This case is not published in a printed volume and its disposition appears in a table in the reporter.
Attorney for Respondent Eric Gansberg, Esq.
Attorney for Petitioner Marc Berk, Esq.
Law Guardian: Jody Bahar, Esq.
Catherine M. DiDomenico, J.
Petitioner Father and Respondent Mother were married on September 20, 1996. There are three children of the marriage: V.A. (DOB 4/14/97), D.A. (DOB 9/1/00), and A.A. (DOB 11/16/01). The parties separated in 2004. Petitioner Father initiated the divorce action. Respondent Mother alleges that the marriage ended due to acts of domestic violence committed by Petitioner Father. In the divorce proceeding, Petitioner Father was represented by counsel and Respondent Mother proceeded pro se. By Order dated May 31, 2006, and in a stipulation of settlement incorporated therein, the parties agreed to joint custody of the children with physical residence to Respondent Mother (hereinafter "the Order"). Approximately four months later, on September 8, 2006, Petitioner Father filed this Modification Petition.
In his Modification Petition, Petitioner Father claims that the Order should be modified to grant him custody because Respondent Mother's home is no longer safe or appropriate for the children. Specifically, Petitioner Father claims that, on September 3, 2006, Respondent Mother beat the child A.A. leaving a bruise on the child's right hip and that a similar incident involving the child V.A. occurred nine months earlier. Petitioner Father further alleges that Respondent Mother has a violent temper and has broken appliances and punched holes in the walls of the home in the presence of the children. He claims that, Respondent engaged in similar acts toward him, including hitting him with a telephone and menacing him with a knife. Petitioner Father also claims that the children do much better in school under his charge.
This Court ordered an investigation by ACS and a Custody Investigation and Report with Recommendations from the New York City Department of Probation ("DOP"). A Forensics Evaluation and Report with Recommendations was ordered through Family Court Services and submitted by Dr. Semel. By Order dated September 19, 2006, the children were permitted to reside temporarily with Petitioner Father pending completion of these investigations and the fact-finding hearing. In response to questioning by a DOP officer, V.A. recalled an incident in which Respondent Mother's then boyfriend made her eat a chicken cutlet off the floor. This event was confirmed by a sibling. Respondent Mother was not home at the time of this incident. Petitioner's allegations against Respondent Mother with respect to hitting the children were unsubstantiated by ACS after investigation.
A fact-finding hearing was held on April 17, 2007, April 19, 2007, April 20, 2007, August 27, 2007, and September 5, 2007. Petitioner Father and Respondent Mother testified. Each party called additional fact witnesses to testify as to their respective fitness and parenting abilities. Petitioner Father called Roseanne D., Thomas L. and Mary A.. Respondent Mother called Sandra K. and Jessica C. The Court credits the testimony of these witnesses, but notes that at least one of these witnesses had little recent personal information to offer. See, e.g. Testimony of Roseann D., Tr. 4/19/06 p.6.
Petitioner Father introduced the following documents into evidence: V.A.'s school records (Petitioner's 1); D.A.'s school records (Petitioner's 2); Investigation and Report by the Department of Probation (Petitioner's 3); ACS Investigation Report dated September 19, 2006 (Petitioner's 4); and ACS Investigation Report dated November 14, 2006 (Petitioner's 5).
Respondent Mother introduced the following documents into evidence: Stipulation of Settlement (Respondent's A); Dr. Semel's Forensic Evaluation and Report (Respondent's B); Department of Probation Investigation and Report (Respondent's C); and a handwritten card prepared by the child D.A. (Respondent's D).
An in camera interview was conducted with the subject children in the presence of all counsel, including the Law Guardian, but in the absence of the parents. Written summations were submitted by the parties. Petitioner Father and the Law Guardian urge this Court to sustain the Modification Petition. Respondent Mother ...