Opinion
09-14-2022
C.B-C., Plaintiff, v. W.C., Defendant.
Jeffrey A. Goodstein, J.
These parties were the "poster children" for co-parenting post divorce. They continuously worked together in all aspects of their child's ("A") (age 16) best interest. Then, this family became a microcosm of the many litigations before this Court in the post Covid era.
The parties were divorced pursuant to a Judgment of Divorce dated December 12, 2014 ("Judgment"). They executed a Separation Agreement dated November 17, 2011 ("Agreement") which provided the parties with joint legal custody of A, including joint decision-making. It also set forth that the Plaintiff ("Ex-Wife") was the residential custodial parent and the Defendant ("Ex-Husband") enjoyed liberal parental access.
The parties worked together again and executed an Amendment to their Agreement dated June 19, 2014 ("Amendment") which modified certain aspects of parental access (Collectively "Stipulations"). The parties successfully co-parented A for 10 years and despite being divorced, remained a presence in each other's lives. For example, when the Ex-Wife was diagnosed with Covid-19 during 2021 and entered the hospital, the Ex-Husband cared for A 100% of the time, visited the Ex-Wife in the hospital and assisted her upon her return to her residence. Further, despite not reducing it to a writing, the parties verbally agreed and practiced a 50/50 parental access schedule based upon A's request. A enjoyed this arrangement for a number of years, all without incident. The co-parenting and the working relationship ended in September 2021 when the Ex-Husband allegedly obtained a falsified vaccine card for the Covid-19 vaccine for A despite A never receiving the vaccine. Once the Ex-Wife learned of this, her requests for the Ex-Husband to rectify the situation fell on deaf ears. Based upon these initial actions, A was thrust into the middle of this moral dilemma.
As is more fully set forth below, this is not one of the typical "Covid-19" cases before the Court where one parent is pro Covid-19 vaccine and the other is anti Covid-19 vaccine. The evidence showed that both of the parties, as well as A, were comfortable waiting and not having A be vaccinated for Covid-19. It was alleged that when the Ex-Husband told the Ex-Wife what he had done, he offered to obtain a falsified vaccine card for her as well. The Ex-Wife's greater concern is the continual lie A is now forced to maintain as his medical records indicate that he received both vaccination injections, which he in fact, never received.
Once the Ex-Wife commenced this post judgment litigation, A was forced to choose between his parents. The relationship between A and the Ex-Wife quickly started its downward spiral.
PROCEDURAL HISTORY
The Ex-Wife filed her post judgment Order to Show Cause seeking an order adjudging the Ex-Husband in contempt for his violation of the joint decision-making provision of the Judgment as well as an award of sole medical decision-making authority on A's behalf. She further sought a temporary restraining order granting her sole decision making with regard to mental health therapy for A which was granted on an emergency basis. Ex-Wife then filed a second order to show cause alleging that the Ex-Husband violated the parental access provisions of the Judgment by alienating A from her. In response to these applications, the Ex-Husband filed a cross motion seeking sole legal and residential custody of A based on a substantial change in circumstances.
The hearing of this post judgment matter was conducted on June 29 and June 30, 2022. Thereafter, the Court conducted an In Camera with A. The parties, who were both represented during this entire post judgment application submitted their Post Trial Memorandums on August 19, 2022.
TESTIMONY
The Ex-Wife testified that in September 2021, the Ex-Husband told her that he got A vaccinated, but then admitted that they did not actually receive the vaccine, but just a fake vaccination card and offered to get her one as well. She further explained that the Ex-Husband told her that he watched as the provider poured the vaccine liquid out. He allegedly told her that he went to Wild Child Pediatric Healthcare in Amityville to obtain this fake card . Ex-Wife further testified, and provided evidence that, A's official medical records now show that he was vaccinated with both the first and second dose of the Covid-19 vaccine. She also testified that A admitted to her that he in fact did not receive the actual vaccine. The Ex-Wife further testified that the Ex-Husband did not consult with her regarding the Covid-19 vaccine. She explained that her biggest concern was the issue of A perpetuating a fraud and being forced into a lie.
The Court has taken judicial notice that two healthcare officials were arrested from Wild Child Pediatric Healthcare on January 28, 2022, for forging Covid-19 vaccination cards.
She also testified that on or about December 2021, A began residing with the Ex-Husband 100% of the time. She explained that an incident occurred when A tried to enter her home where his belongings remained on December 23, 2021, when she was not home and again on December 25, 2021. She admitted that she changed the locks on the residence and changed the code for entrance through the garage. She complained that A did not spend the weekend of December 18th and 19th with her and blames the Ex-Husband for not bringing A to her. She admitted that A told her that he would not see her unless she discontinued this case. She further explained that A and the Ex-Husband ignored her when she attended A's track meets. She blames the Ex-Husband and his older sons for influencing A's recent behavior.
She also testified that she has a dog, ("B"), which lives with her and did not go back and forth regularly to the Ex-Husband's residence when the parties shared 50/50 parenting time of A. She explained that there was no regularity with regard to B going to the Ex-Husband's house. She contends that she changed the locks on her home to protect the house. She further testified that she does not believe A's full relocation to the Ex-Husband's residence is in his best interest.
During cross examination, she admitted that she changed the locks because she felt A was hostile towards her and she felt threatened. The parties were exercising a schedule where A spent half the week with one parent, half the week with the other parent, and then alternated the weekends. She further admitted that A is a stellar student. She acknowledged that the Ex-Husband assisted in getting A into a leadership program, on the Principal Scholar List and always helps with homework. She further admits that A is drug and alcohol free with no emotional issues. She also admits that A loves B who sleeps in A's bed with him. She further testified that the Ex-Husband would sometimes watch B if she traveled, and even did so when she was in the hospital with Covid-19. She also admitted that the Ex-Husband has taken A to all meetings with the Attorney for the Child and to the meetings with the Ex-Wife at the visitation coordinator, Kids in Common which was proposed by this Court during this litigation to help rebuild the relationship between A and the Ex-Wife. She admitted that since December 2021, she has not attempted to see A at Ex-Husband's residence and A has not spent any time at her home.
Ex-Wife further explained that she supported A's position to not be vaccinated. She further admitted that she told A that she might consider seeking a religious exemption to the Covid-19 vaccine, notwithstanding the fact that no one in the family practices any religion. This calls into question the Ex-Wife's credibility as she argued that her most important issue was A being forced to perpetuate a lie. However, the Court does note that the Ex-Wife never followed through on this type of action. She admitted that with regard to the December 23, 2021, incident, she did not advise A or the Ex-Husband that she changed the locks or the garage code. She further admitted that in November 2021 she called A a punk and "may have conveyed" that he should live with the Ex-Husband.
Ex-Husband testified that he agreed with the Ex-Wife's assessment of A as a stellar student and a "good kid". He explained how he helped the Ex-Wife with her recovery, and with A and B during her battle with Covid in February 2021. He testified that he always encourages A to call the Ex-Wife. He explained that A was upset when he could not get into the house in December 2021 and was disheartened. He further testified about A's reaction to not being able to see B. Ex-Husband further testified that he has no problem with A going back with the Ex-Wife. He further testified that there has not been any collaboration about medical issues since January 2022. He contends that he has not stopped A from seeing Ex-Wife since October 2021 and in fact encourages their relationship.
During cross examination, when he was questioned about the fraudulent vaccination card, the Ex-Husband plead the 5th Amendment over 20 times. This Court draws a negative inference against the Ex-Husband and assumes the Ex-Wife's factual allegations as true (Prince, Richardson on Evidence 11th Edition § 5-710; Andrew Carothers, M.D., P.C. v. Progressive Ins. Co., 33 N.Y.3d 389 (2019)). The right against self-incrimination does not automatically insulate a party to a civil action from potential liability, and it is well-established that 'a negative inference may be drawn in the civil context when a party invokes the right against self-incrimination (DeBonis v. Corisiero, 155 A.D.2d 299 (1st Dept. 1989)). Ex-Husband admitted that the track meets which A participated in during the Fall of 2021 required a covid vaccine which means A used the falsified vaccine card to gain entrance into these track meets.
A lengthy In Camera was conducted with A where he expressed his wishes and explained his stance with regard to the current situation but also, sadly, was placed in a situation where he also had to plead the 5th Amendment.
DISCUSSION
"Modification of an existing custody or visitation arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child." (See , Grant v. Hunter, 64 A.D.3d 779 [2d Dept 2009]). In determining whether a custody agreement should be modified, the paramount issue before the Court is whether, under the totality of the circumstances, a modification of custody is in the best interest of the child. (See, Friederwitzer v. Friederwitzer, 55 N.Y.2d 89 [1982]; Shehata v. Shehata, 31 A.D.3d 773 [2d Dept 2006]; see also, Cuccurullo v. Cuccurullo, 21 A.D.2d 289, 290 [2d Dept 2005]). A party seeking the modification of an existing court-sanctioned child custody arrangement has the burden of demonstrating that circumstances have changed since the initial custody determination to the extent that modification is necessary to insure the child's best interests (Klotz v. O'Conor, 2015 NY Slip Op. 00376 [2d Dept 2015]; see Matter of Thomson v. Battle, 99 A.D.3d 804, 806 [2d Dept 2012]).
However, while the general rule is that absent a change in circumstances, courts should defer to the parties' agreement, no agreement "can bind a court to a disposition other than that which a weighing of all of the factors involved shows to be in the Child's best interests." (Manos v. Manos, 282 A.D.2d 749 [2d Dept 2001]; Friederwitzer, supra. Indeed "[a] court cannot be bound by an agreement as to custody...and simultaneously act as parens patriae on behalf of the child", a role which "must not be usurped." (Glauber v. Glauber, 192 A.D.2d 94 [2d Dept 1993]).
Disputes involving custody and visitation are acknowledged to be among the most difficult the courts are called upon to resolve, for they so deeply affect the lives of children and the parents who love them. Daghir v. Daghir, 82 A.D.2d 191 [2d Dept. 1981]. When adjudicating custody and visitation rights, the most important factor to be considered is the best interests of the child under the totality of the circumstances. Mauter v. Mauter, 309 A.D.2d 737 [2d Dept. 2003], citing Eschbach v. Eschbach, 56 N.Y.2d 167 [1982]; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89 [1982]. "Custody determinations therefore require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the Court to ascertain the optimal result for the child." S.L. (Anonymous) v. J.R. (Anonymous) 2016 NY Slip Op 04442 [Ct. of Appeals, 2016]. The Court must be guided by numerous factors to reach a best interest determination. Some of these factors include the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, the effect an award of custody to one parent might have on the child's relationship with the other parent, and the child's wishes. In the Matter of McPherson v. McPherson, 139 A.D.3d 953 [2d Dept. 2016]; Funaro v. Funaro, 2016 NY Slip Op 05528 [3d Dept. 2016]; Salvatore v. Salvatore, 68 A.D.3d 966 [2d Dept. 2009], quoting Matter of Edwards v. Rothschild, 60 A.D.3d 675 [2d Dept. 2009]; see Eschbach v. Eschbach, 56 N.Y.2d 167 [Ct. Of Appeals 1982]; Matter of Rosado v. Rosado, 136 A.D.3d 927 [2d Dept. 2016].
Further, the credibility of the parties and the court's assessment of the character of the parties plays a substantial role in the ultimate determination of the best interest question, as do the wishes of the children. Matter of Gooler v. Gooler, 107 A.D.3d 712 [2d Dept. 2013].
It is well established that spheres of decision-making exist when making custody determinations, and that divisions of authority between parents should be made to take advantage of each parent's strengths and demonstrated abilities with respect to that particular dimension of child-rearing (Ring v. Ring, 15 A.D.3d 406 (2d Dept. 2005); Chamberlain v. Chamberlain, 24 A.D.3d 589 (2d Dept. 2005); see also, Steingert v. Fong, 156 A.D.3d 794 (2d Dept. 2017).
Although not dispositive, a child's preference is to be accorded great weight, particularly where the children's age and maturity "make their input meaningful." Matter of Licato v. Jornet, 146 A.D.3d 787 (2d Dept. 2017); Matter of Worner v. Gavin, 128 A.D.3d 981 (2d Dept. 2015) [preference of a fourteen and fifteen-year-old entitled to great weight]. The express wishes of older and more mature children can support the finding of a change in circumstances warranting modification. Dorsa v. Dorsa, 90 A.D.3d 1046 (2d Dept. 2011); Nell v. Nell 87 A.D.3d 541 (2d Dept. 2011).
There is no doubt that there is a change in circumstances based upon the foregoing facts and circumstances of this case. The Ex-Husband obtained a fraudulent Covid-19 vaccination card. Then, the filing of this post judgment action created a situation where A refuses to exercise any parenting time with the Ex-Wife, despite having a 50/50 schedule prior to the filing of this post judgment action. Accordingly, in examining the different factors regarding the best interest of the child, the Court considered the following:
Quality of the Home Environment
As set forth above, prior to the obtaining of the fraudulent Covid-19 vaccination card, A enjoyed a loving environment in both parties' homes, where he split his time on a 50/50 basis. The evidence showed that both parents assisted with homework and participated in all aspects of A's life. However, now, A resides 100% of the time with the Ex-Husband and has not been back to the Ex-Wife's home since December 2021.
Parental Guidance
The evidence showed that prior to the obtaining of the fraudulent Covid-19 vaccination card, both parties provided appropriate parental guidance in all aspects of A's life.However, all that changed when the Ex-Husband obtained the fraudulent vaccination card. Despite his and A's pleading of the 5th Amendment, it is clear to this Court that the Ex-Husband did in fact obtain a fraudulent Covid-19 vaccination card for A. The evidence also showed that there were no family issues with one parent wishing to have A vaccinated and the other opposing same. Yet, the Ex-Husband took it upon himself to fraudulently obtain the vaccination card. This conduct clearly forces this Court to question the parental guidance that the Ex-Husband is capable of providing to A. With that said, it is also undisputed, that aside from this incident, the Ex-Husband has shown strengths in the realm of parental guidance by being a fully involved parent and having a wonderful relationship with A.
The Ex-Wife and A enjoyed a wonderful relationship prior to the Ex-Husband unilaterally obtaining the fraudulent vaccination card. However, once A moved in 100% with the Ex-Husband, the Ex-Wife, as the evidence showed, locked A out of her house where many of his belongings remained and she refused to allow A to visit with B, unless it was in her home. However, this action itself was filed based upon the Ex-Wife's concern about properly guiding A about honesty and integrity and the importance of not "gaming the system". Yet, the evidence showed that the Ex-Wife was discussing the possibility of obtaining a religious exemption to the vaccine, despite the family not practicing any religion.
Ability of each parent to provide for the emotional and intellectual development of the children
Aside from this one incident, both parents have continuously provided emotional and intellectual development for A. However, based upon the strain between the Ex-Wife and A, the Court questions the Ex-Wife's ability, at this time, to provide him with emotional development.
Fitness of the parents
Both parties are fit parents and have been for A's life until the Ex-Husband obtained the fraudulent vaccination card. In fact, it is clear from the evidence that A enjoyed an ideal situation as a child of divorce. Then, the Ex-Wife locked A out of her home without telling him, while she was away, which prevented him from retrieving his belongings. She also has prevented him from spending time with B as she set a condition of visits only being at her home. The Ex-Husband committed a fraud and thrust A into a situation where his medical records are now inaccurate, and he is forced to perpetuate a constant lie regarding his vaccine status.
Fostering a relationship with the Co-Parent
There is no allegation regarding the Ex-Wife not fostering a relationship between the Ex-Husband and A. Further, despite the fraudulent vaccination card incident, there was no credible testimony about the Ex-Husband failing to foster a relationship between A and the Ex-Wife. Although the Ex-Wife made various claims during her testimony regarding the Ex-Husband's alleged alienation, none of those claims were substantiated. Once again, it is clear that prior to the incident both parents were the poster children for co-parenting post divorce.
Child's Desires
All courts tasked with making a custody determination face the difficult questions of how much weight to give to the wishes of the child and what is in their best interest. A child's preference for a particular parent, while a factor to be considered, cannot be determinative (see, Darema-Rogers v. Rogers, 199 A.D.2d 456; Zucker v. Zucker, 187 A.D.2d 507; Cervera v. Bressler, 90 A.D.3d 803).
Some of the factors this Court considered in determining the weight to give A's wishes were his maturity, age (see Matter of Winston v. Gates, 64 A.D.3d 815 (2009); and the reasons expressed for his preference.
Based upon the evidence presented at trial, the totality of the testimony, including the In Camera with A, and the fact that this Decision and Order will only be in effect until A turns 18, which will be in 15 months; it is hereby
ORDERED, that the Ex-Wife shall have parenting time as follows: every other weekend from Friday at 6:00pm until Sunday at 7:00pm to take place at the Ex-Wife's residence; and it is further
ORDERED, that additional parenting time can be enjoyed as agreed between the Ex-Wife and A; and it is further
ORDERED, that all other times not set forth shall be with the Ex-Husband.
Based upon the evidence as set forth above, the Court finds that it would be beneficial for the Ex-Wife to retain the services of a therapist for herself and A to focus on reconciliation.
With regard to decision making, it is clear that both parties worked together post divorce for years in co-parenting A. The testimony also showed that the Ex-Husband, more recently, has been solely assisting A in all decision-making issues. However, the Ex-Husband's conduct in fraudulently obtaining a fake Covid-19 vaccination card on A's behalf shows a lack of insight and poor judgment with regard to A's medical decision making as his medical record is now permanently effected, and false, based upon the unilateral actions of the Ex-Husband.Accordingly, it is hereby
ORDERED, that the Ex-Wife shall have final decision making regarding any medical decisions which need to be made on A's behalf; and it is further
ORDERED, that all other provisions of the parties' Stipulations and the Judgment remain in full force and effect.
Contempt
As set forth above, the Ex-Wife is seeking an adjudication of contempt against the Ex-Husband for his violation of the Judgment and Stipulations in that he unilaterally made a medical decision despite the parties having joint decision making regarding same.
The Ex-Husband exercised his right against self-incrimination during any questioning pertaining to the obtaining of the fraudulent Covid-19 vaccination card. The Ex-Wife explained that she was not told about the falsified vaccination card until after the Ex-Husband obtained it on A's behalf.
"A motion to punish a party for civil contempt is addressed to the sound discretion of the court, and the movant bears the burden of proving the contempt by clear and convincing evidence." (Matter of Hughes v. Kameneva, 96 A.D.3d 845, 846 [2d Dept 2012]). Contempt is a drastic remedy and in order to find it in a given case, "it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect. It must appear, with reasonable certainty, that the order has been disobeyed. Moreover, the party to be held in contempt must have had knowledge of the court's order, although it is not necessary that the order actually have been served upon the party. Finally, prejudice to the right of a party to the litigation must be demonstrated." (El-Dehdan v. El-Dehdan, 978 N.Y.S.2d 239, 246 [2d Dept 2013] ; quoting Matter of McCormick v. Axelrod, 59 N.Y.2d 574, 583 [1983]). A finding of civil contempt requires the violation of a clear and unequivocal mandate set forth in an order or judgment of the court. Additionally, the moving party bears the burden of proof and "the contempt must be established by clear and convincing evidence." (see, Judiciary Law § 753[A][3]); Matter of Rothschild v. Edwards, 63 A.D.3d 744, 745 [2d Dept 2009]).
Criminal contempt will be supported by an additional showing of "willful disobedience" to the Court's lawful mandate (Judiciary Law §750[3]; Dalessio v. Kressler, 6 A.D.3d 57 [2d Dept 2004]). In contrast, for civil contempt, "it is not necessary that the disobedience be willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes or prejudices the rights or remedies of a party (Judiciary Law §753[A]; see El-Dehdan, 978 N.Y.S.2d at 250). The element of prejudice to a party's rights is essential to civil contempt, which aims to vindicate the rights of a private party to litigation, but not criminal contempt, which aims to vindicate the authority of the court (El-Dehdan, 978 N.Y.S.2d at 246).
The Stipulation sets forth, in pertinent part, at Article VII, as follows:
B. The parties shall have joint legal custody of the child with respect to decision making as defined herein. On all matters of importance, the Mother and Father shall consult with each other with regard to the child's education, health, welfare and any other issues of importance concerning the child's general health and welfare with a view towards adopting and following a harmonious and mutually agreeable policy calculated to promote the best interests of the child. If after such good faith consultation and discussion the parties are unable to agree on a particular major decision respecting the child, then the parties shall immediately consult with their jointly appointed mediator...For medical decisions, the mediator shall be the child's pediatrician or an expert designated by said pediatrician.
The Ex-Husband argues that the Ex-Wife failed to offer any testimony demonstrating the existence of a clear and unequivocal order specifically directing the parties to consult with respect to the issue of vaccinations. Specifically, Ex-Husband cites two cases which stand for this proposition. In Hughes v. Kameneva, 96 A.D.3d 845 (2d Dept. 2012), the Appellate Division held that "the evidence did not establish that the mother's actions with respect to having the child undergo certain medical procedures was a violation of an unequivocal mandate contained in the parties' stipulation." Further, the Appellate Division, in Heffer v. Krebs, 196 A.D.3d 684 (2d Dept. 2021), upheld the lower court's determination to not find a parent in contempt for vaccinating a child. Specifically, Heffer sets forth as follows, in pertinent part:
Here, the Supreme Court providently exercised its discretion in denying that branch of the defendant's motion which was to hold the plaintiff in contempt, since the defendant failed to prove by clear and convincing evidence that the plaintiff's violation of a provision of the separation agreement prejudiced her (see Penavic v. Penavic, 109 A.D.3d 648, 650 [2013]).
The separation agreement provided that "[t]he parties shall continue to cooperate and consult with one another to arrive at decisions which they believe are in the best interest of the [c]hild with respect to health." Despite this language, on two occasions, the plaintiff, without first consulting with the defendant, took the child, who had not received any vaccinations since the age of two, to get vaccinated.
However, the parties' separation agreement did not unequivocally prohibit the plaintiff from having the child inoculated.
Since the defendant did not demonstrate that the plaintiff engaged in contemptuous conduct that caused her to be prejudiced, she is not entitled to an award of attorney's fees.
Despite these cases cited by the Ex-Husband, the facts are distinguishable from the facts herein. Here, the Ex-Husband made a unilateral decision and obtained a fraudulent Covid 19 vaccination card on A's behalf. This action is a clear violation of the parties' Stipulations as it pertains to joint decision making as well as "health, welfare and any other issues of importance concerning the child's general health and welfare" as set forth in the Stipulation. Soper v. Soper, 203 A.D.3d 1162 (2d Dept. 2022). Further, there is a clear mandate that the parties were to "consult with each other with regard to the child's education, health, welfare and any other issues of importance concerning the child's general health and welfare...". Now, based upon Ex-Husband's actions, A is saddled with the burden of going through life with inaccurate and false medical records. He is now forced to avoid questions pertaining to vaccination status, or worse, being forced to lie about it. The Ex-Husband's actions will certainly affect the colleges A may want to attend as well as possible future job employment if vaccination status is a prerequisite for the employment or college admission.
The Ex-Husband's actions not only shock the conscious, but they also prejudiced the Ex-Wife. She must now find a way to navigate false medical records for A during the last 15 months for which she has medical decision making until A turns 18. She may be forced into a situation to continue to perpetuate this fraud on A's college applications or future school records based upon his false medical records. The Ex-Wife is further prejudiced as there is no doubt that her relationship with A has been severely deteriorated based directly upon the Ex-Husband's contemptuous conduct.
Although it is clear to the Court that the Ex-Husband obtained a fraudulent vaccination card, the Court is powerless in directing the Ex-Husband to take the necessary steps to rectify A's falsified medical records based upon the right against self-incrimination.
Accordingly, it is hereby
ORDERED, that the Ex-Husband is in contempt for obtaining a fraudulent Covid-19 vaccination card for A; and it is further
ORDERED, that the Ex-Husband is sentenced to a fine of $250.00 for said contempt pursuant to Judiciary Law §773; and it is further
ORDERED, that the Ex-Husband shall pay said $250.00 fine directly to the Ex-Wife within 5 business days of the service of this Decision and Order with Notice of Entry.
In addition, the Ex-Wife made an application for counsel fees based upon the Ex-Husband's conduct. The Ex-Husband's opposition is scheduled to be submitted on October 12, 2022 and this contempt finding will be considered in this Court's ultimate counsel fee determination.
The Dog
There was limited testimony provided about B, the parties' dog. B lives with the Ex-Wife and has since the divorce. The evidence showed that B was cared for by the Ex-Husband at his residence during times when the Ex-Wife was vacationing. When the Ex-Wife was hospitalized for Covid-19, B was cared for by the Ex-Husband for the entire time.
The testimony also showed that B slept in the room with A while at the Ex-Wife's residence. Ever since A has been residing full time with the Ex-Husband, as set forth above, the Ex-Wife has not allowed A to spend time with B outside of her home. In essence, she has held B as a bargaining chip to entice A to come back to her residence. The testimony also showed that A wants to resume his relationship with B.
Domestic Relations Law §236B[5][d] has recently been modified by adding subparagraph [15] which sets forth as follows:
In awarding the possession of a companion animal, the court shall consider the best interest of such animal. "Companion animal", as used in this subparagraph, shall have the same meaning as in subdivision five of section three hundred fifty of the agriculture and markets law;
The statute does not provide a standard or guidelines explaining how the Court is to reach such a determination. Although this proceeding was a post judgment action regarding a change of custody and contempt, based upon the In Camera, it is clear that visitation with B carries great importance and must be addressed by this Court.
There was very little testimony regarding whether B's time should be split between the Ex-Husband and the Ex-Wife's home or whether it should be wherever A is residing. A court needs a tremendous amount of information upon which to make a best interest finding. Child custody cases usually require the appointment of an attorney for the child(ren), or an appointment of a custody forensic to evaluate the child(ren) and the parties, as well as to conduct collateral interviews with teachers, childcare providers, pediatricians, and the like. Further, as was the case here, the Court must conduct an In Camera with the child(ren) themselves.
Prior to the enactment of this statute, this Court rendered two separate decisions involving pet visitation. In an unreported pendente lite decision, this Court established that a hearing would not be conducted to determine the ultimate issue of possession of a dog. That case also involved marital assets, support and custody of a child. In that case, this Court found that for the parties to incur counsel fees for a hearing would be counterproductive to reaching a conclusion in the matter and against the interest of judicial economy. This Court ultimately concluded that, without the need for a hearing, the dog would accompany the child during all parenting time with either parent.
Later, in L.F.M. v. S.R.M., (NYLJ, August 24, 2018), this Court adopted the "best for all concerned" standard (as established by Justice Cooper in Travis v. Murray, 977 N.Y.S.2d 621 (Sup. Ct. 2013) as the presumptive norm, if pet visitation is presented to the Court as an issue between the parties. This Court opined:
If there are children involved, the Court will consider the Child's wishes with respect to the parents' request for time with the pet. If there are no children of the marriage, this Court will implement a shared pet visitation schedule on a weekly or bi weekly basis depending on the parties' proximity to each other. In either instance, this formula negates the need for a hearing, or any trial testimony with regard to pet custody/visitation.
Although the standard has officially changed to a best interest analysis, the statute does not enumerate what the court is to consider for the best interest of a companion animal when awarding possession in a divorce proceeding. This Court has pondered which questions should be answered and which factors would be helpful in making a best interest of the animal determination. The Court has researched other guidelines utilized in other jurisdictions across the country. Although no specific request in any of the motions was made regarding B, the trial testimony, and more importantly, the In Camera, led this Court to consider the following factors:
Was the animal purchased before or during the marriage;
Which party assumed most of the responsibility in caring for the animal's needs including, but not limited to, feeding, walking, grooming, and veterinarian visits;
Which party spent more time regularly with the animal;
What living arrangement is in the best interest of the animal;
Who presently wants custody and the proximity of the parties to one another to enable shared custody; and
Whether there are children involved in caring for the animal and the nature of their attachment to the animal. Consideration of which parent has custody of the children and whether it is in the children's best interests to keep the animal in their domicile.
Whether there are other pets involved, and whether it would serve the best interest of all involved to keep the animals together in one home.
As guidelines are not provided within DRL236[B][5][15], this Court deems the adoption of the above guidelines appropriate. As set forth above, B resides with the Ex-Wife full time and slept in A's room every night that A spent at the Ex-Wife's residence. Further, although the Ex-Wife has B on a full-time basis, the Ex-Husband has cared for B, in his home, while with A, when the Ex-Wife was unable to care for B, whether it be while she was hospitalized or while she was on vacation. The most important factor to this Court is how involved A is with B and the nature of their attachment to each other. A wants to spend more time with B and the Ex-Wife was blocking that from happening unless it was in her home. It was made clear during the In Camera, just how important the connection between A and B is. "Once you have had a wonderful dog, a life without one, is a life diminished." (Dean Koontz, A Big Little Life at 266 (2009)). In the current situation, A has gone without B for more than 8 months.
Rhode Island House Bill 5580.
As set forth above, no specific request regarding B was made in any of the motion papers, therefore, the Court will not direct the parties in any way with regard to B. However, based upon the In Camera, and in the best interests, psychological and emotional well being of A and B, the Court encourages the Ex-Wife to allow meaningful contact between B and A by allowing B to spend every other weekend with A at the Ex-Husband's residence.
This constitutes the decision and order of this Court.