In this matrimonial action, the trial on the bifurcated issue of custody was heard before

me on January 9, 12, 17, 19, 29, February 5, March 1, 5, 7, April 16 and June 5, 2007. The parties were afforded the opportunity to submit memorandums of law, which I read and considered.

The plaintiff-wife seeks custody of the parties' two children. In support of her position she maintained that she was the primary caretaker of the children, and is in the best position to foster a relationship between them and their father. The defendant, on the other hand, maintains that he should be granted custody of the children as he purports to be their primary caretaker, and believes that his wife has engaged in a course of conduct designed to alienate him from the children.

The parties were married on February 14, 1997. There are two children born of the marriage: E. born March 1, 2000 and J. born May 23, 2003. According to the plaintiff, by 2005 the matrimonial difficulties had been "escalating." These difficulties resulted in the police being called to the marital home on two separate occasions. The plaintiff commenced the divorce action on December 9, 2005.

During the course of trial, both the plaintiff and defendant continued to reside in the marital home with the children. In January, 2006 the defendant was incarcerated as a result of a domestic violence incident. A temporary Order of Protection was issued and a criminal trial, stemming from charges of harassment in the second degree, ensued. The Long Beach City Court (Tepper, J.) ultimately dismissed the charges of harassment in the second degree, based upon an incident in which the defendant was alleged to have twisted the plaintiff's arm behind her head.

The defendant also filed a tort action against the plaintiff alleging inter alia intentional infliction of emotional abuse, false arrest and false imprisonment, and malicious prosecution. That action remains pending, although the transcript of the trial offered into evidence by the defendant clearly indicates that the plaintiff and the responding officers acted in good faith based [*2]upon the defendant's conduct.

The defendant here had filed several motions, including one to compel the court to hear the testimony of a therapist to whom he began taking E., without the knowledge or consent of the plaintiff, law guardian or forensic evaluator. The court (Falanga, J.) ruled that the testimony of the therapist would not be allowed. Upon renewal before me, I would not permit the therapist to testify, given that she was retained by the defendant to examine the child without the knowledge or consent of the child's law guardian, as well as the failure to procure a waiver of confidence by the child's law guardian. The defendant has also hired and fired two law firms and re-hired one during the course of this trial. Finally, the defendant filed an "amicus curiae brief" by the "National Parents Rights Association," simultaneously with seeking leave to file the brief; he moved to declare several sections of New York's Domestic Relations Law declared unconstitutional as it related to interim child support, and also sought to have this court recused, urging that the court could not be fair. All of the motions were denied.

During the trial this Court heard extensive testimony from the plaintiff and defendant about their marriage, their roles as caretakers, and their treatment of each other and the children. Both the plaintiff and defendant adduced several witnesses in support of their respective applications for custody. In all, the Court heard testimony of 18 witnesses. An effort to conduct an in camera interview with the child, E., failed because the child was too emotionally upset to walk into the Court's chambers.

In addition to his own testimony, the defendant called several family members and associates in support of his position. At one point in the proceeding, when the court would not permit the defendant to testify in narrative form, he fired his attorney, so that he could "have his way" and testify in narrative form. Upon the completion of his narrative testimony, he then re-hired his counsel. The plaintiff testified on her own behalf, and called two police officers, several friends and the children's long time babysitter, all of whom proffered credible, if not compelling testimony.

In a non-jury trial, evaluating the credibility of the respective witnesses and determining credibility are matters committed to the trial court's sound discretion. Ivani v. Ivani, 303 AD2d 639; Varga v. Varga, 288 AD2d 210; Ferraro v. Ferraro, 257 AD2d 596. As such, having heard all the testimony, observing the demeanor of both parties and taking into consideration the report of the forensic evaluator and law guardian, this Court finds that the plaintiff was entirely credible in her testimony, and that defendant's testimony was feigned, orchestrated and, in many instances, simply untrue. The Court also finds that the best interest of the children would be best served by granting the plaintiff full legal and physical custody.

ANALYSIS

The paramount concern in a custody dispute is to determine the best interests of the child based on a consideration of all of the relevant facts and circumstances. DRL §70; Matter of [*3]Freiderwitzer v. Freiderwitzer, 55 NY2d 89; Eschbach v. Eschbach, 56 NY2d 167; Tabernuro v. Jones, 23 AD3d 667; Mutterperl v. Reyes, 293 AD2d 542. In determining the best interests of a child in a custody proceeding, the court must look at the totality of the circumstances, and consider the quality of the home environment, 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, financial status and ability of each parent to provide for the child, relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent. Zafran v. Zafran, 306 AD2d 468. Especially compelling here, was the aching disdain and stammering contempt that the defendant held toward the plaintiff. His body language and demeanor in describing the plaintiff's parenting skills were camouflaged indicias of utter contempt towards the plaintiff. He viewed himself in terms far superior to the plaintiff in every way. Again and again, on his way to degrade the plaintiff, the defendant tripped over numerous inconsistencies, especially as they related to the care he purported to provide to the children, which care was actually provided by the babysitter. For all of his swipes at plaintiff, he only underscored the impeccable restraint and conciliation that the plaintiff maintained, while being subjected to an atmosphere of hostility, vituperation and secret audio recordings, all at the hands of the defendant.

This court has heard conflicting testimony as to which parent is the primary caretaker for the children. The plaintiff credibly testified that she stopped working after the birth of each child, and resumed working only a couple of days per week once the children were older. This is consistent with the working hours of the defendant, who was self-employed full time with his income being received as a result of court assignments through County Law §18-b. In point of fact, he maintains an apartment in Brooklyn for travel convenience in work-related activities.

The defendant testified to being involved in the care of both children after birth, and maintains that he cared for E. most of the time except when he was "on trial." He further testified that the children were "his [responsibility]" in the morning and maintained he spends about 2 and ½ hours each morning with the children. The defendant also testified that he is primarily responsible for providing extra curricular activities for the children. His explanations as to time were fabrications, and even when plausible, they were exaggerated.

The court finds the plaintiff's testimony amply demonstrates that she was, and is, the primary caretaker of the children. The defendant's testimony relating to the number of hours he actually spent with the children is particularly incredulous. The defendant testified to having a "busy" law practice in Brooklyn. Given the defendant's acknowledgment that he spent "one or two" nights a week in Brooklyn in order to get to court "on time," and his admission that several judges had admonished him for arriving to court late, it is unclear how the defendant spent quality time with the children each morning. As it related to this part of defendant's purported child care, the children's babysitter, L. D., indicated that she arrived in the morning, that Mrs. M. would go to work upon her arrival, and that Mr. M. would often be asleep with his door closed. [*4]The defendant would wake up, and went to work, or surfed, spending little time with the children.

The plaintiff has remained the primary caretaker for the children despite the fact that she works and goes to school. At trial, the plaintiff was able to name the children's teachers and physicians, while the defendant could not. The ordinary responsibilities attendant to the children were accurately reported by the plaintiff and could not be detailed by the defendant.

This finding is corroborated by the testimony of Dr. Kaplan and the law guardian's position. Both concluded that the plaintiff mother has more involvement in the day-to-day activities of the children. Dr. Kaplan noted "the mother has been the most involved in the care of the children. She has either temporarily not worked at all or worked part time while [the defendant] has worked full time....in addition to spending most of the physical time in the care of the children, she has also been the one who has taken the most initiative in most of the activities of the children, matters of their education, medical care and social lives." While Dr. Kaplan's report recommends a "joint custodial arrangement," such arrangement, in my view, is contradicted by his recognition and qualification that "Mr. M. seek a psychiatric consultation to better address his dysphoria and anger." That very anger, in my view, combined with instances of domestic violence as credibly described by the plaintiff, all auger to a finding of sole custody here. Accordingly, I reject that specific recommendation of Dr. Kaplan. The details of Mr. M.'s "condescension and obsessional questioning of Mrs. M.'s decision making in regard to the children," are counterproductive to a stated goal of co-parenting. This is more than an obstacle to joint custody, but bespeaks of the need to tailor a parental access plan that maintains components of anger management, individual therapy, and a case manager to oversee implementation. From every point of view, the mother is the parent who is more likely to ensure meaningful contact between the children and the non-custodial parent. Fanelli v. Fanelli, 215 AD2d 718; Prugh v. Prugh, 298 AD2d 569. The notion of a joint custodial arrangement is soundly rejected by the law guardian, as well as this court.

Regarding this factor, the defendant introduced no evidence that the plaintiff has provided anything less than a loving, nurturing environment in which the children are able to thrive. He vividly described plaintiff's smoking habits, and attempted to use photos of cigarette butts [that he photographed] to demonstrate his point.

To the contrary, the defendant, through his documented pattern of anger and aggression, has seriously compromised the quality of the home environment for the plaintiff and children. Based on credible testimony of the plaintiff, the responding officer and his supervising officer, the defendant has engaged in behavior which has endangered the welfare of the children.The video recording facilitated by an automated machine which the defendant admitted purchasing, [*5]provided me with the vivid depths to which the defendant would utilize for litigation purposes. Through all of this, the plaintiff remained consoling and supportive of the children, and served as the underpinning of devotion she maintained for the children.

Pursuant to DRL § 240(1), the Court is required to consider the effect of domestic violence upon the best interests of the child in determining custody or visitation. The fact of the domestic violence is not, by itself, determinative of the custody question, but the court is required to consider the domestic violence "together with such other facts and circumstances as the court deems relevant in making a direction."

Here, the plaintiff alleges three separate "domestic incidents" in which the police had to intervene. Two incidents occurred prior to the commencement of this action. The third, and most serious, occurred in January 2006, subsequent to the filing of the divorce action. The defendant allegedly physically assaulted the plaintiff in the presence of the children, causing her to injure her hand. The police were called to the home, the defendant was arrested and the plaintiff was issued a temporary order of protection.

The plaintiff supported her allegations by calling the responding officer who offered uncontroverted testimony that the police found probable cause to arrest the defendant.

Of particular concern to this court is the fact that the defendant secretly videotapes the living area of the home, and tape records many conversations with the plaintiff and children. None of these tapes were ever produced by the defendant. Such conduct undermines the sanctity of the home environment and is not conducive to creating a secure, trusting and loving environment.

Recommendations of court-appointed experts are but one factor to be considered in making any custody determination and are not determinative, but entitled to some weight. Cohen [*6]v. Merems, 2 AD3d 663; Young v. Young, 212 AD2d 114.

Dr. Kaplan testified that the children are both generally well-adjusted, as is

the plaintiff. Moreover, Dr. Kaplan did not observe evidence of marginalization or alienation from the defendant, and believed that the plaintiff "has a good ability to foster the relationship between the children and their father," which is essential to healthy development.

With respect to the defendant, Dr. Kaplan observed that the defendant is angry and resentful, was in many instances disparaging of the plaintiff, and was highly critical of the plaintiff and her family value system. Most notably, Dr. Kaplan testified that the defendant believes that he is the intellectually superior parent and negates the plaintiff's contributions. More specifically, he testified that the defendant does not portray the plaintiff as his equal in intellect and education. Arguably, if exposed to this behavior the children could encounter deficits in their ability to relate to the plaintiff and ultimately their emotional well-being.

With respect to the children's intellectual development, there was no evidence introduced at trial to support a finding that the plaintiff could not provide the children with appropriate guidance. While acknowledging that the defendant does have more advanced schooling than the plaintiff, that alone cannot lead to a conclusion that the plaintiff could not foster intellectual development. The plaintiff has in fact returned to school in order to become self-supporting prior to the conclusion of this matter, and has demonstrated her commitment to being involved in the children's schooling. The court also credits the plaintiff's assertion that E.'s insufficient reading capacity has improved due to her efforts.

When the oldest child, who was verbal, refused to partake in an in camera interview with the Court, I declined to do so. She arrived at the courthouse and the children's law guardian advised that she was crying, afraid, and too upset to proceed. In declining to conduct the in camera interview (see, Matter of Lincoln v. Lincoln, 24 NY2d 270; Catalan v. Catalan, 6 AD3d 482), it was my belief that the limited information that the child possessed was already the subject of considerable record articulation before me. Accordingly, my determination here is made without the assistance of an in camera, not due to anything other than the child's emotionally fragile state. Given the zealous representation of the law guardian and plethora of witnesses, I believe that any information imparted by the child would have been repetitive, and I have sufficient information before me to make an informed determination.

The mental and emotional well-being of a person is an essential element to being a good parent. It is a generally accepted principle that parties to a contested custody proceeding place their physical and mental conditions in issue. Where both parties are seeking custody of the infant issue of their marriage, the health of a parent is clearly a relevant, although by no means the sole, consideration. Furthermore, it is entirely appropriate for trial courts, confronted with a contested custody issue, to call upon qualified and impartial health care professionals to render reports based upon examinations of the children and parents. Rosenblitt v. Rosenblitt, 107 AD2d 292.

Dr. Kaplan testified that the plaintiff appeared well-adjusted and showed no sign of a personality disorder. However, Dr. Kaplan's testimony with respect to the mental health of the defendant is of particular concern to this court. According to Dr. Kaplan, the defendant suffers from "dysphoria," is angry and resentful, cannot show empathy for the plaintiff, and is very critical of the plaintiff and her family. Notably, the defendant was advised to seek psychiatric consultation in addition to therapy for his mood disorder and anxiety which sometimes causes him to have an explosive temper. To date, it is unclear as to whether the defendant has acted on the recommendation.

Moreover, during the trial this court has had the opportunity to observe the defendant and has also heard credible evidence which puts into question the defendant's judgment. The defendant has demonstrated an inability to make decisions about the children's educational and medical needs. During minor surgery performed on the child, the defendant took pictures of her in a recovery room. The defendant has further demonstrated a lack of respect for the plaintiff as a co-parent evidenced by the fact that he took E. to therapy without the knowledge of the plaintiff.

In appropriate circumstances, a party may obtain counseling and treatment as a component of a custody or visitation order. See, Remillard v. Luck, 2 AD3d 1179; Landau v. Landau, 214 AD2d 541; Matter of Irwin v. Schmidt, 236 AD2d 401. There is no authority to compel a parent to undergo therapy as a condition for custody or visitation. Pudalov v. Pudalov, 308 AD2d 524. See, Zafran, supra. Here, the determination of custody being awarded to the [*8]plaintiff shall include components of counseling, anger management and psychiatric evaluation. See, Landau, supra; Zafran, supra.

Effect an award of custody to one parent might have on the child's relationship with

CONCLUSION

Determining the best interest of a child requires an evaluation of the testimony, character, and sincerity of the parties. Timosa v. Chase, 21 AD3d 1115. It is well settled that a Court's determination of custody requires an assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parents. A sound and substantial basis for the determination made herein is contained in this developed record. Matter of Grossman v. Grossman, 5 AD3d 486; Matter of Plaza v. Plaza, 305 AD2d 607.

Here, based on an assessment of all the circumstances, the court finds the plaintiff to be entirely credible. In contrast, the defendant is not at all believable as to any significant factor I have considered. The overwhelming weight of evidence leads to a conclusion that the plaintiff has been the primary caretaker of the children, is capable of caring for them and addressing their emotional and intellectual needs, and is in the best position to foster visitation for the defendant. See, Kaplan v. Kaplan, 21 AD3d 993; Schimler v. Schimler, 203 AD2d 580. Joint custody in this case is wholly inappropriate because the defendant has demonstrated an inability and unwillingness to cooperate in making decisions on matters relating to the "care and welfare" of [*10]the children. See, Forzano v. Scuderi, 224 AD2d 385; Bliss v. Ach, 56 NY2d 995; Tesler v. Tesler, 228 AD2d 491.

Furthermore, the Court finds the father's conduct in: (1) perpetrating acts of violence against the plaintiff in the presence of the children, (2) surreptitiously taking E. to his own therapist and attempting to mislead the court about the amount of time he spends with the children, and (3) in inaccurately portraying plaintiff as alienating the children, evince a continuation of a campaign of denigration directed at plaintiff. So too, during trial, he sought disqualification of plaintiff's counsel, fired two attorneys, and after trial, sought recusal of this Court. The defendant's narrow perspective here, and the meanspirited tang of his views to the plaintiff, is particularly evident throughout the proceedings. The therapeutic component of this decision is a necessary structure inserted to impose some remediation to the dysfunction caused solely by the defendant.

Accordingly, the plaintiff is awarded sole legal and physical custody of the children. The defendant is clearly not suited to be the custodial parent due to his anger, temperament, his disrespect towards the plaintiff, and his inability to accept and promote the plaintiff's role as an equal and as a mother. The defendant is to have liberal visitation with the children as detailed herein. Additionally, as a component of this visitation order, the defendant is ordered to undergo therapeutic counseling and anger management classes for himself and shall have a psychiatric evaluation to be scheduled forthwith. To implement, facilitate, and monitor these components, the Court appoints Dr. Raymond Havlicek as case manager to establish and monitor compliance with same, with costs to be paid solely by defendant. See, Zafran, supra.

The defendant father shall have visitation as follows:

Every other Friday from 5:00 p.m., returning Sunday at 5:00 p.m.;

Every Tuesday from 5:00 p.m. until 8:00 p.m.;

Vacation - Alternate all school vacations on a yearly basis;

Summer Vacation -One week in the month of June

Two weeks in the month of July

Two weeks in the month of August.

He shall also have regular and scheduled phone communication each evening.

The parties may alter this schedule upon their mutual written consent. [*11]

This memorandum decision shall be settled on notice and shall be incorporated into the final judgment of divorce.

The parties are directed to appear before me on October 15, 2007 to schedule the trial on the issues of equitable distribution as well as to be heard on the issue of exclusive occupancy of the marital apartment.

This constitutes the decision of this Court.

Dated: Mineola, New York

October 3, 2007

E N T E R :

ROBERT A. ROSS

J.S.C.