Respondent (hereinafter referred to as the "mother") moves by order to show cause to find the petitioner (hereinafter referred to as the "father") in contempt of court for his alleged refusal to provide reasonable accommodation to the mother for her regular Wednesday night visitation with daughter, M., when the mother's Orthodox Jewish observance prevents her from driving on said evening. The father opposes the motion.

In this acrimonious litigation that began in September 2002, a little over a year after the child's birth on May 29, 2001, the parties have engaged in a "tug of war" over the child, fueled by their competing religions, CPS reports by the mother which have been returned "unfounded", and a decision and order, dated January 13, 2005 which, after a full hearing including forensic testimony, granted custody of the child to the father and visitation to the mother. Said decision directed that "when the child is old enough to attend religious school, it shall be in the father's faith, if he wished to enrol her in a program."

On a prior motion, by Short Form Order dated August 14, 2006, the court (Stack J. ) found as follows, denoted in bold print:

Respondent requests that her Wednesday night visitation be altered if the Wednesday is a holy day, one on which she is not free to drive pursuant to her religious beliefs. Because such holidays are known well in advance, Respondent should make a letter or email application to Petitioner detailing exactly on which Wednesday she is unable to drive and stating whether a Tuesday or Thursday is the date on which she wishes to enjoy her visit. Petitioner should not unreasonably withhold access on those rare dates when a religious holiday occurs on a Wednesday at which time Respondent seeks a change in day. [*2]

Unless the child is otherwise scheduled for an activity, the Petitioner should assist in accomplishing such an arrangement. Such dates do not occur with such regularity or frequency as to create a hardship for the Petitioner. If the child is enrolled in some activity on the alternate date that Respondent seeks, if it is feasible she should accompany the child to such activity. If it is not feasible and no alternate date can be found, Petitioner should make every effort to accommodate Respondent, even if it means changing the child's schedule for one day.

. . . As noted above, the Petitioner is charged with encouraging a strong relationship between the child and her mother and in making efforts to see that such a relationship is fostered. This does not suggest that every application by the Respondent must be granted; however, Petitioner should be cognizant of the importance of his role in creating a bond between the child and her mother.

On a subsequent motion, by Short Ford Order dated October 24, 2007 (Stack, J.), the court denied the mother's application to find the father in contempt of court because of his alleged refusal to accommodate the mother's request for changes to her Wednesday night visitation because of her religious observance and found, as follows, denoted in bold print:

The court directs, however, that in an effort to provide such reasonable accommodation in the future, that Respondent provide Petitioner with a calendar of the Jewish holy days, indicating which alternate day she will be seeking so that the Father will not schedule any activities for their daughter on that day.

On the instant motion, once again the mother seeks to hold the father in contempt and alleges as follows: that she has notified the father in advance of the specific dates that she needed to switch due to Jewish holiday observance that conflicts with her Wednesday night visitation by sending the father two (2) Jewish calendars, before the start of the Jewish New Year in September, with the dates highlighted and her selected alternatives; that she wrote letters and emails to the father with respect to the holiday of Shavuot for 2010, which fell on a Wednesday and Thursday; that the father refused to accommodate the mother's request for Tuesday, May 18, 2010, as the alternate date and further refused her request for a Monday or Sunday exchange; that the father is in violation of the court order that he not schedule any activities for their daughter on the alternate dates that the mother requests; that when the mother arrived at the father's home of May 18, 2010 to pick up M. there was nobody at home; that the father had suggested that the mother come to his church to watch their daughter sing in the church choir and spend some time alone with her; that the mother claims, as an observant Jew, she is prohibited from entering a church sanctuary; that the mother annexes a letter from her Rabbi stating that she is prohibited from entering a Church sanctuary where "graven images" are present; that conflicts with scheduled Wednesday night visitation remains an ongoing problem because of many holidays in the future that occur on Wednesday night; that the father is in [*3]contempt of court for his violation of the August 14, 2006 and October 24, 2007 orders of the court.

In opposition to the motion, the father alleges as follows: that M. is being raised as a Catholic and was baptized on February 18, 2005; that, for the past three (3) years, M. has attended Catholic religious classes on Monday evenings; on Monday, May 17, 2010, M. attended her religious class and on Sunday, May 16, 2010, she attended Mass at Our Lady Queen of Martyr's Church and other Church activities; that, as an accommodation, the father suggested that the mother visit the child on Tuesday, May 18, 2010, at her Church Choir rehearsal; that it was the mother's choice not to attend; that M. is a nine (9) year old girl in the fourth grade who is adamant about the activities in which she wants to participate; that M. has chosen to participate in Choir rehearsals despite her mother's refusal to permit her to attend Sunday Mass or to sing in the Church Choir on the first Sunday of each month when the Choir is scheduled to perform, because it interferes with the mother's weekend visitation; Church Choir is important to M. and she received an Award Trophy for attending every Choir rehearsal for 2009-2010 which she treasures; that M. should not be forced to cancel Church Choir or any other activity because her mother chooses not to attend; that the mother has attended many of M.'s activities that have been held in Our Lady Queen of Martyr's Church and at Camp Alvernia, the oldest Catholic camp in the country founded by the Franciscan Brothers in 1888, where M. has attended for the past seven (7) years; that the father has always accommodated the mother's request to attend the child's birthday parties or to change visitation dates when an activity of M.'s is not impacted; that this is the 25th time the mother has used the courts as a vehicle to harass the father; that the mother is ultimately abusing M.

In reply, the mother alleges as follows: that there is a distinction between a religious sanctuary and the common grounds of a religious institution; that the real issue is not whether the mother will attend choir practice but whether she will be allowed to have free choice in having unhindered quality time with M.; that suggesting that the mother attend Choir Practice is not a reasonable accommodation because the mother has refused to attend activities in the Church sanctuary before and the father was aware of her restriction; that M. has been exposed to the religious beliefs of both parents since the age of three (3) and is aware of the restriction that the mother not travel on Jewish holy days; that the father keeps violating the court orders by refusing to make accommodations for the mother's religious needs; that the father's interference with the mother's visitation is a clear violation of the court orders calculated to defeat and impair the mother's rights herein, and a finding of contempt is warranted. The court disagrees.

To sustain a finding of civil contempt based upon a violation of a court order, a movant must demonstrate the existence of an unequivocal mandate ( see, Kawar v Kawar, 231 AD2d 681; Graham v Graham, 152 AD2d 653,654 ), and must establish a violation thereof by clear and convincing proof ( see, Bickwid v Deutsch, 229 AD2d 533; Bulow v Bulow, 121 AD2d 423). There also must be a finding that the conduct complained of was calculated to or actually did defeat, impair or prejudice the rights or remedies of a party to a civil proceeding (see, Barkan v Barkan, 271 AD2d 466; Farkas v Farkas, 209 AD2d 316 appeal dismissed 81 NY2d 783 ). After a careful reading of [*4]the submissions herein, it is the judgment of the court that the circumstances complained of do not rise to the level of contemptuous conduct.

It is well settled that the guiding principal in determining visitation disputes is the best interests of the child.(Lincoln v. Lincoln, 24 NY2d 270; Friederwitzer v. Friederwitzer, 55 NY2d 89). In the case at bar, the child has been engaged in healthy and constructive activities scheduled far in advance of the mother's requested changes. Although the father has been directed to attempt to accommodate the mother when her own schedule requires her to miss her regularly scheduled Wednesday night visitation and to attempt to find another day, in the particular instance complained about all other substitute days that week were consumed with regular, age appropriate childhood activities such as choir practice, religious instruction, etc. While visitation and interaction with a child is a most precious right that should not be lightly cast aside, the child's corresponding need to have normal socialization and age appropriate activities ( for which she receives awards and trophies) cannot be held hostage to a very occasional and intermittent inability of the mother to visit. The father's declination to disrupt the child's routine does not rise to the level of contempt, defined as a willful violation of a court order, particularly in view of the extensive visitation enjoyed by the mother on three (3) weekends of each month, alternative holidays and school recesses, all Jewish holidays and two (2) weeks in the summer. Accordingly, it is hereby

ORDERED, that the mother's motion to find the father in contempt of court is denied.

E N T E R:

_________________________

Anthony J. Falanga, Justice

Supreme Court, Nassau County

Dated: February 8, 2011

Mineola, NY