G.K. v. L.K

Full title: G.K., Plaintiff, v. L.K., Defendant

Court: Supreme Court of the State of New York, Kings County

Date published: Aug 15, 2008

2008 N.Y. Slip Op. 51790 (N.Y. Sup. Ct. 2008)

Opinion

Decided August 15, 2008.

Deborah G. Fiss, Esq., Attorney for the Plaintiff-husband, Jackson Heights, New York.

Jared Berliner, Esq., Attorney for the Children, Brooklyn, New York.

Wendy A. Harris, Esq. and Violetta Watson, Esq, Wilmer Cutler Pickering Hale and Dorr LLP, Attorneys for the Defendant-wife, New York.

Amanda Norejko, Esq. Of Counsel to Sanctuary For Families, New York.

JEFFREY S. SUNSHINE, J.

Procedural Background

The court is called upon to determine custody of five (5) minor children and whether defendant is entitled to a five (5) year stay away order of protection against plaintiff. The court has bifurcated the issues of custody, visitation and order of protection. This matter was tried on an expedited basis, on May 30, June 1, 11, 16, 23, 24, and 25, 2008, given the seriousness of the allegations. Defendant-wife (hereinafter referred to as defendant) against plaintiff-husband (hereinafter referred to as plaintiff) was issued a temporary order of protection in Family Court, Kings County on December 4, 2007, the Family Court petitions were consolidated into the instant divorce action by order of this court dated January 2, 2008. The court has bifurcated the issues of custody and visitation and a final order of protection.

The Facts

The parties were both born in Albania. Plaintiff first moved to the United States on December 14, 1989, after receiving a green card through the American Embassy in Belgrade, Yugoslavia. He became a United States citizen in 1997. Plaintiff lived and worked in the United States continuously from late 1989 until the date of the commencement of this divorce action, only returning to Albania for brief vacations over the years (approximately the first six years of the marriage). Plaintiff is 48 years of age and defendant is 36 years of age.

Plaintiff first returned to Albania in 1992, at which time the parties began to date. The parties became engaged when plaintiff returned to Albania for a six week visit in 1993. The parties were married in September 1995 in a civil ceremony in Albania after a two year engagement. Defendant lived with plaintiff's family after the marriage, but plaintiff returned to the United States where he was working six weeks after the marriage. In 2001, defendant came to the United States as a permanent resident. The parties have five (5) children of the marriage (I.K. born December 1996 [in Albania], M.K. born January 2002 [in New York], U.K. born April 2003 [in New York], S.K. born October 2004 [in New York], A.K. born March 2006 [in Albania]). The Issues

Defendant gave birth to the parties' first child in Albania in December 1996. Plaintiff first met his son in or about February 1997 during a six week visit.¹ The child was two (2) months old at the time. Plaintiff became a United States citizen in 1997.²

1 Plaintiff contends that he had three (3) weeks of vacation a year and that he also took three (3) weeks leave of absence from his job so that he could travel to Albania to visit his family. Plaintiff testified that he preferred working in the United States because he liked "the law and the opportunity" in the United States that he was able to support his family with "nice jobs" and "very good vacation" and that there was "very good money", too.

2 Plaintiff avers that he did not bring defendant to the United States before 2001 because he was awaiting immigration and that as soon as he became an American citizen he began working on the necessary paperwork so that defendant and child could come to the United States, too.

Plaintiff alleged that during the early years of the parties' marriage they had a "good relationship" and averred that they "didn't have any problem". He further alleges that he spoke with defendant every week during the months when she lived in Albania and he lived in the United States.

In or about November 1999, plaintiff had the oldest child circumcised when he was almost three (3) years old. At that time, defendant and the children were living with plaintiff's parents, his brother and the brother's wife and their two (2) children. Defendant testified that due to the circumcision, the child wanted to make frequent visits to the bathroom, which was located outside of the home where the parties were living. She testified that plaintiff told her not to take their son to the bathroom because the son was lying about his need to use the bathroom. Despite plaintiff's warning, defendant took the child to the bathroom and plaintiff became very angry and, in front of their child, smashed her head into a wall. She alleges that this incident resulted in a black eye and hearing problems and bruises that lasted for two (2) to three (3) weeks. Defendant did not seek medical attention, averring that she wanted to keep the nature of her relationship with plaintiff private and that she was embarrassed, not wanting people to know. She further testified that the parties' oldest child was "traumatized" by the incident and that he stayed "very, very close" to her after the incident and that after the incident plaintiff refused to acknowledge her when she directly addressed him. Plaintiff denies that this incident ever occurred.

Plaintiff returned to the United States and did not visit Albania again until 2001. That same year, defendant and the parties child, along with plaintiff's parents and younger brother, moved to the United States. Defendant testified, that after they came to the United States, plaintiff worked and that when he had extra time he would spend it with his friends and not help her with the household or child care responsibilities.

Plaintiff denies that he ever went out with his friends and insisted that he always went home after he finished working for the day. He contends that he only visited with his family and that defendant was always with him during those visits. Plaintiff alleges that he had a "very good" relationship with defendant during this time and that they were "in very good love" and had a "good partnership with the kids and with life" and denies seeing anything wrong with their relationship. He further asserted that he felt like the "king of the Brooklyn" during this time.³

3 Plaintiff contends that defendant had an "excellent" relationship with his family during this time, as well.

When questioned at trial regarding his personal practice of Albanian culture, plaintiff asserted that he followed more traditional American ways because he had lived in the United States for many, many years. He claimed at trial that,

I follow more of freedom and American traditions, actually. With love and discussion for a family, the child up the relation for the kids, for the future of the kids . . .

. . . I never first thing I ever been jealous of her. The second one I never think to control her or even make a phone call, only when I was asking her just before I come from work at home if you could notify me if you need a gallon of milk or stuff like that, because she's very tired when I get in the house I don't like it back to go outside, only at that time I was asking they are to give me phone call to notify me for such a things.

Plaintiff stated that traditionally in Albania there was only one "boss" in a family, which was usually plaintiff or the older relatives in a family, and that everyone else had to obey that person's decisions. Plaintiff avers that he believed that defendant had a good life when she lived with his family in Albania during the early years of their marriage because he never heard of any problems between his parents and defendant.⁴

4 Plaintiff averred that in Albania it is always the wife who goes to live at the husband's home after they are married.

Defendant alleges that during the summer of 2001, in Albania, the oldest child tore a letter that had arrived in the mail and that when asked about it by plaintiff, defendant said that she tore the letter in order to keep the blame away from their son. She posits that she took the blame for the torn letter because she was afraid that plaintiff would "scream" at their son. She alleges that plaintiff, in front of their young son, grabbed her by the hair and pushed her so that she hit a wall and table as she fell. Defendant was six (6) months pregnant at the time of this alleged incident. Defendant further testified that several members of plaintiff's immediate family witnessed the incident and did nothing. When questioned about the reaction of the parties' young son who allegedly witnessed the incident, defendant testified that after the incident the child remained "very, very close" to her. Plaintiff testified that the incident never occurred.

Defendant gave tearful testimony that she did not seek medical treatment because she was not allowed to leave the home without plaintiff's permission or unaccompanied by a member of plaintiff's family.⁵ Plaintiff conceded at trial that, as part of his practice of Albanian tradition, he relied on his family to keep track of defendant's whereabouts when she lived with them while he lived in the United States. He also concedes that she was required to get permission before she was allowed to leave the house; however, he testified that he had no knowledge that his family ever denied defendant permission to leave the house. Defendant testified that she did not tell anyone about plaintiff's violent behavior because she was ashamed for people to know the true nature of her relationship with plaintiff.

5 Defendant testified that none of the "daughters-in-law" living in her husband's parents' house were allowed to go out without permission, but she avers that the other wives were often granted permission to go out when she was not allowed to go.

Defendant avers that throughout the course of the parties' marriage she was not allowed to leave the parties home, either in Albania or in New York, without the express permission of plaintiff and that when he did give her permission he always required that she be accompanied by a member of his family or by someone that he selected and that the same held true for when she went for obstetrician visits.⁶ Plaintiff does not deny that defendant was always accompanied when she went to doctors visits; however, he alleged that it was usually a family relative, not merely a member of the community.

6 Defendant testified that she was always accompanied to obstetrician visits by women whom she met through plaintiff and that she was never allowed to visit the doctor alone. She further alleges that she allowed these women to accompany her because they would help translate for her because the obstetrician did not speak Albanian.
Defendant concedes that she was allowed to drop the oldest child off at school without being accompanied, but stated that it was only because the school was very close to where the parties and their children lived at the time.

She testified that once the parties moved to New York plaintiff would occasionally take her to the park, but that as time went by these outings became less and less frequent. She also alleged that when plaintiff did give her permission to go out it would ultimately end in confrontations and problems later. Plaintiff alleges that defendant could call him on the telephone and tell him where she was going and that he would always give her permission to go. Defendant alleged an incident when plaintiff gave her permission to go buy slippers for their children, at a store on the corner of the block where the parties lived, but once she returned, he allegedly questioned her about why she went by herself without him or his brother and told her that there was nothing for her to do outside of the house.

Plaintiff contends that defendant had open access to any money that she needed during the marriage and that she, like all of the adult members of the family, only needed to specify what the money was used for when she took it and leave receipts.

There was testimony at trial by a witness (heretofore referred to as "E.F."), who described herself as someone who was previously a close friend of plaintiff and that she was someone whom he treated like a niece (and also came from Albania). "E.F." testified that she repeatedly offered to take defendant sightseeing once she arrived in the United States, in 2001, but that her offers were rejected and that plaintiff and his family appeared angry about the offers. "E.F." further testified that she was not allowed to assist defendant in the kitchen unsupervised by another family member and that she often saw plaintiff being rude to defendant and never saw him address defendant by her name, instead he referred to her as "hey you" or using similar language. "E.F." further alleges that plaintiff often said that his wife needed to be beaten ten (10) times a day and that she would have as many babies as he wanted and that he was tired of running after her to hospitals.

The parties second child, a son, was born in February 2002 while the parties were living in Brooklyn, New York. A few weeks later plaintiff's parents returned to Albania and the parties and their two children moved to Queens. Defendant testified that she and the children lived in a one bedroom apartment in a building where plaintiff worked as a superintendent. Plaintiff moved into a separate apartment across the hallway and lived there with his brother because plaintiff did not want to be around the children. Defendant testified that during this time plaintiff would leave for work between 6:00 a.m. and 7:00 a.m. and that he would return around 9:00 p.m. and that during this time the children would go to bed around 9:00 p.m.

Defendant testified that the parties lived in Queens from approximately about February 2002 until August 2003 and that during that time she was the children's primary caretaker; the one who cleaned them, cooked for them, played with them and supervised their homework. She also testified that she took steps to be involved in the oldest child's school activities even though she needed the help of a friend to interpret for her because she only spoke a limited amount of English.⁷ She alleges that plaintiff's only involvement with the children was to occasionally greet the children when he returned from work. Defendant also alleges that plaintiff always called her a "cow" in front of his family and their children and that he would never refer to her by her name. She contends that as a result of his behavior and actions she felt "very, very hurt and sad" and that as their children became older and started to understand what the words meant that they would appear upset.

7 Defendant testified at trial that because she was not allowed to leave the home by herself she was accompanied by another local Albanian woman when she visited the oldest child's school and that this friend translated for her.

Defendant testified about an incident that allegedly happened in early 2002 when she accidentally dropped a dish cover. Defendant avers that because the lid made a loud sound when it hit the floor that plaintiff kicked her with his leg in the lower part of her leg "below the knee" and she testified that because he kicked her with "great force" she experienced "a lot of pain for a few days" and that her "leg felt numb for a few days". Defendant contends that this incident happened very close to where the parties' young children were sleeping. Plaintiff denies that this incident ever occurred.

The parties' third child was born in April 2003 and defendant avers that plaintiff stayed at the hospital only a few minutes after she gave birth.

The witness, "E.F.", testified that in August 2004, plaintiff, who was assisting the witness's brother's move, told her that he was planning to move defendant and the children back to Albania because it was too difficult to keep them in the United States and because there was not enough work for defendant to do in a small apartment. "E.F." avers that these things were said in front of her mother and her own husband, plaintiff's parents and brother and the parties' children.

In October 2004, the fourth child was born. The witness, "E.F.", testified that she never saw plaintiff helping defendant take care of their children, but that defendant would feed, talk, play and change the children and testified that defendant was very caring, patient and loving and that she always appeared attentive to the children. She further noted that she often saw defendant help the oldest child with his homework and that she would comfort him with a pat on the back or a hug, which plaintiff said made the child too soft.⁸ She contends that plaintiff frequently stated that he was thankful that he only had boys and no girls and that he would not allow the children to have toys because they were too messy.

8 The witness alleges that plaintiff often questioned, in front of the children, his family and his friends, whether the children, other than the second child, were really his because they were too "soft" and that the oldest child in particular seemed embarrassed about it and would cling to defendant.

After the birth of the parties' fourth child, defendant testified that she spent a great deal of time doing laundry because plaintiff insisted that she do all of the laundry by hand. He refused to let her use a washing machine and insisted that because women had been washing clothes in rivers for centuries, she could wash them inside and that she was doing fine. She avers that during this time she had even more work to do and that her husband's brother bought her a washing machine and that plaintiff was very angry when he found out what his brother had done.

Defendant alleges that her brother-in-law also helped her on another occasion by buying her a winter coat because she did not have one and she needed to go to the doctor and only had a lightweight dress to wear. She testified that she did not bring her winter coat from Albania because plaintiff told her not to pack too many items because they would buy replacements when they arrived in the United States; but she was never permitted to buy a winter coat.

During August of 2005, the parties traveled with their children to Albania. Defendant alleges that plaintiff told her that the trip was a vacation so that they could attend a wedding in France and visit their families in Albania and that they would return to New York in September 2005 so that their oldest son could begin the fall term at his elementary school where he had already completed the third-grade.⁹ Defendant testified that she did not want to go to Albania at that time because she was pregnant.¹⁰ She avers that the day after the family arrived in Albania plaintiff flew to France for four (4) days and attended a wedding by himself and then he returned to Albania where he stayed for one week before leaving for the United States. Defendant contends that plaintiff left her and their children in Albania living in a house with plaintiff's parents, his brother and the brother's wife and their two (2) children.¹¹ Plaintiff alleges that defendant could not go to France because, as a green card holder, there was not enough time to get her a visa to travel from Albania to France to attend the wedding.

9 Plaintiff contends that his return ticket from Albania was for three weeks and that defendant and the children's tickets were for five weeks. He alleges that he could only stay for three weeks at that point because that was the most time that he could take off from work.

10 Plaintiff further alleges that during the summer of 2005 defendant informed him that she wanted to have an abortion, but that he refused because it was against his beliefs.

11 Plaintiff contends that he first discovered that it would take two (2) weeks to get a visa for defendant from the French Embassy after it was too late to get defendant a visa in time for the wedding.

Defendant contends that, when plaintiff returned to the United States at the end of this visit, he left her and their children in Albania and that he took their passports, documents and green cards with him and that he threatened to beat her up or to kill her and her family if she attempted to get replacement documents from the United States embassy in Albania.¹² Plaintiff testified at trial that he only took his own passport when he returned to the United States and that defendant's and children's passports and green cards were in defendant's purse when he left Albania. Defendant avers that plaintiff left her in Albania because he accused her of having an affair with another man while the parties were living in New York, which defendant adamantly denies.¹³ Plaintiff contends that he telephoned defendant at the end of August to find out how the preparations were coming for her return with the children and that it was only then that he learned that defendant would not be returning to the United States. He testified that it was actually defendant who wanted to stay in Albania because one of her brothers had been arrested by the Albanian authorities for creating a false driver's license and passport and that her mother was very worried. He alleges that defendant wanted to remain in Albania because her mother was distressed about the arrest.¹⁴

12 Defendant alleges that at this time, plaintiff said that he would get another house in Detroit or Florida and that he would then return to Albania and take defendant and their children back to the United States.

13 Defendant further contends that plaintiff accused her of taking drugs while in the United States and made allegations that she had been drugged by the people that she knew and that they had sexual relations with her.

14 Plaintiff contends that he did not have defendant send the children back to the United States while she stayed to help her mother because he did not have enough notice to be able to find someone to help him take care of them in the United States if she remained in Albania.

After returning to the United States, plaintiff arranged for the oldest child to begin third-grade at a school in Albania, even though the child had already completed the third-grade in the United States.¹⁵

15 Defendant testified that both she and the oldest child wanted him to begin the fourth grade because he had already completed the third grade in the United States. She further averred that the child had been an average student while in the United States so there was no reason for him to repeat the third grade and that the child was embarrassed to tell people in Albania that he was repeating the third grade, especially given his age. She denies plaintiff's contention that the child was placed into the third grade in Albania because he could not speak, read or write Albanian.

The witness, "E.F.", alleged that she telephoned defendant in November 2005, at plaintiff's parents' house in Albania to wish her a Happy Eid [Eid ul-Fitr] (a Muslim holiday that marks the end of Ramadan) and that defendant sounded like she was unable to talk on the telephone. "E.F." testified that she then telephoned plaintiff to find out how defendant was doing. She further testified that plaintiff screamed at her that it was none of her business and that she should not have called and that his wife was nobody's business and then told her that he left her in Albania because she had an affair with several different men when she lived in New York. "E.F." further avers that plaintiff told her that he would not do what he was supposed to do when a woman cheats and that allowing her to live was for the sake of his children. Plaintiff denies that he ever made any statement about following what the Koran allegedly says about punishing an unfaithful wife. He testified at trial that "I do not make any statements what the Koran says because I was live for 20 years in the United States and I took the rules and always peaceful and freedom of the United States rules and regulations. So, I haven't go by the religion what they say."

Defendant contends that plaintiff said that he lived by the laws of the Koran and not by the laws of America. She further alleges that under the laws of the Koran he was supposed to kill her for cheating on him and that he decided not to divorce her in the United States because then "the whore" and her lover would be able to live off of his money.

During this period when defendant lived in Albania, after plaintiff left her there, testimony established that defendant's uncle lived next door to plaintiff's parents house and would sometimes say hello to defendant when he passed by if she was in the door; but defendant testified that the interaction never amounted to open conversation. She concedes that she was allowed to go for a short visit sometimes but that she was always accompanied by someone, usually her brother-in-law or her mother-in-law. Defendant alleges that her uncle attempted to talk to plaintiff a few times about why plaintiff would not allow her to go out more, but she states that plaintiff would tell the uncle that she had cheated on him and that she had taken drugs so she could not go out any more. She further acknowledged that her brother also passed by plaintiff's parents' house occasionally; however, she testified that plaintiff had forbidden her brother from passing by the house during the day, and allowing him to pass by at night.

Plaintiff avers that defendant always had full access to medical attention. He alleges that although he was only present during a few weeks of the year while defendant lived with his family in Albania, they would help her with whatever she needed during the pregnancies.¹⁶ He contends that he dutifully drove her to any appointments that she told him about and he claims that he had no knowledge of what went on during her visits to the doctor.

16 Plaintiff denies ever interfering, physically or otherwise, with defendant's ability to seek medical care.

To the contrary, defendant alleges that plaintiff was resistant to her visiting the doctor during most of her pregnancies. She alleges that during one pregnancy she only visited the doctor in the eighth month and that in another she was not allowed to visit the doctor until she gave birth because plaintiff said that women used to give birth without going to see doctors. She contends that only during one of the pregnancies did she have semi-routine prenatal visits that took place every two (2) to three (3) months and then about every two (2) weeks during the last weeks of the pregnancy. Plaintiff alleges that she received "excellent" prenatal care during all of her pregnancies; however, testimony at trial established that plaintiff had no personal knowledge of defendant's prenatal care during her first pregnancy.¹⁷

17 Plaintiff lived in the United States during defendant's first pregnancy. He asserts that he knows that she received "excellent" prenatal care because his family told him so during telephone conversations.

Plaintiff returned to Albania for another visit in late December 2005 at which time defendant was pregnant. Defendant testified that the children were very excited to see their father when he visited, but that he would not agree to see or to meet with defendant. She avers that when she attempted to see him he spat in her face and told her to go away and that he called her a "b — ".

A few days after this encounter with plaintiff, in January 2006, defendant alleges she was preparing to go to bed in a room that she was sharing with one of her young sons when plaintiff suddenly opened the door and again accused her of having an affair with another man when the parties were still living in New York. She claims he grabbed her by her throat with one hand and started hitting her on her shoulder with his other hand. She testified that she started screaming for help and that the parties' young son, who was in the room throughout the alleged incident, woke up and saw what was going on and started to cry. Defendant alleges that plaintiff instructed her to go calm the child but that she could not because she was "very, very upset" because she saw plaintiff put his hand on his pocket and she feared that he had a knife or a gun and that he was going to kill her. At that time, she testified, that plaintiff's brother came into the room and took plaintiff outside, at which point she went to the room where plaintiff's parents, sister and the sister's two (2) children were sleeping along with the parties' oldest child. She testified that plaintiff's parents locked the door so that plaintiff could not get in, but that plaintiff continued to scream and curse and to bang his hand on the locked door throughout the night.

Defendant avers that, as a result of his pounding on the locked door, plaintiff received medical attention for his hand and that the child who was in the room and who witnessed the choking incident would not go near plaintiff after that night during the remainder of his visit. Furthermore, defendant alleges that the next day she asked plaintiff to take her to the hospital which was located about forty minutes away by car. She claims it was in the same town where he was taking the sister that day, but that plaintiff would not allow her to go to the hospital.

Defendant avers that she told plaintiff that she would get a paternity test to prove that he was the father of the child she was carrying. Instead of taking her to the hospital, defendant contends that plaintiff kicked her with his foot on her lower leg and shin in front of two of the parties' young children. She alleges that she did not try to get medical attention after that incident as well, even though she had headaches and her shoulder and ear where numb and she had marks on her neck from where he allegedly attempted to choke her. She testified that she had a difficult time eating after this incident. Defendant was almost seven (7) months pregnant at the time of this alleged choking incident.

Plaintiff denies that the January 2006 choking incident took place. According to him, "nothing happened" and that it "surprised" him that she said that it did. When asked whether the parties had any altercation during that time, he answered "never". Plaintiff alleges during this same visit to Albania in January 2006, he called a meeting with defendant's father, two (2) of her brothers and three (3) of her maternal uncles and with one (1) of plaintiff's brothers and their father primarily to discuss his allegations that defendant was having an affair.¹⁸ Plaintiff stated that he believed that defendant's decision to stay behind in Albania because of her brother's arrest was merely an "excuse" and that there was some additional reason for her decision to stay behind. Plaintiff alleges that defendant admitted to the affair during that meeting and that both parties agreed that they would remain married and that defendant would remain with the children at plaintiff's house in Albania. The court finds plaintiff's brother's testimony to be contrived as it relates to there having been no domestic violence, and not credible.

18 Plaintiff avers that he was unaware of any problems in the parties' relationship and was concerned when defendant did not return to the United States so he decided to call the meeting to find out why she did not return.

Defendant testified that plaintiff would not allow her to see or to talk to her parents or relatives, who also lived in Albania, during the next two (2) years after the alleged choking incident while she continued to live in Albania. She alleges that he would telephone on occasions from the United States and speak to her on his family's telephone and instruct her not to communicate with her family and that he would tell his family not to allow her to visit or to talk to her relatives.

Defendant avers that during this time her relationship with plaintiff's family, especially with his mother, began to deteriorate.¹⁹ She concedes that she was occasionally assisted by members of plaintiff's family who would help supervise the children while she prepared meals or performed household chores. Defendant testified that she was required to do exactly as her mother-in-law said, because if she did not, she feared that plaintiff would be even more angry when he returned on his next visit to Albania.

19 Defendant testified at various times during the trial that she had a good relationship with plaintiff's mother until August 2005 when, during a "visit" to Albania, plaintiff accused her of having an affair in New York and returned to the United States alone, leaving her to live with his family in Albania. She avers that the relationship with plaintiff's family and especially with his mother became increasingly strained from that date on.

Defendant gave birth to the parties' fifth child in early March of 2006 and her family visited her while she was in the hospital.²⁰ Defendant testified that when plaintiff learned that her family visited her, he was very angry and again made it clear to her that she was not allowed to have any communication with her family. She claims that he proceeded to curse her mother and sister saying "f — your mother" and that he threatened to return to Albania and to make them disappear.²¹ She averred that plaintiff then told her to call her parents and to make it clear to them that they were not allowed to communicate with her anymore, which she did.²² Defendant concedes that she did have one short visit with her family in 2005, but notes that plaintiff's family went on the visit with her.²³

20 Plaintiff contends that he was not at the birth of this child because defendant told him that she would give birth in January 2006 and that he planned his vacation time and travel arrangements accordingly, but that defendant ultimately did not give birth until early March.

21 Defendant alleges that it had been several weeks since she had talked to plaintiff on the telephone (he was in the United States at this time) because the telephone had been disconnected in his parents' house where she was living with the parties' children and she was only allowed to speak with him at that time because he called his brother on his cell phone.

22 Defendant testified that the house telephone in plaintiff's parents' home was reconnected long enough for her to have this conversation with her parents and was then disconnected again.

23 Plaintiff contends that defendant spoke to his brother during 2005 and told him that she wanted to divorce plaintiff, but he avers that she never said that to him directly.

Defendant alleges that the next time that she and the parties' children saw plaintiff was in May of 2007. Plaintiff concedes that he did not see the children between January 2006 and May 2007. He insists that he did not attempt to bring the children to the United States during that time because he was unable to care for them himself and that he could not find a babysitter to watch the children.²⁴

24 It should be noted that the parties' youngest child was born in Albania in early March 2006. Plaintiff concedes that he made no attempt to visit the child for the first year and a half of his life.

During the May 2007 visit, plaintiff made it very clear to defendant that they were going to separate and that she was not going to have access to her own attorney but would be required to rely on the attorney that he hired for himself. Plaintiff concedes that the purpose of the May 2007 visit was to get a divorce.

Both parties allege that they prepared an agreement in Albania prior to commencing a divorce action in the Albanian court. Defendant avers that the agreement was prepared with the help of plaintiff's attorney in Albania but she asserts that plaintiff refused to allow her to have independent counsel during the negotiations. Plaintiff and defendant do not deny that as part of the Albanian divorce negotiations, plaintiff agreed to buy defendant an apartment or house where she could live with the children.

According to plaintiff, the divorce arrangement did not come to fruition in August 2007, when defendant refused to take an apartment that he secured for her and the money that he offered her because she no longer agreed with the terms of the agreement.²⁵

25 Plaintiff alleges that, although she said that she no longer agreed to the proposed agreement, that defendant never told him what she did want instead.

According to defendant, she understood that the alleged agreement gave custody to plaintiff, but that it would allow her to have the children to live with her until they were sixteen years of age.²⁶ She further averred that she felt very threatened during the meetings with plaintiff and his attorney because plaintiff told her that if she did not do what he told her to do that he would kill her brother.²⁷ Defendant contends that she went along with plaintiff's demands because she did not want her family to go through any further hurt from losing another child.

26 Plaintiff contends that he only wanted to assure that the children would move to the United States when they were older so that they might continue their education.

27 Defendant contends that plaintiff threatened to kill her brother, specifically, because he knew that one of her brothers had died several years before when he was only twenty-six and that one of her brother's sons had died when he was thirteen years of age and she did not want her family to lose another.

Defendant contends that after plaintiff's attorney prepared the agreement the parties went to the Albanian court but that the Judge did not accept the agreement because it was not specific enough regarding the children and the future. Defendant avers that she refused to agree to the arrangement once she learned that plaintiff's proposed agreement, as written up, would have given plaintiff the legal right to take the children away from her whenever he wanted.²⁸

28 Defendant avers that prior to that date in court, plaintiff told her that he was going to allow her to have the children until they were sixteen years of age and that it was only through the Albanian court that she learned that the agreement actually gave plaintiff the right to take the children.

During the time that the parties were before the Albanian court defendant testified that she saw plaintiff hit one of the children. She alleges that she went into a car with plaintiff to go to court and that one of the children started crying and did not want her to leave so plaintiff got out of the car, took the child back to the house and slapped him and asked why he was crying for "that stupid b — ". It appears that the court in Albania refused to accept the agreement because of defendant's refusal and some of the children were United States citizens.

In or about June 2007, plaintiff alleges that the parties' second oldest child told him that he wanted to return to the United States with him. Plaintiff alleges that he asked the mother whether she agreed to allow that child to return with plaintiff and that she did agree to the arrangement.²⁹

29 Defendant contends that the second child was plaintiff's favorite child and that he would routinely say so in front of the other children. She further avers that plaintiff would sometimes deny that the other children were his but that he always said that the second child was his child, which made the parties' other children jealous.

On July 13, 2007, plaintiff's brother told defendant that her mother was very sick. Defendant avers that she asked plaintiff's parents for permission to visit her sick mother and that she, along with her youngest child, went to see her mother but that the next day after arriving at her parents' house someone brought her and her youngest child's clothing to her parents' house and she was told that she was not allowed to return to plaintiff's parents' house, which was home to defendant and the children. Defendant avers that she repeatedly tried to telephone plaintiff's parents so that she could return and see her children but that they would hangup the telephone whenever they realized that it was her. She claims that she finally called plaintiff and begged him to let her have the children back, but that he told her that she would never be allowed to see the children again and threatened to kill her brother and marry his wife if she ever attempted to see the children again.

Plaintiff denies that defendant was ever kept from seeing the parties' children. He testified at trial that defendant visited the children at his parents house every few days after she went to live at her mother's house in the spring of 2006 and avers that she was allowed to see them "whenever she wanted". Plaintiff acknowledges that defendant asked him to allow all of the children to come live with her at her mother's house; however, he avers that he was worried about his children's safety in the community because defendant's brother's son, who was only eleven years of age at the time, was killed by a mob in that area in 2004.

During the trial, an audio recording of an argument between plaintiff and defendant was played.³⁰ Defendant alleged that the recording was made in July 2007. The conversation appeared to be discussing the circumstances surrounding defendant and youngest child's trip to visit defendant's ailing mother.³¹ During the recording, plaintiff loudly referred to defendant by calling her "b —" or "f — — bitch" even while she pleaded with him to allow her to return to her children. When she asked about the children's welfare, plaintiff told her that their welfare was none of her business and he accused her of "leaving" the children when she went to take care of her sick mother.³² Defendant repeatedly assured plaintiff that the children were theirs and that she loved them and could not live without them. Plaintiff told defendant that the children were not looking for her and that she would never get the children and accused her of beating the children. During the recording, defendant says, "Didn't you tell me on the court date that I can take [A.K.] myself and leave the other kids and [plaintiff's brother's name] is going to bring them?" and plaintiff answered, "Yes. Then the plans changed."³³ At several times during the recording plaintiff threatened defendant and said that if she went to the police or to the embassy that he would "be there in 24 hours" that he would come and then she would "see how its gonna go".³⁴ At another point in the recording, in response to defendant's claims that she had only planned to stay at her mother's home for one night, plaintiff said, "I'll kill. I'll cut here, there" and called her "you f[— — —] b —" and warned her that, "you are gonna see what's gonna happen." It should be noted that later, during cross examination, plaintiff denied ever being angry at defendant. Specifically, when asked about whether he was angry when she went to visit her mother, he said "[no], I was not angry."

30 The conversation was in Albanian and the official court interpreter translated the recording as it was played in court.

31 It was after this trip that plaintiff and his family allegedly refused to allow her to return to plaintiff's parents' house or to see or communication with her eldest four children who were still living there. It is noted that during the recording plaintiff acknowledged that he told defendant not to go visit her ill mother.

32 It should be noted that defendant did not leave the children alone when she went to help her ailing mother; rather, they were in plaintiff's family's care. It should also be noted that plaintiff appeared to blame defendant's family, in part, for the breakdown in the parties' marital problems.

33 It appears from the recording that the parties had previously agreed on a general plan whereby defendant would remain in Albania and keep the children once she had housing arrangements of her own, but that plaintiff objected to her having the children if she lived with her family.

34 At this time, plaintiff lived in the United States and defendant lived in Albania because he had refused to take her back to the United States after accusing her of infidelity.

Plaintiff was questioned about the conversation on the audio recording and conceded that it was an argument, but he testified that it was the only argument that the parties ever had during the entirety of their marriage. He alleges that the only reason that the parties argued on the telephone, when the conversation was recorded, was because he was trying to protect "his children". This testimony contradicts what plaintiff previously testified to when he asserted that the parties "never" argued. Plaintiff testified at trial that he never argued with defendant and that he was not angry at her when he accused her of having numerous affairs. He reiterated his belief that defendant "just run way from the kids" when she left them with his family and went to visit her ailing mother for a night and that he was "really upset because she run away". Furthermore, plaintiff accused defendant's brother of attempting to take the children from his parents' house by force.

The witness, "E.F.", testified that she spoke with defendant on July 31, 2007, and during that conversation, she became increasingly concerned about defendant because she had been separated from her children. After speaking to defendant, "E.F." claims that she contacted organizations in the United States and in Albania to help defendant. "E.F.", testified that she contacted the National Coordinator for Anti-Trafficking in Albania and that she visited the Brooklyn Family Justice Center, Sanctuary for Families, the Office for Children Issues and Safe Horizons, which then contacted the International Organization for Migration in Tirana, Albania.

Following this conversation with "E.F.", defendant went to the American Embassy in Albania seeking assistance and was able to eventually get new documentation which allowed her, and the parties' youngest child to return to the United States. Defendant testified that she had always wanted the children to return to the United States so that they could have a better life and education.

In August 2007, plaintiff's brother and one of plaintiff's nephews called defendant and told her to return the youngest son to plaintiff's parents. Defendant refused and told them to bring the other children to see her. After this exchange, plaintiff called defendant's parents' house, where she was living, and told her sister to "bring that b — to the phone". When defendant picked up the telephone, she alleges that plaintiff told her that if she did not return the youngest son that he would bring someone from America who would make her family disappear. In response to plaintiff's threats, defendant telephoned the police in Albania, who came to the house, but the nephew and plaintiff's brother never showed up to get the youngest child.

The following day, the oldest child called the mother and asked her to return the youngest child. The mother asked the child to come and to see her and his brother, at which point, the oldest child began to cry and to say that he missed her and that he did not want to live there and wanted to go back to the United States.

After these conversations, defendant, accompanied by one of plaintiff's cousins, went to the court and to the police in Albania, but she testified that neither offered any hope about her situation.³⁵

35 Defendant testified that the police would not help her because two (2) of the children were not registered in Albania because they were born in the United States.

In Albania, plaintiff avers that defendant did not see the children after June 2007 and that she did not ask to see them in September 2007 during a telephone conversation which she recorded without his knowledge. Plaintiff took the oldest child to the United States in September 2007.³⁶

36 Plaintiff contends that both children were enrolled in school near his residence in Brooklyn, New York for the September, 2007 through June, 2008 school year.

Plaintiff testified that in October 2007, he received a telephone call from his brother, who was living in his parents' house in Albania, that the police were there and were going to take two (2) of the parties' children. He further avers that he took a flight to Albania and that the police did not take the two (2) children because they are American citizens. Plaintiff avers that he did not want the children to go live at defendant's parents' house because he believed that the "strangest things" were happening there and he was concerned about their safety. He alleges that he took the remaining two (2) children and returned to the United States on October 19, 2007³⁷ . Shortly thereafter, in late October 2007 with the assistance of her friend "E.F." and a variety of organizations, defendant traveled to the United States.

37 It should be noted that the two (2) oldest children were already living with plaintiff in the United States at this time. The youngest child was living with the mother at her parents' house in Albania.

After the mother and youngest child arrived back in the United States, "E.F." avers that they stayed with her from late October 2007, when they arrived in the United States, until they moved into their own apartment on December 5, 2008. Defendant found the accommodations after she met with Sanctuary for Families and inquired about an apartment for her and her children.³⁸ "E.F.", testified that while defendant and her child lived with her, she often observed defendant and defendant taught her many things about nutrition and about not being frustrated while raising a toddler and that defendant appeared concerned about maintaining a steady schedule for the child.³⁹ She further testified that although defendant cried at night about her situation, she never appeared to let her situation with plaintiff interfere with her mothering.

38 It should be noted that defendant did not have custody of the children at this time.

39 "E.F." further testified that she accompanied defendant to the Albanian American Women's Organization, to look for English courses, to find an apartment and to the Family Court in order to help her fill out the necessary forms to seek an Order of Protection.

When questioned about why she got involved in the parties' affairs and why she chose to help defendant, the witness, "E.F.", testified that she decided to help because she was concerned about defendant and the children, especially after she attempted to speak with defendant in Albania, after plaintiff left her and defendant was crying on the phone.⁴⁰ "E.F." denied any knowledge of defendant being allowed to visit her children at plaintiff's family's house after she left to live at her own family's house with the youngest child, but asserts that it was her understanding that defendant attempted to contact the children but that she was not allowed to do so by plaintiff's family.

40 When questioned about why she allowed two (2) years to go by between telephone calls to defendant once plaintiff left her in Albania, the witness, "E.F.", alleged that she was scared that if she tried to call defendant, plaintiff would find out and that defendant would pay "a heavy price in the family" and that she herself would have to "pay for it."

On December 4, 2007, defendant went to Family Court and learned that plaintiff had already asked for custody of the children. In his petition for custody, plaintiff alleged:

"This Court has jurisdiction to issue a child custody or visitation order pursuant to Section 76(1) of the Domestic Relations Law on the following ground(s): no court of any other state would have jurisdiction . . .

Petitioner obtained custody of the children on June 1, 2007, as follows: the respondent mother refused to return to the United States from vacation in Albania in 2005. The child remained in the petitioner's mother's care in Albania from 09/2005 until recently when the petitioner was able to bring all of the children back here to live with him and was able to move his mother here as well. The respondent mother has not shown interest in the children nor has been active in their lives since she had a child with another man and left the home in 09/2005. Petitioner filed for divorce in Albania but it was dismissed because the children are United States citizens. Petitioner has the older two children already enrolled in school here and is requesting an order of custody in order to properly care for the children.

It would be in the best interests of the children for Petitioner to have custody for the following reasons: Petitioner has a stable and loving home to provide for the children and wants the very best for them."

At this time, defendant filed for an Order of Protection and requested to see the children.⁴¹ Defendant has a temporary order of protection in her favor presently in effect. This court consolidated the family court petitions into this divorce action.

41 Plaintiff alleges that the mother only made one attempt to telephone the children between October 2007 and when she saw them in Family Court in December 2007 even though he contends that she arrived in the United States on or about October 28, 2007.

Defendant saw the children for the first time, after being separated from them in Albania, at a New York police station on December 12, 2007. Defendant testified that one (1) of the children came to see her right away, but two (2) of the children appeared not to want to see her at first and only came up to her later. She further testified that plaintiff told the children to "go to that b —" and that she then took the children home for the visit. Defendant avers that the children said that they had missed her and that they were very affectionate and that they told her that plaintiff had told them she was in the hospital.

"E.F." confirmed defendant's testimony that the children appeared very happy to see defendant during the first visitation.⁴² She also corroborated defendant's testimony that the visitation, which continued into the following days, appeared to go smoothly and that the children acted like they were having a good time with defendant.

42 "E.F.", testified that the children were smiling and jumping up and down and hugging their mother and that, although he seemed a little withdrawn, the oldest child was also smiling and appeared to be happy to see defendant.

Defendant testified that the oldest child, who was eleven years old at the time, appeared very upset during the visit and that he told her that plaintiff had told him that she cheated on their father and that their mother was going to hire people to kill plaintiff.

On December 13, 2007, defendant was supposed to take the children to school the day following the visitation, but they did not have their backpacks with them. The oldest child said that he wanted to get his backpack from plaintiff's house, which was right across from the child's school and defendant followed him there to make sure that nothing happened to him.⁴³

43 It should be noted that plaintiff's house was located just across from the children's school so it was not strange that they passed by on their way to the school.

On the following day, December 14, 2007, the parties made arrangements for the children to be absent from school because of doctors appointments, but when the appointments were cancelled defendant decided to take the children to school anyway with the help of her friend, "E.F." On the way to school, the oldest child ran into plaintiff's house as they passed by. When defendant and the other children reached the school, the school officials called plaintiff and when he and the oldest child arrived at the school he alleged that defendant's friend had beaten the oldest child, which defendant denied.⁴⁴ The school authorities called the police and defendant told them that she had an order of protection against plaintiff at which point they accompanied her to a car, in which she took the ill child to the hospital. When they were leaving the hospital later, and on their way to pick up some medicine, one of the children said that he had seen plaintiff's car and then defendant and her friend saw it, too.⁴⁵ They entered a store and called the police on the telephone who then escorted them home. This testimony was confirmed by "E.F.". It appears to this court that this visitation was difficult for both defendant and the oldest child, who clearly was angry with defendant and under the influence of plaintiff and plaintiff's family. It does not appear that defendant was expecting or prepared when met with the hostility and substantial disrespect by this child towards her.

44 During this encounter, the school nurse had taken the temperature of one of the other children and suggested that defendant take the child to the hospital.

45 The van was identified because it had plaintiff's company's name and phone number printed on it.

Defendant testified that when she has visitation with the children she plays with them and that they cook traditional Albanian cookies together as well as watch television. When the weather is nice they go to the park or shopping. She further testified that she used to go to the children's school to inquire about their progress, but stopped after she had problems with plaintiff.

Defendant alleges that on January 4, 2008, she went to the school to talk to one (1) of the child's teachers about his progress and when she was leaving the school with a friend and the children she saw plaintiff who then followed them and physically blocked them from leaving the school; the police were called. At that point, defendant avers that she and the children returned to the school where they stayed until the police arrived and escorted them to a taxicab and went home. This testimony was confirmed by "E.F.".

"E.F." also testified that, on or about January 17, 2008, she accompanied defendant to the police precinct to pick up the children for a scheduled visitation but that after an hour, plaintiff had not arrived so the officer on duty telephoned him. She alleges that plaintiff showed up an hour later, without the children, and talked to the officer and that they had to wait another hour before the children finally arrived. She further avers that when he did finally arrive with the children he was cursing and screaming at defendant saying "f — your mother's mother because nothing is enough" and "I'll f — you up. You'll see who I am" and that he also cursed at her saying "I'm going to f — you up!" She alleges that some of the children appeared uncomfortable and clung to defendant and looked at the floor while one of the young children repeated what his father was yelling and laughing, but she avers that after plaintiff left, the child who repeated plaintiff's curses apologized to his mother.

"E.F." also alleges that she was accompanying defendant to pick up the children from the precinct in late April 2008 and plaintiff was waiting for them outside. When they got close he told her in vile terms to eat or drink her excrement. She avers that one of the children, who was waiting with plaintiff, was echoing his curses and pointing at defendant and "E.F.". The witness, "E.F.", testified that the child who was repeating plaintiff's curses at defendant had just or was just about to turn five (5) years of age. She further alleges that one of the even younger children, who was about three-and-a-half (3 ½) years of age at the time, was attempting to copy the five (5) year old child by saying slang words for excrement and sexual intercourse and laughing. She testified that plaintiff left after a police officer walked out of the precinct and that once he was gone the children seemed to calm down and that they apologized to defendant for saying bad things. "E.F.", further avers that when the children act strangely when they are around their father and that they say "s[— —] b —" and "f[— — —] whore" to their mother, but that when he leaves they are very affectionate to her and that they are playful and that they apologize constantly for having said bad words.

The witness, "E.F.", testified that since December 2005, she heard plaintiff say, in front of his children, that the youngest child is "not daddy's" and that he is not his son.⁴⁶ At trial, plaintiff denied ever stating that the youngest child was not his child.

46 "E.F." testified that she and her husband accompanied defendant to drop off the children at the precinct and that the children wanted plaintiff to play with the youngest child and that plaintiff said, "Yes, I know he is cute, but he's not daddy's son. He's not daddy's. He not my son."

Defendant further contends that when plaintiff is present, the children tell her that they do no want to visit with her and call her a "b —" and makes a racist suggestions about sleeping with another man, but that when she is alone with them they are affectionate and they apologize for what they have said. Defendant alleges that the children tell her that plaintiff tells them to curse their mother and that he has told them to do things like take her telephone and flush it down the toilet so that she cannot talk to anyone.

Defendant alleges that plaintiff routinely curses her during the drop offs and pick ups and calls her a "b —" and says "f[—] her" in front of the parties' children.

Defendant contends that her relationship with the oldest child has deteriorated since January 2008. She testified that on one occasion, in late January 2008, while she was dropping off the other children at school, the oldest child called out to his siblings and spoke to them but refused to speak to his mother. Defendant next saw the oldest child in March 2008, at the psychologists office but, as of the date of trial, did not have any other therapeutic visitation with him.

Defendant testified that she prepared a spacious one (1) bedroom apartment with a bed for each child and that she has a television with tapes and toys for each of the children appropriate to their age level and that at the time of trial, she was looking for a more comfortable house for her and the children since she had recently received "Section 8" funding. She further testified that she is currently unemployed but seeking employment as a babysitter or as a seamstress and in the meantime she is living on the funds plaintiff provides, public assistance and through the help of friends.

Testimony was heard from Ms. Diane Hessman, a social worker, who, on consent was appointed for the purpose of supervising therapeutic supervised visitation between defendant and the oldest son. Ms. Hessman contacted plaintiff soon after her conversation with the attorney for the children, but he did not respond within a week so she telephoned his attorney and the attorney for the children. Shortly thereafter, plaintiff did contact Ms. Hessman. She testified that her first scheduled meeting with plaintiff was for April 5, 2008, but that he never showed up to the meeting and when she talked to him later, he asserted that he believed that the meeting was for the following day. The meeting was then rescheduled for the following day but plaintiff was unable to make it because he claimed that he had forgotten that he had visitation with his youngest child that day, so the first actual meeting with plaintiff occurred on April 7, 2008.

During the meeting on April 7, 2008, Ms. Hessman avers that she talked to plaintiff about the oldest child being in therapy and that she believed that the child was going to attend therapy at a later date. She alleges that plaintiff gave her verbal permission to speak to a therapist. She also testified that plaintiff told her that his landlord had notified him that defendant was partying in the apartment and that she was doing drugs and cheating on him while he was at work and that she beat the children. Furthermore, she testified that plaintiff told her that his family did not know where defendant really was the night in Albania when she allegedly went to visit her ailing mother.⁴⁷

47 The court notes that plaintiff appears to place great significance on the fact that defendant's mother did not die the night that defendant's relatives came to plaintiff's parents' house claiming that her mother was ill.

Ms. Hessman set up a meeting with the oldest child a few days later. During that meeting, according to Ms. Hessman, the parties' oldest child said that he did not want to see defendant, that she and her friend beat him and that she did drugs. When asked about what kind of drugs defendant did, the child said he did not know what kind of drugs she did, only that she did drugs and that he did not want to see her.

Plaintiff testified that the first meeting with Ms. Hessman went very well and that the oldest child wanted to go again, but that during the second visit when she told the child that his mother was in the next room and asked him whether he wished to see her, that the child started to cry and said "no". Plaintiff asserts that he then told the child that he must go visit with his mothered. Plaintiff additionally testified at trial that he would fully cooperate with any future court ordered therapeutic visitation.

On cross examination, Ms. Hessman testified that she never specifically asked the child whether his father had told him to say negative things about his mother because that would have been leading him, but that she did ask him whether that was how he "really felt". After the meeting, Ms. Hessman arranged for therapeutic supervised visits and had an interpreter come to her office for a two-hour block of time so that she could meet with defendant and then with both defendant and the oldest child.

Ms. Hessman testified that the stories that she heard from plaintiff and defendant were similar in some ways, but that defendant's account differed from plaintiff's account in other respects.⁴⁸ After the meeting with defendant, Ms. Hessman met with both defendant and the parties' oldest child. She testified that the child cried when plaintiff dropped him off at the meeting and that the child accused defendant of lying and using drugs. Ms. Hessman ended the meeting after 40 minutes, instead of the usual hour, because the child was crying so much and because she determined that he had enough for the day. She walked him out to where plaintiff was waiting in a car for the child and she alleges that when plaintiff saw the child crying, he said he told her that the child did not want to see defendant. Ms. Hessman declined to have the conversation outside of the office and plaintiff took the child home. Ms. Hessman testified that she did not have any further therapeutic visitations with defendant and the parties' oldest child after that initial meeting, but that she did call plaintiff the day before the May 8, 2008, court date to see how the child was doing and that is when she learned that he was not in therapy. Ms. Hessman alleges that her understanding was that there was a trial on going, and that because the initial visit had not gone well, that the court would determine the future visitation schedule. She also alleged that she spoke with plaintiff on another occasion after the initial visit and before the May 7, 2008, conversation and that during that conversation plaintiff declined to set up another visit and that he told her that she did not know what she was doing. Additionally, Ms. Hessman testified that plaintiff objected to the oldest child having therapeutic visitation with defendant in front of the oldest child.

48 Ms. Hessman testified that defendant acknowledged that being unfaithful was a very shameful thing to do within her community in Albania, but denied being unfaithful to her husband.

Plaintiff testified that at the time of trial he lives in a two bedroom apartment and that he has a bed for each child. At the time of trial, plaintiff's parents and his brother were also living at plaintiff's apartment. He asserts that his brother helps a great deal with the child care responsibilities and that he has more free time so he takes the children out to do activities like going to the beach, the park and to school. Plaintiff also asserts that a babysitter takes care of the children in the afternoons, that his mother cooks for the family and that the older neighborhood children help his children with their homework. He alleges that he does not plan to remain in the apartment, he is planning to purchase a house.

Defendant requests that the court award her custody of the children and an order of protection for five (5) years because she is afraid of plaintiff because he continues to threaten her. Plaintiff seeks residential custody, structured family counseling with the goal of "normalizing their role as co-parents". Plaintiffs also seeks overnight visitation the youngest child. The attorney for the child seeks that the four (4) oldest children remain with plaintiff and the youngest child remain with defendant. Neither party or the children's attorney requested an in camera interview be held with "I.K." ( see Lincoln v. Lincoln, 24 NY2d 270, 299 NYS2d 842) Notwithstanding same, the court order that "I.K." be brought to court by the attorney for the child for an in camera interview.

The Law

Order of Protection In Supreme Court, the court may issue an order of protection pursuant to Domestic Relations Law section 240. That order of protection, once granted, can provide certain conditions which require the enjoined party to obey ( see Domestic Relations Law 252 a-g). Additionally Domestic Relations Law section 252 [b] provides:

An order of protection entered pursuant to this subdivision may be made in the final judgment in any matrimonial action, or by one or more orders from time before or subsequent to final judgment, or by both such order or orders and the final judgment. The order of protection may remain in effect after entry of a final matrimonial judgment and during the minority of any child whose custody or visitation is the subject of a provision of a final judgment or any order. An order of protection my be entered notwithstanding that the court for any reason whatsoever, other than lack of jurisdiction, refuses to grant the relief requested in the action or proceeding.

In as much as the Family Court petitions were consolidated into the Supreme Court matrimonial action, herein, the Supreme Court is a court of general jurisdiction, this court has the authority to determine the issue of the order of protection in the context of the consolidated divorce action ( see People v. Davis, 27 AD2d 299, 278 NYS2d 750[1 Dept., 1967]; see also Domestic Relations Law 240 and 252 and N.Y.S. Constitution Articles 6 7).

The court finds defendant's testimony of acts of violence, threats and intimidation are credible and plaintiff's denial not credible. The court specifically finds that:

1-In November, 1999, plaintiff, while visiting defendant in Albania, caused defendant physical injury by smashing her head into a wall which resulted in a black eye, hearing problems and bruises to her ear. The bruises to her ear lasted for several weeks. This incident occurred in front of their child.

2-In the summer of 2001, plaintiff pushed defendant and grabbed her by the hair, which resulted in defendant hitting a wall and table causing defendant to have headaches and stomach aches. Defendant was six (6) months pregnant at that time, and this incident occurred in front of a child and others.

3-In early 2002, when defendant accidently dropped a dish cover, plaintiff caused physical injury which resulted in pain and numbness in defendant's leg which lasted for several days when plaintiff kicked her in the leg below the knee with "great force".

4-On January 2 and 3, 2006, plaintiff caused physical injury to defendant, by grabbing her by the throat with one hand, and hitting her on the shoulder with the other. Plaintiff puthis hand in his pocket after striking defendant, intentionally placing or attempting to place defendant in fear of death, imminent serious physical injury or physical injury by a knife or gun. The incident woke up one of the children who was in the room and started to cry.

5-The acts of July, 2007 which were tape recorded by defendant show that plaintiff communicated threats to defendant and did harass, annoy, and alarm defendant, threatening to strike her and subject her to physical contact. The court heard the threats and intimidating statements by plaintiff.

6-On January 4, 2008, plaintiff, with intent to harass, annoy, alarm defendant, followed defendant in the public place, and subjected defendant to physical contact. Plaintiff physically blocked defendant and her friend from leaving the school. The court finds that these incidents constitute violations of the temporary order of protection.

On January 17, 2008, plaintiff did curse and scream at defendant and threatened "I'll f — you up". Plaintiff yelled at defendant, cursed her in front of the children and one of the children repeated what the father was yelling. Additionally, defendant alleges that the incidents of January 17, 2008, as testified by defendant are also violations of the temporary order of protection as these incidents constitute an intent to harass, annoy or alarm defendant, plaintiff threatened to subject her to physical contact by stating that he would "f — her up". The court finds that they constitute aggravating circumstances

7-In late April, 2008, plaintiff told defendant, in vile terms, to eat or drink her excrement, comments then repeated by their five (5) year old child. This act was also a violation of the temporary of order of protection and constitutes aggravating circumstances pursuant to Family Court Act section 842 ( see FCA 827 (a) VII and FCA 842). These acts complained of occurred, at times, in front of the children or other family members. Such acts clearly establish the existence of aggravating circumstances as defined by the statute ( see matter of Reilly v Reilly, 254 AD2d 361, 688 NYS2d 153 [2 Dept., 1998]; see also Charles v. Charles , 21 AD3d 487 , 799 NYS2d 822 [2 Dept., 2005]). Plaintiff's violent behavior when the children were present constitute an immediate ongoing danger ( see Charlene J.R v. Walter A.M., 307 AD2d 1038, 763 NYS2d 778 [2 Dept., 2003] ["The appellant exhibited violent and harassing behavior either in the presence of Charlene J. R., alone, or while the children were present, which constituted an immediate and ongoing danger to them "]).

The court notes that not only was the testimony of defendant both credible and compelling, the corroborating testimony of the witness "E.F." described an atmosphere of fear, actual threats, physical violence and intimidation of an ongoing nature. Defendant was subjected to curses, taunts, physical violence, being spat on and a victim of overt violence and degradation through the marriage. The tape recording admitted into evidence provided the court with the actual opportunity to hear plaintiff's threats and intimidation as well as the emotional distress his actions caused defendant as well as her responses and heart wrenching pleas to see the children.

Under these circumstances and pursuant to Domestic Relations Law section 240 and 252 a final order of protection in favor of defendant is granted. It is abundantly clear that plaintiff poses an imminent and ongoing danger to defendant and therefore granting defendant a final order of protection for a period of five (5) years is appropriate ( see DRL 252 [b]). Thus, defendant is granted a five (5) year final order of protection effective August 15, 2008, to expire on August 15, 2013. Plaintiff shall not harass annoy, strike, menace or intimidate defendant, and shall refrain from any criminal offense. He shall cease and desist from any communication in any language except by e-mail or letter, which is limited to issues concerning the children's well being and or health and education. He shall not telephone defendant and he shall stay away from her home, place of business and place of employment. Any exchange of children must occur at a police precinct (chosen by defendant)or at the school ( see Domestic Relations Law 240 [b] [3]).

Custody

It is well established that the trial court is given great deference to assess the character and credibility of the parties ( see Varga v Varga, 288 AD2d 210, 211, 732 NYS2d 576 [2 Dept 2001], citing Diaco v Diaco, 278 AD2d 358, 717 NYS2d 635 [2 Dept 2000]; see also Ferraro v Ferraro, 257 AD2d 596, 598, 684 NYS2d 274 [2 Dept 1999]). In determining a child's custody, the court is to act as parens patriae and must base its determination on "child's best interests" ( see Tropea v Tropea, 87 NY2d 727, 741 642 NYS2d 575, see also Finlay v Finlay, 240 NY 429, 148 NE 624). In doing so, the court must make a decision based upon the totality of the circumstances, ( see Eschbach v Eschbach, 56 NY2d 167, 172 451 NYS2d 658), 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." ( Matter of Louise E.W. v W. Stephen S. 64 NY2d 946, 947, 488 NYS2d 637).

Recently, 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, 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) ( Mohen v, Mohen, ___A.D.3d___[2 Dept., 2008]).

It is also well established that the court must take into account any incidents of domestic violence when making a custody determination ( see Domestic Relations Law 240 (1) (a); see also Matter of Wissink v Wissink, 301 AD2d 36, 749 NY.S.2d 550 [2 Dept., 2002]). This court will not minimize the domestic violence that occurred between these parties. The court is concerned with plaintiff's overwhelming acts of physical, emotional and verbal abuse such as when plaintiff smashed defendant's head in the wall when she attempted to bring her son outside to the bathroom or when he grabbed her by the hair and pushed her into a wall when she attempted to protect her son. Plaintiff has also engaged in verbal abuse towards defendant including constant cursing and verbal threats in front of the children. The court finds the testimony of "E.T." credible, particularly when she accompanied defendant to pick up the children from the precinct for visitation, plaintiff cursed at her in front of the children and said "Drink pee. Eat s[—]."

There is overwhelming authority that children's exposure to violence can have lasting effects such as severe psychological injury ( Wissink v. Wissink, 301 AD2dat 40). Moreover, exposing children to this behavior can lead the child to learn "a dangerous and morally depraved lesson that abusive behavior is not only acceptable, but may even be rewarded" ( Id.). The court notes that the children have already begun to show signs that they are harmed by these incidents, even the three and half year old, who tried to echo plaintiff's words "s[—]", "pee" and "f[—]", giggling afterwards. The children have also begun to call their mother a "s[— —] b —" and f[— — —] whore" in front of plaintiff.⁴⁹ The court fears that, at some point, the children themselves may either become victims of plaintiff's explosive actions or develop similar patterns of abuse ( Rohan v Rohan, 213 AD2d 804, 806 623 NYS2d 390 [3 Dept., 1995]).

49 However, when plaintiff leaves the room the children become playful and affectionate towards their mother.

It has been noted in the Lawyer's Manual on Domestic Violence that:

. . . [J]udicial decisions are supported by a growing body of literature by social scientists and legal experts alike who have concluded that it is impossible for abusive parents to provide proper moral, emotional, and intellectual guidance to their children. The consensus is that violence is a learned behavior; it is "cyclical and self-perpetuating. Children who live in a climate of violence learned to use physical violence as an outlet for anger and are more likely to use violence to solve problems while children and later as adults." [citations omitted] . . . More conclusively, it has been demonstrated that boys who are exposed to violence in their homes are at major risk of becoming batterers. [citations omitted].

(Susser, Kim, "Lawyer's Manual on Domestic Violence, Representing the Victim", 5th Edition, 2006, § 5 "Litigating Custody and Visitation in Domestic Violence Cases").

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 Matter of Bliss v. Ach, 56 NY2d 995, 998, 453 NYS2d 633). The court recognizes that an "interference with the relationship between a child and a noncustodial parent by the custodial parent has been said to be so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as custodial parent" ( Chebuske v. Burnhard-Vogt, 284 AD2d 456, 458, 726 NYS2d 697 [2 Dept., 1995]).

This court must determine what is in the best interest of the child and what custody situation will promote the child's greatest welfare and happiness. While a child's preference is not determinative of the court's decision, it is a factor in the totality of circumstances ( see Ebert v. Ebert, 38 NY2d 700, 382 NYS2d 472, see also Dintruff v. McGreevey, 34 NY2d 887, 888, 359 NYS2d 281). This court recognizes that the oldest child wishes to live with plaintiff, but must view that desire in the context of what he has been told and his immersion by plaintiff and plaintiff's family in a family dispute designed to denigrate and humiliate defendant, and isolate her from her children.

Plaintiff has engaged in a pattern of behavior which clearly culminated in the filing of a false petition in Kings County Family Court, seeking custody of the children when plaintiff learned that defendant gained access to the United States and was seeking to regain custody. When plaintiff could not gain custody of the children in Albania, he utilized the New York Family Court and systematically continued on his quest to isolate defendant from the children.

It is clear to this court that plaintiff would say and do anything, including falsely accusing defendant of engaging in an adulterous affair and utilizing drugs, in an effort to discredit her not only to his family but these children and defendant's own family as well. Plaintiff's utter hatred towards defendant and her family, which has for many years resulted in defendant's forced alienation from her own family is disturbing to this court.

While this court is mindful of and extremely sensitive to the cultural identities of parties and the customs and practices that may vary in different parts of the world, this court, cannot close its eyes to the brute domestic and emotional violence imparted upon this defendant, which resulted not only in physical pain but emotional pain, and power exerted over her more than anyone should be subjected to. Plaintiff's explosive and volatile conduct created a hostile environment. It is of concern to this court that even during the trial, while defendant and "E.F." each testified, plaintiff was laughing and smiling until admonished by the court tostopsuch behavior.

The independent witness, once a family friend of plaintiff, who came forward and with the assistance of others including Sanctuary For Families did so, clearly, at her own risk. Plaintiff's overt threats towards her and towards defendant's family are of concern to this court. While plaintiff testified that he felt like the "king of Brooklyn" he has acted in manner which is inconsistent with appropriate behavior. He does truly believe that he is all powerful and by his status he must dictate and control the children and his spouse. The emotional and convincing credible testimony of defendant clearly shows this court that she defied the attempt to be controlled by others and was placed in a terrible dilemma-to visit, what she believed to be, an ailing mother and risk the isolation from her children. The systematic and deliberate interference of her relationship with these children, being kept all but captive in Albania without access to travel documents, having communications monitored at all times, being kept from her own family, while being subject to physical violence and threats are more than anyone should ever have to endure.

The court does not believe plaintiff when he testified that the only time he argued with defendant was the tape recorded conversation which was translated in open court, nor does the court believe his denials of the detailed heart wrenching testimony of violence and degradation as emotional and painful as it was for defendant to relive in an open courtroom. The court could hear on the tape the anger and threats of plaintiff as well as the pleading and almost begging of defendant to see the children. The court rejects plaintiff's testimony that defendant all along knew where her passport was and believes that he never thought that she or others would be successful in getting her permission to enter the United States to seek custody. Nor does this court believe that defendant gave permission for plaintiff to take the children from her. Plaintiff has overtly influenced the children, especially the oldest child "I.K.", who the court fears will attempt to influence the younger children, unless plaintiff immediately takes the steps necessary to make sure he and his extended family do all that is needed to restore the relationship between defendant and the children, especially "I.K.".

It is of significance that this court believes that plaintiff alone is not the caretaker of these children but it is his extended family whom have participated in assisting him and allowing these children to curse their mother, make fun of her and degrade her in vile and inappropriate ways that no parent or anyone should ever be subjected to. Plaintiff, until now, has not been an appropriate role model. Plaintiff's view of the role of women is of extreme concern to this court and what he will teach his male children about women. The compelling credible testimony of defendant as to plaintiff's view of the role of women, washing clothes by hand, the lack of pre-natal care afforded to her and the constant threats and lack of trust that plaintiff has and the utter disrespect for defendant is of further concern. Plaintiff's explanations that his acts and those of his parents were in accordance with traditional Albanian culture are inconsistent with his position that he recognizes that he has been in America for many years, that he is modern in his thinking and that his children are American citizens. In fact, defendant painfully testified how she was treated in Albania so differently from her other sisters-in-law. This case is not about the difference between Albanian culture and American culture, it is about the degradation and violence imposed upon a mother who was purposefully separated from her children, and even had the telephone communication interfered with. Having children cling to their mother while their father acts out is a life long memory imprinted in the minds of children.

This court has carefully considered restricting all contact between the children and plaintiff to have supervised visitation in a setting which could insure that the children are not taught in either English or Albanian during the session to denigrate, curse or impose violence upon defendant. The court warns plaintiff in no uncertain terms, that if there is any further alienation of the children and there is no a restoration of defendant's relationship with "I.K." (the oldest child) that remedy may be considered.

Courts are increasingly faced with the vexing problem of dealing with children who have been wrongfully influenced by parents who have involved the children in disputes. Even assuming, arguendo, that the allegations of plaintiff concerning defendant's alleged infidelity were true (which the court believes were false) the mere involvement of the children in that assertion is, in and of itself, inappropriate. He has negatively influenced young children without any evidence, based upon his conjecture and has defamed and destroyed children's images and respect for their mother. It is telling that the children are compelled to taunt defendant and act inappropriately in front of plaintiff and then apologize to defendant afterwards when alone with her. The court cannot countenance, as difficult as it might be for the older child to re-adjust, allowing him to permanently stay with plaintiff. What his father taught him and the other children about authority, domestic violence, parenting and the role of women in society is not appropriate.

With the assistance of others, defendant has found a safe environment and is eligible for "Section 8" housing to provide the children with a safe loving environment with the individual who raised them for most of their lives. It is telling that for most of their lives plaintiff played a minimal or absentee role in the care, education and nurturing of the children who were raised in Albania and the United States. For the most part, he has absented himself from the children for months and months at a time, and even in the United States delegated their care to others.

Plaintiff has agreed to extensive therapeutic visitation between the oldest child and defendant, and it is only based upon that agreement that this court believes, with the assistance of his counsel, there may be a "glimmer of hope" that plaintiff will assist in restoring a positive relationship of "I.K." with defendant.

Defendant too, must recognize that "I.K." is a child who has been indoctrinated to believe that she is the epitome of all evil. She must engage in constructive ways to re-establish the relationship. This child and all of the children are also victims of plaintiff.

The physical surrounding of plaintiff's residence does not convince this court that he will offer a better environment for the children than defendant. They live in a relatively close living space with plaintiff's brother and his parents. While plaintiff claims he is responsible for all of their support, the court can only recognize the support obligation to defendant and children. It is clear to this court that defendant will more readily allow plaintiff access to the children than plaintiff would allow defendant. The court negatively views any attitude or actions that limit access to the child or that appears to demean the other parent to the child ( see Stern v. Stern, 304 AD2d 649, 649, 758 NYS2d 155 [2 Dept., 2003]).

Certainly joint custody is not an appropriate remedy here. There needs to be clear lines of authority so plaintiff knows and understands that he cannot treat defendant or influence the children in the manner he is accustomed. The level of acrimony is far to great to justify such an award and, given the limits imposed on communications herein, would be impracticable ( see Pambianchi v. Goldberg , 35 AD3d 688 , 827 NYS2d 225 [2 Dept.,2006]). Similarly, plaintiff's request for structured family counseling is denied given the level of domestic violence and the existence of the order of protection.

As such, defendant is awarded full custody of all of the infant children of the marriage. The children's passports, presently in the possession of the Clerk of the Family Court, shall be released to defendant, forthwith. She is also authorized to obtain any other passports seized by the United States Department of State. Absent court permission or the written consent of defendant, plaintiff shall not remove the children from the United States.

The fact that plaintiff agreed in his summation to a "limited order of protection" is a start to his realization that his behavior is inappropriate. This, when coupled with his agreement at the end of the trial to cooperate with and encourage therapeutic visitation with defendant and child, "I.K.", at this juncture, are the only reasons the court has not ordered supervised visitation for defendant immediately. The therapeutic visitation that plaintiff previously agreed to will continue with defendant until December 31, 2008.

While cognizant of the preference to leave siblings together in the same residence ( see Eschbach v Eschbach, 56 NY2d 167, 173, 451 NYS2d 658), "I.K.", the oldest child shall temporarily reside with plaintiff, who shall have the right to make decisions on an emergency basis only for the child but whose legal custody shall be vested in defendant. The court envisions returning the child to the physical custody of defendant by January 1, 2009. Plaintiff must heed this court's warnings as to what he does to assist in this reconciliation with defendant, if he wishes to have continued visitation with the children, unsupervised.

The court disagrees with the position taken by the attorney for the children that plaintiff should have custody of all of the children ( see Kelly v. Hackman, 44 AD3d 941, 844 NYS2d 124 [2 Dept.,2007]; see also Sienkwicz v. Sienkwicz, 298 AD2d 396, 751 NYS2d 398 [2 Dept., 2002] [" The Family Court was not obligated to accept the recommendations of the Law Guardian and the court-appointed forensic expert [citations omitted]. The Family Court explained its reasons for rejecting their recommendations and its reasoning is supported by the record [citations omitted]").

Visitation

The children shall have parenting time with plaintiff, every other weekend, to be picked up from school on Friday at the end of the school day and returned to school on Monday morning. Due to the domestic violence concerns and history, and the fact that defendant does not have a car to drive, mid-week visitation is at this point impracticable. Plaintiff though shall deliver the child "I.K.", to defendant every other weekend, so he may be with defendant and his siblings on the weekends that plaintiff does not have the other children. If school is not in session, pick up and delivery shall be at the police precinct closest to where defendant resides. The youngest child shall be included in these visits with plaintiff but they shall be every other Saturday from 10:30 a.m. until Sunday at 5:00 p.m. until October 31, 2008, so as to allow a period of re-acquaintance.

During the summer, the parents shall alternate two (2) weeks each with the children, commencing the summer of 2009.

The parties shall alternate New Year's day, Martin Luther King day, President's weekend, February school recess, spring school recess, Memorial day, Labor day, Columbus day, Thanksgiving weekend December/January school recess and New Year's eve. The parties shall also alternate religious holidays. Commencing September 2008, defendant will have the children for Labor day weekend and the parties will alternate holidays accordingly thereafter. The children shall always be with defendant on Mother's day and plaintiff on Fathers's day.

Plaintiff shall have access to all medical, dental, psychologic and educational records of the children with addresses omitted. Plaintiff shall receive notification of all medical appointments and school events and extra curricular activities and shall attend same if he desires. He shall have the right to attend all parent teacher conferences, receive all report cards, standardized test results, admission test notifications and doctors appointments. If any of the children are admitted to a hospital or receive emergency medical treatment, he shall be notified immediately and shall be allowed to attend and visit the child and participate in planing of the child's medical treatment. The parties shall be able to telephone the children when they are with the other parent.

Conclusion

Settle an interlocutory judgment, on notice together with a copy of this decision with notice of entry within 30 days. The final order of protection is being entered herein effective immediately is being entered by separate order.

The New York City Police Department shall assist in service of the final order of protection, if necessary. Defendant is authorized to register the children in appropriate schools for fall 2008 except "I.K." who shall be registered by defendant in an appropriate school for the January 2009 term. In the fall 2008 term he shall attend his present school. Defendant shall have full access during this semester to "I.K."'s school records, programs and events