[*2]^[FN1] Gerald H., hereinafter referred as "Father", having filed a petition on March 10, 2008, pursuant to Article 6 of the Family Court Act, requesting an order awarding custody and Qui Yinh H., herein referred to as "Mother", thereafter, filing a petition on March 13, 2008, pursuant to Article 6 of the Family Court Act, also requesting an order awarding custody, and both petitions seeking custody of the minor child:

NameDate of Birth

K. H. (referred as child)1/20/2004

And both petitions having duly combined and come on to be heard for a trial before this Court, and the parties, being represented by counsel and an attorney appointed for the child, having presented evidence through the parties, one sibling and the forensic evaluator, the Court makes the following findings of fact and conclusions of law based on the adduced credible evidence:

The parties were married in November 2002 and had the subject child K. H. in January 2004. Father has two prior marriages and children of both those marriages. Mother has one older child from a prior relationship. Father's birth country is Hong Kong and Mother's birth country is China. Father has a Bachelor of Science degree and some graduate studies. Mother completed middle school education in China. During the marriage, Father was employed as a computer technician and was the primary wage earner in the household.In May 2007, Father became unemployed and is now working in other jobs outside his field. Mother was the primary care giver with a nanny in the marital home. After Father became unemployed, Mother worked as a waitress in or about January 2008. Father is a chef and enjoys cooking for the family. Mother is enrolled in school to complete her education. Father is fluent in English, Chinese Mandarin and Cantonese. Mother is fluent in Cantonese and understands Mandarin. She is now enrolled in classes to learn English. Father has stated that Mother's limited education and lack of proficiency in English as the core reason Mother is incapable of being the custodial parent of K. H.K. H. speaks English and understands both parents' native languages. Primarily, Chinese Mandarin was spoken in the marital home. There are no issues of K. H. adjustment in school.

There are issues raised of both Mother and Father engaging in internet poker and Father's excessive gambling on the internet. Mother accused Father of his preoccupation on the internet for extremely long hours during the day and night.The Psychologist also raised issues of Mother excessive drinking. There are no credible evidence to support these allegations of excessive drinking or gambling. Both parties have accused each other of domestic violence. Mother left the marital home in May 2008 and went [*3]into a Domestic Violence Shelter.

Both parents have other children from prior marriages and/or relationships. Both parents relocated their child(ren) to Hong Kong or China to be raised by family members and for schooling. K. H. has a relationship with her half-siblings. Both parents are now accusing each other of doing the same with K. H. should she be in either custody. The record is void of extended family members for Mother in the United States. Father has family members in New York.

During the marriage, the parties resided in a co-op apartment with a nanny for K.H. The parties separated in or about May 2008 after alleged domestic violence incidents. Upon Mother's arrest, temporary physical custody was given to Father. However, temporary physical custody was returned to Mother approximately one month after by the Family Court. One year and four months after Mother entered the Domestic Violence shelter, she was transferred to a two bedroom apartment where she and K. H. now reside.

During the pendency of the instant petitions, Temporary Orders of Visitation were in effect. Since May 2008, when Mother left the marital home and has K. H. in her sole custody, Father has reduced his contact with K. H. and minimally exercises his visitation rights although Mother has kept the lines of communication available to Father. As of August 2010, his contact with K. H. increased, more harmonious communication resumed, and the family spends some dinner time together.

The credible evidence adduced shows that both parties are responsible parents and that the K. H. benefits from the care and affection given by both parents. The Forensic evaluation report supports custody to Father. The Attorney for Child supports custody to Mother. Both parents repeatedly expressed fears of the other party's relocation of K. H. to either Hong Kong or China. At the commencement of these petitions, communication was abysmal. Over the pendency of these proceedings, the parties have resolved their communication to the extent of formulating an agreement to engage in the common enterprise of co-parent during the visitation schedule. As of August 2010, they now share parenting time and family dinners. However, Father is still adamant that he should be the preferred parent for sole custody so that K. H. can achieve excellence as he avers his other children's educational performance to his input.K. H. has been in her Mother's sole care since May 2008 and she is performing above grade average.

The applicable standard in determining who is the appropriate parent is the best interest of the child after considering all the circumstances in total that "will promote the child's welfare and happiness." (See, Eschbach v Eschbach, 56 NY2d 167; quoting, Friederwitzer v Friederwitzer, 55 NY2d 89.)Each parent starts out from birth on equal footing as a custodial parent. No parent has a greater right over the other. Factors to be considered in disputed custody cases are prior custodial arrangements employed by the parties either by Court Order or by de facto; (See, Laura A.K. v Timothy M., 204 AD2d 325 [App Div 2d Dept, 1994]); preference in favor of primary caretaker (Matter of [*4]Dwyer-Hayde v Forcier, 67 AD3d 1011 [App Div 3d, 2009]); work/employment hours of each parent, support systems of relatives and care providers (Jacobs v Jacobs, 117 AD2d 709 [App Div 2nd Dept, 1986]); drug/alcohol abuse (Matter of Nunn v Bagley, 63 AD3d 1068, [App Div 2nd Dept, 2009]); domestic violence upon the best interest of the child (Domestic Relations Law §240.1); separation of siblings (Ebert v Ebert, 38 NY2d 700); religious upbringing and schooling (Berghorn v Berghorn 273 AD2d 595 [App Div 3rd Dept, 2000]); opportunity to allow the child to separate, individuate and grow into his (her) own person (Barbato v Barbato, 264 AD2d 792 [App Div 2d Dept, 1999]); agreement of the parties (Matter of Nehra v Uhlar, 43 NY2d 242); alienation of affection or interference with relationship (Bliss v Ach, 56 NY2d 995; Barbato v Barbato, 264 AD2d 792 [App Div 2d Dept, 1999]). Any one or more of these factors may suffice to make a determination of custody. There are no absolutes in making a determination of custody but rather the totality of the circumstances of how each parent interacts without harm to the child, without interference and alienation of the relationship of the child to have access to the other parent, and what conduct is employed to best able to assure meaningful contact between the child and each parent with common enterprise. (See Bliss v Ach, 56 NY2d 995).By the filing of an action for custody, the parties put themselves is posture of exclusivity, subtle or intentional, and the Courts are called upon to crystalize a formula and intervene to find the best means to insolate the child from the effects of what custodial proceedings sometimes inures. The parents, who are more capable than the Court, regenerate to a legal proceeding for guidance of what is in the best interest for the child's love, care and affection. No Court can accomplish that role of parent, but hopefully, the Court's Order provides a structure by which parents path their future parenting.

In this case, the forensic evaluation prepared by Dr. Ellen Tsui, PhD, licensed Psychologist dated February 26, 2009, that was introduced into evidence provides for a delineation of conclusions made after interviews of both parents, K. H., and two sibling by the Father. There were no other collateral sources, neutral or otherwise, or documents used by the Psychologist.Notably, Father was seen more often than Mother and the forensic report relies almost exclusively upon Father's education and fluency in English as the major reasons for the psychologist conclusion of Father being the most appropriate parent for sole custody.Most notably, the psychologist sees Mother limitation of the English Language, her lack of sufficient education and financial background as the reasons for unfitness to parent. Missing from the report are sufficient analysis of Father's issues of custodial battles in his prior custody cases, Father's dominance and class biases, Father's insistence that he is the only parent that can assist his children in their education and his children can only be educated effectively outside of the United States in order for them to achieve educational excellence. The Report failed to include other factors in the best interest of K. H. and the importance of meaningful contact with each parent and the efforts Mother has made on her own after she left the marital home to adjust as a single [*5]parent.

The report stated that the troubling factors is that Mother appeared impulsive and preoccupied in sending the subject child to China as her other child from another relationship. However, the evidence shows that Father manifested the same tendencies of relocation from his prior marriages.The report was biased with respect to the values in Mother's home land of China as opposed those values in Father's home land of Hong Kong. The psychologist characterized Father as having a stable environment because of his degree and financial status. In contrast, the evidence shows that Mother with her minimum education was employed, is a wage earner, now in school to complete her education and is learning English while at the same time caring for K. H.

The Forensic report is a recommendation not an absolute. The Report acts as a conduit for the Court in disputed custody cases. However, the circumstances of each case is shaped by the results of the evaluation based on the totality of the evidence before the court and the balance factors used in the evaluation. In this case, the report's conclusion is excluded from this Court's determination because of the flawed basis by which the conclusions were determined.

During the marriage, K.H. lived in a co-op apartment with a parents and a nanny. Mother stayed at home and was the primary care giver both for K. H. and one of K. H. sibling from Father's prior marriage. Father was employed and was the primary wage earner. Now in the down turn of the economy, Father's income has diminished but he still remains as the primary wage earner. K. H. shared both parents and their cultural values. After the separation, K. H.'s life is now separated into two different household with competing values of parenting.

K. H. has now adopted to the different households. Since March 2008, K.H. lives solely with Mother, moving from Domestic Violence Shelter to now an apartment, with income mainly from Department of Social Services. Although Mother has challenges with the English Language, there are no negatives on K. H.'s schooling and socialization. Mother competently navigated the chores of K. H.'s home work assignments, school activities and doctor visits and K. H.'s other necessary needs. K. H. has successfully adopted to her home and school environment and is performing over her grade average. The evidence confirms that K. H. remains attached to both parents and both parents provide love and affection to K. H. independently. After the separation, Father refrained and diminished his contact and support for K. H. although Mother kept the lines of access and communication available to Father.

The Father, uncompromisingly, determined he is the educated parent and, therefore, that factor makes him the preferred parent for custody. He compares and credits his other children's superior educational excellence primarily to his input. He firmly believes that the education in Hong Kong is superior to that the United States. Based on this analysis, Father concludes that K. H. would suffer a great disservice if he is not granted sole custody. Although laudable that Father views his birth country as the [*6]preferred place to raise his children, Father has failed to show any evidence that K. H. is not receiving the same degree of education in the United States or more particularly in her Mother's care. There is no evidence that Mother is less fit to raise K. H.

Father comes from a traditional background where education is the primary focus and has done excellent for himself and his other children who are now attending elite schools in the United States and have scholarships from the United States Universities (emphasis added). Although laudable, there is nothing in the record that shows this child would be limited to those same opportunities if Mother is granted custody.

The credible evidence show that each parent brings some positives to the child's total well being and has different styles in parenting. Each parent standing alone will be equally good custodial parent for K. H. Both parents have issues of relocation in their history. Father has history of alienation in his other custody case. Father has a propensity of dominance which interfered with Mother's parenting. Both parents have work schedules but for the most part their schedules do not interfere with their ability to parent K. H. Father has family members in New York. Mother has no family members in the United States. K. H. enjoys being with both parents but prefers to be with Mother.

At the beginning of this case, communication was a factor between the parties which alluded to the Domestic Violence incidents. However, as of August 2010, the parties have resolved this issue and have formulated a parenting schedule different from that of the Court's order by which they agreed to form a common enterprise of co-parenting on Father's visitation schedule.Since this out of court voluntary agreement was put in place, there are no incidents and communication has improved. Under these circumstances, joint custody is a feasible alternative for these parents. (See Matter of Dwyer-Hayde, 67 AD3d 1011 [2009] supra)

Based on all of the above, the Court hereby grants both petitions as follows:

IT IS HEREBY ORDERED that Orders Joint Legal Custody to both parents, Gerald H. and Qui Yinh H., of the subject child, K. H. The Mother shall have physical custody of the child, K. H.

The Court further finds that both parents are capable of sharing in the decision making but that zones are more appropriate to facilitate the parameters of communication and to address all issues raised in relocation and dominance. Therefore, both parents shall share in all decision making of education, extra curricular activities, medical and religion. If the parties are unable to reach an agreement, after a full and ample consultation between the parties, Mother shall have the final determination on medical, religion and extra curricular activities and Father shall have the final determination concerning education.

IT IS FURTHER ORDERED that although Father has the final determination in education, Father shall not relocate K. H. to any school outside of the County of Mother's residence unless by written consent of the Mother or by Court Order. All additional [*7]expenses incurred by Father for education, outside of any Court Order of Child Support, shall be the sole responsibility of Father.

IT IS FURTHER ORDERED that Father shall have liberal visitation as the parties can agree.

This constitutes the Decision and Order of the Court.

SO ORDERED

Dated: March 1, 2011

Queens, New York____

__________________________

Pam Jackman Brown, JFC

Courtesy copies to attorneys:

Attorney for Petitioner Father:

Hector Santiago, Esq.

103-42 Lefferts Blvd., 2nd Floor

Richmond Hill, NY 11419

Attorney for Respondent Mother

Josephine Flores, Esq. and Natasha Ingram, Esq.

The Legal Aid Society

120-46 Queens Blvd.

Kew Gardens, NY 11415

Attorney for the subject Child

Nestor Soto, Esq.

31-26 Steinway Street

Astoria, NY 11103