..... Theodora

.

This summary consists of text from the fourth New York appeal


      TABLE OF CONTENTS

      Statement of Facts .................................... 4
      Chronology .............................................. 4
      Petition has not been heard ............................. 6
      Quality of Child's Care ................................. 6
      Mother Fled to New York ................................. 10
      Mother's Mental State and Inability to Properly Care for Child ... 11
      Mother Denied Access ............................... 11
      Mother's Concealment of Medical/Educational Matters ........... 12
      Court Ordered Psychological Evaluation ......................... 13
      Judicial Misconduct ............................................ 14

      APPENDIX TABLE OF CONTENTS


      Notice of Appeal dated December 11, 1999 of 9811277 1
      Order Appealed from dated December 9, 1998 2

      Appellant's Petition for Modification of Custody and Visitation dated 9/16/98

      Transcript of Family Court proceeding of October 29, 1999 4

      Petitioner's Affidavit in Support of Motion to Reargue 25

      Petitioners motion for the judge's recusal, in the form of letter dated 10/16/98 28

      Dr. Oas Affidavit dated 5/8/98 (Exhibit to affidavit in support) 44

      Regression Statement from Children's School for Early Development,
      dated 2/8/98 (Exhibit to affidavit in support) 47

      Ossining School Committee meeting minutes. Statement regarding
      diminished strength of extremities and decreased attention span, 10/9/97
      (Exhibit to affidavit in support) 48

      11/14/97 emergency hospital admission at Westchester County Medical
      Center (Exhibit to affidavit in support) 49
      12/16/97 second emergency hospital admission at Westchester County
      Medical Center (Exhibit to affidavit in support) 51

      Children's School for Early Development Review, dated 2/9/98
      (Exhibit to affidavit in support) 53

      Children's School Occupational Therapy Evaluation, 2/5/98
      (Exhibit to affidavit in support) 56

      Mother's written report to me, dated 4/30/96 (when Teddy was 2.5 years old
      and still under my daily care), that "Both [Dr. Neil Guist] and Dr. McGinnis
      felt that Teddy's understanding & abilities are if not equal to a 2 1/2 year old's
      they surpass most". (Exhibit to affidavit in support) 57

      Report from Child Development Center, date 11/21/96 describing Teddy's
      abilities. (Exhibit to affidavit in support) 58

      Letter to Judge Scancarelli dated 4/21/98 submitted previously
      in Family Court File 59

      Affidavit of Sandra Savo (Exhibit to affidavit in support) 61

      Affidavit of Irene Coutsoukis (Exhibit to affidavit in support) 62

      Affidavit of Dr. William H. Bloom (Exhibit to affidavit in support) 63

      Affidavit in Support of Petition for Modification, September 1998,
      certified original in Court record. 69

      Affidavit of Frida Moki (Exhibit to affidavit in support) 76

      Presbyterian Hospital intake form, describing Teddy as "an alert and pleasant girl". 77

      Dentist report, dated 9/10/98 states that my daughter "needs restraint to work on
      2 assistants & parent [mother]" 78

      Dr. Darryl C. Devivo's "Office Summary", dated 6/13/97, saying (on the last
      page) that "mother indicates that Teddy has not suffered any regression of function,
      as far as she can determine". 79

      Letter from Dr. William Epstein dated 2/10/98 82

      Oregon Documents Submitted to Family Court

      Transcript of Oregon Proceeding of 9/12/97 Vol 1 83

      Children's School "Infant/Toddler Program Description" 128

      Statement of Child Neurology Society Regarding the Ketogenic Diet. 129

      Letter dated 8/10/97 from Dr. Skouteli, who successfully treated Teddy for two years, expressing surprise (p.2) that Teddy was switched to the ketogenic diet, which she
      characterizes as "never been a convincing, effective treatment" 133

      Child Development Center "Occupational Therapy Evaluation", dated 10/10/95,
      describing Teddy as "delightful", with an "engaging personality". 135

      My affidavit re: Mother's denial of access and violation of order requiring her
      to consult with me prior to arrangements with medical and educational providers. 137

      Mother's statement in Children's School "Social History". 138

      Letter signed by Mr. Domicello on 9/15/97. 139

      Transcript of Oregon Proceeding of May 4, 1998. 140

      Affidavit in Support of my motion for New Trial (Oregon) 157

      Order to Show Cause (Oregon) 165

      Oregon Judge Arnold's Letter to Appellant, dated June 4th, 1998 168

      My Supplemental Affidavit in Response to Petitioner's Motion to Decline
      (Oregon) Jurisdiction and Dismiss the Modification Proceeding. 170

      Oregon Court Order Pursuant to UCCJA 176

      Affidavit in Support of my Motion for Reconsideration or Order Pursuant to UCCJA 180

      Transcript of Oregon proceedings dated 1/20/98 189

      Supplemental Affidavit in support of my Motion for Reconsideration
      of Order Pursuant to UCCJA 191

      Supplemental Motion for Reconsideration of Order Pursuant to UCCJA 193

      Order signed by Oregon Judge Karaman of Oregon, dated 5/5/97, prohibiting Mother
      from moving again from her current residence until custody is resolved. 195

      Order signed by Oregon Judge Karaman, requiring parties to participate in mediation
      and psychological evaluation dated 1/29/96. 198

      Oregon Court Order Declining jurisdiction dated 8/18/98 . 200

      NY Family Court Decision, dated 7/31/98 210


      Appellate Division Decisions on My Motions

      NY Appellate Division Decision and Order denying Consolidation of appeals,
      enlargement of time and record. 212

      PRELIMINARY STATEMENT


      Photius Coutsoukis, the Petitioner-Appellant (hereinafter "I" or "the Father") appeals from AN order of Hon. Ingrid S. Braslow in which she ruled in favor of Susan Samora, the Respondent-Respondent (hereinafter "the Mother") on modification of custody and visitation concerning the parties' infant child without allowing a hearing, inaccurately ruling that the issues had already been litigated in the Circuit Court of the State of Oregon.


      QUESTIONS PRESENTED

      1. Were the allegations of my petition fully litigated in 1997 before the Circuit Court of the State of Oregon?
      The trial court answered this question in the affirmative.

      2. Was I entitled to a hearing to present evidence and/or testimony in support of my petition?
      The trial court answered this question in the negative.

      3. Is it in the best interest of the subject child for her to have custody changed from her mother to me or for her to have increased visitation with me?
      The trial court did not answer this question.


      STATEMENT OF FACTS

      The following chronology is helpful in understanding the factual background of all my appeals presently before the Court:

      12/12/96 Oregon temporary order based on Mediation Agreement whereby I (the Father) agreed to custody with Mother in return for my daughter having daily visitation at my home from 11:30 AM - 5:00 PM Monday-Friday.

      4/1/97 Mother flees to New York in the midst of Oregon psychological evaluation.

      4/7/97 I voluntarily give up residence in Oregon and move to New York, bringing my daughter, in order to be close to her.

      6/97 Mother files modification petition with New York Family Court and obtains temporary Order of Protection

      6/12/97 At a preliminary proceeding, without a hearing, no representation (did not even tell me I was entitled to counsel as required by law), no evidence and no admission of guilt, NY Family Court Judge Braslow, based on Mother's unsupported allegations, has me arrested for supposed violation of temporary Order of Protection, suspends Oregon order, drastically reduces my visitation to weekly supervised visitation only, and gives daughter to Mother.

      9/9/97 Having been thus terrorized and seeing my daughter severely diminished, I consent to an Order of Protection "without admitting" to Mother's allegations; having announced that she had "spoken to [newly appointed] Oregon Judge Arnold" (see Appendix page 20 = p. 17, lines 24- 25 of transcript of 10/29/98), Judge Braslow dismisses Mother's modification petition "with prejudice" and reinstates Oregon order; Mother refuses to comply.

      9/12/97 Oregon hearing on custody/visitation is started.

      10/7/97 Oregon hearing is concluded; newly appointed Judge Arnold gives Mother custody and unsupervised visitation to me; order issued 1/5/98.

      4/8/98 I file a petition seeking modification of Oregon custody/visitation order; preliminary proceeding is scheduled for 4/27/98.

      5/4/98 Oregon court declines my request for new hearing on custody/visitation.

      5/21/98 Oregon divorce decree is entered.

      8/18/98 Oregon court declines to hear my petition for modification on jurisdictional grounds that NY Family Court had already assumed jurisdiction.

      9/16/98 My Petition/Order to Show Cause requesting modification of the Oregon custody/visitation Judgment and Decree is filed, also requesting the Judge's recusal.

      10/16/98 I sent an application by letter requesting that Judge Braslow
      recuse herself because of bias and prejudice, emotional and cruel treatment of me and my daughter, gross unfairness, erroneous presumptions, and punishment without a hearing, evidence or admission of guilt.

      10/29/98 Preliminary proceeding on my Order to Show Cause seeking modification of Oregon decree; Judge Braslow denied relief without allowing a hearing, by order entered 12/9/98.

      12/18/98 Judge Braslow's order denying my motion to reargue modification of the Oregon decree.

      4/28/98 Judge Braslow issued a DECISION AND ORDER whereby she recused herself from "all future proceedings involving the above captioned parties".


      PETITION HAS NOT BEEN HEARD

      A thorough narration of the events and facts relevant to the issue of the New York and Oregon courts not having heard this matter is detailed in my Petitioner's Affidavit in Support of Motion to Reargue (Appendix page 25). It clearly shows how I ended up with two courts pointing me in each other's direction, claiming that the other court did or should hear the case.


      QUALITY OF CHILD'S CARE

      As Dr. David A. Oas, who performed the psychological evaluation mandated by the Oregon Court, noted in his affidavit, dated May 8th, 1998 (page 44):
      "Mr. Coutsoukis is the best parent and best person to provide in-home
      parental care of Teddy with his capacity to use specific skill building
      strategies to offset the significant behavioral deficits she exhibits.
      "Such in-home care is preferable to [the Mother's] out-of-home child
      care for a child with Teddy's needs."

      Even by her mother's own admission, Teddy's progress under my care was impressive. She stated that "Both he [Dr. Buist, director of the metabolic clinic] and Dr. McGinnis [pediatric neurologist] felt that Teddy's understanding & abilities are if not equal to a 2 1/2 year old's, they surpass most." (p. 57). Until Teddy was separated from me, her mother indicated, to her new, chosen Pediatric Neurologist, that Teddy had no suffered any regression (p. 81).

      As shown on the medical and educational records (pp. 47, 48, 49, 51, 53) and the affidavits of those who knew Teddy before and after Teddy's forced separation from me by Judge Braslow on June 12, 1997 (pp. 61, 62, 63), she regressed in all her capacities and suffered enormously. According to Teddy's quarterly school review of 2/9/98, Teddy became "inconsistent in her ability to attend and perform the familiar tasks she previously could
      ____________________________________________________________________
      * Page numbers in parentheses refer to the Appendix


      complete" and, in terms of communication, "her ability is not as consistent as before" (p. 56).

      A thorough detailing of Teddy's physical and mental regression is contained in my Oregon motion to show cause (in Oregon Record, submitted to Family Court), as well as Petitioner's Affidavit in Support of Order to Show Cause (p. 69). That regression was reported after the final date of the hearing in Oregon, on 10/7/97, and prior to the my first petition seeking modification re. custody/visitation on 4/8/98. For the first time after our
      separation, Teddy started progressing during our vacation together in the summer 1998 (p. 76). Also, her speech started improving as soon as Susan started letting us speak on the telephone every day for over half an hour, after our vacation together.

      Whereas Susan, after gaining control of our child in New York through the decisions of a now recused, corrupt and biased judge, could have chosen home-based services (p. 128) or a better child care center, such as one that allows parents to be present and choice of rehabilitation providers, she, instead, chose the one where parents were not allowed and where Teddy spent many hours every day, while receiving therapy no more than twice a week for less than an hour (p. 56). In reality, the therapy was even less frequent because Teddy incurred a large number of absences from school as a result of the onset of serious health problems after her separation from me. Dr. Oas explained in his affidavit how Susan's choice of educational program was deficient (item 4 on p. 45)

      In fact, Susan has been notorious for choosing the worst possible providers and the worst possible educational and medical options. For example, she chose the ketogenic diet with devastating consequences. This treatment, which has not yet been proven scientifically, is a fat-based starvation diet that causes the body to consume calories from fat, rather than the normal, carbohydrate-based diet. It is dangerous and it has terrible side effects. (p. 129+ and p. 134).

      My approach to child care is one of love, tolerance and patience. Under my care, Teddy thrived, progressed beyond expectation, and never exhibited discipline problems. On the contrary she was the most agreeable and accommodating child, as shown on the record (p. 135), never disobeying me or her providers. Susan's approach is one of oppressive, unforgiving discipline and brutal treatment, which, as the record shows, has resulted in Teddy becoming distrustful of adults, defiant and in need of discipline (p. 138).

      I chose expert pediatric ophthalmologists, such as Dr. Hoyt and Dr. Christianson, who examined Teddy gently, without touching her eyes. Dr. William Epstein, the Mother's doctor, put metal clamps on her lids while the Mother was restraining her, which made her suffer enormously, and he then reported that "the patient", our then three-month old baby, was "uncooperative" (p. 82).

      I chose a dentist who examined Teddy's teeth while I held her on my lap. At my urging he took a few seconds' break whenever Teddy so requested, resumed on cue and completed the exam without incident. Teddy was so pleased that she spent a long time playing at the dentist's office afterwards.

      Susan chose a brutal dentist whereby, according to the record, "two assistants and a parent" held Teddy down while the dentist cleaned her teeth (p. 78). Susan took her to a similar dentist in Oregon, but I was present and refused to let him restrain her against her will. I then took her to the other dentist mentioned above.

      I am committed, intelligent, educated and I communicate with Teddy uncommonly well, while aware of her special needs. Susan's paid-for strangers have been almost unaware of her, never mind her needs, or willing to make the extra effort that would make a difference.

      For example, Teddy had overcome bad habits at an early age, like sitting in the W position, which has potentially horrible consequences later on in her life. It was just a matter of reminding her constantly, and she then automatically sat in the right way. After our separation, she reverted to the W position, partly due to memory loss, partly due to muscle strength loss.

      I exercised Teddy daily. Susan and her caretakers keep her sitting most of the time, causing her to regress enormously in motor skills. I am devoted to her; they have 15 kids to keep "in line" (p. 44).

      It takes world class culinary skills and good arithmetic to properly administer the ketogenic diet. Even if the ketogenic diet were to be the choice treatment, I am the best at both. Susan, even after a year, was so completely lacking in understanding of that diet that she gave her fat free crackers, anathema and dangerous to a child on the ketogenic diet. No wonder Teddy was twice hospitalized on an emergency basis for severe seizures (pp. 49-52).


      MOTHER INITIATED MOVE TO NEW YORK, DISRUPTING TEDDY'S STABILITY

      Susan quit her job at Bear Creek Corp. in Medford, Oregon (but told me in writing that she was fired, and also lied the Oregon Court regarding her reason for moving to New York).

      I moved to New York a week later, bringing Teddy with me, so that she could be near her mother and so that I could be near Teddy.

      Contrary to the stated reason for her move, i.e., better job opportunities, Susan did not look for a job, but instead attempted to get money by filing for custody and alimony in New York Family Court, claiming inability to work.

      She subsequently attempted a move to New Jersey (p. 195).

      Once in New York, Susan resumed a pattern of denying me access to my daughter (p. 137).

      MOTHER DENIED ACCESS TO FATHER AND CHILD

      My affidavit (p. 137) describes the mother's denial of access, upon arrival in New York, in violation of the then in effect Oregon order.

      The Oregon Court ordered psychological evaluator was quite emphatic about how the mother consistently had usurped my parental rights and "maliciously" denied me access to my daughter (p. 106 line 16 through p. 107 line 8)


      MOTHER'S INABILITY TO TAKE PROPER CARE OF TEDDY AND MOTHER'S MENTAL SITUATION

      Susan refused to take psychometric tests and to give the Oregon court-appointed psychological evaluator access to her recent psychiatric record (p. 103 lines 1-7). Susan has no recollection of her childhood. She repeatedly mentioned to me that she has no memories preceding the age of 17. That's a serious handicap, a sign of severe psychological problems and a sign of inability to understand children.

      Susan has spent years in various forms of psychotherapy, ranging from psychiatrists to "new age" therapists, including "soul retrieval" to recover her soul.

      Susan stopped taking her medication against her psychiatrist's advice.

      Susan grew up in a house with a psychopathic mother, who also had a child out of wedlock, an alcoholic father, who was also a bookie, and who, according to her sister Barbara, committed suicide; a sister who was addicted to drugs and alcohol, a half sister born out of wedlock and an entire set of severely obese siblings, with serious eating disorders. Her sister married multiple times, lived with a lover who frequented prostitutes and had a son by a man who disappeared without a trace. Her brother's wife similarly left and disappeared for a year, leaving three children behind, in order to avoid physical and psychological abuse.

      Susan is a notorious liar, not a good model for a child.

      Teddy harbors animosity toward Susan and vice versa; For over a year now, the Mother has complained about Teddy pulling her hair, hitting her, biting her and pinching her (p. 138). In other words, Susan treats Teddy like a dog and, whereas Teddy and I respect each other, there is no respect between Susan and Teddy. Susan's public expressions of affection for Teddy are for public consumption only.

      MOTHER'S CONCEALMENT OF MEDICAL AND EDUCATIONAL MATTERS

      Upon arrival in New York, Susan took Teddy to a pediatrician's office without apprising me (p. 137 lines 20-21).

      She also contacted the Ossining School District and discussed options for Teddy, again without informing me (p. 137 lines 20-21).

      Upon Teddy's forced separation from me by Judge Braslow, Susan abandoned the then successful treatment that Teddy received and chose the above-discussed, disastrous ketogenic diet (p. 79), again without informing me.

      Susan even made it hard for me to obtain the medical and educational records the Oregon court said I should get, and she was ordered to comply after I filed a motion to that effect (p. 190, lines 21-25).


      COURT-ORDERED PSYCHOLOGICAL EVALUATION

      The Oregon court ordered that Susan, Teddy, and I be evaluated and that both parents attend mediation (p. 198 and p. 101, lines 20+), which Susan resisted.

      The psychological evaluator, Dr. David Oas, blasted Susan in his testimony in Oregon about her denial of access and pronounced me the better parent and recommended in no uncertain terms that I receive custody of Teddy (p. 125, ll. 10-25, p. 126, ll. 10-13 and p. 109, lines 7-10).

      Susan refused to take psychometric tests requested by Dr. Oas. (Dr. Oas's Oregon testimony on 9/12/97, starts on p. 100).

      Susan also refused to allow him access to her then recent psychiatric record (also from Dr. Oas's testimony on 9/12/97, in Family Court Record).

      Susan fled to New York, under false pretenses, in the midst of the evaluation (p. 177,
      item 5, UCCJA - PETITIONER AVOIDED OREGON PROCEEDINGS).

      JUDICIAL MISCONDUCT

      Judge Braslow, who subsequently recused herself, offered the Mother a free Court-appointed attorney, without the Mother requesting one, who represented her last year, whereas I appeared in front of Judge Braslow pro se for over a year without her offering any legal assistance. In fact, she made it difficult for me to communicate with the Family Court staff by instructing them not to communicate with me.

      In the Decision and Order issued by Judge Braslow after the preliminary hearing on May 29th, 1998 (p. 7), she accused me of withholding the fact that the Oregon Court issued a divorce decree (which was entered on May 20th), when, in fact, as she knew, my petition was filed on May 11th before the decree was issued and I had no way of knowing when it was going to be issued.

      Susan's requests for relief from alleged telephone and fax harassment got immediate attention by Judge Braslow, and her prior request for an order of protection and allegations of a violation resulted in my arrest by Judge Braslow on June 12, 1997-- brutal punishment for me and my daughter -- even without showing or alleging any real or perceived or imaginary danger to anyone (transcript of Westchester Family Court of 6/12/97, in Family Court Record), while my warnings of danger to my child's life have been met by Judge Braslow with refusal to even grant me a hearing.

      Similarly, while I showed in the preliminary proceeding on February 18, 1998 that Susan violated a court order, the Court found excuses to dismiss my complaint.

      I pointed out to Judge Braslow repeatedly that the Oregon decree was ill begotten, by perjury and irregularities. My mention of irregularities in Oregon, such as the Mother's lying to the Oregon Court about the New York proceedings were completely ignored.

      While the Oregon Court acknowledged that "Respondent raises important issues" (p. 174 Oregon Court Order ) and stated that it will hear my case if New York declined jurisdiction, Judge Braslow responded with a decision that, yes, she had jurisdiction, and had it previously (while having previously denying that she did, such as in the April 28, 1998 order), but she would not hear my petition for modification never the less for new fangled reasons, inconsistent with her previous order and statements on the record.

      Judge Braslow, who originally knew nothing about me, convicted me on June 11, 1997, as aforesaid , in absentia, in an "ex parte" meeting with Susan, the Respondent, who told me at one time she went to school with the judge. This, without a hearing or evidence, where she told Susan that she would have me arrested. There were absolutely no grounds, by any stretch of the imagination, for such treatment under the law.

      I worked, and still do, at home, as Judge Braslow was so informed by Susan, and I have never previously failed to obey a subpoena. I relocated from California to Oregon so that I could take care of Theodora, our newborn daughter, while Susan was at work. I then brought my daughter to New York, following Susan, after she relocated here, sustaining enormous business losses as a result of the move. That is not, by any stretch of the imagination, the kind of father who is likely to leave a jurisdiction, nor was there any indication from Susan that I posed any danger to her or anyone else. Yet, at the preliminary proceeding on June 12, 1997, Judge Braslow decided to throw out the Oregon order then in effect, whereby Theodora spent her days with me, completely disregarding UCCJA. The consequences to me, and especially my young daughter, were devastating and Judge Braslow, until her recusal (4/28/99), made every effort to cover them up, by preventing me, again and again, from presenting the facts.

      My complaints against Judge Braslow are enumerated in a letter which I sent to her on October 16, 1999, with copies to the other side and the Law Guardian, requesting that she be recused from this case. The letter (***letter 10/16/98**) was introduced into evidence during the preliminary proceeding of October 29, 1998, as I moved the court for the Judge's recusal (**p. 4, ll. 17-23 of transcript of 10/29/99***).

      ARGUMENT

      POINT I

      THE NEW YORK FAMILY COURT IMPROPERLY APPLIED THE DOCTRINE OF RES JUDICATA TO MY PETITION TO MODIFY CUSTODY AND VISITATION BECAUSE THE OREGON COURT REFUSED TO HEAR MY MODIFICATION PETITION AS A RESULT OF THE NEW YORK FAMILY COURT HAVING ALREADY EXERCISED ITS JURISDICTION.

      Throughout the subject proceedings before the New York Family Court, Judge Braslow refused to hear my petitions based on her incorrect assumptions that the Circuit Court of the state of Oregon for Jackson County had heard or ruled on the issues presented by my petitions. Judge Braslow incorrectly ruled in her Order of Dismissal entered on December 9, 1998 that "the allegations of the petition are barred by the doctrine of res judicata in that they were fully litigated in 1997 before the Circuit Court of the State of Oregon, Jackson County" (****). However, Judge Braslow did not and was not able to cite to any specific order or decision rendered by the Oregon court in 1997 because, simply, there was none. As I explained in my affidavit in support of my motion to reargue, although I did make a Motion for a New Trial and/or Reconsideration with the Oregon court, the Oregon judge denied the motion because it only presented events which occurred after the trial in Oregon (*****). That Oregon decision, from May 4, 1998, quite obviously, did not constitute a hearing. Further, with the Oregon court refusing to hear matters following the last day of the custody hearing on October 17, 1999 and the New York court refusing to hear matters preceding the May 21, 1998 Oregon divorce decree, Judge Braslow in effect decreed that the intervening seven month period -- during which my daughter was subjected to terrible abuse and neglect, suffered severe seizures and brain damage and was hospitalized three times, including two ambulance emergencies -- was out of the range of the judicial system.

      What Judge Braslow also refused to consider on my motion to reargue was that the Oregon Court issued an Order Declining Jurisdiction dated August 18, 1998 which explained that the Oregon court had previously entered an order declining jurisdiction on July 2, 1998, that the New York Family Court had assumed jurisdiction in the case, that "New York will hear any matter constituting a change of circumstances after the time of the judgment and decree of dissolution entered by this court", and, therefore, "the court declines jurisdiction and will not hear further matters connected with this case unless some issue is remanded following the appeal in this case" (p. 201).

      POINT II

      I WAS ENTITLED TO A HEARING ON MY PETITION.

      This Court has followed the general rule that, where a party alleges sufficient facts which, if proven true, may warrant a change of custody or visitation, those issues can only be resolved after a full and comprehensive hearing. Venzer v. Venzer, 535 N.Y.S.2d 959 (2d Dept. 1988).

      In Gant v. Higgins, 203 A.D.2d 23, 609 N.Y.S.2d 243 (1st Dept. 1994), the Family Court dismissed a petition of a non-custodial parent seeking a change of custody, without allowing a hearing. In reversing, the court stated:
      "Upon a proper evidentiary showing on a petition for a change of custody
      [citation omitted], the court must conduct a full and comprehensive hearing
      [citation omitted] and determine whether the totality of the circumstances
      warrants modification in the best interests of the child [citation omitted]."
      609 N.Y.S.2d at 244.

      The court in Gant found that the lower court improperly dismissed the petition after the petitioner presented her evidence because the evidence demonstrated that, after the original order determining custody, the child showed a severe drop in academic achievement and certain behavioral problems. In addition, the psychiatric testimony supported a change in custody. The case was remanded for a full hearing.

      This Court has also ruled that, even where a hearing was held by the Family Court, the court committed error by not allowing cross-examination of the mother to determine whether she was guilty of contempt. Nakis-Batos v. Nakis, 191 A.D.2d 443, 594 N.Y.S.2d 59 (2d Dept. 1993). This Court also concluded that the Family Court had improperly reduced the petitioner's visitation without there having been a petition seeking modification of visitation, because, even if such petition had been before the court, it would have been error to modify without a hearing.

      The facts in the instant appeal are even more compelling than those in Nakis- Batos because, not only was I not permitted to cross-examine the mother, I was not even granted a hearing at all. Further, the case clearly demonstrates that Judge Braslow should have granted a hearing because my petition did seek modification of visitation, as well as custody.

      The instant case is remarkably similar to Gant, supra, in that the instant child also exhibited behavior problems, as well as a continued severe physical and mental decline, after the child's extensive visitation with the Father was drastically curtailed by the lower court on June 12, 1997. In spite of the evidence presented by me to Judge Braslow at the preliminary proceeding on October 29, 1998, she summarily dismissed my petition. Just one excerpt from the preliminary proceeding reveals the necessity of a full hearing:

      "These charges, the situation of my daughter's health, has not been heard from the moment we were separated. Additionally, there are circumstances that are more recent as well, namely I had--all these arguments that we should be having at a hearing that I could bring evidence and witnesses for I am not allowed the opportunity to do because the Court keeps dismissing my--denying me the opportunity to be heard. My daughter is not in good condition. She is not in-- getting better. I don't care what she said or what the doctor said, the evidence and the reports I got from them speak otherwise and I would like to present the evidence to the Court. My daughter is in danger ...
      I have tapes, I have videotapes, I have reports from doctors." (***10/29/98 transcript page 10, lines 5-22 and page 11, lines 14-16**).

      POINT III

      THERE IS SUFFICIENT EVIDENCE IN THE RECORD FOR THIS COURT TO DETERMINE, WITHOUT A REMAND, THAT IT IS IN THE BEST INTERESTS OF THE CHILD TO BE WITH ME AS MUCH AS POSSIBLE, PREFERABLY THROUGH A CHANGE OF CUSTODY, BUT ALSO THROUGH INCREASED VISITATION.

      The Court of Appeals set forth the standard when a court considers a change of custody:

      "The standard ultimately to be applied remains the best interests of the
      child when all of the applicable factors are considered, not whether
      there exists one or more circumstances that can be denominated extra-
      ordinary." Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 447 N.Y.S.2d
      893, 896 (1982)(change of custody from mother to father was warranted
      by "lesser concern of the mother for the emotional well-being of her
      children than for her own life-style demonstrated after the original award
      was made").

      Therefore, the "best interests" of the child is the standard courts in New York are to follow, not the "extraordinary circumstances" or "the change in circumstances" standard which Judge Braslow applied in her Decision and Order entered June 23, 1998 in the third matter that I previously appealed. Change of circumstances is not the appropriate standard in change of custody matters (Zupo v. Edwards, 161 A.D.2d 972, 557 N.Y.S.2d 545 [3d Dept. 1990]), and there is no requirement to prove change in circumstances (Gant v. Higgins, 203 A.D.2d 23, 609 N.Y.S.2d 243 [1st Dept. 1994]).

      The factors a court should take into account in determining the best interests of the child include the relative fitness of the parents, the quality of the home environment, the parental guidance provided, and each parent's ability to provide for the child's emotional and intellectual development. Gant, supra. Each of those factors, as well as additional ones, have been detailed in the Statement of Facts above and clearly show, based on the record presented to this Court, that the best interests of the child would be served by changing custody to me, the Father, and granting the Mother limited visitation rights.

      In McGrew v. Chase, 193 A.D.2d 1119, 598 N.Y.S.2d 644 (4th Dept. 1993), the father reduced his work hours to spend more time with the children after he was granted temporary custody and hired a live-in housekeeper for the children while he was at work. The mother refused court-ordered visitation, boasting to a friend that she told the father and the police she had papers prohibiting visitation. Before the parties' separation, the father mainly cleaned the home and bathed and fed the children. The facts also showed that the mother did not always tend to the children's needs.

      The facts in the instant case are even stronger than those in McGrew. Not only do the Statement of Facts and the record also show that I was the primary caretaker of my daughter prior to the parties' separation, having suspended an extraordinary career to stay home with our baby, and that the Mother has not always tended to the daughter's special needs, but that I am also a superior caretaker because, having been forced by the Mother to go to work or not see Teddy ever again, I work at home, while the Mother does not tend to our daughter's special needs and relies on unsatisfactory child care organizations.

      Physical custody of a nine year-old girl who had a strong attachment to her father was changed to the father in Deyo v. Deyo, 240 A.D.2d 781, 658 N.Y.S.2d 153 (3d Dept. 1997). As in the instant case, the daughter had a learning disability with which the father was capable and willing to help. He worked with his daughter's teachers, took her to specialists and encouraged her with her reading and homework. The mother was unable to deal with the child's special needs, and the daughter refused to return to the mother after weekend visitation with the father which are also true in the instant case.

      Two of the key factors this Court considered in affirming a change of custody to the father was that the mother failed to keep the father apprised of the children's schooling and health and that the children were excessively absent from school. Frank R. v. Deborah Ann R., 204 A.D.2d 615, 612 N.Y.S.2d 78 (2d Dept. 1994). The above Statement of Facts demonstrates how the instant Mother also failed to keep me apprised of the child's medical and educational matters and that the child was excessively absent from "school" and therapy.

      The Court of Appeals, recognizing that the authority of the Appellate Division in custody matters is as broad as the Family Court, affirmed the Appellate Division's reversal of the Family Court's award of custody to the mother because the mother paid insufficient attention to the child's development, with the result that the child had few friends, was absent from school, spent most if not all of the time with the mother or at school, and developed behavioral problems toward classmates. Louise E.S. v. W. Stephen S., 64 N.Y.2d 946, 488 N.Y.S.2d 637 (1985).

      This Court concluded that, in awarding a child to the mother, the trial court failed to give sufficient weight to the fact that the five year-old resided with the father during her entire life prior to the court's award and that the father had been the primary caretaker after the mother left the marital residence. Lobo v. Muttee, 196 A.D.2d 585, 601 N.Y.S.2d 322 (2d Dept. 1993). Further, the child had been well cared for by the father who had a close relationship with her, and the forensic reports recommending the mother failed to provide a complete evaluation of the parties' home environments. Consequently, the matter was remanded for a new hearing before a different judge.

      Even if this Court concluded that it could not change custody of the instant child to me or increase my visitation because of possible insufficient evidence in the record, it is respectfully urged that the Court remand the appealed proceeding to the Family Court for a full evidentiary hearing. There is no need for this Court to remand my case to a different judge at this time, because Judge Braslow recused herself on April 28, 1999, following my submission of conclusive evidence of the Judge's misconduct and bias.


      CONCLUSION

      In light of the foregoing authorities and facts, it is respectfully requested that the order of the Family Court be reversed; that this Court modify the custody provision in the Oregon court decree and award custody of Theodora Coutsoukis to me, Photius Coutsoukis, the Father, or, modify the visitation provision in the Oregon decree to increase my visitations as much as possible without changing custody; or, in the alternative, remand my modification proceedings to the Family Court for a full hearing.


      Respectfully submitted,


      Photius Coutsoukis (pro se)
      Petitioner-Appellant



. . TRUTH METER
NOT whole truth . . NOT so




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