The following papers numbered 1 to 18 were read on this motion: Papers: No(s). Exhibits Order to Show Cause 1 Affidavit of M.S. in Support 2-9 A-H Affirmation of Stephen J. Deprima, Esq. in Support 10-11 I Affirmation of Kellisha Hazelwood, Esq. in Opposition 12-13 A Affidavit of S.G. a/k/a S.S. in Opposition 14 Affidavit of M.S. in Reply 15-17 A-B Affirmation of Stephen J. Deprima, Esq. in Reply 18 NOTICE: PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE OF MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. ORDER AND DECISION ON MOTION In this custody and visitation proceeding brought under Article 6 of the Family Court Act, respondent M.S. (“Respondent”) filed this motion pursuant to Domestic Relations Law (“DRL”) 245, and articles 765, and 770 of the Judiciary Law seeking (1) a finding of contempt against Petitioner, (2) an Order of Commitment, (3) an award of sole legal and physical custody of the children to Respondent, (4) that Petitioner’s parenting time be limited to supervised visitation only, and for such other and further relief as the court deems just and proper. This file was transferred to the undersigned by Referee Gail A. Adams due to the nature of the motion. Following review of the motion papers and exhibits cited above, procedural history, and court-maintained audio recordings of the proceedings, the motion is granted in part. Background Petitioner and Respondent are the parents of four children, born November 14, 2013, August 13, 2015, December 7, 2017, and June 1, 2021 (the “children”). Beginning on December 20, 2021, the parties have engaged in extensive litigation in this court and have filed multiple petitions including family offenses, petitions for enforcement of court orders, and petitions for custody. On December 20, 2021, Respondent filed a family offense petition against Petitioner (Docket no. O-06460-21) and a petition for custody of the children (Docket nos. V-06463-22, V-06464-22, V-06465-22, V-06466-22). On the same date, a full stay away temporary order of protection was issued in favor of Respondent and the children and against Petitioner. After an appearance before the court, the stay away provisions of the temporary order of protection were removed on December 22, 2022 and the court entered a temporary order of visitation that set a schedule for Petitioner to have parenting time with the children. The temporary order of visitation also orders that “[n]either parent is to remove the child[ren] from the New York City area during the pendency of this proceeding without prior approval of the court.” Following another appearance before the court on January 13, 2022, the children were removed from the temporary order of protection and the temporary order of visitation was also continued. On January 19, 2022, Petitioner filed a custody petition to enforce the temporary order of visitation and for sanctions against Respondent (Docket nos. V-06463-21/22A, V-06464-21/22A, V-06465-21/22A, V-06466-21/22A). Petitioner filed an amended petition to enforce the temporary order of visitation on March 21, 2022, in which she alleges that Respondent “has taken the children out of the New York City area to live on Long Island without notifying courts. He has since blocked me and refused to drop off our child [R.]. Our children also aren’t in school.” On March 22, 2022, Petitioner filed a motion, by order to show cause, to punish Respondent for contempt for allegedly withholding the children in Long Island and refusing to give Petitioner access to them. This matter was then referred to the undersigned. On March 29, 2022, at an appearance before this court, Respondent withdrew his custody petition and the motion for contempt was dismissed as moot. On March 30, 2022, Petitioner filed the instant a petition seeking custody of the children (Docket nos. V-02267-22, V-02268-22, V-02269-22, V-02270-22) and filed a family offense petition against Respondent (Docket no. O-02261-22). On the same date, a full stay away order of protection was issued in favor of Petitioner and against Respondent. The temporary order of protection was continued on May 3, 2022. On May 16, 2022, an on-the-record conference was held before Referee Brenes. At the appearance, Petitioner requested that any parenting time with Respondent be supervised. The attorney for the child opposed the request for supervised visits, noting that there were no safety concerns regarding Respondent’s care of the children and the children expressed that they love their father and want to spend time with him. Referee Brenes denied the request, stating that there were no grounds for supervised visits, and ordered that beginning May 20, 2022, Respondent would have weekly parenting time with the children every Friday at 5:00 p.m. until Sunday at 6:00 p.m., with pickup to occur curbside at Petitioner’s home.1 An order memorializing this direction was issued on May 16, 2022 (S.S. affidavit in support, exhibit A), but was not emailed to the parties until May 23, 2022, due to an administrative error. The written order states, in pertinent part, “[c]ommencing Friday, May 20, 2022, and every week thereafter, the father [] may have visits with the children…commencing at 5pm until Sunday at 6pm.” On May 20, 2022, Respondent arrived at Petitioner’s residence to pick up the children, but Petitioner refused to produce the children (id. 4). The police arrived and Respondent was arrested for violating the outstanding temporary order of protection (id.). On May 21, 2022, a criminal court temporary order of protection was issued in favor of Petitioner and against Respondent (S.S. affidavit in opp 6). The criminal court order contains orders that Respondent stay away from and refrain from all communication with Petitioner, except for communications or access permitted by a subsequent order issued by a family or supreme court in a custody, visitation or child abuse or neglect proceeding (Hazelwood affirmation in opp, exhibit A). Petitioner also did not produce the children for the weekends of May 27, 2022, June 3, 2022, or June 9, 2022. She attests that she did not produce the children for parenting time on May 20, 2022 because she did not feel comfortable sending the children for parenting time without a copy of the court’s order, and did not produce the children on the subsequent dates because of the criminal court order of protection (S.S. affidavit in support at 13). Another conference was held with Referee Brenes on June 13, 2022. At the conference, Referee Brenes reiterated that Respondent was to have parenting time with the children and issued a second visitation order reflecting the same parenting time schedule set forth in the prior order. On June 14, 2022, there was another appearance before Referee Brenes for the purpose of assigning counsel to Petitioner. On June 17, 2022, Respondent picked up the children and exercised parenting time as directed in the order (S.S. affidavit in support 7). That weekend, Respondent took the children shopping and took the three older children to a salon, where they had their hair washed and cut (id.). On June 24, 2022, June 25, 2022, and the weekends July 1, 2022 and July 8, 2022, Petitioner again refused to produce the children for parenting time with Respondent (S.S. affidavit in support 9).2 Petitioner argues that she did not send the children for parenting time on these dates for a variety of reasons. First, she attests that the children were very upset when they returned home from the June 17, 2022 visit with Respondent, and in particular M was upset that her hair was cut during the visit with Respondent (S.S. affidavit in support at 13). She offers no explanation regarding the June 24, 2022 visit. She attests that when she began preparing the children for the July 1, 2022 visit, the children reported that they did not want to visit with Respondent and Ivan had an anxiety attack when informed of the visit (S.S. affidavit in opposition 5). She then called ACS who purportedly stated she did not have to send the children to the visit if they did not want to go (id.). Petitioner further states that she did not send the children for parenting time with Respondent because she was waiting for the children to be interviewed by their attorney and, for the weekend of July 8, 2022, because the children wanted to attend their cousin’s birthday party (id.
