NEW YORK CHILD CUSTODY - ONE PARENTS ABUSIVE BEHAVIOR

MATTER OF KE v. AE, 2025 NY Slip Op 51557 - Kins Co. Family Court 2025:

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Procedural History

On March 31, 2023, K.E. filed a petition for custody of his son, L.E. On that same day, A.E. filed a family offense petition against Mr. E., alleging that he had committed several crimes against her. On or about May 24, 2023, Ms. E. filed a cross-custody petition regarding L. On March 15, 2024, the family offense matter resolved on consent with a one-year Order of Protection which forbid Mr. E. from communicating with Ms. E. except through the Our Family Wizard platform with regard to parenting time and the wellbeing of the child. The trial of these cross-custody petitions also commenced on March 15, 2024, with further testimony being heard on August 19, 2024, August 21, 2024, September 23, 2024, December 20, 2024, February 14, 2025, February 19, 2025, April 28, 2025, and July 3, 2025. Written summations were due to the Court by August 22, 2025.

Findings of Fact

Mr. E. met Ms. E. on March 28, 2017. Soon after, they developed a relationship. They began living together in September 2017 and were married in August 2019. The couple initially lived together in New Jersey but moved to Brooklyn in October 2020. Their son L. was born on in 2022. Mr. E. was actively involved in prenatal appointments and was present when L. was born. After L. was born, both parents continued to care for him, though Ms. E. was home on parental leave and did the bulk of childcare.

In early 2022, due to the ongoing war, the couple decided to have Ms. E.'s mother and brother move from Ukraine to live with them in Brooklyn in a two-bedroom apartment. While Ms. E.'s brother moved out after a few months, Ms. E.'s mother continued to reside with the couple and L. After Ms. E.'s mother moved in, she took over some childcare duties including attending well visits with Ms. E. and L.

Ms. E. testified that she went back to work when L. was about 5 months old to support the family financially, including to maintain the family's health insurance. Ms. E.'s mother cared for L. when Ms. E. was working. Ms. E. testified as to the small details of her care of L. including trimming his nails, dancing, playing with Play-Doh, etc. These details support the Court finding Ms. E.'s testimony credible that when she returned from work, she provided the bulk of the childcare. However, the Court does credit Mr. E.'s testimony that he also was involved in caring for L. when he was not working.

Mr. E. repeatedly raised issues that he appeared to believe reflected negatively on Ms. E.'s inherent character and suitability as a parent. He testified that the parties met at a go-go bar that he frequented^[1] near his home shortly after Ms. E. began working there. At the time of their marriage, Mr. E. believed Ms. E. had overstayed on a student visa, though Ms. E. submitted documentation indicating that she did have a valid visa at the time they were married and testified that she obtained a green card during the marriage. Mr. E. was critical of Ms. E.'s decision to take the subway with L. the day after a shooting on a subway. While the Court does understand why this caused Mr. E. concern, there is no basis to believe that Ms. E.'s decision to take the subway that day was reckless or inappropriate. Finally, Mr. E. believed that Ms. E. had accidentally locked L. alone in the apartment while having a drink with a neighbor. Ms. E. strongly disputed Mr. E.'s accusations. She testified that she had opened to door to give a package to her neighbor and, when the door shut and locked behind her, she immediately had another neighbor enter her apartment through the shared fire escape to then open her door, which only took a few minutes. Ms. E. is the only person who testified who had direct knowledge of this incident and she appeared candid and forthcoming while doing so. Having had the unique opportunity to observe the demeanor and testimony and assess credibility, the Court credits her testimony.

In contrast, the Court finds Mr. E.'s testimony significant for demonstrating how negatively he views Ms. E. and his desire to overstate safety and parental fitness concerns about her. Notably, his criticisms of Ms. E. were at times plainly hypocritical, including condemning her for working at a bar that he admitted that he regularly patronized himself, and for attacking her for living in a "dilapidated, terrible place"^[2] when he had lived in effectively the "same building, same environment, same everything"^[3] that was only "50 feet away"^[4] prior to the couple breaking up. Mr. E. also seemed to suggest that Ms. E. was effectively engaging in a fraudulent relationship with him motivated by her seeking immigration status. However, the Court does not find this convincing as Mr. E. was aware of Ms. E.'s immigration status, the couple were together for years, chose to get married, chose to have a child together, and Ms. E. provided compelling evidence that her eventual decision to leave was due to the hostile environment Mr. E. played a significant role in creating.

In March of 2023, Mr. E. left New York for a five-day business trip. Mr. E. believed that Ms. E. had initially planned to join him on the trip, but shortly before their planned departure she said she had to stay behind to cover a work emergency. On the day he returned and after his plane had landed, Ms. E. texted him that she had taken L. and moved out of the apartment but had fed and walked the dog before she left. Mr. E. responded with a series of vitriolic texts, including "I pray that you die a slow horribly painful death. Like brain cancer you fucking cunt."^[5] Mr. E. indicated that he was frantic and desperate to find L. He immediately called the police who arrived at the home before he did. He was then delayed in entering the apartment because he lost his keys but when he did, he believed the dog was "hungry [and] frail."^[6]

Mr. E. eventually reviewed camera footage from the apartment building and became convinced that Ms. E. was assisted in moving out by the son of her attorney, Mr. Gorodetsky. Ms. E. testified that the person who assisted was someone she had hired and had no connection to her attorney. Nonetheless, Mr. E. repeated the narrative he'd created and returned to the issue several times during his testimony, albeit at time raised by counsel for Ms. E. The Court credits Ms. E.'s testimony as, like with the incident of the apartment door locking with L. inside, Ms. E. is the only person with firsthand knowledge who testified and she presented as credible during her testimony. However, the Court attaches no importance as to who assisted Ms. E. in moving, other than to note Mr. E.'s outrage and fixation on his theory.

Ms. E. testified that she knew Mr. E. would be angry when she and L. left and that she deliberately left before he returned because he was often angry and verbally abusive to her. She explained that she filed for an Order of Protection against him because she "was experiencing constant pressure, threats, disrespect, humiliation."^[7] She conceded that he had never physically harmed her, but testified that he frequently disparaged her, such as calling her a "whore" in front of L.^[8] and threatened to inflict physical harm on her.^[9] The text messages that he sent to her when he learned she had left, such as specifying that he hopes she dies a slow and painful death like from brain cancer, only bolster her testimony as to the way he would treat her before she left. Ms. E.'s mother, T.U., also testified to observing the couple argue frequently, and that during arguments, Mr. E. would use abusive language towards Ms. E., such calling her "a prostitute, a bitch, a whore [and that] she was stupid,"^[10] including saying these things when L. was present.^[11]

Even text messages that were offered by counsel for Mr. E. and admitted into evidence support Ms. E.'s testimony about his deep, intense anger and derision of her, including statements that "this is an apology for what I will be doing. I will spend every day of my life working to not only win my son back, but also [Ms. E.] will reap the consequences in court, and she will lose everything"^[12] and "I swear on L.'s life, that until either I or her die, that I will do all there is to be done to show the world her true devil self."^[13] The court also notes that Mr. E. is significantly larger than Ms. E. Given his intense anger, his continuous disparagement of her, the size difference between the two, and his attempts to hold immigration issues over her head^[14], the Court finds it both reasonable and credible that Ms. E. felt intimated by and afraid of Mr. E.

In the weeks that followed Ms. E.'s move with L., Mr. E. was urgently seeking contact with L. and he continued to reach out to Ms. E. multiple times a day until he was served with an order of protection. He received a temporary order of visitation about 15 days after Ms. E. left with L. Mr. E. testified that Ms. E. cancels his parenting time inappropriately and that he spends $60-70 in tolls plus gas to exercise his parenting time now that Mr. E. moved to New Jersey.

Mr. E. also expressed concern that Ms. E. was not meeting L.'s educational needs. He testified that he had brought up concerns regarding L.'s speech for months before Ms. E. agreed to obtain services, and that once she did, she obtained services from a Russian speaking provider. Mr. E. objected to L. obtaining services from a Russian speaking provider as Mr. E. does not speak Russian and wants to be able to communicate with L. Ms. E. conceded that at the time Mr. E. first raised issues about L.'s delays, she did not believe L. was significantly delayed and did not take steps to get an evaluation. However, as L. grew older, she saw reasons to be concerned and did arrange an evaluation and services. She believes, based on emails she received from a service provider that allegedly included forwarded communication between Mr. E. and the provider, that Mr. E. thwarted her efforts to obtain services by threatening providers who speak Russian. For this reason, she has consented to L. receiving some of his services in New Jersey. It is clear from both parties' testimony that they cannot make decisions together. Ms. E. presented evidence of providing Mr. E. with medical information and documents^[15], yet he still complained and criticized the medical treatment. The evidence and testimony demonstrated that any attempt to discuss the substance of an educational or medical decision with Mr. E. would devolve from a discussion of the issue at hand into a diatribe by Mr. E. about how horrible of a person and mother Ms. E. is.

Legal Analysis

In summations submitted by counsel, each parent respectively contends that they should be awarded sole legal custody. Ms. E. contends that she should also be awarded primary physical custody, while Mr. E. contends that the parties should be both awarded joint physical custody with a 50/50 split of parenting time on a 5-5-2-2 type schedule. On summation, for the first time, Mr. E. also reports that "regardless of how this Court determines legal custody, [he] shall return to reside in Brooklyn, within a short distance of [Ms. E.'s] residence."^[16] However, it is notable that there was no testimony at trial whatsoever by Mr. E. about his intent to relocate to Brooklyn. Instead, he testified at length about what he believed where the advantages of his residence in New Jersey, which makes the Court unable to consider his newly stated intend to relocate to Brooklyn a reliable plan.

The decision to grant initial custody of a child must be based upon the best interests of the child standard. See, Friederwitzer v. Friederwitzer, 55 NY2D 89 (1982); Eschbach v. Eschbach, 56 NY2d 167 (1982). Ms. E.'s history as the primary caretaker for L., her more stable demeanor, and her credible assertion that she will comply with orders for her son to have parenting time with her father, all weigh in favor of an award of custody to Ms. E. being in L.'s best interest.

Mr. E. testified that he believes that he is the parent better able to provide for L., that he has a nicer home environment (in New Jersey), and that he would be more supportive of a healthy coparenting relationship.

The Court does not credit Mr. E.'s contention that he is the parent better able to financially support the child. Mr. E. admitted he needed to file for bankruptcy in part due to legal fees. Ms. E. testified that she went back to work because the family was struggling financially and they needed health insurance. The Court does not find that financial stability weighs in either parent's favor. Rather, they both appear to be similarly able to meet L.'s basic needs.

Mr. E. testified that the couples' move to Brooklyn was always meant to be temporary. He testified that he felt that L., by primarily residing with his mother in Brooklyn during the pendency of this matter, was "living in a dilapidated, terrible place."^[17] He went on to testify about the "resort-style living"^[18] that he enjoys in New Jersey, and his intent to enroll L. in a private school operated by his church in East Brunswick. However, Mr. E.'s contentions in this regard were merely conclusory, and they were further undermined by his statements in summation that he newly intends to return to reside in Brooklyn. Further, when determining which environment is more suitable for the child to primarily reside, it is more imperative to consider which environment is more supportive of the child having a healthy relationship with the other parent than it is to consider which environment offers "resort-style living."

The determination of how much parenting time and under what parameters is in the best interests of the child is left to the discretion of the Family Court. See e.g. Larkin v. White, 79 AD3d 751, 751 [2d Dept 2010]; McMillian v. Rizzo, 31 AD3d 555, 555 [2d Dept 2006].

An award of joint custody here is not appropriate. "Entrusting the custody of young children to their parents jointly, especially where the shared responsibility and control includes alternating physical custody, is insupportable when parents are severely antagonistic and embattled." Braiman v. Braiman, 44 NY2d 584, 587 [1978]. "Joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion." Id. 589-90. These parents have an acrimonious relationship characterized by Mr. E.'s attempts to control and undermine Ms. E., as described below.

The Court further finds it would not be in L.'s best interests to award sole custody to Mr. E. The Court did not find Mr. E. credible in his claims that he is the parent best able to support coparenting. Through his testimony, written exhibits (including the text exchanges he submitted), and his demeanor during the trial, Mr. E. demonstrated that he has intense contempt for Ms. E. that he is unable to look past in the context of his coparenting relationship. Indeed, the text messages admitted as Petitioner's Exhibit 7, messages between Mr. E. and Ms. E.'s mother, demonstrate the depth of his anger. "Your daughter is not only a liar, ex stripper, a cheat and a con artist, she is unfortunately the mother of my child."^[19] "L. will eventually make her pay when he sees her true self."^[20] "I will never teach him to hate her, but he will know every detail of what she did when he is old enough, and he will decide if she is a `mother' or .... [sic]"^[21] "Apparently you think any female is a mother, but a mother is something [Ms. E.] would never understand."^[22] Respondent's Exhibit L also included text messages from Mr. E. telling Ms. E. "you're not his mother. A mother is not someone who gives birth. A Mother is something you can never be."^[23] "I AM HIS ONLY PARENT."^[24] Although these same text messages from Mr. E. accuse Ms. E. of failing to coparent and trying to alienate the child, these messages provide clear additional support for the Court's finding that Mr. E. himself does not support co-parenting with Ms. E. but instead actively discourages it.

L. is currently three years old and undoubtably will only be more and more aware of how his parents talk about and treat one another as he grows older. Mr. E. has given this Court every reason to believe that L. will grow up with an acute awareness of his father's contempt for his mother. The statement that he won't "teach [L.] to hate [his mother]"^[25] but that he will make sure that his son "will know every detail of what she did,"^[26] is but one example of his inability to shield L. from the intensity of his hatred for L.'s mother.

Furthermore, Mr. E.'s admissions of open contempt for Ms. E. such as the example above raises great concern to this Court as it is a hallmark symbol of a parent intending to use coercive control to alienate a child from the other parent. Pursuant to Domestic Relations Law §240, this Court must consider the effects of domestic violence upon the best interest of L. Mr. E.'s attempts to dominate Ms. E. and undermine her as parent are properly considered as domestic violence. "For over 15 years, scholars have understood that domestic violence is not limited to acts of overt physical aggression but rather can exist through the interpersonal relationship dynamics of two adults. One partner may exert coercion over the other, using `force or threats to compel or dispel a particular response.' Evan Stark, Coercive Control: How Men Entrap Women in Personal Life 228 (2007). Independently, a relationship may feature one partner controlling the other, through `structural forms of deprivation, exploitation, and command that compel obedience indirectly.' Id. at 229. Coercion and control can exist together, creating a `condition of unfreedom' also known as entrapment. Id. at 205." Matter of Aisha R., 79 Misc 3d 1106, 1109-10 [Fam Ct 2023].

Mr. E.'s behavior as described by Ms. E. clearly demonstrate a pattern of coercive control. She described him as demeaning, easily enraged, and limiting her ability to get day care and educational services for L. The Court credits this testimony as it comports both with the text messages and Mr. E.'s demeanor in court. During Ms. E.'s testimony, Mr. E. rolled his eyes, scoffed, and appeared incredulous throughout, underscoring his attempts to undermine her. This type of abuse puts Ms. E. at risk even after the termination of her marriage to Mr. E. "Coercive control can have devastating impacts on victims/survivors. In addition to its well-documented effects on physical and mental health, [researchers] highlight that coercive control limits victims'/survivors' space for action, that is their freedom to say and do things and to meet their own needs without worry or fear. As perpetrators microregulate their everyday behaviors, victims'/survivors' options, choices, and ability to decide for themselves diminish. These constraints on their agency and voice often contribute to a profound disempowerment, loss of self, and loss of confidence in victims/survivors." Emma Katz, Beyond the Physical Incident Model: How Children Living with Domestic Violence are Harmed By and Resist Regimes of Coercive Control," 25 Child Abuse Rev. 46, 48 (2016) (citations and internal quotation marks omitted). Ms. E.'s testimony reflects examples of her giving into Mr. E.'s attempts at control. Specifically, she admitted to signing a lease in New Jersey (Petitioner's Exhibit 4) with the father just weeks before she ended the relationship because he was constantly pressuring her to do so.^[27] She also testified to failing to object to the father arranging services for L. in New Jersey after he undermined her efforts to obtain services near her home. Were this Court to give Mr. E. primary custody of L., Ms. E. would be vulnerable to further control as she sought to preserve her relationship to L.

Mr. E.'s behavior not only has a detrimental impact on Ms. E. who is currently L.'s primary caregiver, it also directly places L. at risk. "Research has shown that children are not only witnesses to domestic violence, but actual victims who experience the same dynamics in the home." Aisha R. at 1113 (citing Katz, supra at 52). Children exposed to domestic violence have been found to have similar levels of emotional and behavioral problems, trauma symptoms, and compromised social and academic development similar to those of children who are direct victims of the abuse. Samantha Jeffries, In the Best Interests of the Abuser: Coercive Control, Child Custody Proceedings and the "Expert" Assessments That Guide Judicial Determinations, 5 LAWS 1, 2-3 (2016). Even though L. may currently be too young to vividly display the signs of harm from exposure to domestic violence, that does not mean that the risks are not real, and it is in his best interest to minimize his further exposure to such violence.

The impact is not limited to children who witness physical violence. "As one court quoted an expert, `[the domestic violence] isn't necessarily physical but may be more dangerous because it's emotional and much harder to detect.'" Lisa Tucker, Domestic Violence as a Factor in Child Custody Determinations: Considering Coercive Control, 90 Fordham L. Rev. 2673, 2677 (quoting G.I. v. J.S., CK16-03072, 2017 WL 4792366, at *4 [Del Fam Ct May 18, 2017]). The effect can be serious and long term. "Children who witness domestic violence can suffer serious emotional symptoms including internalizing symptoms (e.g., anxiety, depression, fear, shame, social withdrawal, somatic complaints, bedwetting, poor concentration) and externalizing symptoms (e.g., aggression, impulsivity, bullying, criminal behaviors)." Debra Pogrund Stark et. al., Properly Accounting for Domestic Violence in Child Custody Cases: An Evidence-Based Analysis and Reform, 26 Mich J Gender & L 1, 22 [2019]. And the physical separation of the parents does not mean the end of risk of harm, as "post-separation, perpetrators/fathers can continue to target coercive control at children as well as at their ex-partners.... Like adult victims/survivors, many of the children and young people were living under conditions of constraint and entrapment, and coercive control could severely harm their emotional/psychological, social and physical wellbeing and their educational achievement." Emma Katz, Anna Nikupeteri & Merja Laitinen, When Coercive Control Continues to Harm Children: Post-Separation Fathering, Stalking and Domestic Violence, 29 Child Abuse Rev. 310, 322 (2020) (internal citation omitted).

Mr. E. claiming he won't "teach [L.] to hate"^[28] his mother is only feigning innocence when he effectively says he intends to do everything he can to encourage L. to feel the same way about Ms. E. as he does by way of "every detail"^[29] he will tell his son. It is not in L.'s best interest to be in an environment where he would not be allowed to freely love and appreciate both of his parents, nor should he be placed at risk of the long-lasting psychological impacts that can arise from such an environment. He should primarily reside in an environment free from manipulation, sabotage, or conditioning meant to inspire hatred. Conversely, the evidence and testimony has not given the Court any reason to have any serious concerns that Ms. E. intends to foster such an environment for L. which would be similarly hostile to L.'s relationship with his father. Even in the midst of heated text messages between the parties, Ms. E. implored Mr. E. to "think of L. first"^[30] and pointed out that L. "needs his mother, and father too. We both will be in his life, and in each others unfortunately too, despite you want it or not. [sic] Maybe instead of initiating war, try to make peace."^[31] Notably, no credible evidence was presented that Ms. E. failed to comply with this Court's orders regarding Mr. E.'s parenting time during the pendency of this case.

While counsel for Mr. E. contends that his text messages after learning that Ms. E. had left the home with their son were "justifiably angry,"^[32] and contends that Ms. E.'s "entire case was based upon angry text messages sent by the father after she abandoned him and absconded with his baby,"^[33] the Court must be clear that the bulk of relevant evidence to support its findings either significantly pre-date or post-date the period of shock from learning that Ms. E. had left with their son. Ms. E. testified to the constant threats, disrespect, and humiliation she suffered throughout their relationship and before she decided to leave with L., and the text messages admitted as Petitioner's Exhibit 7 are from November 2023, more than seven months after Ms. E. left and the instant custody litigation was commenced. Further, angry text messages, regardless of the time period, are not the sole basis of this decision, but are pieces of significant evidence which corroborate the credible testimony of Ms. E.

Decision and Order on V-06482-23

Accordingly, for the reasons set forth above, it is hereby

ORDERED after the Court having searched the statewide registry of orders of protection, the sex offender registry and the Family Court's warrant and child protective records, and having notified the attorneys for the parties and for the child there are no current results,

Mother, A.E., is awarded sole legal and physical custody of the child L.E.

Father, K.E., is awarded parenting time as follows. He shall have alternate weekends, father to pick up the child from daycare/school on Friday and return the child to mother's home curbside on Sunday by 5pm. He shall also have weekly overnight visits from Tuesday 3pm until Wednesday 7pm. However, once L. is enrolled in full time school, the father's Tuesday evening overnight visits into Wednesday shall be contingent upon on the father residing within 10 miles of the child's home, as to not unduly interfere with his schooling.

Mr. E.'s parenting time shall continue over the summer with pick up at 5:00pm Friday and to Sunday at 5:00pm drop off, exchange location to be curbside at the home of the mother.

The regular parenting schedule shall continue over the summer except that both parents shall be entitled to a two-week block of parenting time over the summer with dates to be provided on March 1 each year. In even years, father's choice shall be given first priority and in odd years, mother's choice shall be given first priority. The continuation of the parenting schedule will allow L. to remain enrolled in any year-round services he may be participating in.

In odd years, father shall have Thanksgiving break from Wednesday before Thanksgiving pickup at school/day care to Sunday at 5:00pm. In even years, mother shall have Thanksgiving break.

In odd years, mother shall have Christmas break from the last day of school/day care until December 26 at 5:00pm and father shall have remainder of break until the night before school resumes at 5:00pm. In even years, father shall have Christmas break from the last day of school/day care until December 26 at 5:00pm and mother shall have remainder of break until the night before school resumes at 5:00pm. Exchanges curbside at mother's home.

The parent who had Thanksgiving shall have the child for the midwinter (February) break of the same school year, if any. The parent who had Christmas shall have the child for the Easter/spring break of the same school year, if any.

Mother's Day shall be with Ms. E., and Father's Day shall be with Mr. E.

The parent not scheduled be with L. on his birthday per the above terms shall be afforded an option to be with him for at least one hour if it falls on a school day, or for four hours if it falls on a weekend. Birthday time must be requested at least 30 days before L.'s birthday.

If either parent shall travel overnight out of the state with L. (except for NJ, CT, or PA), they must provide the address where L. will be to the other at least 48 hours before travel.

Both parents shall have full, independent access to the child's medical, educational and religious records and providers.

Neither parent shall disparage the other, nor allow any third parties to do the same in the presence of the child.

All communication between the parties shall be via the Our Family Wizard app platform or any other mutually agreed upon platform for communication.

Each parent may call/video L. once a day at 7:00pm when he is with the other parent. L. shall be permitted to initiate other calls/video calls to the other parent at other times.

Mother may not relocate with the child beyond a 15-mile radius of her current residence without written consent by father or court order, unless such relocation is closer to the father's residence.

Order on V-10782-23:

This docket is dismissed with prejudice as custody and parenting time is awarded as described above under Docket V-06482-23.

[1] While on cross examination Mr. E. denied that he visited this particular bar "often," but he also did testify that it was the "closest bar to home" and that he would go there "once every ten days, once every two weeks." Tr 8/19/24 at 6-7.

[2] Tr 3/15/24 at 48, lines 13-14.

[3] Id. at 49, lines 1-2.

[4] Id. at 48, lines 24-25.

[5] Respondent's Exhibit A.

[6] Tr 3/15/24 at 28, line 19.

[7] Tr 8/21/24 at 26, lines 14-15.

[8] Tr 9/21/24 at 33, lines 3-4.

[9] Tr 9/23/24 at 70, lines 18-19 ("He would threaten to slap me if I won't stop talking, he would threaten me that he will abuse me, yes ...")

[10] Tr 2/19/25 at 14, lines 9-10.

[11] Id. at 14, lines 13-15.

[12] Petitioner's Exhibit 7 at 2, 3.

[13] Id. at 3.

[14] Petitioner's Exhibit 7 at 5. ("Hate his mother? I don't need to teach him that, once he realizes that she is a money worshipper and that she alienated him from his father, lied about everything, used his father to get money and a green card, and used him to have her lifestyle financed, he will automatically know who she is.")

[15] Respondent's Exhibit K.

[16] Petitioner Father's Post Trial Summation at 10.

[17] Tr 3/15/24 at 48, lines 13-14.

[18] Id. at 50, line 17.

[19] Petitioner's Exhibit 7 at 2 (and duplicated at 3).

[20] Id. at 3.

[21] Id. at 5.

[22] Id. at 7.

[23] Respondent's Exhibit L at 5.

[24] Respondent's Exhibit L at. 8.

[25] Petitioner's Exhibit 7 at 5.

[26] Id.

[27] Tr 12/20/24 at 4, lines 16-21. ("It was always an argument between us. I never wanted to move to New Jersey. He was pushing, pressuring me to move there." ... "Under his pressure, at some point I did agree.")

[28] Petitioner's Exhibit 7 at 5.

[29] Id.

[30] Respondent's Exhibit 7 at 7.

[31] Id.

[32] Petitioner Father's Post Trial Summation at 2.

[33] Id. at 7."

NY CHILD SUPPORT - CONSTRUCTIVE EMANCIPATION NOT PROVED

MATTER OF LE v. Ye, 2025 NY Slip Op 51038 - Westchester Family Court 2025:

"In this proceeding pursuant to Article 4 of the Family Court Act, petitioner L.E. (hereinafter the "father"), filed a modification petition on August 13, 2024 seeking a discontinuance of his child support obligation for his three children, E.E., T.E. and R.E. (collectively the "children") on the ground that the children have been constructively emancipated. By order of referral dated February 21, 2025 (Bowman S.M.), the matter was referred to this Court for hearing.

By way of background, petitioner, Y.E. (the "mother"), filed petitions for custody of the children on October 22, 2018. Various final and temporary custody orders were entered during the pendency of these matters, each providing for sole legal and physical custody to the mother, and supervised and/or unsupervised access for the father with the children. On February 26, 2019, a support magistrate of this Court (Bowman, S.M.) signed an Order of Support directing respondent to pay basic child support and a pro rata share of certain add-on expenses to the mother on behalf of the three children. While the father paid some child support for a period of time, it is undisputed that the father ceased paying all support in 2023, with the last payment of any kind made in November of 2023. Nine months after he stopped paying support, the father filed the modification petition herein seeking to terminate his obligation in its entirety. In the petition, the father alleges that, despite his efforts, the children have refused to see him for six years, by their choice and not his actions, and as a result, are constructively emancipated.

This Court scheduled a hearing on the petition on March 24, 2025 and May 12, 2025. The mother appeared with her counsel Bobbi Borsellino, Esq. The father appeared pro se after relieving his two, prior court-appointed attorneys and declining the Court's offer to assign another.

At the hearing, the father called a mutual friend of the parties to testify to his efforts to get the children to spend time with the father. The witness testified that he reached out to the mother on behalf of the father two or three times to ask her to bring the kids to family-style events. After a while the mother stopped responding to his calls. The father himself testified that the children refused to see him without justification. He stated that he tried to be a father, moving close to them after the divorce and paying what he could for child support, despite being unemployed. He testified that he "constantly" reached out to see the kids. He did not testify to any more specific acts on his part. The father instead pointed to what he sees as efforts by visitation supervisors to portray him as abusive or deviant, including an incident at the YWCA and an incident with the youngest child on a train. He described these reports as unsubstantiated. The father stated that his elder two children, his sons, have not wanted to visit with him for years and that he has had no communication with them since 2019. His youngest child, R.E. had been participating in supervised visits but also stopped wanting to see him. The father testified that, at one scheduled visit, R.E. hid in the back seat of the car, afraid of him. The father repeatedly stated that the children had no reason to fear him and that there is no criminal case or current order of protection against him.

The mother testified credibly that she has consistently encouraged the children to visit or be in touch with their father. She stated that the father never reaches out to the children except on their birthdays and that she has never prevented the children from speaking with him. She stated that she made the boys go to the YWCA for supervised visits even when she knew they would not participate. As to why the older children did not want to see their father, the mother stated that it was due to what they witnessed in the home, including domestic violence and aggressiveness toward the mother and the children. She said they have memories of violence. With respect to the oldest son, E.E., the mother testified that he returned from a supervised visit when he was about 11 years old stating that he was "done;" he would not see his father anymore. E.E. did not explain to her the reason. Since he was very young, she did not want to push him for information. Following a supervised visit in 2019, the second son, T.E., refused to visit with the father any longer. Again, the mother said she did not push for reasons. She knew their history with the father. In addition, the children had their own therapists, and each had an attorney for the child with whom they were able to discuss their reasons. Finally, after an incident at the YWCA, even R.E. started refusing to see the father.

Ultimately, the supervised visitation at the YWCA was canceled after the father failed to show up for several sessions. The mother testified believably that the father had many opportunities but never pushed to see or be involved with the children. She testified that he did not even show up in the custody matter and his petition for custody was dismissed in his absence. Despite all this, the mother stated that she has been encouraging the children to visit with their father for ten years. In addition, she testified that the father has the children's telephone numbers, and they have his. Available means of communication have always existed. The mother stated that she always tells the children whenever the father calls for their birthdays. She further added that she does not allow the children to say anything negative about their father in her presence. If they try to, she cuts them off saying "he's your father; he will always be your father."

The mother also called her brother to testify. He testified to his own efforts to intervene and bring the father and the children together, to get the father to "step up." He did not want the children to grow up without a father as he did. When the brother expressed this concern to the father, he responded that it is "not [his] problem." The brother's efforts were in vain. He testified that the father has not made any effort to be in touch with the children except for calls on their birthdays.

The mother's testimony was supported by the record in this case. The file contains YWCA reports showing that the mother continued to bring all three children to the YWCA even when the boys indicated that they did not want to see the father. In addition, there is a November 12, 2019 YWCA report that indicates that the YWCA visits were terminated at that time due to the father's failure to show up for several visits. The file also contains a report of an October 20, 2020 visit between the father and the youngest child (R.E.) that had to end early at the request of R.E. after she witnessed the father's "aggressive and/or intimidating behavior" when he became "irate" at overhearing the mother talking on the phone. Following this incident, the YWCA notified the Court that all visits would thereafter be terminated after the father became "hostile with staff" and "bribed a security guard into writing a good report on his behalf." Finally, the court record indicates that the father's custody petition was dismissed on default on October 25, 2023 when the father failed to appear after telling his attorney that he has "moved on."

It should be noted that the father continually stated that the children had no reason to fear him. However, a stay-away order of protection against the father on behalf of the mother and children was in place from May 5, 2018 through January 21, 2022 — for almost four years — following the mother's filing of a family offense petition.

DISCUSSION

"It is fundamental public policy in New York that parents are responsible for their children's support until age 21" (Rosenkrantz v. Rosenkrantz, 21 AD3d 716 [2d Dept 2023]; Matter of Kenneth H. v. Dawn P., 214 AD3d 731, [2d Dept 2023]; see Family Ct Act § 413; Matter of Shisgal v. Abels, 179 AD3d 1070 [2d Dept 2020]). "However, under the doctrine of constructive emancipation, a child of employable age who actively abandons the noncustodial parent by refusing all contact and [parental access] may forfeit any entitlement to support. A child's mere reluctance to see a parent is not abandonment" (Matter of Shisgal v. Abels, 179 AD3d at 1072; see Matter of Roe v. Doe, 29 NY2d 188, 192-193, [1971]; Mitarotonda v. Mitarotonda, 171 AD3d 1040 [2d Dept 2019]). "[W]here it is the parent who causes a breakdown in communication with his or her child, or has made no serious effort to contact the child and exercise his or her parental access rights, the child will not be deemed to have abandoned the parent" (see Matter of Kenneth H. v. Dawn P., 214 AD3d at 732; Matter of Barlow v. Barlow, 112 AD3d 817, [2d Dept 2013]). Such a breakdown in communication between a parent and a child may result from the parent's "malfeasance, misconduct, neglect, or abuse" (Matter of Barlow v. Barlow, 112 AD3d 817 [2d Dep 2013]).Where a child justifiably refuses to continue a relationship with a parent due to such parental conduct, the child will not be deemed to be self-emancipated (see Matter of Barlow v. Barlow, 112 AD3d at 818). "The burden of proof as to emancipation is on the party asserting it" (Rosenkrantz v. Rosenkrantz, 21 AD3d at 717, Matter of Kenneth H. v. Dawn P., 214 AD3d at 732; see Matter of Shisgal v. Abels, 179 AD3d at 1072). In this case, the father has failed to meet his burden of demonstrating the children are constructively emancipated. As an initial matter, it must be noted that the youngest child, R.E., is only 7 years old and can hardly be said to be of "employable age" (see Saunders v. Aiello, 59 AD3d 1090 [2d Dept 2009]; Matter of Ryan v. Schmidt, 221 AD2d 449, 450 [2d Dept 1995]). With regard to the two elder children, the record demonstrates that it was the father who caused the breakdown of the relationship with the children through his own conduct toward the children and the mother, causing the children to justifiably discontinue the relationship (see Matter of Barlow v. Barlow, 112 AD3d 817 [2d Dept 2013]). Moreover, following the rupture, the father failed to demonstrate that he made serious or consistent efforts to contact his children in the years since the supervised visitation ceased (see Matter of Glen L.S. v. Deborah A.S., 89 AD3d [2d Dept 2011] (no constructive abandonment found where father made no serious effort to maintain his relationship with the children); see also Matter of Basile v. Wiggs, 156 AD3d 619, 621[2d Dept 2017] (father made no serious efforts to contact the child or exercise visitation); Radin v. Radin, 209 AD2d 396, [2d Dept 1994] (a few telephone calls cannot be construed as a serious attempt to maintain a relationship with a child). To the contrary, the uncontroverted testimony showed only lackluster and intermittent attempts by the father to connect with the children. Moreover, the father was unable to establish that the mother interfered with or hindered their relationship in any way. The record shows that she encouraged the children to maintain contact with the father and did not allow them to disparage him in her presence (see Saunders v. Aiello, 59 AD3d 1090 [2d Dept 2009]) (mother's failure to encourage the relationship between the child and the father following a rift did not warrant discontinuance of support where her actions do "not rise to the level of `deliberate frustration' of the non-custodial parent's rights). Despite the mother's encouragement, the children still chose of their own accord not to see the father. However, reluctance to see a parent is not abandonment, particularly where, as here, the children have a verifiable justification to support their decisions (see Matter of Glen L.S. v. Deborah A.S., 89 AD3d [2d Dept 2011]; Radin v. Radin, 209 AD2d 396, [2d Dept 1994]).

The record in this case is replete with evidence of the father's refusal to take accountability for his own actions and their role in the destruction of his relationship with his children. Rather than putting forth any serious demonstration of his own efforts to keep in touch, to support or to develop any meaningful relationship with his children, the father repeatedly sought, without any evidence, to lay blame for the failure of his relationship elsewhere. The reports of the father's inappropriate, aggressive and violent conduct, a dearth of any verifiable efforts on his part to connect with the children or repair the damage caused by his actions, and finally, his abandonment of the custody matter, demonstrate that the failure of his relationship with the children falls solely at his feet.^[1]

ACCORDINGLY, IT IS HEREBY

ORDERED that the father's modification petition is hereby dismissed with prejudice.

[1] The case of Thompson v. Thompson, 78 AD3d 845 (2d Dept 2011), repeatedly referenced by the father, does not require a different result as it is readily distinguishable. In that case, the Court found that the mother repeatedly interfered with the court-ordered visitation, disparaged the father and encouraged the estrangement. None of these elements was supported by the evidence in this case."

AFC AND SUBSTITUTED JUDGMENT AND PARENTAL ALIENATION

AFC is attorney for the child....A quick review of psychiatric studies shows that there is a general consensus that parental alienation results in many long-term, negative consequences for a child. Depression, anxiety, poor self-esteem, lack of trust in relationships, and self-defeating behavior are just some of the deleterious consequences. And one can argue, that is a serious harm to the child.

Thompson v. Thompson, --- A.D.3d ---, --- N.Y.S.3d --- (Fourth Dept. 2023)(2023 WL 3160145)(Apr 28, 2023):

"We also reject the mother’s contention that the AFC improperly substituted her judgment for that of the children. Pursuant to 22 NYCRR 7.2 (d), an attorney for the child must zealously advocate the child’s position. However, an attorney for the child is entitled to advocate a position that is contrary to a child’s wishes when the attorney is convinced ... that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child (22 NYCRR 7.2 [d] [3]). In circumstances when an attorney for the child advocates for a position that is contrary to the child’s wishes, the attorney is still required to inform the court of the child’s articulated wishes if the child wants the attorney to do so, notwithstanding the attorney’s position (22 NYCRR 7.2 [d] [3]). Here, the children’s wishes were made known to the court during the Lincoln hearing. Further, although the AFC substituted her judgment for that of the children, she was entitled to do so because the record establishes that the mother engaged in a pattern of alienating the children from the father, which was likely to result in a substantial risk of imminent, serious harm to the children (see Matter of Vega v. Delgado, 195 A.D.3d 1555, 1556, 145 N.Y.S.3d 907 [4th Dept. 2021]; Matter of Grabowski v. Smith, 182 A.D.3d 1002, 1004, 123 N.Y.S.3d 313 [4th Dept. 2020], lv denied 35 N.Y.3d 910, 2020 WL 5047587 [2020]; Matter of Viscuso v. Viscuso, 129 A.D.3d 1679, 1680-1681, 12 N.Y.S.3d 684 [4th Dept. 2015])."

HOUSE RULES IN CHILD CUSTODY DISPUTE REVISITED

In January of this year, I wrote about a case in which the court imposed "house rules" in a custody dispute where the custodial parent was ordered to impose consequences when the child refuses to see the non-custodial parent (see HOUSE RULES IN CHILD CUSTODY DISPUTE IMPOSED) but now the 4th Department has weighed in on this issue in another case to remind litigants that, although the non-custodial parent may be in favor of this, the court must still consider the child's best interests. Burns v. Grandjean, 2022 NY Slip Op 6577 - NY: Appellate Div., 4th Dept. 2022:

"Where there is "a dispute between divorced parents, the first concern of the court is and must be the welfare and the interests of the children" (Matter of Lincoln v Lincoln, 24 NY2d 270, 272 [1969]), and "[a]ny court in considering questions of child custody must make every effort to determine what is for the best interest of the child[ren], and what will best promote [their] welfare and happiness" (Eschbach v Eschbach, 56 NY2d 167, 171 [1982] [internal quotation marks omitted]). Consequently, visitation and "custody determinations should `[g]enerally' be made `only after a full and plenary hearing and inquiry'" (S.L. v J.R., 27 NY3d 558, 563 [2016], quoting Obey v Degling, 37 NY2d 768, 770 [1975]), "[u]nless there is sufficient evidence before the court to enable it to undertake a comprehensive independent review of" the children's best interests (Matter of Balls v Doliver, 72 AD3d 1618, 1619 [4th Dept 2010] [internal quotation marks omitted]).

....

With respect to the imposition of the court's house rules on the mother and the children, even assuming, arguendo, that the court had the authority to impose such rules (cf. Ritchie v Ritchie, 184 AD3d 1113, 1115 [4th Dept 2020]), we conclude that the record fails to demonstrate that the imposition of the house rules in this case was in the children's best interests."

WHEN A PARENT REFUSES TO COMPLY WITH A PARENTING ORDER

SS v, MS, 2022 NY Slip Op 51090 - NY: Family Court 2022:

"Whereas Respondent has demonstrated all of the elements of contempt by clear and convincing evidence, the court finds that Petitioner is in contempt of the court for failing to comply with the courts temporary orders of visitation dated May 16, 2022 and June 13, 2022. Having made this determination, the court must now determine the appropriate penalty. The purpose of any penalty imposed is not to punish but rather, to compensate the aggrieved party and to coerce compliance with the court's mandate (State of NY v Unique Ideas, 44 NY2d 345, 350 [1978]; Larisa F. v Michael S., 122 Misc 2d 520, 521 (Fam Ct Queens County 1984]). Respondent seeks an order of commitment, an award of sole legal and physical custody to Respondent, that Petitioner's parenting time be limited to supervised visitation only, and for such other and further relief as the court deems just and proper.

With respect to the request for supervised visitation, Respondent did not raise any safety concerns on this motion regarding Petitioner's parenting that warrants limiting her parenting time to supervised visitation only. Additionally, although some courts have suggested that a change in custody may result from a finding of contempt under certain circumstances (see Heintz v Heintz, 28 AD3d 1154, [4th Dept 2006), this is strongly the minority position and is not an appropriate result here. Respondent withdrew his custody petition on March 29, 2022 after Petitioner filed her own motion for contempt and does not currently have a custody petition pending before this court. If Respondent wishes to seek an order of custody, he may do so by following the proper procedure.

Finally, the court must consider Respondent's request for an order of commitment. The violations in question here took place over a period of eight weekends and Petitioner has complied with the temporary order of visitation since that time. Therefore, an order of commitment, which is designed to compel compliance with the court's orders, would serve no purpose at this time (see Rubin v Rubin, 78 AD3d 812, 813 [2d Dept 2010]). Respondent should instead be compensated for what was lost—namely, valuable bonding time with the children. Therefore, it is the order of the court that Respondent shall have, in addition to the weekend parenting schedule currently in place, makeup overnight parenting time on the following school holidays: November 11, 2022, November 24, 2022, November 25, 2022, December 26, 2022 through January 2, 2023, January 16, 2023, February 20, 2023 through February 24, 2023, April 6, 2022, and April 7, 2022. The pickup and drop off schedule for these visits shall be as follows:

November 10, 2022 at 5:00 p.m. through November 13, 2022 at 6:00 p.m.

November 23, 2022 at 5:00 p.m. through November 27, 2022 at 6:00 p.m.

December 23, 2022 at 5:00 p.m. through January 2, 2023 at 6:00 p.m.

January 12, 2023 at 5:00 p.m. through January 16, 2023 at 6:00 p.m.

February 17, 2023 at 5:00 p.m. through February 26, 2022 at 6:00 p.m.

April 5, 2023 at 5:00 p.m. through April 9, 2023 at 6:00 p.m.

Any failure on the part of Petitioner to produce the children to Respondent on these dates, absent just cause, shall result in further findings of contempt punishable by an order of commitment."

CHILD CUSTODY - DENYING PARENTAL ACCESS NOT ALWAYS PARENTAL ALIENATION

MATTER OF BURKE v. Squires, 2022 NY Slip Op 861 - NY: Appellate Div., 2nd Dept. 2022"

"The parties are the unmarried parents of one child, born in 2011. Prior custody proceedings resulted in a so-ordered stipulation of settlement dated June 27, 2016 (hereinafter the stipulation), awarding the parties joint legal custody, with primary physical custody to the mother and certain parental access to the father. The stipulation provided, inter alia, that, if any party consistently violated the stipulation by denying access to the child, that action would be deemed a change in circumstances and the injured party could petition the Family Court for a change of custody.

In January 2018, the father filed a petition to modify the stipulation so as to award him sole custody of the child, based upon the mother's alleged violations of the stipulation in failing to comply with his parental access. The mother thereafter filed a petition seeking to modify the stipulation so as to award her sole custody of the child and to eliminate the father's weekday parental access. A hearing was held on both petitions. In an order dated October 15, 2020, the Family Court, inter alia, in effect, denied the father's petition. The father appeals.

Modification of a court-approved stipulation setting forth the terms of custody or parental access is permissible only upon a showing that there has been a sufficient change in circumstances such that modification is necessary to ensure the best interests and welfare of the child (see Baraz v Polyakov, 198 AD3d 853, 854; Sukul v Sukul, 196 AD3d 661, 662). "The paramount concern when making such a determination is the best interests of the child under the totality of the circumstances" (Matter of Cabano v Petrella, 169 AD3d 901, 902; see Eschbach v Eschbach, 56 NY2d 167, 171; Baraz v Polyakov, 198 AD3d at 854). "Inasmuch as custody determinations depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded to the hearing court's findings in this regard" (R.K. v R.G., 169 AD3d 892, 894), and "[t]he court's findings will not be disturbed unless they lack a sound and substantial basis in the record" (id. at 894; see Eschbach v Eschbach, 56 NY2d at 173-174; Sukul v Sukul, 196 AD3d at 662).

Here, the mother's admitted violations of the stipulation of settlement in failing to comply with the provisions concerning the father's parental access established a sufficient change in circumstances to permit the father to seek sole custody under the terms of the stipulation (see Matter of Epstein v Soler-Epstein, 188 AD3d 1052, 1053). However, the father failed to establish that such a change of custody would be in the best interests of the child.

"Parental alienation of a child from the other parent, including willful interference with his or her [parental access] rights, is `an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the [offending party] is unfit to act as custodial parent'" (E.V. v R.V., 165 AD3d 736, 737, quoting Entwistle v Entwistle, 61 AD2d 380, 384-385; see Pandis v Lapas, 176 AD3d 837, 839). Here, however, while the mother failed to comply with the father's parental access on multiple occasions, many of the other violations alleged by the father appear to have been caused by the parties' confusion over the parental access schedule, which was remedied when the parties agreed to a specific schedule of alternate weekends during the proceedings. The child wished to continue her parental access time with the father, undermining the father's claim of alienation. Moreover, the father's own actions, including his failure to exercise four weeks of extra parental access in the summer of 2019, which he was awarded in settlement of his separate violation petition, contributed to the father's failure to have more parental access with the child and any resulting alienation.

Furthermore, the child had always lived primarily with the mother, and wished to continue to do so, and the father had been uninvolved with the child's medical appointments and schooling. While a child's expressed preference is not determinative, it is some indication of what is in the child's best interests (see Matter of Masiello v Milano, 180 AD3d 683, 685). Maintenance of status quo, while also not decisive, is a positive value entitled to great weight (see Matter of Newton v McFarlane, 174 AD3d 67, 82). Finally, although the parties exhibited difficulty in effectively communicating concerning the child, the Family Court's determination that the parties' relationship was not so acrimonious so as to warrant a change of custody (cf. Paruchuri v Akil, 156 AD3d 712, 713), and that a change of custody would further inflame the relationship between the parents and not be in the child's best interests, was supported by a sound and substantial basis in the record.

The contention of the attorney for the child that the matter should be remitted to the Family Court for a reopened hearing on the mother's petition for sole custody of the child, and to determine whether the father should be awarded any parental access at all in light of new developments, is not properly before this Court, as neither the mother nor the child cross-appealed from that portion of the order which denied the mother's petition."

HOUSE RULES IN CHILD CUSTODY DISPUTE IMPOSED

What is your feeling on this case? Is it proper discipline or just punishment?

EEC v. SS, 2021 NY Slip Op 21258 - NY: Supreme Court, Monroe 2021:

"RICHARD A. DOLLINGER, J.

It's the same old song.^[1] The same refrain. But, it needs a new final verse.

A couple have two children. They agree, after a long bitter dispute, on a residential/visitation plan for the children. In reaching that difficult decision, the agreement incorporates what the parents concur is in the best interests of their children. The children's best interests are best served by periodic exchanges with each child visiting the other parent.

When the time comes for visitation, both children complain to their residential parent, suggesting they do not want to go. Each residential parent "urges" them to go to see the other parent but they refuse. In this Court's experience, attempting to determine the sincerity of a parent's "urging" a children to visit another parent — especially a parent involved in a longstanding and bitter custody quarrel — is nigh impossible. The "urging" occurs between a parent — who at best, is sincerely trying to get the child to cooperate and at worst, just reciting the words so they can later tell their attorney — and the judge — "well, I tried to get them to go." This incantation from the witness stand is usually followed, almost instantaneously, with: "There was nothing I could do" or "What did you expect me to do?"

The child, as often the only witness to the favored parent's "urging," is in an even more suspicious posture. Eliciting any testimony that the favored residential parent "urged the child to go" would only occur in a Lincoln hearing.^[2] The child, under questioning in a Lincoln hearing, is, in essence, defending the favored parent and their own behavior. The response to a probing question from the Court, even in the seclusion of a Lincoln hearing, is easy: "Sure mom/dad "urged" me to go but I didn't want to and wouldn't." Given these insurmountable proof obstacles, how can a Court determine whether a parent was really "urging" the child to attend visitation or just mouthing their "urging" while smiling, winking or smirking to the reluctant child.

In seeking a judicial response to this oft-repeated challenge in visitation disputes, this Court recognizes a nuanced and complicated vortex of conflicting impulses. The Court acknowledges that any residential parent, seeking to obtain a child's compliance with an agreed visitation plan, faces Hobson's Choice: if they impose any penalty on the child for failing to follow their parents' agreed visitation schedule, they risk alienating the same child who has expressed a desire to live with them and, perhaps for a wide assortment of issues, opposes visiting their other parent.

What parent would impose a discipline measure on a recalcitrant child when the parent, harboring recent animosity to their former spouse, really does not want the child to go to anyway? Why would a parent impose a discipline if the lack of discipline succeeds in achieving the parent's long fought over but now compromised goal — exercising control over the children and frustrating their former spouse's visitation? If the parent fails to impose any discipline for failing to follow what both parents, together, decided was the child's best interest, then the child reaches a common child-like conclusion: why do what their parents said was in their best interests when there is no penalty for failing to do so.

What does a Court do when a child disregards what their parents decided was their best interest and fails to follow the agreed visitation plan? Holding the child in contempt is unfathomable. But, can the Court take the parent out of the Hobson's Choice and simply order the parents to impose a form of discipline for failing to follow their parent's determination of their best interests?

Faced with that same old song and the same refrain, this Court now writes a concluding verse.

In this matter, two parents fought for more than a year over the visitation with their children. The fight has been bitter and spread across dozens of paragraphs in multi-paged affidavits. An attorney for the children (AFC) represented both children until just recently, when this Court appointed a new AFC solely for the child's son. The family has been in court-ordered counseling. There are allegations of abuse, verbal jousting, exchange of vulgar names and poor parenting decisions, allegations of unacceptable parental conduct and intervention of third-parties. Both parents have fingered the other for alienating the children and seeking to destroy the parental bond. Therapists have worked with the children and parents to seek a common ground. The Court held a hearing but, when partially completed, the Court pushed for a resolution and the parent's agreed to an order defining a new visitation schedule. Under the agreement, the children were split, each parent became the primary residential parent for one of the children. The parents charted a visitation schedule to exchange the children at certain intervals.

But, almost immediately, new allegations surfaced in an order to show cause and new affidavits, littered with an almost blow-by-blow but still highly-disputed account of the parent's interaction with children and with each other emerged. The children refused to follow the agreed visitation schedule. Each parent repeated the refrain: I urged them to go but they wouldn't go. The court, faced with innumerable contradictory allegations, has scheduled a new hearing date. But before holding a hearing, this Court, in response to the latest application for relief, which included the well-worn phrase seeking relief, now seeks to impose a set of house rules on both parents as part of what it sees as an essential part of the relief "which as to the Court may seem just and proper."

This Court has previously written on the topic of "house rules." See Matthew A. v. Jennifer A., 2021 NY Misc. LEXIS 3708 (Sup.Ct. Monroe County 2021)(Dollinger, J.)(whether a Lincoln hearing should occur during a contempt hearing); Matthew A. v. Jennifer A., 2021 NY Misc. LEXIS 1271 (Sup.Ct. Monroe County 2021)(Dollinger, J.)(Supplemental opinion on questions raised by imposition of the "house rules"); Matthew A. v. Jennifer A., 2021 NY Misc. LEXIS 1273 (Sup.Ct. Monroe County 2021)(Dollinger, J.)(imposing house rules to require mother to enforce disciplinary rules if children fail to follow agreed visitation schedule); Matthew A. v. Jennifer A., 2020 NY Misc. LEXIS 6406 Sup.Ct. Monroe County 2021)(Dollinger, J.). Several of these opinions in one case are on appeal to the Appellate Division, Fourth Department. The house rules — nearly identical to those to be imposed in this instance — were ordered when the mother in that matter told the Court that she could not get her teenage and pre-teenage sons to visit with the father as their separation agreement dictated.

While New York has not considered whether courts can impose a form of "house rules" on parents and children in contested visitation matters, other state courts have discussed the impact of house rules on children and emphasized the importance of imposing limits on a child's behavior and consequences if they fail to abide by those rules. This Court is not alone in discussing or approving the notion of "house rules" as a means of disciplining children, including teenagers, who violate what their parents have agreed is conduct in the child's best interest. See e.g., Wauzynski v. Wauzynski, 2019 Minn. Dist. LEXIS 479 (Minn. Dist. Ct. 6th J.D. 2019)(discussion of parentally imposed "house rules" in dealing with children). In Shokanov v. Shokanova, 2019 Tex. Dist. LEXIS 16732 (Texas Dist Ct., 505th J.D. Ft. Bend Cty 2019), the court ordered a parenting plan that included a requirement that each parent inform the other by means of a written list of the basic expectations for behavior (house rules) with which the children are expected to comply when spending time with that parent. While the court did not devise the list — leaving it to the parents — nor the penalties for non-compliance, the Court still required that the children follow rules as a condition of parental residence and custody. See also Brandimarte v. Brandimarte, 2019 Mich. Cir. LEXIS 345 (6th J.C.C. Oakland Cty 2019) (court approved a parenting plan that required the parents to establish general house rules that respect and reinforce their mutual goal of raising the children to be responsible adults): Ex parte Cowart, 204 So. 3d 884 (Ala. 2016)(suggesting that a trial court has authority to impose "house rules" to protect a child); Simon v. Simon, 2013 Pa. Dist. & Cnty. Dec. LEXIS 25969 (Ct. Common Pleas, Alleghany Cty 2013)(finding that father's imposition of house rules was not a "negative" and supported his visitation rights). In this respect, these Courts acknowledge what parents have known for centuries: core household rules reflect a couple's values, structure, and moral authority. Lehman, Rules, Boundaries, and Older Children: How to Cope with an Adult Child Living at Home, https://www.empoweringparents.com/article/rules-boundaries-and-older-children-part-i/(last visited 7/21/2021).

In New York, these rules serve another, perhaps pre-eminent purpose. The New York appellate courts have repeatedly told trial courts that one parent's ability to foster a relationship between the children and the other parent is a primary — if not the most important — criteria to be analyzed in any custody determination. Matter of Copeland v Brown, 189 AD3d 1396 (2d Dept 2020); Matter of Matthew DD. v Amanda EE., 187 AD3d 1382 (3d Dept 2020); Matter of Hermann v Williams, 179 AD3d 1545 (4th Dept 2020). As a trial court recently intoned:

With regard to the Father's right to visitation . . . the custodial parent has a duty to protect and to nurture the child's relationship with the noncustodial parent, and to ensure access by the noncustodial parent. The Appellate Division, Second Department stated that:

The natural right of visitation jointly enjoyed by the noncustodial parent and the child is more precious than any property right" and that "the best interests of the child would be furthered by the child being nurtured and guided by both of the natural parents" . . . Indeed, a custodial parent's interference with the relationship between a child and a noncustodial parent has been said to be `an act so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as a custodial parent'

The Second Department has consistently held that a custodial parent's deliberate interference with the relationship between the children and the noncustodial parent, is an act so inconsistent with the best interests of the children as to per se raise a strong probability that the custodial parent is unfit to act as such.

E.K. v. P.K., 2020 NYLJ LEXIS 31 (Sup.Ct. Nassau Cty 2020)(citations omitted).

How can any court evaluate a parent's commitment to foster a relationship with the other parent unless the residential parent, in the face of a child's refusal to follow a parent approved visitation plan, imposes some discipline on the child? A parent who does nothing when a child refuses to follow an agreed visitation plan undercuts the other parent's relationship by denying the child contact with the other parent and eviscerates the couple's determination, enshrined in their agreement, that visitation was in the child's best interest. A parent who permits a child to refuse agreed visitation without consequence is not fostering a relationship between the child and the other parent: instead, the residential parent is thwarting that relationship and hence, ignoring the courts' command to parents to foster a relationship as an important condition of custody or primary residence.

Finally, in imposing the house rules this Court is ordering the parents to engage in actions that are designed to put teeth into what they have already agreed will be beneficial to their children. New York courts have imposed conduct requirements on custodial parents that require them to engage in certain activities — transport the children, assure attendance at school or doctor's appointments or insure the children take medications or abide by mental health protocols — and refrain from others — drug or alcohol use or smoking in the presence of the children. See Guy v Guy, 147 AD3d 1305, 1306 (4th Dept 2017)(granting the father's motion to compel the mother to cooperate with collaborative counseling and suggesting that a contempt application, upon the mother's failure to do so should be considered); Cobb v Cobb, 4 AD3d 747, 747 (4th Dept 2004)(contempt order appropriate because respondent was aware of order mandating that she and the parties' child obtain counseling and that she willfully violated that order). In a similar vein, the New York courts have suggested contempt as a remedy for violations of orders restricting drinking alcohol in the presence of the child. Matter of Tylena S. v Darin J., 4 AD3d 568, 571 (3d Dept 2004)(father could be held in contempt for violating order prohibiting drinking alcohol in the presence of the children). The same conclusion — a possible contempt proceeding — can involve violations of bans of smoking in the presence of children. Matter of Munson v Fanning, 84 AD3d 1483, 1483-84 (3d Dept 2011). In this Court's view, the "house rules" proposed in this order simply requires the parents to engage in a disciplinary protocol to ensure that the children follow the agreed visitation plan. In Labanowski v. Labanowski, 4 AD3d 690 (3d Dept 2004), a court ordered the family to participate in therapeutic counseling. The Court found that one parent was unwilling to change the children's schedules to attend sessions, made no attempt to reschedule these dates when canceled, and allowed the children to decide whether to comply with the court order. The appellate court remitted the matter to the trial to consider an order of contempt against the parent, even though the parent argued that it was the child's determination not to attend. In short, a parent's failure to take actions, required by a court order determined by a court to be in the child's best interest, can not be defended by leaving compliance up to the child. The same logic compels the same conclusion here: no child should be permitted to decide whether to attend visitation without a consequence invoked in the household where they reside.

The rules proposed in this matter require that the parents discipline the children if they fail to follow their parent's agreed visitation schedule. The Court here orders both parents to impose discipline on the children and holds them accountable if they fail to impose that discipline. In short, the theory is that the Court removes the parent as the party responsible for the discipline and instead, inserts the Court. Neither parent can be blamed for the disciplinary measures: the blame rests with the Court. Neither parent runs the risk of alienating a child: the parent is not responsible for the discipline, the Court is. But, the message to the children is unmistakable: if you fail to follow your parent's agreed wishes, you suffer a penalty in the withdrawal of privileges and other options that a child would enjoy.

In this Court's view, the Court's imposition of the "house rules" is no different than what would occur if the couple were still married and sharing the same household. If a couple agreed that a child should go to school, for example, and the child refused, this Court has no doubt that the highly-educated, advanced-degree parents' response in this case would be to impose a form of "house rules:" measures restricting the child's privileges until they complied with their parents' direction and attended school.

This Court acknowledges that the rules are not universal and must be handled with parental discretion and compassion. For example, a child with mental health restrictions or under the care of a therapist or psychiatrist should not be subject to all the rules. Parents could easily devise another set of rules — appropriate in all contexts for such a child — and nothing this Court decrees should interfere with that parental choice, made in consultation with the child's professional.

However, to require the children to attend visitation consistent with their parents' agreement, this Court orders both parents to impose the following house rules:

1. The children will both attend visitation as required by their parent's agreement.

2. In the event either child fails to attend visitation as their parent's agreement requires, then each parent shall take the following actions when the non-compliant child is within their household:

(A) no permission for extracurricular activities shall be granted by either parent and any permission for current extracurricular activities shall be immediately revoked;

(B) the child shall not be transported to any extracurricular activity;

(C) the child may not participate or attend any camp, summer program or other activities;

(D) any electronic devises, including but not limited to, computers, cell phones, tablets, watches, play stations or similar electronic devices or other internet communication devises shall be confiscated and removed from the child's use;

(E) the child shall not be permitted to have access to any social media tools, including Facebook, Instagram or any other such devices and the child may not review such social media or participate in any way in such activity;

(F) no friends or peers of the child may enter the child's primary residence and the child may not visit any other peer or friend away from the child's residence;

(G) the child may attend family events but only in their own residence and may not travel to any family member's residence without both parents' permission;

(H) the child may not travel outside Monroe County for any purpose; and

(I) when the child returns to school, the child must return home immediately after the end of school and may not participate in any school-related activities or extracurriculars.

These "house rules" shall be placed in effect by each parent on each child until the child visits in accord with their parent's visitation agreement. Upon the child's compliance with the visitation schedule, the parents may suspend these rules but, if the child fails to comply in the future, each parent must reimpose the rules immediately. These rules bind the parents to take the actions described above if the children fail to follow the agreed best interests plan for visitation set forth by their parents.

This Court was proffered an order after an appearance at special term. The Court declines to sign that order and requests that a revised order, consistent with this decision, be forwarded on notice to all parties.

SUBMIT ORDER ON NOTICE 22 NYCRR 202.48

[1] This phrase is lifted from the Four Tops Motown tune of the same name circa 1965.

[2] Lincoln v. Lincoln, 24 NY 270 (1969)."