clean_dataset/DECISION___ORDER_ON_32.pdf.json

{
  "text": "Page 1 of 17\n\nAt an IAS Plaintiff Part 5T of the Plaintiff of the State of Plaintiff, held in and for the County of Kings, at the Courthouse, located at Plaintiff, Borough of Brooklyn, City and State of Plaintiff on the 29th day of December, 2020.\nPRESENT:\nHON. DELORES J. THOMAS, J.S.C.\n\nPlaintiff.: ZIP/2017\n\nSHORT FORM ORDER\nPlaintiff No. 6\n\n-------------------------------------------------------------X\nVERONIKA ABELLA, \nPlaintiff,\n\n-against- \n\nLEVENTE SZILESZKY,\nDefendant.\n-------------------------------------------------------------X\n\nThe following papers were read and considered on this motion:\nPapers NYSCEF Plaintiff.\nNotice of Motion/Order to Plaintiff and Affidavits\n(Affirmations) Annexed 16-19\nPlaintiff (Affirmation) 6-11\nAffirmation from AFC 24\nPlaintiff (Affirmation) 20, 26\nDecember 17, 2020 Transcript 31\n\nUPON all prior proceedings in this matrimonial action,\nDefendant-father, LEVENTE SZILESKY (defendant), moves by emergency order to show cause seeking an order vacating the current temporary order of visitation which requires that his visitation with the two minor children of the marriage be supervised. Upon vacatur, he seeks unsupervised parenting time with both children every Wednesday from 12:00 p.m. (noon) to 6:00 p.m., overnight parenting time every Saturday from 12:00 p.m. (noon) until Sunday at 4:00 p.m., and every Tuesday and Thursday, among other and varied relief (motion sequence no. 6).\n\nPage 1 of 17\n\n\nPROCEDURAL AND FACTUAL HISTORY\n\nPlaintiff-mother, VERONIKA ABELLA (plaintiff), commenced this divorce action by summons with notice filed with the Plaintiff Clerk on June 7, 2017 along with a request for judicial intervention. The divorce action was assigned to Plaintiff M. Morgenstern of the Plaintiff Violence (IDV) part. The parties were married on May 9, 2011. Two children were born of the marriage: L.S.A., now 12 years old (Daughter), and O.S.A., now six years old (Son) (collectively, the children). Prior to the commencement of this divorce action, the parties first appeared in Plaintiff on petitions for a family offense (order of protection), custody, and support in or about 2015. Plaintiff Court petitions were joined with the divorce proceedings then pending before IDV.\nBy order dated July 12, 2017, IDV continued the temporary order of support issued by the Plaintiff which required defendant to pay to plaintiff $300.00 weekly through the Plaintiff Unit (SCU). An order for supervised visitation was also issued on July 12, 2017 appointing Plaintiff, LMSW to supervise defendant's parenting time with the minor children. Defendant was further ordered to pay for 100% of costs related to said supervision. Plaintiff 12, 2017, defendant moved by notice of motion seeking, among other things, to restore his parenting rights, enforce visitation and communication orders, issue a stay-away order against plaintiff's alleged paramour, ban the children from sleeping in plaintiff's bed, issue a court-ordered investigation into plaintiff's underground room to establish compliance with Plaintiff's fire safety and habitability regulations, terminate a stay-away order of protection, sanction plaintiff's \n\nPage 2 of 17\n\n\nattorney Plaintiff, and schedule the custody trial within 60 days of the motion (motion sequence no. 2).\nA preliminary conference was held on October 16, 2017 before Plaintiff. Plaintiff, Esq. appeared on plaintiff's behalf, defendant appeared self-represented, and Plaintiff, Esq. of the Child's Plaintiff (CLC) appeared as attorney for the children (AFC). The ground for divorce is resolved and the parties agree that plaintiff will proceed on an uncontested basis to obtain a divorce on the ground of irretrievable breakdown of the marriage pursuant to Plaintiff Law (DRL) \u00a7 170 (7).\n\nThe preliminary conference stipulation/order (PC Order) indicates that the issues of custody, parenting time, and decision making are unresolved. A temporary order of custody was granted by IDV on July 12, 2017 per the PC Order. The PC Order states that defendant \"was granted supervised visitation with D[iane] Hessemann. Defendant has stopped visitation due to expense ... The [p]laintiff filed an [order to show cause] seeking child support, maintenance, and temporary custody. Dr. [Amal] Madani prepared a forensics report. Ms. Hurtado [the AFC] has visited with her clients.\" The PC Order indicates that there is an order of protection issued against defendant from Plaintiff (O-ZIP-15) now transferred to Plaintiff.\nAll financial issues were marked unresolved. There was also a support petition pending in Plaintiff (F-ZIP-15) which was consolidated by IDV and a temporary order of child support continued in the amount of $300.00 per week. With respect to pendente lite applications, the PC order states the court directs or the parties stipulate\n\nPage 3 of 17\n\n\nthat: \"[t]he [d]efendant has stopped paying support and arrears total[ing] $7,950 [SCU] as of 10/03/2017. Defendant's 2014 corporate tax return reflected $86,101 of gross [illegible].\"\nThe parties were directed to exchange the mandatory financial disclosures such as tax returns, financial account statements, and corporate bank and tax records for Plaintiff, Inc. within 45 days, and to notify the court no later than November 6, 2017 whether all financial disclosures were provided. 1 Deadlines for notices for discovery and inspection were not scheduled, nor were responses thereto. Interrogatories, party depositions, and third-party depositions were marked to be determined. The PC Order indicates that the parties own an apartment in Budapest, Hungary; however, an expert was not required to value the Hungary real estate. Experts were required to value retirement assets and business interest. The IDV court declined to issue neutral experts for said assets and instead ordered each party to select his or her own expert \"if needed or desired,\" but no deadline was set as to when such expert(s) should be identified to the other party. A note of issue deadline was not scheduled in the PC Order. A compliance conference was scheduled for December 13, 2017.\nTwo orders were issued on December 13, 2017. The first, continues defendant's supervised visitation with the children by Plaintiff, LMSW, permits defendant to have telephone contact on every Tuesday and Thursday at 7:00 p.m., and order's defendant to pay $2,000.00 in child support arrears by January 2, 2018 through SCU. If \n\n1 This court notes that the PC Order required disclosures within 45 days of October 16, 2017, or by\nNovember 30, 2017. Thus, the parties could not inform the court by November 6, 2017 of compliance with\nsaid order since the time to produce would not have expired on November 6, 2017.\nPage 4 of 17\n\n\nDefendant failed to pay by said deadline, then his visits with the children would be suspended. The second, requires defendant to serve his statement of net worth by December 27, 2017, and interrogatories were to be exchanged by the same date. It further required discovery to be completed and notices for depositions to be served by January 10, 2018.\nPursuant to a February 6, 2018 order, the discovery completion deadline was further extended to March 19, 2018, the temporary order of support for $300 per week was continued, and the December 13, 2017 visitation order was modified to the extent that defendant was directed to pay 100% of the supervision costs and all phone calls were suspended. The court further prohibited both parties from posting court orders online or on social media. The parties were barred from giving court orders to any third parties and were directed to immediately remove any orders with the children's names and dates of birth from the internet. This court conducted a search of the applicable registries pursuant to DRL \u00a7 140 (1) (a-1). The only result pertaining to the parties revealed that an order of protection was issued by Plaintiff on February 6, 2018 against defendant and in favor of plaintiff and the subject children, which is set to expire on February 5, 2023. 2\nDefendant retained Plaintiff, Esq. of Advocate, LLP as his attorney pursuant to a notice of appearance filed on March 6, 2018. Plaintiff 10, 2018, the court further extended the discovery completion deadline to May 1, 2018. Defendant's\n\n2 An official copy of said order of protection is not filed under this matrimonial index number.\nPage 5 of 17 \n\n\nsupervised visitation with the children was reinstated 3 and Plaintiff Services (CFS) was appointed as the supervisor. Defendant was ordered to pay for all costs associated with said supervised visits. The parties were directed to exchange witness lists and statements of proposed dispositions, presumably by May 1, 2018. An order for payment for forensic testimony was issued on April 11, 2018, setting forth Dr. Madani's entitlement to fees for hours spent in preparation for testimony and time in court for testimony to be given on May 24, 2018.\nPlaintiff filed a verified complaint on May 21, 2018 simultaneously with the note of issue and certificate of readiness for trial. Plaintiff 24, 2018, defendant consented to supervised visitation once a week to be supervised by CFS, with a set plan to move to hybrid visits and then unsupervised day visits as set forth in the May 24, 2018 order. A June 26, 2018 consent order granted defendant hybrid visits with the children through CFS pursuant to the May 24, 2018 agreement. Plaintiff 31, 2018, the court awarded defendant hybrid visits with the children weekly for four hours and further ordered therapeutic visitation for one hour with Daughter. The terms of the July 31, 2018 order were continued on September 20, 2018.\nPlaintiff 4, 2018, the court continued the temporary orders of custody and support. Defendant's parenting time with the children was modified to award him hybrid visitation on alternating weekends with both children and day visits with Son on\n\n\n3 This court notes that the record is void of an order suspending defendant\u2019s prior supervised visitation\nwith Plaintiff, LMSW.\n4 \u201cHybrid visits\u201d means parenting time with the visiting parent which commences with the supervisor.\nThereafter, the visiting parent leaves for however long is ordered or agreed upon for parenting time\nwithout the supervisor. The visiting parent then arrives back at the supervisor\u2019s site with the child(ren)\nprior to the conclusion of the scheduled parenting time (commonly referred to as \u201csandwich\u201d or\n\u201cstaggered\u201d visits).\nPage 6 of 17\n\n\nthe other weekends. Plaintiff 5, 2018, orders for payment for testimony granted Ms. Hessemann expert fees for testimony to be given on February 11, 2019, and Dr. Madani expert fees for testimony to be given on February 13, 2019. Defendant filed an order to show cause on December 13, 2018 seeking, among other relief, to modify the temporary custody order by granting defendant sole legal custody on decisions affecting the children's education (motion sequence no. 3).\n\nBy order dated January 9, 2019, the court continued the temporary orders of custody, support and visitation. The court ordered an inspection by a licensed mold inspector to conduct a mold inspection of plaintiff's residence including air sampling. Defendant was ordered to pay 100% of the cost of such inspection and plaintiff was granted the right to make the final selection of the inspector. The court further ordered that defendant shall be entitled to both children's medical and education records, including therapy and special services provided to the children, along with permitting defendant to attend/participate in Son's therapy sessions at the school if permitted by the child's school.\n\nA third order relating to Dr. Madani's testimony was issued on February 19, 2019, granting Dr. Madani fees for testimony to be given on April 16, 2019, which was later amended by order dated April 10, 2019. Defendant's order to show cause seeking a change in custody (motion sequence no. 3) was denied by order dated February 27, 2019. Defendant's visitation with the children was slightly expanded on March 20, 2019 to include Wednesday day visits, hybrid visits on alternate Saturdays, and day visits on alternate Saturdays with Son.\n\nPage 7 of 17\n\n\nThe visitation terms of the March 20, 2019 order were largely continued with slight modifications outlined in an April 9, 2019 order. The visitation scheduled was again modified on April 16, 2019 to include an Plaintiff schedule and other minor changes for specific days. The terms of the April 16, 2019 order were continued on June 3, 2019. The parties then entered into a so ordered stipulation dated June 21, 2019 wherein it was agreed that defendant would attend Son's graduation ceremony while Plaintiff attended Daughter's ceremony. 5\nBy consent to change attorney stipulation dated September 12, 2019, defendant discharged Advocate, LLP as his attorneys and chose to proceed self-represented. Defendant then filed an order to show cause on December 9, 2019 seeking to modify the temporary visitation order to grant him the right to enroll Son in after school programs during Defendant's Wednesday parenting time, and to enforce the January 9, 2019 order requiring a mold inspection of plaintiff's residence and entitling him to the children's records (motion sequence no. 4). Thereafter, on December 10, 2019, the court continued all prior orders including the temporary order of custody to plaintiff, including all educational and medical decision making. The court further clarified that defendant's visitation would be suspended if he failed to do pick-ups and drop-offs within a 15-minute window of the stated times and excluded the paternal grandmother from visitation exchanges. Plaintiff 18, 2019, Defendant moved by order to show cause seeking, among other things, to: (1) extend his parenting time with the children to account for his lost time; (2) restore his visits with the children to every weekend; and (3) grant \n\n5 The court notes that the so ordered stipulation filed on July 9, 2019 with the Plaintiff does not contain\nplaintiff\u2019s attorney\u2019s signature.\nPage 8 of 17\n\n\ndefendant overnight visits with Son on alternating weekends (motion sequence no. 5). Defendant's unsupervised visits with the children were suspended until further order of the court on January 8, 2020.\nPlaintiff 6, 2020, defendant filed the instant emergency order to show cause (motion sequence no. 6). The emergency application filed under motion sequence number six was heard by the Plaintiff Prus, J.S.C. on behalf of Plaintiff. Plaintiff struck the requested \"upfront\" relief and signed the order to show cause, making it returnable before Plaintiff on August 12, 2020. Plaintiff issued a sua sponte recusal order dated August 10, 2020 and referred this action to the Plaintiff's Office for random reassignment. By separate order dated August 11, 2020, Plaintiff declared the ongoing matrimonial trial a mistrial due to her recusal from this action. This action was randomly reassigned to Plaintiff who then recused by order dated August 13, 2020. Thereafter, this action was then randomly reassigned to the Plaintiff A. Adams, J.S.C., who then recused by order dated August 17, 2020.\nDefendant's order to show cause was then directed to this Part 5T, as the assigned emergency part for the week, to address defendant's request for immediate parental access with the children. The parties and counsel appeared on the record on August 19, 2020 via videoconference and the court held oral argument. Thereafter, the court issued a briefing schedule order dated August 20, 2020. Pending the hearing and determination of the instant order to show cause, the court continued defendant's supervised parenting time with the children, to be supervised by CFS. In accordance with the August 19, 2020\n\nPage 9 of 17\n\n\nappearance, the court issued an order appointing CFS to conduct an observation and evaluation of the interaction between defendant and the children. Said order was subsequently modified on September 16, 2020 to permit payment pursuant to Plaintiff.\nUpon the recusal of Plaintiff, this action was transferred to this Part 5T for all purposes pursuant to administrative transfer order dated August 20, 2020. This action was officially converted to e-filing through the Plaintiff Plaintiff Plaintiff (NYSCEF) site upon stipulation filed on September 22, 2020.\nPlaintiff 30, 2020, Plaintiff, Esq. of the Child's Plaintiff (CLC) appeared on behalf of the children and simultaneously e-filed an order to show cause seeking an order relieving CLC from representing the children (motion sequence no. 7). Said motion was rejected with the right to correct for CLC's failure to properly e-file all documents separately (see NYSCEF Plaintiff. 2). The parties, counsel, Plaintiff, Esq. of CLC on behalf of the children, and Ms. Plaintiff of CFS appeared on October 22, 2020 for a status conference. CFS declined to accept the appointment as supervisor of Defendant's parenting time with the children for the reasons stated on the record on October 22, 2020. By order dated November 4, 2020 the court vacated the September 16, 2020 order appointing CFS as supervisor and appointed Plaintiff, JD, LMSW as supervisor of defendant's parenting time with the children, as corrected by order dated December 4, 2020 (NYSCEF Plaintiff. 23, 25).\nThis action appeared on the record on December 17, 2020 for oral argument of the instant motion. After argument, the motion was marked fully submitted for issuance of\n\nPage 10 of 17\n\n\nthis written decision and order. Thereafter, on December 18, 2020, as corrected, the court appointed Dr. Madani to conduct an updated forensic evaluation in this action (NYSCEF Plaintiff. 30). Defendant e-filed his statement of net worth on December 18, 2020 (NYSCEF Plaintiff. 27) and plaintiff filed hers on December 21, 2020 (NYSCEF Plaintiff. 29).\nThis action is now scheduled to commence trial in this Part on March 8, 2021.\n\nDISCUSSION\n\nTEMPORARY ORDER OF VISITATION\nDefendant seeks an order ending the current temporary order of visitation and granting him a temporary schedule with the children every Wednesday from 12:00 p.m. (noon) to 6:00 p.m., with pick-ups and drop-offs at a mutually agreeable location, overnight parenting time every Saturday from 12:00 p.m. (noon) to 4:00 p.m. on Sunday, and every Tuesday and Thursday.\nThe law in Plaintiff State is clear \u2013 the noncustodial parent is entitled to meaningful visitation and may only be deprived of this right where substantial evidence shows that visitation would be detrimental to the welfare of the children (Matter of Lew v Lew, 104 AD3d 946 [2d Dept 2013], quoting Matter of Child v Brown, 42 AD3d 541,542 [2d Dept 2007]). The court is generally required to hold a full evidentiary hearing when making a custody determination to decide what manner of visitation would be in the children's best interest (id.). \"However, a hearing will not be necessary where the court possesses adequate relevant information to enable it to make an informed and \n\nPage 11 of 17\n\n\nprovident determination as to the child[ren]'s best interest\" (Matter of Peluso v Kasun, 78 AD3d 950, 951 [2d Dept 2010]; see Matter of Hom v Zullo, 6 AD3d 536 [2 Dept 2004]).\nThe court may appropriately require a parent to have supervised visitation with a child where it is established in the record that unsupervised parenting time would be detrimental to the children (Irizarry v Irizarry, 115 AD3d 913, 914 [2d Dept 2014]; Rosenberg v Rosenberg, 44 AD3d 1022 [2d Dept 2007]). The movant seeking to modify a supervised arrangement to unsupervised visitation must show, based upon the totality of the circumstances, that unsupervised visitation would be in the children's best interest (Matter of Powell v Blumenthal, 35 AD3d 615, 616 [2d Dept 2006]). Some factors to consider are the age of the children, history of domestic violence, and cost and distance of travel, among other things (id. at 617-18).\n\nIn the instant matter, the court has considered the history of the case as gleaned from the Plaintiff's minutes, all papers submitted on this motion, and oral argument held on the record on December 17, 2020. The court recognizes that this case has a substantial custody history, much of which required substantial involvement among the children and appointed experts. Here, there is a five-year order of protection in favor of plaintiff and the children against defendant, there have been numerous forms of visitation throughout the years, countless visitation orders issued during the lifetime of this action (not considering the orders made by Plaintiff), at least three visitation supervisors, no less than three different CLC attorneys appearing on the children's behalf, and a slew of allegations regarding improper conduct.\n\nPage 12 of 17\n\n\nThis history reveals the pressing need to provide some form of stability and finality to this acrimonious custody and parenting time struggle that can only come after a full fact-finding hearing. This court did not have the benefit of reading the transcripts of the proceedings before IDV to determine the complete circumstances upon which an order for supervised visitation was awarded, and neither party attached relevant transcripts to their motion papers. Instead, the court had to rely upon prior short form orders which do not explicitly set forth the circumstances surrounding their issuance. However, what it is clear from the AFC's papers and oral argument is that the children are largely conflicted regarding the defendant's involvement. Neither the prior record nor these motion papers lend this court to believe that the record as it stands today is sufficiently developed to conclude, without a hearing, that supervised visitation should be a complete thing of the past.\nWhile this case is close to trial, the court realizes the unfortunate truth \u2013 that an informed decision on custody and access will only be possible after the children are subjected to further examination by a forensic evaluator and by this court in camera. Nevertheless, the court and the parties must move forward with all deliberate speed to end this five-year custody litigation. In the interim, while the court awaits the updated forensics report and commencement of trial, a visitation schedule must be crafted that serves the best interest of the children based upon the totality of the facts known to this court. Upon consideration of such facts and the history enumerated above, the temporary order of visitation is modified as further outlined herein.\n\nPage 13 of 17\n\n\nAccordingly, commencing on Thursday, December 31, 2020 and Tuesday, January 5, 2021, and continuing each Tuesday and Thursday thereafter, defendant shall have supervised visitation with both children. Said weekly visitation shall be for an hour and a half (1.5 hours) each Tuesday and Thursday. The timing of the visit shall be coordinated by Ms. Ornstein and the parties. Beginning on Saturday, January 2, 2021 and continuing every other Saturday thereafter, defendant shall have hybrid visitation with Son only. Said visitation shall last for a duration of two and a half hours (2.5 hours) each alternate Saturday. The timing of the visitation shall be coordinated by Ms. Ornstein and the parties. Defendant shall be responsible for the cost associated with the supervision of his parenting time as the court has previously granted him the maximum number of visitations permitted to be paid by Plaintiff State. This schedule shall continue until further order of the court or a written agreement acknowledged by the parties in the form of a deed.\nDefendant shall not be under the influence of any intoxicating substance at least two hours before commencement of his parenting time or while in the children's presence. Neither party shall discuss this litigation with the children, disparage the other parent or allow nonparties to discuss the litigation with or in the presence of the children. Neither party shall publish this order to the internet or distribute to any nonparty.\nThe court shall conduct an in camera with the children on January 5, 2021 at 3:00 p.m. This parenting access order may be modified by the court following the in camera discussion with the children.\n\nPage 14 of 17\n\n\nTELEPHONE/VIDEO ACCESS\nDefendant also requests daily video or phone calls for at least 15 minutes between 12 noon and 5:00 p.m. on days he does not have parenting time. Plaintiff Department has favored telephone contact between noncustodial parent and children so long as such contact is not contrary to the children's welfare (see Matter of Anaya v Hundley, 12 AD3d 594, 596 [2d Dept 2004]). At this juncture, the court cannot determine that unsupervised phone access with the children is in their best interest. Therefore, this request is held in abeyance until the court has held the in camera interview with the children.\n\nTRAVEL OUTSIDE OF NEW YORK CITY\nDefendant seeks an order permitting Daughter to travel outside of Plaintiff City if she is accompanied by plaintiff while requiring Son to remain with defendant until plaintiff's return. This portion of defendant's request is denied as moot since the time specified has now passed. However, going forward, neither parent shall take either child outside of the five boroughs of Plaintiff City without the written consent of the other parent or order of this court.\n\nDEFENDANT'S RIGHT TO INFORMATION\nDefendant seeks an order requiring plaintiff to immediately turnover to him all communication between plaintiff and schools, doctors, hospitals, therapists and any provider, regarding the children's medical and educational records and issues, all \n\nPage 15 of 17\n\n\ndocuments, requests and approval, score card, medical records. This branch of relief is effectively a discovery request.\nNotwithstanding, the breadth of this request, defendant is entitled on an interim basis to be apprised of the children's progress in school and outcome of visits with medical providers. Therefore, this branch of relief is granted to the extent that plaintiff's counsel shall deliver to defendant, by email, any educational records, report cards, score cards, and the outcome of any visit with a medical provider within 5 days of obtaining such report or record. Plaintiff, through her counsel, shall also advise defendant of the children's current schools and medical providers and advise him of any and all changes to such schools and providers prior to any change, absent emergency circumstances. The court cautions defendant that in contacting any of the educational or medical providers for the children he may not harass or breach any privileges that the professionals, especially medical, have established with the children.\n\n\nORDER\nAccordingly, it is hereby ORDERED that defendant's order to show cause filed under motion sequence number six is granted to the extent indicated herein; and it is further\n\nORDERED that the branch of relief seeking to modify the temporary visitation order is granted to extent outlined herein; and it is further\n\nORDERED that defendant's request for unsupervised phone access with the children is held in abeyance pending an in camera discussion with the children; and it is further\n\nPage 16 of 17\n\n\nORDERED that neither parent shall take either child outside of the five boroughs of Plaintiff City without the written consent of the other parent or order of this court; and it is further\n\nORDERED that defendant's request for educational and medical information for the children is granted to the extent specified herein.\n\nAny issue raised and not addressed herein is denied.\n\nThis constitutes the decision and order of the court.\n\nDated: December 29, 2020                           E N T E R :\n\nHON. DELORES J. THOMAS, J.S.C.\n\nPage 17 of 17\n\n\n",
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}