D.D.1 Plaintiff v. E.E., Defendant DECISION AFTER HEARING In this custody proceeding, the parties, counsel and the court have worked for a period of years to attempt to re-integrate to the extent possible defendant E.E.’s (“Defendant”, “Father”) relationship with subject child Anne E2., born on [redacted], 2011, and to establish a nurturing, positive relationship with subject child John E., born on [redacted] 2017, shortly before the parties separated. The divorce itself is being addressed by [another state's] court, which is where the parties resided together prior to plaintiff D.D. (“Plaintiff”, “Mother”) leaving the marital residence with their children allegedly because of domestic violence perpetrated by Defendant. After a hearing, the [other state's] courts determined that New York was the home state of Anne and also ceded jurisdiction over then-baby John, while the [another state's] court maintained jurisdiction over the divorce itself. The divorce remains pending in [another state]. The relationship between Father and Anne and this court’s ability to foster that relationship to the extent appropriate were appropriately more detailed and complex due to Mother’s detailed allegations that Father physically abused Anne, and that he committed several acts of domestic violence against Mother in the presence of Anne, explaining why Anne has not wanted to see her Father even under supervision. The court appointed social workers to engage in therapeutic supervised parenting time for Father and Anne and then with John, and conducted numerous oversight-related hearings concerning the progress or lack thereof in the parent-child relationships. Although there was no allegation that John had ever been abused in any manner by Defendant, John also developed, at times, an aversion to parenting time with his Father. Defendant attributed the difficulties in developing relationships with his children to Plaintiff’s alienating conduct, while Plaintiff proffered domestic violence toward Anne and toward Plaintiff in the presence of Anne as the primary reasons why the child did not want to see her Father, despite therapy and supervision. Plaintiff surmised that John has picked up on Mother’s and Anne’s aversion to contact with Father to explain his reticence or outright upset at times when he was to see Father. As the issue of whether or not Defendant had committed acts of domestic violence against Plaintiff continued to inform the issues of supervision of Father’s parenting time and other therapeutic interventions, the parties (each with counsel) agreed to the court’s suggestion that it conduct a more limited hearing to determine whether or not Defendant committed domestic violence against Plaintiff or Anne or both, rather than a complete custody hearing. This was suggested with the hope that the result of that more limited hearing would impel the parties toward an appropriate resolution (although understanding that a custody hearing may be necessary down the road if there is no resolution, of course). The court heard from ten witnesses, viewed over one hundred exhibits and was able to determine by a clear preponderance of the credible evidence that Defendant did in fact commit several incidents of domestic violence against Plaintiff, at times in the presence of Anne. In addition, the court finds that Defendant used inappropriate force on one occasion to stop Anne from interfering with John’s “bouncy seat” and that this conduct was traumatic for Anne. In addition, Defendant has made comments conveying a threat of serious physical harm to Plaintiff, sometimes in Anne’s presence, and has made comments to Anne or in her presence suggesting the possibility of excessive corporal punishment to the child in the future if the child did not act in a certain manner. Both parties testified in an insistent manner — Mother, that there had been much domestic violence over a period of years and that she lived in fear of her life at times, and Father, that he never committed or threatened to commit domestic violence of any kind, and that Plaintiff has concocted these events to erase him from Anne’s and John’s lives. The highly credible testimony of certain non-party witnesses has played a key role in the court’s determination, particularly the testimony of Tom A. and Joan A.3. The A’s were hosts when Father arrived in this country from [another country] and Father was like a son to them. They also became close with Mother, who also emigrated to the United States from [the same country]. The court also credited the testimony of Plaintiff’s mother, Ms. D. The maternal grandmother described a 2018 incident in which Anne refused to eat her food at the dinner table and Mother told Anne that she had to try the food. Anne had a tantrum and Father took Anne to her upstairs bedroom, where the child continued to scream. The maternal grandmother kept insisting that Father return upstairs and take the child. Plaintiff started to take steps toward the stairwell and Defendant intercepted her and grabbed Plaintiff by her throat, choking her. According to the maternal grandmother and Mother, Plaintiff lost consciousness. According to this witness, when she ran over to them, Defendant let go of Plaintiff’s throat and she fell to the ground. Although no marks on Mother’s neck could be seen a few days later during an airplane ride [redacted] for a business trip, the court nonetheless credits the maternal grandmother’s testimony based upon its observation of the witness during her testimony, wherein the witness appeared credibly to be re-living the incident as she described it. Plaintiff testified at great length subject to extensive cross-examination. Mother testified in great detail concerning the choking incident described by the maternal grandmother above. Ms. D. described in detail a number of other incidents dating back almost ten years. Although the witness at times confused the precise dates of certain incidents, with incidents occurring in October of different years, the witness’s testimony was consistent, clear and credible. Some of the incidents were corroborated by the testimony of non-parties. In a September 2011 incident, following an argument, Ms. D testified that Mr. E pushed her and she smacked her head into a wall while she was holding baby Anne. As confirmed by Tom A. and Joan A, Ms. D. called the A’s and asked them to pick her up. Joan A. lived with the parties for about three weeks. Plaintiff asked Ms. A to call the police if anything happened to [Mother] because if something did happen, it was because [Father] did it. The A’s were key witnesses, as it was clear that both Mr. and Ms. A loved both parties as though they were their children, and the feelings of love were mutual. The A’s, as original international hosts for Mr. E, became close with Ms. D as well. The hosts attended the parties’ wedding in [another country], traveled with the parties and maintained regular and loving contact with both parties. Both witnesses were quite elderly. Joan A. testified that when she and Mother and Anne stayed together in 2011 because of the incident described above, Ms. D informed the A’s that she had told [Father] that she had given the A’s an envelope with proof that [Father] had abused her. Although no envelope in fact existed, after Mother had left, Father tried to get the envelope from the A’s, stating that he needed it, and demonstrating consciousness of guilt, corroborated by strong testimony from [Mother] and Mr. and Ms. A, although such a concept is generally applied in criminal, not civil, cases. See People v. Bennett, 79 NY2d 464, 469-470 [1992] ["Certain postcrime conduct is 'indicative of a consciousness of guilt, and hence of guilt itself.'…(C)onduct that has been recognized as revealing a guilty mind includes false statements or alibis; coercion or harassment of witnesses; and abandonment or concealment of evidence" (citations omitted)]. As in criminal cases, the court does not rely on this incident (Father attempting to retrieve the envelope from the A’s) as the only evidence in the hearing, but rather, as conduct to be considered together with other evidence and testimony. Both Ms. A and Mr. A testified that they had a joint telephone conversation with Father in January 2018 after Mother had left the marital residence for New York. They asked Father why Mother had left and Father answered that he did not know. After Tom A stated that Mother had claimed that Father had threatened to kill her, her brother, her family and the children, [Father] responded that “I never said the children.” Both A’s stated that [Father] did not deny making the threat, except for this one qualification. The court found both of these witnesses highly credible and that they had no motivation whatsoever to prevaricate. Although Mr. A did not accurately recall some details of the relevant conversations with the parties, including about the “envelope”, his essential testimony was sound, including the conversation about not killing the children. Mr. A was “sure about that,” “positive”. Unfortunately, Mr. A passed away not long after completing his testimony (including all cross examination). During his redirect examination [Father] testified that after telling the A’s that he never threatened to kill the children, he explained that he and his wife had been having arguments; however, neither Ms. A nor Mr. A corroborated such testimony. Lisa S.4, Ms. D’s host parent in the United States, confirmed in her testimony an incident involving Defendant allowing Anne to be hurt. At a 2012 dinner, [Mother] had prepared a steaming bowl of broccoli and handed it to [Father] telling him that the broccoli was very hot. Anne was younger than two years of age at this time and was sitting in her high chair and screaming that she wanted food. Defendant then put the steaming hot broccoli in front of Anne who grabbed the food and screamed in pain from the heat of the food. According to Ms. S., who testified credibly, [Father] started laughing. [Mother] immediately ran over to Anne and ran cold water over the child’s hand. Although [Father] denied that he gave Anne the excessively hot food, the court found Ms. S. to be a credible witness. [Mother] testified to a Fall 2015 incident in which [Father] called her names and stated calmly that he would kill her. After Mother took out her phone to record the threats, Father bit her hand causing her to drop the phone. This took place in Anne’s presence. In fact, Anne cited observing this incident to her own therapist. The court found that the child’s out-of-court statements, which related to abuse or neglect, were admissible in this proceeding, pursuant to Family Court Act §1046(a)(vi), because they were corroborated by mother’s testimony about her observations and by Father’s own admission of a part of one incident (the “bouncy chair” incident discussed below). Matter of George A. v. Josephine D., 165 AD3d 425 [1st Dept 2018].” Mother described a September 2016 incident in which Father punched his fist into the right side of her body. The parties had been arguing about Hillary Clinton. According to Plaintiff, Defendant called Plaintiff a piece of shit, motherfucker and punched her in front of Anne, who was around five years of age at that time. Plaintiff testified that Defendant was physically abusive toward her every few months, stating, “it was a cyclical pattern—one moment he would punch me with a closed fist and slam my head forward, and the next moment he would tell me that I was the ‘best thing that ever happened to him.’” According to Plaintiff, on or about October [redacted], 2016, [Father] both pushed and choked her following a dispute concerning a “cleaning lady”. [Mother] testified credibly that [Father] called her a “worthless piece of shit” to embarrass her in front of the family. He also choked her, although she did not lose consciousness. The witness averred that [Father] hit the back of her head violently with a closed fist and hit her on the arm. Anne witnessed another incident of domestic violence in May 2017. With Anne in the car, the parties apparently had an argument about carpeting, after they had picked up Anne from a birthday party. Father yelled at Mother calling her a dumb shit and told her to fucking make up her mind. From the back seat, Anne started hitting her father with a pool “noodle”. Father screamed at Anne and told her to stay out of it or he would punch her in the face. The “bouncy chair” incident played a significant role in this proceeding. When John was a baby and sitting in what is described as a bouncy chair, apparently Anne kept trying to interfere with John in the chair, possibly out of jealousy of the attention to John. At one point, Father asserted that he was concerned that Anne would knock over the bouncy chair and Father put his foot directly on Anne’s chest. To Anne this was and remains an extremely frightening and upsetting event. Father claimed that there was only light pressure on Anne’s chest, while Anne appears to this day to be traumatized by the event. The court cannot discern how much pressure Father placed on Anne’s chest, but the decision to use his foot in this manner was not sound at the time, and by no means is “Monday morning quarterbacking” as Defendant would have it. Anne’s continued reaction to this incident plays a role in dispelling Defendant’s proposition that Plaintiff is actively alienating the child from Defendant. [Father] denied all claims of domestic violence in any form and at any time. Defendant responded to each alleged incident, stating that he committed no domestic violence toward Plaintiff and never threatened Anne. For example, Defendant testified that in 2011 he never smacked Plaintiff in the head or pushed her into a wall. Father averred that when Mother went to stay with the A’s for a period of weeks, that visit had been pre-planned and had nothing to do with domestic violence. Concerning the broccoli incident, [Father] testified that it was [Mother] who brought the hot broccoli to the table and that he had not known that the broccoli was hot. He stated further that when Anne cried out after touching the hot broccoli, he did not laugh. With respect to the pool noodle incident, Defendant testified that during an argument with Plaintiff, Anne hit him several times in the face with the pool noodle while he was driving, apparently in an attempt to keep her parents from arguing. Defendant testified that he yelled at Anne to stop hitting him with the pool noodle because it was dangerous when he was driving. He asked Anne how she would feel it someone hit her in the face with the pool noodle, but never threatened to punch her in the face. Defendant did acknowledge an October 2015 argument with Plaintiff in which Plaintiff attempted to record the parties with her cellphone. Defendant stated that the parties’ argument “escalated into a tug of war over the cell phone and pushing.” He denied grabbing Plaintiff by the throat, elbowing her or biting her hand, but did acknowledge trying to take the cellphone from Plaintiff’s hand. Regarding Plaintiff’s photograph of a bruise on her arm allegedly caused by Defendant in or about November 2016, Defendant stated that he had no idea how Plaintiff received the bruise and was traveling around that time. Explaining a late September 2017 incident, Defendant related that he was frustrated by his wife’s complaints about him and “pushed the ottoman with my feet in a sign of frustration and her feet fell down.” He claimed that Plaintiff then hit him with her hand with a closed fist and Defendant got away to avoid any further incident. [Father] directly denied strangling [Mother] in October 2017. According to Defendant, during a meal, Anne misbehaved and Father determined to give her a time-out upstairs in her room. Anne was crying and Plaintiff became more agitated because of the child’s crying. Plaintiff’s mother interfered and wanted to go to Anne because the child was crying. After Defendant told the maternal grandmother not to interfere, Plaintiff allegedly told Defendant not to talk to her mother in that manner and “charged towards [him] with her hand raised and shaking her fist at [him] and got in [his] face.” Much of his cross-examination of [Mother] pertained to imprecision on Plaintiff’s part in her testimony as to exact dates of incidents of domestic violence several years ago. Given the clear and credible testimony of several witnesses, including Mr. and Ms. A and Ms. S, and that of Plaintiff herself, the court does not find that Defendant displayed an accurate present recollection of material events. Defendant did show that in certain photographs there were not bruises on Plaintiff when, if Plaintiff’s dates were correct, it would be more probable than not that there would be some bruising evident. Overall, however, the court found [Mother] to be a credible witness. The court had appointed Dr. Sara L. Weiss, a licensed psychologist, to conduct a forensic evaluation. Dr. Weiss was qualified as an expert in the field of forensic psychology, with a specialization in the area of child custody. Dr. Weiss testified at some length in the hearing concerning the issue of domestic violence and the subject family. Dr. Weiss described in some detail the methodology she utilized in conducting her evaluation concerning domestic violence. She spoke with the parties, Dr. — Anne’s therapist, — [Mother's] therapist, Mr.. and Ms. A, and Anne’s teacher, Ms. Kim. The expert witness also reviewed a risk assessment reported from Dr. Adam Bloom, which assessment and report had been ordered by the court. Dr. Weiss also reviewed psychological testing conducted by Dr. Paul Hymowitz, which testing Dr. Weiss found relevant. Dr. Weiss discussed her view that Father’s conduct toward Mother here was consistent with a pattern of control, denigration and lessening of Mother’s self-esteem. Dr. Weiss noted that intermittent abusive behavior, mixed with apologies and at times loving behavior, makes it difficult for the abused partner to break away from the relationship. The witness cited [Mother's] remarkable physical reactions, including trembling at different times. Dr. Weiss perceived [Mother] as an abused partner who was, nevertheless, functioning well in life and receiving coping strategies from her therapist. The expert witness’s review of Dr. Hymowitz’s psychological testing indicated that the testing was congruent with Mother being a victim of abuse. Dr. Weiss also opined that there was a high likelihood that Anne witnessed domestic violence, although there was no way to be certain. Dr. Weiss opined that with a reasonable degree of psychological certainty both [Mother] and Anne were very probably victims of domestic violence. To the extent of the testimony described above, the court credits Dr. Weiss’s testimony. Analysis of domestic violence is not an exact science. The court notes that it does not place any value on that portion of [offered evidence] that attempted to infer from a limited study of domestic violence in [country] by men from certain backgrounds whether there was a higher probability of Defendant committing domestic violence, and no weight could be given to such a study as part of a necessarily individualized determination here. At this point Anne has just turned 12 and John is approximately five and one-half years of age. The court has attempted for a period of years to order services for the parties and the subject children, has imposed at times different levels of supervised parenting time in an attempt to re-establish [Father's] relationship with Anne and to facilitate the relationship between Father and John. There has been limited progress regarding Anne and some progress concerning John. As noted above, the court cannot be certain whether or not Defendant committed acts of domestic violence toward Plaintiff and Anne or whether Anne observed domestic violence committed by her father against her mother. Based upon a fair preponderance of the credible evidence, however, the court finds that Defendant committed acts of domestic violence against Plaintiff and committed certain acts toward Anne that understandably were perceived as violent or threatening. The hearing was consensually limited to this issue. Next steps in this proceeding include attempting to settle custody if there is consent to do so, with counsel, and to direct services for the parties and subject children based in part upon the findings in this hearing. If there is no settlement, the court notes that the custody hearing itself most likely would not be extensive in nature, as the court has already received extensive testimony in this hearing which would form part of the evidentiary record in the custody hearing and is directly relevant to the issue of custody. The court notes that neglect pursuant to Family Court Act, section 1012, includes a child’s physical, mental or emotional condition being impaired or in imminent danger of becoming impaired based upon failure of a parent to exercise a minimum degree of care in providing the child with proper supervision or guardianship. Nicholson v. Scoppetta, 3 NY3d 357 [2004]. Anne’s experience in observing domestic violence committed by her father against her mother can cause such harm or put her at imminent risk of such harm. Matter of Anilya S. (Mohamed S.), 2023 NY Slip Op 03697, 2023 WL 4346983 [App. Div. 2d Dept July 5, 2023]. Anne’s observing even a single act of domestic violence may be sufficient for a finding of neglect, id. (quotations and citations omitted). Although this is not a neglect proceeding, the issue of domestic violence is expected to play a significant role in the final custody determination. This constitutes the decision and order of the court. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED DENIED GRANTED IN PART X OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: July 13, 2023
