The matter before the Court concerns custody of two children, Child B age 8 and Child S age 12. Child B and Child S are the biological children of the divorced parties herein, father J.R.Y. and mother D.E.Y. a/k/a H. The current proceedings were commenced in or about November 2005, when the father filed petitions pursuant to Article 6 of the Family Court Act (FCA) in Albany County [*2]Family Court seeking custody or, in the alternative, to restrain the mother from relocating with the children. After the mother relocated with the children to South Carolina, Hon. Gerard Maney of the Albany County Family Court issued an order granting the father temporary custody of the children. The father went to South Carolina to obtain physical custody of the children and then immediately relocated to Nassau County, New York. The Albany Family Court matter was thereafter transferred to this Court. The mother also filed her own petitions seeking custody.

The mother was represented by Nassau County Legal Aid Society, Kira Schettino, Esq., and Connie Gonzalez, Esq. The father has been represented by The Mann Law Firm by Matthew Mann, Esq. Adrienne Flipse Hausch, Esq. was appointed attorney for the children.

The hearing on the issue of custody commenced on June 6, 2007 and ended on February 28, 2008 with multiple trial dates in between. There were also two in camera interviews with the subject children on June 5, 2007 and February 29, 2008.

At some point during 2005 the mother had a hysterectomy which she blamed for causing her to lose her job. The loss of her job, and the father's alleged failure to provide regular child support, placed her in dire financial straits which she believed could only be remedied by a relocation to South Carolina where, aside from Mr. H., her mother and sister resided. The mother informed the father on a number of occasions of her desire to relocate. The first time this occurred the father's lawyer sent the mother a letter informing her the father opposed her request to move. On the last occasion, the mother claims the father failed to respond except to say he would think about it, and when she heard nothing further she believed herself free to relocate. In December 2005, she relocated to Greenville, South Carolina and moved in, briefly, with her mother. Mr. H., a nurse, who had flown to New York to care for Ms. H. while she recovered from the hysterectomy, also came to New York to assist her in the move. On November 21, 2005, prior to her move, the father filed one of the within petitions in Albany County Family Court seeking, among other things, to restrain the mother from relocating with the children. The mother claims she was not aware of any such petition, but after being informed by the father that the Court would be involved, she claims she called the Court but was not informed of any pending court date. In actuality, the Albany court had a return date of December 23, 2005, and when the mother failed to appear, the Court granted the father an order of temporary custody. The father then misled the mother into thinking he was coming to South Carolina to visit the children, and instead showed up to the mother's sister's home, during a barbecue, [*3]with his mother, the police and some sheriffs and retrieved the children. The father then took the children and his mother to Westbury, Long Island where the four of them began living in an apartment they continue to live in today. After returning to the Albany area for a court appearance, the mother claims to have found a summons at her prior residence alongside the railing of a rarely used door. Thereafter, the father's petitions were transferred to Nassau County.

On March 29, 2006, the Hon. John L. Kase of this Court held a hearing and determined the father should continue to have temporary custody of the children while the custody case was pending.

This Court ordered a forensic evaluation, which was completed in two parts by separate therapists as a result of scheduling and traveling difficulties of Mr. H. and Ms. H. The Court also directed the Nassau County Probation Department to perform an Investigation and Report (I & R) which was completed on April 12, 2007.

The parties and lawyers cooperated with one another during the trial to the extent that many witnesses were taken out of turn to accommodate the schedules of the forensic evaluators, school personnel and probation officer. As a result, the testimony of the parties and some other witnesses were frequently interrupted. Accordingly, the summary of the testimony in this decision will not necessarily follow chronologically with the way the witnesses were called in the case.

On December 23, 2005, Judge Maney, of the Albany County Family Court granted Mr. Y. custody of the children. He was present in Court with his attorney and the Albany County appointed law guardian. Ms. H. was not there. He then drove down to South Carolina with his mother and, while accompanied by members of the Sheriff's Department, went to Ms. H.'s sister's home to obtain [*4]physical custody of the children. After doing so, he, the children and his mother drove to Long Island. Soon after arriving in Long Island, they found an apartment for the four of them to live in, and continued to live in that apartment up until the date of his testimony. A number of pictures were then entered into evidence showing the apartment. Mr. Y. testified he chose an apartment in a neighborhood which would allow the children to go to school in the same school district they had been in prior to the move to Albany. He felt this would offer Child S certain degree of comfort and familiarity with her school and surroundings. Since living on Long Island, Mr. Y. has "primarily" taken care of the children, with the assistance of his mother who provides child care and money, at times. Child S will be attending the same school, the R. Avenue School, and will receive, essentially, the same services. She excels in art and writing and has trouble with math. Child S takes medication for ADHD and needs assistance with social skills, math, vocabulary and speech. She takes Adderall and Fluxotine daily. Mr. Y. is in regular contact with the school regarding Child S During the week, Mr. Y. picks up the children from daycare around 6:00 p.m. and while he cooks dinner the children have time to relax from their day. His mother comes home between 6:30 and 7:00 p.m. and the four of them have dinner together. After dinner, the children do homework. On the weekends the family goes to parks or museums to reinforce Child S's interest in art. S has some friends in the neighborhood she sees regularly. She also has an interest in music, so Mr. Y. got her a guitar. Child S takes part in the school chorus and symphony, where she first played cello and then switched to the flute. Mr. Y. described Child S as a happy child with a lot of energy and who is very creative. She likes to read and watch television, though he limits the television watching. She also uses the computer in the home and her computer use is closely monitored.

Child B attends C .Lane School. At the end of the school year he was switched to the resource room where he will begin the year in September with the same teacher. By resource room, Mr. Y. was referring to a self-contained class of 12:1:1. The self-contained classroom would have a maximum of twelve students, one teacher and one teacher's aide, and was repeatedly referred to in this hearing as a "12:1:1". Child B does well with reading and writing. He has an interest in outer space and Legos. Child B has seen a number of therapists outside of school.

Aside from Mr. Y. and his mother, his grandmother, brother and a neighbor occasionally provide child care. Child B took no other medications aside from Daytrana, and he was no longer taking that since the school year was over. This was based upon a psychiatrist's advice. Child B likes playgrounds and museums. He is a member of the Cub Scouts and has done pack night and den meetings. Together, Mr. Y. and Child B work on projects such as a soap box derby car. Child B also has lots of friends in the neighborhood who he sees regularly. Child B's demeanor is positive and he is "anxious to do things."He always wants to be doing something.

Mr. Y.'s current work hours are from 8:30 a.m to 5:30 p.m. In the summer, while he is at work, a paid babysitter watches the children during the day. During the school year, the children attend an after school program from 3:00 p.m. until 6:00 p.m. His mother provides child care on occasion, as well. Mr. Y. testified his mother was a good mother to him, was attentive and loving and provided him with "excellent guidance." She is very good with his children, attentive and watchful. Up until 2006, his mother watched the children full-time while Mr. Y. was at work. In October 2006, she returned to work. Mr. Y.'s grandmother watches the children only on occasion and almost always with others present. She has been a substitute teacher for twenty-five years.

Ms. H.'s son Child J, from a prior relationship, lived with her and Mr. Y. for a period of time. [*5]Mr. Y. testified there were problems with him in the home in that Ms. H. never disciplined him. In April 2000, Child J got into trouble with the police when he and friends were playing with air guns that looked like real guns. Mr. Y. alleged that Child J would purchase the air guns and have them delivered to his home using stolen credit cards. The result of the legal problems were he was placed on probation.

After a three month break in the trial, the father's testimony continued with the children having gone back to school. There were no changes regarding the children and each was seeing a therapist consistently. Mr. Y. disputed Ms. H.'s claims he had an alcohol problem and testified that all evaluations he had undergone had bourne that out. He disputed Ms. H.'s claim his license was suspended. He testified that he had received only ten dollars in child support since the change in physical custody. Mr. Y. claimed all allegations contained in Ms. H.'s custody and family offense petitions were false. He specifically refuted allegations he drove while intoxicated, was chronically unemployed, failed to secure medical attention for the children, was alienating the children against Ms. H., and suffered from mental illness, depression and alcoholism. Mr. Y. challenged Ms. H.'s assertion she was the children's primary caretaker and indicated that he was a stay-at-home father for an extended period of time, seeing to the children's needs, doing laundry, grocery shopping and other necessary duties. He also indicated Ms. H. was not fired from one of her jobs as she states in an affidavit, but instead quit. He testified he is currently meeting all the children's needs, including providing therapy for them. There have been four complaints made against Mr. Y. to child protective services. The allegations included that Mr. Y. had driven drunk with the children, that he beat Child B and that his home was dirty and unsuitable for the children to live in. All four cases were unfounded. Mr. Y. claimed that all four complaints were made closely in time to the children's visits with their mother. He testified he was concerned that if Ms. H. was awarded custody of the children she would alienate them against him. He is seeking sole custody, with Ms. H. having "suitable" parenting time.

By agreement of the parties, and due to a change in Legal Aid attorneys representing Ms. H., the children's attorney cross examined Mr. Y. first. During cross examination, Mr. Y. confirmed that while living in the Albany area, he would visit with the children every other weekend. Currently Child S is taking Adderall, which has helped in keeping her calm and rational. She also takes Fluoxetine which is a mood stabilizer. Mr. Y.'s mother gets the children on the bus in the mornings and he picks them up from the after school program. At the time of this testimony, Child B was on no medication, but was still under the care of a therapist. Child S takes her medication each morning, which he normally administers, as does his mother if he's not there. Child B and Child S get along well for the most part. They argue but do not get physical with one another. When discipline is necessary, it is a time out or loss of privileges. The children do not have access to inappropriate video games and neither has a MySpace page. In the past, if Child B became angry he would destroy things in the house, like his toys, but he had not done something like that in six months. Mr. Y. denied ever being treated by a psychiatrist, being on any psychotropic medications or suffering from any chronic medical condition. His driver's license was never suspended, but there was a time when he was in danger of that happening due to a failure to pay child support. Mr. Y. participates in therapy with the children. "When I bring them to their appointments, I usually have five, ten minutes with either the psychiatrist or psychologist, just to give an update of what they have been up to lately and how things are going...." T. 11/28/07, page 61, lines 16-20. Child S remains [*6]in a 12:1:1 class, though now she goes to different teachers for different subjects throughout the day. She is doing well and has had no disciplinary issues. She is learning how to socialize better and learning how to make up after having a fight with a friend.

After another long break in his testimony, approximately two months, Mr. Y. was then cross examined by the mother's attorney. Mr. Y. confirmed that from January 2003, until July 2004, he was the children's primary caretaker. He was not employed outside the home during this time. However, during part of this time, up until the summer of 2004, the parties employed a child care provider. According to the parties' tax returns from that time, the child care provider was employed by the parties each week, during the week, to care for the children. Mr. Y. described her as part-time "because I was taking care of them myself part-time." T. 1/14/08, page 10, lines 12-13. Mr. Y. testified the child care providers services were needed because the parties were planning on selling their home and he was "working on" the home to prepare it for sale. Mr. Y. then acknowledged that his previous testimony of being a full-time caretaker of the children was inaccurate.

QUESTION: So when you indicated before that you were the caretaker full time for the children when they were not in school, that was not correct, correct?

ANSWER:If you want to describe it as part time, correct.

T. 1/14/08, page 10, lines 18-23

The child care provider was employed for approximately twenty-five hours a week to care for Child B, and fifteen hours a week to care for Child S. At this time each child was also in school. Mr. Y. believed the child care provider was paid six dollars an hour, and agreed she was paid two hundred and thirty-five dollars per week. When asked if dividing the two hundred and thirty-five dollars by six would yield the number of hours the child care provider worked each week, Mr. Y. then stated he was not certain of the rate of pay.

Mr. Y. acknowledged that the most recent Court Order in this matter granted him physical custody of the children and joint legal custody with Ms. H. On the day of the incident in which Child B expressed a suicidal ideation at school, Mr. Y. did not call Ms. H., but answered her phone call when she called later. The next morning Child B was taken to see a psychiatrist around 7:00 a.m. Mr. Y. did not call Ms. H. to discuss the visit, but discussed it with her later in the afternoon when she called to talk to the children. When the parties lived in Albany, Child S was the subject of a CSE meeting that he did not attend but Ms. H. did. Mr. Y. testified he told the forensic evaluator that Child S could be "feisty" with his mother, but now states that meant she would talk back to his mother about once a week. Aside from throwing a toy on occasion, Child B does not exhibit any violent behaviors. Mr. Y. recalled a therapist in Albany stating that Child S might be bipolar and he recalls discussing it with the therapist, but did not recall telling the forensic evaluator he never discussed that issue with the therapist. He also disagreed with the forensic evaluation when it stated Mr. Y. did not "bother" to even investigate what bipolar disorder was. Nor did he agree with the report when it indicated he did not know what doctor was prescribing Child S's medications. Mr. Y. did not recall telling the forensic evaluator his mother was "fiery, temperamental and high strung." He did recall describing Ms. H. as having a "fiery" personality. Mr. Y. testified he drinks alcohol at the rate of once or twice a month, and about five years ago would use marijuana about once or twice a month. Mr. Y. described himself as "non-confrontational," while he described Ms. H. as reacting quickly without thinking about it. He never observed Ms. H. employ corporeal [*7]punishment on the children, but claims one incident of such was reported to him. He is aware of no other such incidents. During the forensic evaluation when he was evaluated while interacting with his children, Mr. Y. agreed that Child S distanced herself from him, but disagreed with the observation that he and Child S were uncomfortable with one another and that he ignored her. He denied that if Child S called Child B stupid he failed to address it. He might not have heard it.

When Mr. Y. enrolled Child S in school in Long Island, he did not inform the school of the services she was receiving in Albany, or information regarding the past CSE meetings or her IEP. He assumed the Albany school would provide that information to the new school. He never asked the new school if they received that information, nor did he inquire of the new school how long it would take them to get information from the previous school. He testified it was inaccurate that when the new school recommended to him that Child S receive individual counseling, that he didn't immediately follow through.

Mr. Y. recalled an incident where Child B got angry with his grandmother, Ms. Y., and picked up a knife. He never reported this incident to Ms. H. In response to a question from the Court as to why he did not inform Ms. H., he testified he "knew" Child B would discuss it with her when she called. He stated, "it was a butter knife, not a knife that would do any damage to anyone." T. 1/14/08, page 67, lines 5-6.

Mr. Y. testified if Ms. H. was awarded custody, he would relocate to South Carolina to be close to the children. In December of 2005, when Mr. Y. came to South Carolina to obtain physical custody of the children, he first went to a family court in South Carolina where a judge then conferred with the Albany judge to ensure the order was accurate. Mr. Y. asked to have an officer present "to see that the transition was smooth." The children were at Ms. H.'s sister's home, and a sheriff knocked on the door and explained to Ms. H. that the order was valid.

Mr. Y. did not have the children send their mother anything for her birthday in 2006 or 2007 or for Mother's Day in 2006. For Mother's Day, 2007, they sent some pictures. It was clarified that the pictures were sent with the children when they went to visit their mother for Thanksgiving, which is the around the same time as her birthday. There was not a birthday card or Mother's Day card for the mother in 2006 or 2007. Mr. Y. did not have the children initiate calls to their mother for her birthday or Mother's Day in 2006 or 2007.

According to Mr. Y., Ms. H. calls the children nightly, around 8:00 p.m. He denied that anyone listened in on the conversations. Prior to Child B being prescribed Daytrana, he and Ms. H. discussed it and Ms. H. told him she was opposed. Mr. Y. looked into some of the side effects and learned they included trouble sleeping and eating disorders. He asked the prescribing psychiatrist about the possibility of depression and was told he "should not be concerned about that." Mr. Y. allowed Child B to take the drug even after Child B's suicidal ideation incident. After Ms. H. expressed her concern over using the drug, Mr. Y. did not seek a second opinion.

Mr. Y. described his children as having a good relationship with one another, with typical sibling rivalries. The children do their homework after dinner, and Mr. Y. checks to see that it is done. However, Child S's most recent report indicated that her homework was "rarely" done on time for two subjects. He explained the discrepancy in that Child S does not always bring home her homework. Attempts were made to fix the problem of her not bringing home her homework. He learned of the problem in October but the November report card indicated there was still a problem. While living in the Albany area, Mr. Y. had little contact with the school, and when he moved to [*8]Long Island with the children he did not ask the previous school for a copy of Child S's most recent report card. Though Mr. Y. testified the children are not allowed to watch "R" rated movies, he acknowledged that Child S saw "portions" of an "R" rated movie, Pans Labyrinth, with her grandmother, Ms. Y.

At the time of his testimony, Mr. Y. confirmed that Child S's only counseling was with a psychiatrist once every two months for forty-five minutes. He recalled Ms. H. expressing to him that Child S should have more counseling than once every two months, and just recently the school psychologist suggested that as well.

In May 2007, Mr. Y. planned a family trip for the children and himself to go to Massachusetts for two nights. He never informed Ms. H. of this plan, despite having planned it two weeks in advance, and she only learned of it when she spoke to the children a few hours before they were due to leave.

During redirect, Mr. Y. confirmed that there was a babysitter used when he was unemployed so he could work on the house. In November 2005, Child S was the one who told him about the move to South Carolina. He claimed he was not aware of the CSE meetings that took place, regarding Child S, when the parties were living in separate residences in the Albany area. If he is awarded custody, he believes Ms. H. should have parenting time including alternating holidays and a month in the summer.

The Court found Mr. Y.'s testimony to be troublesome in many respects which lead the Court to question his credibility. The Court also found his demeanor at times as disrespectful and excessively arrogant. He often contradicted information in the forensic evaluation. During cross examination by the mother's attorney, he was forced to change or back off many of the statements he made on direct, leading the Court to question his forthrightness. For example, Mr. Y. touted himself as a full-time, stay-at-home father while living in the Albany area, only to reveal, during cross examination, that the parties had what appeared to be a full-time child care provider during this time. Suddenly, his full-time fathering became part-time so he could "prepare" his home for sale. The Court finds this explanation to be nothing more than a fabricated convenient excuse for why an unemployed parent needed a full-time child care provider. There was no explanation why he didn't mention this on direct examination, as he was painting himself as the ideal parent. There was absolutely no proof or testimony to substantiate this claim of "working on the house." The Court believes it to be, at best, a fiction.

His demeanor, intonation and body language was arrogant and demeaning, particularly during cross examination. Such forced the Court to rule that much of his testimony lacked credibility. He made faces towards Ms. H. when he disliked her testimony. He seemed unwilling to accept that he had any faults as a parent, and perhaps as part of strategy, seemed to focus more on his perceptions of the mother's shortcomings. While that is to be expected in custody trials, in this case it seemed to be taken to an extreme.

Ms. S. F., the principal of the R. Avenue School, was called by the father. During Ms. F.'s testimony, the father's counsel entered a number of documents into evidence, including Child S's most recent (at the time) individual educational plan (IEP); a document called Measurable Annual Goals for Child S, as created by her special education teacher; Child S's attendance records for 2006-[*9]2007 (indicating "excellent attendance"); Child S's standardized test scores and Child S's report card for 2006-2007.

Ms. F. testified that Child S receives resource room services, speech and language services and counseling services. Ms. F. had minimal contact with Mr. Y., but believed him to be "very responsive to all the recommendations that the school has made." T. 8/3/07 at 17, lines 10-12. Her interactions with Ms. H. were also limited, but she recalled two instances of contact. One involved an incident where Ms. H. came to the school to take Child S and another was when they discussed summer school. The incident where Ms. H. wanted to take Child S resulted in Ms. F. contacting the school district's lawyer and the end result was Child S was not released to Ms. H. According to Ms. F., Child S is performing reasonably well at the school, but had some difficulty in math and social interactions. The school however, was working on that.

On cross examination by the children's attorney, Ms. F. indicated Child S saw a school psychologist in a group setting once every six day cycle. During the incident when Ms. H. arrived to pick up Child S, Ms. F. described her as "frustrated" but recalled no other "unpleasantness." Regarding the summer school issue, Ms. H. was opposed to Child S attending summer school and asked Ms. F. to write a letter indicating that a tutor would suffice. Ms. F. refused to do so. The children's attorney, Ms. Hausch, then intervened and the end result was Child S attended summer school. Ms. F. believed Child S benefitted from summer school.

The Court found Ms. F.'s testimony credible, though of limited use. However, as is discussed at length below, Ms. F. was one of many school personnel who were called to testify in this case, and while the Court was often at a loss to understand the purpose of the actual testimony, the Court was left very impressed by each of the individuals and the degree of interest, care and dedication they each showed to their jobs in general and the Y. children in particular.

Ms. C., a teacher at R. Avenue School, was another of the father's witnesses. After discussing her educational background, she testified to being Child S's fifth grade teacher during the previous school year (her testimony occurring during the summer break). Ms. C. reiterated the services Child S received. Ms. C. and Child S's resource room teacher would devise lesson plans for Child S and strategies for teaching her. Child S required a lot of redirection and had trouble in math. Her reading and writing were good. She received a number of extra services to address her academic needs. Ms. C. communicated with Mr. Y. on a regular basis, most often by sending notes back and forth using a planner they created for Child S to keep on top of her studies and homework assignments. According to Ms. C., Mr. Y. "...made every attempt to follow through with what we needed him to do at home." T. 8/3/07, page 37, lines 14-15. Ms. C. also communicated with Ms. H., though that would take place over the phone or via email.

During cross examination by the mother's attorney, Ms. C. testified that Child S's classification by the Committee on Special Education (CSE) is impaired but this classification occurred prior to Child S entering Ms. C.'s class. Ms. C. was not sure on which IEP she saw the classification of emotionally impaired and acknowledged the most recent IEP had her classified as "other health impairment." Child S would struggle doing her homework, and Ms. C. devised a strategy with both parents to try to remedy this. This included checking her backpack everyday to make sure she had the appropriate books, and she would also speak to the people who ran the after [*10]school program Child S attended.

During cross examination by the children's attorney, Ms. C. recounted an incident with Child S and another little boy involving note writing. A discussion with Child S about inappropriate behavior remedied the problem. When Child S failed to complete homework at home, she would have to do it during lunch. Child S would not be happy about it, but she would comply with that rule. Ms. C. reiterated Child S's problems with math and felt that Child S would need to work on "appropriateness with social contacts."

The Court found Ms. C. a credible witness though her actual testimony added little, if any, enlightenment to the issue of custody. However, like Ms. F., the Court was impressed with Ms. C. in general and with her knowledge of Child S's needs in particular

The father called Ms. M., principal of the C. Lane School where Child B attends. Child B maintained good attendance from his entry date in January 2006, until the end of the school year. Pursuant to Child B's IEP, he was classified as emotionally disabled. As a result, Child B was designated a special education student and received certain services including a self-contained classroom and counseling services (12:1:1). The counseling services were provided by the school psychologist. During her interactions with Mr. Y., he was always cooperative, and she described him as "an involved parent." He would respond and act appropriately to concerns raised by teachers. Her initial interactions with Ms. H. were through phone conversations until March 2006, when she appeared at the school in person seeking to remove Child B. According to Ms. M., Ms. H. stated she was awarded custody and would be taking the children back to the Carolinas. After about two hours of meetings it was determined by the school that the children would not be released to Ms. H. Ms. H. did have a document with her signed by a Judge, but the school was concerned by the wording of it. Regarding educational issues, Ms. H. would communicate with Ms. M. via email. Ms. H. attitude was "concerned" and her participation in Child B's education was "appropriate." Once Child B was placed in the 12:1:1 class he began improving in all facets of his education and socialization. "His recognition skills improved, his math skills improved, his work habits, from appropriate, went to beginning to improve [sic]...this environment was more productive for Child B." T. 8/3/08 at 86, lines 3-7.

On cross examination by the mother's attorney, Ms. M. testified that, in March 2006, when Ms. H. appeared to pick up the children she had with her some official looking documents, but Ms. M. didn't really understand them. Ms. M. was less concerned with the documents as she was with the manner in which the children were being picked up.

Child B was discussed by the building educational support team (BEST), due to his "profile."

Child B exhibited some troubling behavior, including not listening to the teacher, hiding in closets and under desks. There were discussions how to keep Child B safe. Ms. M. indicated it was believed a psychiatric evaluation of Child B would be helpful. She was not sure if one ever occurred. Child B was getting counseling in school.

In March 2007, Child B expressed suicidal ideations at school. According to school policy, when something like that occurs, the parents are immediately notified, a parent must pick the child up from school and a psychiatric evaluation must occur before the child is allowed back in school. About two days later Child B returned to school and a letter from a psychiatrist was supplied. Since [*11]that time there has been an improvement in Child B's overall behavior.

During cross examination by the children's attorney, Ms. M. testified that Child B would likely remain in a 12:1:1 classroom the following school year.

During redirect examination, Ms. M. testified that after Child B indicated he would hurt himself, in March 2007, Mr. Y. came to school to pick up Child B. He then provided the school with a letter from a psychiatrist.

Ms. M. was a credible witness. Her actual testimony added little to the issue of the best interests of the children, but as with the other school personnel, the Court was impressed with her in general.

During cross examination by Ms. H.'s counsel, Ms. Y. was shown some pictures of her home and acknowledged that her home was depicted in a different condition than the pictures entered into evidence of the home during Mr. Y's testimony. Ms. Y. testified she was unaware that Child S had a MySpace page. She also agreed she would not want her grandchildren to listen to music with profanity in it, and that she would not permit it. Nor would she want her granddaughter to listen to music with sexual connotations. Ms. Y. would bring Child S to her therapist from time-to-time. In 1996, she allowed her son C's girlfriend, who was "near" seventeen, to live in her home with him. Ms. Y. confirmed that she shares a bedroom with Child S and that Mr. Y. shares a bedroom with Child B. In reviewing pictures entered into evidence by Mr. Y., she confirmed that the pictures fail to show those sections of each bedroom where Ms. Y. and Mr. Y. sleep, respectively.

During cross examination by the children's attorney, Ms. Y. testified she takes the children to the doctor from time-to-time. She and Child S did create a web page for Child S called Circle of Friends Pen Pals. It was for email purposes only, and after two weeks Child S lost interest in it. It contained no personal information about Child S. It may still be up and running, but Child S doesn't use it anymore.

During redirect examination, the witness identified a printout from the Circle of Friends website and it was entered into evidence with no objection. An Avril Lavigne CD, which Child S purportedly listens to, was also entered into evidence. The witness then changed her earlier [*12]testimony about the age of her son C.'s girlfriend at the time she lived with C. in her home from "near" seventeen to nineteen. She also testified that her mother is eighty-six years old, is still used as substitute teacher in G. City and is currently in good health.

While the Court does not believe Ms. Y. was intentionally untruthful at any time, her testimony lacked any degree of objectivity which was surprising to the Court, even when taking into consideration the fact that one of the litigants was her child. That level of a lack of objectivity is more often seen in a litigant, and the Court believes therein lies the problem. Ms. Y. takes her role in this "multi-generational family," a term she used often, very seriously, which is laudable. However, in the tone of her testimony, she seemed to take on the role of one of the people fighting for custody, as opposed to a witness being used to provide the Court with useful information. Along those lines, the Court was surprised at how little the witness was used for that purpose. This witness has firsthand knowledge of how the father performs as a parent, and while there was some testimony to that effect, the Court found it scant and superficial for the most part. Also, her testimony did contradict the forensic evaluation at times. Regardless, the Court found the witness partly credible, taking into consideration what appeared to be her anger towards Ms. H. and her vantage point of being a parent of a litigant who has a vested interest in the outcome of the case.

After Ms. Y.'s testimony, the father rested his case. The father then moved to preclude the mother from presenting a case due to the fact that her husband had not yet been evaluated for forensic purposes. The application was denied.

Dr. P. is the school psychologist at the C. Lane School. She has a bachelor's degree, master's degree in education and doctorate in psychology. The witness testified she is a licensed elementary education teacher and a licensed school psychologist for nursery through twelfth grade. She has been school psychologist at C. Lane for eleven years. As part of her duties, she evaluates between thirty-five to forty-five students a year, and provides counseling to approximately thirty children per year. She met Child B on his first day in the school in January 2006, because he was having difficulty joining in with the other children and listening to the teacher. It appeared to her Child B was uncomfortable in his surroundings. She began working with Child B regularly and worked with the classroom teacher to devise strategies to make him more comfortable. In March 2007, Dr. P. performed a psychological and education evaluation of Child B. A number of tools were used for the evaluation: "I gave him an intelligence test, I gave him an academic achievement test, I observed him in his classroom, a social history was taken not by myself but by the school social worker, I gave rating scales to the teacher and the parent and I conducted some rating scales and assessment of Child B's social emotional functioning with Child B himself." T. 8/7/07, pages 13-14, lines 22-25, 1-2. It took about five days to complete the evaluation, which was a typical time period despite some obstacles that Child B had with completing certain tasks. As a result of the evaluation, Dr. P. recommended Child B consult with a child psychologist, and continue with counseling both in and out of school. On March 15, 2007, Child B made some suicidal comments in school. Dr. P. described the incident on direct examination:

ANSWER: Okay. He made comments and gestures that were cause for concern.

QUESTION: Were any of those comments said directly to you? [*13]

ANSWER: Yes.

QUESTION: What comments were made?

ANSWER: He said I want to kill myself.

QUESTION: Did you observe any of the gestures?

ANSWER: No, I did not.

QUESTION: When Child B made that comment that he wanted to kill himself, what did you observe about his affect on that day?

ANSWER: I would say he was angry.

T. 8/7/07, page 16, lines 3-14

As is protocol, Dr. P. questioned Child B more in depth about his comments, then called each parent. She also contacted the school principal as well as Child B's therapist at the time. Child B was allowed to return to school two days later when the school received a letter from a therapist indicating it was safe for Child B to return. Dr. P. would typically see Child B for individual counseling twice per week, and once per week for group counseling. She may see him an additional once or twice each week, depending upon particular issues that might arise.

Following a CSE meeting Child B was moved to a 12:1:1 class. This resulted in an improvement in his behavior. The witness believed after the suicidal ideation incident, Child B was put on a drug called Daytrana. She was unsure if he was still taking it. Dr. P. regularly communicated with each parent.

During cross examination by the father's attorney, the witness testified Child B said he was confused about whether he would be remaining in the school. She was unsure whether being on Daytrana helped Child B's behavior change since he started taking it at about the time he was moved to the 12:1:1 class in which he improved academically and socially. At the time of her testimony, when a new IEP for Child B was imminent, she believed it would remain virtually the same, with Child B remaining in a 12:1:1 class.

During cross examination by the children's attorney the witness indicated Child B would talk to her about his parents' marital strife. Together with Child B's teacher, Dr. P. devised a "behavioral intervention plan" which included a reward system for positive behavior. Such positive reinforcement would work for a while and then stop so a new strategy would have to be created. The strategies focused on positive reinforcement, but disciplinary action would take place if he did something endangering the safety of others or himself. In her opinion, Child B does not suffer from any intellectual deficit. Regarding the suicidal threat incident:

QUESTION: Now, Child B acted out, your report says that he actually did certain things, put a pen to his neck, that sort of thing?

ANSWER: That was observed by the teacher in his classroom.

QUESTION: He described to you how he was going to do this?

ANSWER: Yes.

QUESTION: Based upon your training experience [sic], did you consider this to be a plan?

ANSWER: Based on his developmental age, I considered it to be a plan.

QUESTION: Did you believe he had the means to carry this out?

ANSWER: No.

QUESTION: Do you believe he seriously intended to do this? [*14]

ANSWER: That's a hard question. I, you know, I believe that he seriously was upset and this was the way he was expressing his internal feelings.

T. 8.7.07, page 36, lines 3-23

After the suicidal ideation incident, Dr. P. recalled receiving two letters from two different psychiatrists indicating it was safe for Child B to return to school.

In her evaluation of Child B, the witness reported that Child B responds with violence at times, and that this was atypical behavior. She did not believe he was a danger to himself or others. Child B discussed his sister, grandmother and mother's new husband with her. He said he fights a lot with his sister, he said positive things about his grandmother and that he liked his mother's new husband very much. She believed at the time Child B made the suicidal threat, he was "somewhat depressed." After being placed in the 12:1:1 class and being put on Daytrana, Child B's artwork became less violent and his anger and rage were "slightly better."

On redirect, the witness testified that Daytrana could have many side effects, but that Child B never reported any of them. She believed Child B was depressed based upon "...his anger, in his noncompliance, in his defiance, in his sadness." T. 8/7/07, page 45, lines 10-11.

Dr. P.'s testimony was clear, concise and direct. The Court found her very credible.

In September 2006, Ms. H. and Mr. H. moved into an apartment together in Greenville South Carolina. Ms. H. moved into the apartment first, about one month earlier. The apartment is in a residential complex with three bedrooms and two bathrooms. The complex has a swimming pool, clubhouse and playground. The children have their own rooms and share a bathroom when they visit. The apartment is outfitted with all the appropriate appliances. Mr. H. describes the children as independent and stated they are well-behaved. They are obedient, and are very loving toward their mother, to whom they look to for support. Ms. H.'s main form of discipline with the children is verbal directions and the removal of privileges. Based upon his observations, Ms. H. is supportive of the children and will plan her day around the children's needs. He also has observed her keep regular contact with the children's schools.

Mr. H. is employed as a Licensed Practical Nurse at a South Carolina hospital. He started at this particular hospital in November 2006. He has been working as a nurse for a number of years. Every hospital he has worked at required background checks, regular drug screening and some required fingerprinting. Mr. H. denied ever being convicted of a crime, being subject of a CPS investigation or being accused of abusing or neglecting children. A number of pictures showing the apartment Mr. H. and Ms. H. live in were entered in evidence. When the children visit, Ms. H. imposes some rules such as meal times, bed times and what the children are allowed to watch on the television and computer. He and Ms. H. monitor what the children watch on television. If Ms. H. was awarded custody, Mr. H. would support Ms. H. in the raising of the children. He describes both children as relatively normal children liking to do things of, and behaving like, children their age. Mr. H. described a recent incident where, while in New York for a court appearance, he and Ms. H. visited with the children. Child S asked to play an Avril Lavigne CD she had with her. Child S pointed out to her mother that the CD contained various curse words. The CD was turned off, Ms. H. then discussed it with Child S and told her she was no longer allowed to listen to it.

Mr. H. has been a nurse since 1996. He was also a Navy Hospital Corpsman, the equivalent of an Army medic, from 1976 to 1979. His stint in the military ended with his four year commitment. He denied smoking or using drugs.

On the day before this particular Court date, Mr. H. and Ms. H. were visiting with the children. Upon dropping them off at the father's home there was a poster on the door. It was a poster depicting father's family. On the poster was the written message "we missed you" and showing the family members shedding tears.

During cross examination Mr. H. stated he worked in the restaurant business before becoming a nurse. Besides having an LPN certification, he has certifications in IV, BLS (basic life support), ACL (advanced cardiac life support) and telemetry. Mr. H. has been married a total of three times, including his marriage to Ms. H.. His first marriage was in 1991 and produced one child, a girl. The child currently lives with her mother and stepfather in another state. She was adopted by the stepfather, and since that time Mr. H. has had no contact with her. The second marriage was in 1995 and this marriage produced one child, a boy. Mr. H. has limited contact with the child though not as a result of a court order. When Ms. H. moved into the apartment in which she currently lives, in August 2006, she was working in human resources for a nursing agency and [*16]earning approximately twenty-three thousand dollars per year. Mr. H. testified he met Ms. H. online in a chat room in July 2004. They first met in person in October 2004. Afterward they met for weekends on occasion.

After nearly a two month break in his testimony, Mr. H. returned to the witness stand to have his cross examination by the father's attorney continued. He testified that he helped Ms. H. relocate to South Carolina. He helped her pack the moving truck and believed it contained all of her belongings. Mr. H. drove the moving truck to South Carolina. The children drove with Ms. H. in her car. He was aware that a social worker "looked" at Ms. H.'s home in 2006, but was not sure who that was, how she was chosen or how much she was paid to do so. Mr. H. did recall a home study investigator coming to the home and that he and Ms. H. paid for it. Being that Ms. H. was not working, it was actually Mr. H.'s funds that paid for the investigation. He was not present when the investigation took place, and he believed the fee was fifty dollars. If Ms. H. is awarded custody, the children will likely attend after school programs, and Mr. H. believes it is possible there will be times when he watches the children by himself. No child support payments were ever made out of Mr. H. and Ms. H.'s joint account. Except for a payment taken directly from her paycheck the week of this testimony, he was unaware of any other child support payments made. There is a computer in the bedroom of his residence and it has parental monitoring software on it. At no time do the children use the computer without Mr. H. or Mrs. H. monitoring them. However, when the children visit he does work from 7:30 a.m. to 4:30 p.m., so his knowledge of what happens during these hours is based upon what Ms. H. tells him.

During cross examination by the children's attorney, Mr. H. confirmed that he was aware that, at the time he met Ms. H., she was in the process of getting divorced. He first met the children in May 2005, when he came to New York. He had had no contact with them prior to that. He did not recall explaining to the children who he was, aside from his name, and did not share a bed with Ms. H. during this visit. He was not present when Mr. Y. appeared in South Carolina to take the children back to New York. During the summer of 2006, when the children were visiting with Ms. H. in South Carolina, Mr. H. was not yet living with Ms. H., and he saw the children on a weekly basis during his days off. On one occasion he disciplined the children to the extent that he separated them from one another until Ms. H. returned. She was gone for twenty to twenty-five minutes. He describes Child S as "very intelligent," moody on occasions and having problems staying focused at times, but his relationship with her is good. He describes Child B as "very bright and intelligent", full of energy with an "amazing" imagination. Mr. H.'s discharge from the military was honorable. He last used marijuana approximately twenty-five years ago. Mr. H. was not aware that the children were moving with Ms. H. until "very soon" before the move.

On redirect, Mr. H. testified that he moved in with Ms. H. some time during the Labor Day weekend, 2006, just after the children returned to New York from a visit. When Ms. H. told him she was relocating to South Carolina, he did assume the children would come with her.

The Court found Mr. H.'s testimony very credible. His answers were concise but thoughtful. His positive demeanor towards counsel, direct response to questions and patience during cross examination, which at times was hostile, fostered his credibility. He discussed negatives about himself or Ms. H. without being defensive. He remained calm and had a rational voice when presented with the accusations and hyperbole regularly heard throughout this hearing.

Ms. H. is the mother of Child B and Child S and ex-wife of Mr. Y. She testified her divorce was final in September 2004, while she was living in Delmar, New York. In March 2005, she moved out of the marital residence and into an apartment in the same town with Child B and Child S. Her son Child J moved into an apartment with his girlfriend, also in Delmar. At the time of the divorce, she and Mr. Y. had joint legal custody and she had physical custody of the children. At the time of the divorce she was awarded child support. Mr. Y. was not employed, to her knowledge. In 2003, while the parties were living in Westbury, New York, and Mr. Y. was unemployed, the parties hired a full-time child care provider to allow Mr. Y. to look for a job. After the parties moved to the Albany area, Mr. Y. was still unemployed and Child B was sent to a day care while Child S attended school. When Child S was not in school, she attended the same day care as Child B. Soon after she moved out of the marital residence into an apartment, that apartment was sold and she had to move again into a new apartment. During this time, after she and Mr. Y. moved into separate apartments, Mr. Y. saw the children "sporadically." While entitled to alternating weekend visitation, sometimes three to five weeks would go by in between visits. There were occasions when he would tell her he would exercise visitation and then not show up. He would come on Wednesday mornings at times, for an hour before school. He never called her residence. All phone contact between the children and their father, during this time, was initiated by Ms. H. In the spring of 2005, she initiated proceedings in family court due to Mr. Y.'s failure to pay child support. She believed there was a finding of willful violation. She commenced the proceedings because she was in financial distress.

In May 2005, Ms. H. had surgery that kept her out of work for eight weeks. "I was not allowed to drive or lift anything heavier than a gallon of milk. I was on bed rest 24/7[sic], I was on several medications including painkillers and antibiotics. I was not allowed to do physical activity. I needed assistance...I couldn't drive for the first three weeks and I couldn't lift anything heavier than a gallon of milk for about five weeks." T. 2/25/08, page 58, lines 15-19, 23-25. For the first two weeks, her mother came and stayed with her. The next week Mr. H. came and stayed with her. She told the children he was a friend who was a nurse. Child B thought nurses were women. During this time, Mr. H. got the children ready in the morning, made sure their homework was "put together," fed them and drove them to and from day care. He did the grocery shopping, laundry, cooking and house cleaning. He assisted the children with their homework and played with them. He also drove Ms. H. to her doctor appointments. Both children were comfortable with Mr. H. and interacted with him freely. When she told Mr. Y. about the surgery, he did not offer any help. He did not offer to care for the children, nor did he inquire who was looking after them while she was bedridden.

Also around May 2005, she contacted Mr. Y. both by phone and in writing and informed him of her desire to relocate with the children to South Carolina. She explained she was in a desperate financial situation and was in danger of having her electric turned off. In response, she received a letter from his attorney. At that point, she filed a petition for relocation in court, but then withdrew the petition.

At the time of the divorce, Mr. Y. and Child J ignored one another. On April 1, 2000, Child J was brought to a police station because he or a boy he was with had a bb gun. She remembered the date specifically because it was the night she went into labor with Child B. Child J was fourteen at the time. When the police contacted Ms. H., she claims Mr. Y. was at a friend's house "getting high." She could not call him because she had no number for this friend. She didn't know his last [*18]name or where he lived. Nor could she get a hold of her mother in law, so she had to take Child S. with her to the police station. She was at the police station for about five hours and tried calling Mr. Y. repeatedly but could not reach him. Eventually, Ms. Y. was able to come and get Child S. She and Child J returned home around 9:00 p.m. and Mr. Y. returned about a half hour later. She claimed his eyes were red and he had a bag of marijuana in his pocket. Soon thereafter, her water broke. She had to drive the car to the hospital because Mr. Y. was high. She denied there ever being any guns in her house. A year later, she had to appear in court with Child J, and he eventually ended up on probation. Child J and Child S had a good relationship. Between March 2005 and December 2005, Child J would see Child S and Child B weekly at Ms. H.'s residence. Child J had some serious neurological problems and Ms. H. took him to an endocrinologist every three months. He received therapy every two weeks. In response to allegations raised by Mr. Y. about a lack of hygiene by Child J, particularly regarding dental issues, Ms. H. entered into evidence numerous checks from Ms. H. to Child J's dentist.

On two occasions when the parties lived in the Albany area, Ms. H. smelled alcohol on Mr. Y.'s breath when he dropped off the children. She confronted him the first time and he said he only had a couple of beers. She claimed she called the police after he left, but no report was taken because "they asked me for information. I couldn't provide in which direction he was driving and what was the make and model of his car." T. 2/25/08, page 85, lines 13-15. It happened again in November 2005, and again he purportedly admitted to drinking a couple of beers and stated he wasn't drunk. Again she called the police and again no report was made since she didn't have the "proper information."

In October 2005, she again told Mr. Y. she wanted to relocate. She was still in "financial distress," didn't have enough money for rent, was in danger of having her electricity shut off, learned she was going to lose her job and was not receiving child support. She explained to Mr. Y., over the phone, these reasons for needing to move. He didn't respond. In November 2005, she sent him a letter with a copy of some bills and a letter indicating her electric was to be turned off. In November 2005, she was terminated from her employment. She then sought assistance from social services, unemployment and Mr. Y. She was denied assistance from both social services and unemployment. Three weeks after sending Mr. Y. the letter, he indicated to her he was thinking about it. He asked her for her mother's and sister's addresses and phone numbers. They then had a subsequent phone conversation and he asked her where she intended to live in South Carolina. He never mentioned any objection to her relocating from that time forward, which was about a few weeks before the move. After dropping the children off from a visit, Mr. Y. told her she would be hearing from the courts. She claims he told her it was "about the money." She called the court but was unable to get any information about any pending court proceedings initially. After some more attempts, she learned there might be a proceeding and was directed to both contact the then-assigned law guardian and to write a letter to the court to ask for an adjournment. She contacted the law guardian but claimed that person also was unaware of any pending court date. She did write the letter.

On December 19, 2005 she left for South Carolina with the children. The children wanted to speak to their father the next day so she called him. She next spoke to Mr. Y. on December 23rd, and he told her there had been a court appearance but it was adjourned until February 2006. He again told her it was about money. He then told her he wanted to come down to South Carolina to visit with the children. He wanted to come down and give the children Christmas presents. Initially, [*19]he said he would come down on the 26th, but changed it to the 29th. Mr. Y. said he would be staying at a hotel near-by with his mother. On the morning of the 29th he called and asked where she was. She told him she was at her sister's house. He then showed up with the police and the officers told her they were removing the children from her. The children were in the backyard and she had to explain to them that they were going with their father. The police then followed her to her house so she could get the children's clothing. The police would not allow her to say goodbye to the children and they were crying. Prior to this incident, she was neither aware he had been awarded custody nor that there had been a court date for custody. The next morning she drove to the court in Albany. She was able to see a judge but was told there would be no change in custody at that time. She then went to her former residence and found papers on the ground, near a door that was never used. It was paperwork directing her to appear in court and to not relocate with the children. The Court date was December 23, 2005. She then tried to contact Mr. Y. to arrange to see the children. He didn't respond at first and she drove to Long Island. When she finally spoke to him he would not allow her to speak to, or see, the children. The next day he allowed her to speak to them. She wasn't able to see the children for another two weeks when she drove back to Long Island. Despite getting to Long Island on Friday, she was not allowed to see the children until Sunday. She was given no reason why. Two weeks later she returned and was allowed to spend the weekend with them, in a hotel. She made no attempt to remove the children from New York at that time, or any other time.

In January, Ms. H. inquired of Mr. Y. if the children were enrolled in school and he said no, because he lacked the "necessary paperwork." Two weeks later they still weren't enrolled because he was then staying at his grandmother's house and her address would not allow the children to go into the school district he desired. She then learned from Child S she would be returning to her old school. Ms. H. then contacted the school and told them she had paperwork for the children such as Child S's IEP. She spoke to Ms. D. who she knew from Child J previously attending the school. Ms. H. then mailed all the relevant paperwork to the school.

Mr. Y. would not give her the phone number to his new residence because it was in his mother's name and he wasn't sure he was "allowed" to give it to her. She was told to contact the kids through his cell phone. She asked Mr. Y. for information regarding school but he didn't respond. She would also inquire via email, and sometimes it would take him up to ten days to respond. She contacted the school herself to discuss a CSE meeting for Child S and that she wanted copies of documents regarding the schooling, such as report cards. She wanted to be named as a contact person since she had joint custody.

Ms. H. met Mr. H. in an online chat room in July 2004. Sometime thereafter, they began speaking by phone. In October 2004, she met Mr. H. in person in South Carolina. Child B and Child S were with their father at the time. She saw Mr. H. once every three to five weeks. During this time she described them as "casually dating." In June 2005, their relationship status changed to that of just friends due to his work schedule making it difficult for them to see one another. From June 2005, until December 2005, they were in occasional contact. In December 2005, she moved to her mother's residence in South Carolina, about one hundred and ten miles from Mr. H.'s residence. The relationship between them changed back to dating soon thereafter. They would see one another at her mother's home, or her sister's home, or sometimes she would go to his apartment. Ms. H. was employed in human resources at a nursing agency, and worked as a waitress briefly, but kept losing the jobs because she had to repeatedly return to New York for these proceedings. [*20]

Ms. H. acknowledged being aware of a child support proceeding commenced by Mr. Y. for which she appeared by telephone, but did not appear on one occasion and on that date an order of about one hundred and fifty dollars per week was entered against her. She did not pay according to the order because she was either unemployed or she had to use the money to return to New York for these proceedings. Ms. H. then described her current apartment and indicated that there was a room each for Child S and Child B. When Child B visits, sometimes he sleeps in his room, sometimes he sleeps in Child S's room and sometimes he sleeps in Ms. H.'s room with her. He has difficulty sleeping by himself.

Ms. H. sent the children a web cam so they could see each other over the computer. Mr. Y. only allowed its use three times, then would make excuses why they could not do it anymore. She alleged that she had problems reaching the children when she called. Often she would call and Mr. Y. or Ms. Y. would answer but not speak to her and just hand the phone to one of the children. Other times she would be speaking to the children and hear Mr. Y. or Ms. Y. correct something the children said to her. Other times, in the middle of a conversation with the children, Mr. Y. would take the phone and start discussing something with her in front of the children. On one occasion Child S was telling her mother about a problem she was having with another girl and wanted Ms. H. to speak to the girl's mother. Ms. Y. took the phone from Child S and told Ms. H. she would take care of it and since Ms. H. didn't know the family it was none of her business. Child S was in the background telling Ms. Y. not to yell at her mother. Then Ms. Y. hung up on Ms. H. On another occasion Child B was telling his mother about a hockey game his father had taken him to, and said he was not supposed to tell her but that they got the tickets from "Ms. Adrienne." Mr. Y. then grabbed the phone and changed the subject.

As a form of discipline for the children, Ms. H. will take away privileges, use time-outs, have them write down what they did wrong and occasionally raise her voice. She tries not to raise her voice with Child B because he is very sensitive. There was a time, "years ago," when she would threaten the use of a wooden spoon by shaking the drawer the wooden spoon was in, but she never actually used the spoon.

When Child S was in first grade, Ms. H. sought testing of Child S through the school due to antisocial and aggressive behaviors she exhibited. A neuropsychological evaluation was performed at North Shore Hospital. The school performed an educational and psychological evaluation of Child S as well. As a result of these tests, Child S began receiving services at the school including resource room, extra time to perform class work and tests, extra help in math, speech and language services and in-school therapy. When the parties moved to the Albany area, Child S's new school also provided her with services consistent with her IEP. While in Albany, Child S was prescribed medication for ADHD, bipolar disorder, social anxiety disorder and, possibly, OCD. These diagnoses were made as a result of the North Shore evaluation. Ms. H. would administer the medication. After the children came back to New York with their father, Child S began seeing a Dr. Hertz who prescribed the same medications for her, but she had to learn this information from her attorney. She sought this information from Mr. Y., but he "ignored" her. Ms. H. learned that Dr. Hertz would no longer see her children through an email from him, and learned of the new doctor through her attorney.

Based upon information given to her from Child B's teacher and the school psychologist, Ms. H. believes Child B is in need of more extensive therapy. She believes him to be having significant [*21]trouble in school. In reference to Child B's suicidal ideation incident the previous school year, Ms. H. was contacted by the school psychologist at about 3:00 p.m. She was told the incident happened at 1:00 p.m. She then tried calling Mr. Y. every fifteen minutes and didn't reach him for two hours. When she finally reached him he was at home with Child B. After speaking to Child B she asked Mr. Y. what happened. He told her that she obviously already knew. She asked a lot of questions about what doctor he would take Child B to, when that would happen, and why was he waiting. She did not get answers to her questions. She eventually learned from the school psychologist the next day, that Mr. Y. took Child B to see a psychiatrist that morning.

In March of 2007, Ms. H. learned from the school psychologist that Child B was prescribed Daytrana. She was very upset that she was not consulted and was not informed whether any tests had been performed on Child B to determine whether he actually needed to be on medication. She also had a number of concerns about the effects this medication may have on Child B. She urged Mr. Y. to seek a second opinion. She urged Mr. Y. to take Child B off the Daytrana and he refused.

Ms. H. believes Child B's relationship with his grandmother, Ms. Y., to be strained. This is based upon the butter knife incident and some other more minor incidents. Ms. H. believes that Ms. Y. dotes on Child S. Ms. Y. and Child S do things together, without Child B, such as going to the movies and the city and Ms. Y. buys Child S things like makeup and a cell phone.

A group of pictures previously marked for identification, taken by Ms. H., of the inside of Mr. Y.'s home were entered into evidence. They depict a home in disarray with substantial clutter, particularly in the basement where the clutter seemed to maybe rise to a fire hazard level. Ms. H. testified she gained access to the residence by dropping the children off after a visit and being invited in by the babysitter, and then was shown the children's room by the children themselves.

Ms. H. claimed that Child S said the Avril Lavigne CD was taken away from her and replaced with one minus the curse words after it was mentioned in Court. Child S allegedly questioned her mother why she showed it to the Court; was she trying to get Ms. Y. in trouble? Ms. H. changed the subject.

Regarding the incident where she arrived at the school to pick up the children with an order of custody, she was informed by her lawyer she had been granted custody and was faxed a copy of the order. She went to the school to get the children and then the school called their attorney. Some time later she was informed that a mistake had been made and that parts of that order granting her custody should have been crossed out but were not.

Child S told Ms. H. that she watched two "R" rated movies with her grandmother, one called The Number 23 and one called Pans Labyrinth. While at her home, the children are only allowed a half hour per day on the computer and can only play games rated "G" or "PG". The computer has parental monitoring software and she and Mr. H. monitor them as well. Ms. H. denied smoking, drinking in front of the children or using drugs. In 2006, both Mr. Y. and Ms. H. attended a CSE meeting. She stated Mr. Y. gave her "the finger" so she stuck her tongue out at him. Currently, Ms. H. has to learn information about the children form other sources than Mr. Y. Most of the time he fails to respond to her. In 2006 and 2007 she received no present, card or phone call from the children on Mother's Day or her birthday.

Ms. H. has visited the schools where the children would go, should she be awarded custody. She has spoken to the special education teachers and has joined a support group for parents with bipolar children. She has spoken to doctors and investigated services available to children with [*22]emotional disabilities. She also enrolled in two separate parenting classes.

During cross examination by the father's attorney, Ms. H. confirmed she and Mr. Y. were divorced and that pursuant to the divorce they had joint custody. In May 2005, when she filed her first petition seeking to relocate it was at or near the time of her surgery when Mr. H. was staying with her. She believes Mr. H. accompanied her to the Court when she filed the petition.

Ms. H. acknowledged that, recently, Child B started receiving counseling sessions outside of school once a week. She also agreed that during the school year, he was receiving counseling from Dr. P. at least once a week. She was not aware that a babysitter who watches the children, that Ms. H. expressed concern about, was an education student at Adelphi University. Nor was she aware that the make up kit that Child S brought to South Carolina with her was something she won at a Cub Scout function. Regardless, Ms. H. felt that a ten year old girl (at the time) should not be wearing make up at any time, even during "dress up."

Ms. H. never took the children to be evaluated by any school in South Carolina, but she did sign them up for Medicaid in South Carolina in December 2005. If the Court awarded Mr. Y. physical custody in New York, Ms. H. was uncertain if she would return to New York to live.

During cross examination by the children's attorney, Ms. H. confirmed that Mr. Y. never prevented the IEP from being put in place in either Long Island or Albany. Ms. H. opposed Child B being placed on Daytrana. Since the time Child B went off Daytrana, no one has recommended to her that he be placed on other medication. However, she does not have a general opposition to Child B being on medication. She believes Child S is benefitting from medication.

The Court found Ms. H. to be a confounding witness, with testimony that was compelling at times and clearly untrue at others. Her explanation surrounding the circumstances of her relocation with the children and why she believed she could relocate was simply implausible. The Court is convinced that, as a result of Mr. Y's inconsistent efforts to maintain a relationship with the children at the time, Ms. H. thought if she simply left, Mr. Y. would "let it slide." On the other hand, she very clearly is more attuned to her children's needs and zealously pursues their best interests with doctors and the school. It is through her tenacity that those professionals have responded by aggressively addressing her children's multiple needs, resulting in them getting better treatment and educational services. In the end, her credibility was difficult to assess. She was forthright with those aspects of her case she was comfortable discussing, and either lied or was evasive with those aspects of her case that shed her in a less than favorable light. The Court finds she was minimally credible.

Ms. Carlotti is an investigative probation officer with the Nassau County Probation Department. She had held that position for two years. She came to know the Y/H family when this Court directed the probation department to perform an I & R on November 16, 2006. As part of her investigation she interviewed Mr. Y. and Ms. H. at the Probation Department offices on separate dates. She interviewed Child B and Child S at their home on the same date. She also interviewed Ms. Y., Dr. P. and Child S's teacher. She spoke with Mr. H. over the phone. CPS clearances were performed and were negative for both Mr. Y. and Ms. H. Mr. Y., Ms. H., Ms. Y. and Mr. H. were all fingerprinted and all were found to have no criminal background. At one point Mr. Y. called her and told her about Child B making suicidal comments in school and she directed him to bring Child B for a more comprehensive psychiatric evaluation than the one he had. [*23]

At one point Ms. Carlotti gave the mother's attorney a list of certified home investigators who would be appropriate to investigate Ms. H.'s home. The home study was performed and made a part of her report. Also made part of the report was information contained in a psychological evaluation of Child B performed by his school psychologist. Based upon her investigation, Ms. Carlotti recommended that Ms. H. be awarded custody of the children. She believed the children's psychological and emotional issues were not being met while living with the father.

During cross examination by the father's attorney, Ms. Carlotti testified she performed a home visit on Mr. Y.'s home and found it clean and appropriate. Ms. Carlotti acknowledged neither she, nor her agency, sought out the educational background of the South Carolina home investigator, nor does she know anything about that person's level of experience. She did not seek to confirm information contained in the South Carolina home study such as that there were "excellent" public schools. Ms. Carlotti testified she bases her recommendations on the information she has gathered, but there is no set "methodology" her agency requires her to follow in making such a recommendation. She does not conduct drug or alcohol screenings. She did consider the FCA §251 evaluation that was performed in making her recommendation. Ms. Carlotti acknowledged her opinion that the children's mental health needs were not being met was not based upon information provided to her from either of the children's therapists.

Ms. Carlotti was then cross examined by the children's attorney. She stated that Mr. Y. was the first person she interviewed. She believed everything he had told her but then doubted some of it after interviewing Ms. H. In particular, she believed Ms. H. when she said at the time she relocated she and Mr. Y. had agreed she could do so. Regarding Child B's suicidal comments, Ms. Carlotti spoke to her supervisor who directed her to ask Mr. Y. to get another evaluation of Child B. She recalled that Mr. Y. was reluctant to go for another evaluation because he did not want to miss more time from work. Ms. Carlotti testified that it was an oversight that she did not put in the report the desires of the children regarding which parent each wanted to live with. Each child chose a different parent. Ms. H. told Ms. Carlotti that she believed Child S was being over-medicated. Ms. Carlotti included that in her report but did not question the prescribing doctor about the dosages, nor did she investigate proper dosage amounts herself.

The Court found Ms. Carlotti to be a credible witness and, in fact, commends her for her professionalism, particularly in light of the nature of the cross examination she endured by the father's attorney and her ability to keep her composure. There were disrespectful comments about her use of a "crystal ball." There were comments about her report being an "embarrassment" to the probation department and it being "capricious." There was an accusation made that the Probation Officer assigned by this Court to perform this investigation, was actually working for Ms. H. It is worth nothing that the I & R was consented to by all parties. These were not the only incidences of such conduct during this witness's testimony or other witnesses's testimony. In essence, any witness who disagreed with the father's position was often subject to belittling and disrespect. There were arms flailing when objections were sustained. On more than one occasion, the lawyer laughed out loud when Ms. H. was testifying on direct. The Court would expect such behavior out of a litigant, and was surprised to see it so regularly from an officer of the Court.

To be sure, this Court can discern between an aggressive cross examination and one used to humiliate someone. An aggressive cross may result in humiliation without it necessarily being the purpose of the cross examination. In this case, it appears the intent was often to humiliate. Officer [*24]Carlotti appeared to be a professional who was appointed to perform a job and showed absolutely no signs of bias. She simply disagreed with the father's position, and for that she was not afforded even the slightest courtesy. The Court will not, of course, hold this against the father. The irony being, despite Ms. Carlotti's credibility, her report and recommendation will be given much less weight than the forensic evaluation which recommends the father. Ms. Carlotti's report, while useful to the Court, was somewhat superficial, which is often the nature of I & Rs, when compared to a forensic evaluation.

Dr. P., the school psychologist from C. Lane School was called to testify a second time by the mother, and she was deemed an expert in child psychology, over the father's objection, for the purposes of this testimony. For the school year that began September 2007, Dr. P. saw Child B for counseling sessions, as per his IEP on a weekly basis. She also saw him two to three more times each week to address particular problems he would be having. He would either be brought to her by his teacher, or he would ask to meet with her. During these sessions he often expressed a desire to live with his mother. He has appeared sad and preoccupied. As a result of Child B's behaviors, and the "intensity of his emotions," Dr. P. contacted Child B's private therapist and suggested that his sessions outside of school be increased to weekly sessions. She made the suggestion, via email, on January 17, 2008, and received a response on February 27, 2008, the day before this testimony. She also contacted the children's attorney on January 16, 2008, and both of the parents to discuss these issues. To her knowledge, Child B's sessions outside of school were not increased.

Compared to other students, Child B's needs are "significantly more intense." She sees him more often and has more contact with his family. On January 16, 2008, she called Mr. Y. to express her concerns about Child B regarding his emotional reactions. His crying, his refusal to stay in the classroom and his claims to be ill. Mr. Y. agreed, at that time, to increase Child B's out-of-school therapy sessions. There were two more phone calls expressing the same concerns over the next two weeks and then a face-to-face meeting with Dr. P., Mr. Y., Child B's teacher and the school principal. Again, it was recommended that Child B's counseling outside of school be increased. In terms of answering phone calls or appearing for meetings, Mr. Y. is very responsive.

Dr. P. communicates with Ms. H. weekly via email. When Ms. H. initiates the contact it is often to keep Dr. P. apprised of issues with Child B, such as things he might have said, things that occurred during visits or upcoming court dates. When Dr. P. initiates contact, it is to express concerns about Child B. Ms. H. is also very responsive, and often asks Dr. P. for guidance on how she can assist Child B. There was also one telephone conference and one face-to-face meeting with Ms. H. this school year.

On cross examination by the father's attorney, Dr. P. confirmed that the "crisis" Child B had on January 15, 2008, where he indicated he missed his mother, occurred right after he finished visiting with his mother. Dr. P. stated that Child B's needs are being met in the school setting at this time. She testified that Child B told her he believed it was his decision to make as to which parent he lives with but he did not tell her what lead him to believe that. She stated that such feelings were not uncommon in children who were subjects of child custody disputes. Dr. P. indicated that Child B's outside therapist's communication to her indicated that weekly sessions had begun in mid- February. [*25]

During cross examination by the children's attorney, Dr. P. expressed the opinion that Child B enjoys his sessions with her and that he, at times, enjoys them more than being in class. Her treatment of Child B is not based on a diagnosis, but is based upon his behavior in the school setting. Last year Child B's treating psychologist shared information with Dr. P. This year he does not. Dr. P. believes the school district is meeting Child B's needs.

During redirect, Dr. P. discussed a letter she wrote to Mr. Y. memorializing a discussion she had with him where she told him Child B was in too much distress to be at school and Mr. Y. indicated he could not leave work and his mother was not available to come get him; so he would prefer that Child B remain in school. This upset Child B.

In response to a question from the Court, Dr. P. stated that she was sharing information about Child B with his out-of-school therapist, but the therapist was no longer sharing information with her.

Similar with the first time she testified, the Court found Dr. P. to be a credible witness who was forthright and clear in her answers.

The parties consented to Dr. Yohananoff's curriculum vitae being marked in evidence. During direct examination by the children's attorney, the doctor testified he was Court appointed to perform a forensic evaluation for this custody case. He and his assistant did so, meeting "with each parent a[sic] number of occasions. We conducted psychological testing on each parent and the paternal grandmother. We interviewed each child separately. We did psychological testing on the child[sic], we conduct [sic] the parent children interaction, with each parent and with each child." T. 8/6/07, pp 32-33, lines 21-25, 1-3. In completing his report, Dr. Yohananoff relied upon a combination of the interviews with the parents, children and others and the results of the psychological tests. In describing Ms. H., Dr. Yohananoff testified she was proactive, particularly in dealing with the children's "difficulties" and he viewed this as a positive trait. On the other hand, she tended to act too impulsively, which was a negative. He found this to be a longstanding pattern in her life. As examples he referred to an instance where she stuck her tongue out at Mr. Y. during a meeting and her two marriages. While observing Ms. H. interact with the children, he believed she "managed" Child S well, but noted that Child S described her mother as "excessively harsh" at times. The doctor never got the opportunity to speak with Ms. H.'s current husband.

Regarding Mr. Y., the doctor believed he "presented with a set of kind of complimentary traits to [Ms. H.] in the sense that where [Ms. H.] is the more proactive parent, he impressed me as being somewhat more passive. On the other hand, he didn't have an issue like temper like [Ms. H.] seemed to have." T. 8/6/07, p. 43, lines 8-14. His mellow demeanor resulted in him being less likely to "micro manage" the children while giving them more space and freedom.

Dr. Yohananoff also evaluated Ms.Y., Mr. Y.'s mother, with whom he and the children reside. He described her as "strong-willed" but having some difficulty engaging with Child S. However, the doctor felt that Ms. Y. also complemented Mr. Y. well by being more proactive and helping Mr. Y. "take some action" on behalf of the children, should that be required.

Testing was performed primarily on Child S, as Child B was too young. During the [*26]interview, she was very uncomfortable, which the doctor felt was understandable. She had a clear preference of which parent she would choose to live with, but didn't want to share it with him. She came across as "very stiff, very anxious...somewhat awkward..." T. 8/6/07, page 47, lines 6-8. Child B was more comfortable with the interview process, but due to his age he was less able to express opinions regarding living with either one of his parents.

Dr. Yohananoff observed the interactions between the parents and children by watching behind a one way mirror. Child S was more comfortable with her mother than with her father. When with the father, Child S played alone while Mr. Y. played with Child B. Child B appeared at ease with both of his parents.

Dr. Yohananoff did not believe the children should be separated. Should the Court grant Ms. H. custody, Dr. Yohananoff indicated her animosity toward Mr. Y. would be of significant concern. She would be less likely to foster a relationship between the children and their father, in his opinion. Also of great concern to Dr. Yohananoff regarding the mother was her statement, to him, that under no circumstances would she move back to New York, even if that would assist her in getting custody of the children. This appeared to be the mother putting her own needs before those of the children.

In comparison, the father seemed to be less angry with the mother and would therefore be able to better foster a healthy bond between the children and their mother. Mr. Y. also indicated to the doctor that should Ms. H. be awarded custody, he would relocate to South Carolina. Dr. Yohananoff noted this statement was possibly "self-serving."

Dr. Yohananoff believed that each parent had different positive attributes. He did not state a direct endorsement of either parent, but stated "...the fact that the children lived for a while with the dad, that's very important because the children had a difficult adjustment moving back to Long Island and why put them through it one more time if you don't have to." T. 8/6/07, page 52, lines 10-15.

On cross examination by the father's attorney, Dr. Yohananoff made a more direct statement that the father should have custody. The doctor discussed incidents reported by the children where the mother would use a wooden spoon to instill fear in them as a means of discipline. He believed it to be a counterproductive parenting technique. Child B was aware of the divorce proceedings and the mother was the source of his information. This was seen as problematic in that children should be shielded from such things. The doctor reiterated his concern that Ms. H. may place her own needs before the children's whereas Mr. Y. gave no indication of doing so. Dr. Yohananoff did administer a test to determine substance abuse in Mr. Y., but his responses were "defended" and therefore not useable. If Ms. H. moved to South Carolina to be closer to her new husband, that would be another circumstance of her placing her own needs before the children's. Many questions were asked of the doctor underscoring the fact that Mr. H., the mother's new husband, was never made available to him to be part of the report, and how the doctor would be unlikely to recommend custody of children to a parent who was living with an adult he had not evaluated.

During cross examination by the mother's attorney, the doctor testified that, at the time of his testimony, his report was about one year old. There were no updates. Regarding Ms. Y., the children did not seem comfortable with her, and Child S was particularly withdrawn. Another area of concern was an incident where while Ms. Y. was disciplining Child S, Child B raised some kind of knife in defense of his sister. On one of the psychological tests, Ms. H. performed a little better than Mr. Y. Mr. Y.'s passive nature could cause some concern in his ability to discipline the children [*27]and set limits. Mr. Y. was better able to accept some responsibility for the failed marriage with Ms. H., while Ms. H. had difficulty doing so. Mr. Y. was able to point to positive attributes in Ms. H. as a parent. Ms. H. was unable to do the same for Mr. Y.

On redirect by the children's attorney, Dr. Yohananoff indicated he spoke to Child S's therapist by phone, but when he tried to talk to Child S about her therapy she would not discuss it.

Dr. Yohananoff's testimony was credible and useful to the Court. His report, which was entered in evidence, was thorough, informative and full of useful insights. While he was mostly evenhanded in describing the positives and negatives of each parent, he clearly felt the father should be awarded custody. It appeared to the Court that his recommendation of the father had as much to do with avoiding relocating the children again as any other factor.

During cross examination by the father's attorney, the witness described the program more fully. At first, the children get time for "free play," then there is a snack or outside playing, then an hour for homework. There is also arts and crafts and active play, such as volleyball if the weather permits. She has a particular affection for Child B and shares an interest in science with him. She met Ms. H. once in person, on the day of her testimony, and spoke to her once over the phone. The program has an emergency list of people who may pick up the children from the program, and included on the list are Ms. Y. and an aunt or uncle. Neither Ms. H. nor her son Child J are on the list. Ms. H. wanted her son Child J added to the list but that never happened. Nor was Ms. H. ever added to the list.The list had no contact information for Ms. H. As a result of a letter the witness believed Child S wrote as to why her "life sucked," Ms. A. became concerned, particularly with two allegations of physical abuse by the mother. While Ms. A. is a mandated reporter of child abuse, she made no such report but she did give the letter to the school psychologist.

Child S has many friends in the program and, like Child B, is artistic. She has been teaching other students origami. She is often involved in creating plays for the group, including writing them.

During cross examination by the mother's attorney, Ms. A. recounted an incident where, during an outing with the program, Child S encountered her brother Child J. It occurred at a local pizza place and after the group of children entered, Child J started to talk to Child S. Adults with the program asked him to stop, and after he explained he was her brother they still asked him to leave since they didn't know she had an older brother. Child J then bought her an Italian ice and they again asked him to leave her alone, but did allow her to have the Italian ice. Child J then left with some other young men.

Ms. A was a credible witness but the Court found only a very small portion of her testimony to be relevant to these proceedings.

The subject children were interviewed in camera on two occasions, once on June 5, 2007 and once on February 28, 2008. The children were much more expressive in the first in camera than in the second one. The Court does not believe either parent imposed any pressure or coached the children for either interview. The children each want to live with a different parent, though they love both of their parents, and each other, very much. The Court never considered splitting them up, despite their wishes.

There were two forensic evaluations performed in this case. The one performed by Dr. Yohananoff, who testified in these proceedings, was more complete in that he was able to interview and evaluate the children and all the adults involved, except for Mr. H. The second evaluation performed by David Gavurin, MSW, dealt solely with Mr. H.

Dr. Yohananoff's report was thorough, informative and very well done. Based upon

his evaluations, he felt the father, Mr. Y., should retain physical custody and the parties should share joint legal custody.

While the children seemed to interact more comfortably and freely with their mother, Dr. Yohananoff felt that, among other factors, uprooting the children again would be detrimental to them, particularly considering their psychological and emotional issues and needs. He felt the mother should have substantial parenting time and that the parents would benefit from the PEACE program, family therapy and a parent coordinator.

The biggest problem with Dr. Yohananoff's report has nothing to do with Dr. Yohananoff or the work he did. The testimony of almost all the adults, and certainly of all of the major players (the parents and paternal grandmother) significantly contradicted that which Dr. Yohananoff reported they told him. The Court must conclude these witnesses either lied to Dr. Yohananoff, undermining the effectiveness of his report, or they lied while testifying, putting this Court in a position to make this very important decision in their lives based upon false information. It is an unresolvable quandary leaving the Court to afford less weight to both his report and to the testimony than it would prefer.

Mr. Gavurin's report was, essentially, an oral history of Mr. H.'s life. Mr. Gavurin concludes that Mr. H.'s two previous failed marriages and his failure to maintain relationships with his children from each of those relationships, "does not bode well" for his relationship with Ms. H. and his ability to be an effective stepfather to the subject children. The Court, however, is not willing to take that leap. Neither Mr. H.'s testimony, nor Mr. Gavurin's report, delved deeply enough into Mr. H.'s past relationships to adequately determine whether the failures were solely his fault, more his fault than not, or minimally his fault. For example, his first ex-wife relocated with his daughter and there was no explanation of what the circumstances of this relocation were. Mr. H. eventually allowed his daughter's stepfather to adopt her, which he admits caused him pain, but was also something she wished to have occur. Depending upon the context, which we do not have, this could either be seen as a man shirking his responsibility or someone doing a selfless but painful act.

This Court was impressed with Mr. H. as a person and, despite efforts to prove otherwise, found nothing negative regarding his involvement with Ms. H. or the children. The Court also found Mr. H. to be very credible. All information indicates the children like him, are comfortable with him [*29]and that he is appropriate, caring and gentle with them. He also seems to understand very well what his role is with them (better than Ms. Y.), in that he defers to Ms. H. unless she is not available. Mr. H. is a hard working man in the field of nursing, a field whose goal is to help other people. The Court believes Mr. H. will be a positive influence on these children's lives.

This case is one of many ironies. The first being that these two parents seem to be perfect foils for one another, in terms of parenting. While Mr. Y. is only reactive in considering his children's needs, Ms. H. is aggressively proactive which has benefitted the children greatly. On the other hand, while Ms. H. may be prone to overreacting and use harsh tactics when she reacts without reflecting first, Mr. Y. has a more laid back and patient demeanor which may suit these two special-needs children better. There are number of other examples like this where these two parents seem to be fitted puzzle pieces when it comes to parenting these two children. It is for this reason that the Court urges the parties to adopt Dr. Yohananoff's recommendation of the PEACE program and family therapy (not necessarily jointly with one another) to learn how to better deal with, and communicate with, each other as parents.

Another irony is that this Court believes Ms. H.'s botched attempt at relocation turned Mr. Y. into a much better father. Prior to the relocation, Mr. Y. was, at best, partially involved in his children's lives. He did not pay child support and did not seem to put much emphasis on working or parenting. As a result of fighting for the return of his children, and being successful, Mr. Y. was faced for the first time with all the responsibilities an involved parent faces, such as dealing with school officials regularly and working at a less than enjoyable job because you know the children need that paycheck to meet their needs.

Each party in this case pointed out how the other party, at some point, failed to pay child support. This Court believes each of these parents should be ashamed of themselves for this conduct and urges it to stop now. The Court believes the father's failure to pay child support while the parties were living in Albany directly contributed to the mother's inability to support the children and placed undue pressure on Ms. H., leading her to believe she needed to relocate to be closer to her mother and sister to seek their assistance. While the Court does not believe the description of why she believed she was allowed to move, the Court absolutely believes the reasons she wanted to move were largely financial in nature. For that reason, Mr. Y. bears a great deal of the responsibility for these proceedings having to occur at all. However, Ms. H. has failed to pay child support too, and the Court is confounded at how she could allow that to happen. If anyone knows first hand the detrimental effects of not receiving child support, it is Ms. H. It seems because of the experience she went through, she would see to it that the children would receive financial support from her, even if she disagreed with their living arrangements. Ms. H., during her case, tried to show how much nicer the children's living arrangements would be if they were allowed to live with her. But perhaps the father would be able to afford "nicer" accommodations for the children had she helped to support them. In this regard, both these parents failed their children.

In essence, this is a relocation case. While it is different from most in that custody was actually changed to the non-relocating parent prior to the fact finding but after a hearing, the analysis is the same. The issue of relocation is to be considered depending upon the facts of the particular case and what is in the best interests of the children. Tropea v. Tropea, 87 NY2d 727 (1996). In [*30]determining whether to allow a relocation, the Court must consider a number of factors including, but not limited to, the reasons in favor of and against the relocation, the quality of the relationships between the children and the custodial and non-custodial parents, the impact the move would have on the relationship and future contacts with the non-custodial parent, the extent to which the children's and custodial parent's financial, emotional and educational needs will be enhanced by the move, and the feasability of preserving a relationship between the children and the non-custodial parent should the move be allowed. Id. The Court must determine, based upon these and other factors, whether it has been established by a preponderance of the evidence that the relocation would be in the children's best interests. Id.

The reasons given by the mother in favor of the relocation were largely financial. She testified, at length, that a number of factors led her to relocate. These factors included losing her job, not getting child support from the father and being refused unemployment and public assistance. But no evidence was offered as to why she would have better luck finding employment in South Carolina. Indeed, she did not have a job waiting for her in South Carolina at the time of her move. Mehaffy v. Mehaffy, 23 AD3d 935, 937 (3d Dept. 2005), Zammit v. Novellino, 30 AD3d 534 ( 2d Dept. 2006). On the other hand, Ms. H. did have family support in South Carolina, where her mother and sister both reside. While it was never clearly spelled out, and none of Ms. H.'s family members (aside from her husband) testified in this trial, Ms. H. testified these family members were available for financial and emotional support for the her and the children. Aziz v. Aziz, 8 AD3d 596 (2d Dept. 2004). The two aspects of this factor seem to cancel each other out herein and thus this factor does not assist the Court in its analysis.

Similarly, the consideration of the effect upon the children's relationship with the non-custodial parent should the move be allowed is not helpful either. The father has indicated that if the mother is awarded custody, he will likely relocate to be nearer to them. On the other hand, the mother has already established a significant and meaningful "long distance" relationship with the children which would only likely be enhanced with greater parenting periods if the father is awarded custody. Accordingly, the Court does not believe allowing, or disallowing, the relocation would affect the current relationships with either parent substantially.

There was some testimony that the mother's financial and emotional needs would be met by the move and those needs would largely be met by Mr. H. Throughout these proceedings, the mother has had problems keeping a job (though she blames frequent trips to New York for litigation as the reason) and left New York due to financial straits. While the Court was very impressed with Mr. H., the Court must remain cognizant of the fact that he has no obligation to support the children, while the mother has testified to having trouble doing so in the past.

One issue of paramount importance to this Court in this case is the stability of these two children, something they have not had much of in their young lives. Stability is presumed to be in the children's best interests. Armstrong v. Crout, 33 AD3d 1079 (3d Dept. 2006), Matter of Green v. Perry, 18 AD3d 923 (3d Dept. 2005), Moorehead v. Moorehead, 197 AD2d 517 (2d Dept. 1993). The current stability in the children's lives has been a product of these prolonged court proceedings, which have been ongoing for over two and one-half years, allowing them to remain in their current school district. Each parent in this case called as witnesses a number of teachers and school personnel in an attempt to persuade the Court that each parent was more involved, or better involved, with the school than the other. Through those witnesses it became clear that the schools themselves [*31]were providing a great deal of stability to these children. This Court was repeatedly impressed with the school witnesses, not based upon their perceptions of each parent, but based upon the excellent job they are doing with the subject children. These children have an array of educational, social and emotional deficiencies and needs that the school district is excelling at addressing. This Court needed to be presented with some impressive credentials of South Carolina schools to consider moving these children from their current school, but that never occurred.

The mother's testimony was too brief on the issue of the South Carolina schools and what they could offer these children. It is clear she did some research, but based upon the evidence presented about the Carle Place School District, the information she provided was simply too superficial. The Court does not believe the children's educational needs would be enhanced by the move. Tropea v. Tropea, supra.

Further, the children's emotional needs are currently being met through the network of school psychologists and private mental health professionals in their lives. With the proper prodding from the school, the mother and the mental health professionals, the father manages to stay on top of these needs.

Therefore, the Court finds Ms. H. has failed to prove, by a preponderance of the evidence, weighing the Tropea factors, that the Court should allow the children to relocate. However, there are other best interest factors to consider.

As is common in most custody cases, the bulk of the testimony in this case concerned one parent pointing out the deficiencies of the other parent. Each parent herein is certainly guilty of problematic behavior. The mother had her botched relocation and failure to pay child support. After obtaining temporary custody, the father's behavior was more subtle and specifically intended to undermine the mother. For example, when the father drove to South Carolina to pick up the children in December of 2005, his intent seemed more pointed toward landing him a spot on the television show COPS. The Court is at a loss why the father felt compelled to bring law enforcement with him, as well as his mother, and remove the children from their aunt's house in a manner that was certain to frighten them and embarrass the mother. When the father went to the maternal grandmother's house and then called the mother to ask where she was, there was absolutely no reason why he could not tell her, at that moment, that he had an Order and was taking the children. She then could have prepared them and herself, and the father would not have needed to use his Wild West tactics. Also, the mother freely told him where she was and did not hide the children from being taken. The mother had done nothing to indicate she would try to abscond with the children. While she did relocate without permission, she did so by telling the father exactly where she was going, and providing him with addresses and phone numbers.

More recently, at the end of a visit with the mother, the children returned to their father's home to find a poster of the father and his family crying due to how much they missed the children. This put the children in a position of having to feel guilty about spending and enjoying time with their mother, because it upset their father and made him cry. The Court finds such troubling and the Court must hope that these actions were the result of thoughtlessness and not malice.

Even the paternal grandmother, someone who plays a significant role in these children's lives, needs to check her own behavior. While the sacrifices she has made, and continues to make, on behalf of the children is laudable, she is not their mother and must learn to defer to and cooperate with Ms. H.. She must also try harder to foster a healthy and loving relationship with Child B.[*32]That the paternal grandmother could tell the mother that an issue regarding her children is "none of her business" is an example of unparalleled gall and not the first instance of such.

This discussion about the parents' behavior is relevant because this Court must also weigh, among all the other factors, which one of the parents is more likely to promote a positive relationship with the other parent. To do so, a parent must place the children's needs before his or her own. Lohmiller v. Lohmiller, 140 AD2d 497 (2d Dept. 1998), James Joseph M. v. Rosana R., 32 AD3d 725 (1st Dept., 2006). The issue of placing the children's needs first was addressed in the forensic evaluation of Dr. Yohananoff, as well as in his testimony. Ms. H. appears to have a more significant problem doing so. Of greatest concern to this Court is her statement to Dr. Yohananoff that she would not relocate back to New York if it meant regaining custody of the children. Even during her testimony before this Court, when asked that question, all she could say was "maybe." The father, on the other hand, indicated that if the children were allowed to relocate, he would move to be closer to them. As Dr. Yohananoff pointed out, this statement was self-serving and could well have been the product of attorney preparation, but the Court does put some stock in what he said.

Another distinction is that Ms. H. still holds a great deal of animosity toward Mr. Y. During the forensic evaluation, when asked to describe Mr. Y.'s positive attributes as a parent, she said he did not have any. When asked to point out his deficiencies, she said there were too many to list. The Court is not certain if these answers were meant to be flip, funny or truthful, but in any regard, they were troubling. To assert she could not come up with one positive attribute of Mr. Y. as a parent was an indication to this Court of an animosity she simply cannot get over, and the Court is not certain she can keep such contempt from the children.

Mr. Y.'s attitude toward Ms. H. seems to be one of arrogant tolerance. He clearly sees himself in the right on all the issues and at times regards Ms. H. as a hindrance rather than as a co-parent. Just a couple examples of such were when Mr. Y. enrolled Child B in summer camp without discussing such with Ms. H.; and when he failed to foster calls or cards for Mother's day or her birthday in 2006 and 2007. Also, the father, on numerous occasions, failed to keep the mother properly informed about issues with the children, such as Child B's suicidal ideation incident. However, even when taking such into account, it seems that Mr. Y. is willing to work at it, if only to keep custody of the children. The Court would prefer if his motivation was to become a better parent, but, in the end, as long as he works at it the children will benefit.

The Court has also viewed the evidence in this case from the perspective of a modification petition, since both parents are, essentially, seeking a modification of the divorce decree. "The hearing court may order a change in custody if the totality of the circumstances warrants a modification in the best interests of the child." Ganzenmuller v. Rivera, 40 AD3d 756, 757 (2d Dept. 2007), citing Friederwitzer v. Friederwitzer, 55 NY2d 89, 95, 447 N.Y.S.2d 893, 432 N.E.2d 765; Matter of Brian S. v. Stephanie P., 34 AD3d 685 (2d Dept. 2006). In this case, the totality of the circumstances includes the mother's unauthorized relocation, her refusal to put the children's needs ahead of her own, the children's stability as well as their emotional and educational needs.

Though each child expressed a preference for a different parent, the Court never considered splitting the children and does not believe it would be in their best interests to do so. Their wishes are one factor to be considered, but are not determinative. West v. Turner, 38 AD3d 673 (2d Dept. 2007). The Court must weigh the age and maturity level of the children when considering their wishes. Eshbach v. Eshbach, supra. The Court finds that neither child in this case is old enough, nor [*33]mature enough, for his or her wishes to be afforded great weight.

Absent the relocation, the Court would have granted sole custody to the mother, as she seemed to have a much better grasp of the children's medical and educational needs. The Court found Mr. Y. lacked basic knowledge of his children's education and medical needs and history prior to and including the latest move to Long Island. The Court found this distressing. Also, for an extended period of time Child S was not doing her homework. Such does not foster educational success.

However, with Ms. H. living in South Carolina, the Court does not believe it can grant such. Accordingly, should the mother return to the State of New York, within a thirty mile radius of the father's current residence (but preferably in the same school district) by January 1, 2009, the mother shall be granted sole physical and legal custody of both children. Until that time, the current status of the father having residential custody and parties sharing joint legal custody shall remain in effect and the father is ordered to adhere to joint legal custody in its entirety. The mother shall notify the father, in writing, by November 1, 2008, of her intent to move back to New York and assume custody of the children. This provision is intended to secure a smooth transition back to the mother. The mother will be required to meaningfully consult with the father on all major educational, medical and mental health issues with an intent to arise at a joint decision. If no joint decision can be arrived at, the mother shall have final decision making power. The father shall have parenting time on alternate weekends and at least one night during the week for dinner. The father shall be entitled to four consecutive or non-consecutive weeks of the children's summer vacation. If the father chooses consecutive, the mother shall receive two weekend visits with the children during that time, unless the father takes the children away on vacation. The father shall inform the mother in writing no later than April 1st of each year which four weeks he is choosing. The mother shall be entitled to have two uninterrupted weeks vacation with the children during their summers off from school, either consecutive or non-consecutive, subject to father's choice of his four weeks. Should the father fail to inform the mother in writing prior to April 1st, he will not forfeit the vacation, but his dates will be subject to the mother's schedule. The parties will alternate all other major and school holidays.

Should the mother choose not to relocate back to New York within a thirty mile radius of the father's current residence, the father shall have residential custody of the children, with the parties having joint legal custody. However, should the parties be unable to arrive at a joint decision over the issues of welfare, education, medical or mental health, the mother shall have final decision making power over those issues, except in emergency situations. The father shall have final decision making power over daily welfare and day-to-day decisions. The mother shall be entitled to one weekend each month with the children in South Carolina and she shall absorb the transportation costs. In any month where there is a three-day weekend holiday, such as Martin Luther King Day or Memorial Day, that weekend shall be her weekend that month. The mother shall have six consecutive weeks summer vacation with the children, commencing one week after the last day of school. The parties shall alternate Christmas with the father having Christmas in even years and mother having it in odd years. When the father has Christmas with the children he shall have them for the entire Christmas break and the mother shall then have the winter and the spring breaks that follow. When the mother has Christmas, she shall have the entire Christmas break, the father will then have the following winter break and the mother shall have the spring break, so that the mother [*34]has the spring break each year. In any month that the mother has the children for a week or longer, that week shall supercede her monthly weekend visitation.

The following provisions control regardless of which parent has physical custody: Each parent is entitled to nightly phone contact with the children when the children are with the other parent (the parent with whom the children are with shall be responsible for initiating such contact). The mother shall have Mother's Day each year and the Father shall have Father's Day each year. If the parties both live in New York, then the children shall spend the mother's birthday with the mother and the father's birthday with the father. If the parties both live in New York, each parent shall be entitled to time with the children on the children's respective birthdays. Whichever parent would not have the children on their birthdays as a result of this schedule will get two hours with the children on each child's birthday if the birthday falls midweek, and three hours if it falls on a weekend. If the mother is living in South Carolina and either her birthday or a child's birthday falls on a weekend, she may exercise her monthly weekend visit that weekend. If the mother is living in South Carolina, she may visit with the children in New York on any weekend she is in New York with two weeks written advanced notice to the father. Should any such visit coincide with a child's birthday or the father's birthday, the father shall still be entitled to see the children on those days for three hours.

Neither parent shall speak negatively about the other to the children, nor shall they do so in the children's presence. Each parent will ensure that no other person speaks negatively of the other parent to the children. The Court will view a violation of this provision very seriously.

If the mother lives in South Carolina, the father shall have physical possession of the children's passports if they exist. If the mother moves to New York, she shall have physical possession of the passports. Should either parent travel with the children outside the state of their residence, two weeks prior to such, they must provide the other parent with the address of where he or she will be staying with the children and phone numbers to be used only in the case of emergency. Each parent may travel internationally with the children, but the traveling parent must give a minimum of one month notice to the other, in writing, of any such travel.

There shall be any other parenting time as is agreed upon by the parties.

The decision in this case deviates, depending upon the circumstances, from the recommendations of the forensic evaluator and the children's attorney. Where there is a forensic evaluation and a recommendation by a child's attorney, the recommendations contained therein are not determinative, but are to be afforded some weight. Young v. Young, 212 AD2d 114 (2d Dept. 1995). The reason for the potential deviation from the forensic evaluator's recommendation involves different priorities, as well as the credibility and demeanor of witnesses during the hearing. This Court believes the mother's proactive approach to dealing with her children's difficulties must be given more weight than the issues Dr. Yohananoff stressed, such as the animosity of Ms. H. toward Mr. Y. These children need an advocate to be on top of their ever-changing educational and mental health needs, and the mother is much more adept at doing so. The father needs to be prodded to do the minimum in this regard. As the children's attorney also strongly favored the father, the Court's reasoning is the same. The Court's priority is to give the children the benefit of and attempt to accentuate the dominant parenting skills of each parent, not to punish the mother for her relocation or favor the father because he is more agreeable.

Therefore, based on the foregoing, it is [*35]

ORDERED that Ms. H. shall have residential and sole legal custody of the children CHILD B AND CHILD S if she moves back to New York, within a thirty mile radius of the father's current residence, by January 1, 2009; and it is further

ORDERED that if the mother does not relocate to New York, Mr. Y. shall have

residential custody of the children and the parties shall share joint legal custody, as described in this decision; and it is

ORDERED that parenting time shall occur as described in this decision.

This constitutes the Decision and Order of the Court;

ENTER

________________________________

HON. CONRAD D. SINGER

Judge of the Family Court

Dated: June 23, 2008