S.G. v. T.P.

ADDITIONAL CASES In the Matter of a Custody Proceeding Under Article 6 of the Family Court Act T.P., Petitioner v. S.G., Respondent DECISION AND ORDER AFTER TRIAL PROCEDURAL HISTORY The parties, S.G. (hereinafter “Father”) and T.P. (hereinafter “Mother”), are parents of the subject child, T.V.G. born on X, X, 2018 (hereinafter “T.V.G.”). On February 28, 2022 the parties entered into a Final Order of Custody and Parenting Time on Consent wherein they agreed to, inter alia, joint legal and residential custody of T.V.G., with the Father to have residential custody for school purposes (hereinafter the “2022 Order”). The 2022 Order granted the parties joint legal and residential custody of T.V.G., with the Father having residential custody for school purposes only. The 2022 Order specifically required that the parties consult with each other as it pertains to major decisions regarding the child’s education, medical care and religion and required that they speak to a professional in the applicable field in order to arrive at a mutually agreeable decision. Absent an emergency, neither party was granted final decision-making over the other. The parties were similarly required to mutually agree on a school for the child with the Father to be responsible for all educational expenses. The parties were to give each other timely advance notice of all medical, dental and other similar appointments for the child, not to be scheduled during the other parent’s parenting time, and the parties were to provide each other medical documentation concerning the visit. Both were entitled to complete detailed information from all medical providers, educational providers including the school, and each were to execute any documentation necessary to effectuate the other’s access to same. Both parents were to be listed as emergency contact person for the child’s school and any extracurricular activities. Pursuant to the 2022 Order, the parties were required to provide one another with the “right of first refusal” any time the party exercising parenting time was unable to care for the child before resorting to a third party childcare provider. Each party was to be responsible for transporting the child to any appointments, activities, lessons, sporting events, etc. which took place during their parenting time, and was to be responsible for ensuring the child’s homework was completed. Both parents were to be permitted to attend any and all school, extracurricular, or other such events for the child and the parent receiving notice of same was required to provide the other with said notice within 24 hours or sooner. The parties were required, pursuant to the 2022 Order, to enroll and participate in My Family Wizard to communicate with one another, and each party was to have reasonable daily telephone, FaceTime, Skype and/or email access with the child not be supervised, monitored, or otherwise interfered with by the other parent. The 2022 Order also set forth a parenting time schedule whereby the Mother had parenting time during the first, second, and fourth weekends of each month and alternate Tuesday evenings for dinner. There was also a schedule for holiday parenting time. The 2022 Order is silent as to transportation. On June 23, 2023, the Mother filed a Petition for Modification of an Order of Custody/Visitation seeking to modify the 2022 Order and seeking residential custody of T.V.G. (Docket No. V-05287-21/23C). On July 10, 2023, the Father filed both a Petition for Enforcement/Violation of an Order of Custody/Visitation (Docket No. V-05287-21/23D) and a Petition for Modification of an Order of Custody/Visitation (Docket No. V-05287-21/23E) alleging certain violations of the 2022 Order and seeking an order of sole custody of T.V.G.. Also on July 10, 2023, the father filed a Family Offense Petition (Docket No. O-5198-23) and the Father filed a Writ of Habeus Corpus (Docket No. V-5252-23) wherein he alleged that the Mother had not returned the child since July 7, 2023. The parties appeared in court on July 17, 2023. Jason Isaacson, Esq. was assigned to represent the Mother, Michael Kaszubski, Esq. was assigned to represent the Father, and Tara Madden, Esq. was assigned as attorney for the child. The Writ was marked satisfied on July 17, 2023, and the Court directed the Nassau County Department of Social Services (hereinafter, “DSS”) to conduct an investigation and submit a report to the Court pursuant to FCA §1034. The parties appeared in court on August 2, 2023 and the Father’s Family Offense Petition (O-5198-23) was withdrawn without prejudice. On August 17, 2023 the Father filed a new Family Offense Petition (Docket No. O-6551-23) and another Petition for Enforcement/Violation of an Order of Custody/Visitation seeking to modify the 2022 Order and seeking sole custody of T.V.G. (Docket No. V-05287-21/23F). On September 6, 2023, the matter appeared on the court’s calendar but was adjourned off the record due to unavailability of counsel. DSS submitted a report to the Court dated September 6, 2023 which concluded that the allegations were unfounded, and the investigation was closed. On September 20, 2023 the parties appeared in court, and the Court directed DSS to conduct an investigation with respect to new allegations and to submit another report to the Court. Also on September 20, 2023 the Mother filed another Petition for an Order of Custody seeking to modify the 2022 Order and seeking sole legal and residential custody of T.V.G. (Docket No. V-05287-21/23G). On September 25, 2023 the Father filed another Petition for Enforcement/Violation of an Order of Custody/Visitation alleging certain violations of the 2022 Order and seeking sole custody of T.V.G. (Docket No. V-05287-21/23H). The parties appeared in court on October 4, 2023, and DSS submitted a report to the Court which concluded that the new allegations were unfounded, and the investigation was closed. The Court directed DSS to conduct a further investigation of the allegations and to submit another report to the Court. On January 2, 2024 the parties appeared in court. The Mother consented to a Final Order of Protection for six months as a resolution to the Father’s pending Family Offense Petition (Docket No. O-6551-23). The Mother’s /23C petition was consolidated into her /23G petition. The Father’s /23D petition was withdrawn. The matter proceeded to trial on January 2, 2024 with respect to the three remaining petitions, to wit, the Father’s /23F and /23H petitions and the Mother’s /23G petition. The trial continued on January 3, 2024, January 31, 2024, March 27, 2024 and April 4, 2024. On March 27, 2024, it was disclosed during the Mother’s testimony that there had been a Suffolk County Child Protective Services investigation pertaining to the Mother’s other child, A.S., who is not the subject of the instant proceedings. The Court directed the Nassau County Department of Social Services (hereinafter, “DSS”) to conduct an investigation and submit a report to the Court pursuant to FCA §1034, which was done on April 4, 2024. The report from DSS revealed that the Mother’s paramour, V.S., had been indicated by Suffolk County Child Protective Services for allegations of Inadequate Guardianship and Parent’s Drug/Alcohol Misuse, and that orders of protection had been issued on behalf of the Mother and A.S. as against V.S. The Court conducted an in camera with T.V.G. on April 4, 2024 and the trial was concluded. While not the subject of the trial, the Court notes that the Father filed another Petition for Enforcement/Violation of an Order of Custody/Visitation on April 1, 2024 alleging a series of continued violations of the 2022 Order (Docket No. V-05287-21/23I). FINDINGS OF FACT The Father’s Tetimony The Father testified as his own, and only, witness. He stated that he has resided in his home in Roosevelt since 2010. He testified that the Mother was currently, as of date of his testimony on January 2, 2024, living in Holbrook but that he anticipated that would change as of the week of T.V.G.’s birthday, January 20, 2024 and that he was unaware of the new anticipated address as he hasn’t been given any update. The Father stated that T.V.G. attends school at Ulysses Byas Elementary School in Roosevelt, approximately one block away from his residence. The Father testified that he currently works for Epic Pharma, a pharmaceutical company located in Springfield Gardens, Queens. Pursuant to the 2022 Order, the Father testified that he has residential custody for school purposes, and that the Mother has parenting time during the first, second and fourth weekends each month, and alternating Tuesdays for dinner. He filed his instant petition seeking to modify the order as the parties argue over the current order. He testified that the Mother exercises her parenting time, but not always, and that there have been a lot of issues with the time and logistical arrangements for transportation. The Father stated that the Mother shows up early for pickup even if she has previously requested to do so but he declined and this often turns into an argument in front of the child. The Mother then complains that she doesn’t have gas and can’t drop T.V.G. off at the conclusion of her parenting time. The Father testified about another incident that occurred on August 11, 2023, his birthday. His stated that his work hours are 8:00 a.m. to 4:30 p.m. and that he typically gets home by 5:30 p.m. at the latest. He was at work at the time and his mother called to tell him that the Mother had showed up early. The Father states he lives with his mother, his younger sister and his other daughter who is five years old and in kindergarten at the same school as T.V.G.. With regard to transportation, the Father states that the 2022 Order only states what time the Mother’s parenting time starts and ends, but says nothing regarding transportation. He stated that the parties had agreed that the Father he would pick up T.V.G. from the maternal grandmother’s house in West Islip or at a pizzeria nearby around 7:00 to 7:30 p.m., but the Father testified that the Mother “broke that agreement.” He testified that, usually, he or his mother pick up T.V.G. from school, and the Mother would pick her up from his house at 6:00 p.m. at the start of her parenting time. The Father states the Mother’s parenting time was supposed to start at 6:00 p.m., but she showed up at 3:30/4:00 p.m. He was called by a family member and also spoke to a police officer who responded to the scene. He came home from work at 4:45 p.m., as he had left as soon as he got the call. When he arrived home T.V.G. was in her room crying. He showed the police officers the 2022 Order, they escorted the Mother to the corner of his block, and he got the child ready and brought the child to the Mother with her medication and instructions. The Mother then took T.V.G. for her parenting time and he went to the “meet location,” which he stated he believes was the pizzeria in West Islip on this occasion, at 7:00 p.m. on August 12th to pick the child up at the conclusion of the Mother’s parenting time without incident. The Father testified about an incident that took place on July 7, 2023. He stated that T.V.G. was taken from a gas station by the Mother and her boyfriend, and that he was called by the police to leave work to fill out a police report. He stated that the Mother picked up T.V.G. at 3:30 that day when the pickup time was supposed to be 6:00 p.m.. He had spoken with the Mother the day before, July 6, 2023, both on the phone and by text. He testified that he asked her to please come on time, and that she wanted to come “the time she wanted to come” to pick T.V.G. up from school. School ended at 2:15/2:30 p.m.. This was the Head Start preschool program which ran from September 11th through July 31st. T.V.G. had been with the paternal grandmother, the Father’s older daughter, and his grandson during the incident. The Father testified that the Mother took T.V.G. out of the car seat and his mother called him, he left work and arrived at the gas station at 4:00/4:15 and neither the Mother nor T.V.G. were there. He testified that he spoke to the Mother later that day on the phone, she asked about the child’s medication. The Father testified that the child was diagnosed with bronchial asthma about a year ago and that she currently takes Albuterol, Flovent, Montelukast, and a nasal spray with a name that begins with an “F”. The Father testified that Angela Webb, is the child’s asthma doctor. The Mother wasn’t present at the appointment when she was diagnosed, but she was on the phone during the appointments so that she could participate. Angela Webb, the child’s asthma doctor, is a pediatric pulmonologist. The Father testified that he has been to all the appointments with Dr. Webb, except maybe one when his mother brought the child. Maria Palazzo is the child’s regular pediatrician, and she recommended Dr. Webb. The Father further stated that during this phone call, the Mother could be heard asking about the medication in the background of the call, as the child didn’t have it with her. The Father said that when he would be home during the Mother’s pickups, he would give her the medication and it would be returned at the end of the visit. On July 7, 2023, he told the Mother that if she had picked the child up on time she’d have the medication, and asked how the child was supposed to take her medicine that night if she didn’t have it. He said goodnight to child on the phone and hung up without argument. The Father testified that the Mother showed up at his home on July 8th, the next day, and that his older daughter was attempting to give Mother the medication and “an altercation happened.” His oldest daughter then called him on the phone and he directed them to the medication. The Father testified that the Mother then called him and stated, “you’ll never see your f’ing daughter again”, and was cursing. He next saw the child after he filed a Writ Petition. T.V.G. didn’t go to school during that time and missed seven total days of school. She was supposed to be returned on the 9th but was not returned. When T.V.G. did not show up on July 9th, he testified that he texted the Mother and stated that she responded with “a sarcastic text message” indicating she was not dropping the child at the meeting location and she was not bringing her back to the Father. The Father testified that he then called the police and filed a police report. For the next week he had no phone calls and no contact with T.V.G. until the Writ was satisfied in court on July 17, 2023. With regard to communication, the Father testified that the parties’ communication is “terrible” and that they can’t agree unless he says yes to the Mother’s requests. He says the order is “taken advantage of” and only “goes into play” when it benefits her. According to the Father, the parties had a discussion around September and October regarding transportation. He said that she can pick the child up on her scheduled days and drop the child off and that he would not be picking the child up anymore because she “broke the agreement.” At that point the Mother said the agreement doesn’t work for her anymore. He testified that he told her it was her responsibility to find ways to get around to pick up and drop off, and that she said she wouldn’t and that he’ll have to pull his own weight. He testified that he has driven out to Holbrook to pick the child up on a few occasions in the last year. He further testified that he did pick up at the maternal grandmother’s residence in West Islip every Sunday for the past year pursuant to a notarized agreement between the parties. That was prior to the September/October conversation. After that, the Father testified, that the Mother stopped bringing the child to West Islip and insisted on pickup at Holbrook. They had that discussion by text and telephone. The Mother told him that she didn’t have gas. Regarding his requests pursuant to his modification petition, the Father stated that he wants the court order to contain specific guidelines because without a court directive they don’t get anywhere. He wants the transportation arrangement adjusted and he wants full custody because he states he has always had it, and that he gets little to no help from the Mother. He says “everything” has changed since the 2022 Order and that the court order is not followed. The Father testified that in May, the parties agreed and T.V.G. was enrolled in school at Ulysses Byas and he emailed the information to the Mother and sent her T.V.G.’s student ID number. He testified that the Mother signed the child up for Girl Scouts that same day in September in the Roosevelt school district. There was one Saturday Girl Scouts event and the Mother didn’t attend. There was another event that they both went to and then after that she was taken out of Girl Scouts and the Mother asked for a refund. He states that the Mother should bring the child to her activities if they fall on the Mother’s weekend per the current court order, but that the Mother does not do that. He signed her up for an orientation for Girl Scouts and sent the Mother the information. He attended but neither T.V.G. nor the Mother came. The Father states works a second job as a delivery driver during the Mother’s parenting time. He stated that he drives a box truck through Uber delivering food through a private contractor whose name the Father wished not to reveal as the job is “off the books” and that he makes his own hours and schedule. He testified that whenever he’s not at work he’s with T.V.G., except when she’s with her Mother. He stated that he arrives home by 5:00, 5:30 at the latest and he then makes dinner, does homework with T.V.G., he bathes her, does her hair, sometimes they play or she plays, and sometimes she plays with his sister. He stated that T.V.G. also practices on her easel and reads. The Father testified that the relationship between his younger sister, who is 32 years old and has Downs Syndrome and T.V.G. is “bumpy” because she doesn’t always recognize T.V.G., and sometimes she doesn’t want to be bothered, but sometimes they play nonstop. The Father stated that he works 40 hours per week at his regular job, and the delivery job Fridays, Saturdays and Sundays for 5-12 hours a day. Direct examination concluded. The Father testified on cross-examination that he was working three jobs at the time the 2022 Order was entered into, and now works two jobs. He stated that he works for Uber Mondays, Tuesdays, Wednesdays or Thursdays only during the Christmas holiday time and around the child’s birthday which is in January. His hours for his primary job are 8:00 a.m. to 4:00/4:30 p.m. and his typical commute home is 15 to 50 depending on traffic. The Father testified that T.V.G. gets out of school Tuesdays and Thursdays at 4:00 and Mondays, Wednesdays and Fridays at 2:30. She attends an after school program Tuesdays and Thursdays. The Father testified that the 2022 Order gives the parties joint legal custody and that it requires them to make joint decisions or to consult with an appropriate professional in the event of a disagreement. The Father stated that his mother picks T.V.G. up on Mondays, Wednesdays and Fridays. The Father testified on cross-examination that the Mother picks T.V.G. up from school “occasionally” as sometimes for the alternate Tuesday dinner visits she will ask to pick up directly from school. The Mother doesn’t pick up Mondays, Wednesdays and Fridays and he’s never offered her that option. He testified on cross-examination that he would have offered if the Mother hadn’t already told him that she works later than that. He stated that there have been times he’s asked her if she wants additional time in the last year but because she had an infant she was unavailable. During the Mother’s maternity leave with respect to her younger daughter, which was for three and a half months from November 2022 until February 2023, he didn’t ever call her to ask if she wanted additional time with T.V.G. even though he knew the Mother was home with the baby. He testified that the parties communicated recently regarding the child’s school. He stated that T.V.G. went to Ulysses Byas for kindergarten and “as of now” she’s going to Ulysses Byas for first grade. He testified that the Mother texted him November 28, 2023 proposing other schools. They spoke about it when they appeared in Family Court on November 28, 2023. The Father denied that the Mother texted him later that day with proposed additional schools. He testified that the Mother had texted him the Friday prior to the January 3, 2024 court date about it and that he didn’t respond. No discussions about school choice occurred between between November 28, 2023 and the date of his continued testimony, January 3, 2024. The Father testified on cross-examination that the Mother has come to his house before he’s home from work on a couple of occasions. He has spoken to people in his house about it as well as with the police on one occasion as the Mother had called the police after his mother had called him first to say the Mother was there early. He testified that when his mother called, he couldn’t have just agreed to let the Mother take T.V.G. then because he had to make sure she was “completely ready” although he knew he would be working at the time the Mother tried to pick her up. He testified that this happens once in a while and that he has not filed a violation every time. He stated that he’s told his mother to let T.V.G. go with the Mother a few times when she’s shown up unannounced. He further testified that he hasn’t picked up T.V.G. from school lately because he only recently replenished vacation/sick/personal time at work. He stated that during the Christmas break of 2023 that he worked one day, a Tuesday, for “like two hours” and that he did not call the Mother to offer her that additional parenting time as it was already her scheduled time and she had not shown up to pick up T.V.G.. She had texted him to ask if he was bringing T.V.G. to her and he didn’t respond. With regard to the July 7, 2023 incident, he stated that the Mother picked up T.V.G. at 3:30 that day and he was at work at the time. He had spoken with the Mother the day before, July 6, 2023 and asked her to come on time. T.V.G. had been at Head Start that day. He had spoken with the Mother prior to enrolling T.V.G. in Head Start. She had initially disagreed, then tried to enroll the child herself. Both the Mother and the principal reached out to him and he left work to go sign enrollment papers. The Father testified on cross-examination that with regard to the current Roosevelt public schools, the Mother had asked what was going on with enrollment, he said he didn’t know and had to check, and then he enrolled her. At the time there were “three paid for private schools but she wasn’t accepted to those.” According to the Father, one was a new school, one was for special needs children, and the other “was too far and too expensive for the days and not enough time for our child.” With regard to the child’s bronchial asthma diagnosis, the Father testified that T.V.G. was diagnosed a year ago, that the Mother was the one who made the appointment. He has attended all of her appointments except one that the Mother took the child to. According to the Father, T.V.G. takes Flovent, “two puffs” twice a day, once first thing in the morning and the second time between 6:00 p.m. and bedtime. She takes Montelukast around bedtime and a nasal spray right before she goes to sleep. He testified that the Albuterol is only for a cough. When asked about the parties’ communication, the Father repeated that their communication is “terrible” and agreed that some of that is his fault. They had come to an agreement regarding transportation, and then at one point the Mother said it doesn’t work for her anymore. He offered, as a potential solution, that she bring the child home on Sundays and return to the original time of 9:00 p.m., as opposed to the 7:00 p.m. time they had agreed to. He stated that he also offered for her to keep the child Sunday nights and drop her off at school on Mondays. He testified that he doesn’t feel it should be his responsibility to stop work or change his schedule to pick up the child because the Mother doesn’t want to bring her home. He believes the Mother should be doing most of the transportation for her parenting time because he works. The Father testified that the Mother enrolled T.V.G. in Girl Scouts and he was never given any of the information. He received information from the school during the first week. He stated that they did not get past orientation, that the parties both wanted the child in Girl Scouts but the meetings were on Saturdays and the Mother has the child three out of four Saturdays so it didn’t make sense to enroll her in the district. He stated that the child’s bedtime is between 9:00 and 10:00. She gets homework, which is done as soon as he gets home from work. He testified that, when the Mother tried to discuss school, specifically regarding the Head Start program, that they should see a mediator. On cross-examination by the child’s attorney, the Father testified that when he works his regular job he gets home around 5:00 to 5:30, and that he doesn’t work his Uber job during the week. He works the Uber job on alternate Tuesdays when the Mother has parenting time. He works during the week for Uber during the holidays and around the child’s birthday in January. During those times he testified that he comes home, helps T.V.G. with her homework, makes sure she’s ready, gives her a bath, then he can “sign on” to work. When he works both jobs in one day, there are no typical hours. He states that 5:00 to 9:00 is the main shift that the employer accepts, but those aren’t his regular hours. Upon further inquiry from the child’s attorney, the Father testified that his mother cares for the child when he’s at work. His mother was born in 1954 and is “pushing 70.” He states that she has a problem with her feet, that she sees an acupuncture doctor but she’s physically fine. He testified that his mother is getting treatment for her feet through an acupuncture doctor “because she refuses to go the Nassau County Medical Center and have methadone.” He states that she used to be an addict when he was a child and went to the Nassau County Medical Center for treatment but doesn’t go anymore, and that the acupuncture helps her not have the need to go. He testified that his mother also cares for his nephew E. at various times. E. is eight years old. The Father denies that E. ever punched T.V.G. in the face or wrestled her to the ground. He stated that one time T.V.G. said he was playing too hard with her, that she was bothering him and he retaliated. He did not remember what the “retaliation” was and stated “that’s just how kids are.” The Father admitted he’s called T.V.G. a “cry baby” and called her a “punk” at one time. He stated that there is never a time when his mother is caring for T.V.G. and E. and dad’s disabled sister all at once. His sister is sometimes cared for by his mother, her father and her aunt. When E. comes he’s with his father, but he does not come during the week because he has school. E. would be cared for by dad’s mother or E.’s father at their house. The Father denied that T.V.G. burnt her hand with a lighter and/or a candle while in his mother’s care. He stated that he disciplines her by having her do schoolwork or by taking toys away. He stated that he only hit her with a belt one time when she was approximately three years old. The Father testified that on July 7, 2023 he wouldn’t allow the Mother to pick up T.V.G. early because she wouldn’t have had her medication ready. He needs to come home and make sure its done properly, that the Mother has everything she needs whether it be vitamins or an inhaler. He testified that its possible to lay out the items for the Mother and he’s done that when he comes home. His mother is unable to gather the medicine because he needs to ensure its done properly. The Father testified that his understanding of the “right of first refusal” that is included in the 2022 Order is that if he’s unhealthy or unable to care for T.V.G. that the Mother should be offered extra time, but he stated that “the way everybody presented it to me at the moment, it makes it seem like every time Ms. Palmieri says she’s willing to take her child I am supposed to say yes.” Regarding the July 7, 2023 incident, the Father stated that the child missed seven days of school in the Head Start program. He testified that she was not sick at the time, and that to his knowledge the Mother had not taken the child to the doctor during that time. When asked by the child’s attorney about his lack of response to the Mother’s text messages, the Father testified that he didn’t respond to her two texts about schools, or to her text about transportation for the dinner visits. He stated that he doesn’t respond when he feels the Mother already knows the answer because they’ve already spoken about it, and that he does so to avoid a fight because she’s asking again looking for the answer she wants. He denies that the parties “can’t work together,” and states that they worked together during the Christmas holiday. Specifically, he stated that the Mother had T.V.G. for Christmas Eve and that he picked her up Christmas Day without any problem. The Father stated that the provision in the order that calls for him to pay of 100 percent school expenses was agreed to because the Mother didn’t want to pay anything for private school, but he stated that it was not both of their intents at the time of the prior order to send the child to private school. He would pay school expenses “if need be.” The Father testified that at one point the Mother sent him a text message indicating that the transportation agreement doesn’t work for her anymore. He stated that there have been times the Mother has picked the child up from school, that a lot of times he has allowed that, and would actually prefer that. He also offered to have the Mother drop the child off at school on Mondays and she has done that “a few times when it presented itself.” The Father testified that the parties also agreed that the Mother would have the child every Christmas Eve through Christmas Day, and that he picks her up at a halfway point. This year it was at 5:00 at the maternal grandmother’s house in West Islip. He further testified that he has never worked both his regular job and a 5:00 to 9:00 shift with his second job in the same day in the last six months. Cross-examination concluded, and there was no re-direct by the Father’s attorney. At the conclusion of the Father’s testimony he rested his case. At that time, the branch of the Father’s petition that sought a modification of the prior order was dismissed for failure to demonstrate a change of circumstances, while the branch of the application that alleged violations of the 2022 Order remained. The Mother’s Testimony The Mother then began her case and testified as her own and only witness. The Mother filed a petition for a change of residential custody and states that many things have changed, and the parties do not follow the current order. She testified that while they had agreed on certain things, including the right of first refusal and school, that the order isn’t followed. She stated that, pursuant to the current order, the parties have joint legal custody and the Father has residential custody for school purposes only. She states that while the 2022 Order requires them to agree on a choice of school and that they currently don’t agree on school for next year. The 2022 Order requires the parties to discuss matters via My Family Wizard. The Mother testified that the order contains a right of refusal and recited the terms of same into the record. She further recited that the parties are both entitled to attend any and all of the child’s school events, extracurricular events, and medical appointments. The Mother testified that she has parenting time from Friday at 6:00 p.m. until Sunday at 7:00 p.m. for the first and second weekends of each month, from Saturday at 10:00 a.m. until Sunday at 7:00 p.m. the fourth weekend of each month, and alternating Tuesdays for dinner. The Mother stated that the Father works two jobs. She states that the Father works in Queens and that he works from 7:00 a.m. until 6:00 p.m. “give or take.” The Mother testified that she’s not sure of his work hours because some days she shows up early at the start of her parenting time and the Father isn’t there at 5:30 p.m., or she’ll speak to T.V.G. at 8:00 a.m. and he’s not home. She doesn’t show up early that often. The Mother testified that she speaks to the child everyday in the morning and he’s not there, his mother is with the child which she knows because she hears the grandmother in the background of the calls. She stated that the Father’s mother gets T.V.G. ready for school, does her hair and gets her to school. After school his mother picks her up, helps sometimes with homework, bathes her and washes her hair. To her knowledge, the grandmother provides childcare everyday which she learns from the Father, or from hearing the grandmother in the background of telephone calls. The Mother testified that the parties have had no discussions regarding school next year. She testified that she sent the Father information for two private schools, one in November and one in January. One is in Babylon, one is in West Islip. She testified that she’s not sure of the cost, but states that she looked into financial aid. She stated that she texted him and he didn’t respond. She testified that they discussed the current school year and that T.V.G. currently attends Ulysses Byas. With regard to prior discussions, she states that she asked the Father about school and he told her he enrolled her in Ulysses Byas. She stated that “He mentioned it, I didn’t agree.” The Mother states that the Father told her last school year he wanted T.V.G. to go to Ulysses Byas and that she said “we’ll revisit it when it gets closer” and that she later received an email from the school confirming her enrollment. She responded by texting him asking about start date, schedules, etc. The Mother testified that, as of the date of her testimony on January 31, 2024, that she currently lives 30 miles from the Father and the child’s school, having moved three weeks prior and having previously lived 38 miles away. She testified that if she was granted residential custody that she’d choose a school in between them at a halfway point, that it would be easier for them to agree with transportation as it would cut travel in half if pick up is at school. She believes a halfway point would be better for T.V.G. as it would be easier for the parties to agree to transport and she would always be halfway home from school. She believes this to be the case despite the fact that the local public school would be closer to her than a midway private school. As it pertains to her work schedule, the Mother testified that she has a different employer now than at the time of the 2022 Order. She was with Coldwell Banker, and now works for Palermo Law and her hours are 9:00 — 5:00 everyday. She has been at this new job for approximately a month and a half. She has asked to leave early and/or arrive late on a number of occasions without objection from the employer. The Mother testified that although the Father said he only does Uber driving when the child is not with him that she doesn’t believe that to be true as there have been occasions when she speaks with T.V.G. on the phone and he’s not there. During Christmas break there would be hours that the Father wasn’t present with T.V.G.. The Mother has the paternal grandmother’s phone number but the grandmother doesn’t take her calls and the call goes straight to voicemail every time. Regarding transportation the Mother testified that the Father picks up T.V.G. from the maternal grandmother’s house in West Islip which was an approximate halfway point from her prior address and she and T.V.G. are there almost every Sunday for dinner. On one occasion recently, though the Father usually picks the child up at 7:00 p.m., he did not show up. She called him and he did not answer. When she finally reached the Father an hour later, he said he was working until 10:00 so the Mother returned the child to the Father’s home. The Mother testified that her weekend parenting time starts at 6:00 p.m. and that sometimes she goes between 5:00 and 5:30. When this occurs she gets into an argument with the grandmother, with the Father’s older daughter, or with his sister about her picking the child up early. When she arrives early, she calls T.V.G. and sometimes she doesn’t answer and then the grandmother will tell her “No.” If she calls the Father during these incidents he either doesn’t answer or argues that it’s not her parenting time. On these occasions the Mother testified that the Father hadn’t offered her the right of first refusal, that she’s asked him and that he’s told her that T.V.G. won’t be ready or that he has something to do. She has learned after the fact that T.V.G. either “doesn’t have much to do” or that she’s somewhere that “I should have been informed or participating in or something of that sort.” She learns this from T.V.G. or the Father telling her. She testified that on one occasion she took T.V.G. to get her nails done for graduation and asked if she could keep T.V.G. overnight. The Father said no, that they had something to do and the Mother later learned that T.V.G. had gone to the doctor which she was told after the fact. The Father had taken her to the primary care doctor, Dr. Coleman in Hempstead. She believes the appointment had been scheduled prior to her requesting the additional parenting time. She testified that the Father typically takes her to doctor appointments because she typically doesn’t know about the appointments and he gives her an update afterwards. She’s asked to be notified and he either doesn’t respond or they’re scheduled too close and she can’t get off of work. The Mother testified to her concerns about the living environment in the Father’s home. The Mother states that she does not believe it’s a safe environment, and that T.V.G. has been injured several times due to a lack of supervision. The Mother claims that there are relatives living in the Father’s home who are addicted to drugs that she has witnessed being “on drugs” when she drops off T.V.G. including the paternal grandfather who she states she believed was “clean” and not living in the home at the time of 2022 Order. The Mother testified that she went to drop T.V.G. off in the summertime and the grandfather was on the porch eyes with his eyes closed, nodding back and forth, and was jittery and laughing. She described his behavior as “awkward” and stated that he was not able to keep his balance while sitting down. With regard to the paternal grandmother’s supervision of the child, the Mother testified that on one occasion, T.V.G. put an aluminum tie from a loaf of bread in the microwave and the microwave went on fire while the paternal grandmother was watching her. She stated that T.V.G. came to her on one occasion with a mark/welt/bubble/burn on her hand. The Mother also states that the Father’s sister who resides in the home was convicted of manslaughter in 2017. She was not sure if the sister lived there when the prior order was made. She further testified that the Father’s brother has been in fights in front of the children in front of the house and that he “brings people around the home that don’t belong there that are suggested to live there.” She states that the Father’s grandson who is four years old, and his nephew who will be ten years old, live in the home and the paternal grandmother provides childcare. The Mother testified that T.V.G. has chronic asthma, diagnosed about a year ago, and severe allergies. She states that the child currently takes Flovent, and a new medication prescribed the week of her testimony. Before the Flovent the Mother testified that T.V.G. was not taking any medication. The Mother testified that on one occasion she drove to the Father’s house to pick up T.V.G.’s medication. She was going to pick up Flovent, a chewable tablet, and an extra safety inhaler. She testified that she brought T.V.G. to the back door. They knocked on the door, the Father’s daughter answered, T.V.G. walked in, the Mother went to walk in behind T.V.G. and states that the daughter slammed the door in her face. She then walked around to the front door and knocked. She testified that she then heard yelling, then the daughter opened the door and she told the daughter she wanted T.V.G. to come out now. The daughter went to slam the door in the Mother’s face again so she put her foot in the door. The Mother stated that he daughter then pulled the door back open, “kicked her shoes off and put her hands up to fight me”. On Valentine’s Day of 2023, the Mother testified that T.V.G. was doing her homework and called the Mother to say goodnight. The Mother heard the Father in the background say “stop acting retarded” called T.V.G. a “crybaby,” and said she was only acting that way because the Mother was on the phone. The Mother stated that she hung up with T.V.G. and that she texted the Father and told him to apologize to T.V.G. and that he should not speak to her that way. The Mother testified that on August 12, 2023 during her parenting time, she told T.V.G. to call her father to say good morning and she did. She stated that the Father got upset that she hadn’t given T.V.G. her medicine at exactly 9:00 a.m. and she heard him yelling because T.V.G. always talks with the phone on speaker. He asked her why she didn’t take her medicine, why the Mother didn’t give it to her. The Mother hung up the call when the Father began speaking directly to her, calling her names, etc. She texted him and told him that he could call T.V.G. to say goodnight and gave the child her phone back. T.V.G. went outside and then came back in with her phone to show the Mother a message. The Father had sent her a voice recorded message wherein he was talking to T.V.G. telling her to find a way to take her medicine because she’s only five and can’t do it her herself. She testified that in the message he called the Mother “f-ing spiteful.” If she were granted residential custody, the Mother testified that she would have T.V.G.’s prescriptions transferred to a pharmacy closer to her to make sure the child always had her medication. The Mother testified that the Father does homework with T.V.G., even on the Mother’s weekends. On January 31, 2024, the Mother testified that on the previous day T.V.G. called her from school and said that she was being sent home from school because she couldn’t breathe. The school didn’t call her, she doesn’t know why. She states that she’s listed as an emergency contact for the school as of October of 2023 and her telephone number is on the form. The Mother testified that for T.V.G.’s birthday in 2024 that the Father had told T.V.G. he was taking her to Nickelodeon, and that she had a party at her school which the Mother found out about after the fact when the Father stated it on the prior court date. The Mother stated that there had been a bullying incident at the child’s school. She testified that she tried to discuss it with the Father over the phone after speaking to T.V.G.. She stated that the Father had told T.V.G. to get away from him as she was explaining what happened. She heard the Father say that in the background of a phone call. The Mother then texted the Father because she felt that he didn’t take it seriously. The matter wasn’t addressed again by either party. When she next picked T.V.G. up at his house she went early and offered to go with him to the school to speak to the principal. She had brought it to the principal’s attention before so she would bring it up again. The Father stated that he’d be taking T.V.G. to school that week so he’d address it. The Mother testified that when she texts the Father he either doesn’t answer or belittles her or responds with “a defense mechanism” that she’s “blowing it out of proportion,” etc. The Mother’s Exhibit 2 was entered into evidence, which consists of a series of text messages between the parties exchanged on August 12, 2023 about the child’s medication being given late and includes texts from the Father to the Mother that include several profanities and insults. The Mother’s Exhibit 3 was entered into evidence, which was another series of text messages wherein the Father texts the Mother “I am not giving you the information to my portal because It is the entire households” which the Mother testified was in reference to the school portal. She testified that she still doesn’t have the access information for the school portal. The Mother’s Exhibit 4 was entered into evidence, which was another series of text messages pertaining to Covid testing. Specifically the Mother sent a text to the Father indicating that her younger daughter had tested positive for Covid and she asked the Father to pull T.V.G. from school to have her tested to which the Father responded “Noted thx”. The Mother then stated that she would call the school. The Mother testified regarding a time that she had called Child Protective Services (“CPS”). She stated that, during a text exchange the Father said that something was said to CPS about someone looking at T.V.G. while she’s naked. The Mother said she should go to the doctor to be checked out and she called CPS to do a wellness check and they investigated. The Mother testified that the Father told her that it was stated to CPS that she had random people looking at and touching T.V.G. while she’s changing. The Mother stated that the Father told her that T.V.G. went to the doctor two weeks after the text exchange. With regard to the child’s school, the Mother testified that she went to one parent teacher conference this year, and she’s not sure if there were more. She stated that there was something at the beginning of the year, an open house, that she didn’t attend because she didn’t know about it. She stated that a letter was sent to her home. The Mother testified that when she had an emergency gall bladder removal in 2023 and was unable to drive upon her release, that she asked if the Father could drop T.V.G. off and he said no. Her younger daughter’s father drove T.V.G.. The Mother testified that her daughter A.S. was born in November of 2022 and she was on maternity leave for three months. She had asked for more time with T.V.G. and the Father said no even though she was available to care for T.V.G. and he was working. The Mother stated that the Father signed T.V.G. up for an event during her parenting time, a Girl Scout recruiting event. They offered face paint, snacks, encouraged them to sign up for Girl Scouts, and showed them the fun activities they do, and the vests, etc. She testified that she signed T.V.G. up for Girl Scouts online. She does not believe that she violated a court order by not taking T.V.G. to the recruiting event. Her proposal for custody would be a reverse of the current schedule with her having residential custody. She would have no objection to the Father having alternating holidays, or additional dinner visits, different weekends, etc. Direct examination concluded. The child’s attorney cross-examined the Mother first, out of turn. The Mother testified that she has two children, T.V.G., who is six years old, and A.S., who is one year old and that the girls are half sisters. She states that the girls adore each other and are bonded. She further testified that, with regard to her text message communication with the Father, he doesn’t respond “nine times out of ten,” and that this pertains to many topics of conversation including pick up, drop off, school things, holidays, and times for pick up and drop off. She stated that she would ask to pick up early, he would say no, and she’d show up anyway and that “because he’s not there, it turns into a scene between his family and myself in front of my daughter”. She also testified that the Father screams at her in front of T.V.G., when they argue. The Mother reiterated her concerns about the lack of supervision of T.V.G. while she is in the paternal grandmother’s care, referencing the fire in the microwave and the burn on her hand. She further testified that the Father’s nephew, E., is “aggressive” with T.V.G., that “[h]e will hit her like she’s a boy, he will roughhouse her like she’s a boy”, that “[s]he’s had bruises on her arms before and scratches on her face, cut on her leg”. The Mother stated that when she addressed it with the Father, that he asked what T.V.G. did and placed blame on her. The Mother stated that her home is better suited for T.V.G. than the Father’s because she will be with the child at all times that she’s not working, and if she’s working the child will be in an after school program with children her age. She testified that she lives with her other daughter, A.S., and A.’s father V.S.. She testified that T.V.G. and V.S. have a good relationship. She states that T.V.G. has not suffered any serious injuries in her care, maybe only minor ones if she slipped and fell or bumped herself. The Mother was then cross-examined by the Father’s attorney. She stated that she’s seen E. hit T.V.G. “like she’s a boy” and that he kicked a ball in T.V.G.’s face when the Mother was picking her up once and the Father was right there. She did not report that incident to the authorities. The Mother testified regarding the July 7, 2023 incident, stating that she removed the child from the backseat of the Father’s daughter’s car. This incident took place between 5:00 and 6:00 p.m.. The Mother stated that she had come early for her scheduled 6:00 pickup and T.V.G. didn’t have her medication with her. The Mother testified that the paternal grandmother was aware she was coming early and that she had told the grandmother over the phone not to take T.V.G. and leave. She had told the Father that she was picking T.V.G. up early but he had said no and she showed up anyway. She told the grandmother she’d pick T.V.G. up at the house and ended up picking her up at a gas station on Sunrise Highway. She testified that she didn’t wait for the medication. The Mother stated that T.V.G. was taking “two inhalers and a chewable” at the time and that she doesn’t know the names of the medications. The Mother doesn’t have her own supply of the medication, they are sent to her on weekends. When she picked up T.V.G. that day she didn’t check if she had her medication “[b]ecause I was more concerned as to what my daughter was in the position she was in to begin with rather than being in the home where she belonged.” After that incident she didn’t return the child on Sunday. The next day she went to get the medication and “got into a verbal altercation with Sarad’s daughter with my daughter within arms length behind her.” She testified that the paternal grandmother doesn’t have access to the medication when the Father isn’t home. She stated that she called the Father right after she picked up T.V.G. and that he said it was her choice to leave without the medication and hung up. She testified that T.V.G. has homework on weekends on occasion and denied ever not doing her homework. She denied that the Father had told her that the school complained about homework not being done on Mondays. Upon further inquiry by the Father’s attorney, the Mother testified that she calls the Father names in the privacy of her own home but not in front of the child, sometimes under her breath, but that she “absolutely” calls him names through text messages. She stated that she feels it is okay to call the Father a liar “[i]n the privacy of my own home, not in front of my child, yes”. The Mother testified that T.V.G. is not a “classified” student at school that she knows of and that her level of involvement with the school is “[n]ot very much”. She stated that she calls the school at least once a week for the past three months. She stated that when she calls the Father names she’s not within earshot of T.V.G.. She stated that she is either in another room, or makes her statements under her breath. The Mother testified that she has not purchased any medications for T.V.G., but that on July 7, 2023 she had taken the child to PM Pediatrics and got emergency refills of the medications. She stated that she did not wait for the child’s medications because she was at the scene of an accident as, “when I got there I saw his daughter’s car on the bumper of another car with my six-year-old at the time, five-year old in the back seat with no car seat and no sealtbelt on. I took my daughter and removed her from the situation”. The Mother did not have a copy of a police report. The Mother stated that once in a while she will have the child relay messages to the Father for something simple like her arrival time for pickup. She does so because the Father doesn’t answer. T.V.G. has her own cellphone when she’s with the Mother and can call the Father as much as she wants. If the Father calls and she’s already sleeping, the Mother sends him a text message to let him know. The Mother testified that there are no open CPS cases for T.V.G., but that one concluded in November 2023 involving her younger daughter A.S.. She testified that, as of the date of her testimony, March 27, 2024, she resided in Ronkonkoma. She had previously been staying with a friend as a “stepping stone” to getting her own apartment. Her current apartment is a one bedroom, one bath. T.V.G. sleeps in her own bed, which is in the Mother’s bedroom. She testified that she attended the moving up ceremony last year and that no certificate was given to T.V.G.. They took pictures in the lobby after and she left with T.V.G.. Regarding transportation, she testified that currently she picks T.V.G. up at 6:00 p.m. Fridays and the Father picks up at her mother’s house at 7:00 p.m. on Sundays. She states that that arrangement should remain unless they swap schedules and T.V.G. lives with her and goes to school with her and sees her Father on weekends. The Mother testified that she enrolled T.V.G. in Girl Scouts through Ulysses Byas for the present school year. She testified that Girl Scouts never started because they didn’t have enough troop leaders and the child would have had to join in a different district which didn’t work. She stated that she currently lives with her boyfriend, V.S., and A.S.. She denied that V.S. is a gang member. In her apartment, she and V.S. share a bed, T.V.G. sleeps in her own bed and A.S. sleeps in her own bed, all in one room. T.V.G.’s is at the foot of the bed. The Mother stated that V.S.’s nickname is Pop S., and denied that he has flashed gang signs on Facebook as she does not have him on Facebook. The Mother has never refilled the prescription she got from PM Pediatrics on July 7, 2023. The Mother testified that she doesn’t know the name of the child’s primary care doctor, she knows the practice is Winthrop Pediatrics but doesn’t know the exact doctor. She stated that the last appointment she attended was a physical for the 2023 school year. She doesn’t keep records of medical appointments. She further testified that the Father has taken the child to doctor appointments, she doesn’t know when, and she’s not sure about medication refills. She stated that she can’t remember the last time she requested inhalers from the Father, and to her knowledge the child is not taking the chewables anymore. She stated that the Father told her T.V.G. is only taking Albuterol, which is by inhaler or nebulizer. She has her own nebulizer which she got last year. The Mother stated that V.S. has four kids including A.S.. She testified that his other children visit every other weekend “maybe,” that they also come during the week to hang out. The Mother stated that V.S. currently works, and he’s about to begin a summer schedule after Memorial Day which will be either 6:00 a.m. to 2:00 p.m. or 2:00 p.m. to 10:00 p.m. and it alternates week to week. He’s currently working 8:00 a.m. to 4:00 p.m.. When his kids come over, the Mother testified that they sleep in the living room, on the floor or the couch, that there’s a big blowup mattress, and sometimes they do a big movie night slumber party. She states that V.S.’s children get along well with her children. The Mother testified that during her weekends with T.V.G. she picks her up Friday night, they go home, eat dinner, watch a movie or she plays on her phone and she’s typically in bed around 8:30/9:00. On Saturday they wake up, hang out for the day, the Mother takes her somewhere, she’ll play outside and play with her sister. She stated that she and V.S. have verbal disagreements, not typically in front of her daughters, rather they argue by text messages from different rooms so they don’t make scenes. She states that she has had altercations with the Father in front of the kids. She talks to the Father about his family, but not in front of T.V.G.. The Mother testified that she has never scheduled a physical for T.V.G. and that she last attended one when she was “four going on five,” not the most recent one which the Father had scheduled. The Mother testified that the child’s teacher’s name is Ms. Mohamed, and there is another gentleman in the classroom whose name she did not recall. She spoke with the teacher in the beginning of the year on her first day of school. She testified that the child’s doctors are at Winthrop, and that the parties had mutually agreed to stay with Winthrop because the child was born at Winthrop. The Father went to the “well baby” visits. She didn’t go because she either didn’t know about them or he scheduled them when she couldn’t be there. Since the entry of the 2022 Order she hasn’t scheduled any doctor appointments, she hasn’t refilled medications except the one time at PM Pediatrics. She further testified that the Father has advised her of a dental appointment, but she didn’t go “[b]ecause I knew then she wasn’t going to allow them to touch her, so I wasn’t going to drive and leave work early to go all the way to Mineola from my job for nothing.” At the dental appointment she testified that she learned that the child threw a tantrum, that she advised the Father that she shouldn’t have gone there to begin with and he agreed so she’s not going back. She has a different dentist now, but the Mother testified she doesn’t know the dentist’s name. She stated that the Father had sent her a screenshot of the new appointment. The Mother testified that police have been called to her residence for an incident between her and V.S. since the last order, but that there are no current orders of protection in place. The Mother testified one of the calls to the police took place on November 11, 2023 regarding an issue with herself and V.S.. T.V.G. was not present as she was at her Father’s house. The parties had switched weekends because the Mother had a birthday party scheduled for the younger child the following weekend and wanted T.V.G. to attend. T.V.G.’s current school year is September to June. The Head Start program was a program through the Roosevelt schools. She missed a week of school, she believes in August of 2023, because she refused to return the child to the Father’s house. She testified that the teachers would give her an issue signing T.V.G. out of school and that she would have to drive around the block to pick up the grandmother to pick the child up. She stated that the “people at the school” have always given her an issue, the teachers and administration. The Mother stated that they do not respond to her emails or return calls. She recalled that the principal’s name is Dr. Lacon and the other gentleman in the child’s classroom’s name is Mr. Bailey. The child’s medical insurance is under the Father’s name. The Mother confirmed that she does not currently pay child support. Cross-examination concluded. On re-direct examination, the Mother reiterated that the Father is not responsive to her text messages. This includes her text messages about the bullying incidents at the child’s school. The Father has not told her about any injuries the child has sustained. The Mother testified that she believes the Father’s nephew E. is being abusive toward T.V.G., and that they’re together during the week but she’s unsure when. The Mother stated that the Father had not offered her the right of first refusal for the July 7, 2023 date. She returned to the Father’s home the next day to get the medication. She testified later on cross-examination that she had spoken to a teacher about the bullying. She testified on re-direct that she’s heard the Father calling her “f-ing retarded” and “f-ing stupid” in the background of telephone calls. She has never purchased medication for the child because the Father typically sends it with her on weekends. She testified that while T.V.G. has a phone and has unhampered access to call the Father during the Mother’s parenting time, that T.V.G. has a watch to use for calls at the Father’s house and that the watch is not always charged and sometimes has a block on it during school hours. The Mother testified that there is still an open CPS case with respect to A.S.. The Mother reiterated that if she were granted residential custody she would proposed a reversed schedule to the current schedule or that she would switch days for what works with the Father’s schedule. She stated that she hasn’t taken the child to doctor appointments since February of 2022 because the Father schedules them and they’re on dates and times that she can’t make it. The Father has checked her availability once or twice. She hasn’t refilled prescriptions because the Father does. She didn’t go to the primary care physician on July 7, 2023 because it was far away and after hours at the time. The Mother testified that on November 11, 2023 she and V.S. got into an argument. During the argument, the Mother testified that V.S. threw a picture frame at her, the glass shattered and she called the police. Upon the arrival of the police, the Mother testified that V.S. fought with them, they fought back, they went to restrain him and he resisted and he was ultimately arrested. She was not arrested during this incident. She testified that the criminal matter remains open and she believes its going to trial. Following this incident, the Mother testified that she and V.S.were “not together” for three months but that their relationship is “a lot better” now and she has no concerns about him being around the children. The Mother testified that, during the period of time she refused to return the child to the Father and she missed school, this was because the Father’s daughter tried to fight her within arms length of T.V.G.. She stated that at times the school has not released the child to her because the Father has residential custody. He has given permission for her to pick up the child from school on some occasions. The Mother further testified that while she has called the school once a week for over a month regarding a bullying incident that she’s never received a call back. She testified that she has emailed both the school and the Head Start program when T.V.G. was attending but that she never received an email back. Re-direct concluded. On cross-examination by the Father’s attorney, the Mother testified that the child has been bullied at her old school. She does not know the child and did not attempt to call that child’s parents. She spoke with the teacher. The Mother testified that when she text messages the Father, he responds maybe twice out of the week, and that she asks him the same questions multiple times because he hasn’t responded. The Mother denied that she tried to force the door open during the altercation with the Father’s daughter. The Father’s attorney concluded cross-examination. On cross-examination by the child’s attorney, the Mother testified that she was not arrested during the November 2023 incident. She testified that she had called the police on V.S. twice before and that, on those occasions, she had called the police “[b]ecause we were arguing and I was being spiteful and I wanted him to leave and he wouldn’t leave.” She testified that neither of those prior incidents had involved physical altercations. When asked if she had sought domestic violence counseling the Mother stated that she has not but would be willing “[i]f there was an issue, yes, but there isn’t.” She testified that, while T.V.G. has not been present during any of these prior incidents, that “[t]here was a time him and I were play fighting and [T.V.G.] got very upset, started crying, and we automatically stopped.” She testified that she would leave V.S. if he was physical towards her, that she would call the police and remove herself and her children. The Mother rested her case and all counsel gave summations. The Court then held an in camera with the child. The trial concluded thereafter. CONCLUSIONS OF LAW A modification of any pre-existing custody order, particularly one entered into on consent, not only requires a “best interests” finding, but also requires a demonstration that a sufficient change in circumstances has occurred since the prior order was entered into. It has been consistently held that “[w]here parents enter into an agreement concerning custody ‘it will not be set aside unless there is a sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interests of the [child]‘”(Matter of Joseph F. v. Patricia F., 32 A.D.3d 938, 938-939 [2d Dept. 2006], quoting Smoczkiewicz v. Smoczkiewicz, 2 A.D.3d 705, 706 [2d Dept. 2003]). The court must examine the totality of circumstances in determining whether a modification is in the best interests of the child (see, Eschbach v. Eschbach, 56 N.Y.2d 167 [1982]). This is so because “[n]o agreement of the parties can bind the court to a disposition other than that which after a weighing of all the factors involved shows to be in the child’s best interest” (Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95 [1982][internal citations omitted]). “Since weighing the factors relevant to any custody determination requires an evaluation of the credibility and sincerity of the parties involved, the hearing court’s findings are accorded great deference, and will not be disturbed unless they lack a sound and substantial basis in the record” (Matter of Jackson v.Coleman, 94 A.D.3d 762 [2d Dept. 2012]). The Court conducted an in camera interview of the child in the presence of her attorney (Lincoln v. Lincoln, 24 N.Y.2d 270 [1969]), and credits the child’s testimony as forthright, and honest. While this Court has considered and weighed the child’s testimony and expressed desires, her express wishes are not controlling, but rather the child’s wishes “are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful” (Koppenhoefer v. Koppenhoefer, 159 A.D.2d 113, 117 [2d Dept. 1990]). In this instance, the six year old child’s testimony was meaningful and taken into consideration in determining the appropriate outcome. Joint custody “reposes in both parents a shared responsibility for and control of a child’s upbringing” and as such, same “is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in a mature civilized fashion” (Braiman v. Braiman, 44 N.Y.2d 584 [1978] [internal citations omitted]). While an ideal outcome under the appropriate circumstances, joint custody has been rejected where the “parties are unable to communicate and make rational, joint decisions on matters relating to the care and welfare of children” (Matter of Bishop v. Lansley, 106 A.D.2d 732 [3d Dept. 1984]). “As a court-ordered arrangement imposed upon already embattled and embittered parents, accusing one another of serious vices and wrongs, [joint custody] can only enhance familial chaos” (Braiman, supra, at 590). In this case, while the parties do not effectively communicate with one another and have demonstrated a lack of ability to effectively co-parent, the Court’s concerns regarding potential parental alienation outweigh the concerns about their ability to effectively co-parent. Through their respective testimony, the parties have demonstrated that they lack the ability to communicate productively and to co-parent effectively. While the Father has concededly failed to comply with the terms of the prior order that required him to offer the Mother the right of first refusal, and that he has often not been responsive to her text message communications, the fact remains that he has been the residential custodian of the child for the majority of her life, and that he has been, by the Mother’s own admission, effectively almost solely responsible for the child’s medical care and education. Both parties have admitted to insulting one another, to arguing with each other both by text message and in front of the child and have developed such animosity toward one another that both seem unable to appreciate the impact that their attitudes and behavior toward one another has on the child. The Father admittedly dismisses the Mother when she repeats the same requests, and denies her requests for additional parenting time even while he is not with the child himself. The Mother admits that on at least a few occasions she has disregarded the Father’s request that she abide by the designated pick up time for her parenting time and arrived early despite her admission that she is aware that her early arrival inevitably results in a “scene” with the Father’s family members and has resulted in the police being called on multiple occasions. The Mother has demonstrated that she is the more effective communicator, albeit still an imperfect one, and that she has made many efforts to start a dialogue with the Father about various issues and he refuses to engage. To his credit, despite his demonstrated hostility toward the Mother, he has kept the Mother at least somewhat informed as it pertains to the child’s medical care and the treatment she receives for her asthma. Both parties confirm that while the Father has scheduled the child’s medical appointments and the Mother has been unable to physically attend, that the Father has had the Mother available by telephone during some of T.V.G.’s medical appointments so that she is able to participate and ask her own questions and be involved in the process, including the appointment when the child was initially diagnosed with asthma. Despite her access, the Mother has failed to engage with the child’s healthcare providers to the fullest extent, remains unaware of many of the doctors’ and dentists’ names despite her admission that the Father has provided this information, and has at least once opted not to participate in medical appointments, specifically the dentist. The Mother has a familiarity with the child’s diagnosis and medications, but did not demonstrate a full and complete knowledge of same. The child’s current school situation serves as another example of the parties’ inability to co-parent, and another example of the Mother’s failure, despite her best intentions, to take advantage of the access that she has been granted pursuant to the underlying order. While the Mother initially testified that she was not in agreement with the child’s current school, she testified on cross-examination that she was the one who enrolled the child for this school year. The Mother testified about issues that arose at the school regarding bullying and stated that she offered to jointly address the issue with the Father, but when he indicated that he would address it himself she didn’t continue to address it with the Father. Though she testified that she spoke to a teacher about the bullying, she did not give a timeframe or identify the teacher by name, and that testimony is contrary to her assertion that she has repeatedly called the school but never received a call back. The Mother’s assertions about her lack of access to the school were unsupported by any evidence. She claims that she has emailed the school and the Head Start program and received no response but provided no copies of unanswered emails to support her claim. While it was undisputed that the Father refused to give her login information for the school portal, the Mother did not testify to any efforts she made to obtain her own separate access despite same being granted to her in the underlying order. She testified that she had given the Father the names of at least three alternate schools, but provided no names of these schools or any specific information about their programs or financial aid options. Additionally, while the Father’s most recent “/24I” petition was not the subject of the trial and no findings are made with respect to the allegations contained therein, the court is cognizant of Father’s claims of ongoing violations of the 2022 Order despite the ongoing court proceedings. “Modification of an existing custody arrangement is permissible only upon a showing that there has been a change in circumstances such that modification is necessary to ensure the best interests of the child…determined by a review of the totality of the circumstances” (Matter of Boodhoo v. Rampersaud, 122 A.D.3d 624, 625 [2d Dept 2014]). Here, the complete breakdown in communication and lack of cooperation between the parties as it relates to the child’s health, education and welfare demonstrate a substantial change in circumstances warranting a modification. Having determined that a modification is necessary, the Court must now determine what modification would indeed be in the child’s best interests. “[W]here, as here, joint custody is not possible due to fundamental disagreements concerning the [child], it may be appropriate, depending upon the particular circumstances of the case, to award some custodial decision-making authority to the noncustodial parent” (Cohen v. Cohen, 177 A.D.3d 848 [2d Dept 2019]). “The division of authority is usually made either somewhat evenly, in order to maintain the respective roles of each parent in the child’s life or, although unevenly, in a manner intended to take advantage of the strengths, demonstrated ability, or expressed interest of the noncustodial parent with respect to a particular dimension of child-rearing” (Chamberlain v. Chamberlain, 24 A.D.3d 589, 592 [2d Dept 2005]). Though the Father has been almost solely responsible for the child’s medical care and education, it is clear that his resistance to open communication with the Mother makes an award of sole legal custody to him inappropriate as it is likely he would marginalize the Mother and curtail what involvement she has at present. Conversely, an award of sole legal custody to the Mother may not be deemed appropriate as the Mother has failed to avail herself of the access she currently has and has failed to demonstrate more assertive efforts to become fully informed and fully engaged in the child’s medical care and schooling. In view of the totality of the circumstances of this particular matter, and upon this record, this Court finds that it is in the child’s best interests that the parties continue to share joint legal custody of the child subject to certain “spheres of influence,” and that the Father retain residential custody subject to a parenting time schedule more specifically set forth in the accompanying Final Order of Custody and Parenting Time, that gives the mother more access. Having taken into consideration the parties’ demonstrated strengths, abilities, and expressed interests, the Court hereby assigns “spheres of influence” as follows: the Mother shall have final decision-making authority as to the child’s extracurricular, sports, religion, dental and ophthalmology. The Father shall have final decision-making authority as to the child’s health and medical treatment, as well as to the child’s educational issues. It is this Court’s intention that by continuing joint legal custody, subject to the imposition of spheres of influence, that balanced decision-making power concerning the child will be created and fostered (Ring v. Ring, 15 A.D.3d 406 [2d Dept. 2005]). While the Mother has claims that she has more willingness to co-parent and that she has made far more efforts at keeping an open dialogue with the Father about various issues pertaining to the child, in light of the several violation petitions filed by the Father as recent as April 1, 2024, it does not appear that either party is putting their best foot forward when it comes to communication. Furthermore, the trial of this matter began in January of 2024 and concluded three months later in April of 2024. During that time period the Mother had three different addresses, the second being a friend’s house where she was staying temporarily while trying to get her own apartment. The Mother now shares a one bedroom apartment with her boyfriend, V.S. and their infant daughter. The physical living arrangement notwithstanding, it is the Mother’s living with her boyfriend with whom she has admitted to having a tumultuous relationship that is most concerning. The Mother testified that there was an open CPS case from November 2023 involving her youngest daughter who she shares with V.S. and that the investigation was open as a result of an incident where she and V.S. got into an argument and he threw a picture frame at her which shattered and she called the police. V.S. was arrested as a result of this incident, which was not the first time that the police were called to their residence by the Mother’s admission. The Mother testified that neither she nor her youngest daughter are the subject of any orders of protection, however the results of the mandatory statewide registry check that the court is required to perform before issuing any orders pertaining to custody of children reveal that both A.S. and the Mother are protected parties under a Suffolk County District Court Order of Protection. Most disturbing about the turbulent relationship between the Mother and her boyfriend is her lack of awareness regarding her own circumstances. The Mother admitted that criminal charges are still pending against V.S. and that she anticipates the matter proceeding to trial. The Mother stated that prior to the November 2023 incident that she had called the police to the residence on at least two prior occasions but when asked by the child’s attorney why she called the police she stated that she “was just being spiteful” placing the blame on herself for the police involvement while effectively absolving Mr. Smith of any fault or responsibility. The Mother’s downplaying of the severity of the situation and denial of the existence of orders of protection make it clear that an award of residential custody to her would not be the best option at this time. Accordingly, the best interests of the child are served by continuing residential custody to the Father subject to a parenting time schedule with more time for the Mother, and specific guidelines regarding transportation. The Court having searched the statewide registry of orders of protection, the sex offender registry and the Family Court’s child protective records, and after full consideration of all of the foregoing, the court hereby directs the following: The Father shall have residential custody. The parties shall share joint legal custody of the child subject to the following spheres of influence: The father shall have final decision making as it pertains to all educational matters including but not limited to choice of school, academic programs, tutoring, summer education programs, and academic enrichment programs. The father shall be solely responsible for any and all costs associated with the child’s school including but not limited to private school tuition should the child attend such school. The mother shall have final decision making as it pertains to extracurricular activities, sports, art programs, musical enrichment programs and/or lessons, and other activities of the sort not to unreasonably interfere with the father’s parenting time. The mother shall have final decision making as it pertains to religion and religious instruction as well as to dental and ophthalmology care. The father shall have final decision making as it pertains to the child’s health and medical care. The parties must consult with one another on major decisions pertaining to the child’s health, education and welfare and if the parties cannot agree on a decision, the parties shall speak to a professional in the specific field (i.e. a teacher or doctor) to assist them in arriving at a mutually agreed upon decision. Should the parties still not be able to reach a mutually agreeable decision, final decision making shall be governed by the “spheres of influence” as noted above. Each party shall be entitled to full access to all records pertaining to the health, education, and welfare of the child and this order shall serve as authorization for provider to permit such direct access. This provision entitles each parent independent access to all school portals and apps, as well as any medical records portal available, and each parent shall be entitled to receive duplicate correspondence and notices addressed to each and mailed to their respective residences from all schools, summer camps, and all treating doctors. In the event of an emergency affecting the child, when it is not practicable for the parties to consult with each other regarding a prescribed course of treatment, the parent who the child is with at the time shall have the right to make a decision regarding the child’s immediate treatment, but that parent shall promptly notify the other parent of the medical emergency and immediate treatment and shall also consult with the other parent prior to making any decision as to follow up treatment. Each parent shall give the other parent timely advance notice of any and all medical, dental and other similar appointments and each parent shall have the right to be in attendance at all appointments, either in person or via telephone. The parent who is exercising parenting time with the child at the time of the appointment shall be responsible for taking the child to the appointment. In the event either parent cannot attend a medical appointment, the parent who took the child to the appointment shall provide medical documentation concerning the visit to the other parent. Each parent shall inform the other of any changes in address, telephone number, cell phone number, and email addresses for themselves and the child within 24 hours of any such change. The parties shall immediately enroll and participate in My Family Wizard and shall communicate with each other regarding the child through this application and each shall be responsible for their own costs incurred utilizing this application. Both parties shall ensure that the other is listed as an emergency contact person, and fully responsible parent/guardian on any paperwork or forms pertaining to the child’s health, education, and welfare and each party shall immediately provide any password or login information necessary to fully participate in any electronic communications, apps, or other programs pertaining to the child’s health, education and welfare. The Mother shall have parenting time with the child every weekend from after school on Friday until 7:30 p.m. on Sunday, except that the Father shall have the child for the third weekend of every month. The Mother shall pick up the child at the start of her parenting time and the Father shall pick up the child at the Maternal Grandmother’s residence at the conclusion. The Mother shall have additional weekday parenting time every Tuesday and every Wednesday and every third Monday after the Father’s weekend, from after school until 7:30 p.m. The Mother will pick up and drop off the child at the child’s residence at the start and end of her parenting time. Should the Mother be working at the conclusion of the school day on Monday, Tuesday, Wednesday, or Friday, the Mother may pick up the child from any available childcare provider typically utilized by the Father and/or the school, including the paternal grandmother. She shall notify the Father 24 hours in advance of any change to the pick up and drop off arrangements Any pick up or drop off occurring at the Father’s residence shall be curbside, and the Mother shall not exit her vehicle but shall alert either the Father or other responsible adult receiving and/or releasing the child by text message of her arrival and the adult present at the Father’s residence shall promptly go to the door to receive her, or release the child without unreasonable delay. The parties shall share holiday parenting time pursuant to the following schedule: Holiday Odd Years             Even Years Martin Luther King Day      The Father shall have this weekend as his January weekend every year and the holiday shall attach to the Father’s weekend. T.V.G.’s Birthday January 20th          Each party shall be entitled to two hours of parenting time as agreed if the birthday falls on a school day. Each party shall be entitled to five hours of parenting time as agreed if the birthday falls on a weekend. February Recess defined as after school on the last day of school until 7:30 p.m. the night before school resumes   Mother The Father shall be entitled to another full weekend in the month of February as agreed Father Easter/Spring Recess defined as after school on the last day of school until 7:30 p.m. the night before school resumes            Father       Mother Mother’s Day       The Mother shall have this full weekend every year Memorial Day     The Father shall have this weekend as his May weekend every year and the holiday shall attach to the Father’s weekend Father’s Day The Father shall have this weekend as his June weekend every year Juneteenth *Should the holiday fall on the Friday immediately prior to, or the Monday immediately after the Father’s Day weekend, the holiday shall attach to the Father’s weekend    Mother    Father Fourth of July 10:00 a.m. to 9:00 p.m. Father     Mother Labor Day 10:00 a.m. to 9:00 p.m.      Mother    Father Columbus Day    The Father shall have this weekend as his October weekend every year and the holiday shall attach to the Father’s weekend Halloween Every year the Mother shall have the child from after school until 6:30 p.m. Election Day Father            Mother Veteran’s Day *Should the holiday fall on a Friday or Monday, the Father shall have that weekend as his November weekend and the holiday shall attach to the weekend  Mother    Father Thanksgiving Weekend defined as after school on the last day of school until Sunday at 7:30 p.m. Father Mother    Should the holiday fall on the third weekend of the month, the Father shall be entitled to another full weekend as agreed Christmas Holiday/Recess Father shall have from the conclusion of school until Christmas Eve at 9:00 p.m. Mother shall have from 12/24 at 9:00 p.m. through 12/28 at 9:00 p.m. Father shall have 12/26 at 9:00 p.m. through New Year’s Day at 12:00 p.m. Mother shall have New Year’s Day at 12:00 p.m. through 7:30 p.m. the night before school resumes           Mother shall have from the conclusion of school until Christmas Eve at 9:00 p.m. Father shall have from 12/24 at 9:00 p.m. through 12/28 at 9:00 p.m. Mother shall have 12/27 at 8:00 p.m. through New Year’s Day at 12:00 p.m. Father shall have New Year’s Day at 12:00 p.m. through the night before school resumes For all holiday and summer parenting time, the Mother shall pick the child up at school or at the Father’s residence at the start of her parenting time, and the Father shall pick the child up at the Mother’s residence at the conclusion of her parenting time. Each party shall be entitled to two non-consecutive weeks of summer parenting time with the child, with such parenting time not to interfere with any summer school program. The Mother shall choose her weeks first in even years and shall notify the Father of same on or before May 15th, and the Father shall choose his weeks and notify the Mother of same on or before June 1st. In odd years the Father shall choose first and notify the Mother on or before May 15th and the Mother shall then choose her weeks and notify the Father on or before June 1st. The parties shall at all times enjoy the right of first refusal which is defined as follows: any time either parent is unavailable to care for the child during their parenting time for a period exceeding four hours, whether same be due to work obligations, social engagements, illness, or other reason, they shall contact the other parent and offer that parent the right to enjoy extra parenting time with the child during that period of unavailability before resorting to any third party for childcare. Neither party shall make any disparaging remarks of any kind or at any volume about the other during any of their parenting time with the child, nor shall they permit any third party to do so. The parties shall cooperate to obtain a passport for the child and the passport shall be held by the Mother, to be turned over to the Father in the event of any planned international travel upon receipt of a full and complete itinerary. Either party may travel with the child. In the event of domestic travel out of state, the traveling party shall provide the other with written notice of the planned trip via text message at least one week prior to departure and shall provide a full and complete itinerary including any airline flight information, and the location and contact information of all overnight lodging. For international travel, same shall be limited to countries that are signatories to the Hague Convention. In the event of international travel, the traveling party shall notify the other at least 30 days prior to departure via text message and shall provide a full and complete itinerary including any airline flight information, and the location and contact information of all overnight lodging. Each parent shall be entitled to daily reasonable telephone, FaceTime, Skype and/or email contact with the child when the child is with the other parent. Neither party shall monitor, supervise, interfere or in any other way stifle the telephone or email communications between the child and the other parents. The parent with the child shall ensure that the child is available to speak with the other parent. Both parties shall advise the child of any telephone messages left for them by the other party and shall ensure that the child promptly returns all telephone messages left by the other parent. Neither parent shall interrogate the child about their communications with the other party. Neither party shall use the child’s telephone calls with the other parent as a means of communicating with one another, but shall keep their own communications separate via My Family Wizard. Each parent shall be responsible for transporting the child to her scheduled appointments, activities, lessons, sporting events, etc. with all necessary uniforms, equipment and the like, which take place during their respective parenting time. Each parent shall ensure that all homework is completed during their respective parenting time, and that all prescribed medications are administered to the child in accordance with the directions of the medical provider. Both parents shall be entitled to attend all the child’s school functions, parent-teacher conferences, extracurricular activities, athletic activities, lessons, school or camp events, or other organized activities including but not limited to visiting days, open houses, school nights, plays, performances, games, honoring ceremonies and graduations and the parent who receives the notice shall immediately advise the other within 24 hours of receipt of any notification or invitation. For any such event requiring tickets with limited availability, the parents shall have priority for tickets over any and all third parties including siblings, grandparents, and significant others And there shall be any other parenting time as agreed between the parties. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. 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 MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. Pursuant to Chapter 595 of Laws of 2008, the Court has searched the required databases and has considered the results of the search. Dated: May 10, 2024