This matter is before the Court for determination, after trial, of custody and access issues pertaining to the parties three unemancipated children, incident to the parties' pending divorce action. The Court presided over a trial as to custody/access in this matter on December 5 and 6, 2022. Trial as to the financial issues in this matter is scheduled on February 24, 2023. After considering the testimony of the parties, who were the only witnesses to testify at trial, the documents admitted into evidence, and the procedural history of this case, the Court hereby makes the following findings of fact and reaches the following conclusions of law:

The parties were married on August 11, 2013, in Huntington, New York. There are three (3) unemancipated children of the marriage: S.S. (born [Redacted]), S.S. (born [Redacted]), and S.S. (born [Redacted]). Plaintiff commenced this action on February 15, 2021, by filing a Summons and Complaint for dissolution of marriage pursuant to DRL § 170(7). Plaintiff and the three children have resided in the marital residence ([Redacted]) since 2018. Plaintiff is a registered nurse and has been employed full-time at [Redacted] since November 2021. Defendant vacated the marital residence on December 30, 2020 (Tr. 53:1—6, 173:22—174:1). He presently resides at [Redacted]. Defendant is employed as an account executive at [Redacted]; he is also the owner of [Redacted].

The parties, both represented by counsel, appeared at a Preliminary Conference before Court Attorney-Referee [Redacted] on May 26, 2021. Pursuant to the Report of the Attorney-Referee (NYSCEF Doc. No. 10) and the Preliminary Conference Stipulation/Order ("PC Order") signed by both parties and entered by the Court (Loehr, J.) (NYSCEF Doc. No. 11), the parties agreed to, inter alia, joint legal custody (joint decision making) with residential custody to Plaintiff. The parties also agreed to list the marital residence for sale, that Defendant would pay $700.00 per week in child support to Plaintiff commencing on May 26, 2021, and that Plaintiff waives all claims for spousal maintenance. However, the PC Order reflects in a separate section that maintenance is unresolved.

Despite the apparent resolution as to custody, the sale of the home, and maintenance, both parties have engaged in subsequent motion practice for failure to adhere to the PC Order. On September 23, 2021, Plaintiff filed an Order to Show Cause seeking to vacate the provision of the PC Order regarding waiver of maintenance claims, and granting Plaintiff and the three children exclusive use and occupancy of the marital residence. NYSCEF Doc. Nos. 18—25. The parties attempted to resolve these issues and, ultimately the Report of Court Attorney-Referee [Redacted] recommended that, pursuant to an appearance on January 7, 2022, "[b]ecause maintenance is statutory and is presumptively awarded if the payee spouse qualifies, and because New York has a strong public policy in favor of resolving matrimonial issues on the merits, it is the recommendation of the undersigned that the preliminary conference stipulation and order be amended to reflect that maintenance is "unresolved" pending a trial or settlement of the action." NYSCEF Doc. No. 65 at 2. The Report of Court Attorney-Referee [Redacted] also states that, while parties agree to joint legal custody, they could not agree on an access schedule for the children. The Report further recommends that an Attorney for the Children be appointed to resolve parenting issues and allegations of domestic violence. Id.

Accordingly, the Court (Loehr, J.) appointed Arlene Gold Wexler, Esq. as Attorney for the Children (AFC). NYSCEF Doc. No. 67. On January 11, 2022, Defendant filed an Order to Show Cause seeking an order directing Plaintiff to restore his parental access to the three children. NYSCEF Doc. Nos. 71—72. On January 13, 2022, the Court (Loehr, J.) entered an [*2]Order of Investigation with respect to Plaintiff's allegations that the children suffered physical, verbal and/or emotional abuse perpetrated by Defendant. NYSCEF Doc. No. 74. Specifically, Plaintiff alleged that Defendant is verbally and emotionally abusive towards the children; physically struck one of the children; and allowed one or more of the children to be in the presence of one or more male children who exposed themselves to the parties' female children. Id.

Based upon testimony offered during trial, the Court was made aware that, upon conclusion of the Order of Investigation, the allegations were deemed as unfounded. See Tr. 73:6—10. Defendant again sought to have his parental access restored. The Court notes that, at no point during these proceedings, has there been a Court order in place preventing Defendant from access/visitation to the children. The parties appeared before the Court (Loehr, J.) on March 31, 2022, at which time they entered into an Interim Order on Consent ("Interim Order") that sets forth an interim access schedule as follows: Defendant shall have access to the children every Tuesday and Thursday from school pick-up to 7:00 p.m., and on alternative weekends from school pick-up on Friday to Sunday at 7:00 p.m. This schedule was to commence on April 1, 2022, and beginning May 1, 2022, Defendant's weekend access extended to Monday school drop-off. NYSCEF Doc. No. 79. The Interim Order further states that neither party shall disparage the other party in the presence of the children. Id.

Defendant filed an Order to Show Cause on July 21, 2022, seeking an order to compel the sale of the marital residence pursuant to the PC Order. NYSCEF Doc. No. 81—93. By Order of this Court dated November 30, 2022, this motion was referred to trial for determination. NYSCEF Doc. No. 155.

At an appearance before this Court on October 3, 2022, the parties were directed to exchange outstanding discovery no later than October 11, 2022, and appear for trial commencing December 5, 2022. A Note of Issue was filed on October 12, 2022.

On November 22, 2022, Defendant filed an Order to Show Cause seeking to vacate the Note of Issue and trial dates to allow for a forensic evaluation. NYSCEF Doc. Nos. 135—140. The parties and Attorney for the Children were heard on said motion on November 29, 2022. By Order of this Court dated November 30, 2022, Defendant's motion was denied. NYSCEF Doc. No. 154.

The custody portion of the trial took place from December 5 through December 6, 2022; both parties rested on the record with respect to custody and visitation. Tr. 301:20—302:1. Following the trial, on January 13, 2023, Plaintiff filed a Motion seeking, inter alia, an order (a) adjudging the Defendant in civil and/or criminal contempt of Court for his willful violation of the August 2021 PC Order; (b) directing Defendant to immediately comply with the PC Order; (c) directing Defendant to immediately pay to Plaintiff the sum of Nine Thousand Eight Hundred Dollars ($9,800.00) as and for basic child support arrears for a period of fourteen (14) weeks. NYSCEF Doc. Nos. 158—163. Parties appeared before this Court on January 19, 2023, on said motion and at which time the Court set a briefing schedule. NYSCEF Doc. No. 174. On January 31, 2023, parties filed a proposed order on consent to resolve said motion—the Court entered the order on February 1, 2023. NYSCEF Doc. No. 183.

The parties married on August 11, 2013, and have three children: S.S. (born [Redacted]), S.S. (born [Redacted]), and S.S. (born [Redacted]). Presently, all three children are enrolled [*3]full-time in public school in [Redacted]. Plaintiff testified that she has resided at [Redacted] in [Redacted] with the parties' three children since 2018. Prior to that, the parties and their children resided at [Redacted] in [Redacted]. Prior to the commencement of the divorce proceedings, Defendant vacated the marital home on December 30, 2020, because the parties were separating. Defendant moved to [Redacted] for approximately one year—from January 2021 to December 2021. He returned to [Redacted], where he currently resides at [Redacted]. Plaintiff maintains that, pursuant to the PC Order, Defendant consented to joint legal custody with residential custody to Plaintiff.

Plaintiff attended Lehman College and graduated in May 2021; thereafter, she worked per diem as a nurse. She began working as a registered nurse at [Redacted] in November 2021, after the youngest child, S.S., began attending school full-time in September 2021.

Plaintiff stated that, prior to when Defendant vacated the marital home, she obtained a full stay away Order of Protection against Defendant in March 2019 in her favor. That order terminated in August 2019. During the period that the Order of Protection was in effect, Plaintiff stated that Defendant did not stay in the marital home and that he did not support the family. Plaintiff stated that she obtained a second refrain from Order of Protection in March 2021—that order is still pending, and Plaintiff testified that she also filed a violation petition relative to that order, which remains pending in [Redacted] Family Court.

Plaintiff testified that after Defendant vacated the marital home in December 2020, he visited the children every other weekend, and would pick them up around 9:00 a.m. and drop them at home at 7:00 p.m. the same day. Defendant did not exercise overnight visits, although Plaintiff did not object to overnight visits. Plaintiff testified that pursuant to a directive of the Court, Defendant's overnight visits commenced in December 2021. Specifically, Plaintiff stated that the parties appeared before Court Attorney-Referee [Redacted] in December 2021, and "she gave the directive for [Redacted] to move to [Redacted] closer to the kids and to commence keeping the kids the entire weekend instead of returning them every evening." Tr. 49:19—22. Thereafter, Plaintiff stated that Defendant chose not to see the children during the period December 2021 through April 2022 because "he would not see the kids until he got the additional Sunday overnight that he wanted." Tr. 147:20—21. It was only after the parties entered into the Interim Order, as of April 1, 2022, that Defendant recommenced his parenting time. The parties do not dispute, however, that Plaintiff and the children were in quarantine due to COVID starting on approximately December 23, 2021.

Plaintiff stated that Defendant withheld Christmas gifts from the children from December 2022 until April 2022, despite telling the children "every chance he got", Tr. 39:17, via Facetime and telephone that he had their gifts, and that Defendant stated he would not give the children the gifts until he physically saw them. Plaintiff further stated that Defendant told the kids that they "needed to say a prayer to God for them to be able to see their Dad again." Tr. 148:22—23.

Plaintiff described that each of the children is enrolled in extra-curricular activities after school and on weekends. Presently, the children are enrolled in gymnastics and dance. Plaintiff takes them to/from these activities and has been paying for the associated costs since the date of commencement. Plaintiff stated that she notified Defendant that she enrolled the children in these activities and asked for his assistance in taking them to/from said activities, but he refused to do so during his parenting time. Plaintiff testified that prior to commencement of this action, both parties agreed to enroll all three children in a variety of extra-curricular activities including gymnastics, music, piano, soccer, and swimming. Plaintiff did not dispute, on cross [*4]examination, that, she has enrolled the children in extra-curricular activities since the date of commencement without procuring Defendant's consent.

Regarding education, Plaintiff testified that the school emailed both parents recommending that each of the three children receive academic help after school. Plaintiff described that "[i]t is for students that are selected based on their needs and areas that they can benefit from or improve on within their education and, yeah, it was recommended." Tr. 80:14—17. The academic help is offered at no charge and on certain days—the school dictates the days on which the academic help is scheduled. Plaintiff testified that Defendant refused to enroll the children in academic help—despite the school's recommendation—because the scheduled times occurred on his access time (Tuesdays/Thursdays after school). Consequently, Defendant withheld his consent to enrolling the children in the recommended after-school help and, as such, the children did not receive the academic help. When Plaintiff was asked on cross-examination whether Defendant suggested that he switch his parenting time to Mondays/Wednesdays "so the girls could actually attend these academic programs and not interfere with his parenting time," Tr. 109:9—19, Plaintiff answered in the affirmative and went on to testify that she could not accede his request because it conflicted with her work schedule.

Plaintiff testified that the children have attended the same day camp ([Redacted]) since the summer of 2021. The camp term is approximately seven weeks. Plaintiff defrays the tuition for the camp by volunteering during the full term as a nurse. She testified that the total costs for summer 2022 for all three children was $13,000, and that Defendant did not contribute to the camp tuition. She stated that he did contribute to summer camp costs in summer 2020 and in prior years. Plaintiff stated that she notified Defendant that she was registering the children for [Redacted], and did not seek his consent. She stated that he did reach out to her to discuss less expensive options for summer camps.

Plaintiff testified that she is seeking the Court's permission to relocate from [Redacted] to [Redacted] so that she can be closer to her family—specifically, her sister and her mother. She stated, "It would be very helpful to have just people available, family members available to be supportive, if there is ever any need for assistance with the kids. Also, for me to feel safer, because I don't feel currently feel safe alone here." Tr. at 32:11—15. The Court took judicial notice of the distance between [Redacted] and [Redacted] (the home of Plaintiff's family member), using Google Maps, as between 34.2 and 35.5 miles. Tr. 88:15—89:3. When asked why she feels unsafe, Plaintiff stated that Defendant's car wash business is near her home and she "feel[s] like [she] is frequently being watched... the cameras that are in the house that were supposed to be removed are all still up which further supports my fears." Tr. 145:9—17. Plaintiff testified that, were the Court to grant her application, she would be willing to assist with travel one way.

When asked about decision making, Plaintiff testified that she is amenable to shared responsibility with respect to education, provided that she can have the final say. Plaintiff testified that she attends parent-teacher conferences while Defendant has joined approximately one time. She also stated that Defendant learned to read above a kindergarten reading level about a year and a half ago. When asked on cross-examination whether Defendant's involvement in the children's academics would be beneficial, Plaintiff stated that "it would be a hindrance to their education because I don't think he has the capabilities of teaching them appropriately." Tr. 83:11—24.

Plaintiff stated that she can share decision making as to medical, dental, psychological, [*5]and psychiatric issues, provided that she has the final say, in part, given her medical training. Plaintiff testified on cross-examination that she discussed with Defendant that the children should receive therapy. He did not agree that the children should receive therapy and ultimately, Plaintiff identified a therapist with availability for all three children and provided that information to Defendant. When asked on cross-examination whether she admitted to enrolling the children in therapy over Defendant's objection, Plaintiff stated, "Correct. Because my older daughter was saying that she wanted to kill people and herself, so yes, I did." Tr. 126:20—25.

With respect to disciplining the children, Plaintiff described that she uses timeouts, communication, and reward systems whereas Defendant "tends to discipline in a very aggressive way. Through the use of yelling, physically putting his hands on the kids through threatening, through intimidation." Tr. at 35:17—20. Plaintiff stated that she cannot share in the responsibility of discipline with Defendant.

Plaintiff further seeks final decision making as to religion. She testified that she takes the children to/from church and Defendant does not, although he does not object to the children attending church. Plaintiff testified that she would like to continue to have the option to travel internationally with the children, who have U.S. passports, and seeks cooperation of Defendant in renewing passports as needed.

When asked on cross-examination to describe the hurdles of coparenting, Plaintiff stated that Defendant demonstrates harmful behavior such as "[i]ntimidating the children, speaking to them about the divorce He tells the kids they are going to go in front of the judge, so now they are afraid of judges. He curses in front of them and tells them I am a piece of shit. His violent behavior, hateful and aggressive behavior towards me and towards them are all reasons." Tr. 74:22—75:3; see also Tr. 151:3—24 ("this past week [Defendant] told the kids that they were going to lose their Dad if they said certain comments to whoever questions them"). Plaintiff testified that, during the course of the divorce proceedings, the parties met separately with a parent coordinator on approximately six occasions for the purpose of coordinating with respect to the children.^[FN1]

With respect to the current access schedule, Plaintiff requested that, should Defendant refuse to bring the children to their extra-curricular activities, his access time be limited to Tuesdays only. Plaintiff also stated that Defendant has refused to bathe the children during his Tuesday/Thursday parenting time, and likewise, refused to supply shampoo and diapers. Plaintiff did not raise any other issues with respect to the current access schedule.

With respect to holidays, Plaintiff stated that the children spent Thanksgiving 2022 with Defendant (Thursday morning until Monday morning) and Defendant did not permit her to speak with the children on Thanksgiving Day. She requested that the parties alternate school recesses and holidays including mid-winter break and spring break.

Defendant testified that the parties married after an approximate two-year engagement and have always resided in New York. He described that, with respect to each of their three children, the parties shared in newborn parenting responsibilities, including feeding, bathing, and attending doctor's appointments. At the time their first child was born, Plaintiff was not [*6]working, and Defendant was employed by [Redacted], where he remains employed. He was also running his business, [Redacted], which he described as a small hand car wash that he opened in 2012; he was also involved in two to three real estate investment properties. Tr. 202:15—204:2. When their second child was born, Defendant stated that the parties hired a full-time nanny to assist with the children.

Defendant stated that, consistent with Plaintiff's testimony, he vacated the marital home on December 30, 2020, because Plaintiff asked for a six-month separation; they agreed to "regroup on March 31." Tr. 172:14—18. He moved in with a friend who lived at [Redacted] in [Redacted]. He stated that he was staying in the living room of that apartment and paying rent to his friend in the amount of $2,000 per month starting in/around April 2021. Plaintiff testified that he was then served with the Summons and Complaint on March 13, 2021, at [Redacted].

Prior to when the Interim Order went into effect in April 2022, Defendant testified that the access schedule followed by the parties was Tuesdays/Thursdays after school until 7:30 p.m. and alternating weekends with a drop-off time of 7:30 p.m. on Sundays. Defendant explained that he did not exercise all of his overnights during the period of January 1, 2021 through December 31, 2021, because he was staying in a living room and did not feel comfortable exercising overnights with the children given his then-accommodations. He did, however, exercise some overnights when he took the children on weekend trips. Defendant stated that he drove each way between [Redacted] and [Redacted] to exercise his parenting time; he testified that he even had to borrow a car at some point and "made everything work to spend time with [his] children." Tr. 180:21—22. When asked on cross-examination why he did not secure an apartment during 2021, he stated, "[b]ecause I was trying to get my house back. We were trying to strike a deal so that I can figure out my life." Tr. 212:3—4.

With respect to the period of December 23, 2021 through March 31, 2022, during which time Defendant stated that he did not see his children, Defendant testified that Plaintiff and the children were in quarantine through January 7, 2022. On January 7, the parties had a court appearance during which Plaintiff informed the Court of the allegations that were the subject of the Order of Investigation (dated January 13, 2022). Defendant testified that he was not allowed to see the children during the pendency of the investigation—from January 7 through February 15. During the February 15 appearance before Judge Loehr, Defendant testified that parties were directed to fashion an access schedule and "[he] said to [his counsel], can we negotiate a little? Unfortunately, their side did not want to negotiate. So I said, we have to negotiate, right?" Tr. 217:22—24. Defendant testified that it was only after he filed a motion for emergency access that he saw the children on March 31, 2022. When asked on cross-examination whether there was an Order from the Court that prevented his access to the children during this time, Defendant stated "No". Tr. 220:10—12. When asked, "isn't it true that you would not see the children because you did not have the access that you wanted", Defendant stated, "I was trying to negotiate." Tr. 220:13—15.

Defendant testified that he presently resides at [Redacted] in [Redacted] in a three-bedroom apartment. On Tuesdays/Thursdays, Defendant described that he leaves work at approximately 1:00 p.m. to pick up the children from school. They reach home at approximately 4:15 p.m. He does homework and reading with the children, and he prepares snacks and dinner. Defendant stated that he does not have sufficient time to bathe the children before 7:00 p.m., when Plaintiff picks them up. Defendant testified that he has offered suggestions to Plaintiff on this issue, such as, for example, "You leave their pajamas in their bag, I'll give them a shower, [*7]and then you come pick them up at 7:45." Tr. at 183:21—23. However, he stated that Plaintiff has not agreed to allow the additional forty-five (45) minutes of parenting time on Tuesdays/Thursdays.

On his weekend parenting time, Defendant testified that he picks up the children from school on Fridays and they go on playdates, have dinner, and he gives the children a shower and puts them to bed. On Saturdays, Defendant stated he has breakfast with the children and takes them to their gymnastics class from 10:30 a.m. to 1:00 p.m. He stated that he bathes the children every night on the weekends. He drops the children to school on Monday mornings. Defendant stated that his employment has not interfered with the present access schedule.

Defendant testified that both parents take the children to pediatric and dental appointments. Plaintiff stated that his employer has offered him flexibility so that he can attend to his children as needed, including taking time off when one of his children has been ill. He described an incident where he brought S.S. to the emergency room for treatment late at night because Plaintiff needed to stay with the other two children at home. Defendant maintains that both parties are able to communicate with each other regarding instances where the children are sick.

Defendant stated that he has attended parent-teacher conferences for each of the children and that he was scheduled to participate in Zoom conferences with each of their teachers the following day after trial. When asked about the school offering academic help for the children, Defendant testified that S.S. and S.S. have difficulty in reading and math; S.S. has difficulty in math only. He stated that the children receive help during the school day "to address their academic difficulty", Tr. 192:5—7, and that he has no objection. In fact, he stated that he has discussed the academic help with the children's teachers. He described the after-school academic help as "just an add-on." Tr. 193:5—6, 195:15—17, 25. Defendant testified that he "had no problem agreeing to the after-school academic program" and that he "was trying to [ ] switch dates so that [he] did not lose parenting time that I was allotted." Tr. 231:20—22.

Regarding extra-curricular activities, Defendant stated that he would support enrolling the children in extra-curricular activities provided that it adheres to a financial budget. He stated that he can make joint decisions regarding activities for the children with the Court having the final say if the parties cannot reach an agreement.

Defendant denied that he discussed with the children the "pluses and minuses of the access schedule in place." Tr. 256:1—4. He further denied that he discussed with the children that they would have to speak to a judge about their preferences; that he has ever cursed at his wife in front of the children; or that he discussed with the children that they were in danger of losing a parent. When shown AFC Exhibit 8 (Family Offense Petition, filed December 23, 2021), Defendant denied that he "often informs [the] children that he 'hates' [Plaintiff], further informing them that [she is] a 'piece of shit.' "

When asked about Plaintiff's application to relocate to [Redacted], Defendant stated that relocation would hinder his parenting time and father/daughter relationship, and that it would be too far away. For example, he stated he would need to leave his home in [Redacted] at 5:00 a.m. to get the children ready and dropped off to school in [Redacted] on Monday mornings.

Defendant acknowledged that he signed the PC Order reflecting his consent to Plaintiff having residential custody of the children and that he was represented by counsel when he signed said document; however, he stated that he did not understand what he was signing. He further acknowledged that he filed an Affidavit in Opposition (Pl. Ex. 33) stating that parties agreed to [*8]"Joint Legal custody of the minor children with residential custody to the mother."

Defendant testified that his application to the Court concerning the access schedule is that the children alternate weeks with each parent such that the access time is 50/50. He further stated that he believes this proposed access schedule is feasible with his current work schedule. Defendant stated that he would encourage the children to foster a relationship with Plaintiff, and that he could coparent and communicate with Plaintiff. When asked if he would "accept anything less than 50 percent residential custody of his children," Defendant stated no because he "feel[s] it's in the best interest of my children to continue to foster a loving and caring relationship." Tr. 199:16—22.

At the commencement of trial, the Court raised the issue of a Lincoln hearing. The AFC indicated that she would leave the issue to the discretion of the Court given the ages of the children (8, 7, and 6). She further stated that there may have been attempts to influence the children. Upon the conclusion of trial, the parties and AFC did not make an application for a Lincoln hearing as to any of the children.

The decision to conduct a Lincoln hearing to determine the best interests of the child in a custody dispute is within the discretion of the trial court. See Matter of Desroches v. Desroches, 54 AD3d 1035, 1036, 864 N.Y.S.2d 551, 553 (2d Dept. 2008). Here, given the ages of the children, that there was no application from the parties or the AFC, and the Court's determination that a Lincoln hearing would not offer anything of value to the extensive proof that has been presented at trial, the Court declined to conduct a Lincoln hearing as to any of the children.

"In any child custody dispute, the court's paramount concern is to determine, under the totality of the circumstances, what is in the best interests of the child." Matter of Olea v. Diaz, 194 AD3d 721, 722, 143 N.Y.S.3d 583 (2d Dept. 2021); see Eschbach v. Eschbach, 56 NY2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 (3d Dept. 1982). There is "no prima facie right to custody of the child in either parent." DRL § 70[a]; DRL § 240 [1][a]. Factors to be considered include, inter alia, "(1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent's relative fitness, including his or her ability to guide the child, provide for the child's overall well-being, and foster the child's relationship with the noncustodial parent; and (5) the child's desires." Matter of Montebello v. Montebello, 184 AD3d 565, 566, 123 N.Y.S.3d 539 (2d Dept. 2020) (internal quotation marks omitted); see Matter of Olea, 194 AD3d at 722. Importantly, the parent's ability to place the children's needs above his or her own in fostering a continued relationship with the non-custodial parent is an appropriate consideration. Lohmiller v. Lohmiller, 140 AD2d 497 (2d Dept. 1998); Janecka v. Franklin, 150 AD2d 755, 756 (2d Dept. 1989).

The weight to be afforded to each of the various factors is within the discretion of the trial court and requires an evaluation of testimony, character, and sincerity of all the parties involved. See Bourne v. Birstow, 66 AD3d 621 (2d Dept. 2009). Because custody determinations depend to a great extent upon assessment of character and credibility, deference is accorded to the trial court's credibility findings which shall not be disturbed unless they lack a sound and substantial basis in the record. See Matter v. Dolan Masterton, 121 AD3d 979, 980, 995 N.Y.S.2d 123 (2d Dept. 2014).

Both parties offered testimony at trial and were subject to direct and cross-examination [*9]by opposing counsel and the AFC. The Court recognizes that both parties are loving towards their children and able to provide a suitable home environment for the children. Plaintiff presented as calm, thoughtful in her answers—including with respect to the disposition she is seeking, and knowledgeable as to each of the children and their respective needs. Her answers were clear and consistent, and the Court did not identify any actual or apparent contradictions in her testimony. Plaintiff appeared to answer each question truthfully; she was forthcoming and cooperative on cross-examination even when posed with difficult questions.

Defendant presented as genuine and sincere in his desire to gain greater parenting time with the children. He conveyed a desire to be an involved and present father to his three daughters. The Court, however, observed that he was often evasive in his responses to questions and that, over the course of two days of trial, his testimony reflected meaningful contradictions. This observation is evident, for example, in his answers concerning his decision not to see the children during January 2022 to April 2022; his decision to withhold consent to enroll the children in after-school academic help; and his current application seeking 50/50 residential custody of the children despite prior evidence that he agreed to Plaintiff having residential custody of the children.

As described, the Court may in its discretion consider a variety of factors that bear upon the best interests of the children in a custody determination. Based on the facts and evidence proffered, the following non-exhaustive factors are of particular relevance here: stability of the parents, which parent has historically acted as the primary caregiver, the ability to provide for the intellectual and emotional needs of the children, demonstrated willingness to prioritize the needs of the children over the parties' own needs, willingness to foster a relationship with the non-custodial parent, and prior disregard of Court Orders.

Throughout this proceeding, Plaintiff has demonstrated a desire to maintain stability as to the children's home environment, schooling, and activities in an effort to minimize any adverse impact of this litigation to the children. Plaintiff has undoubtedly acted as the custodial parent since the date of commencement and consistently provided for the children's emotional and intellectual needs. For example, upon identifying a risk of harm based on statements made by S.S., Plaintiff immediately sought psychiatric therapy for all three children. She has provided a stable environment for the children, demonstrated age-appropriate behavior and communication to the children, and she has participated regularly in their school, extra-curricular, and summer activities. Plaintiff has balanced working full-time as a nurse while also caring for children and providing financial support. With respect to financial support, the Court observes that Defendant neglected to pay court-ordered child support payments for a period of approximately fifteen (15) weeks. Such disregard of Court Orders, absent any argument or showing of an inability to pay, reflects poor judgement and a failure to prioritize the best interests of the children.

Of great concern to the Court is a historical pattern of behavior whereby Defendant acts in a retaliatory manner that contravenes the best interests of the children. For example, upon vacating the marital home in December 2020, Defendant moved to [Redacted] and did not return to [Redacted] until he was directed to do so by the Court approximately one year later. During the interim period, he did not exercise regular overnight visits with the children. The Court credits Defendant's explanation that he believed his separation from Plaintiff to be temporary up until he was served in this proceeding—on March 13, 2021. Additionally, from approximately December 23, 2021, until April 1, 2022, Defendant did not see his children. Setting aside the [*10]period from approximately December 23, 2021, to January 7, 2022, when Plaintiff and the children were in quarantine, there is absolutely no reason—no Court Order or otherwise—that prevented Defendant from seeing the children in person. In fact, Defendant testified that he was attempting to negotiate access time during that period. When asked about this time period, Defendant blamed Plaintiff's counsel and maintains that counsel stood between himself and his children. It was also during this period that Defendant held hostage Christmas gifts intended for the children. Such reprisals are not in the best interests of the children.

Regarding after-school academic help, Defendant admitted that he refused to enroll the children—even after engaging with each of their teachers and providing testimony that each child experiences academic difficulty in reading and/or math—because it conflicted with his parenting time. Defendant's decision to withhold consent on after-school academic help was unreasonable and demonstrated a failure to provide for the children's intellectual needs.

The Court is further compelled by testimony of Plaintiff, as corroborated by the petition filed in Family Court, that Defendant disparages her in front of and to the children, and uses inappropriate language when doing so. Plaintiff offered testimony describing Defendant's recent conversations with the children concerning this litigation and trial—going so far as suggesting that the children may "lose a parent."

There is a vast difference in the parties' approach to parenting, and the parties have demonstrated an inability to resolve issues involving, for example, therapy for the children, academic help, enrollment in extra-curricular activities, and summer camp. Defendant's open animosity towards Plaintiff and Plaintiff's counsel, coupled with retaliatory behavior towards Plaintiff that negatively impacts the children is a clear impediment to joint custody and/or joint decision making.

Accordingly, the Court finds that it is in the best interests of the children that the parties shall have joint legal custody with residential custody to Plaintiff. The Court directs that the parties adhere to the access schedule as set form in the Interim Order (dated April 4, 2022):

• Defendant shall have access with the children every Tuesday and Thursday from school/camp pick up (or 8:00 a.m. if no school or camp) through 7:00 p.m.

• Defendant shall have access with the children on alternating weekends from school/camp pick up on Friday (or 8:00 a.m. if no school or camp) through Monday at school/camp drop off (or 8:00 a.m. if no school or camp).

In the event that one party cannot exercise their access time with the children, the other party shall be given the right of first refusal.

The parties shall alternate major holidays during each year, with the parties reversing the holiday schedule in each subsequent year. Accordingly, for the year 2023, Plaintiff shall have access time with the children during Thanksgiving holidays (Thanksgiving Day at noon through Sunday); Plaintiff shall have access time with the children from Christmas Eve to Christmas Day at noon and Defendant shall have access time from then through New Year's Eve at noon.

Plaintiff shall have the children on Mother's Day and her birthday, and Defendant shall have the children on Father's Day and his birthday regardless of which parent would otherwise have the children according to the schedule set forth herein. Both parents shall have access to the children on the children's birthdays; the one with physical custody being afforded the first choice of whether he/she wishes to have the child(ren) the morning of the birthday or the evening. If the parties cannot agree to a time for the other to see the child(ren) on his birthday, then the child(ren) shall be delivered to the other no later than 3:00 p.m. on the birthday and [*11]returned no later than 7:00 p.m. Whatever arrangement is made for the first birthday that follows this decision shall apply to all subsequent birthdays.

Both parties shall be and hereby are afforded unfettered access to the medical, dental, school, and other records pertaining to the children. Each parent is to immediately advise the other in the event a medical need, routine or emergent, arises. In the event that a child takes ill for a period in excess of forty-eight (48) hours, both parents shall have access to the child regardless of which parent then enjoys physical custody. Similarly, in the event a child is hospitalized for any reason, both parents shall have the right to visit with the child at any place where the child might then be confined, subject only to the rules and regulations of the institution where the child is confined, and the best interest of the child as determined by his/her treating physician.

The Court directs that, following meaningful consultation with Defendant, Plaintiff shall be given final decision-making authority as to all major matters including medical / dental / psychological / psychiatric treatment, religion, education, and extra-curricular activities. Meaningful consultation shall mean that each party shall convey to the other party his/her opinions on whatever matters affecting the children need to be resolved via Our Family Wizard, setting forth the issue that needs to be resolved and that parent's proposed resolution at least three (3) days in advance of such decision being made.

Final decision on that issue shall not be made until after consideration of the other parent's position, and a written response to same is made. The parties are urged to consider deferring to the professional in whatever field requires determination. In case of medical emergency, each parent shall immediately, or as soon as practicable, notify the other. In such cases, the parent who has custody of the child is authorized to make emergent decisions consistent with the recommendations of the then present medical provider.

The Court denies Plaintiff's request to relocate to [Redacted] based on a determination that doing so would be detrimental to Defendant's parenting time and therefore, contrary to the best interests of the children. See Matter of Tropea v. Tropea, 87 NY2d 727, 739, 642 N.Y.S.2d 575, 580—581 (2008). Defendant presently works at [Redacted], the children have been living in [Redacted] since 2018, and attend school in [Redacted], and there is no evidence before this Court that relocation would enhance the children's life socially or educationally. Furthermore, relocation would interfere with Defendant's weekday parenting time, requiring Defendant to either spend time at a third-party location from pick-up until 7:00 p.m., or requiring that the children to be in the car for an extended time should Defendant choose to bring them to his home in [Redacted].

Accordingly, the parties are directed to maintain their respective primary residences within a 15-mile of the children's school.

The parties are directed to engage in meaningful consultation as to extra-curricular activities and summer camp for the children, and mutually agree upon a financial budget for said activities. Subject to resolution of the financial issues in this case, the parties shall be responsible for paying for such activities and camp based on their pro rata share. Each parent will be responsible for transportation to and from school and extra-curricular and social events during the periods he/she has custody. Each parent will also be responsible for ensuring that [*12]homework and other school assignments are completed as assigned and for transportation to and from extra-curricular activities, unless they agree otherwise.

The parties are directed to use Our Family Wizard for any and all communications. Each parent shall notify the other of such events as PTA meetings, parent-teacher conferences, and the like. In the event a child brings home a bulletin or other announcement from, or relating to, their school or extra-curricular activities, each parent shall forward a copy of such item to the other sufficiently in advance of any scheduled event, but in no event later than forty-eight (48) hours after receipt, so that the other may, if so advised, attend or participate in the event or activity. Verbal announcements shall be shared in a similar fashion.

Prior to discussing any vacation, trip, event, or activity in which the children's participation might affect the other parent's right to contact or visit any or all of the children, the parent seeking to allow the children to participate in such trip shall consult with the other so that the parties may fashion a mutually agreeable resolution designed to minimize the effect of such trip, activity, or event on the other parent. Neither parent is to take the children out of New York State for a period in excess of forty-eight (48) hours without advising the other of his/her intent to do so and without providing a phone number and address for the non-traveling parent to reach the other, if necessary, at least forty-eight (48) hours in advance of such travel. No travel outside the tri-state region (New York, New Jersey, Connecticut) shall take place unless the traveling parent provides the other with a full written itinerary including mode of travel, names of persons traveling, housing or hotel identification, and, if applicable, flight information. International travel for vacations is permitted with at least two (2) weeks-notice and only to a country which is a signatory to the Hague Convention. Plaintiff is to maintain possession of the children's passports and other important documents (e.g., birth certificates, social security cards).

Neither party is to unreasonably interfere with the children's desires to communicate with the other parent when not in that parent's custody. The children's surname is not to be changed from "[Redacted]" absent the express consent of both parties, application by the child(ren) for such change to a Court of appropriate jurisdiction, or the child's marriage. Neither party shall initiate, encourage, or allow any person other than the parties hereto to be referred to by the children as "Father/Dad/Daddy" or "Mother/Mom/Mommy" (or similar terms). Neither party shall disparage the other party in the presence of the children, or allow any third party to do so.

The foregoing constitutes the Decision and Order of this Court. The provisions hereof shall be incorporated into the proposed Judgment of Divorce and Findings of Fact at the conclusion of this matter.

The parties shall appear on February 24, 2023 at 9:30 a.m. in Courtroom 1002 to commence trial as to the financial aspects of this case.