S.H. v. M.S., 64 Misc.3d 1204(A), 116 N.Y.S.3d 493 (Table) (N.Y. Sup. Ct. 2019)

Attorney for MS is Julia Currie, Esq. at Court Square Law

SH — pro se

Tandra L. Dawson, J.

This is a matrimonial proceeding wherein each parent is seeking custody of their 17-month old son, as well as possession of their dog, Charlie. This proceeding has been pending for almost 2 years in this court, double the length of their one-year marriage. During the course of this proceeding, the parties have appeared numerous times and the court has issued several interim decisions. The court held a fact-finding hearing, where the Plaintiff, S.H. (hereinafter the "Father") appeared pro se and the Defendant, M.S. (hereinafter the "Mother") was represented by counsel. During the fact-finding hearing, which was conducted over three non-consecutive days, beginning on March 22, 2019 and concluding on March 29, 2019¹ , five witnesses testified in addition to the parties, and numerous exhibits were admitted into evidence. After the hearing, counsel for the Mother and the Father pro se submitted post-trial memoranda to the court. Familiarity with this court's prior decisions and orders is presumed.² To the extent that additional facts are relevant to resolve the instant decision, they are stated in the following analysis.

Background

The parties were married on August 27, 2016. The Father commenced the instant divorce action on September 29, 2017. The Mother's counsel served a Verified Answer dated November 9, 2017. At the time of the parties' separation in July 2017, the Mother was pregnant, and gave birth the parties' Child, A.H.S. (hereinafter the "Child") on December 21, 2017.

During the marriage, the parties resided in an apartment they purchased in Manhattan. After an incident that allegedly occurred in September 2017, the Father was arrested, a criminal proceeding was filed against him, and an order of protection was issued that directed him to stay away from the Mother and her residence. The Father was subsequently arrested again, and the court takes judicial notice that the charges for both arrests were dismissed and sealed on June 12, 2018.

On December 13, 2017, the court granted the Father possession of the parties' dog, Charlie, pendente lite after the Father moved for the return of the dog given the Mother had permitted Charlie to reside with her sister. The parties modified the court's order pertaining to Charlie by so ordered stipulation only so as to allow the Father to obtain the dog from the Mother's sisters' home in Pennsylvania. The court takes judicial notice of the transcript of proceedings for December 13, 2017 whereby the Mother consented to shared access of Charlie, but the court ultimately court granted the Father temporary possession after a determination that shared "custody" was not feasible given the Mother was asking that the Father pay for Charlie's maintenance. (Tr. 12/13/17, 20-21, 28 and 37)

Fact-Finding

The Mother waived her opening statement. The Father made an opening statement whereby he described himself as an honest, law-abiding citizen who never had any trouble with the law prior to meeting the Mother. Since meeting the Mother, the Father said that he was arrested three times, based on what he believes were unfounded allegations. The Father stated that while he still loves the Mother, the abuse in the marriage became unbearable. At this point, the Father's primary goal is to spend as much time as possible with his son.

The Father's Case

A.H., the Father's best friend since college testified on his behalf. Mr. H met the Father in 1994 and testified that he never saw the Father in a physical fight or exhibit any anger. (Tr. 2-4) Mr. H. testified that he observed the Father's interactions with the parties' Child on 7 to 8 occasions. He described the Father as super-attentive, calm and knowledgeable on how to soothe the Child. Mr. H. also testified that the Father was collaborative, encouraging and fostered a nurturing environment. Mr. H. was unable to give specific testimony as to what care the Father provided for the Child, but upon inquiry by the Court he testified in detail as to the last interaction he witnessed between the Father and the Child approximately two weeks prior. Mr. H. testified that the Child was actively walking around his apartment and that the Father was very attentive and made sure to remove fragile items from the Child's way. Mr. H. testified that he observed a lot of cuddling and affection, and that he observed the Father feed the Child and change his diapers. The Mother declined to cross-examine the witness. (Tr. 6-12)

The Father testified next. The Father gave a timeline of the parties' relationship stating that he met his Mother in 2015 and that the relationship moved very quickly, and they moved in together after 5 months, in December 2015. The Mother had been looking to purchase an apartment and they decided to buy one together. The parties closed on the apartment in Manhattan in April 2016, and the Father proposed marriage the next day. The parties decided to adopt a dog ("Charlie") just before they got married. The parties were married in August 2016 during the Father's family's visit from the United Kingdom. The Father described a beautiful small, rooftop wedding in Manhattan. The couple then honeymooned in Italy when the Father stated that the Mother's "bizarre behavior" began. The Father then described several incidents that he indicated followed the same pattern of rage, followed by name-calling and physical altercation, followed by the Mother's apologies and promises to get help. (Tr. 14-16)

While in Florence during their honeymoon the Father testified that the parties were having a lovely evening at a local restaurant. When the Father returned from paying the bill, the Mother was gone. The Father testified that he tried calling the Mother but she did not answer until 20 or 30 minutes later. The Mother did not tell him why she left. When he saw her again at the hotel, the Father testified that she began screaming and yelling at him and poured a drink over him. The next day, the Mother apologized and said she would get help. The Father testified things got better for a little while. (Tr. 24-25)

The next incident was in October 2016. The parties were at a friend's Halloween party. The Father testified that the Mother became "paranoid" because he was speaking to someone, was very angry and struck him several times in the face with her fists. The Father testified that he had bruises that lasted about a day. (Tr. 21-23) On cross-examination, the Father testified that he did not seek medical treatment for the bruising. In a prior affidavit the Father provided to the court in November 2017, he stated he was "covered in blood" and thought he broke his nose. (Tr. 23, 54-55)

The Father detailed an incident that occurred in January 2017, when the parties were in Pennsylvania. According to the Father, the Mother had been drinking and went into a rage, calling the Father names and smashing items in the house. The Mother wanted to leave but the Father would not let her drive given she had been drinking. The Father testified that the incident began at about 8:00 p.m. and that the Mother didn't calm down until early the next day (approximately 3:00 a.m.). The next morning, the Father testified that the Mother helped him clean the house and agreed to see a therapist. The Mother first saw K.H. and later saw K.G.. (Tr. 17-20)

The Father testified that the Mother once threw a phone at him and missed, then punched him in the face, but he was not injured. (Tr. 21)

In April 2017 the Mother found out that she was pregnant and they were both very excited. Shortly thereafter, in May 2017, the parties were supposed to travel to Utah and Nevada together. The night before they were supposed to leave, the Father testified that the Mother began to call him names, telling him that he's "disgusting" and a "loser," and that she wanted a divorce. The Father left the marital residence and spent the night at a hotel. He flew to Nevada and received numerous text messages and missed calls from the Mother and her family. The Father testified that security at Caesar's Palace called him in the middle of the night stating that the Mother is on the phone and needs to speak with him. Eventually, the Father took the call and the Mother informed him that she had a medical emergency and he agreed that she can fly to Nevada to meet him, where she again became apologetic. (Tr. 25-29)

On the 4th of July weekend 2017, the Father testified that the parties were in the house in Pennsylvania, to prepare it to be sold. Instead, the Mother was cooking and making a mess, which upset the Father. The Father ultimately left and stayed at a friend's house in Pennsylvania, where he remained for the rest of July and all of August. In September, 2017, the Father testified that he returned to the marital residence for an evening, when, after a lovely evening, the Mother accused him of cheating and the Father left the residence again. (Tr. 29-32)

The last weekend of September 2017, prior to the sale of the Pennsylvania house, the Father testified that he invited some friends and neighbors over for a party, and that many stayed over. There weren't enough beds so people shared, or slept on air mattresses. The Father testified that he was woken up by the Mother, the Mother's mother, and sister when they came "bursting" into the bedroom screaming. The Father testified they woke up the whole house and his friend L.. The Father described the Mother and her family as "belligerent" and stated that they damaged the kitchen. The Father testified that the Mother kicked him in the groin during the incident, but conceded on cross-examination that this was not in the Affidavit he submitted to the court in November 2017. Ultimately the Mother and her family left and took the dog. The Father returned to New York where he stayed with his friend Mr. H. The Father went to the marital residence to retrieve some of his things and the Mother came down and began to scream at the Father and tell him that he needed to get a lawyer. (Tr. 32-36)

A few days later, the Father learned that the Mother had an OBGYN appointment in Westchester and thought it would be a good time to retrieve his belongings from the marital residence. His friend, Mr. H was to meet him there but was running late. The Father testified that the Mother was in the apartment and said that she wanted to talk, but the Father replied that he just wanted to get his clothes. (Tr. 36-38) The Father then described the three times he was arrested:

• The Father testified that after he left the marital residence he received a call from a detective and went to the precinct, after which he was arrested and placed in jail from about 4:30 p.m. to 1:00 a.m. (Tr. 38-40);

• The Father testified the second arrest was some time in 2018. The Father was arrested after an accusation that he tried to contact the Mother, in violation of the order of protection and was incarcerated from 8:00 a.m. to 5:00 p.m.. Upon inspecting his phone, the Father testified that he noticed a missed call to the Mother on What's App that he did not recall making. He believed it was an error and took the phone to apple and a forensic who ran tests. The results were sent to the District Attorney's office, and the outcome was that no charges were made. (Tr. 40-43)

• The third arrest occurred in July 2018 after the Father was at the gym and saw the Mother at the front desk, screaming at the person there "that's my attacker." Wanting to avoid another arrest, the Father testified that he immediately left, called his attorney and went to the precinct to report the incident. Nonetheless, he was arrested and spent the day in jail. On cross-examination, the Father admitted that he still goes to the same gym as the Mother. (Tr. 44-47, 57)

The court took judicial notice that the Father's two criminal cases pending in the court were dismissed and sealed on June 12, 2018 and that the Temporary Order of Protection was vacated. (Tr. 65)

Thereafter, the Father testified that supervised visits with the parties' Child commenced in March 2018. The Child was over 3 months old and the Father had not seen him since birth. After a period of supervised visits, in July 2018 the Father began having unsupervised visits. In October 2018, the Father testified that the Mother asked for exchanges to take place at the park. At the November 28, 2018 exchange, the Mother asked the Father to sign over the marital residence and when he refused to do so at the exchange, the Mother tried to punch him in the face but missed. At the next exchange after the incident, the Father testified that when he arrived, the Mother approached and began screaming "he has my baby; he has my baby," after which the police arrived and took the Child from him and returned him to the Mother. This led to exchanges taking place at the police precinct in November 2018. The Father testified that while the Mother was belligerent during the exchanges, things have gotten better, and on cross-examination agreed that here have been no incidents since November 2018. (Tr. 47-50, 56)

The Father testified that he is seeking primary physical custody because the Mother excludes him from the Child's life, and that while he would like to have more than 50% of the time with the Child, thinks it would be in the Child's best interest to have equal time. The Father testified that he would not exclude the Mother. The Father also requested final decision-making as to major decisions concerning the Child if the parties' disagree after consultation. The Father proposed a schedule of alternating Thursdays to Sundays and splitting Monday through Wednesday. (Tr. 51-53)

The Father also wants to keep Charlie, the parties' dog, who has lived with him since December 2017 after this court's order granting him temporary possession of the dog. The Father testified that the has been Charlie's primary caregiver for most of the dog's life and that he obtained custody of the dog after the Mother gave the dog to her sister. The Father testified that the dog is healthy, doing well and that he frequently takes the dog for runs with him. (Tr. 52-53)

R.L.

The court ruled that R.L., the Mother's mother may be treated as a hostile witness given her answers were evasive after initial questioning by the Father. (Tr. 92) Upon questioning from the court regarding service of the Father's subpoena given her non-appearance on the initial notice date, Ms. L. denied seeing the subpoena affixed to her door or receiving it in the mail. (Tr. 100-101)

Ms. L. denied substantive conversations with the Father in the summer of 2017. Ms. L. testified that she was "not good with dates" and denied that she told the Father that Mother needed to get help or that if he were his son, she would tell him to "get the hell out of there." Ms. L. denied that she advised Father that Mother should be medicated. (Tr. 89-90, 93)

She further testified that in September 2017, she drove to Pennsylvania to help move items at approximately 9:00 a.m.. The Mother drove out with Ms. L. and they went through the back as the door was unlocked. They were also accompanied by Ms. L.'s daughter, J., J.'s husband and their Children. Ms. L. testified that the parties were not separated at the time. Ms. L. denied telling the Father that he was not the father of the Child or that he would not see the Child again. Ms. L. testified that there were many people sleeping in the house all over the floor. Ms. L. denied knowing that the Mother had hand surgery and testified that the Mother did not cut her hand badly. Afterwards, the Mother drove back in the Father's car and the dog went as well. (Tr. 93-100)

Ms. L. testified that she speaks to her daughter almost every day. On September 25, 2017 the Mother called Ms. L .and was very upset and said that the Father pinned her against the wall and punched her in the belly and Ms. L. told her to go to the doctor. She did not recall if she told the Mother to go to the lobby. (Tr. 101-103)

Ms. L. was there when the Father came to retrieve his belongings in late October/early November 2017 but denied that the police threatened to arrest her for being belligerent. (Tr. 103)

Ms. L. testified that the dog was the Mother's because she signed the papers to adopt the dog and walked the dog all the time. (Tr. 104)

The Mother's Case

The Mother testified in her case-in chief. She testified that the Child resides with her. The parties met in the spring of 2015 and married in August 2016. The Mother testified that the marriage was happy at times and at times contentious. The parties separated on July 3, 2017. Mother is employed as a payroll manager. Her regular work schedule is 9:30 a.m. to 5:30 p.m. but has flexibility. The Mother's commute is approximately 15-20 minutes from home by subway. The Mother has a nanny who arrives early to her apartment so she can get ready for work. The Mother testified that she is frequently able to leave work if A.H.S. needs to go to doctor. (Tr. 109-111)

As to her pregnancy, the Mother testified that her first two trimesters were normal, but that she had complications in third. The Mother took the Child to all but one of his doctor appointments since birth, when his nanny took him. As of January 1, 2019, the Mother's health insurance plan covers the Child. Prior to that the Child was covered by that Father's plan. The Mother testified that she gives the Child medicine when he's sick and that she does not believe the Father does. The Mother testified that the Child is developing well and meeting all milestones, and just started saying "mama." The Mother testified that she informs the Father of the Child's doctor appointments by email and text and that the Father either doesn't respond or says he can't attend. According to the Mother, the Father came to one doctor appointment. (Tr. 112-115)

The Mother submitted numerous emails and texts into evidence regarding notice given to Father of A.H.S.'s doctor visits, A.H.S.'s health and the parties' exchanges regarding the Child receiving his medicine while in the Father's care. The Mother testified that she keeps the Father informed of A.H.S.'s health, and that the Father often does not timely respond to texts when the Child is sick. (Tr. 115-124)

Mother lives in a four-room co-op apartment that she owns and described in detail. The apartment consists of the Mother's bedroom, A.H.S.'s bedroom and a living/dining room. The Mother submitted into evidence a photo of A.H.S.'s bedroom. Since A.H.S. was born the Mother testified that she purchased furniture, toys, special food, bottles and baby supplies. She also childproofed the apartment. (Tr. 124-127) The Mother testified that she takes the Child to swim and music classes, enjoys seeing his friends in the neighborhood and that she would like to have A.H.S. attend STEM classes given he is very curious. The Mother testified that she hired her current nanny after doing significant research and interviewing several nannies. The Mother also had the nanny shadow her for a trial period. Mother testified that she included the Father in this process. (Tr. 128-130)

The Mother described an average day with A.H.S. in great detail. The Mother has a baby monitor in her room so she can hear when he wakes up at about 6:30 a.m.. The Child says "Ma" when he sees her and says hello to his stuffed animals. The Mother changes his diaper prior to having breakfast and puts on music and they sing together. After breakfast, the nanny arrives who often plays peek-a-boo with the Child. The Mother then gets ready, discusses meal preparation or other activities with the nanny and then leaves for work between 9 and 9:30 in the morning. (Tr. 132-134)

When the Mother comes home from work, she testified that A.H.S. meets her at the door, she recaps the day with the nanny and the Mother has dinner with the Child, who loves asparagus and pasta. The Mother then plays with the Child prior to bath time.At bedtime, they dance with the pajama song and the Mother nurses the Child before bed at 7. (Tr. 134-135)

The Mother testified that the weekend mornings are the same as weekday, but after breakfast she plays with the Child and nurses him before his morning nap. Their day usually starts around 12:30 after lunch and typical plans include things like playdates, going to the park, a museum or meeting up with family. The Mother testified that she prepares all of the Child's meals and makes food purchases. The Mother does not allow the Child watch television. The Mother described her relationship with the Child as loving. The Mother testified that she has family nearby and that she sees her sister Ms. Z. often given she lives in Queens and they have children close in age. A.H.S. also facetimes his cousins in Pennsylvania several times a week and sees Ms. Z. and her child once a week. (Tr. 135-139)

The Mother testified that the parties planned to have children. The Mother found out she was pregnant on April 20, 2017 during a routine OBGYN exam, which she went to alone even though the Father was invited. The Father told her that he was happy when he found out that she was pregnant. Prior to their separation, the Mother went to monthly OBGYN appointments. The Father did not attend any, and only attended one or two during the course of their relationship. (Tr. 139-140)

On July 3, 2017, the Mother testified that the parties were at their home in Pennsylvania and she was working. The Father was in and out of the house most of the day and returned in the evening. They began to argue. The Father was wearing sunglasses at night, and he seemed wobbly and was slurring his words. The parties had an argument and the Father left. The Mother described several instances where the Father was inebriated and on one occasion in May 2016, before the parties married, the Mother testified that she saw the Father in the bathroom leaning over the counter where there was a white substance that the Mother believed to be cocaine.(Tr. 140-142)

On September 25, 2017, the Mother testified that she was working from home in the apartment and the Father walked in to the apartment and said he was there to get his clothes. The Mother told him that she had moved his items out already. According to the Mother the parties began arguing and the Father pushed her up the wall and backed his body onto her belly. The Mother asked him to stop. The Father pushed her belly with open hands, and she ran into the bathroom and called her mother. The Mother described herself as hysterical and called the police and paramedics as her mother suggested. The paramedics came and put her on a stretcher and took her to the hospital. When she arrived at the hospital she was examined, and they monitored the Mother's heart rate and the baby, after which she went home. (Tr. 143-147)

The Mother testified this was not the first time that the Father became physical with her. One week after the Mother found out that she was pregnant the parties were at her nephew's communion party at her sister's home in Pennsylvania. She wanted to tell her family that she was pregnant as everyone was together. According to the Mother, the Father grabbed the Mother's upper arms and shook her and said "you're not telling anyone. I don't know what we're going to do" and pushed her away. (Tr. 147-148)

Regarding the "party incident in PA," the Mother testified that she arrived and observed people sleeping all over the lower level and walked up to the second level and saw the Father in bed with another woman. The Mother recorded the incident, which was played in the courtroom and submitted into evidence (Exhibit H). The video depicted the Father wearing shorts, in bed with a woman. (Tr. 148-150) The Mother testified that she was shocked and sad. The parties argued, and the Mother began to get her things. There were empty bottles of alcohol all over the house. The Mother took the dog and the Father's Audi and drove off. The Mother cut her hand while taking a picture off the wall and was bleeding but did not require surgery. (Tr. 151-153)

Regarding the November 2018 physical incident that the Father testified occurred previously, the Mother responded that the parties had exchanged text messages and decided to meet outside at the park. The parties were arguing as the Mother wanted to change the time so as to not interfere with A.H.S.'s nap time. During the exchange, the Father grabbed her arm and the exchange became heated. The Mother asked him to stop arguing in front of the Child. (Tr. 152-153)

The Father's current access schedule is every other weekend Saturday 8:00 a.m. to Sunday 3:00 p.m. and Wednesday from 6:00 pm to Thursday at 8:00 a.m. and the following Wednesday from 7:00 a.m. to 8:30 a.m. The court took judicial notice of prior custody orders issued by this court. (Tr. 153-159)

The Mother testified that overnight visits began in February 2019 and that she believes the current schedule is working. The Mother further testified that the visits have been going well, but for some parenting concerns and missed visits. The Mother testified that the Father missed 19-20 visits since July 2018, and detailed the dates. The Mother submitted several texts and emails that were admitted into evidence substantiating the missed visits. When the Father asked for make-up time the Mother testified that she accommodated his requests. (Tr. 159-165)

On Christmas Eve 2018 the Mother indicated that A.H.S. did not seem well. As the parties had agreed to share Christmas Day, she asked the Father to join the call to a nurse or doctor to discuss how to care for the Child. The Mother testified that the parties exchanged texts but that the Father did not attend the call. The Mother spoke to the medical provider and then texted the Father that she would bring the Child to the police station for the exchange. The Mother waited for a half hour and called/texted the Father and received no response, testifying that she believed that the Father's phone was turned off. (Tr. 165-166)

The Mother expressed concerns as to how the Child is returned to her. The Mother described that the Child often comes home with a scratch or cut or is exceptionally tired or hungry. On four occasions the Child came home and was profusely vomiting. The Mother testified that she asked the Father about the vomiting, but that he would often not respond at all. At one exchange the Mother testified that the Child was returned with a bruise/welt on his head and the Father said he wasn't aware of it. The Mother testified that these instances concern her because if something happens to the Child the parties should be able to communicate about it. (Tr. 174-178)

The Mother testified that when the Child has overnight visits with the Father she packs the Child's pajamas, a change of clothing, bottle, snacks, a bib, the bear he likes to sleep with and other supplies. On one occasion, the Child was sent back with new clothing. The Child never comes back with new toys. The Child has been returned to the Mother in the same clothes he wore the day before, which appeared soiled. (Tr. 178-179)

The Mother asked the court to keep the current access schedule. The Mother testified she would keep the Father informed as to school events once the Child begins attending school. The Mother testified that she asks the Father for his input as to decision-making but gets the most input from the nanny and pediatrician. The Mother makes medical decisions with contribution from the pediatrician and follows their timeline but testified that she does seek the Father's input, but he is often unresponsive. (Tr. 180-182)

The Mother testified that she would include the Father in A.H.S.'s life by keeping him informed regarding the events in the Child's life (sporting, education, family, other events) and that she would want the Father and Child to have a "very loving father-son relationship." (Tr. 182) The Mother testified that she should be granted custody because the Child is "everything" to her, that she loves him and does everything for him. (Tr. 183)

The Mother testified that she adopted Charlie, the dog, on July 20, 2016 and paid the $ 300 adoption fee from the B.C. SPCA. The Mother testified that she wants custody of the dog because she loves him, misses him and wants to foster a relationship between Charlie and the Child. (Tr. 183-186) After the parties' separation, the Mother testified that the Father would ask to take the dog some weekends. (Tr. 143).

On cross-examination, the Mother confirmed that she engaged the services of four mental health professionals during the marriage (two of which were marriage therapists). (Tr. 194, 217). The Mother testified that after her "attack" in September 2017, the order of protection prohibited the Father from coming to the marital residence or seeing the Child from his birth until March 2018, but for the day after the Child was born. (Tr. 196-198) Currently, the Father has the Child for two overnights over a 14-day period. (Tr. 198) Regarding the September 25, 2017 visit, the Mother testified that she left hospital despite recommendation that she remain because her OBGYN said it was fine for her to leave. The Mother testified she did not have any visible injury. (Tr. 206-207)

The Mother testified that she offered the Father extra time with the Child on Martin Luther King, Jr. weekend this year but that she never asked to change the court order to allow for more time. (Tr. 212-213) The Mother conceded that she had no evidence to support her testimony that the Father was inebriated on July 3, 2017 or that he drank excessively or used drugs. (Tr. 214-215) The Mother denied that she sought an order of protection to keep the Father away from Child but admitted that she also filed a separate petition seeking an order of protection for the Child. (Tr. 206-207)

A.Z.

Ms. Z. testified that she lives in Whitestone, Queens and is a stay at home mother. Ms. Z. is the Mother's younger sister. Ms. Z. testified that she met A.H.S. on day he was born. Ms. Z. has an 11-month son, A., and sees the Mother and A.H.S. approximately 5 times a month. Sometimes they go to the park or spend time in the apartment while the Children play together. She has observed the Mother care for A.H.S., feed him and change his diaper. When at the park, Ms. Z. testified that the Mother teaches A.H.S. how to use the swing and other equipment, and that she is always teaching A.H.S.. Ms. Z. frequently asks the Mother for Child-rearing advice given she trusts her. (Tr. 187-198) On cross-examination, Ms. Z. testified that she did see the Father drinking on his 40th birthday but could not confirm it was to excess. (Tr. 190-191)

E.G., PNP

Ms. G. is a pediatrician nurse practitioner and also a pediatric mental health specialist.Ms. G. has practiced at Flatiron Pediatrics for the last 4 ½ years. (Tr. 219-220) Ms. G. is one of A.H.S.'s primary care providers. Ms. G. reviewed the Child's chart and testified that the Child is developmentally normal, although there was some minor issue relating to a possible speech delay that will require re-check. (Tr. 220-225)

Ms. G. testified that the Child has had 21 office visits. The Mother attended all but one visit and provides detailed information about the Child's development. Ms. G. has never had any contact with Father, who attended one visit and there is no record of the Father seeking the Child's medical records. Ms. G. testified as to a bruise that she observed on A.H.S.'s forehead. The Mother did not know what happened and the doctor asked her to inquire from the Father. Ms. G testified that there was some phone tag but that she never spoke to the Father. Ms. G. testified to other injuries that that the Child was seen for, which includes a scratch on the back, face, bump on the head and vomiting. (Tr. 225-228)

C.H.

Ms. H. testified that she is a close friend of the Mother's and has known her for six years. Ms. H. has known the Father since the parties' marriage. Ms. H. lives in Brooklyn. (Tr. 229) Ms. H. testified that she observed the Father walking the dog on six occasions and told the Mother, who responded with surprise given she thought the baby was with him. (Tr. 230-231)

S.K.

Mr. K. testified that he lives in Queens and has been the Mother's best friend since high school, and has known the Child since birth and the Father since the parties began dating. Mr. K. testified that he accompanied the Mother to the December 25, 2018 exchange and that the Father never showed up. (Tr. 232-234) On February 9, 2019, Mr. K . testified that he saw the Child once outside a deli around Hudson Street while the Father was inside. Mr. K. testified that he waited 15 minutes to see if the Father would come out and once he did, he left. Mr. K. did not take a photo. On cross-examination, Mr. K. admitted that could not recall the name of the deli and did not recall "exactly where [he] was." (Tr. 235).

FATHER'S SUMMATION³

In summation, the Father argues that the Mother has purposely excluded him from the Child's life, beginning with being excluded from the Child's birth due to a pending order of protection. The Father summarized the history of his multiple arrests which have created immigration issues for him, although he has thus far been able to continue to work in the United States. The Father argues that this is part of the Mother's plan to insure that he is not able to stay in this country.

The Father concedes that he has only attended one of the Child's doctor visits, but argues that he was afraid to be alone with the Mother given the allegations she's previously made. The Father argues that he has been excluded from all medical decisions. The Father argues that the Mother failed to submit adequate documentation to support that the various scratches/bruises occurred during the time that the Child was with the Father. The Father argues that any missed visits with the Child were due to business trips that he was required to take for work.

The Father characterizes the testimony from Mr. K. and Ms. H. as a "hit job." The Father argues that Mr. K.'s testimony, in particular, is not credible. The Father points to Mr. K.'s failure to act or even be able to recall the name or location of the deli where he allegedly observed the Child outside alone in the cold in February. The Father points out that Mr. K. lives and works in Queens, making it incredibly unlikely that he would just happen to run into the Father during the Father's first overnight visit with the Child in Manhattan. The Father further argues that after this alleged "incident," the Mother never objected to the Father seeing the Child or informed the court that the Child had been left alone outside a deli in Manhattan.

With regard to the September 2017 video submitted by the Mother (D-Exh. H), the Father points to the testimony confirming that people were sleeping everywhere, and that the video showed selective clips. As to the Mother's alleged "attack" on September 27, 2017, the Father points to the Mother's testimony where she admitted that she suffered zero visible injuries.⁴ The Father argues that the Mother's testimony that she left the emergency room despite the doctor's contrary orders, on the advice of her OBGYN, is not credible, and that it is more likely that either the OBGYN was not given the full story, or that the Mother never in fact called the OBGYN. The Father argues that the Mother's behavior, which includes making multiple baseless accusations, should demonstrate to the court that she is emotional unstable and poses a danger to the Father and Child's continued relationship.

The Father argues that the Mother's testimony that she included him in the selection of the nanny to not be credible. The Father states that being a Father has been the most amazing experience of his life and that A.H.S. means everything to him.

With regards to Charlie, the dog, the Father argues that the parties adopted Charlie together, at an animal rescue center located near his former home in Pennsylvania. The Father argues that the Mother contributed initially to Charlie's care, but little after. The Father argues that he has been Charlie's primary caretakes and has always taken him for 95% of his walks. The Father argued that the Mother gave the dog away and it took a court order to get him back. The Father also argues that the Mother has not asked about Charlie, and was abusive to Charlie when he was a puppy.⁵

FATHER'S PROPOSED DISPOSITION

The Father requests that the court award "equal" time to both parties, arguing that such a custody order would be in the Child's best interests. The Father argues that it is in A.H.S.'s best interests that he be allowed to play an "active, frequent and full parental role" in the Child's life. The Father states that if he were given sole custody he would insure that the Mother not be excluded in any way. The Father also requests final decision-making.

MOTHER'S SUMMATION

The Mother argues that it is in the Child's best interests that she be awarded sole legal and physical custody of the Child. The Mother points to her testimony outlining the level of thought and attention that she puts into caring for the Child. The Mother argues that she has been the Child's primary caretaker since birth and has an extensive support system.

The Mother argues that she has submitted credible evidence demonstrating her attempts to engage the Father in decisions pertaining to the Child's care, to which the Father either does not reciprocate or is unresponsive. The Mother argued that in his testimony, the Father failed to outline how he cares for the Child or how he will include the Mother in decision-making. The Mother points to Ms. G's testimony which confirms that the Father does not attend the Child's medical visits and has never requested the Child's medical records.

According to the Mother, the Child is often returned from the Father's care hungry, dirty, exhausted and prone to tantrums, which is supported by Mr. K.'s testimony that he observed the Child alone on the street in the middle of February for at least 15 minutes.

The Mother argues that the Father devoted the bulk of his testimony recounting the "toxic" nature of the parties' relationship, demonstrating that the Father is unable to move on, which prevents him from effectively communicating with the Mother regarding parenting issues. The Mother argues that she has not excluded the Child from the Father, but rather that the Father chose to cancel 20 out of 83 visits.

Despite inconsistency due to missed visits, the Mother believes that the current access schedule works well and asks that it continue. The Mother argues that it would not be in the Child's best interests to expand the Father's access at this time given the Father's inability to communicate with the Mother regarding A.H.S.'s care.

MOTHER'S PROPOSED DISPOSITION

The Mother requests sole legal and physical custody of the Child and possession of Charlie, the dog. The Mother seeks final decision making after consultation with the Father. The Mother requests that the Father's regular access schedule⁶ remain in effect and proposes sharing holidays and granting the Father two (2) weeks summer vacation each year beginning when the Child is 6-years old.

Discussion

Initially, it must be pointed out that although the Mother has had primary physical custody of the Child during the pendency of these proceedings, there was not an original award of custody in this case. Therefore, each parent had the burden of demonstrating to the Court that an award of sole custody would best serve the Child's interests. See , Eschbach v. Eschbach , 56 NY2d 167 (1982).

The Court's determination of what is in the Child's best interests is paramount in deciding who will have custody. Friederwitzer v. Friederwitzer , 55 NY2d 89 (1982). In making such a determination, several factors must be considered including the quality of the home environment, the ability of each parent to provide emotional and intellectual development, and the financial status and ability of each parent to provide for the Child. Eschbach v. Eschbach, supra. , at 172. Another consideration is "the effect that an award of custody to one parent might have on the Child's relationship with the other parent." Bliss v. Ach , 56 NY2d 995, 998 (1982). The Court must consider the totality of the circumstances in making its determination. Eschbach v. Eschbach, supra. , at 174; Friederwitzer v. Friederwitzer, supra.

In considering the totality of the circumstances as they have been presented during the proceedings, the Court has assessed the testimony, demeanor, and credibility of each witness. The court must also consider the effect of domestic violence upon the best interests of the Child, together with such other facts and circumstances as the court deems relevant. ( Dom. Rel. Law § 240 ). The negative impact that domestic violence has on a Child's well-being has been recognized by courts. See Matter of Peters v. Blue , 173 Misc 2d 389,394 (N.Y.Co. Fam.Ct., 1997) ; see also, Matter of Spencer v. Small , 263 AD2d 783 (3rd Dept., 1999).

In the instant matter, both parties raised significant issues regarding inappropriate physical contact by both parties. Indeed, the Father testified that he was arrested and incarcerated on three (3) occasions as a result of the Mother's allegations. However, the Court takes judicial notice that criminal charges against the Father were dismissed and sealed on June 12, 2018, and that the Mother ultimately withdrew her family offense petition. The Court did not find credible the Mother's testimony as it relates to acts of domestic violence allegedly committed by the Father. The Mother's testimony was inconsistent, and not corroborated by other witnesses or medical records despite her statement that she sought and received medical treatment after the incident. Indeed, Ms. L, the Mother's mother testified that the Mother told her that the Father "punched" her in her pregnant belly, while the Mother testified that he pushed her with open hands.

With regards to the Father's allegations, while the Court found the Father's testimony to be more credible on these points, the Father too did not have any corroborating testimony or evidence regarding the Mother's alleged acts of domestic violence. Thus, the court will not consider that domestic violence occurred in the parties' relationship, particularly given none of the alleged events occurred in the presence of the subject Child, when making determinations regarding custody and parental access.

Findings of Fact

In considering the totality of the circumstances as they have been presented during the course of these proceedings, the court has assessed the testimony, demeanor, and credibility of each witness. The parties have been appearing before this court for almost two years, and the court has issued interim decisions and orders. Therefore, familiarity with the court's prior orders is presumed. The court has reviewed and considered the evidence submitted. In the instant matter, it is clear that each party loves the Child, and is genuinely concerned with his well-being. Each party appears to realize the necessity of providing a safe home environment, emotional and financial support for him.

When this proceeding began, a criminal case had been filed against the Father involving domestic violence allegations made by the Mother. As a result of these allegations, that were later dismissed, the Father was excluded from the first months of the Child's life.

The court has heard undisputed testimony that the Mother has always been the Children's primary caretaker. The court heard the Mother testify in great detail as to her daily activities with the Child, as well as the level of thought and consideration that she gives to the Child's care. The Mother appears to realize the necessity of providing a safe home environment, and emotional support for the Child, factors which the court finds of primary importance in making its determination. (See , Eschbach, supra. , at 172). The Father failed to present any testimony as to his home environment and little testimony as to his care or knowledge of how to care for the Child, although the court does not doubt the Father's ability to be a loving, caring father.⁷ Given the contentious and litigious nature of this case, the court doubts that the Mother would be seeking to continue the Father's overnight weekend access if she had serious concerns regarding the Father's care of the Child.

The court found the testimony of Ms. H. and Mr. K. as it relates to the Father's alleged "neglect" of the Child to not be credible. Ms. H. testified that she observed the Father walking the parties' dog on six occasions, on days that the Father had the Child in his care. Ms. H.'s testimony, even if accepted as true, does not rebut the possibility that the Father left the Child in the care of an appropriate adult during his walks with the dog. Further, the court is hard-pressed to believe that Ms. H. would "randomly" run into the Father on six occasions, close in time, when Ms. H. does not reside in the Father's Manhattan neighborhood, but rather in Brooklyn.

Mr. K.'s testimony was even less credible. Mr. K. testified that he observed the Child unattended for 15 minutes outside a deli in the middle of February while the Father was inside. Yet, Mr. K. did not take a photograph, call the police, call the Mother, and was unable to recall the name of the deli or exactly where he was. Further, given the litigious nature of this case, had such an incident occurred, the Mother would no doubt have moved for immediate relief to suspend visits given care of the Child was at risk.

While the Mother has demonstrated her ability to care for the Child, the court finds her efforts to engage the Father, and encourage his relationship with the Child to be lacking, particularly given the incredible testimony of Mr. K. and Ms. H., the Mother's lifelong friends. While the Mother argues that she has notified the Father of the Child's doctor visits, the court credits the Father's argument that he has chosen not to attend the Child's doctors' visits out of fear that the Mother would again accuse him of domestic violence, resulting in yet another day spent in jail. It appears to the court that the Mother will go to great lengths to ensure that the Father is deprived of an active parenting role in A.H.S.'s life. While neither party has alleged, and the child is too young, to consider allegations of Parental Alienation Syndrome (PAS), the Mother should be on notice that PAS is a significant and potential consequence to this type of continued behavior.

The parties have demonstrated their difficulty in communicating during the course of these proceedings, as evidenced by the numerous applications which were made to the court to decide issues involving parenting time. Inasmuch as joint or shared custody is not a viable option, given the acrimony between the parties ( Reisler v Phillips , 298 AD2d 228, 230 [1 Dept. 2002] ), the court finds that the parent with whom the child has resided will have ultimate decision-making authority. (Id. ; A.C. v J.O. , 40 Misc 3d 1226[A]; 975 NYS2d 707 [Kings Co. Sup Ct 2013] ). The court also finds that the parties would benefit from the services of a Certified Parent Coordinator to assist in the implementation of communication strategies to improve co-parenting.

Therefore, the court finds that the best interests of the Child would be served by granting the Mother primary legal and primary physical custody, with parental access to the Father. There is a rebuttable presumption favoring visitation with a non-custodial parent. Matter of Granger v. Misercola , 21 NY3d 86, 90-91 (2013). Given the court's concern that the Father has lost significant time with the Child, the court finds that it is in the Child's best interest to grant the Father liberal access time. The court finds no basis to consider the Mother's request that summer access be delayed until the Child is six (6) years old. The Mother shall consult with the Father prior to making non-emergency major final decisions, with the Mother having final decision-making.

Charlie, the dog.

The law pertaining to animals has evolved significantly. Initially disputes regarding animals were decided using a traditional property law analysis. However, that approach has begun to give way to acknowledge the role of animals in our lives, and to recognize that animals are undoubtedly more significant than a chair, table or other piece of property. The court relies on Justice Cooper's thoughtful and detailed analysis in Travis v. Murray , 42 Misc 3d 447 (Sup Ct. NY Cty. 2013) as guidance in its determination as to which party should be ultimately awarded possession of Charlie, the dog.

In Travis v. Murray , the Plaintiff in a divorce proceeding moved for an order seeking return of the couple's dog, Joey, as well as an award of "sole residential custody" of Joey. The Plaintiff argued that she had purchased Joey from the pet store when he was a 10-week old puppy. Eight months later, the Defendant moved out of the apartment and took Joey with her, and later gave Joey to her mother, who resided in Maine. Similar to the Mother's argument in this matter, the Plaintiff argued a traditional property approach under the theory of replevin, namely that she had a greater property right to Joey given that she bought him. The Defendant in Travis v. Murray made arguments similar to the Father in this matter, focusing more on her care of the dog and argued that it was in Joey's "best interests" that she be allowed to keep him. In reviewing the dearth of legal authority on this issue, the court ultimately determined that the appropriate standard was "best for all concerned," as articulated in the First Department's decision of Raymond v. Lachman , 264 AD2d 340, 341 (1st Dep't 2013) that addressed a dispute over "custody" of Lovey, the cat. Ultimately, the court in Travis v. Murray ordered a "full" hearing to determine what was "best for all concerned" as it related to Joey. The court cautioned against an extended hearing, limiting the hearing to one day, noting the scarcity of judicial resources. Travis v. Murray , 42 Misc 3d at 459-461. To further prevent additional litigation, the court ruled that, absent a successful appeal, whichever spouse is awarded Joey shall have sole possession of the dog, at the total exclusion of the other. Id.

Accordingly, this court declines to follow a traditional property analysis in determining which party shall ultimately keep Charlie, and instead employs the "best for all concerned" standard as articulated in Raymond v. Lachman , 264 AD2d 340, 341 (1st Dep't 2013) and followed in Travis v. Murray , 42 Misc 3d 447, 459-461 (Sup Ct. NY Cty 2013). As a result, the Mother's argument that she "bought" Charlie is but one factor that this court will consider. Another, more relevant factor is that when the Mother had possession of Charlie, she gave him to her sister, causing the Father to file a motion to have Charlie returned to him in December 2017.

While neither party gave significant testimony about Charlie, it is undisputed that Charlie has been in the Father's care since December 2017. During the brief period of time (September-December 2017) that Charlie was solely in the Mother's possession, the Mother testified that the Father on occasion asked to take Charlie for the weekend, to which she agreed. (Tr. 143) The Father testified that he has been Charlies' primary caregiver, and that given he is an active person, takes Charlie for runs all the time. The Mother's claim to Charlie rests primarily on the fact that she purchased the dog. However, the court finds that the credible testimony at trial of this matter, and prior proceedings, make clear that Charlie's adoption was a mutual decision, initiated by the Father, and that the Father has provided the bulk of Charlie's care since adoption.

The court finds significant that during the outset of these proceedings, the Mother had given the dog to her sister, rather than give Charlie to the Father, who clearly would have wanted the dog. Since this court awarded the Father temporary possession of Charlie in December 2017, the Mother never sought or requested to see Charlie, and provided no testimony as to how she would care for the dog should he be returned to her. The Mother barely addressed Charlie in her summation other than to request return of the dog. Indeed, when the Father sought Charlie's return in 2017, the Mother indicated that she would agree to split access so long as the Father would pay for Charlie's care. There is no evidence that Charlie is being mistreated by the Father in any way. Given the Child's age, he has not yet formed a bond with the dog, as the Mother herself seemed to acknowledge. Further, the Mother's detailed testimony as to her daily schedule and care of the Child would presumably leave little time to care for Charlie. For all these reasons, the court finds that the "best for all concerned" standard must result in an award of sole possession of Charlie, the dog, to the Father. Raymond v. Lachman , 264 AD2d 340, 341 (1st Dep't 2013) and followed in Travis v. Murray , 42 Misc 3d 447, 459-461 (Sup Ct. NY Cty 2013).

Accordingly, it is hereby,

ORDERED , that a final order of legal and primary residential custody of the Child is granted to the MOTHER, M.S. and a final order of visitation is granted to the FATHER, S.H. and it is further

ORDERED, that the FATHER, S.H. shall have sole and exclusive possession of the parties' dog, Charlie; and it is further

ORDERED that the parties shall retain the services of a Certified Parent Coordinator for six months, who shall monitor the communications between the parties and assist in the implementation of communication strategies to improve co-parenting and coordinate decision-making and access scheduling. Within thirty (30) days the parties shall confer and select a parenting coordinator. Should the parties be unable to agree as to a parenting coordinator, the parties shall each submit three (3) proposed parenting coordinators with curriculum vitaes and the court shall select a parenting coordinator. The costs of the parenting coordinator shall be shared equally (50/50); and it is further

ORDERED , that prior to exercising final decision-making authority on all non-emergency decisions concerning either the Child's education, health, extracurricular and religious activities, the MOTHER must consult with the FATHER in writing, unless another mutually agreed upon form of contact is established. THE MOTHER shall advise THE FATHER of the issue, the time frame in which it must be decided, and her proposed decision. THE FATHER shall have the opportunity to comment and provide alternatives. In the event of a disagreement over the issues, THE MOTHER shall have tie-breaking authority for the final decision; and it is further

ORDERED, that THE MOTHER must provide THE FATHER with written notice of all school events and extracurricular activities, sporting event schedules, the Child's report cards, progress/disciplinary reports, medical and dental appointments, counseling, tutoring, and therapy appointments, and religious events. The Mother shall also provide the Father with contact information of any child care provider that she utilizes for the Child and the Father shall be free to reasonably communicate with the child care provider regarding the Child; and it is further

ORDERED , that neither parent will speak negatively about the other parent in the Child's presence, nor allow any other person in the Child's presence to speak disparagingly about the other parent; and it is further

ORDERED , that in the event of a medical emergency, the parent who has physical access to the Child at that time shall make any necessary emergency medical decisions for the Child. This parent must notify the other parent as soon as is reasonably necessary to do so. Both parents shall have the right to consult with the treating physician. If a medical emergency occurs while the Child is with the Father, the Child shall be returned to the Mother's physical custody as soon as it is medically appropriate to do so. Should the Child be hospitalized for any reason, both parents shall have the right to visit with the Child during the hospital stay; and it is further

ORDERED , that the Father shall be entitled to all medical and educational records of the Children. The Mother shall sign any necessary releases and/or will contact said providers to ensure the Father has access to this information; and it is further

ORDERED , that both parents have the right to attend all major school events, sporting events, parent teacher conferences, and religious ceremonies; and it is further

ORDERED, that parenting time is granted to S.H. , as follows:

• Alternate weekends from Friday 6:00 p.m. to Sunday 5:00 p.m. In addition, in weeks that the Father does not have weekend access, he shall have the Child from 6:00 p.m. on the preceding Wednesday to 8:00 a.m. on Thursday. In weeks that the Father has weekend access, he also has the Child on the preceding Wednesday from 7:00 a.m. to 8:30 a.m.;

• When the Child is in school, the parents shall share the school breaks equally, subject to the holiday schedule below⁸ ;

• Each parent shall have two non-consecutive weeks of summer vacation each year from Friday at 5 pm to Monday at 8 am; in odd years, the Mother shall have first choice of vacation; in even years, the Father shall have first choice of vacation. The parents shall notify each other in writing of his/her selected vacation dates by April 15th of each year; except in 2019, where the parents shall notify each other by June 30, 2019;

• When the Child is on vacation with one parent, the other parent shall be entitled to have telephone, Skype, or Face time contact with the Child every other day, or as often as the Child desires;

• The Mother is to hold the Child's passport and be responsible for renewal, the costs of which shall be shared equally (50/50). The Father shall sign all necessary documents to facilitate the obtain/renew the Child's passport. Both parties shall sign all necessary documents to allow the Child to travel internationally travel with Mother/Father; the traveling party must provide a full itinerary to the other party at least 14 days in advance of any international travel, which shall include all contact information while away. Travel to a non-Hague country shall require the written consent of the other parent. On occasion when one parent is outside of the US with the Child, the non-traveling parent shall have temporary custody to provide standing under The Hague Convention;

Major Holidays

• Mother's Day and the Mother's birthday to be spent with the Mother. Father's Day and the Father's birthday to be spent with the Father.

• The Child's birthday — the party that does not have the Child on the Child's birthday shall be entitled to spend five (5) hours with the Child on his birthday if the birthday falls on a weekend, or three (3) hours if on a school day, at a mutually agreed time and if the parties cannot agree, then 12:00 to 5:00 p.m. on a weekend and immediately after school for three (3) hours on a school day.

• Thanksgiving Day from 10 am Thursday to Friday at 7 pm - the Mother shall have Thanksgiving in even years; the Father in odd years.

• Christmas Eve from 11 am to 11 am on Christmas Day - the Father shall have even years; the Mother shall have odd years.

• Christmas Day from 11 am to 10 am of the following day; the Father shall have odd years; the Mother shall have even years.

• New Year's Eve from 9 am to 11 am of New Year's Day - the Father shall have even years; the Mother shall have odd years;

• New Year's Day from 11 am through January 2 at 9 am - the Mother shall have even years; the Father shall have odd years;

• Martin Luther King, Jr. Day - from 9 am to drop-off at school next morning- the Father shall have even years; the Mother shall have odd years. If the Father has the Child the preceding weekend, he shall keep the Child for the Sunday overnight preceding Martin Luther King, Jr. Day;

• Easter Sunday from the preceding Saturday 6 pm to Easter Sunday 6 pm; the Father shall have even years; the Mother shall have odd years.

• Memorial Day from 9 am to 7 pm - the Father shall have in odd years; the Mother shall have in even years. If the Father has the Child the preceding weekend, he shall keep the Child for the Sunday overnight preceding Memorial Day.

• July 4 from 9 am to 9 am the following day - the Father shall have even years; the Mother shall have odd years. If the Father has the Child the preceding weekend, he shall keep the Child for the Sunday overnight preceding July 4.

• Labor Day from 9 am to 7pm - the Father shall have in odd years; the Mother shall have in even years. If the Father has the Child the preceding weekend, he shall keep the Child for the Sunday overnight preceding Labor Day.

• Halloween- Each party shall be allowed to trick or treat with the Child for two (2) hours on Halloween with the Mother having first choice in odd years and the Father having first choice in even years; and it is further

ORDERED , that all exchanges shall take place at the police precinct (X precinct located at X) unless parties agree to change the location in writing.; and it is further

ORDERED , that the Father is to confirm visits in writing forty-eight (48) hours in advance of the visit or the visit is deemed forfeited; and it is further

ORDERED , that this access may be modified upon mutual written agreement of the parties; and it is further

ORDERED, that any relief not expressly granted herein is denied.