"Disputes involving custody and visitation are acknowledged to be among the most difficult the courts are called upon to resolve, for they so deeply affect the lives of children and the parents who love them" (Daghir v. Daghir, 82 AD2d 191,193 [2d Dept. 1981]). In this case, notwithstanding that the parties agreed in 2004 that they would share joint custody of their three children, with defendant retaining residential custody of them, a dispute over custody of the children has arisen and has been presented to the Court for resolution. And although it cannot be doubted that both parties are loving parents, because of a substantial change in circumstances since their joint custody agreement, the most significant of which is defendant's effort to alienate the children from plaintiff, the Court concludes that a change of custody in favor of plaintiff is called for at this time.

Plaintiff and defendant, ages 38 and 42, respectively, were married on October 2, 1993. They have three children, A.W. (DOB: 1-6-96), L.W. (DOB: 5-17-99) and R.W. (DOB: 5-1-00).^[FN1]

The parties were divorced pursuant to a judgment of divorce [*2]dated May 27, 2004 (the JOD) which incorporated, but did not merge, their written stipulation of settlement (the Settlement Stipulation). Insofar as relevant, the JOD provided that "the parties shall have the parenting time with their children that currently exists" (Pl. Exh.7, p.2).^[FN2] Although not detailed in the Settlement Stipulation or the JOD, the parties essentially shared access time with the children.

The ink had hardly dried on the JOD when the parties' disputes, and in particular, those related to the children, revealed that joint custody was not working. Their deteriorating relationship resulted in a series of further court proceedings initiated by one or the other of them.

Thus, on May 20, 2005, defendant filed a Family Offense petition against plaintiff in White Plains Family Court (the First FO Petition). Therein, defendant asserted that:

"MY EX-SPOUSE, M. W., LIVES TWO BLOCKS AWAY FROM ME AND HARASSES ME ON A REGULAR BASIS. ON TUESDAY MAY 17, 2005 HE CALLED ME SEVEN TIMES BETWEEN THE HOURS OF 6 P.M. TO 9 P.M. I DID NOT ANSWER THE PHONE AND THE RESPONDENT LEFT VARIOUS SARCASTIC MESSAGES. THE RESPONDENT CALLS ME EVERY DAY, SOMETIMES ONCE PER DAY AND OTHER TIMES THREE TIMES PER DAY. HE OFTEN BERATES ME AND YELLS AT ME AND CALLS ME A FUCKING ASSHOLE.' THIS HARASSMENT HAS BEEN ONGOING FOR THE PAST THREE YEARS. I HAVE HAD THE IVILLAGE POLICE INVOLVED ON SEVERAL OCCASIONS. HE HAS FORCED HIS WAY INTO MY APARTMENT ON THREE OCCASIONS. HE KNOWS MY WHEREABOUTS AND LETS ME KNOW THAT HE KNOWS. THE RESPONDENT'S BEHAVIOR HAS BEEN CAUSING ME A GREAT DEAL OF DISTRESS AND EMBARRASSMENT ON MY JOB. THE RESPONDENT'S SISTER, A.W. HAS ALSO THREATENED, HARASSED AND MENACED ME. I OBTAINED A CRIMINAL ORDER OF PROTECTION AGAINST MS. W. ON OR ABOUT MAY 2004. I AM THEREFORE SEEKING AN ORDER OF PROTECTION AGAINST MY EX-SPOUSE TO STOP THE RESPONDENT FROM HARASSING, THREATENING, STALKING, MENACING, OR ASSAULTING ME, TO STAY AWAY FROM ME, MY RESIDENCE AND MY PLACE OF WORK AND TO REFRAIN FROM COMMUNICATING WITH ME EXCEPT FOR CALLS REGARDING OUR CHILDREN WHICH ARE TO BE MADE ONLY AT MY HOME." (Pl. Exh.1, p.1-2 [capitalization in original]).

Based upon those allegations, defendant maintained that plaintiff had committed acts constituting Disorderly Conduct and Harassment in the Second Degree.

Following that petition, plaintiff filed an order to show cause in Supreme Court on July 19, 2005 seeking to bring on a contempt motion against defendant for her failure to comply with [*3]an order to replace certain earrings given to their daughter as a gift (the Earring Contempt OTSC). When he signed the Earring Contempt OTSC on July 22, 2005, Justice W. Denis Donovan made the underlying motion returnable before him on August 29, 2005 and directed that personal service of the papers be made upon defendant.

After being served with those papers, defendant filed an Amended Family Offense Petition in White Plains Family Court (the Amended FO Petition). In that petition she repeated verbatim the allegations set forth in the First FO Petition, and added certain other claims. Specifically, her additional assertions were that:

"I AM AFRAID FOR MY SAFETY. PAST VIOLENCE INCLUDES CHOKING, SHOVING, NAME CALLING. HE HAS THREATENED ME AND HARASSED ME AT MY HOME AND WHILE I WAS WORKING VIA TELEPHONE. HE HAS DESTROYED AND THROWN OUT MY PRIVATE PROPERTY. MY CAR WAS KEYED ON 7/18/05 WHICH WAS ONE DAY PRIOR TO COURT. HE IS NOW RETALIATING BY SUING ME OVER A PAIR OF EARRINGS AND THREATENING TO IMPRISON ME." (Pl. Exh.3, p.2 [capitalization in original]).

Relying upon those contentions, she asserted that plaintiff had committed acts constituting Harassment in the Second Degree.

As if their situation was not bad enough, it grew acutely worse when, in August 2005, defendant uprooted the children and moved to Danbury, Connecticut, to reside with her fiancé. Just prior to doing so, on July 28, 2005, she filed a petition in White Plains Family Court for a modification of the JOD (the Modification

Petition). To the extent relevant, the Modification Petition states:

"Since the entry of said JUDGEMENT [sic] there has been a change of circumstances in that I CURRENTLY HAVE JOINT CUSTODY WITH THE CHILDREN RESIDING WITH ME. I AM MOVING TO DANBURY, CT ON 8/03/05. AS OF NOW, THERE ARE PROBLEMS WITH RESPONDENT NOT ABIDING BY THE SET VISITATION SCHEDULE. HE HAS, ON SEVERAL OCCASIONS, KEPT THE CHILDREN FROM ME BY NOT RETURNING THEM WHEN HE WAS SUPPOSED TO. HE HAS, ON OCCASIONS, KEPT THEM OUT OF SCHOOL WITHOUT MY KNOWLEDGE OR PICKED THEM UP FROM SCHOOL WITHOUT MY KNOWLEDGE OR CONSENT. RESPONDENT CURRENTLY LIVES TWO BLOCKS AWAY AND COMES AND GOES AS HE PLEASES." (Pl. Exh.31, p.1-2 [capitalization in original]).

As further set forth in the Modification Petition, it was defendant's position that the changes in circumstances alleged by her warranted a modification of the JOD to the extent of granting her sole custody of the children "with a set visitation schedule in writing" which would provide that plaintiff would have visitation every other weekend and every Thursday night" (id., p.2 [capitalization omitted]). [*4]

Upon learning that defendant had moved with the children to Connecticut, plaintiff filed the last of the applications that is before this Court. By order to show cause filed on August 22, 2005 (the Custody OTSC), plaintiff sought an order prohibiting defendant

from, inter alia, relocating the children to Connecticut and for an award of sole custody to him. When he signed the Custody OTSC on August 23, 2005, Justice Donovan made the underlying motion returnable on September 12, 2005. Then, on August 25th, Justice Donovan appointed Therese R. Malach, Esq. as Law Guardian for the parties' children. A written appointment order (the Law Guardian Order) was issued by Justice Donovan later that day which set Ms. Malach's hourly rate for her Law Guardian work at $250.00 per hour and directed that her fee be paid entirely by plaintiff, subject to reallocation at trial.

At an appearance before him on October 3, 2005, Justice Donovan ordered defendant to return to New York with the three children. In addition, upon hearing from the parties on the issue of the Law Guardian's fees, Justice Donovan directed the parties to equally share her fees and expenses.

The next day, October 4th, Justice Donovan appointed Dr. Roger M. Harris as the Neutral Forensic Expert (the Neutral). The order appointing Dr. Harris directed him to conduct a forensic evaluation as to the issues of custody, visitation, interference with parental rights and relocation.

Defendant returned with the children to New York in late October or early November 2005. From that time they have been residing in IVillage, New York, in an apartment (the Apartment) in the same building owned by plaintiff's father that they had lived in prior to their move to Connecticut (the Apartment Building).

Subsequently, this matter was assigned to this Court for trial of all of the post-judgment proceedings. At the commencement of the trial on May 2, 2006, the parties consented to a procedure whereby they would try the Family Offense petitions first, followed by the issue of custody.

The trial of this matter continued on several dates and ended on July 10, 2006. At the conclusion of the trial, a schedule was established for the parties and the Law Guardian to serve and file their post-trial submissions. That schedule was later adjusted at the request of the parties. With all of the submissions before this Court, it now considers the specific issues in dispute. The relevant facts established by the credible evidence presented during the trial shall be discussed in connection with the Court's analysis of each issue.

On January 31, 2005 the parties appeared before Special [*5]Referee James A. Montagnino to address certain disputes as to the distribution of their personal property (the January 2005 Proceeding). One of the matters discussed was the replacement of diamond earrings (the original earrings) that had been given to their daughter years earlier as a gift from a friend of plaintiff's father, but were later lost while in defendant's possession. As a result of the parties' discussions, defendant agreed to purchase a new pair of earrings (the replacement earrings) that were of the same quality as the original earrings. The parties' agreement was recorded in the transcript of the January 2005 Proceeding. Subsequently, that transcript was "so-ordered" by the Special Referee (the Earring Replacement Order), and their agreement became binding upon the parties (see Fuerst v. Fuerst, 131 AD2d 426,427 [2d Dept. 1987] ["The court's so order[ing]' the stipulation without objection, pursuant to the request of the father's attorney, dispensed with the necessity for a written order to be served with notice of entry"]).

Claiming that defendant violated the Earring Replacement Order, plaintiff filed the Earring Contempt OTSC, to bring on a motion pursuant to DRL §245 (the Contempt Motion) seeking a civil contempt adjudication against her and the imposition of punishment, including incarceration. In addition, plaintiff asked that defendant be directed to specifically perform her obligations under the Earring Replacement Order and to pay his legal fees and expenses in bringing the Contempt Motion, in an amount of at least $5,000.

As the party seeking a contempt adjudication, plaintiff was required to establish that defendant violated a clear and unequivocal court order, thereby prejudicing his rights in this litigation (Goldsmith v. Goldsmith, 261 AD2d 576,577 [2d Dept. 1999]).^[FN3] Here, that showing has not been made.

As an initial matter, plaintiff failed to establish what standards the replacement earrings were required to satisfy in order for defendant to have complied with the Earring Replacement Order. In this regard, the Court observes that while that order required that defendant replace the original earrings with [*6]earrings of "the same quality" (Pl. Mem., Exh.A, p.36)^[FN4], it did not define the meaning of that term. Indeed, under the Earring Replacement Order it was left to plaintiff to obtain information as to the size, color and quality of the original earrings from the person who made the gift to their daughter. Upon receiving that information, plaintiff was then obligated to provide the information to defendant. At trial, however, plaintiff failed to establish the actual size, color and quality of the original earrings.

Moreover, to the extent that he offered proof as to the quality of the replacement earrings purchased by defendant, that evidence was insufficient. Tellingly absent was any testimony from an expert witness or anyone else who possessed the background and experience in the field of jewelry and who could render an opinion as to whether the replacement earrings obtained by defendant were the equivalent of the original earrings. Based upon the failure to provide such competent proof, plaintiff also failed to prove that defendant violated the Earring Replacement Order, necessitating the denial of the Contempt Motion (see Matter of McCormick v. Axelrod, 59 NY2d 574,583 [1983] [In order to hold a party in civil contempt, "[i]t must appear, with reasonable certainty, that the order has been disobeyed"]).

In obvious recognition of that lack of proof, in his post-trial submission plaintiff takes the position that "[he] has merely requested that defendant replace the daughter's gifted jewelry in kind" (Pl. Mem., p.2). That request is academic, however, since she was already directed to do so by the Earring Replacement Order. Accordingly, the Contempt Motion is denied in all respects.^[FN5]

As noted, the first of the applications to be heard at the [*7]trial was defendant's request for a permanent order of protection, based upon the allegations set forth in the First FO Petition and the Amended FO Petition.^[FN6] To determine whether defendant is entitled to that relief, the Court must consider the nature of this proceeding in general, the specific allegations made by defendant and the credible evidence received at the trial.

Notwithstanding that a Family Offense proceeding is civil in nature (Matter of Eileen W. v. Mario A., 169 Misc 2d 484,489 [Fam. Ct. NY Co. 1996] ["[A] family offense proceeding before the Family Court is a civil proceeding"], a party charged with the commission of a Family Offense is entitled to certain due process protections (cf. Matter of Anderson v. Anderson, 25 AD2d 512 [1st Dept. 1966] ["While Family Court proceedings are permitted to be informal, due process considerations require that a commitment be based on a petition alleging the facts supporting the commitment"]). These include notice of the Family Offense claimed to have been committed which is sufficient to enable the party charged to defend himself (see Matter of Eileen W. v. Mario A., supra , 169 Misc 2d, at 489 [Finding that the factual assertions set forth in the petition "provide[d] respondent with adequate notice of the alleged family offense so that he may prepare a defense to the allegation"]).^[FN7] Consistent with the notice requirement, "Family Court Act §821(1) prescribes the content of a family offense petition, including allegations of an act described in terms of the offenses delineated in section 812(1)" (People v. McGraw, 138 Misc 2d 349,351 [Co. Ct. Nassau Co. 1988]).

Because the filing of the Amended FO Petition had the effect of superceding the First FO Petition, it is only the allegations [*8]in the Amended Petition that are considered by this Court (cf. Schoenborn v. Kinderhill Corp., 98 AD2d 831,832 [3d Dept. 1983] ["An amended complaint having been served, it superseded the original complaint and became the only complaint in the case"]). That effect of the filing of the Amended FO Petition is significant, since it only alleges the Family Offense of Harassment in the Second Degree, and thus, it is only that Family Offense that plaintiff was required to defend against at trial.^[FN8]

To the extent relevant, Penal Law §240.26 provides that:

"A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person:

1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same; or2. He or she follows a person in or [*9]about a public place or places; or3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose."

Thus, to prevail on her Amended Petition, defendant must prove that plaintiff committed at least one act which violates one of the subdivisions of Section 240.26. And "[her] allegations must be supported by a fair preponderance of the evidence in order to warrant the issuance of a protective order" (Matter of Machukas v.

Wagner, 246 AD2d 840,842 [3d Dept. 1998], lv. denied 91 NY2d 813 [1998]). It is against that standard that the Court must assess the proof offered at trial as to the specific acts allegedly committed by plaintiff.

Although the Amended Petition is less than a paradigm of clarity, and is lacking in specificity, a close reading of it supports the view that defendant has alleged eleven acts or series of acts which she claims to constitute Harassment in the Second Degree (collectively hereinafter "the Eleven Acts").^[FN9] For ease of discussion, the Court addresses them in the order that it deems most logical.

1. JULY 2005 INCIDENT

One of the most hotly-contested allegations is that plaintiff "forcibly" entered the Apartment in July 2005 (the July 2005 Incident).^[FN10] According to defendant, when she returned from work on the day of that incident, her babysitter, P.P., told her that plaintiff had entered the apartment without her permission and had removed a lock placed on the outside of the door to their sons' bedroom.

Defendant's testimony was disputed by plaintiff, who asserted that he was told that defendant had placed the lock on the outside of the door, and that he was concerned for the boys' safety. He further claimed that he asked Ms. P. if he could enter, and that she permitted him to do so. Plaintiff admits that after seeing that there was, in fact, a lock on the outside of [*10]the door, he removed it.

Although the Court found plaintiff's testimony to be credible on its own, any question as to which party was telling the truth was resolved by Ms. P's testimony. Ms. P., who this Court found to be wholly credible, confirmed plaintiff's version of the July 2005 Incident (see Matter of Smith v. Antonio, 239 AD2d 509 [2d Dept. 1997] ["The question of whether the appellant committed the acts alleged in the [Family Offense] petition was a disputed factual issue for the court to resolve and the determination of the Family Court, as the trier of fact regarding credibility of witnesses, is entitled to great weight"]). More significantly, Ms. P. testified that defendant asked her to provide a false account to the local police, by telling them that plaintiff had forced his way into the Apartment. Ms. P. refused to do so and, subsequently, she was fired by defendant.^[FN11]

Based upon the credible evidence, the Court finds that although plaintiff was aware that defendant did not want him in the Apartment, he entered it with Ms. P's permission and for the sole purpose of removing a lock placed on the outside of the door of their sons' bedroom, which clearly posed a safety risk to the two children if they were locked inside and an emergency occurred (cf. Matter of Cavanaugh v. Madden, 298 AD2d 390 [2d Dept. 2002] [Father was not guilty of harassment because "[he] was on the premises for a legitimate purpose: to pick up his children for visitation"]). Consequently, this allegation was not proven.

Another significant dispute involves defendant's claim that on May 18, 2005, "[plaintiff] called me seven times between the [*11]hours of 6 p.m. to 9 p.m.", and that "I did not answer the phone and [he] left various sarcastic messages" (Pl. Exh.3, p.1 [capitalization omitted]).^[FN12] In defendant's view, that series of calls was intended as a form of harassment.

At trial, the evidence established that this incident began when plaintiff called defendant at the Apartment in order to speak with the children. Defendant told him that the children could not talk with him because "there was a situation" and then hung up (Tr. 5/9/06, p.288).^[FN13] Out of concern for the children, plaintiff tried six times to reach defendant, but none of his calls were answered. When his seventh call was answered by her, in response to plaintiff's question as to what the situation was, she answered: "I didn't say situation. I said celebration, you idiot." (Tr.5/9/06, p.288-289). Defendant then hung up again.

Although defendant depicts this incident as an example of plaintiff's harassment of her, the credible evidence proved otherwise. Specifically, it was demonstrated that after hearing the word "situation", plaintiff, as a caring parent, merely attempted to find out whether the children were "okay" (ibid.). While he admitted that he left messages each time, even if they were "sarcastic", his frustration over defendant's failure to answer his phone calls was understandable, and was the direct result of defendant's practice of not taking his calls, and then placing calls to his other phone, in an intentional effort to avoid speaking with him. Under these circumstances, the placing of several calls over a 45 to 60 minute span following the initial call in which he believed he heard the word "situation" was neither harassment nor inappropriate (see Di Donna v. Di Donna, 72 Misc 2d 231,233 [Fam Ct. Ulster Co. 1972] [Petitioner failed to prove Family Offense of Harassment where the evidence established that respondent's course of conduct was "motivated by concern for his family and the welfare of his daughters and could conceivably serve several very legitimate purposes - the maintenance of a normal father-daughter relationship, a reconciliation with his family, the preservation of his marriage and the insurance of his own mental and emotional health to name a few"]; see also People v. Taylor, 2002 WL 126291, 2002 NY Slip Op. 50021(U) [App. Term 1st Dept. 2002] [Convictions of second-degree aggravated harassment were against the weight of [*12]the evidence where "[t]he purpose of defendant's first call is unclear due to the complainant's response in immediately hanging up; the second call, similarly brief in duration, appears to have been actuated by defendant's concerns over the status of the custody of their child, the discussion of which, absent abusive or threatening statements, clearly would have a legitimate purpose"]). Therefore, this claim was not proven by defendant.

Although no specific instances are cited in the Amended Petition, at trial defendant sought to establish that plaintiff stalked her. Contrary to that contention, the credible evidence supported plaintiff's position that he would see defendant in her neighborhood because they lived within two blocks from each other in IVillage, that he worked in that village, and that he had occasion to legitimately be present at the Apartment Building, which was owned by his father. Thus, this allegation was also unproven.

The Amended Petition also asserts that defendant's car "was keyed" on July 18, 2005, which was "one day prior to [a] court [appearance]" (Pl. Exh.3, p.2 [capitalization omitted]). Although in her petition she did not actually identify plaintiff as the person responsible for the damage to her car, at trial she sought a finding against him on this claim.

Despite her position that plaintiff is the person who "keyed" her car, during her testimony she conceded that she did not see who committed that act, nor did she ever determine the identity of that person. Obviously, this Family Offense was also unproven.

The fifth and sixth allegations to be addressed are claims of physical assaults against defendant by plaintiff (together hereinafter "the Physical Assault Claims"). Specifically, defendant maintains that "past violence includes choking[] [and] shoving" (ibid. [capitalization omitted]).

As an initial matter, at trial defendant did not address the reason why she failed to include these accusations in the First FO Petition, which was filed two months earlier than the Amended Petition. Moreover, she offered no proof as to these incidents. Nor was there any independent evidence of such incidents presented, such as photographs, or hospital or police records. Thus, defendant failed to sustain her burden of proof as to either of the Physical Assault Claims.

In the Amended Petition, defendant also claimed that plaintiff engaged in a course of harassing conduct by calling her daily, sometimes as often as three times per day. She further alleged that during those calls he would berate her and call her [*13]vulgar names.

At trial, she sought to support this claim, in part, through the testimony of co-workers. Their testimony, however, was not competent nor credible proof as to the identity of the individual who purportedly called her at work on those occasions. To the contrary, the only testimony that supported her position was her own, which this Court rejects as lacking in credibility. Rather, as to this claim, the Court finds plaintiff's testimony to be more believable. Because that testimony warrants the conclusion that plaintiff's calls to her were for the legitimate purpose of discussing issues related to their children, and that he did not make unnecessary or harassing telephone calls, this allegation was also not sufficiently proven by defendant.

The next accusation to be addressed is that plaintiff banged and kicked the door to the Apartment on a particular occasion. Although both parties acknowledged that there was an incident on that particular occasion when there was a dispute over plaintiff's exercising of his visitation, their sharply disparate views of that incident again require a determination of which of them the Court finds more credible. In view of this Court's determination that as between them, plaintiff was the more believable witness as to the Door Incident, it concludes that this accusation has not been sustained.

Defendant also accuses plaintiff of taking some of her personal property. Specifically, she asserts that "he has destroyed and thrown out my private property" (Pl. Exh.3, p.2 [capitalization omitted]). At trial, defendant explained this accusation as follows:

"In the basement of the apartment building where we live I had a lot of things; toys, beach chairs, suitcases with summer clothes if it were - you know, the seasonal clothes you weren't using. One day I went down there- - oh, a couple of chairs, a table, barbecue. My daughters had a big dollhouse and I went down there one day and it was all gone." (Tr. 5/9/06, p.75-76).

According to defendant, when she asked plaintiff what happened to her personal property, "[h]e told me that his father was cleaning the basement" and then "[h]e hung up on me" (id., p.76).

Assuming, arguendo, that this testimony would support an award of relief in a proceeding in which there was jurisdiction over plaintiff's father, it is plainly insufficient to support a finding in this case that plaintiff committed an act of harassment. Indeed, defendant admitted at trial that she was at work when these items were removed from the storage bin and that [*14]she never saw plaintiff near any of the missing items.^[FN14] As with her claim that plaintiff "keyed" her car, this accusation is absolutely without evidentiary foundation.

What is arguably circumstantial proof of the reason for her filing of the Amended Petition is the next allegation, which is based upon the filing of the Contempt Motion. In particular, defendant alleges that: "He is now retaliating by suing me over a pair of earrings and threatening to imprison me" (Pl. Exh.3, p.2 [capitalization omitted]).

Neither as stated, nor as supported by any proof presented at the phase of the trial addressing the Amended Petition or the Contempt Motion, are any facts which would establish any basis for a finding that plaintiff committed the Family Offense of Harassment in the Second Degree by filing the application seeking a contempt adjudication. Consequently, this allegation has not been established by defendant (cf. Matter of Brennan v. Anesi, 283 AD2d 693,694 [3d Dept. 2001] [Finding that where the petitioner claimed that respondent harassed him by making repeated false accusations, "[t]o the extent that petitioner alleges false accusations, he has not described any of the conduct required to originate a family offense proceeding"]).

Entirely without explanation as a basis for relief is that portion of the Amended Petition which addresses the conduct of plaintiff's sister. In that regard, defendant pleaded that: "[plaintiff's] sister, A. W.[,] has also threatened, harassed and menaced me. I obtained a criminal order of protection against Ms. W. on or about May 2004." (Pl. Exh.3, p.2 [capitalization omitted]).

What relevance that claim has to the matter before this Court is wholly unexplained by defendant. Even if defendant could seek relief against plaintiff's sister in a Family Offense proceeding (see FCA §812[1]), there is no assertion at bar that jurisdiction over her was obtained. Nor was any evidence offered linking plaintiff to any Family Offenses allegedly committed by his sister. For those reasons, no basis existed to seek relief upon this allegation.

Measured against the applicable preponderance of the evidence standard (Matter of Machukas v. Wagner, supra , 246 AD2d, at 842), defendant has failed to meet her burden of proof as to each of the Eleven Acts. Accordingly, the Amended Petition [*15]is dismissed.

As noted, plaintiff's request for an award of sole custody to him immediately followed defendant's relocation of the children to Connecticut, where she took up residence with her fiancé, D.U.^[FN15] At the core of the present dispute between the parties is that application for a change of custody.

"A petition to modify an existing child custody arrangement will only be granted upon a showing of sufficient change in circumstances reflecting a real need for change in order to insure the continued best interest of the child'" (Matter of Von Dwingelo v. Von Dwingelo, 279 AD2d 663,664 [3d Dept. 2001], quoting Matter of Van Hoesen v. Van Hoesen, 186 AD2d 903,903 [3d Dept. 1992]; Granata v. Granata, 289 AD2d 527,527 [2d Dept. 2001] [same]). In ruling upon an application to change an existing custody arrangement, priority is generally given to the first award of custody, whether it was the result of a court order or a stipulation (Matter of Carl J. B. v. Dorothy T., 186 AD2d 736,736 [2d Dept. 1992]). Nevertheless, "an agreement between the parties is but one factor to be weighed by the court in deciding whether a change of custody is warranted" (Eschbach v. Eschbach, 56 NY2d 167,171 [1982]). And, "where the first award is the result of a stipulation, as here, it is entitled to less weight than a disposition after a plenary trial" (Matter of Carl J. B. v. Dorothy T., supra , 186 AD2d, at 737). Consequently, whether the change sought by plaintiff at bar is warranted turns upon an analysis of the parties' relationships with the children and with each other since the JOD was entered (see Matter of Esterle v. [*16]Dellay, 281 AD2d 722,725 [3d Dept. 2001] [A determination on a request to modify a custody arrangement "must focus on the child's best interest and requires consideration of a number of factors, including the quality of the parents' respective home environments, the length of time of the custodial arrangement sought to be modified, each parent's past performance and relative fitness, and their ability to guide and provide for the child's intellectual and emotional development"] [internal citations omitted]; see also Matter of Robert T.F. v. Rosemary F., 148 AD2d 449,449 [2d Dept. 1989] [Other relevant factors are "the child's desires ... and any abduction, elopment or defiance of legal process" by a parent]).^[FN16]

It is settled law that one of the factors that will support a change of custody is a relocation of the subject children without consultation (In re Zelodius C. v. Danny L., -A.D.3d-, 2007 WL 1080088 [1st Dept. 2007] [Change of custody could be based upon proof that "during the course of the proceedings,... respondent had moved to Troy [three hours away] without advance notice, taking the child with him"]; Matter of Hanson v. Hanson, 283 AD2d 677,678 [3d Dept. 2001] ["Despite all contentions to the contrary, we find that respondent's unilateral relocation to Erie County, increasing the visitation distance between petitioner and the children by approximately 200 miles round trip, constituted a sufficient change in circumstances for Family Court to have entertained a petition seeking a modification of [] prior order [granting sole custody by agreement of the parties]"; Matter of Markey v. Bederian, 274 AD2d 816,817-818 [3d Dept. 2000] [Sufficient change of circumstances established where, inter alia, mother relocated children to new residence, refused to provide father with their address and enroll[ed] them in new school district without consulting father]). In this case, it is conceded that defendant relocated the children to Danbury, Connecticut, in August 2005. [*17]

Notwithstanding defendant's testimony to the contrary, the Court finds that she provided no notice to plaintiff of her intention to relocate with the three children until approximately two weeks before she moved, when she sent him a certified letter which informed him of her new address and the new school in which she had enrolled the children. Moreover, it is undisputed that she did not consult with plaintiff about either the relocation or the change of schools.

While defendant asserts that, "if [she] sought [permission] to relocate she would have been allowed to do so under the standards set forth in Tropea v. Tropea" (Def. Mem., p.29 [capitalization omitted, underlining in original]), that contention is wholly without relevance in this litigation because she chose not to do so.^[FN17] Instead, only days before her move, she filed the Modification Petition in Family Court, in which she requested, inter alia, judicial approval for the relocation. But then, at the commencement of the trial in this matter, she withdrew the Modification Petition, thereby removing the relocation issue as one to be ruled upon by any court. Why she would take that approach if she was so certain that her position was factually and legally supported may certainly be speculated. It appears to this Court, however, that it was a tactical decision made by defendant to prevent the possibility of an adverse decision on the relocation issue, and an effort to avoid consideration of the relocation as a factor on plaintiff's change of custody request.

That effort notwithstanding, her unilateral choice to move the children a distance that she describes as less than 45 miles from their prior and current residence is a significant factor with respect to the custody issue, for three reasons. First, it reflects her view of the significance of the joint custodial arrangement, with its implicit requirement that the parties consult with each other as to any major decision impacting the children's lives, and in particular, indicates a complete lack of concern for plaintiff's rights as the father of these children. Second, it supports plaintiff's assertion that defendant is intent on interfering with his ability to maintain a continuing and meaningful relationship with the children. Third, it demonstrates a willingness on defendant's part to place her personal interests above those of not only plaintiff, but of the [*18]three children, since there was no evidence presented at trial that the relocation was intended to benefit them either economically, educationally, socially or psychologically, but rather, the proof established that she moved solely to take up residence with her fiancé (cf. Salichs v. James, 268 AD2d 168,172 [1st Dept. 2000] [While acknowledging that "[t]here have been many cases in which it was shown that the proposed relocation would offer both the custodial parent and the child substantial benefits, such as opportunities for the parent's professional advancement, or living arrangements much more conducive to the child's well-being", the Court concluded that "[n]o such showing was made here", because "[i]t was not established that the move would be beneficial to the child economically, emotionally or educationally"] [internal citations omitted]).

Seeking to blunt the impact of her unilateral decision, defendant asserts that "[t]he change of circumstances was rendered moot when [she] decided not to relocate to Danbury, Connecticut after being ordered to return to New York within 25 miles of IVillage by Justice Donovan on October 3, 2005" (Def. Mem., p.3). That claim rings hollow, since she offered no evidence that prior to the issuance of that order, she had any plan, or had taken any action, to bring the children back to IVillage. Quite the contrary, it is obvious that the only reason that she returned to New York was that she was ordered to do so by a Justice of the Supreme Court.

Under these circumstances, the Court rejects defendant's invitation to deem the relocation issue to be moot simply because she returned to New York under the compulsion of a court order. Rather, the Court views her unilateral determination to relocate the children to a city more than 40 miles from IVillage, which would have required plaintiff to travel at least one and one-half hours round trip to have his access time with them, and was intended to advance her personal interests, as a significant factor which weighs in favor of a change in custody (see Matter of Tavernia v. Bouvia, 12 AD3d 960,961 [3d Dept. 2004] ["A change [of custody] may [] be warranted where a custodial parent places his or her lifestyle choices ahead of the child's emotional well-being"]; see also Matter of Gregio v. Rifenburg, 3 AD3d 830,831-832 [3d Dept. 2004] ["[R]espondent's move [from Ulster County] to Suffolk County appears to have been precipitated solely by her desire to fulfill her own interests without regard for those of the child. This unilateral relocation, which significantly increased the visitation distance between petitioner and the child, is a sufficient change in circumstances for Family Court to have entertained a petition seeking modification of the prior order."] [internal citation omitted]).

Another relevant consideration in a proceeding for a change [*19]of custody is an effort to impede a parent's relationship with his or her children, such as by "interference with the [other] parent's visitation rights and/or telephone access" (Matter of Markey v. Bederian, supra , 274 AD2d, at 817). Indeed, "interference with the relationship between a child and a noncustodial parent by the custodial parent has been said to be so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as custodial parent" (Matter of Chebuske v. Burnhard-Vogt, 284 AD2d 456,458 [2d Dept. 2001]).

In this case, although plaintiff offered proof only as to some isolated instances in which defendant obstructed his access time with the children that he is entitled to under the Settlement Stipulation and the JOD, he did prove a pattern of conduct on her part which interfered with his right to speak with them by telephone and his opportunities for time with them when defendant was unavailable to care for them. Specifically, it was established that defendant occasionally turned off her telephone, in violation of a Family Court order providing plaintiff with telephone access with the children. Plaintiff also proved that defendant often refused to answer the telephone when he called, notwithstanding that their daughter could identify the caller as her father from the caller-ID information appearing on the telephone in defendant's apartment. Indeed, as admitted by defendant, she would sometimes immediately call him on a separate telephone so that both telephone lines would be tied up, thereby ensuring that he was unable to reach the children. Additionally, defendant would sometimes interrupt plaintiff's telephone conversations with the children, by telling them it was time for dinner, or directing that they tell their father to pay child support, or by distracting them in some other manner, such as by tickling them as they spoke with him.

Defendant also attempted to limit plaintiff's contact with the children strictly to that provided by the Settlement Stipulation and the JOD, notwithstanding that he lived only a few blocks away from them and often saw them in the neighborhood. For example, defendant directed Ms. P. to pick the children up at their school bus stop at the end of the school day when defendant was not present to do so, even when plaintiff was available to meet the children. And even when she permitted him to meet the children at the bus stop on some of those occasions, she called Ms. P. repeatedly to question whether plaintiff had brought them home yet. Further, she arranged play dates for the children on some occasions when she was not available to be home with them, despite the fact that plaintiff was free to spend time with them. Worse yet, on two occasions when defendant was not available to be with the children and plaintiff asked to spend that time with them, defendant directed Ms. P. to lie to him by saying that the [*20]children had play dates scheduled, when in fact they did not.

Certainly, defendant has not engaged in the complete obstruction of plaintiff's right to access time with the children, which, on its own, would warrant a change in the custodial arrangement (see Matter of Parkhurst v. McFall, 1 AD3d 78,81 [3d Dept. 2003] ["[A] custodial parent's persistent interference with the noncustodial parent's visitation rights may well render the offending parent unfit"]; cf. Matter of Irwin v. Neyland, 213 AD2d 773,774 [3d Dept. 1995] [Where "the record [] establishe[d] that [the father] ha[d] enjoyed substantial and meaningful visitation, resulting in a strong parent-child relationship", the reviewing Court "conclude[d] that [the mother]'s conduct was not so egregious as to warrant a change in custody"]). Thus, if this conduct was all that was proven at trial, the relief sought by plaintiff on his motion would be inappropriate (see Matter of Ahmad v. Naviwala, 306 AD2d 588,591 [3d Dept. 2003], lv. dismissed 100 NY2d 615 [2003] ["To be sure, evidence of a parent's occasional interference with visitation cannot alone decide a custody dispute; reversal of a custody order should not be a weapon wielded as a means of punishing a recalcitrant parent"] [italics in original]). Nonetheless, when viewed in the context of defendant's overall approach to the parties' custodial arrangement, her interference with plaintiff's access with the children is an additional factor which bolster's his request for sole custody (see Markey v. Bederian, supra , 274 AD2d, at 817; see also Matter of Chebuske v. Burnhard-Vogt, supra , 284 AD2d, at 458 ["[A] change of custody is appropriate if [a] ... custodial parent deliberately frustrates, denies, or interferes with the [other parent's] visitation rights"]).^[FN18]

Under well-settled law in this State, an attempt by one parent to alienate the children from the other parent may provide [*21]a basis for a modification of a custody arrangement (see Farnella v. Farnella, 53 AD2d 1047 [4th Dept. 1976]; cf. Stern v. Stern, 304 AD2d 649,649 [2d Dept. 2003] [Affirming award of sole custody to the father because "[t]he [mother]'s conduct in alienating the children from their father is an act [] inconsistent with the best interests of the children"]). In this case, plaintiff has overwhelmingly established that defendant has engaged in alienation efforts which support his motion for sole custody.

Although addressed separately above, it is too evident to require further discussion that a unilateral decision to relocate the parties' children, and repeated instances of interference with access to their children, are forms of parental alienation. Here, unfortunately, defendant's efforts to undermine plaintiff's relationship with the children extended much farther.

First, defendant has been demeaning plaintiff to the children, and has made disparaging remarks about him to others, including occasions when the children were present, for at least the past two years, as asserted by him and corroborated by other witnesses at trial, including Ms. P. and F.R., who is one of defendant's neighbors in the Apartment Building.^[FN19] Among the words she has used to describe plaintiff, in the presence of the children, are "deadbeat", "bastard" and "asshole". On more than one occasion during a conversation with Ms. P., notwithstanding that the children were with them, while speaking of plaintiff, defendant said: "I will make his life a living hell". Obviously, comments of that type about another parent are a form of alienation which reflects adversely upon the fitness of the party making the remarks (see Matter of Taber v. Taylor, 238 AD2d 696,697 [3d Dept. 1997]).^[FN20]

Defendant also endeavored to involve law enforcement and child protection agencies in her alienation efforts. For example, [*22]in more than one instance when plaintiff called defendant to discuss a particular issue concerning the children, she responded by calling a local Police Department to complain about him. Even more troubling was her effort to have plaintiff arrested after his entry into the Apartment to remove the lock on their sons' bedroom door during the July 2005 Incident, followed by her attempt to involve Ms. P. by telling her to inform the police that plaintiff had forced his way into the Apartment. And arguably worse, in terms of its potential impact upon plaintiff's relationship with the children, was defendant's report to Child Protective Services (CPS) that plaintiff drove in an intoxicated state with the children in his car. Although defendant explained that she made the report based upon a conversation with her son during dinner one evening, it is evident that she had no proof that he had engaged in that dangerous conduct. Moreover, as conceded by defendant at trial, CPS determined that the report was "unfounded". This conduct on defendant's part most certainly constitutes alienation which bears on the change of custody issue (see Matter of Youngok Lim v. Sangbom Lyi, 299 AD2d 763,766 [3d Dept. 2002] ["Here, Family Court's finding that petitioner exaggerated claims against respondent in an attempt to have him arrested, paired with the testimony that petitioner intended to drop all criminal charges against respondent once she gained custody of their son, support the court's finding that petitioner purposely interfered with respondent's contact with the child. Petitioner's allegations that respondent had injured the child were found to be baseless and, by making such accusations, petitioner needlessly subjected the child to an investigation by child protective services, placing her own interests above those of the child.").^[FN21]

Defendant also inappropriately involved the children in her ongoing legal disputes with plaintiff. In this regard, as witnessed by Ms. P., defendant repeatedly told the children that plaintiff failed to pay child support as he was required to do, and that he could not have additional time with them because he did not make his support payments.^[FN22] Moreover, on at least one occasion defendant actually had one of the children call plaintiff to ask him for child support. [*23]

And then, of course, there were the incidents when, as she admitted, defendant posted copies of plaintiff's bank statements and checks that had been returned for "unavailable funds" in the lobby of the Apartment Building where they lived with remarks about plaintiff's failure to timely make his child support payments. Remarkably, at trial, defendant could not answer questions posed to her as to whether posting those documents was in the children's best interests.^[FN23] Her effort to excuse those actions continued with her post-trial submission, in which she offers no explanation except that "had [plaintiff] fulfilled his obligation, the posting of the check would not have been needed to resolve the issue of the check bouncing" (Def. Mem., p.11). As is obvious from her statement that, "Incidentally, [plaintiff] never bounced another check" (ibid.), it is her view that the ends justify the means. That view simply has no place where the best interests of children, and the stability of their relationships with their parents, are involved.

Nor was her involvement of the children in the ongoing legal disputes limited to the support issue. Rather, she told the children about the Contempt Motion, and as admitted by her, in their presence she actually read from legal papers and stated that plaintiff was attempting to have her jailed. She also made statements leading the children to believe that plaintiff was [*24]trying to "kick [them] out of their apartment, and tak[e] away their furniture[] [and] [defendant's] jewelry" (Tr. 5/23/06, p.48), which angered their older son against him.

Clearly, it is entirely inappropriate to involve children in their parents' disputes, and in particular, litigation involving the children (see A.C. v. D.R., 36 AD3d 465,466 [1st Dept. 2007] ["[T]rial court acted reasonably to protect the child from direct involvement in the litigation by ... enjoining the parties from initiating discussions about court proceedings and the [] access schedule with the child"]). Despite defendant's attempt to excuse her behavior by characterizing it as a series of "mistakes" or by shifting responsibility to plaintiff for failing to meet his support obligations, it cannot be credibly denied that her actions are having an adverse impact upon plaintiff's relationship with the children, and that this is a factor which supports a change of custody (see Matter of Betancourt v. Boughton, 204 AD2d 804,807 [3d Dept. 1994] ["Additionally, the record portrays with remarkable clarity petitioner's inability to refrain from involving the children in her personal conflicts with respondent and the effect this has upon the children's relationship with him"]).

Defendant's alienation efforts also included the manner in which she reacted to the bond between plaintiff and the children. Thus, for example, defendant often became angry if any of the children asked her for permission to call their father or to spend more time with him. Indeed, as witnessed by Ms. P., defendant would yell at the children "whenever they brought up his name for whatever reason" (Tr. 6/9/06, p.21-22). It is hardly surprising that their daughter would ask Ms. P. to let her call her father but not to tell her mother in advance, and that she told Ms. P. that she did not want to bring home a particular Christmas gift that she received from plaintiff "[b]ecause her mom would be sad that her dad bought her a more expensive gift than ... she got from her" (id., p.115-116). As with the other actions described above, defendant's manner of dealing with the children's desires to have access to plaintiff is a form of alienation which bears directly upon the custody issue before this Court (see Matter of Darla N. v.

Christine N., 289 AD2d 1012,1013 [4th Dept. 2001] [Mother was entitled to hearing on change of custody petition based in part upon a letter written to her by one of the parties' children in which "the child indicated that she would get in trouble for speaking [petitioner's] name'", because that letter constituted "evidence that respondents may be alienating the children from petitioner"]).

The final factor to be considered with respect to the change of circumstances since the execution of the Settlement [*25]Stipulation and the entry of the JOD is the extent to which the parties' relationship has deteriorated. As has been recognized, a continued deterioration of the relationship between parents may constitute a change in circumstances which is significant enough to warrant a modification of an existing custody arrangement (see Matter of Gaudette v. Gaudette, 262 AD2d 804,805 [3d Dept. 1999], lv. denied 94 NY2d 790 [1999] ["The record fully supports Family Court's determination that the continued deterioration of the parties' relationship is a significant change in circumstances justifying a change in custody."]). In this case, not surprisingly, the parties' relationship has all but completely broken down.

Examples of the extent to which their relationship has degenerated abound in this case, and are described above. In sum, these include: (1) their disagreements as to plaintiff's access time with the children; (2) their disputes concerning plaintiff's compliance with his support obligations and defendant's inappropriate reaction to his failure to make all payments in a timely fashion; (3) their use of derogatory language in their personal contacts and defendant's denigration of plaintiff to the children and others; (4) defendant's efforts to alienate the children from plaintiff; and (5) their commencement of numerous court proceedings seeking orders of protection and contempt relief.

Further, they have each made significant decisions as to issues related to the children, without consulting the other. While the most flagrant example of this approach is defendant's unilateral decision to relocate the children to Connecticut, plaintiff has also engaged in that conduct. For instance, without consulting defendant, he enrolled his sons in T-ball and his daughter in horseback riding, sports activities which have, on occasion, interfered with defendant's access time with the children. Similarly, he engaged the services of a tutor for their daughter without first discussing the issue with plaintiff. These unilateral actions indicate that neither of them has any respect for the other's opinions or rights under their agreed-upon joint custody arrangement.

Finally, they have either lost the ability to engage in direct and civil communications, or have abandoned the pretense that they are interested in doing so. Instead, their relationship has deteriorated to such an extent that they are now able to communicate only by electronic mail.

"When the parties' interactions are so acrimonious that they cannot communicate effectively and amicably for the sake of their [child]', joint custody is not in the best interest of the child" (Matter of Yette v. Yette, -A.D.3d-, 2007 WL 1015392, *2 [3d Dept. 2007]). Here, notwithstanding that in the past these parties may have cooperated with each other, albeit to a limited [*26]extent, in addressing their children's needs, it is evident that they can no longer do so, which compels the conclusion that it is inappropriate to continue the current joint custody arrangement (see Matter of Eck v. Eck, 33 AD3d 1082,1083-1084 [3d Dept. 2006] ["Although there is evidence that they cooperated well in the past, both parties acknowledged the breakdown in communications between them. There was also testimony that the father and the mother each engaged in unilateral decision-making concerning the child and the commencement of the instant proceedings—as well as the frequent involvement of child protective agencies at the mother's behest—further evidences the deterioration of the parties' ability to cooperate for their son's welfare."] [internal citation omitted]; see also Matter of Oldfield v. Robinson, 267 AD2d 530,531-532 [3d Dept. 1999] ["Petitioner acknowledged disagreements with respondent over discipline, extracurricular activities, medical issues and financial matters such as medical coverage and the purchase of clothing and school supplies. These matters are central to raising children and, as such, joint custody is no longer appropriate as the parties could not cooperate and communicate so as to harmoniously share in the upbringing of their children."] [internal citations omitted]). Therefore, this factor also supports plaintiff's sole custody application.^[FN24]

Having considered the specific changed circumstances that warrant a custody modification, the Court turns to the factors that must generally be weighed in determining the best interests of a child when a custody dispute requires judicial resolution (collectively hereinafter "the General Custody Factors"). As noted above, these include: "the quality of the home environment and the parental guidance the custodial parent provides 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 length of time the present custody arrangement has been in effect" (Matter of Murray v. Hall, 294 AD2d 504,504-505 [2d Dept. 2002] [internal citations [*27]omitted]), as well as "the wishes of the child"^[FN25] (Matter of Fletcher v. Young, 281 AD2d 765,767 [3d Dept. 2001]).^[FN26] Because, in this case, there is a significant overlapping of the facts relevant to these other factors, they are most logically addressed under four categories.

First, the Court must consider the existing custody arrangement and the length of time that it has been in effect. [*28]Here, the parties agreed to share joint custody of the children, and may be assumed to have done so with full knowledge of any of their personal shortcomings and any psychological or psychiatric problems which were in their pasts. This is a factor which weighs against plaintiff on his motion for sole custody, since "[p]riority, not as an absolute but as a weighty factor, should, in the absence of extraordinary circumstances, be accorded to the first custody awarded in litigation or by voluntary agreement" (Matter of Nehra v. Uhlar, 43 NY2d 242,251 [1977]).^[FN27]

It is because an agreed-upon custody arrangement has not been subject to "a weighing of all of the factors" necessary to determine whether it is "in the child's best interest", that a custody arrangement which resulted from an agreement between the parents warrants less weight than one which followed a trial (Friederwitzer v. Friederwitzer, 55 NY2d 89,95 [1982]). Thus, in this case, where the existing joint custody arrangement was the result of the parties' agreement, while it is entitled to some priority, its weight in the determination of plaintiff's motion is quite limited.

This conclusion is not undermined by the length of time that the current arrangement has been in effect. It is certainly true that "stability in a child's life is in the child's best interests" (id., at 94). In this case, however, the custody arrangement was incorporated into the JOD in May 2004, only approximately one year before the parties commenced the round of litigation which resulted in the trial of the change of custody issue before this Court. Moreover, even though it is now almost three years since the JOD was entered, the passage of that period of time will not bar a change of custody if the circumstances warrant it, which they do in this case (cf. Matter of Von Dwingelo v. Von Dwingelo, supra [Affirming change of custody despite four-year existence of prior court-ordered arrangement]).

Neither party disputes that the other is a loving and concerned parent. Nor is there any claim that one of them can provide a substantially more comfortable lifestyle than the other, in view of their fairly similar economic circumstances, as discussed more fully below with respect to the sharing of the Law Guardian's fees. Thus, neither of these factors impacts upon the [*29]outcome of plaintiff's request for sole custody (see Matter of Haran-Buckner v. Buckner, 188 AD2d 705,707 [3d Dept. 1992] [Reversing Family Court award of sole custody to mother where record established, inter alia, that both parents were "intelligent, concerned and loving parents"]; see also Fox v. Fox, supra , 177 AD2d, at 212 [Change of custody not warranted where, inter alia, "[t]here [wa]s no evidence that one parent ha[d] an appreciably greater financial ability to provide for the children than the other parent"]).

"While concerns such as the financial status and the ability of each parent to provide for the child should not be overlooked by the court, an equally valid concern is the ability of each parent to provide for the child's emotional and intellectual development" (Eschbach v. Eschbach, supra , 56 NY2d, at 172).^[FN28] And it is this specific consideration that weighs most heavily in plaintiff's favor.

As demonstrated by his courtroom testimony, and supported by the report and testimony of Dr. Harris, plaintiff is "more emotionally mature" and "more stable" than defendant, and because "he has a cooler head", he can better "weather ... a crisis" involving the children than she can (Tr. 6/22/06, p.111).^[FN29] Plaintiff is also the parent who is more able to place the children's interests above his own.

By contrast, as found by Dr. Harris, defendant suffers from "a mixed personality disorder with ... various features", including "traits of borderline personality disorder" (Tr. 6/22/06, p.250-251). Her personality disorder has interfered with her relationships with the children, including her ability to do what is in their best interests.^[FN30] One of the ways in which this [*30]has been manifested is the manner in which she categorizes the children's activities as "for Dad or for Mom" (id., p.243).

Three clear examples of this behavior were demonstrated at trial. First, defendant has made plain to their daughter that she does not support plaintiff's decision to enroll her in horseback riding. She has signaled her displeasure with statements made to their daughter, as well as by refusing to allow riding events to be scheduled on the weekends when she has access time with the children. By rejecting her daughter's love for riding, which was established by other witnesses at trial, she has undermined the positive effects of that activity, which include the child's increased self-confidence and self-esteem, and which in turn have improved her performance in her schoolwork. Moreover, taking that approach has had a direct, negative emotional effect upon their daughter, who has been placed in the position where she must "downplay to some degree, her enthusiasm for riding to protect her mother, as her father and [his] fiancée are involved in her riding" (Ct. Exh.1, p.14).

Similarly, defendant has not supported plaintiff's decision to enroll their sons in a "T-ball" league. In particular, their older son has not participated in any practices or games because they were scheduled for evenings when defendant had her access time. This has deprived him of an activity that he could be enjoying, which would also likely be beneficial to him both as relates to his emotional and physical development in general, and to his ability to deal with the stress of his parents' divorce and their continuing disputes.

The most serious of the three examples relates to their [*31]daughter's tutor. Following plaintiff's hiring of J.D. as the child's tutor, defendant ignored Ms. D.'s efforts to communicate with her and to involve her in the tutoring program. Although the tutoring has continued despite defendant's response to it, defendant's stance also places their daughter in a position where she is conflicted as to the views of her parents on an educational issue which, it cannot be denied, is a very important facet of the child's life.

In addition to the manner in which she has responded to these activities, by relocating the children to Connecticut plaintiff interrupted their participation in therapy programs that they had been attending in this State to address the impact of their parents' divorce. While they were able to resume their therapy upon their return to New York at the order of Justice Donovan, there was a delay in their being able to do so, which was the direct result of defendant's unilateral decision to uproot the children in the first instance.

Moreover, as discussed at length above, defendant has attempted to obstruct plaintiff's relationships with the children. By doing so, she has created a further stressor on each of the children, who wish to maintain a close relationship with their father, only to find that by doing so, they trigger responses of anger and hurt from their mother.

In each of these instances, defendant's approach has been engendered by her lack of emotional maturity, her inability to control her anger towards plaintiff, and her unwillingness to place the children's interests ahead of her own. This behavior most certainly supports a change from joint custody to sole custody in favor of plaintiff, since it establishes that defendant is the party who is less capable of providing for the children's intellectual and emotional development (see Matter of Hudson v. Hudson, 279 AD2d 659,660 [3d Dept. 2001] ["[A] change may be warranted where it is determined that the custodial parent places his or her own lifestyle desires ahead of the emotional well-being of the children"]; see also Matter of Yetter v. Jones, 272 AD2d 654,656 [3d Dept. 2000] [Reversing award of shared custody and awarding sole custody to father where, inter alia, "[t]he evidence demonstrate[d] that [the mother] ha[d] a recurring desire to place her interest ahead of those of her children."]).^[FN31]

Next, the Court must consider what effects will likely result from continuing the current arrangement and from modifying it in the manner sought by plaintiff. In this regard, what is of particular concern in this case are the extent to which each parent will foster a relationship between the children and the other parent and each parent's ability to permit the children to develop into independent and emotionally secure adults (see Matter of Lukaszewicz v. Lukaszewicz, 256 AD2d 1031,1032-1033 [3d Dept. 1998] [A custody determination requires consideration of the effect that an award of custody to one parent would have on the child's relationship with the other]).

As explained by Dr. Harris:

"I think as a potential problem for the children is as they attempt to move away from home that [defendant] is at risk for experiencing that as they're leaving her, personalizing it, thinking that they're leaving her and betraying her. Betrayal is too strong a word. I don't want to use that. But she'll feel kind of left out, kind of victimized in a way is the risk and feel like they're looking passed her. And, you know, its's important to facilitate the child's moving away. And I think that will be more difficult for [defendant]." (Tr. 6/22/06, p.241).

Dr. Harris compared defendant's difficulty separating herself from the children so that they could "individuate" from plaintiff's ability to do so. In Dr. Harris' view, insofar as concerns the importance of attending first to the children's needs and then to his own, it is clear that plaintiff "is the better psychological parent" (id., p.247).

It cannot be doubted that a parent's inability to separate herself psychologically from a child which adversely impacts upon the child's development is a concern so significant as to support a change of custody (see Matter of Crocker v. Crocker, 307 AD2d 402,403 [3d Dept. 2003] [Custody modification warranted where child missed all or part of 55 school days during one school year and additional days during school year in which proceeding was pending, and "the evidence support[ed] [Family Court's] [*33]determination that the absences were frequently related to respondent's psychological need to spend time with the child"]). At bar, the credible proof establishes that defendant is unable to adequately permit the three children to develop emotionally, and thereby go through the normal process of becoming independent of their parents, by participating in various academic and extra-curricular activities. If the current custody situation was unchanged, that inability would continue to hinder their growth, to their detriment. This is a significant consideration in ruling upon plaintiff's application to modify the joint custody arrangement (see Gorelik v. Gorelik, 303 AD2d 553,554 [2d Dept. 2003] ["Trial Court correctly awarded custody to father where "[t]he evidence at trial established [he] ... [wa]s the parent who would offer the child the best opportunity to separate, individuate, and grow into her own person"]).

Similarly, it was established at trial, through the evidence as to defendant's efforts at alienation described above, and the testimony of Dr. Harris and the parties' treating therapist, Dr. L.R., that defendant's unabated anger at plaintiff, coupled with her personality disorder, has caused her to take unwarranted actions against him which have interfered with his relationship with the children. Plaintiff, by contrast, "is more flexible psychologically[,] [] does not personalize disappointment", and "is more likely [to] be able to allow the children to have contact with their mother without making them feel they are taking sides, are disloyal to him or are disappointing to him" (Ct. Exh.1, p.15). And, of course, "the fostering of a relationship with the noncustodial parent is an important consideration in a custody determination" (Matter of Esterle v. Dellay, supra , 281 AD2d, at 726).

Although it is apparent that both parties maintain negative feelings about the other, plaintiff has demonstrated that he is far more capable of dealing with their conflicts in such a manner as to ensure that the children's needs and interests are given primary consideration (cf. Matter of Morgan v. Becker, 245 AD2d 889,891 [3d Dept. 1997] [Affirming change of custody to father because, evidence established, inter alia, that "[the mother] harbor[ed] deep resentment toward [the father], which affects both parties' ability to care for the children", but that "[the father] demonstrated a greater ability to handle the antagonistic nature of the parties' relationship in a positive manner for the welfare of the children"]). So too it is evident to this Court that of the two parties, it is plaintiff who has a greater "willingness ... to foster a relationship with the other parent" (see Matter of Smith v. Miller, 4 AD3d 697,698 [3d Dept. 2004]). These factors also support plaintiff's application for sole custody.

Finally, the Court turns to the views expressed by the Law Guardian and Dr. Harris. In reaching a decision on a custody issue, the opinions of a mental health professional and the Law Guardian are certainly entitled to some consideration (see Matter of Goodale v. Lebrun, 307 AD2d 397,398 [3d Dept. 2003] [Report and testimony of court-appointed psychologist "was only one of the numerous factors that [the Trial Court] was required to ... consider"]; see also K.L. v. M.L., supra , 9 Misc 3d 1128[A], at *7 ["[I]n a custody dispute, the Law Guardian's recommendations ... are entitled to some weight"]).

Dr. Harris prepared a detailed report as to his interviews of the parties, the three children and the collateral sources (Ct. Exh.1). In addition, he testified at length concerning his report, his evaluation of the custody issues and his conclusions.

As explained by Dr. Harris, plaintiff's personality disorder has caused her to suffer from "hypersensitivity to criticism, overreacting, feeling like [she's] getting a raw deal out of life, blaming other people for [her] problems[] [and] reacting with anger and hostility to minor problems" (Tr. 6/22/06, p.216). He also concluded that "[her] psychological adjustment is poor and that ... her interpersonal relationships are likely to be strained", including "[her] relationships with her three children" (id., p.240). It was also his view that defendant "could be impulsive and reactive", as exemplified, inter alia, by her decision to relocate the children without consulting plaintiff, and that such behavior, "when it comes to decision making, [is] at cross purposes with the children's interests" (id., p.144). And significantly, he concluded that her anger and the other traits related to her personality disorder would continue in the future, requiring ongoing treatment if there was any hope of changing the behavior that was negatively impacting upon the best interests of the children. Based upon all of these concerns, and his determination that plaintiff "has greater parental abilities" and "is more able to put the children's needs first" (Ct. Exh.1, p.15), Dr. Harris offered the opinion that "[t]he children's interests are better served with [plaintiff] having sole custody [of them]" (ibid.).

Obviously recognizing the potential impact of that view, defendant attacks Dr. Harris' recommendation as lacking support in the record, and for his failure to interview certain additional collateral sources and to include some information offered by sources with whom he did speak. It is her view that based upon these purported faults in Dr. Harris' evaluation of the custody issue, his opinion must be ignored by the Court.

It is certainly true that the opinion of a mental health professional is not binding upon the Court (Bayer v. Bayer, 102 AD2d 879,880 [2d Dept. 1984] ["[T]he court has the right to discount the recommendation of the psychiatrist"]), and that in [*35]rendering a decision in a custody dispute, the Court must not cede its decision-making authority to the expert (see Matter of Bates v. Bates, 290 AD2d 732,733 [3d Dept. 2002] ["Recommendations of such witnesses ... are not determinative of the ultimate issue in controversy but are factors to be considered unless unsupported by the record"]). Here, however, there is no basis for the Court to reject Dr. Harris' opinion that sole custody should be awarded to plaintiff.^[FN32] Consequently, the Court determines that the doctor's opinion is entitled to some weight in this case (cf. Rentschler v. Rentschler, 204 AD2d 60 [1st Dept. 1994] ["[W]e find that the IAS judge's determination was not warranted by the evidence, particularly since there is much support in the record for the opinion of the court-appointed psychiatrist, and the evaluation by an independent expert should not be readily set aside"] [internal citations omitted]).

The Law Guardian expresses the same view as Dr. Harris. Specifically, she maintains that "continuing joint legal custody is not in the children's best interests as the parents' ability to communicate is wholly deficient for purposes of joint decision making" (Law Guardian Mem., p.30). She further asserts "that the totality of evidence adduced at trial clearly demonstrates the father to be the more stable and level headed parent, best equipped emotionally and psychologically to meet the children's present and future needs" (id., p.30-31). Finally, insofar as relevant, she contends that the trial evidence established "a [*36]change in circumstances since entry of the parties' Judgment of Divorce with respect to a radically deteriorating relationship between the parents, interference by the mother of the father/child relationships with respect to telephone and physical access, denigration of the father to and in the presence of the children and with respect to the mother's relocation" (id., p.31). Based upon those considerations, the Law Guardian "urge[s] that the Court make an award of sole physical and legal custody [to plaintiff]" (id., p.30).

Defendant challenges the Law Guardian's recommendations on several grounds. In her view, "the [L]aw [G]uardian's opinion that [plaintiff] will encourage a relationship between the children and [her] is without merit, and [the Law Guardian's] assumption that plaintiff will allow the children to individuate (which assumes [defendant] will not) is without basis in fact, law, and the testimony in the record" (Def. Mem., p.14). Further, defendant asserts that the Law Guardian "failed to prove the family situation has worsened" (id., p.43). Defendant also argues that the Law Guardian "is advocating that she does not like [her] parenting style", that [the Law Guardian's] belief's [sic] about parenting are more similar to [plaintiff's]" and that the Law Guardian "is not advocating that [defendant] is not acting in the children's best interests" (id., p.44). Thus, she contends that the Law Guardian's recommendation of sole custody to plaintiff should not be followed by the Court.

"The children who are the subject of [custody] proceedings must []be represented by a Law Guardian who is absolutely independent of any influence from either parent'", and who is " loyal only to the child, .. exercising independent judgment'" in the child's behalf (Davis v. Davis, 269 AD2d 82,85 [4th Dept. 2000] [internal citations omitted]). In this case, Ms. Malach, acting single-mindedly in the representation of her clients, takes the position that the change of custody sought by plaintiff is in their best interests. Although, like the opinion of an expert, a Law Guardian's recommendation "is important, [but] ... not determinative" (Matter of Wright v. Dunham, 13 AD3d 1138 [4th Dept. 2004]), and "[a] court is not required to adopt the recommendation of a Law Guardian" (Salerno v. Salerno, 273 AD2d 818,819 [4th Dept. 2000]), here Ms. Malach's position is clearly supported by the evidence presented at trial, including the report and testimony of Dr. Harris. For that reason, the Court concludes that the Law Guardian's recommendation must also be given weight in deciding the custody issue (see Young v. Young, 212 AD2d 114,118 [2d Dept. 1995] [Law Guardian's recommendation "entitled to some weight" unless it is "contradicted by the record"]).

As discussed at length above, plaintiff has established that [*37]since the entry of the JOD, defendant attempted to relocate the children without consulting him, interfered with his access to the children, and in particular, his telephone contact, and engaged in acts of parental alienation. He has also proven that the parties' relationship has deteriorated to the point where they are unable to communicate with one another except by electronic mail. In addition, plaintiff has demonstrated that the General Custody Factors support the custody change sought by him. Finally, both the Court-appointed forensic expert and the children's Law Guardian recommend an award of sole custody to plaintiff.

Let the record be clear, this Court does not doubt that defendant loves her children and wishes to do what is best for them. Nevertheless, as a result of her anger towards plaintiff and the other manifestations of her personality disorder, including her unfounded involvement of CPS and police authorities, she is unable to consistently place the children's interests ahead of her own, while plaintiff, by contrast, is able to do so (cf. Matter of Kubista v. Kubista, 11 AD3d 743,745 [3d Dept. 2004] ["Although it is clear that he cares for his daughter, Family Court was justifiably troubled by the father's controlling and obsessive behavior including, but not limited to, taping conversations between the child and each parent, calling the police for the smallest infraction of the custodial order and canceling the child's therapy appointments. Particularly disturbing to the court was the father's unfounded accusation of child abuse against the mother and his failure to understand the traumatic effect it had on the child."]). Moreover, it is evident that defendant's behavior, much of which is intended to injure plaintiff by undermining his relationship with the children, will in all likelihood continue in the foreseeable future, thereby rendering the current joint custody arrangement wholly ineffective and not in the best interests of their children (see Gage v. Gage, 167 AD2d 332,333 [2d Dept. 1990] [Affirming award of custody to father after trial where "[t]he father's expert witness, a psychiatrist, ... predicted that if the mother were given sole custody, there would be a serious possibility that [the child] would continue to be involved as sort of a pawn or tool [against the father] and that she would promote or try to promote [the child] with a sense of anger or outrage with his own father', and "[t]he mother's expert witness, ... conceded that if such an award were made and the mother continued her barrage of negative comments about the father in the child's presence, the child could become extremely disturbed", and that "she might interfere with the father's visitation of the child"]).

This Court recognizes that taken alone, any of the factors discussed above may not support a change of the present custodial arrangement. But in combination, as they have been established in [*38]this case, these factors compel the conclusion that since the parties agreed to joint custody, there has been a "sufficient change in circumstances reflecting a real need for change in order to insure the continued best interest of the child[ren]" (Von Dwingelo v. Von Dwingelo, supra , 279 AD2d, at 664 [internal quotation marks and citations omitted]). Accordingly, after "weighing [all] of the[] various factors" and "evaluati[ng] [] the testimony, character and sincerity of [] the parties involved in this ... dispute" (Eschbach v. Eschbach, supra , 56 NY2d, at 173), plaintiff's motion is granted and he is awarded sole legal and physical custody of the children, effective as of May 1, 2007.^[FN33]

Having resolved the custody issue, the Court must determine [*39]an appropriate access schedule for defendant so that she may continue to have a meaningful role in the children's lives. Notwithstanding the parties' inability to jointly share custody of the children, as both Dr. Harris and the Law Guardian recognize, there should be a schedule established which provides liberal access to defendant. Considering that their current arrangement provided for almost equal sharing of time with the children, and the children appear to be doing well notwithstanding the ongoing conflict between their parents, a similar access arrangement is warranted (Matter of Kubista v. Kubista, supra , 11 AD3d, at 745 ["The record amply demonstrates that the modification, granting sole custody to the mother while still providing the father liberal shared physical access, is in the child's best interest"]).

There is, however, another factor to be considered. Specifically, as established at trial, defendant suffers from a personality disorder that adversely impacts her ability to act in the children's best interests. Moreover, it is evident that she fails to understand that she has such a problem, and what are its negative effects. Consequently, as a condition of her liberal access to the children, she must continue in therapy, as directed below, with the understanding that any dispute as to whether she is complying with that condition must be presented to a court for resolution, and is not subject to a determination by a mental health provider (see Zafran v. Zafran, 28 AD3d 753,757 [2d Dept. 2006]).

Finally, as relates to the access issue, the Court has considered both the parties' current arrangement and the Law Guardian's proposed access schedule. Having done so, the Court concludes that the liberal schedule as proposed by the Law Guardian is appropriate and is in the children's best interests (see K.L. v. M.L., supra , 9 Misc 3d 1128[A], at *8 ["While it has been said that excessively liberal visitation is inconsistent with an award of sole custody, a noncustodial parent is entitled to meaningful visitation', and the case at bar is somewhat different than an ordinary custody case"]). Therefore, defendant shall have access to the parties' children, consistent with the recommendation of the Law Guardian, as also directed below.

As noted above, at the October 3, 2005 appearance before Justice Donovan, the parties were ordered to equally share the Law Guardian's fees and expenses. Since that time, plaintiff has paid Ms. Malach $16,500 towards her billings. The final application to be considered is plaintiff's request "that defendant reimburse him for one-half of all payments he has made or will make to the Law Guardian" (Pl. Mem., p.42). In his view [*40]this relief is warranted "as the parties essentially earn the same amount of money" (ibid.), a claim he supports with references to defendant's statements to Justice Donovan and her expenditures in the post-judgment litigation.

Opposing this request, defendant attacks plaintiff's litigation strategy, while also making a wholly unwarranted and frivolous attack upon the Law Guardian. Specifically, she complains that:

"[Defendant] did not request that the within matter be removed to Supreme Court, and thus is not the moving party. [Plaintiff] removed the matter to Supreme Court and thus made this matter very expensive for both parties to litigate by bringing a frivolous contempt proceeding. ([Their daughter] should be bringing the contempt motion, not [plaintiff] because the earrings were a gift to [her].) Little evidence was adduced at trial as to [defendant's] alleged contempt. Moreover, [defendant] is not in the financial position to pay the fees of the law guardian. With due respect to Ms. Malach who must have her own opinion as to the children's residence and her own reasons therefore, [plaintiff] did not need to be represented by counsel in these proceedings. Ms. Malach sufficiently assisted [plaintiff] in these proceedings and went so far as to get [defendant's] 2001 mental health records in admissible form by obtaining a proper certification." (Def. Mem., p.35).

Based upon those statements and without any discussion of the parties' respective financial situations, defendant argues that she should not be required to pay any portion of the Law Guardian's fees and expenses. The Court does not agree with her.

It is settled law in the Judicial Department in which this Court sits that the Supreme Court has the authority to "requir[e] parties to pay law guardian fees in custody proceedings initiated in th[at] [] Court" (Matter of Plovnick v. Klinger, 10 AD3d 84,89 [2d Dept. 2004]; see Stephens v. Stephens, 249 AD2d 191 [1st Dept. 1998], lv. denied 92 NY2d 808 [1998] ["Were we to review [the arguments raised on appeal for the first time], we would find that both motion courts properly exercised their discretion in appointing a law guardian for the parties' children, and directing that the parties pay the guardian's fee"]; but cf. Redder v. Redder, 17 AD3d 10,15 [3d Dept. 2005] [Reversing that Court's earlier position "permitting a court to order a parent, without the parent's consent, to pay a Law Guardian directly in a disputed custody case"]).^[FN34] The decision as to the apportionment [*41]of the fees of a privately-paid Law Guardian rests within the discretion of the Trial Court (see Rotta v. Rotta, 233 AD2d 152,152-153 [1st Dept. 1996] [Affirming order requiring parties to equally share Law Guardian's fees upon "find[ing] that [] such award was an appropriate exercise of the court's discretion"]). In rendering a decision on the fee apportionment, the Court must consider both of the parties' respective financial situations (see C.E. v. P.E., 177 Misc 2d 272,274 [Sup. Ct. Bronx Co. 1998]), the existence of an agreement between them (Matter of Department of Social Services v. Wolfson, 228 AD2d 594,594-595 [2d Dept. 1996] [Court erred in "directi[ng] that the parents be jointly and severally liable for the fee ... where the parties had previously stipulated that the mother would be responsible for two-thirds of the fee and the father would be responsible for one-third of the fee"]) and whether the litigation approach of either party has needlessly increased the Law Guardian fees incurred in the case (see K.L. v. M.L., supra , 9 Misc 3d 1128[A], at *12 [Trial Court ordered equal sharing of Law Guardian's fees considering "plaintiff's role in causing needless additional litigation and concomitant counsel fees" and "the court's disposition of the marital assets"]).

Here, there can be no credible dispute that in view of the parties' stark differences as to the custody issue, the children needed to be represented by independent counsel, i.e., by a Law Guardian (see Matter of Plovnick v. Klinger, supra , 10 AD3d, at 88 ["[W]e have recognized that [the] appointment [of a Law Guardian in a contested custody matter] is appropriate and helpful to the court, since the law guardian may act as champion of the child's best interest, as advocate for the child's preferences, as investigator seeking the truth on controverted issues, or may serve to recommend alternatives for the court's consideration'"] [internal citation omitted]; see also C.E. v. P.E., supra , 177 Misc 2d, at 265 ["The parties' children should likewise be entitled to counsel with expertise and experience to adequately protect their rights"]). Moreover, neither party challenges the amount of the fees sought by the Law Guardian (see Colangelo v. Colangelo, 176 Misc 2d 837,839 [Sup. Ct. Oneida Co. 1998] [Law Guardian's total fee determined by multiplying [*42]reasonable number of hours for his work by the rate approved by Court, where "[t]here [were] no submissions from the parties disputing the hours, the rate or the fee sought on any factual basis"]). Consequently, no hearing is required as to the amount of fees sought by Ms. Malach, and the only determination necessary is in what proportions the parties shall bear responsibility for those fees (cf. Matter of Plovnick v. Klinger, supra , 10 AD3d, at 91 ["[I]f a parent who has been directed to pay a fee contests a law guardian's claims relative to the time expended and the reasonable value of the services provided, he or she should be afforded a hearing on this issue"]).

As an initial matter, the parties never agreed to the manner in which their obligations to pay the Law Guardian's fees would be apportioned. Thus, the Court's determination is unfettered by any prior arrangement between them (cf. Matter of Department of Social Services v. Wolfson, supra , 228 AD2d, at 594-595]).

And contrary to defendant's view, the costs incurred for Ms. Malach's services were not solely the result of plaintiff's litigation strategy, which included his application to remove the Family Court proceedings to Supreme Court and to file the Contempt Motion.^[FN35] To the contrary, she is as much responsible for the prolific post-judgment litigation that has been engaged in by the parties as he is, with her filing of two Family Offense petitions, both of which have been dismissed, as discussed above, her filing of the Modification Petition, which she withdrew, and her unilateral decision to relocate the children to Connecticut, notwithstanding that the parties shared joint custody of their children. Absent financial considerations, these facts would compel an equal apportionment of the Law Guardian's fees (see K.L. v. M.L., supra , 9 Misc 3d 1128[A], at *12).

Finally, turning to the issue of the parties' respective abilities to pay the Law Guardian's fees and expenses, plaintiff has offered undisputed proof that he earns approximately $96,000 annually. Against that income he claims to have expenses of approximately $85,000 per year. He further asserts that he has very little assets, and substantial indebtedness, most of which is for past legal services and those incurred in the post-judgment litigation. In addition, now that he shall be the primary custodial parent, his expenses for caring for the children will likely increase.

Defendant's financial situation is to some degree less [*43]favorable than plaintiff's. At trial, she testified that she is currently earning approximately $60,000 per year from her employment with VCompany, against which income she claims expenses of approximately $103,000. That level of income is consistent with the $65,000 annual salary that she admitted earning from her position with the JCompany when she appeared in Family Court on July 19, 2006, and not far from the $75,000 yearly salary that she told Justice Donovan that she earned when she appeared before him on August 25, 2005. Moreover, she denies having any assets other than a minimal amount of cash in her checking account and a 2003 Jeep that she leases.^[FN36] Nevertheless, she has been able to retain counsel in her litigation with plaintiff, including her current counsel, to whom she paid a $15,000 retainer, which is a factor that lends some support to plaintiff's position (see C.E. v. P.E., supra , 177 Misc 2d, at 275 [Rejecting parties' claims of inability to pay Law Guardian's fees, noting, inter alia, that, "[a]t bar the parties have demonstrated an ability to retain counsel for themselves of substantial experience and standing within the matrimonial bar"]).^[FN37]

Upon consideration of the facts presented by the parties, but especially the difference in their current incomes, the Court concludes that defendant should bear a substantial portion of the Law Guardian's fees and expenses, but not the equal share sought by plaintiff. Instead, the Court grants this application to the extent that plaintiff and defendant shall be obligated to pay 65% and 35%, respectively, of the fees and expenses incurred for Ms. Malach's services as Law Guardian (see Rupp-Elmasri v. Elmasri, 8 AD3d 464 [2d Dept. 2004] ["Supreme Court providently exercised its discretion in requiring the defendant husband to pay one half of the Law Guardian's fees"]; see also Plovnick v. Klinger, supra [*44], 10 AD3d, at 91 ["Family Court did not err in requiring the father to pay the full cost of [the Law Guardian]" where "the mother commenced th[e] proceeding pro se and the Family Court assigned counsel to represent her after determining that her financial circumstances were such that she was unable to retain counsel"]; cf. C.E. v. P.E., supra , 177 Misc 2d, at 275).

Within 20 days of the date of entry of this decision and order, Ms. Malach shall serve the parties with her billing for her fees and expenses incurred up to that time. In her billing, she shall reflect the total payment that has been made to that date by plaintiff. No later than 60 days from the date of Ms. Malach's billing, defendant shall pay plaintiff 35% of the total amount that he paid to Ms. Malach as set forth in her billing. In addition, within 45 days of the date of Ms. Malach's billing, the parties shall pay her the balance owed as reflected in that billing, in the 65% and 35% proportions ordered above.

In this case, a custody dispute has been presented to the Court by two people who, like all parents, are not perfect. Although each wishes to do what is best for their children, their animosity for one another has rendered their existing joint custody arrangement entirely unworkable.

Certainly, in their dealings with each other, both parties have made remarks which have been callous and insulting. And each has, to some extent, ignored the other party's right to share in making decisions as to certain aspects of their children's lives. Defendant, however, has gone much further. In her proclaimed effort to "make his life a living hell", she has engaged in a pattern of conduct designed to interfere with plaintiff's relationship with their children, going so far as to relocate them without his consent. These alienation efforts on her part do not merely injure plaintiff, but are not in the children's best interests, which is the paramount consideration in this case (Matter of Murray v. Hall, supra , 294 AD2d, at 504 ["With respect to any determination as to a change of custody, the paramount consideration must be the best interests of the child"]).

Under these circumstances, and as difficult as such a decision may be (see Daghir v. Daghir, supra , 82 AD2d, at 193), this Court must take the action appropriate to ensure that the best interests of the children are protected, by changing the parties' agreed-upon joint custody arrangement (see Bobinski v. Bobinski, 9 AD3d 441,441 [2d Dept. 2004] ["The mother's conduct, inter alia, in alienating the children from their father, interfering with their relationships, and disregarding the father's rights as a joint custodial parent, were acts so inconsistent with the best interests of the children that it cannot be said that the Supreme Court's determination [awarding [*45]custody to him] lacked a sound and substantial basis"] [internal citations omitted]). And because the Court must do " what is for the best interest of the child[ren], and what will best promote [their] welfare and happiness'" (Eschbach v. Eschbach, supra , 56 NY2d, at 171 [internal citations omitted]), it has awarded sole custody to plaintiff.

Therefore, it is

ADJUDGED AND ORDERED that plaintiff is awarded sole legal and physical custody of the parties' three children, effective May 1, 2007; and it is further

ORDERED that defendant shall have access time with the parties' three children on alternate weekends commencing Friday at 6:00 p.m. and concluding Sunday at 7:30 p.m., unless Monday is a legal holiday when the children are not attending school and defendant is not working, in which event the access time shall conclude Monday at 7:30 p.m.; and it is further

ORDERED that defendant shall have access time with the parties' three children every Tuesday and Friday according to the access schedule previously followed as to plaintiff's midweek access time with the children; and it is further

ORDERED that the schedule as to access time on weekends and on Tuesdays and Fridays shall commence on Friday, May 3, 2007, with defendant having access time with the three children during that weekend; and it is further

ORDERED that the parties shall alternate access time for the Easter Sunday holiday, with defendant having access time in even years and plaintiff having access time in odd years, commencing with the Easter Sunday 2008 holiday; and it is further

ORDERED that access time for the Easter Sunday holiday shall commence at 9:00 a.m. and conclude at 8:00 p.m.; and it is further

ORDERED that the parties shall alternate access time for the July 4th holiday, with defendant having access time in odd years and plaintiff having access time in even years, commencing with the July 4, 2007 holiday; and it is further

ORDERED that access time for the July 4th holiday shall commence at 9:00 a.m. and conclude at 8:00 p.m.; and it is further

ORDERED that the parties shall alternate access time for the Thanksgiving Day holiday, with one parent having time with the children commencing at the conclusion of the school day on the Wednesday before Thanksgiving Day, or at noon on that Wednesday if school is not in session that day and that parent is not working, and concluding at 9:00 p.m. on Thanksgiving Day; and it is further

ORDERED that the alternating access schedule for the Thanksgiving Day holiday shall commence in 2007 with plaintiff having access time as set forth above; and it is further [*46]

ORDERED that the parties shall alternate access time for the Christmas Eve and Christmas Day holidays, with one parent having time with the children commencing at the conclusion of the school day on Christmas Eve, or at noon on Christmas Eve if school is not in session that day and that parent is not working, and concluding at noon on Christmas Day, at which time the access time of the other parent shall commence, and which shall conclude at 9:00 p.m. on December 26th; and it is further

ORDERED that the alternating access scheduled for the Christmas Eve and Christmas Day holidays shall commence in 2007 with defendant having access time commencing on Christmas Eve as set forth above; and it is further

ORDERED that defendant shall have access time with the children each year on Mother's Day; and it is further

ORDERED that plaintiff shall have access time with the children each year on Father's Day; and it is further

ORDERED that unless otherwise agreed by the parties, with such agreement not to be unreasonably withheld, each party shall have two non-consecutive weeks of access time with the children during the summer recess from school; and it is further

ORDERED that for the purposes of the summer recess access time, the term "week" is defined as the period from Monday through Friday together with the usual alternate weekend access time of the parent having access for the one week period; and it is further

ORDERED that as a condition of her access time, defendant shall commence and continue with therapy specific to her personality disorder and anger management issues; and it is further

ORDERED that at least every 60 days defendant shall provide plaintiff and the Law Guardian with proof that she is complying with the access-time condition set forth above.

Dated: White Plains, New York

April 26, 2007

HON. WILLIAM J. GIACOMO, J.S.C.

cc:Joel Martin Aurnou, Esq.

McCarthy Fingar, LLP

11 Martine Avenue

12th Floor [*47]

White Plains, New York 10605

Mildred J. Michalczyk, Esq.

16 East Walnut Avenue

E. Farmingdale, New York 11735

Therese R. Malach, Esq.

470 Mamaroneck Avenue

White Plains, New York 10605