The following documents were considered in connection with Plaintiff's motion, dated April 9, 2025, (hereinafter "Motion Sequence # 1"), seeking the entry of an Order granting the following relief:

1. GRANTING the Plaintiff, M.B., temporary legal and primary physical custody of the subject children, A.B. (DOB: XX/XX/XXXX — Presently Age 3), E.B. (DOB: XX/XX/XXXX — Presently Age 2) and J.B. (DOB: XX/XX/XXXX — Presently Age 8 Months); and

2. GRANTING the Plaintiff, M.B., pursuant to New York State Domestic Relations Law § 252 and 240(1), an Order of Protection directing the Defendant, C.B., to:

a. Remain away (at least 200 feet away) from Plaintiff, M.B. at all times; and

b. Remain away (at least 200 feet away) from the subject children, A.B. (DOB: XX/XX/XXXX), E.B. (DOB: XX/XX/XXXX) and J.B. (DOB: XX/XX/XXXX) at all times except for supervised visitation with a Court Approved supervisor or such other visitation as the parties may agree upon in writing; and

c. Refrain from communication or any other contact by mail, telephone, e-mail, voice-mail or other electronic means with Plaintiff, M.B., including through third parties except for written communication on important issues directly related to the parties' children and then solely by text message, electronic mail and/or "OUR FAMILY WIZARD" [*2]messaging; and

d. Refrain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, strangulation, criminal obstruction of breathing or circulation, disorderly conduct, criminal mischief, sexual abuse, sexual misconduct, forcible touching, intimidation, threats, identity theft, grand larceny, coercion or any criminal offense against Plaintiff, M.B. and/or the parties' children, A.B. (DOB: XX/XX/XXXX), E.B. (DOB: XX/XX/XXXX) and J.B. (DOB: XX/XX/XXXX); and

e. Refrain from remotely controlling any connected devices affecting the home, vehicle or property of M.B. and/or the parties' children, A.B. (DOB: XX/XX/XXXX), E.B. (DOB: XX/XX/XXXX) and J.B. (DOB: XX/XX/XXXX) and/or the property located at XXXX including specifically the two (2) RING doorbell cameras/recording systems and the NIGHT OWL camera/security system; and

f. Surrender to the XXXX POLICE DEPARTMENT all firearms in the possession of the Defendant, C.B.; and

3. GRANTING the Plaintiff, M.B., temporary exclusive use and occupancy of the residence located at XXXX; and

4. GRANTING the Plaintiff, M.B., such other and different relief as to the Court appears just and proper.

AND, seeking ex parte relief including the entry of an Order that:

1. Pending the hearing and determination of the within application, M.B., shall have temporary legal custody of the subject children, A.B. (DOB: XX/XX/XXXX), E.B. (DOB: XX/XX/XXXX) and J.B. (DOB: XX/XX/XXXX);

2. Pending the hearing and determination of the within application, the Defendant, C.B., shall:

a. Remain away (at least 200 feet away) from Plaintiff, M.B. at all times except for parenting time exchange at which time the Defendant shall not verbally engage the Plaintiff; and

b. Remain away (at least 200 feet away) from the subject children, A.B. (DOB: XX/XX/XXXX), E.B. (DOB: XX/XX/XXXX) and J.B. (DOB: XX/XX/XXXX) at all times except for supervised visitation with a Court Approved supervisor or such other visitation as the parties may agree upon in writing; and

c. Refrain from communication or any other contact by mail, telephone, e-mail, voicemail or other electronic means with Plaintiff, M.B., including through third parties except for written communication on important issues directly related to the parties' children and then solely by text message, electronic mail and/or "OUR FAMILY WIZARD"; and

d. Refrain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, strangulation, criminal obstruction of breathing or circulation, disorderly conduct, criminal mischief, sexual abuse, sexual misconduct, forcible touching, intimidation, threats, identity theft, grand larceny, coercion or any criminal offense against Plaintiff, M.B. and/or the parties' children, A.B. (DOB: XX/XX/XXXX), E.B. (DOB: XX/XX/XXXX) and J.B. (DOB: XX/XX/XXXX); and

e. Refrain from remotely controlling any connected devices affecting the home, vehicle or property of M.B. and/or the parties' children, A.B. (DOB: XX/XX/XXXX), E.B. (DOB: XX/XX/XXXX) and J.B. (DOB: XX/XX/XXXX) and/or the property located at [*3]XXXX including specifically the two (2) RING doorbell cameras/recording systems and the NIGHT OWL camera/security system; and

f. Surrender to the XXXX POLICE DEPARTMENT all firearms in the possession of the Defendant, C.B..

3. Pending the hearing and determination of the within application, the Plaintiff, M.B., shall have temporary exclusive use and occupancy of the residence located at XXXX and the Defendant, C.B. shall remain away from that property (at least 500 feet) at all times.

4. Pending the hearing and determination of the within application both the Plaintiff, M.B., and the Defendant, C.B., shall refrain from making any statements to or in the presence of the parties' children, A.B. (DOB: XX/XX/XXXX), E.B. (DOB: XX/XX/XXXX) and J.B. (DOB: XX/XX/XXXX) that would tend to harm the children's opinion of the other party.

5. Pending the hearing and determination of the within application both the Plaintiff, M.B., and the Defendant, C.B., shall refrain from discussing the pending litigation and/or any allegations made by either party or counsel in connection with such litigation to or in the presence of the parties' children: A.B. (DOB: XX/XX/XXXX), E.B. (DOB: XX/XX/XXXX) and J.B. (DOB: XX/XX/XXXX).

On April 9, 2025, this matrimonial action was commenced with the filing of a summons and complaint (NYSCEF Doc. No. 1) (hereinafter "Complaint"), which asserts that the parties were married in June of 2017, and have three children being: (1) A.B. (D.O.B.: XX/XX/XXXX); (2) E.B. (D.O.B.: XX/XX/XXXX); and (3) J.B. (D.O.B.: XX/XX/XXXX) (hereinafter collectively "Children").

On April 9, 2025, a request for judicial intervention (NYSCEF Doc. Nos. 8-9) was filed with Motion Sequence No. 1 (NYSCEF Doc. Nos. 2-7), seeking the above-referenced relief. In support of the relief requested, Plaintiff asserts that the relief is warranted due to the deterioration of Defendant's mental health over the past several weeks making him a danger to she and the Children. In support of her application, Plaintiff points to Exhibit A (hereinafter collectively "Defendant Text Messages") which she asserts contain a series of text messages to her from Defendant including inappropriate language such as:

"You have no power M.B. you are a powerless human being. All of your power comes from what you and I did together you are nothing without me. Just remember that you stupid fucking woman.

* * *

. . . you are a fucking piece of shit, M.B. you are a fucking piece of shit . . .

* * *

You should fucking be afraid of me you stupid fucking bitch.

* * *

. . . now you're afraid of me you stupid fucking bitch. Fuck you M.B.

* * *

You are a joke Absolute joke of a person

* * *

I will not pay the mortgage You will be foreclosed on bitch So start packing You fucked up NJ here you go With your dumb family You ruined your life

* * *

Ask Papa to start making some room for you guys. XXXX will be the banks sooner than you know it bitch We're not gonna have a marital home we're not gonna have a home for our children because you've decided to destroy it.

* * *

You think you're smart you're not M.B. you're extremely extremely dumb

* * *

I have a lot more moves of my sleeve, and then you will suffer. I promise you you will suffer financially you'll never have the same life you ever had

* * *

Your stupid family thinks they're smart. You guys are all retarded. I have all the moves. I promise you. I promise you I promise you I got a lot more moves to make where you're not gonna like it. I haven't even done anything yet. I've just sat back and done my own thing but once I actively start doing this, you're not gonna like it. Trust me, you're not gonna like it so I give you an ultimatum either you accept me back in your life or you really turn your back and walk way. I haven't even gone to scorched earth yet. If you want go scorched earth then we'll do that.

* * *

That's where I think you're utterly fucking retarded you're biting the hand that feeds you seriously You have no credit You have no income Do you have a wealth? You have nothing but me And the fact that you don't see that shows how mentally disturbed you are that you don't see me as a value you just see me as a threat that needs to have the police called on constantly

* * *

Do you know how many women live with men that could actually really do something to them like really hurt them actually have something to be afraid about that's all in your head that's all in your head. Like real domestic violence like real eye sockets, broken hospital visits, pain, and suffering Scaringe and abusing children that's what you put me on the level of you stupid fucking bitch

* * *

Like real domestic violence, you've never experienced anything like that, but you'll call the cops as fast as if you were a victim of something like that I'm not an abuser and you know that

* * *

Because if you truly truly think that you're gonna keep me away from my kids, our children, you are absolutely retarded

* * *

Talk to me You know what you have to do Otherwise what's the next steps. You want to be in a family courtroom.

* * *

So analyze this. Think hard of the next steps. You are also risking CPS involvement with [*4]the kids. You want this If you keep up this bullshit, they're gonna take the kids from you Like for real for real And that's not good

* * *

And you are risking this because you have short-term vision and you are being a fearful woman

* * *

And if you haven't figured this out by now, I'm not really a normal person I've kinda backed away from you for a little bit, but you're gonna see a full court press in a little bit. I'm gonna make you squirm M.B. I'm gonna make you feel very very uncomfortable."

Motion Sequence No. 1. was conformed (NYSCEF Doc. No. 11) directing: (1) that all of the ex parte interim relief was denied; (2) that Plaintiff serve Defendant with Motion Sequence No. 1 via e-mail and text message by 12:30 p.m. on April 9, 2025; (3) that the return date be 2:30 p.m. on April 9, 2025, wherein all parties and counsel were directed to appear prepared to engage in oral argument as to the relief sought.

On April 9, 2025, this case was called at which time appearances were made by Plaintiff, Plaintiff's counsel and Defendant as a self-represented litigant who appeared virtually. While the Court confirmed that Defendant is an attorney admitted to practice law in the State of New York, two documents were marked and filed as Court Exhibits to be served by Plaintiff's counsel on Defendant by end of business day today: (1) Court Exhibit #1 — Self-Represented Litigant Information Sheet; and (2) Part Rules of the Hon. James L. Hyer, J.S.C.

Oral argument was received pertaining to the relief sought in the instant application. While Defendant indicated at points during his argument that the interim relief sought pending the determination of the relief sought in Motion Sequence No. 1 was on consent, Defendant's position remained unclear and the Court is making a determination as to the interim relief as set forth herein.

Pursuant to New York State Civil Practice Law and Rules § 1202 a guardian ad litem may be appointed by a Court at any stage of litigation upon application made or sua sponte upon its own initiative in the event the Court determines that a party is impaired and unable to litigate on their own without the assistance of another. In the event a litigant is impaired and a guardian ad litem is not appointed, this failure to appoint a guardian ad litem is a reversible error (Piggott v. Lifespire, Inc., 149 AD3d 785 [2d Dept 2017]).

Here, Motion Sequence No. 1 asserts numerous claims against Defendant which could be characterized as questioning Defendant's capacity to litigate this action and possibly requiring the appointment of a guardian ad litem to assist Defendant, or staying this proceeding to permit the commencement of a proceeding under Article 81 of the New York State Mental Hygiene Law to seek the appointment of a guardian. However, following this matter being called and Defendant being placed under oath, this Court visually observed Defendant and listened to Defendant, determining that Defendant is neither impaired or incapacitated requiring either the appointment of a guardian ad litem or a guardian. Accordingly, no such appointment was made.

"The paramount concern when making such a determination is the best interests of the child under the totality of the circumstances" (Burke v. Squires, 162 N.Y.S.3d 434 [2d Dept 2022]).

"Where possible, custody should be established on a long-term basis, 'at least so long as the custodial parent has not been shown to be unfit, or perhaps less fit, to continue as the proper custodian' " (Jackson v. Jackson, 31 AD3d 386 [2d Dept 2006], quoting, Obey v. Degling, 37 NY2d 768 [1975]).

"Factors to be considered include the relative fitness of the parents, the quality of the home environment, the parents' financial status, the parental guidance given to the child, the ability of each parent to provide for the child's emotional and intellectual development, and the effect an award of custody to one parent might have on the child's relationship with the other parent" (Hogan v. Hogan, 71 NYS.3d 601 [2d Dept 2018]).

"Entrusting the custody of young children to their parents jointly, especially where the shared responsibility and control includes alternating physical custody, is insupportable when parents are severely antagonistic and embattled" (Braiman v. Braiman, 407 N.Y.S.2d 449 [1978]).

"Moreover, pursuant to Domestic Relations Law § 240(1)(a), in any action or proceeding concerning custody or parental access where domestic violence is alleged, the court must consider the effect of such domestic violence upon the best interests of the child along with all the other relevant factors when the allegations of domestic violence are proven by a preponderance of the evidence" (Scott v. Thompson, 166 AD3d 627 [2d Dept 2018]).

Absent evidence of an emergency situation, prior to making a custody determination, even on an interim basis, the Court is required to hold a hearing (Rodger W. v. Samantha S., 95 AD3d 743 [1st Dept 2012]; Lela G. v. Shoshanah B., 151 AD3d 593 [1st Dept 2017]).

Here, the Court determines that an emergency situation exists arising out of the allegations made by Plaintiff asserting that Defendant presents a danger to she and the Children, which are corroborated by Defendant's Text Messages which Defendant failed to refute as his own during today's Court appearance.

Accordingly, based upon the submissions made to this Court and the oral argument received today, this Court hereby grants Plaintiff interim sole legal and physical custody of the Children, subject to parental access time of Defendant as further ordered by this Court. The Court has made this determination having found that doing so is in the best interests of the Children, taking into consideration many factors, including but not limited to: the relative fitness of the parents, the quality of the home environment, the parents' financial status, the parental guidance given to the child, the ability of each parent to provide for the child's emotional and intellectual development, and the effect an award of custody to one parent might have on the child's relationship with the other parent.

"It is well established that the party seeking an order of protection has the burden of [*6]establishing by a preponderance of the evidence that the party for which the order is seeking to restrain has committed the alleged family offense, and whether a family offense has been committed is a factual issue to be resolved by the court, and its determinations regarding the credibility of witnesses are entitled to great weight" (Susan WW. On Behalf of Karri-Ann WW. v. Alan WW., 161 AD3d 1249, 1250 [3d Dept 2018]; Richardson v. Richardson, 80 AD3d 32 [2d Dept 2010]; see also Family Court Act § 812).

Here, Plaintiff alleged that Defendant committed a family offense arising out of harassment in the second degree.

Pertaining to harassment in the second degree, under Penal Law § 240.26:

"A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person:

1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same; or

2. He or she follows a person in or about a public place or places; or

3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose."

The Courts have held that intent required for a finding of family offense of harassment in the second degree may be inferred from surrounding circumstances and even a single incident is legally sufficient to support a finding that respondent committed a family offense (Richardson v. Brown, 173 AD3d 875 [2d Dept 2019]).

Based upon the testimony and evidence received by the Court, this Court determines that exigent circumstances exist to warrant the entry of a temporary order of protection against Defendant in favor of Plaintiff and Children as requested in an interim basis pending a hearing to be scheduled herein.

To effectuate this provision, a temporary order of protection shall be entered immediately following the entry of this Decision and Order, and provided to the parties in Court, to remain in effect until December 31, 2025, directing that Defendant shall:

a. Remain away (at least 200 feet away) from Plaintiff at all times except for parenting time exchange at which time the Defendant shall not verbally engage the Plaintiff; and

b. Remain away (at least 200 feet away) from the Children at all times except for supervised visitation with a Court Approved supervisor or such other visitation as the parties may agree upon in writing; and

c. Refrain from communication or any other contact by mail, telephone, e-mail, voicemail or other electronic means with Plaintiff including through third parties except for written communication on important issues directly related to the parties' children and then solely by text message, or electronic mail; and

d. Refrain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, strangulation, criminal obstruction of breathing or circulation, disorderly conduct, criminal mischief, sexual abuse, sexual misconduct, forcible touching, intimidation, threats, identity theft, grand larceny, coercion or any criminal offense against Plaintiff and the Children; and

e. Refrain from remotely controlling any connected devices affecting the home, vehicle or property of Plaintiff and the Children and/or the property located at XXXX including specifically the two (2) RING doorbell cameras/recording systems and the NIGHT OWL [*7]camera/security system; and

f. Surrender, by April 10, 2025, to the XXXX Police Department all firearms in the possession of the Defendant.

The Appellate Division Second Department has provided guidance with respect to when a trial court may grant a party exclusive use and occupancy of a marital domicile during a matrimonial proceeding, providing:

"Courts are statutorily empowered to award one spouse temporary exclusive use and occupancy of the marital residence during the pendency of divorce proceedings (see Domestic Relations Law § 234). Such an order is appropriate only upon a showing that the relief is necessary to protect the safety of persons or property, or one spouse has voluntarily established an alternative residence and a return would cause domestic strife (see e.g. Taub v. Taub, 33 AD3d 612, 822 N.Y.S.2d 154). In light of the defendant's voluntary establishment of an alternative residence for herself and the existence of an acrimonious relationship between the parties, we agree with the Supreme Court's determination granting that branch of the plaintiff's motion which was for temporary exclusive use and occupancy of the marital residence and denying that branch of the defendant's cross motion which was for temporary exclusive use and occupancy of the marital residence (see Amato v. Amato, 133 AD3d 695, 696, 21 N.Y.S.3d 104)."

(Goldman v. Amramova-Goldman, 185 AD3d 1012 [2d Dept 2020]).

While an award of exclusive occupancy generally requires the Court to hold a hearing before making such a determination, such an award may be made without a hearing upon the determination that persuasive evidence exists that such an award is necessary to protect the safety of persons and property (Formato v. Formato, 173 AD2d 274 [1st Dept 1991]).

Here, based upon the testimony and evidence received by the Court, this Court determines that persuasive evidence exists that an award of exclusive occupancy of the marital domicile to Plaintiff is necessary to protect the safety of persons and property. The Court makes this determination after having reviewed the submissions made by Plaintiff, which were not refuted by Defendant, including the Defendant's Text Messages which included threats made by Defendant to Plaintiff.

Accordingly, until further Order of this Court and determination of Motion Sequence No. 1, Plaintiff is awarded exclusive use and occupancy of the marital domicile located at XXXX; and Defendant is hereby directed to remain at least five hundred feet from such property.

Based upon the testimony and evidence received by the Court, this Court determines that it is within the best interests of the Children to grant this relief and it is hereby directed that both parties shall comply with the Children's Bill of Rights, a copy of which is annexed hereto and made part hereof as Exhibit "A".

To the extent any interim relief pending a hearing and determination of Motion Sequence No. 1 has not been addressed herein, it is hereby denied. To the extent any interim relief has been granted herein, it has been granted based upon the Court's determination that an emergency situation exists warranting such relief without having first held a hearing, and that a hearing shall be scheduled to address such relief as noted herein. Moreover, any ultimate relief sought in Motion Sequence No. 1 shall be made pursuant to the briefing schedule set forth herein.

Based upon the foregoing, it is hereby

ORDERED that Motion Sequence No. 1 is granted to the extent that the interim relief requested therein is granted to the extent set forth herein; and it is further

ORDERED that unless a fully executed Stipulation is submitted by the parties pertaining to the interim relief sought in Motion Sequence No. 1 by April 11, 2025, a hearing shall be held as to the interim relief commencing on April 14, 2025, at 9:00 a.m. continuing to 5:00 p.m., and continuing day-to-day thereafter until completion; and it is further

ORDERED that a temporary order of protection shall be entered immediately following the entry of this Decision and Order; and it is further

ORDERED that the briefing schedule for Motion Sequence No. 1 shall be as follows:

1. April 18, 2025 — being the deadline for Defendant to file any submissions in opposition to Motion Sequence No. 1 and/or any cross motions;

2. April 25, 2025 — being the deadline for Plaintiff to file any submissions in opposition to any cross motions; no reply submissions to be accepted; with this date serving as the return date for both Motion Sequence No. 1 and any cross motions filed, with no appearances required; and it is further

ORDERED that Plaintiff's counsel shall serve via e-mail this Decision and Order with Notice of Entry on Defendant by April 10, 2025, and shall file an Affidavit of Service by that date; and it is further

ORDERED that Plaintiff's counsel shall order a copy of the Court Transcript from today's appearance, shall pay the entire cost of same, and shall submit same to be so ordered by May 9, 2025; and it is further

ORDERED that to the extent any relief sought has not been granted, it is expressly denied.

The foregoing constitutes the Decision and Order of the Court.