In this proceeding, the father, E.G.M., is requesting joint custody of the parties' son, J.M., and the mother, J.R.A., seeks sole custody and modification of a prior order of Bronx Family Court, dated September 12, 2018, which granted the father visitation. For the following reasons, the court finds that it is in the child's best interests to grant the mother sole legal and physical custody of the child, and to modify the 2018 visitation order as described further.

The parties have one child, J.M., born in 2018. Pursuant to the September 12, 2018 final order of the Bronx Family Court, entered on consent, the father was granted visitation with the child every Tuesday and Wednesday from 12 PM to 8 PM, and on Fridays from 5 PM to 9 PM.

The parties' cross-custody and modification petitions were filed in 2018, shortly after the Court had issued a final order on visitation. Throughout the pendency of this proceeding, the Court has issued various temporary orders of visitation; among other directives the latest order grants the father one overnight visit each week.

A trial was held on the father's family offense petition on December 4, 2019. After testimony by the father, the Court dismissed his petition with prejudice after finding he failed to establish any family offense. The mother also withdrew her family offense petition without prejudice on that same date. The Court will not consider here any testimony taken on the family offense petition.

A trial on these custody petitions was held on multiple dates between December 2019 and October 2020, with a long delay before the final date caused by the COVID-19 pandemic. At the trial, both parties and the court appointed forensic psychologist, Bennett Pologe, Ph.D., testified. The Court took judicial notice of all relevant petitions filed and orders issued in Bronx [*2]Family Court. In evidence were various photographs and Dr. Pologe's August 8, 2019 report.

A. Mother's testimony

The court generally finds the mother credible. Her testimony was consistent, honest, compelling and forthcoming. There was nothing raised in her direct or cross-examination that called her credibility into question.

The mother has lived in her current home for ten years and currently lives there with the subject child, who is two months shy of three years old. She had met the father at work; they both work for the Metropolitan Transportation Authority (MTA). They began a sexual relationship and lived together at her current apartment from approximately March 2018 until May 2018; he moved out when their child was about three weeks old.

The mother explained that the parties' relationship ended because it was "aggressive." After she gave birth, the parties had been taking care of the child in shifts. But, her "last straw" was when in response to the child having colic and crying a lot, the father yelled at the few week old "baby" to "shut the fuck up already," and would not stop screaming. She then asked to hold the baby. At that point, she was scared for herself and the child.

There had been other incidents prior to the birth that caused her concern. During one extended incident which lasted over the course of two days when she was eight months pregnant, the father refused to let her leave the home or contact her family. In response to the mother desiring to end the relationship, he hid her phone, iPad, watch, and laptop and ripped out the locks from all the doors to the apartment so she wouldn't be able to lock him out of the home. At one point during this incident, the father dragged her from the living room to the bedroom, held her down on the bed and would not let her leave the bedroom. He then stood at the door of the room all night so she wouldn't leave. She was also forced to miss a day of work because of this extended incident which caused her great stress.

In another incident when she was eight months pregnant, she returned home to the father who had imbibed a significant amount of alcohol. He accused her of being unfaithful and then picked up a wood and glass coffee table and threatened to throw it at her. She was so afraid that she thought she would lose the baby that day.

In yet another incident after she gave birth, the father was driving the mother and child in a car. The father was speeding with their newborn and when the mother asked him to slow-down he told her to "shut the fuck up," and called her a "bitch" and a "motherfucker."

Overall, the mother explained that there is not a good line of communication between herself and the father. She does, however, tell the father about doctor appointments and things she has taught the child, and sometimes send photographs or videos to the father.

She has never met the father's current wife, A.M., with whom he lives. However, in March 2020, the child had reported to her that A.M.hits him on the arm. When she confronted the father about this, he denied it immediately and said you are a "fucking liar you are fucking making this up." In October 2020, when the child returned from a visit with the father, he had a scratch on his nose and reported that A.M. scratched him. He also reported that he did not like A.M. On October 10, 2020, at a family gathering the subject child also told a roomful of family members that when he is at his father's home A.M. covers his mouth and tells him to "shut up already."

When the mother tries to discuss her concerns with the father, his response is [*3]"disgusting." She fears something is happening to her child and does not believe a two-year-old could or would make up these stories.

Another concern arose when the father and his wife gave the child a haircut and braided his hair, which the child reported hurt. She was also concerned because the father has Tourette's Syndrome and he should not be using a blade or clippers on their son; she has witnessed him having trouble controlling his hands. When she called the father's wife to request that she not cut or braid the child's hair, A.M. refused to discuss the issue.

According to the mother, she makes all medical appointments for her son, although she does notify the father about them. She also taught the child to read and write and about the alphabet and numbers. She also potty trained her son. She does various activities with the child, including playgroups and taking him to the Zoo.

The mother's family, including her own mother, her niece, sisters, aunts, and cousins all live in New York and are involved in the child's life. They often take care of her son when she needs help. In contrast, the father does not agree to watch the child beyond his scheduled visits when the mother has asked him to do so.

When the child returns from visits with his father, his behavior is changed. He acts aggressively and speaks about YouTube videos and games that are inappropriate for a two-year-old. When he discusses one game, he asks the mother to fight and she has to explain that he can't hit her and has to "readjust" his behavior. When the father advised her about one of the videos he watched with the son, the mother watched it herself and it was a grown man killing with guns and knives. She told the child he could no longer watch it; she texted the father to discuss her concerns, but he never responded.

The mother did not agree with the father's request to equally split the child's time between them. She noted that such a change would disrupt his life, take him out of his routine and be difficult. She is also concerned that the father allows the child to do whatever he wants whereas she tries to steer the child toward social norms. Before agreeing to a schedule, the mother thought the parties needed to address their poor communication and the fact that A.M. is hitting the child. On the other hand, she always ensures the father is able to visit their son. Ultimately, she asked the Court to finalize the temporary order of visitation.

On cross-examination, the mother explained that she did not have an agreement on visitation because she thought the situation had worsened between the parties. She is unsure how the father's overnight visits are going because the parties don't communicate.

The father does not tell her about what activities he does with their son. She reiterated that the child describes the videos and games he watches with his father and that in relation to that the child has punched and slapped her.

The mother admitted that there had been a handful of times in which the father had requested additional time with the child, and she did not allow it.

Regarding the danger of giving the child a haircut, the mother explained that she personally saw the father having difficulty having a steady hand because of his Tourette's Syndrome.

B. Father's testimony

The court finds the father's testimony to be credible in some regards but finds that in certain key respects his testimony was evasive, contradictory, not forthcoming, and conflicted with common sense. As a major example, he repeatedly insisted that due to an injury at work he was guaranteed to be out of work and receiving worker's compensation for two years. Upon [*4]further examination, he finally admitted this determination was dependent on the review of a medical professional yet continued to maintain that he would be out of work for two years. This was a transparent attempt to testify such that his purported schedule for the next two years would somehow support his request to equally split the child's time between the parties.

As another example, the Court took judicial notice of a January 17, 2020 financial disclosure form that the father filed with the court in the parties' child support proceeding which indicated income of only $363 per month. On cross-examination, the father testified that he in fact was receiving $1850 bi-weekly in worker's compensation income and he failed to provide a valid reason for this discrepancy.

The father had also filed with the Court an "Affidavit of Non-Consent" purporting to establish that the Court does not have jurisdiction over him, and claiming he is part of a Sovereign Nation. However, Dr. Pologe indicated that the father had either lied to him or forgot about filing this affidavit. Either way, Dr. Pologe indicated this made the father's "account of data more suspect."

Overall, the father did not provide adequate answers to many allegations and concerns raised by the mother, such as the history of domestic violence or current safety issues for the child. His answers did not seem honest and did not show him to be taking these concerns seriously. Rather, his responses seemed to be an effort to avoid important issues in the case and in the life of the subject child. Such avoidance of issues further called his credibility into question.

The father testified he had filed his petition for joint custody in order to have equal time with his son. He explained that once he moved out of the mother's home, she continually denied him time with their son. According to the father, he left the home in May 2018 because there was a lot of arguing and accusations made by the mother against him. As one example, he pointed to a dispute after he attended a friend's birthday party and the mother accused him of "hanging with his wife."

The father explained that during his relationship with the mother he was still married to his wife — A.M. — and remains married to her until the present time. However, he did not have any children with his wife.^[FN1] He has a 12-year-old son — T.M. - with another woman, who lives in Florida and whom he saw in the summer and on holidays. He had never had difficulty sharing time with T.M.'s mother. The subject child was able to meet T.M. when he was an infant. During that time period of 2018, he saw J.M. for approximately 12 hours each week; specifically, he saw him 3 days a week for four hours each time.

The father described himself as dedicated father willing to go "above and beyond." Regarding J.M., he described himself as a great father figure, said he tried to teach him and engage in various activities.

The father testified about various photographs entered into evidence, including one taken after J.M. was born. The father, who was in the room for the birth, discussed the photographs and stated that there was nothing like holding "your son on you."

The father noted that the parties rekindled their relationship from July to August 2018. [*5]Prior to that he did not see J.M. for a month and he begged the mother to see him every day. However, she denied him because he had filed something in Court. During this time, she would occasionally send him pictures of their son.

Generally, he felt he had issues working out visits with the mother. He claimed that she almost always denied his requests for extra time, but that he readily agreed to any changes to the visitation schedule requested by the mother. As one example, he had planned a birthday party for J.M. in 2019. He asked to extend his visit by one hour but the mother simply responded "stick to your court time."

The father works as a bus driver for the MTA. However, at the time of his testimony in December 2019 he was not working at all. The reason he was not working is that on Black Friday 2019 he was injured on the job when someone threw a bottle through his bus window that shattered on his face. He was cut in various places and glass had to be removed from his eye or near his eye.

As noted, he insisted that he would probably be out of work for the next two years because MTA workers are "allowed up to two years" at the discretion of the worker, and that he therefore could spend time with J.M. every day for the next two years. In response to the Court's request for clarification, the father explained that MTA policy permits any driver subjected to assault to elect to stay out of work for two years. However, he then noted that part of the process including seeing a "comp doctor" and a "psych" to be examined frequently, and that the doctors would "ultimately make the decision." He then continued to insist he would be out of work for two years even though he was just beginning the evaluation process and no doctors had made any determinations. He separately admitted he could have to return to work sooner, but then also maintained it was up to how he feels "mentally."

At the time of his December 2019 testimony, he saw J.M. Tuesdays and Wednesdays from 10 AM to 8 PM, and on Fridays from 3 to 9 PM. During his visits, he prepares meals for him including French fries, rice and beans, pasta, apples and carrots. In August 2019, the mother raised concerns about the child's appetite and suggested calling the pediatrician. The father noted that he had been in contact with the pediatrician and had taken care of J.M. when he was sick. He and the mother had also attended some of J.M.'s medical appointments together.

He complained that the mother often gave him instructions and micromanaged how he took care of J.M., and accused him of not feeding J.M. properly. While he admitted that he was not perfect and that parenting was a learning experience, he did not think he had any shortcomings in terms of feeding or caring for J.M.. He then went on to explain how he experiments with different foods to get his son to eat.

He also bathes J.M. and works with him on potty training. He has purchased various children's furniture, toys, clothes, and equipment so he is well prepared for visits. He also has a crib for J.M. in his home. He has taken him to many outside activities such as pumpkin picking, the playground, and "Bounce U." He enjoys doing these things with J.M., and often records it and sends videos to the mother.

Ultimately, he was requesting an alternating week schedule in which the parties would have equal time with J.M. He believed such a schedule would eliminate many of the problems he has now and would allow him to have more time with J.M. He added that he is able to care for J.M. during the week. At the time of his testimony in October 2020, he was still out of work and maintained he would remain out of work until August of 2021. As an alternate plan, he would be willing to have every other weekend and to split holidays and time in the summer.

On cross-examination, which took place in October 2020, the father stated that he lived with his wife and had recently had a new baby. They all lived together in Yonkers, New York. He admitted that one of the reasons he had asked to reduce his child support payments for J.M. was that he was paying spousal support to his wife. He had also asked for his support to be reduced because he was receiving worker's compensation.

The father admitted that J.M. had been living with his mother for his entire life and that he had only resided with J.M. during a brief period of time when the parties were still in a relationship. He currently has one overnight visit each week with J.M. However, the mother has allowed him to have additional overnights a few times.

In general, J.M. is well and is advancing appropriately for his age. He agreed that the mother was a good mother. He believed that the mother's biggest issue in dealing with him was his wife. Specifically, he explained that when the parties in a relationship the mother's family warned her that he would return to his wife. He then alleged that the mother stalked his wife, and called her and accused her of things. He also said that the mother accused his wife of beating J.M., which was false. He knew it was false because he is "around all the time." While he then admitted that there were times he was not around, he was certain nobody had hit or scratched J.M. Regarding the child's reports of being hit and scratched, the father gave them little consideration because J.M. is a "kid" and the mother could have manipulated him.

He denied there were issues with his own behavior that would cause the mother concern, and maintained that there were no problems until they broke up. He added that when "it is something major about our son we communicate." As examples, he mentioned times when J.M. was sick. He denied having cursed the mother out and accused her of cursing him out; he then admitted that they have "had our words" and that "it goes both ways."

He denied ever hitting the mother. He denied the incident in which he was allegedly driving fast and cursing at the mother. He further denied the incident in which he allegedly picked up a coffee table angrily. He also insisted that the incident where he hid all of the mother's devices, trapped her from leaving the home, and held her down "never happened." He did admit texting the mother that she was "holding their son hostage" and "using him for money." But, he denied telling her that if she "dropped him from child support" he would drop this case.

As to his current state of health, the father sees the comp doctor once a month and the psych every two weeks. He was prescribed Ambien but does not take it. He had told the doctor he has trouble sleeping in the middle of the night but denied that this affected him during his waking hours. Because of the assault incident, he was also diagnosed with PTSD; he sometimes thinks about the assault and fears driving a bus again. He claimed he could not yet return to work.

The father was also diagnosed with Tourette's Syndrome, which manifests with blinking, facial ticks, and noises. He denied that this condition made him angry or curse at people. In fact, he denied having any anger issues.

Regarding his schedule request, he did think about how it affects J.M. and also noted that his wife loved J.M. If J.M. were ever actually hit by his wife he would speak to both J.M. and his wife about it.

C. Dr. Pologe

Dr. Pologe's August 8, 2019 report was entered into evidence as a Court exhibit. He recommended "reluctantly" that the mother should have custody of the subject child. He noted [*6]that even if the mother was untruthful in her evaluation about her interactions with the father it did not greatly affect her parenting. He also recommended liberal visitation for the father, but recommended supervised visitation on an interim basis if it were determined that the father were lying. He further recommended detailed instructions for the parties because they "show little ability to cooperate." Finally, he recommended the use of a mental health professional to help the parties learn how to communicate.

In reviewing his interactions with the parties, Dr. Pologe reported that the parties disagree about almost everything that happened during their relationship and subsequently. He noted that the parties litigation began only a few months after J.M. was born.

The mother reported to Dr. Pologe about various incidents of conflict and domestic violence between herself and the father — in line with her testimony at trial - as well as a number of concerns she had about the father's parenting abilities related to rashes and health issues J.M. had as an infant. After psychological testing, Dr. Pologe found that the mother presented herself defensively and incompletely, "in a more positive light than eventually emerged."

The father denied he was ever violent or threatening to the mother, and in fact claimed she had behaved that way. He also claimed she had made various accusations against him, such as diaper rash concerns, and that issues with visitation increased when he returned to a relationship with his wife. After psychological testing, the father presented with the same type of defensiveness the mother had but "to a much greater degree."

Each party's collateral sources provided positive reviews of them as parents; the child's pediatrician found no concerns with the child's health or signs of neglect. Both parents presented as loving and responsible when they were observed with J.M.

Although the parties both demonstrated good parenting skills, "with each other" they may be "at their worst." They both exaggerated and selected data in speaking with Dr. Pologe and neither seems to make efforts to communicate productively with the other.

During his cross-examination, Dr. Pologe explained that in preparation for his report he met with each of the parties separately; each interview was two and one-half hours, which is a common time frame. In addition, he met the child with each parent; these sessions each lasted thirty minutes.

Dr. Pologe reached the conclusion that the mother's reporting to him was less than accurate. Specifically, she was defensive in her psychological testing and had provided proof that did not establish what she thought it did. For example, the mother had raised concerns about illnesses and infections found in the child, but the pediatrician had confirmed that these were all normal and there was no evidence of neglect or any problems with either parent. Regarding the domestic violence incidents alleged by the mother, Dr. Pologe did not receive any police reports from her to support her claims.

Dr. Pologe had at first found the father to be charming and nice but he was less sure by the end of the evaluation what his impression of the father was. He also said things that could not corroborated.

Ultimately, while all the collateral contacts for both parties gave positive reviews, Dr. Pologe found that the parties "push each other's buttons." They are trapped in a vicious cycle in which they don't communicate; the mother will raise a concern, the father will not respond to it because he is angry, and then the mother understandably does not want him to have visitation. Dr. Pologe suspected that the father is a "high functioning, dependable guy" who deteriorates when he is around the mother, and "vice versa."

While Dr. Pologe had "reluctantly" recommended that the mother should be granted custody, with visitation to the father, he was concerned about "whether anything the parties told him was true." He believed much of what they had said was true and that they had made exaggerated accusations against each other. The mother had exaggerated concerns but it was also true that the father did not respond to her concerns out of anger. He also had considered the father's expression of anger, including in front of the child.

In general, both parties appeared to be good parents. Dr. Pologe concluded that the father appeared to be a good parent based on the father's accounts of parenting his older child, an interview with the mother of that child, the father's demeanor with J.M., and his tone of voice when speaking to the Dr. Pologe.

Dr. Pologe noted that the father had told him he was diagnosed with Tourette's Syndrome and that some of the possible symptoms include compulsive behavior, impulsivity, hyperactivity, difficulty with body movements, anxiety and apprehension. The primary symptoms are involuntary muscle movement and vocalizations, tics and grunts. The father also told him he was not receiving any treatment for Tourette's.

Dr. Pologe found that J.M. was a well child who bonds well with his mother. He observed the mother to be responsive, warm and an effective parent. He found the father's concerns about the mother's parenting not to be supported. He did also find in psychological testing that the father was being disingenuous. He also agreed that the child had lived with his mother for his entire life which was a factor in making a recommendation as to custody. Further, there was nothing that would warrant a transfer of custody to the father.

Dr. Pologe also opined that it is understandable that someone who has been the victim of domestic violence would have difficulty communicating with the person who committed those acts of violence against her. In this case, the mother had, if reporting truthfully, described incidents of domestic violence at the hands of the father. He also believed it was reasonable for an expectant mother to be concerned that stress may cause problems with her pregnancy. He added that the father's alleged behavior during the end of the pregnancy was "scary," "awful" and "destructive, especially to a pregnant woman." Moreover, he noted that because the mother had witnessed violence between her own parents these incidents could be traumatic.

A. Custody

Tragically, the parties have been in litigation regarding their son since he was a couple months old. He is now approaching his third birthday and the conflict between the parties shows no signs of improvement. To the contrary, it appears to have increased, to have expanded to include the father's wife, and has given rise to other serious concerns for the subject child. Despite the many disagreements, it was undisputed that the parties communicate poorly and cannot work together as co-parents.

However, despite these circumstances, the father's written summation argues that the parties should be granted the equivalent of joint physical custody regarding the time spent between households. He makes no request regarding legal custody.

The mother's written summation requests sole legal and physical custody and takes the position that the trial is primarily a dispute about what the father's visitation schedule should be. In this regard, the mother asks the Court to make the most recent temporary order of visitation part of the final order. More specifically, that order grants the father an overnight visit from Tuesday to Wednesday each week, and a day visit on every Friday.

No parent has a prima facie right to custody over another parent and custody awards must be based only on the child's best interests and in promotion of the child's health and happiness. (Domestic Relations Law §70[a]). No one factor is determinative of custody; rather, the Court is required to consider the totality of the circumstances. Among the factors to be considered are the respective ages of the children, the financial circumstances, the home environment of each parent, the parental fitness of each parent, the preferences of the children, and a goal of keeping siblings together. (See Eschbach v. Eschbach, 56 NY2d 167, 172 [1982]). When applicable, the Court must also consider the length of time of any prior custodial arrangement and ensure stability for the children. (See Friederwitzer v. Friederwitzer, 55 NY2d 89, 94 [1982]).

It is unclear to the Court what the father's motivation was in pursuing joint custody, whether financial, some unarticulated principle he is pursuing, as a means to further the parties' conflict, or his purported desire to see his son more often. Notably, he has now abandoned his quest for any form of legal custody. In any event, there is little to no dispute about the relevant custody factors. There is also no dispute that there has been a change of circumstances since the 2018 order in that the parties' relationship has worsened.

First, the 2018 order which granted the father limited day visits essentially recognized the mother as the primary parent and custodian of the child. The Court gives some weight to the existence of this order and the fact that the parties have operated pursuant to this order since 2018.

In addition, there is no dispute that the mother is the primary parent of the child, and has been the main parent to take care of the child's daily needs since his birth, as well as the one who makes medical appointments. She also made efforts to inform the father about the child's growth and development. The factor of stability also weighs in favor of maintaining the de facto custodial arrangement that has been in place since the child's birth.

The court also gives strong consideration to the incidents of domestic violence described by the mother. These incidents occurred both during the late stages of pregnancy and in the presence of the child. Particularly frightening is the incident during which the father exerted total control over all the mother's communication devices and dragged her into the bedroom, held her down, and then limited her movements for an extended period of time. As Dr. Pologe concluded, these incidents are "destructive" and "awful." In addition, they demonstrated a measure of impulsivity and dangerousness such that the father cannot be trusted to be a responsible or safe custodial or joint custodial parent.

Notably, despite the incidents of domestic violence and the serious communication problems between the parties, the mother continued to generally facilitate visits between the father and child. She did so despite her continued valid concerns about his parenting and behavior. Her willingness to facilitate visits in these circumstances also supports her request to be the sole custodial parent.

The Court gives some weight to Dr. Pologe's ultimate recommendations but is not solely guided by them. Dr. Pologe's report is most helpful in understanding how the parties work or fail to work with each other as parents. While he found both parties to have made efforts to appear in a better light and to have exaggerated certain concerns, he also had many more concerns about the father in the event the Court found the father incredible. Dr. Pologe even suggested supervised visits for the father in the event the father was found to be "lying."

Since the Court has now found the father to be incredible in many respects, the Court is [*7]in part guided by Dr. Pologe's concerns about the father's "lapses in behavior" such that he is not only an inappropriate custodial or joint custodial parent, but also may require some form of supervised visitation.

Moreover, as Dr. Pologe explained, whatever strengths each parent has individually, they "show little ability to cooperate," and "with each other" they may be "at their worst." Dr. Pologe also concluded that the parties are trapped in a vicious cycle in which they don't communicate; the mother will raise a concern, the father will not respond to it because he is angry, and then the mother understandably does not want him to have visitation. This conclusion is supported by the testimony at trial, most notably the father's blanket denial that J.M. was being hit by his wife and his incredible sweeping denial regarding all of the incidents of domestic violence.

Overall, the trial testimony and Dr. Pologe's report make it extremely clear that any type of joint custodial arrangement is not feasible, healthy or practical for this family. The parties have no ability to communicate effectively or productively, or to work together as parents thus making joint decision making an impossibility. This reality also supports the Court's conclusion that the father's request for equal physical custody or time with the child is entirely inappropriate.

The Court also considers that the child is still very young, is highly impressionable and is surely impacted by the parties' conflict and by his parents' choices and behavior. In this regard, the Court notes that there are a number of concerns raised by the mother that are troubling. These include the use of corporal punishment on the child by the father's wife and her other mistreatment of the child while in her home, the inability of the mother to speak to the father's wife or the father about any concerns, and the father's introduction of the child to inappropriate, violent videos and games. In fact, the mother described having to readjust her son when he returned from visits with his father, a sign that he is being negatively influenced by his experiences at his father's home.

The Court has concerns with the father's parental fitness raised by his own admissions at trial. Both in relation to his diagnosis with Tourette's Syndrome and his more recent work injury, the father admitted he does not take medications or receive treatment for his conditions and symptoms. He failed to do this even though he was having trouble sleeping and had PTSD after the work injury he sustained, and even though he was specifically prescribed medication for these issues. This demonstrates very poor judgment and failure to take his own health seriously. Even more concerning, he failed to take seriously whether he should attempt to give the child a haircut, given his issues with bodily control due to his diagnosis. Relatedly, the father had no insight as to how his conditions might impact his interactions with others or his parenting.

Similarly, the father demonstrated no insight into the importance of communication between himself and the mother. Critically, when the mother raised serious concerns about the child's health, the child being hit or being shown inappropriate content, the father either denies the concerns, avoids them, or curses at the mother and fails to engage in the often difficult work of parenting. It is the constant obligation of both parents to communicate and to resolve issues, especially when difficult questions are raised.

Beyond communication issues, the father also avoids the actual substance of the mother's concerns. Namely, whether a 2-year-old child should be subjected to any corporal punishment or mistreatment by anyone, and what type of videos and games are appropriate and healthy for such a young child. While he recognized there was also a conflict between the mother and his wife, the father failed to recognize that this conflict could affect his wife's feelings and interactions [*8]with the subject child, and that his wife and the mother should be able to communicate about the welfare of the subject child. This too demonstrates poor judgment and lack of insight and weighs heavily against his request for equal time with the child.

In sum, based on the totality of circumstances, the Court grants the mother sole legal and physical custody of the child. The father is entitled to independent access to the child's educational and medical records and will be notified by the mother of any significant decisions made for the child.

B. Visitation

It is well settled that non-custodial parents have a right to visitation with their children, that such visitation is a joint right of the noncustodial parent and children, and that the noncustodial parent plays a valuable role in guiding and loving their children. (See Weiss v. Weiss, 52 NY2d 170, 175 [1981]).

In this case, the parties already have a final order of visitation which granted the father day visits with the child. More recently, the parties have been following this Court's temporary order which granted the father one overnight visit per week. Both parties appear to agree that circumstances have changed in that their communication and ability to co-parent has worsened.

Were this case in a different posture, or were the mother's position on visitation different, based on all the circumstances and concerns outlined above, this Court would have to seriously consider whether some form of supervised visitation for the father was warranted.

As noted, this Court has already rejected the father's request for equal time as inappropriate here. The child's primary residence shall be with the mother and spending most of his time there will provide stability and consistency that is important for a young child. Thus, an equally split schedule would not be in the child's best interest generally. Moreover, there are serious concerns that extended stays with the father could negatively impact the child in multiple ways. These include whether he will be subject to corporal punishment and whether he will be influenced by inappropriate content for a two-year-old. And, given the inability of the parties to communicate, extended visits present the great likelihood that the mother — the custodial parent - will not even be properly informed of what is happening with the subject child.

The Court also finds that a reduction of interactions between the parties would be beneficial and would hopefully reduce the opportunities for conflict. Further, as the child approaches school-age it is evident that the parties' prior orders of visitation will not continue to be practicable. Thus, multiple exchanges of the child each week will no longer continue, and the visitation agreement will be modified as described below.

Significantly, based on the serious concerns of the father's parental fitness, as part of this order of custody and visitation, the Court is sua sponte issuing an order of protection and probation on behalf of the subject child (see Family Court Act §656; see also Jamel W. v. Stacey J., 136 AD3d 552 [1st Dept 2016]; Anderson v. Harris, 73 AD3d 456 [1st Dept 2010]). The Court is authorized to issue such an order even absent a specific request for one (Melody M. v. Robert M., 103 AD3d 932 [3d Dept 2013]). Further, the Court may issue these orders in assistance of its custody order and as a condition of its custody order (see FCA §656), and may issue both an order of probation and order of protection (see FCA §841).

Notably, there was record evidence of conflict and domestic violence that took place in front of the child, and evidence that the young child was inappropriately disciplined (see Larry v. O'Neill, 307 AD2d 410 [3d Dept 2003]), and the Court directed in its temporary order of [*9]visitation that neither parent nor the father's wife should use corporal punishment on the child. In addition, the order of protection is warranted by the father's lack of insight, failure to address valid safety concerns for the child, and poor communication with the mother. Finally, Dr. Pologe opined that the father's lapses in judgment and behavior, particularly if the Court found the father incredible, warranted supervised visitation. In issuing these orders, it is the goal of the Court to ensure safe visits for the subject child, to improve communication between the parties, and to condition visits on the father gaining insight on his behavior and obligations as a parent.

Visitation is thus granted to the father on condition that the order of protection be complied with by the father for a period of five years until February 25, 2026. The period of probation shall be one year, until February 25, 2022 during which time visits may be suspended or supervised if there is not compliance with the order. The requirements of the order of protection are as follows:

1) The father shall refrain from committing a family offense, as defined in subdivision one of section eight hundred twelve of the Family Court Act, or any criminal offense against the child;

2) The father shall not physically discipline the child during the entirety of the period of protection;

3) The father shall not leave the child alone with his wife, or permit his wife or anyone in his household to physically discipline the child and he shall refrain from acts of commission or omission that create an unreasonable risk to the health, safety or welfare of the child;

4) the father shall comply with any appropriate medical treatment for his conditions and shall take any prescribed medications;

5) the father shall attend individual psychotherapy and/or consult with an appropriate mental health professional to help give him insight into his own behavior and judgment and to improve his communication with the mother;

6) The father shall promptly inform the mother about the child's welfare where appropriate, and shall respond to the mother's communications about the child, and discuss any and all reasonable concerns raised by the mother about the child's welfare, health or safety; and

7) Within 30 days of this order, the father shall provide to the mother documented proof that he has complied with medical treatment and mental health services.

Commencing February 26, 2021, the father shall have alternate weekend visits with the subject child from Friday at 5 PM until Saturday at 6 PM. All prior visitation schedules shall no longer continue, unless specifically agreed to by both parties in writing. The pickup and drop-off shall be curbside at the mother's residence. Both parties shall have liberal and reasonable phone access with the child when he is with the other parent. The parties may also modify or expand the schedule on mutual consent in writing.

In addition, the parties shall share other time as follows:

a. Mother's Day: The mother will have Mother's Day each year

b. Father's Day: The father will have Father's Day each year

c. School breaks and Summer: The parties may agree to additional time for the father during these periods only on mutual consent in writing.

d. Thanksgiving: In odd years, the father will have Thanksgiving Day. In even years, the mother will have Thanksgiving Day.

e. Christmas: In odd years, the father will have Christmas Eve and the mother will have Christmas Day. In even years, the mother will have Christmas Eve and the father will have Christmas Day.

Accordingly, it is

1) ORDERED that the father's petition is denied and the mother's petitions are granted; and it is further

2) ORDERED that the mother is granted a final order of sole physical and legal custody of the child; and it is further

3) ORDERED that the father is entitled to independent access to the child's educational and medical records and will be notified by the mother of any significant decisions made for the child; and it is further

4) ORDERED that an order of protection and probation is issued as part of this custody order on behalf of the child until February 25, 2026; and it is further

5) ORDERED that a final order of visitation is awarded to the father; and it is further

6) ORDERED that the parties may modify the visitation schedule on mutual consent in writing.

This constitutes the decision and order of the court.