The following papers were read on this motion:ORDER TO SHOW CAUSE 1ATTORNEY’S AFFIRMATION 2AFFIRMATION OF C. MCDONALD 3AFFIRMATION OF AFC IN OPPOSITION 4AFFIRMATION IN OPPOSITION 5CORRECTED DECISION AND ORDER In this custody proceeding pursuant to Article 6 of the Family Court Act, the Court has before it an order to show cause by the Respondent mother seeking to vacate or modify the final order of custody and visitation dated December 15, 2017. The Court determines the motion as follows.The respondent mother has a long and pertinent history with this court. In November 2016, the Nassau County Department of Social Services (hereinafter “DSS”) commenced neglect proceedings against the respondent mother pursuant to Article 10 of the New York State Family Court Act. The petitions alleged, in relevant part, child neglect by the respondent mother of her eight children based on her failure to ensure the children’s timely attendance at school and homelessness. The subject child herein, Justin (age 6), was living with the respondent mother at the time the neglect was filed.In January 2017, the Petitioner father filed for custody of his child Justin, pursuant to Article 6 of the New York State Family Court Act. There were no prior orders awarding custody of Justin to either parent prior to the father filing for custody. On March 6, 2017, a Temporary Order of Parenting Time was entered on consent allowing the father parenting time with his child on alternate weekends.In April 2017, the respondent mother consented to a finding of neglect pursuant to Family Court Act §1051(a). An order of disposition was entered on consent. The respondent mother was placed under DSS supervision for one year. The respondent mother was to engage in mental health treatment as recommended, ensure her children’s timely attendance at school, follow school recommendations for the children, and accept preventive services.A hearing was scheduled for May 25, 2017 in the custody matter herein. On that date, the respondent mother appeared two hours late just as the court was about to commence an inquest. The court held a conference with all parties and counsel at which time the mother abruptly left the courtroom and did not return. The petitioner father was awarded temporary sole legal and residential custody of the subject child based on the child’s declining attendance at school and school suspensions. In June 2017, a parenting time schedule was ordered on consent with alternating weekends to the respondent mother.On August 14, 2017, the father filed a petition for Writ of Habeas Corpus pursuant to Family Court Act §115 alleging that the respondent mother failed to return the subject child to him at the end of her parenting time in accordance with this court’s order. The respondent mother appeared before Honorable Ayesha K. Brantley on the writ and was evasive as to the child’s whereabouts. The respondent mother initially stated the child was at the park with her aunt and later stated the child was at the hotel with her sixteen year old daughter. Judge Brantley warned the respondent mother that she would be incarcerated if she did not provide the court with accurate information as to the child’s location. At last, the child’s sibling confirmed via telephone with the court on the record that the child was with her at the hotel they were residing at the time. Judge Brantley ultimately issued an order directing the immediate return of the child to the custody of the petitioner father.The parties returned on August 22, 2017 at which time the respondent mother was admonished by this court for failing to abide by the court’s order regarding parenting time. In addition, an order of protection was issued in the neglect proceeding directing the respondent mother to stay away from the subject child except for supervised visitation at Empower, Assist, Care Network (hereinafter “EAC”). Said order was modified on consent of counsel on September 15, 2017 to allow the respondent mother visitation with the child at EAC and the office of Dr. Anthony Santoro for purposes of a forensic evaluation.On December 15, 2017 the parties and counsel appeared for a conference in the custody matter. Rather than proceed to trial, the parties and counsel consented to a Final Order of Custody and Parenting Time. The terms of said order were placed on the record in the presence of the parties and counsel at which time the respondent mother affirmatively agreed to the terms. Said order granted the petitioner father sole legal and residential custody of the subject child on consent and the respondent mother supervised parenting time at EAC as well as therapeutic parenting time. The order further provided that once the respondent mother was compliant and engaged in six months of therapeutic parenting time with the child, it would be deemed a change of circumstance for the purpose of seeking a modification of the order. Instead, the respondent mother is seeking to vacate and modify the final custody order entered on consent alleging that she agreed to these terms under duress.This Court finds that the respondent mother’s contention that her consent to the final order of custody was made under duress is without merit and completely unsupported by the record. The mother’s additional contention that she did not understand the order was permanent is also unsupported by the record.Stipulations of settlement are favored by the courts and a stipulation made on the record in open court will not be set aside absent a showing that it was the result of fraud, overreaching, mistake, or duress (see Hallock v. State of New York, 64 NY2d 224, 230 [1984]; Matter of Blackstock v. Price, 51 AD3d 914, 914-915 [2d Dept. 2008]).Here, the respondent mother alleges that she was subjected to legal duress outside the courtroom by the attorney for the child prior to consenting to the terms on the record with her attorney present. In order to prove legal duress, a party must adduce evidence that a wrongful threat precluded the exercise of the party’s free will (see Sontag v. Sontag, 114 AD2d 892, 894 [2d Dept 1985]). Generalized contentions that a party felt pressured by the court are insufficient (Sontag v. Sontag, supra at 894; see also Cavelli v. Cavalli, 226 AD2d 666, 667 [2d Dept 1996]; Desantis v. Ariens Co., 17 AD3d 311 [2d Dept 2005]).A thorough review of the record establishes that the respondent mother was represented by counsel at every court proceeding, had ample time to discuss/meet with her attorney, was present in court when the terms of the custody order were placed on the record, and affirmatively represented that she understood said terms. Neither the mother or her attorney raised any objection to or contested the duration of the order nor did they mention any statements made outside the courtroom that would allow this court to infer that the mother was pressured into this arrangement by the attorney for the child. It was clear that the terms were placed on the record as part of a final resolution as no further adjourn dates were given. The fact that the mother was advised and affirmatively agreed on the record that she could seek modification of the final order after six months of successful therapeutic parenting time implies that she recognized the finality of the order and what she must do to modify it. Moreover, the final order was consistent with the temporary order of protection pending in the underlying neglect proceeding. Said order of protection, dated September 15, 2017, only permitted the respondent mother to have supervised visitation with the subject child.It is further noted that the notice of appeal filed by the respondent mother which was subsequently withdrawn, does not include any allegations of legal duress.Accordingly, it is herebyORDERED that the Respondent mother’s order to show cause seeking to vacate and modify the Final Order of Custody and Parenting Time entered on consent of the parties is denied in its entirety.This constitutes the decision and order of the Court.IF THIS ORDER IS ENTERED BY A JUDGE, PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT OR 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, WHICHEVER IS EARLIEST.Order mailed on [specify date(s) and to whom mailed]:___________Order received in court on [specify date(s) and to whom given]:__________Dated: March 19, 2019
