Background

The only petition before the Court is the Father's petition seeking joint custody of his son. The petition was signed on or about August 20, 2021 but subsequently only filed in November 2021 due to the court closures as a result of the COVID pandemic. Throughout the entire pendency of this matter, the mother never filed her own petition for custody. There were unsuccessful attempts at settlement before another Judge and then the matter was transferred to this Court for trial. In July of 2022, the previous Judge had begun ordering parenting access time for the parents by alternating weeks. By the time the trial commenced, in May of 2023, the parents were exchanging the child every Sunday: subsequently, the parents agreed to change the exchange day to Friday when each parent would pick up the child from school. The only witnesses at the trial were the two parents; in addition, the Court conducted a Lincoln hearing [*2]with the child.^[FN1]

Testimonial Evidence

The Father and Mother, who never married, lived together from 2012 until 2021. Their son was born in July 2012 when the parents were already living together. During that time, the Father, who had a daughter with a different woman, had parenting time with his daughter on weekends. At the time of the Father's testimony, he stated that his daughter was living with him full-time. At the time of the hearing, the Father and Mother lived a five or six-minute walk away from each other.

When the parents were living together, both of them were working. After the child was born, they agreed upon a neighborhood day care facility for the child. When the child was three, they agreed upon a program for three-year-old children at a church school at X's and the child stayed at the same school for pre-kindergarten as well. When the child was ready for Kindergarten, the parents chose the Y School. According to the Father's testimony, he and the Mother researched schools for Kindergarten and they did not have any disagreements about where to place the child. The Y School continued to fifth grade which was the grade the child was in when the hearing commenced.

In 2021, during the pandemic, the parents separated. At the time, the Mother was working remotely and the child, who was eight years old and in fourth grade, was learning remotely as well. The Mother testified that she did not really communicate with the Father about the child's learning at that time and said that the Father did not reach out to her.

The Mother testified that after the separation, the original agreement was for the child to go back and forth between the parents as the child desired. The Mother stated that in the summer of 2021, the Father picked the child up accompanied by another woman. The Mother told the Father that she did not want their son to be introduced to another romantic partner for a year after their break-up. She testified that she had emailed the Father that he had to respect boundaries but he would not agree. As a result, she blocked the Father from communicating with her except through email. She also removed the Father from the blue card at school and camp so that she would be the only one picking up or dropping off the child at school or camp.

The texts between the Mother and the Father on this occasion were entered into evidence. In one of the Mother's texts, she writes: "I've explained to [the child] that you clearly have an issue with boundaries and healthy relationships and took the opportunity to teach him the importance of having them in our lives. I also explained to him the necessary thing to do when [people] in our lives can't respect our boundaries, is to withdraw ourselves from emotionally toxic situations." She also wrote, "Since you can't respect the boundaries I've set for [the child] regarding meeting new "friends", he won't be staying w/you until ur [sic] able to meet the parameters I've set for the both of us. Until I can trust that you can respect them you can do summer camp drop offs only. I'll be picking him up and he won't be spending any nights." [*3](Petitioner's Exhibit 1.)

The Father testified that when he first filed his petition, he had not had contact with the child for eight or nine months. He testified that the Mother had blocked him during that entire time. The Mother disputed this in her testimony, stating that although she did block the Father from texting, he was able to send her emails. She conceded that the Father did not see the child between September and December (except for once in October when the child spent the weekend with the paternal aunt) but said that this was because the Father did not come to her house to see the child and she did not think it was her responsibility to arrange for him to see the child.

The testimony demonstrated that after their separation and when both parents had equal parenting time, both parents were taking it upon themselves to make independent decisions in all aspects of the child's life without consulting with the other parent. For example, the Father testified that when they were living together, both parents recognized that the child had speech issues. During the school year when the Father was first testifying, he stated that he had noticed that the child's speech was getting worse and that he had asked the school if there were services available for him. He said that he and the Mother had some communication and that he provided the Mother with a list of speech therapists, but that they could not come to an agreement. Subsequently, the Father received a bill from an ENT doctor. He said that the Mother did not communicate with him about that appointment. The Father testified that when he contacted the school, he was told that the Mother had asked for an evaluation. (The evaluation concluded that the child's speech did not affect his ability to learn or communicate.)

The parents were apparently not communicating about the child's medical or dental needs either. The Father testified that he schedules dentist appointments for the child and said that he sent an email to the Mother to inform her of the last scheduled dentist appointment. He did not say whether he had previously informed her of prior dental appointments. The Mother testified that in the past, she had been the one to make doctor and dentist appointments. She said that a year and a half before her testimony, she had been looking for a different dentist, but the Father brought the child to the dentist who had been providing dental care; the Mother was only made aware of that because the dentist's office called her to advise of the appointments. The Mother stated that she is the one who primarily takes the child to doctor visits and that she advises the Father of what happens at those visits. The Father, however, testified that the only information he receives about the child's medical or dental appointments is if the appointment falls during his week of parenting time.

With respect to the child's religious upbringing, the parents were not in agreement. Although the Mother did not engage in religious practice when she and the Father were together, for the past two years, she and the child have been attending Z. Church. The child attends youth nights and goes to church with his Mother when she has parenting time. The Mother testified that she did not have a conversation with the Father about taking the child to church; she said that she did not feel it was necessary to discuss the child's religion with the Father since the Father does not practice a formalized religion and never expressed any interest in religion. The Mother was baptized in this church and she wanted to have the child baptized. She did not do so because a court order prohibited it.^[FN2]

On cross-examination, the Mother was asked about an email she sent in which she said that the Father was trying to get the child possessed in order to kill her. That email was entered into evidence as Petitioner's Exhibit 3. That email is particularly repulsive; the Mother writes: "The lengths you took LOL. I know everything. See the thing is when ur connected to Spirit, ur never in the dark. Trying to have [the child] possessed to kill me. Ur disgusting. Truly disgusting. Jokes on you, looking stupid w/ your HOMO ass." The Mother also sent that same message as a text, entered into evidence as Petitioner's Exhibit 2. The Mother was also asked on cross-examination about a text she sent to the Father accusing him of black magic. (Petitioner's Exhibit #4.) The Mother explained that there had been paranormal activity in her home which was attributed to the Father. She said that after she had her home blessed, the activity ceased.

In addition to their failure to communicate about doctors and their disagreement about religion, the parents also demonstrated a failure to communicate even about issues relating to the child's education. When the Father first testified, he stated that he arranged for the child to be in an afterschool program but that he had not spoken to the Mother about it when he did so. When he testified later, after the child was in a new school, he testified that the Mother had now placed the child in an afterschool program connected to that school.

Between the commencement of the hearing and its completion, the child had to be enrolled in middle school. The Father testified that he understood that he and the Mother were to work together with the school counselor to come to an agreement about the middle school for the child. He testified that he and the Mother had a video conference with the school counselor in which they discussed school. The Mother selected three schools which were in Manhattan and the Father selected three schools in the Bronx. He said that when he requested access to the school account, the Mother told him she would provide it, but he testified that he did not obtain access until after the deadline for applications had passed. The Mother claimed her testimony that the Father failed to submit any applications.

When the Father did obtain access to the school account, he saw that the top choices listed were the schools that the Mother wanted; only one of his schools was listed and it was ranked third. The Father testified that he had understood that the school counselor would submit the applications based on each parent's preferences and he asked the Mother why that agreement with the school counselor was not followed. He testified that the Mother answered that she had submitted applications and that a school had been selected and the child would be going to that school. The Father testified that his understanding was that because the parents could not agree on a school, the school counselor would submit the applications, taking both parents' choices into consideration.

With respect to the middle school application process, the Mother testified that she and the school guidance counselor had a couple of Zoom meetings before November 2021 and that she communicated with the counselor by emails which did not include the Father. She said that the only email to include the Father was one in which she sent the orientation link for MS 224, the school that she preferred. The Mother testified that there was a third Zoom meeting set up with the guidance counsel which the Father did not attend, but she did. She testified that they [*4]were supposed to finalize their top schools at that meeting. The Mother said that she submitted the applications for middle school and that the Father did not submit any applications.

According to the Mother, she was the parent most present for the child at school. She said that when the child began fifth grade, the school held two orientation sessions for parents; she said that she attended both but the Father only attended one. The Mother also stated that when the child's school held special events, such as a winter show, a writing celebration, and a chess tournament, she attended and she said she did not see the Father present. She also asserted that the child missed school events when the Father had his parenting time.

By the time the Father testified on cross-examination, the child was enrolled in the school the Mother had chosen and had started at that school and received his grades for the first quarter. The Father testified that the child likes the school and was on the honor roll. He said that the child was strong in all subjects but that he had challenges with Math. The Father testified that he had attended a parent-teacher conference at the school.

The parents' refusals to communicate with each other continued after the child began middle school. The child told the Father about bullying he was experiencing in school. They spoke about it several times, the first time being around Thanksgiving of 2023. The child subsequently told the Father that a boy named J. had broken his iPad. The Father sent an email sometime in December through the school portal informing the school that the child's iPad had been broken by another student. The Father testified that no one responded to his email but that the child was given a new iPad. The Father did not email the Mother about the problems that their child was having with J.

On the day of the Father's continued testimony on January 16, 2024, the Father testified that he and the Mother had been on a phone call earlier that day with the Dean of their child's school. The Father testified that he received an email from the Mother on Wednesday of the week before that an incident had taken place in school and that both boys had received detention. When the Father picked up the child from school on the Friday following his receipt of the email from the mother, he asked to speak with the Dean. The Father also emailed the Mother that he planned to contact the school about the incident. She responded that she wanted to be included on all emails. The Father then sent an email to the Dean through the school portal which the Mother had access to.

During the Mother's testimony, she stated that she sent the Father an email on January 11, 2024, that there was an incident between their son and Jayden and that both boys had received detention. She explained that since the Father was going to pick up the child on Friday, she was concerned that his pick-up might be affected by the detention. She said that after the incident, she had a conversation with the Dean who then called her a few days later to say that the Father had reached out to him. The Mother said that she only learned about the email the Father sent about the broken iPad in January when she spoke with the Dean.

The Dean called the Father and told him that the Mother wanted to be part of the meeting that was being set up; the Father agreed and provided his availability. The Father testified that after the phone conversation with the Dean, which included the Mother, he was satisfied with the way the school was handling the issue.

Both parents acknowledged that the child needed extra support in Math. After the first quarter in school, the child had received a C in math. The Father stated that the Mother signed up the child for an on-line Math support classes and the Father made sure that the child attended those when he was with him. The Father said he also checks in with the child's afterschool [*5]program which provides homework support.

The Mother testified about the child's extracurricular activities. In fifth grade, the child took chess lessons in the evening for two to three months. The Mother did not discuss this with the Father. She also enrolled the child in drumming classing twice a week. This was a Christmas present to the child and she did not discuss it with the Father as the child only has lessons during the Mother's parenting time. The child also takes Spanish lessons on-line on Wednesdays and Thursday evenings when he is with the Mother. She testified that she thinks she sent an email about the Spanish lessons to the Father, but she could not actually recall whether she did so. She testified that the child plays intramural basketball during her parenting time. The games are every Sunday and the Mother stated she sent an email to the Father informing him that the child wanted to play basketball during the Father's parenting time as well. On cross-examination, the Mother conceded that she thought the Father took the child to the basketball games a few times. She said that the child was doing his Spanish lessons every week but now he is not doing it when in the father's care. She knows this because the child makes up the lessons when he is with her.

Although the Mother did not file her own petition, she testified that she did not want to continue alternating weeks with the Father; she wanted the child to live primarily with her. She felt that the child would benefit being with her for most of the school week and that it would be sufficient for the child to spend long weekends with the Father. She asserted that there was a lack of communication from the Father when the child was in his care and that she was not being included in important aspects of the child's life such as school and doctor visits.

Petitioner's Exhibit 1 — text messages between parents from 7/9/21 to 8/20/21

Petitioner's Exhibit 2 — email from Mother to Father on 5/29 and 5/30/22

Petitioner's Exhibit 3 — email exchanges between the parents from 4/1/22 to 5/29/22

Petitioner's Exhibit 4 — email from Mother to Father on 6/8/22

Petitioner's Exhibit 5 — email exchanges between parents on 4/14/22 and from 3/13/22 to 3/24/22

Petitioner's Exhibit 6 — Temporary order of visitation issued August 18, 2022

The Mother did not submit any documentary evidence for the Court's review.

The Court has described the testimony in such detail because the details lead to two obvious conclusions: 1) each parent is completely capable of making reasonable and appropriate decisions in the best interests of the child and 2) both parents have fallen into a routine of acting alone and not consulting with the other parent. The Court is not impressed by the immaturity of the parents in their unwillingness to work together to handle the important decision in this child's life. The Court is impressed, however, by the evidence that both parents exhibit thoughtfulness in what they believe is best for their child. Moreover, both parents appear to have been fully compliant with court orders during the pendency of the case, thus demonstrating that they are capable of putting aside their own desires when necessary.

The Court finds that the child would benefit from having a balanced approach between [*6]both his parents' desires. Before their separation, the parents were able to make decisions together. Subsequent to their separation, they were not required to come together to make decisions and developed a habit of making decisions independently of the other parent. The Court finds it is in this child's best interests to have the input of both his parents to give him a balanced upbringing and exposure to both of their viewpoints. See Munroe v. Smith, 189 AD3d 1595, 1598 (2d Dept. 2020) ("The best interests of the child lie in being nurtured and guided by both parents").

In general, the Court finds that both parents were essentially credible in their testimony. Indeed, as described above, the testimony of each was fairly consistent with that of the other. When there were disagreements, the Court on the whole, found the testimony of the Father to be more credible than that of the Mother. The Father consistently testified in a straightforward manner. In her testimony, the Mother almost always used the passive voice — in her telling, actions "were taken" in the child's best interests. She rarely, unless asked to clarify, stated that she had taken the action.

Moreover, the Court was not impressed with the Mother's continuing assertions during her testimony that every decision she makes is in the best interests of the child. The Mother's testimony and emails and texts reveal that her anger at the Father is paramount, despite her constant reiteration that her actions are always in the child's best interests. The Mother apparently believes that whatever she feels or wants must be in the child's best interests. Her anger at the Father for violating "boundaries" by introducing the child to his romantic partner before the Mother thought appropriate not only resulted in her blocking the Father from communicating with her and the child, but also apparently in her making inappropriate statements to the child about the Father. According to her text sent to the Father (Petitioner's 1), the Mother "explained to [the child] that you [the Father] clearly have an issue with boundaries and healthy relationships and took the opportunity to teach him the importance of having them in our lives. I also explained to him the necessary thing to do when [people] in our lives can't respect our boundaries, is to withdraw ourselves from emotionally toxic situations." The only toxicity the Court sees here is in the Mother's reaction to the situation. It may not have been the wisest decision of the Father to introduce the child to his romantic partner only months after the parents separated, but the Court does not believe that a nine-year-old child would feel or even recognize that his "boundaries" had been violated or that it was in his best interests to expel his Father from his life.

The Court also notes that it is only the Mother who berates the Father in these texts and emails and even accuses him of using black magic against her. The Father's communication, in contrast, is consistently respectful in his texts and emails and focuses on the issues that need to be dealt with, rather than attacking the Mother.

It is significant that the child has been living happily with both parents, spending one week with one and the next week with the other. The Mother has not convinced the Court that there is anything wrong with the Father's decision-making ability with respect to the child. In contrast to the Mother's position, made clear in her testimony that she assumed there was nothing the Father could valuably contribute in each area of child's upbringing, the evidence shows that both parents bring important strengths to aspects of the child's life and that it is in the child's best interests for both parents to be equally involved in making decisions for the child.

Based on the testimony and documents submitted, the Court has concluded that both parents love their child dearly and that if they were required to consult with each other and [*7]discuss their respective positions, they would be able to come to an agreement in the child's best interests. See Anonymous 2011-1 v. Anonymous 2011-2, 136 AD3d 946, 949 (2d Dept. 2016) (affirming order of joint custody where, despite their antagonism, parties were able to agree on most decisions for the child and where granting sole decision-making to either parent would result in that parent excluding the other from meaningful participation in the child's life). For example, it appears that both parents were able to deal constructively with the school when their child had an incident there resulting in detention. Both also were aware of the child's need for extra support in math and when the Mother obtained an on-line course for him, the Father ensured that the child participated.

Up until now, both parents have taken it upon themselves to act on behalf of the child without consulting the other parent. The Court is therefore going to require that the parents register with Our Family Wizard and that they communicate with each other about all important aspects of the child's life — including school activities and extra-curricular activities. Neither parent is to make unilateral decisions without consulting and without the consent of the other.

The Mother's testimony made it clear that she considered herself the sole arbiter of what was in the child's best interests. It is of significance however, that the Mother did not file a petition for custody. The only petition before the Court is the Father's petition in which he seeks joint custody. Joint legal custody is not normally assigned when parents are so antagonistic that they cannot agree. See Braiman v Braiman, 44 NY2d 584, 589-590 (1978). The Court is convinced, however, that these parents can reach reasonable decisions about their child if they are ordered to consult with each other. For the most part, the problem between the parents has been the failure to consult, rather than the failure to come to a joint decision. In addition, the child has successfully spent equal time with both parents for the past two years and is thriving in their mutual care. The Father has therefore met his burden of proof by a preponderance of the evidence and shown that an order of joint custody would be in the child's best interest. Johanys M. v. Eddy A., 115 AD3d 460, 461 (1st Dept. 2014) (reversing order of sole custody and awarding joint legal custody where parents "appear to have been in accord with respect to the child's best interests, despite their failure to communicate directly with each other"); see Munroe v. Smith, 189 AD3d 1595, 1597 (2d Dept. 2020) (reversing order of sole custody to mother and ordering joint legal custody where despite antagonism between the parties, "it is also apparent that both parties generally behave appropriately with the child. Further, there is no evidence that the parties are so hostile or antagonistic toward each other that they would be unable to put aside their differences for the good of the child"); Spampinato v. Mazza, 152 AD3d 525, 526 (2d Dept. 2017) (reversing order of sole legal custody and granting joint legal custody where "although it is evident that there is some antagonism between the parties, it is also apparent that both parties generally behave appropriately with the child and in a relatively civilized fashion toward each other. Further, there is no evidence that they are so hostile or antagonistic toward each other that they would be unable to put aside their differences for the good of the child").

The one area in which there will not be agreement is with respect to religion. Subsequent to their separation, the Mother joined a church to which she and the child now belong. Although the Father has expressed displeasure with that, there was no testimony that there had been any agreement between them initially as to any religious training of the child. For that reason, the Court holds that both parents are free to raise the child in any religion they see fit and neither parent is to interfere with the other parent's religious decisions during that parent's parenting time. Thus, the Mother can continue to bring the child to her church during her parenting time [*8]and the Father is free to expose the child to any religious thought he is comfortable with. See Trapp v. Trapp, 136 AD2d 178, 183 (1st Dept. 1988) ("We do, however, believe that a distinction should be made between matters involving religion and citizenship, which form a profound part of a child's heritage and generally do not require daily and immediate intervention by the caretaker parent, and those involving education and welfare. Absent a compelling showing to the contrary, not present here, we do not believe that the sole decisional authority as to the children's religion and citizenship ought to be reposed in either parent").

With respect to medical and educational decisions, the Court is ordering that if the parents cannot come to an agreement by themselves, they are to hire a parenting coordinator to help them reach a mutual decision. Ultimately, if the parents are still unable to reach a mutual joint agreement, the Father is granted final decision-making authority. The Father may only exercise this decision-making authority upon evidence in Our Family Wizard that there has been mutual consultation over the issues, that both parents have considered the other parent's position, that a parenting coordinator has attempted to help the parents resolve the disagreement, and that despite that, there has been no resolution.

It is therefore ORDERED:

Parents shall have joint physical custody. The child shall alternate weeks with each parent. During the school year, exchanges to take place on Friday after school. If there is no school, exchanges to take place on Friday at 5:00 p.m. During the summer break from school, the parents will continue their alternating week schedule although exchanges will take place during the summer on Sundays rather than Fridays. If the exchange does not take place at school, the parent whose week is commencing will pick the child up from the other parent's residence at 5:00 p.m.

The parents shall have joint legal custody. The parents must register and use Our Family Wizard for all communications about the child. If the parents cannot agree on decisions relating to education or medical with respect to the child, the parents are required to hire a parenting coordinator to help them reach a resolution. Only if the parents are unable to resolve the conflict through the help of the parenting coordinator, is the Father authorized to exercise final decision-making authority for medical and educational purposes. Each parent is authorized to make religious decisions for the child when the child is in their care.

The parents shall share holidays with the child as follows:

The parents shall share extended school vacations with the children as follows:

Additional Provisions:

The parent who has the child during the week of the child's birthday will have the child on the morning of his birthday until 3:00 p.m. that day. The other parent will pick the child up at 3:00 p.m. and return him by 9:00 p.m.

Parents may make changes to this parenting time schedule upon mutual agreement in writing.

Each parent may have telephonic or video contact with the child daily for no more than 15 minutes during the school week when the child is with the other parent.

Neither parent shall disparage the other parent or allow anyone else to do so in the Child's presence.

Parents are to make reasonable efforts to honor the Child's school, extracurricular, and [*10]social activities (i.e., sleepovers, birthday parties, etc.) scheduled during the parent's parenting time.

Notify Counsel and Parties.