Before this court for determination are six petitions. S. R. (hereinafter "the mother") filed an order to show cause seeking a finding of contempt, in addition to a modification and two violation petitions. Violation and modification petitions were filed by R. A. (hereinafter "the father"). Both parties seek various relief, including an order granting sole legal and physical [*2]custody of the subject child. A family offense petition filed by the father was withdrawn during the trial.

The parties are the parents of L.T.R.-A. (hereinafter "Tyler") born xxxxx xx, 2001. On August 16, 2006, Court Attorney/Referee Lawrence Schaffer issued a final order of custody and visitation (Court Exhibit B and hereinafter "order"), upon agreement of the parties, granting joint legal custody with residential and physical custody to the father, subject to the mother's parenting time as delineated in the order. The order further provided a course of behavior and other obligations and responsibilities to be observed by the parties.

All matters were initially joined and calendared before Judge Julianne S. Eisman. On October 17, 2007, the parties stipulated that the questions of custody and visitation be referred to the Nassau County Probation Department for investigation and that any private reports furnished to this court may be used by the court to aid it in rendering a decision. The resulting report was dated January 30, 2008. On February 11, 2008, all pending proceedings were reassigned to this court. The trial commenced on April 10, 2008 and continued on April 11, 28, and 30. On May 16, 2008, the mother's oral application to relieve her counsel was granted. The matter was stayed for the private retention of new counsel. The trial resumed on September 5, 2008, and continued on October 17; November 6, 7, 26; December 2 and 17. An in camera interview of Tyler was held on December 2, 2008. Memoranda of law and proposed parenting time schedules were submitted by counsel for the respective parties.

During the course of the trial the father made an oral application that the mother be precluded from filing any further petitions without first receiving leave of the court in accordance with Matter of Shreve v. Shreve (229 AD2d 1005 [4th Dept 1996]). The court reserved decision on this application.

During the course of repeated and protracted litigation between the parties a child custody evaluation was performed by Dr. William H. Kaplan. The report issued in May 2005 was introduced into evidence during the course of this trial (Court Exhibit A). Though intended for use in the prior litigation between the parties, which culminated in the order issued by Referee Schaffer, this court agreed to consider the weight, if any, to be accorded to this report in the context of the pending litigation.

The pending litigation arising from the provisions and interpretation of the order issued by Referee Schaffer includes, but is not limited to, the following:

1. Consultation between the parties with regard to all major decisions regarding Tyler. In the event of any disagreement, the father shall make the final determination in Tyler's best interests;

2. The mother's parenting time which specifies the days of the week, duration, vacation, holidays, school recess, pick-up and return of Tyler, and such other and further parenting time as agreed by the parties;

3 The mother's right of first refusal to have Tyler with her if the father is away overnight [*3]from his residence;

4. Unhampered telephone access between Tyler and both parents; and,

5. Neither parent to intentionally do nor say anything that might estrange Tyler from the other party.

Both the mother and the father allege multiple and repeated violations of this order in their respective petitions. In reaching its determination as to custody and parenting time, the court has considered the in camera interview of Tyler, the demeanor and credibility of the witnesses and the evidence adduced at trial, including the Probation Department's investigation and report, and the forensic evaluation by Dr. William H. Kaplan.

Tyler is seven (7) years of age. Though the parties have joint legal custody, residential and physical custody rests with the father. Final decision making also rests with the father. The mother resides in Oceanside, the district where Tyler has always attended school. This residence is located two blocks away from Tyler's school. The mother asserts that she is better suited to assume full custody of Tyler due to her close proximity to the school.

Once employed by a California-based company, the mother worked fifty-five hours per week from home, for an employer that recognized the demands placed upon a single working parent, allowing her to vary her work hours. As of April 30, 2008, the mother testified she was unemployed, but sold cosmetics to earn some income. Tyler had requested that his paternal grandmother purchase cosmetics to assist the mother financially. The mother is in arrears of her child support obligations set at $30.00 per week.

The mother contends that for a joint custodial arrangement to work, it is necessary to have both "communication and compromise." Though willing, the mother admits that the order is not working, because the father does not compromise or communicate.

The father resides in a home owned by his mother in Baldwin. Employed as a property manager, he rarely works past 5:30 p.m. When Tyler is in his care, the father does not go out in the evening. On the few occasions when he is compelled to work late, the father notifies the mother that he will be late for Tyler's pick-up from school or the after-school program.

In seeking sole custody, the father asserts he is the better parent to attend to Tyler's best interests. The father assists Tyler with his homework, maintains a bedtime routine, and provides appropriate discipline and stability for his son.

The father presented himself as compromising and yielding on the issue of parenting time to be enjoyed by the mother. In assessing the disagreements between the parties, the father characterized them as the same issues that existed prior to the order, with very little change, if any.

The mother testified that the father violated her right of first refusal to care for Tyler when the father was away from home overnight on two occasions.The first incident concerned the father's leaving for Las Vegas on May 20, 2007. Asserting that she was not advised the father was leaving on a four-day trip to Las Vegas until the day before he left, the mother complained about her inability to make arrangements for Tyler upon short notice, and that as a result he violated her right to have Tyler in her care for this period of time.

In response, the father testified that he had made plans to travel to Las Vegas one month [*4]prior to departure. Efforts to avoid attending this business trip were unsuccessful, resulting in his failure to notify the mother of his impending trip until one day prior to his departure. Notwithstanding this initial inadequate communication between the parties the net result was that the mother enjoyed expanded parenting time with Tyler. (This benefit was contrary to the mother's allegation in a sworn petition).

The second occurrence was on August 15, 2007. The mother attempted to reach the father by cell phone and text message beginning at 10:00 a.m. At 4:30 p.m. the parties conversed and the father stated he was "out East working." Accordingly, the mother returned Tyler to his father's residence shortly thereafter. One week later the father acknowledged that he had been away for several evenings, on a fishing trip, causing a second violation of her right of first refusal.

On direct examination the father testified that he tried calling the mother for one week prior to his annual fishing trip, to no avail. No messages were left in voice mail. The father admitted to non-compliance with the right of first refusal and stated that this was the one instance he did not notify the mother in advance that he would not be at his residence overnight with Tyler.

Each party also testified to a course of conduct perpetuated by the other with the consequential effect of undermining their respective relationships with Tyler and otherwise acting contrary to his best interests, all in violation of the intent and expressed provisions of the order. In the fall of 2007, the father registered Tyler to participate in the Baldwin soccer program run by the Police Athletic League. The mother did not learn of the enrollment until one day prior to a game and was not made aware of the team's schedule. Though the father coached the Baldwin team for one season, the mother believed that he was capable of coaching in Oceanside, the school district Tyler attends, the community where most of his friends from class play soccer, and where he preferred to participate. The mother's oppositional defiance manifested itself by Tyler missing two (2) games (one due to rain), being late to another, and not appearing timely for a playoff game.

The father enrolled and paid for Tyler to attend the Rolling River summer camp program in 2007. This appeared to be over the objection of the mother who testified that camp is not important to a seven-year-old.

The mother alleges that she was not advised of two special events at the camp, to wit: a play, and meet the counselor day. On cross-examination, the mother testified that she was a counselor at same camp in 2006; she was not aware her group observed a play that summer; and, did not check the camp's website for any parent invited programs.

In September 2007, when the father attempted to exercise his vacation time with Tyler he learned that the mother had removed Tyler from class before the end of the school day and hid her automobile in a neighbor's driveway, concealing Tyler's whereabouts. Tyler was not returned to the father until after the mother was served with a writ of Habeas Corpus.

A further "major" decision where consultation was absent concerned Tyler's birthday in March 2008. The father unilaterally scheduled a party for March 22, 2008, wherein the mother was given additional invitations, and attended. Led to believe that several of Tyler's friends would not attend the party arranged by the father, the mother scheduled an additional party for March 29, 2008. The father and his family were not invited to this second party. In hindsight, [*5]the mother acknowledged that she should have invited the father because "he is the father."

The mother further testified to denigrating remarks made by the father about her to Tyler, often in her presence. These remarks included, inter alia, "Mommy is annoying" and "tell Mommy to get a job." Both parties denied making denigrating remarks about the other parent in Tyler's presence.

The local police have been involved with this family on four occasions. On December 13, 2007, following an altercation at school with another student, Tyler returned home to the father's house. Though told of the incident by telephone and knowing that she was not welcome at the father's residence, the mother nevertheless appeared at the front door. The mother asserts that she was invited to the residence by Tyler who was upset with the discipline imposed by his father. Tyler had been sent to his room and denied television privileges.

The mother claims she was invited into the residence. In contrast, the father claims the mother barged into the home without permission. The father stated it was his parenting day and did not want the mother present. Upon the mother's entry into the home, Tyler came down from his room and into the living room. The mother approached Tyler who started to cry. A discussion ensued and voices were raised. Following the father's repeated requests that the mother exit and that the discussion continue outside the residence, beyond Tyler's earshot, the mother refused to leave the premises. The father then picked up the mother's bag and placed it outside the residence.

After leaving the premises, the mother called the police, fearing Tyler was in danger because the father was angry and threw her possessions out of the house, and Tyler didn't want her to leave. A police officer entered the house, observed Tyler to be safe, then left the residence.

The second police involvement occurred on December 21, 2007 when Tyler was home from school ill. The mother was not scheduled for parenting time until 6:00 p.m.; at 10:30 a.m., two police officers knocked on the father's door and entered, with a third officer waiting outside. Tyler spoke to the two officers, who left shortly thereafter. The purpose of the police presence, according to the mother, was to effectuate a "custodial exchange." A consequential effect of this police intervention was for the mother to obtain parenting time four hours earlier than the order provided.

The third police involvement was occasioned by the mother's initiative on February 24, 2008. The mother felt compelled to return Tyler to his father's residence with police escort.

The father asserts that the police were involved a fourth time. The date and specifics were not provided by either party.

Another contentious incident between the parties occurred after the paternal grandfather passed away on February 13, 2008. The father did not want Tyler to be present at the wake, desiring that Tyler not see his grandfather "laid out." The father did request the care of Tyler during the mother's scheduled parenting time, for one to two days during the mourning period, when family members were present.

In contravention of the father's wishes, the mother attended the wake during the off hours, enabling Tyler to place a family photograph which included the mother, into the open casket. On the date of the funeral, the father was granted time with Tyler only until noon because the mother had a court date, it was her parenting day, and because Tyler didn't want to be around sad, crying [*6]people all day.

Another issue between the parties concerned Tyler's summer vacation in 2007. The order provides, at page 2, that:

Each parent shall have two (2) weeks uninterrupted parenting time with the child during the summer months. Each party shall notify the other party of the two-week period selected no later than May 15. In the event that there is a conflict regarding the weeks selected and provided that said notice was given, the mother shall have priority in odd years and the father shall have priority in even years.

After purported oral requests for summer visitation in both May and June 2007, the mother sent a request for summer visitation on June 29, 2007 by certified mail, return receipt requested. The mother received her two weeks from August 21 through September 6, 2007, when school resumed.

The father had suggested that these two summer weeks be split between them. When the mother refused this suggestion, the father requested parenting time from September 10 through the 16th, and 24th through the 30th. Though school was in session, the father believed he had entitlement because fall had not technically arrived. Further, his intent was not to take Tyler out of classes, but rather, to "hang out" and engage in activities with Tyler after school. The father was denied this parenting time.

The record is also replete with instances of denial or limitation of telephone access to Tyler. In addition, contentions relating to the nature and extent of parenting time and lack of communication and consultation regarding school events and activities are also alleged in violation of the order.

Also of note to this court were Tyler's twenty-three (23) latenesses to school in the 2006/2007 school year on dates when the mother was responsible for bringing Tyler to school on a timely basis, the mother's early pick-ups of Tyler from school and/or after-school program, and the mother's initial disagreement and interference with Tyler's participation in the Cares after- school program resulting in Tyler's temporary removal from the program.

This court further notes the father's agreement since August 2006 to allow the mother to pick up Tyler from school at 3:00 p.m. rather than at the conclusion of the Cares program at 6:00 p.m., on the mother's visitation days. Additionally, the father extended the mother's visiting time on certain holidays and other dates and adhered to telephone requests from Tyler to extend parenting time with his mother. This agreement reflected both flexibility and appeasement on the part of the father. The mother, in turn, complained of three dates when extra parenting time was agreed to, then rescinded.

The only non-party witness in this trial was V.A., Tyler's paternal grandmother, with whom the father and Tyler reside. Ms. A. testified that she is employed, and that she leaves for work at 8:00 a.m. and returns at 6:00 p.m. Though she prepares breakfast and snacks for Tyler, it is the father who stays home with him if ill, and takes him to school.

Further, with few exceptions, it is the father who does homework with Tyler and imposes discipline on him by taking away privileges (such as the use of video games), sending Tyler to his room, and postponing play dates. Though the father sometimes raises his voice, he was never observed raising his hand to Tyler as a form of discipline. [*7]

Finally, this witness testified that the mother is not welcome in her home, confirming the father's testimony, and asserting, the reason for same is that the mother "can be confrontational."

It is well settled that a parent seeking modification of an existing custody order bears the burden of proving that there has been a "sufficient change in circumstances making modification necessary for the continued best interests of [the] child [ren]" (Matter of Leo v Leo, 39 AD3d 899, 900-901 [3d Dept 2007]; Matter of Watson v Smith, 52 AD3d 615 [2d Dept 2008]; Matter of Conforti v Conforti, 46 AD3d 877 [2d Dept 2007]). In determining the best interest of the child the court must consider the totality of the circumstances including maintaining stability for the child, the child's wishes, the home environment with each parent, each parent's past performance and relative fitness, each parent's ability to guide and provide for the child's overall well-being and the willingness of each to foster a positive relationship between the child and the other parent (see Matter of Eck v Eck, 33 AD3d 1082, 1083 [3d Dept 2006]; Matter of Smith v Miller, 4 AD3d 697, 698, 772 [3d Dept 2004]). While the August 16, 2006 custodial arrangement entered into on consent is a factor to be considered, it is to be entitled less weight than an order issued after a full hearing (see Eschbach v Eschbach, 56 NY2d 167, 172 [1982]; Matter of Roe v Roe, 33 AD3d 1152, 1153 [3d Dept 2006]); Matter of Lopez v Robinson, 25 AD3d 1034, 1035 [3d Dept 2006]).

It has been held that a "continued deterioration in the [parties'] relationship can be a significant change in circumstances justifying a modification to sole custody" (Matter of Rosario WW v Ellen WW, 309 AD2d 984, 985-986 [3d Dept 2003]; see Matter of Harper v Jones, 292 AD2d 649, 650 [3d Dept 2002]). The court may also consider the level of acrimony between the parties and their inability to function together in a manner necessary for a joint arrangement (Matter of Fry v Kecham, 57 AD3d 543 [2d Dept 2008]). Conduct by one parent tending to alienate the child from the other parent is also inconsistent with the best interests of the child (see Zafran v Zafran, 28 AD3d 753, 755 [2d Dept 2006]; Bobinski v Bobinski, 9 AD3d 441 [2d Dept 2004]; Young v Young, 212 AD2d 114, 122 [2d Dept 1995]).

Each party presents as a loving and caring parent, attentive to the needs of Tyler. Tyler, in turn, has expressed love and affection for both parents, desirous of spending significant time with both his mother and father.

This court discerns from the testimony, evidence and in camera interview that the course of conduct undertaken by the parties since entry of the order is an untenable exacerbation of the issues that pre-existed their consent stipulation, contrary to Tyler's best interests. This finding is evident by the mother's unnecessary use of police involvement to effectuate "custodial exchanges"; hiding her car in a neighbor's driveway to impair the father from locating his son, ensuring that Tyler would be used as a pawn for her to acquire additional parenting time beyond that provided by the order; encouraging Tyler to state alleged derogatory statements made by the father to this court and the forensic examiner; Tyler's presence at the paternal grandfather's wake where he placed a family photograph which included the mother into the casket, over the father's objection; and, other incidents stated above. [*8]

For his part, the father admitted to a solitary instance of violating the mother's right of first refusal when he was away from home overnight; interference with telephone communication between mother and child; and at times, insensitivity to the concerns of the non-custodial parent.

This court agrees with the mother that for a joint custodial arrangement to work there must be "communication and compromise." This court also believes, however, that the mother "can be confrontational," and that the father's statements that the difficulties that existed before the stipulation continue to persist are expressions of his frustration and resignation that his relationship to the mother continues to deteriorate.

Though a devoted mother, the mother has allowed her festering anger and sense of victimization to pervade her relationship with Tyler and the father. Tyler has been made aware of, and improperly placed in the middle of, the friction between his parents, all to his detriment.

In consideration of Tyler's best interests this court believes a modification of the order will provide greater stability for Tyler, and addresses his ultimate wishes of spending significant time with each parent. Further, while both parents are capable of providing for Tyler's overall well-being this court finds (after considering each parent's past performance) that the father is more stable, better fit and exhibits greater flexibility on the issue of parenting time. Further, the father is more capable of fostering a positive relationship between Tyler and his mother.

The level of acrimony between the parties and their inability to function together in a manner necessary for a joint arrangement, and conduct by the mother tending to alienate the child from the father, are acts inconsistent with Tyler's best interests. Further, the continued deterioration in the relationship between the parties is a significant change in circumstances justifying a modification of the order to sole custody to the father. The court is mindful that a modification of the custodial order to sole custody may lead to Tyler being initially unsettled by his transfer from the Oceanside School District to the Baldwin School District. This court relies upon the resilience of youth enabling Tyler to adapt to his new school environment, and that a smooth, orderly and successful transition will result.

WHEREAS, the court having searched the statewide registry of orders of protection, the sex offender registry and the Family Court's child protective records in accordance with § 651(e) of the Family Court Act, and said searches having revealed no information to be disclosed to the parties and counsel; it is hereby,

ORDERED that the mother's order to show cause and two violation petitions are dismissed; and it is further

ORDERED that the father's violation petition is dismissed; and it is further

ORDERED that the father's oral application that the mother be precluded from filing further petitions without prior leave of the court is denied; and it is further

ORDERED that the father's petition seeking sole legal and physical custody of L.T.R.-A. born xxxxx xx, 2001, is granted, subject to the mother's, parenting time set forth hereinafter; and is further

ORDERED that the mother shall have visitation with the child as follows:

Alternate weekends from Friday at the end of school (or camp) until Sunday at 8:00 p.m. at which time mother shall return the child to the father. If school or camp is not in session on Monday, the day following mother's weekend, then mother shall return the child on Monday at 8:00 p.m.

Wednesdays in every week at the end of school (or camp). If school or camp is not in session then mother may have parenting time commencing at 3:00 p.m. In either event, the mother shall pick-up the child and return the child to school or camp on Thursday morning.

In the event the child attends a six (6) week summer day camp program, each parent shall have two (2) weeks (14 consecutive days) of uninterrupted parenting time. In the event the child attends an eight (8) week summer day camp program, each parent shall have one (1) week (7 consecutive days) of uninterrupted parenting time. Further, if the child attends a sleep away summer camp, the length of parenting time subsequent to the child's return from camp shall be governed by the duration of his camp experience as otherwise provided herein. Each party shall notify the other party of the period selected no later than May 15 by certified mail, return receipt requested. In the event that there is a conflict regarding the weeks selected, and provided that said notice was given, the mother shall have priority in odd numbered years. The father shall have priority in even numbered years. In no event, however, shall summer parenting time extend past 6:00 p.m. on Labor Day.

The child shall be with the father on every December 24th (Christmas Eve Day). If the child is with the mother on December 23rd, the mother shall return the child to the father by 8:00 p.m. on December 23rd. The mother shall have visitation with the child in even numbered years from 10:00 a.m. on Christmas Day until 10:00 a.m. on New Year's Day. The mother shall have visitation with the child in odd numbered years from 10:00 p.m. on Christmas Eve Day (December 24th) until 8:00 p.m. on Christmas Day (December 25th). These days shall not be interrupted, absent agreement of the parties, by alternate weekend parenting time provided here under.

During the February school recess, the child shall be with the mother in even numbered years and with the father in odd numbered years during the recess period only (subject to the alternating weekend schedule).

During the spring school recess, the child shall be with the mother in odd numbered years and with the father in even numbered years during the recess period only (subject to the alternating weekend schedule). [*9]

On New Year's Day, the child shall be with the mother in odd numbered years and with the father in even numbered years.

On Thanksgiving Day, the child shall be with the mother in odd numbered years from 9:00 a.m. until 9:00 p.m. and with the father in even numbered years.

On Independence Day (July 4th), the child shall be with the mother in even numbered years from 9:00 a.m. until 8:00 p.m. and with the father in odd numbered years.

In the event that one of the following Monday holidays, to wit: Labor Day, Martin Luther King, Jr. Day, Memorial Day, Columbus Day, follows a weekend when the child shall be with the mother, the mother need not return the child on Monday morning, but shall return the child 8:00 p.m. on Monday evening. In the event that one of the aforesaid Monday holidays follows a weekend when the child remains home with the father, the father shall have the child for said Monday.

In all years, the child shall be with the father on Father's Day and the father's birthday and with the mother on Mother's day and the mother's birthday; and it is further

ORDERED that there shall be such other and further parenting time as agreed to by the parties; and it is further

ORDERED that the parties shall not initiate or encourage and shall discourage the use by the child of the designation "Father" or "Mother" or their equivalent with reference to any person other than the parties; and it is further

ORDERED that when the child is with the other parent, each party shall have the right to telephone the child at a reasonable time and to have the child telephone the other parent at a reasonable time, not to exceed more than one telephone call per day; and it is further

ORDERED that for all of her visitation periods except as otherwise set forth in this order, the mother shall pick-up the child from the father's residence and return the child to the father's residence at the end of the visitation period; and it is further

ORDERED that when the child is with each respective parent, that parent shall take the child to school, camp and/or other regularly scheduled activities on a timely basis; and it is further

ORDERED that each party shall exert every reasonable effort to maintain free access and unhampered contact between the child and the other party. Neither party shall intentionally do or say anything that might estrange the child from the other party or that might injure the child's opinion of the other party or that might hamper the free and natural development of the child's [*10]love and respect for the other party.