The following papers were read on these motions:

Notice of Motion/Order to Show Cause................................1

Notice of Cross-Motion..........................................................2

Atto9rney for the Child Affirmation.......................................3

Reply Affirmation in Further Support and in Opposition to Cross-Motion....4

Reply Affirmation....................................................................5

Attorney for the Child Reply Affirmation...............................6

Plaintiff former husband (hereinafter referred to as the "father") moves by order to show cause for an order 1) modifying the Judgment of Divorce, dated November 9, 2005, to provide sole legal custody of the infant child,C.F., age 14, to the father along with equal residential custody and parenting time based upon a substantial change of circumstances since entry of the judgment, in the best interests of the child, 2) restricting electronic and telephone contacts of the defendant former wife (hereinafter referred to as the "mother") to the child during the father's parenting time and limiting same to a specific period of time, except in the case of an emergency; 3) prohibiting the mother from scheduling events for the child or buying tickets for events that take place during the father's parenting time, without prior written consent of the father, 4) prohibiting the mother from initiating or scheduling social activities, dates, or parties for the [*2]child during the father's parenting time, without prior written consent of the father, 5) prohibiting the mother from appearing at the father's home during the father's parenting time and asking to "see" the child; 6) prohibiting the mother from having lunch with the child during the school days that coincide with the father's parenting time, 7) directing a psychological evaluation of the parties and the child by a forensic expert, 8) amending the order appointing Barbara Kopman, Esq. as the Attorney for the Child to include the issues raised herein, 9) so-ordering a certain Subpoena Duces Tecum to Verizon for production of text messages between the mother and the child and the child and the father; and 10) prohibiting the parties from discussing the issues raised herein with the child or permitting her to read any portion of the papers filed herein. The mother opposes the motion and cross-moves for an order denying the father's motion in its entirety, without a hearing, on the ground that no prima facie basis for the requested relief has been demonstrated and for counsel fees in defense of the motion.

The parties were married on March 1, 1992. They have one adopted daughter, C., born March 21, 1997, who has been enrolled as a student at the Grace Christian Academy since September 2002. The parties were divorced by Judgment, dated November 9, 2005, wherein the wife was granted sole custody of C., subject to the father's right of parental access, as set forth in a parental access schedule in the order of the court, dated November 6, 2002, which was incorporated by reference into a Stipulation of the parties settling the issues of custody and parental access, placed on the record in open court on February 2, 2004 and thereafter incorporated by reference into the Judgment of Divorce. Pursuant to the present schedule, the father has physical custody of C. every Thursday after school (or 10 a.m. if school is recessed) through Saturday evening at 7:30 p.m., as well as designated summer vacation time and alternating holidays and recess time. Additionally, pursuant to a subsequent so-ordered Stipulation, every fourth weekend the access time is extended to 9:30 p.m. on Saturday night.

The court notes that, pursuant to a motion by the father and cross-motion by the mother (sequence No.14,and 15), C. is presently being tested and educationally evaluated by the Hofstra Psychological Evaluation Research and Counseling Clinic to gather information with regard to the child's psychological profile, the extent and nature of her learning disabilities, if any, and her present academic proficiency levels ( grade levels) in core subjects such as reading and math, to aid the court in its determination with respect to the proper school placement for C. in the 8th Grade and high school thereafter.

On the instant motion, the father alleges as follows: that the mother has repeatedly violated the terms of the parental access schedule by failing to foster a feeling of affection between the child and the father and by scheduling activities for the child during the father's limited parenting time and by encouraging the child to lie about her plans; that, the mother has bought tickets to various pop-concerts such as Taylor Swift, the Jonas Brother's and an American idol Concert during the father's summer vacation schedule ; that she has shown up at Six Flags Great Adventure with her 83 year old mother "to ride the roller coaster" with C. when the father took the child and a friend there; that she often interrupts the father's access time by keeping the child late at the beach or on vacation, or by picking C. up at the Mall early and taking her out to dinner when she is [*3]expected at the father's home for dinner on his parenting night; that she frequently eats lunch with C. at her school and is there at 3:00 p.m. when the father arrives to pick up the child for his parenting time; that she texts the child five (5) to ten (10) times each day and the father has difficulty reaching the child by cell-phone because her "mailbox" is constantly full; that the mother often shows up at the father's house to deliver items to C. that she claims have been requested and asks to see her daughter; that the foregoing examples, not an exhaustive list, demonstrate the mother's inability to permit the father any independent time with the child and her need to insert her presence into every day that C. spends with him; that the child has announced, " I'm thirteen now, I can do what I want"; that she has claimed to have "Bible Study" when none was scheduled or that she wants to "study" at a friends house when she has made secret plans with her mother; that there has been no parenting time since September 2010 that C. has not requested that she go somewhere with her mother or with a classmate from her school, away from the father and his home in Rockville Centre; that the mother has forbidden the child from attending summer camp for a four (4) week period at the father's expense, has permitted the child to sleep late when she is due at her father's home, and has discouraged the child from maintaining her friendships with girls in Rockville Centre and only encourages relationships for C. with children at Grace Christian Academy; that the request for a change in custody is reluctantly made but the father seeks the help of the court to save his relationship with C., who will be lost to him if changes are not made herein.

In opposition to the motion and in support of the cross-motion, the mother alleges as follows; that the father's motion has no legitimate basis and is being used as a tool to harass her; that the mother's close relationship with her daughter is seen as a threat to the father; that, anytime a change in the parenting schedule is made, the father is given make-up time for every second that is lost; that the father has no concept of flexibility or compromise; that C. is fourteen (14) and is a teenager with a voice of her own and opinions of her own; that additional litigation is not in her best interests; that the child should not be forced to go through educational testing, visits with a Law Guardian and, now, a forensic evaluation; that there is no basis whatsoever to change the present custodial arrangement that was agreed to by the parties; that, given C's age and her increasing desire to spend more time with her friends as is common with children her age, the parents will need to be more flexible with respect to their time with the child; that the mother has always fostered a feeling of affection between C. and her father and allegations that she has interfered with his parenting time are false; that when she purchases tickets for one of C's favorite musicians, the father has always agreed in advance to permit her to attend; that she works at the child's school and should not be required to pass in the halls without speaking or to forgo lunch with her ; that dropping off C's homework at the father's home is not a basis for a change of custody; that the parents must be flexible with one another and the mother has frequently given up portions of her parenting time to take C. to softball or other activities arranged by the father; that the father's attempt to blame the mother for the actions of a teenage girl who does not want to spend all her time with her parents should not be credited; that her desire to have sleep overs at the homes of her friends, or to text her [*4]friends, occurs when the child is with her mother as well as with her father, and is what teenagers do; that unless the father recognizes that C. is getting older and that, as parents, they must adapt to the changes, he will encounter difficulties with the child; that C. must be permitted to express her wishes and opinions; that, when C. was in therapy last year, her therapist sought the father's involvement in the process but he never returned his phone calls, that the application for a change of custody should be denied in its entirety.

The Attorney for the Child alleges as follows: that she has met with her client and, after conversations with C., states on behalf of her client that she remain in the custody of the mother and continue to attend Grace Christian Academy.

In post-judgment proceedings regarding a modification of custody and visitation, the standard to be considered is the "best interests of the child" after consideration of all the applicable factors (see, Friederwitzer v. Friederwitzer, 55 NY2d 89, 447 NYS2d 893, 432 NE2d 765 [C.A.1982]; Parental access is an important right of the non-custodial parent and the child and, when it is demonstrated that one parent has interfered with that right, the court must intervene to remediate the conduct. (Lauren R. v. Ted R. 27 Misc 3d 1227A,911 NYS2d 693 [Supreme Nassau Co. 2010}). However, "[a] change in custody should not be permitted solely as a means for punishing a recalcitrant parent" (Lauren R. v. Ted R , supra).Indeed, even in the most grievous situation, where a clear pattern of parental interference with visitation has been shown, the Second Department has directed the focus to be on compliance with the custody and visitation provisions of the partes stipulation rather than the imposition of more drastic measures. (see, Rubin v. Rubin, 78 AD3d 812, 911 NYS2d 384 [2nd Dept. 2010]).

In his motion for custody and related relief, an obviously loving father expresses concern about the behavior and emotional development of his budding adolescent fourteen (14) year old daughter. Most of the allegations of the father relate to socialization of the child and her friends, her passing fancy with the latest fads and musical rage and the over-involvement of the custodial mother with the child to the extent that it interferes with the father's parenting time and the development of a close relationship with him. All the while, the child has one finger on the text button when she is with the father, and the mother shows up frequently during the father's parenting time, allegedly to bring the child an item left behind that she desperately wants, or just happens to appear at an adventure park, with Grandma , where the father has scheduled an activity.

It is well known to the court and to mental health professionals that custody litigation is among the highest stress and anxiety producing events in both the parents and the child's lives, and is not to be undertaken lightly. Forensic Evaluations, no matter how skillful, are invasive and known by the child to be part of a process that they generally do not welcome. In the case at bar, it is the judgment of the court that the allegations against [*5]the mother do not presently warrant the initiation of a Forensic Evaluation or the need for a hearing on a change of custody. Rather, the concerns of the father will be addressed by using directives, as set forth below, that clearly define the conduct that is expected from the custodial mother, to insure the uninterrupted parental access time of the father with daughter C. Based on the foregoing, it is hereby

ORDERED, that, commencing on the first day after personal service of a copy of this order on the mother, pursuant to CPLR §308(1), and upon the mother's attorney, pursuant to CPLR §2103(b)(1)(3) or (6), the following behavior shall be observed:

1. The mother shall neither initiate nor respond to any electronic or telephone communication to or from the child during the father's parenting time, except in the case of an emergency when the mother shall call the father. When C. is in the custody of her father, the mother may telephone or text the child one (1) time per day, during the hours of 5:00 to 7:00 p.m., or at such other time that is agreed to by the parties,;

2. The mother is prohibited from scheduling events for the child or buying tickets for events that take place during the father's parenting time, without the prior written consent of the father,

3. The mother is prohibited from initiating or scheduling social activities, dates, or parties for the child during the father's parenting time, without prior written consent of the father. Any social activity that occurs during the father's parenting time, such as sleep overs, parties, birthday celebrations, etc., must be discussed by C. and her father, to insure the father's availability to transport the child and his willingness to permit the child's attendance.;

4. The mother is prohibited from appearing at the father's home or at activities arranged by the father during his parenting time, without the prior consent of the father. Any items that are required by the child during the time she is with her father, that have been forgotten or require purchasing, must be discussed by C. and her father, who will determine what action, if any, will be taken; and it is further

ORDERED, that neither party shall permit the child to read any portion of the papers filed herein, but shall discuss with C. the importance of her time with her father and her need to discuss and plan, with her father, the activities and events that will occur during their time together; and it is further

ORDERED, that the portions of the motion that seek a change of custody, a Forensic Evaluation and a Subpoena Duces Tecum to Verizon for the production of text messaging records, are denied without prejudice to renewal in the event of a violation of the aforesaid directives; and it is further

ORDERED, that the mother's cross-motion for dismissal of the father's motion and [*6]for counsel fees is denied. This is not to say that there is no merit to some of the mother's positions, but only that there is merit to the father's position as well. The court is particularly concerned that the mother presents as an overly involved parent who has difficulty letting her daughter spend unfettered time with her father. A continuation of such behavior is, in the court's estimation, not only detrimental to C's best interests, but also exhibits an inability on the part of the mother to recognize the boundaries necessary for C. to have a meaningful relationship with her father and a successful transition into becoming an independent self-confident young woman.

All further requested relief not specifically granted is denied. This constitutes the decision and order of the court.

ENTER

______________________________

Dated: June 1, 2011Anthony J. Falanga, Justice

Mineola, New YorkSupreme Court, Nassau County