Opinion
197349
06-21-2017
In the Matter of a Custody/Visitation Proceeding Anonymous, Petitioner, v. Anonymous, Respondent.
Petitioner/Father — Steve M. Cohen, Esq. Respondent/Mother — Joseph R. Donohue, Esq. Law Guardian — Nick M. Frisco, Esq.
Petitioner/Father — Steve M. Cohen, Esq. Respondent/Mother — Joseph R. Donohue, Esq. Law Guardian — Nick M. Frisco, Esq. Dakota D. Ramseur, J.
Petitioner/Father commenced this proceeding against Respondent/Mother for sole physical custody of their nine-year-old child (the "child" or the "subject child"), currently living with Petitioner in New York. Because Petitioner resides in New York and Respondent in Georgia, an amicable resolution could not be reached, and a trial was held to determine custody. At trial, the parties and paternal grandmother C.A. testified.
Having had the opportunity to observe the witnesses and consider the testimony and evidence in the record, and for the reasons stated below, this Court holds that Petitioner shall have sole physical custody of the child during the school year, including Thanksgiving break/vacation, and Respondent shall have parenting time of the subject child during summer break/vacation, winter break/vacation, including Christmas, and any other school break/vacation spanning five school days or longer, including spring break.
Given the expense associated with travel, the parties may agree, in an unambiguous writing, including email or text message, to alter this arrangement on a case-by-case basis.
FINDINGS OF FACT
This section represents the Court's findings of fact after trial; for the most part, the relevant facts are undisputed, except where specific disputes and/or testimony are noted.
Because Petitioner lives in New York and Respondent in Georgia, testimony occasionally proceeded telephonically. The parties first appeared pro se before a referee on June 7, 2016, at which time they could not reach an agreement and asked to appear before a judge (Transcript denoted as "6/7A"). On the same date, the parties appeared before the Court and, based on the parties' income, the Court advised them that they were not eligible for appointed counsel ("6/7B"). However, due to a stated change in Respondent's income, Joseph Donahue was assigned to Respondent. Counsel for Petitioner and Respondent appeared before the Court on August 3, 2016, at which time the matter was adjourned in order to appoint counsel for the child ("8/3"). Another appearance proceeded on September 6, 2016, at which time counsel for the child was appointed and the matter adjourned for trial ("9/6"). Another last conference went forward on September 15, 2016, at which time the AFC recounted his interview with the child ("9/15"). On or about September 22, 2016, the Court conducted a Lincoln hearing, the outcome of which is consistent with the Court's findings herein.
Trial proceeded on October 17 and 18 and December 20 and 21, 2016 ("10/17, 10/18, 12/20, and 12/21," respectively).
I.The Parties
Petitioner and Respondent were married on May 16, 2007, and remain married today, though in total, the parties lived together as husband and wife for only about two years, (12/20 100:13-18), and have not lived together for at least five years (12/20 99:24-100:12). The subject child — the only child the parties had together — was born in 2007 (12/20 100:22-24). Initially, after the child was born, Petitioner and Respondent lived in the paternal grandmother's home for approximately six or seven months. When the child was about a year old, Petitioner and Respondent separated, and Respondent left to live with her mother (12/20 101:15-102:7). Respondent contends she left due to a disagreement (12/21 9:9-10:4), and then returned for a week before leaving again (12/20 102:21-103:8). Respondent did not take the child with her, and had almost no communication with Petitioner for two months (id.; 12/21 92:4-95:2).
Petitioner and Respondent lived together in Georgia for several years before Petitioner joined the Navy on June 1, 2009 (10/17 59:19-23, 12/20 103:23-25). After training, he was stationed in Chicago for three to four years (12/20 105:2-106:14). When stationed in Chicago and while the child lived with Respondent in Georgia, communication between him and the Respondent was sporadic because Respondent frequently changed addresses and phone numbers without updating Petitioner (12/20 112:25-113:20).
The parties briefly reconciled for about a year between 2011 and 2012, when Petitioner purchased a home in Hampton, Georgia in which Respondent resided with the child while Petitioner was on active duty (12/20 107:14-20; 12/21 101:23-102:7). However, when Petitioner discovered that Respondent was sharing a bedroom with another woman in the Hampton home, Petitioner gave Respondent 30 days' notice to vacate the home (10/17 66:9-13; 12/21 142:14- 144:1).
Petitioner and the paternal grandmother imply that the relationship between Respondent and the woman was a romantic one. There is insufficient evidence in the record to make such a determination, in any event that issue is ultimately irrelevant; the Court thus attaches no weight to this revelation except to note that the parties' relationship severed shortly thereafter.
II.Employment
Petitioner has received four promotions in seven years since joining the Navy, and intends to seek more, including an eventual goal of Chief Petty Officer (12/20 87:23-88:20; 96:7-97:11). He has received five ribbons, including a Navy Commendation medal (12/20 88:21-89:21). For the last three years, he has been stationed in New York serving as a Personnel Specialist (12/20 89:23-91:21). He earns $32,000.00 per year in base pay, plus a $4,000 housing allowance per month and health insurance, comprising total compensation of approximately $80,000.00 per year (12/20 91:22-92:24, 106:18-23).
Petitioner currently resides in the Bronx, where he has lived for the last three years with his girlfriend Angelique Curney, a medical assistant, the subject child, and Ms. Curney's eight-year-old daughter (12/20 97:12-98:8, 117:21-118:9, 138:2). Petitioner intends to marry Ms. Curney, but was advised to wait until resolution of the custody issue to divorce Respondent (12/20 122:3-12). Petitioner admitted to a drinking and driving arrest in Georgia in 2013, for which he paid a fine, received probation, and was ordered to complete a defensive driving course (12/20 98:10-99:9).
There is nothing in the record to suggest that Petitioner's arrest was anything other than an isolated incident.
Respondent completed a dental assistant certificate program, at which time she found employment as a dental assistant earning $10.00 per hour (10/17 42:23-43:16, 50:9-52:20). However, in the two months between the October and December trial dates, she returned to her previous employment at Domino's earning $10.00 per hour (12/20 69:20-70:9). Asked why she did so, Respondent testified that the people and work at the dental clinic were "nasty," meaning unhygienic (12/20 70:17). Notably, Respondent contradicted her earlier testimony that she earned $50,000 per year (6/7A 13:8-9; 6/7B 4:17-19). Confronted with the discrepancy, Respondent first testified that she could not recall her earlier statements, then admitted that she does not earn $50,000 per year (10/17 45:11-46:22). III.Education
Respondent's mother watched the child when she was working at Domino's (10/17 55:1-2).
The child attended pre-kindergarten at KinderCare in Jonesboro, Georgia, then kindergarten in Hampton (12/20 23:6, 67:16-68:12; 69:1-4). The paternal grandmother, a mail carrier in Georgia who delivered mail to the child's pre-kindergarten school, regularly checked in on the child (12/20 109:18-110:8). In doing so, she discovered — and reported to Petitioner, who at the time was stationed in Chicago — that the child was not regularly attending pre-kindergarten, at times missing two to three days per week (id.; 12/21 12:16-13:15).
To the extent that Respondent testifies that the child was absent "rarely" and not "frequently" and could not recall whether he was absent "often" (10/17 68:4-12), the Court finds this testimony ambiguous and therefore not materially inconsistent with the paternal grandmother's testimony, and accordingly credits the latter.
The child then attended first grade in Lake City, where he had a 3.0 GPA but exhibited behavioral symptoms — "acting out" and a refusal to sit — and had difficulty learning to read, which resulted in being held back (10/17 76:2-78:5, 82:12-15, Pet'r Exh 2). Petitioner learned that the child had to repeat first grade—-according to Petitioner, at the request of Respondent and her then-girlfriend (12/20 111:25-112:5). During this period, Petitioner learned from the child's teacher that the child was misbehaving and "talking in class" (12/20 113:21-115:9). The child switched schools again to attend first grade for a second time at McGarrah, where he had a lower, 2.889 GPA (10/17 15:10-19, 78:20-21, 82:12-15; 12/21 116:6-11, 144:14-145:10; Pet'r Exh 2). During this time period, Respondent moved with the child to three different apartments, and the child missed fifteen days of school (10/17 84:1-21). When Petitioner attempted to discuss the issue with Respondent, the latter responded — according to Petitioner — "come get your kid," "he'll do better with you, up here, than he's doing down in Georgia," and "take your son" (12/20 115:10-15, 119:9-15).
After first grade at McGarrah, Respondent sent the child to live with Petitioner in New York, though she denied that she did so because of lingering behavioral issues (10/17 88:11-13, 89:7-21). The child attended second grade at "Parkchester," in Bronx, New York and the child's grades improved (10/17 92:17-19, Pet'r Exh 3). During the child's time in New York, Respondent visited the child once (12/21 125:21-25), and after the school year was finished, the child returned to Respondent for summer vacation (10/17 92:25-93:9).
IV.Petitioner's Custody
In New York, the child gets along well with Ms. Curney and her daughter; the children "act like brother and sister" (12/20 118:8-21, 120:19-24, 140:3-9). The children both attend second grade at PS 106, to which Ms. Curney accompanies them each morning (12/20 137:23-25, 137:19-20). The subject child successfully completed second grade without any disciplinary issues (12/20 121:6-23, 121:22-24). Petitioner and Ms. Curney ensure that the children do their homework every day (12/20 138:7-18). The subject child has been attending a Boys and Girls Club and playing football (12/20 116:24-25, 121:14-18).
During the child's time in New York, the paternal grandmother spoke to him regularly via FaceTime (12/21 83:3-20). The paternal grandmother is very close to the child; he is "[her] little heart" (12/21 12:2). The paternal grandmother believes that Petitioner is a good father who "stepped up to the plate, and owned his responsibilities" (12/21 62:4-6). She notes that Petitioner ensures that the child is clothed and groomed and completes his schoolwork, and that Petitioner and the child read and play games together (12/21 62:7-19). The paternal grandmother observed Petitioner engage only in non-corporal punishment: "fuss[ing]" at the child, "timeout," and withhold toys and punishment (12/21 62:23-63:12). She testified that Respondent allows the child to "have his way" and has observed the child "throw a fit" with Respondent (12/21 71:20-72:9).
FaceTime is a form of video chat.
For the time that the child resided with Petitioner, Respondent did not pay any child support (12/20 30:5-13).
V.Respondent's Custody
A. Generally
While the child lived with Respondent, Petitioner voluntarily paid $300.00 per month in child support, an amount the parties agreed to after a conversation (10/17 63:1-6; 12/20 104:11-105:1). While on assignment in Chicago, Petitioner visited the child in Georgia approximately every other month (10/17 64:12-65:3; 12/20 8:1-11, 120:4-7; 12/21 14:9-16), and the paternal grandmother, who also lived in Georgia, looked after the child every weekend (12/21 11:16-23).B. 2009 Pepper Spray Incident
Respondent testified that Petitioner visited "every other month," Petitioner testified to visiting "almost every month," and the paternal grandmother testified that Petitioner visited slightly more often. The Court finds that, on balance, Petitioner's visits can fairly be characterized as frequent given the logistical and financial challenges involved in travel from Chicago and New York to Georgia.
On July 11, 2009, Respondent dropped the child off at the paternal grandmother's home when, ten minutes later, she observed the following: the child's "eyes started rolling in the back of his head, and he just turned blue. He stopped breathing" (12/21 27:9-28:7). According to all parties with knowledge, the child was playing with Respondent's keys when either the child or Respondent accidentally discharged the pepper spray attached to the keys (10/18 61:10-62:23; (12/21 28:3-29:3).
According to the paternal grandmother, after the child was taken to the hospital by ambulance, Respondent arrived and told the paternal grandmother that the child had gained access to Respondent's keychain and accidentally sprayed her pepper spray (id.). The paternal grandmother further testified that Respondent did not, however, inform the child's doctors because Respondent "thought she was going to be locked up" (12/21 28:23-29:3). C. 2010 Car Accident
In 2010, when the child was three years old, his eye was injured when a car driven by Respondent was involved in an accident (10/17 19:8-15, Pet'r Exh 1A-C). The child required twenty stitches when the "car seat broke and [the child] hit the back of the front seat" (10/17 24:4-14). Respondent clarified that the car seat broke because the back seat "caved in" (10/18 56:7-15). Police gave Respondent a summons for improper restraint of the seat, but the charge was later dismissed (12/20 20:13-24, 81:24-82:3). After Respondent informed Petitioner of the child's injuries on the night of the accident, Petitioner flew from Chicago to Atlanta the next day to visit the child for about one week (10/18 58:20-59:13; 12/20 52:20-55:14). D. Hygiene/Miscellaneous
To the extent that the paternal grandmother testified that Respondent "thought that she was going to be locked up" as a result of this incident, the Court gives that testimony little weight because it is both ambiguous and unsupported (12/21 22-24).
The Court notes that allegations regarding drug use by Respondent's family is denied by Respondent and not otherwise corroborated (10/17 80:10-14; 12/21 73:2-13).
Respondent initially denied living in four or five separate homes, until confronted with her own testimony and admitting that there were at least five, and eventually admitting that there were seven (12/20 15:13-19:6, 65:24-69:7). Respondent admitted to having a negative relationship with the child's paternal grandmother because she was "sniffing" the child (10/18 13, et seq, 18:16-18). The paternal grandmother clarified that she was concerned that the child was not being bathed regularly (12/21 26:7-27:1).
The paternal grandmother had to buy her own diaper bag and car seat because she observed cockroaches exiting the diaper bag and car seat given to her by Respondent (12/21 23:7-24:25). On multiple occasions during pick-up from the maternal grandmother's house, Respondent's family would not allow the paternal grandmother past the front door, where she could readily observe residue appearing to be crushed cockroaches (12/21 25:1-17).
To the extent that Respondent answered that she could not recall seeing cockroaches, the Court credits the paternal grandmother's testimony based on its specificity and the paternal grandmother's personal knowledge and ability to recall specific details, which contrasted strongly with Respondent's strained recall (10/17 99:10-15). For example, questioned about other incidents where the child required medical attention while in Respondent's custody, Respondent had difficulty recalling specific instances despite Petitioner's attorney confronting her with medical records (10/17 30, et seq.). Similarly, Respondent testified first that she could not recall a choking incident, then testified that it occurred immediately after she dropped the child off with Respondent's mother (id.).
Respondent spanks the child (10/17 83:8-11).
VI. Custody Arrangement
Petitioner understood the custody arrangement to be that the child would stay with him through the school year, and join Respondent in Georgia for some holidays and summer vacation (12/20 124:21-125:6, 131:10-132:10). Pursuant to this agreement, Petitioner brought the child to Georgia in early July, after second grade ended (12/20 125:7-129:11). Petitioner expected the child to return, and only learned that Respondent had enrolled the child in school in Georgia after he commenced this custody action (12/20 129:18-130:15).
The parties disagreed on the custody arrangement if Petitioner were to be deployed to active duty, though that contingency never occurred.
Respondent disputed that the parties agreed to have the child return to New York for third grade. She decided, without the input of Petitioner or teachers from either location — and despite knowledge that a custody petition had already been filed in New York, and that the child had a return ticket — to keep him in Georgia, where she had moved to Decatur (10/17 93:12-96:16; 12/20 46:20, 83:2-25). During the summer between second and third grade, Respondent dropped the child off with her sister in Ellenwood during Respondent's work hours (10/17 98:16-99:9).
Petitioner had to obtain an order from the Appellate Division to secure the child's return and thereby maintain the status quo — the child's presence and schooling in New York — pending a custody determination (12/21 140:24-141:6; see, e.g., Reisler v Phillips, 298 AD2d 228, 229 [1st Dept 2002] ).
Text messages between May and August support the beginnings of an agreement between the parties that Petitioner would have custody of the child during the school year and Respondent for the summer, but the agreement was never committed to a formal writing (Pet'r Exh 4; 10/18 29:17-30:15; 31:21-25; 34:19-35:2; 12/21 121:2-5, 127:9-128:16 ["I'm getting him for the summer, correct? "Summer, two holidays, Spring Break, and every other weekend"] ).
Respondent testified that she agreed only to allow the child to live with Petitioner in New York for a year, with the expectation that the child would return permanently to Georgia (12/20 11:8-12:6, 14:21-15:3).
DISCUSSION
This is truly a close case—-one that, absent the geographic separation, may have been resolved amicably. Nevertheless, the Court must confront this reality and act in the child's best interests based on the record. Any court in considering questions of child custody must make every effort to determine "what is for the best interest of the child, and what will best promote its welfare and happiness" (Eschbach v Eschbach, 56 NY2d 167, 171 [1982], citing Domestic Relations Law, § 70).
In determining the best interest of the child, courts consider such factors as the original placement of the child, the length of that placement, relative fitness of parents, quality of home environment, parental guidance given to the child, parents' financial status, and parents' ability to provide for the child's emotional and intellectual development (Eschbach, 56 NY2d at 172; Bowe, 23 AD3d at 555; Matter of Lobo v Muttee, 196 AD2d 585, 587, 601 NYS2d 322, 324 [2d Dept 1993]; Dr. Santoro v Dr. Santoro, 638 NYS2d 4789 [2d Dept 1996]; Kresbach v Gallagher, 181 AD2d 363, 587 NYS2d 346 [2d Dept 1992]; see also Samantha J.M. v Anthony T.C., 41 Misc 3d 579, 591 [Fam Ct Monroe County 2013] ["stability is an important factor"] ). The weighing of these various factors requires an evaluation of the testimony, character and sincerity of all the parties involved in this type of dispute (Eschbach, 56 NY2d 167, 173 [1982] ).
Certainly, both parents love the child and wish the best for him, but Petitioner is, at the moment, better suited to provide a stable environment. Respondent, while gainfully employed and having undertaken efforts to advance her career, has limited income and resources, as evidenced by a series of relocations in nearly every year of the child's young life.
During the child's time with Respondent, there were several incidents which — though unintentional — call into question the suitability of the current environment. For example, even crediting Respondent's version of events, the pepper spray incident in 2009 indicates that, at minimum, the child was able to gain access to Respondent's keys and the attached pepper spray. This is not to say that Respondent is negligent or unfit; rather, the evidence paints a picture of a mother who is working hard, but simply does not have — at this moment — the time and resources to devote full-time to a young child who needs active supervision and support.
This characterization is best illustrated by several examples. The first is a lengthy exchange during Respondent's direct examination in which Respondent admits that she has, and would in the future, take the child out of school for doctor's appointments despite the ability to schedule an appointment outside of school hours (10/17 9, et seq). The second is the child's relatively frequent absences in both pre-kindergarten and first grade. In other words, Respondent's schedule would, at times, necessitate a sacrifice of the child's educational time.
Though Respondent disputed that the child was "frequently" absent in pre-kindergarten, she did not dispute that the child was absent from his second year of first grade for fifteen days.
Conversely, the child's time with Petitioner has evidenced greater stability. Petitioner has a career in the armed forces, which pays well with ample opportunity for, and a previous history of, promotion and provides the child's health benefits. Petitioner is in a long-term, stable, cohabitation relationship with an individual who has both stable employment and another child with whom the subject child has a positive relationship. Petitioner ensures that the child regularly completes his homework and engages in extracurricular activities. Petitioner ensures that the child's basic needs are met, including when the child was in Respondent's custody and Petitioner was stationed across the country. More importantly, however, Petitioner has the flexibility and additional resources to provide more than simply basic needs and ensure that the child can thrive.
Given the above, awarding Petitioner custody during the school year will ensure that the child continues to enjoy a measure of extended stability during the formative years of his life, while awarding custody to Respondent during summer and winter/holiday breaks will ensure that the child, through multiple extended visits per year, maintains a connection not only to Respondent, but also to the members of Petitioner's family still in Georgia.
Though the petition does not contain an explicit request for paternal grandparent visitation, the Court finds that reasonable visitation would be in the child's best interests. "Reasonable," in this context, means visitation at least once every other weekend, to the extent practicable.
CONCLUSION
Based on the foregoing, it is hereby
ORDERED that Petitioner's petition for custody is hereby GRANTED to the extent that Petitioner shall be awarded sole custody of the subject child during the duration of the school year, including Thanksgiving break/vacation, and that Respondent shall have parenting time of the subject child during summer break, winter break, including Christmas, and any other school break of five school days or more, including spring break; and it is further
ORDERED that the parties may alter this arrangement in an unambiguous writing, including text message and/or email, and it is further
ORDERED that Petitioner shall have ultimate decision-making with respect to choices regarding the child's education, medical care, extracurricular activities, etc., but Petitioner shall consult with Respondent before any such decisions are made; and it is further
ORDERED that the party with physical custody of the child shall initiate telephonic and/or video conferencing with the other parent on a daily basis, at a time to be determined by the parties.
This constitutes the decision and order of the Court. Dated: Bronx, New York _________________________________ Dated: June 21, 2017 Dakota D. Ramseur, J.F.C.