The following e-filed papers read herein: NYSCEF Doc Nos.: Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 4-32, 36, 43-46 Opposing Affidavits (Affirmations) 43-46, 51-69 Affidavits/ Affirmations in Reply 47-50, 70-72 Order Appointing Attorney for the Children 35 Affirmation of Attorney for the Children 74 June 3, 2021 So-Ordered Stipulation 42 Transcript of September 23, 2021 Oral Argument 89 Upon the foregoing papers, in this action by plaintiff G.B. (plaintiff) against defendant B.B. (defendant) for divorce and ancillary relief, plaintiff moves, postjudgment, by order to show cause, under motion sequence number one, for an order: (1) enforcing his right to access and parenting time with the children as per the Judgment of Divorce and Stipulation of Settlement; (2) setting down and ordering a specific schedule of weekend and holiday access and parenting time between him and the children; (3) scheduling five make-up weekends for his missed access to the children plus any additional weekends of missed access subsequent to the filing of this application through the determination of the instant application; (4) ordering that he and the children have annual vacation access and parenting time for two consecutive weeks; (5) enforcing and compelling defendant to transport the children to Brooklyn at the commencement of his weekend access time with the children; and (6) enforcing his telephonic parental access with the children every day, including returning to the children the cellular telephone purchased by him specifically for such telephonic parental access. Plaintiff, in his order to show cause, further seeks an order enforcing his existing joint custodial rights, including, but not limited to: (1) the selection of health care professionals for the children; (2) the selection of schools for the children; (3) providing him with notification and consultation regarding the children’s medical issues, doctor’s visits, and educational decisions; (4) providing him with copies of all medical reports with respect to the children; and (5) providing him with copies of all reports/notices from any school attended by the children, including any notes from teachers, school psychologists, or other school administrators/professionals.1 Plaintiff, in his order to show cause, also seeks an order: (1) compelling defendant to participate in mediation; and (2) awarding such other relief as this court deems just, appropriate, and equitable under the circumstances. Defendant cross-moves, under motion sequence number two, for an order: (1) requiring the parties to abide by a set alternate weekend parenting time schedule; (2) enforcing paragraphs 6 (Q) and 6 (R) of the Stipulation of Settlement dated April 29, 2010 (incorporated but not merged into the parties’ Judgment of Divorce dated July 9, 2010) by ordering plaintiff to use all reasonable efforts to ensure that the children’s appearance and conduct comply with the religious requirements of their Chasidic2 Orthodox Jewish upbringing and their schools while in the physical custody of plaintiff; (3) declaring the purported October 2017 Amendment to the Stipulation of Settlement between the parties to be null and void; (4) ordering that the children spend each Rosh Hashanah and Yom Kippur with her and split all other Jewish holidays on a 50 percent / 50 percent basis according to a set schedule; and (5) granting her such other, further, and different relief as this court may deem just, proper, and equitable. Facts and Procedural Background Plaintiff and defendant were married on June 15, 2006 in a religious Orthodox Jewish ceremony in Brooklyn, New York. Two children were born of the marriage, namely, a son who was born in January 2008 and is now 14 years old, and a second son who was born in May 2009 and is now 13 years old (collectively, the children). On April 28, 2010, after less than four years of marriage, plaintiff filed this action for a divorce. On April 29, 2010, the parties executed a Stipulation of Settlement to settle the divorce action and all questions relating thereto, and to settle their financial, property and other rights and obligations arising out of the marriage and otherwise (NYSCEF Doc No. 8). Both parties lived in Williamsburg, Brooklyn, within a few blocks of each other, at the time that they entered into the Stipulation of Settlement. Article 6 (A) of the Stipulation of Settlement provided that plaintiff and defendant agreed that they would have joint custody of the children with defendant to have physical and residential custody of the children, subject to the visitation rights of plaintiff. Article 6 (B) of the Stipulation of Settlement provided that plaintiff would “have the absolute right of visitation with the [c]hildren,” and set forth plaintiff’s visitation schedule with the children. The Stipulation of Settlement provided for Shabbos visitation with the children for plaintiff, and stated that “[d]ue to Jewish restrictions on using an automobile or public transportation on Shabbos, the following Shabbos visitation schedule is stipulated to only if the parties reside within walking distance of each other.” The Stipulation of Settlement alternated weekly between plaintiff and defendant with respect to having the children on Shabbos, which began on Friday afternoon until Shabbos ended on Saturday evenings, or, in the alternative, on Sunday mornings at the start of the children’s school. On weeks that plaintiff did not have weekend Shabbos visitation with the children, i.e., on defendant’s weekends with the children, the Stipulation of Settlement provided that plaintiff would have visitation with the children on Sunday from 4:00 p.m. until 7:00 p.m. The Stipulation of Settlement further provided that plaintiff would have visitation with the children every Thursday from 4:00 p.m. until 7:00 p.m., and provided plaintiff with an extended weekend once per month during the summer from 6:00 p.m. Thursday through Monday morning. The Stipulation of Settlement set forth that if plaintiff was unable to visit with the children on Sunday or Thursday, he was to notify defendant to arrange a different date for a makeup visit. The Stipulation of Settlement also provided a detailed schedule for the Jewish holidays and also addressed family events and celebrations, vacations, and phone calls with the children. On May 5, 2019, plaintiff filed his note of issue. On July 9, 2010, an uncontested Judgment of Divorce was signed, which granted the parties a divorce, pursuant to Domestic Relations Law §170 (2), based on the constructive abandonment of plaintiff by defendant for a period of more than one year (NYSCEF Doc No. 7). The Judgment of Divorce was entered on July 13, 2020. The Judgment of Divorce provided that the Stipulation of Settlement was incorporated therein by reference, and shall survive and not be merged in this Judgment, and directed the parties to comply with all legally enforceable terms and conditions of the Stipulation of Settlement as if such terms and conditions were set forth in their entirety in such Judgment of Divorce. The Judgment of Divorce also provided that “[t]he domicile and residence of the minor children shall not be changed from the State of New York without prior approval of the Court.” In August 2016, defendant married H.K. Mr. K then informed plaintiff that defendant intended to move with the children to Lakewood, New Jersey, which is a 70-mile drive to Williamsburg. Plaintiff has remained living in Brooklyn following the divorce. As a result, plaintiff and defendant recognized that plaintiff would no longer be able to see the children for mid-week visits on Thursdays and that he would have to spend significant time and money transporting the children between Brooklyn and Lakewood. Plaintiff and defendant entered into an amendment to the Stipulation of Settlement, which plaintiff signed on October 9, 2017 (NYSCEF Doc No. 9) (the 2017 Amendment). Plaintiff asserts that the 2017 Amendment was reached after participating in mediation. The 2017 Amendment provided that plaintiff consented to defendant moving with the children to Lakewood, New Jersey on the condition that he and defendant both adhere to this agreement. It further provided, among other things, that: (1) plaintiff and defendant would continue to share joint custody of the children; (2) plaintiff would have visitation with the children for 10 out of every 16 weekends, among other visitation; (3) defendant must allow the children to freely call plaintiff whenever the children wished to do so, including after their bedtime, unless the children were already in bed; and (4) defendant shall be responsible for transporting the children to Williamsburg, Brooklyn on Fridays before weekend visits and on the day before Jewish holidays on which plaintiff has visitation, and plaintiff shall be responsible for transporting the children back to Lakewood after visitation. Defendant states that she signed the 2017 Amendment and emailed it back to plaintiff on October 11, 2017. Defendant relocated with the children to Lakewood in 2017. The children presently live in Lakewood with defendant, their stepfather (defendant’s husband), two step siblings, and two half siblings. Plaintiff filed his proposed order to show cause on March 4, 2021 (NYSCEF Doc No. 4). The order to show cause was signed by the court on April 12, 2017 (NYSCEF Doc No. 36). By an order dated April 12, 2021, Denise S. Siler, Esq. was appointed as the attorney for the children (the AFC) (NYSCEF Doc No. 35). The parties entered into a so-ordered stipulation filed on June 4, 2021 (the June 2021 stipulation), which provided, among other things, for a weekend access schedule with the children for the first seven weekends of the 16-week period beginning on May 22, 2021 and provided that the parties agreed to confer on a pre-set weekend schedule for the remainder of that 16-week period and for each 16-week period thereafter, consistent with the Stipulation of Settlement and the 2017 Amendment (NYSCEF Doc No. 42). The June 2021 stipulation further provided that when the children are with defendant, they shall be free to make and receive telephone calls to and from plaintiff “at any time that the children wish to do so, including after their bedtime, unless the children are already in bed” (id.). The June 2021 stipulation also set forth when plaintiff’s two-week vacation time with the children was to be exercised, and that defendant shall be responsible for transporting the children to Brooklyn on Friday and plaintiff shall be responsible for transporting the children back to Lakewood on Sunday (id.). Defendant filed her instant cross motion on June 30, 2021 (NYSCEF Doc No. 43). Plaintiff attempted to file a second proposed order to show cause seeking that the court order: (1) him and defendant to alternate weekend access with him having two consecutive weekends with the children, followed by defendant having one weekend, and repeating as such thereafter; and (2) that the children shall possess and may use at their discretion, a non-internet enabled cellular telephone to be provided by him which the children shall be free to use to call him (NYSCEF Doc No. 75). This second proposed order to show cause was not signed by the court since the first order to show cause was sufficient to address the issues. Oral argument of plaintiff’s order to show cause and defendant’s cross motion was held on September 23, 2021 (NYSCEF Doc No. 89). During the past year following oral argument, the parties decided to attempt to resolve the issues through mediation and asked the court to withhold the decision on plaintiff’s order to show cause and defendant’s cross motion. Unfortunately, the mediation failed to resolve the contested issues, and the parties are now requesting that the court render a decision and order on plaintiff’s order to show cause and defendant’s cross motion based on the papers previously submitted. The parties have not stated what the visitation arrangement was during this time period. The court shall now address plaintiff’s order to show cause and defendant’s cross motion. The Parties’ Contentions Plaintiff, in support of his motion, notes that the Stipulation of Settlement and 2017 Amendment provide that he is to have the children for (a) 10 out of every 16 weekends, (b) certain Sundays and weekdays, (c) alternating Jewish holidays, (d) two weeks’ vacation per year, (e) extended weekends once per month in the summer, and (f) other special events. Plaintiff contends that defendant has refused to produce the children for the scheduled parenting time on numerous occasions, as detailed in his affidavit, in violation of the Judgment of Divorce, the Stipulation of Settlement, and the 2017 Amendment. Plaintiff notes that the 2017 Amendment does not specify which parent should have the children on specific weekends within each 16-week period, and that this, therefore, requires communication between him and defendant to agree on week-by-week schedules for each week within a given 16-week period. Plaintiff asserts that defendant often ignores his scheduling inquiries until Thursday night or Friday, leaving him with no idea as to where the children will be on a given weekend. Plaintiff further asserts that on some weeks, defendant does not respond at all to any scheduling inquiries. Plaintiff also asserts that defendant likewise refuses to communicate regarding scheduling of Jewish holidays and vacation time until the last minute, if at all. Plaintiff states that he has asked defendant numerous times to agree on a pre-set weekend schedule, which would prevent weekly conflict and would give the children a greater sense of stability and certainty, but defendant refuses to agree to any such schedule. Plaintiff asserts that defendant’s husband threatened him on multiple occasions that defendant would withhold parenting time if he did not meet his religious demands. Plaintiff asserts that defendant’s husband has been unilaterally dictating the weekend schedule on an ad hoc and piecemeal basis, without even replying to his scheduling inquiries or responses. Plaintiff further asserts that defendant breached the June 2021 stipulation by producing the children for only nine weekends instead of the court-ordered 10 weekends during the 16-week period that ended September 4, 2021. He contends that defendant will not communicate or agree to any schedule in advance and continues to unilaterally dictate and delete the children’s weekends with him while refusing to schedule any makeup times. Plaintiff initially suggested that in order for there to be clarity in implementing the 10/16 weekend schedule, for each eight-week period, defendant could have the children for weekends 1, 3, and 5 while he could have the children for weekends 2, 4, 6, 7, and 8. Plaintiff alternatively requests that the court order a repeating three-week schedule with him having the first two weekends and defendant having the third weekend. He contends that a 2-out-of-3 weekend alternating schedule is very similar to the existing 10 out of 16 weekend schedule while avoiding the need for him and defendant to confer, thus preventing defendant from withholding parenting time from him. Plaintiff notes that the 10/16 schedule provided him with 62.5 percent of the weekends (10/16 = 62.5 percent), whereas a 2/3 schedule would provide him with 66.6 percent of the weekends (2/3 = 66.6 percent). He asserts that the difference provides only 4.1 percent more weekend access with the children to him, and these additional weekends would help make up some of the missed weekends, and would provide the children with a stable and predictable parenting access schedule. Plaintiff contends that defendant is violating both the 2017 Amendment and the June 2021 stipulation with respect to phone access. Plaintiff asserts that defendant prohibits the children from calling him without her permission and prohibits them from answering the phone when he calls. Plaintiff states that defendant has instructed the children that each time they want to speak with him, they must ask her to dial his number for them on her landline phone. Plaintiff asserts that beginning in the summer of 2020, defendant restricted the children’s ability to speak with him by phone by allowing the children to call him only once or twice a week, notwithstanding their requests for more frequent phone access, and by limiting the duration of the children’s phone calls to five or ten minutes. Plaintiff states that to resolve this issue, he purchased a cell phone that is specially designed for young children, with his phone number preprogrammed and with no internet access, and he sent it to defendant on November 1, 2020. Plaintiff explains that defendant immediately confiscated the phone and has not allowed the children to use it. Plaintiff asserts that defendant continues to require that the children must use her landline to call him, and continues to restrict the children’s telephone contact with him. Plaintiff also contends that defendant has refused to arrange pre-visitation transportation in violation of the 2017 Amendment, and that he is, therefore, forced to make two three to four-hour roundtrips to Lakewood each Friday and Sunday or pay for cabs in order to spend weekends with the children. Plaintiff further contends that defendant refuses to communicate with him about the children’s health needs and makes important medical decisions without obtaining his consent in violation of the Stipulation of Settlement. He asserts that defendant does not provide him with any medical updates about the children, and that when the children have a medical issue, he only finds out about it after the fact, when the children tell him about it. He states that if he wants to know what a doctor said, his only option is to ask the children directly. He notes that in October 2020, when defendant enrolled the younger son in weekly appointments with a therapist, defendant did not consult him or inform him, nor did she obtain his required consent. He states that he only found out about it when the younger son told him that he saw a therapist. Plaintiff claims that he is practically excluded from having any input on many matters affecting the children’s health and well-being, in direct violation of the Judgment of Divorce and the Stipulation of Settlement. Plaintiff also contends that defendant, in violation of the Judgment of Divorce and the Stipulation of Settlement, refuses to communicate or consult with him regarding the children’s education and refuses to share any information that the children’s schools send to parents. Plaintiff states that defendant refuses to share the children’s report cards with him, despite his requests to see them. He asserts that after he was informed by the older son’s teacher and school social worker that he was struggling to focus at school, defendant refused to discuss hiring a tutor for the older son and refused to say whether she consented to the hiring of a tutor. Defendant, in opposition, to plaintiff’s motion and in support of her cross motion, contends that the 2017 Amendment should be declared null and void. Defendant points to the fact that her and plaintiff’s signatures on the 2017 Amendment were not notarized or acknowledged. Defendant claims that plaintiff threatened her with litigation if she moved to Lakewood, and that she was worried that her new marriage would be in jeopardy if she refused to sign the 2017 Amendment. She asserts that she was, therefore, compelled to sign a version of the 2017 amendment that plaintiff drafted and signed, and that she did not have the benefit of the advice of any attorney in the negotiation or signing of the 2017 Amendment. She claims that plaintiff demanded, and she reluctantly complied with allowing plaintiff to have 10 out of every 16 weekends with the children, and that this has created a chaotic situation for the children where there is no clear calendar of when each 16-week period begins and ends, which weekend is whose, and when his weekends end. Defendant notes that it is only since 2017, the time of her remarriage and relocation, that there have been difficulties with plaintiff’s visitation with the children. Defendant claims that she has consistently made the children available for agreed-upon scheduled visitation with plaintiff. Defendant contends that because of the ambiguous nature of the 16-week period, and the constant back and forth about whose weekend was whose, there were several weekends that plaintiff was not available to take the children, and his later demand for “makeups” were not acceptable to her. Defendant, in her cross motion, requests an alternate weekend parenting time schedule, wherein she and plaintiff have the children every other weekend. Defendant additionally contends that there should be some changes to the holiday schedule. Specifically, defendant asks that the court order that the children spend Rosh Hashanah and Yom Kippur of every year with her on the basis that she more strictly follows religious doctrine than plaintiff, and that the remaining holidays should be spent 50/50. Defendant also argues that the court should order plaintiff to use all reasonable efforts to ensure that the children’s appearance and conduct comply with the religious requirements of their Chasidic Orthodox Jewish upbringing and their schools while in his physical custody. Defendant claims that plaintiff has for years now tried to pressure the children into calling him on the telephone more often than they do. Defendant states that the children do not have cell phones because it is against the rules of their schools and the norms of the Chasidic community. She states that the children have free access to the home landline phone and they can and do call plaintiff when they wish. She claims that she has only refused to allow phone calls to plaintiff when a child asked while in middle of supper or while she is bathing his younger siblings, in which case she will tell him she can help him make the phone call when she is available. She also claims that she only denies access when the weeknight phone calls extend to a point where they are interfering with homework and bedtime in which case, she has asked the children to finish up with the calls. Defendant claims that there has not been any non-routine medical procedures undertaken without plaintiff’s knowledge or consent, or any withholding of information relating to the children’s health by her. Defendant asserts that in October 2020, the younger son’s principal recommended that she enroll him in therapy to deal with anxiety and she did so. Defendant notes that plaintiff acknowledges that he is fully in contact with the son’s therapist through the school which arranged it, as well as with the children’s other service providers. Defendant further asserts that there has not been any school communications held back from plaintiff by her. She notes that plaintiff acknowledges that he is in regular contact with the children’s teachers and social workers. Defendant agrees that the parenting time as per the Stipulation of Settlement and the Judgment of Divorce should be enforced and a specific schedule of weekend and holiday access time should be ordered. She opposes make-up weekends, contending that plaintiff’s account of missed weekends is inaccurate. As to annual vacation time, defendant contends that each of them should have one week of uninterrupted parenting time in the summer, with alternating years of first choice, and notification by May 15th of each year. Defendant opposes providing transportation of the children to Brooklyn on the ground that she does not drive. Defendant agrees that the terms of the Stipulation of Settlement regarding telephone access for the children should be enforced. Plaintiff, in reply, asserts that the 2017 Amendment was the result of a mediation before a Chasidic rabbi of defendant’s choosing, namely, Rabbi Jacob Polatsek, and that the key terms of the 2017 Amendment were suggested by the mediator, not by him. Plaintiff explains that he and defendant conducted an extensive negotiation and exchanged several drafts before they formalized the 2017 Amendment, and defendant made changes to it on October 9, 2017, which were incorporated into the final version. Plaintiff asserts that the final version consisted of two pages of plain English, that defendant fully understood all of its terms, and that defendant had ample opportunity to obtain the advice of a lawyer, but chose not to do so. Plaintiff contends that there was nothing remotely coercive about the 2017 Amendment. Plaintiff, in response to defendant’s cross motion, asserts that there are myriad practices and levels of observance among Chasidic Jews. He notes that the Stipulation of Settlement does not require any specific practice or adherence to any specific Chasidic philosophy. He states that defendant seeks to impose a very specific brand of Chasidic Judaism practiced by her husband, which is a rigid, punishment-oriented methodology. Plaintiff contends that defendant does not raise the children in the Satmar tradition, but, instead, raises them in the Chasidic tradition favored by her husband. Plaintiff claims that defendant wants him to force the children to follow her husband’s chosen norms, which are not mandated by Chasidic Judaism or by the Stipulation of Settlement. Plaintiff further contends that the sole reason that defendant finds that the 10/16 weekend parenting schedule is unstable, ambiguous, and chaotic, is that defendant refuses to agree to a pre-set schedule and refuses to communicate with him. He states that he wishes for defendant to agree on a pre-set, long-term, stable, weekend schedule and he is seeking such a schedule from the court. The AFC’s Position The AFC states that following an interview with the children, plaintiff, defendant, and therapist Nachum Weiss, she supports plaintiff’s order to show cause seeking enforcement of his access and parenting time. The AFC asserts that defendant and the children’s location from Brooklyn to Lakewood, New Jersey constitutes a change in circumstances since the entry of the Judgment of Divorce. The AFC points to plaintiff’s assertions that defendant has refused to produce the children for scheduled parenting time, and that defendant’s husband has threatened to withhold parenting time if he fails to abide by the husband’s religious demands. The AFC notes that there is nothing in the Stipulation of Settlement or the Judgment of Divorce that requires plaintiff to fulfill any demands of defendant’s husband before he can visit his children. The AFC states that the older son reported to her that he looks forward to his visits with plaintiff, enjoys spending time with him, and is disappointed when those visits do not occur. She further states that the older son becomes aggravated when he does not get to spend time with plaintiff and that this manifests in his behavior in school. She notes that the older son desires to make up for missed visits with plaintiff and has expressed that he would like to spend more than 10 out of 16 weekends with plaintiff, and that he would also like more time with plaintiff during plaintiff’s Sunday access time. The AFC states that the younger son reported to her that he enjoys spending time with plaintiff. She further states that the younger son is sad when he misses visits with plaintiff and would very much like to make up these visits. The AFC reports that the children do not want the two weeks of annual vacation time with plaintiff shortened. The AFC asserts that the children have a great relationship with plaintiff and opines that it would be in the best interest of the children for them to have as much contact with plaintiff as possible. The AFC further notes that the children have corroborated plaintiff’s assertions that defendant does not allow liberal telephone calls to him and does not allow the children to use the cellular phone that he purchased for them for this purpose. She states that the children have informed her that defendant only allows them to call plaintiff one time per week, that they are not allowed to speak to plaintiff more than 15 minutes, that they have to use defendant’s phone to call plaintiff, and that defendant denies their requests for additional phone time. She asserts that this upsets both children since they want to be able to call plaintiff when they desire and would like daily phone contact with him. She requests that the children be given access to the cell phone provided by plaintiff for them to call him, as opposed to having to use defendant’s phone. Discussion As noted above, the Stipulation of Settlement provided that plaintiff’s Shabbos visits with the children would only be in effect so long as plaintiff and defendant lived within walking distance from each other. Defendant’s move to New Jersey, therefore, required a change to the visitation schedule. In addition, plaintiff’s Thursday evening visits with the children could no longer be implemented due to defendant’s move to New Jersey. Plaintiff asserts that a modification of the Stipulation of Settlement was accomplished by the 2017 Amendment, which was signed by both him and defendant. Defendant, in her cross motion, contends that the 2017 Amendment is null and void and should be set aside because it is not notarized and acknowledged, and that she signed the 2017 Amendment under pressure from plaintiff due to his threat of litigation if she relocated to New Jersey with the children. The court rejects defendant’s contention. Since the parties were no longer married at the time of the execution of the 2017 Amendment, it did not need to be notarized or acknowledged in order to be enforceable (see Domestic Relations Law §236 [B] [3]; Schaff v. Schaff, 172 AD3d 1421, 1423 [2d Dept 2019]; Penrose v. Penrose, 17 AD3d 847, 848 [3d Dept 2005]; Hargett v. Hargett, 256 AD2d 50, 50 [1st Dept 1998], lv dismissed 93 NY2d 919 [1999]). Rather, CPLR 2104 applies, which only required that the 2017 Amendment be in writing and signed by the parties. Defendant cannot claim that there was overreaching by plaintiff or that she signed the 2017 Amendment under duress simply because plaintiff threatened to litigate if she relocated with the children. This is because as a matter of law, the exercise or threatened exercise of an act which one has a legal right to do does not amount to duress (see Colello v. Colello, 9 AD3d 855, 858 [4th Dept 2004], appeal and rearg denied 11 AD3d 1053 [2004]; Braha v. Braha, 45 Misc 3d 1211[A], 2014 NY Slip Op 51532[U], *5 [Sup Ct, Kings County 2014]). Plaintiff had a legal right to challenge defendant’s relocation with the children (see Schwartz v. Schwartz, 186 AD3d 1742, 1745 [2d Dept 2020]; McMahan v. McMahan, 62 AD3d 968, 968 [2d Dept 2009]). While defendant asserts that the Stipulation of Settlement, in paragraph 6 (S), provided that “[t]he parties agree that the Wife may reside with the Children anywhere within the continental United States or Canada,” the parties’ agreement “is not dispositive, but rather, is a factor to be considered along with all of the other factors a hearing court should consider when determining whether the relocation is in the best interests of the children” (Schwartz, 186 AD3d at 1745; see also Matter of Tropea v. Tropea, 87 NY2d 727, 741 n 2 [1996]; McMahan, 62 AD3d at 968; Petroski v. Petroski, 24 AD3d 1295, 1297 [4th Dept 2005]; Rheingold v. Rheingold, 4 AD3d 406, 406 [2d Dept 2004]; Savage v. Morrison, 262 AD2d 1077, 1077 [4th Dept 1999]). Moreover, as noted above, the Judgment of Divorce provided that “[t]he domicile and residence of the minor children shall not be changed from the State of New York without prior approval of the Court.” While defendant claims that plaintiff sent her “numerous emails and letters threatening [her] with all kinds of consequences if [she] moved,” she fails to submit even one such letter or email. Thus, defendant’s claim of overreaching or duress is devoid of merit (see Penrose, 17 AD3d at 848). While defendant was not represented by counsel in drafting the 2017 Amendment, this does not invalidate the 2017 Amendment. Plaintiff was also unrepresented and plaintiff asserts that a mediator chosen by defendant prepared the 2017 Agreement. Moreover, plaintiff has shown that defendant participated in the drafting of the terms of the 2017 Amendment (NYSCEF Doc No. 52). In addition, defendant ratified the 2017 Amendment by her purported compliance with it (see Sheindlin v. Sheindlin, 88 AD2d 930, 931 [2d Dept 1982], appeal dismissed 57 NY2d775 [1982]). Defendant also obtained and accepted the benefit of plaintiff’s consent to her move to Lakewood (see Weissman v. Weissman, 42 AD3d 448, 450 [2d Dept 2007], lv denied 9 NY3d 813 [2007]). Indeed, defendant has only challenged the 2017 Amendment after plaintiff filed his instant motion on March 4, 2021, approximately four years after she executed it. Thus, the 2017 Amendment is an enforceable modification to the Stipulation of Settlement and defendant’s cross motion, insofar as she seeks to set it aside as null and void, must be denied. Pursuant to the express terms of the 2017 Amendment, plaintiff is to have visitation with the children for 10 out of every 16 weekends. The rationale for this arrangement was that for every eight weeks, plaintiff received one extra weekend in exchange for giving up eight midweek visits. The 2017 Amendment provides that its terms prevail over the prior Stipulation of Settlement. Thus, plaintiff is entitled to enforcement of this provision. Plaintiff contends, however, that defendant is refusing to comply with this provision (see NYSCEF Doc No. 64). Defendant proffers no meaningful reason why enforcement of the 2017 Amendment would not be in the children’s best interest. Plaintiff’s access rights to the children should not be decreased because there is no showing that it would be in the best interest of the children for them to lose parenting time with their father. Indeed, the children have expressed to the AFC that they would like to spend more time with plaintiff. The 2017 Amendment does not specify which parent should have the children on specific weekends within each 16-week period. This requires communication between defendant and plaintiff to agree on week-by-week schedules for each week within a given 16-week period. Defendant and plaintiff have had difficulties in agreeing to this. Plaintiff has submitted a proposed 10/16 weekend through 2030 (NYSCEF Doc No. 62). Defendant, however, asserts that the 10/16 split poses difficulties for her in following this type of schedule. Defendant claims that it creates an environment of instability and constant changes for the children. Plaintiff has demonstrated that defendant has been unable or unwilling to adhere to this schedule and has eliminated certain of his weekends with the children. It appears that defendant will not follow such a 10/16 schedule and the problems previously encountered will continue to exist. Thus, this prior schedule is no longer workable. Defendant states her preference for a weekend schedule which alternates weekends between her and plaintiff. While defendant requests that she and plaintiff should alternate weekends every other week, this would decrease plaintiff’s parenting time with the children, which is not warranted, would be contrary to the intent of the Stipulation of Settlement and the 2017 Amendment and would not be in the children’s best interests. In order to provide stability for the children, the court finds that the visitation schedule should be modified to a repeating three-week schedule with plaintiff having the first two weekends and defendant having the third weekend. A two-out-of-three weekend alternating schedule would simplify the visitation schedule and avoid the need for defendant and plaintiff to confer, thereby preventing confusion and ameliorating the problem of withheld parenting time from plaintiff. Such a schedule would provide plaintiff with only 4.1 percent more weekend access with the children than the 10/16 schedule, to which he would otherwise be entitled. This minor increase in parental access would also compensate plaintiff for the weekends with the children previously lost by him. Most importantly, it would provide the children with a stable and predictable parenting access schedule, which is in their best interests. This modification of parental access is permissible based on the showing that there has been a “‘change in circumstances such that a modification is necessary to ensure the best interests and welfare of the child[ren]‘” (Walter v. Walter, 178 AD3d 991, 992 [2d Dept 2019], quoting Greenberg v. Greenberg, 144 AD3d 625, 629 [2d Dept 2016]; see also Matter of Barge v. Blackman, 195 AD3d 926, 927 [2d Dept 2021]; Matter of Garcia v. Maita, 191 AD3d 669, 670 [2d Dept 2021]; Matter of Garcia v. Manukian, 190 AD3d 854, 855 [2d Dept 2021]; Matter of Hugee v. Gadsden, 172 AD3d 863, 864 [2d Dept 2019]; Matter of Kavanagh v. Kavanagh, 132 AD3d 674, 674-675 [2d Dept 2015]; Hughes v. Hughes, 131 AD3d 1207, 1208 [2d Dept 2015], lv dismissed 26 NY3d 1058 [2015]; Anonymous 2011-1 v. Anonymous 2011-2, 102 AD3d 640, 641 [2d Dept 2013]). “‘”[A] change in circumstances may be demonstrated by, inter alia,…interference with the noncustodial parent’s visitation rights and/or telephone access”‘” (Goldstein v. Goldstein, 68 AD3d 717, 720 [2d Dept 2009], quoting Matter of Le Blanc v. Morrison, 288 AD2d 768, 770 [3d Dept 2001], quoting Matter of Markey v. Bederian, 274 AD2d 816, 817 [3d Dept 2000]). The change in circumstances is defendant’s inability to agree upon or follow the 10/16 schedule imposed by the 2017 Amendment following defendant’s move to New Jersey. Significantly, the court is not modifying the Stipulation of Settlement, which was already amended by the parties, but the 2017 Amendment. It is also noted that plaintiff’s missed visits with the children, which defendant has not allowed plaintiff to make up, and plaintiff’s assertion that defendant has limited the children’s phone access to him is corroborated by the AFC. “In adjudicating custody and visitation rights, the most important factor to be considered is the best interests of the child[ren]” (Matter of Jules v. Corriette, 76 AD3d 1016, 1017 [2d Dept 2010]; see also Eschbach v. Eschbach, 56 NY2d 167, 172 [1982]). “The child[ren]‘s best interests lie in being nurtured and guided by both parents” (Matter of Jules, 76 AD3d at 1017). The children’s need for stability is an important factor in determining their best interests (see Matter of Gribeluk v. Gribeluk, 120 AD3d 579, 580 [2d Dept 2014]). Determination of the children’s best interests requires examination of “the totality of the circumstances” (Eschbach, 56 NY2d at 171; Walter, 178 AD3d at 992; Matter of Edwards v. Edwards, 161 AD3d 979, 979 [2d Dept 2018]; Matter of Gibson v. Greene, 152 AD3d 592, 592 [2d Dept 2017]; Matter of C.H. v. F.M., 130 AD3d 1028, 1028 [2d Dept 2015]; Matter of Andrews v. Mouzon, 80 AD3d 761, 761 [2d Dept 2011]; Goldstein, 68 AD3d at 720). Generally, “‘a custody [or visitation] determination should be made only after a full and fair hearing at which the record is fully developed’” (Matter of Rosado v. Cornielle, 191 AD3d 988, 989 [2d Dept 2021], quoting Matter of Ledbetter v. Singer, 162 AD3d 1031, 1031-1032 [2d Dept 2018]). However “the general right to a hearing in custody and visitation cases is not absolute,” and it is only “where ‘facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute,’ [that] a hearing is required” (Palazzola v. Palazzola, 188 AD3d 1081, 1082 [2d Dept 2020], quoting S.L. v. J.R., 27 NY3d 558, 564 [2016]; see also Matter of Ledbetter, 162 AD3d at 1032). A hearing is not required “‘”where the court possesses adequate relevant information to enable it to make an informed and provident determination as to the child[ren]‘s best interest”‘” (Matter of Law v. Gray, 116 AD3d 699, 700 [2d Dept 2014], quoting Matter of Zaratzian v. Abadir, 105 AD3d 1054, 1054 [2d Dept 2013], lv denied 21 NY3d 864 [2013], quoting Matter of Hom v. Zullo, 6 AD3d 536, 536 [2d Dept 2004]; see also Matter of Jesse U. v. Dakota V., 202 AD3d 1301, 1303 [3d Dept 2022]; Matter of Veronica D. v. Loreni S., 179 AD3d 582, 582 [1st Dept 2020]; Matter of Bell v. Mays, 127 AD3d 1179, 1179 [2d Dept 2015]; Matter of Reynaldo M. v. Violet F., 88 AD3d 531, 531 [1st Dept 2011]; Matter of Perez v. Sepulveda, 51 AD3d 673, 673 [2d Dept 2008]; Matter of Anthony MM. v. Rena LL., 34 AD3d 1171, 1172 [3d Dept 2006], lv denied 8 NY3d 805 [2007]). Here, there is no dispute that defendant has relocated and the parties cannot agree with respect to the 10/16 schedule. The court has found that plaintiff is entitled to enforcement of the 10/16 visitation schedule pursuant to the 2017 Amendment. However, since this arrangement has proven to be unworkable and a 2/3 visitation schedule for plaintiff would provide greater stability, the court possesses adequate relevant information to enable it to make an informed and provident determination as to the children’s best interests. There are no conflicting affidavits which have any bearing on this issue and neither party has requested a hearing. The parties both agree that visitation should be on a more consistent and stable basis, and there is no reason to reduce defendant’s visitation. The court finds that no purpose would be served by conducting a hearing. Thus, the court orders that a 2/3 visitation schedule be followed. In view of this determination and the slight increase in visitation which will be afforded to plaintiff, the court declines to order make-up visits for plaintiff. As provided by the 2017 Amendment, each weekend visit shall last from Friday afternoon until either Saturday night or Sunday morning with plaintiff having the discretion to decide whether to return the children on Saturday night or Sunday morning, but he shall give defendant reasonable advance notice. Pursuant to the 2017 Amendment, plaintiff shall continue to have the right to visit with the children once per week in Lakewood on Sundays or weekday evenings. Plaintiff, in his motion, requests a specific schedule of his holiday access to the children. Defendant, in her cross motion, requests that the court order that the children spend each Rosh Hashanah and Yom Kippur with her and split all other Jewish holidays on a 50 percent / 50 percent basis according to a set schedule. Defendant contends that Rosh Hashanah and Yom Kippur are the “high holidays” which are primarily devoted to prayer in the synagogue. She states that plaintiff is no longer willing or able to provide the children with the particular customs of the Chasidic community. This is denied by plaintiff, who attests that he still follows the Chasidic customs, and that it is only certain rigorous customs observed and demanded by defendant’s husband, such as having the children go alone to Mikvahs (ritual bathing places) and forcing the children to eat foods which they dislike (which are not religiously mandated), which he opposes. Defendant does not claim that plaintiff does not observe Rosh Hashanah or Yom Kippur. The holiday schedule set forth in the 2017 Amendment provides that plaintiff and defendant shall continue to alternate visitation every year during the Jewish holidays, and with respect to Passover, plaintiff shall have the children for the first two days of Passover for two out of every three years, and with respect to every Purim holiday, plaintiff shall have visitation for at least one meal. The court finds no reason to deviate from this holiday schedule. Thus, defendant’s cross motion with respect to Yom Kippur and Rosh Hashanah should be denied, and the holiday schedule as provided in the 2017 Amendment should continue to be followed by the parties. As to vacation time with the children, plaintiff seeks an order granting him vacation time with the children for two consecutive weeks. Defendant opposes this, arguing that plaintiff will not accommodate the children’s religious needs for that length of time. Defendant contends that each parent should have one week of uninterrupted parenting time in the summer, with alternating years of first choice, and notification by May 15th of each year. The 2017 Amendment provides that plaintiff “may take the children for up to two weeks’ vacation per year.” It does not prohibit these two weeks from being consecutive. Thus, plaintiff is entitled to two weeks of vacation time (consecutive or nonconsecutive) per year with the children. Plaintiff also seeks an order enforcing and compelling defendant to transport the children to Brooklyn at the commencement of his weekend access time with the children. Defendant opposes this on the basis that she does not drive. She states that plaintiff should drive or pay for the children’s transportation. The 2017 Amendment expressly provides that defendant shall be responsible for transporting the children to Brooklyn on Fridays before weekend visits with plaintiff. This provision is binding on the parties. Thus, defendant must comply with her obligation under the 2017 Amendment to transport the children to Brooklyn at the commencement of plaintiff’s weekend access time with the children. Plaintiff requests an order enforcing his telephonic parental access with the children every day, including returning to the children the cellular telephones purchased by him specifically for such telephonic access. The 2017 Amendment provides that “Mother must allow the children to freely call Father at any time that the children wish to do so, including after their bedtime, unless the children are already in bed.” While defendant denies limiting the children’s telephone access, plaintiff’s assertions that defendant has done so is corroborated by the children, as asserted by the AFC. The AFC states that the children are upset because they want to have daily phone contact with plaintiff, and defendant only allows them to call plaintiff one time per week and are not allowed to speak more than 15 minutes, and they must use defendant’s phone. There is no basis to limit the children’s phone access (see Margolis v. Hawkins, 249 AD2d 453, 454 [2d Dept 1998]). It is in the children’s best interests to be able to have phone contact with plaintiff, as required by the 2017 Amendment. Defendant asserts that the children do not have cell phones, which is against the rules of their schools and the norms of the Chasidic community. Plaintiff has provided the children with a non-internet connected cellular phone (which is generally permitted by the Chasidic Orthodox Jewish religion) for them to use while at defendant’s home (and not in school). The AFC supports plaintiff’s request that the children should be given access to the cell phone provided by plaintiff for them to call him, as opposed to having to use defendant’s phone. Thus, the court directs that defendant provide the children with telephone access with plaintiff pursuant to the 2017 Amendment and to return the cell phone purchased by plaintiff specifically for such telephonic access. Plaintiff seeks an order enforcing his joint custodial rights with respect to: (1) the selection of health care professionals for the children; (2) the selection of schools for the children; (3) providing him with notification and consultation regarding the children’s medical issues, doctor’s visits, and educational decisions; (4) providing him with copies of all medical reports with respect to the children; and (5) providing him with copies of all reports/notices from any school attended by the children, including any notes from teachers, school psychologists, or other school administrators/professionals. In this regard, paragraph 6 of the Stipulation of Settlement provides: “K. If a Child requires a medical procedure, hospitalization, therapy, prescription drugs, or any other sort of medical intervention (other than routine physicals, immunizations, and prescriptions for minor illnesses and infections), the Husband and Wife shall have joint decision-making power on whether said treatment shall proceed. “L Each party shall be entitled to complete, detailed information from any doctor, psychologist, psychiatrist, consultant, or specialist attending any of the Children for any reason, or any teacher or school which any of the Children attends, and each party shall furnish to the other copies of all reports of any such person or entity. Further, each party shall have unfettered access to the medical and school records of the Children. “M. The parties agree to consult with each other with respect to the education, religious training, health, welfare and other matters of similar importance affecting the Children, whose well-being, education and development at all times shall be the paramount consideration of the parties.” Defendant is directed to comply with the above provisions. To the extent that plaintiff’s motion seeks an order compelling defendant to participate in mediation, the court notes that such mediation has already taken place and was unsuccessful. Defendant, in her cross motion, seeks an order enforcing paragraphs 6 (Q) and 6 (R) of the Stipulation of Settlement) by ordering plaintiff to use all reasonable efforts to ensure that the children’s appearance and conduct comply with the religious requirements of their Chasidic Orthodox Jewish upbringing and their schools while in plaintiff’s physical custody. The 2017 Amendment provides that the Stipulation of Settlement shall remain in force except to the extent that any provision therein conflicts with it. No provision in the 2017 Amendment conflicts with paragraphs 6 (Q) or 6 (R) of the Stipulation of Settlement. Paragraph 6 (Q) of the Stipulation of Settlement provides that “[t]he Children shall continue to be raised in accordance with the strict tenets of Chasidic Orthodox Judaism.” Paragraph 6 (R) of the Stipulation of Settlement provides that plaintiff and defendant “shall ensure that the Children dress in the same style of weekday, Shabbos, and Yom Tov attire as that which is worn by the Husband and Wife’s families, to wit, clothing worn by Chasidic Orthodox Jewish males.” Defendant claims that at times, plaintiff only took the children to the Shabbos morning services, but rarely on Friday night or for the afternoon and evening services on Shabbos. She also claims that plaintiff has discouraged the children from wearing their traditional Chasidic clothing for Shabbos, and, instead, encouraged them to stay home in their pajamas. Plaintiff states that he raises the children as Chasidic, and that the children are very happy with the religious observance at his home. Plaintiff asserts that defendant insisted that the older son dress in a style that is contrary to the Satmar tradition, but instead comports with her husband’s style of dress. Plaintiff attests that he never discouraged the children from wearing their traditional Chasidic clothing for Shabbos. Plaintiff states that he only did not take the children to synagogue when it was unsafe at the height of the COVID-19 pandemic. “New York courts will enforce clauses in custody agreements that provide for a specific religious upbringing for the children where the agreement is in the best interests of the children” (Cohen v. Cohen, 177 AD3d 848, 853 [2d Dept 2019], appeal dismissed 35 NY3d 947 [2020]). Notably, it is unconstitutional to direct plaintiff himself to comply with the cultural norms of Chasidic Judaism during his periods of parental access (see Weichman v. Weichman, 199 AD3d 865, 867 [2d Dept 2021]; Cohen v. Cohen, 182 AD3d 545, 546 [2d Dept 2020]). While defendant’s husband’s practice of Chasidic Judaism may be more rigorous and stringent than that of plaintiff, plaintiff is providing the children with a Chasidic Jewish upbringing in compliance with the Stipulation of Settlement. The court directs that plaintiff continue to comply with paragraph 6 (Q) and paragraph 6 (R) of the Stipulation of Settlement. Conclusion Accordingly, plaintiff’s motion is granted to the extent that: (1) the court directs the parties to follow a 2/3 schedule with respect to plaintiff’s visitation with the children (without makeup visits); (2) the court directs that plaintiff shall have annual vacation parenting time with the children for two consecutive or nonconsecutive weeks per year in accordance with the 2017 Amendment; (3) the court directs defendant to transport the children to Brooklyn at the commencement of plaintiff’s weekend access time with the children in accordance with the 2017 Amendment; (4) the court directs defendant to permit the children to call plaintiff every day, as set forth in the 2017 Amendment, and directs defendant to return to the children the cellular telephone purchased by plaintiff specifically for such telephonic access; and (5) the court directs defendant to comply with paragraph 6 (I), (J), and (K) of the Stipulation of Settlement. Plaintiff’s motion, insofar as he seeks an order compelling defendant to participate in mediation, is rendered moot since the parties have already unsuccessfully engaged in mediation. Defendant’s cross motion is granted to the extent that plaintiff is directed to continue to comply with paragraph 6 (Q) and (R) of the Stipulation of Settlement. Defendant’s cross motion is denied in all other respects. This constitutes the decision and order of the court.
