Disbar them (for taking a position in court in a highly political matter)! The new "democracy" a-la-USSR in the USA

There was a time in the Stalin's USSR when there were meetings held at large factories and universities alike, where people were "expected" to condemn - and demand death for - accused political opponents of Stalin and to "spies".

Of course, accusations of spying were fabricated out of the thin air and confessions extracted by KGB under torture.

And, of course, most people did what the government expected them to do.  They publicly condemned people they did not know.  And demanded death for them.

Why?

For their careers, peace of mind, not to be flagged and not to be the next on the butcher block.

Appears that we have the same tendencies starting in this country.

What is horrible, but not very surprising to me who have been researching and writing about the American legal profession for years, the left have subverted public thinking about the legal profession and instilled into a large portion of the U.S. population the idea that attorneys who defend in court positions of political leaders the "woke" do not like must be disbarred and forever forbidden to practice their profession - to support the snowball of political repressions against non-woke lawyers has already started rolling. 

 In New York, in South Carolina, now in FEDERAL COURT in a Michigan district.

Now why this kind of tendency is the equivalent of shooting yourself in the foot for every single member of the American public?

In the U.S. there exists a so-called absolute attorney monopoly.

In my view, it is not legal and it is not constitutional for the government to control people's access to court by allowing only people to be represented by only those individuals who are vetted by that same government.

Figure how crazy the reality sounds of your opponent in a court case controlling who you can choose for your representative to oppose that opponent in that court case.

Yet, that is the reality in the U.S. where the government is on the other side of a court case.

Because that same government controls the license - and, thus, the ability to represent you in court - of every single lawyer in the country.

And, the "Democratic" mass media not only considers this total lack of independence of the American legal profession as proper - but it literally sics people to demand, see above, no, not death yet, but being stripped off their profession for lawyers who dared to support a so-called "big lie" about election fraud in presidential elections of 2020.

Now, I have written a separate article on evidence in regards to why nobody, until now, has a right to state that allegations of election fraud ARE a big lie.  Because the only types of governmental bodies in the country - juries in respective states - did not adjudicate such claims, after a full discovery and a trial with cross-examination of witnesses - as false.

By the way, you know, what is the reason toted by those who are benefiting from trying to prevent the dismantling of the unlawful and unconstitutional absolute attorney monopoly in the US where adult legally capable people are PROHIBITED BY THE GOVERNMENT to choose WHO THEY WANT to represent them in court?

Which makes no sense since every person in the US may represent him/herself in court without a lawyer - for that the government gives people a right. But not to choose a trusted another to represent them - somehow people must trust only those who the government allows them to trust, government-licensed attorneys.  Which, again, makes no sense.

Well, the reasoning in support of the absolute attorney monopoly (other than "it has been like that for a long time, so why wouldn't it continue some more") is - because people are dummies, they do not know the law (they are presumed to know, otherwise people cannot be prosecuted for breaking those laws), mind, they do not know THEIR OWN public laws, enacted by people they elect to act on their own behalf and for their own benefit.

Which is - all in all - a crazy reasoning.

But yet.  The absolute attorney monopoly - 

blocking the entire country that calls itself "democratic" access to court with a representative of their own choice 

-exists because citizens of that country de facto agree that they are too dumb to know their own laws and can "only" represent themselves without a representative/lawyer, but cannot possibly be smart enough to choose such a representative unvetted by the government.

Ask a licensed lawyer regarding the constitutionality of the concept of attorney monopoly in the US - most likely you will get a blank stare, or an "it has always been that way" "argument", or "I don't care", or "I do not want to know" "argument".

It is a gilded cage that all licensed lawyers in the US "enjoy".

As to who regulates lawyers, which branch of the government - that is a separate song and dance.

It is the branch of the government that 100% consists of lawyers.  It's judges.

While all other regulated professions in the US are regulated by the executive branch, somehow the nature of attorney regulation is claimed to be "different", and lawyers are regulated by judges - while claiming that they are a "self-regulated profession", one more lie.

Does such regulation violate federal antitrust laws?  You bet.  A profession regulating itself under the guise of neutral government regulation cannot possibly be neutral to itself.  All it does is restricting competition and upping prices for its services for the public.

And, as to the regulators of the profession - judges - how can that regulator be considered neutral and honest when

1. it gave itself an absolute immunity for malicious and corrupt conduct in office, and

2. it prohibits criticism of itself to lawyers - at the threat of stripping them of the government-given "privilege" to practice in their chosen profession, devaluing their law school diplomas to zero.

The public should well remember that if a lawyer is too intimidated to raise a legal issue in court, for fear of losing his or her right to earn a living in her profession - and especially in cases where the almighty government is the lawyer's client's opponent - every single member of that public does not have grounds for hope to find an independent and fearless lawyer to represent that member of the public on a "sensitive issue".

Now, let's go to what is happening now where THE GOVERNMENT (the Michigan Attorney general) is asking a judge in Michigan to sanction lawyers - Sidney Powell, Lin Wood and a number of others, with names less famous - for making "false claims" of election fraud in court.

Once again, there was no discovery in the Michigan lawsuit, there was no jury trial, and the judge who dismissed the case, on a motion to dismiss had to be guided, by the law, by the rule that requires of that judge to ASSUME AS TRUE every factual allegation in the complaint.

Mind that when most of the data is in the hands of those whose actions are challenged in that lawsuit, no factual decisions may be done without an evidentiary hearing, and a dismissal NOT assuming as true allegations in the complaint (despite supporting affidavits) is starkly unlawful and should be reversed on appeal.

Yet, the same judge who did the unlawful dismissal of the case, is now, on request of Michigan Attorney General (opposing a civil rights lawsuit, mind - as the State AG opposes EVERY civil rights lawsuit of EVERY resident of the State of Michigan, see Pacer.gov for public records of that) - is trying to sanction lawyers who dared to represent "that who cannot be named" and who tried to raise the "issue that cannot be named" - election fraud.

Now, I do not know about commentators in the left press which, same as in the USSR of the 1937 and other years of KGB purges, demand to disbar all Trump lawyers for "spreading the big lies" and "influencing the public" - for political reasons, which does not bother the "demanders" one bit.

I do not know whether they watched public hearings re certification of the presidential votes in 2020.

I did, the whole thing.

And, I did watch Democrats pushing against Republican witnesses of election fraud in Michigan, to certify nevertheless (and a Republican certifiers first certified and then recanted claiming she did it because she received death threats for her daughter).

You know what "legal grounds" did Democrats present to have elections in the State be certified WITHOUT AN INVESTIGATION of fraud despite multiple witnesses coming forward with testimony of fraud at public hearings?

Because, supposedly, the Michigan state law "does not allow" investigation before certification.

Certify - Democrats said - the election as TRUE, and THEN, "by law", the investigation will become possible.

Only it does not work that way - and they knew it.

As soon as elections in Michigan were certified - under death threats - Democrats immediately claimed that certification of elections as true, IS evidence that certified election results are actually true, and there is nothing to investigate.

A classic trick of fraudsters.

And, when voters sued, the case was blocked by a woke judge before it proceeded to discovery and jury trial - and now the same judge whose decision lawyers are appealing as unlawful is reviewing sanctions against them - for doing their jobs for their clients.

Mind that there was NO evidentiary hearing (with witnesses) in that case - as in any other election fraud cases across the country.

None.

Ever.

Mind that it is a huge separation-of-power no-no for STATE COURTS to take law licenses of CIVIL RIGHTS attorneys because of their stand in FEDERAL civil rights cases.

Yet, the left has put the law squarely on its proverbial head in order to brainwash the public regarding their political agenda.

With no regard whatsoever about either the rule of law, or the fate of every single member of the public when the time comes for them to get their lawyers to defend their sensitive issues in court.  Especially against the government.

And, if the law is put on its head, if certification is done by trick and death threats - and if it is a sanctionable offense for a lawyer to challenge this setup in court, and if the sanctioning judge has given herself immunity for malicious and corrupt conduct in office and thus put herself above the law - what hope for a fearless, honest and effective representation any of us have in court.

What rule of law?

Now "enjoy" the scans of people asking to disbar attorneys who are trying to do their job in court.

Shooting themselves in the foot has become the Democrats favorite game.  I do mind this game though - because it is destroying what was left of the rule of law before election fraud cases in this country.

Hard cases make bad law, huh?

"Enjoy" the opinions of people braving shooting themselves in the foot - as well as all their co-citizens.

Talking about "sancta simplicitas".

Endorsing a self-immunized-for-corruption woke judge (Stump v Sparkman) endorsing the request for sanctions of the judge-immunized-for-corruption prosecutor (Imbler v Pachtman) against lawyers after blocking the jury from reviewing the same evidence that they say is "a big lie".

By the way, you know the reasoning the U.S. Supreme Court used unlawfully granting immunity for corruption and other crimes in office to all American judges and to all American prosecutors (the only people who can prosecute judges for corruption and crimes in office in criminal proceedings)?

To grant judges and prosecutors impunity for corruption and committing crimes in office is GOOD FOR THE PEOPLE - so that judges and prosecutors are acting fearlessly - in committing corruption and other crimes in office.

So they are.  Now.

The bell is tolling for attorney independence. Once again. Rudy Giuliani is suspended - before the final disciplinary decision - for being a brave an honest lawyer for 45th President Trump

 A yet another political suspension of an attorney license in NY for doing his duty for his client. 

The shameful political "interim" 27-page decision is here. 

Note that the suspension was on motion, without a hearing, certainly without a jury trial. 

Note that proceedings were closed to the public.

Note that in attorney disciplinary proceedings in New York, unlike other court proceedings, the intermediate appellate court is allowed to play all fiddles that is usually forbidden by the constitutional separation of powers principle: 

1. It is a party in the proceeding (licensor); 

2. it is a legislator of both attorney conduct rules AND the court procedural rules in attorney disciplinary proceedings. 

3. The prosecuting attorney is officially deemed "an arm of the court", of that same court that is adjudicating the matter. 

All of the above combinations of roles of the presiding court are gross constitutional violations making such proceedings jurisdictionally invalid. 

Just some food for thought for the public - who is usually completely unaware as to how attorney licensing is happening in their state and country. 

Btw, what they are licensing (the so-called "practice of law") is not clearly defined by statute anywhere in the country, including New York state, making the whole attorney licensing process unconstitutional. 

But - since it is an attorney for Trump, why not celebrate what is otherwise unconstitutional? 

Don't ask, for whom the bell tolls...

===

The basis for the interim suspension is - supposedly spreading false news about election fraud in the 2020 presidential elections to courts, lawmakers and the general public.

A kicker here - no courts have so far allowed discovery in election fraud cases, nor did they allow cases to proceed to jury trials.

And, without a jury, as I wrote here in my article on evidence, no other court can presume - as the disciplinary "court" did here - that there was NO election fraud.

Which is exactly what Rudy Giuliani told these idiots in his answering papers.

To no avail.

==

And yet another note - to the celebrating public.

If even a US President does not have a right to an independent and fearless representation by an attorney - what chances as to access to justice do average Janes and Joe from the street have?

If or when you have a sensitive issue to raise in court and you cannot find an attorney to represent you - look no further.

Otherwise, feel free to celebrate.

The New York "confederate flag" custody decision - what was that?

I have taken my time to post my comments regarding the New York child custody decision where the Appellate Court ruled based on a confederate flag painted on a rock located on the property rented by the mother.

Read news media articles regarding this decision - but did not find what is most essential in this decision that is plain to any attorney who has handled 1. Family court custody cases and 2. appellate cases (and I did both).

First of all, there are certain rules in Family Court and in the Appellate Court that courts simply MUST follow - and which were not followed in this decision.

Rule # 1 - dealing with pro se parties

• the court MUST be super-cautious when dealing with a pro se party (a party not represented by an attorney), and ESPECIALLY when 
• such a pro se party is a party in an appellate case where - as appellate clerks of this particular court have been explaining to pro se parties (who communicated with me as a blogger on this topic) that any appellate case is too complex too argue/handle by a pro se party; AND even more especially when
• such a pro se party is the RESPONDENT in the case, defending an appellate case AGAINST AN ATTORNEY representing the appellant -

as it happened in this case.  The case lists:

"Andrea J. Mooney, Ithaca, for appellant", and

"Jason Leifer, Ithaca, attorney for the child".

That's all.  Appellant is the (black) father, respondent is the (white) mother - respondent is NOT represented by an attorney, so the court had to have been extra cautious not to violate mother's constitutional right to care and control of her child.

Rule # 2 - the court, both trial and appellate, decides PRESENT cases (not future cases)

Rule # 3 - the Family Court decides cases based on the balance of 1. constitutional rights of parents to care and control of their children and 2. best interests of the child

Rule # 4 - separated parents presumably have joint legal custody of their child, UNLESS the court rules after a trial that

• one parent has committed something so bad towards the child that he/she should not have joint legal custody - and a say in educational/medical/religious decision-making towards the child, or
• parents cannot effectively communicate regarding decision-making about the child

Rule # 5 - the exclusive function of the Appellate Court is to decide/resolve issues raised in the complaint/appeal of the party pointing out supposed errors of the trial court.  

Rule # 6 - courts (trial or appellate) may not act as advocates for either party - there is a due process (federal and state constitutional) requirement of court impartiality

With these rules in mind, lets look at the decision.

The child's year of birth is 2014.  She was 4 at the time of the trial in Family Court (pre-school) in 2018 and 7 at the time of the appeal - 2nd grade in school.

	Legal	Residential
Beginning of the case	Joint legal custody	50-50 between the parents
Requested in petitions of parents	Sole custody – by both parents	Father – asked for permission to take the child out of the school district
Position of attorney for the child		Mother’s residence should be primary residence – trial court agreed, appellate court changed that
At the end of the trial case	Joint legal custody	50-50 between parents, mother’s residence is primary residence (after a home study and at the request of attorney for the child)
At the end of appellate case	Joint legal custody	50-50 between parents, current school district is “primary residence”; The trial court is directed to take into account the confederate flag on a rock on mother’s RENTAL property in FUTURE court cases – a SUA SPONTE decision of appellate court (issue not raised by the appellant)

The trial court has had a trial/hearing on the case.

The footnote says that it did not hold a "Lincoln hearing" (judge talks to the child with the child's attorney present, but without the child's parents or their attorneys) because at the time of the trial the child was too young (4).

What is very important in these cases is the position of the appointed attorney for the child.  

Courts usually pay a lot of attention to the position of the attorney for the child.

In this case the attorney for the child was ON THE MOTHER's side.

The trial court was thorough in this case, it has ordered a home study that confirmed that, after mother moved 5 or 6 times during the child's life, currently she has, though rented, STABLE HOUSING.

Moreover, when the child lives with the mother, she also lives with her 2 siblings - courts try not to separate siblings.  There father does not have other children living with him who are the child's siblings, at least, the court decision does not mention any.

So, what do we have here?

Parents had - by default - joint legal custody of their 4-year-old (at the time of the trial) daughter.

Father wanted to take the child out of the school district and petitioned the court to CHANGE the custody arrangement to SOLE custody for him (so that the father could make decisions regarding the child's education, religion and medical care unilaterally, not together with the mother).

Mother also wanted SOLE custody of the child for herself, without moving.

The trial court DENIED both petitions for sole custody.

The appellate court affirmed/supported the trial court's decision to deny both petitions for sole custody and agreed with the trial court that JOINT LEGAL AND RESIDENTIAL CUSTODY for the child (as it was before court proceedings) is proper.

The appellate court has only corrected the trial Family Court on one issue:

" we do find that the portion of Family Court's order directing that the mother's residence shall be the child's primary residence for the purpose of where the child attends school must be modified. Although the general idea of preserving the child's current school district has a sound and substantial basis in the record, as it will preserve stability for the child, basing the child's school district on where the mother resides may lead to instability in the future due to the mother's frequent moves in the past. "

So, in the past, mother moved "3 or 4 times", so now the Appellate Division fixed the current school district for the child which neither of the parents may change without 

• a mutual agreement, OR
• a court order - if there is no mutual agreement.

So far - so good, right?

Sounds fair, doesn't it?

But now comes the woke part.

===

"Finally, although not addressed by Family Court or the attorney for the child, the mother's testimony at the hearing, as well as an exhibit admitted into evidence, reveal that she has a small confederate flag painted on a rock near her driveway. Given that the child is of mixed race, it would seem apparent that the presence of the flag is not in the child's best interests, as the mother must encourage and teach the child to embrace her mixed race identity, rather than thrust her into a world that only makes sense through the tortured lens of cognitive dissonance. Further, and viewed pragmatically, the presence of the confederate flag is a symbol inflaming the already strained relationship between the parties. As such, while recognizing that the First Amendment protects the mother's right to display the flag (see generally People v Hollman, 68 NY2d 202, 205 [1986]), if it is not removed by June 1, 2021, its continued presence shall constitute a change in circumstances and Family Court shall factor this into any future best interests analysis.

Egan Jr., J.P., Aarons, Reynolds Fitzgerald and Colangelo, JJ., concur.

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as directed that petitioner's residence shall be considered the child's primary residence for school purposes; the child shall attend school in the Dryden Central School District until further court order or a mutual agreement between the parties with respect thereto; and, as so modified, affirmed."

Recall the rules governing actions of the appellate court that I have referred to at the beginning of this article:

• being extra careful with a pro se respondent;
• ruling for the best interests of the child;
• deciding only the complaint of the appellant regarding errors of the trial court;
• deciding only the current case, not future cases
• not acting as an advocate for either of the parties - the duty of court impartiality.

Here is what the Appellate Division focused on:

" the mother's testimony at the hearing, as well as an exhibit admitted into evidence, reveal that she has a small confederate flag painted on a rock near her driveway"

There is no indication in the decision that mother owns the property, so the property is rented, and claiming that "she has" a rock with a confederate flag painted on it near the driveway of her rented property is not a correct legal statement - the rock could belong to the landlord and placed where it was by the landlord.

Next, the court says:

"Given that the child is of mixed race, it would seem apparent that the presence of the flag is not in the child's best interests".

The appellate court has made a determination that something in what the mother supposedly does is not in the child's best interests - but does not change joint legal custody or residential 50-50 custody between parents.

The court says that:

"Given that the child is of mixed race, ... the mother must encourage and teach the child to embrace her mixed race identity, rather than thrust her into a world that only makes sense through the tortured lens of cognitive dissonance".

I doubt that judges themselves understood what they have written here.

What is "cognitive dissonance", what is a "tortured lens", what constitutes "a mixed race identity", how to "embrace" it - nobody knows, it is all a subjective judgment of the 5 judges:

(a former Family court judge, and a member of the Family Court Rules Advisory Committee for 7 years)

These 3 men and 2 women, one of them a "mixed race" from "West Indies" have created a precedent for 28 counties

for parents of "mixed race" children - that such parents MUST teach their children "to embrace their mixed race identity" - whatever, again, it is, and however this "embracing" must be handled.

OR ELSE.

Note that these 5 men and women, once again, supported DENIAL of petitions to BOTH parents - the joint legal custody that the parents had of the child before they filed petitions in Family court and that the trial court left in place, the Appellate Division also left in place.

So - the Appellate Division has decided THE CURRENT case - which is THE ONLY case it could decide - by leaving the state of custody UNCHANGED.

So, why then did it even go into the excursion into the supposed obligation of the white mother to "encourage and teach the child to embrace her mixed race identity" and into the convoluted woke wording about "thrusting" the child "into the world" that "only makes sense through a tortured lens of cognitive dissonance"?

Why would the court teach the unmarried mother who is not living with the unmarried father about the painted rock on a rented property "inflaming an already strained relationship between parties" - while, again leaving intact the JOINT LEGAL custody of the child between those same parties?

What good is this sermonizing under such circumstances?  For what purpose was it meant?

Here it is:

"while recognizing that the First Amendment protects the mother's right to display the flag , if it is not removed by June 1, 2021, its continued presence shall constitute a change in circumstances and Family Court shall factor this into any future best interests analysis."

The mother's LANDLORD is not a party in the Family court case.

It may be not the MOTHER's right to display whatever on the rented property, but the LANDLORD's to have that painted rock on his or her property - and with a prohibition for the tenants to do anything about it.

The mother only rented the house and has no control over the land or what is on it.

The court has found no evidence that it was THE MOTHER who has placed the rock on the rented property.

What the court is pushing the white mother of 3 young children who has FINALLY got a confirmed stable housing to do - during a pandemic and eviction ban, no less - is these options:

1. either engage in CRIMINAL MISCHIEF (a crime in New York presupposing jail time - and then the mother will lose custody of all of her THREE young children) and remove property of landlord off rental property, or

2. MOVE out of that stable housing - again, during the pandemic and eviction ban, with all 3 of her young children - OR lose custody of her daugher.

WTF, excuse my exquisite French?

Do these judges who have 200+ thousand dollar salaries at our expense understand WTH they are telling this woman to do - and the legal implications of what they are telling her to do?

All for the purpose of getting into the headline as the most woke judges in the woke state of New York?

I guess, discriminating against white parents of biracial children is all woke in the State of New York now, the law or basic concepts of fairness do not have to apply.

And remember - this is against a PRO SE Respondent white mother on appeal, who could not properly even defend herself, where the appellant black father was represented by an attorney.

But, the Appellate Division DOES NOT HAVE AUTHORITY TO DECIDE FUTURE CASES!!!

And may not give directions to the Family Court how to decide FUTURE proceedings in this case.

Nor may the Appellate Division PRACTICE LAW (prohibited to judge by the NY State Constitution), act as an advocate for one of the parties (the represented-by-attorney black father) and give LEGAL ADVICE to the father and his attorney as to what to do next - file a yet ANOTHER petition against the mother to yank custody from her because she did not commit a crime of criminal mischief, did not remove a rock that does not belong to her off the rental property and did not move with her 3 young children, leaving behind the confirmed stable housing - without regard whether she can afford the move or not?

Once again, WTF?  Is THAT "the law" in these 28 counties?

Are these judges professional lawyers?

The sad part is, after this appellate level, the mother - especially that she is pro se - has NO RECOURSE to appeal this decision any further as of right.

It is a unanimous decision, so the New York State Court of Appeals won't take it - especially that it has unilaterally (and unlawfully) changed the New York State Constitution making it mandatory jurisdiction for the top state court to take up cases with constitutional issues raise - their "policy" (that they are not authorized to make) is to view mandatory jurisdiction as discretionary/on their whim.

The U.S. Supreme Court's jurisdiction is also discretionary (on a whim), preparing a case for that court requires jumping through so many hurdles that it is unthinkable that a pro se mother of 3 young children will be able to do that.

Federal courts have a judge-invented "Rooker-Feldman doctrine" barring civil rights lawsuits based on violations of federal constitutional rights by state courts, and a judge-invented "Family court doctrine" barring such lawsuits on a 2nd ground.

Access to international courts for Americans complaining against their own government violating their human rights is blocked by the way the US ratified the International Covenant for Civil and Political rights.

The only hope is that the trial judge will "factor in" this "change of circumstances" in a way defying the racist woke 3rd Department ruling rough-shod over the law and parental rights of white parents.

The full text of the NY woke custody decision

There are a lot of articles regarding this decision that do not publish a link to the actual text.

Here is the link and the full text.

My comment will be published separately.

 https://www.nycourts.gov/reporter/3dseries/2021/2021_02847.htm

Matter of Christie BB. v Isaiah CC.

2021 NY Slip Op 02847

Decided on May 6, 2021

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered:May 6, 2021

527802

[*1]In the Matter of Christie BB., Petitioner,

v

Isaiah CC., Appellant. (And Another Related Proceeding.)

Calendar Date:March 10, 2021
Before:Egan Jr., J.P., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

Andrea J. Mooney, Ithaca, for appellant.

Jason Leifer, Ithaca, attorney for the child.

Pritzker, J.

Appeal from an order of the Family Court of Tompkins County (Cassidy, J.), entered October 19, 2018, which, among other things, partially granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the unmarried parents of a mixed race daughter (born in 2014). When the child was approximately three months old, the father acknowledged paternity. Pursuant to a July 2017 order, the parties stipulated that they would share joint legal and physical custody of the child, with the child alternating weeks with each parent. The mother commenced the first proceeding seeking to modify the prior order by, among other things, awarding her primary placement of the child, with alternating weekend parenting time to the father. The father answered and filed a counter petition seeking to modify the prior order by awarding him sole custody of the child. Following a fact-finding hearing,^[FN1] Family Court determined, among other things, that the parties should continue to have joint legal and physical custody of the child, with parenting time on alternating weeks. However, at the suggestion of the attorney for the child, the court expanded upon the prior order by adding a provision that the mother's home shall be considered the child's primary residence for the purpose of schooling. The father appeals.

There is no dispute that a change in circumstances existed since the entry of the order in July 2017; thus, we focus our inquiry on whether Family Court's decision served the best interests of the child (see Matter of Clayton J. v Kay-Lyne K., 185 AD3d 1243, 1244 [2020]; Matter of Sherrod U. v Sheryl V., 181 AD3d 1069, 1069 [2020]). Factors to consider when conducting the best interests analysis include "the past performance and relative fitness of the parents, their willingness to foster a positive relationship between the [child] and the other parent, their fidelity to prior court orders and their ability to both provide a stable home environment and further the [child]'s overall well-being" (Matter of Jennifer VV. v Lawrence WW., 186 AD3d 946, 948 [2020] [internal quotation marks, brackets and citation omitted]; see Matter of Sandra R. v Matthew R., 189 AD3d 1995, 1997 [2020], lv dismissed and denied 36 NY3d 1077 [2021]). This Court generally accords "great deference to Family Court's factual findings and credibility determinations given its superior position to observe and assess the witnesses' testimony and demeanor firsthand, and will not disturb its custodial determination if supported by a sound and substantial basis in the record" (Matter of Daniel TT. v Diana TT., 127 AD3d 1514, 1515 [2015]; see Matter of Clayton J. v Kay-Lyne K., 185 AD3d at 1244).

At the fact-finding hearing, the mother testified that the child lives with her and the mother's two other children. The mother testified that she has lived in [*2]three or four different residences since the time the child was born. The mother also testified that she is concerned about the child's behavior, particularly kicking, spitting, hitting and swearing a lot. The mother stated that the reports from the child's Pre-K program indicate that the child is having behavioral issues that occur during both her and the father's weeks with the child. The mother testified that the father will "make a big thing out of it" every time that she tries to bring up the child's behavior with him, and that he does not communicate well. To that end, the mother testified that the communication between her and the father is poor. She also testified that, although she would like to text the father daily for updates on how the child is doing, she only texts him once or twice a week because the father texted her once saying that she did not need to text him every single day. The mother also claimed that the father attempted to change the child's school without the mother's knowledge and that the child was frequently absent from school on days she was with the father. The mother testified that, when the father picks up the child, she cries and "has a hard time departing." The mother also acknowledged that she had a rock with a confederate flag painted on it at her home. In response to questioning, the mother testified that she has never used any racial slurs in front of the child or at all. Finally, the mother acknowledged that she had not attended any parenting classes despite a provision in the prior order requiring the parents to do so.

The father's testimony also revealed that the mother and the father struggle to communicate, which has led to issues with, among other things, doctor's appointments for the child. The father testified that he went to the child's school after her first day and stated that there was confusion because, in the paperwork submitted to the school, the mother did not list any father. The father testified that the child has issues at school with kicking, swearing and spitting, but the father claims that she does not engage in any of this behavior at home. The father explained that he has talked to the teachers about the child's behavioral issues, but admitted that he has not communicated much with the mother about these issues. The father stated that, since the last order was entered, the mother has changed her residence and that the first he heard of this move was through the child. The father testified that since the child's birth, he has picked her up from seven or eight different addresses. The father explained that the child sometimes arrives with scrapes, bruises and bug bites. The father also testified that he found a bruise on the child, but he could not recall if he ever asked the mother about this mark. The father testified that he has attended several parenting classes. The father stated that the subject child missed several days of school during his time with her because [*3]she was sick. The father acknowledges that he will be moving soon and that the place he is moving to is in a different school district.

We agree with Family Court that the testimony revealed that "little has changed" since the prior order was entered. Thus, only a minor modification of the prior order was needed in the form of providing, among other things, that the mother's home shall be the child's primary residence for the purpose of where the child attends school. Although testimony revealed that the mother had relocated multiple times, the court found, and the record supports, that the mother currently has stable housing. Additionally, although the mother has moved around, testimony established that the father was planning to move as well. Furthermore, although the factor of fidelity to prior orders weighs in favor of the father, as the mother failed to attend a required parenting class, this is only one factor. Family Court clearly appreciated and addressed this concern, as evidenced by the fact that the court explicitly ordered that the mother contact the administrator of a parenting class program within one week of the issuance of the order. Moreover, although communication between the parents is not ideal, it is not so poor as to render a joint custodial arrangement unworkable. In this regard, both parties have the goal of getting back to a place where they work well together. There may come a point in the future where joint custody proves entirely unworkable, but, at this stage, we defer to Family Court's determination that the parties' relationship "is not so acrimonious as to render the award unworkable" (Matter of Patricia RR. v Daniel SS., 172 AD3d 1471, 1472 [2019]; see Elizabeth B. v Scott B., 189 AD3d 1833, 1835-1836 [2020]). It is also noted that this decision to maintain joint custody was supported by the attorney for the child (see Matter of Conway v Gartmond, 108 AD3d 667, 668 [2013]). According due deference to Family Court's credibility determinations and the evidence presented at the hearing, we find that it was in the child's best interests to continue the joint custody arrangement (see Matter of Patricia RR. v Daniel SS., 172 AD3d at 1473; Matter of Richard GG. v M. Carolyn GG., 169 AD3d 1169, 1172 [2019]).

However, we do find that the portion of Family Court's order directing that the mother's residence shall be the child's primary residence for the purpose of where the child attends school must be modified. Although the general idea of preserving the child's current school district has a sound and substantial basis in the record, as it will preserve stability for the child, basing the child's school district on where the mother resides may lead to instability in the future due to the mother's frequent moves in the past. The father does not claim that there is any problem with the current school or that the school in his school district is superior. Therefore, rather than designate the mother's residence [*4]as the primary residence for school purposes, Family Court should have ordered that the child remain in the Dryden Central School District, absent mutual agreement or further court order.

Finally, although not addressed by Family Court or the attorney for the child, the mother's testimony at the hearing, as well as an exhibit admitted into evidence, reveal that she has a small confederate flag painted on a rock near her driveway. Given that the child is of mixed race, it would seem apparent that the presence of the flag is not in the child's best interests, as the mother must encourage and teach the child to embrace her mixed race identity, rather than thrust her into a world that only makes sense through the tortured lens of cognitive dissonance. Further, and viewed pragmatically, the presence of the confederate flag is a symbol inflaming the already strained relationship between the parties. As such, while recognizing that the First Amendment protects the mother's right to display the flag (see generally People v Hollman, 68 NY2d 202, 205 [1986]), if it is not removed by June 1, 2021, its continued presence shall constitute a change in circumstances and Family Court shall factor this into any future best interests analysis.

Egan Jr., J.P., Aarons, Reynolds Fitzgerald and Colangelo, JJ., concur.

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as directed that petitioner's residence shall be considered the child's primary residence for school purposes; the child shall attend school in the Dryden Central School District until further court order or a mutual agreement between the parties with respect thereto; and, as so modified, affirmed.

Footnotes

Footnote 1: There was no Lincoln hearing held as neither party requested one and both the attorney for the child and Family Court indicated that they felt the child was too young.