The following e-filed papers read herein: NYSCEF Doc Nos.:

This Court must determine whether the parties can seek vacatur of court order appoint attorney for the child after refusing to pay the fee of the Court ordered Attorney for the Child where both parties in this matrimonial action made serious cross-allegations of mental illness, [*2]domestic violence and safety relating to each other and the child who was less than a week old when the plaintiff-father commenced this action.

This matter was commenced by the plaintiff-father filing an emergency order to show cause seeking, inter alia, parenting time with the parties' six (6) days old child. Plaintiff-father alleged that the defendant-mother gave birth to the child several days earlier and had not allowed him to have unsupervised parenting time with the child yet.

The parties were married on March 23, 2023. The plaintiff-father is twenty-three (23) years old. The defendant-mother is twenty-one (21) years old. The parties' one (1) child was born in June 2025. It is not in dispute that the parties separated and have been living separately from the time the defendant-mother was three (3) months pregnant. It is also not in dispute that the plaintiff-father was only notified after the child was born.

The parties and counsel appeared on July 1, 2025 ^[FN1] . The parties stipulated to an interim parenting scheduled [NYSCEF #18]. The Court signed the order to show cause and also set a briefing schedule for the plaintiff-father's order to show cause and oral argument was scheduled for July 14, 2025 [NYSCEF #19].

The defendant-mother filed opposition and a cross-motion seeking a temporary order of protection and pendente lite support, dated July 11, 2025 [NYSCEF #23-36, #64]. The plaintiff-father filed reply and opposition to cross-motion dated July 14, 2025 [NYSCEF #40-61].

Defendant-wife alleged, inter alia, in her affirmation in opposition dated July 11, 2025 [NYSCEF #23] as follows:

• " . . . I left the marital residence due to abuse that I suffered at the hands of the Plaintiff throughout the marriage. Most recently, there is a pending criminal case against Plaintiff in Kings County Criminal Court Domestic Violence Part, under Docket Number REDACTED stemming from his abusive and violent behavior to me on or about the evening of December 11, 2024, at ADDRESS REDACTED, Brooklyn, NY. I was three months pregnant at the time, a fact that was known both to me and to the Plaintiff. 5. Plaintiff was arrested and charged with PL 120.00, Assault in the 3rd degree with intent to cause physical injury, PL 110/120, Attempted assault in the 3rd degree, PL 120.15 Menacing in the 3rd degree, PL 145.00, Criminal Mischief in the 4th degree, and PL 240.26, Harassment in the 2nd degree. (See, Exhibit A, Criminal Orders of Protection) 6. On June [XX], 2025, I gave birth to the only child of the marriage, REDACTED. I informed Plaintiff of [THE CHILD'S] birth even though we were not living together at this time and he had been violent to me. [Paras. 4-6]

• "On June 23, 2025, our family, which is part of the Syrian Jewish community, having our own specific rituals and religious practice, celebrated a Zohar ceremony. This is customarily celebrated the night before the circumcision to welcome the baby into the community. That ceremony was held in my parents' home and the Plaintiff's family was invited and attended. Rabbi [REDACTED] and his wife, [REDACTED] were present at the ceremony and were greeted by the Ayal family. During the ceremony, Isaac held the baby. I felt comfortable with him doing so because family and friends were present to ensure our safety." [Para. 8]

• "There is an additional reason why I am fearful of parenting time taking place at the [*3]home of Plaintiff's family. On or about July 7, 2023, while at their family home in Deal, New Jersey, I witnessed my father in law, [PATERNAL GRANDFATHER], give Plaintiff a violent beating with a belt. My mother-in-law was present during this incident. [PATERNAL GRANDFATHER] was angry at Plaintiff for his continuous misbehavior toward me. He hit Plaintiff in the face multiple times. He also put his hands around Plaintiff's neck and began squeezing him as Plaintiff choked and struggled for air. Plaintiff, who appeared wild with pain and trying to break free, smashed his own face into a wall during the beating and began bleeding. I was horrified by the violence and tried to pull Plaintiff's father off of him, pleading with him to stop. I have never witnessed such violent behavior. I suffered a panic attack after this event and was treated in the emergency room at [HOSPITAL]. (See, Exhibit D, Hospital Discharge Sheet) I was so terrified that I did not report the abuse, fearing that my father-in-law would be arrested. [Para. 17]"

• "The Plaintiff's abusive behavior to me began immediately after the wedding, in fact on the very next day, which was Friday, March 24, 2023. We were walking to the first of our wedding parties . . . held in Brooklyn. As a new bride, I was supposed to light Sabbath candles. However, in the excitement and confusion of the day after our wedding, I forgot to light candles. Since it was already the Sabbath, I could not do so. 1 In the Jewish, Orthodox tradition, the families celebrate the bride and groom for a week of parties following the wedding. The Plaintiff stopped me on the sidewalk outside the apartment in Brooklyn where we were staying and began to berate me. He called me "stupid and useless." He called me a "f***ing idiot" [edited by the Court] and said that I was "retarded." That particularly hurt me as I have a younger sibling with special needs, a fact well known to Plaintiff. I was shocked and began to cry. I apologized to him in the hopes of calming him down and we went to the party. However, it was deeply distressing and eye opening for me." [Para. 18]

• Things did not improve with the Plaintiff after the initial date when he emotionally abused me. I soon learned that the Plaintiff had a violent temper. Whenever he was angry at me, throughout the marriage from about March 2023 to when I left in December 2024, he would throw things, punch walls (which would scare me and result in property damage) and call me names such as "stupid", "useless", and a "whore." He tore doors down from the bathroom of our apartment and created a number of holes by punching the walls. He took my phone and smashed it with a construction mallet. He also broke my phone on at least two other occasions so that I couldn't call for help or record his behavior. In or about the Spring of 2023, shortly after our marriage, Plaintiff became enraged at me and threatened to "imprint" my face in the wall of our apartment. [Para. 20]

• . . . He also drove in an extremely reckless manner at high speeds, which I begged him not to do, drag raced with his friends, and engaged in road rage . . . [Para. 22]

• In or about January 27, 2024, while on a ski vacation with Plaintiff in Vail, Colorado, Plaintiff threatened to shove my face in the snow and "suffocate" me when I angered him by skiing too slowly down a challenging slope. He began to scream at me. He then left me alone on the mountain and I had to navigate my way back alone as the slopes were closing. I began to cry . . . [Para. 27]

• On or about November 6, 2024, I was in the car with Plaintiff on the Garden State [*4]Parkway and he was driving at a speed of approximately 110 mph. I was pregnant and worried about my safety and that of the baby. I begged Plaintiff to slow down. He told me to be quiet and that he would stop short and watch me "go flying" through the windshield. [Para. 30].

• On or about December 11, 2024, I was with the Plaintiff in Brooklyn, New York, and we were preparing to attend a wedding. Earlier, I had been cooking and there was a cut onion on the counter. Plaintiff began to yell at me because he said his suit smelled like onion. I was getting dressed and told him that I would throw it out when I went downstairs. Plaintiff then came to the room where I was and started yelling "Are you that fucking retarded and a slob that you can't throw out an onion?" I began to cry and then he aggressively took my arm and pulled me down the stairs to throw out the onion. He yelled that I hadn't thrown it out and that he had walked past it 15 times. I responded that he could have put the onion in the garbage himself and his anger escalated. He grabbed me and pushed me up against the wall against a bookshelf, causing the books to fall down on me. 32. Later, but on the same day, Plaintiff went to smoke marijuana. He came down the steps of our apartment carrying a lighter in his hand and threatened to burn me. He then took a bottle of alcohol and tried to force me to drink it. I do not like to drink alcohol, but particularly didn't want to have any because I was three months pregnant with [THE CHILD]. Plaintiff knew this. He grabbed my head and face while holding the bottle, yelling," You drive people to drink, so you should drink too." I put my head down, trying to defend and to protect myself and the child I was carrying. Plaintiff continued to try to pour alcohol into my mouth, hurting me. I refused to open my mouth. Instead, Plaintiff poured alcohol on my head. The alcohol went into my eyes and I felt horrific pain and burning. I could not see and was terrified that he had blinded me. I was terrified that he would set me on fire with the lighter, which was within arms reach of Plaintiff. I was shouting and crying and he pulled me by the arms with great force and poured water in my eyes. He continued to hurt me and scream at me, pinching my arms repeatedly with force. I was crying from pain but also from fear. I could not see, which made it hard to defend myself. I also tried to scream for help and Plaintiff threatened to lock me into a room. He put his hand over my mouth and his voice grew louder as he demanded that I "shut up or someone will go to jail.". He took my phone and smashed it on the kitchen counter, bent it with his hands, and ultimately shattering it on the floor, so that I was unable to call for help . . . [Para. 31-32]

• After leaving Plaintiff around December 2025, I tried to get a job to support myself to supplement my modest part time teaching job. Plaintiff hacked into my email account and saw that I had been communicating with an employer. He contacted that person and told him that I could not work for him. The employer then withdrew his employment offer. [Para. 36]

• I am requesting that this court issue an Order of Protection for me and for our infant son, [THE CHILD]. I am very much afraid that Plaintiff will harm [THE CHILD] in retaliation for asserting my rights in this action and bringing the history of abuse throughout our marriage to light. Furthermore, based on Plaintiff's violent history where he harmed me while I was pregnant, I seriously question his judgment and ability to keep his anger and behavior in check." [Para. 37].

• . . . My intention is not to prevent Plaintiff from being a parent to our child, but to [*5]protect [THE CHILD] and myself from the violent and abusive ways that Plaintiff has acted to me. I want to ensure that our child and I remain safe and that [THE CHILD] is protected from harmful behavior and risky decision making, both of which the Plaintiff has demonstrated by his actions. I am particularly fearful of Plaintiff driving [THE CHILD] as he has engaged in risky and dangerous driving on numerous occasions throughout the marriage. On information and belief, Plaintiff may have a suspended driver's license . . . [Para.38]

In his affirmation in reply, dated July 14, 2025, plaintiff denies most of the defendant's allegations but he conceded as follows [NYSCEF #40]:

• "Defendant is not a victim of domestic violence, nor have I committed a family offense. A rabbi in our community who has recently met with her said she is mentally unstable. I have concerns about her mental stability and living under the same roof as her abuser, her father" [Para. 4]

• "To put this behind me, I plead to disorderly conduct. I will have a six-month ACD and a limited Order Protection for 6 months. I will complete a 16-week program. I have been attending the program . . . [Para. 7]

• "Defendant was a girl who came from a troubled family and abused by her father. She was welcomed into my loving family with open arms. She was treated with immense love. The home she is living in right now is a home she fled from, a home she waited 3 months to return after she left the marital residence, a home she was disowned from [emphasis added]" [Para. 12]

• " . . . [DEFENDANT] is mentally unwell. . . . [Para. 13]

• " . . . I admit to having called her stupid and useless, in moments of frustration, for keeping the house dirty, when I was helping her as well having a cleaning lady . . . " [Para. 22]

• " . . . her uncle has repeatedly told people in the community that he can have me killed by the mafia . . . .This is her trying to set me up" [Para. 61]

Clearly, the allegations raised by both parties are — at this stage — just that: allegations; however, both parties came to Court and made affirmative representations to very serious allegations in affirmation form. Each party affirmed under oath to allegations that raise serious concerns about whether the child is safe in the care of the other. Court notified the parties and counsel on the record after oral argument at the court appearance on July 14, 2025 that an attorney for the child would be appointed. Thereafter, the Court made diligent efforts to locate an eligible and available attorney for the child on the approved Second Department panel and on August 12, 2025, the Court appointed Susan Smith, Esq. by written order dated [NYSCEF #68].

Neither party disputes that they knew the attorney for the child had been appointed on August 12, 2025. The Court was notified by the attorney for the child, Susan Smith, Esq., on notice to all parties on September 3, 2025 by e-mail correspondence that she had not been paid and that releases had not been provided as she requested in August 2025. Thereafter, the plaintiff asserted that the parties had reach a proposed Stipulation of Settlement on September 2, 2025 and that, as such, there was no need for an attorney for the child or for the parties to comply with the Court's appointment order. The parties concede that they entered into this proposed stipulation of settlement three (3) weeks after the attorney for the child was appointed, [*6]inter alia, on the issues of custody and parenting time.

On September 8, 2025, the plaintiff's counsel attempted to upload the proposed Stipulation of Settlement to NYSCEF. That document was returned with the comment that an attorney for the child had been appointed by court order and had standing on the issue of custody and parenting time and, as such, the stipulation had to be reviewed by the attorney for the child on behalf of her client [NYSCEF #69]. Pursuant to Judiciary Law 7.2(b), the attorney for the child is subject to "the ethical requirements applicable to all lawyers" and pursuant to Judiciary Law 7.2(3):

When the attorney for the child is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child's wishes is likely to result in a substantial risk of imminent, serious harm to the child, the attorney for the child would be justified in advocating a position that is contrary to the child's wishes.

Additionally, it is well-established that "[a]n attorney for the child may substitute his or her judgment only when he or she is "convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child's wishes is likely to result in a substantial risk of imminent, serious harm to the child" (Sandiaes v Sandiaes, 239 AD3d 1011, 1013 [2 Dept.,2025]). Here, given the age of the child, who was only born in June 2025, the attorney for the child will be required to substitute judgment.

The Court issued a written order dated September 8, 2025 directing that the parties either comply with the appointment order or file an application to vacate if a party believed it was appropriate under the circumstances [NYSCEF #70].

Plaintiff-father filed a notice of motion dated September 11, 2025 seeking to vacate the order appointing the attorney for the child [NYSCEF #71]. Plaintiff-father asserts that "[maintaining] the AFC's appointment under these circumstances is unnecessary, imposes an undue financial hardship on me, and serves no benefit to our baby" [NYSCEF #73, p. 2]. Plaintiff position is that in effect it is the Courts role to rubber stamp a custody stipulation of without any input from an attorney for the child and simply because the parties have agreed.

The parties and parties' counsel appeared for oral argument on September 25, 2025.^[FN2] Despite still not having been paid by plaintiff, the appointed attorney for the child appeared: she expressed concerned on behalf of her client based on the parties' cross-allegations by the parties.

Plaintiff alleges that the $4,000.00 retainer to the attorney for the child would be a "financial hardship" on him [NYSCEF #73, p. 2]. During oral argument on the record on September 25, 2025, plaintiff's counsel conceded that her initial retainer was $25,000.00.^[FN3] [*7]Defendant is represented by Sanctuary for Families.

Plaintiff's counsel asserts that "all issues affecting the child were resolved before the AFC became substantively involved" [NYSCEF #72, p. 2]. She further asserts that "[a]t no point did the AFC interview the parties, review evidence, or participate in negotiations. The AFC played no role in reaching the agreement that resolved this case . . . " [NYSCEF #72, p. 3] and that "[w]ith all parenting issues resolved, there is no remaining role for the AFC in this case" [NYSCEF #72, p. 3].

Judge Benjamin N. Cardozo, writing for a unanimous New York Court of Appeals in Finlay v Finlay in 1925 on the role of the Court's role of parens patriae that the Court must do what is best for the interest of the child and must put itself in the position of a "wise, affectionate and careful parent" (Finlay v. Finlay, 240 NY 429 [1925]. Furthermore, Domestic Relations Law 240 provides that in any action concerning custody and parenting time where domestic violence is alleged, "the court must consider" the effect of such domestic violence upon the best interest of the child, together with other factors and circumstances as the court deems relevant in making an award of custody (see Wissink v Wissink, 301 AD2d 36 [2 Dept.,2002]). Here, defendant alleged domestic violence against her before and during her pregnancy and the plaintiff alleges that defendant is "mentally unstable" and living with a grandparent who, he alleges, engaged in abuse of the defendant must cause the Court to pause before considering an agreement concerning a very young child. The parties having affirmed to these serious allegations and the Court — based on the very serious cross-allegations raised by the parties against one another and also against others in their families and in their shared community who they propose will be involved in the child's care — acting in its role as parens patriae, the Court appointed an attorney to represent the child, dated August 12, 2025 [NYSCEF #68]. The Court notes that this child is only months old and unable to speak for himself related to these sworn safety issues.

Defendant-mother also filed an affirmation in support of plaintiff's motion to vacate [NYSCEF #77] the appointment of the attorney for the child asserting that an attorney for the child is not necessary because the child is "an infant and cannot communicate" [NYSCEF #77, p. 2]. She contends that she believes that the proposed parenting agreement "protects" the child because "our mediators will review the parenting arrangement in consultation" with a named Rabbi to decide whether additional and/or unsupervised parenting time between the child and the plaintiff is appropriate [NYSCEF 77, p. 2].

It is well-established in this jurisdiction that issues of custody and parenting time cannot be delegated and, as such, even if no attorney for the child was appointed, it appears that the Court would not be able to approve of the parties proposed parenting agreement which appears to place the issues of parenting time and whether it will be supervised or not at the discretion of a Rabbi in the parties' community which would be an impermissible delegation of parental access which has long been prohibited under well-established case law (see generally Pierce v Joyner, 240 AD3d 786 [2 Dept.,2025]; see also Cornielle v Rosado, 231 AD3d 824 [2 Dept.,2024]; Kerry D. v Deena D., 230 AD3d 492 [2 Dept.,2024]; Clezidor v Luxune, 192 AD3d 792 [2 Dept., 2021]; Acosta v. Melendez, 179 AD3d 912 [2 Dept.,2020]). While the Court respects the role of the both religious leaders and social workers and appreciates efforts by parties to reach consent [*8]agreements whenever possible, the Court must still fulfill its obligations to existing case law by reviewing proposed agreements relating to custody or parenting time in the role as parens patriae before permitting the terms to be made into a court order.

This well-established precedent that the Court cannot delegate to anyone its authority to structure a parenting schedule in a child custody matter was recently again articulated by the Appellate Division, Second Department on July 2, 2025 in Matter of Leva v. Sokol, 240 AD3d 496, 2025 NY Slip Op 04009 [2 Dept.,2025]. In Matter of Leva, the Appellate Division, Second Department found that "notwithstanding the father's consent to the April 2023 order, the Family Court erred in delegating the father's parental access schedule to the parties and the child by awarding the father supervised therapeutic parental access with the child 'as the parties and the child can agree'". The Court noted that "[t]he record demonstrates a tortured history between the parties, including, among other things, an order of protection issued against the father" and "animosity between the parties" together with a history of alleged domestic violence. These very facts appear present in the case before this Court: there is animosity between the parties, an order of protection [from Kings County Criminal Court] and an alleged history of interference in parenting time between these parties.

Furthermore, defendant's proposition that the Court can delegate authority to a Rabbi in the community because, inter alia, that Rabbi is also a social worker is misplaced. The case law is unequivocal: the Court cannot delegate the authority to determine parenting time to the child, to either parent or to any other non-party including to a mental health professional or parenting time supervisor (see Lopez v Neira, 237 AD3d 1097 [2 Dept.,2025]). In Lopez, the Appellate Division, Second Department found that it was an impermissible delegation to grant children's therapist authority to determine father's access to family therapy with children following a course of counseling by the father (id.).

Here, the allegations raised by the parties in affirmations was the initial predicate for appointing the attorney for the child and the parties are bound by their affirmations. The concerns raised by those cross-allegations remain. The Court will not under these facts and circumstances vacate the appointment of the attorney for the child. The parties are directed to forthwith comply with the appointment order dated August 2, 2025.

To ensure that the child's best interests are adequately protected without further delay, the Court will convert the attorney for the child's appointment nunc pro tunc to government pay subject to future application and/or future determination if appropriate that the plaintiff repay the State of New York.

The matter is adjourned to November 17, 2025 at 2:45 p.m., the date and time selected by all parties and counsel, for the attorney for the child, meet with the parties and to obtain any necessary releases in order to fulfill her duties on behalf of her client. The parties are directed to cooperate with the attorney for the child and provide any HIPPA releases requested related to the child. The parties' attorneys may be present for any interviews conducted between the parties and the attorney for the child if they decide to do so.

The Court expects that the order appointing the attorney for the child will be complied with in all respects forthwith.

This shall constitute the decision and order of the Court.