The Mother moved by emergency order to show cause on or about July 8, 2024, for an Order directing various points of relief related to the Father's parenting time with the parties' Child and otherwise for a modification of custody to the extent of modifying the parties' Stipulation of Settlement to now require the Father receive written consent from the Mother prior to traveling internationally with the Child. The Father cross moved for sanctions in the form of counsel fees and an order enjoining the Mother from future filings, absent leave of court.

The Mother alleges that the Father fails to adequately supervise the Child during his [*2]parenting time. She argues that due to the Child's special needs he is prone to run-away from his parents and thus requires a heightened level of attention during parenting time. She further alleged there were instances wherein the Father did not provide adequate pool-safety and otherwise failed to monitor the Child allowing the Child to escape the Father's apartment where he was allegedly found in the apartment elevator. The Mother's proffered solution to this was to have the Father's parenting time supervised by a free nanny provided by the State. The Father rejected the idea of being supervised by a nanny and otherwise argued his care for the child is adequate and there is no change in circumstances to warrant any modifications to parenting time or custody.

The Court convened a conference in this matter to attempt to resolve this sequence without the need for costly motion practice. At the in-person conference, the majority of the relief in this order to show cause was resolved on consent thus mooting many issues raised by the Mother with regards to her concerns related to the Father's parenting; this consent order is incorporated and hereby continued. (See Code of Conduct On Consent [NYSCEF Doc. No. XX]). Notwithstanding, the parties' remained unable to agree on the issue of international travel with the Mother seeking to brief this matter further on that issue.

The Court held multiple appearances on this matter including conferences. During the pendency of these appearances the Court appointed Virginia LoPreto, Esq. as attorney for the Child (the AFC). The AFC provided invaluable assistance in this matter and on her suggestion the Court issued an Order of Observation, whereby the Father's parenting time with the parties' son was observed. The results of the report raised no concerns to the Court regarding the Father's parenting time; indeed, it raised concerns for the veracity of the Mother's alleged change in circumstances.

Further, on an interim basis, the Court denied the Mother's request to condition the Father's right to international travel with the Child (as explicitly provided for in the parties' Stipulation of Settlement) but did issue an interim order to ensure the Child would be returned to the U.S. following his international trip with his Father in the Summer of 2024. (Travel Order - Interim [NYSCEF Doc. No. XX]).

A party seeking a modification of custody must demonstrate, as a threshold matter, that there has been a substantial change in circumstances since the entry of the previous order or agreement on the issue of custody. (See e.g., David W. v Julia W., 158 AD2d 1, 6-7 [1st Dept 1990]). Indeed, the First Department has made clear that this showing must be more than pure speculation; but rather, the parent seeking modification "must make some evidentiary showing to warrant a hearing." (Tsung v Tso, 190 AD3d 575, 576 [1st Dept 2021]). "This case is one where the first hurdle was not passed." (D.G. v M.G., 83 Misc 3d 1218[A][Sup Ct, NY County 2024, Chesler, J.]).

The Mother's allegations are hollow and she failed to demonstrate a substantial change of circumstances so as to warrant a hearing. Further, the supervision order and precautionary measures taken by this Court throughout this proceeding have demonstrated that there is no showing sufficient to reach a hearing on the issue of a change in circumstances. Importantly, the Order directing Observation and its subsequent findings demonstrate that the Father's parenting does not raise any concerns as it relates to the well-being of the Child. While it is true that the parties' homes are not uniform, this is the case for almost any divorced family. The Mother's hyper vigilance of the Child is understandable given his special needs, but it does not provide [*3]legal support to warrant subjecting this family to the traumas of a custody proceeding.

Indeed, it is well-settled policy of the State that custodial arrangements should be long-term and not changed unnecessarily. (See S.L. v J.R., 27 NY3d 558, 563 [2016]["Wherever possible, '[c]ustody of children should be established on a long-term basis'; 'children should not be shuttled back and forth between divorced parents' merely because of changed circumstances 'so long as the custodial parent has not been shown to be unfit.'"] citing Obey v Degling, 37 NY2d 768, 770 [1975]). If this Court were to proceed to a hearing on these unsubstantiated allegations, it would threaten the "goal of stability and permanency" the courts have made clear are the touchstones in the law of custody. Accordingly, the Mother's Order to Show Cause is DENIED, except to the extent that all of the relief on consent in the Code of Conduct is hereby CONTINUED.

The Father's cross-motion also bears little merit. Based on the representations made on the record as to the Father's inferior financial position to the Mother and the fact that he had to expend thousands of dollars on legal fees and other precautionary decisions to defend against this application, this Court does believe the Father should be entitled to at least some form of relief in the form of counsel fees. Unfortunately, the Father moved only under 22 NYCRR 130-1.1 for counsel fees in the form of sanctions.

Rule 130-1.1 provides that conduct must be deemed frivolous to warrant the imposition of sanctions. Conduct by a litigant is defined as "frivolous" if, "(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false." (22 NYCRR 130-1.1[c]). In assessing whether conduct is frivolous the Court is instructed to "consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, or should have been apparent, or was brought to the attention of counsel or the party." (Id.).

Here, the Court does not find the Mother's conduct to be frivolous. While she may have hastily taken legal action, the record reveals the litigation was not undertaken in bad faith or otherwise to "harass or maliciously injure" the Father. Accordingly, the Father's request for sanctions is DENIED. Notwithstanding, the Court grants the Father leave to file a motion for counsel fees incurred in connection with this motion sequence.

On the issue of precluding the Mother from making further applications to this Court absent leave of Court it is well settled that, "[p]ublic policy generally mandates free and open access to the courts such right; however, is not unlimited and may be curtailed in appropriate circumstances." (Jordan v Yardeny, 35 Misc 3d 1214[A][Sup Ct, Queens County 2012] aff'd 117 AD3d 945 [2d Dept 2014]). The Court finds that based on these facts, specifically the fact that the Child subject to this proceeding does have special needs, it would be an improvident exercise of discretion to enjoin the Mother. Further, this type of award would make more sense if the Mother was engaged in some form of hyper litigation and was coming to court frequently with unsubstantiated and hollow claims. That is not the case here as the Mother has only proceeded once, under the instant-sequence, for post-judgment relief after the divorce was concluded. This is not an appropriate case for such a drastic remedy that public policy generally counsels against. Accordingly, the Father's request for an order enjoining the Mother from future filings absent leave of Court is DENIED.

Based on the foregoing, it is hereby:

ORDERED, that the Mother's Order to Show Cause is DENIED to the extent detailed herein; and it is further

ORDERED, that the Father's Cross-Motion is DENIED to the extent detailed herein; and it is further

ORDERED, that the Father is GRANTED leave of court to file an application for legal fees in connection with the costs incurred in defending against this application; and it is further

ORDERED, that the Code of Conduct on Consent is hereby CONTINUED and incorporated into this Decision & Order.

This constitutes a Decision & Order of this Court on Motion Sequence 004 and a disposition on this post-judgment action.