Family Court, Erie County

Decided on May 15, 2025

Docket No. V-10482-16/21D

Mary G. Carney, J.

[*1]

Before the Court are two (2) competing petitions filed between SM (hereafter "Father") and KLD (hereafter "Mother"). These matters have been pending for over four (4) years; the trial alone spanning thirteen (13) months.

In April 2021, Mother filed an Enforcement Petition seeking compliance with the controlling order. Very simply, all she wanted was for Father to take the children to their regularly scheduled activities and allow them to complete homework during his parenting time. The court issued a temporary order directing this in May 2021, but conflict and compliance issues continued unabated. As the case progressed into 2022, Father's relationship with the parties' daughter A (hereafter "A") completely deteriorated, leading the court to suspend Father's court ordered parenting time with A on motion of her attorney.

In September 2021, Father filed a modification petition containing a long list of allegations against Mother relative to what he perceives as her many shortcomings as a parent including but not limited to her lack of communication with him, her failure to seek his input on decisions relating to the children's health, education and welfare, her alleged over scheduling of the children and general neglect of their wellbeing.

Because of the profound changes in family dynamics that manifested during this overly convoluted and drawn-out proceeding, all counsel agreed that Mother's petition for enforcement would be treated as a modification petition. Both parties and all counsel stipulated that the pleadings would conform to the proof pursuant to NY C.P.L.R. 3025(c). Therefore, in addition to Mother seeking a finding of contempt against Father for willfully violating the parties' prior Erie County Family Court Order dated August 2017, both parents seek modification of custody and access of their children, A (15) and S (12) (hereafter "S").

Testimony was heard on the following days: February 5, 2024, March 1, 2024, April 12, 2024, April 23, 2024, June 10, 2024, August 21, 2024, August 23, 2024, December 2, 2024, December 3, 2024, December 16, 2024, February 28, 2025, and March 10, 2025. In addition to Mother and Father, the Court heard from six (6) other witnesses: Nancy F (Children's Counselor), Meegan S. (Court Appointed Reunification Counselor), Jamie M. (Paternal Aunt), Barbara D. (Maternal Grandmother), Gregory T. (Mother's Companion) and Trisha H. (Father's Fiancé). The court held separate in camera conferences with A and S on April 18, 2025. Counsel for Father opted to compose a written closing argument which was received April 18, 2025. All other counsel made oral summations on March 10, 2025.

This court has had the unique opportunity to evaluate and observe the demeanor, temperament and sincerity of the witnesses and weigh their respective character and credibility. This court has further considered the pending petitions, the thirty-nine (39) exhibits received in evidence as well as the in camera conferences with A and S. Now, together with the applicable statutory and case law, the court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

History/Shared Background

A brief history of what led to the controlling order is necessary to give context to the high level of dysfunction within which this family operates. The parties met sometime in 2009, when Mother was around 22 years old, and Father was around 41 years old. Both of their children were born out of wedlock: A in February 2010 and S in May 2013.

The parties separated in 2016 and have been ensnared in protracted litigation ever since. The separation experience and initial custody proceedings were marked by significant conflict. A check of the domestic violence registry reveals fourteen (14) temporary civil orders of protection in favor of Mother and the children against Father issued by Erie County Family Court between May 2016 and August 2017. The court takes judicial notice of an Amherst Town Court criminal Order of Protection against Father in favor of Mother upon Father's conviction of Harassment in the Second Degree [PL 240.26 (1)] in August 2016. He was directed to have no contact with Mother from August 25, 2016 through August 25, 2018.

The parties began their initial custody proceedings in Erie County Family Court amid this backdrop of strife and chaos. In all, the court has been presiding over matters related to this family for nearly a decade and even with multiple attempts at therapeutic intervention, their dynamic never improved. Instead, it has deteriorated to an exceptionally bleak and intractable state. This court is hard pressed to find a way to repair family relationships amid the scorched earth without ordering intensive, corrective therapeutic intervention.

A comprehensive custodial evaluation was conducted by Dr. Frank A. during the parties' initial custody proceedings. Petitioner's Exhibit 11 in evidence is a copy of Dr. A.'s original report dated February 4, 2017. At that time, Dr. A. recommended sole custody to Mother with a routine access schedule for Father comprised of alternate weekends and Wednesday evenings with holidays, school breaks and days of special meaning being divided fairly. Dr. A. also recommended that Father engage in therapy with Dr. David H. to gain insight into how his tendency to fight through the children has negatively impacted them, particularly A. Dr. A. specified that any new pattern of fighting through the children or coercive control should be considered a change in circumstances for either party to modify custody. (See: pages 84-85 of Petitioner's 11)

In April 2017, the court ordered an update to this report to address what if any impact two (2) new developments might have on recommendations made in Petitioner's 11. First, Father was making new, serious allegations that Mother was physically abusing A and drugging S at night. Additionally, Father admitted to personally reviewing, copying and publicly disseminating certain portions of Petitioner's 11 (just the portions that highlighted Mother's shortcomings) in contravention of the court's policy. A transcript of the April 2017 proceeding is in evidence as Petitioner's Exhibit 15.

Petitioner's Exhibit 12 in evidence is a copy of Dr. A.'s updated report dated May 17, 2017. Father arrived for his interview with Dr. A. armed with what he believed to be "evidence" of Mother's abuse, none of which supported his allegations in that his assertions were determined to be exaggerated or worse, fabricated, to vilify Mother. Dr. A. opined that both children were so inundated and overexposed to conflict by Father that they appeared anxious, overwhelmed and saturated to the point that their statements could no longer be considered reliable. As a result, Dr. A. concluded Father should be directed to complete a course of therapy with Dr. David H. to address how the "elements of his personality (i.e. gullibility, hysteria, insightlessness, coercive control and vilification) that have contributed to the dreadful circumstances that permeate the children's everyday lives." (See, pages 20-21, Petitioner's 12).

A was described as a "sad and dejected" child who expressed a desire to spend more time with Father. Dr. A. opined this may represent a sign of insecure attachment to him rather than genuine affinity for him. (See, pages 17-18, Petitioner's 12). Ultimately, Dr. A. retracted his original recommendation for Father's parenting time, suggesting that it be daytime only and [*2]supervised by Father's brother-in-law, Walter M. He strongly recommended (for the second time) that Father engage in counseling/parent coaching with Dr. David H. Dr. A also opined that "any further vilification or denigration of Mother either direct or indirect by Father should constitute grounds for agency supervised access." (See, page 22, Petitioner's 12). Remarkably, Father's pattern of denigrating and vilifying Mother has only intensified over time.

After this second evaluation, the parties resolved their initial custody proceedings by agreement. Petitioner's Exhibit 5 is their Custody & Access Agreement, incorporated into a court order dated August 3, 2017. Pursuant to that agreement, Mother was granted sole custody and final decision-making authority, subject to input from Father. Should Father disagree with any decision made by Mother, his remedy was to petition a court of competent jurisdiction.

Both parties agreed to refrain from denigrating the other parent. Both parties were granted equal and independent access to all the children's health, education and welfare records and providers.

They further agreed to refrain from "unreasonably scheduling activities for the children on the other parent's access times and to discuss and agree on future activities. Once activities are scheduled, each party shall endeavor to ensure that the child attends same." (See, page 6, Petitioner's 5). This language became one of Father's chief complaints against Mother — that she "unreasonably scheduled" new activities "on his time" without his consent. In fact, the children have been enrolled in ordinary enrichment activities over the years that fell on both parents' parenting time, not just Father's. Due to the active Order of Protection between them, the parties agreed to only communicate via email thereby making the provision that they "discuss and agree" on activities fictional at best.

A specific access schedule was set forth delineating Father's regular parenting time with the children which increased over several months from Sundays and Wednesdays to alternate weekends and Wednesday evenings. Holidays and vacations were all spelled out in detail, as was a provision for Father to continue in his individual therapy with Dr. Lou LaB. until successful competition. Dr. LaB. was to be provided copies of Petitioner's 11 & 12 in evidence (Dr. A.'s reports), as well as HIPAA releases so that he could communicate with the children's then attorney, David Frech, Esq. To date, the court has received no credible evidence that Dr. LaB. performed the parent coaching/counseling that was recommended by Dr. A.

The parties agreed that the passage of six (6) months would be a change in circumstances for either of them to re-petition the court to modify custody and access. Within eight (8) months, Father filed a Petition seeking modification of the August 2017 order. At this point, the Attorney for the Children (David Frech, Esq.) expressed growing concerns for his clients' mental health and indicated his intention to substitute judgement based on what he perceived to be serious undue influence placed on A and S by Father.

The Attorney for the Children requested another updated report by Dr. A., and the parties engaged Dr. A. a third time. Petitioner's Exhibit 13 in evidence is Dr. A.'s third report. Petitioner's Exhibit 16 is the transcript of the April 2018 proceeding in which the Attorney for the Children began substituting judgment.

A trial was commenced in early 2019. Transcripts from that trial were received in evidence as Petitioner's Exhibits 14 & 17. Due to changes in both parents' counsel, the matter was postponed, to afford new counsel the opportunity to prepare. Subsequently, a motion was brought by Mother's new counsel seeking to preclude Dr. A.'s testimony & the third updated report (Petitioner's Exhibit 13) from being received in evidence. The basis of the preclusion [*3]motion was an assertion that Father engaged Dr. A.'s wife, Dr. Linda N., as a counselor during the period in which the parties also were engaged with Dr. A. for Petitioner's 13.

In February 2020, the court granted Mother's motion and issued an order precluding the testimony of Dr. Frank A. due to an appearance of impropriety and "multiple relationship"FN1 with Father. Regardless, after this motion was heard the trial never continued to conclusion. By March 2020, all pending petitions were withdrawn. Leading us, at long last, to the matters now pending before the court which were filed approximately one year later in April 2021.

Mother's Case -in-Chief

Mother called two witnesses to the stand: herself and the children's mental health counselor, Nancy F.

Witness: Nancy F.

Nancy F. is a Licensed Clinical Social Worker with a master's degree in social work. She has been employed full time as a Social Worker for the Williamsville School District for twenty-nine (29) years. She also works part time in her own private practice, counseling patients from ages four (4) to eighty-two (82). She has been in private practice approximately nine (9) years.

Ms F. has been A's counselor since the summer of 2016 and S's since early 2017. Mother enrolled the children in counseling with Ms. F. for different reasons. A was experiencing anxiety and adjustment issues due to her parents' separation that were compounded by adverse childhood experiences, specifically exposure to volatility, coercive control and conflict in her parents' relationship. S was enrolled to address his impulsivity and problems he experienced controlling his verbal and physical aggression. She described both children as struggling to process emotions although S's impulse control was later determined to have an additional biochemical component due to his diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) in 2019.

The court found Nancy F. to be a very reliable and credible witness. She presented as calm, factual and extremely knowledgeable. She testified that she has met with both parents, albeit Mother more often than Father.

She described her interactions with Mother as informative and focused on current events happening in the children's lives to give context for their counseling sessions. Ms. F. testified that Mother does not paint Father in a negative light or name call, although she expresses frustration with Father's behaviors that cause problems for the children.

Conversely, Ms. F. described Father as stuck in the past, focusing his attention more on pleading "his case" and denigrating Mother rather than his children's wellbeing. Ms. F. testified that she perceived Father as coaching the children to use their counseling sessions to support him in court rather than an avenue for their own authentic healing. After confronting him about this very issue, Ms. F. testified that Father made it clear that he intended to use his children's counseling to support his case in court.

Though he signed a waiver not to record any interactions with Ms. F., Father records every conversation he has with her and shares "snippets" of them out of context to bolster his [*4]position. When asked whether Father has made any improvements in his behavior since 2016 relative to vilifying Mother, Ms. F. responded, "No."

Examples of Father's lack of insight and clear hatred of Mother can be found in several exhibits received in evidence. Petitioner's Exhibit 3A (emails sent to counsel and copied to Nancy F and other professionals), Petitioner's Exhibit 10 (emails between the parties and professionals), Respondent's Exhibit G (S's Medical Records), Respondent's Exhibit B (Meegan S.'s records containing texts and emails from Father). These communications are all self-explanatory and generally demonstrate Father's inability to express himself rationally or thoughtfully when it comes to the mother of his children.

Though Father repeatedly refers to Mother as an "addict" or "degenerative drunk" Ms. F. testified that she has no concerns about Mother's use of substances or her parenting of the children. Conversely, she did express serious concerns regarding Father's irrational behavior as negatively impacting both children, but most especially A.

Ms. F. confirmed that when A is under extreme stress, she engages in self-harming behavior like pulling out her eyelashes, hair, eyebrows or biting herself. She acknowledged that the catalyst for A's anxiety sometimes changes but Father's behavior has always been a significant trigger. Additionally, all credible testimony revealed that Father genuinely favors S, which adds to A's considerable sadness and resentment.

Dr. A.'s reports in evidence as Petitioner's 11, 12 & 13 (drafted in 2017 & 2018 when A was just 7 and 8 years old) all repeatedly describe A as overwhelmed, lost, sad, dejected, long suffering and angry. It should be no surprise to anyone that as time went on, without Father gaining insight or modifying his behavior, A's despair worsened.

Nancy .F testified that on two occasions, once in February 2022 and again in August 2022, A's thoughts of self-harm were acted upon. In February 2022 A's then attorney, David Frech, Esq., filed an Order to Show Cause (Petitioner's Exhibit 8) seeking to suspend Father's contact with A after she tried cutting herself with a pizza cutter. The court granted the motion, suspended Father's court ordered access with A and directed that Father and A engage in counseling with Meegan S., LCSWR. (See, Petitioner's Exhibit 4 Temporary Order dated March 7, 2022)

Despite A's attorney, counselor and the court taking A's actions seriously, and making appropriate adjustments to protect her, Nancy F. testified that Father dismissed A's safety plan as unnecessary. Ms. F. testified that Father believed A was not acting out a suicidal ideation but rather "doing this as an excuse to use foul language" in his home. After reunification counseling with Ms. S. began, A acted out a second suicidal ideation in August 2022, by grabbing a weighted ball at a swimming party and letting it drag her down to the bottom of the pool to drown herself.

Nancy F. testified that Father's conduct in refusing to take the children to their activities and refusal to allow them to bring the Chromebooks for schoolwork significantly increased A's anxiety. Father's failure to take A to her activities compounded not only her anxiety but affirmed her feelings of worthlessness and being disregarded by him.

It is uncontroverted that A's last contact with Father was in August 2022. Ms. F testified that the stress of working with Meegan S. to reunify with Father proved to be too much for A. She further testified that since their separation, A has flourished. She presents with a more relaxed disposition and is thriving academically, athletically and socially. Ms. F. was clear throughout her testimony that a resumption of access between A and Father would be very [*5]detrimental to A's mental health and development.

With respect to S, Ms. F. acknowledged that Father is intensely focused on how S's prescribed medication affects his body weight. Ms. F. testified that S was officially diagnosed with ADHD in October 2019 and was prescribed Methylphenidate (known more commonly by its brand-names Ritalin or Concerta).

Father refuses to dispense S's medication and makes it known to everyone, including S, that he disapproves of this treatment. Father routinely refers to S's medication as "an adult dose of speed." (See: Petitioner's Exhibit 3A, emails dated November 1, 2023 and August 14, 2023)

Ms. F. testified that the medication seems to be helping S. Medical records received in evidence as Respondent's Exhibit G support this belief. S's school records received in evidence as Respondent's Exhibit H demonstrate decreased impulsivity and better behavior since the addition of Methylphenidate into his treatment. A thorough review of Respondent's G demonstrates that S's pediatrician has no concerns about S's growth or weight, routinely describing him as a "well-nourished and well developed" child.

Ms. F. testified that S has difficulty transitioning between Mother and Father's households, reporting that he is often verbally and physically aggressive with Mother and A upon return to Mother's household. Ms. F acknowledged that Father is not cognizant of his own behavior or how it negatively impacts S. She testified that Father has done nothing to improve or gain insight. Though Ms. F. concluded that S certainly enjoys being the favored child, she did not support increasing S's time with Father.

Witness: Mother

Mother is 38 years old. She did not testify as to her level of education but based on her testimony the court is aware that she is employed full time in a hospital as a registered nurse. She resides in Williamsville, New York in a home owned by her companion, Gregory T. Mr. T., Mother, A and S are the only residents of that home.

No proof was received as to Mother's income or the suitability of the accommodations. The preponderance of the evidence revealed that Mother pays for private school tuition for each of the children and all their extracurricular activities without contribution from Father. No credible evidence was put before the court to show that the children are less than adequately clothed, fed or housed in Mother's care.

The court found Mother to be a relatively candid and credible witness. She presented as calm, reasonable, discouraged and concerned. She expressed appropriate levels of emotion and frustration when testifying about A's incidents of self-harm and Father's behavior. Mother became slightly defensive on cross examination when confronted with some of her more colorful emails to Father (Petitioner's Exhibit 10) that were sarcastic and confrontational. Still, between the two parents, Mother is considerably less antagonistic towards Father than he is towards her. Given the level of vilification she has endured, her responses were mild, though not endorsed as appropriate. Mother presents as exasperated with Father and still, substantially more self-aware and emotionally equipped to modify her behavior and refrain from unhelpful communication.

Mother's complaints about Father generally focused on how his behavior negatively impacts the children, rather than disparaging him as a person. One of her chief complaints was Father's complete lack of support for the children's involvement in enrichment or extracurricular activities. Over the years, Mother has enrolled the children in various activities in which they expressed interest; for example, cheerleading for A, karate and flag football for S.

The children enjoyed these activities but eventually withdrew from all of them because of Father's routine failure to bring them to practices or games on his parenting time. Additionally, Mother testified that Father and his family belittled A's participation in cheerleading so much, mocking the uniform and make-up, that A abandoned the sport. This denigration was supported in prior testimony of Ms. M. (Father's sister) and Trisha H. (Father's Companion) received in evidence as Petitioner's 14 & 17.

Both children are presently enrolled in just one activity — soccer, and A in particular, plays at a highly competitive level. By all accounts, A is an exceptionally gifted athlete who expresses a true passion for the sport and excels at it. Mother teared up with pride and joy describing how A was the only freshman in her school to earn a place on the varsity soccer team.

Mother delighted in describing how both A and S were chosen to participate in an elite soccer camp in Manchester, England last summer (2024) — an opportunity that she not only pursued on their behalf but also financed and executed without any assistance from Father. Only fifteen (15) children from the United States were selected to participate, and Mother ensured that A and S were two of them. Mother's demeanor and actions demonstrate how much she adores her children, supporting both A and S in everything they do.

It was uncontroverted at trial that Father and his companion, Trisha H., do not support the children's involvement in any extracurricular activities. Both Father and Ms. H. testified that they found it "impossible" to get the children to their activities and accused Mother of intentionally over scheduling the children to interfere with Father's "family time." The weight of the evidence did not support this accusation. There was no evidence put before the court that Mother unreasonably schedules activities for the children to interfere with Father's parenting time. It appeared to the court that Mother simply sought to foster the children's growth and natural character development by exposing them to different activities.

Mother testified that Father's failure to get A to soccer practice and games on his parenting time created profound amounts of anxiety and distress for A. Mother also appeared to understand that given S's diagnosis, consistency in routine and burning off physical energy on the soccer field helps to reduce his ADHD symptoms.

Mother testified that she keeps Father informed about the children's activities and appointments by sending him a calendar with the events cataloged on every day, every month. These calendars were received in evidence as Petitioner's Exhibit 9 and AFC Exhibits 4 and 5. Mother testified that Father has never even once responded to her about this information. She stopped sharing A's calendar of events after Father's access with A was suspended.

The preponderance of the evidence confirmed and validated Mother's allegations that Father has no regard for the children's involvement in extracurricular activities. Mother demonstrated appropriate concern for how Father's denigration of their participation in sports negatively impacts both S and A's well-being.

Credible testimony was received through Nancy F and Mother that Father refused to allow the children to bring their school issued Chromebooks with them during his parenting time, even despite the court specifically ordering him to do so (See, Petitioner's Exhibit 7). Mother testified that Father's behavior in this regard negatively impacted the children's grades and performance in school and created needless anxiety.

Father's Case -in-Chief

Besides himself, Father called four (4) other witnesses to the stand: Meegan S. (Court [*6]Appointed Reunification Counselor), Jamie M. (Paternal Aunt), Gregory T. (Mother's Companion) and Trisha H. (Father's Companion).

Witness: Meegan S.

Meegan S. is a Licensed Clinical Social Worker with a master's degree in social work. She was appointed to provide family therapy for Father and A in March 2022. (See, Petitioner's Exhibit 4 in evidence). Ms. S. was qualified as an expert witness. AFC Exhibit 1 in evidence is a copy of Ms. S.'s curriculum vitae demonstrating her level of education and expertise.

The court found Meegan S. to be a very reliable and credible witness. She presented as calm, factual and knowledgeable. She testified that she met with A eighteen (18) times on her own and at least four (4) times with Father. Ms. S. understood that she was appointed to assist in reunifying and strengthening A's relationship with Father. She gathered information from A's attorney and Father before ever meeting with A. Despite her best efforts, this therapeutic intervention was unsuccessful in reuniting A and Father.

Ms. S. testified that A genuinely feels rejected and unloved by Father. She testified that A often expressed feeling like she had to be the adult in her father-child relationship and that she felt she was doing all the emotional labor to try and change herself to have a functional relationship with Father. Ms. S. testified that A very much wants Father to love her for who she is. She is also emotionally mature enough to understand that Father's actions signal that he does not love her for who she is — his love for her is entirely conditional upon her being who he wants her to be.

This emotional manipulation creates profound anxiety, uncertainty and sadness for A. The record is replete with examples of Father's deficiencies when it comes to his relationship with A. Father does not support A's passion for soccer. Father denigrated A's participation in cheerleading so much so that she withdrew from the sport entirely. Father openly supports S as his favorite child. Not once did he compliment A's academic or athletic achievements. Not once did Father express remorse for the breakdown of his relationship with A.

Ms. S. testified that Mother generally remained neutral and factual in her communications with her. Although Ms. S. felt "fear" held Mother back from being fully supportive of A's relationship with Father, she found Mother's fear to be well supported due to A's expressions of stress, self-harm and feeling unwanted by Father. Mother was cooperative with Ms. S. in that she scheduled and brought A to every session.

In contrast, Father habitually denigrated Mother to Ms. S.. Ms. S. testified that Father blames Mother entirely for his falling out with A. Ms. S.'s entire file was received in evidence as Respondent's Exhibit B, which includes all her communication with both parents. Respondent's B corroborates her testimony regarding her observations of each parent's demeanor.

Father and A's first joint session with Ms. S. was June 23, 2022. Although Ms. S. testified that she coached Father to keep things positive and focus on the present, Father began to "scold" A and bring up the past. Ms. S. had to re-direct Father multiple times. As a therapeutic exercise, she asked A and Father to write each other a letter. A expressed hesitation in doing so for fear that Father would simply use it for court. Father drafted what was received in evidence as Respondent's Exhibit C and commonly referred to as "The Book" throughout trial.

In Respondent's C, Father expresses love for the little girl A once was, and repeatedly criticizes and insults the young woman she has become. Ms. S. testified that she could not show A "The Book" for fear that it would increase her feelings of self-harm and make her feel blamed [*7]for the troubled relationship she has with Father. Ms. S. was unequivocal that A is not to blame for breakdown of her relationship with Father.

Additional attempts at reunification were made in July 2022 and twice in August 2022, but it was around this time that A acted out another suicidal ideation by attempting to drown herself with a weighted ball. After this event, there was a lapse in counseling with Ms. S.. After this, A began to express more rejection of the relationship and a refusal to engage with Father. Ms. S. testified that A felt Father would never change, and she was exhausted with trying to repair a relationship that he did not prioritize.

Father has not attended any of A's soccer games even though Ms. S. suggested he should do this to show support for her. Ms S. testified that Father refuses to accept ownership for the deterioration of his relationship with A. Until that happens, A will not see his attempts to get back in her life as sincere or meaningful. Worse, without specific, corrective, therapeutic intervention, Father's lack of insight and relentless vilification of Mother could do more damage to A. Ms. S. opined that Father lacks the insight necessary to change his behavior on his own. In fairness to him, it is impossible to learn a new swim stroke when one is drowning.

Witness: Gregory T.

Father called Gregory T., Mother's live-in companion, to the witness stand on February 28, 2025. Attorney James Harrington, Esq. appeared with Mr. T. as he represents him in an unrelated matter pending in federal court, wherein Mr. T. is a defendant. Mr. Harrington advised Father's counsel in advance of calling Mr. T. to the witness stand that he would not permit his client to give any sworn testimony in this matter whatsoever while the other matter was still pending. Despite this, Father's counsel persisted and asked several questions to which Mr. T. answered with, "On the advice of counsel, I refuse to answer the question pursuant to my rights provided by the 5th Amendment." After asking several questions and getting the same response, all counsel agreed that Mr. T. could be excused from the witness stand.

All counsel agreed that Father's counsel could submit written questions to Mr. T. through his attorney James Harrington, Esq. On March 10, 2025, the written questions presented were objected to by all of the attorneys as being leading, confusing and improper. Father's counsel was given an opportunity to submit new questions; however, they were submitted after the close of proof. Therefore, they were not provided to Mr. T.'s counsel and no credible information was received through this witness.

Calling Mr. T. to the witness stand, knowing that he would be unable to provide sworn testimony, seemed more of an attempt to embarrass the witness and/or harass Mother than to elicit relevant information in support of Father's case in chief. Mr. T.'s status as a defendant only fuels Father's suspicion and denigration of Mother. No credible evidence was received to demonstrate what, if any, impact (positive or negative) Mr. T.'s presence has on the children.

Witness: Jamie M.

Ms. M. is Father's sister, A and S's paternal aunt. She testified that she is with her brother "all the time" as he resides just one (1) minute from her own home. In fact, she previously testified on Father's behalf and asserted that she owns the home in which Father resides. (See: Page 16, Petitioner's 14). Though Ms. M. appears to be a devoted sibling, her testimony on his behalf was completely unreliable.

Ms. M. presented as influenced and affected, exaggerating small transgressions of Mother's to emphasize her narrative. For example, she testified that Mother's "mood swings [*8]ruined every single holiday." When asked, what did Mother do exactly, she explained, "Once, I put onions on the olive salad. She was so pissed! She got up in a huff and stormed out!"

When details of her narrative were challenged on cross examination, she became defensive and evasive. Mother's attorney asked Ms. M. if she was taking any medication that might affect her memory. She answered that she takes a nerve blocker (gabapentin) that may affect her ability to recall times and dates but emphatically not her memory. In prior testimony, she repeatedly stated under oath that her memory was impacted significantly by the nerve blocker she takes. (See, Pages 20, 21, 41, 47, Petitioner's 14)

Ms. M. appeared to be programmed to vilify Mother and, much like her brother, made sweeping accusations of Mother's violent temper and mood swings. She recalled in vivid detail how once when she was complaining of being tired, Mother gave her an "Adderall" and within an hour she was "crawling out of her skin." She offered a considerable amount of vague testimony about Mother being "not normal" and how she would become "hostile on a dime" about "odd things" like if "a wrong spoon touched a different spoon" Mother would "freak out."

She demeaned Mother's parenting as "harsh" and stated that Mother often grabbed and yelled at the children in a way that Ms. M. found shocking and upsetting. She also described Mother as being very abusive to Father, even breaking a chair over his back sometime in 2012 and laughing about it.

Ms. M. was shown a portion of Respondent's Exhibit DFN2, the poster sized photo of a child with bruises on her shoulder, face and arm. Ms. M. stated she took that photo of A "the spring after they separated because she was riding her bike . . . probably 2017." Later, Father's companion, Trisha H., would testify that she took the photo depicted in Respondent's Exhibit D with Ms. M.'s phone, and that A told her in confidence that she sustained the bruising from a beating by Mother. A was seven (7) when this photo was taken, at a time when she was described by Dr. A as "unreliable" due to Father overwhelming her with "leading questions and innuendo."

The photo contained in Respondent's D has long been the focus of Father's vilification of Mother. He insists that it is evidence of her abuse. Meegan S. testified that the image depicted in Respondent's D was sent to her seven (7) times by Father as evidence of Mother's abuse. Even though she is a mandated reporter, she took no action because she was not even sure the photo was of A, and it was certainly not current. Nancy F testified that Father sent her the same photo several times alleging that the bruises were caused by Mother's abuse. She is also a mandated reporter but took no action because she determined Father's narrative to be unsupported by credible evidence.

Petitioner's Exhibit 12 in evidence (Dr. A's 2nd updated report) is most elucidating when it comes to the truth of what happened to A in the spring of 2017. He interviewed Father, Mother, the children's school principal, school counselor, a CPS caseworker and a neighbor who actually witnessed how A sustained the bruises depicted in Respondent's D. Based on all of Dr. A's collateral interviews, it was determined with certainty (in 2017) that A sustained the bruises [*9]depicted in a bicycle accident not at the hands of her mother.

Respondent's Exhibit K in evidence contains Father's original complaint to the police about A's bike accident. The records show that his accusations were thoroughly investigated by the police and child protective services. Like Dr. A, the caseworker spoke to several collateral sources before confirming that Father's accusations of abuse were false. (See, Page 15, Respondent's K, "[Responding Officer] spoke with Megan from CPS. Megan stated she has no concerns with the children's welfare. Megan stated she spoke with the children's teachers, school nurse, pediatrician, therapists and family members and no one has any concerns for the children while in mother's care."). Disturbingly, despite all the evidence to the contrary, Father's false narrative persists even eight (8) years later.

Witness — Trisha H.

Trisha H. is Father's fiancé of nine and half (9½) years. Ms. H. has testified in prior proceedings between Mother and Father (See, Petitioner's Exhibits 14 & 17). Like Ms. M., she appears very devoted to Father, but her testimony was generally unreliable and unhelpful toFather's case. Ms. H. presents more as a passive-aggressive spokesperson for Father than an independent thinker. She offered a remarkable amount of conclusory and non-responsive testimony.

Ms. H.'s credibility was damaged significantly by her open disapproval of Mother. Much like Jamie M., her tone and demeanor revealed irrational and unreasonable disdain for Mother. She passed judgment on everything from Mother's choices of schools and extracurricular activities for the children to "how she got pregnant [with A and S] on two (2) forms of birth control." She asserted that Father, Jamie M. and Wally M. (Jamie's husband) all question paternity of the children. She has done "a lot of listening" to them trying to understand how Mother got pregnant. Ms. H. opined that she does not see why genetic marker tests should not be conducted on A and S since, if she were asked, she would have no problem doing paternity tests on her own children.

Ms. H. used the same analytic reasoning when criticizing Meegan S. for not giving A "The Book" (Respondent's C), opining that she "would have given that book to [her] girls" if it were her. Ms. H. testified that her "girls" are adults in their twenties. Ms. H. was intimately involved in the preparation of Respondent's C, as she often "takes dictation" from Father to help him communicate with Mother and other professionals involved in the family. She testified that pointing out A's "unacceptable behavior in the home" was therapeutic and could have been a productive tool for reunifying Father and A's relationship. Meegan S., the court ordered expert, testified that she would have never given A Respondent's C for fear that it would cause more damage to her.

Ms. H. was oddly critical of A, even though she has had no contact with her in three (3) years. She offered no positive testimony about A. She admitted that she does not support her participation in soccer. She denied that A is a good student, qualifying the fact that she earns high marks by stating repeatedly that she is "just good on paper" but "belligerent about homework." In fact, she described A as "belligerent" multiple times throughout her testimony.

Ms. H. admitted that she read Dr. A's first custodial evaluation (Petitioner's 11). She is aware that A felt left out (in 2017) but denied that things were deteriorating for her. When she was cross examined about the February 2022 "Pizza Cutter Incident" by A's attorney, she refused to concede that her suicidal ideations and self-harming behavior were real stating, "I thought she got her period. When I heard she was suicidal, I was like — it's a joke!"

Ms. H. simply echoed many of Father's complaints, just in a softer way. For example, she expressed similar concerns regarding S's prescribed medication and how it affects his weight. She testified that neither she nor Father administer S's medication on Wednesdays and every other weekend. As a licensed dental hygienist with a medical background, Ms. H. opined that Methylphenidate "does not agree" with S. More than once, Ms. H. referred to S's ADHD medication as "generic Adderall" and suggested that "Adderall" and "Ritalin" are the same medication. This is factually incorrect and misleading.

Methylphenidate is the active ingredient in Ritalin or Concerta (generally prescribed for children with ADHD, like S). Methylphenidate is not the active ingredient in Adderall which is composed of mixed amphetamine salts. Adderall is generally prescribed for adults with ADHD. These are different medications with different active ingredients. They are not interchangeable.

Ms. H. did corroborate Mother's assertions that Father fails to take the children to their activities. She echoed Father's language stating it was "impossible" for her and Father to get the children where they needed to be. Now that they only have to contend with S's schedule, Ms. H. testified that she and Father let S decide if he wants to go to soccer because, "he has a voice in [their] house."

Ms. H. also corroborated Mother's assertion that the children could not complete their homework at Father's house during the covid pandemic because they did not have wi-fi. Therefore, the children were taken to public places like Wegmans or Sportsplex to complete homework.

Witness - Father

Father is 57 years old. He did not testify as to his level of education. When asked what he did for a living, he responded that he is "a dump truck driver." The court is aware that Father is a self-employed contractor. He resides in Wilson, New York with his fiancé, Trisha H., in a home owned by his sister, Jamie M. No proof was received as to Father's income or the suitability of his accommodations.

Father presented as myopic, histrionic and consumed by irrational hatred of Mother. The court found him to be a woefully unreliable witness. He offered a startling amount of combative, misleading and non-responsive testimony. He often chastised the lawyers when they were questioning him, and even sometimes when they were not. For example, during direct examination by his own attorney, he spontaneously shouted "Turn that picture around!" to A's attorney. Father was referring to the poster of a young, bruised A contained in Respondent's D, which he continuously (and inaccurately) referred to as "proof of the beatings."

Significant investigation was completed in 2017 that confirmed A's injuries were sustained in a bicycle accident. Presumably, Father's counsel was aware of this as the items contained in Respondent's D (the poster, an ink pad and a mannequin head) were moved into evidence against the advice of counsel. Father's insistence on moving these items into evidence and repeating his false narrative only underscored his lack of insight and further illustrated how his disordered, negative and obsessive thinking has reached an intractable, pathological state.

Father was a challenging witness because the content of his testimony was so tangential, and his demeanor was so unruly. Frequent breaks were taken during Father's testimony to gain control of the proceedings. On at least one (1) occasion, the court directed its officer to stand closer to the witness stand after Father began shouting threats at Mother's attorney. Throughout the proceedings, he refused to call Mother by anything other than her surname ("D.") with no honorific. Though he was directed to face forward multiple times, he tended to turn the chair in [*10]the witness box so that he faced the court, aiming his back directly at Mother.

Although Father denied ever being physically abusive towards Mother, he testified that she was very abusive towards him and the children. None of these assertions were supported by any credible evidence. He testified that Mother "put the whole village of Wilson on eggshells" with her violent behavior. When he was asked to elaborate, he shouted, "I was punched by D.! I was kicked by D.! And I was bit by D.!" No credible evidence was received to corroborate these assertions.

Father testified at length regarding physical abuse A suffered at the hands of mother on a Disney cruise. In describing the trip as "a bad movie" he stated that everything was fine and then suddenly "D. grabbed A threw her on the bed and started smacking her bottom." He testified that Barbara D. (the children's maternal grandmother) witnessed the whole thing. A's attorney called Barbara D. as a witness to rebut this testimony.

Upon his attorney asking him if he had ever been arrested for domestic violence, Father stated "Not until D. started dating Detective T." The Amherst Police records in evidence as Respondent's Exhibit J demonstrate that Officer Gregory T. never arrested Father. He did investigate a complaint that Father violated a 2016 order of protection in favor of Mother, but Detective T. cleared Father of any wrongdoing and closed the file against him. Another Officer, Gregg R. Huller, was the officer who arrested Father.

Father took no responsibility for the deterioration of his relationship with A — none. He blamed the fallout entirely on Mother for "making it impossible" to have a good relationship with his daughter. The preponderance of the evidence did not support this claim. Father testified that he did everything he could to rebuild his relationship with A. He defined "everything" by stating, "I did everything I was told to do. It's all documented. I followed the court order, and I emailed the counselor once a month. [ . . . ] I did everything the court allowed me to do. I wasn't aware I could send her a card!"

Breaks had to be taken when Father openly questioned A's paternity. Questioning paternity of the children was undoubtedly the most disturbing of Father's stunts, although there were several theatrical moments curated by Father throughout these proceedings. His testimony began with a shocking statement alleging uncertainty about A and S's paternity. He stated that, he "hoped" he was their father but, "there has never been a DNA test." He also "hoped" the court would order Mother to place her fingers on the ink pad and then on the mannequin head contained in Respondent's D to demonstrate that her fingerprints match the bruises in the poster. He emptied a grocery bag of food onto counsel table (Respondent's Exhibit L which was comprised of left over snacks and drinks from the lunches Mother packs for S on Wednesdays) to illustrate that S's appetite is diminished by his prescribed Methylphenidate. The court refused to receive Respondent's Exhibit L in evidence. The court did receive Respondent's Exhibit M which contained three (3) photographs of the uneaten lunch items and one photo of S eating macaroni.

Multiple professionals have investigated Father's concerns and accusations of abuse against Mother — the police, child protective services, Dr. A, Meegan S., Nancy F and the doctors at Amherst Pediatrics. All of Father's claims have been dismissed as unsupported by credible evidence, any yet he refuses to accept the truth. It would seem that the truth is less important to him than vilifying Mother.

Respondent's G is replete with denigration of Mother by Father including several doctor's notes as follows:

• January 14, 2020 (Dad is upset regarding the visitation schedule, perceived bad parenting by mom, and being excluded from medical decisions)

• June 4, 2020 (Long phone discussion with dad. [ . . . ] He thinks that [Mother] has a personality disorder and that Steve may have the same thing)

• October 6, 2022 (Patient presents with dad and dad's girlfriend. [ . . . ] They disagreed with Steven's mom's contentions that he has no problems with the medicine, and they think she may be abusing the medication herself)

• April 11, 2023 (Steve's dad has sent a letter outlining ten areas where he feels we have been remiss in caring for Steve. Most of this revolves around the ADD med he is on, though dad cannot keep from talking about Steve's mother and her problems)

Father staunchly opposes S's use of Methylphenidate to treat his ADHD. The basis for his opposition is multi-faceted: (1) the medication could affect S's heart health, given the Millio family history of heart disease; (2) the medication could be changing S's personality or giving him a personality disorder (like his mother); and (3) the medication is affecting S's appetite and sleep.

Father frequently described S as "sundowning from Adderall" during his weekend parenting time, even though S's physician explained to Father that Methylphenidate metabolizes quickly and would out of S's system by Friday evenings. (See: Doctor's note dated March 12, 2021, Respondent's G)

When S's attorney attempted to correct Father's description of S's medication as "Adderall," he sharply retorted, "Whatever! It's speed! That's a fact!" He cautioned counsel often to "read the black box warnings!" on S's medication. He opined that S might be in "ketosis" because he believed "the Adderall is eating his muscle" and he is losing weight. The medical records in evidence (Respondent G) demonstrate that S is not losing weight. He is consistently described as well-nourished and well developed.

The basic thread of Father's argument has always been and remains that Mother is the enemy — the villain from whom he must save his children. He perceives her as deceitful, intrusive, abusive, neglectful, and mentally unstable. And yet, the predominance of all evidence supports the assertion that Mother has done a very admirable job as A and S's primary parent and sole custodian, despite the chaos Father creates and despite his vilification of her.

Witness — Barbara D.

Barbara D. was called to the witness stand by A's attorney. She is the children's maternal grandmother. Ms. D. was employed for thirty (30) years as a teacher and is presently enjoying retirement. The court found her to be a reliable and credible witness. She presented as calm, sympathetic and factual.

She testified that she was on the Disney Cruise that Father described but denied witnessing Mother smack A's bottom. In fact, she testified that she has never seen her daughter physically discipline her grandchildren. She lived with Mother, A and S for a period of seven (7) years after Mother and Father separated.

In that time, she testified that she had occasion to observe Mother's parenting. When Mother was called to discipline the children, Ms. D. testified that she would observe her separating them, placing them on time outs or sending them to their rooms. She was forthcoming on cross examination when asked if Mother was patient by stating, "Mostly, yes. She has raised her voice one or two times, but we lived together for seven (7) years." When asked if she ever [*11]heard her daughter talk about Father she replied, "Of course." She later qualified that statement by testifying that she has never observed Mother speak negatively about Father in the presence of the children.

Ms. D. was present when A fell off her bike in 2017 and sustained the bruises depicted in Respondent's D. So, in addition to the police reports and Dr. A's report, Ms. D. offers additional contemporaneous, credible testimony that serves to refute and completely invalidate Father's narrative of abuse.

She testified that she observed A's deterioration from a happy, "spunky" child at the beginning of her parent's separation to a sad, struggling and dejected one. She testified that A was markedly different after weekends with Father and observed her isolating and harming herself by pulling out her hair, eyelashes and eyebrows. Since A's separation from Father, Ms. D. testified that she has witnessed A's return to herself — describing her as "back to being a kid" and enjoying life without so much stress.

Ms. D. observed incidents where Father would raise his voice and "go after" Mother. She witnessed him pull her ponytail and smack her on the butt hard. She testified that on at least two (2) occasions, she had to remove the children from what she described as "harmful incidents."

Ms. D. also testified that she called the police on two (2) occasions in 2016 when she was babysitting the children for Mother. This testimony was corroborated by police records in evidence as Respondent's Exhibit K. She testified that Father followed her and the children in his dump truck in violation of the Erie County Family Court order of protection. She testified that although she and the children were upset, the staff at S's day care (EduKids) did a great job distracting them and calming things down.

In Camera — A

The court held an in camera conference with A on April 18, 2025. A is fifteen (15) years old. She is about to complete her first year of high school at The Nichols School, a top-rated private college preparatory school in Buffalo, New York. This cannot be overstated — A is an extremely impressive, thoughtful, engaging and insightful young person. Mother's reaction on the witness stand, when she shed tears of joy and pride when describing A, seemed even more fitting after meeting her. Unequivocally, A is a bright and special young person who will go far in life.

The court was thrilled to meet A after all this time and discover that despite all the adverse childhood experiences she suffered, she remains resilient and remarkably well-adjusted. In all candor, the court did not expect A to engage as fully with the process as she did. Given what she has been through (her parents' chaotic separation, being at the center of a decade worth of protracted, high-conflict litigation, exposure to relentless vilification of Mother, being a less favored child, her own free-fall into despair and final separation from Father), the court expected her to present as angry, burned-out and possibly uninterested. A exhibited none of these traits. She presented as exceptionally polite, charming, astute and mature for her age.

A was found to be very reliable and credible. She was able to articulate her feelings with specificity, thoughtfulness and clarity. She presents as highly intelligent, strong willed and sure of herself. A offered revealing and compelling information relative to her position on parenting time with Father and what led to their separation.

Metaphorically speaking, A is the frog who knew when to escape from the increasingly warming water before the pot boiled. She has done an extraordinary amount of therapeutic work [*12]with Nancy F, and as a result A knows herself well and knows who she wants to be. She cares deeply about her performance in school and on the soccer field, and her passion and effort are rewarded by earning highest honors and varsity letters in a particularly challenging scholastic and athletic environment.

The therapeutic work that A has done and continues to do has given her great insight. She is aware of her Father's shortcomings and to some extent, has made peace with her disappointment in him. In many ways, A understands her father more than he appears to understand himself. She understands that he has work to do to develop insight and regain her trust.

In light of all that was put before the court regarding A, and after taking the opportunity to meet with her at length, the court concluded that A's emotional sophistication and character are sound. She is not an influenced child who is rejecting a parent — she is an insightful, intelligent young person who has the lived experience of being inside the boiling pot and escaping.

A acknowledges that she fell into despair, twice, trying to weather the rising temperature; but in the end, she made a courageous choice to save herself. Based on the totality of circumstances, the court concludes that the emotional bond between A and Father is not severed; however, Father must do the therapeutic work necessary to re-enter her life. This choice is squarely now on his shoulders, not A's.

In Camera — S

The court held an in camera conference with S on April 18, 2025. S was just a few weeks shy of his 12th birthday when we met. He is about to complete sixth (6th) grade at Christian Central Academy, a private, interdenominational college-preparatory school. S is a delightfully charming, endearing and likeable young man. He presented as exceptionally polite, cautious and unfortunately, influenced. Because of this, his testimony was not found to be as reliable as A's.

Unlike his sister, who presents as strong and sure of herself, S presented as naïve and susceptible to undue influence. He is hyper-aware of the fact that A no longer visits with Father, but he appears to lack understanding as to why his family has fractured in such a dramatic way. Worse yet, he appears to have been programmed to share a familiar narrative with the court relative to who in his family are cast as the villains and who are the heroes.

The court was eager to observe S's physical appearance given the amount of testimony that was received regarding his weight. He is undoubtedly slender, perhaps even small for his age, but he seems quite healthy. He did not appear under nourished or underdeveloped in any way.

S presented as alert. His eyes were bright and clear (even sparkling with just a hint of adorable mischief). He sat up straight and conversed easily with the court, albeit cautiously. S smiled freely and often.

In light of all that was put before the court regarding S, and after taking the opportunity to meet with him, the court concluded that S lacks both the capacity for independent thinking and the emotional sophistication to offer truly reliable testimony. S is an influenced child who has been charged with carrying the heavy of burden of choosing a side in his parents' conflict.

CONCLUSIONS OF LAW

It is well established that in seeking a change in the established custody arrangement, a [*13]parent must show a change in circumstances that reflects a real need for change to ensure the best interests of the children. Cowell v. Pembrock, 113 AD3d 1118 (4th Dept. 2014); Miller v. Miller, 141 AD3d 1117 (4th Dept. 2016). The court should not change an existing custody arrangement "merely because of changes in marital status, economic circumstances or improvements in moral or psychological adjustment, at least so long as the custodial parent has not been shown to be unfit, or perhaps less fit, to continue as the proper custodian." Horn v. Horn, 74 AD3d 1848 (4th Dept. 2010); Fox v Fox, 177 AD2d 209, 211 (4th Dept. 1992).

Change in Circumstances

In this case, both parties and all counsel stipulated that the pleadings would conform to the proof. Therefore, in addition to Mother seeking a finding that Father deliberately violated their court order, both parties seek modification of custody and access.

Without question, the burden of demonstrating a sufficient showing of a change in circumstances has been amply met. Father's vilification of Mother has been left unchecked for years allowing it to reach an intractable, almost pathological level — culminating in him questioning his own status as A and S's biological father at trial.

As a result of Father's poor behavior, A acted out a suicidal ideation and ceased having court ordered access with him approximately three (3) years ago. Attempts to rehabilitate her relationship with Father were so destructive to A that she acted out a second suicidal ideation. Father has taken no responsibility for their fractured relationship; in fact, he blames Mother for their falling out. The weight of the evidence did not support this assertion. Even Dr. A cautioned the parties (almost a decade ago) that A was presenting as a lost, forgotten, sad and dejected child. He opined that A's desire for more time with her Father signified an insecure attachment to him rather than a genuine affinity for him. (See, Pages 17-18, Petitioner's 12)

Father openly admitted that he willfully violated the court's mandates to take A and S to their regularly scheduled activities. Even after A stopped exercising access with him, Father testified that getting S to his soccer practices and games was "impossible" for him. Trisha H. corroborated Father's testimony and asserted that they allow S to decide whether he wants to attend his activities, despite acknowledging the existence of a court order.

Furthermore, the preponderance of the evidence demonstrated that Father and his fiancé, Ms. H., openly criticize S's prescribed ADHD medication. They both described S as "sundowning" from his medication in their care. Medical records in evidence as Respondent's Exhibit G corroborated their testimony that they focus a tremendous amount of attention on S's weight. Both Ms. H. and Father touted the virtues of homeopathic methods to address S's ADHD instead of following his pediatrician's prescribed medication routine. Father testified that he routinely gives S epsom salt baths and coffee to combat his ADHD symptoms. Father proudly asserted that he has been giving S coffee "for years now" because "it is a natural stimulant, rich in magnesium and it agrees with him."FN3

All of these factors form the basis of a change in circumstances sufficient to warrant a best interests' analysis in this matter. O'Connell v. O'Connell, 105 AD3d 1367 (4th Dept 2013); see also Dorsa v. Dorsa, 90 AD3d 1046 (2nd Dept 2011).

Best Interests Analysis

Once the door has been opened by a sufficient showing of a change in circumstances, the Court must determine the best interests of the child by a review of the totality of the circumstances. The totality of the circumstances includes but is not limited to: (1) quality of the home environment and parental guidance the custodial parent provides the child; (2) financial status and the ability of each parent to provide for the child; (3) ability to provide for the child's emotional and intellectual development; (4) demonstrated parenting ability and fitness of the parties; (5) emotional bond between a child and each party, and willingness/ability of each party to put a child's needs ahead of his/her own; (6) willingness and ability of each party to facilitate and encourage a close relationship between the child and the other party; (7) individual needs or preferences of the child; (8) any other relevant factors. Eschbach v. Eschbach, 56 NY2d 167 (1982); Friederwitzer v. Friederwitzer, 55 NY2d 89 (1982); Fox v. Fox, 177 AD2d 209 (4th Dept 1992).

Without a doubt, nearly every single factor recited above weighed distinctly more heavily in favor of Mother. Mother provides A and S with a home that appears to be free from emotional manipulation and denigration of their other parent. Mother supported A and S's emotional development by enrolling them in counseling with Nancy F. When Mother saw that S's hyperactivity and reactivity was not curbed by therapeutic intervention, she sought medical intervention and has followed S's pediatrician's recommended course of medication.

Father's inability to manage his emotions and refrain from denigration of Mother undermines the quality of his home environment significantly. This factor was underscored by the testimony of his own fiancé and sister when they openly denigrated Mother and questioned everything from her suspected "abuse of Adderall" to the veracity of Father's paternity.

The preponderance of the evidence revealed clear differences between the parties' demonstrated parenting ability. Mother testified competently and lovingly about A and S's strengths and weaknesses. She demonstrated a clear desire to support their interests and help them succeed academically, socially and emotionally. She demonstrated greater sensitivity to A's psychological needs and when it became evident A was overwhelmed, she supported her decision to step away. Interestingly, she did not seek (ever) to cease S's contact with Father, even though she described his transitions back into her home as challenging.

Mother appears to be highly organized and structured. She is responsible for making all of the children's medical, dental and counseling appointments as well as curating and coordinating their extracurricular activities. Father takes no initiative in this regard whatsoever, except for the occasions when he has taken S to the doctor, and on those occasions, the records revealed that he routinely complains about Mother.

Mother shares monthly calendars with Father to make sure he is aware of where the children need to be and when. Father generally ignores these calendars and offered no proof whatsoever as to what responsibility he takes to keep himself independently apprised of A and S's schedules. Father and Ms. H. both testified that they failed to support A's participation in cheer and later in soccer. They both testified that they let S decide whether he wants to attend soccer practice and games — outsourcing compliance with a court order to an 11-year-old.

Mother supports A and S's intellectual development by sending them to excellent private [*14]schools, without any contribution from Father. She also pursued an opportunity to have S and A participate in an elite soccer camp in Manchester, England last summer (2024), an enrichment opportunity that she organized, financed and executed without any assistance from Father.

Neither parent offered significant testimony regarding his or her financial status or income. Nevertheless, Mother testified that she pays for both children's school tuitions and extracurricular activities without contribution from Father. Mother also retained counsel, while Father was assigned counsel. Father admitted that he fails to pay his child support obligation to Mother and that he cannot afford to contribute to the children's tuition or extracurricular activities. Based on these facts, the court finds that Mother is more capable of sufficiently providing financially for A and S.

All of Mother's decisions on behalf of the children appear child centered and fairly balanced between them. She focuses on what is best for each of their healthy development, whether it is the particular school they attend, the activities they do or their time with their other parent — she undoubtedly puts them first.

In contrast, Father's decisions appear to be centered solely on his own desires and what is best for him. There was a disturbing amount of evidence that Father, his fiancé; (Trisha H.) and his sister (Jamie M.) all express animosity towards Mother.

Clearly, the weight of the evidence supported that A has a far stronger emotional bond with Mother than with Father. Though all witnesses described S and Father's bond as special, there was no proof put before the court that their bond was any stronger than Mother and S's emotional bond. There was credible evidence that Father's persistent negativity towards Mother, permissive attitude toward allowing S to make parental decisions on whether he attends his activities or takes his ADHD medication may be harming S emotionally. Father's emotional dysregulation and tendency towards hysteria may eventually erode his strong bond with S, if therapeutic interventions are not put in place.

Denial of Access

A's counselor, Nancy F, testified that it would be detrimental to A if this court were to continue reunification efforts or order parenting time with Father. Ms. S. opined that until Father accepts responsibility for his role in the deterioration of his relationship with A, attempts at reunification will not work — or worse, prove detrimental to A. A's attorney advocated strongly that this court suspend all parenting time with Father until or unless he completes a course of therapeutic, corrective intervention to gain insight into how his own behavior has caused so much harm to A.

There is a rebuttable presumption that visitation by a noncustodial parent is in the child's best interest and should be denied only in exceptional circumstances. Although denial of visitation is a drastic remedy, it is warranted where compelling reasons and substantial evidence show that visitation would be detrimental to the child (string cites omitted) Josephine F. v. Rodney W., 168 AD3d 486 (1st Dept 2019); see also Fox v. Fox, 93 AD3d 1224 (4th Dept 2012).

Here, the court heard from multiple witnesses that A's mental health deteriorated significantly by 2022. All credible evidence before the court demonstrated that the stress of her relationship with Father caused her to engage in self-harming activities like biting herself and pulling out her hair, eyebrows and eyelashes. A acted out two (2) separate suicidal ideations during these proceedings. The first in February 2022 when she attempted to cut herself with a pizza cutter, led to the suspension of Father's court ordered access. Father and A were directed to work with Meegan S., LCSWR to help repair their relationship.

Ms. S. testified that she met with A eighteen (18) times on her own and at least four (4) times with Father. Ms. S. testified that A genuinely feels rejected and unloved by Father. She testified that A often expressed feeling like she had to be the adult in her parent-child relationship and that she felt she was doing all the emotional labor to try and change herself to have a functional relationship with Father. By August 2022, due to the stress of the reunification counseling, A acted out a second suicidal ideation by attempting to drown herself with a weighted ball.

Ms. F, A's long-time counselor, testified that a resumption of access between A and Father would be very detrimental to A's mental health and development. Ms. F described Father as stuck in the past and lacking in insight. Ms. S. described him in rather the same way.

Respondent's Exhibit C in evidence, Father's purported attempt at reunification, speaks for itself. Ms. S. testified that she could not show A "The Book" for fear that it would increase her feelings of self-harm and make her feel blamed the problems in her parent-child relationship. Ms S. testified that Father needs to accept ownership for the deterioration of his relationship with A and do the therapeutic and emotional work necessary to repair it. Until that happens, A will not see his attempts to get back in her life as sincere or meaningful.

Dr. A's custodial evaluations in evidence as Petitioner's 11 and Petitioner's 12 practically forecasted this unfortunate outcome for A. He described her as being long suffering, sad and dejected and saw that Father was the source of her torment. He described Father as overwhelming the children with such denigration of Mother that their statements could no longer be considered reliable.

Twice Dr. A concluded that Father should complete a course of therapy with Dr. David H. to address the "elements of his personality (i.e. gullibility, hysteria, insightlessness, coercive control and vilification) that have contributed to the dreadful circumstances that permeate the children's everyday lives." (See, pages 20-21, Petitioner's 12). Father never engaged with Dr. H. as recommended. Testimony revealed that he had three (3) counseling sessions with Dr. Linda N. and six (6) counseling sessions with Dr. Louis LaB. — but no credible evidence was received to demonstrate how any of this therapeutic work improved his behavior. No evidence was received that either of the therapists had access to Dr. A's reports. No evidence was received that either of those counselors spoke with Nancy F.

The overwhelming weight of the evidence emphatically underscores a real need to protect A (and any prospect of a future relationship with Father) by suspending all access and ordering Father to engage in strong therapeutic intervention now. A's self-harming behavior and attempts at acting out suicidal ideations are clear and compelling indicators that this intervention is necessary. Three mental health professionals — Nancy F LCSW, Meegan S. LCSWR and Frank A. PhD all concluded that Father is incapable of refraining from vilification of Mother without seeking professional intervention.

In suspending A's court ordered access with Father, the court also considered A's stated position as particularly meaningful. The Fourth Department has held that a child's preference should be considered keeping in mind the child's age and level of maturity. "While the express wishes of children are not controlling, they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful." Stevenson v. Stevenson, 70 AD3d 1515 (4th Dept 2010).

With respect to S, Father clearly puts his own needs ahead of S's. The record was replete [*15]with examples of Father denigrating S's participation in activities. Upon cross examination on February 28, 2025, Father freely admitted that he failed take S to soccer every Wednesday and every other weekend since his last appearance in court on December 16, 2014. Even though he acknowledges that S enjoys soccer, and that he is part of a team, he would not admit that it adversely affects S to skip practices and games. Father reasoned that because "his time is very limited" that it is better to let S decide whether he wants to go to soccer.

Father's staunch disapproval of S's prescribed medication illustrated his tendency to project hysteria. Of course, he is entitled to have an opinion regarding prescribed medication — but he failed to file a petition challenging Mother's decision to abide S's pediatrician's recommended course of treatment. Furthermore, he appears completely uninformed on how S's use of Methylphenidate has actually helped him.

Under cross examination by S's attorney, he linked his denigration of soccer and S's medication in one answer. When asked, "Doesn't soccer let S run his extra energy out?" Father replied, "When he gets over heated because he is on three (3) adult doses of Adderall and he is 67 pounds, he is susceptible for a heart attack! I wish you would read up on his medication! There is a black box warning on Adderall!" When S's attorney reminded him that Methylphenidate is not Adderall, he quipped, "Whatever! It's speed! That's a fact!"

In all, the court did not perceive Father as appropriately concerned for his son's wellbeing. His real focus in all of what he put before the court was an attempt to vilify Mother and her choices for their children. He offered no credible evidence that Mother has acted in an unfit manner. He offered substantial proof that he is profoundly less fit than Mother as a parent.

Because of Father's alarming lack of insight and emotional dysregulation, the court strongly considered whether suspending his parenting time with S would be in S's best interests. "An order of visitation cannot be modified unless there has been a sufficient change in circumstances since the entry of the prior order which, if not addressed, would have an adverse effect on the children's best interests." Harder v. Phetteplace, 93 AD3d 1199 (4th Dept. 2012), citing Neeley v Ferris, 63 AD3d 1258 (2009); Taylor v Fry, 63 AD3d 1217 (2009). Mother again met her burden of proof in demonstrating such a change in circumstances.

S certainly loves his time with Father. The preponderance of the evidence demonstrated that he is the clearly favored child, who is allowed to do as he pleases in Father's home. Still, there is no doubt that S is being collaterally damaged by Father's behavior. Indeed, the court is primarily concerned with breaking Father's habit of acting out hatred. Father's environment immerses S in vilification of Mother and irrational hysteria over something as minor as getting to soccer practice "interfering" with his family time.

The totality of the circumstances led the court to conclude that a sudden cessation of access with Father might be akin to removing an arrow from a wound without warning — it would cause an irreparable shock to this family's system. While a suspension of S's of access is ruled out after careful deliberation, the court concludes that Father's parenting time must be reduced in order to protect S.

The evidence of domestic violence was also a factor the court considered in analyzing the best interests of S and A. It was uncontroverted that the parties are embattled and suffering in a completely dysfunctional dynamic. Their relationship has always been characterized by an imbalance of power and strife. A check of the domestic violence registry revealed fifteen (15) orders of protection — fourteen (14) civil and one (1) criminal all against Father in favor of Mother during the time when the parties separated and established that Mother would be the [*16]children's sole custodian.

The preponderance of the evidence demonstrated that Mother has been acting as an appropriate and fit sole custodian since the entry of the parties' controlling order. Father's criticism of her as a parent and a person is deeply troubling and misguided. His behavior appears to be the entire basis for their profoundly dysfunctional and imbalanced parenting dynamic.

While the court does not endorse Mother's sarcastic and at times contemptuous emails in response to Father, the preponderance of the evidence revealed that she is far and away the superior parent. If there is any semblance of civility to be found in this family's dynamic, it is because of Mother supporting the children's relationship with Father — literally almost to the point of their daughter's demise. Unlike Father, Mother demonstrated that she is capable of tempering herself for the best interest of the children.

Mother attends to both children's mental and physical health with great care and attention. Both children were enrolled in counseling years ago and have remained current in their appointments with Nancy F. Both children are up to date medically. When Mother noticed that S's hyperactivity and impulsiveness were not being curbed entirely by counseling, she took appropriate steps to get a diagnosis and medication to support S's development. Both children attend private schools, paid for entirely by Mother. Both appear to be high achieving students. Mother sees to it that the children are enrolled in enrichment activities, of which she is again the sole financier.

Now, after serious deliberation and a thorough review of all of the evidence before it, the court is persuaded that the best interests of A would be served by an immediate suspension of Father's access. There is no other way to move Father closer to a normalized relationship with A and a healthier relationship with S than to order him to take the proper therapeutic steps.

Precedent provides that a court may direct a party to submit to counseling or treatment as a component of custody and visitation, and this court shall exercise its discretion in that regard to protect the best interests of A and S. Palmeri v. Palmeri, 110 AD3d 859 (2nd Dept 2013); see also Zafran v. Zafran, 28 AD3d 753 (2nd Dept 2006)

In fact, Father testified that he would like the court to order "a licensed PhD" to engage them in therapeutic intervention. This request will be granted in part. Father must engage in an evaluation to determine what is the basis for his lack of insight. Thereafter, his engagement in parent coaching and or therapy to correct his habit of vilification will hopefully bring peace and reconciliation to this family.

The court finds that the totality of the circumstances supports an order granting sole custody to Mother, suspension of Father's access with A and a curtailment of Father's access with S to be in the children's best interests. A component of this order shall be a directive for Father to complete a full psychological/parenting skills assessment and demonstrate substantial compliance with any recommended treatment prior to any modification of this order.

Father did not meet his burden of proof to show that Mother was unfit, or even less fit, than Father to act as the children's primary parent. The preponderance of the evidence demonstrated that Mother competently attends to the children's medical, educational and emotional needs. None of Father's complaints of Mother's deficiencies as a parent were found to be credible.

Violation of Custody Order

To sustain a finding of civil contempt based upon a violation of a court order, it is necessary to establish that a lawful court order clearly expressing an unequivocal mandate was in [*17]effect and the person alleged to have violated the order had actual knowledge of its terms. Moreover, it must be demonstrated by clear and convincing evidence that there was a willful violation of a prior court order. Furthermore, it must be demonstrated that the violation "defeated, impaired, impeded, or prejudiced the rights of a party." Formosa v. Litt, 91 AD3d 644 (2nd Dept 2012); see also Judiciary Law § 753; Howell v. Lovell, 103 AD3d 1229 (4th Dept 2013).

Here, Mother again met her burden in seeking to hold Father in contempt of violating the court's order dated June 8, 2021 (Petitioner's Exhibit 7) by willfully failing to take the children to their activities or allowing them to bring their Chromebooks to his house to complete their homework. Mother also met her burden in demonstrating that Father failed to comply with the terms of their August 3, 2017 controlling order (Petitioner's Exhibit 5 specifically page 5, paragraph M) by denigrating Mother directly to the children. The record is replete with examples of this, but just to name one that was corroborated by several sources — Mother, Nancy F and Meegan S. — was Father's denigration of A's cheerleading.

Testimony revealed that so much negative pressure was placed on A by Father, Trisha H. and Jamie M. that she quit the sport in favor of a sport they found more acceptable, soccer. Ironically, they do not support her in this sport either. Credible testimony revealed that Father said such things as "cheer is for whores" and "you look like a whore, just like your mother" very often in the presence of A, or directly to her.

Mother demonstrated by clear and convincing evidence that there have been several willful violations of court orders. It was established that lawful court orders were in effect and Father had actual knowledge of their terms. Furthermore, it was demonstrated that the violations defeated, impaired, impeded, or prejudiced Mother's rights as she pays for the children's extracurricular activities and both she and the children suffered emotional distress as a result of Father's willful violations.

As and for Father's court ordered sanction for willfully violating orders of this court, Mother shall be permitted to make an application to recover attorney's fees expended in pursuit of Father's compliance with court orders. "Pursuant to Domestic Relations Law § 237 (b), a court may award counsel fees to a party seeking to enforce a custody order "as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties" [string cites removed]. Judiciary Law § 773 provides further authority for the award of counsel fees based on [ . . . ] willful violations [string cites removed]." Angelica CC. v. Ronald DD., 214 AD3d 1091 (3rd Dept 2023)

Mother's attorney shall make a quantum meruit application within thirty (30) days of the date of this order. Father shall have thirty (30) days from the date he receives Mother's quantum meruit application to respond in writing or request a hearing on the issue of attorney's fees, or the parties may rest on their papers. In exercising its discretionary power to award counsel fees and issuing this sanction, the court has carefully considered equities of the case and the financial circumstances of the parties as well as all other relevant factors. which includes the relative merit of the parties' positions. DeCabrera v. Cabrera-Rosete, 70 NY2d 879, 881 (1987), Viscuso v. Viscuso, 129 AD3d 1679, 1683 (4th Dept 2015); see also Meier v. Key-Meier, 36 AD3d 1001, 1004 (3rd Dept 2007).

DECISION

After a review of all the evidence and being in the unique position to evaluate and observe the demeanor, temperament and sincerity of each of the witnesses and weigh their [*18]respective credibility, the court finds that, in the totality of the circumstances, the best interests of A and S are served by the following decision:

NOW, THEREFORE, the Court having searched the statewide registry of orders of protection, the sex offender registry and the Family Court's child protective records, and having notified the attorneys for the parties and for the child of the results of these searches; And the Court having considered and relied upon the results of these searches in making this decision it is hereby

ORDERED that Father's Petition for Modification of a Prior Order of Custody and Access, (Docket No. V-10482-16/21E & Docket No. V-10483-16/21E) is hereby denied in its entirety with prejudice ; and it is further;

ORDERED that Mother's Petition for Enforcement of a Prior Order of Custody and Access, which by agreement was conformed to the proof to be a Petition for Modification of a Prior Order of Custody and Access (Docket No. V-10482-16/21D & Docket No. V-10483-16/21D) is hereby granted as follows:

(1) Father is found in contempt of court for willfully violating the court's orders dated August 3, 2017 and June 8, 2021.

(2) As and for a sanction, Mother's counsel shall submit a quantum meruit application for attorney's fees expended by Mother in pursuit of seeking Father's compliance with court orders. Said application shall be made within thirty (30) days of the date of this order. Father shall have thirty (30) days from the date he receives Mother's quantum meruit application to respond in writing or request a hearing on the issue of attorney's fees, or the parties may rest on their papers.

(3) Mother is granted sole legal and physical custody of A & S, subject to Father's rights of parenting time as further set forth herein. Mother shall have sole authority to make all decisions concerning A & S's health, education, enrollment in extracurriculars and general welfare subject to her affirmative obligation to keep Father informed of any major decision related to A & S's health, education or general welfare.

(4) All communication shall be respectful, factual and in writing only. Communication shall only relate to any major issues related to the health, education, activities and parenting time of the children.

(5) All communication shall be delivered through a parent communication application of Mother's choosing. Some of these platforms include by way of example but are not limited to: (a) the Our Family Wizard App, (b) AppClose and (c) Talking Parents.

(6) Mother shall advise Father via email which parent communication application she has chosen within ten (10) days of receipt of this order, at which point all communication between parents shall run through said platform.

(7) As a component of the within access order, having been determined by this court as necessary and proper to further the best interests of the children, Father shall undergo a psychological/parenting skills assessment by Dr. David H. 20 Market Street, 230 Bewley Bldg, Lockport, phone 716-625-9550 and complete any recommended course of therapy with Dr. David H. to address the "elements of his personality (i.e. gullibility, hysteria, insightlessness, coercive control and vilification) that have contributed to the dreadful circumstances that permeate the children's everyday lives." (See, pages 20-21, Petitioner's 12). Said evaluation and therapy shall be conducted at Father's sole expense, as more fully set forth below.

(a) A copy of this Decision & Order as well as copies of Dr. Frank A's custodial evaluation reports in evidence as Petitioner's 11, 12 and 13 shall be provided to Dr. David H. prior to his initial meeting with Father. Documents shall be provided to Dr. H. by either of the Attorneys for A & S, each of whose appointments shall remain active for a twelve (12) month period to be available to their clients and Dr. H.

(b) Compensation for the psychological/parenting skills assessment of Father, as well as any therapy provided to Father by Dr. David H., shall be paid solely by Father.

(c) It is further directed and ordered that Dr. David H. shall have the authority to speak with any and all providers who have interfaced with this family should he deem information from collateral sources necessary to complete the psychological/parenting skills assessment and/or course of therapy with Father.

(d) Collateral sources may include but not be limited to Amherst Pediatrics, Nancy F, LCSW; Meegan S. LCSWR, Frank A PhD, Lous LaB., PhD and Linda N., PhD. All providers are directed to cooperate in making themselves and their records available to Dr. David H. for purposes of this evaluation.

(e) It is directed and ordered that each party execute any and all consents that may be requested by Dr. David H. in connection with the evaluation.

(f) It is directed and ordered that upon completion of the psychological/parenting skills assessment, Dr. David H. shall submit a report with his findings to the court and the Attorneys for the children, prior to Father seeking modification of the within order.

(g) Father's substantial, documented compliance with the components of this order as well as with documented compliance with any therapy for a period of twelve (12) months shall constitute a change in circumstances for Father to seek modification of the parenting time set forth in this order. No modification petitions shall be filed by Father without documented proof of his compliance with the evaluation and therapy with Dr. David H.

Father's Access with A

(8) Father's court ordered access with A is suspended in its entirety.

(9) A may have electronic or physical access with Father at her own initiation, should she choose to do so.

(10) Father's independent access to A's health, education and welfare records and providers is suspended pending further order of the court.

(11) Father shall not attempt communication with A or attendance at any of her sporting events until such time he has completed all elements set forth in Paragraph 7 of this decision.

Father's Access with S

(12) Father's court ordered access with S shall be as follows:

a. Every other Saturday after soccer (or 4:00p.m. if no soccer) to Monday return to school (or 9:00am return to Mother) if no school. Said Saturday to Monday access shall occur on the weekends that Father traditionally exercised access pursuant to the parties controlling order.

b. Father and S may have reasonable electronic access once per week. "Reasonable Electronic Access" is herein defined as one (1) time, every Wednesday for no more [*19]than twenty (20) minutes. All conversations shall be child-centered and not address the other parent. All reasonable electronic access shall occur between 8:00p.m. to 8:30p.m. Mother shall give S privacy to have reasonable electronic access with Father (by phone, text, skype or other electronic access). Said communication shall not be recorded by either party.

c. Unless otherwise set forth herein, the controlling order of August 3, 2017 relative to vacation and holiday access is hereby suspended pending Father's compliance with Paragraph 7 of this decision.

(13) Father shall have equal and independent access to all of S's health, education and welfare records and providers including access to educational and medical portals; except for those items deemed confidential as a matter of law. Mother has an affirmative obligation to provide Father with contact information for providers and portal information through the parent communication platform, said obligation is ongoing. Father shall not change any log in information or passwords to educational or medical portals.

Additional Components of Access

(14) The parties shall adhere to the following additional components of access at all times:

(a) Neither party shall seek to complete any genetic marker testing of the children, including participation in any ancestry DNA testing kits like 23 and Me without a specific court order permitting same.

(b) There shall be no denigration of either parent, their families or significant others. This shall include any denigration of either parent, their families or significant others to or in the presence of A or S or publicly to third parties. Both parents have an affirmative obligation to prevent any third parties from engaging in this behavior as well.

(c) There shall be no discussion of these court proceedings, except privately/confidentially with counsel or a therapeutic provider. Discussion of these court proceedings with or in the presence of A or S or publicly to third parties is prohibited conduct. Both parents have an affirmative obligation to prevent any third parties from engaging in this behavior as well.

(d) There shall be no communication between the parties outside of the parent communication platform application described herein. All communication shall be solely factual and respectful in nature.

(e) Father (or his designee) shall provide all transportation to effectuate his regular access with S. Exchanges not occurring at school or soccer shall occur at a neutral, public place designated by Mother.

(f) Any new pattern of fighting through the children or coercive control shall be considered a change in circumstances for Mother to seek a modification of access.

(g) All holiday access supersedes regular access.

Holidays & Days of Special Meaning

The parties shall days of special meaning as follows:

(a) Mother's Day — Regardless of whose "regular weekend", Mother shall always have the time running from "Mother's Day Saturday" from soccer (or 4:00p.m. if no soccer) to Monday to school, whereupon the parties shall return to their regular access schedule.

(b) Father's Day - Regardless of whose "regular weekend", Father shall always have the time (with S) running from "Father's Day Saturday" from soccer (or 4:00p.m. if no soccer) to Monday to school, whereupon the parties shall return to their regular access schedule.

(c) Any additional holiday or day of special meaning access between Father and S shall be as Mother and Father can agree and arrange through the chosen parent communication platform.

This constitutes the Decision and Order of the Court. Submission of an Order by the Parties is not necessary. This order replaces and supersedes any and all prior court orders between the parties.

Dated: May 15, 2025

Buffalo, New York.

HON. MARY G. CARNEY, F.C.J.