Petitioner Father and Respondent Mother were married on September 20, 1996. There are three children of the marriage: V.A. (DOB 4/14/97), D.A. (DOB 9/1/00), and A.A. (DOB 11/16/01). The parties separated in 2004. Petitioner Father initiated the divorce action. Respondent Mother alleges that the marriage ended due to acts of domestic violence committed [*2]by Petitioner Father. In the divorce proceeding, Petitioner Father was represented by counsel and Respondent Mother proceeded pro se. By Order dated May 31, 2006, and in a stipulation of settlement incorporated therein, the parties agreed to joint custody of the children with physical residence to Respondent Mother (hereinafter "the Order"). Approximately four months later, on September 8, 2006, Petitioner Father filed this Modification Petition.

In his Modification Petition, Petitioner Father claims that the Order should be modified to grant him custody because Respondent Mother's home is no longer safe or appropriate for the children. Specifically, Petitioner Father claims that, on September 3, 2006, Respondent Mother beat the child A.A. leaving a bruise on the child's right hip and that a similar incident involving the child V.A. occurred nine months earlier. Petitioner Father further alleges that Respondent Mother has a violent temper and has broken appliances and punched holes in the walls of the home in the presence of the children. He claims that, Respondent engaged in similar acts toward him, including hitting him with a telephone and menacing him with a knife. Petitioner Father also claims that the children do much better in school under his charge.

This Court ordered an investigation by ACS and a Custody Investigation and Report with Recommendations from the New York City Department of Probation ("DOP"). A Forensics Evaluation and Report with Recommendations was ordered through Family Court Services and submitted by Dr. Semel. By Order dated September 19, 2006, the children were permitted to reside temporarily with Petitioner Father pending completion of these investigations and the fact-finding hearing. In response to questioning by a DOP officer, V.A. recalled an incident in which Respondent Mother's then boyfriend made her eat a chicken cutlet off the floor. This event was confirmed by a sibling. Respondent Mother was not home at the time of this incident. Petitioner's allegations against Respondent Mother with respect to hitting the children were unsubstantiated by ACS after investigation.

A fact-finding hearing was held on April 17, 2007, April 19, 2007, April 20, 2007, August 27, 2007, and September 5, 2007. Petitioner Father and Respondent Mother testified. Each party called additional fact witnesses to testify as to their respective fitness and parenting abilities. Petitioner Father called Roseanne D., Thomas L. and Mary A.. Respondent Mother called Sandra K. and Jessica C. The Court credits the testimony of these witnesses, but notes that at least one of these witnesses had little recent personal information to offer. See, e.g. Testimony of Roseann D., Tr. 4/19/06 p.6.

Petitioner Father introduced the following documents into evidence: V.A.'s school records (Petitioner's 1); D.A.'s school records (Petitioner's 2); Investigation and Report by the Department of Probation (Petitioner's 3); ACS Investigation Report dated September 19, 2006 (Petitioner's 4); and ACS Investigation Report dated November 14, 2006 (Petitioner's 5).

Respondent Mother introduced the following documents into evidence: Stipulation of Settlement (Respondent's A); Dr. Semel's Forensic Evaluation and Report (Respondent's B); Department of Probation Investigation and Report (Respondent's C); and a handwritten card [*3]prepared by the child D.A. (Respondent's D).

An in camerainterview was conducted with the subject children in the presence of all counsel, including the Law Guardian, but in the absence of the parents. Written summations were submitted by the parties. Petitioner Father and the Law Guardian urge this Court to sustain the Modification Petition. Respondent Mother argues that there has been a failure of proof necessary to grant the modification.

While this matter was pending decision, Petitioner Father filed yet another Petition against Respondent Mother alleging violations of this Court's Temporary Orders. This newest round of litigation, filed after the trial in this case had concluded, has not been considered by this Court in reaching its determination herein.

After considering the testimony of each of the witnesses, and observing each of them testify, and after careful review of the documentary evidence introduced at the fact-finding hearing, the Court makes the following findings of fact:

Petitioner Father receives disability payments due to mental illness which renders him unable to work. Specifically, he suffers from severe depression for which he takes daily prescribed medication. When he was able to work, he drank and sang karaoke. He believes the children are better off with him since he is not working and able to devote more time to them and their schooling. He testified that, because Respondent Mother works two jobs, she is not there for the children and as a result, they are often left with their babysitter, Ms. C. He does not claim that the babysitter is an inappropriate caretaker for the children. Petitioner Father further testified that the children are doing much better academically since placed with him pursuant to this Court's Temporary Order.

Petitioner Father also testified that Respondent Mother has a violent temper as evidenced by acts of domestic violence committed against him during the marriage. Respondent Mother credibly testified that any acts of force used was in self defense of violent acts committed against her by Petitioner Father. These incidents allegedly occurred during the marriage and prior to the Order.

Respondent Mother works as a certified nursing assistant and maintains two jobs in this capacity. She is a graduate of Santa Domingo College. She denied hitting any of her children as alleged by Petitioner Father. She testified that she was deeply concerned when V.A. told her that Respondent's boyfriend made her eat a chicken cutlet off the floor. Respondent credibly testified that she was not present at the time of this incident and terminated her relationship with her boyfriend soon after V.A. told her about it. She denies being a danger to her children and points out that the ACS investigation did not support Petitioner Father's allegations. She believes the [*4]agreed upon custodial arrangement should continue and seeks the immediate return of her children pursuant to the Order.

Petitioner Father lives in a three room apartment consisting of a single bedroom. He acknowledges that he cannot currently afford a larger apartment although he would like to move to a bigger place in the future. Prior to the ACS investigation, the older children V.A. and D.A. were sleeping on the couch and the youngest child A.A. was sharing a bed with him. Respondent Mother continues to occupy the former marital residence which is a private home with three bedrooms, common areas and a backyard.

Respondent Mother called Dr. Semel as a witness. The parties stipulated that Dr. Semel is an expert in the field of psychology and the analysis of custody and visitation. After interviewing both parties and contacting ACS and other collateral sources, Dr. Semel recommended that Respondent Mother resume custody. In his report, and as explained in his testimony, Dr. Semel concluded that:

" While Respondent Mother impressed as having relatively passive and dependent personality traits, one can conceive that at times she has felt overwhelmed, irritable, and impatient with the children and she might have reacted at times by losing her temper and hitting them, particularly V.A. who has been difficult to manage. However, we are not of the opinion that her punishment has been abusive or that the children are at risk of danger from their mother. The allegation which was cited in Petitioner Father's Petition, and which has been investigated by ACS, was unfounded. During this evaluation the children displayed no signs of fear or anxiety with Respondent Mother. To the contrary, they sought her attention throughout the evaluative visit and they had wanted to go to Respondent Mother's home at the end of the visit." (Respondent's B).

When deciding a petition to modify an order of custody, the Court must determine what is in the subject children's best interest. Matter of Blanc v. Larcher, 11 AD3d 458 (2nd Dept. 2004); see also Gonzalez v. Gonzalez, 17 AD3d 635 (2nd Dept. 2005) (change in custody may be ordered only where the totality of the circumstances suggests that such change would be in the children's best interest). If the parties have entered into an agreement on consent as to which parent should have custody, priority should be given to the agreement absent extraordinary circumstances. Eschbrach v. Eschbrach, 56 NY2d 167 (1982).

When seeking a modification of an established custody order, the moving party must show a sufficient change in circumstances to warrant a change in custody. Rosenberg v. Rosenberg, 261 AD2d 623 (2nd Dept. 1999). Among the factors to be considered in determining a modification include: (a) whether the alleged change implicates the fitness of one of the parties; (b) the nature and quality of the relationships between the child and the parties and (c) the existence of a prior agreement. Matter of Joseph F. v. Patricia F., 32 AD3d 938 (2nd Dept. [*5]2006).

The recommendation of court appointed experts may be considered as one factor in the Court's analysis. See Matter of Berrouet v. Greaves, 35 AD3d 460 (2nd Dept. 2006). While the children's preferences are to be considered by the Court, their preferences are not determinative. This is particularly true, where as here, the children are young and therefore, vulnerable to influence by the non custodial parent. See Granata v. Granata, 289 AD2d 527 (2nd Dept. 2001); Matter of Robert T.F. v. Rosemary F., 148 AD2d 449 (2nd Dept. 1989) (10 or 11-year-old child not mature enough to make a prudent custodial choice). An agreed upon custodial arrangement embodied in a Court Order should not be changed solely to accommodate the children's wishes. Ebert v. Ebert, 38 NY2d 700, 703 (1976).

Applying these principles to this case, this Court finds that Petitioner Father has failed to prove a substantial change in circumstances sufficient to warrant modification of the Order agreed to by Petitioner Father approximately four months prior to the filing of this Modification Petition. See Rosenberg v. Rosenberg, 261 AD2d 623 (2nd Dept. 1999). The Court notes that Petitioner was represented by legal counsel when that Stipulation and Order was entered and therefore is presumed to have been fully advised of his rights and the consequences of his decision. See Matter of Jackson v. Gangi., 277 AD2d 383, 384 (2nd Dept. 2000) (parent who was represented by counsel and signed the consent order of visitation failed to show that a hearing was required in subsequent modification petition).

Petitioner Father has further failed to prove that Respondent Mother poses a danger to these children which is the primary basis for this Petition or that the requested modification is in the children's best interest. ACS was unable to substantiate Petitioner Father's allegations that Respondent Mother hit the child with a shoe or a chalkboard, nor that she broke any appliances or punched any walls in their presence. ACS did suggest that a bruise on the child A.A. may be consistent with that child being struck with a soft slipper. While the Court does not condone the striking of any child for any reason at any time, after thorough investigation, ACS could not substantiate Petitioner's allegations of excessive corporal punishment or physical abuse. Furthermore, Dr. Semel is not of the opinion that Respondent Mother's discipline of these children has been abusive or that the children are at risk of danger from her. See Matter of P. Children, 272 AD2d 211 (1st Dept. 2000).

In addition, while the Court regrets the disturbing and demeaning occurrence involving the child V.A. and Respondent's former boyfriend, Respondent Mother took swift steps to break off that relationship after V.A. reported the incident to Respondent Mother. There is no evidence that Respondent Mother has resumed that relationship.

Last, the acts of domestic violence relied on by Petitioner Father to support his claim that Respondent Mother is violent and a danger to these children all occurred during the marriage and prior to the parties joint custody agreement incorporated into the Order. Clearly, if Petitioner believed this Respondent posed a danger to these children due to acts of domestic violence, or [*6]any other reason, he would not have agreed to an Order of Physical Residence to Mother at a time he had the benefit of legal counsel.

In addition, Respondent Mother admitted that she did hit Petitioner in the head with a telephone but credibly testified that this was an act of self defense because he was strangling her at the time. Moreover, in the course of investigating Petitioner's allegations of inadequate supervision against Respondent Mother, ACS discovered a 2004 indicated case for inadequate guardianship against Petitioner Father for threatening Respondent Mother with a knife in the presence of these same children. See Domestic Relations Law §240; Matter of Mareno v. Cruz, 24 AD3d 780 (2nd Dept. 2005) (where domestic violence is alleged, the Court must consider the effect of such violence on the best interest of the child).

Finally, although V.A. (10), D.A. (7), and A.A. (5) have expressed to this Court in camera that they would like to remain with their father, they were unable to provide any persuasive reasons to support their stated preferences. Some reasons given by these young children included that Petitioner buys them more presents for their birthday and Christmas. Indeed, as pointed out by Dr. Semel, when one of the children was told that her cat would return to Respondent Mother's home, she was quick to change her mind and express a preference to live with her mother.

There is no doubt that the relationship between these children has been strained because of this litigation. However, there appears to be a strong loving bond between these children and each of their parents which is demonstrated when the children are free to express it, such as when they are alone with either parent. For these reasons, the Court acknowledges the children's stated preferences, but determines that, after the totality of circumstances are considered, it is in their best interest to be returned to their mother as agreed to by their parents in the Order. See Granata v. Granata, 289 AD2d 527 (2nd Dept. 2001); Matter of Robert T.F. v. Rosemary F., 148 AD2d 449 (2nd Dept. 1989).

Respondent Father has failed to prove a substantial change in circumstances sufficient to justify the setting aside by this Court of the parties previously agreed to joint custodial arrangement as set forth in the Order. Accordingly, the Modification Petition is dismissed. The Court further finds that it is in the best interest of the children for physical residence to be restored to Respondent Mother in accordance with the Order. This decision is consistent with the recommendations of Dr. Semel and the DOP and is supported by ACS' findings after investigation. See Matter of Berrouet v. Greaves, 35 AD3d 460 (2nd Dept. 2006).

In light of the decision herein, all parties are to submit plans for the orderly transition of the children back to Respondent Mother's home with liberal and frequent visitation to Petitioner Father, particularly after school and other times when Respondent Mother is working. [*7]

E N T E R:

____________________________

CATHERINE M. DIDOMENICO

JUDGE, FAMILY COURT

RICHMOND COUNTY

Dated:Staten Island, New York

January 3, 2008