By cross custody petitions dated January 29, 2007 and June 15, 2007, respectively, Petitioner Father and Respondent Mother seek sole custody of their ten year old son Brandon (DOB 4/5/98). Both parents recognize that the joint custodial arrangement agreed to in a Final Order of Joint Custody dated May 21, 2002 is no longer in Brandon's best interest given the sharp animosity between them and their long history of litigation in this Court. After a lengthy trial, and for the detailed reasons set forth below, Petitioner Father is granted sole custody of Brandon. [*2]

Petitioner Father and Respondent Mother were married in 1997. They were separated in 2001 and divorced in 2005. On September 7, 2001, the parties consented to a Final Order of Sole Custody of Brandon to mother with visitation and joint decision making to father.

By Order dated May 21, 2002 (the "May 2002" Order), the parties changed the custodial arrangement to joint custody with physical residence to mother. The May 2002 Order, provides, among other things, for joint decision making regarding religion, education and non emergency medical care issues affecting Brandon and that Mother will make the final decision in the event that the parties do not agree on any of these issues. The Order sets forth a specific visitation arrangement whereby Brandon resides with Petitioner Father every Sunday from 10:00 a.m. until Wednesday at 5:00p.m. with pick up and drop off at the police precinct closest to each parent's home. Holidays are alternated under this Order. Each parent has a total of four weeks vacation with Brandon, two of which are during the summer months.

On November 1, 2002, Father filed a Violation/Modification Petition that was dismissed because of the pending divorce. On July 9, 2004, Respondent Mother filed a Family Offense proceeding and was awarded a Final Order of Protection against Petitioner Father (Porzio, J.). There were no written factual findings available to this Court for review. On March 23, 2005, Father filed a Visitation Violation Petition which was dismissed for failure to prosecute. On July 25, 2005, Mother filed a Visitation Violation/Modification Petition. On August 23, 2005, Father filed a Visitation Modification Petition.

By Order dated September 8, 2005, the visitation set forth in the May 2002 Order was modified with respect to the pick up and drop off of Brandon and Father's days were switched to Wednesday through Sunday. Specifically, it was then agreed that Petitioner Father would pick up Brandon from school on Wednesday at 3:00 p.m. and Petitioner Father's long time companion, Ms. C., could drop him off at 9:00 a.m. on Sunday at mothers' church. Because Brandon's school attendance was an issue, the parties agreed that if there was no school, then Brandon was to be picked up at 3:00 at the 122 Police Precinct. On consent, all communication between the parties was ordered to be by e-mail absent emergencies.

Four days later, on September 12, 2005, Father filed a Visitation Modification Petition that was dismissed on October 21, 2005 for failure to prosecute. On November 6, 2006, Mother filed a Visitation Violation Petition. On December 1, 2006, Father filed a Visitation Violation Petition. On December 11, 2006, Mother filed a Petition for Enforcement of an Order of Visitation. On December 17, 2007, Father filed a Visitation Violation Petition. On January 17, 2007, Father withdrew his Violation Petition. On January 24, 2007,Mother filed a Petition for Enforcement of an Order of Visitation. On May 7, 2007, the Court issued an Order modifying the September 2005 Order to provide for Brandon to be dropped off on Sundays at 8:00 at the 122 Precinct instead of at Mothers' church. On January 29, 2007, Father filed a Petition for sole custody. On June 15, 2007, Mother filed a Petition for sole custody. [*3]

b. This Trial.

The parties' cross Custody Petitions were tried before this Court on November 16, 2007, January 16, 2008, April 15, 2008, May 13, 2008, June 13, 2008, July 8, 2008, and July 16, 2008. The trial was protracted due to various adjournment requests sought by both sides. A forensic evaluation of the parties and Brandon was performed by Dr. B., P.H.D., pursuant to this Court's Order dated May 7, 2007. On application of the Law Guardian and Respondent Mother, and with consent of Petitioner Father, the Court held an in camera interview with Brandon.

At trial, Petitioner Father testified on his own behalf and called Dr. B., as a witness. Petitioner Father admitted the following documents into evidence: Brandon's school records from 2003-2008school years (Petitioner's 1); Dr. B's forensic evaluation report dated 10/31/07 (Petitioner's 2); and ACS report dated 9/24/07 (Petitioner's 3). Respondent Mother testified on her own behalf and called her mother Ms. Rose G., as a witness. Respondent Mother admitted the following document into evidence: a settlement letter dated 5/7/07 (Respondent's A). On consent of all parties, the Court took Judicial Notice of all prior Final Orders entered between these parties in any prior Family Court and Supreme Court matrimonial litigation between them and all pending Temporary Orders of this Court entered while these custody petitions were pending.

While the cross custody petitions were pending, additional visitation violation and modification petitions were filed by each party alleging violations of various aspects of the temporary visitation orders entered in this case. All of these Petitions were settled, mooted or otherwise withdrawn by the start of this trial. This Court heard summations by all counsel and reserved decision on July 16, 2008.

c. The Family Offense Proceeding On Behalf of Brandon.

Two days later, on July 18, 2008, Petitioner Father filed a Family Offense proceeding on behalf of Brandon against Respondent Mother. In that Petition, Father alleges that, after summations were heard in this case, Respondent Mother angrily confronted the child for lying to this Court and his attorney about his mother having hit him in the past. It is further alleged that, during this altercation, Respondent Mother forcibly squeezed Brandon's face leaving bruising still visible the following day. This Court issued a Temporary Order of Protection on behalf of Brandon and suspended Mother's visitation pending an ACS investigation. On July 21, 2008, Respondent Mother filed a Violation/Modification Petition seeking to have her visits reinstated.

On July 30, 2008,ACS submitted a written report after investigation. In that report, ACS states that the child confirmed the altercation between him and his mother after the last Court appearance in the custody trial. On application of Brandon's attorney, this Court issued a Temporary Order for Mother to have supervised visits pending further Court Order. The Family Offense proceeding on behalf of this child will be tried before this Court on September 19, 2008.

Findings of Fact

[*4]After considering the testimony of the witnesses herein and assessing their demeanor, this Court credits Petitioner Father's testimony at trial. The Court does not credit the testimony of Respondent Mother on the subjects most pertinent to this modification determination. The Court credits the maternal grandmother's testimony only to the extent that she acknowledges ill will toward Petitioner Father. The Court credits Dr. B's testimony and has carefully considered his report and the recommendations contained therein.

A. Petitioner Father's Testimony.

Petitioner Father credibly testified that Brandon is his only child. Petitioner owns a two story home where he resides with his companion of fouryears, Ms. C., and Brandon on Wednesday through Sunday. Brandon has his own room. There was no evidence presented to suggest that Petitioner Father's home is not safe and appropriate for this child. Respondent Mother claimed that Father has pornography on the kitchen computer visible to Brandon when he visits. However, Father credibly denied these allegations and his position on this subject is supported by the in camera examination.

Petitioner Father has been employed full time as a corrections officer for the past eighteen years. He works four days with two days off per week. His many years on the job make it possible for him to pick days off consistent with Brandon's visitation schedule. Petitioner Father intends to retire as soon as he is eligible to do so.

When he is off from work, Petitioner Father is the primary caretaker for Brandon. He assists Brandon with his homework, takes him to school and to his doctor appointments, and attends all parent teacher conferences. When he is not home, his long time companion, Ms. C., cares for Brandon. No credible evidencewas presented at trial to suggest that Ms. C. is not an appropriate caretaker for Brandon. Brandon enjoys the time he spends with her.

On the subject of why Petitioner Father has filed so many Petitions in this Court with respect to Brandon, Petitioner Father credibly testified that Respondent Mother has consistently interfered with his visitation rights. As detailed more fully later in this decision, Petitioner Father credibly testified that, for example, on numerous occasions, when Petitioner Father went to pick up Brandon from school to begin his Wednesday through Sunday visitation, Respondent Mother deliberately kept Brandon out of school. In addition, although the May 2002 Order provides for Petitioner Father to have four weeks vacation with Brandon each year, much of that vacation has not occurred over the past few years because Respondent Mother denied the weeks Father requested or deliberately designated those weeks as necessary for her own vacation time with Brandon. Indeed, the majority of Petitioner Father's vacation time with Brandon had to be secured by Court Order. (See, e.g., July 26, 2007 Order designating father's vacation time and ordering that Brandon be brought to Court to secure same).

Similarly, although the May 2002 Order expressly grants Petitioner Father daily phone contact with Brandon, little phone contact has occurred for the last three years because of Respondent Mother's interference. Brandon has told his father that he hides in his room and sneaks to call him when he is at his mother's house. To the contrary, when Brandon is with his [*5]father, Brandon is encouraged to call his mother.

Petitioner Father credibly testified that, notwithstanding the years of litigation between them, he is not angry with Respondent Mother. He simply wants to pursue a relationship with his son without Respondent's Mother's incessant interference and non compliance with court orders entered to preserve this relationship.

B. Respondent Mother's Testimony.

Respondent Mother has been married twice. Her first marriage was to Mr. David D. who is deceased. Her household consists of two children from her first marriage Alexander (19) and Kelly Ann (15) and Brandon from Sunday to Wednesday. Respondent Mother admits that while living with her, Alexander didn't graduate high school due to his failure to attend school regularly. Respondent Mother currently resides in a home that she owns. Prior to moving into this home in November 2006, Respondent Mother lived in two apartments on Staten Island. Respondent Mother testified that Brandon has a good relationship with his half siblings.

Respondent Mother testified that she suffers from depression and anxiety and takes prescribed medications for these conditions. She has been in therapy for the past ten years. She does not work outside the home. Rather, she supports herself with child support payments made by Petitioner Father for Brandon and social security benefits from her first husband.

Respondent Mother testified she and Petitioner Father do not speak to each other. Respondent Mother claimed she feels intimidated and harassed by Petitioner Father and particularly, by his constant filing of Violation Petitions against her. She denies having ever spoken poorly of Petitioner Father in the presence of Brandon, a statement not credited by this Court and inconsistent with other statements made by her at this trial.

With respect to the concerns raised by Petitioner Father regarding Brandon's school attendance, Respondent Mother testified that Brandon recently completed fourth grade at P.S. 26. His school is located two blocks from her home. In the 2003-2004 school year, Brandon was absent 22 days and late 8 days. In the 2004-2005 school year, Brandon was absent 14 days and late one day. In the 2005-2006 school year, Brandon was absent 14 days and late 9 days. In the2006-2007 school year, Brandon was absent 17 days and late 19 days. For the first six months of the 2007-2008 school year Brandon was absent 11 days and late 16 days (Pet. 1).

When asked why nearly all of these lateness and absences occur when Brandon is in her care, Respondent Mother acknowledged that Brandon has been absent from school an excessive amount of time, but claims that Brandon refuses to go to bed and refuses to get up on time at her house. She further explained that Brandon missed several days of school in December- January of 2007-2008 because she took him on an extended vacation during the holidays while school was in session. Respondent Mother testified that she never withheld visitation from Petitioner Father and never kept Brandon out of school to avoid visitation exchange.Her explanation was not credible and not supported by evidence on this record.

[*6]

In addition to issues with Brandon's school attendance, Respondent Mother was asked on cross examination about ACS involvement concerning Brandon while in her care, including a July 27, 2007 incident in which Brandon presented with bruising to his leg. Respondent Mother claimed that Petitioner Father has reported her to ACS a number of times in an effort to harass her. She stated that Brandon sustains bruising from time to time as a result of falling off his bicycle, horsing around with her older children or engaging in other common child play activities. Respondent Mother further claims that Petitioner Father coaches Brandon to say that Respondent Mother inflicts these "innocent bruises". There was no credible evidence at this trial to support Respondent Mother's claims of coaching by the Petitioner Father. To the contrary, the evidence submitted suggests that Respondent Mother has tried to influence Brandon's explanations as to how he was injured.

C. Dr. B.

Petitioner Father called Dr. N.G. B, P.H.D. as his witness. On consent, Dr. B was qualified as an expert in clinical psychology. Dr. B's forensic evaluation consisted of individual interviews with the parents and Brandon, mental status examinations, psychological testing, and parent-child interaction. According to Dr. B, results from psychological testing of Respondent Mother reveal the presence of an Axis-1 mental illness with the possibility of a severe personality disorder identified as Paranoid Disorder. Petitioner Father's psychological testing reveal no evidence of mental illness.

Dr. B described the relationship between Petitioner Father and Respondent Mother as "nothing less than toxic"(Pet. 2). Dr. B observed that Brandon is more comfortable speaking freely in his father's presence. He testified that Brandon indicated there are times that Respondent Mother prevents him from speaking with his father and speaks poorly of his father in his presence. She also expresses anger with his father. Dr. B indicated that he was witness to at least once such incident of Respondent Mother complaining about Petitioner Father in front of Brandon. Dr. B noted in his report that during this incident Brandon remained silent.

Dr. B recommends that a Final Order of Custody be granted to Petitioner Father and that Respondent Mother have unsupervised visits unless it is confirmed that Respondent Mother has hit Brandon in which case visits should be supervised. He recommends that Respondent Mother "engage in psychiatric/psychologic treatment to deal with a host of rather serious mental health issues" (Pet. 2).

There is "no prima facie right to custody of the child in either parent." DRL §70[a]; 240 [1][a]. When deciding a petition for custody, the Court must determine what is in the subject child's best interest. Matter of Blanc v. Larcher, 11 AD3d 458 (2nd Dept. 2004). The moving party has the burden to show a sufficient change in circumstances to warrant a change in custody. Rosenberg v. Rosenberg, 261 AD2d 623 (2nd Dept. 1999). Where, as here, a voluntary agreement of joint custody is entered into, it will not be set aside unless there is a sufficient change in circumstances and unless modification of the custody agreement is in the best interest [*7]of the child. Bobinski v. Bobinski, 9 AD3d 441 (2nd Dept. 2004).

In determining whether the change in circumstances warrants a change in custody, the court shall consider such factors as: (a) whether the alleged change implicates the fitness of one of the parties; (b) the nature and quality of the relationships between the child and the parties and (c) the existence of a prior agreement. Matter of Joseph F. v. Patricia F., 32 AD3d 938 (2nd Dept. 2006). Where domestic violence is alleged, the Court must consider the effect of such violence on the best interest of the child. See Domestic Relations Law §240; Matter of Mareno v. Cruz, 24 AD3d 780 (2nd Dept. 2005); Manfedo v. Manfredo, 53 AD3d 498 (2nd Dept. 2008).

Interference with the relationship between the child and the non custodial parent is "an act so inconsistent with the best interest of the child that it raises a strong presumption that the offending parent is unfit to act as custodial parent." Gago v. Acevedo, 214 AD2d 565, 566 (2nd Dept. 1995); Prugh v. Prugh, 298 AD2d 569 (2nd Dept. 2002). The custodial parent's anger, hostility and attitude toward the non custodial parent can substantially interfere with her ability to place the needs of the children before her own in fostering a continued relationship with the non custodial parent. Young v. Young, 212 AD2d 114, 123 (2nd Dept. 1995). Furthermore, the custodial parent's conduct can be so egregious as to warrant a change of custody. Landau v. Landau, 214 AD2d 541 (2nd Dept. 1995).

Joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in a mature civilized fashion. Braiman v. Braiman, 44 NY2d 584 (1978). "As a court-ordered arrangement imposed upon already embattled and embittered parents, accusing one another of serious vices and wrongs, it can only enhance familial chaos." See Braiman v. Braiman, 44 NY2d 584, 590. Where the parties relationship has become so acrimonious since they entered into the agreement, joint custody is no longer a viable option. See Pambianchi v. Goldberg, 35 AD3d 688 (2nd Dept. 2006).

Applying these well-established principles to this case, this Court finds that Petitioner Father has sustained his burden of proving a substantial change of circumstances. The parties recognize that their relationship has become so acrimonious that the previously agreed upon joint custody agreement must be set aside. See Pambianchi v. Goldberg, 35 AD3d 688 (2nd Dept. 2006); See also, Matter of Joseph F. v. Patricia F., 32 AD3d 938 (2nd Dept. 2006). Thus, the only question before this Court is which parent should be granted sole custody of Brandon. After considering the evidence at this trial and the testimony elicited therein, and in camera, the Court finds that it is Brandon's best interest for his father to be the sole custodial parent with visitation to be afforded to his mother. Sadly, Respondent Mother's anger and hostility towards Petitioner Father and her interference with Brandon's right to have a loving relationship with his father is so inconsistent with what is in Brandon's best interest that this Court has no choice other than to switch custody to ensure Brandon has an opportunity to have a relationship with both parents. See Gago v. Acevedo, 214 AD2d 565, 566 (2nd Dept. 1995); Young v. Young, 212 AD2d 114 (2nd Dept. 1995); Landau v. Landau, 214 AD2d 541 (2nd Dept. 1995).

For example, Petitioner Father credibly testified that, when Respondent Mother has kept Brandon home from school for whatever reason, Petitioner Father doesn't know Brandon is [*8]absent until he arrives to pick him up and his class is dismissed without him. On those occasions, Respondent Mother has deliberately brought Brandon to the Police Precinct for pick up knowing that Father was waiting for Brandon at school as required by Court Order. Respondent Mother would sign in at the Police Precinct, wait about fifteen minutes, then leave deeming the visit forfeited, even though she knew that it took more than fifteen minutes for Petitioner Father to drive from Brandon's school to the Police Precinct. To deal with this interference, Father would go to the school while his companion Ms. C reported to the Police Precinct. In short, two adults were needed every Wednesday at two different locations to ensure that Father got the visitation he was entitled to under existing Court Orders. Petitioner Father resorted to this routine for many months in order to ensure that the visit was not forfeited since forfeiture meant that he would not see Brandon for another week. This issue was immediately addressed by this Court in a Temporary Order when brought to this Court's attention. However, the fact that this is no longer happening does not excuse the many months Respondent Mother engaged in this behavior.

Respondent Mother has played similar games with respect to Father's right to vacation visitation such as deliberately designating the same weeks as father designated and discouraging phone contact to the point where Brandon would sneak to call his father. These childish antics clearly demonstrate a lack of appreciation of Brandon's right to spend quality time with his Father and make clear that Mother is not fit to act as the sole custodial parent. See Gago v. Acevedo, 214 AD2d 565, 566 (2nd Dept. 1995); Prugh v. Prugh, 298 AD2d 569 (2nd Dept. 2002).

The Court is further troubled by Respondent Mother's apparent indifference towards Brandon's schooling. The evidence at trial establishes that Brandon is falling behind due to the amount of school work he misses, or at the very least, that he is not achieving his full academic potential due to excessive and unnecessary absences and lateness. Even if the Court credited Respondent Mother's testimony that in effect, it is Brandon's fault for not going to bed or waking up early enough to get to school on time, Respondent Mother's inability to address this ten year old's sleep habits is disturbing. This is particularly true given the fact that Brandon's issues with school while in her care have been ongoing for some time and Respondent Mother does not claim to have ever sought any outside professional assistance with this problem.

Furthermore, Brandon has no difficulty getting to school each day on time when he is with his Father. Respondent Mother expresses little, if any, concern for Brandon's absences from school and is satisfied with what she describes as his average performance in major subjects. Petitioner Father's genuine concern about this issue is substantiated by the fact that he has gone to the school several times over the years to address these issues with Brandon's principal and guidance counselor.

Last, after presiding over the trial and the in camera, and watching Respondent Mother testify, this Court is seriously concerned about Respondent Mother's ability to control her anger and frustration. There is evidence to suggest that on more than one occasion, Respondent Mother struck Brandon leaving bruising (Pet. 2). There has been ACS involvement since 2001. While this Court has no doubt that the many years of constant strife and hostility between these parties would test the limits of any parent, resorting to violence against another person, [*9]particularly one's child, may never be condoned. See Matter of Mareno v. Cruz, 24 AD3d 780 (2nd Dept. 2005); Manfedo v. Manfredo, 53 AD3d 498 (2nd Dept. 2008).

On the subject of domestic violence, this Court is mindful that Judge Porzio issued a Final Order of Protection against Petitioner Father on July 9, 2004 in favor of Respondent Mother on a finding of Harassment in the Second Degree. No written decision was rendered explaining the basis for this finding. The most that can be adduced through mother's testimony at this trial is that this Order issued because of Petitioner Father's allegedly harassing conduct during visitation contact. While the Final Order of Protection is a factor to be considered by this Court, the existence of this Order does not preclude the granting of custody to Petitioner Father particularly since the in camera examination does not reveal that this child has ever been exposed to verbal or physical violence by the Petitioner Father against Respondent Mother.

In sum, after considering the totality of the circumstances surrounding this family and the long standing history with this Court, this Court finds that Petitioner Father would be the better parent to provide Brandon with a stable loving home and an environment in which he would be allowed and encouraged to foster a relationship with the non custodial parent. This finding is consistent with Dr. B's recommendation and the urging of Brandon's attorney.

The evidence at trial also makes clear, however, that Brandon and his mother love each other very much and that a significant and substantial quality relationship with his mother and his half siblings is in Brandon's best interest. To this end, Respondent Mother is awarded weekend overnight visitation with Brandon three weekends a month and mid week day visitation during the week she does not have overnight visitation. While three weekends per month visitation is more than is typically ordered, this Court believes this is an appropriate and equitable way of balancing Brandon's interest in spending time with his mother and his siblings with the need to ensure that Brandon gets to school each day on time and prepared with no unnecessary lateness or absences. Accordingly, Respondent Mother shall have visitation the first, second and fourth weekend of every month from Friday at 3:30 until Sunday at 6:30 p.m. Respondent Mother shall have one weekday visit per month on the third Wednesday from 3:30 to 8:00 p.m.. All pick up and drop off shall be at the 123 Police Precinct.

This visitation schedule, however, is stayed until Brandon's attorney has an opportunity to speak to him regarding the incident which gave rise to the pending Family Offense trial brought on his behalf currently scheduled to be tried on September 19, 2008 and to make any such other and further applications as may be appropriate after that interview. Until such time, visits between Brandon and his mother shall be day visits supervised by an appropriate visit host to be selected by this Court after hearing from the parties.

As recommended by Dr. B in the forensic examination, Respondent Mother should seek therapy with a psychiatrist or psychologist to discuss the results of the mental health testing. See Coyne v. Coyne, 150 AD2d 573 (2nd Dept. 1989). Both parties are Ordered not to discuss this Decision with Brandon or in his presence. This Decision may be explained to Brandon by his court appointed attorney, Ms. Rosa Tragni. [*10]

ENTER:

____________________________________

Catherine M. DiDomenico Judge

Family Court, Richmond County

DATED: Staten Island, New York

September 17, 2008