The following papers were read on this motion: Petitioner’s Order to Show Cause and Supporting Papers 1 DECISION & ORDER The petitioner father, K.J. ["petitioner" or "father"], in this child custody litigation, filed a motion by Order to Show Cause dated November 22, 2021, seeking an order which: 1) grants him weekly parenting time with the subject child, T.J. [D.O.B. 0/00/0000] ["child"] on an alternating basis; and 2) requires daily electronic/telephone video contact with the child when the child is with the respondent mother, T.K. ["respondent" or "mother"]. In signing the Order to Show Cause, the Court directed that any answering papers be filed with the Court and served on the parties on or before December 7, 2021 and that courtesy copies of all papers be provided to chambers by December 7, 2021. Neither the respondent nor the Attorney for the Child filed any answering papers. The father’s motion is determined as follows: The parties in this matter have filed cross-petitions for custody of their child. On October 15, 2021, the mother filed her petition for custody [Docket Number V-0000-00]. She alleged in her custody petition that the father is physically abusive to her and in front of the child. She also filed a family offense petition against the father on October 15, 2021. That day, she appeared before the intake Judge, and was issued an ex parte Temporary Stay Away Order of Protection in her favor and against the father, which required him to, inter alia, stay away from the mother “except for visitation pursuant to a Court Order or as agreed to in writing, text or email”. On November 1, 2021, the father filed a cross-petition by Order to Show Cause for residential custody of the parties’ child. He alleged in his custody petition that the parties, upon mutual agreement, jointly share legal custody and residential custody of their child. He further alleges that they agreed the child would live with him one week and the mother the following week on an alternating basis. He alleges that this arrangement has been in existence since October 2018, after the parties separated. He further alleges in his Custody Petition that an incident occurred between the parties on October 12, 2021, when he dropped off their son at the mother’s house. He alleges that they exchanged words outside of her home, that this conversation occurred outside and not in the presence of the children (the parties’ child and the mother’s child), and that the mother filed a false complaint with police that he had assaulted her, which caused him to be arrested. He alleges that it is in the child’s best interests to reside with him to ensure the child’s safety and well-being. The Court assigned an attorney to represent the child and directed the Nassau County Department of Social Services to conduct an investigation into the child’s health, safety and welfare and return to the Court a written report of its findings and determination(s). The parties first appeared before the Court on November 15, 2021. The mother was assigned counsel and the father appeared with counsel. The Court modified the Temporary Order of Protection, so that it now requires the father to stay away from the mother, the parties’ child, and the mother’s other child, T.C. [D.O.B. 0/00/0000], except for parenting time pursuant to future Court Order or future written agreement of the parties. On November 22, 2021, the father filed the subject motion by Order to Show Cause, seeking an Order which: 1) Grants him weekly parenting time with the subject child on an alternating basis; and 2) Requires daily electronic telephone/video contact with the subject child when the child is with the mother. The father’s motion includes a supporting affirmation from his counsel, in which counsel affirms that she immediately reached out to the mother’s attorney after the November 15, 2021 court appearance, and that on November 20, 2021, she learned that the mother wanted the father’s parenting time with the child to be supervised through EAC. (Attorney Affirmation of W.P.B., dated November 22, 2021 ["P.B. Aff. in Support"], 4). The father’s counsel contends that no reason has been provided for why parenting time should be supervised, that the father has always shared residential custody with the mother, and there has never been a safety issue regarding the father and the care of the parties’ son. (P.B. Aff. in Support, 4). The father’s attorney asserts that, based on the Court Ordered Investigation and the parties appearing before the Court, the Court has been provided with sufficient information to determine that, under the circumstances of the case, it is in the child’s best interests to award the father with the requested temporary access order. (P.B. Aff. in Support, 5). In his supporting affidavit the father contends that the parties had abided by an agreed upon arrangement for nearly three years, pursuant to which they shared joint legal and joint residential custody of the subject child, and the child lived with each parent for one week on an alternating weekly basis. (Affidavit of K.J., dated November 22, 2021 ["J. Aff. in Support"], 3). He further contends that he has not seen his son since October 12, 2021, and that the mother’s request for supervised parenting time at EAC is unacceptable, as he is not a danger to his son and no safety issues at his home were raised when the parties were last in Court. (J. Aff. in Support, 4). The father further contends that when the parties were last in Court, the mother stated on the record that nothing happened in the presence of the child, and the Court left it to the parties to schedule visits amongst themselves. (J. Aff. in Support, 4). The parties have not been able to work out an arrangement amongst themselves. (J. Aff. in Support, 5). He proposes to pick up and drop off of the child at the F. Police Precinct in light of the active TOP. (J. Aff. in Support, 6). “An order affecting visitation [parental access], like an order modifying custody, must be addressed solely to the infant’s best interests.” (Matter of Sullivan v. Moore, 95 AD3d 1223, 1223 [2d Dept 2012]). Particularly in a case involving an initial custody determination, such as the case between these parties, the Court must conduct a “full and plenary hearing and inquiry” before rendering a custody determination. (S.L. v. J.R., 27 NY3d 558, 564 [2016]). In this case, contrary to the father and his counsel’s arguments, the Court does not presently, on its own, possess adequate relevant information to enable it to determine whether it would be in the best interests of the subject child to award the father the temporary parenting time or custody requested. This Court is relatively unfamiliar with these parties, as the first time that they both appeared in this part was on November 15, 2021, when issue was joined with respect to their cross-custody petitions. Moreover, the father filed his motion for temporary access only one week after the parties first appeared in this part, neither the mother nor the Attorney for the Child has submitted any papers responding to the father’s motion, and the Court has received a COI from Nassau County DSS that is “indicated” against the father. While the father contends that the mother falsely filed a complaint with the police, the Court notes that she continues to pursue the family offense proceeding that she commenced against him Under these circumstances, the Court does not possess sufficient information to determine whether it is in the child’s best interests to award the father the temporary access that he has requested. (See Matter of Sullivan, 95 AD3d at 1223). The father’s motion is denied without prejudice. The Court continues to urge the parties to work out a parenting time arrangement amongst themselves. Should the matter proceed to a plenary evidentiary custody fact-finding, the Court will consider all relevant information in formulating an appropriate custody and parental access arrangement that is based on the best interests of the child. Accordingly, it is hereby: ORDERED, that the father’s motion for temporary access/custody is denied in its entirety, without prejudice; and it is further ORDERED, that all other requests for relief not specifically addressed herein are deemed denied. 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, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. Check applicable box: Order mailed on [specify date(s) and to whom mailed: Order received in court on [specify date(s) and to whom given]: Dated: January 28, 2022
