In this divorce action, the court conducted a custody trial on March 11, April 8, 9, August 12, 13, 26, September 16, 2015, January 6 and April 20, 2016. During the pendency of the action, at times each party appeared pro se and each party was represented by counsel. At present, Plaintiff (the "Husband") is represented by counsel, but Defendant (the "Wife") appears pro se. A Guardian ad Litem ("GAL") was appointed to represent the interests of the child of the marriage (who was a one year old when this action began). Each party and the GAL submitted post-trial briefs.^[FN1]

The witnesses at trial included the Husband, Wife and the court-appointed mental health forensic evaluator.

The parties were married on October 19, 2009. The one child of the marriage, a daughter, is now four years old (the "Child"). In light of the age of the Child, the court did not conduct a Lincoln hearing.

The Husband, 45 years old, grew up in Florida. He attended Duke University and, as a Fulbright scholar, worked in Africa. He subsequently attended Yale Law School. After working for a number of law firms, he settled into the general counsel's office of an international banking corporation in Manhattan. He lives in Battery Park City in a two-bedroom condominium. He owns a second apartment next to the one in which he resides.

The Wife, 46 years old, grew up in China, where she attended medical school. She obtained a student visa to study pharmacology in the United States. After working in research and for a pharmaceutical company for several years, she passed the examination for foreign medical students and became a resident first in Maryland and then in New York. She ultimately entered into a cardiology fellowship program. She is now a cardiologist at a Medical Center in Brooklyn. She lives in a private house she purchased in Brooklyn near where she works.

The parties met online in September 2007 and dated for two years before getting married. The Wife moved into the Husband's apartment in 2008. Both parties agree that initially the relationship was very good. However, even before the marriage their relationship began to grow tense. The Husband claimed that the Wife could be rigid. He told of how when she investigated buying real estate in New Jersey, she refused to consider any advice he gave. He also said that as they planned for their wedding, she would get unreasonably angry at vendors. She in turn felt that he was controlling. He insisted on going on vacation to a place where he had gone before with a prior girlfriend. He also insisted that the wedding be held where he wanted it to be held and chose where they went on their honeymoon.

After they married, the relationship further deteriorated. Because of her hospital responsibilities, the Wife worked long, odd hours and would come home exhausted. The Wife complained that increasingly the Husband would ignore her and spend time with his friends. She also complained that he drank too much beer. The Husband prevented her from using the dishwasher (he locked it claiming she used dishwashing liquid instead of dishwasher soap) and dismantled the stove top preventing her from using the burners. The Husband countered that the Wife left burners unattended while she spoke on the phone, causing food and pots to burn. He claims he wouldn't allow her to use the stove top, but he bought electric burners that automatically shut off for her to use instead. The Husband complained that the Wife yelled at him and threw furniture.

They engaged in marriage counseling through a person at his church. Although it helped stabilize the marriage for a while, it did not have a lasting effect.

Notwithstanding repeated threats of ending the marriage, the parties decided to have a child and the Wife became pregnant in December 2011. The Husband claimed he was very excited. The Wife counters that the Husband was uninvolved in the pregnancy and only agreed to have a child after she presented a budget plan.

The baby was born on August 27, 2012. The parties initially hired an English speaking babysitter, with both parties participating in selecting the nanny. After that nanny left, the parties ultimately relied on two of the Wife's relatives from China to care for the baby. The Wife paid for their costs. The relatives spoke no English and the Husband did not speak Chinese, yet the Husband agreed to this arrangement.

The parties remained together until February 2013 when the Wife moved out of the apartment into a studio apartment in the same building with the two caregivers. She did not tell the Husband of her intended move, although for some period of time she had threatened to get her own apartment. The Wife allowed the Husband access with the Child in her apartment four times a week, but ultimately the Husband stopped visiting. He found the arrangement uncomfortable and the Wife refused to allow the Child to visit with him in his own apartment. In April, the wife moved to an apartment in Brooklyn, closer to her work. The Husband took no steps to seek access with the Child through the courts. The Wife commenced an action in Family court for an order of protection and child support. Only after that action began did the [*2]Husband commence this divorce action on July 1, 2013 and seek custodial rights.

Over the course of the court proceedings, the Wife moved twice, once to another rental apartment in Brooklyn and then when she purchased her present home. The Wife reluctantly revealed these moves after the fact in court proceedings. The Husband has remained in his Manhattan apartment. The Wife initially refused to allow the Husband regular access with the Child. With court intervention, the Father's access time with the Child gradually increased to every other weekend from Friday with pickup at the Child's school until return of the Child to school Monday morning and an overnight every other Tuesday with pick up at the Child's school and return to the school Wednesday morning. In addition, each parent has enjoyed vacation time with the Child. The Wife has made decisions for the Child with respect to school and extra-curricular activities. She also selected the Child's present pediatrician, although the Husband has taken the Child to the dentist. Both parents have access to all third party providers. Either party has been free to introduce the Child to that parent's religious beliefs.

During the trial, on March 5, 2015, the parties signed two stipulations resolving certain legal custody issues related to religion, medical and dental decision-making. The Wife seeks to set aside those agreements.

The Husband has entered into a new monogamous relationship with a woman named Sophia. The Wife has not entered into another relationship. She lives with her childcare provider and father.

The primary criteria guiding the court's decision in a custody dispute must be what is in the child's best interest. DRL § 240 (1) (a). In making this determination, a court should consider the quality of the home life and parental guidance that would be provided by either parent. The court should also consider each parent's ability to provide for the child financially, but even more important, the ability of either parent to provide for the child's emotional and intellectual development. It is the duty of the trial court to evaluate the testimony, character and credibility of the witnesses. Eschbach v. Eschbach, 56 NY2d 167 (1982); Friederwitzer v. Friederwitzer, 55 NY2d 89 (1982); In the Matter of Louise E.S. v. W. Stephen S., 64 NY2d 946 (1985).

The Wife has been the Child's primary caregiver since the parties separated and clearly loves the Child. She has been responsible for the Child's medical care and regularly attends doctor's appointments. She enrolled the Child in appropriate pre-school programs. She purchased a home providing a stable physical environment for the Child. The Wife considered the quality of the public schools in her neighborhood and other child-appropriate concerns (e.g. nearby playground) before purchasing her home. Although she has had a parade of different childcare providers, there is no evidence that the Child has suffered from these changes. The Wife testified to how the Child plays with other children in the playground and how the Wife plans weekend excursions to cultural and play activities on weekends, sometimes with other children. She has the financial means to care of the Child.

The Husband also has the financial means to care for the Child. He has an appropriate apartment in which the Child has her own room. Although the Wife expressed concern about his ability to care for the Child, court-ordered supervised visits and a home visit by the mental health forensic evaluator leads this court to conclude that the Child receives appropriate care in the Husband's home and she appears to enjoy the time she spends with him. He described the various age appropriate activities he engages in with the Child. The Wife complains that the Husband is an alcoholic. The evidence revealed that the Husband regularly drinks beer and buys [*3]cases of beer at a time.^[FN2] However, there is no evidence to suggest he is an alcoholic. The Wife also complained that he suffers from serious vision problems^[FN3] that prevent him from caring for the Child. Based on the various court-ordered home visits there is no evidence that the Father's vision issues prevent him from parenting the Child.

Notwithstanding these findings that each party is a competent parent, neither party has shown an inclination to resolve this matter. Moreover, each party has engaged in conduct this court finds of concern with respect to parenting abilities.

The Husband contends he would be the better custodial parent. He argues that the evidence supports his claim that the Wife displays uncontrollable anger towards him, repeatedly denying him parental access and exclusion from a decision-making role. Yet the Husband's own actions belie his argument that he is the more responsible parent. From the time the Wife and Child left the marital residence on February 16, 2013, until the Husband commenced this action on July 1, 2013, the Husband took no steps to obtain regular access with the Child. The Husband expressed no concern when the Wife initially relocated with the Child to Brooklyn. The Husband claimed that he did not pursue access at that time because the Wife's mother was dying and he hoped that after some time alone the Wife would return to the marital residence. This claim lacks credibility since the marriage had been unraveling for months before the Wife left the marital residence. The court finds credible the Wife's assertion that she offered access, albeit on her terms, but the Husband chose not to see the Child.

But even more astonishing, as conceded by the Husband in his post-trial brief and the GAL in her brief, is that from early March 2016 through submission of the post-trial briefs towards the end of June 2016, the Husband chose not to exercise his parenting time with the Child. This court ordered that the Husband arrange for the GAL to meet Sophia since it appeared that she was spending significant amounts of time with the Child.^[FN4] Apparently, rather than have the GAL meet Sophia, the Husband chose not to see his Child. The Husband's decision displays exceedingly poor parental judgment. The Husband gives no other reason for his failure to see the Child. Since the court-ordered access schedule has him picking up the Child from her school, he cannot claim that the Wife prevented his access time. Moreover, he has not sought assistance from the GAL or made application to the court if the Wife caused the problem.

The Husband admitted to the forensic evaluator that he erred in not pursuing parenting time when the Wife left the marital residence and first moved to Brooklyn. Yet he has now engaged in the exact same conduct he claimed to have regretted in 2013. However angry he may be at his Wife, his utter disregard of the effect of his conduct on his innocent four-year-old daughter is troubling. It is difficult to understand why the Husband so desperately sought access if he had no interest in exercising his parenting time. Moreover, how he could believe that it [*4]would be appropriate for the court to allow him to make important decisions for a Child he never sees is beyond comprehension.

The Husband presents himself in court as calm and fair. However, this is not the first time that the Husband has engaged in deceptive and disturbing conduct before this court. As an example, early in the litigation, the Wife contended that the Husband lacked sufficient parenting skills to care for the Child overnight. Her argument had merit since the Husband had avoided seeing the Child for months. After a period of successful supervised visits, the court ordered the Husband to have a babysitter stay with him during his initial overnight access periods. After months of being denied overnight access, on the very first night that the court extended overnight access to the Husband, he defied the court's order by requiring the babysitter to leave his apartment to sit in the lobby of the building all night.

Later on, the Husband failed to inform the court, the GAL, or the Wife that he had a girlfriend who may have slept over in his apartment during his parental access time. The Wife first found out about the girlfriend from the Child. He displayed little understanding of how having another woman present might be confusing to his young daughter.

The Husband's role in the parties' relationship also raises concern. At best, the evidence revealed that he was set in his ways and indifferent to making the kinds of compromises necessary in a successful marriage. At worst he may have engaged in inappropriate, controlling behavior. For instance, he refused to allow the Wife to use the dishwasher by actually locking it. He removed the stove top so that the Wife could not cook certain food. Even if it is true, as he suggested, that the Wife did not correctly use these appliances, the solution would be for him to help educate her on their proper use rather than prevent her from using them. His insisted on returning to the same vacation spot he had gone to with a prior girlfriend even though the Wife expressed discomfort in doing so and the wedding and honeymoon had to be as he planned. He did not discontinue his practice of buying cases of beer at a time, even though it limited storage for the Wife's possessions.

Once granted access with the Child, the Husband engaged in a pattern of conduct that suggest a somewhat careless attention to the Child's care, knowing that his actions would enrage the Wife. On occasion, he returned to Child after his access time with her shoes on the wrong feet, a dirty diaper, and a dirty face. Court intervention was required to tell the Husband that it was necessary in transporting the Child by car service to use a car seat and, on another occasion, to tell him it is inappropriate to cross against a red light while carrying the Child. Of course, no parent is perfect and no one of these incidents would have been cause for concern. But taken as a whole they suggest a certain indifference to parenting. Moreover, the Husband certainly knew these behaviors would aggravate the Wife.

There is no question that the Wife's behavior presents serious concerns. The court has witnessed her extreme emotionality and rages. Some of her behavior may have developed as a reaction to how she felt treated during the marriage and her distrust of the Husband's motives in seeking custody of the Child. However, her displays of hostility towards the GAL, mental health forensic evaluator, plaintiff's counsel and the court suggest she suffers from more deep-seated emotional issues. The court further notes that she was often late to court appearances and [*5]untimely filed her brief.^[FN5] The forensic evaluator expressed concern that the Wife is emotionally unhealthy. He found her to be highly impulsive and has trouble controlling her anger. However, neither the Husband nor the forensic evaluator, provided insufficient evidence that the Wife's conduct observed in these court proceedings and towards her Husband, extends to other parts of her life. She has maintained her employment as a cardiologist at a major medical institution and apparently has good relations with the Child's pediatrician and school officials. Thus, the court can make no finding regarding the Wife's general psychological health.

The Husband claims that the Wife continues to say terrible things about him and may be expressing her anger against him to the Child. The forensic evaluator reported that he heard the Mother say negative things about the Husband in the presence of the Child and he observed the Child say negative things about the Husband during her access time with him. The Wife denies saying negative things about the Husband to the Child. The court must consider whether a parent is capable of fostering a good relationship with the other parent. The intensity of the Wife's continuing anger towards the Husband is of concern, particularly to the extent that she may be sharing her feelings with the Child. However, although the Wife strongly opposed the Husband having increasing access, she largely obeyed the court's orders. It also appears that despite any negative comments made by the Wife against the Husband, the Child developed a good relationship with her father.

The GAL reports that the Child is well-bonded with the Mother and appears comfortable in her care. She has made competent decisions for the Child and has provided a stable home.

From all of the evidence presented, the court concludes that it cannot award joint decision-making to the parties. The animosity between the parties prevents them from working cooperatively. Joint custody can work only where, notwithstanding the divorce, parties have an amicable relationship. Braiman v. Braiman, 44 NY2d 584 (1978). Such a relationship does not exist here. For the same reasons, the court finds the Partial Custody Stipulations entered into by the parties on March 5, 2015 are unworkable and must be set aside. The stipulations require cooperative decision-making by the parents. In light of the evidence presented during this litigation, the court concludes that it is in the best interests of the Child to supersede the stipulations with a court order of custody.

Awarding spheres of decision-making authority to a non-custodial parent may be appropriate where that parent has played a significant role in making decisions for a Child. Mars v. Mars, 286 AD2d 201 (2001). The Husband has not played a significant role in decision-making and his recent failure to exercise his parental access suggests an indifference to doing so.Accordingly, the court awards sole decision-making authority to the Wife. She shall consult with the Husband by email with respect to any important decisions that need to be made for the Child and shall consider his input, but she shall have final decision-making authority. However, each party may introduce the Child to that parent's religious affiliation. The parties have done so in the past and the court finds no impediment to their continuing to do so.

The court also awards residential custody to the Wife. If the Husband is interested in renewing his parental access time with the Child, he shall, at his expense, allow the GAL to meet with Sophia. The GAL shall report to the court whether the Husband's relationship with Sophia [*6]presents any concerns regarding his access with the Child. It is the hope of this court that each party will enjoy new, intimate relationships. The fact that the Husband has entered into one is not an impediment to his having access with the Child, but requires a recognition that such a relationship may raise issues for the Child that need to be addressed with sensitivity. If the report is satisfactory, the Husband shall initially enjoy access time with the Child every other week from Friday with pick up at school to return of the Child to the Wife's home on Sunday at 7:00 p.m. If the Father exercises these visits, the court will expand the schedule after three months to add an overnight visit every Tuesday with the Husband to pick up the Child from school and return the Child to school Wednesday morning. The schedule will also increase to allow the Husband to enjoy on his weekends Sunday night access until Monday at 7:00 p.m. if the Monday is a school holiday.

If the Husband renews access with the Child, the parties shall rotate school year vacations as follows:

In even years, the Wife shall enjoy the February week vacation and the Thanksgiving weekend vacation. The Husband shall enjoy the spring week vacation and the December week vacation.

In odd years, the Wife shall enjoy the spring week vacation and the December week vacation. The Husband shall enjoy the February week vacation and the Thanksgiving weekend vacation.

The Husband's school year vacations shall begin with pick up of the Child at the end of the school day immediately preceding the vacation period until return of the Child to the Wife's residence Sunday at 7:00 p.m. at the conclusion of the vacation period.^[FN6]

Monday holidays shall be enjoyed by the party who has access with the Child that weekend.

Each party shall enjoy two weeks of vacation with the Child during the summer school break. The Wife shall plan the Child's summer activity, but shall leave time for each parent to enjoy his/her vacation time with the Child. The Wife shall notify the Husband of the Child's planned activity by April 1 each year. In odd years the Wife shall have first choice of vacation time. In even years the Husband shall have first choice. The parent who has first choice, must select his/her weeks by May 1 or lose the right of first selection for that year. A parent may choose two consecutive weeks or may select two one week vacations. Pick up shall be on Friday at the end of the Child's planned summer activity or at the Wife's home at 6:00 p.m. with drop off Sunday at 7:00 p.m. at the Wife's home at the conclusion of the vacation (if the Husband's vacation runs over the Labor Day weekend, drop off shall be at the Wife's home that Monday at 7:00 p.m.).

Each parent shall have the right to attend all school and extra-curricular or summer activity events to which parents are invited even if not on that parent's access time.

The Husband shall have the right to confer with any of the Child's third-party providers and shall have access to all school, medical, extra-curricular and summer activity records typically supplied to parents. The Husband shall be listed as an emergency contact with any third-party provider and shall be authorized to pick up the Child from school or other activity in accordance [*7]with the schedule set forth herein.

This case is adjourned to November 14, 2016 in Part 31 at 9:30 a.m. to move forward on the financial issues of this action.

Accordingly, it is hereby

ORDERED, that Defendant shall enjoy sole decision-making authority for the Child of the marriage. She shall consult with Plaintiff by email with respect to any important decisions that need to be made for the Child and shall consider his input, but she shall have final decision-making authority. Each party may introduce the Child to that parent's religious affiliation; and it is further

ORDERED, that the Defendant shall enjoy residential custody of the Child of the marriage; and it is further

ORDERED, that if Plaintiff is interested in renewing his parental access time with the Child, he shall, at his expense, allow the GAL to meet with his significant other. The GAL shall report to the court whether the Husband's relationship with his significant other presents any concerns regarding his access with the Child. If the report is satisfactory, the Husband's access time with the Child will be resumed initially with the Husband's access time being every other week from Friday with pick up at school to return of the Child to the Wife's home on Sunday at 7:00 p.m.; and it is further

ORDERED, that if the Father enjoys the aforesaid access time, the court will expand the schedule after three months to add an overnight visit every Tuesday night with the Husband to pick up the Child from school and return the Child to school Wednesday morning. The schedule will also increase to allow the Husband to enjoy on his weekends Sunday night access until Monday at 7:00 p.m. if the Monday is a school holiday; and it is further

ORDERED, that if the Husband renews access with the Child, the parties shall rotate school year vacations as follows:

In even years, the Wife shall enjoy the February week vacation and the Thanksgiving weekend vacation. The Husband shall enjoy the spring week vacation and the December week vacation.

In odd years, the Wife shall enjoy the spring week vacation and the December week vacation. The Husband shall enjoy the February week vacation and the Thanksgiving weekend vacation.

The Husband's school year vacations shall begin with pick up of the Child at the end of the school day immediately preceding the vacation period until return of the Child to the Wife's residence Sunday at 7:00 p.m. at the conclusion of the vacation period.

Monday holidays shall be enjoyed by the party who has access with the Child that weekend; and it is further

ORDERED, that if the Husband renews access with the Child, each party shall enjoy two weeks of vacation with the Child during the summer school break. The Wife shall plan the Child's summer activity, but shall leave time for each parent to enjoy his/her vacation time with the Child. The Wife shall notify the Husband of the Child's planned activity by April 1 each year. In odd years the Wife shall have first choice of vacation time. In even years the Husband shall have first choice. The parent who has first choice, must select his/her weeks by May 1 or lose the right of first selection for that year. A parent may choose two consecutive weeks or may select two one week vacations. Pick up shall be on Friday at the end of the Child's planned summer activity or at the Wife's home at 6:00 p.m. with drop off Sunday at 7:00 p.m. at the [*8]Wife's home at the conclusion of the vacation (if the Husband's vacation runs over the Labor Day weekend, drop off shall be at the Wife's home that Monday at 7:00 p.m.); and it is further

ORDERED, that each parent shall have the right to attend all school and extra-curricular or summer activity events to which parents are invited even if not on that parent's access time; and it is further

ORDERED, that the Husband shall have the right to confer with any of the Child's third-party providers and shall have access to all school, medical, extra-curricular and summer activity records typically supplied to parents. The if the Husband renews access with the Child, he shall be listed as an emergency contact with any third-party provider and shall be authorized to pick up the Child from school or other activity in accordance with the schedule set forth herein; and it is further

ORDERED, that this case is adjourned to November 14, 2016 in Part 31 at 9:30 a.m.

This opinion is the Decision and Order of the court.