Referral by Supreme Court, Essex County (Muller, J.) for the determination of the parties' respective applications to fix permanent custody and visitation made in their pending divorce action (FCA §467).

A trial of the issues was commenced on December 20, 2013. As a result of the evidence adduced, this Court determined that a forensic psychological evaluation of the family by Dr. Elizabeth Schockmel, PSY.D (Schockmel), a clincal, forensic psychologist, would assist the Court in determining the issues referred. Conclusion of the trial was held in abeyance pending the completion of the evaluation. An interim decision was entered January 8, 2014 temporarily awarding joint legal and shared physical custody of the children according to an alternating parenting time schedule, with specific provisions regarding transportation and communication with each other and the children. Schockmel's report was completed at the end of April 2014, and the trial resumed on August 6, 2014 and completed on August 26, 2014. During the course of the trial, the Court heard testimony from the parties, non-party witnesses, as well as from Schockmel, who testified in detail regarding her evaluation. Her written report of that evaluation was also received in evidence. The Court conducted two Lincoln hearings (Lincoln v. Lincoln, 24 NY2d 270, 273-274, 299 N.Y.S.2d 842, 247 N.E.2d 659) one at the time of the Court's interim decision and order and the second one at the close of evidence at trial. This Court has assessed the character, temperament, and sincerity of the parents, and evaluated the credibility of the parents and other witness based upon their demeanor, the manner in which they testified, and the consistency, accuracy and probability or improbability of their testimony in light of all other evidence. The Court's findings of fact are set forth throughout the remainder of this decision and order.

The parties are the married parents of two sons, D., born on June 6, 2003 and J., November 20, 2005, respectively. The parties met as students at Elim Bible Institute in western New York in the summer of 1999. Both in their late thirties and single, and wishing to start a family, their courtship ended in marriage by December of that year. While they both maintain strong religious beliefs, their backgrounds are strikingly dissimilar. The father was raised in Pennsylvania and shortly after first becoming a parent at age 19, he enlisted in the Navy for four years. He abandoned his son after visiting him a handful of times during those years, as he felt that the mother had moved on and that this child's maternal grandfather had taken over a father figure role. During and subsequent to his time in the service, he battled addiction issues with alcohol and marijuana, as he attempted to self-medicate his anxiety and depression while working in construction and as a bartender. He became involved with the Teen Challenge program, a long-term Christian substance abuse rehabilitation program as part of his recovery, where he became "rooted deep in the biblical principles that keep [one] clean", and ultimately enrolled as a student at Elim. The mother, a woman of mixed race, was born and raised in South Africa during the years of that country's apartheid system of racial segregation, the daughter of a pastor. A serious student, she chose not to date and pursued a nursing career, earning an RN degree prior to emigrating to Canada to join her mother and sisters. When she enrolled at Elim, as her sisters before her had done, she left her established career in nursing with the intention of returning after one year of bible studies.

Commencing around the time of their wedding, the mother began to notice the father's issues with anger on various occasions, but elected not to mention it to anyone. After the birth of their first child, when he became angry, he "would take [the baby] and leave the house". The relationship was continually characterized by his yelling, explosive anger and belittling name calling towards the mother. Despite and in fact, because of, the father's increasingly controlling and domineering behaviors, the mother was too afraid to address her concerns about the marriage, even being "deadly afraid" of him and that she lived at all times so as to avoid escalation of any situation where he might become upset. On one occasion, he banged on a closet door, breaking the door in anger while the mother nursed one of their children nearby, and on another he slapped the bible into the mother's thigh. He once backed his car into hers to move her car out of the way. The parties went to religious-based counseling through their church both prior and during the marriage, but it was unsuccessful in addressing the real issues, as the mother was too frightened to be candid during sessions, knowing that she would have to ride home with the father.

At the bible institute, the parties were taught that women are subservient to men. The evidence established that the parties' relationship was marked by these precepts, and the father controlled the parties' relationship from its very commencement. For example, the father made all financial decisions, not always keeping her informed, and telling her that she did not know how to handle money even though she had done so while living on her own for many years. He often denigrated her, telling her on more than one occasion to "get off her fat black ass". While the father was a student in an LPN program — he received his degree in 2001 — he would curse at her and tell her that she was dumb. Moreover, prior to the mother attaining status as a United States citizen, the father used her citizenship status as an ongoing weapon throughout the marriage to exert control over the mother. In addition to telling the mother her citizenship status precluded her from having her name on the deed to the marital residence, he threatened her that her status would also prevent her from obtaining custody of the children if she attempted to leave the relationship. He often had an excuse to delay acting upon her application for United States citizenship, such as by telling her that there was no money to pay for it, no ride to get there, or some other such reason. The mother finally became a citizen in 2007.

The effect of domestic violence by the father against the mother is of deep concern to this Court, particularly in its pervasive effect upon the development of the parties' children and the children's relationship with the mother. The father admitted adopting the biblical definition of corporal punishment, "40 lashes minus one", but this Court found his testimony denying his use of, or threat to use, physical punishment on the children, other than to smack their hand with his hand and swatting each child on the backside with a spoon on a single occasion as a consequence for not doing their homework, to be not credible. On one occasion, the father grabbed the child D. by the shirt collar to put the child on the couch.

During the last years of the parties' marriage, the father would berate the mother with screaming and name calling in front of the children as regularly as three times a week. The mother would respond by taking the children upstairs to escape until the father calmed down. The marital problems reached the breaking point during the first few months of 2012. The father relapsed and started consuming alcoholic beverages. He obtained prescription medications from his primary care physician (now his employer) such as Valium, Stratera, Lisinoprel and Zoloft, claiming that he suffered from depression, anxiety attacks, attention difficulties, and high blood pressure. The father submitted to a substance abuse evaluation, but failed to disclose the full nature and extent of his alcohol consumption or his use of prescription medications. He failed to reveal to the evaluator incidents of drinking to excess and sleeping in his car. On March 18, 2012 the mother waited for him to come home. After 3:00 a.m. she found the father slumped in the driver's seat of his car. She banged on window to wake him up. He got out of the car, went inside, but he was bumping into things as he walked. There was another occasion when she found him in his car during the early morning hours. Also during this period of time, the mother was working an evening shift thereby leaving the father alone while with the children overnight. The father admitted to drinking alcohol on one occasion. Schockmel noted that her concerns for inappropriate treatment of the children by the father would be greater if he were again unable to maintain his sobriety.

There were two domestic incidents to which the state police responded. The last incident resulted in the parties' separation. The father became enraged at the mother in the presence of the children. The mother telephoned her neighbor and asked her to listen and not hang up. The neighbor overheard the father telling the mother to get out, that it was his house not hers, that the children were "his kids", that she was no good, that she was a "bitch" and "prostitute", and that it was the mother's fault that there was a child abuse case requiring her and kids to leave because he left the child D. alone in the road. The neighbor then telephoned the state police and went over to the parties' residence, entering through the back door. She observed the children standing next to the father and heard him tell the mother to get out and call her names such as "prostitute" and "bitch". The father's yelling lasted about an hour until the state police arrived.

Since the parties' separation, the children have taken to modeling the father's disrespectful and insulting behaviors. The child D. now exhibits similar episodes of explosive name-calling and anger towards the mother, on various occasions calling her a "bitch", a "fucking bitch", an "idiot" [*3]and a "witch". Both children have told the mother that they do not have to do what she tells them and that she is to blame for the divorce. This oppositional behavior has escalated and worsened, particularly with the child D who often takes as long as two days to behave appropriately after returning from the father's home. The children have stated to third parties that "Mommy hates men" and "makes [the father] pay for everything". Despite the mother's wishes to enroll the children in mental health counseling, the father has been consistently against it. He has refused to grant permission for the children to receive counseling from either their school or Catholic Charities, claiming that the child D. is too young for counseling.

The father has engaged in inappropriate discussions regarding court proceedings and the parties' separation, and has exhibited poor parental judgment. He has engaged the children in prayer seeking reconciliation of the parents so that the family will live together. On more than one occasion, the father has had the children call the mother to arrange for her periodic parenting time during his custodial weeks, and defied her wishes on the manner in which she would celebrate the Christmas holiday. This practice places the mother in a bad light in the eyes of the children; they call with certain expectations, and if she is unable to meet those expectations she is cast in a negative light. The father's poor judgment was also evidenced by his allowing the children to play mature-rated computer or video games such as Halo and Sniper on their X-Box and engage in online gaming communities without his supervision. The father has also failed to pay court-ordered child support, amassing more than $11,000 in arrears.

Scant evidence was introduced as to each parent's home. The mother resides in an apartment in Westport on the same street as the maternal aunt, who has two sons, ages 12 and 9, slightly older than the children here. In fact, the parties move to Westport from the Rochester area during the infancy of their eldest child was precipitated by the fact that the mother's sister and her family resided there. The parties' physical separation in the spring of 2012 resulted in a temporary order of protection directing the father to move out of the marital home in Westport. By the following summer, an alternating custodial schedule was put into effect, and the father moved from place to place, residing with friends including the family's pastor during times that he had custody of the children, ultimately renting a cabin. In December 2012, the mother moved into an apartment in Westport. Since the parties' home was empty, the father resumed residence there, where he still resides.

The children follow different daily routines in each parent's home. The mother works as a direct support professional for disabled adults, and the father is employed as a licensed practical nurse for the local hospital. During his parenting time, the father's work schedule allows him to take the children to school after feeding them breakfast, and they attend the after-school program until 5:00 p.m. Conversely, during the periods when they are residing with their mother, they take a 6:45 a.m. bus to school, but return to her home directly upon dismissal from school. Both children are doing well in school and are on the honor roll.

"The principal concern in any child custody dispute is the best interests of the child, to be determined by reviewing such factors as maintaining stability for the child, the child's wishes, the home environment with each parent, each parent's past performance, relative fitness, ability to guide and provide for the child's overall well-being, and the willingness of each parent to foster a relationship with the other parent" (Porcello v Porcello, 80 AD3d 1131, 1133 [2011] [internal quotation marks and citation omitted]; see Farina v Farina, 82 AD3d 1517, 1518 [2011]; Matter of Grant v Grant, 47 AD3d 1027, 1028-1029 [2008]). "An initial custody determination is controlled by the best interests of the child, taking into consideration such factors as the parents' ability to provide a stable home environment for the child, the child's wishes, the parents' past performance, relative fitness, ability to guide and provide for the child's overall well-being, and the willingness of each parent to foster a relationship with the other parent (see Matter of Lunch v. Gillogly, 82 AD3d 1529, 1530, 920 NYS2d 437 [2011]; Matter of Torkildsen v. Torkildsen, 72 AD3d 1405, 1406, 900 NYS2d 193 (210)]", (Rundall v. Rundall, 86 AD3d 700, 701, 927 NYS2d 414, 416 [3d Dept., 2011]. Also, "the effect of any alleged domestic violence upon the children is a factor that must be considered, among others, in custody cases (see Domestic Relations Law §240[1][a]; Matter of Lopez v. Robinson, 25 AD3d 1034, 1037, 808 N.Y.S.2d 494 [2006]; see also Matter of Wissink v. Wissink, 301 AD2d 36, 39, 749 N.Y.S.2d 550 [2002])" (Kilmartin v. Kilmartin, 44 AD3d 1099, 845 N.Y.S.2d 466), plus " the effect that an award of custody to one parent might have on the child's relationship with the other parent' (Bliss v. Ach, 56 NY2d 995, 998, 453 N.Y.S.2d 633, 439 N.E.2d 349)" (Young v. Young, 212 AD2d 114, 118, 628 N.Y.S.2d 957, 960 [2d Dept., 1995]). Additionally, "[t]he Family Court was required to consider the parties' support obligations and their compliance with court orders (Domestic Relations Law §240[1][a][4]) and to evaluate each party's ability to support the child (see Eschbach v. Eschbach, 56 NY2d 167, 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260)." (Wissink v. Wissink, 301 AD2d 36, 40-41, 749 N.Y.S.2d 550, 553 [2d Dept., 2002]).

Consideration of the foregoing factors and criteria favors the mother. She is best able to maintain stability for the children and provide a stable and nurturing home environment. Her past performance has been superior to that of the father. The father has been the source of instability and has engaged in behaviors harmful to the children, both before the separation with his episodes of anger, degradation and domestic abuse towards the mother in the presence of the children, and also following the separation in having the children pray for the parents' reconciliation and other behaviors previously noted in this decision. As noted by Schockmel, the father has engaged in behaviors which have alienated the children from their mother. The facts establish that the father has not promoted a positive relationship between the children and the mother, the result of which has been the children's inappropriate name-calling at the mother and their oppositional behavior to her parental directives. Research shows that children who are exposed to domestic violence may develop a wide range of problems, including externalizing behavior problems (Carlson, B. E. [2000], Children exposed to intimate partner violence: Research findings and implications for intervention, Trauma, Violence and Abuse, 1[4], 321-342), and that abusive ex-partners are likely to undermine the victim's parenting role (Jaffe, P.G., Johnston, J.R., Crooks, C.V., & Bala, N. [2008], Custody disputes involving allegations of domestic violence: Toward a differentiated approach to parenting plans, Family Court Review, 46 [3], 500-522). As Schockmel concluded, as does this Court, that [*4]while the father claims to encourage the children to have a strong relationship with their mother and is seeking sole custody at the request of his children, he is doing so in order to resume a place of control in the life of the mother, by making himself a middle man to whom she must go to maintain her relationships with the children. While the father's attempts to exert power and control over the mother may have roots in his strong religious beliefs, such provides only a partial explanation for his behavior, not an excuse. The mother is the more fit parent, with a greater ability to guide and provide for the children's overall well-being, particularly since, as Schockmel concluded in her report and this Court finds, the father is more likely to parent from a position of authority than the mother, who has a child-centered approach.

The mother's religious notions of a subservient and submissive wife, together with her cultural background as a woman of mixed race raised under a political system of forced racial segregation, are important keys to understanding her mindset and history of under-reporting the abusive nature of their relationship during the parties' marriage. The father, who presented in the courtroom as reasonable and mild-mannered and denied being controlling or abusive, misunderstands domestic violence and is unable to appreciated its pervasive effect upon the children and the mother. Significantly, in testifying at trial, the father did not rebut the significant history of domestic violence referenced by the mother, the maternal grandmother and Schockmel. Additionally, while the father presented several witnesses at trial who testified as to his good character, such evidence does not speak to the emotional temperature of the parties' home life. It is intrinsic to the nature of domestic violence-based relationships that the controlling and harmful behaviors accompanying such abuse are often limited to inside the four walls of the home, and remain a secret to on-lookers. The mother's statement to Schockmel that the father had a pleasant social personae but remained demeaning and rage-filled at home is not necessarily inconsistent with the testimony from the father's character witnesses, and aligns with the profile of a domestic abuser.

" Domestic violence is a pattern of coercive behavior that includes the physical, sexual, economic, emotional, and psychological abuse of one person by another' (Breitenbach, Note, Battling the Threat: The Successful Prosecution of Domestic Violence after Davis v. Washington, 71 Alb. L Rev. 1255, 1256 [2008], quoting Digirolamo, Myths and Misconceptions about Domestic Violence, 16 Pace L Rev. 41, 44 [1995])." (In re Wiesner, 94 AD3d 167, 204, 943 N.Y.S.2d 410, 437 [dissent] [1st Dept., 2012]). Having admittedly witnessed domestic violence between his parents while growing up, he is prone to such behavior himself (Grych, JH, 2005, interparental Conflict As a Risk Factor For child Maladjustment: Implications For the Development of Prevention Programs, Family Court Review, 43 [1], 97-108) despite his denials that he himself was not harmed by it. The circumstances here make problematic the willingness of each parent to foster a healthy relationship with the other parent. Similarly, the effect that an award of custody to the mother might have on the children's relationship with the father will initially be troublesome. Behavioral health counseling for the entire family is critically important for there to be a positive resolution of these issues in the best interests of the children.

Finally, the evidence clearly established that the mother and the father do not effectively communicate or cooperate with each other for the children's best interests, and have been unable to [*5]act as a united team for the benefit of the children. They have not co-parented due to the imbalance of power and control: not during the marriage, and not since the separation, which, too, has been marked by the father's continued systematic undermining of the children's relationship with the mother. It cannot reasonably be expected that a custody and visitation order based on co-parenting will be effective in the near future. The mother is remains intimidated by the father's behaviors. Significant to the family dynamics at play here is a long term history of domestic violence, power and control of the mother by the father, including verbal, emotional and physical abuse. As a result, the children's emotional and intellectual development continues to remain at risk. The father's reluctance to engage the children in counseling is both puzzling and inappropriate. There is a clear and present need to decrease the conflict and contact between the parents by means of the parenting schedule. "Given the obvious inability of these parents to work and communicate with one another for the best interest of their child, continued joint custody is simply not feasible (see Matter of Grant v. Grant, 47 AD3d 1027, 1028, 849 N.Y.S.2d 341 [2008])." (Goldsmith v. Goldsmith, 50 AD3d 1190, 1191, 859 N.Y.S.2d 749, 750 [3d Dept., 2008]). In families with a history of domestic violence, an award of joint custody can increase the abuser's opportunities to maintain control over, and to continue or escalate abuse toward, both the victim and their children (Saunders, D.G. [2007], Child custody and visitation decisions in domestic violence cases: Legal trends, risk factors, and safety concerns, Harrisburg, PA: VAWnet, a project of the National Resource Center on Domestic Violence/Pennsylvania Coalition Against Domestic Violence [http://www.ssw.umich.edu/about/profiles/saunddan/CustodySaundersVAW-net.pdf]). "To be sure, joint custody is inappropriate where the parties are so acrimonious, embattled and embittered as to effectively preclude joint decisionmaking (see, Braiman v. Braiman, 44 NY2d 584, 589-590, 407 N.Y.S.2d 449, 378 N.E.2d 1019)" (Palmer v. Palmer, 223 AD2d 944, 945, 637 N.Y.S.2d 225, 226 [3d Dept., 1996]). "As a court-ordered arrangement imposed upon already embattled and embittered parents, accusing one another of serious vices and wrongs, it can only enhance familial chaos" (Braiman v. Braiman, 44 NY2d 584, 589-590, 407 N.Y.S.2d 449, 378 N.E.2d 1019 [1978]). Justification for sole custody is amply supported by the record, which is replete with evidence of a harmful dynamic of domestic abuse by the father over the mother (see Matter of Martin v. Martin, 45 AD3d 1244, 1245—1246, 846 N.Y.S.2d 696 [2007]; Matter of Brown v. Skalwold, 228 AD2d 749, 751—752, 643 N.Y.S.2d 732 [1996], lv. dismissed 89 NY2d 860, 653 N.Y.S.2d 281, 675 N.E.2d 1234 [1996] ).

The Court has not accepted in full Dr. Schockmel's recommenda-tions for parenting time by the father. The children's escalating and worsening behavior towards the mother upon their return from visiting with him, and the length of time following such visits before the children behave properly in her home, is of deep concern. Were the father to be granted one night of parenting time every week in addition to alternating weekends, as Dr. Schockmel suggested, this Court is concerned that most of the time that the children are with the mother she would be dealing with the problematic aftermath of those visits, at least until the parties and the children obtain appropriate counseling and the children are able to maintain consistently appropriate behavior in the mother's home immediately after such visits. Once that occurs, this Court would be open to considering modification and expansion of the father's parenting time.

The parties' custody and visitation rights and obligations shall be as follows:

(A)in even-numbered years, the fathers's parenting time for the week in November containing the fourth Thursday of the month (Thanksgiving) shall commence on Wednesday at 5:00 p.m. until Thanksgiving Day at 3:00 p.m., and in odd-numbered years his parenting time shall be from Thanksgiving Day at 5:00 p.m. until the following day at 5:00 p.m., except that in the event that such following day is the first day of the father's parenting time under paragraph 2 above, then his parenting time shall continue until Sunday at 5:00 p.m.; and

(B)in even-numbered years, the father shall have parenting time from December 23 at 5:00 p.m. until December 24 at 5:00 p.m., and in odd-numbered years he shall have parenting time from December 24 at 7:00 p.m. until December 25 at 4:00 p.m.;and

(C)during the children's President's week school recess, the father's parenting time shall be increased an additional two days, depending on when his weekend parenting time under paragraph 2 shall fall, namely, if his weekend falls on the first weekend of that recess he shall have parenting time until Tuesday of the recess week at 5:00 p.m., and if his weekend falls on the last weekend of the recess then his parenting time shall begin on Wednesday at 5:00 p.m.; and

(D)during the children's Easter week school recess, the father's parenting time shall be increased an additional two days, depending on when his weekend parenting time under paragraph 2 shall fall, namely, if his weekend falls on the first weekend of that recess he shall have parenting time until Tuesday of the recess week at 5:00 p.m., and if his weekend falls on the last weekend of the recess then his parenting time shall begin on Wednesday at 5:00 p.m.; and

(E)Commencing in 2015 and continuing each year thereafter, during the months of July [*6]and August of the children's summer recess ,the father shall have in each month one week of parenting time with the exchange to be on Sunday at 5:00 p.m. The father shall notify the mother each year in writing of such weeks not later than June 1 in any year, and in the event of an unreconcilable disagreement either party may apply to this Court to resolve the dispute; and

(F)if the birthday of a parent falls during the parenting time of the other parent, then the parent celebrating his/her birthday shall have two hours of parenting time with the children during the hours of 5:00 p.m. until 7:00 p.m.

(A)engage in any conduct or use any words which are of a derogatory or critical nature relative to the other parent, which may estrange the children from the other parent, which may injure the children's opinion of the other parent, or which may in any way tend to lessen or alienate the affection and respect of the children for the other parent, nor shall either parent allow any third party to do so; or

(B)discuss any adult issues with the children, or allow third parties to do so, including but not limited to custody, visitation and support.

It is so ordered.

W. Bradney Griffin, Esq.

Erin Hayes, Esq.

Baronese Rutz

William Rutz

Hon. Robert J. Muller, J.S.C.