The court should not have initiated ex parte contact with the forensic neutral ( see Lightman v. Lightman, 253 A.D.2d 453) upon plaintiff's application for temporary exclusive possession of the marital residence, where her allegations did not rise to the level of requiring urgent relief. Moreover, the decision on exclusive possession attributed to the forensic neutral a statement concerning the child's "extreme emotional distress," which the court had never before mentioned to the parties, and which contrasted with an earlier pronouncement on the record that the forensic neutral had not found the child to be in any danger. Also significant are the court's factual findings about defendant, which were controverted by the evidence ( cf. People v. Grier, 273 A.D.2d 403).
Nevertheless, reversal and remand are not warranted because the determination that defendant should no longer reside in the marital residence and that plaintiff should receive sole custody was supported by the evidence. However, in our discretion, we find that in light of the circumstances presented, all future proceedings should be assigned to another justice.
Joint custody was simply not in the best interests of this child ( see Braiman v. Braiman, 44 N.Y.2d 584, 589-90). However, encouraging plaintiff to solicit defendant's input with respect to the child's education, albeit resting ultimate decision-making authority with plaintiff, is consistent with the forensic neutral's conclusion that defendant also had much to offer to the child ( see e.g. Mars v. Mars, 286 A.D.2d 201, 202-203). This would also be consistent with the generous visitation privileges afforded defendant. We note, however, that the automatic suspension of visitation upon denigration of plaintiff was based on unsubstantiated hearsay, controverted by five witnesses, and made no provision for a hearing or forensic evaluation before its imposition ( see Klutchko v. Baron, 1 A.D.3d 400, 405).
M-2021 — Federico v. Federico
Motion seeking leave to strike brief and for other related relief denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.