The parties were married in June 2013. The plaintiff-mother commenced this action for [*2]divorce by filing a summons with notice on January 12, 2023, which was served March 23, 2023. The request for judicial intervention was filed on March 23, 2023. The parties stipulated to adjourn the preliminary conference from May 16, 2023 to June 7, 2023. A preliminary conference was held on June 7, 2023 [NYSCEF No.15].^[FN1] Defendant-father filed an answer with counterclaims dated July 20, 2023 [NYSCEF #29].

A compliance conference was held on October 12, 2023 [NYSCEF #33] at which time the court learned that the parties had not complied with the preliminary conference order to conduct depositions by dates certain. The compliance order, inter alia, provided new deposition dates and set the matter down for a continued compliance conference and sanctions hearing for November 28, 2023 [NYSCEF #33].

Thereafter, the parties sought adjournments of the matter until February 5, 2024, representing that the parties were in the final stages of resolving the matter by way of a Stipulation of Settlement [NYSCEF #34]; however, a few days before the adjourn date, on January 29, 2024, plaintiff filed a consent to change attorney substituting in her current attorney. Incoming counsel immediately filed an order to show cause seeking the following relief [NYSCEF #47]:

a. Pursuant to DRL §252, immediately issuing an Order of Protection in favor of the Plaintiff, directing the Defendant to stay away from the Plaintiff, the Plaintiff's home, and refrain from committing another family offense;

b. any other relief the Court may deem just and proper.

On February 5, 2024, on consent of the parties, the court issued a temporary order of protection against defendant-father in favor of the plaintiff-wife for defendant to stay away from plaintiff and her home, school, business and place of employment as well as refrain from communication by any means with plaintiff with the exception of e-mail communication between the parties regarding custody and visitation and participation in the deposition as per court order [NYSCEF #48].

On February 13, 2024, the court appointed Cheryl Charles-Duval, Esq., as the attorney for the parties' four (4) minor children [NYSCEF #53].

The note of issue was filed on June 3, 2024 [NYSCEF #71]. The court heard testimony in the trial on custody and parenting time and the evidentiary hearing on relocation on June 3, 2024 [NYSCEF #79]; June 7, 2024 [NYSCEF #91]; July 23, 2024 [NYSCEF #93]; August 2, 2024 [NYSCEF #95]; August 19, 2024 [NYSCEF #96]; and August 20, 2024 [NYSCEF #97]. The court heard oral argument on the mother's pendente lite application on August 20, 2024. The court heard oral summations on September 20, 2024 [NYSCEF #98]. The transcripts were provided to the court on September 26, 2024 and the matter was marked decision reserved.

The issues before the court are: final awards of custody and parenting time after Trial and whether to grant the mother's application to relocate with the parties' children.

While trial was ongoing, the plaintiff filed for the first time an order to show cause [*3]seeking pendente lite financial relief on July 22, 2024 ^[FN2] . In August 2024, the court ordered the father to pay interim temporary child support to the mother in the sum of $3,270.19 monthly until decision on the pendente lite application. The Court heard oral argument on the pendente lite motion on August 20, 2024 [NYSCEF #97]^[FN3] and is issuing a written pendente lite decision and order simultaneously with this written decision.

The plaintiff-mother is thirty-eight (38) years old and is employed as a nurse and the defendant-father is thirty-nine (39) years old and owns a personal training facility where he works as a personal trainer. There are four (4) unemancipated children of the marriage: J.O., May 2011; twins K.O. and L.O., June 2015; and M.O., December 2017.

The mother testified that for the first part of the marriage she was a stay-at-home wife and mother and that "[b]efore I was working I pretty much did all of the stuff at home for the kids" because the father worked [NYSCEF #93, p. 64]. She testified "I took care of the home, I took care of the children. With respects to bathing, taking care of them, taking them during the day, feeding them. I was responsible for every aspect of their care when [the father] worked" [NYSCEF #93, p. 64]. She testified that during the marriage she started nursing school and that she went to school on the weekends and some evenings and that she went to work after the parties' youngest child was three (3) months old [NYSCEF #93, p. 64-65]. She testified that she obtained her license as a registered nurse in or about 2017 [NYSCEF #95, p. 22] and that her current place of employment is about a twenty (20) minute walk from the marital residence [NYSCEF #93, p. 65].

The mother testified that throughout the marriage, the father worked as a personal trainer for private clients "in their homes, their buildings, in the park" and at a chain of gyms [NYSCEF #93, p. 65]. She testified that the father was gone "pretty much all day" from "around 5 a.m." to as late as "around 9, 10 p.m." [NYSCEF #93, pp. 65-66]. She testified that when she started working the father:

. . . would help out [sic] but I would come home and sometimes the kids weren't bathed. He never did the laundry. Dishes would be piled up in the sink. Everything would still be left for me to do. The children would be fed, sometimes homework done but everything would be left for me to take care of after. [NYSCEF #93, p. 88].

The mother testified that even when the parties attempted a "nesting"^[FN4] arrangement with the children in the marital residence the father often left most daily child-care and household [*4]tasks for her to do when she returned for her time with the children. She contends that the father has enrolled the children in various extracurricular activities without any discussion with her [NYSCEF #93, p. 90].

The mother testified that the father "has had struggles with alcohol in the past" when he would "get depressed, drink a lot" and that his attempts to be sober were not successful because "he goes right back to it" [NYSCEF #93, p. 70-71]. She testified to two (2) instances where the father was allegedly intoxicated around the children [NYSCEF #95, p. 63] including one time when she returned home and found the father asleep and learned that the parties' oldest child had put the other children to bed because the father was allegedly unavailable. She testified that when the father drank alcohol he became "[m]ore short tempered. He was just focused on drinking. He would pass out" [NYSCEF #95, p. 83-84]. On cross-examination by the attorney for the children, the plaintiff stated that these periods when the father allegedly engaged in depressive drinking would "last for a couple of weeks" [NYSCEF #95, p. 30] but she conceded that she never considered the father to be a threat of harm to the children [NYSCEF #95, p. 30].

The mother testified that in June 2022 she gave the father an ultimatum: that he stop drinking alcohol or the marriage would not last. She testified that the father stopped drinking alcohol for approximately a month and that he started going to therapy but that "[h]e started drinking again and it just blew up, that was it. That was the end of our marriage. He could just not stay sober" [NYSCEF #95, p. 64].

The father conceded on redirect by the mother's attorney that he told the mother in July 2022 that he had "met someone" else [NYSCEF #93, p. 61]. The mother testified that at that time "[w]e were trying to discuss how our living situations would go and how we would co-parent the kids" [NYSCEF #93, p. 71]. She testified that the parties set up a "livable space" in the basement of the marital residence with a bed and "space for one of the parents while the other parent would be upstairs with the kids" to explore whether a nesting arrangement would work but, she testified, that nesting arrangement "never really happened because [the father] started sleeping at the gym and never came back home" [NYSCEF #93, p.72]. She testified that the parties attempted the nesting arrangement for "[a] few weeks. And then he just stopped coming home and it's my understanding he was sleeping in the gym with [the father's girlfriend T.]" [NYSCEF #93, p. 73].

The father conceded on cross-examination that, without discussing it with the mother, he introduced the children to this girlfriend about a month [sic] — sometime in or about August 2022 — after revealing this relationship to the mother.

He testified that in September 2022, after he had told the mother he had met someone else and had started a relationship with his girlfriend T., he saw a text message notification on the mother's Apple watch while it was charging and as a result he believed that there was "something going on" between the mother and "our family accountant at the time" [NYSCEF #91, p. 41; NYSCEF #93, p. 25]. He testified that he "whispered" to the mother that "I am going to make your life a living hell until you get out of this house" and he conceded that he "took the watch and I left" [NYSCEF #91, p. 41]. He contends that when he left the house with her watch the mother "was screaming in front of the children that she was going [sic] call the police" [NYSCEF #91, p. 41]. The father conceded that the children were in the house when this verbal [*5]exchange took place [NYSCEF #91, p. 42] and that he threatened to send the contents of the mother's watch to other people [NYSCEF #93, p. 62].

The mother's testimony about the watch incident differed from the father's testimony. She testified that the father "started calling me dirty names and he showed me, on his phone, a video he had taken of him scrolling through my conversation with somebody that I was dating at the time" and that "[h]e threatened me" and "grabbed me by the shoulders" and told her he was going to make her life "a living hell" until she got out of the marital residence [NYSCEF #93, p. 73]. She said that after that incident "[t]hrough everything that had been going on I was done. We clearly could not live together. This was not good for the children, so I called the police" [NYSCEF #93, p. 73].

The father testified that because of this incident the police came to the house and found "a firearm in the safe under the bed" [NYSCEF #41, pp. 41-42]. The father testified that "I gave consent for [the police] to take [the gun] and they took it [sic] they took it to the police station and I surrendered that Monday morning with my lawyer . . . " [NYSCEF #91, p. 42].

On September 19, 2022, the Kings County Criminal Court issued a temporary order of protection against the father in favor of the mother and the parties' four (4) children extended until March 31, 2023 [Plaintiff's 3 in evidence] which included that the father stay away from the mother and the children, not communicate with them by any means and refrain from remotely controlling, monitoring or otherwise interfering with any electronic device or other object affecting the home, etc.

The father testified on direct that as a result of this watch incident he was charged with "Petit Larceny, Harassment and Endangering the Welfare of the Children" [NYSCEF #93, p. 25] and because the police found the unlicensed gun, which he testified was his father's Vietnam service weapon that his mother gave him after his father passed away in 2011 [NYSCEF #93, p. 23] and that he plead guilty to an A misdemeanor and he was given a "one year of conditional discharge and they added a five-year limited order of protection in favor of the plaintiff" [NYSCEF #93, pp. 24-25].

He testified that he never fired the handgun and that he stored it "in a lockbox, in the marital residence, under the bed, towards the back" with some "family documents" [NYSCEF #93, pp. 23-24]. He asserted that during the marriage the mother knew about the handgun because she also used the lockbox where the gun was stored to retrieve "social security cards, birth certificates and documents, as we needed them" [NYSCEF #93, p. 24].

On cross-examination, the mother stated that she asked the Assistant District Attorney to change the order of protection from a full stay-away to a limited order of protection because the father had not been able to see the children for a month and she was trying to foster a better co-parenting arrangement with the father for the children's sake [NYSCEF #95, pp. 14-16]. The father's sister, who he called as a witness, also testified that the mother made efforts to change the order of protection so that the children could spend time with the father. The mother testified that the parties communicate by "e-mail only" with respect to the children because of the order of protection [NYSCEF #96, p. 27].

The mother testified that since the father was excluded from the marital residence in September 2022, she has received little to no direct financial support for the children. The mother conceded that she did not file a pendente lite application until July 2024. She testified that pendente lite support is now even more critical because the father's family started an eviction process to remove her from the marital residence which they contend is part of a family [*6]trust that the father has no interest in.

The plaintiff-mother called the defendant-father as a witness: this was the only time he testified at trial. He testified that he lived at the address that became the marital residence from 2005 to 2008 and then he returned to live at that address in 2011 and he lived there with the mother from 2011 until 2022 when he left the marital residence after the order of protection against him in favor of her was issued by Kings County Criminal Court [NYSCEF #93, pp. 7-8].

The father testified that he has no ownership interest in the marital residence and, on cross-examination by the attorney for the children, he stated that he considers the marital residence to be "my family's house" [NYSCEF #93, p. 52]. He testified on redirect by the plaintiff's counsel that his grandmother "transferred [the marital residence] to my mother and I believe she I guess had it until 2022, until she transferred it to my sisters" [NYSCEF #93, p. 55].

The father testified that the marital residence is a legal two-family home and that, for a time during the marriage, his sister lived "in the unit upstairs with her husband and their daughter" [NYSCEF #93, p. 8] until the parties had more children and then his older sister moved out of the marital residence into another residence. Testimony at trial established that there are multiple residences owned by the family trust and that the father and his sisters each reside in one of these residences but that the father is the only sibling who is not a trustee of the family trust. He testified that the marital residence "has been modified to accommodate a one family" [NYSCEF #93, p. 9]. He testified that the children do not each have their own bedroom in the marital residence [NYSCEF #93, p. 10] and that:

. . . the upstairs apartment which was converted into bedrooms, there's one main bedroom with closet and there's a living space where the children are that was a former kitchen and a living room. There is [sic] no doors that separate the children's room, except for one doorway to the hallway and a curtain that separates [the oldest son's] [NAME REDACTED] room, which is the former kitchen, from the girls' room" [NYSCEF #93, pp. 9-10].

On cross-examination, the mother conceded that the children sleep in three rooms that are set up "railroad" style and that there are doorways separating each room from the others but there are no doors between the bedrooms and none of these rooms has a closet [NYSCEFL #95, pp. 5-6]. She testified that the pool the family utilized "in the backyard" during the marriage is not actually part of the marital residence property [NYSCEF #95, pp. 6-7]. She conceded that since the father left the marital residence she has paid no rent, carry costs or utilities for the marital residence [NYSCEF #95, p. 7-9]. It is undisputed that during the marriage the parties did not pay rent to live in the marital residence but covered property taxes of approximately $3,000 and paid for utilities.

The father's sister, Ms. E. O, testified that the marital residence is not a legal four (4) bedroom house and that until 2019 "right before COVID" the parties lived on the first floor where they turned the front room into the master bedroom and all four (4) children lived in one bedroom but that when the father's other sister left the top floor the parties "changed it into the bedrooms upstairs" [NYSCEF #96, p. 40]. It is undisputed that the parties made these renovations to the marital residence without any obligation to seek or obtain "permission" from the family trust.

The father testified that in or about September 2022, the marital residence was placed in a trust with his older sisters as trustees [NYSCEF #93, p. 51]. The mother testified that September 2022 was when the parties physically separated and the "exact time when [the father's [*7]family] transferred [the house]" into the trust [NYSCEF #93, p. 80]. The father contends that the timing of his family moving the marital residence from one trust to another trust is, in effect, a coincidence and not related to this divorce action.

The mother testified that during the marriage she understood that the father's family owned four (4) houses and that one was for the father's mother and the remaining three houses were for the father and each of his two sisters [NYSCEF #93, p. 81]. She testified that during the marriage the parties did not have discussions with the father's mother or sisters before they did renovations on the marital residence including when they undertook extensive renovation converting the marital residence from a two family to a modified one family home to accommodate their growing family of four (4) children [NYSCEF #93, p. 81-82].

The father's older sister, Ms. O.G, conceded on cross-examination by the attorney for the children that the marital residence was transferred into a new trust in her name with her other sister, Ms. E. O, and the paternal grandmother "after" the "breakup" of the parties [NYSCEF #96, p. 74]. She testified that the transfer of the house, which she concedes the father views as "his" house, was done without his knowledge or consent and that he only learned about the transfer of the house into this new trust when mail came to the residence listing the new trust [NYSCEF #96, pp. 74-75].

The father's oldest sister, Ms. E.O, testified that she, her sister, and the paternal grandmother are beneficiaries of her mother's trust — the "DO Trust" — but that the father was "never" a beneficiary of the paternal grandmother's trust [NYSCEF #96, p. 86]. She offered no explanation for why the father was the only sibling who does not have any role in the family trust.

Ms. E. O. conceded on cross-examination that she never reached out to the plaintiff-mother prior to starting the eviction proceeding and serving her because "enough, was enough, we needed some sort of action or something" and that she was "worried about orders of protection" and the eviction "seem[ed] like the only thing my mother and I and sister could do" [NYSCEF #96, p. 88].

Ms. E. O testified that if the court granted the father's request for full custody he would be allowed to live at the marital residence because "it is a family home that's been in our family for over 70 years" [NYSCEF #96, p. 89]. She testified that the father would "have something and in writing just so everything was articulated and everyone was on the same page" but conceded that if the father had to pay anything to live in the former marital residence at all that "it would be below market value" because "we want him to get on his feet" [NYSCEF #96, p. 89]. It is undisputed that the parties paid no "rent" to live in the marital residence for more than a decade but that they paid the property taxes and utilities.

The father called Ms. E. O. (one of his sisters) as his witness and she testified that she is an associate dean of students at a university in New York [NYSCEF #96, pp. 80-81]. She testified that "prior to the separation" she had a "close relationship" with the mother, "we lived in the same house. We had similar friends we were raising kids together" [NYSCEF #96, p. 81] and that she later moved "two blocks away" into another home owned by the family [NYSCEF #96, p. 82]. She testified that she has a daughter who is near in age to the parties' oldest child and that these two children were raised "more like siblings" with the parties' four (4) children and that in addition to sharing a house for many years they were one "some of the same sports team [sic] together" and "in dancing school" together and even attended some of the "same [*8]schools" [NYSCEF #96, p. 83]. Ms. E. O. asserted that when her family lived upstairs in the marital residence they had an "open door" arrangement with the parties downstairs and the children went back and forth between the floors and often hung-out in the backyard and the parents "were always watching one another's kids and being together with them" [NYSCEF #96, p. 84]. She stated that her daughter has a "very, very close relationship, not just as cousins or extended family, but more like siblings and friends" [NYSCEF #96, p. 83] and that she, her husband, and their daughter moved out of the second floor of the marital residence when the parties had more children to accommodate their need for additional space.

She conceded that she had limited contact with the mother after the parties separated in September 2022 because "[m]y understanding is that there were various orders of protection or limited orders of protection that restricted third parties of reaching out, so I didn't want to get involved" but that she remained cordial with the mother when she did see her and that she always told her "I was there for her and the kids and that remains true to this day" [NYSCEF #96, p. 81-82]. She testified that she continues to see the parties' children often:

ATTORNEY FOR THE FATHER: How often would you see the kids, have you seen the kids during the last two years?

A Oh, all of the times, both the planned and unplanned days. So I would say we've gone on vacation to North Carolina together. We've gone to Kalahari and Pennsylvania and holidays, Radio City, birthday parties, but also the little things just being able to run into each other, playing basketball in the backyard. Coming in and having breakfast, movie nights, walking around. Just the informal, going to basketball games they would come see [her daughter]. We would go to their athletic events. We're just a part of reach others [sic] lives.

The father's sister testified that the father is a "social drinker" mostly spiked seltzers "every now and then" because "his identify [sic] is about running marathons" [NYSCEF #96, p. 94]. She did not recall ever seeing the father "drunk" or having passed out in front of the children [NYSCEF #96, p. 94-95]. She testified that the mother is also a social drinker and that she observed the mother drinking tequila and throwing up at a neighborhood party once while she believed the parties' children were home alone [NYSCEF #96, p. 114].

Ms. E. O. testified on cross-examination that the father would be allowed to move into the marital residence "for the benefit of the children" after the mother leaves the marital residence if the father has custody of the children [NYSCEF #96, pp. 102-104]. She testified [NYSCEF #96, p. 103]:

. . . My understanding is that the kids would be able, hopefully, to stay there, and that [the father], when he had custody of them, I don't know but a 50/50, that they would be able to be there. That he would be there. That's our family's home. That he would be able to be there with the kids, the house that they know. That's the intent. That was the intent. As I stated before, we didn't want to do this. [The mother] was like my little sister. We didn't want to send an eviction notice. We didn't hear from her in a year and a half. I don't know what to do...

On cross-examination, Ms. E. O. conceded that before sending the eviction notice she never had any conversation with the mother about paying rent, signing a lease or asking the mother to pay for any carrying costs. Ms. E. O. testified, in effect, that she had no conversations with the mother because she believed it may have violated the terms of the order of protection against the father in favor of the mother [NYSCEF #96, pp. 104-105]; however, she also testified that the attorney that the trust retained reached out to the mother on other issues. Ms. E. O. was [*9]unable to offer any explanation as to why the trust did not request rent from the mother through the attorney. Ms. E. O., when questioned whether the trust would offer the mother a lease to stay in the marital residence since she testified that the father would be allowed to return to the marital residence without rent being a governing concern. The sister stated that whether the same offer would be extended to the mother would be up to the paternal grandmother [NYSCEF #96, p. 108-111]. She testified on cross-examination that personally, not as trustee, believed it was not a good idea for the mother to remain in the marital residence because it would interfere with her moving on with her life [NYSCEF #96, pp. 117]. She testified that she believes it is in the children's best interest to say in the marital residence with the father [NYSCEF #96, p. 117].

Ms. E. O. testified credibly that having lived with both parents in the marital residence for eight (8) years she believes that "they are both good parents" [NYSCEF #96, p. 121].

The father called Ms. O. G. as his witness and she testified that she has been a licensed real estate agent since 2011 and that she specializes in South Brooklyn real estate including rentals and sales of apartments and houses [NYSCEF #96, p. 29-30]. She testified that prior to the parties' separation her relationship with the mother was like "my little sister" but that since the separation "[o]bviously we're not as close as we used to be" [NYSCEF #96, p. 31]. She testified that she is "very close with the kids" and that she has helped the mother by babysitting the children about "ten" times since the separation so that the mother can go to work or when there is an emergency with the babysitter in the morning [NYSCEF #96, p 32-34]. She testified on cross-examination that she sees the children "two to three times a week, a couple of hours a day" primarily when they are with the father, when she is babysitting them for the mother or when she attends their sporting events [NYSCEF #96, p. 42-43].

She testified that the mother's family does not come to visit the family in Brooklyn and does not join the father's family's holiday celebrations [NYSCEF #96, pp. 35-36].

Ms. C.O. asserted that she believes the father only "drinks occasionally. He likes the spiked seltzers and I mean, it is perfectly — I mean remember my brother is a fitness, he's a personal trainer. His life revolves around fitness" [NYSCEF #96, p. 37]. She denied ever seeing the father drink alcohol in front of the children [NYSCEF #96, p. 37] and that she was unaware if the mother ever asked the father to go to rehab for alcohol use [NYSCEF #96, p. 65]. Ms. C. O testified credibly that both of the parties are "good parents" [NYSCEF #96, p. 38].

Ms. C.O. testified that she took the mother to look at rental properties "twice" in February 2023 that were located near the marital residence [NYSCEF #96, p. 38; p. 47]. She testified that the mother appeared to really like one of the apartments because she put together the rental paperwork application for one apartment that cost $3,900 monthly but that "unfortunately, the owner at that time didn't proceed" [NYSCEF #96, p. 38] and that the mother put in an application for another apartment for $3,700 monthly with parking but the mother did not sign the lease because the parties had not yet reached a settlement agreement [NYSCEF #96, p. 39].

The mother testified that she invited the father over to the marital residence for Christmas Eve dinner "for a little normalcy for the kids after we separated" and that "[h]e came over, had dinner, went home and I was supposed to drop the kids off to him in the morning" but "[h]e was too drunk to wake up and [she] had to drop the kids off at his sister's house Christmas morning because he was too drunk to wake up. Woke up, the dog destroyed the tree, all the presents, [*10]because we had a puppy at this time" [NYCEF #95, p. 65]. The father did not take the witness stand on his direct case and offered no testimony disputing this testimony regarding him being unavailable to take the children on Christmas morning.

The father conceded that there is an open criminal case with the mother related to a charge for contempt in the second degree and harassment [NYSCEF #93, p. 28] based on him placing an air tag on the mother's automobile without her knowledge or consent when there was an order of protection in place prohibiting him from doing so.^[FN5] The father testified that after the "Gun Incident" another order of protection was issued against him and in favor of the mother after he placed an air tag on her automobile in or about January 6, 2024 [NYSCEF #91, p. 43]. Plaintiff's 5 in evidence is a temporary stay away order of protection against the father in favor of the mother dated March 14, 2024 continuing until September 27, 2024 charging the father with criminal contempt in the second degree for placing the air tag on the mother's car in violation of the existing February 22, 2023 Kings County Criminal Court Final Order of Protection.^[FN6]

The mother testified that she discovered the Air Tag because she received a notification on her phone that there was an AirTag nearby and that when "I opened the Find My Phone app, and it showed me a map of everywhere I had been that day" [NYSCEF #93, p. 75]. She testified that that application "becomes like a little metal detector for the AirTag, so I was able to locate it on my car. It was concealed in a waterproof case that [sic] placed on the hitch of my car" [NYSCEF #93, p. 75]. She testified that she asked the father if he knew anything about the AirTag but that the father denied having any connection to the AirTag [NYSCEF #93, p. 75]. She testified that before she was able to take the AirTag to the police department she had it in her locker at work and it "started pinging in my locker" because someone was trying to locate it [NYSCEF #93, p. 76] and that when she returned home that day the father came out to her car "banging on the passenger window" and that "he looked at me and he said, before you react to this just remember how close we are to finishing this, as a threat" [NYSCEF #93, p. 77]. She testified that because of that incident her mother came to stay with her because she "was very scared" [NYSCEF #93, p. 77] and that thereafter the parties formalized a parenting schedule which was incorporated into the February 2024 so-ordered interim parenting schedule.

The father conceded at trial that he placed the Air Tag on the mother's car when she was traveling to the Western New York area with the children but he contends, in effect, that he did so for her "protection" despite the order of protection because "[s]he drives a white car and there [*11]was snow predicted in the forecast and she was going to be driving overnight" and he " . . . wanted to make sure they got there okay" [NYSCEF #91, p. 42] especially because she had had an accident on that same road years before [NYSCEF #93, p. 30]. He testified on direct examination that he believed the road she would be using "are very windy, dark roads, and that part of the state has some of the worse weather in the country and she drives a white car. I was very nervous. I just wanted to know my children were there safe and their whereabouts at the time" [NYSCEF #93, p. 29]. The father did not dispute that placing the Air Tag was a violation of the existing order of protection rather his testimony appeared to focus on his belief that placing it was, in effect, justified because he was allegedly worried about the mother driving a white car to Western New York during the winter. He conceded that he did not tell the mother that he put an Air Tag on her car and that he initially denied putting an air tag on her car when she asked him directly but later conceded that he had put the AirTag on her car [NYSCEF #91, p. 43-44]. He testified that he did not discuss his concerns about her travel plans with the mother prior to placing the Air Tag because "[w]e don't really communicate much and we didn't at the time" [NYSCEF #91, p. 47] because "[w]e just didn't like each other" [NYSCEF #91, p. 48].

The mother testified that she believes that the father came to the marital residence in April 2024, despite there being an order of protection in place that he stay away from the marital residence and interfered with the internet wires to the marital residence because, she testified, "I have a video, a Ring video of my neighbor's. Someone came into our backyard, showing his description, his exact description, his stature his gait. They came into our backyard. They didn't touch anything in any neighbor's yard [REDACTED], which they had full access to. Did not touch anything in the [REDACTED] yard which was also adjoined to our yard. All this person did was unplug the internet, broke a bottle of tequila. Broke every single light not [sic] backyard, all of the extension cords and destroyed all of the internet cable attached to the house, every single one was unscrewed by hand" [NYSCEF #95, p. 85]. She testified that the neighbor's had a "gate you could go through, but you had to know that you could reach your hand through to open it" [NYSCEF #95, p. 85]. She stated that when she went to the back of the house she saw "cords that had been plugged into the cable and also cords that had been plugged into the electrical box that were thrown all over the place" [NYSCEF #96, p. 14]. She contends that the cable wires were positioned inside an area that only someone who knew where they were would be able to locate them.

At the time the wires were disconnected from the marital residence in April 2024, the March 14, 2024, Kings County Criminal Court Order of Protection was in effect which directed the father to stay away from the mother's home and specifically provided that the father refrain from interfering with any "electronic device or other object affecting that home" [Plaintiff's 5 in evidence].

The mother testified that she recognized the father from the Ring video she received from her next-door neighbors [NYSCEF #95, p. 86]. She testified that she reported the incident to the police but the man in the video was wearing a hooded sweatshirt and sweatpants so "there was not enough evidence from the video to know exactly who it was" but that she was "very much" frightened by the incident [NYSCEF #95, p. 87]. The video was not admitted into evidence.

The father, despite a full opportunity to do so, did not dispute or deny the mother's allegation. It is well-established that the trier-of-fact "may draw the strongest inference that the opposing evidence permits" (see generally Adam K. v Iverson, 110 AD3d 168, 970 NYS2d 297 [*12][2 Dept.,2013][holding that a trier of fact may draw the strongest inference that the opposing evidence permits against a witness who fails to testify in a civil proceeding]; see also Matter of Kashai E., 218 AD3d 574 [2 Dept.,2023]). As noted in Adam K v Iverson, where the "missing witness" is a party:

In these cases, which include jury trials, nonjury trials, and hearings, the negative inference is generally applied without reference to the prerequisites for the missing witness rule, since those factors would be either irrelevant (the party's control over himself or herself) or deemed satisfied (the party's availability and personal knowledge of noncumulative, material facts) . . . (110 AD3d 168, 178 [2 Dept.,2013]).

Here, the father is a party who chose not to testify on his case in chief as to the allegations of the mother concerning him violating the order of protection by coming to the marital residence and interfering with the internet wires. The court draws a negative inference against the father as to this incident because he did not dispute the mother's testimony.

Shortly after this incident where the internet wires were disconnected, the mother testified that she was served an eviction notice, signed by the father's sister [the trustee of the trust that holds the marital residence] that she contends was taped to the front door of the marital residence where the children could have seen it.

The record showed that the trust for the marital residence served an eviction notice dated May 7, 2024 on the mother at the marital residence. The father testified that he knew his sister was going to notify the mother that she was being evicted from the marital residence and that he took no action to ask his sister not to evict the mother and the children or to notify the mother that the eviction was being served because, in effect, he had no say in the matter [NYSCEF #91, p. 49-50].

QUESTION: Mr. [Father], you testified that your sister was going to put a notice on [the mother's] door to commence an eviction proceeding on August 31, correct?

ANSWER: Yes.

QUESTION: Right, and with that knowledge, did you take any actions to stop your sister from doing that?

ANSWER: No, I did not.

QUESTION: Did you approve of her doing that?

ANSWER: It wasn't up to me.

QUESTION: Did she ask for your approval?

ANSWER: No.

QUESTION: Did she discuss it with you in advance?

ANSWER: No.

QUESTION: But you did know about it?

ANSWER: Yes.

QUESTION: Did you have any say so in it?

ANSWER: No.

QUESTION: Did you make any request of your sister not to put that eviction notice on your wife's door?

ANSWER: No.

He testified that if the mother is evicted from the marital residence he will move back into the marital residence "[h]opefully as soon as possible" [NYSCEF #91, p. 51]. He testified [*13]that "[t]he kids were — — we were living there while each child was born. They all had their cribs there. And they grew up in that house. That is their home" [NYSCEF #91, p. 51]. He testified that he wants the children to remain in the marital residence and that the parties "spoke about nesting at one point" but that "it fell apart" because they "couldn't agree on all the other issues" [NYSCEF #91, p. 52].

The father's witness, his older sister, Ms. O.G, testified that she, her sister, and the paternal grandmother did not discuss starting the eviction with the father and that they independently "decided to start the eviction" because "they were trying to make a settlement" happen between the parties [NYSCEF #96, p. 54]. She testified on cross-examination by the mother's attorney that "they were getting ready to sign it and settle everything and then it all stopped and there were no attempts being made on your client's part [the mother]" [NYSCEF #96, p. 54]. On cross-examination she conceded that the timing of the eviction notice was because "I wanted [the children] to be settled in school. We wanted them to be settled in the new apartment, this way it wouldn't disrupt their schooling" and "I would want her to find a new place and move into that so it wouldn't be done really say during October or November, and I've stated to her several times if she ever needed help, we'll help her find something" [NYSCEF #96, p. 58].

She testified on cross-examination that the eviction notice was "necessary" because "we didn't have access to the house. We don't have access to check on, I mean she's been there for two years and we own the house. We don't know the upkeep of it. We haven't been able to maintain the property or go into the property to check on it" [NYSCEF #96, p. 55]. She testified on cross that she believed the mother was more "of a squatter than a tenant" so she did not believe she could ask the mother about the condition of the property and that she never asked the mother for rent "not with everything going on" [NYSCEF #96, p. 55]. Ms. O.G testified that "[t]o my knowledge" the father "takes care of the bills" for the marital residence [NYSCEF #96, p. 56].

She ultimately conceded on cross-examination that "I don't think there was any movement in the settlement. I think something had to be done to be honest with you" but denied that the father asked her to start the eviction [NYSCEF #96, p. 58-59]. She testified that early in the divorce "we tried to help [the mother] and [the father] has made several attempts to try to come to an agreement" and that she even met up with the mother and "I said, don't go through lawyers, go through a mediator, do all of this together" [NYSCEF #96, p. 63].

On cross-examination by the attorney for the children, Ms. O. G testified that "it was always our understanding that we wanted [the father] back into the house this way the kids could still have their rooms" [NYSCEF #96, p. 68] but that the settlement was not happening fast enough and she, her sister and the paternal grandmother wanted the father to move back into the marital residence sooner so she started the eviction process against the mother [NYSCEF #96, p. 69]. She maintained that she had not discussed the divorce proceeding with her brother, the father, and on cross-examination by the attorney for the children, she testified [NYSCEF #96, p. 70]:

QUESTION: And [the mother] was served with an eviction with the intent of her moving out of the house and [the father] moving in, is that correct?

ANSWER: Yes.

QUESTION: And serving her with eviction notice is your way of moving the process along, is that correct?

ANSWER: Not specifically, but I'm sure that would help. I'm sure that would help. There was also that we couldn't do anything to the property.

QUESTION: Okay, we're coming to that. We're coming to that. So you first stated that you served the eviction notice because there was no settlement, do you remember your testimony?

ANSWER: Yes.

QUESTION: And then you were asked if you started, if you initiated legal proceedings to go into court.

ANSWER: I don't understand the question.

QUESTION: You served her with notice?

ANSWER: The notice, yes.

QUESTION: But when the time elapsed, you did not go further?

ANSWER: That's correct.

QUESTION: And you said you did not go further because they were working on a settlement agreement, is that correct?

ANSWER: Yes.

QUESTION: So you started it because there was no settlement and you stalled it because they were working on a settlement, is that correct?

ANSWER: They were asked, I think the courts asked for her to have more time, so that's why we didn't want to anything.

QUESTION: So you were not in court, so you got that information from [the father], is that correct?

ANSWER: Correct.

QUESTION: And did you discuss with [the father] to put a halt on the proceedings?

ANSWER: No, I did not. That was between my sister and I. [The father] didn't even know.

QUESTION: So you were taking care of [the father]'s business, is that correct? You, your sister and mother?

ANSWER: Well, remember we are owners.

QUESTIONS: You, your sister and mother were making decisions on behalf of [the father], without consulting [the father], is that what you're saying?

ANSWER: Yes.

The father testified on direct that the parties used a modified nesting arrangement for several months where the children remained in the marital residence and he came to the home at 6:30 a.m. on his weekends and stayed all day, put the children to bed and went home and then repeated this the next day so that he had alternating weekend time with the children but the children remained in the home they were familiar with so that the children could "be in the home that they felt comfortable with" [NYSCEF #93, pp. 32-33]. The mother testified that initially the father "had [the children] overnight for a few months and then it slowly dwindled. He just stopped taking them and would leave them at the house when I got home from work" [NYSCEF #93, p. 74].

Pursuant to the parties so-ordered interim parenting schedule dated February 6, 2024 [NYSCEF #51]: the father picks up the children from school at 2:30 p.m. on Tuesdays and [*14]Wednesdays and the mother picks-up the children from the father on those days at 8:30 p.m. and the children are with the father every other weekend from Saturday morning at 6:30 a.m. through Monday with drop-off at school. The mother testified that that this schedule mirrors her work schedule because she works Tuesdays and Wednesdays and every other weekend as a nurse [NYSCEF #95, p. 47]. The mother testified that the parties formalized the parenting arrangement "[m]aybe around like six months until the AirTag happened" [NYSCEF #93, p. 74].

 Relocation

The mother is seeking the right to relocate with the children to Western New York because she is being evicted from the marital residence by the father's family. She contends that she has been unable to relocate from the marital residence because the father refuses to provide any direct child support she is unable to find comparable housing for herself and the parties' four (4) children in Brooklyn near the marital residence.

The mother seeks permission of the Court to relocate to Western New York where she has immediately family and close family friends. She testified that she and the children travel to Western New York to visit her family and friends approximately twice a year for a few weeks [NSYCEF #95, pp. 58-59]. She testified that "I cannot afford to live here without [the father] giving me a substantial amount of child support" [NYSCEF #93, p. 85-86]. The mother testified that a "comparable" living space for her and the parties' children in or around the neighborhood where the marital residence is located would cost approximately $9,000 a month [NYSCEF #95, p. 61-62] which, she contends would need to include at least 1,700 square feet, multiple floors, three (3) full bathrooms, a washer and dryer, dishwasher, and an "outdoor" space. She contends that "comparable" homes are available in Western New York for approximately $2,000 monthly [NYSCEF #95, p. 72] and that she has access to places to stay while she looks for a home [NYSCEF #95, p. 69-71].

She testified that relocating to Western New York would be easier for her to sustain a similar lifestyle for the children and that she would "have family support there" because her sister, her mother and stepfather, her brother and his wife and "a few close girlfriends who are stay-at-home moms" all live in the area and are available to help her with childcare which is an added expense for her in Brooklyn to work but that the father is not contributing [NYSCEF #93, p. 78]. She testified that "if I move to [Western New York], I won't have to hire a babysitter [NYSCEF #95, p. 37]. She testified that the father's sisters babysat for her a few times over the past few years but that since the breakdown in the parties' relationship in or around September 2022, the father's family no longer provide her with stable child-care or family support (NYSCEF #95, pp. 20-21).

The mother testified that there are numerous school options in the Western New York area she wants to relocate to that are comparable to the schools the children attend in Brooklyn so the move would not be disruptive to the children's education [NYSCEF #95, pp. 54-56].

She testified on cross-examination by the attorney for the children that "if I could have enough financial support to stay here, I would love to stay here. The only reason I want to go to [Western New York] because I know neither of us could afford for me and the children to stay here with us not living in the house" [NYSCEF #95, pp. 35-36].

She testified that the only way she could financially afford to remain in Brooklyn in the general area of the marital residence would be if she received "at least, minimum $3,000, minimum, minimum" [NYSCEF #93, p. 82]. She testified that if she relocates to Western New York she can "rent a full house in [REDACTED] for under $2,000" but that it would be very [*15]hard to find comparable housing for herself and the children in Brooklyn "based on rent and all the child costs that I've been incurring the past few years by myself" [NYSCEF #93, p. 83]. She testified that the rent for the marital residence "would go for around 9, $10,000 a month" [NYSCEF #95, p. 73]. She testified that there are "lots of nursing jobs available" in Western New York and that she could be working there in a "couple weeks" [NYSCEF #93, p. 84] and that there are "great" public and private schools for the children near where her family lives [NYSCEF #93, pp. 84-85].

The mother testified that she has not discuss the prospect of moving to Western New York with the children [NYSCEF #95, p. 38]. She conceded on cross-examination by the attorney for the children that it would not surprise her if the children did not want to move to Western New York because "[t]heir whole lives have been here. They are small children, this would be uprooting their life's [sic]. I know this would be a big decision for them" [NYSCEF #95, p. 39] but that that would not change her position on the need to move for financial reasons [NYSCEF #95, p. 40].

The father testified that if the mother is not granted permission to relocate to Western New York that he is "asking the court for the children to stay local, in the neighborhood, or a local neighborhood around [redacted] so they can stay in the same schools around their friends and around their family" [NYSCEF #93, p. 34]. He testified on cross-examination by the attorney for the child that if the mother does not relocate and finds a place to live nearby the marital residence that he is still seeking sole legal custody of the children [NYSCEF #93, p. 35].

The father testified that the parties' oldest child, J., who is thirteen (13) years old has "worked very hard to get his grades up" and that he would like J. to attend a certain private high school because it is prestigious and competitive. The father testified that he discussed the private school with the parties' son who, he contends, is excited about the possibility of attending it, but conceded that he did not discuss it was the mother "because there was a full order of protection" [NYSCEF #79, p. 22-23]. The court notes that the order of protection provides that the parties can communicate electronically about issues related to the children.

The father testified that there is a summer program designed to help students get into the private school. The mother testified that the son was "pretty happy" when he got into that summer program [NYSCEF #95, pp. 23-24] but that she opposed the son attending the summer program during 2024 because it would interfere with her vacation with the children [NYSCEF #95, p. 27] and that because of her work she has to plan vacation time well in advance so she was unable to change her vacation time so that J. could also attend this summer school option.

The father's oldest sister, Ms. E. O, testified that her daughter, who she contends is very close with J., is going to attend this private school for high school and that she participated in the summer camp between seventh and eighth grades to prepare for the entrance examinations [NYSCEF 396, p. 91].

The father testified that the tuition to this private school is $18,000 for each academic year and testified that "I will come up with $18,000 for my son to attend if he gets in and wants to go there" [NYSCEF #79, p. 25] by working "more hours, add more classes at the gym. And be more frugal" [NYSCEF #79, p. 26]. In support of his position that J. be allowed to attend this private school, the father testified that he had already implemented some of these "more frugal" practices by picking up more clients to train each week which generated additional income of "about $600 a week" [NYSCEF #79, p. 26]. He also testified that he was launching more fitness [*16]classes. While the father contends that he will, in effect, "find a way" to send the child to a private school he made no direct payment of child support to the mother in two (2) years until ordered to do so on an interim basis in July 2024.

After testifying that he would work more to send the child to private school, he then testified that one of his personal training clients would pay the tuition for the parties' child to attend the private school.

The father called a witness, Mr. R. O., who testified that he knows the father because the father has been his personal trainer for about ten (10) years [NYSCEF #95, p. 92-93]. He testified that he is a retired attorney and that for the last twenty (20) years he has been on boards for not-for-profits. He testified that he met the child J. once at a Christmas party at one of the gyms the father worked at and that he "may have met [the parties' children] a couple of other times" [NYSCEF #95, p. 95]. He testified that the father and the children have spent time at one of his homes in Connecticut "when I'm not using the house" [NYSCEF #95, p. 98]. Mr. R. O. did not testify that he has any direct relationship with the child, J.. Mr. R. O. testified initially that he would pay for the parties' oldest child to attend this private school for at least a year and then he testified that he is willing to pay the tuition for the parties' oldest child, J., to attend the private school for four (4) years of high school [NYSCEF #95, p. 97]. He testified on cross-examination that he was in a financial position to guarantee the total $73,000 of private school tuition for J. to attend the private school [NYSCEF #95, p. 108].

On cross-examination by the mother's attorney, Mr. R.O. testified that he was not certain he would be willing to pay for private school for all four of the parties' children but that he "certainly would be on this one" [NYSCEF #95, p. 99] in conjunction with "other charitable things I do" because he has "a certain amount of money that I give away for charity" [NYSCEF #95, p. 104]. Mr. R. O. clarified that the source of funds for this "scholarship" would be his personal funds, not from funds from his charitable trust [NYSCEF #95, pp. 106-108].

Mr. R. O. conceded on cross-examination by the plaintiff's attorney that he did not have much if any first-hand knowledge of the father's parenting or relationship with the children and that [NYSCEF #95, pp. 99-100]:

QUESTION: You met [the father] at [gym] on XX and XX?

ANSWER: Yes.

QUESTION: Were you aware that [the father] was fired?

Father's Counsel: Objection.

THE COURT: Overruled.

ANSWER: I didn't know.

QUESTION: And are you aware that there is an order of protection on behalf of my client against [the father]?

ANSWER: Actually, no.

QUESTION: Are you aware that there are allegations of [the father] having a drinking problem?

ANSWER: No.

QUESTION: And are you aware that [the father] admitted that he put an air tag on my client's car for the purpose of tracking where she goes?

THE COURT: Answer please.

ANSWER: No.

QUESTION: You described him as a very involved father?

ANSWER: Yes.

QUESTION: Do you know how often he sees his kids?

ANSWER: I don't, but I know I hear about it.

The father testified that during the marriage he paid for the property taxes for the marital residence and for the electric, gas and water bills [NYSCEF #91, p. 61-62]. He testified on cross-examination by the attorney for the children that the parties paid "[v]ery minimal rent" of only a "[c]ouple thousand of dollars" during the entire marriage because they lived in the marital residence owned by his family [NYSCEF #93, p. 35] which amounted to paying the property taxes for the marital residence. The mother testified that she was the one who paid the taxes from her personal account of approximately $2,100 annually [NYSCEF #93, p. 80]. She testified that ownership of the marital residence "was never discussed or disclosed to me" during the marriage [NYSCEF #93, p. 80]. She testified that both parties paid the auto insurance [NYSCEF #95, p. 51].

The father testified on cross-examination by the attorney for the children that during the marriage both parties contributed to grocery bills for the family and for clothing for the children [NYSCEF #93, p. 36] but that after he left the marital residence in September 2022 he never provided any direct financial assistance to the mother for support of the children after he left the marital residence [NYSCEF #93, pp. 37-38]. He testified, that he stopped contributing to grocery and babysitter costs for the children because he was spending approximately $200 a month on clothing for the children "because I had to leave the marital residence I was left with nothing and I had to get a whole new wardrobe for the children" [NYSCEF #93, p. 37].

It appears that the father takes the position that by taking the children to do activities he is providing them with financial support and that direct support to the mother is not necessary. In support, he testified on direct that he has purchased tickets for himself and the children to attend professional sports team games in the New York area and took several of the children to see a Taylor Swift concert [NYSCEF #93, p. 17]. On redirect by the mother's attorney, the father testified that in the month between the trial dates in June 2024 and July 2024 he provided the following financial support for the children:

We went to the movies last week at the Nighthawk movie theater. We went out to dinner following that movie. We also went to the New York Liberty game last Tuesday. We did some shopping. We got new bathing suits. We got stuff for the beach as well as routine groceries [NYSCEF #93, p. 56].

There does not appear to be any dispute that both parents are involved in the children's extracurricular activities. The father testified on direct that prior to the arrest related to the "gun incident" he coached several sports teams that the children participated in [NYSCEF #93, pp. 14-15] and that he attends the children's recitals, end of year concerts and parent-teacher conference and that he has chaperoned fieldtrips for the children [NYSCEF #93, pp. 15-17].

The mother testified that the parties' oldest child is involved in footfall. The parties middle two children — the twins — are both enrolled in basketball and gymnastics [NYSCEF #95, p. 35]. She testified that the parties' youngest child is "still trying to find his little niche" [NYSCEF #95, p. 35].

The mother testified that she has paid most of the costs associated with the children's [*17]extracurricular activities because the father will not commit to any consistent support unless she agrees to a final stipulation of settlement. The father concedes that he has paid only a little over $2,000 towards extracurricular activity costs for the four (4) children over the last two (2) years. The mother contends that the extracurricular activities far exceed this sum.

The mother testified that during the marriage the parties' routine was for her to take lead on medical appointments for the children [NYSCEF #93, p. 87]. The father did not dispute this testimony and he conceded on cross-examination that during the marriage the mother usually made the children's medical appointments [NYSCEF #91, p. 58] and that he facilitated those appointments by parking and waiting in the car at a hydrant nearby [NYSCEF #91, p. 58]. The mother testified that the father made no effort to come into the children's medical appointments with her and was satisfied with her sharing what happened at the appointment with him afterwards. The father did not dispute the mother's testimony that she always informs him about the children's medical status after appointments which she testified was "typical for us" during the marriage [NYSCEF #96, p. 19].

The father testified that he has taken the children to urgent care for treatment when they were in his care for illnesses after the parties separated in September 2022 [NYSCEF #91, p. 55-56]. The father could not remember if he notified the mother about these urgent care visits.

The mother testified that she has been the only parent at "all the major appointments" and that the father has "brought [the daughter] to one adjustment appointment" in the last two (2) years [NYSCEF #93, p. 96]. The father contends that one of the children has orthodontia and that he has attended two (2) of the orthodontia appointments [NYSCEF #91, p. 59]. She testified that the father has not been involved in any of the major medical, dental or orthodontia decisions for the children despite her emailing "him and let [sic] him know about it but there haven't been any questions about it since" [NYSCEF #93, p. 96].

The mother testified that, after the father's testimony in June 2024 and before her direct testimony in July 2024, the father attempted to change the parties' routine related to the children's medical care because he suddenly "tried to make appointments for [the children], for their dental, but I'm waiting for [the daughter]'s next appointment to do their annual. [sic] Medical he tried to make doctor appointments for them but they're not due until October" [NYSCEF 93, p. 97]. She testified that it surprised her that the father was suddenly trying to make appointments for the children on the "eve of court" when he had not done so during the marriage or litigation previously [NYSCEF #93, p. 96-97].

The mother testified that one of the children, K., has an IEP. On cross-examination the mother testified that she has informed the father of the outcome of the IEP meetings with the school [NYSCEF #96, pp. 20-21]. She testified that she and the father "had been having separate conferences with [K's] teachers" [NYSCEF #96, p. 21]. On re-cross by the attorney for the children the mother testified that K's IEP evaluation resulted in a recommendation for speech therapy [NYSCEF #96, p. 25].

The mother conceded that the parties' youngest son, M., had an IEP evaluation in June 2024 and that she informed the father that the evaluation was happening [NYSCEF #96, p. 22] but that it happened so late in the year that his evaluation was not completed before the end of the 2023-2024 academic year and that no recommendation had been made [NYSCEF #96, p. 26].

The mother testified that she had no concerns about any of the children being able to have the services needed for their IEPs, if any, if they moved to Western New York because there were service providers [NYSCEF #96, p. 28].

The mother testified on cross-examination that the parties do not communicate or consult with one another about the children's schooling because of the order of protection and that they each meet with the children's teachers separately [NYSCEF #96, p. 24]. She contends that she is the parent who has always made most the children's school decisions.

The father testified that the court should award him sole legal custody of the children "because I am a loving father and I can support them. And I will keep them in the house they group [sic] up in" [NYSCEF #91, p.54]. He has cross-moved for sole legal custody and that the mother be deemed the more monied-spouse and that she pay him child support and have liberal parenting time with the children.

The mother testified that she does not believe the parties can share legal custody because "[b]etween the AirTag, everything that has been going on with him it doesn't seem like we are going to get to a place where we can co-parent together and I can depend on him, considering the AirTag happened when I believed everything was fine and we had no issues. It doesn't feel like I can trust his judgment with everything" [NYSCEF #93, p. 87]. She further testified that she believes that the father encourages the children to withhold information from her which does not facilitate attempts to co-parent. Even though there was no objection at trial, the court declines to quote the testimony by the mother as to what the children allegedly said to her (see generally Kaleta v Kaleta, 208 NYS3d 426 [4th Dept.,2024]).

It is well-established that the trial court is given great deference to assess the character and credibility of parties (see Ramsey v Faustin, 189 AD3d 1421 [2 Dept.,2020]; see also Vaysman v Conroy, 165 AD3d 954, 85 NYS3d 536 [2 Dept.,2017]; see also Massirman v. Massirman, 78 AD3d 1021, 911 N.Y.S.2d 462 [2 Dept.,2010]).

It is well established that in determining custody, the Court must act as parens patriae and base its determination on the best interests of the children (see Kelly G. v Circe H., 178 AD3d 533, 117 NYS3d 171 [1 Dept.,2019]; see also Tropea v Tropea, 87 NY2d 727, 741 642 NYS2d 575 [1996], see also Finlay v Finlay, 240 NY 429, 148 NE 624 [1925]). In doing so, the Court must make a decision based upon the totality of the circumstances, (see Romero v Herrera, 183 AD3d 747, 121 NYS3d 875 [2 Dept.,2020]; see also Eschbach v Eschbach, 56 NY2d 167, 172 451 NYS2d 658 [1982]), which includes evaluating which parent will best provide for the child's "emotional and intellectual development, the quality of the home environment, and the parental guidance to be provided" (Thomas v Thomas, 221 AD3d 609 [2 Dept.,2023]; see also Matter of Baby Boy O., 181 AD3d 606, 121 NYS3d 93 [2 Dept.,2020]; see also Matter of Louise E.W. v W. Stephen S. 64 NY2d 946, 947, 488 NYS2d 637 [1985]).

In Mohen v Mohen, the Appellate Division of the Second Department, held:

There is "no prima facie right to the custody of the child in either parent" (Domestic Relations Law § 70[a]; § 240 [1][a]; see Friederwitzwer v Friederwitzwer, 55 NY2d 89; Matter of Ricco v Ricco, 21 AD3d 1107). "Factors to be considered include the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and the ability of each parent to provide for the child, [*18]the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent" (see Kaplan v Kaplan, 21 AD3d 993, 994-995, quoting Miller v Pipia, 297 AD2d 362, 364).

The Supreme Court properly identified the factors that were to be considered in rendering its custody determination. It also properly concluded that an award of the sole custody to one parent, rather than joint custody to both parents, was in the best interest of the child given the level of acrimony between the parties and their inability to function together in a manner necessary for a joint arrangement (see Pambianchi v Goldberg, 35 AD3d 668, 689; Granata v. Granata, 289 AD2d 527, 528)

Another significant factor in the determination of custody is which parent will assure that the child maintains a meaningful relationship with the other parent (see Navarro v Clarke, — NYS3d —, 2024 NY Slip Op 05802 [November 20, 2024]; see also Wright v Perry, 169 AD3d 910, 95 NYS3d 108 [2 Dept.,2019]; see also Matter of Wood v Lozada, 152 AD3d 531, 58 NYS3d 147 [2 Dept.,2017]). The Court recognizes that a "'[w]illful interference with a noncustodial parent's right to [parental access] is so inconsistent with the best interest of the child as to, per se, raise a strong probability that the offending party is unfit to act as a custodial parent'" (Nieves v Nieves, 176 AD3d 824, 827, 111 NYS3d 673 [2 Dept.,2019], citing Matter of Cooper v Nicholson, 167 AD3d 602, 605, 89 NYS3d 243 [2 Dept.,2018]). As such, the Court must negatively view any behavior or actions by a parent that limits access between the children and the other parent or attitude that appears to demean the other parent to the children (see Jarvis v Lashley, 169 AD3d 1043, 94 NYS3d 555 [2 Dept.,2019]; see also Frey v. Ketcham, 57 AD3d 543, 869 N.Y.S.2d 160 [2 Dept.,2008]; see also Zafran v. Zafran, 28 AD3d 753, 814 N.Y.S.2d 669 [2 Dept.,2006]).

In the seminal case of Braiman v Braiman, the New York Court of Appeals rejected joint or shared custody where the parties are in bitter conflict and do not agree to such an arrangement (44 NY2d 584, 378 N.E.2d 1019, 407 N.Y.S.2d 449 [1978]). The Court stated in Braiman that, "[i]t is understandable, therefore, that joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion. As a court-ordered arrangement imposed upon already embattled and embittered parents, accusing one another of serious vices and wrongs, it can only enhance familial chaos." Id. at 589-90 (internal citations omitted). Joint custody would not be an appropriate award in this matter given the high level of animosity between the parties and their inability or unwillingness to work together.

This Court must determine what is in the best interest of the child and make a custody determination that will promote the children's greatest welfare and happiness. The Court notes that the plaintiff has and continues to attempt to cultivate and facilitate a meaningful relationship between the children and Defendant including, as defendant's own witnesses testified, making efforts to ensure that the children would be able to see the father even after he engaged in behavior that resulted in a criminal action against him and a full stay away order of protection. Even at that time, the mother did not try to keep the children from seeing the father. Unfortunately, the father has repeatedly exercised exceedingly poor judgment that has included repeated violations of existing orders of protection in which she is the protected party [see generally DRL 240(1)(a) which provides that the court must consider the effect of domestic violence upon the best interests of children in custody].

The father's choice not to intervene in any way when he learned that his family was going to start an eviction action against the mother which resulted in an eviction notice being taped to the door of the marital residence where the children could see it certainly did nothing to foster the children's relationship with the mother. Instead, the father has repeatedly behaved to undermine the mother where he thought it may make him "look better" to the children or to achieve his goal of an award of legal custody.

The mother has demonstrated over and over throughout this litigation a deep commitment to trying to foster the relationship between the children and the father no matter the numerous incidents of domestic violence the father has perpetrated against her. The mother attempted to work with the father to establish a co-parenting relationship, but the father was unable or unwilling to do so and, in fact, engaged in behavior that resulted in more than one order of protection against him. It is also not disputed that there is another open criminal proceeding pending because the father violated an order of protection in favor of the mother. Despite all this, the mother continued to facilitate parenting time between the children and the father and there is no indication that she had done anything to disparage the father to the children.

The mother testified credibly that even after the father acknowledged to her that he was having an affair she agreed to and attempted a nesting arrangement with the father during which time the children remained in the marital residence and the parties set up a sleeping area in the finished basement of the marital residence. The father concedes that he stopped sleeping at the marital residence and began sleeping at his gym prior to being excluded from the marital residence because of the watch/gun incident. The mother credibly testified that it was only after the father confronted her about a dating relationship she herself had begun after he had already admitted to his own extramarital relationship that the father, in effect, started a vendetta to follow through on his verbal threat to her that he would make her life "a living hell" until she moved out of the marital residence. The mother, in effect, contends that while the father felt free to start another relationship, he was unable to abide by her also having another relationship after the parties separated and it was his choice to refuse to "nest" amicably.

The mother concedes that she must leave the marital residence; however, she asserts that she cannot afford to do so until the father pays child support that will allow her to find a comparable living arrangement for the parties' children. She contends that the only truly "comparable" residences would cost more than $9,000 near the marital residence.

The father's proposition that he has no responsibility for his family's actions is misplaced because despite knowing about the eviction he conceded that he did nothing to try to ameliorate the situation or to ensure that the children were not exposed to the eviction process. The goal of the eviction was for the father to reclaim the marital residence that he was excluded from by court order and that his sisters attempted to force a resolution of paternal custody in the marital residence.

The father's decision to step back and not get involve under the facts and circumstances presented here was tantamount to exposing the children to the litigation and his position that he cannot be responsible for any collateral exposure to the litigation that the children experienced because of the eviction because, he contends, he had no control over his family's decision to move to evict the mother from the marital residence is not supported by the record. Certainly, the father cannot know if he had any control over the family's decision to start the eviction against the mother because he concedes he did nothing to try to stop it. It appears to this court [*19]from the record and adjudging the credibility and testimony of the parties and witnesses that the eviction was commenced with the sole purpose of putting coercive pressure on the mother to force her into a settlement: in fact, the father's sisters who he called as witnesses conceded that the eviction was started specifically to force the mother to settle.

In fact, the father's oldest sister and the main trustee of the family trust that holds the marital residence, testified credibly that the family decided to serve an eviction notice on the mother not due to financial considerations or any other credible reason but rather specifically because the matter was "taking too long" to settle and they wanted to "help" the process along so that the mother would be forced to move out of the marital residence so that the father could move back into the marital residence. The father's position to do nothing while also refusing to pay any direct child support to the mother was clearly intended to place the mother in a more financially challenging position to gain what he perceived as an economic and negotiating advantage that may result in her having to accept a less favorable settlement proposal. Here, the defendant's financial coercion is not irrelevant to the custody dispute: the court must consider whether a parent who chooses to wield financial coercion to get their way or force a settlement is focused more on winning a disputed with the other parent or in the best interest of the children. The father seems unable or unwilling to recognize how his choice to use financial coercion against the mother to try to get his desired outcome in this custody proceeding reflects on his ability and/or willingness to share joint custody with the mother and demonstrates his willingness to place his agenda over the best interest of the children.

Here, the father appears unable to stop attempting to control the mother. His actions have resulted in Criminal Court orders of protection and, as of the time of trial, an ongoing proceeding related to a violation of one of those orders of protection, an act with the father conceded to on the record during this proceeding but acknowledging that he placed a tracking device on the mother's car while there was an order of protection in place ordering him not to use, inter alia, any form of electronic monitoring against the mother [Plaintiff's exhibit 3 in evidence].

The mother also testified credibly that the father has engaged in demeaning treatment of her in the presence of the children or when they could have seen or heard the father's behaviors. The record at trial also established that the father has access to sufficient financial means to treat the children to discretionary "extras" experiences such as professional sporting events and Taylor Swift tickets; however, he does so, while not making limited direct financial contribution to the children's daily support until ordered to do so recently. The father's position that he refused to pay direct support until the entire case was settled is extremely revealing of his position that it is ok to force his desired outcome by financially strong-arming the mother. The father's refusal to provide direct support placed the mother in an impossible position of having to consider moving out of the marital residence and find a new home for herself and the parties' four (4) young children to Western New York without knowing what, if any, support the father would be providing and is very revealing of the father's lack of respect for the mother. The father repeated efforts to use financial coercion to force the mother into settlement does not appear to demonstrate a willingness to foster a relationship between her and the children.

The record established that the mother was always the primary caregiver for the parties' children given the father's non-traditional work schedule that he concedes includes clients early in the morning and in the evenings before and after traditional working hours. The mother continues to be the parent primarily responsible for getting the children ready for school in the [*20]mornings and for evening routines. She testified credibly that the father is not consistent in ensuring that the children are ready for bed on the two afternoons a week when he has the children from afterschool until 8:30 p.m. and that when she returns home she often finds that the father has left her to do the laundry and dirty dishes from his time with the children.

The mother testified credibly that she is the parent who primarily makes the children's routine medical and dental appointments and the father conceded that it was the parties' routine that the mother accompanied the children to these appointments while he primarily waited in the car for convenience. The mother testified credibly that it was the parties' routine that she oversees these routine medical needs for the children and keeps the father informed of any decisions made. She also testified credibly that the parties have maintained the same routine for any IEPs for the children: she facilitates any appointments and intake and then informs the father of any recommendations after assessments are made. It appears that both parents take the children to extracurricular activities during their time with the children.

Finally, the court is concerned about the handgun found in the residence. It is not disputed that the father brought the handgun into the marital residence. The father's explanation that it belonged to his father as a way to minimize the handgun in the home with four (4) young children present demonstrates a lack of insight as to the fact that he participated in a criminal act and it was evident that he was unable or unwilling to accept responsibility for the impact of the handgun in the home and only viewed the incident as an act of retribution against him by the mother after he threatened to share contents from private communications he took off her electronic devices with others.

The attorney for the children did not substitute judgment for her clients who range in age from thirteen (13) years old to age six (6) and she requested that the mother's application to relocate to Western New York be denied.

The attorney for the children requested that the court award joint legal custody with the mother having final decision making after consultation with the father and residential custody to the mother [NYSCEF #98, p. 37].

The Court recognizes that the father is involved and engaged with the children when they are with him and that the children have a deep bond with the father and the father's family who the record established are actively involved with the children both in providing child-care during their parenting time with the father and attending extracurricular events and other social contacts. It is undisputed that the children are entrenched in their public schools and there does not appear to be any allegation by either party that the children are not doing well academically and/or socially in their public school environments. However, the father — and by extension his family — have made it impossible for the mother to remain in the marital residence and think that evicting her is the key to the father obtaining legal custody of the children. These are some of the factors that the Court must consider in determining the issues before the Court, including the mother's application to relocate from the marital residence.

This Court's decision is based upon the Court's own observations, credibility findings and the witnesses' testimony at trial.

The court cannot under the circumstances presented consider awarding joint legal custody of the children where there is this extensive history of orders of protection and clear violations of those orders of protection. Furthermore, the mother is the parent most likely to [*21]foster the relationship between the children and the other parent (see Navarro v Clarke, — NYS3d —, 2024 NY Slip Op 05802 [November 20, 2024]) and the testimony at trial established that she has been the primary caretaker of the children during their lives both on day-to-day decisions and education and medical decisions.

Under the totality of the circumstances, including all of the father's actions as detailed herein and the Court's determination that the father did not testify credibly and the mother did testify credibly, the plaintiff-mother is granted sole legal custody and final decision-making of the children subject to the provisions herein. The defendant-father shall not interfere with plaintiff-mother's custody or decision-making unless specified otherwise herein. The defendant shall have parenting time with the children as detailed herein below.

The children have a deep bond with both parents and the proposed relocation upstate would interfere with their relationship with the father despite the mother's suggestion that that father have extended parenting time with them during school breaks and holiday weekends. Relocation would mean that the children would lose out on regular and meaningful daily contact with the father and the extended paternal family that they are clearly deeply connected to and, at this time, the more appropriate remedy is for the father to pay direct child support so that the mother and the children can relocate out of the marital residence but also afford to remain in Brooklyn.

In fact, the mother conceded that she wants to remain in Brooklyn and only sought relocation to break free from the father's financial control and as a direct result of the father's efforts to attempt to financially manipulate the mother. The mother's application for relocation is unique in that it is less an application based upon a desire to go rather than a last-ditch effort to survive financially where the father—in collusion with his family—has attempted to create a financial scenario where it is nearly impossible for her to stay. The remedy here is not, at this time, to grant the mother the right to relocate to Western New York, rather, the appropriate remedy is to grant the mother the right to relocate with the children out of the marital residence given the father's actions making it clearly untenable and unsafe for her to remain in the marital residence and for the father to pay direct child support to enable her to find sufficient housing for herself and the parties four (4) children. The father's family suspended their efforts to evict the mother while the trial was ongoing; however, clearly, the testimony at trial established that they intend to evict her.

The father and/or his family acting in support of his asserted interests have made it impossible for the mother and the children to remain in the marital residence. The Court notes that the father has repeatedly violated orders of protection in favor of the mother.

Based on the foregoing, the mother's application to relocate to Western New York from Brooklyn is denied at this time: the court finds that such a relocation is not in the children's best interest. Based upon the facts and circumstances, not limited to the father's family's initiation of an eviction proceeding against the mother and the father's position that he has no ability to intervene in that eviction, the mother's application to relocate with the children out of the marital residence is granted.

The mother testified credibly about the logistical challenges of finding suitable housing she can afford for four (4) children in the same neighborhood of the marital residence and, together with the father's lack of credible representations as to his income, the Court will not [*22]limit the mother's request to relocate from the marital residence to the immediate neighborhood around the marital residence which the parties conceded is in a very much in demand location.

The mother's assertion that she is entitled to find a house with four (4) or five (5) bedrooms, a yard and access to use of a pool to maintain the standard of living that the children enjoyed during the marriage is not supported by the record or by case law. The children do not currently have their own rooms: evidence and testimony at trial established that the marital residence has semi-partitioned sleeping areas separated, in effect, by curtains for each child. The testimony at trial that the father will continue to have the option to live in the marital residence after the divorce either "rent free" or at a very "below market" cost that will certainly be an issue subject to discovery and exploration at trial on the financial issues; however, at this time the Court cannot require the mother to find alternative housing in the immediate neighborhood where the marital residence is located.

The reality of the situation is that the mother will have to find alternative housing suitable to the age and gender of the parties' four (4) children and she cannot be constrained to do so only, as the father wants, in the same neighborhood as the marital residence under the facts presented where the father has paid no child support and continues to obfuscate his income. The fact that the children may have to share bedrooms to stay in Brooklyn is not a basis to allow relocation to Western New York where the children are heavily entrenched with their routines and the father's family in Brooklyn more than in Western New York even though the mother's family lives there and they visit during the year.

While maintaining the status quo for children is a consideration, the Court notes that here it appears that throughout the marriage the parties enjoyed an elevated standard of living—at least when it came to their residence—that they may not have been able to afford otherwise due to the ability to live "rent free" in a home owned by the father's family. When the mother relocates, some of the children may have to share rooms, as many siblings do in New York City and elsewhere and the pool the family enjoyed belonged to a neighbor so there is no reasonable expectation that they will continue to have access to such amenities when they relocate.

The father's own witnesses testified that they had first-hand knowledge that the mother took steps to move out of the marital residence but was unable to complete the lease application for an option she found nearby because the father refused to agree to support. The Court found the father's older sister's testimony credible that the mother attempted to find alternative housing near the marital residence to provide the children stability and to foster the relationship between the children and the father but that the father undermined the mother's efforts to do so by refusing to agree to child support until there was a final settlement. The mother admitted that needs a "minimum" of $3,000 a month in support to find housing for herself and the children in Brooklyn. The written decision and order on the plaintiff's pendente lite application was issued today simultaneously with this decision. That decision provides sufficient pendente lite support for the plaintiff to relocate within Brooklyn.

The father's election to "treat" the children to various luxuries and events instead of help pay to feed them even though they spend most of their time in the mother's care places the financial burden on the mother and shows a lack of judgment by the father and is certainly not in the children's best interest.

The father engaged in a course of conduct and financial coercion designed to achieve what he wanted—to return to the marital residence to live there with the children—without actual regard for the best interest of the children. To achieve his goal he was willing to [*23]financially coerce the mother. Without the father's commitment to direct interim child support until the mother filed a pendente lite application nearly two (2) years after the commencement of the action, the mother had no option but to remain in the marital residence. Now that the mother will be allowed to leave the marital residence, the father cannot expect to continue to financially coerce the mother and control where she lives in Brooklyn or to limit her to remaining in the neighborhood where the marital residence where he is not being forthcoming about his income and only pays direct child support when ordered to do so. Based on the father's actions and litigation tactics, the Court has no alternative but to grant the mother the right to relocate with the children anywhere in Brooklyn she deems appropriate to allow her to find suitable and financially accessible housing for the children.

After the trial it is clear to the court that the sleeping arrangements at father's current housing are not conducive to expanding his parenting time to include overnights on a school-night. As such, the current parenting time schedule that the parties consented to in the February 6, 2024, so-ordered stipulation shall continue with the following expansion: the father shall pick-up the children from school on Friday afternoons instead of the mother dropping the children off to the father on Saturday mornings on his weekends and the father shall return the children to school on Monday mornings on his alternating weekends.

Once the father returns to the marital residence, which he testified he will do as soon as the mother moves out, the parenting time shall expand to include an overnight on Tuesdays so that the father picks up the children from school on Tuesdays and has uninterrupted parenting time with the children until he drops the children off to the mother at her residence on Wednesday evening at 8:30 p.m.^[FN7]

The holiday schedule detailed below shall supersede the regular parenting schedule. The Court notes that neither party provided the Court with a detailed parenting time scheduled or a proposed holiday schedule despite the Court directing them to do so on the record.

The parties shall alternate New Year's Day, Martin Luther King weekend, President's Day weekend, February school recess, Spring school recess, Memorial Day weekend, Juneteenth, Independence Day weekend, Labor Day weekend, Columbus weekend, Thanksgiving weekend, Winter school recess, New Year's Eve and any religious holidays as detailed herein-below.

Commencing with Christmas 2024, the father shall have parenting time with the children and the parties shall alternate holidays thereafter as detailed below.

Commencing in 2025, each parent shall have two (2) weeks of uninterrupted parenting time with the children each summer. In ODD YEARS, the plaintiff shall notify the defendant, via e-mail, no later than May 1 of which two (2) consecutive weeks she will take the child during summer vacation and the defendant shall notify the plaintiff of which two (2) consecutive weeks he will take the children by May 15. In EVEN YEARS, the defendant shall notify the plaintiff of which two (2) consecutive weeks he will take the children no later than May 1 and the plaintiff shall notify the defendant of which two (2) consecutive weeks she will take the children by May 15.

The defendant shall have parenting time with the children on Father's Day weekend from [*25]Friday at 6:00 p.m. to Sunday at 6:00 p.m. and the plaintiff shall have parenting time with the children on Mother's Day weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m. This shall supersede the regular weekend parenting time schedule.

The defendant and plaintiff shall have dinner parenting time with the children on their respective birthdays from 5:00 p.m. to 8:30 p.m.

The parent who does not have regularly scheduled parenting time with the children on any of the children's birthdays shall have parenting timing for three (3) hours with the children if the date falls on a school-day ^[FN9] and five (5) hours with the children if the date falls on a weekend or a day when there is no school ^[FN10] . The intent is that all the children be able to celebrate their sibling's birthday with both parents on any child's birthday.

Either parent may take the children out of the Tri-State area for vacation during his or her parenting time. The parent who is traveling with the children shall provide the other parent with the address and itinerary, including copies of any round-trip air-plane travel tickets, by e-mail no less than seven (7) days prior to departure so that each parent knows where the children will be during any such travel.

The plaintiff shall retain the children's passport(s) if any. If the children do not have passports, the plaintiff shall be permitted to obtain any passports as the parent with sole legal custody. The plaintiff shall notify the defendant if she obtains passports for the children. The defendant shall not travel internationally with the children without the plaintiff's written consent or Court order.

Except in the event of a medical or governmental emergency, each party shall give twenty-four (24) hour advance notice in writing via e-mail to the other party if the visitation cannot take place as ordered herein. If the defendant is more than thirty (30) minutes late to pick-up the children for his parenting time, without advance notification, the plaintiff may deem the defendant's failure to comply with the parenting schedule as a forfeiture of the entire block of parenting time until his next block of parenting time is scheduled to begin in accordance with the parenting schedule herein.

To accommodate the parties' work schedules, the children's school schedule or extracurricular activity schedules, the parties may temporarily modify the parenting schedule herein, on consent, if the modification is confirmed by both parties by e-mail.

Each party shall provide the other with a working cell-phone number where he or she can be reached during the time when he or she has parenting time with the children. Defendant shall [*26]provide the plaintiff with a current address, cell phone number and e-mail address and must notify her within seventy-two (72) hours of any changes to this information.

Neither parent shall prejudice the children against the other parent or impair the children's regard for the other parent. Neither party shall permit the children to refer to any other person as "mom/mother" or "dad/daddy" or change the children's last name without consent of the other parent.

Each parent will immediately notify the other regarding any emergency involving the children for which medical attention is sought.

The defendant shall have reasonable access to all age-appropriate medical, dental and psychological/mental health records of the children. The plaintiff shall notify the defendant of all medical appointments and school events and extracurricular activities. The defendant shall be permitted to attend all age and gender appropriate doctor's appointments. The defendant shall not make or take the children to doctor's appointment absent emergency or written consent of the plaintiff. In the event of an emergency during the defendant's parenting time he may act to ensure the child's immediate health and to protect the child, but he must immediately notify the plaintiff and must continue to contact her until he is successful. Likewise, the plaintiff shall immediately notify the defendant of any major emergency requiring emergency room care or admittance to any health care service center or hospital. The defendant shall notify hospital personnel and any treating doctors that he is not the custodial parent and that the plaintiff must be notified regarding medical decision-making absent an emergency. If a child is admitted to a hospital or receives emergency medical treatment, the plaintiff shall notify the defendant immediately by telephone call and text message and the defendant shall be allowed to attend and visit the child during treatment and recovery. At all times, the plaintiff, in addition to all her rights as custodial parent, shall have final decision-making over the children's medical care, except if the defendant is required to make an immediate medical decision in an emergency occurring during his parenting time with the children.

The plaintiff shall provide the defendant with the contact information, including name, address, and telephone number, of the children's health care providers and the children's health insurance information. The plaintiff shall provide the defendant with any information regarding changes to the children's health insurance.

The parents shall notify the other by e-mail before the other parent's next scheduled parenting time begins of his or her knowledge of any medical appointments, illness(es), accidents or any other circumstances or events that may affect any of the children's health or physical or emotional well-being.

Each parent shall be permitted to speak with the children when the children are not with them on the telephone or by other electronic means every day for reasonable, age-appropriate amount of time between 7:00 p.m. and 8:00 p.m. unless the children have a regularly scheduled activity or extracurricular activity or as otherwise agreed to in writing between the parties. The court notes that the mother testified that she works until 8:00 p.m. so if that schedule remains the telephone/electronic communication between the children and the mother while in the father's care may take place between 8:00 p.m. to 9:00 p.m. If the children occasionally have an activity that conflicts with this time, the time can be modified. The children shall have the right to daily [*27]reasonable telephone access and contact with both parents irrespective of which parent has parenting time with the children on that day. The Court notes that here it appears that the children are all an age where they can communicate by telephone independently.

The defendant is hereby authorized to access all information related to the children's progress in school, including grades and deportment, and he shall be permitted to attend all school functions, irrespective of which parent may have parenting time with the children on that day, and to meet with the children's teachers. Defendant shall not interfere in the final educational decision-making of the plaintiff for the children.

The defendant shall be listed as the children's non-custodial parent on all school registration and information forms so that he will receive all information regarding the children's school activities and events directly from the children's school.

The defendant shall not interfere with the children's school or after-school extracurricular activities. Neither parent shall hinder, in any way, the other parent from attending any public event that the children is involved in, including, but not limited to sporting event, religious ceremony, school graduation or extracurricular competition or public event. All school notices shall be sent via e-mail to the father the same day received by the mother. If she is unable to send them the same day they shall be sent the next day. The father shall be entitled to attend all parent-teacher conference and shall be consulted on all major issues affecting the children including major educational and welfare of the children and the mother shall make all final decisions related thereto.

A considerable amount of testimony at trial related to the issue of the parties' oldest child applying to X, the private, religious high school. The court recognizes that the father created a situation which has placed the mother and the son in conflict which could have long-term implications on their relationship as well as on the relationship with the father. The father unilaterally decided that the oldest child should take the test and apply for this elite, religious private school without discussing the option with the mother or seeking her input. The father vaguely testified that while he is not able to afford basic child support for the four (4) children but vowed under oath to increase his earnings and to, in effect, work harder for the benefit of the oldest child to attend this school without any consideration as to financial impact of his decision not to provide any direct child support to the mother.

The father also, conveniently, did not address what would happen with the other three (3) children in terms of attending private schools in the future or whether this opportunity was only one that he was willing to "work harder" to achieve for the oldest son. The father made no commitment for the financial support of the other children.

In including the oldest son in planning and discussions about the private, religious high school, the father set expectations for that child that attending this school was financially viable for the family despite his testimony that he cannot afford direct basic child support.

The presentation of a witness who is a long-term client of his personal training business who took the stand and testified initially that he would pay for one (1) year at this private, religious school for the oldest child revealed that he had little personal relationship with the family and little knowledge about the family dynamics. The court notes that it was only on the stand that this witness testified that he was willing to paying for four (4) years for the oldest child to attend the private, religious school but was not, understandably, willing to commit to [*28]paying for the other three (3) children to attend similarly situated private school showed the court that the father lacks credibility and insight into proper parenting skills, setting expectations for the children and a total disregard for fostering the relationship between the children and the mother how he excluded entirely from his unilateral decision that the oldest child should attend the private, religious school. The court notes that even if the father's personal training client agreed to pay for the private, religious high school tuition now it is unclear how the defendant could enforce such generosity of the client, if necessary, in the future if the goodwill ended where the client stated that he would use his personal funds—not trust funds—if he agreed to "sponsor" the oldest child's tuition. Inasmuch as the mother is awarded legal custody, she will be making final decisions related to the children's schooling after consultation with the father.

As noted previously, to assure that the mother is financially able to relocate out of the marital residence, the court issues simultaneously today, December 18, 2024, a separate pendente lite decision and order which, inter alia, orders the defendant-father to pay to the plaintiff-mother the sum of $2,727.00 monthly for basic child support together with pro rata statutory add-ons. This decision and that decision must be read in conjunction.

Settle an interlocutory judgment of custody and parenting time, on notice together with a copy of this decision with notice of settlement within thirty (30) days.

This shall constitute the decision and order of the Court.