This action for divorce and ancillary relief was commenced by the plaintiff on December 31, 2002 by the filing of a summons and notice. Defendant was served by personal service conferring both in rem and in personam jurisdiction over the parties' marriage and the person of the defendant. The trial was conducted on March 1, 2, 3, 4, 28, 29, 30, 31; April 6, 7, 8, 14, 15, 18, 19; May 3, 4, 6, 11, 13, 15, and 16 of 2005. The breaks between trial dates were the result of the Court's need to accommodate the extensive direct, cross and rebuttal expert testimony. The plaintiff, Olivier A., was represented by Leonard Sperber, Esq. The defendant, Christina A., was represented by Thomas F. Liotti, Esq. Theresa Mari, Esq. was the Court appointed Law Guardian for the infant issue, Nicolas (d.o.b. July 13, 2001). The Court has had an opportunity to [*2]consider the evidence presented with respect to the issues in this proceeding, including the testimony offered and the exhibits received. The Court has further had an opportunity to observe the demeanor of the witnesses called to testify and has made determinations on issues of credibility with respect to these witnesses. The Court is now called upon to render a decision on the issues of: grounds for divorce; child custody; child support, and equitable distribution.

Grounds:

In the instant action the plaintiff's verified complaint seeks a divorce pursuant to DRL §170(1) for cruel and inhuman treatment. The defendant seeks, by way of counterclaim, a finding of this Court granting divorce against the plaintiff pursuant to DRL §170(1) for cruel and inhuman treatment as well as pursuant to DRL §170(2) for abandonment.

This Court with the consent of the parties, counsel and the law guardian has bifurcated the issue of grounds from the custody and financial issues of the trial. The defendant was examined by her counsel for the purpose of establishing grounds.

It has been established by a fair preponderance of the credible evidence that the parties were married on October 15, 2000 in a religious ceremony. The plaintiff and defendant were married in the State of New York and remained residents of New York throughout the marriage for a period in excess of one (1) year. Neither the plaintiff nor the defendant are in the military service of the United States and there is no judgment or decree of divorce, separation or annulment granted with respect to this marriage by this Court or any other Court of competent jurisdiction. No other actions are pending at this time.

An action for divorce may be brought to procure a judgment divorcing the parties and dissolving the marriage on various grounds including abandonment pursuant to DRL §170(2). Such an action may be maintained upon a finding of an unjustified and prolonged failure or refusal of one spouse to engage in sexual relations with the other (see Diemer v. Diemer, 8 NY2d 206, 203 NYS2d 829 [1960]).

The Court finds the parties have not cohabited with each other as husband and wife for a period commencing in or about December 2002 and continuing through the time of trial. During said period of time, the plaintiff has not cohabited with the defendant as husband and wife despite the defendant's willingness and repeated requests to do so. The Court further finds that plaintiff's refusal to engage in marital relations was not caused by any physical or mental impairment of the plaintiff. The plaintiff's refusal to engage in marital relations was not caused or provoked by any conduct on the part of the defendant and was without the defendant's consent. [*3]

The Court finds that jurisdiction as required by §230 of the Domestic Relations Law has been obtained and the requirements of the Domestic Relations Law have been met.

The defendant is entitled to a judgment of absolute divorce against the plaintiff herein upon the grounds of abandonment pursuant to DRL §170(2). Neither party shall receive an award of maintenance as against the other as each is self-supporting. The plaintiff shall be permitted to resume the use of her pre-marriage surname at her option. Both the plaintiff and the defendant shall take all steps solely within their power to remove all barriers to defendant's or plaintiff's remarriage following the divorce.

Child Custody and Visitation:

The plaintiff was born in France and came to the United States approximately ten years ago. He attended Catholic schools in France and obtained a Business degree. In order to gain proficiency in English, the plaintiff took classes. For the first four or five years that he lived in the United States, the defendant supported himself by working in restaurants in Manhattan. The plaintiff met the defendant over the internet and the parties began dating in May of 1999. The plaintiff learned that the defendant had a four year old daughter, (Joy, d.o.b. March 25, 1995) in Africa at the time they had met. The defendant needed the freedom to pursue her education and career before bringing her daughter to the United States. Joy was brought to the United States in June of 1999.

The plaintiff claims that the defendant convinced him to marry her by explaining that an arranged wedding was being pursued by her family to a doctor in Nigeria. The plaintiff proposed marriage to the defendant in December 1999, and the parties were married on October 15, 2000. Their son Nicolas was born July 13, 2001. After the birth of Nicolas, the plaintiff actively participated in his day to day care including feeding, changing diapers, and caring for Nicolas while his wife returned to work. The parties at the time of Nicolas' birth were residing in an apartment in Queens County, New York. The plaintiff testified that Monday through Friday, the defendant would leave at 7:00 a.m. and not return home until 8:30 or 9:00 p.m. The plaintiff testified that he cared for Nicolas on a full-time basis while the defendant worked in Manhattan. In addition, on Sundays, the defendant would attend church from 9:00 a.m. to 3:00 p.m. and the plaintiff would also care for Nicolas for most of the day. The plaintiff claims that during the summer of 2001, the defendant began returning from work later and later. She was not returning home until 10:00 p.m., then midnight and at times as late as 2:00 a.m. The plaintiff also claims that it became increasingly difficult to contact the defendant during working hours and she would not answer her cell phone or return his calls. The plaintiff further alleged that even when the defendant was at home, she would sit at the computer and not interact with him.

The plaintiff was employed by the firm Morgan-Stanley in July of 2000 and decided that he would like to pursue a career in finance. The plaintiff, after study and examination, became a [*4]financial consultant and investment representative for the brokerage house, Edward Jones in February of 2001. He took additional classes at New York University and Bernard M. Baruch College in finance and investment. In May of 2002, the plaintiff was able to obtain an office at the East Islip location of the Edward Jones' firm. The office was two miles from the house and took five minutes to get to. The plaintiff would come home every day for lunch to see Nicolas.

The parties purchased a home in East Islip, New York in December of 2001. The plaintiff was able to work from home during his initial employment with the Edward Jones firm from February of 2001 to May of 2002. The defendant was employed at Financial Technologies from the time the parties met until June of 2002 when she became employed at OMGEO with offices in Manhattan, New Jersey and Boston as a computer systems troubleshooter. The defendant according to the plaintiff was traveling to Boston every Monday as part of her job responsibilities with OMGEO.

The plaintiff also testified that while the defendant was working, he assumed the day-to-day parenting responsibilities for both Nicolas and the defendant's then seven year-old daughter Joy. He met with Joy's teachers, was the school contact parent and would take Joy to the bus stop. He made breakfast for Joy and Nicolas, did the food shopping and attended to the details of the home. The plaintiff indicates that his participation with Nicolas has continued and that they share a tremendous amount of time together and they enjoy playing games, reading and learning French. The issue of the plaintiff's smoking was explored at length by both parties. The plaintiff claims he did not smoke in the house or in the presence of Nicolas.

The plaintiff testified that while researching a mutual fund on the home computer, he found a screen name and evidence of the defendant's participation in an adult site entitled "Adult Friend Finder" and nude digital photos of his wife. When he confronted the defendant, she apologized. The plaintiff further alleges that the defendant explained to him that she had been molested as a child and that she felt the need to have sex with another woman.

The plaintiff claimed that the defendant was mean, disrespectful and aggressive towards him. The plaintiff also claimed that the defendant was physically violent towards him and that on more than a few occasions she physically assaulted him. The plaintiff testified to attending a Christmas party in 2002 and that when he came home, the defendant gave him a hard time for coming home late. That night, the plaintiff slept on the couch and at approximately 5:00 a.m., the defendant physically pulled him off the couch and beat him with her fists. The plaintiff called the police and reported the incident. The plaintiff alleges that the defendant then falsely reported to the police that the plaintiff had chased and threatened her with a knife. The police asked the plaintiff to leave. Subsequently, the defendant obtained an ex parte Order of Protection from the Hon. Peter Dounias, Judge of the Family Court, dated December 24, 2002.

On December 24th, 2002 at 7:00 p.m., the plaintiff was served with the ex parte Temporary Order of Protection. On December 26th, 2002, he claims the defendant sent him a bouquet of roses and invited him back. The defendant told him the Order had been vacated. The [*5]Order, however, was not vacated until December 27th, 2002. The plaintiff testified that he then returned home and that the defendant threatened that he would go to jail again. The plaintiff spent New Year's Eve and New Year's day at his uncle's house. When he returned the next day the defendant, according to the plaintiff, accused him of sleeping with his sixty-three year old aunt. In the midst of these bizarre statements, the defendant was giving Nicolas a bath. Joy came out of her room and was told to go back to her room by the defendant who slammed the door in Joy's face. The defendant then allegedly grabbed the plaintiff's hair, "slammed" his face, began dragging him to the bedroom, locked the door, hit him with a bottle of perfume and jewelry box, punched him in the cheek and pulled his hair. In the face of these events, the plaintiff moved out of the marital residence. These incidents resulted in the defendant's application for an Order of Protection against the plaintiff and the filing of a felony complaint against the plaintiff. The plaintiff claims the defendant manufactured the allegations against him and sought to use those false claims to limit his time with Nicolas. Immediately after the incident of December 2002, the plaintiff claims he was unable to see his son for eight weeks. The defendant later voluntarily agreed to Sunday visitation from 9:00 a.m. to 5:00 p.m.

On January 22, 2003, a Felony Complaint against the plaintiff was issued regarding a January 18th occurrence wherein the plaintiff was said to have made a harassing telephone call in violation of a Family Court Order of Protection. On May 16, 2003, the felony complaint against the plaintiff was reduced to a misdemeanor and the matter was adjourned in contemplation of dismissal to May 13, 2004. The plaintiff's visitation was then increased to Saturday beginning at 4:00 p.m. to Monday at 10:00 a.m. on alternating weekends with additional visitation every Tuesday from 4:00 p.m. to 8:00 p.m. This visitation was not without its problems. The Tuesday afternoon pick-ups were denied if the plaintiff was three or four minutes late. The plaintiff alleges that the defendant vowed to him that she would never give him a break and that she would destroy him. The defendant told the plaintiff that she would ruin his life and make his life hell. These allegations of the defendant's statements are bourne out by tape recordings of the interaction at the visitation exchanges. The plaintiff also claims his personal belongings including diplomas, family photos, baby pictures, compact discs and other personal papers were destroyed or secreted by the defendant.

During the trial, the plaintiff asked this Court to take judicial notice of this Court's prior Order concerning the events of Father's Day 2004. The Court takes judicial notice of the memorandum decision, dated November 17, 2004, wherein the Court found that on June 30, 2004, the defendant made false allegations to the police emergency operator stating that the plaintiff was at the residence, engaging in a physically violent dispute with the defendant. The defendant stated to a police emergency 911 operator that the plaintiff was at the marital residence while, in fact, he was physically in the presence of a Suffolk County police officer two miles from the marital residence. The 911 tape is clear proof that the defendant manufactured allegations against the plaintiff (Defendant's Exhibit BBB). With respect to the 911 tape, the Court makes the following observations. The defendant's explanation of her intention to have a police officer present as a result of the difficulties which occurred at the beginning of visitation that very morning possesses a grain of truth, however, there is a defining moment when the 911 [*6]operator inquires whether the plaintiff was physically present at the residence at the moment of the call. The defendant had a choice to make. Regardless of her motive, answering that he was there was false and remains false. In addition, the defendant filed a complaint in Queens County for alleged conduct of the plaintiff the following day, which led to the plaintiff's arrest. The plaintiff spent twenty-six hours being arrested and processed. These charges were later dismissed outright (see Plaintiff's Exhibit 41). These fabrications cast serious doubt upon the credibility of the defendant.

The plaintiff argues that these allegations to law enforcement proven to be false, calls into question the defendant's judgment and is direct evidence of the defendant's hatred and disdain for the plaintiff making it difficult, if not impossible, for the plaintiff to live without fear of additional contrived allegations.

In July of 2004, the plaintiff changed jobs moving to a new firm which he testified offered more services and products for his financial clients. The plaintiff, according to his testimony, retained 98% of his then existing client base from the Jones firm. At the new position, the plaintiff is self-employed providing long-term investment advice while working from home. This new arrangement gives the plaintiff complete control of his work schedule and flexibility for the purpose of attending to the needs of his son Nicolas. Approximately 80% of the plaintiff's client contacts and responsibilities are conducted by telephone. The electronic technology possessed by the plaintiff, allows him flexibility in meeting the demands of his professional obligations.

Along with his new position, the plaintiff has obtained a new residence which he rents. Prior to obtaining the new residence, the plaintiff investigated child care facilities and services, staff to child ratios, interviewed the parents whose children attend child care, reviewed the available programs and services as well as the physical facilities involved. The plaintiff also investigated the school district and spoke with district administrators.

The plaintiff also testified regarding the inappropriate discipline that the defendant employed concerning Joy. He gave as examples of this mistreatment: forcibly compelling Joy to quickly consume a glass of milk if she was not drinking fast enough; the use of a plastic hanger and wooden spoon to strike Joy, and compelling Joy to kneel on her hands and knees and close her eyes for one to three hours straight. The Court detects a degree of exaggeration concerning the alleged seriousness of these allegations.

The defendant, born in Nigeria, came to the United States as a 10 year old, attended junior high school and part of high school in the United States. The defendant returned to Nigeria to finish high school and attend college. The defendant spent two months in the United Kingdom after junior high school. The defendant described her hometown of Lagos, Nigeria as [*7]suburban in nature. The defendant has also attended York College and New York University in pursuit of advanced degrees which have not yet been obtained.

The defendant testified that she returned to work within three or four weeks of Nicolas' birth while suffering from postpartum depression. The defendant testified that she breast fed Nicolas for close to a year and that it was her mother, rather than the defendant who primarily cared for Nicolas upon the defendant's return to full-time employment. The plaintiff, according to the defendant, was not involved with the care of the children. In this Court's experience, absolute terms such as never and always rarely reflect the actual facts as they occurred. Through their testimony, both parties have minimized and maximized their recounting of aspects of their marriage and each other's interactions within the family as the purpose suited them.

The defendant characterizes herself as both the husband and the wife within the family unit relegating the plaintiff to the status of a non-entity. The defendant claims that the plaintiff was neither supportive nor helpful in meeting his obligations within the family.

The defendant testified that she was the only dark skinned person in the area of the marital residence and that there was a palpable discomfort in that no one in the neighborhood would talk to her. In her words, "there's something here that's weird." She feels as if the neighbors and residents of the area are saying, "Who are you and what are you doing here?" The defendant characterized the effect upon her as making her feel "violated, naked, small and unwanted". As an African-American, the defendant feels that she has experienced racism as demonstrated by her observations of people's reactions to her. The defendant contrasted these negative feelings with the reception she received since living with her mother in Whitestone, Queens where the neighbors are more ethnically diverse. The defendant's relocation to Queens was a pleasant adjustment in that the neighbors actually spoke with her. She no longer felt she was suffering any prejudice as a result of the color of her skin.

The defendant also testified that the living arrangements at her mother's residence in Queens are appropriate for herself, Nicolas and Joy. However, the need may arise to find a new residence in that her mother's occupancy of the apartment may be subject to a superior right of the actual owner of the premises who may require the premises for himself and his family. This uncertainty together with the status of the marital residence being in foreclosure is disquieting to the Court. It is incumbent upon the Court to assure some stability and continuity concerning Nicolas' living arrangements.

The defendant describes both Nicolas and Joy as happy children. Active, talkative, gifted and brilliant are the adjectives the defendant uses in reference to Nicolas. The defendant is of the opinion that Nicolas should spend more time with her because she is a woman and child rearing is more appropriately a mother's prerogative. The defendant explains that in the Nigerian culture, children are very important, they come first and that Nicolas is her heart and her life. The defendant aspires to do as much as she can to enrich the educational, physical, spiritual and recreational development of Nicolas. The model situation is for a child to be cared for by the whole culture and not just a parent. The defendant contrasts the active involvement of her [*8]mother and maternal aunt as indicative of this cultural priority against the lack of participation by members of the plaintiff's family who reside primarily in France.

The defendant testified that she felt intimated by Dr. Anthony Santoro, the Court appointed neutral forensic evaluator and that she was very scared of him. She claimed Dr. Santoro was not a friendly person, kept her in a dark room and was not trying to find out anything about the defendant's parenting abilities. The defendant is self-described as a loving parent, that she and the children are very close and that she is a good parent. The defendant claims that the plaintiff has damaged his own relationship with Joy and that Joy does not like the plaintiff very much. However, Nicolas, according to the defendant, loves his father very much and the defendant often uses the plaintiff as a positive role model and good example in conversations with Nicolas.

The defendant also felt that she was placed on the defensive in being called upon by Dr. Santoro to respond to the allegations which had been made against her by her husband as related to him to Dr. Santoro. The defendant felt Dr. Santoro was biased and she "felt the unfriendliness".

After her interview with Dr. Santoro, she felt uncomfortable, afraid and was crying. The defendant explained to the Court what she felt could be a cultural disconnect between herself and Dr. Santoro. The defendant explained that the Nigerian culture, in her experience, is a masculine culture, and that failure to make eye contact by diverting one's gaze downward is a sign of respect and not deception or avoidance. The defendant further testified that it is a disgrace in her culture if a marriage fails. The defendant also testified that race is an issue which must be considered by the Court in that Nicolas is similar to his mother in skin tone and that she is more capable of "explaining certain things to him" than the plaintiff would be.

The defendant also testified that what was perceived by Dr. Santoro as her lack of appropriate control of Nicolas during the interview process was more a result of the lateness of the hour and Nicolas' being overtired than any deficiency in parenting skills on her part. The defendant was also of the opinion that the time spent by Dr. Santoro was insufficient by any standard to come to the conclusions as contained in the report. She felt as if Dr. Santoro merely parroted the words of the plaintiff characterizing her as hysterical, angry and very insensitive. The defendant proffered reasons for her remoteness and distraction when interacting with Dr. Santoro as postpartum depression, the after effects of her personally witnessing the destruction of the World Trade Center on September 11th, 2001 and her depression concerning the dissolution of her family and the cultural ramifications of that perceived failure.

The defendant further explains that women in Nigerian culture are proud, humble and reliant upon one another. The defendant felt that certain bias has confronted her in this process of evaluation by the neutral forensic expert and the law guardian. The defendant testified that her interaction with the law guardian in this case was limited to a two hour meeting some time in [*9]2003. There was one additional meeting in an attempt to resolve the custody and visitation issues which proved unsuccessful. The defendant recalls no additional contact with the law guardian. The defendant explains that she believes that the perception of her by others causes her to be afraid and intimidated. The defendant feels as if those involved with the case, specifically the forensic evaluator, should get to know her by talking with her. Her fear is born of what she perceives as an inadequate basis to know who she really is. The defendant's avoidance of the process for purposes of obtaining an update by Dr. Santoro is explained as motivated by this fear. Unfortunately, the process by which contested custody matters are determined in this state require each party's participation and cooperation in the process itself even if that process is perceived by a party to be flawed, unfair, and less than complete.

As both a veteran advocate and arbiter in this context, I find the defendant's descriptions are as insightful as they are sophisticated. The defendant has not only been listened to, she has been heard by this Court. Upon reflection, her words describe a less than perfect process which in and of itself is no new revelation. Those who may claim that this should be a mathematical process of adding the positive and subtracting the negative, do a disservice to the responsibility, obligation and duty of those who are entrusted and empowered to make these life altering decisions concerning fundamental family issues.

The defendant itemizes specific areas of educational, religious, recreational and cultural activities in which she engages with Nicolas. The defendant herself suggests co-parenting with the plaintiff, however, the factual interaction between the parties and the history of the conduct of the defendant cannot be ignored. The lack of trust of the defendant on the part of the plaintiff is more than understandable. The defendant has filed multiple charges in various jurisdictions later determined to be without basis after fact finding. These manufactured allegations concerning the plaintiff's conduct are neither to be excused nor tolerated. Even allowing for the heat of the moment and the judgment altering affect of pending custody litigation, these established facts cannot be ignored.

As will be discussed at length below, co-parenting is more than just a label. It is an ideal to which parents must aspire. To award equal decision making authority to both parents in this case is not only inappropriate, but would be fundamentally ill advised and without justification or reason. The parties having chosen not to resolve the issue, the responsibility is now the Court's.

The defendant detailed her current educational pursuits. She is pursuing a masters degree in Business and Finance from New York University. She attends classes on alternate Fridays and Saturdays. The defendant also detailed the church services which she attends on Sundays of each week. The defendant is attending a Pentecostal Church in Queens and explained to the Court that she and the plaintiff had neither made definite plans nor discussed the issue of religious [*10]upbringing concerning Nicolas. The defendant has spent two-thirds of her life in the United States.

It is troublesome to the Court that the defendant stated to Dr. Santoro that Joy's natural father, Marcus, had not been seen for a long time and that he did not contribute to Joy's support. This is juxtaposed against the defendant's trial testimony that she and Marcus continue to be close to one another. When confronted with this apparent and obvious inconsistency, the defendant then claimed that she had never made such a report to Dr. Santoro in the first instance. The Court is not unconcerned about the nature of defendant's relationship with Joy's father but is deeply concerned with the assertion that Dr. Santoro manufactured the conversations and representations as contained in his report.

This contradiction and inconsistency is in this Court's opinion an example of the defendant's inability to acknowledge her prior statements or actions which may from her perspective cause some difficulty to her case. It is highly unlikely that Dr. Santoro manufactured the nature of the defendant's relationship with Joy's father. The defendant's assertion that such was the case seriously damages her own credibility. This Court is well aware of the seriousness of these proceedings. The defendant's assertion that she never made such comments to Dr. Santoro is a fabrication.

Jean Marc Ledouon was called as a witness by the plaintiff. Mr. Ledouon has been, according to his testimony a friend of the plaintiff for more than ten years. Mr. Ledouon knew the defendant in France as well as the United States through the restaurant business. They spent time together at work and socially after work. Mr. Ledouon's positive testimony concerning the plaintiff's reaction to the birth of his son was both believable and contrasted significantly with the testimony of the defendant's witnesses. The defendant's allegations that the plaintiff had nothing to do with Nicolas were contradicted by observations of Mr. Ledouon which were made prior to the parties' marital discord. Mr. Ledouon never saw the plaintiff intoxicated or smoke in the presence of the child. The Court's only concern with Mr. Ledouon's testimony is the limited number of opportunities he had to observe the parties and the children as a family unit.

In February of 2003, Mr. Ledouon was asked by the plaintiff to accompany him to drop-off Nicolas after visitation. This was a rather eventful exchange during which the defendant is alleged to have threatened to make the plaintiff's life a living hell and the defendant allegedly suggested that the plaintiff should return to France as his only way out. This exchange is alleged to have occurred in the presence of Joy while Nicolas was being held in his mother's arms. The witness indicated that the defendant was screaming at the plaintiff from three to five feet away. It seems this witness, very much like the defendant's mother and aunt, had been enlisted to bear witness to the interactions between these parties for the purpose of later retelling to the Court.

Lisa Scafide was called as a witness by the plaintiff. Ms. Scafide is employed by the Suffolk County Department of Social Services Child Protective Services Bureau (CPS). The involvement of CPS was the result of a report from Good Samaritan Hospital as a mandatory [*11]reporter. The hospital raised concerns that Nicolas had been brought in for multiple hospital visits with little or no objective need for treatment other than the possible attempt by the defendant to document manufactured maltreatment of Nicolas by the plaintiff.

This witness conducted a "home visit" at the East Islip residence. The home visit confirmed both the paucity of furnishings or any other indicia of current occupancy, of the East Islip residence. The house was alternatively uninhabited or partially inhabited by tenants at various points during the winter and spring of 2004-2005. Child Protective Services armed with the belief that Nicolas and Joy were residing at the residence found the dearth of proper furnishings and personal items insufficient for children to reside therein.

This Court has concluded that the defendant, Joy and Nicolas were actually residing with the defendant's mother in Queens County but maintained the appearance that East Islip was their residence due to the pending divorce and custody litigation as well as the need to maintain Joy's home address within the school district for the purpose of Joy's continued attendance. This charade is a concrete example of the defendant's attempt to maximize her advantage and avoid criticism in the context of a contested custody case. This complex deception is unhealthy for both children. The defendant's proffered explanation of ongoing renovations as the reason for the conditions of the residence is not credible. The proffered explanation of contractor "Handy John" as an embellishment, only further bares the lie.

Child Protective Services became further involved when investigating allegations that the plaintiff's friend, Janice had injected Nicolas in his arm with a needle. The defendant's Aunt, Mosunmola, was the only person that Nicolas allegedly told about this incident. The Aunt claims to have told the defendant. It is alleged that the defendant did nothing with the information for at least a week when upon the insistence of the Aunt, the defendant mentioned the matter to the emergency room doctor who was tending to Nicolas on an unrelated matter.

This Court concludes that Nicolas made some claim to his great Aunt who seemed credible in the retelling of the story. There is no objective proof that Nicolas was at any time inappropriately injected by anyone with anything. The medical records of Nicolas' visit to Dr. Mariwali on December 30th, 2004, three days after the alleged statement by Nicolas to his great aunt do not contain any report, complaint or observation of puncture or needle marks of any kind. The visit resulted in a diagnosis of ringworm and the prescription for a topical ointment. A prescription, which by the way, was not filled until a visit to a doctor on January 21st, 2005. It can be said that filling prescriptions for real medical issues rather than attempting to document phantom claims should have been the defendant's priority.

During a January 4th, 2005 hospital visit due to Nicolas' breathing difficulty, the defendant felt compelled to mention that her aunt had told her of Nicolas' statement regarding the needle and Janice. Also, Nicolas had earlier in the day on January 4th, 2005 been to Quest Labs for blood test where blood had been drawn by injection. Additionally, there was a mention of the alleged statement by the defendant to hospital personnel during a hospital visit which occurred [*12]on January 30th, 2005. Furthermore, the plaintiff testified that his contact with Janice ended in November of 2004 two months prior to the defendant's aunt's allegations concerning Nicolas' alleged statement. The allegations surrounding the injection of Nicolas by a friend of the plaintiff is unfounded and unsubstantiated. The multiple hospital visits and multiple retelling of the tale served no purpose and had the potential to jeopardize and confuse the diagnosis and treatment of Nicolas for legitimate complaints.

Mosunmola Omoyele was called as a witness by the defendant. Ms. Omoyele, the defendant's aunt, testified that Nicolas reported to her that Janice had stuck him with a needle. She observed four puncture marks on the inside of the crook of the elbow, each mark equidistant from the adjacent mark, forming a perfect square. This testimony is the only report of the alleged statement by Nicolas and the only observation of the four puncture marks. No other individual observed them or testified to them. This testimony is as confounding as it is troublesome. There is the possibility that the witness confused her dates and may have seen the two blood test puncture marks as a result of the January 4th, 2005 Quest Labs' blood test and the January 4th, 2005 emergency room blood test mark. In a case as contentious as this, it strains reason to give credence to the testimony.

This hearsay statement of a child otherwise inadmissable to prove the truth of its content does not serve to convince this Court in any respect that a friend of the plaintiff's injected Nicolas with anything. The multiple retelling of this tale in the hope of having it memorialized in the child's medical record to be retrieved and presented to this court as part of the custody litigation is an error in judgment on the part of the defendant. Furthermore, it is this Court's opinion that without this litigation and the history of the animosity between the defendant and Janice the issue of the alleged injection would not have been pursued.

Dawn Cavalcante was called as a witness by the plaintiff. This witness was a residential real estate broker who was given a listing for the marital residence in East Islip in late December 2004. In describing the condition of the property, the witness indicated that the premises appeared as if the owners had moved out. There was no furniture and no clothing in the residence. The witness offered an opinion that the residence was worth between $500,000 to $530,000 and stated she had received a series of offers for the property ranging from $550,000 to $560,000.

Vila Vincent was called as a witness by the defendant. Ms. Vincent, the caretaker for Nicolas and Joy, testified as to the daily routine of Nicolas as well as the daily involvement of the defendant in the planning and instructions for Nicolas' daily activities. For more than a year, Ms. Vincent has been primarily responsible for central issues, including meals, recreation and education. At the defendant's direction, Nicolas' exposure to television was limited and most, if not all, of his daily activities were carefully structured and planned. The testimony was credible in this regard.

Ms. Vincent also characterized the interaction and relationship between Nicolas [*13]and Joy as close. Ms. Vincent testified that the defendant never uttered a negative word about the plaintiff and was supportive of Nicolas' relationship with the plaintiff. Ms. Vincent was, likewise, candid concerning the methods of discipline employed by the defendant including time-out's, limitations on Nicolas' use of certain favorite toys as well as sending him to his room.

Ms. Vincent's assessments of Nicolas' relationship with the defendant was that of an appropriate and loving relationship. Ms. Vincent was, likewise, candid concerning her not having any opportunity to observe Nicolas' interaction with the plaintiff due to the fact that she was hired after the parties had physically separated. Ms. Vincent also described the defendant's work and graduate school schedule in great detail including the description of the weekend classes and study time. As to Nicolas' medical needs, Ms. Vincent indicated that medications were prescribed for Nicolas' respiratory difficulties.

Olubu Kola Oriole was called as a witness by the defendant. Ms. Oriole, the defendant's mother, testified with the assistance of a Yoruba interpreter, Ms. Ologe. Mrs. Oriole testified that she arrived in the United States in September of 2000 for the purpose of attending her daughter's wedding which occurred on October 15, 2000. Mrs. Oriole testified that her purpose in remaining in New York was to assist the defendant with the daily care of Joy and the defendant's pregnancy with Nicolas soon thereafter. Ms. Oriole then sought to remain in the United States. There were some adjustment difficulties between the defendant's mother and the plaintiff during her extended stay. A medical emergency concerning the defendant's pregnancy caused tension between Ms. Oriole and the plaintiff. There were other issues of disagreement and Mrs. Oriole moved out of the residence which the parties had occupied in Queens. She felt as if she were making her son-in-law uncomfortable.

After the birth of Nicolas and after the defendant had returned to work, Mrs. Oriole indicated that the plaintiff depended upon her for advice and assistance on a daily basis concerning the care of Nicolas and Joy. At that point in time, the plaintiff was at home studying and was not employed full-time outside of the home.

Mrs. Oriole explained that she and the parties moved into the East Islip residence with the downstairs as her living quarters. The defendant's mother testified that the plaintiff inappropriately used physical discipline with the defendant's daughter Joy by striking her in the face with an open hand, twisting her ears and spanking her with a belt. It was this behavior that served as the beginning of the marital difficulties between the parties. As described by Mrs. Oriole, the defendant was very upset and argued with the plaintiff about the alleged mistreatment of her daughter. The Court finds these descriptions of corporal punishment to be exaggerated at least and quite possibly fabricated. The alleged mistreatment was neither reported to any authority nor was there any reporting by any third party concerning this alleged abuse. [*14]

Mrs. Oriole's characterization that the plaintiff "completely ignored the baby" is an obvious exaggeration. Mrs. Oriole's statement that she never saw the plaintiff change a diaper or feed the baby is contradicted by her own earlier testimony that he did participate in child care chores and was alone caring for both Joy and Nicolas prior to the purchase of the East Islip home. This witness' attempt to assist her daughter, has resulted in an exaggeration which renders her testimony suspect. The anecdotal nature of this witness' criticism of the plaintiff has not been considered by the Court in this decision. This witness' characterization of the defendant as a chain smoking, child beating, alcoholic is not bourne out by the other testimony in this case.

Having created a context by a discussion of the testimony of other witnesses, the Court will return to a discussion of the defendant's testimony and posturing. The defendant's explanation for her reluctance to act upon her aunt's report of Nicolas' statement concerning an injection by Janice was analyzed by the defendant resulting in her conclusion not to report the issue because everyone would think that she made it up. By way of further explanation for not acting upon the allegation the defendant claims that Nicolas was not in any 'physical emergency' requiring a midnight trip to the emergency room which she undertook but then abandoned because the wait was too long. The defendant decided to wait further for an unrelated emergency room visit before mentioning it, another visit to the pediatrician and then a third visit during which it was again mentioned. The defendant seemed to overcome her initial reluctance as reflected by the multiple reports. The defendant claims that she did not know what to do and that she was torn between her aunt's advice and the possible reaction of the law guardian and others involved with the case who might cry, fabrication.

Reporting the aunt's statements to authorities and directing the authorities to the aunt would have allowed immediate, timely and appropriate investigation of the issue tempered by the child's age and the circumstances and events surrounding the allegation. This alleged litigation paralysis is no excuse. The medical condition of Nicolas should have been the number one priority for everyone. There is an obvious disconnect between the maternal aunt's testimony concerning her physical observations of Nicolas' arm and the actions of the defendant. If the child presented with four puncture marks without further explanation, whether insect bite, snake bite or invasive medical procedure, the alleged statement coupled with the physical observation required medical reporting. Three attempts after the passage of a week, two weeks and then a month is far too little, far too late.

There is also the defendant's proffered excuses and explanation of Lisa Scafide's findings regarding the conditions of the East Islip residence and the lack of food in the refrigerator, which are disingenuous and continues the defendant's pattern of deceit. The defendant's need to contradict and explain these assertions by manufacturing responses that seemingly answer the question but are obvious fabrications when compared with other testimony is not only troubling it is endemic. For example, when confronted with the objective fact that the Meroke Lane, East Islip address was not the residence of the defendant at the time of the CPS [*15]investigator's inspection she claimed to be living with her mother in Queens while renovations were being performed because the smell was too much to handle. The defendant tailors seemingly plausible explanations to the needs of the moment but loses sight of other explanations that contradict her assertions. The defendant did not want to suffer any negative consequence of removing Nicolas from the Suffolk County residence while the litigation was pending.

The defendant's attempt to excuse her behavior and conceal the truth undermines her credibility severely. This Court finds that the defendant's credibility has been damaged to the extent that her statements must be carefully parsed and examined in that a pattern of unreliability has emerged. The maternal grandmother's residence being an appropriate environment, if the need arose for financial or other reasons to relocate either temporarily or permanently to Queens rather than concocting and perpetuating an elaborate ruse, the defendant would have been better advised to make application to the Court upon notice to the plaintiff and the law guardian.

Prior to addressing the testimony of the experts and to place such testimony into context, the Court will discuss the defendant's in limine motion and the Court's rulings thereon. On the second day of trial, after Dr. Anthony Santoro had begun testifying an in limine application was made by counsel for the defendant to exclude the forensic report of Dr. Santoro or in the alternative for a Frye/Daubert^[FN1] hearing to determine the general acceptance in the scientific community and the reliability of any science proffered by Dr. Santoro. The Court afforded counsel for the defendant, counsel for the plaintiff and the law guardian the opportunity to be heard on the in limine application made orally on the record. The Court also permitted argument on the defendant's intention to offer as expert witnesses, Dr. Peter Favaro and Dr. Leah Blumberg Lapidus. Discussions were had regarding the applicable court rules (22 NYCRR 202.16 [g][2] and 202.18); statute (CPLR 3101 [d][l][I]); recent scholarly treatment^[FN2]; a recent opinion of the Hon. Ettore Simeone, Judge of the Family Court, [*16]Suffolk County (Linda W. v. Frank T., 2004 NY Slip OP 516570; 5 Misc 3d 1031A [2004]) and the traditional use of forensic reports and testimony and the safeguard of vigorous and thorough cross-examination.

After considering the arguments of counsel and performing its own research, the Court denied the application to exclude the forensic report of Dr. Santoro, finding the report was not in the nature of new, novel, noteworthy or ground breaking expert testimony as to make its reliability or admissibility the subject of a Frye hearing. The Frye/Daubert analysis and the current treatment in the scholarly literature will be addressed later in this opinion. The Court also ruled that for decades, the courts of the State have traditionally and customarily relied upon the forensic psychological evaluation and that vigorous and thorough cross-examination will provide the protection which the law envisioned. The Court overruled the defendant's counsel's objection with respect to the admissibility of Dr. Santoro's report. Further, notwithstanding the procedural infirmities regarding the disclosure of expert witnesses, the Court permitted the defendant to offer the testimony of Dr. Leah Blumberg Lapidus and Dr. Peter Favaro. The Court stressed that it was not an issue of the admissibility of evidence but the weight ultimately given to such evidence.

In total three psychologists testified in this trial. The Court appointed neutral, on the plaintiff's direct subject to cross-examination, and two psychologists on the defendant's direct case. The credentials of all three psychologists render them competent to testify in a contested custodial matter. Their backgrounds in the field are extensive and their contribution to this Court's understanding of each of the parties, as well as the dynamic of the family unit are valuable tools in exploring and understanding the parties and the children involved herein.

Due to the need for a complete summary of the neutral psychologists interviews, observations and conclusions, this Court permitted Dr. Santoro to supplement his report with additional direct testimony. This need is attributable to the defendant's [*17]lack of cooperation as well as the intervening events between the issuance of the original report and the time of trial.

As an accommodation to the parties and their respective counsel the Court permitted significant periods of time for adjournment for the purpose of the participation of both of the defendant's experts and sufficient time for their testimony and review of the neutral forensic expert's report as supplemented by his trial testimony. In addition the Court granted plaintiff's counsel a significant period of time to review the testimony of the defendant's experts and prepare for the cross-examination of both experts.

The colloquy, oral argument and rulings of the Court are well documented in the trial record. This Court permitted both the plaintiff and the defendant a full and fair opportunity to prepare their cases, their experts and their presentation to the Court. The parties individual decisions to disregard the methodologies set forth in CPLR 3101[d] are not encouraged by this Court. Rigid compliance with the CPLR may be the ideal, however, as in the instant matter where the issue being determined is custody of a child and with due consideration of the individual and peculiar circumstances of this case, allowing all three experts to fully set forth their opinions, criticisms and rebuttals is in this Court's opinion required.

Dr. Santoro submitted his report, dated November 7, 2003. The report detailed the tasks undertaken by him for the purpose of providing a report and recommendation in compliance with the order of appointment. The report contained the methods employed, the source of the information set forth and the conclusions of Dr. Santoro. Dr. Santoro also supplemented his report by giving oral testimony subject to cross-examination by the plaintiff's counsel, the defendant's counsel and the law guardian. Dr. Santoro's report and direct testimony were the subject of significant cross-examination. Several issues emerged as pivotal to the neutral expert's recommendation that the plaintiff should receive sole custody of Nicolas.

It is important to note that Dr. Santoro did caution the Court in his report with respect to the native born American normed aspects of the psychometric tests employed. The defendant's experts were of the opinion that the cautions and limitations were not adequately expressed to the Court.

Dr. Santoro presented certain information concerning the reporting of Nicolas' alleged reports of respiratory distress. He undertook an examination of the time periods Nicolas spent in his father's exclusive care, control and custody; reviewed health records; spoke with day care providers and the child's physicians. On the issue of Nicolas's medical diagnosis with asthma, it was concluded that the defendant significantly [*18]exaggerated the existence of asthma by alleging symptoms that did not exist which the defendant then attributed to the plaintiff's smoking in the presence of the child and mold from the plaintiff's residence. Much was made of the contradictory testimony as to whether Nicolas did or did not have asthma. A review of the records indicates that at one point in time, Nicolas was too young to diagnose as having asthma but later there was a diagnosis of asthma. This is a very disturbing interaction between the parties. The primary concern became who was responsible rather than what was the diagnosis and what was to be the course of treatment and prevention. This lack of insight pertaining to Nicolas' health is of extreme concern to the Court. Health care decisions should not be made to gain advantage in the litigation.

The Court also notes that during the litigation, the defendant obtained a dog. This canine addition to the family was somewhat inconsistent with the defendant's allegation that Nicolas suffered from asthma. The behaviors that Dr. Santoro describes in regard to the mother's interaction with those with whom she comes in conflict or who criticize her or fail to unconditionally support her position is of concern to the Court.

Also, the characterization of the plaintiff as an alcoholic by the defendant was of great concern to Dr. Santoro. There was no objective evidence of any kind to suggest that the plaintiff suffered in any way from any substance abuse problems. The additional assertion that the plaintiff pursued a wild lifestyle fraught with unreasonable dangers was not bourne out by the record. These were contrivances on the part of the defendant. The defendant's willingness, if not eagerness, to paint a pathological picture of the plaintiff is of concern to this Court as it was of concern to Dr. Santoro.

The defendant's assertions that her lack of cooperation in updating the report with Dr. Santoro somehow resulted in his ultimate conclusion is somewhat disingenuous. The defendant's pattern of behavior is such that she is willing to emphasize the negative as it concerns the plaintiff but is unable to participate in a process that she cannot control and which she perceived as a negative to her in the first instance as set forth in the original report. The defendant did herself no favor by refusing to participate in the update of the report as requested by the neutral forensic psychologist.

In this particular case, half of Nicolas' young life has been spent in litigation and the conduct of the parties is somewhat skewed by this very unnatural set of circumstances. The adversary nature of the system encourages aggressive contradiction of negative or harmful reports which endanger each litigant's quest for custody of their child. The system rewards placation, cooperation, calm reflection and insight. This paradox is of no small moment in this case. The advocacy involved in maximizing the negative attributes of the opposing party offers little to encourage resolution of contested [*19]custody matters. The Court, however, is faced with the stark reality that in the absence of agreement one parent must be chosen over the other, in a case such as this, where parental cooperation is lacking, for the purpose of making the day to day and other significant decisions on behalf of Nicolas.

The defendant on her direct case presented the testimony of Dr. Leah Blumberg Lapidus. Although certainly well credentialed and experienced Dr. Lapidus' personal knowledge of the subject family unit is limited to a brief period of time when she was treating the defendant for depression. In addition to her treatment testimony based upon personal knowledge, the defendant also asked Dr. Lapidus to review and critique the neutral forensic evaluation of Dr. Santoro. Dr. Lapidus reviewed the report (Plaintiff's Exhibit 13 in Evidence) as well as a transcript of Dr. Santoro's testimony and the other testing materials which served as the basis for the testimony and report of the neutral expert. Dr. Lapidus' curriculum vitae is extensive. However, her testimony in this case was essentially a statement of disfavor for Dr. Santoro's alleged failure to adequately advise the Court of the limitations of the testing methodology when the subject involved is a non-American born foreign national. Although the defendant is a United State's citizen, she has spent significant amounts of time abroad both as a child and young adult.

Dr. Lapidus offered a profile of the defendant as someone who was obviously misunderstood by the neutral expert. The cultural element of Dr. Lapidus' testimony served to explain what were in her opinion misinterpretations of the defendant's behavior by the neutral expert. Dr. Lapidus' testimony concerning cross cultural issues between the defendant and the neutral expert were informative and relevant to the proceedings. Dr. Lapidus' views on the appropriate procedures to be followed in the administration of psychological tests was, likewise, informative and appropriate. On the issue of the MMPI-2, Dr. Lapidus was unable to offer testimony of any significance, in that she had experience with the MMPI but was unfamiliar with the updated MMPI-2. The Court finds Dr. Lapidus' testimony relevant and material on both the cross cultural issues and the test administration methodology.

In Dr. Lapidus' testimony regarding empirical testing methods, she offered her opinion as to how tests should be administered and interviews conducted such that the individual test may be replicated for statistical analysis and peer review. Dr. Lapidus reviewed medical records; clinical records; Dr. Santoro's report and testimony; met with the defendant, Nicolas, Joy and the defendant's mother. Dr. Lapidus' testimony is undermined by her lack of documentation and interview notes for the meetings and [*20]interviews she testified to conducting. In virtually the same breath, Dr. Lapidus criticized Dr. Santoro as not sufficiently documenting certain interviews and interview procedures and then failed to provide any documentation concerning her own interviews of the defendant, Nicolas, Joy and the defendant's mother. The irony is that Dr. Santoro's record keeping and documentation was more in compliance with Dr. Lapidus' standards than were her own.

While Dr. Lapidus preached a requirement of replicatable interactions using standardized materials, other than her own testimony, she offered no evidence of following her own ideal procedures. While she testified to certain testing procedures and scoring, Dr. Lapidus could not and did not produce any documentation. Also, Dr. Lapidus' testimony concerning her observations of the defendant, the children and the defendant's mother was not structured in accordance with her own self-imposed requirements, but was admissible and relevant on the issue of her opinion and impressions of the defendant related to custodial fitness. Dr. Lapidus' anecdotal cross-cultural observations concerning mis-diagnosis of African born subjects tested by western standardized tests was enlightening.

However, Dr. Lapidus' interpretive testimony concerning the plaintiff's test results for the diagnostic tests administered by Dr. Santoro is troubling. The Court is unable to reconcile Dr. Lapidus' criticisms of Dr. Santoro's testing methods, with her reliance on those methods as the basis for her opinion concerning the plaintiff. Even before the commencement of cross-examination, this internal contradiction severely undermines Dr. Lapidus' testimony and is indicative of her affiliation and affinity for the defendant. On the one hand, Dr. Lapidus opines that Dr. Santoro lacked any empirical basis for his conclusions concerning the defendant and on the other, she emphasized the negative features and traits of the plaintiff arrived at by Dr. Santoro using the same method. Dr. Lapidus candidly admits she never met with or spoke to the plaintiff, any collateral sources or the law guardian.

During cross-examination, the attempts by plaintiff's counsel to quantify the duration and extent of Dr. Lapidus' professional relationship with the defendant was met with no documentation. Whether discussing billing, testing, progress notes, treatment, observation or group interviews, Dr. Lapidus did not produce documentation of any of the interactions. Although acknowledging that it is important to take an accurate history and maintain accurate notes Dr. Lapidus did not and could not produce the documentation as requested. [*21]

Dr. Lapidus' role as treating psychologist versus forensic evaluator was never clearly defined by her. Frankly, Dr. Lapidus' testimony in this regard is unintelligible. Her claims of seeing the defendant in 2003, then 2004, coupled with her testimony that she did not know of a contested custody proceeding until 2005, is irreconcilable with her testimony concerning the initial consultations with the defendant and the defendant's depression as a result of postpartum, the World Trade Center attack and the divorce.

Dr. Lapidus' observations concerning the possible separation of Nicolas and his half-sister Joy are relevant and material. Her personal observation of the interaction between the children supports the testimony of the parties that the two children enjoy a very close relationship.

The defendant also presented Dr. Peter Favaro as an expert in the field of forensic psychology. Dr. Favaro's testimony was offered to specifically address the shortcomings of Dr. Santoro's methodology. Unlike Dr. Lapidus, Dr. Favaro has no prior relationship with the defendant and his testimony was brought to bear solely on the issue of whether and to what extent Dr. Santoro conducted his forensic evaluation in accordance with the accepted practices and procedures of the American Psychological Association and within the acceptable boundaries of the current state of forensic psychological practice.

This Court holds that this type of testimony in response to a neutral forensic evaluation that clearly favors the adverse party is both relevant and material and bears directly upon the weight to be afforded the neutral forensic psychologist's report, findings, testimony and recommendations.

Dr. Favaro's experience and credentials in this area qualify him to offer a critique of the methods used by the neutral psychologist. Dr. Favaro reviewed the report and testimony of Dr. Santoro. Dr. Favaro's testimony was concise, well organized and instructive. The specific examples cited by Dr. Favaro concerning studies where causation between variables was presumed and later proven incorrect, illustrates the shortcomings of standardized testing. The fact that a presumption may differ from the true and correct explanation or reason for a particular phenomenon is a caution that serves the fact-finder well in reviewing and understanding the limitations of forensic scientific evidence.

Dr. Favaro was of the opinion that Dr. Santoro's report was grossly unfair to both parties, contained statements that were ethically inappropriate and offered [*22]conclusions and recommendations without a sufficient scientific basis. While Dr. Favaro was of the opinion that Dr. Santoro's opinions were more in the nature of hypotheses, that should not be taken as scientifically supported by data, peer review and statistical significance, Dr. Favaro's perceptions regarding threats to reliability are points well taken. The fact that the parties to contested divorce and custody proceedings may shade, withhold or outright lie during the interview process is understandable. Dr. Santoro's conclusions concerning his direct observations of Nicolas' differing behaviors in the presence of the plaintiff versus the defendant is a good point. There is no doubt that the behaviors actually observed by Dr. Santoro did, in fact, occur. Whether there is some mitigating circumstance such as the order of the observations and interactions, the fatigue of the child, the differing and appropriate methods of discipline is a proper subject and was adequately explored by the defendant's counsel during the cross-examination of Dr. Santoro. Dr. Favaro criticized the fact that there were no structural behavioral criteria or checklists to serve as a model or objective method of observation. Dr. Favaro was of the opinion that multiple observations over a period of time would be preferred. The fact that there were no observations made of the parties with Nicolas in a more natural setting over time was also troublesome to Dr. Favaro.

Perhaps the most critical aspect of Dr. Favaro's testimony was the issue of bias on the part of the neutral psychologist as perceived by Dr. Favaro. The specific example given by Dr. Favaro, concerning Dr. Santoro's conclusions that Nicolas' aggressive behavior is attributable to the defendant, illustrates Dr. Favaro's concern that the neutral psychologist did not consider more than one hypothesis which in turn indicates bias.

The use of collateral sources, such as the representative of the Y.M.C.A., who did not testify at trial, was likewise troubling to Dr. Favaro. The lack of detail concerning the context and actual content of the conversation alleged to have taken place between the defendant and the Y.M.C.A. representative decreases it's value and weight.

Dr. Favaro also concluded that Dr. Santoro's observation that the plaintiff impressed him as a controlling and obsessive individual is grossly unfair to the plaintiff. Dr. Favaro was candid in admitting that he reviewed no medical records; interviewed neither the parties nor any third parties; never spoke with Joy or Nicolas; or reviewed any of the exhibits, or read the testimony of any witness other than the report and testimony of Dr. Santoro.

The thrust of Dr. Favaro's testimony is his opinion that Dr. Santoro overstepped the bounds of his assignment, exhibited bias against the defendant; treated the plaintiff unfairly, and recommended the separation of two siblings without adequately [*23]exploring the possible effects upon both Nicolas and Joy.

Dr. Favaro recommended a more structured clinical interview process; multiple off-site exercises in the form of homework for the purpose of obtaining data regarding attitudes of the parties toward one another and the child; children's interviews where the child is greater than three years old; more structured observations over a longer period of time in both clinical and natural contexts including a home visit; more structured interviews of collateral sources requiring behavioral and symptom checklists, direct observations and a narrative by the third party reporter; and in the absence of domestic violence, one or two conjoint structured interviews with the parties.

Dr. Favaro also suggested that the reports should be limited by additional facts not known to the neutral, that it is reflective of the data known at the time of the creation of the report and may be subject to change or modification based upon additional data.

Dr. Favaro opined that Dr. Santoro gave insufficient cautions, admonitions and statements of limitation; did not adequately note what he did; did not offer a sufficient statement regarding reliability; did not caution regarding reliance on hearsay; and, provided conclusions without adequately stating the bases. Also, when given the opportunity to update, amend and in Dr. Favaro's opinion "tone down" his conclusions during the testimony or on cross-examination Dr. Santoro failed to do so. Dr. Favaro claimed Dr. Santoro's bias was evident from his use of personal feelings and characterizations rather than psychological data.

Inasmuch as the issue was raised by in limine motion and given the present interest in the topic, the Court is compelled to make comment on the Frye/Daubert "debate". A neutral forensic evaluator was ordered by the Hon. H. Patrick Leis, III by Order dated May 16, 2003. The use of such experts in contested custody cases has come under intense scrutiny and is currently the subject of some concern among members of the bench, bar and general public. The genesis of this concern may be found in a perception in certain circles that courts, on occasion, may rely too heavily upon the recommendations of psychologists and psychiatrists who serve as forensic evaluators. The bulk of the current concern revolves around what many perceive to be a usurpation of the judicial function by such experts with the perception of acquiescence or complicity of the Court (see e.g. Custody Evaluations - Part 1: Expertise by Default?, Tippins, N.Y.L.J., 7-15-03, p.3, col. 1). [*24]

Each judge who is called upon to hear contested custody matters is empowered to determine custodial arrangements to the extent that such arrangements serve the best interests of the child or children involved. The vehicle for such determination is the trial of the particular case. There are a number of evidentiary concerns which have been voiced by certain legal and psychological constituencies.

It is in everyone's best interest to assure professional, reliable and consistent methods and bases for the findings, recommendations and reports of mental health professionals in this contested context. Those most vocal critics seek to invoke by judicial legislation a Daubert rather than a Frye standard to ascertain the admissibility of expert testimony and evidence. This is problematic at best. Those commentators who have chosen to address the issue equivocate as to their own objections as well as their suggested solutions.

New York State, at least as far as the Court of Appeals and Appellate Divisions are concerned remains as it has been for the last eighty years a Frye state (see e.g. People v. Wernick, 89 NYS2d 111, 651 NYS2d 392 [1996]; People v. Wesley, 83 NY2d 417, 611 NYS2d 97 [1994]). The issue is one of general acceptance in the field for the purpose of determining admissibility. The Court of Appeals in People v. Wesley held that how the generally accepted methodology is applied in a particular case can result in preclusion of the testimony and the expert's opinion, with the issue being one of weight rather than admissibility.

Admission of forensic psychological opinion concerning comparative custodial fitness has been accepted practice in New York State for decades (see e.g. Young v. Young, 212 AD2d 114, 628 NYS2d 957 [1995]; Rentschler v. Rentschler, 204 AD2d 60, 611 NYS2d 523 [1994] app. dsmd. 84 NY2d 1027, 623 NYS2d 182 [1995]). The criticism and concern regarding methodology and ultimate recommendations is nothing new. If a trial court is required to make custodial determinations, the findings of psychologists are not only helpful but in many instances advisable. Where mental illness of one or both of the parties is suspected due to prior conduct or treatment, a psychologist's report and diagnosis arrived at by using objective and appropriate diagnostic tools and criteria as adopted by the profession is helpful to the Court. Such diagnosis would be a factor which the Court must consider in arriving at the Court's conclusions as to what arrangement is in a child's best interests in the context of a particular set of circumstances.

The assumption that a court relies only or primarily upon the recommendations and findings of a forensic psychologist and/or law guardian is as offensive as it is incorrect. Every opinion and every argument is subject to both vigorous [*25]cross-examination and rebuttal. Eliminating the use of psychologists is a grave mistake. There is neither legal nor scientific reason to do so. In the matter at bar, the report of the neutral expert was admitted into evidence and was supplemented by his testimony. The defendant presented two rebuttal experts. These experts criticized the methods employed by the Court appointed neutral. The rebuttal experts asserted that the neutral expert displayed significant bias in both his report and during the supplemental testimony.

The rebuttal testimony of the defendant's experts dealt primarily with the inapplicability of certain tests and testing methods when dealing with foreign born subjects. The plaintiff in this action is a French national and the defendant a Nigerian national. The plaintiff unquestionably spent his formative years in France while the defendant spent significant periods of time in Nigeria, the United Kingdom and the United States. These are valid criticisms of the use of certain tests which in their interpretive materials and manuals caution against the use of such tests for subjects who are not primarily United States born and raised.

This type of valid criticism is the appropriate function of both cross-examination and rebuttal. This represents the stark difference between admissibility of evidence in the first instance and weight to be afforded such evidence in the second. New York has been, is and remains a Frye (general

acceptance) rather than a Daubert (reliability) jurisdiction. This Court is required to follow the law as it is rather than the law as certain academicians and practitioners hope it may someday be.

Furthermore, those who argue for preclusion of psychological reports if not grounded in empirical or scientific knowledge seem to do so on a qualified basis. The objection is that any expert opinion as to the ultimate best interests of a particular child impinges the sole province of the Court. In this regard, the Court notes that whether the expert offers an opinion on the ultimate question or questions of lesser significance, the admissibility and bounds of the expert testimony remains in the sound discretion of the trial judge and the credibility and the weight to be afforded such testimony remains with the trier of fact (see People v. Cronin, 60 NY2d 430, 470 NYS2d 110 [1983]; People v. Ciaccio, 47 NY2d 431, 418 NYS2d 371 [1979]; Richardson on Evidence, 11th Ed. §§7-305, 7-306). This Court, as well as others, has on prior occasion after trial ruled opposite to the recommendations of both the law guardian and the neutral forensic psychologist. Such rejection was based upon all the facts and circumstances before the Court. A trial judge's obligation to do so transcends the perception of some that the Court is relegated to function merely as a "rubber stamp" for neutral experts or law guardians.

This Court has also ruled, in appropriate cases, in agreement with the [*26]opinions expressed by the law guardian and forensic psychologist. It is this Court's opinion that the current controversy is the manifestation of criticism which has gone unheeded and without redress for several decades. One of the issues has to do with the friction and conflict which exists between PhD empiricists and PsyD clinicians who each perceive their own methods and training to be appropriate for the purpose of comparative custodial fitness determinations.

It is the empiricists who currently long for Daubert analysis which would exclude an expert's opinion if not grounded in scientific knowledge. "Peer review" and "validation" are the buzz words. This Court must comment that one of the rebuttal experts in this case has previously testified using the same methodologies complained of in this case during his own testimony as a neutral expert. This expert's metamorphosis and adoption of the strict empiricist's view is not criticized. That is his prerogative. The issue is not one of disregarding the testimony of the neutral psychologist as not meeting a Daubert standard but rather the appropriate application of Frye and the availability of cross-examination and rebuttal. The bulk if not all of the defendant's experts' criticism stems from the neutral psychologist's failure to sufficiently caution the Court and to more conspicuously note the limitations of both the methods and the findings as contained in both the report and the supplemental testimony offered. Such criticism is both appropriate and constructive.

The current debate serves the legitimate purpose of reasoned consideration and reflection on methods and boundaries. The debate should not, however, overshadow that which is at the heart of the matter, the best interest of an individual child or children under a specific set of facts and circumstances. It is this Court's concern that the child, on occasion, gets lost in the debate.

A purely legal analysis of the issue under current New York law is rather a simple matter. New York has been, is, and remains a state recognizing general acceptance in a particular field as determinative of admissibility. The nature of the current debate may and should be analyzed as follows. There are three categories of opinion evidence under Frye:

1)Opinion testimony that has been previously offered to a court and found to be generally accepted by the relevant profession and therefore found admissible.

In these cases no hearing is required unless there is some significant indication that the relevant profession has modified it's position to the extent that the theory is no longer generally accepted. [*27]

2) Opinion testimony that has been previously offered to a court and found not to be generally accepted by the relevant profession and therefore found inadmissible.

In these cases no hearing is required unless there is some significant indication that the relevant profession has modified it's position to the extent that the theory is now generally accepted.

3) Opinion testimony that has not been previously offered to a court which requires a Frye analysis to determine if it is or is not generally accepted by the relevant profession for the purpose of determining whether or not the theory is admissible.

In these cases a Frye hearing is required to determine the issue of admissibility.

The proper implementation of Frye safeguards the fact finding process from new or novel types of expert opinion which have not been generally accepted within a particular discipline. The justification for this analysis should be obvious. An opinion should not and cannot be admitted without general acceptance in the particular field. Trial judges in New York State have no legal basis for imposing any standard other than general acceptance. If a theory or type of testimony has been generally accepted within the particular discipline it is admissible if relevant and material to prove an issue in controversy.

There is currently tremendous dissatisfaction with the limited nature of this analysis. The critics of the Frye approach, seek to 'revisit' certain types of scientific opinion for retroactive analysis under Daubert. This point has not been clearly made by the critics, one presumes for fear of upsetting certain opinion evidence which has now enjoyed a long history of admissibility due to it's general acceptance in a particular field.

This desire to 'revisit' what are already generally accepted types of existing opinion evidence will meet with tremendous resistance. Why? It is a tacit admission that certain evidence should never have been admitted in the first place. This undoing of general acceptance will render prior decision making suspect and will open all expert opinion to attack sui generis.

Why should this meet with such resistance? Precluding new and novel expert opinion until it is generally accepted has been historically seen as protecting the system from suspect opinion and kept the judiciary from becoming the actual arbiter of [*28]the science as science. Judicial meddling in concluding what is and is not valid science has been carefully avoided in New York jurisprudence leaving that determination to the individual disciplines (see e.g. People v. Wesley, 83 NY2d 417, 611 NYS2d 97 [1994] [concurring op. Chief Judge Kaye]).

What has changed? Daubert has historically been seen as liberalizing and expanding that which could be admitted as expert opinion by utilizing a reliability and trustworthiness standard. The current controversy seeks to use Daubert to restrict and invalidate prior types of admissible evidence rather than expand what is admissible. This is inapposite to the original purpose and function of Daubert. As noted above, forensic psychological opinions have been accepted in the New York State Courts for decades. The application of Daubert, to disqualify what is already generally accepted in the discipline, and previously ruled admissible in thousands of cases was never the original intention of Daubert..

This proposed use of Daubert to revisit the 'admissibility' of previously admitted types of generally accepted expert opinion is inappropriate and without legal justification in what continues to be a Frye state. Daubert's historical legal perception as a liberalization of the process making it more inclusive rather than exclusive is the pivotal point. The Court of Appeals has made it crystal clear that general acceptance in the field is the standard by which trial judges must determine admissibility (see e.g. People v. Wernick, 89 NY2d 111, supra ; People v. Wesley, 83 NY2d 417, supra ). Attempted implementation of Daubert to contradict generally accepted theories of a profession has found no support above anecdotal lower court decisions whose analysis upon examination is a traditional weight rather than admissibility argument (see e.g. Linda W. v. Frank T., 5 Misc 3d 1031 A, supra ).

The parties in this matter have provided no case law which holds that a previously admitted type of expert opinion which was generally accepted in a particular discipline has been subsequently excluded by a restrictive application of the Daubert analysis. The attempted use of Daubert empirical analysis to discredit a generally accepted theory or methodology is a substitution of the Court's judgment for the judgment of the particular profession or discipline. It would also require an empirical analysis in every case where expert testimony is to be presented to the trial court. Frye, requires the internal protocols and procedures of each discipline to regulate reliability.

In summary, if a theory is neither new nor novel and has been generally accepted by a profession it is, as here, admissible. If a theory is new or novel a Frye general acceptance analysis must be undertaken. There is no legal justification or basis under New York law to conduct a Daubert analysis, substituting the scientific judgment [*29]of the Court for the scientific judgment of a particular profession regardless of whether a theory is either new or novel or long accepted.

The Federal system has by statutory enactment broadened the analysis for determining admissibility in Federal Court (Federal Rules of Evidence §702). A search of the Federal case law provides no guidance for the restrictive rather than inclusive use of Daubert to undermine or preclude long standing, accepted scientific methods and theories. The Court is without precedent to preclude scientific evidence which has long been deemed reliable by subjecting it to retroactive scrutiny. If some new scientific theory or discovery should cast doubt upon the use and admissibility of previously accepted theory or opinion it is the purview of the discipline to re-examine and re-cast it's acceptance or rejection of the previously adopted and accepted theory or opinion. Such is the state of the law in New York. A small number of objectors voicing an opinion for the purpose of spurring debate is insufficient to contradict long standing general acceptance by a discipline. These modifications may occur over time but there is less than a groundswell of support for eliminating or severely limiting the use of forensic psychologists for the purpose of rendering diagnoses and recommendations. The weight a court chooses to give a particular expert's opinion and testimony is based upon the complete record and not merely the existence of the opinion.



In the matter at bar, the Frye/Daubert distinction as the standard for admissibility of expert evidence and testimony was not seminal to the Court's ultimate determination. The conventional safeguards of cross-examination of the expert and in this case, the liberal allowance of rebuttal witnesses, furnished this Court, as the trier of fact, with the material facts, opinions and expressions of concern regarding methodology, to enable this Court to make its determination. Parenthetically, the Court observes that the genesis of the Daubert judicial gatekeeping function and the pre-trial or in limine hearing is to determine if proffered expert testimony is sufficiently relevant, reliable and trustworthy to be presented to, and considered by, a jury. In fact, Justice Blackman, writing for the majority in Daubert observed:

Respondent expresses apprehension that abandonment of "general acceptance" as the exclusive requirement for admission will result in a "free-for-all" in which befuddled juries are confronted by absurd and irrational pseudoscientific assertions. In this regard, respondent seems to us to be overly pessimistic about the capabilities of the jury and of the adversary system generally. Vigorous [*30]cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.

In the non-jury trial context, as long as the traditional adversarial precept of vigorous cross-examination and presentation of contrary evidence is permitted, and the Judge is neither "befuddled" nor "confounded" it is conceivable that the Daubert distinction should have no applicability and the Daubert hearing no place.

Both the plaintiff and the defendant seek sole custody of the infant issue, Nicolas. Although neither party has specifically sought joint custody, joint custody is inappropriate in the matter at bar. Joint custody involves the sharing by the parents of responsibility for control over the upbringing of the child, and imposes upon the parents an obligation to behave in a mature, civilized and cooperative manner in carrying out the joint custody arrangement (see e.g. Braiman v. Braiman, 44 NY2d 584, 407 NYS2d 449 [1978]; Matter of Fowler v. Rivera, 296 AD2d 409, 745 NYS2d 457 [2002]; Matter of Fedun v. Fedun, 227 AD2d 688, 641 NYS2d 759 [1996]). Joint custody should not be imposed on parents who do not communicate (see Matter of Diana W. v. Jose X, 296 AD2d 614, 745 NYS2d 580 [2002]; Matter of Heintz v. Heintz, 275 AD2d 971 [2000]); who are unwilling or unable to cooperate (see Bliss v. Ach, 56 NY2d 995, 453 NYS2d 633 [1982]; Amari v. Molloy, 293 AD2d 431, 739 NYS2d 626 [2002]); who are unwilling or unable to set aside their personal differences (see Webster v. Webster, 283 AD2d 732, 725 NYS2d 109 [2001]; Matter of Meres v. Botsch, 260 AD2d 757, 687 NYS2d 799 [1999]) and work together for the good of the children. An award of joint custody is inappropriate where the parties are so embattled and embittered as to effectively preclude joint decision making (see Matter of Fedun v. Fedun, 227 AD2d 688, supra ; Juneau v. Juneau, 206 AD2d 647, 614 NYS2d 615 [1994]). [*31]

There is nothing in this record, as discussed above, to suggest that the parties have the type of stable, amicable and mature relationship which would make joint custody a viable alternative (see Braiman v. Braiman, 44 NY2d 584, supra ; Matter of Fowler v. Rivera, 296 AD2d 409, supra ). The relationship between the parties is not only acrimonious but has on more than one occasion resulted in acts of physical violence or verbal confrontation. Some of these acts of discord between the parties, occurred in the presence of Nicolas. The testimony highlighted the fact that the parties are unable to reach mutual agreement regarding decisions affecting Nicolas. The imposition of joint custody would only serve to further demonstrate the parties inability to cooperate and formulate a united parenting effort.

For any court considering questions of child custody, the standard by which we are guided is to make every effort to determine "what is for the best interest of the child, and what will best promote its welfare and happiness" (see Eschbach v. Eschbach, 56 NY2d 167, 451 NYS2d 658 [1982] quoting DRL 70). In determining the best interests of the child, the Court must review the totality of the circumstances presented (see Friederwitzer v. Friederwitzer, 55 NY2d 89, 447 NYS2d 893 [1982]; Hom v. Hom, 249 AD2d 447, 671 NYS2d 682 [1998]). In making a best interests determination, the factors to be considered include the quality of the home environment and the parental guidance provided for the child; the ability of each parent to provide for the child's emotional and intellectual development; the financial status and ability of each parent to provide for the child; the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent (see Eschbach v. Eschbach, 56 NY2d 167, supra ; Matter of Ring v. Ring, 15 AD3d 406, 790 NYS2d 51 [2005]; Miller v. Pipia, 297 AD2d 362, 746 NYS2d 729 [2002]). In addition, the Courts may consider the length of time of the present custody arrangement (see Fanelli v. Fanelli, 215 AD2d 718, 627 NYS2d 425 [1995]; Matter of Garvin v. Garvin, 176 AD2d 318; 574 NYS2d 760 [1991] mot lv app den 79 NY2d 752, 580 NYS2d 199 [1992]); which parent is the more likely to assure meaningful contact between the child and the non-custodial parent (see Matter of Green v. Gordon, 7 AD3d 528, 776 NYS2d 73 [2004]; Matter of Dobbins v. Vartabedian, 304 AD2d 665, 758 NYS2d 153 [2003] mot lv app den 100 NY2d 506, 763 NYS2d 812 [2003]), or whether there has been an abduction or defiance of legal process (see Matter of Green v. Gordan, 7 AD3d 528, supra ; Matter of Fallon v. Fallon, 4 AD3d 426, 771 NYS2d 381 [2004]). In making its determination on the issue of custody, the Court is to evaluate the testimony, credibility, character, temperament, demeanor and sincerity of the parties and other witnesses (see Matter of Rory H. v. Mary M., 13 AD3d 373, 786 NYS2d 153 [2004]; Matter of Dobbins v. Vartabedian, 304 AD2d 665, supra ; Matter of [*32]McLaren v. Heuthe, 296 AD2d 500, 745 NYS2d 482 [2002]).

Further DRL 240[1][a] provides in pertinent part:

Where either party to an action concerning custody of or a right to visitation with a child alleges in a sworn petition or complaint or sworn answer, cross-petition, counterclaim or other sworn responsive pleading that the other party has committed an act of domestic violence against the party making the allegation or a family or household member of either party, as such family or household member is defined in article eight of the family court act, and such allegations are proven by a preponderance of the evidence, the Court must consider the effect of such domestic violence upon the best interests of the child, together with such other facts and circumstances as the Court deems relevant in making a direction pursuant to this section.

In the matter at bar, any allegations of domestic violence each against the other were contained in Family Court petitions which were either withdrawn or dismissed after fact finding where the burden of proof was not met or were contained in the Verified Complaint or Verified Counterclaims herein but for which there was no fact finding or allocution at the inquest on grounds.

Applying these legal principles to the facts of this case, and for the reasons discussed below, the Court awards sole custody to the plaintiff, Olivier A.. Based upon the testimony in this case, the fundamental cause of the plaintiff's concern for his son is not based upon any mistreatment of Nicolas by the defendant, but rather the defendant's aggressive and often times ill conceived attempts to discredit the plaintiff. The difference is that the defendant has engaged in conduct which she intended to improve her position in the litigation which has resulted in the law guardian, the neutral forensic psychologist, the Department of Social Services and the plaintiff to conclude that she is unable to be truthful. The conclusion has been that the defendant will do or say whatever it [*33]takes to discredit the plaintiff in the eyes of anyone who may have an impact on the outcome of this litigation. Her contrary nature, in this Court's opinion, has caused these individuals to react against the defendant and return her accusations and assertions with accusations and assertions of their own.

Has the defendant manipulated, hedged, threatened and lied during the pendency of this action? Yes, she has. What was her motive for doing so? Obtaining custody of her son. This Court is understanding of the dilemma. However imperfect the process, the discretion rests with the Court. The Court has painstakingly undertaken its obligation herein. Neither of these individuals is perfect, nor are they expected to be. The socioeconomic and educational backgrounds of the parties are relatively equivalent. The defendant's pursuit of an advanced degree bodes well for her continued economic success. The plaintiff's industry in pursuing his chosen career continues to pay financial dividends while affording him tremendous flexibility concerning his schedule.

The major area of concern to the Court, as it almost always is in these cases, is ultimate decision making in the areas of health, education, emotional stability and growth. The Court believes that both parties truly love their son. The animosity each has for the other is palpable. Will custody with one party rather than the other decrease the likelihood of continued animosity? The precedential case law couches this query in the analysis of 'which party is more likely to encourage a relationship with the non-custodial parent' (see Matter of Green v. Gordan, 7 AD3d 528, supra ; Matter of Dobbins v. Vartabedian, 304 AD2d 665, supra ). The behavior of the parties under pressure illustrates their capacity for tolerance, understanding and empathy. The hurtful nature of the interactions leads this Court to conclude that both parties are facile in the art of criticism of the other. Active and willing participation in conflict with one another causes difficulty in presaging which of the two might be less likely to disparage the other in the eyes of their son. However, on this point the defendant's manufacturing of allegations against the plaintiff leads this Court to conclude that the plaintiff would be more likely to encourage Nicolas' relationship with the defendant.

In considering the quality of the home environment, the Court notes that both the plaintiff's residence in Huntington and the defendant's present residence in Whitestone are appropriate dwellings for raising a child. As noted above, the Court expressed its concern that the owner's of the Whitestone apartment where the defendant, her mother, Nicolas, Joy and Ms. Vincent reside, may at some unspecified time need to regain occupancy of the apartment. This uncertainty is troubling. Additionally, the Whitestone apartment has three [*34]bedrooms and Nicolas must share a bedroom. The plaintiff, however, has rented a multi-level residence in Huntington and has a two year lease running through April 30, 2007. Nicolas will have his own bedroom. Due to her work schedule, the need to commute from Whitestone to Commack and her school schedule, the defendant spends a great deal of time away from the home. The situation is very different for the plaintiff. As discussed above, the plaintiff is self-employed, works from home and conducts 80% of his business by telephone. Also as discussed above, prior to renting the house in Huntington, the plaintiff investigated child care facilities and services; staff to child ratios; spoke with parents; investigated the school district and spoke with district administrators. The Court opines that the plaintiff has done much to ensure that he will be available to care for his son and that his son will have appropriate child care and school facilities near home.

In addition to the factors discussed above, the Court has considered the issue of separating the siblings and acknowledges that the separating of siblings is generally discouraged (see Eschbach v. Eschbach, 56 NY2d 167, supra ; Ebert v. Ebert, 38 NY2d 700, 382 NYS2d 472 [1976]). The Court also recognizes that while keeping siblings together may be an important factor, it is not a determinative factor on the issue of custody (see Johnson v. Johnson, 202 AD2d 584, 609 NYS2d 81 [1994] app. den. 83 NY2d 760, 616 NYS2d 14 [1996] citing Eschbach v. Eschbach, 56 NY2d 167, 451 NYS2d 658 [1982]). In the

matter at bar, Nicolas (age 4) and Joy (age 10) are half siblings. As noted above, the Court is without jurisdiction over Joy, the defendant's daughter from a previous relationship. Although the testimony is consistent in describing the relationship between Nicolas and Joy as a close one, the only sibling over which this Court has jurisdiction and for which the Court can determine residential custody is Nicolas. It is the best interest of Nicolas, by viewing the totality of the circumstances and all factors that the Court must consider. With this in mind, the Court is confident that this close sibling relationship will not be harmed and will remain strong by granting custody to the plaintiff and liberal visitation to the defendant. The Court has considered the role of the extended family (see Matter of Francisco v. Francisco, 298 AD2d 925, 748 NYS2d 72 [2002] mot lv app den 99 NY2d 504, 755 NYS2d 711 [2003]; Matter of Holden v. Tillotson, 277 AD2d 735, 716 NYS2d 152 [2000]). With the defendant residing with her mother in Whitestone, Queens the defendant does have the benefit of the extended family to assist with Nicolas. The Court notes, however, that the defendant's work and school schedules keeps her away from home a great deal of time making such extended family necessary. With the plaintiff's working at home and with a flexible work schedule, there is less of a need for an extended family to help in the care of Nicolas. [*35]

The Court has considered the issue of race. Where, as here, the custody dispute is between biological parents of an interracial child, race is not a dominant or controlling factor but must be weighed along with all other material factors in determining what is in the child's best interest (see Matter of Davis v. Davis, 240 AD2d 928, 658 NYS2d 548 [1997]; Farmer v. Farmer, 109 Misc2d 137, 439 NYS2d 584 [1981]). The Court is mindful of the need for Nicolas to maintain his Nigerian cultural heritage and identity. On this issue, the Court has no reason to believe that the plaintiff will attempt to deny Nicolas of such cultural heritage. Further, such cultural heritage and identity will be fostered by the liberal visitation to the defendant (see Matter of Davis v. Davis, 240 AD2d 928, supra ).

The Court has considered the issue of defiance of legal process. During the pendency of the litigation, the defendant made a defacto relocation with Nicolas to Whitestone, Queens under the ruse of home improvement and construction of the marital residence in East Islip. A ruse which included Joy being driven to school in East Islip from Queens and which permitted the defendant to rent the entire marital residence for $2,500 per month to her cousin and his family. This "relocation" with Nicolas beyond the borders of Suffolk County without the benefit of an application to the Court is an indicia of the defendant's pervasive dishonesty which is a constant thread in the litigation and critical to the Court's determination herein.

The Court has also considered the length of time of the present custody arrangement. Although the custody and visitation arrangement had been in place for nearly two years at the time of the commencement of the trial, in considering the length of time, the Court has also considered that there were substantial delays in the progress of the action occasioned by the defendant's changing attorneys three times before her fourth and present attorney. The defendant, therefore, on balance, cannot gain benefit from the length of time alone.

As discussed above, the Court found that the plaintiff was the parent more likely to encourage meaningful contact between the child and the non-custodial parent. Similarly, because the plaintiff presents as a more consistent and trustworthy individual, the Court opines that an award of custody to the plaintiff will not have a negative impact on Nicolas' relationship with his mother, particularly in light of the liberal visitation that will be provided for herein (see In re Cornell C. v. Cynthia H.,13 AD3d 133, 786 NYS2d 468 [2004]).

As noted above, in addition to evaluating the testimony, the Court evaluates credibility, character, temperament, demeanor and sincerity of the [*36]parties and other witnesses (see Matter of Rory H. v. Mary M., 13 AD3d 373, supra ; Matter of Dobbins v. Vartabedian, 304 AD2d 665, supra ; Matter of McLaren v. Heuthe, 296 AD2d 500, supra ). In this regard, as discussed above, the defendant, Christina A. presented as dishonest, manipulative and insincere. Also, as discussed above, the testimony of the defendant's mother tended to be exaggerated and untruthful as it pertained to conduct of the plaintiff. The plaintiff presented as strong willed but not inappropriate and substantially credible.

This Court has carefully reviewed and considered the opinions of the experts. This testimony was critical in reaching the conclusion that neither party was diagnosed with any mental disorder which would cause the Court to conclude that either would cause harm to Nicolas' emotional growth. Dr. Favaro's testimony was particularly cogent and should serve as a reminder to all in the profession that the highest ideal standards should be employed in each and every case where a report and recommendation concern child custody. Dr. Favaro's cautions and constructive criticism of the report and testimony of Dr. Santoro should be embraced by the psychological profession whether empirically or clinically based.

Any offense which may be taken by one group or the other should be set aside for the betterment of the profession's continued and valued contributions to this process. This participation by the psychological profession is an additional factor which the Court may consider in reaching it's ultimate conclusion. There has been criticism of forensic psychology in contested custody matters for decades. This criticism current and historic, has not caused this Court to conclude that forensic psychological opinions are to be excluded from the pre-trial or trial process.

In concluding, the Court cannot stress enough that although it has considered the recommendation of the law guardian and the neutral forensic psychologist that the plaintiff be awarded sole custody, in awarding sole custody to the plaintiff, the Court has relied most heavily on the factual testimony, demeanor and credibility of the parties. In particular, the Court has considered the pattern of behavior on the part of the defendant which evidences her animosity towards the plaintiff, her questionable judgment and her utter lack of credibility on important issues as concern Nicolas and Nicolas' well-being when in the care of his father. To the Court, the defendant's lack of truth and veracity speaks volumes. Sole custody to the plaintiff, with liberal visitation to the defendant is appropriate.

As part of the award of custody the Court wishes to provide a meaningful [*37]schedule of visitation to the defendant. Despite the Court's award of sole custody to the plaintiff, the role of the defendant as parent has not been terminated and absent a showing of exceptional circumstances the defendant will not be stripped of her right to visitation with her child (see Weiss v. Weiss, 52 NY2d 170, 436 NYS2d 862 [1981]; Bubbins v. Bubbins, 114 AD2d 346, 493 NYS2d 869 [2nd Dept.1985]).

The defendant, Christina A.'s visitation schedule with the infant issue, Nicolas, is as follows and will commence on the date of entry of the Judgment of Divorce:

1.Alternate weekends from 6:00 p.m. on Friday to 7:00 p.m. on Sunday, extending to Monday evening at 7:00 p.m. on all Mondays which are school holidays falling on the defendant's alternate weekend visitation.

2.Every Wednesday afternoon from 5:00 p.m. to 7:30 p.m.

3.The parties shall alternate the child's vacation periods from school for winter recess, spring recess and Christmas recess. Such periods shall begin with the child's dismissal from school on the last day prior to such vacation period and shall end at 7:00 p.m. on the day prior to their return to school.

4.During Even numbered years, the defendant shall have visitation with the child on the following holidays from 9:00 a.m. through 9:00 p.m.:

New Year's Day; President's Day; Memorial Day; Labor Day; Veterans Day; Christmas Eve.

Martin Luther King Day; Easter Sunday; Independence Day; Columbus Day; Thanksgiving Day; Christmas Day.

6.The parties shall divide the summer vacation period equally alternating two week periods beginning the first Friday after the end of the school calendar. The first two week period shall be the defendant's in even years. [*38]

7.The defendant shall be entitled to visitation with the child on Mother's Day from 9:00 a.m. through 7:00 p.m.

8.The plaintiff shall be entitled to visitation with the child on Father's Day from 9:00 a.m. through 7:00 p.m.

9.Each of the parties shall be entitled to visitation on their own birthday from 9:00 a.m. through 7:00 p.m. except for school days when visitation shall begin at the end of the school day.

10.Each party shall be entitled to a minimum of two hours of visitation with the children on the child's birthday as mutually consented to.

11.Each party shall be entitled to reasonable telephone access with the child when they are in the custody of the other parent.

Any holiday, birthday or vacation period visitation shall take priority over regularly scheduled weekend or weekday visitation without adjustment unless consented to by the parties.

For all visitation, pick-up and drop-off of Nicolas will be curbside by the defendant at the residence of the plaintiff.

C:Child Support:

The Court having considered the testimony and written proofs of the parties including their sworn Statements of Net Worth: plaintiff's, dated February 25, 2005 and the defendant's, dated April 1, 2005, makes the following findings and conclusions of law regarding support of the child.

The defendant is employed by Forest Laboratories Inc. as a System Engineer. The defendant obtained a Bachelors in Computer Science in July 2000 and is currently pursuing a Masters degree in Business Administration and Finance and Minor in Law. The defendant claims her annual income from salary for the year 2004 was $73,420.44. The Court has received in evidence, however, the defendant's 2004 W-2 statement indicating her compensation for the year 2004 as $95,804.59. The defendant further shows $9,600 of additional income described only as "other income" in her [*39]affidavit. The defendant's affidavit shows substantial monthly expenses of $10,961. This figure does not include her payments for legal fees. These expenses include but are not limited to: $2,000 for rent; $1,000 for household help, and $1,520 for education expenses. If the expenses and income provided in the defendant's affidavit are taken as accurate, the defendant's monthly expenses leave her with a negative differential in excess of $58,000 per year. The liabilities portion of her affidavit does not bear this out.

The plaintiff is self-employed as an Investment Representative. The defendant has "some college" and has attained a Series 7 and Series 63 license. In his affidavit, the Plaintiff claims an annual gross income of $74,926 and a net income of $53,199 after deducting FICA and New York State Tax. The plaintiff, on his 2004 Federal tax return has reported gross receipts in the sum of $108,443. After adjusting this amount for expenses, the plaintiff reported a net profit of $45,031 for the year 2004. When combined with his 2004 earnings of $25,525 from Edward Jones, the plaintiff reported a total combined income of $74,926 for the year 2004. The Court finds, however, there are disparities in these documents. For example, although the plaintiff has deducted his automotive expenses on his 2004 Schedule C, he lists these same expenses on his Statement of Net Worth as personal expenses.

The parties' Statements of Net Worth are substantially incomplete and inconsistent with the evidence and testimony proffered. The Court finds that those disparities between the parties' Net Worth Statements, tax returns and other submitted documents have not been satisfactorily explained at trial. Accordingly, the Court finds the Statements of Net Worth to be of very limited assistance in determining the appropriate income level for the parties.

In determining a party's child support obligation, a court need not rely upon the party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated earning potential (see Kay v. Kay, 37 NY2d 632, 376 NYS2d 443 [1975]; Brown v. Brown, 239 AD2d 535, 657 NYS2d 764, [2nd Dept. 1997]; Brodsky v. Brodsky, 214 AD2d 599, 624 NYS2d 960 [1995]; Liadis v. Liadis, 207 AD2d 331, 615 NYS2d 409 [1994]; Hollis v. Hollis, 188 AD2d 960, 592 NYS2d 110 [1992]). The proper amount of child support is not determined by a party's current financial condition, but by his or her earning potential (see Kay v. Kay, 37 NY2d 632, supra ; Beard v. Beard, 300 AD2d 268, 751 NYS2d 304 [2nd Dept. 2002]; Davis v. Davis, 197 AD2d 622, 602 NYS2d 672 [2nd Dept.1993]; Marcello v Marcello, 166 AD2d 558, 560 NYS2d 841 [2nd Dept.1990]; Tsoucalas v. Tsoucalas, 140 AD2d 333, 527 NYS2d 828 [2nd Dept.1988]).

Upon consideration of the evidence in the record regarding the parties' [*40]respective financial situations, their earning capacities, and their lifestyle this Court hereby imputes to the plaintiff the annual income of $100,000.00 after allowing for reasonable business expenses (see Barber v. Cahill, 240 AD2d 887, 658 NYS2d 738 [3rd Dept.1997]). Accordingly, the plaintiff's salary for child support purposes is $100,000.00. The Court hereby imputes the annual income of $100,000.00 to the defendant. The defendant's income, less F.I.C.A. "actually paid" in 2004, is $90,638.76.

Domestic Relations Law §240 (1-b)(c) provides that where the parties' combined annual income exceeds $80,000.00, the Court has discretion as to whether to apply the statutory percentage to the amount that exceeds $80,000.00 after taking into consideration the circumstances of the parties (see Cassano v. Cassano, 85 NY2d 649, 628 NYS2d 10 [1995]). Here, it is determined that neither party has demonstrated that the application of the statutory formula to the parties' combined income exceeding $80,000.00 would be unjust or inappropriate (see Frankel v. Frankel, 278 AD2d 195, 717 NYS2d 263 [2nd Dept. 2000]). Moreover, the equities of the case dictate that the statutory percentage be applied to the whole amount of the defendant's income. Accordingly, the total joint parental income is $190,638.76 for child support calculation purposes.

The plaintiff's and defendant's ratios for computation of child support are 52% and 48% respectively. The defendant's proportionate share of the basic chid support obligation is neither unjust nor inappropriate. The applicable ratio given that there is one child of the marriage is 17%. The joint parental child support obligation is, therefore, $32,408.59. The defendant's parental obligation for child support is, therefore, $15,556.12 per year or $1,296.34 per month. The plaintiff is awarded and the defendant is directed to pay the sum of $1,296.34 per month as and for child support to the plaintiff. In addition, the defendant is directed to pay all un-reimbursed medical, dental and child care expenses in the ratio of 48%; the plaintiff shall be responsible for payment of 52% of all such expenses. The child support calculations herein are made in accordance with the Child Support Standards Act.

Pursuant to Domestic Relations Law §236(B)(7)(a), a party's obligation to pay child support shall commence retroactively to the date of the first identifiable request therefor (see Zurner v. Zurner, 221 AD2d 748, 633 NYS2d 638 [3rd Dept. 1995]; Evangelista v. Evangelista, 111 AD2d 904, 491 NYS2d 30 [2nd Dept.1985]). The [*41]plaintiff did make such a request for support within his Verified Complaint, dated February 11, 2003. However, four days prior to making his request for child support, the plaintiff agreed by stipulation which was "So-Ordered " by the Hon. H. Patrick Leis, III, to visitation between himself and Nicolas and support payments to the defendant in the sum of $800.00 per month. Although the parties have intermittently modified the agreed visitation schedule, Nicolas has consistently remained in the custody and care of the defendant while the plaintiff has continued to pay support to the defendant. Under these circumstances, the plaintiff has effectively waived the right to child support from the date of commencement of the action until the date of entry of the Judgment of Divorce (see Carlson-Subik v. Subik, 257 AD2d 859, 684 NYS2d 65 [3rd Dept. 1999]).

In view of the foregoing, the defendant shall pay to "New York State Child Support Processing Center", P.O. Box 15363, Albany, New York 12212-5363 the sum of $1,296.34 per month for the support of her unemancipated child, commencing upon entry of Judgment and payable on the first of each month thereafter. Immediately upon receipt of a copy of this decision, the parties shall exchange social security numbers for the purpose of preparing and submitting a Qualified Child Support Order. Plaintiff's counsel shall file a copy of the judgment of divorce and a completed Support Collection Unit Information Worksheet with the Suffolk County Supreme Court Matrimonial Clerk's office.

Further, the parties shall independently maintain medical, dental, optical, prescription drug and hospital insurance coverage for Nicolas until he becomes emancipated (Domestic Relations Law §236 [B][8][a]). The defendant shall pay 48% and the plaintiff shall pay 52% of any medical, dental, optical, prescription drug or hospital expenses incurred by the child not covered by insurance.

Each of the parties shall maintain a policy or policies of life insurance, for a minimum coverage in the sum of $250,000 naming the unemancipated child, Nicolas, as irrevocable beneficiary.

The defendant shall be permitted the income tax deduction for the child for the taxable year 2005. The parties shall alternate such deduction thereafter. The plaintiff shall execute those documents required to permit the defendant to take the income tax deduction in 2005 and in alternate years thereafter (see Faber v. Faber, 206 AD2d 644, 614 NYS2d 771 (3rd Dept. 1994]; Zogby v. Zogby, 158 AD2d 974, 551 NYS2d 126 [4th Dept.1990]; Bennett v. Bennett, 140 AD2d 400, 528 NYS2d 103 [2nd Dept.1988]).

D. Equitable Distribution:

Relying upon the updated Statement of Net Worth submitted by each of the parties, the Court finds the following assets and/or debts are claimed by the parties. The Court is called upon to allocate and distribute those which are found to be marital.

ASSETS

Marital residence, 83 Meroke Lane, East Islip, NY, valued at approximately $560,000.00

Checking account, xxxxxx9959, Christina A., approximate value $750.00

Stock options, Forest Laboratories (not vested) valued at $37.00 per share at the time of trial

2002 Ford Windstar, Christina A., approximate value $4,000.00, owed $4,500.00

Profit sharing, Forest Laboratories, approximate value, $2,360.40

Household furnishings and miscellaneous items, defendant estimates approximate value at $3,500.00, plaintiff estimates combined purchase price of $16,200.00

Savings account, Washington Mutual, xxxxxx0972, Olivier A., approximate value $3,000.00

Checking account, Fleet, xxxxxx8945, Olivier A. approximate value $500.00

529 College Savings, Platinum Investments, Joint, approximate value $4,000.00 [*42]

Brokerage account, LPL Financial Services, approximate value $1,200.00

LIABILITIES

Credit Account, Chase, 7754, Christina A., approximate debt $13,654.20

Credit Account, Chase 8779, Christina A., approximate debt $2,932.44

Credit Account, Capital One, Joint, approximate debt $7,242.55

Credit Account, Citibank, approximate debt $3,395.89

Credit Account, Sears, approximate debt $1,200.00

Sallie Mae, Christina A., Student Loan incurred 2005, approximate debt $60,000.00

Lexus-Toyota Motor Credit, deficiency judgment approximate debt $11,239.39

Credit Account, First Union MBNA, Olivier A., approximate debt $8,000.00

Credit Account, Direct Merchant Bank, Olivier A., approximate debt $4,000.00

Credit Account, Providian, Olivier A., approximate value $3,500

Auto Lease, 2003 Honda Civic, payments owed $320.00 per month ending on or about May 2007

Notes Payable on marital residence in foreclosure

approximately $320,000 owed to Wells Fargo Mortgage

approximately $57,000 owed to Wells Fargo Home [*43]Equity

Foreclosure fees and legal expenses on marital residence, not quantified

Back Taxes owed by Olivier A. approximately $22,000.00

All property or "things of value" acquired by either or both parties during the marriage and prior to the commencement of this action, regardless of the form in which title is held shall be deemed "marital property" subject to equitable distribution by the Court (DRL §236(B)(1)(c). The parties were married on October 15, 2000 and the action for divorce was commenced by the filing of a summons with notice on December 31, 2002 (see DRL §211). Marital property, subject to equitable distribution does not include "separate property" as defined by Domestic Relations Law, Section 236(B)(l)(d)(1-4). In making a determination for the purpose of equitable distribution the Court must presume that all property, unless clearly separate, is deemed marital property. It is the burden of the titled spouse to then rebut the presumption of marital property and shift that burden to the non-titled spouse (see DeJesus v. DeJesus, 90 NY2d 643, 665 NYS2d 36 [1997]).

The defendant's checking account, number xxxxxx9959, with an approximate value of $750.00 was opened in the year 2003. The stock options and the profit sharing account, issued by the defendant's employer, Forest Laboratories, were issued to her in the years 2003 and 2004. The defendant's 2002 Ford Windstar, approximate value $4,000.00, was acquired by the defendant in the year 2003. The defendant did not acquire the Windstar with marital funds but rather borrowed the necessary money to purchase the vehicle.

Each of the foregoing assets was acquired by the defendant subsequent to the commencement of the instant action, on December 31, 2002. Further, there is no satisfactory evidence in the record to establish that these assets were acquired with marital funds. Accordingly, these assets are "separate" property, not subject to distribution by this Court and shall remain titled in the name of the defendant, Christina A. (see DRL §236[B][l][d][1-4]).

On September 17, 2004 the plaintiff's previous employer, Edward Jones, distributed $3,496.38 to the plaintiff when he closed out his company profit sharing account. This amount represents a gross distribution after deduction of 20% for federal withholding allowance. The Court finds that the sum of $1,841.75 from this account was earned after marriage and prior to commencement of the action. Therefore, said portion of [*44]the account is "marital" and the defendant shall be entitled to an equitable share of said amount after adjustment for federal withholding and penalties (see Brundage v. Brundage, 100 AD2d 887, 474 NYS2d 546 [2nd Dept.1984]). Accordingly, the defendant shall receive a credit upon sale of the marital residence in the sum of $600.00.

With regard to the plaintiff's Washington Mutual Savings account, xxxxxx0972, approximate value $3,000.00; Fleet Checking account, xxxxxx8945, approximate value $500.00; and the Brokerage account with LPL Financial Services, approximate value $1,200.00 the plaintiff has failed to provide this Court with a date of acquisition. The Court therefor finds these assets to be marital and subject to equitable distribution (see DeJesus, 90 NY2d 643, supra ). Accordingly, the defendant shall receive a credit upon sale of the marital residence in the sum of $2,350.00.

The parties jointly hold a 529 College Savings account for the benefit of Nicolas with an approximate value of $4,000.00. Said account shall be transferred to the plaintiff as trustee and maintained for the benefit of Nicolas.

On December 20, 2001, the parties purchased premises described at 83 Meroke Lane, East Islip, New York (see Plaintiff's Exhibit 2). The Court finds the marital residence to be marital property which shall be sold and the proceeds distributed in accordance with this Court's Order issued contemporaneously herewith.

The defendant seeks a distributive award of the plaintiff's enhanced earning capacity as a result of the plaintiff's obtainment of various licenses in his profession. For the purposes of defining a license, degree or other item as marital property at least three elements of proof must be established before a distributive award is made to a spouse: (1) enhancement of earning capacity attributable to a marital asset; (2) contribution to the creation of the marital asset by the other spouse; and (3) value. The Court finds in the instant matter, regarding the plaintiff's licences, that the defendant has failed to provide satisfactory proof as to any of these elements. In fact, the record is devoid of any testimony or evidence at all with regard to the obtainment or value of the plaintiff's professional licences. Accordingly, in the absence of such proof, this Court will make no distributive award with regard to the plaintiff's professional licenses (see Allocco v. Allocco, 152 Misc2d 529, 578 NYS2d 995 [Sup.Ct. 1991]).

The plaintiff alleges that when he vacated the marital residence, the defendant leased it to Charles and Tochi Malize. Whereas, the mortgage was not paid with the rents collected by the defendant, the plaintiff is seeking an award equal to one-half of all rental income the defendant collected for leasing the marital residence. The plaintiff has submitted satisfactory proof that the defendant leased the house from [*45]June 21, 2003 and collected rents up to April 2004 (see Plaintiff's Exhibit 5). The defendant collected $2,500.00 for each of the full months and a partial payment of $739.00 for the first month. The defendant, therefore, collected a minimum of $25,739.00 during this period.

Whereas, the Court has found the residence at issue to be "marital" property the income generated therefrom is marital and subject to equitable distribution by this Court (see Rose v. Rose, 305 AD2d 578, 760 NYS2d 196 [2nd Dept. 2003]). The defendant collected the rent, but failed to pay the mortgage or taxes on the residence which is now in foreclosure. Furthermore, the defendant has provided no satisfactory proof to this Court that the rental income collected was in any way reinvested in the marital residence. Accordingly, the plaintiff is awarded one half of the rental proceeds in the sum of $12,869.50 to be drawn from the defendant's share of the proceeds of the sale of the marital residence.

Each of the parties seek an award of personal property including but not limited to a bedroom set, dining room set, crib, child's bedroom set, sofa, large screen television, treadmill, VCR, and a Dell computer. Neither party has provided sufficient evidence of the value of any particular item of personalty claimed to be a marital asset. Whereas, the parties have been physically separated for an extended period and in the absence of a proven value for any claimed item the parties shall maintain title to those items currently in their possession (see Moller v. Moller, 188 AD2d 807, 591 NYS2d 244 [3rd Dept. 1992]).

Regarding marital debt, the Court has the discretion to offset the parties outstanding financial obligations which are not solely the responsibility of the spouse who incurred them against the total marital estate to be divided (DRL §236(B)(1)(c); Feldman v. Feldman, 204 AD2d 268, 611 NYS2d 879 [2nd Dept. 1994]). Designating such a debt as marital and allocating liability is not merely a matter of determining marital benefit, it is also a question of proof. It has been held that in order to apportion responsibility for a debt alleged to be marital the proponent of sharing the debt has the burden of proof as to its obtainment and the ultimate purpose and use of the fund borrowed (see Greenwald v. Greenwald, 164 AD2d 706, 565 NYS2d 494 [1st Dept. 1991]; Reiner v. Reiner, 100 AD2d 872, 474 NYS2d 538 [2nd Dept. 1984]).

The defendant seeks allocation of responsibility for, Chase Credit, account 7754, approximate debt $13,654.20; Chase Credit account 8779, approximate debt $2,932.44; Capital One, Credit Account, approximate debt $7,242.55; Citibank, Credit Account, approximate debt $3,395.89; and Sears Credit Account, approximate debt $1,200.00. [*46]

The plaintiff seeks allocation of responsibility for First Union MBNA, Credit Account, approximate debt $8,000.00; Direct Merchant Bank, Credit Account, approximate debt $4,000.00; Providian, Credit Account, approximate value $3,500; and an automobile lease, 2003 Honda Civic, payments owed $320.00 per month ending on or about May 2007.

In speaking to the issue of proof, the First Department has made the requirement quite clear:

In light of ..... the husband's failure to demonstrate the marital purpose for the loan, it was properly disregarded. A review of the record reveals a clear failure of proof on this point.

Other than the conclusory allegations of the parties regarding the use of the funds, there is no accounting for the sums spent or for their ultimate use. If the spouse or the marital partnership had somehow benefitted from the debt incurred by the other party and if that benefit had been accounted for, the Court would consider apportioning responsibility for that debt. However, with regard to the aforementioned liabilities, the parties have demonstrated neither. Accordingly, upon a failure of proof, the Court does not apportion responsibility and the parties shall remain separately liable for the repayment thereof (see Reiner, 100 AD2d 872, supra ).

The debt owed to Wells Fargo for both the mortgage and the equity loan against the marital residence was incurred during the marriage and was clearly for the benefit of the marital partnership and is therefore marital debt. The plaintiff, however, is demanding that because the defendant failed to use rental income generated from the marital residence to pay the mortgage and equity loan, any late fees and/or legal fees related to the pending foreclosure proceeding, should be the responsibility of the defendant.

The Court may in it's discretion consider a party's financial misconduct as "grounds for adjusting the distribution of the marital estate, where it falls within the category of 'wasteful dissipation of assets'" under the law. (K. v. B., 13 AD3d 12, 29, 784 NYS2d 76, 90 [1st Dept. 2004] app dsmd 4 NY2d 895 (2005] recon den 4 NY3d 878, 798 NYS2d 721 [2005]; DRL §236 (B)(5)(d)(11)). The Court has not been made aware of any prior Order of the Court or agreement between the parties which shifted the obligation of paying the mortgage to the defendant. Each of the parties, therefore, remained jointly responsible for the payment thereof. Further, by this decision, the [*47]plaintiff has been awarded one half of the rental income previously generated from the marital residence and collected by the defendant. Accordingly, the Court finds that defendant's conduct in collecting rental income, while failing to pay the mortgage does not rise to the level of wasteful dissipation of assets contemplated by the statute. Therefore, the parties shall be jointly responsible for those costs and fees associated with the pending foreclosure action in accordance with this Court's Order issued contemporaneously herewith.

The debt incurred by the defendant to Sallie Mae for the purpose of pursuing her Masters degree was borrowed subsequent to commencement of this action and likewise has not been shown to benefit the marital partnership. Accordingly, the defendant shall maintain responsibility for the repayment thereof.

Each of the parties seek an order of this Court that the debt owed to Lexus-Toyota Motor Credit as a deficiency judgment in the amount of $11,239.39 be apportioned to the other party in whole. The defendant admitted at trial that the Lexus repossession was the result of a problem concerning the automatic deduction and payment through her on-line banking arrangements and was in no way attributable to any action or inaction on the part of the plaintiff. The Court finds the defendant had taken responsibility for the use and enjoyment of as well as payments for the parties' 2000 Lexis Model RX300. The defendant failed to comply with the terms of the lease agreement for said vehicle causing repossession of the Lexus and a deficiency judgment in the amount of $11,239.39. Accordingly, said judgment shall be satisfied from the defendant's portion of the proceeds of the sale of the marital residence.

As stated in his Statement of Net Worth the "[p]laintiff currently owes $22,000 in back taxes" (Plaintiff's Exhibit 31, pg.9 [G]). The record does not support a finding of such a tax debt on the part of the plaintiff. Accordingly, the Court will not apportion this "claimed" debt and any such debt shall remain solely the responsibility of the plaintiff.

SUBMIT JUDGMENT OF DIVORCE ON NOTICE

HON. JOSEPH FARNETI

Acting Justice Supreme Court