On June 21, 22, and 23, 2011, a hearing was held on an expedited basis for purposes of establishing an order of temporary custody of the parties' children and a temporary access schedule. After considering the testimony of the parties, the documents admitted into evidence, and the procedural history of this case, the Court hereby makes the following findings of fact and reaches the following conclusions of law on temporary custody and access pending the custody trial scheduled to commence on September 22, 2011 at 9:30 A.M.

PROCEDURAL HISTORY

The parties were married on September 19, 1993, and have two children of the marriage, A.C. (DOB November 19, 1999) and B.C. (DOB May 21, 2003). The parties commenced this action for divorce on November 27, 2007.

The parties entered into a stipulation of settlement on July 28, 2009, resolving all issues arising out of their marriage. The stipulation resolved custody by awarding both parties joint custody of the children with the mother having residential custody and the father having a regular access schedule. The judgment of divorce and supporting papers were submitted to the court in October of 2010. However, prior to entry of the judgment of divorce, in October of 2010, the children were removed from the mother through a temporary order of protection following an incident where it was alleged that the mother used physical force against the older child, A.C., to discipline him, causing bruising on his arm and face. Photographs of the bruising were admitted into evidence. The children were placed in the custody of the father by Child Protective Services (CPS) and have been living with him since October of 2010.

CPS conducted an investigation of the incident and made a finding of "indicated" against the mother. The Westchester County District Attorney brought criminal charges against the mother in Town of Yorktown Justice Court, which were resolved on March 17, 2011, through a plea agreement whereby the mother was granted an Adjournment in Contemplation of Dismissal (ACD), with a one-year order of protection containing a stay away provision prohibiting contact between the mother and the children. The order of protection, which expires on March 16, 2012, is subject to modification in Supreme Court.

A family offense proceeding, which was commenced by the father on behalf of the children in Westchester County Family Court, has been removed to this Court.

In light of the conflict between the terms of the custody agreement and the order of protection prohibiting contact between the mother and the children, this Court would not sign the judgment of divorce until such time as custody was resolved.

The father now seeks sole physical and legal custody of the children. The mother seeks sole physical and legal custody of the youngest child, B.C., joint custody of the oldest child, A.C., and a therapeutic means to repair her relationship with him so that she may regain physical custody. To assist this Court with the custody issues, the Court appointed John Pappalardo, Esq., as Attorney for the Children, and Marc Abrams, Ph.D., to conduct a neutral forensic evaluation of the parties and children. Since there were allegations of substance abuse, both parties were ordered to undergo drug and alcohol testing and analysis by Dr. Ray Griffin.

The scheduling of the custody trial was delayed until such time as the criminal proceedings were concluded against the mother and the court received the report from [*2]the neutral forensic evaluator. In the interim, this Court held numerous conferences in an effort to resolve the issues of custody and to facilitate some form of access between the mother and the children. The order of protection has since been modified to allow for therapeutic visitation between the mother and the children with therapist, Linda Seaver, family therapy with Dr. Reesa Fremed, and to allow the mother to attend certain sports activities and specific religious ceremonies for the children.

The Court received the report of Dr. Marc Abrams on June 16, 2011, and the parties reviewed the report shortly thereafter. Based upon the recommendations of Dr. Abrams, the attorney for the mother requested an immediate court conference, which the Court granted. A conference was held on June 21, 2011. After discussing the case with counsel for the parties and the attorney for the children, the Court made efforts to resolve custody and access on an interim basis pending a full trial. Counsel for the mother demanded nothing less than the immediate transfer of custody of the youngest child, B.C., to the mother based upon the recommendation of Dr. Abrams. The father would agree to allow the mother to have an unsupervised access schedule, but he would not agree to an immediate transfer of B.C.'s custody to her. When efforts to resolve these issues appeared futile, this Court began an immediate hearing to determine temporary custody and access.

At the hearing, the reports of Dr. Abrams and Dr. Griffin were admitted into evidence and were reviewed by this Court as the fact-finder. Due to the Court's time limitations, the Court limited the evidence to the testimony of the parties, who were subject to direct and cross-examination, the reports from the neutral forensic evaluators, photographs, and documentary evidence. The hearing was held over portions of three days, concluding on June 23, 2011.

During the hearing, a stipulation was placed on the record whereby both parties agreed to enroll in individual therapy by July 1, 2011 and to begin therapy as soon therafter as possible, to continue family therapy with Dr. Fremed, and to execute HIPAA compliant authorizations to allow access to their therapy records. Since therapeutic visitation with Linda Seaver was, unfortunately, unproductive, all parties agreed to terminate these sessions with her and to use Dr. Fremed to facilitate supervised visitation between the mother and A.C. The mother agreed that her boyfriend, P.F., would have no contact with the children until further court order.

At the conclusion of the hearing, the Court denied the mother's request for an immediate transfer of B.C.'s custody to her and instead, set an unsupervised access schedule for B.C. and the mother, and a means for the mother to continue therapeutic visitation with A.C. through family therapy. This order is discussed more fully below.

DISCUSSION/ANALYSIS

"As a general rule, while temporary custody may be properly fixed without a hearing where sufficient facts are shown by uncontroverted affidavits, it is error as a matter of law to make an order respecting custody, even in a pendente lite context, based on controverted allegations without having had the benefit of a full hearing." (Carlin v Carlin, 52 AD3d 559, 560 [2d Dept 2008].) In deciding questions of custody, the court must determine what is in the children's best interests and what will best promote the children's welfare and happiness. (Eschbach v Eschbach, 56 NY2d 167 [1982].) The paramount concern in a custody dispute is to determine the best interests [*3]of the children based on a consideration of all the relevant facts and circumstances. (Id.)

An agreement between the parties as to custody is but one factor for the court to consider in deciding whether a change of custody is warranted. (Id.). Factors for the court to consider in determining what is in the children's best interests include: the quality of the home environment and the parental guidance the custodial parent provides for the children; the ability of each parent to provide for the children's emotional and intellectual development; the financial status and ability of each parent to provide for the child; the relative fitness of the parents; and the length of time the present custody arrangement has been in effect. (Bowe v Robinson, 23 AD3d 555, 556 [2d Dept 2005].)

Also, "[t]he stability and companionship to be gained from keeping the children together is an important factor for a court to consider" in deciding custody. (Id.) "Close familial relationships are much to be encouraged. Young brothers and sisters need each other's strengths and association in their everyday and often common experiences, and to separate them, unnecessarily, is likely to be traumatic and harmful." (Eschbach, 56 NY2dat 173.) While the express wishes of the children are not controlling in determining whether to modify custody, they are entitled to great weight, after consideration of the age and maturity of the children and the potential for influence having been exerted on the children. (Id; Bowe, 23 AD3d at 557; Friederwitzer v Friederwitzer, 50 NY2d 89, 94 [1982].)

The parent's ability to place the children's needs above his or her own in fostering a continued relationship with the noncustodial parent is another important consideration for the court to consider. (Lohmiller v Lohmiller, 140 AD2d 497 [2d Dept 1988]; Janecka v. Franklin, 150 AD2d 755, 756 [2d Dept 1989].) Where evidence of a parent's denigration of the other parent leads to a conclusion that the offending parent "is unwilling or unable to abstain from this deleterious conduct . . . ,[s]uch conduct has been held to be an act so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as a custodial parent.'" (Id.) However, even egregious conduct in this regard must be viewed within the context of the children's best interests. (See John A. v Bridget M., 16 AD3d 324 [1st Dept 2005]; D.Z. v C.P., 18 Misc 3d 1123[A] [Sup Ct Queens Co 2007].)

The role of the court appointed forensic expert in custody matters is to offer guidance and inform—with the ultimate determination on custody being a judicial function, not one for the expert. (John A. v Bridget M., 16 AD3d 324, 332 [1st Dept 2005] [Sullivan, J., concurring].) The fact that an expert has been appointed by the court does not require the court to accept the expert's opinion. (Alan M. v Donna M., 204 AD2d 459 [2d Dept 1994].) The recommendations of court-appointed forensic experts are but one factor for the court to use in deciding custody and are entitled to some weight. (Neuman v Neuman, 19 AD3d 383, 384 [2d Dept 2005].) "However, they are not determinative and do not usurp the judgment of the trial judge." (Id.)

"Moreover, a court should be mindful that the existence or absence of any one factor cannot be determinative on appellate review since the court is to consider the totality of the circumstances." (Id.) [*4]

The mother relies heavily upon the recommendation of Dr. Abrams in support of her application for an immediate transfer of B.C.'s custody to her. However, considering the totality of the circumstances presented here, the decision to transfer custody of the younger child alone is drastic and, if not made after careful consideration of all factors, is likely to cause further damage to the children and their inter-family relationships.

Dr. Abrams notes in his report that the choices presented here on custody are difficult and imperfect. With much trepidation, Dr. Abrams recommends "the lesser of two evils," which is to split up the two children to avoid irreparable damage to the relationship between the mother and the youngest child, B.C. He opines that the mother's relationship with the oldest child, A.C., is irreparably damaged, and he fears that this may occur with B.C. if custody of him is not transferred to the mother. Dr. Abrams opines that the father and his mother (the paternal grandmother) have engaged in conduct intended to undermine the children's relationship with their mother and that this conduct is likely to continue, destroying any hope of salvaging the mother-son relationship between B.C. and the mother.

While this Court finds some credence to the claim that the father has engaged in conduct that has undermined the relationship between the children and their mother, this one factor alone should not be determinative on custody. Rather, the court must look to the totality of the circumstances in determining what is in the best interests of the children. Indeed, even if the father's conduct in this regard was considered to be egregious, it still must be viewed within the context of the children's best interests.^[FN1] (See John A. v Bridget M., 16 AD3d 324 [1st Dept 2005]; D.Z. v C.P., 18 Misc 3d 1123[A] [Sup Ct Queens Co 2007].)

The Court notes that Dr. Abrams' recommendation of splitting custody of the boys between the parents was made to salvage the relationship between the mother and B.C. In reaching his recommendation, Dr. Abrams did not provide the Court with a substantive analysis of the many other important factors, such as the quality of the home environment, the financial circumstances of the parties, the compatibility of the parties' work schedules with the children's schedules, parental fitness and the ability of each parent to provide for and guide the children's emotional and intellectual development, and, importantly, the potential trauma to the children if they are separated, particularly when this is strongly against their wishes and they remain in a fragile emotional state. While assigning great weight to the father's conduct in causing alienation between the mother and the children, Dr. Abrams never analyzed the degree to which the mother is culpable in causing the deterioration in her relationship with the children. In sum, Dr. Abrams' recommendation did not take into account the totality of the circumstances—the standard this Court must consider in making any determination as to what is in the best interests of the children.

This Court finds, based upon the record presented here, that the quality of the [*5]home environment provided by the father is indeed substantially better for the children than the home environment provided by the mother. The father, with the assistance of his mother (the paternal grandmother), provides a caring, nurturing, and loving environment for the children. The father's financial circumstances are stable and he has the means to care for the children. The father's work schedule allows him to drive the children to school and pick them up at the end of the day. He has been actively involved in the children's sports activities and has been dutiful in raising them in their religion. The children are clearly suffering and remain in a fragile emotional state as a result of the divorce, making it particularly important to keep them together. If they were to be separated, the result is likely to be harmful and traumatic.

The mother testified that she would quit her job to care for B.C. if she was awarded custody of him. While the mother may have the best intentions in making such a statement, the Court questions her judgment, as it is unrealistic for her to think she could quit her job and care for herself and her child financially. The mother is unable to pay her bills now while she is earning an income, and she has failed to explain how she will financially support her son if she quits her job.

Dr. Abrams comments that the mother was emotionally neglectful of the children before they were removed from her care, which is important for this Court to consider in assessing her parental fitness. This Court is troubled by the extent of the bruising on A.C.'s arm and face, and the mother's admission that, in disciplining him, she grabbed his arms and face, and that she would use spanking as a means to discipline her young children.

Also troubling is the mother's judgment in openly sharing a bed with her boyfriend in a hotel room with her young boys sharing the bed beside them when the divorce judgment has never been signed, and when it should have been readily apparent to her that the children were suffering from the divorce and were confused by her relationship with a different man. The boys were about ages 10 and 7 at the time. This Court questions whether the mother is capable of placing the emotional well-being of her children above her own needs and lifestyle.

Dr. Abrams has stated that the boys should not be exposed to the mother's boyfriend "for a long time to come." Yet, the mother admits to seeing her boyfriend every day and gave no plan as to how she would reconcile this relationship with her responsibilities as the custodial parent of B.C., who is clearly in a tenuous emotional condition.

This Court admonishes the father for engaging in conduct that has undermined the relationship between the mother and the children, and cautions him to scrutinize his behavior objectively and, through therapy and parenting education, find a way to change this behavior so that he promotes the important mother-son relationship. The father is further cautioned, that if he fails to affirmatively change this behavior, the emotional damage to the children could be devastating and irreparable and he risks losing custody of his children.

The father has willingly agreed to attend therapy and take steps to correct the situation. Since this is the first time the father has been faced with the issue of his alienating behavior, the Court believes that he should be given the opportunity to correct his behavior. The Court is also mindful that this alienating behavior, according [*6]to the record, only began after the parties separated and the father noticed the children were suffering emotionally. At the same time, the mother began a relationship with another man where she exercised poor judgment and was neglectful of her children, placing her lifestyle above the emotional well-being of her children. It was also at this time that A.C.'s behavior became more hostile towards his mother, ultimately resulting in an altercation between them with evidence of physical harm, and the removal of the children from their home through CPS and an order of protection.

The father and his mother, the paternal grandmother, became, understandably, defensive about the children and their instinct was, and is, to protect them. While their protective behavior has gone too far—the children's mother is also to blame for this situation. Both parties have to work on their parenting skills and, to their credit, have agreed to attend individual therapy and family therapy and to continue the children with their therapy.

This Court does not believe that an immediate transfer of B.C.'s custody to the mother is in the best interests of the children. The potential damage to the children if this action were taken could be devastating and irreparable. This action could only cause further resentment by the children against their mother. The children need to be with each other now in a stable nurturing home environment, one which the father provides. There is no compelling reason here to separate them against their wishes. If this Court were to transfer custody of B.C. to the mother, this award would serve more as a punishment to the father for his misconduct, without consideration of the mother's culpability, rather than as an appropriate custody award in the children's best interests. (See John A. v Bridget M., 16 AD3d at 337 [Saxe, J., concurring].)

This Court has carefully considered the testimony, character, and sincerity of the parties, who were subject to vigorous direct and cross-examination, as well as the evidence admitted during the hearing. Considering the totality of the circumstances—the mother's problematic history with the children over the past year or two and the deterioration in their relationship before October of 2010; the incident that occurred in October of 2010 resulting in CPS removing the children from the mother; the existence of an order of protection against the mother that remains in effect until March 16, 2012; the daily presence of the mother's boyfriend in the home; the conflict between the children's schedules and the mother's work schedule; and the tenuousness of the mother's financial situation, as compared to the stability presented by the father's home environment and his financial situation; that the father has been an involved caregiver and has taken an active role in the children's lives; the strong desire of the children to remain together with their father; as well as the father's willingness to undergo therapy and parental education to correct his alienating behavior—the best interests of the children will be promoted by an order awarding the father temporary custody of the children, pending a full custody trial, with the mother having increased access to the children as ordered below.

Accordingly, it is hereby ORDERED, that

1.The plaintiff shall have temporary sole legal and physical custody of both children;

2.The order of protection issued by Town of Yorktown Justice Court on [*7]March 17, 2011, shall be modified as follows:

a.Commencing on June 26, 2011, the defendant shall be permitted unsupervised visitation with B.C. on Tuesday afternoons from 12:00 P.M. until 3:00 P.M., with pick-ups at camp and drop-offs curbside at the plaintiff's residence; Wednesday evenings, or such other evening, during family therapy sessions and immediately following until 8:30 P.M., with pick-ups at Dr. Fremed's office and drop-offs curbside at plaintiff's residence; and every Sunday immediately following mass at St. Elizabeth Ann Seton Church in Shrub Oak, New York, from about 12:00 P.M. until 6:00 P.M., with pick-ups at church and drop-offs curbside at plaintiff's residence.

b.The defendant shall be permitted supervised visitation with A.C. at family therapy as scheduled by Dr. Fremed at her office.

c.The parties may communicate by text message or e-mail regarding issues relating to the children.

3.The children shall have no contact with P.F. and the defendant's parents and step-parents until further order of the court.

4.The parties shall return to court on July 19, 2011 at 11:00 A.M. to report on the status of the access schedule and any progress made. At that time, the Court will consider whether overnight visitation between B.C. and the defendant may commence, or whether this schedule should be modified.

5.Both parties shall enroll in individual therapy no later than July 1, 2011, and begin therapy as soon thereafter as possible.

6.Both parties shall execute HIPAA compliant authorizations allowing access to their therapy records.

7.The plaintiff shall continue the children in their therapy with Jennifer DiBenedetto.

8.The parties shall continue family therapy with Dr. Reesa Fremed, who shall also facilitate therapeutic visitation between A.C. and the mother, if possible.

The parties shall appear before this Court on July 29, 2011 at 9:30 A.M. for a hearing on plaintiff's application to terminate his maintenance obligation to the defendant based upon her residing with an unrelated male in violation of the stipulation of settlement. [*8]

The parties shall appear before this Court on September 22, 2011 at 9:30 A.M. for a custody trial, which shall continue day-to-day until concluded.

This constitutes the Decision and Order of this Court.

Dated: White Plains, New York

June 27, 2011

Hon. Francesca E. Connolly, J.S.C.