This highly contested post-judgment custody case was commenced by a Petition dated May 8, 2012, in which the petitioner father (hereinafter "Petitioner") sought to modify the [*2]custody and access provisions of the parties' Texas divorce decree (hereinafter "Decree") dated October 20, 2011, to grant him sole legal and physical custody of the parties' daughter M born in the fall of 2007, and son J born in the fall of 2009. The Petition alleged that respondent mother (hereinafter "Respondent") abused alcohol and controlled substances when the children were in her care, refused to comply with the visitation provisions of the parties' mediated agreement as set forth in the Decree, and falsely accused Petitioner of sexual improprieties with the children in response to his efforts at enforcement.

Respondent filed a Cross-Petition on May 25, 2012, seeking sole legal and physical custody of the children and asking to reduce Petitioner's visits with the children to daylight hours under the supervision of a certified social worker, eliminate Petitioner's summer visitation and any visitation at his home in Texas, deny any travel by the Children outside New York City, eliminate their travel by plane at any time, and require that Petitioner remain fully clothed in the children's presence and not sleep in the children's beds. The Cross-Petition alleges that both before and since the divorce, Petitioner has engaged in inappropriate sexual behavior with the parties' now six year old daughter.

In May of 2013, after this action had been ongoing for a year, Respondent amended her Cross-Petition to include allegations that both before the divorce and on December 2, 2012, Petitioner assaulted her. The Amended Cross-Petition again seeks sole custody of the children and asks that Respondent's weekend visits take place only in New York City. Petitioner also supplemented his Petition in May of 2013, alleging that Respondent has repeatedly and falsely accused him of sexually abusing the parties' daughter and of assaulting Respondent, to the police, the Administration for Children's Services (ACS), the District Attorney's Office, school officials, teachers, the children's medical and mental health providers, friends, family members and neighbors, as well as to this court and to the press, in an attempt to destroy his reputation and his relationship with the children.^[FN1]

The ensuing trial took place over 46 days. Witnesses included each of the parties; the court-appointed forensic evaluator Dr. Sara Weiss; Dr Michael Stone, a psychiatrist called by Respondent; airline flight attendant Ginger Ginsberg; Lazlo Ribar, who works as a doorman in Respondent's building; ACS Child Protective Specialist Brenda Mack; Respondent's aesthetic physician, Dr. Philip Roux-Lough; Dr. Debbie Palmer, an expert in the field of dermatology; Kathleen Sharkey, a social worker employed at the Hazelden Addiction Treatment Center; Dawn Hughes, PhD. an expert on issues of domestic violence; and five character witnesses called by Respondent. The court also conducted a Lincoln hearing with the parties' two young children.

On April 25, 2013, after six days of Respondent's testimony, the testimony of flight attendant Ginger Ginsberg, and receipt of the forensic expert's report, the parties agreed to an [*3]interim arrangement whereby Petitioner rented an apartment in New York and resided there with the children while Respondent received outpatient drug treatment services at Hazelden Addiction Treatment Center (hereinafter "Hazelden"). Respondent's visits with the children were supervised by Comprehensive Family Services during this period.

On May 1, 2013, Respondent asked that supervision end and the children be returned to her custody. On July 30, 2013, based upon the forensic report, the documentary evidence and testimony heard thus far, this court awarded temporary physical and legal custody of the children to Petitioner and directed that supervision of Respondent's visits with the children continue. That directive, modified on appeal to require that Petitioner remain with the children in New York, remains in place and Petitioner has maintained a residence for the children in New York, working remotely with some travel back and forth to Houston when required.

BACKGROUND

The parties were married on June 24, 2006 in Houston Texas, where the Petitioner is the Chairman and Chief Executive Officer of a bank. They were divorced on October 20, 2011 in a Decree that incorporated the terms of a mediated settlement. Pursuant to the Decree, Respondent was permitted to move to New York with the children while Petitioner remained in Texas where he was employed. Respondent agreed that Petitioner would see the children on the first and fifth weekends of each month in New York and that on the third weekend each month, she would bring them to Houston. The Decree further provided for visits in Texas on holidays, school breaks and for a lengthy period in the summer.

Respondent moved to New York within days of entry of the divorce decree in late October, 20ll. Problems with Petitioner's weekend and holiday visitation arose immediately. Respondent's first two trips to Houston resulted in her hospitalization while one or both children were in her care. The planned Christmas vacation did not occur. The January, 2012 visit to Houston was marred by Respondent's intoxication on the flight out, as documented by airline personnel. In February, Respondent brought only one of the children with her. The planned 10 day visit for Easter/Spring break, was so truncated that Petitioner only saw the children on April 10, 2012, for three hours in New York. He also traveled to New York for the "Texas" weekend visit in April. Petitioner filed a Petition to modify the custody provisions of the Decree in Texas on April 10, 2012. That court declined to assert continuing jurisdiction and Petitioner then commenced the instant proceeding.

THE TRIAL

DOCUMENTARY EVIDENCE

At trial, Respondent's claims and testimony were overshadowed by the documentary evidence.

Respondent's Pharmacy Records

Throughout these proceedings, Respondent has repeatedly minimized her prescription drugs use except for a period in 2011 when she contends medication was prescribed to assist her with anxiety related to the parties' divorce. Respondent downplayed her drug use to this Court, to the Administration for Children's Services (ACS), to the forensic expert, to her own medical expert and to the admitting personnel at Hazelden where she went for treatment. Petitioner subpoenaed the records of numerous pharmacies used by Respondent from the time of the marriage to the present. They reflect that Respondent was prescribed increasing amounts of [*4]Vicodin, an opioid, and benzodiazepines, anti-anxiety medications, including Klonopin, Xanax, Valium and Ativan, from the inception of the marriage onward.

Since 2006, thirty-two different doctors prescribed opioids, benzodiazepines and anti-depressants. At times, different doctors prescribed weekly or monthly supplies of pills within days of each other. For example, between March 24, 2010 and April 22, 2010, Respondent had Vicodin prescribed for her on 4 separate occasions by 2 different doctors for a total of 205 pills. On July 19, 2010, 2 different doctors prescribed Vicodin. On June 15, 2011, 2 different doctors prescribed Klonopin and on that date a third prescribed Ativan. On June 16, 2011, Respondent was again prescribed Klonopin, followed by Ativan on June 20, 2011 and another prescription for Klonopin on June 30, 2011. One day later, a different doctor prescribed Ativan again for the Respondent.

In a sworn affidavit dated May 25, 2012 (hereinafter "May 25 Affidavit"), Respondent stated "I do not take, and have not taken any illicit substances (only the prescribed dosage of Xanax)." This statement was not true. Similar misstatements were made to Hazelden at the time of Respondent's admission for outpatient treatment. According to their records, Respondent claimed upon admission that she was first prescribed Klonopin and Xanax in 2011. Records show she had been prescribed Klonopin since 2008 and Xanax since 2006. The Respondent also declared that she has only taken Klonopin, Xanax and Wellbutrin. Pharmacy records document what she did not disclose to Hazelden or to the Court that she had in addition been prescribed numerous other medications over the years since 2006, including Valium, Ativan and Vicodin.

Respondent also protests in the May 25 Affidavit that she took no drugs in late 2009 and in January 2010, after the birth of the parties' son, saying "I was breastfeeding J at the time . . . I would never imbibe alcohol or take drugs for fear of the affects of alcohol or drugs being secreted in the breast milk which might endanger J's health." Pharmacy records reveal that she was prescribed Vicodin, Klonopin, Valium and Xanax by 4 different doctors during this pregnancy. On July 31, 2009, she filled a prescription for 60 Vicodin. Just 3 days later, she filled a second prescription for 60 additional Vicodin. After J's birth and while she was breastfeeding, she filled prescriptions for Vicodin on October 30, November 2, 6, 12, 20 and December 4 and 9, 2009 for over 200 Vicodin pills. In the first 6 months of 2010, her Vicodin prescriptions averaged out to approximately 3 per day.

Respondent testified at trial that she first began taking anti-depressant medication in response to Petitioner's abusive behavior in their marriage. She informed Hazelden that Wellbutrin was the only anti-depressant that she had ever been prescribed and that occurred in 2011. The records show that Respondent was taking the anti-depressant Welbutrin at the time of the marriage and that, contrary to the information she provided to Hazelden, she was also taking Prozac in 2007, 2009 and 2010, Lexapro in 2008 and 2011 and Wellbutrin again in 2008 and 2012. Respondent's current psychiatrist has now prescribed Gabapentin and Abilify, another psychotropic medication, for her.

Respondent's Hospital Records

Hospital records from Methodist Hospital in Houston reveal Respondent's emergency treatment on November 18, 2011 for a purported anxiety attack. They reflect that, after arriving with the children in Houston on that day, Respondent was taken from the airport by ambulance, [*5]accompanied by the children. Tests revealed that Respondent had benzodiazepines in her system.

Methodist Hospital records for November 26, 2011, the day after Thanksgiving, reveal that Respondent was found by a child care provider unconscious on the stairs at the former marital residence. EMS personnel were called. They found her to be lethargic, with "slurred speech" that was difficult to understand, administered IV fluids and oxygen and took her to the hospital. Her blood alcohol level upon admission was .181, more than twice the limit for driving in Texas, and that, at the time of admission, Respondent said she had taken "extra" Xanax, and two glasses of wine. Prescription drug records for the month of November, 2011 show that Respondent received prescriptions for Valium on November 13 and 14, 2011, Xanax on November 16 and 19, 2011, Ativan on November 21, 2011 and Ambien on November 21, 2011. Other than when Petitioner exercised visitation during Thanksgiving, the children were in Respondent's sole care in November 2011.

Documentary evidence disproved Respondent's statements to Dr. Sara Weiss, the court appointed forensic evaluator. On June 29, 2012, Respondent informed Dr. Weiss in an initial questionnaire that she was able to "combat and overcome her anxiety through yoga, meditation, and a few therapy sessions. This was extremely helpful and enabled me to center myself in a healthy, medication free manner." Pharmaceutical records demonstrate that in April and May 2012, the months leading up to the forensic evaluation, Respondent filled prescriptions for both Vicodin and Valium. In June of 2012, the month the questionnaire was completed, Respondent again filled prescriptions for Vicodin and Valium. In July 2012, while the evaluation was ongoing, she filled prescriptions for Ativan and Valium. Indeed, there was no decline in Respondent's prescriptions throughout the whole forensic evaluation process.

ACS Records

Respondent's Cross-Petition states that since the divorce, Petitioner has slept naked with the parties' then five year old daughter M, exposed his genitals to her on numerous occasions, booked hotel rooms with only one bed when exercising visitation in New York, tickled M violently while she was naked, and allowed her to watch him bathing. Respondent further charges that the parties' daughter has exhibited hyper-sexualized activity and that the stress of visits with Petitioner has caused her to experience painful urination and loss of bladder control.

Respondent filed a Family Offense Petition in New York Family Court on May 9, 2012 raising these same allegations. The Administration for Children's Services investigated those charges over a three-month period, concluding on July 10, 1012 that they were unfounded. The Agency's file introduced into evidence reflects that interviews were held with Respondent, Respondent's mother, Petitioner, the visitation supervisor, the children's nanny, and school personnel. M was subjected to a physical examination which revealed no evidence of abuse and M herself denied any of the occurrences alleged by Respondent in forensic interviews conducted by ACS personnel. Authorities in Houston, Texas informed an ACS investigator that similar charges were made to Child Protective Services there in 2011 but that the case was closed due to lack of credible evidence. The District Attorney's office informed ACS that no detective was assigned to investigate charges Respondent filed in the Family Court in New York because M had failed to support Respondent's claims in a forensic interview. Respondent s rejoinder to ACS's negative conclusions was to point out that a determination that a charge is unfounded is [*6]not the equivalent of untrue.

After her prior sex abuse allegations were deemed unfounded, Respondent again contacted ACS in an email dated January 12, 2013. In it she claimed that during a week- long visit, Petitioner slept in M's bed every night. The Attorney for the Children confirmed with the nanny who stayed with the children for the week they were with Petitioner, that she and the children slept behind a door that was locked and bolted from the inside, presumably to forestall further accusations. Respondent reiterated, however, that M has an ongoing complaint against Petitioner but also knows her father is "devoted and loving."

ACS also investigated Respondent's claim that Petitioner assaulted her on December 2, 2012. Police officers with whom this charge was first lodged noted that the assault occurred in front of the children. ACS conducted a three month investigation of Respondent's charge. The ACS file reveals that, in addition to charging that Petitioner had punched her in the face, Respondent told Child Protective specialists that he was attempting to kidnap the children, that he had "paid off" this Court and the guardian for the child, and that this judge directed that she not report any child protective concerns or press criminal charges against Petitioner. After conducting interviews with Respondent, her mother, law enforcement personnel, Assistant District Attorneys, doormen in Respondent's building, school personnel, the children's pediatrician, M's therapist, the forensic evaluator, the parent coordinator, Petitioner, and the parties' daughter M, ACS determined that the charge was unfounded.^[FN2]

Respondent's claim that she was assaulted was undermined by the parties' own contemporaneous email communications. Text messages exchanged within an hour of the purported incident reveal routine communications regarding the children's baths, brushing their teeth and bedtimes. In a lengthy email sent five days after the alleged assault, Respondent declares to Petitioner that "[t]he children are happy and content in every aspect of their daily life," "they deserve to spend special time with their father," and that "the children are happier than ever and welcome you to spend quality visitation time with them." No mention is made of the purported assault.

Photographs

At trial, Respondent identified facial bruising in photographs of her face as injuries caused by Petitioner on December 2, 2013 and two pictures depicting bruises on an upper arm as injuries allegedly sustained when Petitioner violently grabbed her arm prior to the divorce The first allegation was undermined by the testimony of Respondent's aesthetic medicine doctor, Dr. Roux-Lough. Dr. Roux-Lough, originally a neurologist, has practiced aesthetic medicine for three years, receiving a total of 15 days of training in the area. Despite being called by Respondent, he identified bruising depicted near Respondent's mouth as the result of a "Juviderm" cosmetic filler injection that he administered three days before the photos were taken. He opined that bruising around the eye, however, was the result of blunt trauma.

Dr. Debbie Palmer, a board-certified dermatologist, was called by Petitioner and certified [*7]as an expert in the field. For seven years, she has trained physicians nationwide on behalf of the distributor of Botox and Juviderm. Dr. Palmer concurred with Dr. Roux-Lough that the bruise in the nasolabial fold was the result of a Juviderm injection. She did not agree, however, that the bruise around Respondent's eye was caused by blunt trauma. She credibly testified that the other bruising was consistent with the pattern caused by icing after an injection. She testified that icing is routinely recommended after Botox injections, that over-icing causes bruising, and that the straight line appearing in the photographs on the side of Respondent's eye is consistent with the straight edge of an ice pack and not a result of blunt force trauma. She further based her finding on the fact that there was no inflamation of the eye itself, as would be consistent with blunt trauma.

Dr. Palmer further found that the two pictures of purported bruises on Respondent's arm did not come from the grab of a hand. She points to the pattern of the bruise noting that it does not fit a hand and notes that there were no markings from fingers. She further testified that the two pictures do not demonstrate the same bruise as Respondent contends, since the bruises are different colors, different patterns, different shapes and different sizes.

School Records

This court found Respondent's insistence that she never abused drugs and rarely drank alcohol, in the face of documentary evidence to the contrary, to be of grave concern. Similarly troublesome was Respondent's unwavering conviction that M suffered from urinary tract infections, despite the negative results of multiple physical examinations, revealed in records from the children's schools. Those records also contradict Respondent's contention that she supports the children's relationship with their father. Four days after the Decree was entered in Texas, Respondent applied for the children's admission to the Mabel Barrett Day Care Center in New York. In the application, dated October 24, 2011, Respondent listed only herself and her mother, who lives in Albany, New York, as emergency contacts, crossing out references to the father. She put the school on notice that Petitioner was not permitted to pick the children up from school and not to be given any information about the children, contrary to express terms contained in the Decree. She also claimed, despite the bi-weekly visits mandated in the Decree, that the children only see their father once a month and view him as an uncle.

School records further reveal that commencing with her initial contact with the school on October 25, 2011, Respondent shared her concern that M was sexually abused. She advised school personnel at that first meeting that M complained of her father's nudity, that he sleeps in her bed, and that M had been diagnosed with a urinary tract infection. She told them that she had tried to raise these concerns in Texas, but was discouraged from doing so. The school contacted M's pediatrician on November 21st and was told that M did not have a urinary tract infection and that Respondent had brought her for examination four times with negative results. M's pediatric records confirm that Respondent brought then 4 year old M in for fruitless examinations six times in five months, three of which included vaginal exams. Both school personnel and the pediatrician expressed concern about Respondent's psychological state. Within a month of the children's admission to the school, their file contained a note that stated "at this point, the concern for us is primarily the mother's mental state - given that our observations of the child and the doctor's examinations are normal."

On December 5, 2011, Respondent falsely advised the school that she had fallen down [*8]stairs in Houston while arguing with Petitioner. It was conceded at trial that Petitioner was not present at the time of her fall. She also told them that M "peed" on the floor three times after visiting her father. In a meeting on December 5, school records show that school personnel "[d]iscussed our concerns over mother's reports-our concern that something is wrong in the family but unclear what is happening since all suspicion' is based on Mother's report and mother's reports have been unreliable." The school nevertheless contacted ACS and relayed Respondent's statements but the report was not accepted as it did not report the school's own suspicions. School records show that on January 5, 2012, Respondent reported that after the children's visit to Houston, M now wakes up to go to the bathroom every 30 to 60 minutes.

In early 2012, M changed schools and Respondent continued her reports via email. She falsely advised the new school that Petitioner had violated a temporary order of protection issued in the now-dismissed criminal proceeding and that the children have been repeating their father's "violent behavior." She additionally claimed that M "peed" on the floor three times after a visit with her father. In an email from Respondent's mother, the school is advised that Petitioner has "lost his soul and is destroying himself from within." In May 2012, Respondent sent an email to M's former teacher asking for help. As with her other emails to schools and to ACS, she claimed that M told her that the Petitioner insisted on sleeping with her. Respondent goes on to state that M reports that Petitioner is constantly naked, says that his butt is beautiful and that he tickles her too hard.

The Forensic Report

Dr. Sara Weiss was appointed in this case to evaluate the family. She has been appointed to act as a neutral evaluator in over one hundred cases and has testified 20 to 30 times at trial. She interviewed the parents on multiple occasions and observed their interactions with the children. She further interviewed various collateral sources including M's psychiatrist, the visitation supervisor, M's teacher and principal, the ACS Child Protective Specialist, various individuals from Mabel Barrett Day Care Center, two of the children's pediatricians and Petitioner's doctor.

Dr. Weiss noted that prior to the divorce, Respondent had been the primary caretaker of the children. She noted that J and M both love their mother very much and enjoy their time with her. She further noted that Petitioner was not particularly psychologically attuned to others and may not have been, as Respondent claims, particularly focused on the family during the marriage. She also noted, however that he has evolved into an attentive and concerned father since the divorce.

She found that Respondent had created a comfortable and child-friendly environment in New York and has, in the time since their arrival, built a network of friends for the children, through daycare, school and church. She has enrolled the children in age-appropriate activities and has the emotional support of her mother, with whom the children are close. Dr. Weiss expressed, however, her serious reservations about Respondent's ability to parent the children. She stated that at their meetings, Respondent often appeared confused and seemed to have difficulty keeping straight the time and length of their appointments. She was scattered and unfocused and did not provide the children with consistent rules and that the result was that they were often defiant and unruly in Respondent's care. She noted that the Respondent appeared disheveled during their meetings and that the children appeared unkempt and out of control. [*9]

Dr. Weiss did not credit Respondent's allegations of sexual abuse and domestic violence. In making this determination, she found that Respondent was untruthful throughout the evaluation and often fabricated things. Respondent told her, for example, that M's school reported observing M walking strangely with vaginal distress that coincided with visits from Petitioner and advised her to take M to the pediatrician. Dr. Weiss' research and discussions with collaterals revealed that neither medical records nor school records support Respondent's claims and that the school records in fact reflect that Respondent was the sole source of these contentions. Dr. Weiss notes that M's psychiatrist did not credit the allegations and, though a mandated reporter, the psychiatrist made no report to ACS after her discussions with M. Other examples were Respondent's different versions of her fall on the stairs in November 2011 that resulted in an overnight stay at the hospital and her ever-changing renditions of the alleged assault on December 2nd.

Dr. Weiss found that Respondent presented as paranoid throughout the evaluation process, indicating on a number of occasions that she believed that the court and the attorney for the children were being bought off by Petitioner. Dr. Weiss further noted that the Respondent was unable to present herself in other than a most favorable way and was therefore not an accurate reporter. Respondent could not identify any weaknesses that she might have. While she indicated that she would foster a close and loving relationship between the children and their father, Dr. Weiss noted that Respondent's behavior contradicted her positive claims. She noted that Respondent had repeatedly gone to the children's schools with complaints about Petitioner and seemed to be intent on discrediting him. Dr. Weiss found that M is aware that of her mother's concerns about her visits with her father and had indicated that she was scared of her mother's behavior. According to Dr. Weiss, this heightened awareness of her mother's concerns served to undermine and interfere with M's relationship with her father. In addition, the number of physical examinations to which M has been subjected has made M more aware of sexual issues. Dr. Weiss noted that because Respondent did not rely on any one pediatrician, she deprived the children of a relationship with one doctor who was familiar with them. She also expressed concern over Respondent's claims that each of the children had developmental delays, which were not supported by any of the collaterals.

Dr. Weiss concluded from her evaluation that the children were unsafe in Respondent's care. She noted that on occasion, Respondent appeared to be under the influence of some sort of a controlled substance. Dr. Weiss described an incident during the course of her evaluation where she happened to see the mother and the children at a pizza parlor. The mother, who had her back to the door of the premises, was texting on her phone and never saw Dr. Weiss as she passed by. J was a couple of tables away rubbing his pizza against the wall while M was outside on the sidewalk out of her mother's view.

By contrast, Dr. Weiss found Petitioner well equipped to appropriately parent the children. She found him to be a caring father who was trying to determine what was best for his children, whom he felt obliged to protect from Respondent's unstable behavior. Petitioner demonstrated a level of consistency with the children, who behaved better with him because he set appropriate limits. She noted that the Petitioner's demeanor throughout the evaluation process belied Respondent's claims that he had anger issues. He remained calm throughout the process, even after being arrested on Respondent's criminal charges. According to the report, [*10]Petitioner spoke only in positive terms about Respondent to the children, and Dr. Weiss concluded that he would foster a positive relationship between the children and their mother.

The Peer Review

Dr. Michael Stone was retained by Respondent to conduct a peer review of Dr. Weiss' forensic evaluation. Dr. Stone is a board certified psychiatrist and was qualified as an expert in the area of forensic psychiatry. He testified that he has been appointed by the court as a forensic evaluator in one case and has been hired in over 40 cases as an expert for one party. His report, which is demonstrably one-sided in nature, fails to identify any purported deficiencies in Dr. Weiss' methodology. Drawing heavily on interviews with Respondent in which she recounted a detailed version of the parties' marriage and divorce, Dr. Stone's report is comprised in large part of the juxtaposition of Respondent's claims against contrary facts noted and sometimes credited by Dr. Weiss. Dr. Stone goes to some length to minimize Respondent's alleged drug use, finding that "there has been no pattern of such alcohol overuse and intoxication . . . Likewise no history of gratuitous "substance abuse." Dr. Stone credits Respondent's claims of Petitioner's sexual improprieties, finding Respondent more believable "if for no other reason that [sic] mothers hardly ever have fixations of this sort." In the same vein, he notes that "there are many extremely wealthy men, including billionaires , who maintain outwardly gracious facades — while killing . . their wives."

The crux of his analysis suggests that Dr. Weiss' work is deficient because she failed to hear the "ring of truth" in Respondent's statements. It offers no insight into the methodology behind the forensic evaluation, addressing instead Dr. Weiss' assessment of Respondent's credibility. Indeed, rather than addressing issues of methodology at all, Dr. Stone would simply substitute his conclusion that Respondent does not present a danger to her children, for Dr. Weiss' contrary determination.

The role of an expert conducting a peer review is to determine whether the methodology used in a forensic evaluation comports with professional standards such as those set forth in the "Model Standard of Practice for Child Custody Evaluation" as approved by the Association of Family and Conciliation Courts (AFCC). Dr. Stone made no discernible attempt to conduct such a review. Rather, his report constitutes Respondent's attempt to provide a substitute forensic evaluation for the one conducted by the court-appointed expert and must be rejected as a peer review.

Inadequate as a peer review, it is also fundamentally deficient as an additional forensic evaluation. Dr. Stone's report reveals that it is based entirely on interviews with, and materials provided by, Respondent. That alone provides a basis for its rejection. See, Matter of Rebecca B., 204 AD2d 57 (1st Dept. 1994). Its conclusions are based on an unquestioning acceptance of Respondent's views and an unwarranted rejection of all evidence to the contrary, including irrefutable documentary evidence. In short, Dr. Stone's serves neither as a peer review nor as a forensic evaluation. Dr. Stone bases his conclusions on one-sided interviews with Respondent, taking all of her allegations against Petitioner as true without question. The court therefore concludes that Dr. Stone's review is without probative value as either a peer review or a supplemental forensic analysis.

THE TESTIMONY

The Parties [*11]

The parties each testified with respect to the issue of fostering a relationship between the children and the other parent. Petitioner indicates that he would continue to foster a relationship between the children and their mother and that he would encourage them to spend time with her. He readily produced the children for all of the agreed upon supervised visitation after he was awarded custody in the Interim Order. In addition, he agreed to a halt of the trial at one point to enable the Respondent to obtain outpatient drug addiction treatment with a recognized goal that the children would benefit from her receiving treatment.

Petitioner claims that the Respondent did not make efforts to foster visitation. He points to the problems that arose immediately upon entry of the Decree with respect to Respondent's bringing the children to Houston one weekend a month after moving to New York and for a holiday break. Petitioner agreed to pick M up in New York and to reduce his spring break visit from 11 days to 6 at Respondent's request. Upon arrival, he was asked by a woman he did not know, to wait in the hall. Although he could hear the children inside the apartment, the door was never reopened. In lieu of his visit at spring break, he was permitted one three-hour visit with the children in the presence of Respondent's mother. He states that there was no medical support for Respondent's claim that the children could not fly because of problems with J's ears as documentary evidence revealed that J's ear problem had been addressed long before he was scheduled to travel. Moreover, records reflect that the doctor could see no physical problem and relied entirely on Respondent's claims about J's ears.

Respondent counters that she has always encouraged the Petitioner to have time with the children and points to instances where she asked him to take J along on visits scheduled to take place with M. Respondent's testimony centered on general claims that she is flexible and believes that the children should have time with their father, whom they love very much.

In the Interim Order dated July 30, 2013, this court previously addressed the nature and substance of Respondent's testimony thus far, concluding for reasons detailed in that decision and reconfirmed here, that Respondent lacked credibility. As set forth in the prior order, Respondent's vague and shifting accounts of her use of prescription drugs, the alleged assault and other claimed incidents of domestic violence, all cast doubt on the veracity of her testimony. Even more problematic, however, is Respondent's bizarrely contradictory assertion that on one hand, Petitioner is a pedophile who has engaged in repeated sexual abuse of their daughter that he failed to curb, and her protestations that she now believes that he will not do it any more and is a loving father.

The documentary evidence and inconsistencies in Respondent's own testimony call her ability to foster the relationship between Petitioner and the children into serious question. Although she expresses a desire that Petitioner become more involved in the children's school activities, Respondent repeatedly went to the schools with unfounded allegations of violence and abuse. She did not list Petitioner as a school contact and barred him from picking the children up and getting information about them. While Respondent claims to no longer believe that Petitioner would engage in sexually inappropriate behavior with the parties' daughter, she testified that she writes down what the children say about him at each visitation and will continue to do so.

Respondent testified that Petitioner frequented prostitutes during the marriage and would then crawl into bed with their daughter, and that he slept naked with M and exposed her to [*12]pornography. Over time, Respondent's claims became bolder. They expanded to include a claim that he had frequented 40 prostitutes during the marriage, and later that these prostitutes were underage. There were also claims that he purchased drugs from his car.

While Respondent speaks of the love the children have for their father and the importance of their relationship with him, she went to ACS claiming sex abuse. She repeatedly took their daughter to the doctor's office searching for physical evidence of abuse and shared her concerns of this nature with school administrators and the children's teachers. These actions speak loudly of her determination to truncate the relationship she claims to value.

Respondent's testimony of alleged sexual improprieties cannot be credited in the face of all evidence to the contrary. Three ACS investigations in New York were returned as unfounded, criminal charges were dropped and Respondent has stated that authorities in Texas declined to pursue similar allegations. In the Children's Advocacy Center examination, M specifically states that her mother is lying and pediatric records do not support her claims. That her accusations are nevertheless repeated to the people in the children's lives, demonstrates that she is unable to overcome her fixation on purported abuse, even when faced with conclusive evidence that these allegations are incorrect.

This court has had ample opportunity in this lengthy trial to assess the parties' demeanor and credibility. Petitioner vehemently and unequivocally denies each of the allegations raised by Respondent. While he acknowledges some indiscretions with adults during the marriage, he categorically denies all of Respondent's other claims. The Court credits Petitioner's testimony, which was consistent and thoughtful throughout the trial. Petitioner was forthright in his answers, including those that did not necessarily enhance his position. He credibly testified that he did not frequent prostitutes and that he has never behaved inappropriately with the parties' daughter. He acknowledges falling asleep on his daughter's bed without a shirt on, but credibly asserts that he was never naked, that he never showed her pornography and that he never made any of the statements attributed to him by the Respondent with respect to his physique.

Ginger Ginsberg

The court credits the testimony of Ginger Ginsburg, the lead flight attendant on a flight that Respondent and the children took from Houston to New York on January 24, 2012. Ms. Ginsburg described the Respondent as "comatose" during the flight and too "out of it" to supervise the children. Her detailed and credible testimony centered around Respondent's failure to care for the children during the flight. Despite warnings, the Respondent did not put J's seat belt on for takeoff. Ms. Ginsburg fielded complaints from other passengers when J was found wandering the aisle without a diaper or pants. Despite her efforts to coax the Respondent into changing J's diaper, the Respondent was unresponsive. Ms. Ginsburg ultimately found a diaper and put it on J. She testified that the children spread their toys in the aisle and played on the floor with no parental supervision. Respondent remained unresponsive to Ms. Ginsburg's requests that she control her children and, on two occasions, that she cover her exposed breast. She remained unresponsive to M's attempts to get her attention, crying, "Mommy, Mommy, Mommy" and rubbing Respondent's arm. After landing, Ms. Ginsberg observed the two children follow Respondent off the plane, attempting to get her attention. J left, still pantless with a diaper unattached on one side, missing a shoe. Ms. Ginsburg found 3 empty wine bottles at Respondent's seat of a brand not provided by the airline, and stated that she had been served an [*13]additional glass during the flight.

Barbara Rossi, Maternal Grandmother

Respondent's mother, Barbara Rossi, testified, as did the parties, that she acted as an intermediary between them during their marriage and after the divorce. Indeed, Petitioner often went to Ms. Rossi to ask for her help in addressing what he identified as "red flags" based on Respondent's behavior. At some point after the divorce, Petitioner realized that Ms. Rossi was not impartial. Indeed, school records demonstrate that she was in contact with them about him and that she, too, was instrumental in asserting various claims of domestic violence and sexual abuse to the teachers at M's school.

Ms. Rossi was present at many of Respondent's supervised visits and has made comments in front of the children with respect to Respondent's claims of sex abuse and domestic violence. She recently followed M around and wrote down what she said about Petitioner. Despite her claims of wanting to help the parties, Ms. Rossi's actions belie her words.

Dawn Hughes, PhD

Dr. Hughes was qualified as an expert in the area of domestic violence. Her testimony addressed generalized concepts of domestic violence and resultant post traumatic stress. She did not conduct an evaluation of Respondent or offer any opinion specifically addressing Respondent.

Kathleen Sharkey, MSW-Hazelden

Ms. Sharkey testified about the Respondent's admission into the Intensive Outpatient Treatment Program at Hazelden beginning in May of 2013. Ms. Sharkey explained that this program is an intensive outpatient substance abuse program affording more structure and frequency of treatment than does Hazelden's regular outpatient program. She confirmed that Respondent had actively attended and participated in the program, but stopped attending prior to its completion. She further confirmed that while she attended a part of the program, Respondent did not identify herself as an alcoholic or addict.

Ms. Sharkey's testimony confirmed that much of the information Respondent provided greatly underestimated the duration of her drug use, the number and types of different medications involved, and the number of doctors prescribing to her. Ms. Sharkey testified that, as a consequence of Respondent's reports, her treatment was focused on use of benzodiazepines and not on alcohol or opioid pain killers.

Respondent's Character Witnesses

Respondent called five character witnesses. They were parents of children that played with M and J and each addressed Respondent's hands-on approach with the children, her involvement with the school, and her participation in a group formed to teach children values. Each indicated that they were comfortable with her parenting skills, that the children always look well taken care of, and that they would be comfortable leaving their children with Respondent. Despite Respondent's claims that parents have witnessed Petitioner acting in an aggressive manner, none of the witnesses addressed any concerns regarding the Petitioner.

Lincoln Hearing

The court conducted an interview with M and J, accompanied by their attorney. The transcript, which was sealed, is a part of the trial record.

[*14]ANALYSIS AND FINDINGS

This court had the opportunity to observe the parties for 46 days of trial, providing an extensive opportunity to reliably assess the parties' demeanor and credibility. Serious allegations are raised by each of them that clearly implicate the welfare of their children. An agreement as to custody and visitation should be given weighty but not absolute priority in the absence of extraordinary circumstances. Matter of Nehira v. Uhlar, 43 NY2d 242, 251 (1977). The court is not bound by its terms where the best interests of the children warrant modification. Eshbach v. Eschbach, 56 NY2d 167 (1982)

Here, there is no question that there has been a clear change of circumstances since the entry of the Decree in 2011. Visitation became an issue almost immediately upon Respondent's relocation to New York with the children. In addition, Respondent's conduct while caring for the children and her repeated allegations against Petitioner warrant reevaluation of the children's interests. After reviewing all of the facts and circumstances established at trial, the court finds that modification of the Decree is warranted.

As previously discussed, the court credits the testimony of the Petitioner in this proceeding. His answers were thoughtful and he directly addressed each and every allegation raised against him. He also raised and addressed certain sensitive matters with the forensic evaluator, and understood both the positive aspects of his parenting skills as well as weaknesses that he was committed to improve. He remains in touch with M's psychiatrist and is determined to do whatever is necessary to ensure that the children are safe and well cared for. The Petitioner remained calm throughout the entirety of the proceedings, even when criminal charges were leveled against him and subsequently dismissed. He demonstrated a level head while disturbing allegations were continuously raised against him. The court does credit his testimony that he will work to foster a positive relationship between the children and their mother. He has done so throughout these proceedings.

The Respondent's testimony, by contrast, was not credible. Documentary evidence confirms that Respondent has routinely perpetrated deliberate falsehoods to forensic examiners, school personnel, the children's doctors and the court in her quest to marginalize Petitioner and hide her drug use. This court was particularly troubled by her claim that a bruise on her cheek was the direct result of Petitioner grabbing her on December 2nd, when her own witness confirmed that the bruising she displayed resulted from a cosmetic filler injection. These demonstrably false statements reveal the lengths that Respondent would go to discredit the Petitioner.

Respondent's statements were contradicted by documentary evidence on numerous occasions. The Hazelden records confirmed that though she sought to convince the court that she addressed her problem, she did not accurately report it and did not complete treatment. Instead, she grossly misrepresented her history of prescriptions for pain killers, anti-anxiety medications and anti-depressants. She also minimized that history to the forensic evaluator. In the questionnaire submitted to Dr. Weiss, Respondent claimed that she no longer was taking medication when, in fact, she was being prescribed medication before, during and after the evaluation. Indeed, she made the same statements to this court, indicating that she does yoga, meditation and talk therapy and is no longer dependent on prescription medications. These statements are not credible. Plaintiff has historically shown no insight into her use of [*15]prescription drugs and the evidence brought out at trial appears to have had no impact on this lack of self-awareness.

The court specifically rejects the allegations of sex abuse and domestic violence lodged against Petitioner. Many of the serious allegations she leveled against him in her pleadings were never addressed by her at trial at all, and those that were raised were impossible to credit. Multiple ACS investigations and two Children's Advocacy Center evaluations concluded that Respondent's claims were unfounded. Other than the statements of Respondent and her mother, nothing corroborated her claims of sex abuse. Respondent's claim that Petitioner slept in the same bed with M for a week during a visit was demonstrated to be false. The children's teachers saw no reason for concern and numerous physical examinations, as well as the forensic interview conducted by the Children's Advocacy Center, revealed no indication of sex abuse. Indeed, M told the evaluator that her mother said mean things about her Dad that were not true.Respondent's claims of domestic violence were similarly discredited. It is impossible to reconcile the ever-changing renditions of the alleged attack on December 2nd. They differed in every particular. Most dramatically, the police who arrived at Respondent's apartment recorded that Respondent was slapped. The report of her visit to the precinct the following day reflects that she was repeatedly slapped. The incident then evolved into a purported punch in the eye. Respondent testified that she went down to the doorman in the lobby for 30 seconds to beg him not to call the police and that a crowd of neighbors gathered. Her doorman testified, however, that Respondent came down to the lobby to wait for a friend's arrival and that no other residents approached her. Respondent testified variously that her doorman called the police, that the friend she had called or texted brought police officers to the apartment, and that the friend left her apartment and came back with the police. Police records reflect that Respondent herself called 911. Respondent also stated that her friend was the only person that she contacted after the assault that day other than the doorman. She then said that two neighbors from her hall stopped by and later that she talked to four or five neighbors. Records from AT & T reflect that she made three calls to her housekeeper within two hours of the alleged incident, called twice more later in the evening and made six calls to the children's sitter.

Petitioner's allegation that Respondent abuses alcohol and prescription drugs was well established at trial. Respondent had twenty eight different doctors prescribing her medication since 2008 and often went to more than one doctor in a 2 or 3 day period to receive additional medication. While Dr. Stone credits her claims that she only took medication for pain and anxiety at certain key points in her life, this is not supported by the records. Respondent continued to take Vicodin well after her cesarean section with J. She also took anxiety medications throughout the marriage so her claims that the stress of the termination of the marriage caused her to use anti-anxiety medication are untrue. Similarly false are her claims that she only took anti-depressants in response to Petitioner's behavior. In fact, she took them, often prescribed by a multitude of doctors, throughout the parties' marriage.

Respondent's inability to acknowledge anything other than her own positive character traits is troublesome. According to her, she is a warm and supportive mother who encourages the children's relationship with their father. As soon as the parties were divorced, however, she sought to eliminate Petitioner from the children's life. She did not list him on the school application, and systematically campaigned to damage his standing at the school with negative [*16]and false information. She blamed her November 2011 fall on an argument that she was having with the Petitioner and not her intoxication, when it was acknowledged that he was not even there, and insinuated that he was sexually inappropriate with his then four-year-old daughter.

There can be no doubt that Respondent's claims of sexual inappropriateness and domestic violence, made to all of the adults with whom the children have contact, have had a negative impact on them. The forensic evaluator's concerns that repeated physical examinations have sexualized M is shared by the court. M was constantly under surveillance at her schools due to her mother's allegations. A recent incident, one day prior to the conclusion of the testimony, is illustrative of Respondent's own preoccupations and how they impact M. M drew a "naked" picture of her father during Respondent's visitation, requiring yet another investigation by the Children's Advocacy Center. While the supervisor who was present characterized M's demeanor as mischievous, Respondent and her mother confiscated M's picture and wrote things on the back to "document" Respondent's suspicions. The Children's Advocacy Center concluded that the incident did not provide cause for concern with respect to Petitioner. It does, however, reveal that M is acutely aware of her mother's claims. She has indicated that she knows that her mother worries about her with her father and that she is scared by her behavior.

M has been exposed to these claims since she was 3 or 4 years of age. That M remains focused on Respondent's charges despite supervision of their contact suggests to this court that Respondent cannot effectively foster a positive relationship between M and her father. Respondent has also indulged an interest in garnering the attention of the press, providing pictures of herself, her home and the children to illustrate articles about the case and the allegations made. Respondent has pursued publicity, seemingly without thought of how it might be harmful for the children to have these sensitive matters, including accusations against their father raised in the press.

The law regarding child custody matters is well established. "Modification of an existing custody arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child." Matter of Pignataro v. Davis, 8 AD3d 487, 488 (2d Dept 2004) (citing Eschbach v. Eschbach, 56 NY2d 167 [1982]DRL �� 70 and 240). The standard for a determination is the best interests of the child. See Friederwitzer v. Friederwitzer, 55 NY2d 89, 94 (1982). In determining the child's best interests, the court must consider a number of factors, some of which are particularly relevant here. They arethe quality of the home environment and the parental guidance the custodial parent provides for the children; each parent's relative fitness; each parent's ability to guide and provide for the children's overall well-being, including their emotional and intellectual development; the empathy, attachment, judgment and flexibility that each parent exhibits with respect to the children and the other parent; and the effect that an award of custody to one parent might have on the children's relationship with the other parent. Eschbach, supra at 172; Craig v. Williams-Craig, 61 AD3d 712 (2nd Dept. 2009). There is "no prima facie right to custody of the child in either parent" (DRL §70[a] 240[1][a] Friederwitzer, supra.

In weighing the best interests of the parties' children, this court has considered the relevant factors and finds that Petitioner is able to provide a more stable and appropriate environment for them. Understanding that the children's physical and emotional well being [*17]requires a stable home in which there is consistency and discipline, he has worked, at considerable sacrifice, to provide that environment. He has enrolled them in a new school where they arrived with a clean slate. He is in regular contact with M's psychiatrist and has pledged to continue to work with her and to do whatever is necessary to help M. Additionally, he has demonstrated that he will foster the children's relationship with their mother. The forensic evaluator noted that Petitioner has encouraged M's relationship with her mother in the past and this court credits his testimony that he recognizes and will foster the children's love for their mother in the future. Since temporary custody was changed, the children appear to be happy and relaxed. M, in particular, seems to her attorney to have blossomed, and now appears poised and confident.

Respondent has demonstrated favorable qualities as a parent. She has worked diligently to socialize the children, whom she loves, by finding schools, arranging play dates and developing a network of friends for them. She established a warm and child-friendly home.Her care of the children is marred, however, by her drug use. She has had accidents and taken the children with her in an ambulance, to the hospital, and to the emergency room. There were times when she was too intoxicated to recognize or provide for the children's needs, and substance abuse compromised her fitness.

Beyond her drug problems, Respondent has exhibited a lack of personal stability throughout the proceedings that clouds her judgment. Again and again, Respondent was unable to truthfully recount significant events and her often inappropriate affect was a cause for this court's concern. Her statements were repeatedly contradicted by documentary evidence. She submitted an affidavit in which she made false statements and presented the court with deliberately falsified evidence. When directly confronted with her own falsehoods, Respondent would barely acknowledge them and would invariably readopt her erroneous narrative of events. This lack of veracity and her inability to see herself in other than the most positive way, reveals an inability to see past her own needs to identify those of her young children. The court is most concerned that, having read in M's forensic interview of the stress and fear her misstatements of fact have caused her daughter, Respondent continues to make them.

As a result of Respondent's limitations and self-absorption, the court finds that her continued custody of the children would negatively impact their relationship with their father to their serious detriment. Despite her protests that she would foster that relationship, her actions demonstrate that she is not capable of doing so. Within days of her move to New York, Respondent systematically excluded Petitioner from the children's lives. Despite her representations that she no longer suspects a problem, she remains hyper-vigilant with respect to M's relationship with her dad and there is a constant message that M is not safe in his care. J, at age 4, is apparently still unaware of this, but the same cannot be said of M. Respondent apparently fails to grasp that her own actions telegraph her mistrust of the children's father, to their continuing detriment.

Based upon all of the documentary evidence and testimony, the court concludes that the children's best interests are served by an award of sole legal and physical custody to Petitioner. He has provided the children with a stable home environment and has given them solid guidance. He has learned what the children need and has become sensitive particularly to M's needs and has made efforts to promote the children's well-being. The children are thriving under his care. [*18]

This change of custody was not lightly made. The court is mindful that, until the children's change of residence ten months ago, Respondent had been the children's primary caregiver. After 46 days of trial, a review of the totality of the factors, and the uncontradicted documentary evidence, an award of custody to Petitioner is in the children's best interests because it is necessary to provide them with stability and insure their health and safety.

RELOCATION

Petitioner asks to return to Texas where he works as the Chairman and CEO of a bank located in Houston. The parties' initial agreement that the children would live with Respondent in New York failed almost immediately when she did not comply with the parenting plan. He contends that the interim arrangement whereby he travels back and forth between Houston and New York is impracticable. Respondent, who has been the children's primary care-taker, opposes the children's relocation. She points out that the parties originally agreed to her move to New York and that the children's residence in Texas will reduce her time with them. She notes that her family lives in upstate New York and that she has purchased a home in Albany where her mother and step-father reside.

Each relocation case must be considered on its own merits, with due consideration of the relevant facts and circumstances. Tropea v. Tropea, 87 NY2d 727, 739 (1996). Under Tropea, there is no general rule that supports any one specific outcome in relocation cases, so that each outcome centers on the unique facts applicable to that family. In evaluating an application for relocation, predominant emphasis is again given to the best interests of the child. Tropea v. Tropea, supra at 739. The parent seeking relocation must show by "a preponderance of the evidence that those interests would best be served by the proposed relocation, taking into account, inter alia, the quality of the relationships between the child and the custodial and noncustodial parents." Id. at 740.

"[N]o single factor should be treated as dispositive or given such disproportionate weight as to predetermine the outcome." Tropea, supra at 738. Instead, certain relevant factors are to be considered including, but not limited to "each parent's reasons for seeking or opposing the move, the quality 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 the child through suitable visitation arrangements." Id. at 740-741. Overall, "[w]hile the respective rights of the custodial and noncustodial parents are unquestionably significant factors that must be considered [citation omitted], it is the rights and needs of the children that must be accorded the greatest weight, since they are innocent victims of their parents' decision to divorce . . . . " Id. at 739.

Unlike in most relocation cases, the Petitioner's need to live in Texas did not arise after the divorce but existed from the outset. He worked in Houston at the time of the divorce and continues to work there now. According to Petitioner, during the pendency of his interim custody of the children, he has had to run the bank from afar. While one large investor is located in New York, the bank's day to day operations and all mergers and acquisitions occur in Texas. Petitioner has had to travel there often, sometimes accomplishing a round trip in one day. At other times, Petitioner is required to spend the night in Texas while the children remain with the nanny. [*19]

Respondent points to Petitioner's need for a nanny as a negative and something which militates against an award to him of custody or relocation. She suggests that a working parent's need for a nanny makes them less suited for physical custody, a claim this court finds unpersuasive. Like other mothers and fathers with sole legal and physical custody, Petitioner has done what is necessary so that the children's day to day lives are not disrupted by the requirements of his employment.

Petitioner testified that it has been difficult for him, however, to work in Texas while living in New York. He is concerned that his job, the family's sole source of income, is jeopardized by a continuation of the current arrangement. His job was already impacted by the now-dismissed criminal case and the allegations raised by Respondent in court and broadcast in the press. He also points to his long-standing ties to Houston where he was raised and has family. He owns a home in Texas and the parties lived in Texas during the marriage.Respondent is not working. While she lived in New York City prior to the marriage, and spent some time here during the marriage, her mother and step-father live in Albany and she has no significant ties here. She has purchased a home upstate while renting an apartment in New York City. She explains that she is looking for employment in her prior field that will afford her the flexibility to work from home so that she can be available for the children during the day.

It is apparent that Petitioner is not requesting to move back to Texas in an effort to curtail Respondent's parenting time with the children. Indeed, throughout these proceedings, he has opted for supervision rather than attempting to limit her visits. He has indicated that he hopes that Respondent will spend significant time with the children in Houston but asks that supervision continue.

The court finds that Petitioner's request to relocate back to Texas is in the children's best interest. The children are familiar with New York and Texas, remember their rooms in both places, and consider both places "home". Their lives will be enhanced emotionally and the family's economic security insured by the move back to their father's home state. A return to Texas protects Petitioner's employment and ensures that his travel time will be reduced, thus allowing him to spend more time with the children. He will be able to take them to school in the mornings and he or the nanny will pick them up at the end of the day. The children will have their own rooms, be able to spend time with their paternal relatives, and play outdoors. The Petitioner has researched schools and nothing indicates that their education will be negatively impacted by a move to Texas. J is in pre-school and will undoubtedly adjust easily to a new school. M is in the first grade and has moved past her early difficulties with transitions.

Respondent's flexibility with respect to her employment prospects and her lack of ties to New York City allow for the preservation of her relationship with the children as suitable visitation arrangements may be made. The court finds that in order to promote that relationship Petitioner must ensure that appropriate visitation arrangements are in place for Respondent and he must bear all costs of visitation, including travel expenses and accommodations.

RESPONDENT'S PARENTING TIME

Petitioner asks that Respondent's parenting time with the children continue to be supervised and this application is supported by the Attorney for the Children, who requests that a nanny be put in place. Respondent requests that the order of supervised visitation be lifted and that her time with the children be unsupervised. [*20]

Throughout these proceedings, Respondent has exhibited little or no insight with respect to her abuse of prescription medication. She sought throughout the trial to minimize her drug use despite overwhelming documentary evidence. In the face of hospital test results that documented her acute alcohol and benzodiazepine intoxication, she denied excessive drinking, minimized the drugs she took, and exhibited no comprehension of the risks that surrounded her admissions to the hospital and jeopardized the children in her care.

Respondent further showed no insight about her treatment at Hazelden. The social worker from Hazelden indicated that, although Respondent was admitted into the Intensive Outpatient Treatment Program, she did not identify herself as an addict or alcoholic. Indeed, Respondent told the court that she went to Hazelden for litigation purposes only, to prove that she was no longer taking prescription medications. Records in fact show that she drank alcohol during her treatment, in blatant disregard of the treatment process and goals, and failed to complete the program. Respondent and her counsel represented that, in connection with treatment, she had been repeatedly drug tested and that a doctor would be called to document that she was testing negative. That doctor was never produced.

Respondent continues to take prescription medication. When discussing Abilify and Gabapentin, the medications now being prescribed by her present psychiatrist, Respondent admitted that these drugs were selected so that she could represent to the Court that she was no longer taking benzodiazepines. She could not identify the condition that they were prescribed to treat. Absent insight into her use of prescription drugs, this court is concerned that Respondent will relapse into overuse when there is no longer court oversight.

While Respondent relies on two negative ACS drug tests and the testing at Hazelden to demonstrate that she is drug free, only two tests in total suggest that this might be the case. Of the ACS tests, only the test conducted in May of 2012 documented negative results. The second showed that no substances had actually been tested for. There were five tests conducted at Hazelden in 2013. Of those tests, only one was convincingly negative. In two others, Respondent's creatinine level was so low so as to suggest dilution. In the fourth, the sample was insufficient to permit testing, and the last test was unreliable as the urine temperature was not recorded.

The drug records, Respondent's consistent need to demonstrate that M has been abused, and her fabrications about Petitioner to everyone concerned with her children's well-being, suggest mental health issues. Respondent's affect at trial was labile. On some occasions, she was overly emotional, often crying at inappropriate times, while later on, she seemed to enjoy the ongoing trial.

Respondent's mental stability was not directly addressed at trial, despite counsel's representations that Respondent would be calling her psychiatrist as a witness. This testimony was cancelled the night before the doctor was to testify, and no evidence was therefore presented as to why Respondent was currently being prescribed psychotropic medications. In short, there is no evidence of the present state of Respondent's mental health.

Respondent's involvement of the children in her unfounded allegations against their father clearly presents a danger to them. She has made M aware of her concerns from the age of 4, if not earlier, and has repeatedly subjected her to vaginal examinations. She also discussed her claims of assault with the children, indicating that their father had injured her eye. She monitors [*21]the children when she sees them which only serves to make them aware of her continued claims. Respondent has not recognized that her actions have a detrimental effect on the children's well being.

Respondent has progressed in her ability to safeguard the children's physical safety, in part as a result of the supervisor's assistance. Respondent remains unconscious, however, of how her thinly-veiled animosity against their father effects the children's well-being. By words and actions, she has drawn the children into her repeated, unfounded allegations against Petitioner and her renewed efforts to garner press attention exemplify the continued conflict between Respondent's own interests and the best interests of the children. See, Allen v. Farrow, 197 AD2d 327, 334 (1st Dept. 1994)

PARENTING PLAN

The parties have each submitted proposed parenting schedules. To best effectuate this court's order, the court directs that Respondent's parenting time shall be subject to the assistance of, and supervision by, a trained child-care provider as is described below. Respondent shall have parenting time in Texas on alternate weekends. The alternate weekend visits shall begin on Fridays after school and the children shall be returned to Petitioner's residence by 8:00 p.m. on Sunday. Should Respondent be in Texas, she may exercise additional parenting time every Wednesday from after school until 8 pm and at any additional times as agreed by the parties. Should Respondent reside in New York, Petitioner shall arrange for the children to travel to New York City for visits on all three-day holiday weekends. Those weekends shall end at 4 p.m. on the last day of the three-day weekend.

The parties shall equally share the children's summer vacation from school to the extent that they are not enrolled in camp or other summer activities. In any event, Respondent shall have a minimum of two weeks with the children each summer. Immediately upon being advised of the schedule of the children's organized summer activities, Respondent shall notify Petitioner of the two non-camp weeks that she selects.

Respondent shall have Spring break and Easter recess with the children each year, as those breaks are set forth in the children's school calendar. Winter recess (Christmas/New Year) shall be shared by the parties, with Respondent receiving the first week in 2014 and subsequent even years and the second week in 2015 and subsequent odd years. Petitioner will receive the first week in 2015 and subsequent odd years and the second week in even years. Thanksgiving vacation shall be alternated, with Petitioner having the children in 2014 and subsequent even years and Respondent having the children in 2015 and subsequent odd years.

Respondent shall be provided with reasonable access to the children's school records, and all medical records. In the event that one of the children needs medical attention while with Respondent, she shall immediately notify Petitioner and shall take the child only to the pediatrician or other medical provider selected by Petitioner, absent an emergency. In the event of an emergency during either party's parenting time, each must notify the other parent immediately. Each parent shall be permitted to speak with the children when they are not with them on the telephone or by other electronic means every day between 6:00 p.m. and 7:00 p.m. or such other time as is mutually agreed-upon in a writing executed by both parties.

In order to ensure that Respondent may exercise all of her parenting time, Petitioner will bear the costs of supervision of Respondent's time with the children. After consultation with [*22]Respondent, if the parties cannot agree as to an appropriate child care provider, Petitioner may select a provider or nanny who will assist Respondent with the children's care during all of the time that they are with her, including for overnight visits. Before commencing his or her duties, the person selected shall meet with personnel at Comprehensive Family Services or a comparable professional supervisor, who will be retained by Petitioner to review the issues set forth in this decision and instruct the care provider on how to best implement the supervisory goals set forth herein.

In light of the court's findings with respect to Respondent's drug dependence, she is directed to submit to random drug tests at least monthly for one year. Upon evidence of her sobriety for that period, Respondent may move for reevaluation of the parenting plan. While this court cannot condition Respondent's contact with the children upon her participation in therapy, she is encouraged to seek treatment to address the concerns raised in this decision.

All matters not decided herein are hereby denied.

This constitutes the decision of the court.

Dated: March 14, 2014

New York, New York

____________________________

HON. LORI S. SATTLER J.S.C.