Soon after the mother and the child obtained their own apartment, the child "struggled to regulate her emotions" and experienced tantrums. The grandmother continued to assist in caring for the child, and the uncle provided some support. In 2018, the mother and child moved in with the mother's erstwhile boyfriend. On one occasion while the child, the mother, and that boyfriend were away on vacation, the grandmother found the apartment in a state of "total chaos" with neglected guinea pigs, items broken or soaked in wine, and five large containers of vodka. At some point, the mother and the boyfriend became engaged, but the relationship turned unhealthy and ended following domestic abuse witnessed by the child. The child returned to live with the grandmother, and the mother followed months later. After about six months, the mother secured another apartment, but the child refused to move in with her because of the prospect of sharing the apartment with two male housemates she did not know. The uncle decided to file the guardianship petition because he believed the mother's insistence on the child moving into the apartment was "upsetting to the child."

These findings show the judge's diligence in examining the background of the parties' evolving relationships over the course of more than a decade, but they do not speak to "current data" or even "prognostic evidence" that would bear on the mother's fitness at the time of the trial. Petitions of Dep't of Social Servs. to Dispense with Consent to Adoption, 18 Mass. App. Ct. at 126. "[I]solated problems in the past or stale information cannot be a basis for a determination of current parental unfitness." Id. Although the child witnessed the incident of domestic violence perpetrated by the former boyfriend, the judge concluded that the mother "made the appropriate decision to end the relationship and immediately sought an abuse prevention order." We also note that the child's concern about potential "male housemates" was no longer an issue at the time of trial because the mother moved into a new apartment where she lives alone. Even if reflecting some unspecified deficiencies on the part of the mother at the time of the trial, this background does not constitute "full, clear and decisive" proof of unfitness as required by the standard of clear and convincing evidence. Adoption of Iris, 43 Mass. App. Ct. at 105, quoting Callahan v. Westinghouse Broadcasting Co., 372 Mass. 582, 584 (1977).

Conclusion. While "much must be left to the trial judge's experience and judgment" in these matters, Petition of New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. at 646, "State intervention in the parent-child relationship" may be justified only when courts apply governing legal standards with the utmost circumspection. Custody of a Minor, 377 Mass. 876, 882 (1979). The guardianship petition here lacked the required proof, by clear and convincing evidence, that the mother was "unfit." G. L. c. 190B, § 5-204. Therefore, the decree appointing the child's grandmother and uncle as coguardians is reversed."

CAN ADOPTEE INHERIT FROM BIOLOGICAL PARENT INTESTATE ESTATE?

MATTER OF OSTAPENKO, 2023 NY Slip Op 23349 - NY: Surrogate's Court, Kings 2023:

"The question before the court is whether the adoption of the Petitioner by her stepfather prohibits the Petitioner from inheriting from her birth father, the Decedent, as an "adopted-out" child. The EPTL states that an adopted child's right to intestate distribution is governed by the domestic relations law ("DRL"). See EPTL §4-1.1(d). Under most circumstances, "[t]he rights of an adoptive child to inheritance from and through his birth parents shall terminate upon the making of the order of adoption." DRL §117(1)(b).

The legislature has created exceptions to the general rule, which would apply to the herein case. In 1987, the statutory exception was expanded for adopted children to "inherit from and through their natural parents as to estates of persons dying after August 31, 1987, provided that the decedent is the adoptive child's natural grandparent or is a descendant of such grandparent and that an adoptive parent is married to the child's natural parent or is the child's natural grandparent." In re Estate of Morrow, 187 Misc 2d 742, 744, (Sur Ct, Bronx County 2001), See DRL § 117(1)(e); Matter of Seaman, 78 NY2d 451 (1991).

In Matter of Johnson, 18 Misc 3d 898, 901, (Sur Ct, Kings County 2008), the Court made the following observations about the legislative intent for the expanded exception for adopted children to inherit from their birth parents as codified in DRL §117(1)(e):^[3]

The Recommendation of the 1987 Law Revision Commission to the 1987 Legislature indicates the intent of the amendment to Domestic Relations Law § 117 was to advance a fundamental policy underlying the laws governing intestate distribution. McKinney's Session Laws of NY 1942. In sum, the laws of intestacy attempt to distribute the decedent's property to persons whom the decedent would likely have chosen had he or she executed a will. See Matter of Shupack, 158 Misc. 873, 877, 287 N.Y.S. 184 (Sur Ct, Kings County 1936).

Accordingly, in cases where a child is adopted by a close family member, "[t]he Legislature has chosen not to cut off inheritance ties between the adopted-out child and the natural family that has been replaced because of the likelihood of continued contact with that family." Matter of Seaman, 78 NY2d 451, 461 (1991) (emphasis added). Because there is a likelihood of contact with biological parents in intrafamily adoptions, the policy concerns of severing adoptees from their biological parents and securing them in new families are not implicated. See Matter of Best, 66 NY2d 151, 155 n. 1 (1985).

Based on the evidence presented at the kinship hearing, the two-prong exception under DRL §117(1)(e) is satisfied in this proceeding. The Petitioner, as the adopted-out child, inherits through the Decedent, her birth father, because the Decedent is a descendant (son) of the adoptive child's birth grandparents (Halyna and Hryhorij), and the Petitioner was adopted by her stepfather.^[4]" In a stepparent adoption, the adoptive child inherits from and through both biological parents, including the biological parent that has not married the stepparent or consented to the stepparent adoption." In re Estate of Morrow, 187 Misc 2d 742, 744 citing Matter of Seaman, 78 NY2d 45 (1991). Thus, Petitioner's right to inherit from or through either birth parent did not terminate upon her adoption. The testimony of the witnesses and the evidentiary submissions have established that the Decedent died without a spouse and is survived by one child, the Petitioner, as the Decedent's sole distributee. Therefore, the net estate shall be distributed to Vanessa Wojtowicz, the Petitioner, pursuant to the provisions of EPTL §4-1.2(a)(2)(B) and EPTL §4-1.2(a)(2)(C).

Petitioner, Vanessa Wojtowicz, appears to be competent to act as administrator of the estate and has offered proof sufficient to establish her superior entitlement to letters of administration over the P.A. See SCPA §1001(1)(b). Accordingly, letters of administration shall issue to Vanessa Wojtowicz, without bond, upon duly qualifying under law, and the temporary letters of administration issued to the P.A. are hereby revoked. Petitioner's Revocation Proceeding under File No. 2016-4367/A&B is dismissed, without prejudice, since the herein decision renders it moot.

The P.A. shall turnover to Petitioner all property belonging to the estate in his possession and control, within sixty (60) days of service of a certified copy of this order, if any estate assets have been collected.

Armena Gayle, Esq., counsel to the Kings County Public Administrator, waives an award for legal services.

Decree signed.

[1] See Surrogate Diana Johnson's Decision dated November 14, 2016.

[2] The instrument acknowledging parentage dated March 31, 1983 was entered into the kinship hearing as Exhibit A-10.

[3] A 2002 amendment to DRL § 117 substituted the word "birth" for the term "natural" throughout the statute. (L 2002, ch 312, § 4.)

[4] Petitioner entered into evidence as Exhibit A-13 certified copies of her adoption, which states that Richard Wojtowicz was the spouse of Petitioner's mother, Dorothy."

NEW YORK ONLINE REGISTRATION

 

Dear Colleagues,

 

On December 1, 2023, all New York attorneys will be required to register and renew their registration using our online system.

In conjunction with the new online filing mandate, attorneys will be required to establish an Online Services Account to log in to the electronic registration system. The system allows access to maintain current contact information, pay the biennial fee (if required), report CLE compliance, and affirm other certifications required by court rules. The Online Service account credential also permits attorneys to securely log in to other UCS systems such as NYSCEF, eTrack, and other portals used for eFiling and case management.

With over 80% of New York attorneys already filing their registration online and an even larger percentage having established their Online Services account, the Administrative Board of the Courts amended Part118.1 and 118.3 of the Rules of the Chief Administrative Judge to require all attorneys licensed in New York to register online. Paper registration forms will no longer be issued from December 1, 2023 and onwards. Mandatory online registration reduces paper waste and improves the accuracy of data collection. This change will continue to make the obligation to register more effective and efficient for members of the New York bar who live and practice within the State and for those located in other states and territories nationwide and in numerous countries around the world.

Attorneys obligated to pay the $375.00 biennial registration fee may securely do so online using a credit or debit card (with a 2.99% service fee) or with an eCheck (with a $1.00 service fee). The $375.00 registration fee is allocated as follows: $60.00 is deposited in the Lawyers' Fund for Client Protection, $50.00 in the Indigent Legal Services Fund, $25.00 in the Legal Services Assistance Fund, and the remainder in the Attorney Licensing Fund. No fee is required from attorneys who certify that they are retired from the practice of law as defined in Part 118.1(g) or those covered by Part 118.3.

While a paper notice will continue to be mailed to attorneys who have not opted to receive email notifications as a reminder of their registration due date, the new notice will no longer include a paper registration form to complete and return by mail. However, any paper forms already in circulation will continue to be accepted for filing for some additional period of time.

Thank you for your assistance and cooperation.

Very truly yours,

Hon. Joseph A. Zayas, Chief Administrative Judge
Hon. Norman St. George, First Deputy Chief Administrative Judge

NEW NASSAU COUNTY PC RULES ALSO ADDRESS ADR

 

PRELIMINARY CONFERENCE PROCEDURE

Preliminary Conference Orders in Nassau County will now be automatically generated with discovery deadlines as per statutory and/or court rules.  Parties shall confer and complete the Deposition Schedule Rider which is available on the Nassau County Supreme Court website. Depositions must be scheduled and conducted on a mutually convenient date, time and location within 120 days of the scheduled Preliminary Conference date. Counsel / Party must upload the Deposition Schedule Rider to NYSCEF within 14 days of this Court Notice under document type “Deposition Schedule Rider”.  

All counsel must upload a signed copy of the “Attorney Good Faith ADR Certificate” (available on Nassau County Supreme Court website) to NYSCEF under document type “Affirmation” with comment “ADR Certification” at least one day prior to the scheduled preliminary conference date.  Self-represented parties need not submit the certification.

The link to the Nassau County Supreme Court website is:

http://ww2.nycourts.gov/COURTS/10JD/nassau/cicgeneralforms.shtml

The automatically generated Preliminary Conference Order will have assigned Compliance / Certification and Settlement Conference dates.  Once signed by the assigned justice the part clerk will upload the Preliminary Conference Order to NYSCEF.                    

 

** It is the responsibility of the filing party requesting the Preliminary Conference to make all parties aware of the above Preliminary Conference procedure including the Deposition Schedule Rider.

 

*Any questions on the procedure may be directed to the DCM Department at (516) 493-3100 or email the PC Department at pcconf@nycourts.gov.

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NOTE FROM JMP: The preliminary conference procedure for all matrimonial actions in Nassau County is unchanged. 

A HOTLY CONTESTED POST JUDGMENT CUSTODY DISPUTE

SG v. MG, 2023 NY Slip Op 51063 - Nassau Co. Supreme Court 2023:

"PRELIMINARY STATEMENT

The Plaintiff moved by Order to Show Cause dated May 19, 2021^[1] (Motion Sequence No.: 001) seeking an Order: (A) Modifying the parties' Stipulation of Settlement, dated September 26, 2019 and Judgment of Divorce, dated January 30, 2022 entered in the County's Clerk's Office on February 6, 2020, by granting Plaintiff sole legal residential and decision making authority regarding the health, education and general welfare of the parties' children: SN G (d.o.b xxxx, 2009), SS G (d.o.b. xxxx, 2012) and CS G (d.o.b. xxxx, 2014); (B) Modifying the visitation/parenting time schedule, as set forth in our Stipulation of Settlement, dated September 26, 2019, so that the Defendant's visitation/parenting time with the subject child shall be suspended, or, in the alternative, that Plaintiff shall have supervised visitation with the subject children by an adult whom Plaintiff approves or agency supervision; (C) Directing the Defendant to submit to a hair follicle, urine and blood test and any other test the Court deems appropriate that will detect drug use by the Defendant through TASC, or such other laboratory as this Court may direct and directing that such hair follicle analysis test for drug use for a period of no less than six (6) months prior to the filing this application; (D) Directing that Defendant be restrained from operating a vehicle while the children are in the vehicle while Defendant is under the influence of any prescription medications or illegal substances; (E) An Order directing Defendant ensures the children abide by the school policies as agreed to in the parties' Stipulation of Settlement, dated September 26, 2019; (F) Granting to Defendant such other and further relief as this Court deems just and proper.

The Defendant moved by Order to Show Cause dated June 16, 2021 (Motion Sequence No.: 002) seeking an Order: (a) Granting Defendant, MG, an Order of parenting time with the subject children for the Jewish Sabbath this weekend, beginning on June 18, 2021 at 6pm until June 19, 2021 at 10pm; and (b) Specifically allowing the Defendant's new wife, B C, a registered nurse, to supervise the Defendant's visitation with the subject children until further Order of this Court; and (c) Modifying the "Drug Testing" provision of the Stipulation of Settlement, dated September 26, 2019 with regard to prescribed medications, appropriate supervisors should visitations need to be supervised, and the Plaintiff's ability to compel the Defendant to submit to a drug screen at any time; and (d) Modifying the parties' Stipulation of Settlement regarding the Defendant's parenting time; and (e) Granting Defendant MG, an Order of counsel fees in the amount of $2,000; and (f) For such other relief as this Court shall deem just and appropriate.

The Plaintiff moved by Order to Show Cause dated August 23, 2021 (Motion Sequence No.: 003) seeking an Order: (A) Directing the Defendant, MG, to release the name of the rehabilitation facility that he attended on about August 2019 to Plaintiff's counsel, Jonathan E. Kroll & Associates, PLLC; (B) That upon releasing the name of the rehabilitation facility, directing the Defendant, MG, to sign and execute the "Authorization for Release of Health Information Pursuant to HIPPA" allowing the rehabilitation facility to release all records of Defendant to Jonathan E. Kroll and Associates, PLLC; or in the alternative, directing the Defendant MG sign and execute a release allowing the attorney for the children, Patricia Latzman, to release all records received from the rehabilitation center to Jonathan E. Kroll & Associates, PLLC; (C) An order directing the Defendant, MG, to sign and execute the "Authorization for Release of Health Information Pursuant to HIPPA" to Dr. Binyamin Tepfer of Tepfer and Associates to release all records of the Defendant to Jonathan E. Kroll and Associates, PLLC; (D) An order directing the Defendant, MG, to sign and execute the "Authorization for Release of Health Information Pursuant to HIPPA" for his, M.D. to release all records of the Defendant to Jonathan E. Kroll and Associates, PLLC; and (D) An Order directing Defendant to pay $3,500.00 as and for Plaintiff's counsel fees; and (E) Granting the Plaintiff such other and further relief as this Court may deem just and proper.

The Defendant moved by Order to Show Cause dated August 26, 2021 (Motion Sequence No.: 004) seeking an Order: (a) Reinstating the Defendant, MG's, parenting time, pursuant to the parties' Stipulation of Settlement, dated September 26, 2019; and (b) Specifically allowing the Defendant's new wife, B C, a registered nurse, to supervise the Defendant's visitation with the subject children until further Order of this Court; and (c) Directing the Plaintiff to provide the Defendant with her home telephone number so that he may have direct contact with the subject children; and (d) Directing the Plaintiff to comply with all aspects of the parties' Stipulation of Settlement, dated September 26, 2019, specifically the joint legal custody provisions; and (e) For such other relief as this Court shall deem just and appropriate.

The Defendant moved by Order to Show Cause dated June 3, 2022 (Motion Sequence No.: 005) seeking an Order: (a) Directing that the subject children spend the Shavuot holiday weekend (June 3 - 6, 2022) with the Defendant, MG; and (b) Reinstating the Defendant, MG's, parenting time without any supervision; and (c) Granting the Defendant, MG, parenting time with the children alternate weekends, from Friday until Sunday at 6pm; and (d) Granting the Defendant, MG, equal parenting time during the few weeks between school and summer camp for the summer of 2022; and (e) Granting the Defendant, MG, the right of first refusal to care for the children instead of a babysitter; and (f) Immediately setting this matter down for trial; and (g) For such other relief as this court shall deem just and appropriate.

The Plaintiff moved by Order to Show Cause dated September 12, 2022 (Motion Sequence No.: 006) seeking an Order: (A) Modifying the parties' Judgment of Divorce dated January 30, 2020 (Dane, J.), to the extent of granting Plaintiff, SG, permission to relocate with the subject children, to wit: SN G, born xxxx, 2009; SS G, born xxxx, 2012; and CS G, born xxxx, 2014, to Silver Spring, Maryland; and (B) Implementing a parenting time schedule for Defendant consistent with Plaintiff's proposed schedule that is in the best interests of the children; and (c) Granting the Plaintiff such other and further relief as this Court may seem just and proper.

BACKGROUND

In these post-judgment proceedings, the Plaintiff was initially represented by Jonathan E. Kroll & Associates, PLLC. The Defendant has been represented by Natalie Markfield, Esq., On September 14, 2021, the Plaintiff executed a Consent to Change Attorney form, substituting the firm of Quatela Chimeri, PLLC, in place and stead of Jonathan E. Kroll & Associates, PLLC. The subject children have been represented by Patricia Latzman, Esq. (hereinafter referred to as the "AFC").

The parties were married on xxxx, 2006. They have three (3) children, to wit: SN (born xxxx, 2009), SS (born xxxx, 2012) and CS (born xxxx, 2014). The parties' matrimonial action was settled by a written Stipulation of Settlement dated xxxx, 2019 (hereinafter referred to as the "Stipulation). The parties were thereupon divorced by Judgment of Divorce dated xxxx, 2020 (Hon. Edmund M. Dane, J.S.C.) (hereinafter referred to as the "Judgment). Thereafter, six (6) post-judgment motions were filed by the parties which are summarized hereinafter.

On the presentment date of Motion Sequence No.: 001 (to wit: May 19, 2021), the following interim orders were issued:

IT IS FURTHER ORDERED, that the Defendant shall undergo hair follicle drug testing, or such other drug test that will detect drug use by the Defendant through TASC or such other entity as this Court may direct to test for the use of drugs for a period of no less than three months prior to the filing of this application pursuant to a separate Order issued contemporaneously herewith; and it is further

IT IS FURTHER ORDERED, that pending a hearing of this application, the Defendant shall not cut, dye, or bleach any hair on any part of his body or use any substance in an attempt to alter the result of any drug test administered to him.

A separate Drug Testing Order was issued on May 19, 2021 (Hon. Joseph H. Lorintz, J.S.C.).

On the presentment date of Motion Sequence No.: 002 (to wit: June 16, 2021), the following interim orders were issued:

ORDERED, that the Defendant-Father, MG, is granted an immediate Order of parenting time for the Jewish Sabbath this weekend, beginning on June 18, 2021 at 6pm until June 19, 2021 at 10pm; and it is further

ORDERED, that the subject children are to be produced at the Defendant's Wedding on xxxx, 2021, with supervisors M and B W; and it is further

ORDERED, that unless otherwise agreed by the parties in writing, the Defendant's new wife, B C, a Nurse Practitioner, shall be immediately deemed an appropriate supervisory and shall be permitted to supervise any and all visitation between the Defendant-Father and the subject children until further Order of this Court.

On June 22, 2021, this Court issued a Short Form Order setting forth the following:

ORDERED, that the temporary order dated June 16, 2021, is hereby vacated; and it is further

ORDERED, that commencing on July 2, 2021, the Defendant shall be entitled to enjoy alternate weekend parenting time with the children commencing on Friday, one hour before shabbos, and ending on Sunday, one hour after shabbos; and it is further

ORDERED, that Defendant shall be entitled to enjoy parenting time with the children on Thursday's as set forth in the Stipulation of Settlement; and it is further

ORDERED, that at all times set forth herein and at such other times agreed by the parties, Defendant's parenting time shall be in the presence of one or both of his parents (the children's paternal grandparents); and it is further

ORDERED, that the Plaintiff shall be responsible for picking up and dropping off the children for said parenting time; and it is further

ORDERED, the terms of this Order shall be revised at the next conference schedule for July 20, 2021 and are subject to modification.

On the presentment date of Motion Sequence No.: 004 (to wit: August 26, 2021), the following interim orders were issued:

ORDERED, that, in addition to the parenting time granted to the Defendant pursuant to the Order dated June 22, 2021, the Defendant shall [sic] parenting time with the subject children on the Sundays in which he has the children for Shabbat, from 9am - 7pm; and it is further

ORDERED, that, the Defendant shall have the children this year for Rosh Hashana, Yom Kippur, and the second half of Succot, pursuant to the Stipulation of Settlement; and it is further

ORDERED, that the children's step-grandparents shall be immediately deemed an appropriate supervisor and shall be permitted to supervise the Sunday visitation only between the Defendant-Father and the subject children and B [sic] C may be present until further Order of this Court; and it is further

ORDERED, that the Plaintiff is directed to give Defendant her home telephone number so that Defendant may have direct contact with the children.

On September 21, 2021, this Court issued a Short Form Order which granted Motion Sequence Nos.: 002, 003 and 004 solely to the extent that said motions were referred to a hearing. On February 8, 2022, an Order on Consent was issued by this Court directing, in sum and substance, that the parties engage the services of Kids in Common for Parenting Education & Parenting Coordination, that the Defendant's parents, his parent's in-laws, and that his current Wife, B C, be permitted to supervise the Defendant's parental access, and that the Defendant produce records of his last three drug screens to counsel for the Plaintiff.

On August 11, 2022, this Court issued an Order on Consent of Plaintiff and Defendant, which, inter alia, provided:

ORDERED, that on consent of the Plaintiff and the Defendant, neither parent shall discuss the issue of relocation with the children pending further Order of this Court.

The parties thereupon executed a Stipulation, so ordered by this Court on November 18, 2022, which provided as follows:

1. The following shall be referred to the hearing currently scheduled for February 15th, 16th, 17th, and 23rd of 2023:

a) Motion Seq #1 — Plaintiff's Order to Show Cause dated May 19, 2021 — Branches A, B, D & E

b) Motion Seq # 2 — Defendant's Order to Show Cause dated June 15, 2021 — Branches C, D & E

c) Motion Seq #3 — Plaintiff's Order to Show Cause dated July 20, 2021 — Branch D-2

d) Motion Seq # 4 — Defendant's Order to Show Cause dated June 1, 2022 — C & D

e) Motion Seq #5 — Defendant's Order to Show Cause dated June 1, 2022 — C, D & E

f) Motion Seq #6 — Plaintiff's Order to Show Cause dated September 12, 2022

2. All other branches of pending motions not addressed herein are hereby withdrawn.

On July 7, 2023, this Court issued an Order on Consent of Plaintiff and Defendant, which provided as follows:

ORDERED, that the portion of the ORDER ON CONSENT dated August 11, 2022, which directed that neither parent shall discuss the issue of relocation with the children pending further Order of this Court, is hereby RECALLED AND VACATED, on consent, and shall be of no further force and effect, effective immediately; and it is further

ORDERED, that the parties are hereby permitted to discuss the issue of relocation with the children, however, neither party shall influence the children or cause any third party to influence the children with respect to the issue of relocation.

The aforesaid branches of the aforesaid motions proceeded to a hearing conducted before the undersigned Justice on May 30, 2023, May 31, 2023, June 1, 2023, June 15, 2023, June 16, 2023, July 10, 2023, and July 21, 2023. An in camera with the three (3) subject children was held on July 21, 2023. The matter was thereupon adjourned to August 11, 2023 for the submission of post-trial written submissions. The submission date was adjourned on consent to August 21, 2023. The submission date was thereupon adjourned again — over the objection of the Plaintiff's counsel — to August 23, 2023. The submission date was adjourned one final time, on consent, to August 24, 2023. Throughout this Decision and Order, the Plaintiff will be referred to as the "Mother"; the Defendant will be referred to as the "Father"; and the three (3) children will be referred to either as the "children", the "G children",^[2] or by their individual respective names, where appropriate.

THE HEARING TESTIMONY

A court's custody determination is dependent in large part upon its assessment of the witnesses' credibility and upon the character, temperament, and sincerity of the parents. Matter of Gayle v. Muir, 211 AD3d 942 (2d Dept. 2022). In addition, weighing the factors relevant to any custody determination requires an evaluation of the credibility and sincerity of the parties involved. Spence-Burke v. Burke, 140 AD3d 1124 (2d Dept. 2017). The Court has attempted to summarize the sum and substance of the testimony of the witnesses as is more fully set forth herein. In addition, when necessary and throughout this Decision and Order, the Court herein quotes the salient portions of the testimony that it highlights which the Court finds relevant to its determination.

A. Mother's Case:

MA:

Direct Examination

MA (hereinafter referred to Mr. A") testified generally as to his relationship with the Mother, his children, his employment, his home, and the G children. He lives in Silver Spring, Maryland, where he has lived for approximately eleven (11) years. He married the Mother on xxxx, 2022. This is his second marriage, with his first marriage ending in divorce. He has two children from his first marriage, L and Y. He sees his children approximately forty (40%) percent of the time, seeing them on Wednesday and Thursday in one week, and Thursday through Sunday the following week. He is employed as a data engineer for XXXX earning approximately $185,000.00 per year. He has spent time with the G children, generally over the Jewish Sabbath, the Jewish holidays, and when they come home from school. The G children and Mr. A learn the Torah together, talk and converse,"hang out", and go to dinner. He has a five (5) bedroom single family home with a safe yard and where all of the children have rooms.

Cross-Examination — Father's Counsel

Mr. A and the Mother were "matched" through a friend, which he classified as "Jewish dating". He was aware that the Mother lived in New York when they first met. He became engaged to the Mother approximately three (3) months after they met. Mr. A was concerned that the Mother lived in New York while he lived in Maryland. Mr. A could not relocate due to the nature of his employment, his attachment to Maryland and it would create issues with him seeing his own children. The Mother is with Mr. A when the G children are with the Father. During this time, the Mother sees Mr. A's children. The G children generally do not travel back and forth from New York to Maryland (and vice-versa). The G children refer to him as "abba"; this means "Father" in Hebrew.

Cross-Examination — AFC

If the G children are permitted to relocate to Maryland, SN and SS will sleep in one bedroom, and CS and L will sleep in another bedroom. Y will have his own bedroom. He is willing to repopulate rooms to make all of the children happy. The G children refer to him as "abba". Additionally, the G children call the Father's wife "emma", which is "Mother" in Hebrew.

Re-Direct Examination

Mr. A works on a "hybrid" basis: he predominantly works remotely from his home, but he is in the office once every two weeks. He considered himself "ultra" orthodox. His children interact with the G children. For instance, when the G children spent seven (7) days in Maryland, last summer, he saw all of the children interact. They presented as calm and pleasant, and he described the interaction as "good". He did not observe any "clashing" between his children and the G children.

Re-Cross Examination — Defendant's Counsel

Mr. A understood during the period in which he dated the Mother that she may or may not be permitted to relocate. He spends approximately eighteen (18) days per month together with the Mother.

SG:

Direct Examination

The Mother testified as to some background information. She was married to the Father for approximately thirteen (13) years and they have three (3) children together. Their divorce action was settled with the assistance of a mediator, and the parties executed the Stipulation and were subsequently divorced by the Judgment. The parties agreed in the Stipulation that the children would live with her, and that the Father would have parenting time every other weekend from Friday (timed to Sabbath) through Sunday at 5:00 p.m. The Father was also to return the children to the Mother one-hour before school starts. The Father also had additional parenting time every Thursday for dinner. The parties also agreed to alternate Jewish holidays. At the time that the parties executed the Stipulation, the Mother lived in Inwood, New York, and the Father was living with his parents in Hewlett, New York. The Mother remained in Inwood — which was the location of the "marital residence" — for approximately one (1) year after the Stipulation was signed. After that, the Mother relocated out of Inwood. She is employed as the Chief Compliance Officer at XXXX. She earns anywhere from $120,000 to $150,000 per annum. Her income now is more than at the time of the Stipulation. At the time of the execution of the Stipulation, the Father was not employed.

The Mother testified as to the Father's use of Adderall. In or around August of 2019, the Father entered into drug rehabilitation. The Husband had overdosed on Adderall and the Mother asked him to attend rehabilitation. When the parties would attend "couples therapy" sessions, the Father would arrive "high". The parties discussed the Father's drug use prior to the execution of the Stipulation. The Father — in the Stipulation — agreed to monthly drug testing for a period of two (2) years. The Husband spent the better part of a decade addicted to Adderall. The Mother wanted the children to be protected and did not believe that it was okay for the children to live in a house where a parent was using drugs. The Mother can compel the Father to submit to random drug testing, and the Father is to inform the Mother if he fails a test. While the Mother received clean test results from the Father after September 26, 2019, in November of 2020, the Mother learned of new Adderall use by the Father from a Rabbi. She described feeling like a "deer in headlights". The Mother was concerned about the Father overdosing. The Mother then made an application to the Court seeking drug testing, and a hair follicle test was ordered.

The Mother testified about the schooling of the children. SN attends an Orthodox school and is in the eighth grade. SS attends the same school and is in fourth grade. CS attends a different Orthodox school and is in third grade. The Father is aware of where all of the children attend school. There are no after school activities. SN arrives at school at 7:05 a.m. and is home by 5:30 p.m. SS starts school at 8:30 a.m., which ends around 4:20 p.m. CS attends school from 8:30 a.m. through 4:00 p.m.

The Mother testified as to the extracurricular activities of their children as well as their socialization. SN participates in guitar lessons once per week. CS will likely start taking swimming lessons again. SN has no close friends. SS has no close friends. CS is struggling as she has no close friends.

The Mother testified as to her arrangement with Mr. A and her desire to relocate to Maryland. When the Mother has her custodial time with the children, Mr. A travels to New York prior to the Sabbath, and then leaves on Tuesdays. On the weekends in which the Father has parenting time with the children, the Mother takes the children to the Father's home and then travels to Maryland to be with Mr. A. The Mother then leaves Maryland on Sundays at noon and picks-up the G children by 6:00 p.m. The result is that Mother and Mr. A will not see each other until the next Friday.

The Mother testified regarding her desire to relocate to Maryland and the Father's parental access if she is permitted to relocate. The Mother described her relationship with Mr. A as being a married couple when they are together, but when they are not together, it is as if she is a single mother. The G children are always asking for Mr. A. She effectively testified that the Father's parental access need not change. SN was accepted to an Orthodox boarding school (with a dormitory) located in Baltimore, Maryland. This school starts at 7:30 a.m. and concludes at 4:00 p.m. After SN eats dinner, he returns to school until 9:00 p.m. This school permits family member access on the Sabbath. If she lived locally (meaning in Maryland), she would be able to see SN at the school somewhat regularly. The Father currently has alternating weekend parental access with the children, and that could continue. On one weekend, the Mother would drive the children to New York (every fourth week), and on the other weekend, the Father can travel to Maryland to have access with SS and CS and also see SN at the boarding school. The Mother is willing to assume the cost of gas or reasonable flight expenses for the Father if he travels to Maryland. The Mother is willing to do what it takes and what is necessary to facilitate the Father's lodging. While the Father is supposed to have parenting time on Thursdays from 5:30 p.m. to 7:00 p.m., to make this up to the Father, she is willing to give the Father an entire week at the beginning of each summer.

The Mother testified as to SS's and CS's proposed education in Maryland. The school in Maryland is more inclusive and "sweeter" for CS. SS would attend the same school, which has more educational resources than the school in New York. SS currently has an IEP. The Mother met with the Principal of the school in Maryland, told the Principal of SS's educational needs, and she formed a belief that there are resources at this school that will enable him to be successful. The school — has a fifteen-to-one student-teacher ratio, whereas the current school's parent-teacher ratio here in New York is twenty or twenty-five-to-one. The Mother believes that the smaller student-teacher ratio will be beneficial for SS.

The Mother testified regarding the religious upbringing of the children. An issue arose about adherence to Jewish Law, and one philosophy is insulating the children from technology. For instance, the children are not exposed to PG movies and the children are in a school where they are not exposed to secular movies. There is no access to Netflix in the Mother's home for the children. However, the children have access to Netflix in the Father's home. A dispute also arose regarding whether or not the children should watch a PG-13 movie. The proposed relocation to Maryland will enhance the religious upbringing of the children as the schools in Maryland are strong with a good "mind-set". There is less "materialism" in Maryland then there is in New York. The children are taken to an "unsuitable" Synagogue by the Father in the Five Towns, and it is "unsuitable" because the men there were not necessarily ultra orthodox. Jewish men are supposed to pray three times per week in a Minyan, but the Father does not take SN to do this.

The Mother testified about the economic benefits of relocating to Maryland. The cost of living in Maryland is cheaper than here in the "five towns". It is less pretentious in Maryland. The Mother keeps a Glatt Kosher kitchen. Mr. A also keeps a Glatt kosher kitchen, so, in Maryland, this will continue. The Mother currently receives $750.00 per month in child support from the Father. The parties' Stipulation required the Father to pay $900.00 per month for the first three years and $1,100.00 per month thereafter. The Mother is only receiving $750.00 per month, but the Father unilaterally deducts what is owed in equitable distribution from the Mother to him from his child support obligation. The Mother has not had an increase in child support. There is supposed to be additional support in the form of tuition, camp, child care, tutoring, and extracurricular activities. There have been issues, however, with the Father reimbursing the Mother for some of these expenses. For instance, the Father said that he would pay for guitar lessons, and while he paid a few times, he ceased paying. The Father did not pay 50% of the Yeshiva for 2019 through 2020. This also occurred for the 2020-2021 school year. The parties are to share camp expenses on a "50/50" basis, but the Mother has been fully responsible for same. The Mother paid and was reimbursed for year 2022, but not for year 2021. The Mother pays for tutoring expenses for SN. CS began seeing a therapist in January, 2021, but the Mother has not received any reimbursement from the Father for this.

The Mother testified about why a proposed relocation to Maryland is in the best interests of the children in her opinion. SN will attend school there, and the two other children, who look up to him, want to stay near him. The Mother also believes that it behooves SN to have her living nearby. CS needs a new social situation, and Maryland is affords her new beginnings. SS loves the wooded area there, and the new school environment will give him more attention.

The Mother testified regarding certain disagreements with the Father. A woman by the name of Dina Leff (hereinafter referred to as "Ms. Leff") has counseled SN and SS since the divorce. The school provided SN and SS with Ms. Leff as a counselor, and she helped the boys through the parties' divorce. The Father wanted Ms. Leff to tell him what the boys said during counseling sessions and, then the Father refused Ms. Leff's services for the boys. While court intervention resolved the issue, the two boys went without a therapist for a few weeks because of the Father's objections. The parties had another disagreement over a medical issue. SS is allergic to dogs and cats, but a cat was brought to the Father's parent's house, which was where the Father lived at the time. The middle child was returned to the Mother with rashes and was treated by the pediatrician. The cat was then given away to another family member.

Cross Examination — Father's Counsel

The Mother initially found out about the Father taking Adderall again in November of 2020. The Mother could not recall if there were concerns about the Father's drug use from the date of the Stipulation through November of 2020. Prior to the filing of her application in May of 2021, the Mother stopped the Father's parenting time, but she was unsure when the stoppage occurred. The Mother could not recall if there were any concerns about the Father's behavior from November of 2020 through May of 2021. When the Mother found out that the Father was taking Adderall again, she acted to protect the children. She could not recall, however, when the Father's parenting time regularly ceased. The Mother learned that the children were introduced to B C (hereinafter referred to as "Ms. C") when a friend sent the Mother an invite for an engagement party of the Father and Ms. C. At that time, the Father still had some parenting time with the children.

The Father complied with the order of the court for drug testing issued in or around May 19, 2021. While the Mother could not recall whether or not the drug screens were positive or negative, the drug screening results from May 26, 2021 were negative; as were his two subsequent drug screens after the filing of the Mother's application.^[3] While the Father had three (3) negative drug test results after the filing of the Mother's application, the Father chose to restrict or limit his own parenting time and see the children in his car. The Mother did not impose this upon the Father. Nonetheless, the Mother did want the Father's parenting time supervised because the Stipulation provided for it. It was the Mother's belief that "substance abuse" means the use of drugs or substances for which the Father went into rehabilitation for. The Mother believed that the Father was still using Adderall after June of 2021. The Mother could not recall whether or not the Father requested access with the children for June 18, 2021 and June 19, 2021. She likewise could not recall whether or not the temporary orders of the Court permitted the Father's new wife, Ms. C, to be the supervisor.

The Mother moved to Far Rockaway in December of 2020 with the children, but she could not recall if she discussed moving with the Father prior to the move. The Mother acknowledged that the Stipulation provides for joint legal custody of the children and that, in sum and substance, the parties were to discuss all major decisions concerning the health, education and welfare of the children. The Mother could not recall if she gave the Father her new residence address or land line telephone number.

While the children have been seeing Ms. Leff since the divorce, the Mother, could not recall if she signed an authorization to allow the children to see Ms. Leff nor could she recall whether or not she discussed the children seeing Ms. Leff with the Father. The Mother could not recall if the Father had asked her if the children were seeing a medical provider, such as, for example Ms. Leff. If the children are permitted to relocate, they can still see Ms. Leff on a virtual basis. The Mother did not recall if she told the Father that the children would be treated by Ms. Leff.

The Mother could not recall if she allowed the children to go to the Father for Shavuot in 2021 even though he was supposed to have this holiday in odd years. However, she acknowledged that the parties' so ordered Stipulation of June 8, 2022 provides that the Father would have the children in 2024 to make-up for 2021. The Mother acknowledged that the Father also saw the two boys over Shavuot in 2022 for an overnight visit.

The Mother withdrew her request for sole custody and sole decision-making without prejudice.

The Mother could not recall if she told the Father about phone meetings relative to SS's IEP. While the Father asked the Mother for a copy of SS's IEP, the Mother could not recall if she ever sent a copy of it to the Father. SN had issues with gas and constipation, and the Mother took the child to a doctor for same, but she could not recall if she notified the Father of same. The Mother acknowledged that the Stipulation addresses notice of professional appointments. The Mother acknowledged taking the children to second doctor and the Mother acknowledged not providing the Father a "heads up" with respect to same. SS had a neuropsychological evaluation as directed by the Board of Education this past school year, but the Mother could not recall whether or not she advised the Father about this evaluation. The Mother took SS to the neuro-psychologist three (3) times, but the Mother could not recall if she told the Father about any of the three (3) visits to the neuro-psychologist.

The Mother filled out the application for SN to attend the high school in Baltimore. The Mother could not recall if she notified the Father about submitting SN's application to the boarding school. The Mother could not recall listing the Father as the "Father" on the application to the boarding school, and she could not recall whether or not she provided the Father's email address or his phone number on that application. The Mother acknowledged that the application listed Mr. A as the step-father and listed the Father as the Father, but acknowledged that the application did not indicate that the Father receive correspondence. The application did not list the Father's phone number or email address, and the Mother could not additionally recall if she notified the Father of this application after she submitted it. To date, the Mother acknowledged that she and the Father have not discussed sending SN to The boarding school. The Mother acknowledged Mr. A drove SN to the interview at The boarding school, and the Mother acknowledged that she did not tell the Father that SN was going to the interview. The Mother likewise acknowledged that she did not offer to the Father the opportunity to take SN to the interview. SN actually interviewed at four (4) different schools, but the Mother could not recall whether or not she told the Father about any of the four interviews. SN was accepted into The boarding school. The Mother enrolled SN in The boarding school, but acknowledged not consulting with the Father prior to enrolling him. While the Mother acknowledged that the parties are to consult on major decisions, she was under the assumption that the Father knew everything that was going on.

Even if the Mother is granted permission to relocate, she acknowledged that she will keep the same job. The Mother acknowledged not having informed the Father of her engagement to Mr. A at the time of the engagement. While the Mother testified that if she is permitted to relocate, the Father could maintain, generally, the same access schedule that he currently has with the children, she acknowledged that it is "highly impossible" to continue the Thursday dinner visits. While the Father previously asked for a Thursday overnight with the children, she could not recall if she "allowed" it. The Mother nonetheless acknowledged that she wanted the children to have a healthy relationship with the Father. In the past year, the Mother acknowledged having taken the children out of school early to drive to Maryland, and agreed that it is important for both parents to know where the children are in the case of an emergency. The Mother, however, could not recall whether or not she traveled to Maryland without telling the Father. The Mother is aware that the Father is seeking more parenting time. She is unsure as to whether or not the current schedule is "a lot" of parenting time for the Father. When the children are with the Father, there is a lot of "video time", and the Father does not spend much time with the children.

There was an oral Stipulation placed on the Record during the Hearing that the Father is current in his basic child support obligation to the Mother.

The Mother acknowledged that the G children have only been with her stepchildren (Mr. A's children) a "handful" of times. The Mother acknowledged that if she is not allowed to relocate to Maryland, she will not move to Maryland.

Cross Examination — AFC

The Mother would make the decisions for the children prior to the dissolution of the parties' marriage. She described herself as the "main" parent for the children. The Father gave the Mother "full latitude", knowing that the Mother wanted what is best for these children. The Mother always chose the schools for the children, and the Father never provided alternatives to the schools chosen by the Mother. The Mother selected the pediatrician and the dentist for the children, and the Father was never unhappy with the Mother's choice. To the Mother, her agreement to joint custody was simply her agreement to "boilerplate" agreement, as the Father was not in a good place at the time. The Father had just gone to rehabilitation for drug use. While the Father is very loving to the children, he is not necessarily a "present" parent and was not "hands on". There were times, after the separation of the parties, that the Father would decline parenting time. The Father did not attend any IEP or CSE meetings for SS, and the Father would leave the child's educational decisions in the hands of the Mother.

The Mother did not want the Father to have parenting time with the children unsupervised. The Mother opposed using the Father's parents as supervisors, as they knew about his drug use and would, effectively, do nothing. The Mother petitioned this Court for a modification of the Father's parenting time. The Father, prior to the Mother interposing her application, did not seek any modifications with respect to his parenting time. When the Father's drug test results came back "positive", unsupervised visits stopped. The Father was addicted to Adderall and other drugs, and when he would take too much, he would not sleep for nights. The Father would exhibit anger, jitters and suffer from mood instability.

The Mother informs the Father beforehand when she takes the children to the doctor. While the Father just recently went with the Mother to SS's colonoscopy appointment (just prior to the litigation), the Father never historically attended doctor appointments for the children. The Father never complained about the children's participation in extracurricular activities. The Father never asked the Mother about the children; he only did so, to some degree, after this litigation started.

The Mother did not provide the Father's contact information on the application for SN to The boarding school because the application was only for the interview. The Mother simply "checked" the boxes.

When the children are with the Father, they spend time on watching videos and spend time with their grandmother. While the Mother has not discussed relocation to Maryland with the children, SS has asked the Mother to move to Maryland. SS is aware that Mr. A and his children/step-siblings live in Maryland. If the Mother is allowed to relocate to Maryland, she wants to know what the Father wants for "make-up" time. She wants these children to have a healthy relationship with and to be connected to their Father. If the children attend summer camp in New York, she is willing to make it up to the Father with additional time in the summer months.

Re-Direct Examination

The Father never told the Mother directly that he was engaged to Ms. C. From January, 2020 to the present, the Father would take the children to Teaneck, New Jersey without telling the Mother. The Father would stay overnight without notifying the Mother. When the Father requested an overnight with the children in April of 2023, the Mother declined, citing concerns of the Father's mental health and the children "changed their stories" over where the Father was. The Mother therefore had concerns about the Father overdosing and using Adderall again. The Father has previously lied about his substance abuse. The Father did not seek to enforce unsupervised access with the children prior to the Mother starting the instant post-judgment proceedings. For the five months prior thereto, the Father accepted supervised access.

The children began attending summer camp at the age of three (3) years. The Father never selected the camp nor, did he object to any camps chosen by the Mother.

The Father recently missed two Thursday visits with the children and did not ask to reschedule those visits. While the Father has parenting time on Thursday of each week, that visit is only ninety (90) minutes in duration per visit. This equates to approximately three (3) total days of parenting time. The Mother is prepared to add an additional seven (7) days to the Father's parenting time per year in the summer if she is permitted to relocate.

Re-Cross Examination — Father's Counsel

The Mother believed that it was "fruitless" to discuss certain things with the Father, as the Father was untruthful with her. Nonetheless, the Mother acknowledged that when the Mother brought a concern to the Father about the children watching a certain movie, the children did not watch the movie. The Mother was unsure as to how she would feel if she only got to see her children every two weeks and not during the week.

Re-Cross Examination — AFC

If the Father were to travel to Maryland one per week, he can visit with the children on Thursdays, and even on Tuesdays, if the Father wants it.

B. Father's Case:

Anasuya Delgado:

Direct Examination

Anasuya Delgado (hereinafter referred to as "Ms. Delgado") testified as to background information and her assigned task. She is employed at Kids in Common (hereinafter referred to as "KIC"). She conducts supervised visititation sessions and co-parenting sessions with the parties. These began in May, 2022. All of the sessions were conducted virtually. The parties discussed co-parenting and co-parenting styles. She observed the Mother to be receptive to the "materials" with little feedback.

Ms. Delgado testified about the Mother. The Mother was disengaged for a majority of the sessions, was busy typing on her phone and communicating with others, as compared to the Father, who was very engaged. The Mother would leave sessions early.

Ms. Delgado testified about the Mother's desire to relocate. The Mother read a letter about her desire to relocate. While the Father was "receptive" to listening, he was not willing to allow the relocation. The Father would not even consider dating anyone who lived far away.

Cross Examination — Mother's Counsel

Ms. Delgado generated only one report. The witness was told to generate the report by her direct supervisor, Meg Sayers. While the witness testified that KIC received a request from the Court to provide services, she has not seen any actual orders, nor was she aware of the terms of the parties' Judgment.

While the Mother was observed to be typing during some sessions with Ms. Delgado, she was unsure if the Mother was typing notes. The Father was identified at intake as presenting a problem of not being able to discuss parenting issues with the Mother, issues with parenting time, and not being privy to many things. The Father did not say that there was any objection to any of the activities of the children or any of the medical decisions which were made.

Other than the sessions with the parties, the witness was unsure if the parties ever implemented the guidance given at the sessions.

Cross Examination — AFC

Ms. Delgado described the Mother has making minimal eye contact and that the Mother spent most of her time on the phone typing, and she therefore concluded that the Mother was not receptive. While Ms. Delgado has administered co-parenting work for seventeen years, and while she claimed she had experience, she acknowledged that she did not receive any training by any experts. Ms. Delgado acknowledged that she has received no training programs since college.

Re-Direct Examination

While Ms. Delgado was not familiar with the Court order assigning KIC, she provided services consistent with the terms of the order. Ms. Delgado reiterated that the Mother was on her phone typing during the sessions. Ms. Delgado noticed that the Mother would be disengaged sporadically for quick moments every session. Ms. Delgado reiterated that the Father was receptive to the conversation about the relocation, but only to the conversation, and he was not receptive about the Mother actually relocating.

Re-Cross Examination — Mother's Counsel

While Ms. Delgado has performed parent-coordination work for approximately seventeen (17) years, she has maybe worked with only five (5) families that are ultra-orthodox. Ms. Delgado did not discuss Jewish law.

Re-Cross Examination — AFC

Ms. Delgado is not fully aware of the parameters of the Judgment with respect to following of Jewish law, and Ms. Delgado was unaware of certain restrictions.

B C:

Direct Examination

Ms. C testified as to background information. She is the Father's current wife who met the Father in January, 2021 and married him on June 20, 2021. Ms. C has a son and daughter. Those children principally live with her. She is employed as a Family Nurse Practitioner.

Ms. C testified as to her involvement with the Father and the G children. She maintains contact with the G children. At home, she, the Father, and all of the children get together as a family. She cooks for Shabbos. Ms. C is Tznivs and she covers her hair. There is only Kosher food and dishes in the home. Everyone is Kosher observant. Since all of the children enjoy different foods, she makes different food for all of the children. During Shabbos, they all bond by eating, playing board games, playing basketball and reading. She has observed the Father taking walks with the children. The Father reads and plays with the children. She engages in activities with the G children, and she feels bonded to them.

Ms. C testified about the interactions of the children. All of the children act like siblings around one another. The children hangout together, and have spent alternate weekends together for the past two years. The children spend birthday celebrations together. Last summer, all of the children went to the Poconos together for a week. They all had fun tubing and hiking.

Ms. C testified as to her knowledge of the Father's Adderall usage. While the Father may be taking Adderall, she has had no reason for concern nor concern for any of the children.

Cross Examination — Mother's Counsel

The G children refer to Ms. C as "emma", which is "mother" in Hebrew. She works 8:30 a.m. to 3:30 p.m. Monday through Thursday, and 8:30 a.m. to 1:00 p.m. on Fridays. The Father is self-employed and makes his own schedule.

MG:

Direct Examination

The Father testified as to some background information of the parties. They separated in or around the Spring/Summer of 2018. The Father moved out in stages. While he returned for a short time, there was no improvement. The Father admitted to overusing Adderall prior to the separation of the parties, and he used it off and on for about seven (7) years. The Father never overused alcohol or marijuana. When the parties were living together, the Father described the family as a "close family unit".

The Father described and summarized his relationship with the children. He described his relationship with SN as being "very involved" and that they were "physically and emotionally" close. He is very involved in SN's schooling, as he always knew that both boys would attend a particular school. The Father, therefore, never felt the need to offer an alternative school for the boys. The Father was involved in the procedure to procure the IEP for SS. For CS's schooling, there was school that the Mother preferred and "pushed for", even though the Father thought another school was more viable. Ultimately, CS was accepted into this school due to the Mother's tenacity.

The Father testified as to his involvement in the medical care of the children. He estimated that, for doctor "well visits" and when the children were sick, he would take the children to the doctor around twenty (20%) percent of the time. He worked a distance from the home, he was gone in the morning early and he came home late from work. The Father took SS to his colonoscopy appointments.

The Father testified as to his entrance into rehabilitation. He entered a drug rehabilitation program in July of 2019. His separation from his family caused a tremendous amount of questioning about his life. He described being in a lot of pain. He began drinking alcohol and utilizing marijuana. He enrolled himself in a six-week program. Six months prior to his admission, he saw the children while he was living with his parents. The children were driven to his visits by the Mother.

The Father testified about drug testing. The Stipulation does not restrict him from utilizing Adderall, but it does have a drug testing provision. The Father was not using Adderall at the time of the Stipulation, but he started utilizing it in or about November of 2020. From the date of the Stipulation, the Father participated in drug testing at clinics. The results of the first two tests were sent to the Mother, but there is nothing in the Stipulation that requires the results be sent to the Mother. In or about November, 2020, the results of a drug test were positive for Amphetamines. The Father was taking regular drug tests, but there were positive test results due to the use of Adderall. The Father did not classify this as "substance abuse" because Adderall is not an illegal substance. The Father only took Adderall in accordance with the prescription provided to him. His visitation with the children never should have been supervised because his Adderall was prescribed by his treating health care provider.

The Father testified about his parenting time. His contact became limited to phone calls with the children. Then, the Father elected to see the children in a car in front of the house. It was his decision to see the children in a car, because, in his opinion, it was better than seeing the children with a supervisor present. The Father provided letters to the Mother from the clinician who prescribed the Adderall, but the Mother refused to accept those letters. The Father was supposed to have the children for the Passover holiday in 2021 pursuant to the Stipulation, but this parental access was denied by the Mother.

The Father testified about the months from March, 2021 through May, 2021. He had hoped to resolve the issues without the necessity of court intervention. Prior to the Mother seeking court intervention, the Father would see the children in his car approximately two times per week in front of the home. Upon the court ordering drug tests in May of 2021, the Father tested every month and all tests came back negative.

The Father testified surrounding parenting time during the Auf Ruf weekend (the celebration of his engagement). He was to have regular parenting time with the children on this weekend. The Mother refused. This weekend was special to him. The children attended the Auf Ruf, but they were supervised. The children also attended the Father's wedding. The Father asked the Mother if the children could be there unsupervised, but the Mother did not agree. He needed a court order, and the children were ultimately produced.

The Father spoke about his continued Adderall use. He acknowledged that he continues to take Adderall as prescribed. The Father denies having any substance abuse issues.

The Father testified about religion. He describes himself as Jewish Orthodox. During their marriage, the parties were strictly Kosher in the home and their food only came from approved places. When the parties were married, both were observant. At his current home, he observes the highest level of Kosher. The Father has a smart television at home, and he can use it watching "apps" like Netflix. The parties' Stipulation does not contain any restrictions on the use of videos, movies or television. However, the school rules must be followed. There is a typical Shabbos at the Father's home when he has the children. The boys and the Father go to evening prayers. His step-son sometimes accompanies them. When they return home, the Father blesses the children, they have a festive dinner, and they talk. On Fridays and Saturdays, there is a lot of "game playing", such as board games and basketball. The Father spends one-on-one time with each child on Thursday and on weekends which he characterizes as "special time" so to enable him to talk in-depth with that child. Each child's birthday is important to the Father, as a theme is selected and the entire family is invited. The Jewish holiday of Shavuot is important to the Father as he can uphold the tradition of learning prayers. The Father is supposed to have this holiday with the children every "odd year" in accordance with the Stipulation. The Father was supposed to have the children in 2021, but the Mother denied him the right to see the children. In 2022, which was the Mother's year, the Father walked from Woodmere to East Rockaway (which is an hour-and-a-half walk each way) to see the boys and learn with them overnight.

The Father testified about his parenting time. In the last two years, a majority of his parenting time with the children is at his home in Woodmere. The Father's step-son and step-daughter are present, and they are present when the G children visit him. He describes the relationship as "very close" and that they are "bonded" together. At times, the G children play well with his step-children, and, at other times, they are "at odds". They all go on family trips, such as to amusement parts, on hikes, and they play miniature golf. He describes his children as having a loving relationship with Ms. C and their step-siblings. In fact, when he speaks to the children during their time with the Mother, the children frequently speak with Ms. C. The Father's parents reside in Hewlett, which is a one minute drive from his residence. He describes his parents as extremely close to the children, and he uses his parents as babysitters for the children if needed. In fact, his father used to take the children off the bus when the parties lived together.

The Father testified about the children's education and his involvement. He attends parent-teacher conferences each year for each child. The Father became aware in April of 2023 that SN applied to The boarding school in Maryland, and only after the chid had already visited the school. The first parent listed on this application was the Mother and the second parent listed on the application was the Mother's current husband, Mr. A. The Father had to call the school to get a copy of the application. On the other hand, the Father applied to a high school for SN in Far Rockaway and listed the Mother's name and contact information on that application. The Father preferred a local high school, as he could not imagine SN going away in ninth grade. However, SN wanted to go away, as the child told him so. The Father learned of the interview at The boarding school only after the interview took place. When the Father asked the Mother why she did not tell him, the Mother indicated that she thought he already knew. If the Father had known about SN's interview, the Father would have taken him to the interview.

The Father testified about his attempts at extra parenting time. In the past two years, the Father has asked the Mother for extra parenting time with the children. He has asked approximately ten times, and the Mother has refused, generally on all occasions. The Mother never lets the children stay beyond the time frame for his Thursday dinner. The Father asked the Mother for Thursday overnights, but she did not agree.

The Father testified about his Thursday parenting time. He places great value on his Thursday night parenting time with the children. He considers it to be his "anchor", as it is the only time he can sit down and talk with and hug his children. It is his opinion that virtual visits with the children are not a substitute for in-person contact, as he learns more about the children when they are physically with him.

The Father testified about his reasons for opposing the Mother's request to relocate. He currently resides in the Five Towns, which is where the children were born and raised. The children attend specific Synagogues in the Five Towns. The Rabbis at the Synagogues, and the people at the Synagogues, all know the children. The travel time between the Father's residence and the Mother's current residence is approximately ten to fifteen minutes. If the Mother relocated to Maryland, the travel time is approximately five hours. If the Mother was permitted to relocate to Maryland, SS and CS would have to miss part of school on Friday and Sunday to visit him in New York. Friday and Sunday schooling is of great importance to the Father, and missing school will cause stress to be put onto those children. The proposed move will disrupt consistency. Both SS and CS do not have any friends in Maryland. The Father believes that the proposed relocation would be unfair to the kids, as it would require them to be uprooted.

The Father testified about co-parenting with the Mother. Over the past two years, co-parenting with the Mother has been very difficult, if not impossible. The Father often does not know about the health or education of the children until "after the fact". He has no sense that the Mother wishes to co-parent with him.

The Father testified about what relief he seeks. He seeks a shared access schedule with the children or, at a minimum, to extend Thursdays to overnights. On the alternating weekends in which he has the children, he wants parenting time to begin on Thursday night through Monday morning, and he would take the children to school.

Cross Examination — Mother's Counsel

The Father acknowledged that he submitted an application for SN to attend the Munsey school, in Rockland County, New York, which is two hours away. SN, however, was not accepted into the Munsey school. The Father acknowledged that SN was accepted into The boarding school and that the child was very excited about this. While the Father testified that Baltimore, Maryland, is an unsafe city, he acknowledged never having seen the proposed school and that he has never seen the city of Baltimore. Likewise, the Father did no independent research about the city, except for information he obtained within the last month. The Father acknowledged that during these proceedings, he has not approached the Mother to discuss any educational issues with respect to their children. The Father acknowledged that he has no objection to SN attending The boarding school. While the Father testified about the duration of travel time from his current residence to Maryland by bus, train and car, the Father did not consider travel time by airplane.

The Father acknowledged that there is a lot of interaction during audio calls with the children, and this could continue if the Mother was permitted to relocate to Maryland. The Father acknowledged being self-employed as a psychotherapist and that 90% of his "practice" is tele-health. When the parties were married, because of the Father's employment and travel attendant thereto, he acknowledged that the Mother would take care of the "day to day" stuff for the children. The Father acknowledged that the Mother had no family in New York and that she moved to New York to marry him.

If the Mother was permitted to relocate to Maryland, the Father would feel deprived of the ability to "stop by" to see the children. However, the Father acknowledged that he generally does not currently just "stop-by" currently. While the Father is concerned about the children missing school due to Shabbos if the Mother was permitted to relocate to Maryland, if the Mother brought the children to New York if she were permitted to relocate, the children would only miss a portion of school once per month. The Father acknowledged that when the children get sick on occasion, they, in fact, miss school

The Father acknowledged that if the Mother was permitted to relocate to Maryland, nothing prevents him from calling the schools or speaking to the teachers if the children went to school in Maryland. The Father acknowledged that he has not yet called the school in Maryland. The Father acknowledged that in years 2019 and 2020, he never filed an application with the Court alleging that the Mother is not complying with the parental access provisions of the Stipulation.

Cross Examination — AFC

The Father acknowledged that the Mother was the primary person to take the children to doctor and to take the children to dental appointments since their physical separation. The Father acknowledged that the Mother is the primary parent who gets the children up in the morning. The Father acknowledged that he trusted that the Mother was taking the children to their annual physical examinations.

Even if the Father learned that the children wanted to relocate to Maryland with the Mother, he would still oppose the proposed relocation, as he trusts his own assessments rather than the assessments of his children. The Father would not trade his hour-and-a-half parenting time on Thursdays for more time on an overall basis. The Father acknowledged that the children spend a majority of the time with the Mother.

Re-Direct Examination

The Father felt that there was a school in Far Rockaway which was the best local school for SN, and the Father advised the Mother that he was filling out an application for the child's attendance in this school. The Mother does not directly pick-up the phone when the Father calls; rather, the Mother simply puts the children on the phone right away. When the parties see each other in person, the Mother looks past him and "waives him off". The parties and the children have lived in the same community for the last seventeen (17) to eighteen (18) years. The Father reiterated that he has attended parent-teacher conferences for each child for the last four (4) years, and that he attends these conferences without the Mother.

The Father reiterated that if the children relocate to Maryland, they must miss Sunday school and Friday for half of the year. The Mother's proposal of paying for one weekend in Baltimore for the Father to visit with the children is not sustainable in his opinion as he would go with his entire family (including Ms. C and her children), and his step-children may have to miss school. The Father underscored that the children rarely miss school due to illness. The Father denied begining learning in school with one of the children just because of the Mother's relocation application; rather, he did so to help the child and to spend more time with the child.

The children's opinion regarding relocation is important to know, but their opinion is not a substitute for his own opinions and judgment. The Father reiterated that he put the Mother's name on a local Yeshiva application, while the Mother did not put his name down for the application to The boarding school. The Father finds that The boarding school is far away, and objects to the proposed relocation inasmuch as five (5) hours of travel time is a long way to travel. The Father reiterated that while he is ambivalent about The boarding school, SN is excited about it and he will not object to SN attending same.

Re-Cross Examination — Mother's Counsel

The Father acknowledged that he has not called the pediatrician to find out when the children's annual physicals exams were. The Father acknowledged having the right to make those inquiries. The Father acknowledged not having asked the Mother about the children's dental appointments.

Re-Cross Examination — AFC

The Father acknowledged that the children were aware of the proposed relocation before the Court vacated the order prohibiting them from discussing it, as the Father told the children something along the lines of "I don't want you moving so far away from me".

C. In-Camera

A separate in camera was held with each of the parties' children on July 21, 2023, pursuant to Lincoln v. Lincoln, 24 NY2d 270 (1969). The Court met with each child individually and had a full opportunity to hear from them. The Court has thoroughly considered the statements made by the children and has afforded those statements the appropriate weight having considered their ages and level of maturity.

DISCUSSION & ANALYSIS

RELOCATION TO MARYLAND

The only absolute in the law governing custody of children is that there are no absolutes. Friederwitzer v. Friederwitzer, 55 NY2d 89 (1982); McDermott v. Berolzheimer, 210 AD2d 559 (3d Dept. 1994). Disputes involving custody and visitation are acknowledged to be among the most difficult the courts are called upon to resolve, for they so deeply affect the lives of children and the parents who love them. Daghir v. Daghir, 82 AD2d 191 (2d Dept. 1981). Courts must be vigilant to assure that children are fully protected and their best interests secured. Matter of Newton v. McFarlane, 174 AD3d 67 (2d Dept. 2019). Each case presents a unique set of facts and thus a case-by-case analysis is required to determine if the requisite showing has been made to justify disrupting the relationship of the noncustodial parent and the child. Bonfiglio v. Bonfiglio, 134 AD2d 426 (2d Dept. 1987). Of course, as the Court of Appeals noted "... [a]ny court in considering questions of child custody must make every effort to determine what is for the best interest of the child, and what will best promote its welfare and happiness..." Eschbach v. Eschbach, 56 NY2d 167 (1982). There remains an unfortunate truth of a family that is the byproduct of divorce: that family, once broken by divorce, cannot be put back together in precisely the same way. Tropea v. Tropea, infra. The Court takes the time to remind these parties that their children are not chattel, and this Decision and Order is made with a view towards what serves the best interests of the children (see generally H.K. v. R.C., 72 Misc 3d 909 (Supreme Court New York County 2021)), and not the best interests of either parent. With those initial sentiments in mind, this Court is called upon to determine whether or not the Mother should be permitted to relocate with the children to another State.

The parties have an underlying Stipulation which contains provisions regarding custody and parenting time of their children. Since the Mother seeks to relocate to Maryland with the children, she, in effect, seeks a modification of the Judgment. Modification of a court-approved stipulation setting forth terms of custody or parental access is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the best interests and welfare of the child. Assad v. Assad, 200 AD3d 831 (2d Dept. 2021); Greenberg v. Greenberg, 144 AD3d 625 (2d Dept. 2016). That change in circumstances should reflect a real need for change to ensure the best interests of the child. Matter of Cole v. Nofri, 107 AD3d 1510 (4th Dept. 2013) (Martoche, J., dissenting). The best interests of the child are determined by a review of the totality of the circumstances. Matter of Paige v. Paige, 202 AD3d 794 (2d Dept. 2022). In considering the totality of the circumstances, the Court should consider what is in furtherance of the child's welfare and happiness. See generally Matter of Bhanhattie H. v. Roxanne H., 56 Misc 3d 1040 (Family Court Queens County 2017).

A relocation is accepted as a change in circumstances, requiring the parent seeking the move to demonstrate that relocating the children is in their best interests. Matter of William V. v. Bridgett W., 182 AD3d 636 (3d Dept. 2020). A parent seeking leave to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child's best interests. Schwartz v. Schwartz, 186 AD3d 1742 (2d Dept. 2020); Matter of Hall v. Clas, 144 AD3d 801 (2d Dept. 2016); Matter of Bailey v. Ayoub, 203 AD3d 1043 (2d Dept. 2022). The Court must consider each relocation request on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child. Matter of Louie v. Plissner, 174 AD3d 607 (2d Dept. 2019); Matter of Williams v. Jenkins, 167 AD3d 758 (2d Dept. 2018).

The seminal case concerning a parent's right to relocate with children is Tropea v. Tropea. Decided by the Court of Appeals in 1996, it attempted to recognize the juxtaposition of the interests of a custodial parent who wishes to move away are pitted against those of a noncustodial parent who has a powerful desire to maintain frequent and regular contact with the child. Tropea v. Tropea, 87 NY2d 727 (1996). Tropea enumerated factors that courts considering relocation applications should consider:

Rather, we hold that, in all cases, the courts should be free to consider and give appropriate weight to all of the factors that may be relevant to the determination. These factors include, but are certainly not limited to each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements. In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child's best interests.

Tropea, 87 AD2d 727 (1996). No one factor is determinative because the court must review the totality of the circumstances (see Matter of A.P. v. J.G., 69 Misc 3d 1216(A) (Family Court Bronx County 2020)), and no factor should be given such disproportionate weight as to predetermine the outcome (see Matter of Caruso v. Cruz, 114 AD3d 769 (2d Dept. 2014)). The Court likewise must consider the position of the attorney of the children. Matter of Davis v. Ogden, 109 AD3d 539 (2d Dept. 2013). Additionally, the impact of the move on the relationship between the child and the noncustodial parent will remain a central concern. Matter of Caruso, 114 AD3d at 771. The Court has an obligation to make an objective and independent evaluation of the circumstances. Rizea v. Rizea, 218 AD3d 807 (2d Dept. 2023). Nonetheless, the rights and needs of the children must be accorded the greatest weight. Matter of Alaire K.G. v. Anthony P.G., 86 AD3d 216 (1st Dept. 2011).

Balanced against the aforesaid, the Court must also consider the relationship between the children and the noncustodial parent, as the Court must be concerned with the impact of the move on the relationship between the child(ren) and the noncustodial parent, as it is well-established that children derive an abundance of benefits from the mature guiding hand and love of a second parent. Matter of Alaire K.G. v. Anthony P.G., 86 AD3d 216 (1st Dept. 2011) (Saxe, J., dissenting). Indeed, a child's best interest is protected by ensuring the fullest possible relationship with both parents. Nimkoff v. Nimkoff, 18 AD3d 344 (1st Dept. 2005). Consideration of whether the relocation of the child would negatively affect the fundamental right of reasonable access of the parent left behind clearly is essential. Bodrato v. Biggs, 274 AD2d 694 (3d Dept. 2000). The law requires that the interests which might justify such a relocation by the custodial parent be balanced against the noncustodial parent's fundamental human right to frequent visitation and, most significantly, by the best interests of the children. Rybicki v. Rybicki, 176 AD2d 86 (2d Dept. 1991).

Plaintiff's Reasons for Seeking the Move

The Court considers the Plaintiff's reason(s) for seeking the move to be both familial and economic in nature, and to enhance the lives of the children. In Matter of Amber GG. v. Eric HH., the Third Department reversed family court's denial of an application by the mother therein to relocate to Florida, finding, in part, that "... [t]aken as a whole, the mother's testimony demonstrated ... that the mother's reasons for wanting to relocate were familial and economic and that the proposed relocation would likely enhance the lives of the mother and the child[ren] economically and emotionally..." Matter of Amber GG. v. Eric HH., 217 AD3d 1103 (3d Dept. 2023).

If the Mother were permitted to relocate to Maryland, the Court finds that the lives of the children would be enhanced. The Court finds that the children will have an appropriate and suitable living abode in Maryland, and that they would be able to live with their step-siblings. As elicited on direct examination of Mr. A (who testified credibly):

Q: Now, with regard to your residence in Silver Spring, describe the house or take us through a verbal virtual tour of your home?

A: S and I, we were together on the decision for the purchase. It's a five bedroom single-family home in a Washington D.C. suburb. The kids, they've got rooms there. Her kids have rooms as well. They've got beds. Furniture. The girls sleep together. My son Y who's four sleeps by himself. And then SN and SS, they have their own room, bunk beds.

In this regard, Mr. A's testimony credibly painted a colorful picture of the home in which the G children would be living in. Of course, they would share that home with their step-siblings. The Court finds that the space and the sleeping arrangements to be appropriate for the ages of the children herein, and that living with their step-siblings would enhance the lives of these children. The Mother testified on direct examination with respect to her desire to relocate:

Q: Can you discuss your living arrangement currently with Mr. A a little bit further?

A: Yes. So, when I have my children for the weekend he drives up on Friday or he takes the train and he goes into Penn Station and then he'll take the train from Penn Station to Far Rockaway or he will just drive straight. He comes in before Shabbos. He is with us until usually Wednesday. Wednesday evening he leaves, sometimes Tuesday he leaves. And then I, on Friday, depending on when Shabbos starts, either I drop off my kids and I work from the car as I drive to Maryland, or if Shabbos is later then I pick up the kids from school, I make sure they're all settled, and then I bring them over to their father's house and then I go straight to Silver Spring at around 12 o'clock and then I drive and I pick up our chidren by 6 o'clock, and because Mike is staying in Silver Spring and I'm coming back here and then we don't see each other until Friday.

Q: Now, in what way or ways has you and he maintaining two separate residences in two separate states impacted your relationship and your ordinary daily life?

A: So for the time that we're together we're a married couple, and then the time of the week that we're not its like a back to single-mom-hood and we, you know — CS is always like, I need to Facetime abba the minute she comes home and the boys are asking, "Where is abba?" "Where is abba?" and we're both for that week single parents again.

The Mother credibly convinced this Court that the proposed relocation would be a betterment and enhancement of the emotional state(s) of the chid(ren). Without objection or contradiction, the Court notes that it appears from the testimony (see supra) that these children unilaterally, and of their own volition, refer to Mr. A as "abba", which, in Hebrew, means "Father". The testimony of the Mother did not at all come off as that the children are attempting to replace the Father with Mr. A. Rather, to the Court, this credible testimony demonstrated an extreme level of comfort and security with Mr. A. The evidence and testimony at the Hearing has also convinced this Court that the relationship of the G children and Mr. A's children are akin to bonded step-siblings. The Court certainly finds that the G children living with their step-siblings enhances their lives. In addition, the Court carefully and closely examined the Mother during her testimony about her current living arrangements with Mr. A. She credibly testified that it is, in effect, her desire to relocate so that she can live permanently with Mr. A, instead of spending extended periods of time apart from the man who is her husband. The Court also finds tangentially that these childrens' lives would be enhanced by the Mother being able to permanently live with Mr. A. The Mother's emotional struggle in being separated part of the time from Mr. A was evident, and this Court does not wish to adversely affect the emotional states of these children by keeping their Mother separated from her husband. Not only that, but this Court considers that factor in conjunction with the fact that the Mother always has been, is and remains the primary caretaker of these children, who spend a majority of time with the Mother.

In furtherance of that, the Mother painted a difficult picture surrounding the socialization of these children:

Q: Now, you mentioned socialization for your children being something that was a thought process to you at the time you made a move with regard to each of your children individually; how would you describe them socially?

A: SN, he just moved into eighth grade so he's transitioning to those boys, but he's fine. He doesn't have any close friends. I think he's kind of gambling between the seventh graders and eight [sic] graders right now. He used to have a close friend, that was in seventh grade, but they kind of lost touch.

SS doesn't have any close friends. He doesn't like playing with anyone at their house. He is like one of the boys and all the teachers have always told me that, no, he'll play with the boys, but he doesn't have any close friends.

CS, she's also — she's struggling with close friends. No one calls her for play dates. On Friday afternoon we call together to arrange play dates for Shabbos afternoon and everyone is always busy with somebody else, so it's hard. I don't think the class she's in right now is the right class. She's of the age that she should have a close friend and she just doesn't so something needs to change with her.

The Court found the Mother's testimony sincere and remarkable in this respect. This Court carefully observed the Mother during this testimony and her tone and demeanor was one of outright concern for the social status of these children. Unfortunately, these children do not appear to have any close friends, if any friends at all. While the Father testified on direct examination that the children have friends, there was insufficient evidence in the record to indicate to the Court who those friends are, how much time the children spend with those friends, and what the children do when with those friends. The Court finds that by granting the proposed relocation to Maryland, not only would it not disrupt any of the children's existing social relationships, but it will likely serve as a vehicle for enhancement thereof. These children may start afresh in new schools with the ability to make new friends (which they have not been able to do). Additionally, the Court notes that Mr. A testified that his children from his first marriage are with him for a substantial period of time. Notably, as elicited on direct examination:

Q: Can you briefly describe it for the Court when the children are with you?

A: Sure. So they are with me about 40 percent of the time as per the agreement. It comes up to a little bit more than that in practice. The children, they live with me. When they are with me they have their entire lives out of my house, everything is there, all their clothes, everything is based out of my house.

By granting the proposed relocation, the subject children will have the additional benefit of spending nearly forty percent of the time with Mr. A's siblings, who this Court finds can help better enhance the socialization of the subject children.

The Mother's reasons for seeking the relocation is a factor that weighs in favor of granting the request for relocation.

Defendant's Reasons for Opposing the Move

The Father testified on his direct examination as follows:

Q: Can you explain the value that you place upon the weekly Thursday dinners?

A: Yes. For me it — the value that I place on it is that it is the touchstone and the anchor where even on the weeks that I don't have them for the weekend, it's the only time I could see them in person and spend time with them and talk with them, hug them and just — and be with them. So it's of essential importance.

Q: And would that be fulfilled with weekly virtual chats instead?

A: No, it would not.

Q: Why not?

A: Well, first of all, I find out a lot more about their lives when they are actually by me. When they are speaking to me from their mother's house, they are understandably more circumspect and just kind of talking on a more kind of polished, external level. Everything is good, yeah.

But when they're by me, they open up. I find out things about them, I see their faces. I get to touch them, they get to touch me. There is a certain quality that's hard to put your finger on that I think most parents and children can attest to is essential to being with your children in person.

But the Father's words, coupled with his actions, in this instance, are incongruous. To explain: the Father, in effect, opposes the Mother's proposed relocation because, in part, the relocation would prevent him from exercising his ninety (90) minute parenting time on Thursdays. Yet, his actions in agreeing to permit SN to attend dorm at school in Maryland is at variance with his words inasmuch as the Father would miss out on his weekly Thursday parenting time with SN if the Court were to deny the Mother's application for relocation.

The Court did not find persuasive the Father's argument that Maryland is, in effect, not a "safe" place or that the Baltimore area is not a "safe" city inasmuch as there was no evidence provided at the Hearing to demonstrate the unsafeness of Maryland. The Court appreciates the Father's argument that, in effect, his entire new family, including Ms. C and her children, would have to travel to Maryland with him once a month. However, the Court does not find that it is a bar to the proposed relocation. Sometimes, however, doing something that is in the best interests of all of your children involves making a sacrifice or sacrifices for the betterment of those children. While the Court certainly finds no reason why Ms. C and her children cannot accompany the Father on his alternating weekend visitation in Maryland (see infra), the Court finds this reason to be unpersuasive.

The Court also appreciates the Father's argument that, if the Mother is permitted to relocate, during one of the alternating weekend visits, some of the children may miss a few hours of school. The Court does not find this to be a bar to the proposed relocation either. While the Court emphasizes the importance of schooling, the Court does not find that a few hours once per month will be so detrimental to the educational needs or the schooling of the children. The Mother is, of course, strongly cautioned to minimize the amount of time that the children must be taken out of school early on those Fridays when transporting the children to New York. While the Father testified that missing school will cause stress to be put onto those children, the Court is unsure if that stress will be thrust upon those children, and, the Court finds that the proposed relocation to Maryland will outweigh any stress that the children may experience by missing a few hours of school only once per month.

With respect to the Father's argument that the proposed relocation, if granted, will uproot the children from the Five Towns where they have lived for years, the Court has considered same, and does not find it to be a bar to the proposed relocation. While the children may have lived here for many years, any roots that the children may have had in this community has not significantly helped or improved their social status. With respect to the children's attendance at religious institutions, the children can certainly find new religious institutions to be a part of and nonetheless remain in contact with any religious advisors that they have may here. Another consideration: the Father consented to send SN to a school in Maryland, rather than have him attend a school here in New York. In furtherance thereof, the Father has effectively consented to and allowed the uprooting of SN from New York to not only attend school, but to live at school out of State as well.

The Father's reasons for opposing the relocation is a factor that does not weigh against the request for relocation.

Quality of the Relationship with the Mother

To this Court, there is no question that the Mother has been the primary caretaker of these children since their birth. This is underscored by the Father's voluntary vacatur from the marital residence before the parties signed the Stipulation and the Father's agreement to designate the Mother as the primary physical parent of these children as set forth in the Stipulation. There is no dispute that the Mother continues to be the primary caretaker of these children, and the Father effectively admitted and conceded same at the Hearing. The evidence and testimony at the Hearing established to the satisfaction of this Court that the children are significantly bonded to their Mother.

The quality of the relationship with the Mother is a factor that weighs in favor of granting the request for relocation.

Quality of the Relationship with the Father

The testimony at the Hearing leads the Court to the conclusion that while the Father is one who generally visits with the children and exercises his parenting time, he is, in effect, only a visiting parent. While there is nothing wrong with being a visiting parent, the quality of the relationship with the Father is not one of being an active parent, and is not one that would prevent a relocation. For instance, the testimony to this Court established that when the Mother suspected the Father of using Adderall inappropriately, she unilaterally elected to truncate and relegate the Father's access to that of supervised parenting time. The Father did not seek to enforce and/or expand his parenting time until after the Mother filed her application in May of 2021 (see infra). What is more, instead of exercising that time, albeit in a supervised setting, he elected to see the children in his car. In sum, the Father viewed a few short minutes of time with his children in his car to be quality time. While that may have been quality time to the Father, it does not necessarily mean that it was quality time to the children, nor does it mean that it was in the best interests of the children. Indeed, while these children love their Father, these children will certainly continue to love him, and continue to visit with him, if they live in Maryland. The Father's mere reactive nature relative to his parenting time prior to court intervention is consistent with that of simply a visiting parent. Plain and simply, the Father can still visit with the children if they were to live in Maryland.

The quality of the relationship with the Father can still be preserved (see infra) in spite of the relocation, and, therefore, this is not a factor that militates against the request for relocation.

Impact of the Move on the Quantity and Quality of the Children's Future Contact with the Father

As stated aforesaid, the Court does not find that the proposed relocation to Maryland will negatively or adversely affect the quantity and quality of the Father's future contact with the children. Quantitatively, the Father will maintain his alternating weekend parental access with the children. In fact, the Court will be expanding his alternating weekend access so that on the alternate weekend that he is visiting the children in Maryland, his weekend will start on Thursday instead of Friday, and conclude on Monday morning, instead of Sunday night, which gives him one Thursday overnight per month and one Sunday overnight per month, something he does not have under the existing Stipulation. The Court notes that while the three other Thursdays will not be occurring on a weekly basis, the Court will make this up to the Father by giving him an additional ten (10) consecutive days in the summer months with the children. Qualitatively, irrespective of whether or not the Father is exercising parenting time in Maryland or in New York, his time with the children does not have to change. He can still help the children study, he can still eat Kosher food with them, he can still hold conversations with them, he can still touch and hug them, and he can still partake in activities with them, such as playing basketball or hiking.

The impact of the move on the quantity and quality of the children's future contact with the Father does not weigh in favor of denying the proposed relocation.

Degree to Which the Mother's and Children's Lives may be Enhanced Economically, Emotionally and Educationally by the Move

The Court finds that the proposed relocation will enhance the Mother's life and the lives of the children economically, emotionally and educationally. Economically, the Court notes that Mr. A testified that he is employed as a data engineer with FINRA earning approximately $185,000.00 per annum. The testimony at the Hearing also revealed that the Mother is employed as a registered investment advisory with MWM Group earning anywhere between $120,000.00 to $150,000.00 per annum. The Mother is earning more now then when she was at the time of the Judgment, and it does not appear that her employment will be adversely affected if she is permitted to relocate, as she testified that she works remotely. The Court notes that the underlying Stipulation provides, in sum and substance, that the Father is to pay $900.00 per month as and for child support for the first three years and then the sum of $1,100,00 per month as and for child support. In the Stipulation, the Father's gross income was $50,000.00 per annum. The Court notes that the $900.00 per month sum was a slight downward deviation from the presumptive amount of child support pursuant to the Child Support Standards Act.

Emotionally, the Court finds that the Mother's life and the lives of the children will be enhanced. As to the Mother, she will no longer have to spend consecutive days away from Mr. A and have the constant back-and-forth feeling of being married to being a single mother. As to the children, while they will be able to now live with Mr. A (who they refer to as "abba"), they will still nonetheless be maintaining just as much, if not more, of their parental access schedule with their Father (see infra). Visitation is a joint right of the noncustodial parent and of the child. See generally Weiss v. Weiss, 52 NY2d 170 (1981). Likewise, the proposed relocation will enable SS and CS to live close to SN inasmuch as he will be attending school in Maryland on consent of the Father (see infra).

Educationally, the Court likewise finds that the lives of the children will be advanced. The parties' Stipulation provides:

Religious Upbringing. The parties agree to continue to raise the Children in the Jewish Orthodox tradition and philosophy, including without limitation, observing the Sabbath, Jewish holiday observance, and adherence to the laws of Kashrut (kosher food), which shall be followed in the parties' residences while the children are present. The parties further agree to follow all of the rules of the school attended by the Children when the Children are in his/her care. In the event that the parties cannot reach an agreement with regard to a religious decision, the parties shall consult with Rabbi Reich with an eye towards mediating and resolving their difference of opinion. Any religious school issues shall be mediated by Rabbi Sitnick.

The Court finds that the Mother will be able to maintain her home in Maryland in accordance with the tenants of her religion and pursuant to the Stipulation, and that she will be able to follow the rules of the school in her home. Additionally, SS and CS will be able to attend schools in Maryland consistent with their religious upbringing.

The degree to which the Mother's and children's lives may be enhanced economically, emotionally and educationally by the move weighs in favor of the proposed relocation.

Feasibility of Preserving the Relationship Between the Father and Child Through Suitable Visitation Arrangements

Here, the proposed relocation to Maryland will not disrupt the Father's alternating weekend parental access with the children. In fact, not only will the Court be preserving the Father's access with the children, it will, in its totality, be expanding his access (see infra). That will include maintaining his alternating weekend schedule, expanding his parental access in over the summer, and not completely eliminating his Thursday weekly parental access by giving the Father one Thursday overnight per month when he is visiting the children in Maryland (see infra).

Inasmuch as the Court is expanding the Father's parental access with the children, this Court finds that it is able to feasibly preserve the relationship between the Father and the children by giving the Father more quality time with the children, which the Court finds weighs in favor of granting the proposed relocation.

Position of the Attorney for the Children

The Attorney for the Children supports the Mother's application seeking permission to relocate to Maryland. While not necessarily determinative, the child[ren]'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[ren]. Matter of David v, LoPresti, 176 AD3d 701 (2d Dept. 2019). While the AFC in her written summations has stated that "... all three of the children have different opinions but would prefer those opinions not be shared with their parents...", the AFC nonetheless sets forth a position that the Mother should be permitted to relocate with the children. The Court has therefore given the position of the AFC its appropriate weight. See also Davis v. Ogden, 109 AD3d 539 (2d Dept. 2013) (affirming family court's order granting permission to relocate to Florida which considered, inter alia, that the position of the attorney for the children was in favor of the relocation).

Inasmuch as the position of the AFC is in favor of relocation, the Court finds this factor to weigh in favor of granting the relocation.

Other Factors Considered by the Court^[4]

In addition to the aforesaid Tropea factors, the Court has considered other factors (see infra).

First, the Father's failure to request custody as an alternative to the proposed relocation. In Mathie v. Mathie, the plaintiff therein, who was the physical custodian of the child therein, remarried and desired to move with the child to New Jersey. Mathie v. Mathie, 65 AD3d 527 (2d Dept. 2009). The hearing court, after a hearing, denied the application to relocate. Mathie, 65 AD3d at 529. The Second Department reversed and granted the application to relocate, noting, in part, that "... [s]ignificantly, the defendant did not seek custody of [the child therein] as an alternative to the plaintiff's relocation application...." Id. (emphasis added). Here, the Court notes that the Father did not seek custody of the children as an alternative to the Mother's application seeking to relocate to Maryland. Rather, and notably, the Father only sought to expand his access on June 16, 2021,^[5] which, tellingly, was only after the Mother interposed her application for, inter alia, sole custody, supervised access and drug testing. To the Court, his conduct was, at best, that of a reactive parent, instead of that of a proactive parent. In furtherance of the aforesaid, the Father's conduct after the Mother initiated Court intervention is consistent with his conduct undertaken both during the marriage and after the parties' executed the Stipulation: that of a parent who simply defers to the decisions of and reacts to the other parent, as well as that of a visiting parent. While the Court does not begrudge the Father for being reactive, his conduct — even if tacitly taken — leads this Court to the conclusion that his opposition to the Mother's proposed relocation is only in his interests, and not the interests of the children. The Father, in effect, deferred a majority of the decisions for the children and caretaking of the children to the Mother. For instance, as elicited on cross-examination of the Father by the AFC:

Q: Would it be fair to say through no fault of your own that S has basically been the primary person responsible for bringing the children to the doctor?

A: Yes.

MS. MARKFIELD: Can we have a timeframe? Always?

MS. LATZMAN: Since the separation.

A: Repeat the question.

Q: Since you have been separated, would it be fair to say that S has been primarily responsible to bring the children to the doctor?

A: Yes, she has.

Q: And to bring the children to the dentist?

A: Yes, she has.

Q: And to make sure that the children get up every morning and get to school?

A: They are usually by her, so yes.

Q: So the children spend most of their time with their mother in her home, correct?

A: Correct.

* * *

Q: So you kind of rely on her to do all of those things, didn't you?

A: I knew she was doing it. I trusted she was doing it.

Second, the Father's habitual deferral to the Mother's decisions. The testimony at the Hearing was replete with testimony from the Father that the Mother, in effect, made decisions without him. For example, and in sum and substance, the Mother unilaterally decided that his contact with the children should be supervised, that she did not tell the Father about the interview at the Baltimore School, that she let her new husband take the child to the interview at the Baltimore school rather than provide him with the opportunity to do so, that she did not list the Father's appropriate contact information on the application for the interview at the Baltimore school, and so on. The Court highlights this conduct not to countenance it, but to make critical point: that the Father, despite all of these complaints, and despite all of the Mother's unilateral actions, some of which may have been in violation of the parties' Stipulation, did not seek custody of these children. Once again, the Father's inaction and reactive nature confirms the narrative: that he is simply visiting parent (see supra). While there is nothing wrong with being a visiting parent, this Court can maintain his status as a visiting parent — and even expand it — even in spite of granting the Mother permission to relocate. The Court takes this time to remind the Mother of her obligations under the Stipulation regarding decision-making.

Third, the Father's consent to SN attending school in Maryland and this Court's reluctance to separate these siblings from one another. The Father acknowledged that he is consenting to SN attending school in Baltimore, Maryland, which is in the same state where the Mother seeks to relocate to. Yet, he opposes the relocation of the other two children to Maryland. So, in effect, he consents to one child being in Maryland, but not the other two. Ostensibly, therefore, SN would be living in and going to school in Baltimore while the other two children would be here living in New York. The Father's consent to SN attending school in Baltimore, Maryland, is a factor in favor of permitting a relocation. Courts should be reluctant to separate siblings. Matter of Nikolic v. Ingrassia, 47 AD3d 819 (2d Dept. 2008); see also Matter of Lightbody v. Lightbody, 42 AD3d 537 (2d Dept. 2007). Here, the evidence and testimony at the Hearing establishes that the children enjoy a close relationship with one another, for instance, that they pray together, attend the Synagogue together, play board games together, play basketball together, and partake in other activities which siblings often partake in. This Court would find it contrary to the best interests of these children to separate them and have one of them live in one state, and two of them living in another state. In fact, the Father's position makes it impossible to separate these siblings, as he has not asked for custody of the children as an alternative to the Mother's proposed relocation. This Court has, in this regard, carefully considered the testimony of the parties surrounding each child's socialization and the Court believes that separating them — in light of the de minimis and insubstantial friendships they have with others — would do more harm to their socialization than good.

Fourth, leaving SN in Maryland at school without a parent nearby. The Father's consent to SN attending school in Maryland but opposition to the Mother's request for relocation creates a quandry: this would effectively force SN to attend school out-of-state without a parent living in close proximity thereto. The indisputable evidence at the Hearing established that the Mother remains the primary caretaker of these children, and if the Court were disinclined to grant the relocation, it would effectively force SN to be separated from his Mother. Children often times lean on their primary caretaker in the event of a medical, physical or emotional emergency, and to have the Mother living far away in a distant state without that safety net for that child would be contrary to his best interests, and this Court declines to countenance such a result.

Fifth, the parties' underlying Stipulation and Judgment is a byproduct of a voluntary agreement between the parties that gave the Mother primary physical custody of the children. The Court initially notes that the underlying Stipulation^[6] provides the following:

The parties agree that the MOTHER and FATHER shall share joint legal custody of the Children. The MOTHER shall be the primary residential custodial parent, subject to the FATHER's parenting rights as provided herein.

The Judgment^[7] provides that the "... Plaintiff/Mother having physical custody of the Children subject to the Defendant/Father's parenting time..." The Court has considered that in 2019, the parties agreed that the Mother would be the primary residential parent of the children. When the parties have entered into an agreement as to which parent should have custody, priority should be given to the custody arrangement reached by voluntary agreement. Prete v. Prete, 193 AD2d 804 (2d Dept. 1993); see also Matter of Russell v. Russell, 72 AD3d 973 (2d Dept. 2010). This Court has given the appropriate weight to the fact that the parties voluntarily agreed that the children would reside principally with the Mother, and that the children continue to principally reside with the Mother.^[8]

Sixth, Mr. A, who is no substitute for the Father, acts appropriately with the subject children. The Court had the opportunity to observe his demeanor, tone and sincerity. The Court found him to be credible and sincere. He credibly testified that he has previously spent time with the subject children, that he purchases items for the subject children, that he learns with the subject children, that he studies the Torah with the subject children, and that he genuinely attempts to bond with and spend as much time as he can with the subject children. The Court finds that the subject children are adequately safeguarded by Mr. A.

Seventh, as elicited on re-cross examination of the Father by the AFC:

Q: You indicated that the children were made aware of the relocation before the Court order was vacated, correct, you said that?

A: Yes, I did.

Q: So that means you had conversations with them regarding the relocation?

A: They reported to me.

Q: That was not my question, it was a yes or no question. Did you have conversations with them prior to the vacating of the order regarding the relocation, yes you did, no, you didn't?

A: Sorry, prior to vacating the order?

Q: Yes.

A: What is vacating?

Q: There was an order the Court then said that order does not exist anymore.

A: Yes.

Q: Did you have conversations before that order did not exist anymore, yes, you did, no, you didn't?

A: I did not have conversations with them during the time of the order at all.

Q: You testified that they knew?

A: Before the order. Before the order was given, it was not given right away.

Q: Before the order was given, you had conversations with them regarding the relocations?

A: I responded.

Q: Yes or no?

A: Yes.

Q: And what did you say to them?

A: I don't remember exactly.

Q: Did you discuss relocation with them, yes or no?

A: I told them —

Q: Yes or no, not what you told them. Yes or no. Listen to my questions, please.

Did you discuss relocation with them?

A: Yes.

Q: What did you tell them?

A: Again, I don't remember exactly. It was probably something like —

MS. MARKFIELD: I'm objecting to this line of questioning. This is beyond the scope of my redirect. There was no questioning on my redirect regarding any conversations with the kids regarding relocation.

MS. LATZMAN: You allowed it in his recross therefore, I have a right because you allowed it, correct? You did not object.

Q: Back to my question.

What did you say?

A: Again, I don't remember what I said exactly. It was something in the spirit of I don't want you moving so far away from me.

Q: And who was present during these conversations?

A: My children.

* * *

Q: The only conversation you had with your children is I don't want you to move, I will miss you. That's the only thing you said regarding this litigation and the relocation?

A: I wanted to make, I wanted to tell them that I don't have anything against mom being happy or married. I don't want you to move because it would be difficult for us to have the relationship we have. I don't want you to be so far away and I know from personal experience switching schools and switching cities can be very stressful is a big risk and I don't want that.

(emphasis added).

The Court found the Father's responses to this line of questioning to initially be evasive. Upon further probing by the AFC, the Court finds that the Father attempted to unduly influence these children regarding the Mother's proposed relocation. Not only did the Father attempt to extract sympathy from the children by stating to them that they would be "... so far away from me...", he went further by telling them about his personal experiences regarding switching school and cities is "stressful" and a "big risk". The Court, therefore, has considered the Father's attempted undue influence vis-a-vis the issue of relocation.

Eighth, and finally, the Father's effectual deferral to SN's wishes about where he wants to attend school. As elicited on redirect examination of the Father:

Q: So, just as a final question on this topic, what is your final position on the school?

A: I am ambivalent, but at the end of the day, this is the school that my son wants. He is excited about it, generally in good spirits right now and with him going to the school at part of what is helping him to be in good spirits, I would not mess with that and I would ultimately consent to him going.

While the express wishes of children are not controlling, they are entitled to great weight, especially where their age and maturity would make their input particularly meaningful. Silverman v. Silverman, 186 AD3d 123 (2d Dept. 2020). Here, the Father's testimony confirms that while he was opposed to the Mother's proposed relocation, he nonetheless deferred to the decision and opinion SN about the school he wished to attend, which is in Maryland. As elicited on cross-examination of the Father by the Mother's counsel:

Q: When did your son first communicate to you that he was interest in attending a Yeshiva high school that offered the ability to board?

A: I would say about March time.

Q: March of this year?

A: Yes.

* * *

Q: And we spent a lot of time this morning talking about the application process to the the boarding school in the Baltimore area. Your son did, in fact, get in?

A: He did.

Q: And did he share with you that he had been accepted?

A: Yes, he did.

Q: And was he excited? Did he appear excited to you?

A: Yes, he did.

* * *

Q: As we stand here today, July 10th of this year, do you, sir, object to your son attending The boarding school?

A: I do not object.

Furthermore, as elicited on cross-examination of the Father by the AFC:

Q: So, in reality and when I ask you this question, I don't want you to think I'm judging you, you are the father and you have a right to these feelings, so most of how you feel is that your relationship with your children clearly would be impacted if they were to relocate?

A: I would not say that's my primary concern.

Q: If your children indicated a desire to relocate, don't you think it would be important to hear what they have to say?

A: Surely it would be important to hear what they have to say.

Q: And would that be more important than your own feelings regarding relocation?

A: Their assessment of whether relocation for them is good for them if a good thing or not, I trust my feelings better. My sense of what are the risks and what life has taught me the last 40 years.

The Court find's the Father's testimony to be contradictory. On the one hand, he, in effect and in sum and substance, trusts his life experiences learned over the last forty years and that his feelings about the children possibly relocating are superior to his children's feelings. Yet, on the other hand, the Father admittedly and in effect deferred to the eldest's son's choice about attending school out-of-state. Instead of making the decision himself about the schooling in another state for his child, the Father ostensibly deferred that decision to the child. The Court, in this respect, does not find the Father's testimony to be credible.

Accordingly, and for all of the reasons stated herein, it is hereby:

ORDERED, that Branch (A) of the Plaintiff's Order to Show Cause dated September 12, 2022 be and the same is hereby GRANTED TO THE EXTENT that the parties' Judgment of Divorce dated January 30, 2020 is hereby MODIFIED TO THE EXTENT that the Mother is permitted to relocate with the subject children to Silver Spring, Maryland; and it is further

ORDERED, that the Mother shall provide to the Father the home address of the residence in which she and the children will be residing in Maryland in within seven (7) days of the date of this Decision and Order; and it is further

ORDERED, that Branch (c) of the Defendant's Order to Show Cause dated August 26, 2021 be and the same is hereby GRANTED TO THE EXTENT that the Mother shall provide to the Father the home telephone number of the residence in which she and the children will be residing in Maryland in within seven (7) days of the date of this Decision and Order.

MODIFICATION OF PARENTAL ACCESS

In order to modify an existing court-sanctioned parental access agreement, there must be a showing that there was a sufficient change in circumstances so that modification is required to protect the best interests of the child (see Katsoris v. Katsoris, 178 AD3d 794 (2d Dept. 2019)) as well as the welfare of the child (see Matter of Ya Yun Weng v. Zhi Gao, 214 AD3d 895)). The paramount concern in a parental access determination is the best interests of the child, under the totality of the circumstances. Matter of Quattrochi v. Negri, 187 AD3d 921 (2d Dept. 2020). The determination of appropriate parental access is entrusted to the sound discretion of the court. Matter of Johnson v. McWilliams, 212 AD3d 620 (2d Dept. 2023).

In Matter of Newton v. McFarlane, the Second Department opined that a child has a real and substantial interest in the outcome of litigation between the parents. Matter of Newton v. McFarlane, 174 AD3d 67 (2d Dept. 2019). As that Court stated:

Litigation over established court-approved child custody and access arrangements can be unsettling and traumatic for children, particularly for children of sufficient age or maturity to comprehend, and worry about, potentially significant changes in their daily lives, such as what home they live in, what family members they live with, what schools they go to, what friends they have, and what activities they undertake.

Matter of Newton, 174 AD3d at 76.

Here, the Court finds that the Father has met his burden in establishing that the best interests of these children would be served and protected by expanded parental access with him. Parental access should be regular, frequent and meaningful. See generally Radford v. Propper, 190 AD2d 93 (2d Dept. 1993). Notwithstanding that the Court grants the Mother's request to relocate, the Court is nonetheless able to provide the Father with expanded, meaningful access. In determining custody, while the express wishes of children are not controlling, they are entitled to great weight, especially where their age and maturity would make their input particularly meaningful. Silverman v. Silverman, 186 AD3d 123 (2d Dept. 2020); Matter of Cannella v. Anthony, 127 AD3d 745 (2d Dept. 2015); Matter of Samuel S. v. Dayawathie R., 63 AD3d 746 (2d Dept. 2009). While not controlling or dispositive, the wishes and desires of these children are entitled to some weight, based upon their ages and maturity. As the AFC conveyed in a portion of her opening statement:

MS. LATZMAN: Good morning, your Honor.

Your Honor, you listen to the attorneys and it sounds like there's a lot of animosity. When you speak to the children, you find three children who love both parents dearly, who have a great time with each parent, who no nothing about this relocation. They have not been put in the middle, which I think is probably the most wonderful thing that no one asked them to make a decision because they're children and they shouldn't be making a decision; therefore, I can't take a position on their account regarding the relocation. But I can tell the Court that they've made it very clear to me that they love spending time with their father and his wife, they love spending time with their mother and her husband. They find everyone to be wonderful and kind and caring. They also told me very clearly that they want to spend more time with their father.

No one has advised the Court that at the present time the schedule is Thursdays for dinner, every Thursday, and then alternate weekends from Friday to Sunday, that's the schedule. The children want more time with their father. They's like to see him more, they'd like to spend more time with him. They have a good time there. I'm also told that SN really wants to go to this boarding school and he advises me that everyone has consented; again, parents working together for this boy so that he can go where he wants to go. He intends to spend one weekend a month with each parent. Interestingly enough, the other two children are happy to see him go because SS told me he'll then have a room of his own and he won't need to share anymore. And CS told me that he's not that friendly any way so it's okay.

THE COURT: So they're kids.

MS. LATZMAN: They're kids. And that's what's so, in a way, tragic here. They are kids. They're three actually lovely children thanks to these people. And, your Honor, Ms. Markfield told you how he used to visit in the car; do you know that mom never told the children why. Never shared information with these children about their father. Never in a way said something negative or told them things. These are people who have really shielded their children and taken care of their children and made sure that their children grow up to have wonderful lives. And the tragedy is we're going to sit here today and your Honor is going to have to make a decision, and no matter what your decision is, it's going to change these children's lives and that's too bad.

The only position I have is if they could see their father more that's what they want. Thank you, your Honor.

Under the existing schedule pursuant to the Stipulation, the Father sees the children every other weekend for two full days (Friday to Sunday) and for ninety (90) minutes one day per week (Thursday). While the Court understands that granting of the Mother's application makes the Father's Thursday night ninety (90) minute dinner visit with the children impossible, the Court finds that quality time with the Father is better spent by the granting to him of two additional overnights per month. In this regard, the Court finds that by expanding one of the Father's alternating weekend parental access periods from Thursday to Monday (see infra) instead of Friday to Sunday, the children will be able to spend two additional overnights with the Father. This will enable the Father to, among other things and for example, have dinner with the children two more nights, study with the children two more nights, engage in activities with the children two more nights, and to be able to say "goodnight" and put his children to bed two additional nights. While seeing his children once per week under the existing schedule may be beneficial to the Father, the reality is that after only ninety minutes with the Father on a Thursday under the existing schedule, these children must leave; they must say "goodbye". The extension and expansion of the Father's alternate weekend access on one weekend eliminates a quick visit where the children conceivably yearn for more time, while providing to the Father and the children two more full nights that they can spend with each other. To reiterate: visitation is a joint right of the noncustodial parent and the children. See generally Matter of Spampinato v. Mazza, 152 AD3d 525 (2d Dept. 2017).

The Court is therefore expanding the Father's parental access insofar as maintaining the concept of an "every other weekend" schedule, but modifying it insofar as the Father shall have the children on alternating weekends, with one weekend being from Friday to Sunday (to take place in New York) and with the other weekend being from Thursday to Monday (to take place in Maryland). The Court additionally awards the Father ten (10) days of uninterrupted access with the children over the summer. While the Court certainly notes that the "quantity" of time may be slightly reduced, the "quality" of time that the Father will have with these children is certainly expanded. The Court finds that the best interests of these children will be better served by additional quality time with their Father, which includes additional overnights. To adopt the logic of the Father that his Thursday night ninety (90) minute parental access periods should, in part, prevent a relocation fails to see the forest through the trees. These children's best interests would much better be served by spending two more overnights per month with the Father, rather than a mere ninety minutes on a Thursday. Ninety minutes once a week barely gives these children enough time to truly bond with their Father. The Court finds that the two additional overnights per month with the Father, along with the additional ten (10) days of uninterrupted access in the summer, meaningfully replaces the mere ninety (90) minutes of parental access on Thursday nights.

According, and for all of the aforesaid reasons, it is hereby:

ORDERED, that Branch (d) of the Defendant's Order to Show Cause dated June 16, 2021, Branch (c) of the Defendant's Order to Show Cause dated June 3, 2022 and Branch (B) of the Plaintiff's Order to Show Cause dated September 12, 2022 be and the same are all hereby GRANTED TO THE EXTENT set forth in this Decision and Order such that the parental access provisions of the parties' Judgment of Divorce dated January 30, 2020 is hereby MODIFIED TO THE EXTENT set forth in this Decision and Order; and it is further

ORDERED, that the Father shall have regular parental access with the subject children, SN, SS and CS on an alternating weekend basis to the extent and as is more fully set forth in this Decision and Order; and it is further

ORDERED, that on the first alternate weekend, and on each and every other alternate weekend thereafter, the Father shall have parenting time in New York beginning on Friday, commencing two hours before Shabbos, through Sunday at 5:00 p.m., with the Mother being responsible for the transportation of the children, with drop-off at the Father's residence two hours before Shabbos on Friday and pick-up at the Father's residence on Sunday at 5:00 p.m.; and it is further

ORDERED, that on the second alternate weekend, and on each and every other alternate weekend thereafter, the Father shall have parenting time in Maryland beginning on Thursday at 5:00 p.m. through Monday morning drop-off at school, or if there is no school, drop-off at the Mother's residence at 9:00 a.m.; and it is further

ORDERED, that on the Father's second alternate weekend of parental access in Maryland, the Mother shall be liable and responsible for the cost of a round-trip airline ticket for the Father in economy class, or the cost of a train ticket for the Father if the Father elects to travel by train, or the cost of gasoline for the Father's automobile, if the Father elects to travel by automobile; and it is further

ORDERED, that the Father shall be permitted to purchase his round-trip economy class airline ticket or his train ticket in advance and shall submit proof of payment to the Mother within seven (7) days of purchase thereof, with the Mother to reimburse the Father within seven (7) days of her receipt of proof of payment thereof; and it is further

ORDERED, that in the event that the Father elects to travel by automobile, he shall submit proof of payment of all gasoline purchased to and from New York to Maryland and then Maryland to New York within seven (7) days of his return to New York, with the Mother to reimburse the Father within seven (7) days of her receipt of proof of payment thereof; and it is further

ORDERED, that on the Father's second alternate weekend of parental access in Maryland, the Mother shall be liable and responsible for the cost of a hotel room with two bedrooms for the Father and the subject children or a comparable Airbnb with two bedrooms for the Father and the subject children; and it is further

ORDERED, that the Father shall be permitted to book a hotel room or Airbnb in advance and shall submit proof of payment to the Mother within seven (7) days of purchase thereof, with the Mother to reimburse the Father within seven (7) days of her receipt of proof of payment thereof; and it is further

ORDERED, that the Father shall have ten (10) days of uninterrupted parenting time with the children each and every Summer, which may be taken either: (a) after the conclusion of school and before summer camp, or (b) after summer camp and before the commencement of school, or (c) at anytime during the summer if the children do not attend summer camp; and it is further

ORDERED, that the one uninterrupted week of parenting time over the summer shall be selected by the Father at his discretion, which the selection of dates to be provided to the Mother by not later than May 15th; and it is further

ORDERED, that the Mother shall be responsible for transporting the children to and from the Father's home in New York at the commencement and conclusion of his ten (10) uninterrupted days of summer vacation/access with the children; and it is further

ORDERED, that the modified parental access schedule herein shall become effective upon the Mother's relocation to Maryland; and it is further

ORDERED, that Branch (b) of the Plaintiff's Order to Show Cause dated May 19, 2021 be and the same is hereby DENIED.

MODIFICATION OF CUSTODY/COMPLIANCE WITH ORDERS

During the Hearing, the Mother withdrew her request for a modification of the Judgment to the extent that she sought sole custody of the children. Accordingly, it is hereby:

ORDERED, that Branch (a) of the Plaintiff's Order to Show Cause dated May 19, 2021 be and the same is hereby deemed WITHDRAWN and not adjudicated herein; and it is further

ORDERED, that Branch (d) of the Defendant's Order to Show Cause dated August 26, 2021 and Branch (E) of the Plaintiff's Order to Show Cause dated May 19, 2021 be and the same are all hereby GRANTED TO THE EXTENT that both parties are directed to comply with the custody provisions of the parties' Stipulation of Settlement dated September 26, 2019, unless to the extent that any of those provisions were modified or augmented by this Decision and Order.

MODIFICATION OF DRUG TESTING/OPERATION OF MOTOR VEHICLE

The parties' Stipulation provides:

6.29 DRUG TESTING

A. The FATHER agrees that he will go monthly for drug testing for two years from the signing of this agreement under the auspicious [sic] of Dr. Hylton Lightman. In the event he tests positive for substance abuse, FATHER's visitation will become supervised by a person of the MOTHER's choice until such time as the Drug testing comes back clean for a period of three (3) consecutive weeks.

B. The parties acknowledge that the Mother shall have the right to compel the Father to submit to a random drug test (without prior order or permission of a court) as she deems appropriate. The Father shall immediately inform the Mother if he fails any drug test.

C. In the event that the Father fails to submit to a drug testing in accordance with this Agreement, or a court's directive/order, or as requested/required by any treating facility or monitoring the Father's sobriety, including but not limited to an outpatient program attended by the Father, or if the Father fails a drug test, the Father's custody and parenting time rights shall be adjusted as follows: Until such time as the Father tests negatively for drug use for a period of three (3) consecutive weeks, the Father's parenting time set forth herein shall be suspended and the Father shall instead be entitled to weekly supervised parenting time with the Children, supervised by the Mother or any third party approved by the Mother, which shall not include overnight parenting time.

D. Furthermore, until such time as the Father tests negatively for drug use for a period of three (3) consecutive weeks, the Mother shall have final decision making authority in the event that a dispute arises between the parties with regard to a major decision relating to the Child after consultation with the professional involved in the Child's life pertaining to that particular issue. Notwithstanding, the parties shall endeavor to avoid making any major decisions for the Child during such period of time where this provision with regard to joint legal custody shall apply.

E. This provision shall also apply in the event that the Father fails to submit to drug testing in accordance with this Agreement, or a court's directive/order, or as requested by any facility treating or monitoring the Father's sobriety, including but not limited to an outpatient program attended by the Father, or if the Father fails a drug test.

It is clear to the Court from the testimony and evidence adduced at the Hearing that the Father has a history of using Adderall. It was clear to the Court that the Father previously entered rehabilitation for the use and/or misuse of Adderall. While that may have occurred prior to the execution of the Stipulation, the Court finds his history germane inasmuch as he seeks to modify the drug testing provisions of the parties' Stipulation. Notably, the Father testified that he continues to use Adderall, albeit consistent with how it is prescribed by his treating clinician. However, what shines bright to the Court is his continued use of Adderall notwithstanding and irrespective of his prior stint in rehabilitation. The Father, therefore, has failed to convince this Court that the drug testing parameters of the underlying Stipulation should be abated. While the Court lauds the Father for entering rehabilitation, the Court's duty runs to protect the interests of the children. Courts should never lose sight of the State's interest as parens patriae in protecting the well-being of children, as well as the overwhelming interest in the safety of children. In re Anne BB, 202 AD2d 806 (3d Dept. 1994). Given the Father's continued use of Adderall, this Court must ensure that the Father is taking that medication consistent with the parameters of how it is prescribed, and finds that the drug testing provisions of the parties' Stipulation should remain in full force and effect. Accordingly, it is hereby:

ORDERED, that Branch (c) of the Defendant's Order to Show Cause dated June 16, 2021 be and the same is hereby DENIED; and it is further

ORDERED, that Branch (D) of the Plaintiff's Order to Show Cause dated May 19, 2021 be and the same is hereby GRANTED TO THE EXTENT that, when the children are present in the car with the Father, the Father shall not operate a vehicle while under the influence of alcohol or illegal drugs, nor shall he operate said vehicle if he is under the influence of any prescription medication inconsistent with how said medication is prescribed.

SUMMER ACCESS 2022

The Court notes that the summer months of 2022 have long passed. Accordingly, it is hereby:

ORDERED, that Branch (d) of the Defendant's Order to Show Cause dated June 3, 2022 be and the same is hereby deemed MOOT and not adjudicated herein.

RIGHT OF FIRST REFUSAL

Inasmuch as the Court has granted the Mother permission to relocate with the children to Maryland, the Court does not find that granting the Father the right of first refusal to be practical. In actuality, the right of first refusal in this instance would be a near impossibility. In any event, even if the Court had not granted the Mother the right to relocate to Maryland, it does not find that the Father met his burden to modify the Judgment insofar as granting him a right of first refusal. Accordingly, it is hereby:

ORDERED, that Branch (e) of the Defendant's Order to Show Cause dated June 3, 2022 be and the same is hereby DENIED.

COUNSEL FEES

Both parties effectively seek reimbursement of some of their counsel fees incurred in connection with these enforcement of modification proceedings. Domestic Relations Law § 238 provides, in relevant part, that:

"... [i]n any action or proceeding to enforce or modify any provision of a judgment or order entered in an action for divorce ... the court may in its discretion require either party to pay counsel fees and fees and expenses of experts directly to the attorney of the other party to enable the other party to carry on or defend the action or proceeding as, in the court's discretion, justice requires having regard to the circumstances of the case and of the respective parties..."

However, the Court has carefully reviewed the exhibits appended by both parties to their respective applications. While the Defendant appends his retainer agreement with his counsel to Motion Sequence No.: 002, and while the Plaintiff appends her retainer agreement with her prior counsel to Motion Sequence No.: 003, neither party appends their billing invoices/statement(s) for services rendered to their respective applications. To this end, the Court is unable to determine the amount of legal fees incurred with respect to the instant application(s) (see generally DeCamello v. DeCamello, 151 AD3d 804 (2d Dept. 2017) (documentation needed to establish how much in legal fees were incurred)), which constrains the Court to deny same without prejudice to renewal upon compliance with the applicable requirements (see generally Daich v. Daich, 153 AD3d 900 (2d Dept. 2017). See also F.J.O. v. M.I.O., 76 Misc 3d 1207(A) (Supreme Court Nassau County 2022) (denying without prejudice and with leave to renew counsel fee application in the absence of statements for services rendered). Accordingly, it is hereby:

ORDERED, that Branch (e) of the Defendant's Order to Show Cause dated June 16, 2021 be and the same is hereby DENIED without prejudice and with leave to renew upon the submission of proper papers demonstrating compliance with applicable requirements; and it is further

ORDERED, that Branch (D-2) of the Plaintiff's Order to Show Cause dated August 23, 2021 be and the same is hereby DENIED without prejudice and with leave to renew upon the submission of proper papers demonstrating compliance with applicable requirements.

Any other relief requested not specifically herewith is hereby DENIED.

This constitutes the DECISION AND ORDER of this Court.

[1] Signed by the Hon. Joseph H. Lorintz, J.S.C., in the absence of the undersigned Justice.

[2] The Court may refer to the subject children as the "G children" to avoid confusion as both parties have remarried and their respective new spouses also each have children of their own.

[3] See Defendant's Exhibit B, in evidence.

[4] In determining whether a proposed relocation is in a child's [or children's] best interests, courts are free to consider and give appropriate weight to all of the factors that may be relevant to the determination. Matter of Argila v. Edelman, 174 AD3d 521 (2d Dept. 2019) (emphasis added). The Court finds the other factors discussed herein (see infra) to be relevant to it's determination.

[5] See Plaintiff's Exhibit 5, in evidence.

[6] See Plaintiff's Exhibit 2, in evidence.

[7] See Plaintiff's Exhibit 1, in evidence.

[8] It also does not appear to the Court that the Father wants the children to principally reside with him, as he does not request custody (see infra)."