Following a July 30, 2024, Decision & Order after Trial, the Mother was awarded primary physical custody of the Children, and the parties were awarded joint legal custody with the Father awarded final decision-making authority. At the trial, the Father did not seek primary physical custody as he did not reside in Manhattan, but rather approximately 75 miles away in New Jersey.

Almost immediately after the decision was handed down, the Mother began a course of conduct of interfering with the Children's paternal relationship and frustrating almost every decision made by the Father. This disturbingly included alienating the Children from the Court. The overwhelming weight of the evidence demonstrates the Mother intentionally and improperly obtained the transcript from the Lincoln Hearing and shared it with multiple people (the number of whom remains unknown to this day).^[FN1] Further, she intentionally shared a sensationalized, misinformed, and extremely negative news piece concerning the original trial judge with the Children. The disclosure of such information compelled the original trial judge to recuse herself from this matter. (NYSCEF Doc. No. 635).

The Father moved by order to show cause and sought various forms of immediate interim relief. The Mother cross-moves. Based upon the overwhelming, alarming, and emergent circumstances in the moving papers and already extensive record, this Court granted the limited immediate interim relief of awarding the Father temporary physical custody and suspending the Mother's parenting time. After multiple appearances, oral arguments, and various interim orders, the Court has expanded the Mother's time to being supervised and directed financial relief to permit the Father to obtain short-term housing in Manhattan. Further, the Court directed expedited briefing and an emergency interim hearing on the issues of interim access, and interim exclusive use and occupancy of the marital residence.

At the emergency hearing, the Court heard testimony from both parties. Each party was permitted to provide testimony to the Court explaining what they sought from the Court on an interim basis. The Court made numerous inquiries of the parties. The Mother's counsel conducted both a direct examination of his client and a cross-examination of the Father. The Father's Counsel and the Attorney for the Child cross-examined the Mother. At the conclusion of the hearing, the Court heard final oral arguments from all counsel.^[FN2] (Shoshanah B. v Lela G., 140 AD3d 603, 607 [1st Dept 2016]; Matter of Martin v Ofelia G.O., 24 AD3d 305, 306 [1st Dept 2005]; see also, Jud. Law § 2-b[3]). The Court emphasizes that any relief it now grants is only made pending full trial on the motion sequence and all parties shall be permitted to submit supplemental briefing under the motion sequence on all issues, and additional trial dates shall be scheduled.

During the hearing, the Mother was markedly incredible. She almost invariably could not [*2]directly answer questions. In the majority of her answers, she offered non-responsive statements often aimed at painting the Father in a negative light to this Court. The Mother was repeatedly impeached, including contradicting her own testimony from just moments prior. Critically, the Mother failed to provide specificity in her testimony that would support or otherwise corroborate her allegations. On the other hand, the Father's testimony was highly credible. He answered questions directly and thoughtfully. He did become agitated on cross-examination but not to any degree in comparison with the Mother. His testimony remained consistent throughout the emergency hearing.

To modify custody there must be a substantial change in circumstances since the entry of the last custody order, and such modification must be in the Children's best interests. (See e.g., Pignataro v Davis, 8 AD3d 487, 488 [2d Dept 2004]). Here, overwhelming proof of the Mother's active efforts to interfere with the paternal relationship, malign the Court to the Children and to handicap the Father's decision-making authority — all after the entry of the Decision & Order — require this Court to act immediately to protect the best interests of the Children.

The Mother has interfered with virtually every final decision made by the Father. This includes the Children's education, religion, mental health care, and extracurriculars. In addition, the overwhelming weight of proof shows that the Mother permitted the parties' son to miss an alarming number of classes at Hebrew School, relentlessly disparaged the son's public school because she disagreed with its selection, and interfered with the Father's parenting time by failing to bring the Children for parenting time. (See Matter of Graffagnino v Esposito, 223 AD3d 905 [2d Dept 2024]; Matter of Gerber v Gerber, 133 AD3d 1133 [3d Dept 2015]; Matter of Seacord v Seacord, 81 AD3d 1101, 1103-1104 [3d Dept 2011][Affirming modification of custody due to parent's interference with decision-making]). As credibly testified to, the Mother's disturbing conduct has had a tangible result in an increased oppositional tension between the Father and the parties' son and it temporally aligns with an overall decrease in academic performance in the Children.

A particularly frightening aspect of her behavior is that due to her clear displeasure with the Decision & Order, the Mother took outrageous steps to alienate the Children from the Court, the judicial process, and the stability and finality the Decision was intended to ensure. (See L.M. v M.M., 2024 NY Slip Op 51559[U], at *6 [Sup Ct, NY County 2024, Chesler, J.]). She admitted to sending and sharing video misinformation about the prior jurist handling this matter, and the record shows she weaponized the Children's Lincoln Hearing after she nefariously acquired it. The Court of Appeals has explained the harm of such conduct. (Lincoln v Lincoln, 24 NY2d 270, 272 [1969]["There can be no question that an interview in private will limit the psychological danger to the child."]).

Finally, it is significant that the Father has temporarily moved to Manhattan during these modification proceedings and he testified that he would relocate to Manhattan for his children if necessary.

The Decision foreshadowed these circumstances stating, "[the Father] may seek appropriate relief in the event that [the Mother] substantially frustrates or undermines his decision-making authority." The record overwhelmingly demonstrates these concerns have already come to pass just months after the Decision was rendered. Accordingly, this Court finds that the record sufficiently demonstrates a substantial change in circumstances since the Decision & Order to warrant inquiry into the Children's best interests.

To ascertain the Children's best interests, the Court looks to the totality of the circumstances and examines numerous factors such as, "the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent." (Matter of Nieves v Nieves, 176 AD3d 824 [2d Dept 2019]; see Eschbach v Eschbach, 56 NY2d 167 [1982]).^[FN3]

The record raises exigent concerns about the Mother's fitness. The overwhelming proof demonstrates that the Mother purposefully obtained the Lincoln Hearing Transcript, despite being informed by Court staff that she could not obtain it, and then shared the contest thereof with multiple people. This raises "alarm bells" as it relates to the Mother's judgment. This is made more concerning because the Mother has continued to defy this Court's interim order that she have her electronic devices forensically examined for any dissemination of the Lincoln Hearing Transcript. The extensive nature of this retaliation after the Decision & Order against the Father's position and the Court, and the Mother's involvement of the children in this litigation, is distressing.

Here, the Children's best interests lie with an interim award of primary physical custody to the Father because the Mother has demonstrated that she is unable to serve as primary physical custodian as she consistently places her anger with the Father and need for retaliation over the actual needs and best interests of the Children. In addition, this Court cannot say even with a modicum of confidence that the Mother will not again seek to discuss the Lincoln Hearing Transcript, this litigation, the prior jurist, or denigrate the Father or his decisions with the Children. Contrastingly, the Father has taken strong efforts to facilitate a relationship, even during these alarming circumstances.

While not itself determinative, the Mother's active efforts to alienate the Children from their religion are not only extremely disturbing but a well-established best interest consideration. (Matter of Joseph X.X. v Jah-Rai Y.Y., 226 AD3d 49, 55 [3d Dept 2024]; Aldous v Aldous, 99 AD2d 197 [3d Dept 1984], appeal dismissed 63 NY2d 674 [1984]). This consideration powerfully weighs in favor of an award of physical custody to the Father as the Mother has shown she cannot serve the role and simultaneously ensure the proper continuity of the Children's faith. By way of example, credible testimony and the record demonstrated that, inter alia, the Mother directly told the parties' son that he was not Jewish because she was not Jewish and permitted the parties' son to miss nearly all of his Hebrew School classes since the entry of the Decision & Order. This devious interference with the religious identity of the Children flouts the Father's decision-making authority, and the parties' plan to raise the children in the Jewish [*4]faith and tradition, and is not in the best interests of the children.

Further supportive of an award of interim primary physical custody to the Father is the Mother's testimony. In almost every single question posed to the Mother she would attempt to pivot the answer to somehow either place blame or minimize the Father's role in the Children's life. It persisted throughout her entire testimony even after multiple warnings by this Court. This is clear evidence that the Mother cannot facilitate a paternal relationship as she views the Father as an always negative force. In direct contrast, the Father did not raise objection to expanded supervised access and the record makes clear his belief that the Mother is essential to the Children. Very telling from the Mother's testimony was that upon being cross-examined by the Attorney for the Children she was not able state that the marital residence brought stability to the Children's life unless she was there.

In her written submissions, the Mother claimed that the Father committed domestic violence. There was no credible evidence or proof offered to support the assertion such that the Court could make any legal finding of domestic violence (See FCA § 812; Social Services Law § 459-a).

The Court acknowledges that the Child's Attorney stated he was not substituting judgment at this time and that his clients' positions were to return to their Mother's primary physical custody and specifically the marital residence. While there may be discomfort, there is no evidence of harm to the Children since their temporary placement in their Father's care. While the express wishes of the Children are a factor in the best interest's inquiry, they are not determinative nor controlling. (Eschbach, supra at 173; Obey v Degling, 37 NY2d 768, 771 [1975]). Likewise, courts have regularly recognized that an award contrary to the position of the Children's attorney is not per se improper. (Matter of Gerber, supra at 1138; B.N. v J.N., 2024 NY Slip Op 51029[U] [Sup Ct, NY County 2024, Chesler, J.]).

Accordingly, the record before this Court powerfully demonstrates, even at this interim point, the best interests of the Children require the Father to be awarded temporary primary physical custody.

"[A] court may place restrictions on visitation that promote the child's best interests and are not unduly restrictive, including ordering therapeutic or other kinds of supervised visitation." (Michael B. v Patricia S., 2024 NY Slip Op 06005, at *2 [1st Dept December 3, 2024]). While the record indicates the Mother has been physically abusive toward the parties' son, "supervision is not limited to instances where a court fears for a child's physical safety; rather, the court can also consider whether a parent is having a negative impact on the child's emotional well-being." (Matter of Frank M. v Donna W., 44 AD3d 495, 495 [1st Dept 2007]). Here, as detailed above, the record shows that when the Mother has unsupervised access with the Children, she cannot be trusted to act in their best interests or pursuant to Court order. Absent interim supervision, this Court would subject these Children to too high of a chance of further "psychological danger." (Lincoln, supra at 272). The primary concern here is further and long-term psychological harm to the children by involving them in this litigation, miseducating them about our legal system, destroying or damaging their relationship with their father, and confusing them about their Jewish identity and heritage.

In other words, supervision is in the Children's best interests. (See Matter of Murphy v Lewis, 149 AD3d 748, 749-750 [2d Dept 2017]). There is no dispute that the Children love their time with their Mother. The Attorney for the Child made clear that the Children desire more access with their Mother. In considering these various factors, the Court awards the Mother [*5]liberal supervised parenting time.

In addition to supervision, given the unique concerns related to this family, the Court is directing that there be no discussion whatsoever in relation to the Lincoln Hearing Transcript, this litigation, or any disparagement of either parent or their family in the presence of the Children.

The record indisputably shows the Children's best interests are best served by remaining in Manhattan where they have lived since 2018. The first custody trial faced a related issue. At the trial, the Father was residing in New Jersey without intention of moving to Manhattan. At the instant hearing, the Father has been residing temporarily in New York since the onset of this emergency litigation and credibly testified he would relocate to Manhattan for the Children.

When this litigation first commenced in 2020, the parties' entered into an interim parenting time stipulation whereby the parties stipulated to various forms of parenting time and acknowledged that the Mother and children lived in the marital residence and that the Father was taking steps to find a separate residence. The agreement did not grant the Mother exclusive use of the marital residence. In any event, the agreement is not effective as it was superseded by the Decision on custody issued in July 2024. Furthermore, this Court under both DRL § 234 and as required by the best interest of the Children can order use of the martial residence notwithstanding the discharged agreement.

Domestic Relations Law section 234 authorizes this Court to on an interim basis "make such direction between the parties, concerning possession of property as in the court's discretion justice requires having regard to the circumstances of the case and of the respective parties." Here, the Court's authority to direct nesting is derived from its statutory authority to direct occupancy "as in the court's discretion justice requires." (Id.; see also, Delli Venneri v Delli Venneri, 120 AD2d 238, 240 [1st Dept 1986]).

The record clearly shows the Children's best interests are served by remaining in New York and in the marital residence and it is indisputable these parents cannot reside in the same home simultaneously. Accordingly, the unique demands of justice in this case as contemplated in DRL § 234 compel this Court to direct an interim nesting arrangement. (See generally, Goldblum v Goldblum, 301 AD2d 567, 568 [2d Dept 2003]["To force the children and their mother, who the parties agreed should have custody, to move from the home the children grew up in, during their teenage years, would not be in their best interest."]; L.M.L. v H.T.N., 2017 NY Slip Op 51333[U], at *8 [Sup Ct, Monroe County 2017, Dollinger, J.]). Each party shall retain their own separate residences at their sole expense to reside in when not exercising parenting time; the Father's being his New Jersey residence, and the Mother shall seek her own apartment in Manhattan. Going forward, she is no longer financially responsible for the Father's short-term housing thus permitting her to obtain short-term housing for this nesting arrangement. This interim nesting award is made without prejudice to either party's exclusive use and occupancy relief after trial.

The Father shall "nest" at the marital residence commencing on January 6, 2025 and shall have parental access and exclusive use at all times, except for the following times when the Mother will "nest" in the residence: alternating weekends from Saturday at 12:00 pm to Monday at school drop-off, with supervisor check-ins at 2:00 pm and 8:00 pm on every Saturday and Sunday; (II) a weekly overnight with the Children every Wednesday with the Mother's parenting time commencing after school until school drop off on Thursday morning, with supervisor [*6]check-in at 6:00 pm; and (III) video call access on days the Mother does not have parenting time not to exceed forty-five (45) minutes, with the costs of all supervision to be borne 100% by the Mother. Relatedly, the suspension of the Father's child support obligation is continued as he remains primary residential custodian on this interim basis; however, the suspension of his 50/50 obligation on the costs associated with the marital residence is vacated as of January 6, 2025, as he and the Mother are now "nesting" in the residence.

This Court has the authority to appoint a parenting coordinator in contested custody modification proceedings to "mediate between parties and oversee the implementation of their court-ordered parenting plan." (See e.g., Silbowitz v Silbowitz, 88 AD3d 687, 687-688 [2d Dept 2011]; Raviv v Raviv, 64 AD3d 638, 640 [2d Dept 2009][Affirming appointment of Parenting Coordinator in modification proceeding despite such relief not being specifically sought]). The record demonstrates the parties cannot co-parent civilly and there is often extreme difficulty in having meaningful consultation on issues due to the Mother's invariable resistance to the Father's ideas. To be clear, the Father's final-decision making authority does not prevent this Court from directing a Parenting Coordinator be used. (Anonymous 2011-1 v Anonymous 2011-2, 136 AD3d 946 [2d Dept 2016][Affirming Parenting Coordinator appointment and award of sole custody]; V.B. v R.B.D., 2024 NY Slip Op 51079[U], at *4 [Sup Ct, NY County 2024, Chesler, J.]). The Court has already heard concerning testimony about the children's grades, poor attendance at extracurricular activities, and need for therapy, and significant conflict about which activities and tutors are necessary or appropriate. These items should be discussed with a parent coordinator as the parties have poor communication. Notably, the Parenting Coordinator shall have no power to make decisions or "tie-break" and is solely there to mediate and offer recommendations he or she believe are in the best interest of the children.

The costs associated with the Parenting Coordinator shall be allocated 75% to the Mother and 25% to the Father considering the financial circumstances and equities of this case. This distribution is just and equitable based upon the record which clearly demonstrates the Mother's defiance against the Father's final decisions and wrongful acquisition and concerning use of the Lincoln Hearing transcript are the cause of all this disruption. (C.f., Raviv, supra at 640). Accordingly, the parties shall forthwith retain a parenting coordinator as directed below.

The relief herein awarded is explicitly made on an interim basis and subject to determination after the forthcoming fast-tracked trial in this manner, or any subsequent order of this Court as may be required by the Children's best interests. The parties are further permitted to submit supplemental briefing on all issues in advance of trial. Accordingly, based upon the record and the best interests of the Children, it is hereby:

ORDERED, that the Father is awarded interim primary physical custody of the parties' children; and it is further

ORDERED, that commencing January 6, 2025, the parties shall observe an interim "nesting" parenting time arrangement wherein the party exercising parenting-time shall have interim exclusive use and occupancy of the marital residence, to commence upon the termination of the Father's short-term rental; and it is further

ORDERED, that effective January 6, 2025, the parties shall resume sharing equally in the costs of the carrying charges of the marital residence; and it is further

ORDERED, that when either parent is not "nesting" they shall reside in a separate [*7]residence, with each party to bear the sole cost of their separate residence; and it is further

ORDERED, that the access schedule shall be as follows until nesting commences on January 6, 2025, the Mother shall have parenting time as follows: (I) on Thursday, December 26, 2024, and Friday, December 27, 2024, from 10:00 am to 8:00 pm, to be supervised; (II) overnights with supervisor check-ins at 12:00 pm and 7:00pm, Sunday, December 29, 2024 (commencing at 10:00 am) to Thursday, January 2, 2025 at school drop-off; and (III) video call access on days the Mother does not have parenting time to not exceed forty-five (45) minutes, with the costs of all supervision to be borne 100% by the Mother and the Mother may bring the Children to the marital residence during these access periods; and it is further

ORDERED, that commencing on January 6, 2025, the Mother is awarded supervised parenting time in the marital residence as follows: (I) alternating weekends from Saturday at 12:00 pm to Monday at school drop-off (commencing on the weekend of January 11, 2025) with supervisor check-ins at 2:00 pm and 8:00 pm; (II) a weekly overnight with the Children every Wednesday with the Mother's parenting time commencing after school, with supervisor check-in at 6:00 pm; and (III) video call access on days the Mother does not have parenting time to not exceed forty-five (45) minutes, with the costs of all supervision to be borne 100% by the Mother; and it is further

ORDERED, that commencing on January 6, 2025, the Father shall have parental access and exclusive use of the marital residence at all other times not listed above; and it is further

ORDERED, that the Father is entitled to forty-five (45) minute video calls with the Children on all days he does not exercise parenting time; and it is further

ORDERED, that both parties shall not impede, intercept, or intrude upon the Children and the other parent while they are exercising video call parenting time; and it is further

ORDERED, that the supervisor must be present for custodial exchanges wherein the parties will are required to be present as may be required under the schedule herein; and it is further

ORDERED, that the Mother may retain a licensed supervisor (including but not limited to social workers) with the Mother bearing 100% of such cost, any such supervisor must be either mutually agreed upon in writing or ordered by this Court on application by the Mother; and it is further

ORDERED, that in the absence of the aforesaid licensed supervisor, Comprehensive Family Services shall serve as supervisor for all of the Mother's supervised parenting time; and it is further

ORDERED, that if either parent's parenting time falls on a day wherein school is not in session, that parent's "drop-off at school" time shall be at 10:00 am and their "pick-up" time shall be 6:00 pm; and it is further

ORDERED, that the parties may modify the times and timeframes herein related to parenting time upon mutual written consent, e-mail to suffice; and it is further

ORDERED, that neither party shall discuss the Lincoln Hearing Transcript or disparage the other parent or their family in the presence of the Children; and it is further

ORDERED, that on or before January 8, 2025, the parties shall forthwith retain a Parenting Coordinator to assist in facilitating discussion regarding scheduling, decision-making, and other co-parenting issues, but the Parenting Coordinator shall have no power to make decisions or "tie-break" and is solely there to mediate and offer recommendations, the cost of such to be split pro-rata 75% to the Mother and 25% to the Father; and it is further

ORDERED, that all of the Children's passports shall be immediately surrendered to the Attorney for the Child; and it is further

ORDERED, that all other interim relief not modified herein is continued.

This Constitutes an Interim Decision & Order after an Emergency Hearing on Motion Sequence 014, Pending Final Determination at Trial.