FAMILY COURT OF THE STATE OF NEW YORK
CITY OF NEW YORK: COUNTY OF QUEENS
REPORT OF COURT
To: Judge of the Family Court, Queens Court
On October 26, 2012, the petitioner, [Father] filed an order to show cause seeking the the following relief: suspension of the parenting time of the respondent, [Mother]; the completion of a psychological evaluation of [Mother]; the restriction/suspension of [Mother]'s weekend visitation pending the outcome of the evaluation; conditioning the continuation or reinstatement of visitation on therapeutic or medication compliance and other relief the court may deem appropriate. The respondent filed an affidavit in response objecting to the requested relief. The matter was referred to me on November 21, 2012, and I was directed to hear and report upon the issues set forth in these matters. Transcripts have been provided. I hereby respectfully report as follows:
These matters have a lengthy procedural history which is relevant to the determination of the current proceedings. The parties have two children, [Child #1], born on  and [Child #2], born on . The parties were previously before the Supreme Court in Queens County before commencing proceedings in family court. On , Acting Supreme Court Judge  issued a decision after trial granting [Father] custody of the children and granting [Mother] visitation with the children. On , Judge  signed the parties' Judgment of Divorce. Subsequently on , Judge  issued an order modifying [Mother]'s parenting time. After lengthy proceedings in the family court which commenced in July 2010, Your Honor issued a final order modifying [Mother]'s parenting time on  upon confirming a report submitted by this Referee. A copy of the order was entered into evidence during the hearing. The order dated  provided the following:
1) [Mother]'s after school parenting time was terminated
2) Weekend visitation was modified to alternate weekend day visitation from 10:00 a.m until 6:00 p.m with pick up and drop off curbside at [Father]'s building.
3) [Mother] was directed not to enter [Father]'s building at any time.
4) If [Mother] is more than fifteen minutes late returning the children, she shall forfeit her next visit.
5) [Mother] shall not attend mass at  Catholic Church in  on Sundays on weekends so long as the children attend that Church.
6) [Mother] shall ensure that the children are properly fed while in her care and attend any of their activities prior to returning them home at 6:00 p.m.
7) [Mother] may only attend the children's activities during her parenting time on alternate Saturdays and Sunday when the children are in her care.
8) [Mother] shall not have any contact with the children's babysitters or other third parties providing services to the children.
9) [Father] shall endeavor to complete the children's school work with them during the time they are in his care. If the children bring homework or school projects with them while visiting their mother, [Mother] shall ensure the work is completed and returned with the children.
10) Neither party shall discuss the litigation or court proceedings with the children nor disparage the other parent in the presence of the children.
11) [Mother] shall not attempt to contact or otherwise interact with the children's school faculty, staff or other support members.
12) [Mother] may also have additional visitation as the parties arrange, and the parties may agree to modify the schedule of parenting time so long as it is done in writing, including electronic writing to avoid disputes.
On October 26, 2012 [Father] filed an order to show cause seeking to modify the order of visitation issued on . In his order to show cause [Father] alleged that [Mother] engaged in acts which constitute abuse, neglect and child endangerment. Specifically, he alleged that [Mother] left the child [Child #1] at a soccer field after engaging in an argument with another parent regarding her dogs, subjected the child [Child #2] to physical and verbal harm the same day and instructed the child not to discuss the incident with her father and that [Mother] struck the child [Child #2] on prior occasions. [Father] also alleged that [Mother] violated the  order by appearing at a coffee with the principal at the children's school on Friday, October 5, 2012, has appeared outside the children's schools on other occasions, has followed [Father] and the children on a non-parenting time day in her car, and has attended or been present at the children's sporting events on non parenting days. [Father] subsequently filed a supplemental affidavit on November 12, 2012 alleging that [Mother] on a non parenting time day blocked the egress of [Father] and the children from a soccer field parking lot with her car and that she made knowingly false child sexual abuse allegations against [Father] in November 2012 resulting in a vaginal examination of the child [Child #1] who was twelve at the time. [Father] requests that all visitation be suspended and that, as a precondition to any further visitation, [Mother] obtain psychological help.
On November 21, 2012, the parties and counsel first appeared in court. Your Honor denied [Mother]'s application for court appointed counsel and directed the Administration for Children's Services ("ACS") to provide a report to the court to include information on outstanding child protective investigations and to refer both parties for mental health evaluations. [Mother] was given the opportunity to hire counsel and the matter was referred to this Referee. The parties and counsel for [Father] as well as counsel for the children appeared before me on December 21, 2012. At that time, [Mother]'s attorney submitted both a notice of appearance and an affirmation of engagement requesting an adjournment of the proceedings. As the report from ACS had not been completed, the court reordered the report and adjourned the proceedings until January 30, 2013 for the appearance of [Mother]'s attorney. On January 30, 2013, all parties and counsel were present. A pre-trial conference was conducted and the matter was adjourned for the completion of a statement of trial readiness. On February 7, 2013, all counsel and the parties appeared. Six trial dates in April 2013 were selected although counsel still had not completed the statement of trial readiness as some limited discovery issues were outstanding. Both parties identified their witnesses *1 and the matter was adjourned for the completion of discovery by a date certain and submission of the statement of trial readiness. Two additional pre-trial conference dates were held on March 4, 2013 and April 3, 2013. By the March 4, 2013 court proceedings, [Mother] still had not provided discovery nor had the statement of readiness been completed. Throughout the proceedings, [Mother] insisted that she would not be completing the single statement of trial readiness required to be submitted by the parties and counsel but that she would be completing her own statement of readiness. Although the court explained the procedure for submission of one statement of readiness by all counsel and the parties to the court, at the pre-trial conference on April 3, 2013, the statement of trial readiness that was submitted contained information provided only by the attorney for the child, [Father] and his counsel.
The court conducted a trial in these proceedings on April 15, 2013, April 16, 2013, April 19, 2013, April 25, 2013, April 26, 2013, April 29, 2013 and May 29, 2013. Although on February 7, 2013, [Mother] had preliminarily identified six witnesses (including herself) that she would present at the trial, when the hearing began on April 15, 2013, [Mother] indicated that she did not have a complete witness list. The court directed her attorney to provide a completed witness list to counsel and the court by the commencement of the proceedings on April 16, 2013. On April 16, 2013, the completed witness list was not provided, and the court directed [Mother]'s attorney to provide counsel the names of the witnesses by 9:00 a.m on Thursday, April 18, 2013. [Mother] was also directed to have the witnesses present in court on April 19, 2013 when it was anticipated her case would begin. On April 18, 2013 at 2:32 p.m, [Mother] submitted a witness list containing 39 names to the clerk's office. On April 19, 2013, the attorney for [Mother] stated that he would only be calling two witnesses to testify: [Mother] and [Witness #1]. [Father] completed his direct case on April 19, 2013 and [Mother]'s case began with her own testimony. The trial thereafter continued on April 25, 2013 and April 26, 2013. [Mother] and [Witness #1] testified. On April 25, 2013, at the request of [Mother]'s counsel, the court signed a subpoena for the ACS workers involved in the proceedings as the attorney for [Mother] had initially indicated on February 7, 2013 that he might wish to call ACS as a witness. On April 29, 2013, [Witness #2] from ACS testified for the respondent. The court then selected a final trial date to complete the testimony of [Witness #2]. On May 29, 2013, [Witness #3] testified for [Mother]. *2 No other witnesses were present. At that time, the attorney for [Mother] requested the opportunity to call additional witnesses. The court indicated that it would sign subpoenas for two additional witnesses, [Witness #4] and [Witness #5]. [Mother] stated that she had character witnesses whom she wished to testify. The court scheduled two additional but final trial dates and directed that all witnesses were to be present on the next two dates. On the next court date, June 3, 2013, there were no witnesses present in court. *3 [Mother] indicated that there were additional witnesses she wished to call. The court denied an application for [Mother]'s therapist, [Witness #6], to testify by telephone as the doctor is located in Queens, New York and there was no reasonable basis given for the application for telephonic testimony. The court again signed subpoenas for [Witness #4] and [Witness #5]. The court also signed a subpoena for [Witness #7] who was on [Mother]'s original witness list. The matter was adjourned to June 5, 2013 at 2:00 p.m. On June 5, 2013, only one witness was present, [Witness #8], whose testimony the court heard. [Mother]'s request for a further continuance was denied. *4 The attorney for the children declined to call any witnesses, the court heard summations and the proceedings were concluded.
Immediately before the trial commenced on April 15, 2013, the attorney for [Mother] made an oral application to dismiss the order to show cause before the court alleging that the pleading did not state a prima facie case for a change of visitation which was orally denied. *5 I recommend You Honor confirm the denial of the application. I noted that the petitioner raised numerous allegations in his pleading which, if proven at trial, could serve as a basis for the court to modify the order of visitation.
At the trial, [Father] testified in support of his order to show cause and submitted 14 documents into evidence. [Mother] testified on her own behalf and presented four additional witnesses: [Witness #1], [Witness #2], a child protective specialist from ACS, [Witness #3], a supervisor from ACS, and [Witness #8]. Additionally, [Mother] submitted 15 documents into evidence at the trial. The court also conducted in-camera interviews with the children in the presence of their attorney on April 26, 2013.
Once the trial had already commenced and at the conclusion of the court proceedings on April 15, 2013, the court indicated that it would be conducting in camera interviews with the children. The parties were advised that they would be given the opportunity to submit questions to the court through their counsel that they wished it to consider asking the children during the in-camera interviews. During the court proceedings on April 16, 2013, the attorney for the children requested that the court suspend all contact between [Mother] and the children pending the completion of the in-cameras based on a voice mail [Mother] had left for the child [Child #1] the evening of April 15, 2013. This Referee submitted an interim report recommending that the request be granted and that application was granted. *6 At the close of the petitioner's case on April 19, 2013, an application to dismiss prima facie was denied.
The Testimony and Evidence
[Father] testified at the trial. He presented as a credible witness. The court had the opportunity to observe [Father]'s eye contact, body language and demeanor during his testimony and he presented as sincere and forthright in his responses to questioning on both direct and cross examination. [Father] testified that he is the ex-husband of [Mother] and that as a result of a prior application he made to the court, [Mother]'s overnight weekend parenting time was terminated as well as her after school parenting time. The court accepted into evidence as petitioner's exhibits one and two the report issued by this Referee dated  and the order issued by Your Honor on  conforming that report and modifying [Mother]'s parenting time with the children. [Father] stated that on October 14, 2012, the children left for visitation with [Mother] with their soccer bags. [Father] told the children he would be seeing them at [Child #1]'s game but that he would probably leave at half-time to attend high school open houses. When [Father] arrived at the soccer field in Old Bethpage, he saw [Mother] and [Child #2] each with a dog on a leash. He subsequently saw [Mother] engaged in what he described as an animated discussion with one of the parents or a coach. [Father] observed [Mother] and [Child #2] both pick up their dogs and put them on their laps. The man then pulled out what appeared to be a phone, began dialing and making a gesture toward [Mother] with his hands out and palms up. [Mother] and [Child #2] then went with the dogs and sat in her minivan. [Mother] moved her car and then shortly after she and [Child #2] left the field. [Father] stated that he planned to leave the field to attend the open houses but that he received a phone call from his daughter [Child #2] from an unrecognizable number. During that call, [Father] learned that [Child #2] was at a service station and that [Mother] was not coming back to pick up [Child #1]. [Father] remained at the soccer field and then drove [Child #1] to the open house at the Mary Louis Academy. According to [Father], it was about 45 minutes to an hour between the time [Mother] left the field and the end of the game and, in that time, [Mother] did not return to the field. During the car ride, [Child #1] called her cellphone which she had left in [Mother]'s car and yelled at her mother. [Child #2] subsequently called and [Father] told her that he believed it was a mistake that [Mother] had gone to Molloy High School instead of Mary Louis Academy. [Father] then proceeded to take [Child #1] to an additional open house at Molloy High School and then took her to Fort Tilden where both children had soccer games. After the game when it was 6:00 p.m., the time [Mother]'s parenting time was scheduled to end, [Mother] grasped [Child #2] by the shoulder and attempted to pull her to the car. According to [Father], [Child #2] pushed her mother away and said, "I'm going with dad" (tr 4/15/13 at 75, line 15). [Father] testified that he allowed [Child #1] to go with her mother because [Mother] was already agitated, and he did not want her to become increasingly agitated. Additionally, [Child #1] said she had left some things at her mother's house and that her mother would drive her home. [Child #1] arrived back home between 7:00 and 7:15 p.m.
[Father] stated that during his car ride home with [Child #2] she made him aware that [Mother] had screamed and yelled at her, pulled her head first out of the minivan by the arms, twisting her arms, had dropped the child's bag on the pavement and subsequently into traffic. [Child #2] said her mother was out of control and that her mother had tried to kill her. According to [Father], [Child #2] said her mother threw her bag three times: once into the street, once onto the sidewalk and once into a cemetery. [Child #2] said she was so scared she ran away. The next day [Father] found a voice mail on his phone which had been left for him by [Child #2]. In the voice mail, [Child #2] reports events that transpired while she was with her mother and states that [Mother] "went on a rampage....I had to get out of the car because she tried to kill me, so I'd like to tell you that like, I really don't want to be with her, all right?" (petitioner's exhibit 3). As a result of the incident, [Father] filed a police report although he did not file a report with ACS. He stated that he did not take [Child #2] to the doctor or observe any marks or bruises on her.
[Father] also testified that on October 5, 2012 he attended a function, a coffee with the principal, at the  which is his child's school. [Father] testified that the event took place in the school cafeteria and occurred on a school day when he was scheduled to have parenting time. He saw [Mother] in the room. She was present when he arrived at the event and remained when he left the event after about 25 minutes. On October 10, 2012, a day that [Mother] did not have parenting time, she appeared at two soccer practices of the children and remained for approximately ten to fifteen minutes. [Father] testified that while driving between the practices at the two fields, [Mother] followed them "practically bumper to bumper throughout the entire trip." (tr 4/15/13 at 102, line 25). [Father] testified that on October 20, 2012, [Mother] attended two separate games of the children when it was not her parenting time. According to [Father], [Mother] appeared at the second game, and placed her chair directly next to where he and [Child #2] were standing. [Child #2] then pulled him by the arm and he followed her and moved to the other side of the field. [Mother] then followed them and sat down next to them again. [Father] testified that [Mother] was present at the Alley Pond Park field for more than an hour, and that [Child #2] had a reaction to her mother's presence and said something to him. On October 24, 2012 a weekday when it was not [Mother]'s parenting time, while [Father] was present at [Child #2]'s soccer practice, [Mother] drove directly in front of him slowly and stared at him. He also stated that on October 26, 2012, he was walking toward the street and [Mother]'s car passed in front of him and [Child #2] and she glared at him.
[Father] testified that on October 28, 2012, he contacted the police department and filed a domestic incident report to advise them that [Mother] had returned the children after 6:30 p.m the evening of October 27th thereby forfeiting her parenting time on October 28, 2012 pursuant to September 28,2012 court order. [Father] noted that he delayed in filing in the police report until the morning of October 28th as he did not want to bring the children to the precinct. He called the police between 5:00 and 6:00 in the morning on October 28 so the police would come to his home instead. [Father] attended [Child #1]'s soccer game on October 28, 2012 and he sat on the sidelines with [Child #2]. [Mother] came to the game and sat down next to him and [Child #2]. After the game, he and the children were in the car and he noticed [Mother] had pulled her minivan behind him preventing him from pulling out of his parking space. [Father] told the children to keep the doors locked and to remain calm in response to what the children were saying to him. [Mother] blocked his car in for about two to three minutes and he was ultimately able to get his car out of the spot, not because [Mother] moved her car, but because there was a free parking spot next to him and he was able to get his car out through that spot and drive to the far side of the parking lot, turn around and proceed to the exit. When he approached the exit, [Mother] was blocking the only exit with her car. They sat in the car and he reassured the children that they would be able to get out of there and told them to calm down. [Mother] got out of her car, came ten feet in front of his car and began taking photographs. Other cars were lined up behind [Father] and were honking their horns. Eventually, [Mother] moved her car and [Father] and the children were able to exit the parking lot.
On November 2, 2012, [Father] received a phone call from [Witness #2] from the Administration for Children's Services and he then brought the children to her office to meet with her. Once he arrived at the ACS office, he was told that there were allegations that he touched the children inappropriately, he showered and masturbated in front of them and that he did not take appropriate measures to deal with rashes and infections on their private areas. During the meeting, he denied the allegations, and the children were then interviewed by the ACS worker. [Father] then signed releases for ACS to obtain information including information from the children's doctor, [Witness #4], and he subsequently brought [Child #1] to [Witness #4] for a vaginal examination rather than have the exam performed by an ACS doctor. According to [Father], [Child #1] appeared embarrassed and upset when taken to [Witness #4]’s office and she appeared upset after the examination. [Father] testified that it disgusted him that his daughter had to be subjected to such an exam and he felt that the false accusations took away his ability to protect his child. When [Father] was in the Queens Family Court on November 8, 2012, he learned from the ACS worker that the allegations against him were deemed unfounded, and he subsequently received written notification of the same. He stated that as a result of the allegations, the children have never been removed from his care by ACS nor has a neglect, abuse or criminal case ever been filed against him.
[Father] testified that there were also proceedings before Judge  on November 7, 2012 in the Supreme Court which were initiated by [Mother] as well as proceedings on November 8, 2012 before Judge . Transcripts for both court appearances were entered into evidence at the trial as petitioner's exhibits nine and ten. The Supreme Court proceeding on November 7, 2012 resulted from the filing of an Order to Show Cause by [Mother] (petitioner's exhibit 19). Judge  indicated during the proceedings that [Mother] had made allegations of sexual abuse of the children, child abuse and parental alienation by [Father]. A review of the transcript from the proceeding reveals that [Mother] told the Judge, although the parties were in family court the week prior, that she did not make the family court judge aware of the allegations because she had just that week spoken to her friend who is a doctor about the redness in her child's private areas. She told the Judge that her other child had bleeding "down there" but that a doctor had indicated that the child was fine (petitioner's exhibit 9 at 8, line 15-16). She also spoke in the November 7th proceedings about a hemorrhoid that [Child #2] had on her anus for years which she said was not normal. On November 8, 2012, the parties appeared in the Supreme Court before Judge . Judge  noted that [Mother] had filed 46 applications before the court and directed that she could not file any additional applications without court approval. When asked by the Judge to articulate any specific instances of sexual abuse by [Father] and the dates of the occurrences, [Mother] was unable to do so and said "I brought it to the court's attention because it's something that's been in my mind for a while." (petitioner's exhibit 10 at page 5, lines 9-11).
[Father] also testified that after the court proceedings on April 15, 2013 when the court addressed the intention to conduct in-cameras with the children, he took the children out to dinner. His daughter subsequently handed him her cell phone and he became aware that [Mother] had left [Child #1] a voice mail at 5:12 p.m which was subsequently entered into evidence as petitioner's exhibit 11. In that recording, [Mother] states as follows:
"Hi, it's mom. Listen, dad is going to come home. He is going to tell you this lady from court, very nasty lady, Referee , and that black guy , he's going to try and get you and [Child #2] to come in to court to talk in camera which is taped and they'll make a copy of it and it will become a permanent record. Do not say anything except, you know, that you love your mom. She's great. You love spending time with her and you want to be with her a lot more, and that you want her to be making decisions on your behalf, attending your events, to be at your school, at church, at community, you know, to get your records, to be at your doctor and dentist appointments, to be with you in the summer, on your birthday, especially on your birthday, on holidays, vacations in the summer, weekdays, overnights on weekends. You love your puppies. The house is neat and clean. You always have a good time with mom. Mom gets along great with you and with [Child #2]. I don't yell at you or do anything wrong. I drive safely. The house is nice,. You're happy in my care and you always have a good time, and I always watch out for your best interest. I take you to nice places and buy you nice things, and I never scream and curse. I never do anything inappropriate. I'm always nice to people. I don't get into fights. You do not know anything about me leaving you, abandoning you at the game or leaving you unattended ever. You always, the coach is always in charge of you at practice and games. Often parents leave to go to the bathroom or they go in their car because it's cold, and the coach watches you. You're private and separate and you're always safe. Tell them you know nothing about the alleged incident against [Child #2], that [Child #2] tends to get upset. She over-dramatizes things and that she does engage in temper tantrums, that you know, you have been hit by her and she has gotten out of hand, and it's because of high sugar that she takes on and she does get moody. But that she loves her mom, and that mom buys her like nice things, and she did not complain about mom, but sometimes she's obsessed with the computer and T.V. and that she can act up and have like long standing tantrums and that the day they alleged she went to soccer, she was feeling, you know, she played in the game. She went with mom because, with dad, because you both wanted to go with mom, but dad said [Child #2] had to come with him, because he wanted you to come with him, too. Call me back if you can." (petitioner's exhibit 11).
[Father] testified that [Mother] speaks to the children on the phone and that he has never prevented the children from talking to their mother.
[Mother] also testified at the hearing. The court found [Mother] to be an absolutely incredible witness who was evasive, obstructionist, belligerent and even deceptive, and the court does not credit her testimony which was often contradictory, repetitive, non responsive to the questions asked and irrelevant to the proceedings before the court. While testifying [Mother] often sat in a defensive posture and also presented at times as angry and sarcastic. [Mother]'s behavior during the proceedings was often inappropriate and erratic. [Mother] often blurted out comments and interrupted the court proceedings, interjected during the testimony of witnesses, answered questions posed to other witnesses, chastised the lawyers for standing when addressing the court, made inappropriate comments to counsel, *7 and sought to leave the proceedings spontaneously for various reasons. On one occasion, [Mother] even left the building and had to be directed to return by court officers. *8
[Mother]'s testimony repeatedly consisted of long non responsive speeches where she made allegations of bribery against the attorneys appearing in the proceeding, bias by the court and the attorney for the children, and harassment by court personnel *9 and counsel. [Mother] also used her opportunity to testify as a forum to launch personal attacks on [Father], the attorneys and the court rather than respond to the questions posed to her during both direct and cross examination. [Mother] often focused on issues addressed in prior court proceedings, some of which were never before the family court as well as previous proceedings before the family court. She also continually offered testimony about changes needed to the custodial arrangement even though custody proceedings are not currently before the court. On one occasion when simply asked if the September 28, 2012 order issued by Judge Bogacz was the current order specifying her parenting time, [Mother] failed to respond to the question and instead chronicled the parties' court proceedings and the custody/parenting time history concerning the children beginning in 2001 at length. [Mother] criticized various triers of fact and explained how other triers of facts supported her custodial and parenting rights in her estimation. [Mother] criticized the attorney for the children, alleged coaching and misrepresentations by counsel and [Father]to the court, spoke about the in-camera proceedings and how she believed they should be conducted. [Mother] also addressed her fitness as a parent alleging she should be given joint custody of her children claiming she is a fit mother, an educated person and her children are emotionally abused and alienated from her (tr 4/25/13 at 177-183). [Mother] subsequently alleged that all her petitions '"disappeared from the system" and offered an explanation for her default in prior proceedings. *10 (tr 4/25/13 at 183-184, lines 25 et seq.).
Throughout her testimony, despite constant directions from the court to cease such behavior, [Mother] continually communicated with her lawyer by gesturing to, questioning, and making comments and directions to her lawyer during her testimony. Although by this juncture the court had already issued countless warnings to [Mother], on April 29, 2013, the following dialogue occurred:
Referee: "[Mother], take your hands away from the microphone. [Mother], I'm going to strike your testimony. Do you understand that everything you said in this courtroom is not going to be considered? I don't understand what you don't understand about what I just stated. You're placing your hand over your mouth and turning your head to speak to you lawyer. You are a witness testifying in this proceeding. You are not allowed to speak to your lawyer."
Witness: I didn't speak to him and I didn't put my hand over my face.
Referee: [Mother], listen to what I'm saying. This is a rule that applies to every witness who's testifying. You're no different, ma'am, when you are testifying, than any witness who sits on that stand. Do you understand what I just said to you? Yes or no?
Witness: I understand, but I feel that my safety is threatened at this point by you and others in this room and I feel I would like to make a police report.
Referee: Right now?
Witness: About the threats and harassment.
Referee: Who would you like to make a police report about? Again, right now, sitting in this room with a court officer here, with four lawyers - excuse me, three lawyers and The Court present, who would you like to make a police report against so the record is clear?
Witness: I would like this proceeding to be stopped immediately based on your harassment of me and [Attorney for the Children]'s continuing abuse and harassment of me and assault on me and anything you're discussing is criminal evidence at this point and will be brought up with the police today in a police report and we should not continue because you're violating my rights and the penal law and you should stop immediately with this proceeding because right now we're dealing with a criminal investigation and I'm going to be taking this to the district attorney's office."
(tr 4/29/13 at 15-16, lines 7 et seq.).
At times, [Mother] refused to answer questions, citing her own objections to the questions posed. On cross examination, [Mother] refused to answer questions citing the unjustness of the lengthy questioning and claiming that documents shown to her for identification were "irrelevant." (tr 4/29/13 at 35, line 5). On more than occasion during cross examination, [Mother] refused to answer questions and had to be directed accordingly by the court. On April 26, 2013, on cross examination, [Mother] denied placing certain items in her daughter [Child #1]'s soccer bag. She was asked: "is it your testimony you had not placed those items in her bag?" [Mother] refused to answer at first saying "I have nothing else to say about that." The court instructed her " [Mother], please answer the question of the lawyer" to which [Mother] responded, "The way that Mr. Ayers is posturing is, you know, is combative." (tr 4/26/13 at 15, lines 6-25). The court continued to instruct [Mother] by saying: "[Mother], Mr. Ayers is standing up as is appropriate before the court. Please answer the question." [Mother] responded by saying: "I don't have to answer the question if I don't want to." The court: "Yes, actually, [Mother] you do. [Mother], I'm sorry, I didn't hear an answer." [Mother]: "There is no answer." The court: "Please answer the question, [Mother]." [Mother]: "No." (tr 4/16/13 at 16, lines 1-11). On another occasion, when asked to identify documents, [Mother] responded by saying "we're only going to allow certified copies to be admitted. We're going to be objecting to everything." (tr 4/29/13 at 117, lines 1-2). [Mother] then "demanded" that the documents presented to her for identification be certified and she "demanded" that "all my applications in the file, to date, the entire file, is added into evidence from beginning to end. From supreme and the appellate division from 2000 to date and this case be a full custody hearing." (tr 4/29/13 at 117, lines 16-21).
On April 29, 2013, [Mother] claimed that she was unable to read and identify any documents presented to her because she had forgotten to wear both her glasses and contact lenses to court. She stated that, "I didn't know I was going to be reading documents, that the court was going to force me to read. It's a dictatorship here today. Sorry. I don't have my glasses." (tr 4/29/13 at 30, lines 13-16). After being directed by the court to return after the lunch recess with glasses and/or contact lenses, she returned wearing glasses. During the afternoon session on that date, [Mother] broke her glasses and subsequently threw them from the witness chair across the room to counsel's table. She claimed she was also wearing contact lenses and did not need the glasses to see. Numerous times during her testimony, [Mother] would insist on leaving the courtroom claiming she had an emergency while simultaneously requesting to speak to her lawyer. [Mother] also claimed various medical ailments during the proceedings such as headaches, migraines and a stomach virus.
During her testimony, [Mother] claimed that she was not served with the order issued by Judge  on September , 2012 until late October 2012. [Mother] subsequently testified that she was never actually served with the order. When asked if she had parenting time on Fridays pursuant to the order issued on September 28, 2012, [Mother] testified that she is not familiar with the entire order, (tr4/29/13 at28, line 29). During her testimony, [Mother] denied every attending the children's events during her non-parenting times. She stated that: "After I was served with Judge 's order I have not. I don't know the date on that but I think it was in October some time." (tr 4/25/13 at 189, lines 13-15). Despite her testimony about her lack of knowledge of the full contents of the order, [Mother]'s testimony does evince an awareness that her parenting time had been modified by October 2012. For example, she testified with specificity to the constraints she felt were placed on her relationships with the children by the new schedule in effect in October 2012 which allowed her only day visitation, and her testimony showed she was aware that she had to return the children in a timely fashion or risk forfeiting her next visit.
The court took judicial notice that October 5, 2012 was a Friday. [Mother] testified that she was unable to recall the date of October 5, 2012 when she was alleged to have been present at the coffee with the principal. She subsequently denied being at the coffee with the principal that day and then testified that she could not recall whether she saw [Father] and the children at any other time that day. An Order to Show Cause that [Mother] submitted to the Queens Supreme Court on November 7, 2012 was entered into evidence during the hearing. Paragraph 15 of the affidavit submitted by [Mother] states as follows: "On Friday October 5, 2012 Respondent came into our children's schools to attend breakfast with the principal which he has never attended for the past four years. I have attended this even often offering suggestions and ideas to the principal. I am a tenured and certified teacher in New York. I have a Master's Degree in Education. Respondent stared at me in an evil way as he walked in. Everyone could see his disdain and anger toward me. He tried to sit down with our child's soccer coach Brian but was advised that he should sit elsewhere." (petitioner's exhibit 19). Even if the court assumed arguendo that [Mother] had not yet received the court's order dated September 28, 2012 which prohibited her from being present at the children's schools at any time, the court had previously issued an order on May 10, 2012 prohibiting [Mother] from being present at the children's schools unless she was scheduled to pick them up for visitation. Under either order, [Mother]'s presence at the school for such an event was not permissible.
[Mother] testified that on October 14, 2012, the children had a soccer game on Long Island. She denied having an animated discussion with anyone on the soccer field that day. [Mother]'s explanation for the events that led to her leaving the field with [Child #2] were as follows: [Mother] claims the man who runs the field told her dogs were not allowed so she placed the one dog she had with her back in the car. [Mother] claimed that she and [Child #2] left the field and went to the bathroom a mile down the road and when they returned [Father] had already left with [Child #1]. According to [Mother], she and [Child #2] left the field a few minutes before the end of the game but she was unable to state how long she and [Child #2]were absent from the field other than to say that it was less than an hour. [Mother] also claims that [Child #2] was upset and trying to reach out to [Child #1] because she wanted to be reunited with her sister. [Mother] denied physically harming [Child #2] on that day and further claims that [Father] is attempting to alienate her. [Mother] said "[Child #2] was distraught. [Child #2], you know, likes to be with her sister. And she likes to know that her sister is safe." (tr 4/19/13 at 58-59, line 24 et seq.). [Mother] claimed that her daughter revealed their plans to attend the open houses that day to [Father] and that he wanted to go and stalk them. She also claimed that [Father] abducted [Child #1] during her parenting time that day. When presented with the audio recording [Father] testified that [Child #2]left on his phone (petitioner's exhibit 3), [Mother] conceded on direct examination that she recognized her daughter's voice (tr 4/16/13 at 56, line 25). On cross examination, however, [Mother] stated that "I don't know if that is my daughter or not."(tr 4/26/13 at 133, line 17). She continued to say "I do not think that's my daughter, and I don't think that she did say those things. I believe it was coached and it was when she was home, and [Father] was preparing her to lie at the police station if she did and that's outrageous." (tr 4/26/13 at 133, lines 24 et seq). [Mother] continued on in her response to claim that the attorney for the children has accepted bribes and stole documents from her and ran out of the court house. When asked if [Child #2] was in her care when she left the message, [Mother] said that the police are currently investigating wiretapping by [Father], claimed that the court is participating in the abuse of her children, alleged tampering with criminal evidence, claimed that the attorney for the children is coaching them and should not be present at the in-camera of the children and that it is abusive for the court to conduct an in-camera of the children.
The court took judicial notice that October 10, 2012 was a Wednesday. [Mother] denied going to the children's soccer practice on October 10, 2012 and on October 12,2012. She also stated that she never followed the children in her car. She alternatively denied being at the Alley Pond soccer field on October 20, 2012 and stated that she did not believe that she was present at the soccer game on that day. She also denied driving by [Father] and the children on October 24, 2012, which the court took judicial notice was a Wednesday.
Counsel stipulated that [Mother] had visitation with the children the weekend of October 27 and 28, 2012. [Mother] denied returning the children back late on Saturday, October 27 but states that the children were returned by 6:15 p.m and that [Father] was not there. [Mother] testified that she went to pick up the children on Sunday morning at 10:00 but that they were not there. She made a police report and then proceeded to go to the soccer field where she then proceeded to call the police. According to [Mother] she met the police in the elevated parking to avoid making a scene but she stated that the officers remained on site and were there when she left the field although [Father] was not arrested. [Mother] denied blocking [Father]'s car either in his parking spot or at the exit to the field on October 28, 2012. She acknowledged that her car is the vehicle, a 2006 Chrysler Town and Country, pictured in respondent's exhibit A in evidence but alleged that there were two exits to the field and plenty of room for all the cars. Respondent's A shows an open gate with [Mother]'s car in the middle of that gate. From the picture it is clear that no other cars could enter or exit the gate with [Mother]'s car so situated. [Mother] offered several pictures of the field into evidence at the hearing. She alleges that two of the pictures show a different gate on the other side of the field (respondent's exhibits E and F). Although [Mother] alleges that on October 28, 2012 the gate was open, she testified that she took the pictures which were entered into evidence on April 24, 2013.
[Mother] admitted that there was a complaint made against [Father] for sexual abuse but alleges that it was based on concerns she had after speaking with a doctor and a psychologist. She indicated that her friend told her that the allegations were very alarming and that there could be an improper relationship if her children had reported the allegations. According to [Mother], [Child #2] reported seeing her father naked and sleeping on the couch with her father and [Child #1] reported receiving back rubs from her father. [Mother] then proceeded in her testimony to talk about a medical condition that [Child #2] had "a couple of years ago" (tr 4/19/13 at 75, line 5) and focused on how [Father] prevents her from having contact with the children's doctors even though the order dated of September , 2012 restricts her access to third party providers of the children. [Mother] testified that [Child #2] has had a hemorrhoid since she was very young and described it as a skin tag on her anus. She also stated that it is not of a current concern to her but when asked why she raised it in her allegations to the family court and other courts, she said that when she mentioned it to a few professionals, they said it was "one piece to a puzzle." (tr 4/29/13 at 47, line 4).
[Mother] claimed that it was [Father]'s decision to take the child [Child #1] for a vaginal examination claiming that "no one made allegations of rape" or any need for an internal examination of the children (tr 4/19/13 at 76). [Mother] claimed that when she made the allegations to ACS, she did not understand that it could result in either child being examined medically because no one said that the children were being sexually abused.
[Mother] initially testified that she was concerned that [Child #1] was requesting back rubs from her but then testified that this behavior did not concern her and that she never claimed the children were being improperly touched. She also testified that [Father] took the wrong child for the vaginal examination. She stated on cross examination that her report to ACS concerning [Child #1] only alleged that the child was left home alone and that [Child #2] was her main concern although she then stated that she did make ACS aware of the backrubs. [Mother] claims that she wanted to keep the ACS investigation a private matter but that [Father] brought the matter to court. The record in these proceedings show that [Father] filed his supplemental affidavit on November 12, 2012 in which he raised the allegations that [Mother] filed false child sexual abuse allegations. [Mother] filed an emergency application in the Supreme Court on November 7, 2012, resulting in court proceedings on November 7, 2012 and November 8, 2012 in which [Mother] made allegations of sexual abuse before Judge  and before Judge  (petitioner's exhibits 9 and 10). [Mother] filed an Order to Show Cause in the Family Court on November 15, 2012 in which she repeated the allegations that [Father] is a "sexual predator" (petitioner's exhibit 20). [Mother] also filed an affidavit in response with the family court on November 13,2012 in which she repeated the allegations of sexual abuse against [Father] (petitioner's exhibit 21). On January 18, 2013, [Mother] filed an additional Order to Show Cause in the Supreme Court in which she again addressed her concerns about [Father] and pedophilia.
[Mother] testified that the complaint she made to ACS was investigated and closed. [Mother] claimed that even as a former school teacher she was a mandated reporter of child abuse which included reporting the potential abuse of her own children. [Mother] claimed that even though there was no evidence to support the allegations she raised, it does not mean that there is not potential for them to be true or that they are not true. [Mother] claims that when one parent has complete control, which she defines as the restriction of the other parent from decision making and access to third party providers and a deprivation of contact, there is the potential for sexual abuse. [Mother] acknowledged that before she raised the sexual abuse allegation before Judge , she had brought the children to the doctor and the doctor indicated they were ok. When asked why she then filed her application before the court, [Mother] responded that she was giving the Judge background on the past, what her concerns were and looking out for the welfare of her children. (tr 4/29/13 at 72, lines 18-20).
[Mother] testified that she did not discuss the in-camera proceedings with the children. *11 As soon as she heard that the attorney for the father was seeking to introduce a CD recording from April 27, 2013, [Mother], who was testifying, stated: 'Excuse me, I'm going to use the bathroom. [Attorney for Mother], this is a hearing for October through November." (tr 4/29/13 at 4, lines 5-7). The court thereafter accepted petitioner's exhibit 13A and 13B into evidence. Petitioner's 13 consisted of two recordings in which [Mother] is heard asking the child [Child #1] if she consented to her father making a copy of her messages and giving it the court and everyone. [Mother] proceeds to tell [Child #1] that it is a criminal matter. [Child #1] responds by telling her mother that "you don't involve children in that." She also tells her mother three times that "I am not a victim." On the second recording [Child #1] tells her mother that all she ever says about her father is "lies, lies, lies." When asked whether she ever discussed the court proceedings with the children, [Mother] testified that her children might have overheard things occasionally but it has never been intentional (tr 4/25/13 at 195, lines 1-2). Petitioner's exhibit 11 was played for [Mother] during cross examination and she denied that it was her voice or that she left a message for her daughter [Child #1] on April 15, 2013 after the court advised the parties that it would be conducting in-cameras with the children.
[Mother] claimed in her testimony that she disciplines the children by using positive reinforcement and by giving them instructive things to do and planning activities they enjoy. She also stated that when the children are in her care she assists them with their school work, takes them to the library and Barnes and Nobles and takes them to museums and cultural events
[Mother] also called [Witness #1] to testify. The court found [Witness #1] to be a fairly credible witness. [Witness #1] testified that he is an orthopedic surgeon at the [hospital]. There was a stipulation that [Witness #1] is a licensed medical doctor, licensed in the state of New York with a specialty in orthopedics. [Witness #1] testified that he is acquainted with [Mother] and her children and that he met [Mother] in 2006 when he purchased a house from her. When he first met [Mother] and the children he saw them monthly when meeting for brunch after church or when they visited his home. Thereafter, [Witness #1] saw [Mother] and the children between monthly to once every few months. His interactions were usually having dinner and traveling to and from dinner. He approximated that he saw them five to six times in 2012. [Witness #1] testified he is required by the state and the hospitals to which he is admitted to engage in certain training such as training in patient's rights and the recognition and reporting of child abuse. [Witness #1] testified that in 2012 he observed the children and saw that [Child #2] had become almost reticent, reserved and quiet but that their interactions with their mother was normal. He indicated that he discussed these concerns with [Mother] and stated that [Child #2]'s behavior was one of the signs that a child might not be treated properly. He subsequently stated that he did not know who, if anyone she might have been improperly treated by and acknowledged that it could have been [Mother]. He also stated that [Mother] told him that she believed she was being alienated from [Child #2]'s life and that [Mother] discussed the relationship between [Father] and the children with him. [Witness #1] stated that he did not make any recommendations to [Mother] but he expressed concerns that she was being taken out of the children's lives and that this could be a sign of sexual abuse.
On cross examination, [Witness #1] conceded that he is a mandatory reporter for abuse allegations concerning children and that he did not feel it was necessary to report an allegation of abuse against [Father]. He also conceded that a child's reticent or reserved behavior may not in themselves be signs of abuse. [Witness #1] also testified that [Mother] had not explained to him any of the court orders that have been issued regarding her parenting time with the children. During [Witness #1]'s testimony two documents were admitted into evidence: his curriculum vitae and a letter he had written on behalf of [Mother] in 2007 for prior court proceedings.
[Witness #1] testified that every time he sees [Mother] she raises the topic of the court proceedings including on the occasions where the children are present although he later stated that the conversations were not in front of the children. [Witness #1] also testified that he has seen [Mother] yell at the children in response to their behavior but later qualified this statement and said that it was not "at the top of her lungs." (tr 4/26/13 at 117, line 14). According to [Witness #1], he saw [Father] once at a church function when the children were present. At that time, he saw nothing in [Father]'s interactions with the children that concerned him. [Witness #1] further testified that he is not an expert in the area of child abuse and neglect and that he was unfamiliar with the elements of parental alienation syndrome. He also testified that he told [Mother] that what he saw in [Child #2]'s behavior was indicative of possible sex abuse, and he would be surprised to learn that [Mother] made an report regarding sex abuse of the child [Child #1].
[Mother] also called [Witness #2] as a witness. [Witness #2] testified that she is a child protective specialist for the Administration for Children's Services where she investigates cases of child abuse and neglect and does court ordered investigations. A two page report dated March 4, 2013 prepared by [Witness #2] was entered into evidence during her testimony. The report indicates that the children did not have any visible or suspicious marks or bruises and the children are not fearful of either parent.
[Mother] also called [Witness #3] to testify at the hearing. [Witness #3] testified that she has been employed by New York City Children's Services for six years and has been a child protective specialist supervisor for three years. She indicated that she supervised [Witness #2] in the preparation of the court ordered investigation dated January 29, 2013 although she did not consult with [Witness #2] in the report's preparation. Prior to [Witness #3]'s testimony, the ACS report dated January 29, 2013 was entered into evidence on consent as respondent's exhibit W. During her testimony, [Witness #3] testified that she did not meet the children [Child #2] or [Child #1] but reviewed the report and testified that, at the time of the January 29, 2013 report, the children had no visible marks or bruises and the "children have supported that the visits with the mother have been going well and they have not been fearful of the mother" (respondent's exhibit W). [Witness #3] also testified that home visits on the parties' homes as well as mental health evaluations were completed as a result of the investigation and that no neglect proceedings were initiated against [Mother] as a result of the investigation. [Witness #3] testified that [Mother] appeared to be a concerned parent but that she had three face to face contacts with her during the course of the ACS investigation and that her behavior seemed "strange." [Witness #3] testified that she was aware of a prior indicated case against [Mother] for inadequate guardianship.
The January 29, 2013 ACS report was entered into evidence and states that ACS indicated a case against [Mother] for inadequate guardianship. The case was opened on October 16, 2012 and closed on December 7, 2012. According to the report, "it was determined that the mother failed to exercise a minimal degree of care in providing proper guardianship for the child [Child #2] in that the mother lost self control and placed the child at risk for substantial harm" (respondent's exhibit W, page 2). The report continues to explain that [Mother] "pulled the child [Child #2] out of the car at a busy intersection causing the child to fall on her back. The mother lost self control in that she took the child's soccer bag and threw it out the car and up against the wall several times. A police report was made and the child also left a voice mail for the father stating the mother tried to kill her and she was fearful to stay with the mother and requested the father to pick her up" (respondent's exhibit W, page 2). The report also stated that collateral resources supported that "mother's behavior is erratic at times in the presence of the children" (respondent's exhibit W, page 2)
As part of ACS's investigation, [Mother] was referred for a mental health evaluation and evaluated by both a psychiatrist and a psychologist. The evaluation was entered into evidence by [Mother] (respondent's exhibit W). The evaluation provided indicates that [Mother] was "very focused on defaming her ex-husband and placing blame on him with regard to the children.... She was overly inconclusive in her answers and would frequently incorporate her husband's wrong doings. She displayed poor insight into how her own actions could be affecting her children's emotional health" (respondent's exhibit W, evaluation page 3). The report also indicated that [Mother] was open to family and individual therapy.
Consistent with [Mother]'s behavior while testifying in court, the report indicates that [Mother]'s verbal productions were "typically long winded" and that she "often did not remain focused on the topic at hand as she seen [sic] more invested in speaking negatively about her ex-husband than addressing the question asked of her" (respondent's exhibit W, evaluation page 4). The report also indicates that "she acknowledges some problems within the relationship with her ex-husband, but attributes all the blame for their problems on him" (respondent's exhibit W, evaluation page 6). The report also talks about [Mother]'s lack of insight and states that her insight was "limited relating to her involvement in the children's emotional health. She placed much of the blame on her ex-husband and had difficulty recognizing the role her actions played on her children's emotional health" (respondent's exhibit W, evaluation page 7).
[Mother] also called [Witness #8] to testify at the hearing. [Witness #8] was a credible witness but her testimony was of limited value to the proceedings. [Witness #8] testified that she has known [Mother] for eight years through their children who previously attended the same school three to four years ago and have had periodic play dates. [Witness #8] testified that during August and September 2012, she saw [Mother] and the children once a month, possibly more and she observed "normal" parenting interactions. When asked if she observed [Mother] discipline the children she stated that she has seen [Mother] issue directions regarding safety but nothing out of the ordinary and that the children are generally well behaved and responsive to parental directions. [Witness #8] stated that she has only seen [Father] once when she was with [Mother] when she dropped the children at the entrance to his home and [Father] was there to receive the children.
The court also conducted in-camera interviews with the children in the presence of their attorney. Both children are bright and articulate young girls. The children were both able to relate their thoughts, emotions and experiences to the court. Without revealing the substance of the in-camera interviews, the court is also considering the experiences of the children in assessing [Father]'s allegations that form the basis for his modification petition and in assessing the best interest of the children. The wishes of the children are also being considered in assessing [Father]'s application to suspend all visitation between [Mother] and the children.
Conclusions of Law
In order to modify an existing custody or visitation arrangement, there must be a showing of a subsequent change in circumstances so that modification is required to protect the best interests of the children. Leichter-Kessler v. Kessler, 71 AD3d 1148 (2d Dept 2010); Skeete v. Hamilton, 78 AD3d 1187 (2d Dept 2010). Visitation is a joint right of a noncustodial parent and a child. Weiss v. Weiss, 52 NY2d 170 (1981). A non-custodial parent is entitled to reasonable visitation rights and the denial of that right is such a drastic remedy it must be based on "substantial evidence that visitation would be detrimental to the welfare of the child." Klutchko v. Baron, 1 AD3d. 400, 405 (2d Dept 2003). See also Kachelhofer v. Wasiak, 10 AD3d 366 (2d Dept 2004); Quinn v. Quinn, 87 AD2d 643 (2d Dept 1982). For visitation to be suspended, the evidence must show that visitation poses a risk to the child's physical safety or that it would be harmful to his/her emotional health. Hughesv. Weigman, 150 AD2d 449 (2d Dept. 1989); EricL. V. Dorothy L, 130 AD2d 660 (2d Dept 1987). Supervised visitation is only necessary where unsupervised visitation would be detrimental to the welfare of the child. Powellv. Blumenthal, 35 AD3d 615 (2d Dept 2006). The risk of harm to a child need not be physical but can be emotional harm. CraigS. v. Donna S., 101 AD3d 505 (1st Dept 2012). Courts have found supervised visitation appropriate under a myriad of circumstances when it is appropriate to protect the best interests of the children. Bullingerv. Costa, 63 AD3d 735 (2d Dept 2009) (holding that unsupervised visitation was inappropriate due to father's inability to control his anger, general disregard for the safety of others and alcohol abuse); Fisk v. Fisk, 274 AD2d 691 (3d Dept 2000) (supervised visitation properly directed where father disparaged mother and his psychological difficulties affected his judgment when interacting with his children); James Joseph M. v. RosanaR., 32 AD3d 725 (1st Dept 2006) (affirming a determination of supervised visitation where mother repeated false allegations of sexual abuse against the father subjecting the child to a vaginal examination and interviews with law enforcement and medical personnel and interfering in the child's relationship with her father). Supervised visitation, however, where needed, "is not considered a deprivation of meaningful access" to a child. Graham v. White, 16 AD3d 583, 583 (2d Dept 2005); Carl J.B. v. Dorothy T., 186 AD2d 736, 738 (2d Dept 1992). The determination as to whether visitation should be supervised is within the discretion of the court. Ashmore v. Asmore, 92 AD3d 817 (2d Dept 2012). Additionally, a court may not require a noncustodial parent to attend therapy as a precondition to obtaining visitation rights or for the resumption of visitation rights. Jonesv. Jones, 185 AD2d 228 (2d Dept. 1992); Nacsonv. Nacson, 166 AD2d 510 (2d Dept 1990). A court may, however, under appropriate circumstances, direct a parent to undergo counseling or treatment as a component of a visitation order. Grassiv. Grassi, 28 AD3d 482 (2d Dept 2006).
Under Section 656 of the Family Court Act, the court may issue an order of protection "in assistance or as a condition of any other order made under this part. The order of protection may set forth reasonable conditions of behavior to be observed for a specific time by any petitioner or any respondent...." NYFCA § 656. Section 656 further delineates the specific conditions that may be imposed in such an order which include a stay away order directing a party to stay away from the home, school, business, place of employment or designated location of the other party, or the child, to refrain from committing a family offense as defined in Section 812 of the Family Court Act, to refrain from acts that create an unreasonable risk to the "health, safety or welfare of the child and to participate in a educational program." NY FCA § 656(a), (c) (e) and (f). If a court possesses sufficient information, it does not have to conduct a separate hearing to determine whether an order of protection should be issued. Melnitzky v. Melnitzky, 278 AD2d 2 (1st Dept 2000). In Melnitzky, in upholding the motion court's determinations that the defendant posed a danger to his wife and children, the court stated that "the court made such findings after having examined the parties over several court appearances, and it is clear that, even without a hearing, the court possessed sufficient information upon which to render an informed decision in the best interests of the children. Id. at 2. An order of protection issued under Section 656 maybe issued until the youngest child reaches the age of majority. Abare v. St. Louis, 51 AD3d1069 (3d Dept 2008); Anson v. Anson, 20 AD3d 603 (3d Dept 2005); Morse v. Brown, 298 AD2d 656 (3d Dept 2002). Even absent a party's request for an order of protection, the court may sua sponte issue an order of protection under Section 656 if appropriate. Tirado v. Miller, 75 AD3d 153, 159 (2d Dept 2010). See also Melody v. Robert M., 103 AD3d 932 (3d Dept 2013); Bronsonv. Bronson, 23 AD3d 932 (3d Dept 2005).
Based on the testimony elicited at the hearing, [Father] has shown that there has been a change of circumstances since the entry of the order dated  rendering modification of the order necessary to protect the best interests of the children. In September 2009, Judge  issued an order that restricted [Mother] parenting time with the children. In that order, Judge Strauss indicated that any violations of his order "shall" result in a termination of [Mother]'s parenting time (petitioner's exhibit 1 at 25). On , You Honor issued a court order which further restricted [Mother]'s parenting time after confirming the report of this Referee issued on . In that report, the court found that [Mother] had violated the orders of parenting time which were in effect. The violations established included: consistently returning the children late from visitation, returning the children hungry with incomplete homework, removing items from their school bag, engaging in direct contact with the children's third party providers and school personnel and attending the children's activities on non parenting days. Additionally, the report found that [Mother]called the child [Child #2] a "fucking bitch" in the presence of her sister [Child #1] while throwing her belongings at her. [Mother] also tried to remove [Child #2] from her school on a non parenting time day and confronted [Child #1]'s teacher in the child's presence (petitioner's exhibit 1). Notwithstanding these violations, this referee recommended that [Mother]'s parenting time be reduced rather than terminated and the report was confirmed. Since the issuance of that report and the subsequent court order of , 2012, however, [Mother] has continued to engage in a course of conduct in which she violates the court's order and places the emotional and physical well being of the children at risk.
[Father] testified that on numerous occasions, [Mother] has attended the children's activities on day when the children are not in her care. On October 12, 2012, [Mother] appeared at two soccer practices of the children and remained for 10 to 15 minutes at each practice. She also followed [Father] and the children in her car bumper to bumper between practice. On October 20, 2012, [Mother] again attended two separate games of the children when it was not her parenting time. Moreover, she placed her chair directly next to [Father] and [Child #2], causing [Child #2] to pull [Father]'s arm and lead him to the other side of the field. [Mother] proceeded to follow [Father] and [Child #2] to the other side of the field. On October 28, 2012, [Mother] attended [Child #1]'s soccer game even though she had forfeited her parenting time due to lateness on October 27, 2012. She then called the police to the field. [Father] testified that on October 24, 2012 when [Mother] was not scheduled to visit with the children, she drove by him slowly when he was at [Child #2]'s soccer practice. On another occasion, on October 26, 2012, when he and [Child #2] were walking on the street, [Mother]'s car passed in front of them.
[Father] testified that on October 5, 2012,despite a court order *12 directing that [Mother] not attempt to contact or otherwise interact with the children's school faculty, staff or other support members, [Mother] attended a coffee with the principal. While [Mother]'s memory of the event was unclear during her testimony and she subsequently denied being present at the event, in the Order to Show Cause she submitted on November 7, 2012 to the Supreme Court, [Mother] clearly states that she was present for the event (petitioner's exhibit 19).
[Mother] has also engaged in erratic and unpredictable behavior in the presence of the children. On October 12, 2012, in addition to attending the soccer games of the children when it was not her parenting time, [Mother] followed [Father] and the children "bumper to bumper" between the two games placing the children's physical safety at risk. [Father] also testified to events that occured on the soccer field in Bethpage, New York on October 28, 2012. [Father] testified that, even though [Mother] was not supposed to have parenting time that day, she attended [Child #1]'s soccer game. After the game, [Mother] attempted to physically prevent him and the children from exiting the field on two occasions. First she pulled her car behind his to block him from leaving his parking spot. [Mother] subsequently blocked the exit from the soccer field with her car, exited her car and began taking photographs. During both incidents, [Father] had to reassure the children and tell them to remain calm because of their mother's behavior.
On October 12, 2012, [Mother]'s erratic behavior caused her not only to leave [Child #1] at the soccer field during her parenting time but also to verbally and physically assail [Child #2]. [Mother] was present at the [Child #1]'s soccer game and after an animated discussion with someone, she summarily left the field with [Child #2] leaving [Child #1] behind despite the fact that [Child #1] was her responsibility. [Mother] never returned to pickup [Child #1]. [Father], who was present at the game but was going to leave, testified that [Mother] left the field between 45 minutes to an hour before the end of the game and she never returned. [Father] also received a phone call from [Child #2] telling him that she and her mother would not be returning to the field.
[Mother]'s violent behavior toward [Child #2] also appears to be escalating. In the prior report submitted on August 24, 2012, it was cited that [Father] observed [Mother] call [Child #2] a "fucking bitch" and throw her book bag, clarinet case and clothing at her. According to [Father], [Child #2] was crying uncontrollably and hyperventilating. [Child #1] witnessed these events and attempted to console her sister. On October 14, 2012, [Child #2] reported to her father that her mother screamed at her, pulled her head first out of her van, twisting her arms, and dropped her bag on the pavement and into traffic. [Child #2] told her father that her mother out of control and had tried to kill her. Although [Mother] denied that the voice mail message entered into evidence, where [Child #2] says that her mother tried to kill her and she says she does not wish to be with her mother, contains her daughter's voice or, alternatively, that it may have been coerced, [Child #2] was with her mother when she left the voice mail and her voice was identified by her father for the court (petitioner's exhibit 3). While [Mother] disputes the allegations, ACS also indicated a case against [Mother] for inadequate guardianship based on the incident (see respondent's W in evidence). Subsequently that day, [Mother] attempted to force [Child #2] to get in her car so [Mother] could take her home, but [Child #2] pushed her away and went home with her father.
[Mother] has also engaged in a pattern of behavior designed to negatively impact the children's relationship with their father and with one another. The  court order specifically directs that "neither party shall discuss the litigation or court proceedings with the children nor disparage the other parent in the presence of the children." Upon learning that the court would be conducting in-camera interviews with the children, [Mother] immediately called [Child #1] after the court appearance and addressed each and every allegation in the petition. She instructed [Child #1] what to say in response to the allegations in detail, how she should describe her mother, the relationship they have, and what she should tell the court she wishes going forward. Notably, [Mother] also instructs [Child #1] to demean her sister [Child #2] by alleging that [Child #2] is the one who behaves inappropriately and has "tantrums," "overdramatizes things," and has hit her (petitioner's exhibit 11). Although the court stressed to the parties that there were not to discuss the proceedings with the children and were not to speak to the children about the in-camera proceedings once they were completed, [Mother] proceeded to do so the first opportunity she had. The court heard an audio recording made on April 27, 2013, the day after the in-camera, in which [Mother] questions [Child #1] about the voice mail she left her daughter prior to the in-camera. [Mother] questions [Child #1] about whether she consented to her father copying her messages and tells [Child #1] that it is a criminal matter. Sadly, it is [Child #1], taking on the role of an adult, who informs her mother that "you don't involve children in that." As [Mother] continues to question her, [Child #1] is then heard saying to her mother in a very agitated tone: "I am not a victim, I am not a victim, I am not a victim. I am going inside" (petitioner's exhibit 13A). In a second recording, [Child #1] says to her mother: "All you can say about dad is lies, lies, lies." In this recording [Child #1] also sounds very agitated and upset. She continues to tell her mother: "You're just making it up to be with us. Then why do you lie? Maybe get some real reasoning" (petitioner's exhibit 13B). It is clear from[Child #1]'s statements that her mother talks about the court proceedings, speaks negatively about her father and that she wants her mother to stop. It is also clear from the upset, agitated, and, at times, angry way [Child #1] is speaking in the recordings that her mother's behavior is impacting her negatively. Moreover, although [Child #1] has not, to this court's knowledge, been verbally or physically assailed by her mother in the same manner as [Child #2], [Child #1] has witnesses her mother's violent and inappropriate actions toward her sister. The court also found [Mother]'s statement that [Child #2] was "distraught" on October 14, 2012, the day that [Mother] left [Child #1] at the soccer field, to be very telling. [Mother] stated that "[Child #2] was distraught. [Child #2], you know, likes to be with her sister. And she likes to know that her sister is safe." (tr 4/19/13 at 58-59, line 24 et seq.). [Child #2]'s reaction, as described by her mother, tells the court that [Child #2] has safety concerns for both herself and her sister.
[Mother] also made unfounded allegations of sexual abuse against [Father] on several occasions. [Mother] filed allegations with the Administration for Children's Services in November 2012. As a result of those allegations, her daughter [Child #1] was subjected to a vaginal examination. During the trial, [Mother] made several unbelievable allegations: that she did not believe that the children would be subjected to medical examinations despite the allegations she made, and even denying that she made allegations of sex abuse at all. At one point, [Mother] blamed [Father] for bringing [Child #1] to the doctor for the exam, claiming that he did so of his own accord despite the ACS investigation. [Mother] also claimed that the wrong child was evaluated by ACS. [Mother] raised her allegations in the Supreme Court on November 7, 2012 and November 8, 2012 but was unable to provide any specific information to the court. She directly told the court that she had take the children to the doctor who indicated that the children were "ok." [Mother], however, persisted in raising the allegations again in additional court documents submitted on November 13, 2012, November 15, 2012 and on January 18, 2013. [Mother] conceded that the investigation by ACS was deemed unfounded and closed but, most incredibly, still maintained that the allegations could still be true or that there could be the potential for them to be true. Although [Mother] offered [Witness #1] as a witness ostensibly to justify the allegations she made to ACS, [Witness #1] testified that he did not make any recommendations to [Mother], he did not feel, as a mandated reporter, that it was necessary to make a report of abuse against [Father] and he conceded that he expressed concerns about [Child #2] and not [Child #1] during his contacts with the children. [Witness #1] in fact testified that he would be surprised to learn that [Mother] made allegations of sex abuse concerning the child [Child #1]. He also conceded that [Mother] could have been the one treating [Child #2] improperly.
[Mother]'s behavior in the courtroom was not only inappropriate as previously noted but simply peculiar at times raising additional concerns for the court about her mental health. On one occasion, [Mother] stated that the attorney for the father, who was simply conducting a cross examination of her, was making threatening gestures toward her. On another occasion, [Mother] began spontaneously laughing during her testimony after accusing the attorney for the children of making fun of her attorney (tr 4/19/13 at 49). On another occasion, in the middle of her testimony while sitting in the open court room, [Mother] she stated that she wanted to file a police report because she believed her safety was threatened by the court and by others in the room, (tr 4/29/13 at 15). [Mother] began whispering to her lawyer while testifying and when admonished by the court to stop, she responded by saying "But I feel them mocking me. They are mocking me." (tr 4/25/13 at 31, lines 5-6). As previously noted, [Mother] broke her glasses while testifying and subsequently threw them across the room. [Mother] also made claims that the court officer in the part was shouting at her and disparaging her when the officer merely instructed her to be seated and remain quiet (tr 4/15/13 at 39, lines 23-24). On April 19, 2013 when the parties and counsel were informed that the case were being transferred to a different courtroom, [Mother] immediately exited the courthouse and had to be directed to return. *13 When the matter was called into the courtroom, [Mother]'s explanation for leaving the building was that "I was being harassed by a couple of people. I felt my safety was in jeopardy at that time!" (tr 4/19/13 at 3, lines 23-24). Both [Witness #1] and [Witness #8] testified that they observed normal parent child interactions between [Mother] and the children. Both individuals testified, however, that the duration of their contacts with [Mother] and the children were limited. The testimony of these witnesses leaves the court to believe that either [Mother] only has the ability to control her behavior for limited periods of time or that she can control her behavior and chooses to do so only under certain circumstances.
At the completion of the trial, the attorney for the father requested suspension of visitation while the attorney for the children requested therapeutic supervised visitation for [Child #2] and a maintenance of the parenting time schedule for [Child #1]. In making its recommendations, the court has considered the positions of counsel and the experience and feelings of the children. In any custody or visitation matter, however, it is the court's responsibility to determine what is in the children's best interests. In making its recommendations, the court recognizes that there are some positive aspects to the relationship the children share with their mother. [Mother]'s negative and violent behavior, however, is escalating as is her inability, or unwillingness, to observe the limitations established by the court orders to the detriment of her children. At this juncture, continued unsupervised contact would be detrimental to the children based on [Mother]'s continuing and escalating, unpredictable, erratic and even violent behavior toward and in the presence of her children. [Mother] has shown that she is completely oblivious to her children's needs and has failed to take any responsibility for her actions. She consistently blames [Father] for her current parenting time schedule and has no insight into her own behavior. The court has serious concerns about [Mother]'s ability to act appropriately in the presence of the children as well as the children's safety while in her care. In only a one month period after [Mother]'s parenting time was substantially reduced, her conduct has deteriorated leading to the filing of this instant application.
Completion of psychological evaluation of [Mother]
In the psychological evaluation completed by ACS, it concludes that "collateral sources should be reviewed and interviewed to obtain a more thorough investigation into her functioning and any psychopathology." Although an evaluation was completed of [Mother], the evaluation indicates that further assessment is necessary. The evaluation also indicates that an Axis III diagnosis could not be assessed. Based on the report submitted, the history of the proceedings, [Mother]'s behavior during the proceedings, the testimony heard and the evidence submitted, I am recommending a full psychiatric assessment of [Mother]. [Mother] should also be directed to comply with any recommendations made by the psychiatrist including therapy and medication as a component to a parenting plan.
Although [Father] requested the suspension of visitation in his pleading, I am recommending that [Mother]'s parenting time be modified to allow for therapeutic supervised visitation with both children. *14 Such visitation ensures that the children will be able to maintain a relationship with their mother but in a safe environment under stable conditions. [Mother]'s visitation should be supervised by a therapeutic social worker and said social worker should be directed to provide reports to the court every 90 days. Counsel should have access to the reports upon request. Counsel may review the reports with the parties but shall not provide copies of the reports to the parties. Visitation should be community based and at dates and times as arranged with the social worker and the parties. [Mother], however, should be entitled to a minimum of six hours of visitation bi-weekly and should be permitted additional time if scheduling and finances allow. Although [Mother] has private counsel in this proceedings, she should be given the opportunity to submit financial documentation to the court to determine her ability to paid for the visitation. *15 See Cervera v. Bressler, 50 AD3d 837 (3d Dept 2008). If this recommendation is confirmed, [Mother] should be given two weeks from the date of the confirmation to submit the following documentation: the last four year's tax returns, a notarized financial disclosure form, copies of all bank statements and brokerage statements. [Mother] should also submit a notarized letter detailing her current means of support as well as an accounting of the moneys received from the sale of a home to [Witness #1] in 2006. *16 The visitation can be supervised by Comprehensive Family Services or by a social worker who is approved by the Appellate Division, Second Department. If this recommendation is accepted, all counsel, after conferring with their clients, may either consent to one supervisor and submit the name to the court jointly for the issuance of an order, or each attorney should submit the name of a supervising agency or social worker to the court for the court's selection and issuance of the order. These submissions should occur within two weeks of confirmation of this report.
If the recommendation for therapeutic supervised visitation is accepted, other portions of the  should also be continued. Notwithstanding any order of protection that might be issued, [Mother] should be directed only to attend the children's activities during her parenting time. [Mother] shall not have any contact with the children's babysitters or other third party providers providing services to the children. [Mother] shall not attempt to contact or otherwise interact with the children's school faculty, staff or other support members. [Mother] shall not attend mass at  Church in , New York on Sundays so long as the children attend that Church. Neither parent shall discuss the court proceedings or the litigation with the children nor disparage the other parent in the presence of or to the children.
Order of Protection
Based on the record before the court, I am recommending that an order of protection be issued against [Mother] on behalf of the children and [Father] in order to protect the safety and welfare of the children. Having conducted a lengthy hearing in these proceedings, it is clear that such an order is necessary to protect the safety and welfare of the children. [Mother] has continually violated court orders by appearing at the children's school as well as appearing at the children's sporting events when it was [Father]'s parenting time. When she appeared at the children's sporting events on multiple occasions in violation of the court order, she intentionally sat right next to [Father] and [Child #2], and followed [Father] and [Child #2] when [Child #2] directed her father to move. She followed [Father] and the children while they were driving in the car bumper to bumper placing their safety at risk. She has driven by [Father] as well as [Child #2] at the children's events when it was not her parenting time. She blocked the children and [Father]'s egress from a parking spot and a soccer field with her car. She has also repeatedly made false sex abuse allegations against [Father] thereby subjecting [Child #1] to a vaginal examination at the age of 12. On October 28, 2012, she verbally and physically attacked her child [Child #2] causing [Child #2] to tell her father that [Mother] was "out of control." [Mother]'s behavior has been erratic and violent at times. Under Section 656 of the Family Court Act, I am recommending that an order of protection be issued for [Father] and the children directing that [Mother] not assault, menace, harass them or engage in any unlawful conduct and that she be directed to stay away from the children and their school subject to court ordered visitation. The order should also direct that [Mother] not use any corporal punishment on the children or discuss the litigation with the children. The order of protection should remain in effect until [Child #2] reaches the age of 18. *17
July 2, 2013
Court Attorney Referee
*1 [Father] identified three witnesses and [Mother] identified five to six witnesses.
*2 On April 29, 2013, counsel for [Mother] sought to introduce a court report prepared by [Witness #2] which contained attachments from collateral sources over the objection of counsel for the father and counsel for the children. After a lengthy discussion between counsel and the court, all counsel consented to the two page report prepared by [Witness #2] dated , 2013 being entered into evidence as respondent's exhibit V. On May 29, 2013, [Witness #2]'s attorney was present in court and indicated that [Witness #2] was unavailable due to unexpected family medical leave. [Witness #3], Witness #2]'s supervisor was present. The attorney for [Mother] indicated that he was prepared to take [Witness #3]'s testimony. Counsel also indicated that he was seeking again to enter into evidence the attachments to [Witness #2]'s report from collateral resources and that his only need to inquire of [Witness #2] was for that purpose. He indicated that if there were a consent to the attachments being entered into evidence, he would no longer need to inquire of [Witness #2]. Counsel for the father and the attorney for the children objected to the court delaying the proceedings for [Witness #2]'s appearance stating that the collateral documents could not be authenticated through the ACS worker and indicating that they had no cross examination based on the testimony already elicited. The court denied an adjournment and marked the testimony of [Witness #2] as completed. The court stated that it would not grant a continuance only for counsel to seek to authenticate hearsay documents prepared by collateral resources. The portion of the report completed by the caseworker had already been admitted into evidence on consent. The report prepared by [Witness #2] did not make recommendations nor was [Witness #2] called an expert witness. Although [Witness #2] was not an expert witness, the court drew an analogy between a court ordered investigation and a forensic report where it has been held to be error to allow the admissibility of a forensic report that contains hearsay collateral information over the objection of a party.
*3 The attorney for [Mother] presented subpoenas to the court for its signature on Friday afternoon, May 31, 2013. On June 3, 2013, the attorney indicated that the subpoena for [Witness #5] was served the morning of June 3, 2013 but he was not working and that he could not confirm service of the subpoena on [Witness #4].
*4 On June 5, 2013, incomplete affidavits of service of the subpoenas were provided to the court. For example, the portions of the subpoenas containing the name of the person who effectuated service and where service was effectuated were blank. The portions of the subpoenas that were actually completed appeared to the court to have been completed by [Mother].
*5 The court respectfully indicated to counsel for [Mother] that such an application should have been made in writing prior to the commencement of the hearing.
*6 A written report dated April 19, 2013 was submitted to your Honor, the application was granted and an order was issued on April 19,2013 temporarily suspending all contact between [Mother] and the children pending the completion of the in-cameras. This Referee scheduled the in-cameras for April 26, 2013 noting that [Mother] was not scheduled to visit with the children the weekend of April 20th and April 21st. Effectively, the order prevented telephone contact between [Mother] and the children which is not specifically provided for in the current order of visitation.
*7 For example, during a discussion about discovery, [Mother] interrupted the attorney for the children and shouted "Mind your own business and recuse yourself." (tr 4/16/13 at 21, lines 11-12). During the testimony on April 29, 2013, [Mother] told the attorney for the father when being cross examined that he was "rambling on a tangent" and "...it's like you're babbling." (tr 4/29/13 at 107, line 20; at 108, lines 7-8).
*8 On the morning of April 19, 2013, counsel and the parties were advised by Lieutenant  of the Uniformed Court Officers that the proceedings would be heard in a different courtroom. Counsel and the parties were instructed to proceed immediately to part 40 in the family court. According to Lieutenant , [Mother] thereafter left the building and had to be instructed to return for the proceedings.
*9 On April 15, 2013, [Mother] continually interrupted the court proceedings by calling out and interjecting when the court was addressing her counsel's motion to dismiss the petition. After the court officer instructed her as follows: "Ma'am, have a seat and be quiet." (tr 4/15/13 at 39, lines 23-24), [Mother] claimed that she wanted to make a complaint against the officer for the way she has been treated alleging that she is "being shouted at and disparaged, and he has no right to treat me that way." (tr 4/15/13 at 40, lines 10-12).
*10 A motion to vacate the default judgment filed by [Mother] in the prior proceedings before the court was denied on December 11, 2012.
*11 The in-camera interviews with the children occurred on Friday, April 26, 2013.
*12 Both a , 2012 court order and the , 2012 court order prohibited [Mother] from being present at the children's schools for such an event.
*13 As previously noted, this information was provided to the court by Lieutenant .
*14 In his Order to Show Cause, [Father] requests that the court grant any other relief it deems just and proper. Moreover, the court can conform the pleadings to the proof established at the hearing.
*15 Although the court can consider issuing a 722-c order if [Mother]'s financial circumstances are appropriate for one, that order will only allow [Mother] to have a limited number of hours of supervised visitation with the children.
*16 In the prior report submitted to the court in  2012, the court detailed [Mother]'s failure when directed to provide required financial documentation to the court.
*17 The Orders of Protection are subject to modification in future proceedings provided that there is a change of circumstances.