This court is regularly called upon to settle an array of parenting disputes. Judicial restraint in piercing the domestic veil is a bedrock principle ubiquitous in domestic relations jurisprudence. The instability and disruption of the Court's intervention supports the notion that the law only invades the family when it must.

To warrant even consideration of modification of custody, the party seeking the modification must surpass two difficult legal hurdles — first, that there is a sufficient change in circumstances to warrant modification, and second, and most importantly, that such modification is in the child's best interests.

In the case at bar, this family has just endured hearings on both arduous legal hurdles to determine if a modification of custody was in this Child's best interest. Indeed, they just had their trial decided three months before this decision. Just weeks after the decision, this request for another modification of custody was made. The harm of such incessant litigation is that it destroys the Child's sense of stability, places them directly in the center of the battle, and demonstrates an utter lack of respect for our legal system and procedure. The previous proceeding has indisputably had a massive toll on this Child — doing it again is unnecessary harm this Court will not facilitate or condone.

This Court cannot as a matter of law and will not as a matter of justice subject this Child to further traumatic custody proceedings without a compelling and significant change in circumstances. Interestingly, much of the support for this requested modification is purported to be based upon a concern for the Child's mental health, yet those in support are silent as to how another custody trial would only further jeopardize the Child's mental health. Here, judicial restraint protects the Child because the law will not allow this Court to proceed on this matter as there is not the necessary change in circumstances required to continue this proceeding.

Plaintiff-Mother and Defendant-Mother share one teen-age son (the Child). The parties previously entered into a comprehensive custody and parenting time agreement. Such agreement provided for the Child to live with Defendant in Connecticut while Plaintiff continued her primary residence in New York City. The parties shared joint legal custody.

Then, Plaintiff made an application to modify this arrangement to award her residential custody to have the Child reside with her in New York City. The years-long and toxic litigation that followed was presided over by the now-retired Justice Douglas Hoffman. Justice Hoffman oversaw this family through not one but two evidentiary hearings. First, on if there was a change of circumstances. Then, another hearing was held to determine if a modification (and if so, to what degree) was in the best interests of the Child.

Throughout the prior proceeding, the Child was represented by counsel, and his position on the issues of the case oscillated back in forth. Generously, Justice Hoffman held numerous in-camera interviews with the Child and his attorney to best understand the maturing Child's best interests. As stated by the Child's attorney, the most recent in-camera was "quite close to when the final decision was rendered." After collecting evidence over two hearings and an unorthodox number of interviews with the Child, Justice Hoffman reached a well-reasoned and sound decision that maintained much of the original custody arrangement with an expansion of [*2]Plaintiff's parenting time.

Rather than accept the Child's best interests as determined by the Court, Plaintiff and the Child's attorney now engage in nothing short of a coordinated attack on what Plaintiff's counsel affirmed not once but twice to be an "abomination" of a judicial decision. No appeal was taken from this purported "abomination," which was no abuse of discretion, according to the Attorney for the Child.

Having failed to take a timely appeal, the Attorney for the Child and Plaintiff together argue that this Court must again subject this Child to more custody litigation and further interactions with this Court to give Plaintiff what she failed to attain in the trial decided just weeks before this action was filed.

The basis for the Child's application is not only hollow and filled with unsubstantiated and vague allegations, but a palpable disregard for the well-established principle that the Child should be as removed from the litigation of custody as possible. If there is any doubt, this disregard was manifest in the very moving papers which included an affidavit signed by the Child which placed him directly against one of his mothers. In a similar vein, the eagerness to subject this Child to another Lincoln hearing is alarming to this Court. Likewise, the Child's persistent efforts to gain an audience with this Court demonstrates a fundamental immaturity and lack of appreciation for the severity and psychological impact of custody litigation.

Not only was there a disregard for the importance of keeping a Child out of custody proceedings, but also for the rule of law. While this application was pending Justice Hoffman's decision was not followed until this Court was forced to issue a Writ of Habeas Corpus. Specifically, Plaintiff and the Child refused to comply with Justice Hoffman's Order and, through self-help, deprived Defendant of her rights as residential custodian.

Mere weeks after Justice Hoffman issued his Decision and Order, the Attorney for the Child moved by order to show cause seeking a modification of custody to award Plaintiff residential custody. Within his order to show cause, the Attorney for the Child also sought the interim relief of an "immediate" in-camera interview with the Child.

The Child, through an anemic affidavit submitted by his counsel, alleges custody should be changed because, during his summer parenting time with Plaintiff, he came to realize that Defendant "engaged in a long term and continuous pattern of manipulation and emotional pressure." He further explains that he was raised "in an environment where my mothers did not and cannot co-parent." The Child asserts further that he had disclosed this to his attorney, but directed that his attorney not share this information with the Court.

It is undisputed that the Attorney for the Child in the prior trial and proceedings never decided to substitute judgment. He maintained a relatively "neutral" stance as directed by his client.

It is the Child's contention now that that "neutral" stance was not reality and that he indeed was being manipulated by Defendant. He further asserts, "I can no longer take the emotional and psychological pressure and manipulation [. . .] I do not feel safe returning to [Defendant] after making this disclosure and request."

Plaintiff argues in sum that this Court must listen to the Child and that "the child is being abused, the Child is identifying [Defendant] as his abuser." (Transcript of September 5, 2024, Proceedings at 26:7-10; see also, Plaintiff's aff. ¶¶ 3-5, 7 [NYSCEF Doc. No. 191]; Plaintiff's affm. ¶¶ 5-6, 8, 10 [NYSCEF Doc. No. 192]). She states further — and in complete disregard for [*3]the authority of this Court — "I cannot in good conscience return [the Child] to [his other Mother] after reading [the Child's] affidavit and his attorney's affirmation."^[FN1]

The Court initially heard this matter and issued a Writ directing the return of the Child to Defendant. Critically, a number of concerns addressed in the Defendant's opposition, the Plaintiff's submission in support and in the Attorney for the Child's reply relate to events subsequent to the filing of this motion and the related Writ, and thus cannot form the basis for a purported change in circumstances.

In any event, following the issuance of the Writ, the Child was subsequently returned; notably and further demonstrative of a general disregard for the authority of this Court, this return was later than the time directed by the Writ. That same night, the Child was returned to his home by police after leaving the Defendant's home. Plaintiff asserts the Child "ran away" that night.

Thereafter, it is undisputed the Child further struggled with adjusting at home. This included the Child electing to go to the hospital voluntarily and being discharged upon being examined. Defendant explains her experience staying with the Child at the hospital as a moment where the two reached a point of connection after such a duration of discord Plaintiff never states she was at the hospital, and it appears based on Defendant's affidavit and the Attorney for the Child's affirmation in reply not indicating Plaintiff was present that she was not present for the hospital stay.

This Court further notes it has spent hours entertaining arguments in this matter, which touched on everything alleged in these papers. The issue of the Child being an alleged victim of emotional abuse was at the forefront of arguments. Indeed, it was explicitly discussed with vigor. Likewise, the adjustment after the Writ was satisfied and the Child's frustration with the enforcement of the Custody Order were prominent throughout the arguments. Furthermore, under the Writ proceeding that was commenced during the pendency of this motion sequence, the Court again heard substantial arguments on these issues.

Plaintiff and the AFC could have properly taken issue with and challenged Justice Hoffman's Decision by pursuing an appeal, or even a motion for reargument. Yet, they chose not to proceed with either option.

Instead, they chose to collaterally attack the Decision via this motion when there was not even enough time to let the decision sink in for the parties, let alone for there have been a change in circumstances from the just completed proceeding before Judge Hoffman. Public policy and procedural rules and safeguards mandate denial of this type of attack.

Simply, permitting such a collateral attack on a custody order with such weak allegations and so soon after the issuance of the custody order would threaten the finality of orders of custody, contravene the authority of the Appellate Division, and threaten the rights of a litigant to feel assured they will not be subject to appellate-like proceedings after the time to take an appeal has passed.

The Attorney for the Child's decision to circumvent an appeal he admits would be [*4]unsuccessful by moving in this posture is not only improper under law, but if permitted, can set a dangerous precedent.

To be clear, there are cases where a modification proceeding is appropriate, even with a nascent custody determination. (See e.g., B.N. v J.N., 83 Misc 3d 1263[A][Sup Ct, NY Cnty 2024][Chesler, J.][Finding change in circumstances and modifying residential custody without a hearing based on a parent coaching a child to believe the other parent had committed sex abuse against the child]). This is just not one of those cases.

Defendant argues that there has not been a sufficient change in circumstances since the July 2024 Trial Decision and Order to warrant modification or advancing to a hearing. This Court and the well-settled law on this issue agree.

"Before a court may modify a prior custody order, the Plaintiff must demonstrate, first, a change in circumstances occurring after issuance of the order sought." (Matter of Chris X. v Jeanette Y., 124 AD3d 1013, 1014 [3d Dept 2015]; citing, Matter of Ildefonso v Brooker, 94 AD3d 1344, 1344 [3d Dept 2012]; see also, Matter of Patricia C. v Bruce L., 46 AD3d 399 [1st Dept 2007]). "The change in circumstances threshold question is a necessary judicial safeguard to avoid subjecting families to unnecessary litigation and the ordeal of a hearing on the sensitive issue of custody." (D.G. v M.G., 83 Misc 3d 1218[A] [Sup Ct, NY Cnty, 2024][Chesler, J.]; see also, Lincoln v Lincoln, 24 NY2d 270, 272 [1969]["It requires no great knowledge of child psychology to recognize that a child, already suffering from the trauma of a broken home, should not be placed in the position of having its relationship with either parent further jeopardized by having to publicly relate its difficulties with them or be required to openly choose between them."]). Here, the judicial safeguard of restraint mandated by the change in circumstance threshold requirement functions to guard against the same harms warned of in Lincoln.

In the first instance, the chief change in circumstances advanced by the Child is that he in essence did not direct his attorney to disclose he was manipulated by Defendant and that he now seeks to have such disclosure made. Thus, the argument is that the omission of the past is the subsequent change in circumstance to warrant modification. The Court cannot accept such an illogical argument.

First, even accepting the Child's argument as true, the Attorney for the Child under such a situation would have been fully authorized to substitute judgment but never did. (See 22 NYCRR 7.2[d][3]). If this Child was so abused, surely the Attorney for the Child would have been compelled to substitute judgment for the safety of his client — this never occurred.

Second, and most tellingly, the substantial change in circumstance test requires conduct that occurred after the prior determination of custody — the apparent failure to properly direct his attorney was not after the prior determination. (See e.g., Matter of Ildefonso v Brooker, 94 AD3d 1344, 1344 [3d Dept 2012][" It is axiomatic that, before a court may modify a prior custody order, the Plaintiff must demonstrate, first, a change in circumstances occurring after the issuance of the order sought to be modified."]). The Child's alleged post-trial realization is not a sufficient change in circumstance. An unsuccessful trial strategy is not a basis for modifying custody and is better explored in an appellate posture.

The Court here struggles strongly with the vague allegations of "abuse" being raised. The Child and the Plaintiff on papers and at oral argument claim emotional abuse but fail to [*5]substantiate such a heinous claim with any specificity. They say the Child states he does not feel safe but there is nothing before this Court that demonstrates what would cause such a reaction. This is particularly strange given that all these issues and concerns could have and should have been litigated in the hearing before Justice Hoffman.

The Court notes the Child's hospital stay post-writ suggests there is little merit to these assertions. First, it was Defendant — not Plaintiff — who stayed with the Child during his hospital stay. Second, the hospital released the Child to Defendant — not Plaintiff. Third, and most telling, is that the purported emotional "abuse" that brought the Child to the hospital was not deemed serious enough to warrant actual hospitalization as the Child was immediately discharged after he was able to see a doctor. Each of these facts suggest that the alleged "abuse" is a litigation strategy — not a change in circumstances.

The Court notes one specific instance (apart from a post-motion phone issue) was raised at oral argument that occurred prior to trial and was when the Child was thirteen. It is elementary that this Court can only consider evidence from after the trial decision in finding a substantial change in circumstances. Notwithstanding that legal impediment to consideration, the allegations even if true do not come close to sufficient change to warrant a custody hearing or justify any modification.

Plaintiff's arguments regarding the run-away incident and the hospital visit are likewise insufficient, even taken with the totality of circumstances. The run-away incident and hospitalization were all directly related to the Child's strong negative reaction to being returned home under the Writ.^[FN2] This is not and cannot be a change in circumstances because those circumstances only arose because Plaintiff and the Child frustrated the Court's order from taking effect. But for this defiant course of conduct, it is very likely the Child would be adjusting well or at least better than he is now to Justice Hoffman's determination. To hold otherwise would proliferate contempt amongst non-custodial parents or children displeased with custody determinations.

Apart from these examples, the Child has shared he feels abused but, again, provides no basis other than the conclusory statement itself. (See Matter of Dionsio L. v Albania L., 220 AD3d 536, 536 [1st Dept 2023][Rejecting father's request for modification based on his "vague" allegations]; Matter of Brandy P v Pauline W., 169 AD3d 577, 577 [1st Dept 2019]["His arguments regarding interference with visitation do not alone support a conclusion that the grandmother is unable to meet the children's mental, emotional or physical needs, and the father has not shown that he has addressed the issues that caused him to lose custody of his children."]).

The Attorney for the Child and Plaintiff's arguments are fatally reductive with regards to a judge's assessment of a child-witness during an in-camera. Rather than just look to the words of the child, as intimated by the Child's argument, the jurist examines a child's demeanor and approaches the interview conscious of not only the specific circumstances of influence [*6]surrounding that child, but also the relative age, and maturity, and intellect of the child.

The Court cannot emphasize enough that the Child was subject to multiple in-camera interviews with Justice Hoffman. This Court must and rightfully does afford strong deference to those multiple interviews and the judgment of Justice Hoffman. To second guess those interviews, and his assessment of the testimony therein would be wholly improper under these circumstances. This Court does not sit as a reviewing Court and will not usurp the authority of the Appellate Division to re-write the in-cameras as is sought by the Attorney for the Child.

Moreover, the Decision and Order did not shy away from the discussion of influence on the Child, and it strongly supports the conclusion that any influence on the Child's express wishes was surely considered in the prior order. There does not appear to be any actual proof of "abuse" offered apart from a handful of indirect hearsay statements and the extremely vague assertions by the Child.

The First Department has made clear, "[t]o automatically grant the noncustodial parent a hearing would simply facilitate a disgruntled party in harassing his or her former spouse, compelling the latter to expend considerable time, money and emotional anguish in resisting the loss of custody. Certainly, a person who seeks such a change must make some evidentiary showing to warrant a hearing." (David W. v Julia W., 158 AD2d 1, 6-7 [1st Dept 1990]). This is a case where there is not sufficient evidentiary showing to justify the "emotional anguish" of a custody proceeding. The Attorney for the Child has utterly failed to meet his burden, even buttressed with the support of Plaintiff.

The Court again stresses how recent the trial decision was. The Child has not even been able to adjust to the notably minor modification under the decision and order issued by Justice Hoffman because he was deprived of his ability live under it until a Writ was issued to compel same.

Outside of the clear legal rule on the issue, this Court is also strongly counseled by the fundamental principle in the law of custody that "[t]he rearing of a child requires greater stability than a roller-coaster treatment of custody." (Dintruff v McGreevy, 34 NY2d 887, 888 [1974]). Indeed, the Court of Appeals has been crystal clear that custody arrangements should be long-term and not constantly shifting, even if that change is what the child wants,

We believe that custody of children should be established on a long-term basis and should not be changed merely because a child at some time states that he desires it. While a child's view should be considered to ascertain his attitude and to lead to relevant facts, it should not be determinative. If it were, then all a court would be required to decide is whether his preference of parent is voluntary and untainted and then follow the child's wish. This would certainly not be conducive to the proper raising of children. (Obey v Degling, 37 NY2d 768, 770-771 [1975]).

This Child's evident lack of stability was exacerbated by two variables. First, the decision to bring this motion practice. And second, Plaintiff's decision to disregard an Order of this Court and support her Child's decision to violate an Order of the Court. Together, these two variables created an environment where the Child was under the belief that he was possibly going to stay in New York City with Plaintiff. He was unjustifiably given the belief that he could change the Court's Order. Indeed, when this is considered, it is very understandable why the Child faced such initial emotional turmoil upon being returned pursuant to the Writ.

But for the Attorney for the Child and Plaintiff's chain of decisions to frustrate Justice Hoffman's order, the Child very well would be adjusted to the arrangement ordered by the Court, and more importantly, be less emotionally harmed. In contrast, this scorched-earth litigation injected further and absolutely unnecessary instability into this Child's life and was not in the Child's best interest in any regard. In fact, everything before this Court shows this additional litigation was solely harmful to the Child's emotional well-being.

Plaintiff cannot hide behind her son's physical maturity when the issue was her failure to set a boundary with the Child that he must respect court orders — especially those reached after a full hearing and multiple in cameras - and his other Mother's role as his residential custodian. A parent does not forfeit the ability nor their duty to raise their Child when the Child physically develops. Likewise, the law is clear that a child cannot dictate parenting time. (See William-Torand v Torand, 73 AD3d 605, 606 [1st Dept 2010]; Guy v Guy, 147 AD3d 1305, 1306 [4th Dept 2017][" In denying the father's motion in its entirety, the court improperly allowed the children essentially to dictate whether visits would ever occur with the father."]; Casolari v Zambuto, 1 AD3d 1031, 1031 [4th Dept 2003]; Sturm v Lyding, 96 AD2d 731, 731-32 [4th Dept 1983]).^[FN3]

It appears that based upon the AFC and the Plaintiff's position, this Court should commit the wrong that Plaintiff accused Justice Hoffman of in her papers and "abandon[] [its] judicial duties" to give Plaintiff what she failed to get at the recent trial. This Court will not and cannot allow the Child to dictate this litigation and his best interests.

It defies logic how the entire theory advanced by the Attorney for the Child and Plaintiff is that this Child is susceptible to influence, yet between his attorney, who he clearly trusts, and Plaintiff, who he clearly has a strong bond with, neither of them could counsel the Child to return home. If there is any doubt that Plaintiff could actually do this, she did in-fact return the Child. Unfortunately, a Writ had to be issued for that to occur.

The Court is alarmed by the disregard for the authority of this Court by the Child. The parents and the Attorney for the Child should be in clear alignment that the Child should always comply with the law. Here, it appears those elementary expectations were not met, and the Child now believes he can play "fast and loose" with the authority of the Court. This is harmful to his ability to function in society under the law as it creates a problematic belief in the Child that he is above authority and a failure to recognize that he must accept the answer of a Court following a lengthy and complete process.

Accordingly, the Attorney for the Child's request for a modification of custody is [*7]DENIED in its entirety for failure to allege a sufficient change in circumstance to advance to a hearing.

The Domestic Relations Law demonstrates that this Court lacks continuing jurisdiction to support further modification proceedings because both Defendant — the custodial parent — and the Child indisputably do not reside in the State of New York. (DRL §§ 76, 76-a[1][b], [2]). This Court is no longer the proper forum to seek relief in relation to the custody of this Child. Based upon the indisputable fact that the Child and Defendant reside in Connecticut, this Court finds pursuant to DRL § 76-a(1)(b) they do not presently reside in the State of New York. Under such a finding and the facts of this case, this Court is compelled to decline continuing jurisdiction. Accordingly, applications moving forward related to the Child's custody and visitation must be brought in his home state — Connecticut. (See DRL § 76).

"The courts cannot assure the happiness and stability of [this] child[]; that only [his] parents could have done, and, hopefully, can still do." (Nehra v Uhlar, 43 NY2d 242, 252 [1977]). Based on the foregoing, this Court reaffirms the words of Justice Hoffman and the sanctity of stability for this Child.

This constitutes a decision and order of this Court.