This Decision and Order is being entered following a custody trial and framed-issue hearing being held immediately thereafter (hereinafter "trial") pertaining to the enforceability of a purported marital agreement dated October 17, 2011, (hereinafter "Prenuptial Agreement").

On July 9, 2020, this matrimonial matter was commenced by Plaintiff represented by Mitchell Lieberman, Esq., (hereinafter "Counsel Lieberman"), with the filing of a summons with notice ^[FN1] and verified complaint ^[FN2] (hereinafter "Complaint"), asserting that the parties were married on October 21, 2011; that there are two minor issue of the marriage, being: (1) [Redacted] (D.O.B.: XX/XX/XXXX) (hereinafter "J."), and [Redacted] (D.O.B.: XX/XX/XXXX (hereinafter "S.") (hereinafter collectively "Children"); that the parties executed the Prenuptial Agreement in accordance with the mandates of the New York State Domestic Relations Law (hereinafter "DRL"); seeking the entry of a judgment of divorce on the grounds of irretrievable breakdown of the parties' relationship pursuant to DRL § 170(7), awarding Plaintiff sole custody of the Children, declaring the Prenuptial Agreement valid and enforcing the terms thereof, along [*2]with other ancillary relief.

Also filed by Plaintiff on July 9, 2020, was a request for judicial intervention ^[FN3] with a motion by order to show cause ^[FN4] (hereinafter "Motion Sequence No. 1"), seeking the entry of an order granting the following relief: (1) awarding to Plaintiff temporary legal custody and primary residence of the Children; (2) directing that Defendant have no visitation and/or physical contact with the Children pending further order of the Court; (3) directing Defendant have no contact with the Children pending Defendant testing negative for the COVID-19 contagion and maintaining appropriate protocol thereafter so as to insulate the Children from being exposed to the contagion; (4) enjoining Defendant from travelling to Colorado to see the Plaintiff and/or Children pending further order of the Court; (5) appointing an attorney to represent the Children, and (6) other and further relief as this Court may deem just and appropriate.

In support of his application, Plaintiff filed an affidavit wherein he asserts that the requested relief is necessary due to the dangerous behavior of Defendant whom he claims was engaging in inappropriate conduct during the height of the COVID-19 pandemic, thereby placing the family at risk, as well as exposing J. to improper behavior:

"Commencing about two years ago our marriage began to fail. Defendant started having second thoughts about being a mother, desired to pursue a new career and started going to school at Westchester Community College.

* * *

With the onset of her returning to school and our marriage failing, the relationship grew more distant and problematic. However, commencing in or about May, 2019 I began to suspect that the Defendant was not being faithful to Affiant. In January, 2020 the Defendant asked to go skiing with our son in Colorado. I arranged for their trip to my home in Colorado. However, on January 14, 2020 I was advised by a mutual friend that she had seen the Defendant with our four (4) year old son J. and a strange man existing a hotel at 2:30 a.m. Defendant confronted our friend, A.B. who told Defendant to call Affiant as I was worried about her and J.'s whereabouts. Defendant responded (and later confirmed directly to affiant) that A.B. had ruined her marriage and she would now be getting a divorce. I immediately contacted Defendant and demand[ed] that she bring J. home. She complied, arrived home on January 16 and we started counseling immediately upon her return for a period of several weeks. Plaintiff ^[FN5]admitted to Affiant that the first affair supposedly was with one of her professors.

After they were home for a few weeks our young son began talking about the time in Colorado, describing his mother and this strange man being naked in bed next to him while he faked sleeping on the floor; he heard them make noises. J. stated he had seen the man at the local hot-springs, our home as well as had dinner one night with another man. Defendant did not deny any of the foregoing reporting by J.

Defendant has deferred to Affiant and our Nanny for primary care of the children for nearly two years. At first, she claimed she needed to dedicate time to her studies. It soon [*3]became apparent that she was more interested in pursuing other men and sexual interludes than being with our children. As a result, for the better part of two years Affiant has assumed the responsibilities of a single, primary parent for the children.

Immediately thereafter the onset of the pandemic occurred. Rather than observe protocol, guidelines and the wearing of PPE gear, Defendant instead elected to ramp up her sexual escapades. Defendant began seeking multiple men on different occasions. Defendant did not seem to care that her activity was placing all of us at risk. Defendant had no idea where the men that she was having sex with had been on prior occasions, with whom they lived with, with whom they had sexual relations, as well as a host of other issues concerning how to best contain the contagion.

* * *

Things finally reached a head on or about May 6 when Defendant was caught having sexual relations with a 70-year old doctor at the Rye Courtyard by Marriot Hotel. Defendant admitted her transgression and claimed she was involved with the doctor because he was paying her $500.00 on each occasion that they had sexual relations and agreed to engage in reconstructive breast surgery for her at no charge if she continued to provide him sex."^[FN6]

On July 10, 2020, Motion Sequence No. 1 was conformed ^[FN7] [Lubell, L.] directing: (1) Motion Sequence No. 1. be served upon Defendant by July 13, 2020; and (2) the return date for Motion Sequence No. 1 would be July 14, 2020, at 9:30 a.m., wherein a briefing schedule would be set if needed. The Order further granted Plaintiff temporary sole custody of the Children, enjoined Defendant from having direct physical contact with the Children or traveling to Colorado for the purposes of seeing Plaintiff and/or the Children, and permitted Defendant to engage in daily FaceTime contact with the Children.

On July 28, 2020, Natalia Gourari, Esq., (hereinafter "Counsel Gourari") on behalf of Cox Padmore Skolnik & Shakarchy LLP (hereinafter "Cox Firm"), filed a notice of appearance ^[FN8] as Defendant's first attorney.

On July 23, 2020, Plaintiff's counsel submitted a proposed Interim Custody Consent Order ^[FN9] which on July 29, 2020, was entered ^[FN10] by the Court [Lubell, L.] (hereinafter "Custody Consent Order #1") which provided the following:

"Plaintiff, J.F., by his attorneys Lieberman LeBovit, PLLC having made application to this Court by way of Order to Show Cause motion under Sequence #1 seeking interim relief which includes temporary custody, a condition of supervision upon Defendant's [*4]access and restrictions of Defendant's travel to the children and said motion having been duly served upon the Defendant on July 13, 2020 and Defendant thereafter having appeared by counsel, Natalia Gourari, Esq. and the Court having heard oral argument and considered prose from counsel on the 14th day of July, 2020 and at Defendant's request the matter having been adjourned until the 15th day of July, 2020 whereupon the attorneys for the parties advised the Court that an Interim Stipulation had been achieved regarding access subject to submission in writing and the Defendant having reserved the right to interpose opposition and a cross motion and specifically having objected to the interim award of temporary custody to Plaintiff, it is now, therefore,

ORDERED, that pending a hearing and determination of Motion Sequence #1 or further Stipulation of the parties:

1. The children, minor issue J. (d/o/b XX/XX/XXXX) and S. (d/o/b XX/XX/XXXX), shall continue to reside with the Plaintiff until further order of this Court, stipulation of the parties or his scheduled return in October 2020.

2. Defendant shall be entitled to access with the children as set forth herein. Defendant's access with the children is conditioned upon Defendant's strict adherence both before, during and after her arrival in Colorado to see the children: A. Pre contact quarantine (i) Covid test; B. Start of Isolation Quarantine (i) Daily medical checks; (ii) No person to person contact; (iii) No visits outside of accommodation; (iv) No stores, commercial property, private houses, bars, restaurants, public spaces, gyms or any place outside of RRL ranch or explicitly approved accommodation; C. Food to be delivered (i) Safe zone delivery; (ii) third party sanitization; (iii) Ingestion into accommodation once sanitized; (iv) Masks to be worn. D. 14 days from return of negative test (i) Second COVID test E. Return of second COVID test negative (i) Contact permitted only with persons within the quarantine program. (ii) Quarantine protocol to be maintained. F. ANY BREAK OF PROTOCOL (i) 14 day isolation quarantine period begins again from scratch; (ii) Further COVID tests at end of renewed isolation quarantine. Quarantine must take place at an approved location not accessible to the general public or serviced by employees.

3. Defendant shall be entitled to travel to Colorado to see the children as provided for herein but otherwise shall not have physical contact with the children. Upon Defendant's arrival in Colorado, she shall observe the above referenced protocol and upon her completion of a fourteen (14) day quarantine and submitting to tests for which negative results are obtained. She shall be permitted access with the children over the next two weeks (fourteen (14) days) on two (2) night and three (3) night alternating periods. The parties' Nanny, K.C. shall be with Defendant and the children during all periods of times of the Defendant's access with the children as provided for hereunder. The Defendant shall be entitled to receive the children for alternating two (2) day and three (3) day periods with the children being returned to the Plaintiff between each such period. By way of example, if the Defendant receives the children on a Monday at 9:00 a.m. she will be required to return them on Wednesday at 9:00 a.m. to the Plaintiff who will keep the children for one day and thereafter the children will be returned to the Defendant on Thursday at 9:00 a.m. who will keep them for three days returning them at Sunday at 9:00 a.m. This process shall repeat during the fourteen (14) day period that the Defendant is permitted access in Colorado as provided for herein.

4. Pick-up and drop-off for all of the Defendant's access shall be provided for by the Plaintiff and/or the Nanny. The Defendant must provide to the Plaintiff her anticipated [*5]travel plans at least twenty-four (24) hours in advance thereof. Plaintiff shall secure housing for the Defendant no later than Wednesday, July 22, 2020. Plaintiff's obligation to provide housing shall terminate on August 22, 2020. The Defendant shall exercise all of her access with the children at the premises provided to her by Plaintiff which address is [Redacted], observing all protocol guidelines during her stay. Defendant understands and agrees that during her stay she must stay at the premises provided to her to be in compliance with the above protocol. Defendant's travel plans shall be provided to Plaintiff whose consent to the same shall not be unreasonably withheld.

5. At no time shall the Defendant remove the children from the County of Ouray, State of Colorado during her access period; and it is further,

ORDERED, that the interim relief granted in Order to Show Cause Motion Sequence #1 of temporary legal custody to the Plaintiff shall remain in effect, over the objection of Defendant, pending a decision on Motion Sequence # 1 however, the balance of the interim relief granted on July 10, 2020 in Motion Sequence #l is vacated and in lieu thereof this consent order is being entered."

On August 10, 2020, Defendant filed a cross motion ^[FN11] (hereinafter "Motion Sequence No. 3"), seeking the entry of an order granting the following relief: (1) directing Plaintiff to return the Children to New York by August 25, 2020, for school preparation; (2) declaring New York as the home state of the Children; (3) vacating the sua sponte order to show cause granting Plaintiff temporary custody of the Children; (4) awarding Defendant physical and residential pendente lite custody of the Children, or in the alternative, an order of joint custody of the Children to the parties; (5) directing Plaintiff to pay basic monthly child support of $3,619.00; (6) directing Plaintiff to may monthly temporary maintenance to Defendant of $4,800.00 retroactive to the date of the motion; (7) directing Plaintiff to continue to pay Defendant's college tuition; (8) directing Plaintiff to pay for Defendant and Children any and all unreimbursed medical, hospitalization, dental, psychological (including therapeutic), prescription drugs, pharmaceutical and vision expenses, retroactive to the date of motion; (9) directing Plaintiff to pay all of the add-on expenses of the Children including the Saw Mill Club school; (10) directing Plaintiff to pay interim counsel fees of $50,000.00; and (11) any other relief the Court deems just and proper.

In opposition to the relief sought in Motion Sequence No. 1 and in support of the relief sought in Motion Sequence No. 3, Defendant filed an affidavit wherein she asserts that Plaintiff is a workaholic while she is the primary caregiver of the Children,^[FN12] admitting that she spent the night with J. and another man in a hotel but denies that the man was naked or the child heard anything.^[FN13] Defendant asserted "First, I do not have sexual relationship with multiple men, as the [*6]Plaintiff wants others to think"^[FN14] and that Plaintiff's request for a DNA test for S. was hurtful to her.^[FN15] Defendant further asserts that the Children are her "absolute priority,"^[FN16] "If I have to eat dirt to see my children I would,"^[FN17] voiced concern that she had missed time with the Children for no reason,^[FN18] and was concerned that her absence from the Children was causing them distress and that J. felt he was being punished by not seeing her.^[FN19]

On August 18, 2020, Plaintiff's counsel filed a letter ^[FN20] to the Court wherein concerns are raised pertaining to Motion Sequence No. 3 including that Defendant's Affidavit was unsigned and asserting the reason was due to unlawful conduct:

"The undersigned surmises that the 'failure' of Defendant to sign her Affidavit was intentional, not due to a lack of a printer. Specifically, as set forth in a forthcoming Order to Show Cause to the Court, the Defendant has accessed the Plaintiff's private professional emails, utilized some of that material in her instant opposition, apparently has shared that material with her attorney who has elected to use it as well and in the process has violated both Federal and State law regarding computer crimes. In the event that the Defendant signs her Affidavit thereby presenting to the Court the information that she has illegally obtained as set forth above and in the forthcoming motion, the Defendant will expose herself to criminal liability without the defense of the Fifth Amendment. We trust the Court will have a better understanding of the foregoing contention once it reads the motion submitted this date."

On that date, Plaintiff filed a motion by order to show cause ^[FN21] (hereinafter "Motion Sequence No. 2"), seeking the entry of an order granting relief, inter alia, disqualifying Defendant's attorney and the Cox Firm from providing any further representation of Defendant asserting she was then a witness in this action, and for relief related to the claim that Defendant had unlawfully obtained from Plaintiff's e-mail account privileged communications between Plaintiff and Plaintiff's counsel which were then provided to Counsel Gourari for use in this litigation.

In support of his application, Plaintiff filed an affidavit ^[FN22] asserting that that documents annexed to Motion Sequence No. 2 by Defendant were only sent to his e-mail account to which [*7]Defendant had no authority to access and would have not been available to Defendant in any other manner. In support of this claim, Plaintiff submitted records reflecting access to this account from an internet protocol address where Defendant was then residing.

On August 19, 2020, Motion Sequence No. 2 was conformed ^[FN23] [Lubell, L.] directing: (1) that pending further order of the Court, that Defendant was enjoined from utilizing, reviewing, reading, possessing any and all of the information, documents and evidence secured from the Plaintiff's e-mail accounts and Plaintiff's iPhone 5; (2) directing service of Motion Sequence No. 2 on Counsel Gourari by August 20, 2020; and (3) scheduling the return date for Motion Sequence No. 2 as August 30, 2020, at 3:00 p.m., wherein all parties and counsel were directed to appear, wherein a briefing schedule would be set if needed.

On August 24, 2020, a consent to change attorney ^[FN24] was filed wherein Counsel Gourari individually was substituted as the attorney of record for Defendant in place of the Cox Firm.

On August 27, 2020, a Court notice ^[FN25] was issued directing a preliminary conference to be held on September 8, 2020, at 2:00 p.m., before Court Attorney-Referee Irene Ratner.

On September 7, 2020, Chaim Steinberger, Esq., (hereinafter "Counsel Steinberger") filed a letter ^[FN26] indicating that he was retained to serve of-counsel to Counsel Gourari, noting, "Our opposition papers, moreover, will prove that Wife did nothing wrong and that Ms. Gourari did not read any privileged communications between Husband and his counsel, and acted properly, professionally, and ethically."

On September 14, 2020, Plaintiff filed a motion by order to show cause ^[FN27] (hereinafter "Motion Sequence No. 4"), requesting the entry of an order granting relief, inter alia, enjoining Defendant's use of information obtained from Plaintiff's e-mail communications. In support of the relief sought in Motion Sequence No. 4, Plaintiff filed an affidavit ^[FN28] asserting that his review of his e-mail account reflected numerous instances where Defendant had forwarded his privileged e-mails with his counsel to herself. Plaintiff further filed an affidavit of Yalkin Demirkaya,^[FN29] President of Cyber Diligence, Inc., which claimed discovery of "substantial and persuasive forensic evidence that Plaintiff's privileged communications with his attorney were accessed by Defendant without his permission or authority."

Motion Sequence No. 4 was conformed ^[FN30] [Lubell, L.] directing that pending further [*8]Order of the Court: (1) that Defendant shall not modify, tamper, destroy, access or in any other manner shape or form, impair the integrity of any and all computer devices and electronic devices including smart phones that she owns or have been in her possession between June 1, 2020 and present; (2) Defendant is enjoined from taking any action to modify, destroy, tamper, access or in any manner, shape or form, impair the integrity of any and all emails and email accounts maintained and or controlled by her including refraining from making any efforts to delete the evidence of her having forwarded the Plaintiff's emails to her e-mail accounts as set forth in the attached affidavits and exhibits; (3) that Defendant's attorney, Natalia Gourari, Esq., her agents and employs shall not modify, tamper, destroy in any manner shape or form, impair the integrity of any and all computer devices and electronic devices including smart phones that she owns or have been in her possession between June 1, 2020 and present; (4) that Defendant's attorney, Natalia Gourari, Esq., her agents and employs are enjoined from taking any action to modify, destroy, tamper or in any manner, shape or form, impair the integrity of any and all emails and email accounts maintained and/or controlled by her, including restraining from making any efforts to delete the evidence of her having received emails forwarded from Plaintiff's email account by Defendant or directly from Defendant's email accounts to her; and (5) scheduling the return date for Motion Sequence No. 4 as October 21, 2020.

On October 9, 2020, Plaintiff filed submissions in opposition to Motion Sequence No. 3,^[FN31] including an affidavit of Plaintiff ^[FN32] which references an admission made by Counsel Steinberger in correspondence to Plaintiff's counsel dated September 29, 2020, annexed to the affidavit as Exhibit 1,^[FN33] confirming Defendant had accessed Plaintiff's privileged communications with his counsel and forwarded same to Counsel Gourari:

"In a prior Court conference you asserted that you could not prepare opposition papers to the motion sequenced as 003, because you were not aware of what attorney client communications E.G. or my co-counsel, Ms. Gourari, were exposed to. By letter dated September 7, I assured you and the Court that Ms. Gourari has never read any of the communications between you and J.F. While E.G. sent some emails that might have contained such communications to an account Ms. Gourari seldomly accesses, she did not read them, bypassed them, and remonstrated with E.G. to stop sending her such material. E.G. did in fact abate sending them. Our opposition papers will advise the Court of all this formally and under oath."

Plaintiff further asserted that Defendant lacked sound judgment by gathering with individuals despite COVID restrictions then in place, asserted that she was not the Children's primary caregiver and claimed that Defendant made numerous misstatements of fact in her submissions. Notably, Plaintiff further asserted that Defendant has voluntarily been absent from the Children's lives for travel:

"The claim by the Defendant that due to Affiant going to Colorado she missed 55 days with her children ignores the fact that she historically has no qualms about being absent from the children for significant periods of time. Last year, she took a forty-two (42) day trip to Russia and then took a fourteen (14) day trip to Miami and Chicago thereby [*9]absenting herself from the children's lives for fifty-six (56) days in a span of only eight (8) months. Moreover, before we departed for Colorado, the Defendant apologized to S. in the kitchen in the presence of Affiant and our nanny that she would not be coming to Colorado for his birthday - - a decision she made! Furthermore, she fails to advise the Court that she elected to miss J.'s fourth birthday last year because she decided to leave Colorado and our family early so she could get a "head start on school". We later found out that on the additional two days that she obtained by returning home early she spent time with yet another man, D.T., her "college counselor". Defendant has since admitted that she was engaged in an adulterous relationship with D.T., only five minutes from our family home, as well. So much for placing the needs of our children and her desire to see them ahead of her own interests and desire to have sex with other men."^[FN34]

On October 9, 2020, Defendant filed opposition to Motion Sequence No. 4 ^[FN35] including an affidavit of Defendant ^[FN36] wherein Defendant confirms that she accessed e-mail communications between Plaintiff and his counsel which she then forwarded to her counsel, as she thought doing so may be helpful to her case acknowledging that she continued to engage in this conduct even after her own attorney directed her to cease doing so:

"Early in my meetings with my lawyer, I told her about the "spare phone" that I had. I was, of course, referring to what we now refer to as the "5s." I told her about the old emails that were saved on that phone. I told her about the evidence that I had about my husband's numerous lovers. I told her how I had access to those emails and offered to provide her with any she found helpful. Ms. Gourari never told me to hack into any email account that I was not authorized to access and I never did so.^[FN37]

* * *

Once on the '5s,' I forwarded to myself the emails that I thought I might want to look at in more detail or might be helpful. I did not forward every message I sent myself to Ms. Gourari. Among the emails I sent myself, were some that contained messages between J.F. and his lawyer. I thought I should send certain of them to Ms. Gourari.^[FN38]

* * *

Sometime later I received a phone call from Ms. Gourari. She was upset with me. She told me never to: (i) use WhatsApp for any communications about the case (she said that she doesn't check WhatsApp regularly and so it wasn't safe to communicate that way on issues relating to my case); and (ii) I should never, ever, send her copies of the communications between J.F. and his lawyer. Though Ms. Gourari might have had to remind me again, I did stop sending her anything between J.F. and his lawyer. To the best of my knowledge, information, and belief, there were a total of about seven emails that I [*10]forwarded that contained messages between J.F. and his lawyer."^[FN39]

On October 30, 2020, Plaintiff filed reply submissions pertaining to Motion Sequence No. 2,^[FN40] and Defendant filed reply submissions pertaining to Motion Sequence No. 3,^[FN41] wherein she acknowledges her intimate relationship with D.A. (hereinafter "D.A.") indicating that he "is the only male friend I see," asserting that the Children are her priority, and that Plaintiff cannot be trusted to be the primary parent.^[FN42]

On November 6, 2020, an Order ^[FN43] was entered [Lubell, L.] appointing as attorney for the Children Carol Most, Esq, (hereinafter "Counsel Most") and Plaintiff filed submissions in opposition to Motion Sequence No. 3.^[FN44]

On November 10, 2020, a stipulation and Order ^[FN45] was entered [Lubell, L.] wherein the parties agreed that their marriage would be dissolved pursuant to DRL § 170(7); and a separate stipulation and Order ^[FN46] was entered [Lubell, L.], wherein, inter alia, Defendant asserted her challenge to the Prenuptial Agreement; and a Report of Attorney Referee ^[FN47] was filed.

On November 11, 2020, Plaintiff's counsel submitted a proposed interim custody consent order ^[FN48] which on November 13, 2020, was entered [Lubell, L.] (hereinafter "Custody Consent Order #2"),^[FN49] which provided for a continuation of Plaintiff having custody of the Children with a defined access schedule of Defendant to be supervised by the Children's then nanny B.S. with the parties adhering to delineated COVID protocols and a specific agreement limiting Defendant's movements with the Children during her access time, being the following:

"At no time shall the Defendant remove the children from the property located at [Redacted] Yorktown Heights, New York, however she shall be permitted to take the children onto the enjoining State Park and County trail so long as she maintains social distancing, PPE gear and B.S. is present" (hereinafter "Yorktown Limitation").

On November 18, 2020, an Order appointing neutral forensic evaluator ^[FN50] [Lubell, L.] was entered, appointing Dr. Mark Abrams to conduct an evaluation pertaining to custody and access of the Children.

On November 20, 2020, Defendant filed an answer ^[FN51] (hereinafter "Answer") asserting three affirmative defenses pertaining to the Prenuptial Agreement including: (1) that the document was the result of fraud, coercion and duress; (2) that the document is unconscionable; and (3) that the parties had a fiduciary relationship which Plaintiff violated by compelling Defendant to sign the document which was unfair, unreasonable and unconscionable. The Answer then asserted four counterclaims including: (1) seeking a divorce pursuant to DRL § 170(7); (2) invasion of privacy seeking damages of $150,000.00; (3) promissory estoppel seeking Plaintiff to pay Defendant no less than $25,000.00 towards the agreed upon degree; and (4) asserting a cause of action denoted as "necessary" seeking Plaintiff to be obligated to continue payment towards Defendant's college and reimburse Defendant for missed payments.

On November 30, 2020, Defendant filed a motion ^[FN52] (hereinafter "Motion Sequence No. 5") seeking the entry of an order granting relief, inter alia, setting aside the Prenuptial Agreement.

On December 8, 2020, a decision and order ^[FN53] was entered [Lubell, L.] pertaining to Motion Sequence Nos. 1-4, which referred to a hearing the relief pertaining to the requested disqualification and sanction of Counsel Gourari; enjoining Defendant and her counsel from certain usage of the subject privileged communications between Plaintiff and his counsel, along with other related relief; deferred many items of requested relief not addressed in the Custody Consent Order #1 until after the hearing; and directed that a briefing schedule for Motion Sequence No. 5 will be held in abeyance until the issues to be addressed at the hearing are resolved.

On December 11, 2020, a proposed interim consent order ^[FN54] (hereinafter "Custody Consent Order #3") was filed which was entered ^[FN55] [Lubell, L.] which provided for a continuation of Plaintiff having custody of the Children with a defined access schedule of Defendant to be supervised by B.S., with the parties adhering to delineated COVID protocols, and provided for Defendant's accommodations during the family travel to Jamaica.

On December 16, 2020, Plaintiff filed a reply to counterclaims wherein two affirmative defenses were asserted.^[FN56]

On January 6, 2021, a proposed interim consent order ^[FN57] (hereinafter "Custody Consent Order 4") was filed which was entered ^[FN58] [Lubell, L.] which provided for a continuation of Plaintiff having custody of the Children with a defined access schedule of Defendant to be supervised by B.S. or C.K. or S.W., with the parties adhering to delineated COVID protocols, and included the Yorktown Limitation.

On January 22, 2021, correspondence was received from Lisa L. Shrewsberry, Esq., of Traub Lieberman Straus & Shrewsberry, LLP., advising that they had been retained as attorneys for Counsel Gourari with respect to the allegations made against her.^[FN59]

On January 26, 2021, a consent to change attorney ^[FN60] was filed indicating that Jason A. Advocate, Esq., of Advocate LLP (hereinafter "Counsel Advocate"), was being substituted as counsel for Defendant as Defendant's third attorney in this action.

On February 3, 2021, Plaintiff filed a motion by order to show cause ^[FN61] (hereinafter "Motion Sequence No. 6") seeking the entry of an order, inter alia, enjoining Defendant from having visitation with the Children; directing the Defendant produce her internal and external Russian passports; and, in the event either passport contains the Children as permitted travelers, that said passports be held by the AFC pending a hearing so as to ensure the Children are not removed from the jurisdiction absent Plaintiff's consent. In support of his application, Plaintiff asserted that Defendant had violated the Yorktown Limitation provision of Custody Consent Order #4 by bringing the Children to a location in the State of Connecticut. An affidavit of B.S. was annexed, wherein she confirmed that on January 21, 2021, she was taken with the Children by Defendant to a park located in the State of Connecticut and that, "When we got in the car to go home, the Defendant pleaded with me not to tell J.F."^[FN62]

On February 8, 2021, Motion Sequence No. 6 was conformed ^[FN63] [Lubell, L.] granting interim relief including: (1) enjoining Defendant from visitation and in-person contact with the Children except as agreed to by the parties being under supervision, with the parties arranging FaceTime interaction between Defendant and the Children; (2) directing Defendant to execute any documents needed for Plaintiff to secure a passport for J. and authorizing the Westchester County Sheriff to do so in the event Defendant failed to cooperate; (3) directing Defendant to surrender any Russian passports to Counsel Most for inspection to ascertain if the Children are [*11]listed thereon with the further direction for Counsel Most to retain the passports until the return date; (4) directing that the parties adhere to the attached children's bill of rights; and, (5) scheduling the return date for Motion Sequence No. 6 as February 26, 2021.

On February 17, 2021, a stipulation ^[FN64] was filed with a request that the Court so-order same, and the document was so-ordered ^[FN65] on February 18, 2021 (hereinafter "Custody Stipulation #1") [Lubell, L.] providing, inter alia, that the Consent Orders shall remain in effect, Defendant's communications with the Children would be supervised; that the nannies shall terminate access of Defendant with the Children in event Defendant failed to comply with the Consent Orders.

On February 17, 2021, a proposed interim consent order (hereinafter "Custody Consent Order 5") was filed ^[FN66] which was entered ^[FN67] on February 18, 2021 [Lubell, L.] which provided for a continuation of Plaintiff having custody of the Children with a defined access schedule of Defendant, to be supervised by B.S. or C.K. or S.W., with the parties adhering to delineated COVID protocols.

On February 18, 2021, Defendant filed a cross motion ^[FN68] (hereinafter "Motion Sequence No. 7"), seeking the entry of an order, inter alia, awarding Defendant make up parenting time. In opposition to Motion Sequence No. 6 and in support of Motion Sequence No. 7, the Defendant referred to Plaintiff's motion as "the height of overkill"^[FN69] despite admitting that she violated the Yorktown Limitation by taking the Children to a park twenty-five minutes from her home,^[FN70] claiming that she was "forced" to agree to the Consent Order.^[FN71] Defendant further expressed her concern regarding her separation from the Children noting, "it is exceptionally difficult for me to go 15 days in a row without kissing and hugging them,"^[FN72] and, "It has been extremely detrimental to their well-being not to see me for almost a month."^[FN73] In support of her request for "make-up time" with the Children, Defendant noted that if the Plaintiff were permitted forty-one days with the Children, with she having only nine days in a fifty day period, "That was very damaging to the children and the maternal bond that is so important for them at their young [*12]ages,"^[FN74] a concern which was echoed by her then counsel who noted in his affirmation, "It is not in the children's best interest to go such long periods of time without seeing their mother."^[FN75]

On March 17, 2021, Plaintiff filed a motion ^[FN76] (hereinafter "Motion Sequence No. 8") seeking the entry of an order granting relief, inter alia, declaring valid the Prenuptial Agreement.

On July 7, 2021, Plaintiff filed a motion ^[FN77] by order to show cause (hereinafter "Motion Sequence No. 9") seeking the entry of an order granting relief, inter alia, providing a summer access schedule to permit Plaintiff to travel with the Children to the State of Colorado for continuation of his historic employment obligations, and to set for Defendant a supervised access schedule with the Children. In support of his application, Plaintiff asserted that Defendant had voluntarily engaged in conduct causing her to be separated from the Children:

"While lamenting that she does not have sufficient time with the boys over the last few months she intentionally refused to take the children for more than 7 nights. Moreover, at present, she has announced that she is now working and going to school Monday through Friday, leaving the home before 7:00 am and not arriving back at home until 7:00 pm. During her last visitation, she actually left the children alone with the nanny for 5 consecutive days."^[FN78]

"The Defendant appears incapable of ensuring that our children do not suffer injuries while in her care. At the conclusion of her last access period on June 26th our son, J. was returned with a severe burn to his leg. Affiant photographed the injury, a copy of which is attached hereto and made a part hereof as Exhibit "6". Defendant never advised that J. was injured, how he was injured or whether she administered medical care to the wound. When I made inquiry today, Defendant only responded after being prompted by her attorney to do so - - at 5:45 p.m. Defendant actually tried to blame Affiant for her failure to advise me of the injury. She also failed to afford our son proper medical care for a second-degree burn.^[FN79]

On July 9, 2021, Motion Sequence No. 9 was conformed ^[FN80] [Lubell, L.] directing that, [*13]pending further order of the Court, the access schedule of Defendant with the Children in the State of Colorado would be alternating weekend access to be supervised at all times, with her reasonable accommodations and transportation in the State of Colorado to be paid for by Plaintiff.

On July 21, 2021, Defendant filed opposition ^[FN81] to Motion Sequence No. 9, including an affidavit which again asserted the need for the Children to have access time with their mother, noting:

"It is not in our children's best interest to have such limited time with me; our children should have meaningful time with both parents and prior to this Court's July 9th Order I had almost 40% with them. The way the current access schedule stands, I will have at a maximum 8 days with my children this summer compared to J.F. approximately 67. Most importantly, I have already witnessed how this current schedule is affecting our children for the worse. Our young sons are confused and suffering under the current schedule and will continue to suffer as they are deprived of the nurturing of their mother. On a recent Facetime with the children, S. stared into the phone, visibly sad and repeatedly told me he loves me. S. is usually such a happy child, and this nearly broke my heart. I fear that S. believes he is being punished by not being allowed to spend time with me. J. also appears confused by the present situation and has repeatedly begged me to come to Colorado, saying "don't punish me" and "I promise to be a good boy." He appears to think that he is not allowed to visit with me because he did something wrong. Clearly this present schedule is causing severe anxiety for our children."^[FN82]

"A few weeks ago, I was in the steam room with our two children and J. tripped and burned himself on the metal steam piece. Pictures of the shower and the steam piece are attached at Exhibit C. I immediately treated J.'s burn with proper ointment, bandaged it and followed all proper protocols for treating a burn. It is now almost fully healed. See Exhibit J. The nanny was aware of the burn and I heard her telling J.F. of it later that evening on the phone. I intended to further discuss the burn with J.F. when he picked up the children for his visitation, but he sent his driver to get the children and did not come himself. The next day when J.F. emailed me about the burn, I emailed him back after I finished my shift at work. It is very difficult for me to text and email during the day when I am working."^[FN83]

On August 10, 2021, Plaintiff filed submission in reply pertaining to Motion Sequence No. 9,^[FN84] wherein Plaintiff asserted that following the filing of his application, Defendant had exercised additional poor judgment by bringing the Children with her to a nude hot spring where [*14]the Children, while clothed with Defendant, were exposed to numerous naked individuals.^[FN85]

On August 24, 2021, Defendant filed a motion ^[FN86] by order to show cause (hereinafter "Motion Sequence No. 10"), requesting the entry of an order granting relief, inter alia, permitting unsupervised access of Defendant with Children. In support of her application, Defendant filed an affidavit wherein she asserts that it is "not in the best interest of our young children to have such limited access to me," and directs the Court to review the annexed affidavit of a mental health professional, "As further set forth in the accompanying affidavit of Dr. Robin Deutsch (hereinafter "Dr. Deutsch"), the current access schedule and the significant time the children have gone without spending extended, quality time with me over the past two months, from a psychological and developmental perspective, is extremely determinantal to our children's well-being and must be changed."^[FN87]

Dr. Deutsch's affidavit, indicating that she is a psychologist board certified in couple and family psychology, set forth a stern warning against a parenting schedule that would result in long periods where children do not have meaningful interaction with either parent:

"We know that disruptions in the attachment relationship may result in an insecure attachment with the mother, creating an increased risk of psychopathology, including depression, anxiety, and behavioral problems in the short and long term. Specifically, there is much concern that the limited availability of the mother will increase risk of "attachment-related fear, anger and sadness" that will be expressed as emotional and behavioral systems."^[FN88]

* * *

Young children need sufficient contact with both parents without days or weeks between contacts to maintain a close and meaningful relationship with that parent (Kelly, 2007)"^[FN89]

* * *

"Developmental theory, including attachment research, as well as research on parenting plan arrangements, suggests that parenting plans should take into consideration the maintenance of attachment relationships to mitigate the effects of stressful absence, which can result in emotional, behavioral and adjustment problems in the short-term and into adulthood. Based on the research, the current schedule of the children going 10 days without seeing their mother, then seeing her for approximately 48 hours, and then going another 10 days without seeing her, will likely result in negative effects for these young children such as increased aggression, sleep difficulties, anxiety, or regression of previously accomplished skills. This summer schedule, coupled with six months of the prior schedule of the children going 15 consecutive days without seeing the mother, and [*15]then 9 consecutive days without seeing the father may result in increased stress, potentially affecting brain development including difficulties regulating emotions and decreased attention and concentration. These difficulties, should they be present, will affect school performance and peer relationships. In addition, these absences may affect the children's sense of security in their attachment relationships, which can have long-term implications for interpersonal relationships."^[FN90]

On September 9, 2021, Motion Sequence No. 10 was conformed [Lubell, L.].^[FN91]

On September 13, 2021, a proposed order on consent ^[FN92] was filed, which was entered ^[FN93] [Lubell, L.] on that day which set forth the manner within which Counsel Gourari and the Cox Firm would turn over materials pertaining to Plaintiff's e-mail communications.

On September 17, 2021, a Decision and Order ^[FN94] pertaining to Motion Sequence Nos. 5 and 8 was entered [Lubell, L.] directing that a framed issue hearing was to be held to determine the enforceability of the Prenuptial Agreement.

On September 20, 2021, Plaintiff filed a motion ^[FN95] by order to show cause (hereinafter "Motion Sequence No. 11") seeking the entry of an order granting relief, inter alia, enjoining Defendant from having visitation with the minor issue pending the Court establishing a new schedule of supervised visitation for Defendant and adjudicating the Defendant in contempt of this Court's Order dated July 9, 2021, being the conformed order to show cause pertaining to Motion Sequence No. 9,^[FN96] for evading and avoiding the supervision requirement for her visitation with the Children.

Plaintiff asserted that the relief sought in his application was warranted due to Defendant's failure to comply with the Court Order requiring Defendant to have supervised access with the Children.^[FN97] In support of his application, Plaintiff submitted an affidavit of K.H., who was retained to provide supervision of Defendant's access with the Children, who asserted the following regarding her interactions with Defendant during her supervision of Defendant's access time with the Children:

"I advised the Defendant I was not providing to her nanny services but instead was acting within the capacity set forth in the parties' Court Order. The Defendant became enraged with me, cursed at me and refused to take "no" for an answer. Shortly thereafter, J. yelled down the hallway that "K.H. is the worst." J. has never acted this way toward Affiant [*16]prior to this moment. I then noticed that Defendant was leaving the hotel with both children without advising Affiant in spite of the provisions of the Court Order. I saw the Defendant enter a restaurant across the street and I followed her there. Defendant advised me, the manager of the restaurant and the waiter that I should be removed, that I was stalking her and that I should not be permitted to sit with them. Wholly embarrassed, I sat at a different table for dinner but was able to observe the Defendant and the children throughout. When we crossed back across the road after dinner, Defendant refused to allow me to be present when she was with the children at any time. The visitation ended the next day."^[FN98]

On October 1, 2021, Plaintiff filed a motion ^[FN99] by order to show cause (hereinafter "Motion Sequence No. 12"), seeking the entry of an order granting relief, inter alia, enjoining the Defendant from communicating in any manner with Rippowam Cisqua School (hereinafter "Rippowam"). Plaintiff submitted an affidavit in support of his requested relief asserting that Defendant had engaged in inappropriate communications with the school that jeopardized the continued enrollment of J. at the institution:

"Attached hereto and made apart hereof as Exhibit "1" is a copy of an email I received from the headmaster. After I received it, I called him and we spoke at length. He advised that Defendant started placing calls to as many people as would talk to her at the school, claiming that I was not providing her information about J. I note that until 3:30 pm on September 30, 2021 Defendant had never made an inquiry of Affiant about the school that was not answered and never indicated she needed information that she did not already have. In any event, the headmaster explained that her complaints finally escalated the matter to him and he spoke with her. She sent two threatening emails. They are referenced in his email to Affiant. In one email which was sent to the charitable giving department she claims that an unnamed wealthy Russian family will donate a large amount of money if she is provided information about J. but the information must be provided before payment would be made. In the second, the Headmaster related that Defendant threatened police intervention and a reporting to 'independent School Accrediting agencies' if she was not provided the information she requested. The headmaster advised that the school will not indulge the Defendant's behavior and I fear it will result in J.' expulsion. Affiant assured him I would undertake efforts to enjoin the Defendant from engaging in such conduct."^[FN100]

On October 1, 2021, Motion Sequence No. 12 was conformed ^[FN101] [Lubell, L.] directing that pending order of this Court the Defendant was enjoined from communicating with Rippowam.

On October 4, 2021, Defendant filed a motion ^[FN102] by order to show cause (hereinafter "Motion Sequence No. 13") seeking the entry of an order granting relief, inter alia, granting Defendant sole custody and suspending access time of the Children with Plaintiff. ^[FN103] In support of her application, Defendant filed an affidavit in asserting that Plaintiff had placed the Children in grave risk by arguing that their "continued absence from me, their mother, is causing them significant emotional harm " and that "...they are also at risk of suffering critical emotional harm from J.F.'s continued separation of the children from me.."^[FN104] Defendant further voiced concern for the Children's need for stability asserting that interfering with the Children's routine to accommodate Plaintiff's travel schedule would be inappropriate:

"It would be awful for J. for J.F. to pull him out of school every couple of months to accommodate J.F.'s travel schedule. That is no life for a child. Indeed, that is the very definition of a selfish parent who puts their own needs above those of their children. Children need stability. I can and always have provided that stability."^[FN105]

On October 6, 2021, Defendant filed submissions in opposition to Motion Sequence No. 12,^[FN106] wherein Defendant indicates that Plaintiff's assertion that he has sole custody of the Children on consent was "terribly misleading," indicating that the Court granted such relief "over my objection," but in the same paragraph confirms that she did provide her consent "I had no alternative at the time but to 'consent' to J.F. having sole custody."^[FN107] Defendant then acknowledges that her conduct pertaining to the school was inappropriate, but nonetheless continued to attempt to justify her behavior:

"I am embarrassed that I let my frustration with the school's refusal to provide me any information boil over. After trying to get information from the school for weeks and having all of my requests ignored I did tell the school that I was coming to the school for a meeting and if they did not meet with me I would call the police. I regretted it the minute I wrote it but I was at wits' end and frustrated by the school's repeated refusal to provide me with any information about J. and his enrollment at Rippowam.

* * *

My behavior, which I wholeheartedly regret, was a reaction to continuously being left in the dark about J. What mother would not be upset if their child started a new school and that school refused to provide that parent with any information or even speak to the mother? I assure the Court that I will never again do such a thing to Rippowam or to any [*17]school, teacher, or other professionals involved with our children."^[FN108]

On November 17, 2021, Defendant filed a motion ^[FN109] (hereinafter "Motion Sequence No. 14"), seeking the entry of an order granting relief, inter alia, quashing the November 9, 2021 Subpoena Duces Tecum and Ad Testificandum issued to D.A. On November 23, 2021, Motion Sequence No. 14 was withdrawn.^[FN110]

On November 30, 2021, Motion Sequence No. 13 was conformed ^[FN111] [Lubell, L.] and Motion Sequence No. 11 was conformed ^[FN112] [Lubell, L.].

On December 1, 2021, Plaintiff filed a motion ^[FN113] by order to show cause (hereinafter referred to as "Motion Sequence No. 15"), seeking the entry of an order granting relief, inter alia, that Defendant's access with the Children remain supervised; directing Defendant to cease all efforts to secure passports and Russian citizenship for the Children; and enjoining Defendant from removing the Children, J. and S., from the jurisdiction of this Court. In support of his application, Plaintiff filed an affidavit ^[FN114] asserting that during a conference held the week prior to the filing, certain statements were made by Defendant, and certain documents were produced to the Court by Plaintiff, wherein he became concerned that Defendant had engaged in efforts to flee with the Children to Russia:

"After the birth of our second child the Defendant started making overt plans to secure Russian citizenship for both boys. I objected to her efforts and we finally reached an accord whereby she acknowledged that there was no reason to secure such passports and that the consequences could be dire including without limitation for our marriage. I did not hear about her request again until 2019. In 2019 the Defendant traveled to Russia. During the course of her trip I received frantic communications from her explaining that she had "lost" her backpack which contained important documents. As is set forth in the attached text message exchange, the Defendant explained to Affiant that one of the documents that was lost were the children's birth certificates. When I inquired as to why she possibly could need the children's birth certificates from the United States in Russia she fabricated a claim that she needed the same to facilitate a transaction concerning her mother's home. It made no sense. The Defendant denied that she was attempting to secure passports or citizenship for the children. However, when she returned home I opened her backpack and discovered attached Exhibits "1" and "2" which are our children's U.S. birth certificates, applications for Russian passports and an Apostile for the same. I realized at that point that our marriage most probably was not going to last [*18]due to her wholesale dishonesty and apparent nefarious plans to one day remove our children to her native country, Russia. The Defendant has never been alone with our children since her return from Russia - - never."^[FN115]

On December 1, 2021, Defendant filed a motion ^[FN116] by order to show cause (hereinafter "Motion Sequence No. 16"), seeking the entry of an order granting relief, inter alia, seeking unsupervised access with the Children or supervision through Comprehensive Family Service (hereinafter "CFS") with a delineated schedule. In support of her application, Defendant again asserts that the Children have been harmed by being prohibited from seeing her:

"It has been more than two months since I have visited with our children, and both they and I are suffering from that separation. I have always been very close to our children, and they need the love and support of their mother. I would do anything to see my children ...

* * *

I have suffered tremendously already and I know my children have as well. At this young age it is very important that they spend ample amounts of time with their mother, the only caretaker they have ever known."^[FN117]

On December 3, 2021, Motion Sequence No. 15 was conformed ^[FN118] [Lubell, L.] directing that pending further order of this Court, the Defendant shall not make any efforts to obtain Russian passports or citizenship for the Children; and Motion Sequence No. 16 was conformed ^[FN119] [Lubell, L.].

On December 6, 2021, Counsel Most filed a submission pertaining to Motion Sequence No. 11, wherein she asserted:

"While during the pendency of this matter we have seen many instances of poor judgment with the children on the part of the Defendant, the professional supervision alleviates that issue. The children are very anxious to see their mother and have told me that they miss her. I am not sure how the Defendant has allowed months to go by, while she has refused offered access because it would be supervised by the children's nanny. The offer was made several times and no access was made by Defendant. It is not in the boys' best interest for long periods of time to intervene in Defendant's access."^[FN120]

On December 9, 2021, Counsel Most filed a submission pertaining to Motion Sequence No. 15, wherein she supported Plaintiff's application indicating:

"When last in Court the Defendant acknowledged that she wanted to get Russian passports for the children. Plaintiff offered some proof that the Defendant had, in fact, attempted to secure those passports. Plaintiff made clear his fear that Defendant would leave the jurisdiction with the children. In light of her acknowledgment that she wanted to secure Russian passports for the children all efforts must be put into place to ensure that this cannot happen.^[FN121]

On December 10, 2021, Counsel Most filed a submission ^[FN122] pertaining to Motion Sequence No. 16, opposing Defendant's request for unsupervised access with the Children, again noting concern that Defendant has voluntarily absented herself from the lives of the Children to their detriment:

"Defendant complains that it has been more than two months since she has seen the children. This is her refusal to see the children under the circumstances offered to her immediately on his return from Colorado. It defies my logic how any parent would refuse the offered access because the nanny had to be present when that was what the extant order was. The Defendant's refusal to see the boys at any of the offered access periods have caused the boys certainly disappointment as they love her and miss her. The Defendant deserves and the children deserve a relationship. This Court has previously put protections in place precisely because of Defendant's issues with judgment and decision making which have been evident throughout this matter."^[FN123]

On December 10, 2021, Defendant filed submissions in opposition to Motion Sequence No. 11,^[FN124] where she asserts claims against Plaintiff's parenting abilities and refutes the statements of K.H., but confirms that she has not regularly seen her Children over a prolonged period of time:

"I have only seen the children a handful of times over the last 5 months, and it has been more than two months since I have seen my children at all in person. Both they and I are suffering from that separation."^[FN125]

"It upset me that K.H. immediately sat down at the table with me and my children. K.H. was with us every minute of this trip. All I wanted was to spend an hour with my children at a table without K.H. sitting on top of us as she had been during the entire trip. I politely asked K.H. to sit at a table nearby where she was able to observe us. While I understand that the current court orders prohibit me from being alone with my children, [*19]there are no orders that say the supervisor must be within 5 feet of me at all times."^[FN126]

On December 13, 2021, Plaintiff filed a cross motion ^[FN127] (hereinafter "Motion Sequence No. 17"), seeking the entry of an order granting relief, inter alia, an award of counsel fees.

On December 15, 2021, Defendant filed submissions in opposition to Motion Sequence No. 15,^[FN128] including an affidavit of Defendant where she confirms that she had initially taken steps to obtain Russian citizenship for the Children with Plaintiff's consent, but took no further action when he later took a position against it.^[FN129] Defendant then asserted that while it is correct that she took the Children's birth certificates to Russia, this occurred accidentally:

"As to the incident J.F. references in his affidavit regarding my trip to Russia to see my family in 2019, it is true that I misplaced my backpack and that I had brought with me our sons' birth certificates.

* * *

While it is true that I took the children's birth certificates when I went on that trip, it was inadvertent. I had taken a folder containing my birth certificate and personal documents, and the children's certificates were in that folder as well. I did not notice that until I was in Russia."^[FN130]

On December 20, 2021, a Decision and Order ^[FN131] was entered [Lubell, L.] pertaining to Motion Sequence Nos. 9-16, wherein Motions Sequence Nos. 9, 10, 11, 13, 15, and 16 were granted to the extent they were referred to a hearing for resolution; and Motion Sequence No. 12 was granted to the extent that Plaintiff was directed to provide Defendant information pertaining to the education of J. and in the event Defendant was not satisfied with the information provided, was to seek Court intervention.

On December 21, 2021, a Report of Court Attorney Referee Janet Gandolfo,^[FN132] was issued providing the following:

"The parties have not done discovery on this case because the validity of the prenup was at issue. The Court has ordered a hearing regarding the pre-nup challenge. There is no date scheduled yet because subpoenas were issued in preparation of the hearing but the subpoenas will be the subject of motions to quash. The motions will be submitted this week. Judge Lubell granted permission to submit the motions. Aside from the discovery which is the subject of the subpoenas, counsel state there is no other discovery that needs to be conducted. Adjourned to March 8, 2022 at 9:30 a.m. for a trial readiness [*20]conference, subject to a change of date due to re-assignment of this matter."

On December 21, 2021, Defendant filed a motion ^[FN133] by order to show cause (hereinafter "Motion Sequence No. 18") seeking the entry of an order granting relief, inter alia, quashing the December 2, 2021, Subpoena Duces Tecum and Ad Testificandum issued to D.A.

On December 23, 2021, Motion Sequence No. 18 was conformed,^[FN134] [Lubell, L.].

On December 23, 2021, Plaintiff filed a motion ^[FN135] (hereinafter "Motion Sequence No. 19"), seeking the entry of an order granting relief, inter alia, quashing subpoenas decus tecum, dated December 13, 2021, issued to R.L., R.L.C., and M.A.

On January 6, 2022, a note of issue and certificate of readiness for trial ^[FN136] was filed pertaining to the issues of custody and access of the Children.

On March 4, 2022, a Court notice was issued indicating that this matter had been assigned to the Hon. Thomas Quinones, J.S.C., and a pre-trial conference was scheduled for March 29, 2022.^[FN137]

On March 14, 2022, an Order ^[FN138] was entered [Lubell, L.] pertaining to Motion Sequence No. 12, providing the following:

"WHEREAS, the Court heard argument on this motion in open court on December 16, 2021, with both parties and their counsel appearing in-person, and the Attorney for the Children appearing via MS Teams, and

WHEREAS, the court issued a written Decision and Order dated December 20, 2021, granting Plaintiffs motion in part, and directing Plaintiff, J.F., to submit a proposed order detailing its ruling as to Motion Sequence 12; and

NOW, based upon the foregoing, it is hereby

ORDERED, that pending further Order of the Court, Defendant; E.G., shall be entitled to receive directly from the school, Rippowam Cisqua, whatever information and access a parent would generally be permitted under the school's standard access and information protocols; and it is further

ORDERED, that Plaintiff shall provide to Defendant weekly updates, via email or text, of how their son is performing and the nature of his studies; and it is further

ORDERED, that if Defendant comes to find such information provided by the Plaintiff insufficient, she shall first attempt to address the apparent deficiency with Plaintiff, and failing that, with the Court; and it is further

ORDERED, that nothing herein is intended to limit Defendant's ability to contact the school in an emergency situation, that is, where awaiting a response from Plaintiff or the [*21]Court would pose an imminent danger to the Children.

This constitutes the Order of the Court."

On March 22, 2022, Plaintiff's counsel submitted a proposed interim custody consent order (hereinafter "Custody Consent Order #6),^[FN139] which was entered ^[FN140] [Quinones, T.] providing a supervised access schedule of Defendant with the Children with CFS and the Children's nanny to be terminated by CFS in the event of misconduct by Defendant with adherence to COVID protocols.

On March 30, 2022, Decision and Orders ^[FN141] were entered [Quinones, T.] pertaining to Motion Sequence Nos. 17-19.

On April 3, 2022, a motion ^[FN142] by order to show cause was filed by Defendant's prior counsel (hereinafter "Motion Sequence No. 20") seeking, inter alia, the entry of an order granting movant counsel fees from Plaintiff, which was conformed ^[FN143] [Quinones, T.].

On May 3, 2022, Plaintiff filed a motion ^[FN144] by order to show cause (hereinafter "Motion Sequence No. 21") seeking the entry of an order granting relief, inter alia, holding Defendant in contempt of this Court due to her ongoing failure and refusal to comply with the Court's Decision and Order dated December 8, 2020.

On May 5, 2022, Defendant filed a motion ^[FN145] by order to show cause (hereinafter "Motion Sequence No. 22") seeking the entry of an order granting relief, inter alia, granting Defendant unsupervised access time with the Children. In support of her application, Defendant submitted an affidavit wherein she acknowledges that she "innocently violated"^[FN146] the then Court Order restricting where she would engage in access with the Children, but later in the same document confirms she engaged in such violation intentionally:

"In any event, I knew I was not allowed to go anywhere, but I violated the stipulation by taking the children and J.F.'s nanny to a park. I simply did not really believe that J.F. would care to complain about it, since it was a lovely park, all outdoors, where the kids played on their scooters. I was wrong. J.F. did care."^[FN147]

On May 6, 2022, Motion Sequence No. 22 was conformed ^[FN150] [Quinones, T.].

On May 16, 2022, Plaintiff filed a motion ^[FN151] seeking the entry of an order granting the following relief, inter alia, granting a protective order and quashing the subpoena decus tecum, dated April 27, 2022, issued to Counsel Lieberman.

On May 18, 2022, Motion Sequence No. 21 was conformed ^[FN152] [Quinones, T.].

On May 25, 2022, Defendant filed a cross motion ^[FN153] (hereinafter "Motion Sequence No. 24") seeking the entry of an order granting relief, inter alia, directing Plaintiff and Plaintiff's counsel to enter into a confidentiality agreement pertaining to subpoenas served upon D.A.

On June 17, 2022, Plaintiff filed a cross motion ^[FN154] (hereinafter "Motion Sequence No. 25") seeking the entry of an order granting relief, inter alia, directing that movant pay counsel fees to Plaintiff.

On August 16, 2022, Defendant filed a stipulation ^[FN155] pertaining to the custody and access of the Children with a request that it be so-ordered which was entered ^[FN156] [Quinones, T.] (hereinafter "Custody Consent Order #7"), providing for Defendant's delineated access time with the Children during the family travel to the State of Colorado to be supervised by the Children's nanny R. permitting Plaintiff to terminate such access time due to misconduct of Defendant with COVID protocols being adhered to.

On November 29, 2022, Counsel Advocate filed a motion ^[FN157] by order to show cause (hereinafter "Motion Sequence No. 26") seeking the entry of an order grating relief, inter alia, [*23]permission to be relieved as counsel for Defendant; and on December 2, 2022, was conformed ^[FN158] [Quinones, T.].

On December 7, 2022, an Order ^[FN159] was entered [Quinones, T.] permitting Plaintiff to obtain United States passports for the Children.

On December 23, 2022, a Decision and Order ^[FN160] was entered [Quinones, T.] pertaining to Motion Sequence No. 26, wherein Defendant's counsel was relieved as counsel for Defendant in this action:

"This matter was scheduled before the Court on December 22, 2022. The Plaintiff and Defendant's Counsel were present, the Attorney for the Children was present. The Plaintiff was not present, but was excused and remained available virtually, the Defendant was not present. The Defendant was deemed to be in default, she not being present and neither did she contact the Court to seek an adjournment. Defendant's Counsel satisfies the Court that he used all efforts to communicate to the Defendant to be present for this appearance date. Defendant's Counsel's application (Mot. Seq. #024) requesting that he and his firm be relieved as Defendant's Counsel was granted with no opposition, the Court accepting that there has been a breakdown of communication between the Defendant and her attorney. The Court granted Defendant's Counsel's application to be relieved. Based upon the foregoing. Plaintiff and Defendant, and their respective attorneys, are directed to appear in-person for a status conference on February 7, 2023 at 4:00 p.m, in Courtroom 1003 in Westchester County Supreme Court located 111 Dr. Martin Luther King. Jr. Boulevard, White Plains, New York 10601. The Plaintiff is welcome to be available virtually, a TEAMS link will be provided. Defendant's Counsel shall serve a copy of this Order upon the Defendant via overnight mail on or before December 30, 2022."

On January 26, 2023, Defendant registered on the New York State Courts Electronic Filing (hereinafter "NYSCEF") system on her own behalf and thereafter has had full access to all documents filed in this action on NYSCEF.

On February 17, 2023, Harold R. Burke, Esq. (hereinafter "Counsel Burke"), as Defendant's fourth counsel in this action, filed a notice of appearance.^[FN161]

On March 29, 2023, an Order of Recusal ^[FN162] was entered [Quinones, T.], and thereafter the undersigned was assigned to preside over this action.

On April 13, 2023, a Decision and Order ^[FN163] was entered [Hyer, J.] pertaining to Motion Sequence Nos. 20 and 25, denying Motion Sequence No. 20 and granting Motion Sequence No. [*24]25. Simultaneously, a separate Decision and Order ^[FN164] was entered [Hyer, J.] pertaining to Motion Sequence Nos. 21, 23 and 24 providing:

"ORDERED that the portion of Plaintiff s motion (Sequence 21) seeking to hold Defendant in contempt for failure to comply with the Court's December 8, 2020 Order is denied with leave to renew should Defendant fail to comply with the provisions within this Decision and Order; and it is further

ORDERED that Defendant is directed to comply with the provisions of the December 8, 2020 Decision and Order, namely paragraphs iii, iv, and xii, no later than ten (10) days from the filing of this Decision and Order with Notice of Entry; and it is further

ORDERED that pursuant to the December 8, 2020 Decision and Order which conditions Defendant's turnover of certain electronic devices and e-mail accounts to Plaintiff s expert subject to "proper privacy controls", the proper privacy controls shall be construed as compliance with any and all relevant provisions of the September 13, 2021 Stipulation and Interim order, as well as any usual and customary privacy controls utilized by Plaintiff's expert; and it is further

ORDERED that Defendant's failure to comply with the directive to turn over electronic devices and e-mail account information within ten (10) days of this Decision and Order with Notice of Entry will result in a penalty to Defendant of $250.00 per day to be imposed at the time of the hearing; and it is further

ORDERED the portion of Plaintiff's motion (Sequence 21) seeking an Order directing that an adverse inference be drawn against Defendant as to all issues in this matter regarding her credibility, all issues affecting custody and access and that defendant be precluded from introducing any and all evidence at the time of any trial or hearing which is derived from, sent by, maintained in any email account, cellular phone, electronic device and/or computer device irrespective of said offer of evidence; and striking Defendant's answer and counterclaims is deferred to a hearing pursuant to the December 8, 2020 Decision and Order; and it is further

ORDERED Plaintiff s Motion (Sequence 23) is granted to the extent that Defendant's Subpoena Duces Tecum, which was returnable on May 19, 2022, is quashed: and it is further

ORDERED that Defendant's motion (Sequence 24) seeking an Order directing Plaintiff or Plaintiff's counsel to enter into a confidentiality agreement prior to Non-Party D.A. complying with the Subpoena Duces Tecum dated December 2, 2021 and the Subpoena Ad Testificandum dated December 2, 2021 is denied in its entirety; and it is further

ORDERED that the portion of Plaintiff s motion (Sequence 21) to hold Non-Party D.A. in contempt of court based on his failure to comply with the Subpoena Duces Tecum dated December 2,2021 is denied; and it is further

ORDERED that the portion of Plaintiff s motion that seeks to depose D.A., D.A. must be make himself available for a deposition within thirty (30) days of this Decision and Order with Notice of Entry. If he fails to do so, Plaintiff is granted leave to renew his application for contempt; and it is further

ORDERED that any relief requested herein and not decided is denied; and it is further

ORDERED that the parties and counsel shall appear in person before the undersigned on Thursday, May 25, 2023 at 10:00 a.m. for a pre-hearing conference.

The foregoing shall constitute the Decision and Order of the Court."

On April 18, 2023, a pre-trial conference order ^[FN165] was entered [Hyer, J.] directing a pre-trial conference to be held on May 25, 2023; and a trial to commence on June 26, 2023.

On April 25, 2023, a Court notice ^[FN166] was entered directing Plaintiff's counsel to file a proposed order ^[FN167] for counsel fees with respect to Motion Sequence No. 25, Plaintiff's counsel filed a proposed Order which was entered [Hyer, J.] on May 1, 2023.^[FN168]

On May 4, 2023, an Order ^[FN169] was entered [Hyer, J.] adjourning the trial dates to commence on July 24, 2023.

On May 4, 2023, Plaintiff's counsel filed a request for a pre-motion conference ^[FN170] asserting the need for a routine access schedule for the Children and Defendant, and to address inappropriate comments made by Defendant to the Children, after which an Order was entered on May 11, 2023 [Hyer, J.] directing a status conference to be held on May 15, 2023, wherein all parties and counsel were required to appear.^[FN171]

A so-ordered [Hyer, J.] Court transcript from the May 15, 2023,^[FN172] appearance reflects Defendant's failure to appear, and Plaintiff's allegations made against Defendant:

"Two issues have come about. We can't get misses — E.G., also known as E.G., to agree to a fixed schedule, and it's problematic. The second problem is the phone calls that come in, whether the doctor is present for the call or not, she has been fixed on two themes that are really troubling, especially for the oldest boy. One theme is she hates one of the nannies and whenever she sees or hears K.C.'s voice she goes on a vitriolic rant how much she hates the woman. This woman is one of the primary caretakers outside the house and sends J. off with, why does mommy hate K.C. so bad? We've asked her to stop; she won't. What happens is the call gets terminated. The second thing is, and this is just bizarre and it's been a theme, it actually resulted, believe it or not, in a plenary action which just resolved. How do I say? A.M. is an employee, W — 1099 for my client, for some years and they're friends. Misses, a few years ago, decided that she would start telling the children that A.M. and my client were lovers, that he's replaced her, that A.M. is daddy's new wife. She then went on a string of gay slurs to the children that they were not comprehensible for children this age and it was inappropriate. A.M. sued her to get it to stop. They finally came to an accord, and though A.M. is married and he's not gay, he [*25]was deeply offended by the — just the denigration of the — to the children as though there was something wrong if he was gay, with his sexual preference, that he shouldn't be allowed to be dad's friend. The whole thing was bizarre."^[FN173]

On May 18, 2023, an Interim Custody Order ^[FN174] was entered [Hyer, J.] providing the following:

"WHEREUPON, Plaintiff filed a letter on May 4, 2023, via NYSCEF Doc. No. 755, requesting a conference before the Court concerning the implementation of a supervised visitation schedule for Defendant and the Court having So-Ordered a status conference to be held on May 15, 2023, at 9:00 am with Counsel and Parties to appear and the Court having conducted said status conference at said time wherein Defendant failed to appear and wherein Plaintiff requested a supervised visitation schedule for Defendant's parental access with the minor issue and thereafter the Court granted Plaintiff's request, and

NOW, THEREFORE, IT IS HEREBY ORDERED:

1. Pending further Order of this Court or stipulation of the parties, the Defendant's access with the minor issue shall be as follows: i. Defendant shall have supervised parenting time with the children on Tuesday and Wednesday from 5:00 pm to 7:00 pm at Plaintiffs home with either Plaintiff or nannies present. ii. Defendant shall have supervised parenting time with the children on every other Sunday from 9:00 am until 7:00 pm with nannies present for the entirety of the visitation. iii. Once the children's school year ends and summer break begins, Defendant may elect to have additional supervised parenting time with the children on Tuesday and Wednesday from 10:00 am until 7:00 pm. Defendant shall provide no less than seven (7) days' notice to expand the same. iv. The nannies who are to be present for the Defendant shall be selected and provided by the Plaintiff. The nannies shall be present for all phases of the visit and exercise such authority as set forth in the Orders of December 10,2020; January 20, 2021, as amended on February 17,2021; and pursuant to the Court's directive in the Court's February 8, 2021 Order (the "February 8th Order") and December 3,2021, under Motion Sequence #15.

2. The Parties shall abide by the Children's Bill of Rights whereby the Parties' children are afforded: i. The right not to be asked to "choose sides" between their parents. ii. The right not to be told the details of bitter or nasty legal proceedings going on between their parents. iii. The right not to be told "bad things" about the other parent's personality or character. iv. The right not to be cross-examined by one parent after spending time with the other parent. v. The right not to be asked to be a messenger from one parent to the other. vi. The right to not be asked by one parent to tell the other parent untruths. vii. The right not to be used as a confidant regarding the legal proceedings between the parties. viii. The right to express feelings, whatever those feelings may be. ix. The right to choose not to express certain feelings. x. The right to be protected from parental warfare. xi. The right not to be made to feel guilty for loving both parents.

3. The Parties shall, while in the presence of the children, refrain from disparaging or denigrating the other party, the other party's family, friends, employer, employees, and/or [*26]any nanny who is caring for or supervising the Parties' children for any reason whatsoever, including, but not limited to, race, creed, color, sexual preference, gender, national origin, heritage, and/or employment."

On May 25, 2023, a conference was held wherein all parties and counsel appeared wherein, for the first time during this action, Defendant requested the services of a Russian language interpreter (hereinafter, "Russian Language Court Interpreter"), and the Court adjourned the conference to the afternoon wherein a Russian Language Court Interpreter was present.^[FN175] Thereafter, at all Court appearances, including the trial held, Defendant has utilized the services of Russian Language Court Interpreters who have confirmed on the record that they are able to communicate effectively with Defendant in the Russian Language.

On May 26, 2023, Plaintiff filed a motion ^[FN176] by order to show cause (hereinafter "Motion Sequence No. 27") seeking the entry of an order granting relief, inter alia, modifying Defendant's supervised access schedule; requiring the parties to abide by the Children's Bill of Rights; and requiring the parties, while in the presence of the Children, to refrain from disparaging or denigrating the other party, the other party's family, friends, employer, employees, and/or any nanny who is caring for or supervising the Parties' Children for any reason whatsoever, including, but not limited to, race, creed, color, sexual preference, gender, national origin, heritage, and/or employment.

In support of his application, Plaintiff submitted an affidavit which echoed the prior concerns voiced by his counsel at the recent Court conference:

"Defendant's FaceTime calls with the children have become problematic due to Defendant's misplaced anger towards our current nanny. Additionally, Defendant consistently discusses the litigation, as well as schedule for access with the children notwithstanding my repeated protestations to stop compounding the foregoing. Defendant has an obsession with making homophobic slurs against Affiant and our good friend A.M. who is married and lives in Colorado. Should the nanny be visible during the FaceTime, Defendant will proceed to use inappropriate language in denigration of her while the children are present and then hang up the call, refusing to speak if the nanny is present. Defendant's behavior is inappropriate and has caused the children, who care deeply for the nanny, to become upset and confused. As such, Affiant requests that the non-disparagement provisions imposed by the Court in its May 18, 2023 Access Order remain and endure in the forthcoming order. Defendant's behavior and her sporadic schedule necessitate the Court's imposition of a set supervised visitation schedule during [*27]the time in which Affiant and the children are in Colorado."^[FN177]

On June 7, 2023, Counsel Most submitted an affirmation in support of Motion Sequence No. 27 confirming that the conduct of Defendant had adversely impacted the Children:

"I also strongly support the non-disparagement conditions on the order. Unfortunately the boys have been subjected to that, and both have stated that they don't like it or that it upsets them. I understand that Defendant dislikes and objects to the Nannies. The nannies are also the ones who give a lot of care to the children while the Plaintiff is working. Both boys are very attached to their Nannies. When Defendant disparages them to the boys it is upsetting to them. Nor should the children be included in any information about the litigation. They are really young children, and deserve to be protected. Unfortunately there have been long periods in which the Defendant failed to have any access with the children. She strongly objected to the courts previous orders of supervision.

* * *

The Defendant previous refusal to see the boys at any of the offered access periods have caused the boys disappointment as they love her and miss her. The Defendant deserves, and the children deserve a relationship. This Court has previously put protections in place precisely because of Defendant's issues with judgment and decision making which have been evident throughout this matter."^[FN178]

On June 7, 2023, Plaintiff filed a motion ^[FN179] by order to show cause (hereinafter "Motion Sequence No. 28"), seeking the entry of an order granting relief, inter alia, enjoining the Defendant from having any contact or communications with Plaintiff and the Children and adjudicating the Defendant in contempt for her failure to comply with the Court's May 18, 2023 Interim Access Order. In support of the relief sought in Motion Sequence No. 28, Plaintiff filed an affidavit asserting that Defendant had engaged in inappropriate conduct during her access time with the Children including making homophobic and racist statements in the presence of the Children:

"On June 6, 2023, I arrived home at approximately 6:00 pm, where Defendant was already present enjoying her supervised visitation with the children pursuant to the May 18, 2023 Order. Three (3) nannies were present and two (2) were supervising the visit. Upon Affiant's arrival home, J. approached Affiant, clearly distressed, and informed Affiant that, in sum and substance, Defendant was "lying", and J. wanted to speak with Affiant and Defendant together. Although, Affiant was unsure as to why J. wanted to speak, it was not unusual for J. (who is advanced for his age) to request to speak with Affiant in such a manner. Affiant verbally greeted Defendant but Defendant refused to respond. Defendant then confronted J. and inquired if J. had told Affiant something that Defendant had said. J. then expressed that he was upset because Defendant told J. that she "does not like" Affiant's friend, A.M., or the children's nanny, K.C. Defendant then "gaslit" J., our seven (7) year old child, accusing J. of learning this knowledge through [*28]Affiant rather than Defendant, to which J. adamantly and upsettingly denied. Defendant then blamed J. for causing her pain by falsely accusing her of being a liar. Affiant attempted to diffuse the situation, at which point J. blurted out that Defendant had told J. that Affiant must have been with A.M. for the past few days when Affiant was not home. While Defendant's statement may appear innocuous, such a statement follows a long line of hateful, homophobic allegations that Affiant and A.M. are sexually involved. Defendant then doubled down on her behavior by telling J. that A.M. wife is named "Thomas" and that she is from Thailand, where the women are actually men. Affiant is not surprised by Defendant's comments but was rather shocked that Defendant was spewing homophobic and transphobic rhetoric while simultaneously denigrating someone's Asian descent all in front of our child."^[FN180]

On June 8, 2023, Counsel Most made a submission pertaining to Motion Sequence No. 28 wherein she supported the relief sought:

"As stated in my previous affidavit, the Supreme Court has previously put protections in place because of Defendant's issues with poor judgment and decision making which have been evident throughout this matter. Unfortunately her actions continue and don't seem to be controlled by the supervision. J. reported to me the incident of this past Tuesday night between J. and his Mother. He was extremely upset about what his Mother said and he stated that it made him very anxious. In particular, that his Mother lies to him and says bad things about Uncle A.M. and the Nanny, K.C. The animosity between his Mother and K.C, and, in addition, his Mother's constant statements about A.M.. J. had told me many times how his Mother tells him "lies". He feels she lies about A.M. Defendant constantly insists to the children that their Father's friend A.M. lives in the house with them. Both boys know this is not true. They know that A.M. lives in Colorado with his Wife. This past Tuesday night, Defendant was insisting that A.M. was married to a man not a woman. Defendant was insisting to J. that his Father who was away for two days was away with A.M. She insisted that A.M. was waiting in the van with his father who had just returned home. As his Mother left the home blaming J. for calling her a liar. J. was clear that he never called her a liar, he only said that she lied. J. said his mother didn't stay for dinner and left and started to yell at K.C.

* * *

J. feels his Mother knows what "rules" are and how to behave, but she doesn't know how to behave and how to act with them, and that she says bad stuff in front of them. J.'s understanding of the comments made by his mother was that A.M. is married to a woman from Thailand who his Mother said was really a man. Over the years of this litigation I have repeatedly stated that the boys need a relationship with their Mother. As I have previously stated the issue of disparagement must be ordered as the boys, particularly J., has stated that they don't like it and that it upsets them. Nor should the children be included in any information about the litigation. Discussion with the boys about the Plaintiff's friend, A.M., and telling the boys things that they know are untrue or that are not appropriate for them are further examples of the Mother's poor judgment.

* * *

Previous long periods in which the Defendant failed to have any access with the children [*29]has been difficult for the boys. Defendant has no understanding of what is appropriate with her young children. Her inappropriate conduct is detrimental to the well being of the children.

* * *

I am requesting that the supervision be by a professional therapeutic supervisor, or an agreed upon supervisor so that to children's well being can be protected."^[FN181]

On June 9, 2023, Motion Sequence No. 28 was conformed ^[FN182] [Hyer, J.] denying the requested ex parte relief, directing service of the application and, that all parties and counsel appear for oral argument on the return date being June 12, 2023.

On June 12, 2023, the parties and counsel appeared, oral argument was received with respect to Motion Sequence No. 28, after which a temporary order of protection ^[FN183] (hereinafter "6/12/23 TOP") was entered [Ondrovic, R]; to remain in effect until June 12, 2023; which directed Defendant to stay away from Plaintiff and the Children; refrain from communication with Plaintiff and the Children; refrain from conduct constituting a family offense against Plaintiff and the Children; and to surrender any firearms.

On June 13, 2023, an Order ^[FN184] was entered [Hyer, J.] directing all parties and counsel to appear on June 21, 2023, at 9:30 a.m.

On June 20, 2023, an Order ^[FN185] was entered [Hyer, J.] directing the consolidation with this action the proceedings pending in the New York State Family Court, Westchester County commenced under file number [Redacted] and docket number [Redacted].

On June 21, 2023, a conference was held wherein all parties and counsel appeared, during which Defendant made a request for the appointment of 18-B counsel which was granted as reflected in the so-ordered Court transcript:

"THE COURT: Thank you. With respect to this, I want to thank everybody for providing clarification. This has a long procedural history. What I am going to do, as much as I like to move cases forward, I am going to adjourn the trial. I am going to grant defendant's request for the appointment of pro bono legal counsel, and then I am going to set a new pre-trial conference date with a new pre-trial conference order. Just so everybody is clear, I am going to provide more than enough time for incoming counsel for the Defendant to be able to engage in a learning curve to review the three years of procedural history here. So the trial won't be immediate, okay. I want to make sure that the record is protected and that everybody has ample representation so that the Court can have a trial on this that will [*30]proceed orderly to make sure that everybody is protected."^[FN186]

On June 21, 2023, two temporary orders of protection were entered [Hyer, J.], the first ^[FN187] of which was against Plaintiff; to remain in effect until December 31, 2023; and directing that he refrain from conduct that would constitute a family offense against Defendant. The second ^[FN188] was entered [Hyer, J.] against Defendant; to remain in effect until December 31, 2023; with the same provisions as set forth in the 6/12/23 TOP; with the additional language:

"All child access time shall be done with therapeutic visitation by C.W. the cost of which shall be paid 80% by Plaintiff, 20% by Defendant. Plaintiff shall be permitted to travel with the minor children from 6/27/23 to 9/15/23, with the understanding that Plaintiff will provide payment of all expenses, with the exception of food, for Defendant to travel to Colorado, have a separate accommodation, separate vehicle and pay for all therapeutic access costs in Colorado. Plaintiff's nanny shall be permitted to attend all child access time. No further time shall take place at Plaintiff's home."

On June 21, 2023, an Order ^[FN189] [Hyer, J.] was entered directing a briefing schedule for Motion Sequence No. 28.

On June 22, 2023, an Order ^[FN190] [Hyer, J.] was entered appointing as 18-B counsel for Defendant John Guttridge, Esq., who by letter submission ^[FN191] declined the appointment due to a conflict.

On July 18, 2023, Defendant filed a motion ^[FN192] by order to show cause (hereinafter "Motion Sequence No. 29"), seeking the entry of an order, inter alia, seeking to proceed as a poor person in this action and assigning an pro bono counsel to represent Defendant; after which a Decision ^[FN193] pertaining to Motion Sequence No. 29 was entered by the Supervising Matrimonial Part Judge of the 9th Judicial District [Grossman, V.] declining to issue the order to show cause noting, "This determination is without prejudice to Defendant's right to apply to the Judge in the underling matter for appointment of counsel from the 18-B Panel."

On August 7, 2023, an Order ^[FN194] was entered [Hyer, J.] which vacated the appointment of John Guttridge, Esq., and appointing as 18-B counsel for Defendant Daniel J. Pagano, Esq. [*31](hereinafter "Counsel Pagano", who served as Defendant's fifth attorney in this action.

On September 5, 2023, an Order ^[FN195] was entered [Hyer, J.] appointing CFS, by C.W., as a supervised access provider.

On December 20, 2023, the temporary order of protection ^[FN196] entered [Hyer, J.] against Defendant was extended with the same terms to remain in effect until June 1, 2024.

On January 21, 2024, Counsel Pagano filed a motion ^[FN197] by order to show cause (hereinafter "Motion Sequence No. 30") seeking the entry of an order granting him permission to withdraw as counsel for Defendant in this action. In support of his application, Counsel Pagano filed an affirmation asserting, "Due to conflict and disagreement with the client I believe the relationship has broken down to the point where we cannot work together," and that, "This request is with her consent and request."^[FN198]

On January 23, 2024, Motion Sequence No. 30 was conformed ^[FN199] [Hyer, J.].

On February 6, 2024, a conference was held wherein all parties and counsel appeared, after which an Order ^[FN200] was entered [Hyer, J.] relieving Counsel Pagano as 18-B counsel for Defendant, indicating a new 18-B counsel for Defendant would be appointed and scheduling a status conference for February 14, 2024.

On February 7, 2024, an Order ^[FN201] was entered [Hyer, J.] appointing as 18-B counsel for Defendant Jasmine Hernandez, Esq., which was vacated with the entry of an Order [Hyer, J.] appointing as 18-B counsel for Defendant Leora Wexler, Esq., (hereinafter "Counsel Wexler") as Defendant's sixth attorney in this action.^[FN202]

On February 20, 2024, a conference was held wherein all parties and counsel appeared wherein Counsel Wexler advised the Court that as of that conference Defendant had not seen the Children in eight months,^[FN203] after which at the request of Defendant's counsel and against the objection of Plaintiff's counsel, an Order ^[FN204] was entered [Hyer, J.] permitting the parties to engage in further discovery prior to a hearing to be held to determine the enforceability of the Purported Marital Agreement:

"1. The parties shall be permitted to engage in discovery pertaining only to the validity of [*32]the purported marital agreement referenced in the September 17, 2021, Decision and Order, pursuant to the following deadlines:

a. Discovery Demands - March 8, 2024, shall be the deadline for the service of Demands for Discovery and Inspection and filing with the Court, Responses for which must be served to be received in-hand by April 8, 2024. In the event discovery demands are not served and filed timely, they shall be waived. To the extent either party believes that the responses received are deficient, Deficiency Notices shall be served and filed with a request for a Pre-Motion Conference by no later than April 19, 2024.

b. Depositions — May 8, 2024, shall be the deadline for all party and non-party depositions, and counsel must file on NYSCEF no later than March 8, 2024, a schedule by which party depositions shall be held including for each deposition: (1) date; (2) time; and (3) location (or virtual by consent only). In the event a deposition schedule is not filed timely, depositions are waived.

c. Post-Deposition Discovery Demands — Shall be served and filed with the Court within 5 days of each deposition, Responses shall be served within 20 days of each Demand. In the event post deposition discovery demands are not served and filed timely, they shall be waived. To the extent either party believes that the responses received are deficient, Deficiency Notices shall be served and filed with a request for a Pre-Motion Conference by no later than ten (10) days of receipt of the responses.

d. Experts — Each party shall select his/her own expert for any issues. The expert shall be identified to the other party by letter with their qualifications and retained no later than April 30, 2024. If a party requires fees to retain an expert and the parties cannot agree upon the source of funds, an application for fees shall be made in the form of a Pre-Motion Conference request by letter submission. Any expert retained by a party must represent to the party hiring such expert that he or she is available to proceed promptly with the expert services. Expert reports are to be exchanged 60 days prior to trial/hearing, reply reports are to be exchanged 30 days after service of an expert report.

e. No further discovery shall be permitted without Court approval by Court Order.

2. A Compliance Conference shall be held on April 23, 2024, at 9:00 a.m., wherein all counsel and parties must appear in-person."

On May 13, 2024, the prior temporary orders of protection ^[FN205] entered against Defendant were extended by new orders entered [Hyer, J.] to remain in effect until June 21, 2024; and on June 21, 2024, was again extended by a consolidated order ^[FN206] entered [Hyer, J.] to remain in effect through June 20, 2025.

On August 15, 2024, an order ^[FN207] was entered [Hyer, J.] directing trial to commence on custody and access issues on September 10, 2024 with a pre-trial conference to be held on August 22, 2024, at 9:00 a.m.

On August 22, 2024, a conference was held wherein all parties and counsel appeared during which Counsel Wexler made an application to be relieved as counsel for Defendant [*33]asserting, "At this time I believe she's taking steps that are not in line with my advice, and I don't believe that I can continue on as counsel if my client is not following my advice,"^[FN208] and continued:

"Judge, I don't make this application lightly, this is not an application I believe I have ever made before this Court. At this time — and I am trying to choose my words carefully here — at this time having a client who again I don't believe is taking or taking in my advice and acting accordingly, I don't know how I can continue to represent her."^[FN209]

After granting Counsel Wexler's application to be relieved, the Court declined to appoint new 18-B counsel for Defendant having determined Defendant, through her conduct, to have waived such appointment.^[FN210] Due to Defendant's new status as a self-represented litigant, the Court provided Defendant with a hard-copy of the Part Rules and self-represented litigant information sheet, and confirmed that she was aware that following the stay to be imposed by the Court there would be a pre-trial conference held wherein both sides would need to be prepared:

"THE COURT Defendant, you can proceed pro se if you would like as a self-represented litigant, or you have the right to be represented by a counsel of your selection or you can utilize a non-for-profit agency that is available. I am going to mark two documents as Court Exhibits. Kimberly, please provide a copy to the defendant, the AFC and also the plaintiff and we are going to mark them to please provide a copy to Madam Court Reporter. The first is going to be self-represented litigant information sheet, Court Exhibit I. Court Exhibit Number II, are the part rules of the Honorable James L. Hyer, Justice of the Supreme Court, I am going to make sure that everybody receives them and I am going to go into what they are.

MR. M. LIEBERMAN: Thank you, Judge, receipt acknowledged. (Whereupon, two documents above referred are marked as Court Exhibits I and II, as of this date.)

THE COURT: Plaintiff's counsel, please confirm that you received those two documents.

MR. M. LIEBERMAN: Confirmed.

THE COURT: Madam AFC?

MS. MOST: Confirmed.

THE COURT: Defendant?

E.G.: Received.

THE COURT: Thank you. Court Exhibit Number I is a copy of my part rules. Most judges across the state have their own part rules which govern the administration of the proceedings held before them. These are mine. They work in concert with two other sets of rules. The first is the Westchester Matrimonial Operational Part Rules which pertain to all matrimonial cases brought in Westchester County, New York, and also the Uniform Trial Court Rules of the State of New York. While I have not provided you with copies of those documents, they are indicated within the part rules themselves, with electronic links so that you can obtain them. Please familiarize yourself with them because to the [*34]extent you're representing yourself here, you will be held to the same high standard as attorneys that appear before me. Ma'am, do you understand that?

E.G.: Yes.

THE COURT: Very good. The second document, Court Exhibit number II is legal resources for unrepresented litigants. This does not list all of the resources that are available inside and outside of the court system for parties that are representing themselves. However, this document was created to facilitate some information to parties that are representing themselves. Included in this document is the 9th Judicial District's Law Library which is located on the ninth floor of this building, that's open to the public and free to use including a bank of commuters, legal research tools and other resources. Located in the law library is the office of self-represented that is staffed by court staff. I will note that they cannot provide you with legal counsel. However, they can be a conduit of information and other resources that are available for you as a self-represented litigant inside and outside the court system. There is other information on here as well to other resources. I will make sure that you understand on the record this is not an exhaustive list of everything that is available. To be sure, you can hire a lawyer at your own pleasure by opening up the phone book and contacting the bar association. Ma'am, did you understand all of that?

E.G.: Yes.

THE COURT: Very good. So, I am making it very clear, I am staying this action and I am postponing the trial. But when we come back here on September 27th, 2024 at 9:00 a.m., ...we will be having a pretrial conference pursuant to my part rules and we will be scheduling a custody and access trial. Plaintiff's counsel, any questions?

MR. LIEBERMAN: No, your Honor.

THE COURT: Defendant, any questions?

E.G.: No.

THE COURT: Madam AFC?

MS. MOST: No."^[FN211]

On August 24, 2024, an Order ^[FN212] was entered [Hyer, J.], relieving Counsel Wexler as counsel for Defendant; directing by September 6, 2024, Counsel Wexler to provide an outgoing attorney letter to Defendant listing and annexing copies of her entire file excluding any documents filed on NYSCEF; imposing a stay of the action until September 27, 2024, at 9:00 a.m. wherein a pre-trial conference would be held; and adjourning the trial dates.

On September 27, 2024, a pre-trial conference was held wherein all parties and counsel appeared wherein the attorney for the Children advised that the Children are doing well, want to remain living with Plaintiff and that while the visitation with Defendant had been going well, there had not been a visit since the last Court appearance.^[FN213] Defendant advised the Court that she had a lack of funds to pay for the supervised access:

"E.G.: But, unfortunately, I really want to be with the kids. I pray to God to be with the [*35]kids. Today I'll be able to make it, but after today I won't be able to. I can't afford it. I don't have the means to play — to pay the supervisor. I have some money on my savings account, but the God — my godfather is old and he allocates funds for me bit by bit in order for me to finish college. So, he's always been hoping that with a good education I will get the kids, but he's stopped paying the expenses for the divorce and he says that now these funds will be directed for educational purposes. Unfortunately, I don't have any available funds to keep paying the supervisor for the supervised visits, and especially after tonight. I want either that the supervised visits are stopped or that J.F. pay for C.L.'s bills. And if the fact that I won't be requesting the kids, it's not that I don't want to, it's just that my financial situation doesn't permit me to. But the children keep telling me why do we spend so many days with dad and so few days with you, and before the divorce proceeding began I was always the primary parent."^[FN214]

Defendant further advised the Court that she had disregarded the Court's directives made at the last conference as she was unprepared for the pre-trial conference:

"E.G.: Four and a half years ago, when the temporary custody was taken away from me, I wasn't even — I didn't even attend the conference. I wasn't there physically. I — all the issues that came up they kept saying that will be resolved at the trial, trial, trial, and but when I tried to present evidence they wouldn't accept it and said leave it for the trial. I strongly believe that I don't need any supervision. I'm a very healthy individual and I have evidence. I see the trial as an opportunity to fight for my children and to show something, something showing that I'm a good mother.

THE COURT: Understood. So do you have a trial notebook with you today for your pre-trial disclosure?

E.G.: I have nothing.

THE COURT: So it was very clear the last time you were here that I indicated that today would be a pre-trial conference and that you would be required to follow the part rules just like the lawyers that appear here, and I stayed the case for over 30 days in order to afford you the opportunity to either retain counsel or to represent yourself effectively. You're indicating you want to proceed to a trial, and that is by far your right. However, to the extent that we have a trial and you're looking to present witness testimony, you need to have a witness list laying out all of your witnesses. You need to have all of your exhibits prepared in an exhibit list with copies —

E.G.: Leora has it.

THE COURT: Ma'am, you're now representing yourself. Ms. Wexler was relieved as your counsel.

E.G.: I didn't completely understand the previous time that today would be a pre-trial conference."^[FN215]

In an abundance of caution, in order to afford all due process and the opportunity to prepare for trial, the Court adjourned the pre-trial conference and extended the deadline for the parties to provide trial notebooks to the Court:

"THE COURT: So what I'm going to do is I'm going to delay this and adjourn this hearing today — this pre-trial conference to another date. But while everybody is here in the room, I need to schedule a date for the pre-trial conference, for the custody trial — the dates for the custody trial, a date for a framed issue hearing on the prenuptial agreement and a date for prehearing disclosure. I understand that at our last appearance we talked about dates. I need to make sure they're acceptable to everybody and they work with the Court's schedule. E.G., it's very important that you write all of this down. Are you a registered NYSCEF user?

E.G.: (English) Yeah.

THE COURT: So you have the ability to, and if you need help with this you can go down to the ninth floor and speak to the Supreme Court clerk's office, you're able to get email notifications of anything that's filed on that NYSCEF filing, but you also should be checking it every day because there is an ongoing litigation. I'm going to afford the parties, specifically you because you're representing yourself, with additional time. But if you come to the next pre-trial conference and you fail to provide what's required in the pre-trial conference order and my part rules, I'm letting you know that you can be sanctioned, that includes me striking your pleadings —

THE INTERPRETER: I'm sorry, your Honor?

THE COURT: That includes me potentially striking your pleadings, precluding you from offering evidence or testimony at trial and potentially issuing monetary sanctions. That's not my objective here. My objective is simply to provide folks the opportunity to be heard in a fair, effective process. Ma'am, do you have any questions about any of that?

E.G.: Yes. These lists, these witness lists and the document list, can I file this or is it mandatory that I bring it here?

THE COURT: You're supposed to bring three-ring notebooks in binders. This is what they look like. I'm holding up a notebook that's a spiral notebook. This is what it looks like on a simple case. There's only one binder. On a complicated case there could be multiple boxes. My trial rules and my part rules I already gave you a copy of, and there's a whole table of contents, including a section on pre-trial conference rules. You need to include a witness list of all the witnesses that you're going to have testify at trial. If those witnesses are not listed, they will be precluded from testifying. You need an exhibit list of all the exhibits that you wish to offer into evidence at trial, with copies of each of those exhibits in the three-ring binders with separate exhibit tabs. All motions in limine need to be filed at least 10 days before the pre-trial conference. Opposition needs to be filed at least five days before. There's other things that are required too. I'm not going to reiterate all of them, but they're in my rules. I'm going to adjourn this conference to afford you additional opportunity to review what your prior counsel already filed and to file any additional trial documents."^[FN216]

On October 1, 2024, an amended pre-trial conference order ^[FN217] was entered [Hyer, J.] providing the following instructions pertaining to a trial to be held pertaining to the custody of the Children, directing a pre-trial conference to be held on April 11, 2025, at 9:30 a.m.; trial to [*36]commence on May 5, 2025, at 9:00 a.m.

On October 1, 2024, a hearing order ^[FN218] was entered pertaining to the framed issue hearing to be held pertaining to the Purported Marital Agreement directing that pre-hearing disclosure was to be made by April 11, 2025; and a hearing was to commence on May 19, 2025.

On March 14, 2025, Counsel Most filed a witness list ^[FN219] enumerating one witness to be called at trial being C.L.

On April 1, 2025, Plaintiff's counsel filed the following: (1) Plaintiff's Exhibit List, enumerating proposed exhibits 1-85c;^[FN220] Plaintiff's Witness List, enumerating the following nineteen potential witnesses: Plaintiff, Defendant, K.C., K.H., R.G., M.G., C.W., C.L., D.A., J.A., J.C., A.M., T.B., E.Z., K.C., C.M., M.F., A.B, and G.M.;^[FN221] and potential exhibits 1-85c.^[FN222]

On April 1, 2025, Counsel Most filed the following: (1) AFC Exhibit List, enumerating proposed exhibits 1-3;^[FN223] proposed exhibits 1-3;^[FN224] Exhibits List of Decisions and Orders;^[FN225] Copies of Decisions and Orders A-CC.^[FN226]

On April 7, 2025, Defendant filed the following: (1) proposed exhibits A-TT;^[FN227] and (2) Defendant Witness List,^[FN228] enumerating the following nine potential witnesses: Defendant, Plaintiff, N.C., W.K., M.C., A.R., C.L., P.L., and A.G.

On April 9, 2025, Counsel Most filed a statement of proposed disposition ^[FN229] which included that the Children's wishes are to remain living with Plaintiff and expressing the Children's further wishes for consistent weekly access with Defendant despite a stated concern for Defendant's lack of consistency with access in the past:

"Throughout this matter access has been an issue. There have been several periods in which the Mother has had limited, or no access.

On information and belief those periods are as follows:

1. July 2021 (access in Colorado) through January 2022 - 6 months (transcript 12-12-21) no access on the recommendations of Mother's counsel

2. January, 2022 to April, 2022 two CFS visits, one Easter visit on or about 4/22/2022

3. 6/2023 until May 2024 no access until C.L. was engaged.

4. Supervised access with C.L. Appointment March 2024

i. 5/19/24: 1:30-4 C.L. office

ii. 6/9/24: 11:00 — 2:00 Pottery Factory Mt. Kisco

iii. July 7, 2024: 1:00-3:00 Park Mt Kisco

iv. August 23, 2024: 12:00-4:00 Sky Walk

v. August 24: 2024: 12:00-4:00 Spin USA Yonkers

vi. December 12, 2024: Westchester Mall

5. August 24, 2024, to date one visit on 12/12/24 — 8 months

The lack of consistent access on the part of the mother has been troubling and a cause for concern. It is also disappointing for the children. Children need consistent access that they can depend upon.

The children would like consistent weekly access with their Mother. If their Mother cannot commit to weekly access, then the access should be no less that alternate weeks.

The children have expressed no position on supervision, although they are happy with access with C.L. and like her very much."

On April 10, 2025, Plaintiff filed a statement of proposed disposition.^[FN230]

On April 11, 2025, a pre-trial conference was held wherein the Court was presented with the following, signed by Defendant and counsel, which were filed: (1) Joint Statement of Proposed Facts (hereinafter "Stipulation of Facts");^[FN231] (2) Stipulation as to exhibits of the attorney for the Children admitting all into evidence on consent;^[FN232] (3) Stipulation as to exhibits of Plaintiff, admitting all into evidence on consent except 15, 19, 21 and 30;^[FN233] and (3) Stipulation as to exhibits of Defendant, admitting all into evidence on consent except D, F, G, H, I, J, K, L, M, N, O, P, T, U, V, X, Z, AA, DD, FF, GG, KK, LL, MM, NN, OO, PP, QQ, RR, and SS.^[FN234]

On April 15, 2025, Plaintiff's counsel filed corrected potential exhibits 52 and 53.^[FN235]

On May 6, 2025, Plaintiff filed the following exhibits: 58-59, 80-83.^[FN236]

On May 21, 2025, Defendant filed potential exhibits UU-FFF.^[FN237]

On May 22, 2025, Plaintiff filed potential exhibit 90.^[FN238]

On May 30, 2025, Plaintiff filed a memorandum regarding the Purported Marital Agreement,^[FN239] as did Defendant.^[FN240]

On June 16, 2025, Plaintiff filed a request for extension of the temporary order of protection then set to expire on June 20, 2025,^[FN241] Defendant filed a letter objecting,^[FN242] and a temporary order of protection ^[FN243] was entered [Hyer, J.] extending the temporary order of protection to remain effective through December 31, 2025.

The Court held a fifteen-day trial pertaining to the custody of the Children immediately followed by a hearing pertaining to the validity of the Prenuptial Agreement, during which Defendant was assisted by a Russian Language Court Interpreter, on May 5, 2025-May 9, 2025; May 12, 2025-May 16, 2025; May 19, 2025-May 23, 2025. Transcripts for the trial were filed (collectively "Trial Transcript"),^[FN244] for which an affidavit of service was filed by Plaintiff's counsel confirming same had been served upon Defendant via e-mail.^[FN245] The Trial Transcripts reflect the exhibits moved into evidence and the following witnesses provided testimony: (1) Plaintiff; (2) Defendant; (3) C.W.; (4) J.C.; (5) E.Z.; (6) K.C.; (7) C.M.; (8) M.G.; (9) A.B.; (10) M.F.; (11) A.M.; (12) K.C.; (13) P.L.; (14) W.K.; and (15) N.W.

A. Plaintiff's Notice to Admit

The Appellate Division Second Department has set forth the purpose for which a notice to admit may be utilized at trial:

"The purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial [citations omitted]. It is not intended to cover ultimate conclusions, which can *923 only be made after a full and complete trial [citations omitted]." Moreover, "the purpose of a notice to admit is not to obtain information in lieu of other disclosure devices, such as the taking of depositions before trial" (Tolchin v. Glaser, 47 AD3d 922, [2d Dept 2008] [internal citations omitted).

On August 19, 2024, Plaintiff filed a notice of admit ^[FN246] (hereinafter "Notice to Admit"), and at trial Plaintiff's counsel made an application regarding same:

"MR. LIEBERMAN: I can waive same, Judge, but I do have just a procedural inquiry. We served a Notice to Admit some time ago which has attached to it the exhibits that have been admitted, but there's also a separate Notice to Admit the factual averments that have not been responded to. I have not had the pleasure of trying a full case before you before so I don't know how you address your Notices to Admit. My experience has been we do it before opening when we do the exhibits. So I have it here. It's been uploaded as a NYSCEF Document. There's never been any objection.

THE COURT: What's the NYSCEF Document Number? Would that be 977?

MR. LIEBERMAN: Yes, your Honor.

MR. LIEBERMAN: Is for the Notice to Admit to be received into evidence in toto. If we could have this marked. Again, I'm accustomed to having it marked as a party exhibit.

THE COURT: Thank you so much. I'm going to pull it up and take a look at it. Okay, your application, Mr. Lieberman?^[FN247]

* * *

THE COURT: Thank you. Okay, so this Notice to Admit seeks to offer certain facts and documents at trial, and that's NYSCEF Document Number 977, and it refers to Exhibits 7 through 78 filed as NYSCEF Document Numbers 978 through 1025. Okay, Mr. Lieberman, anything else with your application?

MR. LIEBERMAN: I just move to have the Notice to Admit accepted by the Court as and in fact the factual averments there and the documents there be accepted as evidence in this proceeding.

THE COURT: Ms. Most, I'll turn to you next. Your position?

MS. MOST: I have no objection.

THE COURT: Defendant, do you have a position regarding this application?^[FN248]

* * *

E.G.: I have no objection.

THE COURT: Okay. So that's moved into evidence and then the Notice to Admit statements set forth therein are received. Madam court reporter, please mark that as such.

Whereupon, Plaintiff's Exhibit 86, previously marked for identification, was received in evidence."^[FN249]

Accordingly, on consent the Notice to Admit was admitted into evidence and was considered by this Court when rendering this Decision.

B. Witness Credibility

Determinations of credibility depend in large part on the court's assessments of the [*37]character, temperament, and sincerity of the parties, the trial court's determination should be accorded deference, and its determination should not be disturbed unless it lacks a sound and substantial basis in the record (Sanchez v. Rexhepi, 138 AD3d 869 [2d Dept 2016]). "In matters of this character 'the findings of the nisi prius court must be accorded the greatest respect'" (Eschbach v. Eschbach, 56 NY2d 167 [1982], quoting, Matter of Irene O., 381 N.Y.S.2d 865 [1975]). As custody determinations depend largely upon an assessment of the character and credibility of the parties and witnesses, deference is accorded to the trial court's findings (Gooler v. Gooler, 107 AD3d 712 [2d Dept 2013]).

"The memory, motive, mental capacity, accuracy of observation and statement, truthfulness and other tests of the reliability of witnesses can be passed upon with greater safety by a trial judge who sees and hears the witnesses than by appellate judges who simply read the printed record" (Barnet v. Cannizzaro, 3 AD2d 745 [2d Dept 1957]).

"Where a witness has given testimony that is demonstrably false, we may, in accordance with the maxim falsus in uno falsus in omnibus, choose to discredit or disbelieve other testimony given by that witness (see DiPalma v. State of New York, 90 AD3d 1659 [4th Dept 2011]; Accardi v. City of New York, 121 AD2d 489 [2d Dept 1986]; see generally People v. Becker, 215 NY 126 [1915])." Where a witness has provided testimony before a Court which contains material facts which conflict with material facts set forth by that witness in a sworn affidavit, even if such compromised testimony did not result in bad faith, that witness may not be deemed credible (Medina v. Essex Estates, 72 Misc 3d 1225(A) [Civ. Ct. New York City 2021]).

[1] Plaintiff & Non-Party Witnesses

The Court determines the following to be credible witnesses: Plaintiff, C.W., J.C., E.Z, K.C., C.M., M.G., A.B., M.F., A.M., K.C., P.L., W.K., and N.W. During the entirety of the Trial, these witnesses responded to questions presented to each in a clear and direct manner, during which time each appeared sincere.

[2] Defendant

After having considered the character, temperament, and sincerity of Defendant, the Court determines Defendant to lack credibility and while not discrediting her testimony entirely, has provided that testimony with the appropriate weight. In making this determination, the Court took into consideration Defendant's conduct throughout this litigation, including Defendant's use of Plaintiff's communications between he and his counsel, Defendant's violation of Court Orders, and Defendant's providing conflicting testimony regarding material matters to the Court. For clarity of the record, the Court will review these concerns herein.

- Defendant's Use of Plaintiff's Communications Between He and His Counsel

During this litigation, significant motion practice was engaged in pertaining to allegations by Plaintiff that Defendant had improperly obtained confidential e-mail communications between he and his counsel, and thereafter utilizing information from those communications for her benefit in this litigation. At trial, Plaintiff testified that he never provided Plaintiff with his e-mail password which was not automatically saved into his phone; discovered that there were failed attempts to access his e-mail account from Russia; discovered that there were successful attempts to access his e-mail account from the former marital domicile and rental in Colorado where Defendant had resided; and, Defendant acknowledged accessing his e-mail account.^[FN250]

While the motion practice dealt in part with the legality of such conduct, the Court turns [*38]to the ethics of Defendant's actions. Tellingly, Defendant confirms that she accessed Plaintiff's e-mail account, forwarded approximately seven e-mails between he and his counsel to her then attorney, that her then attorney was upset by her conduct and she likely continued to engage in this conduct even after being directed not to by her then legal counsel. Irrespective of if Defendant's conduct was legal, this Court finds that Defendant's conduct was unethical, reflecting poorly on her character.

In making this determination, the Court finds that any reasonably prudent person would have known or should have known, that the communications between a litigant and their counsel would be intended to be confidential and not accessible to the adversary. Nonetheless, Defendant sought to obtain a litigation advantage by accessing these communications and forwarding them to her then counsel, with the intent that they would be used for her benefit regardless of their intended confidential nature. It is further troubling that Defendant has acknowledged, even after her then counsel directed her to cease such conduct, that her attorney "might have had to remind me again," conceding that she may have continued such unethical conduct.

- Defendant's Violation of Court Orders

[a] Unauthorized Travel To Connecticut

On January 6, 2021, Custody Consent Order 4 was entered which included a clear understanding between the parties, limiting Defendant's travel with the Children as set forth within the Yorktown Limitation provision, "At no time shall the Defendant remove the children from the property located at [Redacted], Yorktown Heights, New York, however she shall be permitted to take the children onto the enjoining State Park and County trail so long as she maintains social distancing, PPE gear and the nanny is present." In clear violation of this agreement, which was so-ordered by the Court, Defendant acknowledges that she traveled with the Children to a park in the State of Connecticut well beyond the limitations set forth in Custody Consent Order 4.

Beyond Defendant's violation of the Court Order, it is troubling that Defendant confirmed in a sworn submission to this Court that that she intended to violate the Court Order noting, "I simply did not really believe that J.F. would care to complain about it."^[FN251] However, at trial, Defendant provided testimony which conflicted with her prior sworn statements pertaining to her decision to take the Children to the park in Connecticut, asserting that she believed it was ok to take the Children to the park as she didn't understand the word "adjacent," despite the fact that this word is not within the subject order,^[FN252] and the following day of trial testified she did not understand the word "adjoining."^[FN253]

Moreover, the Court takes note that in one submission to the Court on this issue, Defendant refers to Plaintiff's motion to address her violation of the Court Order as the "height of overkill" in an apparent disregard for the severity of her actions, and attempts to justify her [*39]conduct by asserting that she was "forced to sign" Custody Consent Order 4, despite her being represented by counsel at the time the document was signed.

[b] Interference with Supervised Access

Plaintiff asserted in Motion Sequence No. 11 that Defendant had violated the Court Order dated July 9, 2021, being the conformed order to show cause pertaining to Motion Sequence No. 9, which included that it was, "ORDERED, that pending further order of the Court and commencing immediately, access schedule as to Defendant is limited access with the children in Colorado will be alternating weekend access to be supervised at all times "^[FN254] In support of that application, Plaintiff filed an affidavit of K.H., who asserted that during Defendant's access time with the Children that K.H. was tasked to supervised Defendant had taken the Children from their hotel without her to a restaurant and after she had followed them to the restaurant engaged in further conduct to frustrate the supervision. In opposition to Motion Sequence No. 11, Defendant submitted a sworn statement wherein she acknowledged that the supervision of K.H upset her, that she asked K.H. not to sit with she and the Children, and asserted that, "While I understand that the current court orders prohibit me from being alone with my children, there are no orders that say the supervisor must be within 5 feet of me at all times." At trial, Defendant confirmed that she requested K.H. sit at another table seeking an "intimate atmosphere" with the Children which is exactly what supervised access is intended to prohibit.^[FN255]

Despite the clear directive that Defendant was to have only supervised access, Defendant intentionally sought to evade such supervision by preventing K.H. to be within earshot of Defendant and the Children frustrating the intent of the subject order being to permit the supervisor not only to monitor to interactions between Defendant and the Children, but also to monitor the communications between them.

[c] Statements Regarding Family Friend

Plaintiff asserted in Motion Sequence No. 28 that Defendant violated the May 18, 2023 Order which directed, "The Parties shall, while in the presence of the children, refrain from disparaging or denigrating the other party, the other party's family, friends, employer, employees, and/or any nanny who is caring for or supervising the Parties' children for any reason whatsoever, including, but not limited to, race, creed, color, sexual preference, gender, national [*40]origin, heritage, and/or employment." In support of his application, Plaintiff filed an affidavit wherein he claims that upon arriving home on June 6, 2023, while Defendant was engaged in access time with the Children at his home, Defendant made statements about his friend A.M.'s wife that could be characterized racist. Plaintiff stated, "Defendant then doubled down on her behavior by telling J. that A.M.'s wife is named "Thomas" and that she is from Thailand, where the women are actually men."

During the trial Defendant provided testimony regarding this incident asserting that she made these statements to Plaintiff and not the Children:

"Q And on June 6, 2023, you were at J.F's home in Somers known as Apple Brook Farm to exercise visitation, correct?

A Yes.

* * *

Q And during that incident, you stated to J. that A.M.'s wife was named Thomas, correct?

A Yes.

Q And that Thomas was from Thailand, correct?

A Yes.

Q And you told him that's where women are actually men, correct?

A I never told him this. I told J.F. this."^[FN256]

However, Plaintiff credibly testified that not only were these comments made by Defendant, but that J. was present and left confused by what was said:

"Q And tell us what the exchange was there?

A It was J. expressing himself and E.G. speaking over him a lot about A.M. and her concerns about A.M..

Q Can you please tell us what was actually said?

A I can only recall snippets of what was said, but one of the things that I know was said was that she explained that when J. expressed that Uncle A.M. didn't even live in New York, that he was in Colorado with his wife, E.G. said you mean Thomas and he said what and she goes Thomas, his man wife, Thomas is a man and all people from Thailand — all women from Thailand are men and she quickly moved over it, but J. didn't have time —

Q J. said that or she said that?

A She said that. J. was perplexed and didn't have time to retort."^[FN257]

Tellingly, Defendant's conduct during the June 2023 incident appears to be part of a larger pattern of conduct as A.M. credibly testified as to another incident in August of 2021 when Defendant had made similar statements regarding his wife, who he testified has heritage including Taiwanese, in the presence of the Children:

"Q Do you remember anything that E.G. said that you found to be offensive, whether it was said to you or to anybody else?

A I do, yes.

Q Can you please tell the Court?

A E.G. leaned over to R., the nanny, and quite loudly said, You know she's a man, right?

* * *

Q When E.G. made this statement to R., you could hear?

A I could.

Q Were the children still present at this time?

A They were.

Q Do you know if your wife heard the statement?

A She did. She told me she did.

Q Do you have an understanding as to who E.G. was talking about to R.?

A I do.

Q Please tell us.

A She was referring to my wife. She made a further comment.

Q She was referring to your wife, that your wife was a man and not a female; is that correct?

A Yes.

Q Did you react at all?

A No. She did go on to make another comment shortly afterwards and I didn't react.

Q Similar comment?

A She went on to say that she's from Thailand and you know they all have dicks.

MS. MOST: Would you say that again?

A She went on to say, you know she's from — again, to R., she leaned into her and she said, You know she's from Thailand where they all have dicks.

* * *

Q A.M., after the comment that you referenced E.G. made at that dinner, did you have any reaction to it?

A No, I remained tight-lipped.

Q Why?

A Because the children were present and I didn't want to bring attention to something that I thought was wholly inappropriate."^[FN258]

At trial, Plaintiff testified that he overhead Defendant referring to A.M.'s wife as a Thai boy-a lady boy and when he approached her about it "she laughs, I say why are you doing this and I say, you know it's not true and she breaks out laughing."^[FN259] This testimony was corroborated by Defendant who confirmed that she has joked about A.M.'s wife being a man and while not conceding that she referred to his wife as man to the Children during the June 2023 incident, testified that at some point she did make these statements to the Children:

"Q And that you have also told the children that A.M.'s wife was actually a man?

A That was a joke.

Q You made a joke about someone's actual gender to your children?

A This person doesn't look like a woman. That is factually. I don't know, maybe it's a he, maybe it's a she, I don't know. I personally don't care who is what. My goal is not to talk [*41]badly about anyone. I just want the truth to be present in order to raise the children and not lie to them. Lying is the worst."^[FN260]

Defendant's statements call into question both her ability to engage in sound judgment and her veracity, and must be taken into consideration when determining her credibility.

- Defendant's Providing Conflicting Testimony

[a] Testimony Pertaining to Children's Birth Certificates

In Motion Sequence No. 15, Plaintiff requested that the Court enjoin Defendant from obtaining for the Children Russian passports and citizenship, or to remove the Children from this jurisdiction. This request was, in part, due to concerns that during a trip to Russia in 2019, Defendant was a flight risk. Plaintiff's concerns included an allegation that Defendant had brought the Children's birth certificates. In her sworn submission in response to this application, Defendant indicated that while she had brought the Children's birth certificates to Russia, that this was "inadvertent" as the documents were in a folder with her documents and that she "did not notice until I was in Russia."

However, Defendant's testimony at trial directly contradicts this prior sworn statement as she testified that she intentionally brought these documents with her for the purpose of assisting her sister in acquiring an apartment in Russia:

"Q Thank you. Now, you traveled to Russia in 2019, right?

A In 2019? Yes.^[FN261]

* * *

Q But you took their birth certificates, didn't you; yes, no or I don't know?

A I picked them up, yes, including every single document that concerns my life for any eventuality.

Q So is it — I'm sorry, go ahead.

A Every document.

Q Every document that concerns your life, you took to Russia in 2019, right, that's your testimony?

A Yes. At the time, I picked them up because my sister was in the process of putting together the legal documents to acquire an apartment back there and it was very helpful to have taken all the documents with me. That way, we go to the Notary Public and then do the document.

Q You took your children's birth certificates to Russia to help your sister rent an apartment; is that your actual testimony here?

A To rent an apartment, no, but then to do legal documents for an apartment in Russia. Back in Russia, periodically, they ask for documents and, therefore, I picked up everything for any eventuality.^[FN262]

* * *

Q So I'm going to ask you again. You took your children's birth certificates to Russia to assist your sister in renting an apartment, is that your testimony, yes or no?

A Not to rent an apartment, but to purchase.

Q Purchase what?

A An apartment, my sister was purchasing an apartment.

Q So you needed your toddler's and your infant's passport to assist your sister in buying an apartment in Russia; that's your testimony?

A In Russia, the practice is that when you are an individual, sometimes, they say, well, including, you have to include members of the family and, in fact, there was a copy of J.F. passport and that, in fact, it was not only that documents or passports for my children, but these things included at that point for J.F. because he's a part of my family. I traveled as the face of the family because I was not alone. In fact, I was representing the family, the entire family.

Q So, again, is it your testimony that your children's birth certificates were used to assist your sister in buying an apartment, yes or no?

MR. LIEBERMAN: It's the third time, Judge. I would ask for a yes or no.

A Yes, yes."^[FN263]

Later in the trial, when confronted regarding the conflicts between her prior sworn affidavits and her trial testimony, as to the reason she brought the Children's birth certificates with her to Russia, Defendant provided the following testimony indicating that she knew the statements made to the Court in her sworn submissions at that time were false, but that she thought her untrue statements would advance her then objectives:

"Q And you read it before you signed it, right?

A Yes.

Q And when you signed it, you knew you were swearing to the truth of it, right?

A Yes, yes. I was prepared to say anything at the time in order to get my children back."^[FN264]

Defendant's additional testimony at trial then confirmed that she intentionally omitted the true reason for bringing the Children's birth certificates to Russia:

"Q Now, you also provided a sworn affidavit to the Court in December of 2021 where you addressed this issue, correct?

A Yes.

Q And in your affidavit, you nowhere indicated that you took the birth certificates because your sister needed them to buy an apartment, correct?

A I did not see the need for this.

Q So the answer is it was not in your affidavit, correct?

A No."^[FN265]

[b] Testimony As To Sexual Relationships With Other Men

Defendant filed a sworn affidavit in opposition to Motion Sequence No. 2, and in support [*42]of Motion Sequence No. 3, wherein she asserts, "First, I do not have sexual relationship with multiple men, as the Plaintiff wants others to think." However, at trial, Defendant's testimony confirms that she had engaged in multiple extramarital affairs with different men. Defendant confirmed that she was involved in a sexual relationship with D.T. from 2018 through 2019.^[FN266] Notably, then live-in nanny K.C. testified that Defendant would become angry when Plaintiff asked her about D.T. and noted, "She would come home and she said, J.F. is so obsessed with her, he's crazy, he has all these things going on in his head and making up stories and she's just going to divorce him and put him on child support, that's always her response."^[FN267]

She then confirmed that she had a sexual relationship with D.A. in 2020:

"Q You are in a romantic relationship with D.A.; isn't that true?

A Romantic, romantic relationship changed into a friendship relationship.

Q Well, in 2020, it was a romantic relationship, right?

A Yes, it was, yes.

Q And in the spring of 2020, you were having sexual relations with D.A., correct?

A There were."^[FN268]

"Q Can you go to Paragraph 43. Isn't it true that you swore to the Court the following, "The Plaintiff claims that the reason I delegated child care to him and our nanny was to pursue 'sexual interlude' with other men. This is untrue. First, I do not have sexual relationship with multiple men as the Plaintiff wants others to think." Did you swear to that in August of 2020?

A It's a very long question. I lost the meaning of this question.

THE COURT: Madam court reporter, can you read the last question to the witness. (The record was read as requested.)

A Yes. That I didn't have multiple men, yes, I confirmed that.

Q In Paragraph 46, isn't it true that you stated as follows, "Plaintiff's allegations in Paragraph 7 that I was caught having sex with a seventy-year old man in the Rye Courtyard by Marriott hotel is also a lie"? Can I hear what she said?

A Not in the courtyard. The Courtyard is the name of the hotel.

Q So you were having sex not in the Courtyard, but in the hotel?

A This — I confirmed that I ate with him at this hotel. There was no sex back then. We weren't engaging in sex then. I already spoke to this matter.

Q You did and didn't you admit that you were having sexual relations with D.A. during this period of time; yes or no or I don't know?

A No."^[FN269]

Moreover, as noted above, at trial Plaintiff credibly testified that Defendant had acknowledged engaging in sexual activity with men during her 2019 trip to Russia,^[FN270] and in April of 2018 locating messages in the family computer that Defendant was engaged in an affair with a local restaurant owner.^[FN271] Even after the disclosure of multiple affairs during the parties' marriage, at trial Defendant continued to assert that she never cheated on Plaintiff.^[FN272] This directly calls into question Defendant's veracity and credibility as a witness before this Court as Defendant again has provided conflicting statements to this Court.

C. Custody of the Children

[1] Legal and Physical Custody of the Children

" 'The court's paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child' " (Gooler v. Gooler, 107 AD3d 712 [2d Dept 2013], quoting Julie v. Wills, 73 AD3d 777 [2d Dept 2010]). In making a determination as to child custody, the totality of the circumstances, includes, but is not limited to, "(1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent's relative fitness, including his or her ability to guide the child, provide for the child's overall well-being, and foster the child's relationship with the noncustodial parent; and (5) the child's desires" (Supangkat v. Torres, 101 AD3d 889 [2d Dept 2012]; see also, Barbato v. Barbato, 264 AD2d 792 [2d Dept 1999)] ["it is axiomatic that custody determinations are to be made upon consideration of all relevant circumstances to reach disposition that promotes best interests of the child.").

- Wishes of the Child

When considering the child's desires the Court of Appeals has noted, "While not determinative, the child's expressed preference is some indication of what is in the child's best interests. Of course, in weighing this factor, the court must consider the age and maturity of the child and the potential for influence having been exerted on the child" (Eschbach v. Eschbach, 56 NY2d 167 [1982]).

In ascertaining the position of the child, the Court may appoint an attorney for the child whose role is to be an advocate for and represent the subject child (Luizzi v. Collins, 60 AD3d 1062 [2d Dept 2009]). Such an appointment is in the discretion of the Court and while not mandatory is the strongly preferred practice (Keen v. Stephens, 114 AD3d 1029 [3d Dept 2014]). Upon appointment, the attorney for the child must have sole loyalty to the child and may only substitute their judgment for that of the child's in two limited situations after informing the Court of the child's wishes and the contrary position taken by the attorney (see, 22 NYCRR § 7.2(d);^[FN273] [*43]see also; Alfredo J.T. v. Jodi D., 120 AD3d 1138 [1st Dept 2014]).

At trial, Defendant voiced her objection to the conduct of Counsel Most in her appointment asserting, "Her role is to determine who the children should be with in the interest of the children."^[FN274] However, as noted hereinabove, this is not the role of the attorney for the Children, but that of the Court, which Counsel Most addressed in her closing statement wherein she confirmed that she did not substitute her judgment for the Children:

"I've not used my discretion in this matter, and I was a little surprised when E.G. said that my role is to determine who the children should be with. This Court knows very well that is not my role. E.G. has complained that I haven't done an observation with her. She said it today and she said to me in the past. I don't do observations of parents with their children. I actually would then be a witness, which I can't be. I represent two children as their attorney."^[FN275]

Counsel Most also noted the position of the Children with respect to physical custody remaining with Plaintiff subject to an access schedule with Defendant:

"From almost the beginning of this matter the boys' stated position has always been that they wanted to live with their father. They want that to continue. And I'm sure this Court will have the opportunity, when they do an in-camera with the boys, a Lincoln Hearing, to hear from the boys directly. J.F. has created a stable and loving environment in which the boys are flourishing. They are safe. They are happy. They are content. And this is really a best interest issue. The boys' desires are in — fit in with their best interests and their safety.^[FN276]

* * *

These children want to see their mother. They want to see her. They ask for once a week. How sad is that? They're not asking for three days a week, two days a week. They'd like one day a week, one day a week to see their mother."^[FN277]

While Counsel Most indicated that the Children took no position with respect to if access time with Defendant should be supervised, she did note, "They don't mind the supervision," and continued, "They actually like C.L. a lot, and so they're happy to be with her."^[FN278] With respect to the preference of the Children regarding when the access time would take place, Counsel Most stated, "They felt that midweek was too difficult because they don't get home from school — they have so many after-school programs — they don't get home until 4:15, 5 every day, so they would like Sundays."^[FN279] In asserting the wishes of the Children regarding holiday access with the parties, which would supersede the routine weekly access, Counsel Most noted that holidays be alternated between the parties with Russian holidays being spent with Defendant.^[FN280] Finally, Counsel Most advocated for summer access with the Defendant.^[FN281]

The Court may also order a Lincoln Hearing, to be held in-camera outside the presence of the parents and their attorneys, to obtain directly from the child their desires and attitudes which are held in the record with transcripts being prepared under seal (Kosovsky v. Zahl, 52 AD3d 305 [1st Dept 2008]; see also, Lincoln v. Lincoln, 24 NY2d 270 [1969]; CPLR § 4019). Similar to the appointment of an attorney for the child, the Court has discretion in the determination of whether to conduct a Lincoln Hearing in a child custody proceeding, but it is the preferred method for ascertaining the child's wishes (Samantha WW v. Malek XX, 217 AD3d 1081 [3d Dept 2023]).

At the conclusion of the trial, the Court scheduled a Lincoln Hearing to be held on May 27, 2025,^[FN282] at which time the Court advised the parties of their right to submit a list of questions or subject areas for the Court to consider addressing with the Children during the hearing:

"THE COURT: All right. Now, you folks won't be able to be here. I just want you to understand what it looks like. I'm here with the court reporter and I'll be here with the attorney for the child, and each of the kids will come in independently. I'll ask them a series of questions on issues and topics that I feel are appropriate. I may have already started to make that list. While the parents and their lawyers can't be here, I want them to be a part of the process because it is in fact your children. So what I'd like to do is give you the opportunity, through counsel, or with defendant you can do it on your own, upload a list of questions or subject areas that you'd like me to consider addressing when the children are here, and if there are specific questions or specific topics for specific children, please indicate that on the letter. That's to be filed on NYSCEF, copied to opposing counsel and self-represented litigants, all right? So, as this is May 27th, I'm going to ask that the proposed questions be filed by the end of business day tomorrow so that I can review them over the weekend."^[FN283]

On May 27, 2025, Defendant filed a submission containing a list of questions proposed for the Court's use at the Lincoln Hearing,^[FN284] and the Lincoln Hearing was held with both Children participating individually.

- Evaluation of Defendant With Respect to Ability To Promote Stability; Available Home Environment; Past Performance; Relative Fitness, Including Ability to Guide Children, Provide for Children's Overall Well-Being & Foster Children's Relationship With Noncustodial Parent.

When evaluating Defendant's ability to promote stability, available home environment, past performance, relative fitness, including ability to guide Children, provide for Children's overall well-being & foster Children's relationship with noncustodial parent, the Court has taken into consideration the evidence and testimony presented at trial. Further, the Court has taken into consideration Defendant's conduct noted above in unethically accessing Plaintiff's e-mail account and seeking to utilize confidential communications to advance her litigation objectives in this action, violating numerous Court Orders involving custody of the Children, and making conflicting sworn statements to this Court regarding material facts pertaining to the custody of the Children. Defendant's conduct reflects poor judgment, decision-making and character. Unfortunately, Defendant's poor judgment has not been limited to these instances, with other examples offered to this Court prior to and during this litigation, with each having a significant impact on Defendant's relative fitness which the Court will review individually in turn.

The Court has been presented with evidence and testimony of several incidents wherein Defendant engaged in volatile behavior in the presence of the Children.

[a] June 6, 2023 Incident

On June 6, 2023, Plaintiff testified that while in earshot of at least one of the Children Defendant verbally attached K.C. and struck him:

"A ...I came back to be with J. and all of a sudden, I heard nasty things coming from the kitchen. When I walked in, E.G. was leaning over the counter, K.C. was there and R. and she was saying — explaining to R. —

Q Please let us know the words that were being used as opposed to giving us a summary. What were the words that were coming from your wife's mouth?

A That K.C. was a horrible person, a thief. She stole from her, that's why she hates her and she's a spy and just really derogatory things.

Q Any profanity?

A I don't recall.

Q Where were the children while she was going off on her?

A S. was watching TV in the casual living room and J. was in the formal living room in earshot.

Q Did she calm down?

A No.

Q What did you do?

A I came alongside her and I said calm down, calm down and she would not calm down and I said this meeting is terminated, I believed it to be my right to terminate a meeting, even though I never had and I was exercising my right.

Q What did she next do?

A I —

Q What did she next do?

A She turned and she took a wide stance with her feet and with both hands struck me on the chest, like pushing me backwards."^[FN285]

At trial, K.C. corroborated this testimony and that both Children were present with J. being left confused as to his mother's conduct:

"Then in the second living room, we always call it the meeting room, so J.F. took J. into the meeting room and they were talking — I don't know what they were talking about because I wasn't in the meeting room, then both of them exit and then J.F. asked E.G. to step into the meeting room and all three of them went into the meeting room. So when they exit the meeting room, I was in the kitchen and then E.G. just started hurling words at me, talking about how much she hate me and she just started going ballistic. J.F. was asking her to calm down and not do this in front of the children and she just would not calm down. Then J.F. said E.G., if you're not going to calm down, I'm going to ask you to leave and she just kept going, talking about her friend died, she committed suicide and she was going crazy and then J.F. said, E.G., you need to leave if this is how you're going to behave and then she pushed J.F. and then J.F. was like, E.G., you need to leave, so then she went out through the kitchen door and she was outside and she was going crazy out there. I didn't go outside, like, J. was wondering why she was acting that way, so J.F. went outside, I took J. and I took S. and I said to them, because I didn't want them to witness what was happening outside, so I took them away so they wouldn't see what was going on outside. He was asking me, he doesn't know what's wrong with his mom and I said she's just having a rough day today, that's what I said to him and then I took them to just distract them from what was going on until she left the property."^[FN286]

While this testimony confirms that at least one of the Children was able to hear Defendant's verbal assault of K.C., it is without question that both were affected by this incident, as Defendant contacted law enforcement following her departure causing a New York State Trooper to conduct a welfare check by appearing in the bedroom of the Children who were then preparing for bed:

"Q And did there come a time after that that the police arrived?

A Yes. Upon her departure, the police arrived about 45 minutes later, four state troopers at my door.

Q And when the four state troopers arrived at your house, where were your two little boys?

A They were in their pajamas with the nanny upstairs climbing into their bed and the lady state trooper had to go up for a safety check because she was told the children were in danger.

Q So your children were compelled to meet a police officer that night?

A Yes.

Q Had a police officer ever been in their bedroom before?

A Never."^[FN287]

[b] Colorado Summer of 2020 Incidents

While traveling to Colorado in the summer of 2020, K.C. testified that Defendant began calling her names in the presence of the Children who were woken up by Defendant slamming a door after which J. approached her to ask why she and Defendant were arguing:

"A Then when J.F. had filed for divorce, when she saw me after that visit, J.F. told me that she wrote to the Court that I — I'm sleeping with him and I came there dressing sexy and I was in my workout outfit and she said J.F. and I were having an affair.

Q Was that the first you had ever heard that accusation?

A Yes.

Q And was that true?

A No.

Q Did E.G. ever say it directly to you?

A Yes. The morning when the visit was supposed to end, like, I woke up and I was packing up the stuff for the boys. I was loading them into the red Jeep and I was also watching church and then — the boys were sleeping. She exit her bedroom, she was making coffee and then her coming towards — hallelujah bullshit because I was watching church and they were saying hallelujah while I was watching church and then she proceeded to go back in her room and then she came out, I was still packing up stuff, never said anything to her and then she just started calling me names. Then I stepped outside and I called J.F. and I said, your wife is going crazy because I'm just trying to pack up the stuff to end the visit and she's going off on me and then he said, K.C., you have always been respectful to E.G., but you should not allow E.G. to be disrespectful to you and so if she says something to you that you don't like, you should respond and so, I went back into the house. I'm packing up all the sheets, packing up the pillows and everything that I had brought there and then she went on to tell me how I'm J.F. spy and I'm sleeping with J.F. and I dress all sexy, trying to seduce J.F. I said to her, that we're not cut from the same cloth because J.F. and I only have a professional relationship. I have never looked at her husband wanting a relationship from him and then when I said to her that we're not cut from the same cloth because J.F. picked her up in a whorehouse, she did not like that comment. She ran into the bedroom. She slammed the door and then that woke up the boys because J. came out and said, K.C., why are you arguing with my mommy and I said J., we're not arguing and she didn't say anything else during that period of time."^[FN288]

K.C. further testified at trial that following Defendant verbally attacking her, later that day Defendant engaged in similar behavior towards A.M. who had arrived to assist Defendant:

"I packed up all the things. She made the boys breakfast. They had their breakfast. I stayed outside while they were inside eating and then when it was time to leave, she said her goodbyes to the boys and I put them in the vehicle. I was waiting because we were so [*44]— the gate was so far away, so she couldn't drag her luggage to the gate, so she was going to get a ride, but I couldn't bring her because my vehicle was full, so A.M. was coming to give her a ride to the gate where her friends were going to pick her up because the gate was broken and nobody could get in or out that morning. So we were — the persons were coming to fix the gate, so we could all leave and then she proceeded to her cursing expletives and she was cursing out A.M., talking about A.M. and J.F. are lovers and they're gay and they're sleeping together and all of that stuff.

* * *

Q Where were the children when E.G. was hurling the expletives, as you said, and made the accusation about A.M. and J.F.?

A The children were in the vehicle. I had them in the vehicle because we were down at the gate and A.M. drove her down to the gate. We couldn't exit because the gate wasn't working and they were fixing it and so, I had them in the vehicle. I had stepped out of the vehicle, trying to see how long it was going to take for them to fix the gate, when A.M. had brought her down and her friends were outside the gate, so when she got out of the vehicle, that's when she started cursing at A.M. and telling him, he's J.'s lover and his head is up J.'s ass and they're having sex together and that's why he is the way he is, but the kids didn't hear all of that because they were in the vehicle."^[FN289]

At trial, A.M. corroborated this testimony as to the events which transpired that day, providing the following testimony as to Defendant's conduct and statements following her leaving his vehicle, after having completed a summer vacation with the Children:

"Q When you arrived at the gate, did she exit the vehicle?

A She did.

Q What, if anything, did you see her do upon her exiting the vehicle?

A She slammed the door shut and she went and collected the first of her bags. She then took that through the opening in the gate, put it down, raised her hands up in the air like this and screamed at the top of her voice, freedom.

Q What happened next?

A She then returned to the rear of the truck and she made what looked like a closed fist and said, Stick this up your ass, just like J.F.'s dick.

Q In sum and substance, that's what she said?

A That's exactly what I recall her saying, yes."^[FN290]

The Court has been presented with evidence and testimony of several incidents wherein Defendant made inappropriate statements in the presence of the Children, in addition to those pertaining to the wife of A.M.

[a] Statements Regarding Defendant's Sexual Activity

At trial, Plaintiff credibly testified that Defendant had engaged in discussion with a friend in the former marital domicile, regarding her sexual activities during her travels, in earshot of the Children:

"Q Now, going back to New Year's day, 2020 — strike that. K.C. also mentioned the time that the family was in Ridgway in August of 2019 when your wife had returned from a trip to Russia, do you remember that event?

A Yes.

Q And did there come a time during that trip that your wife was home with one of her girlfriends named D.?

A Yes.

Q And did there come a time that you came home that day and they were in the house talking?

A Yes.

Q And did you hear any of their conversation?

A I did. I overheard part of their conversation. I wasn't there for the whole thing.

Q And what did you hear?

A I heard that E.G. was having a lot of fun in Russia.

Q What did she explain that fun was?

A That she felt free and she enjoyed going to clubs and that in Russia, Russian guys are much different. They'll just tap you on the shoulder at a club and they'll say, let's go and then they have rooms where you just go and have sex and she participated in the same.

Q And when you got in the house, where was your wife and her girlfriend sitting having this conversation?

A In the common living room/kitchen.

Q If the door to the boys' bedroom is open and people are speaking at normal voice tones, can you hear the conversation from that area into the boys' bedroom?

A The entire first floor, you can hear everything from everywhere. The doors are open.

Q And where were the boys and K.C. situated when your wife was telling her friend about having sex at clubs in Russia in 2019?

A I believe she was in the kids' room.

Q Before you spoke to E.G. that day, did you have occasion to speak to K.C.?

A No.

Q You spoke to E.G. first?

A Yes.

Q So when you heard this, what, if anything, did you do?

A I confronted her about it. We went outside and talked about it.

Q Did she admit it?

A Yes, she did.

Q Did she show any contrition?

A No. She was — she had like an indifference, a coldness about her."^[FN292]

Plaintiff's testimony regarding Defendant's discussion with her friend regarding the sexual activities she engaged in during her travel, was corroborated during the trial by the testimony of K.C. who stated:

"Q Were you present with E.G. and her friend D. in Colorado at the home?

A Yes.

Q Do you recall where they were situated in the home at that time?

A The first day when D. came over to the house when she returned from Colorado, they were sitting in the living room and she was discussing her trip with her in Russia.

Q Where were you during this conversation?

A I was in the kids' bedroom. The door was open, but it's very close, like here's the bedroom and then the path and then the living room, so you could hear when they are talking.

Q Were they speaking in English?

A Yes, they were.

Q Do you know where the children were at this time?

A The children and I were in the bedroom playing.

Q What, if anything, do you recall E.G. saying to her friend at this time?

A She was telling her about all the places she went in St. Petersburg, in Russia, because that's where she went the second time she went, even though she said she was going for her mom's surgery. She said — she was telling her how she went out every night to the club and how she would drink and get drunk and she would have sex with random men. That's the conversation that I overheard her telling D..

* * *

Q Do you know where J.F. was during this conversation that you overheard?

A He went to work at that point in time. He was out of the house.

Q Did there come a time when J.F. arrived home that day?

A Yes, he did.

Q Was E.G. still speaking with her friend when J.F. arrived home?

A Yes.

Q What happened after J.F. arrived home?

A He came in and I believe he overheard a portion of the conversation and then he asked to speak with her privately and they went into their bedroom and I don't know what happened, but they were discussing whatever he overheard with her in there because when they exited the bedroom, she was not happy.

Q Did you speak to J.F. that day after?

A He asked me how the children were doing, but not about the conversation because I believe he probably was also upset from what he heard, so he asked me how the kids were and then he took the kids and they went to Tiny Town."^[FN293]

[b] Statements Made to Children In FaceTime Calls

At trial, Plaintiff testified that Defendant made inappropriate statements to the Children during FaceTime calls during the pendency of this action:

"Q We were starting to talk about the Children's Bill of Rights. Was your wife able to enjoy telephone access with the children for a period of time during this case?

A Yes.

Q Did that come to an end?

A Yes, it did.

Q When and how?

A When we filed an Order of Protection.

Q In this Court?

A In this Court, yes.

Q And prior to that, were the conversations to be monitored?

A Yes.

Q And who monitored the conversations?

A Myself or my nannies.

Q And did you hear anything that was problematic for you in the conversations between the Defendant and the children leading up to the month of June 2023?

A Constantly.

Q Tell us.

A The mother would call and the — it was a repeated theme, it was either an interrogation of the children, of my whereabouts and the time that they had spent with me or not spent with me. It was a story read to them where the mother had no book and the stories all had the same theme. It was about an animal, either in the sea or on land, that the animal's children had gotten taken away from them and the mother searched frantically for the two baby animals and encountered all sorts of monsters working against her while she searched for her children that she loved. Other things were said about this judicial process and the court case which they knew nothing about and a termination of the calls had to be ensued each and every time to protect the children."^[FN294]

[c] Statements Regarding Sexuality of Plaintiff

At trial, Defendant testified that she has referred to Plaintiff as being gay and referring to A.M. as his lover,^[FN295] and that she told people that Plaintiff and A.M. were a couple.^[FN296] While Plaintiff denied ever having a romantic relationship with A.M.,^[FN297] Plaintiff testified that Defendant has made comments to the Children regarding his perceived sexuality and relationship with A.M., resulting in confusion of the Children:

"A Yes. The comments were repeated to the boys in our presence as a family. There was a large period of time that E.G visits, especially in Colorado, were accompanied by myself. And E.G. and I got along fine and in a pleasant matter, but it's as if she couldn't help herself to poke attention to this running theme that A.M. and I were lovers. And so it could be a myriad of instances that would provoke a comment from her regarding our relationship. Like, we were in a craft store once with the kids, and the kids liked this wooden frame that you can paint and it was two cowboys with a heart in the middle sort of holding hands. And she said, oh, kids this is your dad and uncle A.M. And, so instances like that, I can't recount every one of them, but she definitely made it clear. When I would confront her about it and say, what are you doing? Like stop it. And she [*45]would just laugh.

Q Did these comments, if you know, upset the children?

A I don't think that they were aware to the extent that they were upset, but I do think that it confused them. I do know that on several occasions J. has come to me, especially when I am meeting new people, if I am like, for instance, going in to the gate where my villa is in Jamaica, there was some — there was a security guard and some women there, and I said hello and J. immediately leans out the window and says, hey, he is married, you know. And the ladies are laughing and then he tells the security guard that it's okay, it's okay if a man is with another man, that's okay, cause men are with men too. And on multiple occasions, and even to this date, he brings that up.

* * *

A Yeah, and it's always random. It comes up at the strangest time, unsolicited, that they say — they say something. In fact, we just — I just — when A.M. was here, gone out to dinner with the kids cause he hadn't seen them, he flew in to be at court, and he hasn't seen the kids in quite some time, and we were eating dinner at the Muskoot, and S. said: Are you guys going to start kissing each other? And A.M., we looked at each other like we are not touching that one. It was like don't be silly. We just changed the subject and redirected them. That's coming from somewhere, and that's the way it is.

Q Did E.G. know that when she made those comments to the children it upset them?

A I can't speak to what she knows, but it appears to me that she is completely clueless as to the adverse effects of misrepresenting something so important to the children might be."^[FN298]

This Court has been presented with evidence and testimony of several incidents wherein Defendant in inappropriate conduct involving the Children.

[a] Inappropriate E-Mails Sent to Rippowam School

Plaintiff asserted in Motion Sequence No. 12 that Defendant engaged in inappropriate communications with Rippowam, the school that J. was then attending, as such conduct threated his continued enrollment. Plaintiff claimed that Defendant's communications included threats of police intervention and efforts to negatively impact the school's accreditation, as well as offers akin to bribes to secure her objectives with the school.^[FN299] In response to this application, Defendant acknowledged having made these communications indicating that she was "embarrassed" and that she "regretted it", but then in the same submission sought to rationalize that very behavior by asserting, "What mother would not be upset if their child started a new school and that school refused to provide that parent with any information or even speak to the mother?"

At trial, Defendant confirmed that she threatened police intervention if the school did not [*46]respond to her request and it would impact the school's accreditation,^[FN300] and that she offered funds to the school from a Russian family as she believed it would accomplish her objective of gaining the school's attention.^[FN301] While she expressed regret for these communications in her sworn affidavit submitted to this Court, at trial she provided conflicting testimony as her statements were unequivocal that she had no such remorse for sending these e-mails and again asserted that she had no other option:

"Q... Do you have any regrets about having sent those e-mails to the school, yes or no?

A No.^[FN302]

* * *

A I'd like to apologize to the entire court that I contacted C.M. in the Rippowam school, but I had no other option because no one was responding to my requests, that someone should return my call to include me in the parent list to inform me of some type of schedule, activities and events."^[FN303]

[b] Spending Night With Stranger and Child In Hotel Room

There is no question of fact, that prior to the commencement of this action, on January 14, 2020, while on a trip to Colorado, Defendant took J. to a hotel room for the night with an adult male.^[FN304] In her initial submission in opposition to Motion Sequence No. 2 and in support of Motion Sequence No. 3, Defendant asserted, "On January 14, after a nine-hour day of skiing with J. I met an old friend for dinner at a restaurant near his hotel, about a 45-minute drive from where I stayed," and then continued, "We returned to our hotel early morning."^[FN305] However, at trial, Defendant provided conflicting testimony indicating that she did not meet the man at the restaurant, but that she met him while skiing:

"Q And did you meet C. at the restaurant?

A No, on the hill where people ski.

Q So you met him skiing that day?

A Da —

Q You understood it, here we go. You met him skiing that day?

A Yes.

Q And did you agree to have dinner with him that evening when you saw him skiing?

A Yes."^[FN306]

While Defendant asserts that nothing inappropriate occurred during the stay, the Court [*47]determines that this is another example of poor judgment by Defendant and lack of candor to this Court. Similar to other situations referenced herein when Defendant has engaged in bad decision-making, at trial Defendant seemed to have no remorse for her conduct and attempted to justify her decision not to obtain child care for J., or to obtain a separate hotel room for she and her son, by seeking to shift the blame to Plaintiff:

"Q Well, before you went to the hotel, did you find someone to provide child care for your son?

A I didn't attempt to because initially, I just — my intentions were to just crash because we were all tired and J.F. is very greedy. I was afraid to rent a room for myself and my child because then later on, he would scold me for spending money, for the room."^[FN307]

Similarly, Defendant sought to shift the blame for her marital problems on A.B., who only sought to help the family, seemingly disregarding that it was her own conduct that was likely to result in further marital strife for the parties.

Defendant's lack of understanding of the ramifications of her own conduct was further underscored by the credible testimony of Plaintiff regarding his communications with her just after she was discovered with their child in a hotel room with another man:

"A She admitted to me after the fact that C. and her had plans to meet and go on a ski vacation.

Q Did she come back home with your son?

A I demanded it.

Q Next day?

A No, the day after the next day. She wanted to stay and ski and told me it wasn't a big deal and why she paid for skiing and she should stay and ski and what's the big deal and I just — you've got to come home.

Q So after being caught in a hotel with a man and your — geez, he was like four years old, wasn't he?

A Four.

Q — four-year old little boy after midnight in Telluride, she actually stated to you, it was no big deal?

A No big deal at all. I'm crazy, I'm a stalker."^[FN308]

[c] Failing to Affix Seatbelt to Child

At trial, C.W. credibly testified that she is employed as the director of CFS, being an agency which provided supervision services for access between Defendant and the Children on approximately five occasions, and during one of these visits Defendant failed to affix a seatbelt to one of the Children and did not stop the vehicle following C.W. expressing her concerns:

"Q Did there come a time that you were in the vehicle again where you noticed one of the children was not properly seat belted?

A Yes.

Q At that time, where were you seated in the vehicle?

A I was not seated right next to the children, but I don't remember where I was seated in the car.

Q You don't remember if you were in the third row or the front seat?

A Yes.

Q And when you realized one of the children wasn't seat belted in, what did you do?

A I informed the mother.

Q Was the vehicle moving at this point?

A Yes.

Q Who had put the children into their seats?

A The mother.

Q And when you informed the mother as this vehicle was moving that one of the car seats was not properly buckled, what, if anything, did she do?

A She said that if she couldn't — she couldn't buckle the bottom because it wasn't — like there wasn't enough slack, I guess, in the belt.

Q Did she keep driving?

A Yes.

Q Did you ask her to stop?

A I don't remember.

Q What did you do in response to the mother's statement that she couldn't buckle the car seat and the car was still moving?

A I just did it myself.

Q You left your seat?

A I did.

Q And when you left your seat, did she stop the vehicle?

A No.

Q And when you were actually buckling the seat, did she stop the vehicle?

A No.

Q And when you were done buckling the seat and returning to your own seat, did she stop the vehicle?

A No.

Q Did the buckle buckle?

A Yes.

Q Did you explain to her at that point how a seat belt actually works?

A I might have shown her afterwards, it needed to be adjusted."^[FN309]

Coupled with this testimony, raising concerns of Defendant's ability to drive safely with the Children, is Defendant's own testimony wherein she confirmed she retained legal counsel to assist her with several traffic infractions seemingly disregarding the seriousness by noting "everyone gets violations."^[FN310]

[d] Failure to Supervise S.

At trial, K.C. testified that during a concert in the summer of 2019, Defendant permitted S. to wander off requiring that a police officer return him to the family:

"Q In the summer of 2019 on that same trip, do you recall attending an outdoor concert in Colorado?

A Yes.

* * *

Q Going back to the concert, do you recall where the concert was in Colorado that summer?

A The concert is always in the park in Ridgway and every Thursday evening, we would — J.F. would gather all the chairs and then we would either walk down or we would drive down or ride a bike because it's very close to the house and then we would — he would set up the chairs, we would get dressed and we would go to the concert. Normally, he would buy food because there are food trucks in the park as well and he would buy food for all of us and we would sit and eat in the park while we enjoyed the concert.

Q During one of those particular concerts that summer, was there an occasion where S. had wandered off?

A Yes. So that particular day when we went to the park, it was myself, E.G., the two boys, J.F. and A.M.. We all went to the concert. J.F. had went to purchase food because he took all of us over, he went to purchase food. Him and J. and A.M., when he brought back the food, he brought the food for myself and S.. S. and I were seated in our chair eating and E.G. was talking to her friends. J.F. and A.M. were standing a little away from us and then E.G. wanted to introduce S. to someone of her friends, so she came and she took S. from me and she went over to her friends. At this point, I wasn't paying attention to her anymore because I was just eating because she took S. and then J.F. came over to me and asked me where S. was and I said S. is with E.G. and when he looked over where E.G. was, he never saw S. And so J.F. took one end of the park, A.M. went to one and I went to one end and E.G. went to one end to find S., we were looking around, we couldn't find S. and then where I went, a police lady had S. walking back, because she was about to walk back and I saw her, so I went up to her and she told me that she saw him almost on the street, so she picked him up and came back into the park to announce on — but I took him from her and told her that he just wandered off and she gave him to me and I brought him back.

Q So after E.G. took S. to meet her friends, she had lost track of him?

A Yes.

Q And ultimately, you found S. with a police officer?

A Yes."^[FN311]

This Court has been presented with evidence and testimony of several incidents wherein Defendant failed to take action needed to care for the medical needs of the Children.

[a] Failure To Adhere To COVID Protocols

When asked about Defendant's conduct during the COVID pandemic, Plaintiff testified, "She was just living her life like there was no COVID and she stated that COVID was made up by the Americans, all Russians knew it was a hoax and it wasn't real and she continued with her schedule for school."^[FN312] K.C. corroborated this testimony as she testified that Defendant's failure to comply with the COVID protocols required the family to relocate out of the marital domicile:

"Q In March 2020, do you recall the onset of the COVID pandemic?

A Yes.

Q Did you speak with J.F. at all regarding COVID protocols and the children?

A Yes. We were — go ahead.

Q Sorry, go ahead.

A We were very worried because, like, nobody knew what COVID was. A lot of people were getting sick and so we went into lockdown early due to his job and one of his patients that he cared for was elderly, so we went into lockdown very early. He advised us that we need to stay home because in order for him to keep his job, we would have to be together and not going out around other people.

Q Did you, J.F. and the children, in fact, follow the COVID protocols that were required by J.F.'s job?

A Yes, we did. There were — within that instance, E.G. had break that twice. The first time she did, J.F. had reported it to the police. I remember the second time, when she did because she didn't think that COVID was real and she was always talking about oh, I'm being careful, I'm wearing a mask. The second time when she did it, he also reported it and then I said to J.F., I'm not comfortable being in here and E.G. not following because I don't want her to go out and get sick. A lot of people were dying. I didn't want to get sick. So when I expressed my concerns to him, he took the boys and myself and himself and we went to stay at his dad's farm and then she had to stay at the house by herself and quarantine. He got her tested and when it was safe, then we went back to the house."^[FN313]

[b] November of 2019 Incident

At trial, K.C. testified that while she and J. were sick, Defendant returned to the home and left for the gym instead of remaining with the Children as the only other adult present was also sick:

"Q Did there come a time in 2019 when you were taking care of the children when you became sick?

A Yes.

Q Do you recall when that occurred?

A That was — I believe it was in November — in November of 2019, I became sick, so the week when I became sick, the week prior, J.F had took J. out on a Saturday and they went out and they were having fun. Then he called me because he was bringing him back because he had to see a patient and then he said, K.C., J. is not feeling well, he threw up all over my car and I need your help when I get back to the house because I have to go see a patient and I have to clean my car. So he brought J. back. I took him inside from him and I cleaned him up. I put him in bed because he was sleeping and then J.F. cleaned his car and left. The following week, I got sick, I was throwing up and E.G. wasn't home yet, so when I started throwing up, J. came in the bathroom and he said to me, K.C., you're sick like me and I'll take care of you. He was, like, rubbing my back while I was throwing up. E.G. came home afterwards. The boys and I were on the carpet laying down and as she came home and J. told her that I'm not feeling well, I'm throwing up like him, she got dressed and then she left to go to the gym. J.F. came home afterwards and then I was in the bathroom throwing up and then J. went and said, daddy, K.C. is not feeling [*48]well, she's throwing up. J.F. asked me for E.G.. I told him that she went to the gym. He asked if she knew that I was sick, I said yes and she proceeded to leave to the gym and I said yes.

Q That night, do you recall what time E.G. arrived back home?

A She came home around 7:30.

Q And do you recall who took care of the children or who was taking care of the children at that time when she arrived back?

A J.F. had already put the boys in bed because I wasn't feeling well, so J.F. put them in bed."^[FN314]

[c] 2020 New Year's Incident

At trial, Plaintiff testified that the family traveled to Jamaica with the parties intending to celebrate New Year's Eve for 2020 at the Iberostar Hotel with friends but that he had left the party to return home to care of S. who was sick with possible Dungue fever and that Defendant remained in the hotel.^[FN315] When asked if Defendant called or texted to see how S. was doing after he left the New Year's Eve party, he responded that she did not and the first time he heard from her after leaving the party was when she arrived at the New Years Day celebration at the home of M.G.^[FN316] Plaintiff's testimony was corroborated by A.M. who testified that Defendant had remained at the hotel celebration until after breakfast the next morning, and while at the party at M.G.'s home advised him that she planned to return to New York State to then immediately leave for a ski trip to Colorado.^[FN317]

During the trial M.G. also provided testimony regarding this incident which was in line with the testimony of both Plaintiff and A.M.:

"Q And can you tell me, what did you and E.G. talk about on January 1, 2020, relating to S.'s health?

A Well, I was surprised that she hadn't been with the children and J.F. the night before, New Year's, but she said that they had booked a room at Iberostar and there was a party and that she had decided to attend the party by herself and then she came to my party later because she had partied the night before, let's say, and eventually — when she was there, I asked her, you know, if she was — why wasn't she with the children and why — and then that S. unfortunately was still very sick and anyway, so I said, what are you going to do, he needs to see a doctor or something. She said, well, no worries because we're going to New York, back to New York, I don't recall exactly if was the day after or two days after, but as we're going to New York, we're flying to New York very soon and J.F. already made an appointment with the pediatrician. So I said, oh, well, then you're going to go and be with the pediatrician and see if it's indeed— if it's Dengue and she said, well, actually, I'm just stopping by in New York and changing like suitcase because I'm [*49]flying to ski. Needless to say, as a mother, to myself, I was quite shocked at the fact that she was so casual and cavalier about S.'s condition and that not only, but she just was going to — was skiing a couple of days after."^[FN318]

K.C. provided testimony as to what occurred when the family returned home from Jamaica:

"When they came back to New York, the boys — J. felt a little better. S. was still under the weather. She was excited about her trip to go to Colorado to ski. She was going to take J. to go learn how to ski, so she was very excited about that particular trip in January.*** S. was still under the weather. I took him to the doctor because he had a high fever and I texted J.F. to say S. is having a high fever. E.G. went out. She went shopping to go prepare for her trip to Colorado so I had both the boys and I took J. and S. with me to the doctor, but S. was the only one that was seeing the doctor that day."^[FN319]

When asked how Defendant responded when being told that S. was being taken to the doctor, K.C. testified that, "She just said it was ok because she was out shopping,"^[FN320] and that the child remained ill when Defendant left for her ski vacation in Colorado, planned to be at least one week in duration.^[FN321]

[d] Steam Shower Incident

There is no question of fact, that J. was injured during access time with Defendant at the parties' former marital domicile while in a steam shower, and that Defendant failed to inform Plaintiff of the injury until she received inquiry into the injury. Defendant's sworn statement submitted to the Court indicated that she intended to advise Plaintiff of the injury when he picked up the child from her access time, but as he was not the individual who picked up the child, made no further efforts to contact Plaintiff regarding the injury until she responded to Plaintiff's e-mail inquiring about the incident eleven hours after his e-mail. During the trial, Defendant provided testimony regarding the incident, placing blame on the Court and Plaintiff's counsel and offering no basis for her own lack of immediate action to at the very least contact Plaintiff:

"First of all, I wasn't able to take the child to the doctor because Lieberman and Lubell, because in some of the paperwork, they indicated that I'm not allowed to bring the children to the doctor. So I waited for J.F. when the time came for him to pick up the kids and he never arrived."^[FN322]

At trial, when questioned about the injury J. sustained in the steam shower during her access, she confirmed that following the child being injured she wanted to take him to the doctor but did not, "because they forbid me to take the children to the doctor because he has temporary [*50]custody***I wanted to, but I wasn't able to. It would have been illegal."^[FN323] Plaintiff testified that following the child receiving medical treatment, the injury took four months to heal and resulted in a scar on the child's leg.^[FN324]

Throughout the entirety of this action, Defendant has had the opportunity to engage in access time with the Children and, largely through Consent Orders entered into while Defendant was represented by counsel, this access time was to be supervised. However, Defendant has consistently taken a hard-line position against engaging in supervised access, referring during the trial to such supervision as "prison conditions."^[FN325] Furthermore, when asked during trial if the Children were her priority, due to her failure to engage in access time with the Children, Defendant responded, "They were and they always will be, when supervision is removed."^[FN326]

Defendant's determination not to have her access with the Children supervised has unfortunately resulted in her voluntary absence from the Children's lives for the past several years as noted by Counsel Most during the trial:

"But Judge, I would like to point out that in 2021, there was six months with no access. In 2022, there were basically two visits. 2023, there was no access until sometime you have after C.L. was appointed which the visits started in May 2024. So there was a visit in May 2024, June 2024. These are one visit for two hours, July 2024. There were two visits in August 2024 and one visit in December on December 12, 2024 and there has not been a visit since then."^[FN327]

Defendant's lack of access time with the Children as asserted by Counsel Most was not disputed by Defendant during the trial, who provided testimony that she had decided not to [*51]participate in the access time due to two reasons, that such access was supervised and due to a lack of funds to pay for such supervision:

"Q Today, are you aware that there is an order which allows you to see your children?

A Yes.

Q When is the last time you had a visitation with your children?

A In December.

Q It's going to be six months since you saw them next week, right?

A Yes.

Q And, in fact, you have gone for at least six months without seeing them on three other occasions in this case, right?

A Probably.

Q And the order that exists right now that allows you to have access requires that access to be supervised, right?

A Yes.

Q And do you know who the supervisor is?

A Yes.

Q Who?

A C.L.

Q And how many times did you exercise supervised visitation with C.L. under the current order before you stopped seeing the kids in December?

A I have not counted exactly, but several times.

Q How much have you paid her since October of 2024?

A She takes $125 an hour and at minimum charge was for two hours for the meeting, sometimes, for four hours, but I have not done any calculation or the total amount paid to her, but each time I had pay her, I really suffer, my wallet really suffers.

Q Your wallet really suffers, is that what you said?

A Yes, it's expensive.

Q And why is that you decided not to see your kids for the last six months?

A This is because I did not have money and I very much wanted to come for trial and then to fight for my children, in order to remove the supervision.

Q So money was the major obstacle to you exercising the supervised visitation?

A Not quite, not quite. Money was not quite.

Q Well, you just said money, you wanted a trial and you wanted to fight for supervision. Is there another reason that you want to offer why you haven't seen your children in six months?

A And my personal reason was that I was getting very worried. Each time we met in such uncomfortable — under such uncomfortable conditions, the last time, the nanny for J.F., she was late for an hour. They brought the kids to a different mall and I had to pay for their mistake and the kids went through a difficult time. When you show up for just one hour, two or three hours, it leaves such a mark on one's feelings, one's heart and then in the course of several days, I had to compose myself and I have been looking at all of this, I deem all of this as harassment.

Q So you're not seeing your kids because you have decided to make a statement that you're not going to accept supervision as a condition to seeing your children, correct?

A This and money.^[FN328]

However, Defendant's assertion that she lacked the financial resources to provide payment for supervised access as the reason for seeing the Children only a handful of times over the past several years was proven false during the trial. At trial, evidence and testimony was presented confirming not only that Defendant had such resources, but that she had utilized funds specifically given to her by her godfather for access with her Children, for her own travel and luxury purchases.

Defendant asserted at the pre-trial conference on September 27, 2024, that she did not have the funds to pay for supervised access and that her godfather has stopped assisting her with funds for the divorce. However, Defendant testified during trial that since September 2024 through the date of the trial she maintained a minimum balance of $36,000.00 in her savings account,^[FN329] being more than enough to pay for supervised access with the Children. Defendant further confirmed at trial that on October 30, 2024, she had received a check from her godfather for the sum of $10,000.00 with "children's visitation" stated in the memo,^[FN330] which she acknowledges depositing into her account.^[FN331]

When asked about how much of the $10,000.00 from her godfather from this check was used for access time with the Children, she testified $5,000.00, claiming that the remaining funds remained for use on the Children,^[FN332] but testified that she has no proof of payments made to the supervisor C.L. after December 26, 2024 beyond $500.00.^[FN333] When questioned if she had spent the missing funds of $4,500.00, being the difference between the $5,000.00 Defendant claimed remained and the $500.00 she had paid C.L. for supervised access with the Children, she responded that Counsel Most should "calm down" and asserted, "I wouldn't leave any money for myself by way of stealing the children's money, I would not take even a single cent."^[FN334]

However, when presented with a copy of the March 25, 2025, bank statement from the account which she had deposited the $10,000.00 check, reflecting a balance of approximately $2,000.00, and being asked where the other $3,000.00 was, she testified "they are in my head."^[FN335] Upon further inquiry as to the location of these funds other than in her head at the time [*52]of trial, Defendant responded that she would take the funds from another account for a vacation with the Children to Disneyland.^[FN336] When further pressed that she had in fact spent the money allocated for access with the Children, she acknowledged that she had presented false testimony to this Court, confirming these funds were not in her possession from her godfather's check but that she would either need to access another account or take on additional work to obtain the funds:

"A. That's not for you to decide how I disperse my money and I think I have eaten enough shit by now that I have been proving that I'm a good mother and you really don't like that and you're focusing on some $5,000 for you, that's like a spit. You should be embarrassed for a father of the children like this. You want to kind of beat me to the end because of some $5,000? This is not going to work out for you. What's the answer? What do you want to hear from me? Where am I going to get the $5,000 to pay for the children's trip to Disneyland?

Q No, what I want to know is why you decided to lie to the Court about it, that's what this whole questioning is about, so tell us then, why did you decide to lie to the Court and claim you still have $5,000 left when, in fact, your bank account statement shows you do not, explain that. The floors is yours.

A I didn't lie in court. Don't turn the arrows on to me concerning something that you're doing yourself and the money. When that moment comes up, I still have the entire summer in front of me, maybe I will take on additional work. You don't know what's in my future. You don't know what's in my head that I'm ready to get that $5,000 anywhere and that I'm ready to access that account where I have that saved money, the one that's taboo to me, but it's not taboo for me to take $5,000 for my children from there."^[FN337]

While Defendant continued to provide testimony asserting that she would never have used the money allotted for the Children,^[FN338] she provided testimony that she traveled extensively during the 2024 year, testifying that "all summer, I was everywhere, I was everywhere all over,"^[FN339] indicating that she spent between ten and fifteen nights in the Hamptons.^[FN340] Defendant further testified that in December of 2024 she traveled to Vermont to ski;^[FN341] in December of 2024 and January of 2025 paid $3,403.00 for a two-day trip to Wyndham, New York;^[FN342] in January of 2025 went on a five-day trip to the French Alps for which she sent $2,541.00 to her friend S. for [*53]reimbursement of costs;^[FN343] in February of 2025 made a $500.00 payment for a kite boarding trip to North Carolina;^[FN344] in March of 2025 expended approximately $1,000.00 for travel to Greece for a friend's birthday celebration;^[FN345] and in March of 2025 traveled to Switzerland for a five-day ski trip.^[FN346]

Defendant further testified to purchasing for herself luxury items during this period, including spending in November of 2024 $1,715.00 at Bergdorf Goodman, advising that the purchases were Christmas presents for herself,^[FN347] and including $566.00 at Jean Blanc Sports Shop in Courchevel for more gifts for herself."^[FN348] Tellingly, during the entirety of the trial, Defendant provided no testimony as to any gifts being purchased by her for the Children's birthdays or for any holidays, while Plaintiff has testified that during this litigation Defendant has not voluntarily paid for any expenses of the Children.^[FN349]

When asked if it was still her testimony that she did not have the funds for supervised access time with the Children having acknowledged her excessive travel, she responded:

"Everything that you have tabulated, everything that you mentioned has given me the strength. It all helped me as a person to struggle or to fight for my children and they're going to do all this with me. On one fine day, they're going to do all of these things with me, everything that you said right now.^[FN350]

* * *

And I would like to make everybody understand that, all of these accusations and then discussions regarding the checks, my private life, my trips, I would not have been able to sit here right now if I was not undertaking or taking these sports trips and, in fact, those trips motivate people and that is what is giving me the energy and the strength to be able [*54]to sit here today."^[FN351]

While confirming that her own needs were the reason for the use of her funds to travel, rather than to see the Children, and asserting that she would never mentally or physically hurt the Children,^[FN352] Defendant acknowledged that she has largely been absent for the past five years of the Children's lives and that this may have caused harm to the Children:

"That five-year period, that five-year chunk has been taken away. It's a very big chunk of time. Maybe when they go to school, their friends may ask, where is your mother? What kind of answer are they going to give? I'm wondering. I'm very worried for my children that they fear that I have abandoned them or maybe I'm punishing them."^[FN353]

Despite then asserting that she did not want to lose additional time with the Children and desired to immediately start anew,^[FN354] when asked at trial if it was true that she made no efforts to see the Children for Mother's Day of 2025, which occurred during the trial, she confirmed that she had not but sought to deflect and blame Plaintiff's counsel:

"I'm waiting, I'm in anticipation, I'm anticipating the future Mother's Days that will occur in the future. Until I die, there will be Mother's Days, but this ambush that you're creating for me, the abuse must end.^[FN355]

* * *

Q. Would you think that they're sad that they don't get to see you?

A. Whatever you created for my children, all of this prison, of course, they are very sad."^[FN356]

"He did not only steal my time from the kids—with the kids, he also stole the chance from the children—he stole the chance from the children, for them to be able to be half Russian."^[FN357]

- Evaluation of Plaintiff With Respect to Ability To Promote Stability; Available Home Environment; Past Performance; Relative Fitness, Including Ability to Guide Children, Provide for Children's Overall Well-Being & Foster Children's Relationship With Noncustodial Parent.

When evaluating Plaintiff's ability to promote stability, available home environment, past [*55]performance, relative fitness, including ability to guide Children, provide for Children's overall well-being & foster Children's relationship with noncustodial parent, the Court has taken into consideration the evidence and testimony presented at trial.

During the trial, Plaintiff testified that that he received a doctor of chiropractic degree, became licensed in New York State in 1996, and continues to operate a chiropractic practice today.^[FN358] He testified that he has treated R.L. for thirty years, later evolving into his primary client, traveling with him to provide treatment at different locations including Montauk, New York; the country of Jamaica; and Ridgeway, Colorado.^[FN359] He testified that Defendant was born in Russia and following their marriage became a United States Citizen utilizing their marriage as a basis for her citizenship application.^[FN360]

When asked about the initial care of the Children following their birth, Plaintiff testified that when J. was born, Defendant had a friend assist her for the first couple of days thereafter doing everything by herself and was an amazing mother.^[FN361] He testified that during the pregnancy of S. Defendant became overwhelmed and the parties agreed that she would receive help from her childhood friend I., who assisted until after the birth of S..^[FN362] Following S.'s birth in 2018, the parties determined that professional child care assistance was needed and hired a full-time, live-in nanny, first hiring M. and later K.C. who remained for five years, always remaining on call.^[FN363]

When asked about the period of 2018 through 2019 and if he spent time with the Children, he replied, "Yes, absolutely. Fortunately, my work — my hard work was balanced with — like work hard, play hard, so on the times that I would travel, I would only be required to work two hours a day, possibly four days a week, so I was completely available to have fun and when I was in New York, I worked harder but I was available for the kids and, of course, weekends."^[FN364] He testified that since the birth of the Children, they have traveled with him for his employment-related travel to Jamaica, Colorado and the Hamptons.^[FN365] This testimony was corroborated by K.C. who testified that she began her employment as the Children's nanny in August of 2018, "When we go to Colorado, he only had one patient and so he would go to work for, like, two hours during the day and then once he's back, he's free for the rest of the day and then he would have all these things to do, whether it was with the boys or with E.G., but it varies [*56]day to day, but he only worked for two hours when he was there in the summer."^[FN366]

Plaintiff further testified that in the Fall of 2019, following Defendant's return to college, from Monday through Friday, she would leave the house early in the morning and return between 4:00 p.m. and 6:00 p.m., then going out in the evenings following her return. When he confronted her about the amount of time spent on just two classes, Defendant responded that she needed time for study groups.^[FN367] This testimony was corroborated by K.C. who testified that between 2018 and 2020, Monday through Thursday Defendant would leave the home at 7:00 a.m. returning at 4:30 p.m. at the earliest, leaving for the gym three to four times per week; and, on Fridays Defendant would leave between 9:30 a.m. and 10:00 a.m., returning between 4:00 p.m. and 5:00 p.m., to leave around 6:00 p.m. for the gym; leaving her to care for the Children while Defendant was not present, whose bedtime during that period was between 7:00 p.m. and 7:30 p.m.^[FN368]

When asked to descript Plaintiff's interactions with the Children K.C. testified that:

"J.F. has control over the kids. He would sometimes — sometimes, he takes them both by himself and he would go with them. He can control the children, like, they're nice. When E.G. would be having a hard time putting J. to bed, J.F. would walk in and he would come in, he talked to J., J. would go right to bed so he doesn't have a problem when it comes to putting his kids to bed. He take them — he has his son, they call it the dad and son date. He would take them out; sometimes, individually, sometimes, both together. He does have his one on one where he would take J. for lunch, this day and another day, it is S.'s day, then he would take them both. They go out and have tea and they just do different activities together. A lot of times when he's taking them, he's like K.C., you don't need to come, it's okay, I got this and him and them would just go out and it's not a problem."^[FN369]

K.C. provided a different description of Defendant's abilities to care for the Children:

"Okay, so E.G. have her moments where she is great with the children and then other times, she cannot handle the children. For example, she cannot take both kids on the road by herself. She has tried that multiple times and no sooner after she drove out the house, she's back and she can't handle them because they don't listen to her, nothing that she says when she's out with them, so she always have to take them back and she can only manage to take one. The one that she would always take is J. whenever she goes. Sometimes, when she would be home, J.F. would be at work, if I leave the house to go do something personal for myself, by the time when I get back to the house, it's like a storm passed through the house because the boys would just turn things upside down. I would ask her what happened. She's like, K.C., they don't listen to me. I tried to talk to them. They're not listening to me. There are times when J.F. is not home and she would put them to bed. They would just get out — not S., but J. because S. would be in his crib, but [*57]J. would proceed to come out of bed. She would try to put him back multiple times. J. wouldn't listen to her and I always say to her that E.G., you're his mom, you have to insert your authority so that he listens to you. She said, I can't do it and she would come and ask me to put J. back into bed which I do."^[FN370]

Plaintiff testified that following K.C. leaving his employment, he hired two additional nannies being. R. and her daughter M., explaining the need for multiple nannies, "Access and to ensure that nobody got overworked, overburdened, that everybody's energy level was up and it was a great work environment so the kids would have the best of everybody."^[FN371]

Plaintiff testified that he currently resides with the Children in the farm where he was raised consisting of a home, streams, ponds and barns.^[FN372] Plaintiff testified that the Children have three pets that they love including a hamster named Squirtle, and two guinea pigs named Waffles and Nutella.^[FN373]

When asked about his decision-making with respect to the education of the Children, he testified as to his selection of Rippowam:

"I picked it because it has an incredible reputation and it allowed me to basically maintain my ability to earn a living during a time where everything was shut down and I had no ability to provide for my family. It allowed me to stay traveling with R.L. and they offered to support me during the periods of travel that I would not be near the school, they offered assistance and were okay with me having an off-site tutor and providing materials and having the teachers interface."^[FN374]

He testified that he has attended every parent-teacher conference at Rippowam, finds the teacher feedback to be incredible reflecting their investment in the Children, and that the Children are happy to be at the school.^[FN375] When called to testify, C.M. identified himself as the head of the school at Rippowam, testified that his interactions with Plaintiff in this role have been positive and that Defendant took part in one parent-teacher conference that he participated in years ago.^[FN376]

The teachers at Rippowam who have taught both Children have confirmed that the Children are succeeding academically and socially at the school. E.Z. testified that she is a teacher at Rippowam having taught J. in the 2023-2024 academic year,^[FN377] who provided the following description of the J.:

"J. was a joy to have, very curious, very bright. He loves to investigate, whether that's inside or outside building things. He was always very sweet and he had great manners and his manners definitely stood out in my class, good morning, please and thank you and he was often smiling, so he was just really pleasant to have.^[FN378]

* * *

He has wonderful friendships. He really got along with anyone in the class. He gravitates towards the friends who like to build and are creative, but he could really play with anyone, whether that was sports outside or writing a story in class, inside, so yes, he had a wide friend group.^[FN379]

* * *

He's a very outgoing, not shy at all boy. He's always friendly. He would say hello to any teachers he had in the past years. He would give a friendly wave or any specialist teachers, like the art teacher or PE teacher, whoever he's passing, he says hi, very friendly with adults too."^[FN380]

She then testified that J. is doing well academically and that while traveling with Plaintiff she would scan and send school materials for the J. to work on.^[FN381] Testifying that Plaintiff usually brings the Children to school, she noted that she has witnessed Plaintiff interact with J. many times during pick-up and drop offs, and that there "was always big smiles, big hugs."^[FN382] She further testified that she has never received any communication from Defendant.^[FN383]

K.C. testified that she is a teacher at Rippowam having taught S. in the 2025 academic year, providing the following description of S., "He came in, wonderful boy, well behaved, listens, gets along well with everybody, both teachers and his peers as well."^[FN384] She testified that S. is doing well academically,^[FN385] and that the child's travel with Plaintiff has not negatively impacted his education.^[FN386] She testified that Plaintiff has attended parent-teacher conferences and grandparents/special friends day,^[FN387] that she remains in communication with Plaintiff through e-[*58]mail,^[FN388] and has received no communication from Defendant.^[FN389] When asked if she has witnessed Plaintiff's interactions with S., she responded, "Yes, when he drops them off and he's always very — gives them a wonderful goodbye and you can tell the love that he has for S. and is always very kind and gentle and loving with him."^[FN390]

The Court further received testimony from M.F., who testified that she is the founder of Thistlewaithe Montessori School, where she taught S. during the 2023-2024 academic year,^[FN391] and referred to S. as "one of the most emotionally balanced children—child that I have ever come across."^[FN392] She testified that Plaintiff was receptive to the recommendations made regarding specific education needs of S.,^[FN393] and that when S. was traveling the Plaintiff would obtain work to be completed while he was away to be submitted on his return.^[FN394] She testified that she witnessed the interactions of Plaintiff with S. at the school, characterizing them as always very loving with both having a good relationship,^[FN395] with her witnessing either Plaintiff or nannies doing pick-up or drop offs of the Child and never Defendant.^[FN396] When asked if she had occasion to communicate with Defendant outside of school events she provided the following response:

"A It was just a quick conversation about, you know, her lovely boys and I empathized with her and then she passed comment, a couple of comments regarding J.F. and I just put them into my head and out of my head, as much as I could.

Q Do you recall what the comments were, sum and substance?

A One, just sexual persuasion.

Q Of J.F.?

A Yes, yes.

Q Do you recall what she said regarding his sexual persuasion?

A It was — in reference to her early years and marriage and how there was just a lot of different things going on of that nature, so I really don't remember."^[FN397]

At trial, when asked about the demeanor of the Children, Plaintiff testified:

"They are happy, excited, energetic, open and sophisticated enough to interact with adults and also be children at the same time. They are just amazing, brilliant kids. They don't suffer from anything that I could tell you about. They're just happy."^[FN398]

When asked to describe his relationship with J., Plaintiff responded:

"So each child has a different need from myself in order to flourish and thrive as I see it. I'm incredibly close with both children. I love them equally and I try to afford them each the same opportunities that they perceive each other has. They each require different types of reinforcement and discipline and different approaches to discipline and interaction. My relationship with J. is a very emotional one. We talk about a lot of different things. It's inquisitive. He shares his life with me on a daily basis, how his day was, what his future dreams are."^[FN399]

Plaintiff also testified about the relationship he shares with S., testifying:

"So S. is very unique because he's an independent character that really needs to have his independence in order to keep growing in a healthy way. You have to give S. a lot of — a long leash, but you can't — you've got to reel him in, so the discipline is different with S. because he's very independent, he's very strong and he's very smart. He's very loving, but much less unable to express his feelings as fluently as J. does. He's getting better and better at expressing himself. He's interested in anything that's electronic. He sort of wants to be in business with J., they're very entrepreneurial, they want to sell things. In the summer, they sell lemonade at Tiny Town. This summer, they want to sell all sorts of different things. They want to sell juice. They know about the cafe and they want to sell juice to inspire health in other kids."^[FN400]

The descriptions of the Children by Plaintiff as being well-adjusted was corroborated by A.M. who testified that over the past several years he has seen Plaintiff and Children a lot, including birthdays and holidays,^[FN401] and provided the following description of the Children:

"They are incredible young men. They are eight and ten but they are really — they are really eighteen and sixteen. They are incredibly intelligent, very different from each other, incredibly open and loving and caring and sharing and yes, they are really remarkable young boys."^[FN402]

Testimony was also provided by J.C. who stated that she feels like a grandmother to the Children.^[FN404] She testified that Plaintiff has brought the Children to her home to visit for the past five to six years and that during the last year has seen the Children three to six times per month,^[FN405] describing the relationship of Plaintiff with the Children as, "the most loving threesome of human beings that I know."^[FN406] When asked to describe her observations of the mood of the Children, she responded that they are happy, want to have fun and are loving towards each other.^[FN407] In describing the manner in which Plaintiff handles the Children when they misbehave, she testified that he is "gentle, but firm," and that, "He uses humor appropriately and those boys straighten up, listen and acknowledge that they're hearing him and they understand."^[FN408]

- Parties Sought Relief

When articulating to the Court his desired relief pertaining to custody of the Children, Plaintiff indicated that he sought custody to remain with his having sole legal custody including decision-making for the Children, his retaining physical custody of the Children subject to a supervised access schedule of Defendant due to her poor judgment and being a flight-risk.^[FN409] Plaintiff testified that he supports the Children visiting with Defendant,^[FN410] that he offered to have his nannies present to supervise Defendant's access time with the Children at no cost but that the offer had been rejected,^[FN411] resulting in four separate six-month periods during the litigation where Defendant has gone without seeing the Children despite being able to do so,^[FN412] including on Mother's Day of 2025 on which he ensured that the Children had an active day with loved ones.^[FN413]

Defendant asserts that Plaintiff is an "absentee father,"^[FN414] for whom the Children are his [*60]"trophies" whose future is in jeopardy.^[FN415] Defendant requests that each parent received fifty percent physical custody of the Children,^[FN416] and argues against the continuation of her being required to engaged in supervised access.^[FN417] Defendant asserts:

"I'd like to help my children to do their homework. I'd like to support my children when they are happy and at the same time when they are feeling very sad. I'd like to be very much around when my children need me. I'm interested in being a part of their personal lives, and I'd like to take part in their activities."^[FN418]

- Legal Analysis

It has long been held that an award of joint custody is improper where the parents of the subject child or children are severely antagonistic and embattled that joint custody could only enhance family chaos (Braiman v. Braiman, 44 NY2d 584 [1978].

When making a child custody determination, the Court must take into consideration the parental guidance each party may provide to the subject child, the existence of domestic violence impacting the child, and if a parent has a character which is ill-suited to provide the child with moral and intellectual guidance (see, Moreno v. Cruz, 74 AD3d 780 [2d Dept 2005]; see also, Irwin v. Schidt, 236 AD2d 401 [2d Dept 1997]; Rohan v. Rohan, 213 AD2d 804 [3d Dept. 1995]; and Acevedo v. Acevedo, 200 AD2d 567 [2d Dept 567]).

An award of sole custody to one parent is appropriate when there is a sound and substantial basis on the record that such a determination was in the best interest of the subject child due to one parent's volatile temper, limited insight into their own behavior and tendency to blame their strained relationship with the child on the other parent (D'Amico v. Corrado, 129 AD3d 718 [2d Dept 2015]; see also, King v. King, 225 AD2d 697 [2d Dept 1996] ["The Family Court properly determined that the mother's anger and hostility toward the father interfered with her own expressed wish to place the best interests of her son before her own need to express her hostility. Thus, she was unable to foster an ongoing relationship between the child and the father as the noncustodial parent. Although the mother presented convincing evidence of a loving relationship between herself and her son, the extensive testimony of the witnesses, as well as the findings and recommendations of the Law Guardian, support the Family Court's determination that the father is better able than the mother to place the child's needs before his own needs and to foster an ongoing relationship between the child and the noncustodial parent." [internal citations omitted]).

Court must also take into consideration the availability of a parent to tend to the needs of the child and participate in their development (Jacobs v. Jacobs, 117 AD2d 709 [2d Dept 1986]; see also, Lenczycki v. Lenczychi, 152 AD2d 621 [2d Dept 1989] [Divorce court order awarding custody of child to mother was not abuse of discretion, where wife had less demanding work schedule and was better able to provide time and attention necessary to care for child.]).

An award of custody to one parent is warranted following a finding that the conduct of [*61]the other parent voluntarily absents themselves from the life of the child (FF v. FF, 37 A.D.2ds 893 [3d Dept 1971] [" Petitioner's practice on several occasions of leaving home in the evening and remaining away until the early hours of the morning while leaving the children either with respondent or a neighbor reflects a certain degree of immaturity on petitioner's part and either an unwillingness or inability to accept and fulfill fully and completely her maternal responsibilities."]; Zavasnik v. Zavasnik, 59 AD2d 954 [3d Dept 1977] ["here was evidence in this record that at the time when the marital relationship was deteriorating, the appellant would go out four or five evenings a week and would not return until the early morning hours. The father would take care of and attend to the children during that time."]; Harrison v. Harrison, 54 AD2d 906 [2d Dept 1976] ["There was evidence that appellant often was away from home during the evening and did not return until early the next morning, and that she frequently neglected to properly clothe, clean, and feed the child, necessitating that her husband, the respondent, do those tasks."]).

In one such case involving a parent who voluntarily absented themselves from the lives of their own children, the trial Court dismissed a petition of that parent seeking sole custody, noting that while asserting the custodial parent had deprived the petitioner of access to the Children, it was in fact the petitioner who did so:

"The father's allegation that the mother's move to Florida has deprived him of contact with the children is disingenuous at best. It was the father's own actions which have deprived him of visitation. Even while the children still resided in New York he took absolutely no steps to remedy the situation. This court gave the father every reasonable opportunity to further his relationship with his children and he failed to do so. From June 1993 until August 1994, when the mother was served with the instant application, the father made no effort to re-establish visitation with the children. He did not write to them or send them any gifts" (Robert P. v. Gayle P., 164 Misc 2d 794 [Dutchess Family Ct 1995]).

Akin to health, time is one of an individual's most valuable commodities. Once it passes, it may never again be recaptured. This is why we all must never take for granted the opportunities that each day brings, including allocating sufficient time to our loved ones who after the passage of time may not be available. With these thoughts in mind, this Court must take into consideration when evaluating a determination to be made regarding the custody of the Children, the Defendant intentionally absenting herself from the lives of the Children for the majority of the past several years. While this Court is concerned with Defendant's lack of sound judgement as set forth herein, it is most troubled by her voluntary failure to visit or communicate with the Children for long periods, and having done so with unquestionable knowledge of how this conduct would adversely impact the Children.

Throughout litigation and during trial, Defendant has repeatedly asserted that her prolonged separation from the Children would be detrimental to their well-being, a position supported by her then counsel and an expert witness she retained, who submitted an affidavit to that effect. Nonetheless, Defendant engaged in a pattern by which she was voluntary absent from the lives of the Children, neither visiting or communicating with them. This lack of sound judgement and mature decision making is only further compounded upon examination of the manner in which Defendant utilized her resources and allocated her time.

While the defendant asserted one reason for her lack of access time with the Children as her inability to pay the supervised access professional, these assertions were proven to be false at [*62]trial. When questioned about her finances for the period commencing September of 2024, through the date of trial, Defendant confirmed that her financial account always had a balance of at least $30,000.00 which would have afforded her sufficient funds to pay for supervised access. Moreover, Defendant confirmed that her godfather had provided her with a check for the amount of $10,000.00 in October 2024, which he intended to be used by her to pay for supervised access with the Children. While initially claiming that she had utilized half of these funds for access with the Children, with the remaining $5,000.00 being held for future use for the needs of the Children, her own testimony confirmed that she only had proof that $500.00 of these funds were used for access with the Children and that only approximately $3,000.00 of the funds from her godfather remained in her account.

During trial when questioned about her conflicting statements made under oath about the use of these funds, and the amount which remained, Defendant advised the Court that the remaining funds were "in her head" and that she could obtain the funds from other sources such as additional work, implicitly conceding that she had provided false testimony. While the failure of Defendant to utilize the funds specifically allotted to her for access time with the Children is in and of itself disheartening, even more troubling is that the evidence presented at trial, including the testimony of the Defendant, confirms that these funds were likely utilized for the Defendant's excessive travel and luxury purchases. Despite the Defendant testifying that she would never steal the Children's money or utilize these resources for her own benefit, the evidence indicates that this is exactly what transpired. While only seeing her Children for several hours during the period between September 2024 and the date of trial, claiming that the payment of the supervised access professional would "hurt my wallet", Defendant had no hesitation utilizing the funds at her disposal to purchase luxury items at Bergdorf Goodman and a ski shop in Europe, as well as to fund travel to the Hamptons, Switzerland, France, Wyndham, and Greece. When questioned about her excessive travel and luxury purchases in lieu of using these funds to visit with the Children, Defendant seemingly again disregarded the adverse impact of voluntarily not seeing her Children, responding that these trips gave her the strength to carry on through this litigation, including the separation of her Children.

Accordingly, this Court finds much of the Defendant's testimony to be disingenuous regarding the heartbreak she experiences due to the prolonged periods wherein she has not seen or communicated with the Children, including her remarks made in summation wherein she asserts that she is eager to spend time with the Children assisting them with their homework. While the Defendant has absented herself from the Children's lives over the past several years, she has had the opportunity to help the Children with their homework and to be actively engaged in every aspect of their lives. However, she has chosen to remain entrenched in a position that she would not engage in access time if it were to be supervised, referring to it as "prison", despite the attorney for the children confirming that the Children like the supervised access professional and don't mind having access with the Defendant supervised.

Notwithstanding, Defendant's absence and poor judgment pertaining to the Children, this Court was presented with credible testimony from numerous witnesses, corroborated by evidence, that the Children are flourishing both in their personal lives and academically. This Court attributes the success of the Children to the Plaintiff, who has essentially raised them alone for the last several years, making sound decisions regarding their medical needs, education and general welfare. Plaintiff has unquestionably made the Children his priority, ensuring that they have a safe, stable and loving home environment. During this period, wherein Plaintiff has had interim custody of the Children, he has attempted to foster a good relationship between the [*63]Children and Defendant.

It is without question that the parties' relationship, both prior to and during this matrimonial action, has been antagonistic and embattled to an extent where joint legal custody would not be warranted. Upon examining each of the parties as set forth hereinabove, the Court determines that Plaintiff is best able to promote stability; available home environment; past performance; relative fitness, including ability to guide the Children; provide for the Children's overall well-being; and foster the Children's relationship with the noncustodial parent. While Plaintiff has raised these Children, essentially as a single parent for nearly five years, Defendant has placed her priorities elsewhere, leaving Plaintiff to ensure that these Children have been protected, guided and loved. Upon review of the availability of a parent to tend to the needs of the child and participate in their development, Plaintiff should be awarded custody, while this Court finds Defendant ill-suited to do so due to her unwillingness or inability to accept and fulfill fully her parental responsibilities.

- Legal Custody

Due to the foregoing, this Court awards Plaintiff sole legal custody of the Children, who shall have the sole authority to engage in decision-making pertaining to the health, education and general welfare of the Children, with the understanding that: (1) Defendant shall be made aware of any major decisions made pertaining to the Children, with Plaintiff providing such notification via e-mail; and (2) except as set forth herein, both parties shall have unrestricted access to all records pertaining to the Children. Both parties shall be listed on the school registration and information forms for the schools of the Children so that both shall receive any information pertaining to the Children, including attendance, grades, extra-curricular activities, parent-teacher meetings, and school functions.

Any decisions pertaining to citizenship of the Children shall be made jointly by the parties or pursuant to Court Order. It has been held that with respect to matters involving religion and citizenship, which form a profound part of a child's heritage and generally do not require daily and immediate intervention by the caretaker parent as those involving education and welfare, absent a compelling showing to the contrary neither parent should be permitted sole decision-making (Trapp v Trapp, 136 AD2d 178 [1st Dept 1988]). Plaintiff shall retain copies of all passports for the Children, shall be authorized to renew any passports issued by the United States of America individually, without need for Defendant's participation, and neither party shall seek the issuance and/or renewal of passports for the Children from any other governmental entity other than the United States of America.

The parties shall comply with the Children's Bill of Rights, annexed hereto as Exhibit 1 to Decision, the terms of which are incorporated herein as if fully set forth herein.

Within two (2) days of the entry of this Decision, each party shall, via e-mail and filing, provide the other with their respective contact information including telephone number, e-mail address and physical residence. Each party shall notify the other, via e-mail, within seventy-two hours of any changes to this information.

Within two (2) days of the entry of this Decision, Plaintiff shall, via e-mail and filing, provide to Defendant a list of the current medical providers (medical, mental health, dental, vision, etc.) of the Children including contact information with a copy of any medical insurance cards for the Children. Within forty-eight (48) hours of selection of any new medical providers for the Children or issuance of new medical insurance cards, Plaintiff shall, via e-mail and filing, provide to Defendant contact information for new providers and/or copies of new medical insurance cards.

Each party shall, via e-mail, notify the other before the next scheduled access time with the other party, of any medical appointments of the Children.

Immediately, upon occurrence, either party shall, via text message or e-mail, notify the other of any medical emergency pertaining to the Children.

- Physical Custody & Access

Due to the foregoing, this Court awards Plaintiff sole physical custody of the Children subject to Defendant's access with the Children (hereinafter "Children Access Time").

"When adjudicating visitation rights, the court's first concern is the welfare and interests of the child. Visitation is a joint right of the noncustodial parent and the child (see Matter of Aguirre v Romano, 73 AD3d 912 [2d Dept 2010]; Pollack v Pollack, 56 AD3d 637 [2d Dept 2008]; Cervera v Bressler, 50 AD3d 837 [2d Dept 2008]; McGrath v D'Angio-McGrath, 42 AD3d 440 [2d Dept 2007]; Twersky v Twersky, 103 AD2d 775 [2d Dept 1984]). The best interests of the child lie in being nurtured and guided by both parents. In order for the noncustodial parent to develop a meaningful, nurturing relationship with the child, visitation must be frequent and regular. Absent extraordinary circumstances, such as where visitation would be detrimental to the child's well-being, a noncustodial parent has a right to reasonable visitation privileges (see Pollack v Pollack, 56 AD3d 637 [2d Dept 2008]; Cervera v Bressler, 50 AD3d 837 [2d Dept 2008]; Twersky v Twersky, 103 AD2d 775 [2d Dept 1984])." (Zwillman v. Kull, 90 AD3d 774 [2d Dept 2011]). When determining that one parent shall have an access schedule, such a schedule must be set forth by the Court (Pollack v. Slasten, 237 AD3d 720 [2d Dept 2025]).

The Children Access Time shall be delineated in the following manner: (1) weekly access time (hereinafter "Routine Access Time"); (2) holiday access time (hereinafter "Holiday Access Time"); and, (3) summer vacation access time (hereinafter "Vacation Access Time"). For purposes of implementation, Vacation Access Time shall prevail over Routine Access Time, and Holiday Access Time shall prevail over both Vacation Access Time and Routine Access Time. All Child Access Time shall include pick-up and drop-off by Defendant at Plaintiff's residence.

Routine Access Time shall include every Sunday from 10:00 a.m. to 9:00 p.m.

Holiday Access Time shall include the following:

1. Defendant's Birthday - Every year on the mother's birthday the Children shall have access with Defendant. To the extent that the Children are not in school such access shall commence at 10:00 a.m. to 9:00 p.m., and to the extent that the Children are in school, such access shall commence at 5:00 p.m. to 9:00 p.m.

2. Plaintiff's Birthday - Every year on the father's birthday the Children shall have access with Plaintiff. To the extent that the Children are not in school such access shall commence at 10:00 a.m. to 9:00 p.m., and to the extent that the Children are in school, such access shall commence at 5:00 p.m. to 9:00 p.m.

3. Mother's Day - Every year on Mother's Day the Children shall have access with Defendant. To the extent that the Children are not in school such access shall commence at 10:00 a.m. to 9:00 p.m., and to the extent that the Children are in school, such access shall commence at 5:00 p.m. to 9:00 p.m.

4. Father's Day - Every year on Father's Day the Children shall have access with Plaintiff. To the extent that the Children are not in school such access shall commence at 10:00 a.m. to 9:00 p.m., and to the extent that the Children are in school, such access shall commence at 5:00 p.m. to 9:00 p.m.

5. Children's Birthdays - Every year on each of the Children's Birthdays the Children [*64]shall have access with Defendant. To the extent that the Children are not in school such access shall commence at 10:00 a.m. to 3:00 p.m., and to the extent that the Children are in school, such access shall commence at 5:00 p.m. to 7:30 p.m.

6. Thanksgiving - Defendant shall have access time with the Children on Thanksgiving during even years and Plaintiff shall have access time with the Children on Thanksgiving on odd years. For purposes of this provision Thanksgiving shall be defined as the following hours on Thanksgiving: 10:00 a.m. through 9:00 p.m.

7. Christmas Eve Day - Defendant shall have access time with the Children on Christmas Eve Day during odd years and Plaintiff shall have access time with the Children on Christmas Eve Day on even years. For purposes of this provision Christmas Eve Day shall be defined as the following hours on Christmas Eve Day: 10:00 a.m. through 9:00 p.m.

8. Christmas Day - Defendant shall have access time with the Children on Christmas Day during even years and Plaintiff shall have access time with the Children on Christmas Day on odd years. For purposes of this provision Christmas Day shall be defined as the following hours: 9:00 p.m. on Christmas Eve Day through 9:00 p.m. Christmas Day.

9. Easter - Defendant shall have access time with the Children on Easter during odd years and Plaintiff shall have access time with the Children on Easter on even years. For purposes of this provision Easter shall be defined as the following hours on Easter: 10:00 a.m. through 9:00 p.m.

10. Halloween - Every year Defendant shall have access time with the Children on Halloween from 5:00 p.m. to 7:30 p.m.

11. Russian Orthodox Christmas - Defendant shall have access time with the Children every year on the Russian Orthodox Christmas which shall commence at 10:00 a.m. to 9:00 p.m.

12. Russian Orthodox Easter - Defendant shall have access time with the Children every year on the Russian Orthodox Easter which shall commence at 10:00 a.m. to 9:00 p.m.

Vacation Access Time shall include both parties having two weeks of summer access with the Children each year which shall be taken on non-consecutive weeks to be exercised within the United States of America or for countries which are signatories, participating with the United States of America, to the Hague Convention on Civil Aspects of International Child Abduction (hereinafter "Hauge Convention"), as this Court has been provided with no evidence to support a finding that unrestricted international travel is in the best interests of the Children (Naamye Nyarko B. v. Goodwin Edwin C., 198 AD3d 453 [1st Dept 2021]; Bassuk v. Bassuk, 93 AD3d 664 [2d Dept 2012]). Further, this Court finds Defendant to be a flight-risk, having sought to secure Russian passports for the Children and using the Children's birth certificates to assist her sister in securing an apartment in Russia, which she initially sought to conceal by providing false sworn statements to this Court (Ece D. v. Sreeram M., 177 AD3d 450 [1st Dept 2019]). Due to this finding, the Court takes note that the Hauge Convention will provide no protection to Plaintiff or the Children in the event Defendant absconds with the Children to Russia,^[FN419] as the [*65]United States of America has not accepted the Russian Federation's accession to the Hague Convention.^[FN420]

Both parties shall provide written notice to the other of the Vacation Access Time that they have selected by no later than March 31 of each year with Plaintiff having preference in even years and Defendant having preference in odd years so that if the initial requested access weeks conflict, the individual having preference shall be permitted to proceed with their requested weeks and the other party will have until April 10 of that year to provide alternate Vacation Access Time.

Trial courts have the discretion to determine if supervised access is warranted and if so are required to examine the economic realities to determine how such visits are to be paid for by the parties:

"Supervised parental access is appropriately required only where it is established that unsupervised parental access would be detrimental to the child (Matter of Masri v. Masri, 171 AD3d 1183, 1185, 99 N.Y.S.3d 61; see Matter of Livesey v. Gulick, 194 AD3d 1045, 149 N.Y.S.3d 479). The determination of whether parental access should be supervised is a matter within the sound discretion of the hearing court, and its findings will not be disturbed on appeal unless they lack a sound and substantial basis in the record (Matter of Masri v. Masri, 171 AD3d at 1185, 99 N.Y.S.3d 61; see Matter of Livesey v. Gulick, 194 AD3d at 1045, 149 N.Y.S.3d 479; Cervera v. Bressler, 50 AD3d 837, 839, 855 N.Y.S.2d 658)." (Gray v Tyson, 205 AD3d 720 [2d Dept 2022] [internal quotation marks omitted]).

In upholding a trial court decision directing supervised access, the Second Department Appellate Division noted that supervised parental access was supported by sound and substantial basis in the record; mother interfered with child's relationship with father, mother lacked appropriate judgment in many of her decisions regarding child, and the mother acted erratically in ways affecting her ability to competently parent the child (Reilly v Hager-Reilly, 166 AD3d 825 [2d Dept 2018]). An order of supervised parenting time will be warranted where the court " 'finds that unsupervised parenting time would be detrimental to the children's safety because the parent is either unable or unwilling to discharge his or her parental responsibility properly' " (Lynn X. v Donald X., 162 AD3d 1276 [3d Dept 2018], quoting Matter of Williams v Patinka, 144 AD3d 1432 [3d Dept 2016]).

Here, due to the foregoing, the Court determines that it is in the best interests of the Children for Defendant's access time with the Children to be supervised, with such supervision requiring the supervisor to be within the line-of sight and earshot or the Children at all times during the access periods. The Court makes this determination after having found that Defendant engaging in parenting time with the Children without such supervision would be detrimental to the Children's safety because Defendant is unable or unwilling to discharge her parental responsibility properly due to her history of lack of sound judgment set forth above.

With respect to the selection of the supervisor, this Court designates C.L. as this Court determines that she has been both effective in the past and that the Children are fond of her. However, as C.L. will surely have limited availability, the Court determines that supervision may also be provided by one of the Children's nannies employed by Plaintiff or another supervisor stipulated to in writing by the parties. To the extent that C.L. or another paid supervisor provides supervised access services, the fee shall be apportioned between the parties in the following manner: ninety-five percent (95%) by Plaintiff and five percent (5%) percent by Defendant. To the extent that the Children's nannies provide supervised access services, the Plaintiff shall be solely responsible for the costs. The Court has directed this allocation of parenting time expenses between the parties taking into consideration the economic realities of both parties (Gray v. Tyson, 205 AD3d 720 [2d Dept 2022]; Michael R. v. Aliesha H., 155 AD3d 1042 [2d Dept 2017]).^[FN421]

As this Court finds that there has been an undisputed history of the Children traveling with Plaintiff for employment-related travel, Plaintiff shall be permitted to continue to travel with the Children for employment related travel to locations, including, but not limited to, the country of Jamaica, State of Colorado and Hamptons, New York. During such employment-related travel, the Children's Access Periods with Defendant shall continue to the extent Defendant elects to engage in such access time and Plaintiff shall be responsible for Defendant's travel to and from such locations (i.e., plane or train tickets), Defendant's lodging at location (hotel room or other housing), Defendant's transportation at location (i.e., vehicle rental), with Defendant being solely responsible for all other costs (i.e., food, entertainment, etc.). To the extent Plaintiff shall engage in employment-related travel, he shall notify Defendant at least two weeks in advance of such travel via e-mail.

Defendant shall further have daily FaceTime calls with the Children during days when she does not have Child Access Time with the Children, which shall be facilitated and monitored by Plaintiff, which shall begin on such days at 7:00 p.m. and end at 7:10 p.m. Plaintiff shall have FaceTime calls with the Children during Defendant's Vacation Access Time with the Children.

D. Prenuptial Agreement.

The Appellate Division Second Department has set forth the manner in which a trial Court shall evaluate the enforceability of a prenuptial agreement:

""[D]uly executed prenuptial agreements are generally valid and enforceable given the strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements" (Herr v. Herr, 97 AD3d 961, 962, 949 N.Y.S.2d 786 [internal quotation marks omitted]). "An agreement between spouses which is fair on its face will be enforced according to its terms unless there is proof of unconscionability, or fraud, duress, overreaching, or other inequitable conduct" (McKenna v. McKenna, 121 AD3d 864, 865, 994 N.Y.S.2d 381). The party seeking to set aside a prenuptial agreement " 'bears the burden to establish a fact-based, particularized inequality' " [*66](Petracca v. Petracca, 101 AD3d 695, 698, 956 N.Y.S.2d 77, quoting Matter of Greiff, 92 NY2d 341, 346, 680 N.Y.S.2d 894, 703 N.E.2d 752).

"An unconscionable bargain is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, *1515 the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense" (Morad v. Morad, 27 AD3d 626, 627, 812 N.Y.S.2d 126). While "an agreement is not unconscionable 'merely because, in retrospect, some of its provisions were improvident or one-sided' " (Schultz v. Schultz, 58 AD3d 616, 616, 871 N.Y.S.2d 636, quoting O'Lear v. O'Lear, 235 AD2d 466, 466, 652 N.Y.S.2d 1008), "[a]n agreement that might not have been unconscionable when entered into may become unconscionable at the time a final judgment would be entered" (Taha v. Elzemity, 157 AD3d 744, 745—746, 68 N.Y.S.3d 493). (McEvoy v. McEvoy, 219 AD3d 1513 [2d Dept. 2023]).

Here, the Notice to Admit included the following pertaining to the Prenuptial Agreement:^[FN422]

"4. The parties signed a prenuptial agreement on October 17, 2011. A true and accurate copy of the prenuptial agreement is attached hereto and made a part hereof as Exhibit "7". Each of the parties' signatures to the Prenuptial Agreement were acknowledged by a Notary Public.

5. The prenuptial agreement provided for, inter alia:

(i) a waiver of maintenance by both parties as defined by DRL §236(B)(1)(a);

(ii) a waiver of equitable distribution by both parties as defined by DRL §236(B)(1)(b);

(iii) a waiver of any rights or claims against the other party for separate property as defined by DRL §236(B)(1)(d);

(iv) all monies earned during the marriage shall remain the separate property of the party who earned such monies;

(v) a waiver of increase in value of the other party's separate property regardless of whether such appreciation is due to the efforts and contributions of the party who does not own the property;

(vi) all property acquired solely by one party during the marriage, including any increase in value of the property, shall remain the sole and exclusive property of that party and be deemed that party's separate property;

(vii) all property acquired jointly by the parties shall be considered marital property and shall be dived equally between the parties;

(viii) a waiver of any rights or claims to each other's present or future pension, profit sharing, retirement, and/or disability income, assets, or benefits, including any contributions to and/or appreciation in value thereof;

(ix) in the event of divorce, separation or marital conflict, each party is responsible to pay their own attorney's fees, costs, disbursements and expenses of litigation.

6. A video was recorded of the signing of the prenuptial agreement by the parties. A true and accurate copy of the video is contained on the USB attached hereto and made a part hereof as Exhibit "65".

7. True and accurate copies of emails between the office of T.B., M.C., and A.R. regarding the prenuptial agreement are attached hereto and made a part hereof as Exhibit "26", and uploaded to NYSCEF as Doc. No. 285."

Upon review of Exhibit 65, being the video of the execution of the Prenuptial Agreement included as Exhibits 65.a and Exhibit 65.b, the video depicts Defendant in an apparent jovial mood speaking mostly in English. During the portion of the video wherein Defendant communicates with her then attorney, A.R. (hereinafter "Attorney A.R."), Defendant confirms that she is there to sign a prenuptial agreement ^[FN423] and is currently represented by an attorney who she identifies as Attorney A.R.^[FN424] Moreover, the video depicts Defendant's confirmation in the affirmative of the following: (1) she is able to properly communicate with Attorney A.R., both in English and her native language, Russian; (2) any questions that the Defendant had regarding the prenuptial agreement were answered and explained by Attorney A.R.; (3) the content and the context of the prenuptial agreement was explained, in that it would supersede the rights Defendant would have as a spouse in the State of New York; (4) that if divorce should happen, the extent of Defendant's rights were outlined within the agreement; (5) that Defendant confirmed that she wished to execute the prenuptial agreement that day, fully understanding what she was signing; (6) that Defendant was entering into the agreement freely and voluntarily, and was not threatened, forced, or coerced into signing the agreement; and, (7) that Defendant was not under the influence of any alcohol or drugs at the time of the video.

Thereafter, in the video, both parties execute the Prenuptial Agreement, which this Court has reviewed and determines to be one which is fair on its face. Despite Defendant having the burden of proof to set aside the Prenuptial Agreement, aside from her own opening statement at the hearing, she declined to call any witnesses at the hearing.^[FN425] The Court determines that Defendant, who sought to set aside the Prenuptial Agreement, has not met the burden of proving unconscionability, fraud, duress, overreaching, or other inequitable conduct. Nor has Defendant provided any support that the Prenuptial Agreement is unconscionable, either at the time of execution or at the time a final judgment would be entered. Accordingly, this Court determines the Prenuptial Agreement to be valid and the terms of which shall be enforced in this action.

E. Request for Other Relief.

Any relief sought by either party, pertaining to the custody trial and framed-issue hearing, specifically not granted or otherwise addressed herein is denied, while all remaining issues not addressed at the custody trial and framed-issue hearing shall be referred to a later trial to be held in this action to be scheduled at a status conference which shall be held as scheduled herein.

* * *

Based upon the foregoing, it is hereby

ORDERED that Plaintiff is hereby awarded sole legal and physical custody of the Children as set forth herein, subject to access time of the Defendant as delineated herein; and it [*67]is further

ORDERED that the Prenuptial Agreement is hereby determined valid, the terms of which shall be enforced in this action; and it is further

ORDERED that any relief sought by either party, pertaining to the framed-issue hearing, specifically not granted or otherwise addressed herein is denied, while all remaining issues not addressed at the hearing shall be referred to a later trial to be held in this action to be scheduled at a status conference which shall be held on October 16, 2025 at 2:00 p.m.; and it is further

ORDERED that Plaintiff shall serve Defendant, via e-mail to Defendant's E-Mail Address and overnight Delivery to Defendant's Address, this Decision and Order with Notice of Entry by October 10, 2025, and shall file an Affidavit of Service by that date.

The foregoing constitutes the Decision and Order of the Court.