This case is not published in a printed volume and its disposition appears in a table in the reporter.
Attorney for Plaintiff: Attorney for Defendant: AUDREY M. SAGER, ESQ. KENNETH J. WEINSTEIN, ESQ.,
SAGER & GELLERMAN100 GARDEN CITY PLAZA.
Jeffrey D. Lebowitz, J.
Plaintiff, D.Z., and Defendant, C.P., appeared before this Court in a trial concerning custody of their only child, B.P.
The trial lasted over a period of six days from the middle of October to late November, 2006. During this time, both parties testified. In addition, testifying for the plaintiff was a former nanny, D.J., James Cellars, CSW, a forensic evaluator appointed by this Court (Gavrin, J), and plaintiff's mother, Dr. Y.X.
In addition to the defendant, plaintiff called Ms. M.M., a teacher a teacher at Tutor Time, the pre-school the parties' daughter has attended and Dr. P.S., the spouse of defendant's medical partner.
Plaintiff marked eleven exhibits for identification, nine of which were introduced into evidence; defendant marked twenty exhibits for identification of which eleven were introduced into evidence.
At the end of trial, after numerous attempts by the Court to resolve this matter, counsel for both parties, as well as the Law Guardian for B.P., Mr. Eugene Crowe, submitted memorandums on behalf of his client.
As a result, the Court renders the following Findings of Fact and Conclusions of Law:
The parties, after only a brief courtship, were married on June 14, 1998. Their daughter B.P., the sole issue of the marriage, was born on January 10, 2002. The plaintiff, after a period of marital difficulty, filed for divorce on September 29, 2003.
Both parties are doctors. Defendant is a physician who received his medical degree in 1985 from China, his qualifications to practice in this country in 1992 and a medical license in this state in 1996, all prior to the date of marriage.
Defendant testified that when the parties were married, he was self-employed as a physician and also worked with Jan Nan Medical Group in Brooklyn, New York. In 1999, he completed a fellowship in general gastrointerology. He now is in private practice with a specialty in gastrointerology. He also has hospital privileges, as well as attends to nursing home patients.
Plaintiff came to this country in June of 1998, shortly before the parties married. A 1983 graduate of the Gyangzho Medical College, she received her medical license in China in 1998, and was licensed in this country in 2001. In 2002, plaintiff began a residency in internal medicine at North Shore University Long Island Jewish Hospital in Forest Hills. In July of 2005, she completed her residency and received her New York State medical license. After a one year fellowship, she began work as a geriatric attending physician at St. Vincent's Hospital in New York in 2006.
Dr. Z. testified that while the parties were still together, the great bulk of the child rearing was done by her, even after she resumed her studies. Indeed, she testified that Dr. P. had begun sleeping at his mother's apartment, located in the same two-family home, during B.P.'s first year of life so as to not be disturbed by his daughter during the night. The plaintiff contended that her husband cared little for the child because he considered her worthless because she was not a male, a view she claimed was typical in Chinese society.
Dr. Z. claimed that soon after the child was born, circumstances surrounding the marriage began to deteriorate, much of which was caused by her husband's controlling and demanding nature. When she suggested marriage counseling, Dr. P. rejected his wife's efforts. Dr. Z. indicated that there were incidents when her husband pushed and slapped her, though there were no arrests made and specifics were limited in this regard.
In particular, plaintiff claimed that in September of 2003, she was verbally threatened by her husband, slapped and pushed and the police were eventually called. However, there was no arrest because she claimed she did not want to harm the father of her child.
An incident between the parties which occurred on Thanksgiving Day, November 27, 2003, precipitated the police being called, the plaintiff being arrested and a full order of protection being issued against her. At that point the plaintiff left the marital home and the parties have not lived together since that time. The incident in question involved a struggle for the child and plaintiff biting Dr. P. on his arm. Pictures were introduced as to the bite and Dr. P. testified that he was treated in the emergency room of New York Hospital Center in Flushing.
Plaintiff testified she believed that there was an arrest for the Thanksgiving Day incident in 2003 so that her husband could gain leverage in the divorce proceedings which had been commenced two months prior to the event in question. Plaintiff testified that her husband had set up the events in question so as to precipitate her arrest, indicating that he had a tape recorder in his shirt pocket during the course of the incident and that he only went to the hospital by ambulance so as to document what was otherwise a very minor injury. In keeping, he took photographs of the injury.
Because of the order of protection, plaintiff originally had supervised visitation, however, since May of 2004, the parties have had a joint custodial arrangement. That visitation schedule essentially allows the mother to have parental access time on Mondays, Tuesdays, Saturdays and alternate Sundays, and the father to have parental access on Wednesdays, Thursdays, Fridays and alternate Sundays. This scheduling arrangement remains in effect through the date of this decision. While this arrangement has not been without problems, testimony indicated that the joint custodial arrangement remains intact and the child has continued to grow and thrive under this arrangement.
As to some of the problems that have arisen since the joint custodial arrangement began, there was testimony that the child on occasion made disparaging remarks to the mother and the grandparents. Plaintiff testified that her daughter was mimicking, to a certain extent, words and actions expressed by her father.
Dr. Z. testified that during the period of time after the parties separated that she felt that the child had an inordinate number of colds and that her teeth had deteriorated, blaming much of the problem on the father's unwillingness to take a juice bottle from the child when she went to sleep, as it was easier that way to get her to fall asleep.
Testimony indicates that the parties enrolled the child in Tutor Time. After an initial difficulty because of her lack of English, the child improved over time and was doing remarkably well at the time of trial. She was now fully conversant in English and had made many friends.
Dr. P. testified that he has been actively involved in the care of his daughter. He denied that he was ever disappointed at the birth of his daughter because she was not a male child. His present work schedule allows him the ability to come home and spend time with her for lunch as well as to spend time with her on Wednesday afternoon when he does not see any patients at his office. Dr. P. stresses that the arrest on Thanksgiving of 2003 demonstrates the anger and hostility that plaintiff has ...