Opinion
V-15538-2018
12-07-2021
In the Matter of a Proceeding Under Article 6 of the Family Court Act, Damian S. C., Petitioner, v. Julie S., Respondent.
Unpublished Opinion
Javier E. Vargas, J.
The mother was represented by Ursula Gangemi, Esq., 7820 3rd Ave, Brooklyn, NY 11209, Phone: (718) 238-8855, ursulagangemiesq@yahoo.com; the Father was represented by Clover Barrett & Associates P.C., 338 Atlantic Ave. Brooklyn, NY, tel. (718) 625-8568, cbarrettpc@aol.com.
Papers Numbered
Summons, Petition for Custody & Exhibits Annexed1
Summons, Petition for Custody & Exhibits Annexed2
Exhibits admitted in Evidence3
Court Proceedings Recordings4
Written Trial Summations5
Upon the foregoing papers, the evidentiary virtual bench trial presided by the undersigned from December 9, 2019 to July 27, 2021, and for the following reasons, the Petition by Petitioner Damian C. (hereinafter "Father"), for joint legal custody of the subject Child, is granted, and the Cross Petitions for sole physical and legal custody and permission to relocate to the state of Florida by Respondent Julie S. (hereinafter "Mother"), are denied in accordance with the following decision.
I.
The Father and Mother are both college-educated individuals who met as co-workers at the Federal Bureau of Prisons in Manhattan, New York, and began a romantic relationship in May of 2014. After dating for a while, the parties decided to have a child by in-vitro fertilization because the Mother was experiencing difficulties getting pregnant. The parties agreed to use the eggs from a third-party to be fertilized by the Father's sperm. He became intimately and actively engaged in the in-vitro pregnancy process, which was initially estimated to cost about $50,000, and to which he contributed $30,000. They traveled to North Carolina, but the insemination apparently took place at New York University Langone Hospital in Brooklyn. During the process, the Father administered injections to the Mother and attended numerous doctors and hospital visits due to medical complications.
Although the Mother was eventually successful in becoming pregnant around September 2017, it seems that unfortunately the stress of the procedure ruptured the parties' relationship, yet the Father remained involved after their separation in December 2017. Indeed, when the Mother got admitted to the hospital five months into her pregnancy, the Father took a family leave of absence from his employment, and stayed with her at the hospital until she went into labor and prematurely gave birth to the parties' Child on February 18, 2018. Though the Mother was discharged soon after the birth, the Child's premature birth required him to remain in an incubator for four months receiving oxygen and a feeding tube at the hospital's Neonatal Intensive Care Unit, where both parties visited him almost daily until he was discharged to the Mother on or about June 17, 2018.
Prior thereto, the paternal relatives' constant involvement at the hospital apparently caused frictions with the Mother, who began to reduce the Father's time with the Child. The Mother did not want the Father's family to see the Child; only the Paternal Grandmother Ellen A. (hereinafter "Paternal Grandmother") managed to see the Child. As a result, by Petition dated June 15, 2018, two days prior to the Child's release from the hospital, the Father commenced the instant proceeding against the Mother seeking joint custody in Kings County Family Court, alleging that the "Child was born prematurely and has been hospitalized since birth covered under his medical coverage," and that the Mother "is constantly trying to separate him from the Child in various ways." Essentially, the Father claimed that the Mother had engaged in actions intended to block his access and prevent his meaningful participation in the Child's life. That day, the Paternal Grandmother also filed a Petition for Grandparent Visitation alleging that the Mother was being vindictive by not allowing her to have any physical or emotional contact with the Child.
The Father and Paternal Grandmother appeared to argue their emergency requests before Kings County Family Court Judge Judith Waksberg on June 18, 2018. The Father reported to the Judge that the Child had been out of the hospital for days but that the Mother was not involving him in the Child's life. Contemporaneously, the Mother obtained a Temporary Order of Protection against Father's sister for her alleged actions at the hospital. Since the Undersigned was presiding over that initial family offense case involving the paternal aunt and the Mother, Judge Waksberg respectfully referred the case to the instant Judge for further proceedings. Sometime thereafter, the Father became a Customs Officer with the U.S. Department of Homeland Security and is involved with the National Guard at least one weekend a year. Based on this, on June 25, 2018, the Mother filed a Cross Petition for sole legal and physical custody of the Child, on the grounds that "as a member of the armed services," the Father is often deployed and is away months at a time, that he was "admitted to a mental institution at one time, that he has a gun at all times," has stated to friends "on two occasions that he wanted to kill himself," and finally that the Child has serious medical conditions and numerous medical appointments which she can only care for.
On July 30, 2018, the Father, Paternal Grandmother, their attorney and the Mother appeared before the Undersigned. After noting that the Child was born with serious health issues, the Father reiterated to the Court that he had access to the Child in the hospital, but when the Child was released to Mother's care, she has refused to allow him access. The Mother explained that Father's family was harassing her and calling her names. The Father requested unsupervised visits, however, Mother indicated that she would only agree to supervised visits because the Child had a stroke in the hospital and was "sickly." The Court issued a Temporary Order of Visitation (Vargas, J.) awarding the Father visitation for two hours every Saturday supervised by the grandfather, Reynaldo D., at the maternal grandparents' home. The Father was also encouraged to accompany the Mother on doctor's appointments and physical therapy, as well as any other visitation as agreed upon with the Mother.
On August 17, 2018, the Father and Paternal Grandmother, their counsel and Mother appeared. The Mother asked for an adjournment to hire an attorney, and Father requested longer day visits on Saturdays. The Mother then presented a letter from her doctor to the court and opposing counsel, indicating that the Child is being fed only breastmilk and can only be away from her for two to three hours. She agreed to increase the time to three hours and the Court modified the temporary order to reflect the same. The case was adjourned to September 4, 2018 for the Mother's attorney to appear. On September 4, 2018, Father, Paternal Grandmother and Mother appeared with their respective counsels. Upon objection by the Mother's counsel regarding a possible conflict by opposing counsel in representing both the Father and Paternal Grandmother, the Father's counsel conceded that she will represent him only, and renewed his application for unsupervised visitation with the Child. While the Mother again objected to unsupervised visits, she agreed to one additional day for up to three hours. The Court issued a new Temporary Order of Visitation (Vargas, J.), allowing the Father supervised visits on Saturdays, Mondays and Wednesdays for three hours each day, and any other visits as agreed upon by the parties supervised by the maternal grandparents. Trial dates were scheduled for December 6, 2018 and December 12, 2018.
On December 6, 2018, the parties and counsel appeared representing to the Court that they would like to reach a settlement and vacate the trial dates. The Court modified the Temporary Order of Visitation (Vargas, J.) awarding Father additional visitation every Saturday from 10:00 a.m. to 6:00 p.m. with visits to be supervised by Paternal Grandmother. The Father continued to have weekday visits on Monday and Wednesday that were supervised by the maternal grandparents. The Court vacated the second trial date and adjourned the case to March 6, 2019 for further conference.
The parties and counsel appeared on March 6, 2019, reporting that the case was approaching settlement. The parties consented to modifying the Temporary Order of Visitation (Vargas, J.) to allow Father to finally have unsupervised overnight visits from Friday at 6:00 p.m. to Saturday at 1:00 p.m., and the Court adjourned the case to April 16, 2019 for possible settlement. On April 16, 2019, the Father appeared with his attorney and Mother appeared with new counsel. The parties promisingly consented to expand overnights on alternate weekends from Friday at 6:00 p.m. to Sunday at 6:00 p.m., and every Wednesday evening, at Father's residence in the presence of Paternal Grandmother, commencing on April 26, 2019.
Despite the repeated settlement claims, on April 24, 2019, the Mother surprised everyone by filing a second Petition for sole custody with permission to relocate to the State of Florida with the parties' Child. Alleging that she had a pending job offer in Florida, the Mother stated that the Child's health would be better cared for in Florida and that she has access to more family resources there. On the next court appearance of June 25, 2019, the Mother, her attorney and Father's attorney appeared, but the Father did not appear. The parties and counsel appeared next on September 18, 2019, when the Father expressed his understandable opposition to the Mother's relocation to Florida, but provided assurance that he is not contesting her claim for physical custody of the Child. The parties consented to expand Father's visits, and for an order permitting Father to have access to the Child's medical appointments via NYUchart.com. Trial dates were scheduled for December 3, 2019 and December 9, 2019 - almost exactly one year after the prior scheduled trial dates - for the custody/relocation trial.
II.
Based on the parties' failure to reach a settlement agreement, the matter proceeded to trial before the Undersigned on December 9, 2019 with the Father testifying on direct. In addition to the factual recitation above, the Father credibly testified that only upon filing this proceeding did the Mother start giving him more visitation with the Child like three or four hours, but mostly supervised at their residence with the Paternal Grandmother. The Court scheduled April 27, 2020, April 28, 2020 and April 29, 2020 as dates for the continued trial. However, while the case was sub judice, in early March 2020, the tragic Covid-19 Pandemic descended upon the World temporary paralyzing nonemergency matters pending in all New York courts, and thereby requiring the implementation of virtual proceedings and conferences using Skype and then Microsoft Teams platforms. The trial dates scheduled for April 2020 were adjourned due to the Family Courts' closure. All counsel and parties in the Family Court then became proficient and began utilizing the virtual computer format for their pending proceedings. Indeed, a conference was held virtually in this case via Teams before the Undersigned at home. Since trial courts have wide latitude and discretion regarding trial procedure (see CPLR 4011; Family Court Act § 165), the Undersigned continued presiding over the bench trial on a virtual basis without objection from either party (see C.C. v. A.R., 69 Misc.3d 983, 988-989 [Sup Ct, Kings County 2020]; Matter of Marvin F. v Jaran H., ___Misc.3d___, 2021 NY Slip Op 51101[U] [Fam. Ct. (Vargas, J.), Nov. 15, 2021]; Matter of M.R. v Albert R., ___Misc.3d___, 2021 NY Slip Op 50530[U] [Fam Ct. (Vargas, J.) June 7, 2021]).
The trial next resumed on October 23, 2020 where the Father continued his direct testimony on the Microsoft Teams virtual platform. He testified that he loves his Child and sees him on alternate weekends and sometimes takes him to the Paternal Grandmother's house where he interacts with his side of the family. He testified that he is doubtful of the reasons the Mother wants to move to Florida, since all her family live in Brooklyn and she has no relatives or a job there. He explained that the Child has a large support network right here in New York and not in Florida. In addition to the Paternal Grandmother and his sisters, the maternal grandparents - with whom he has a good relationship and who sometimes care for the Child - are still working and reside in Brooklyn, New York. Even the Mother's brother, Ray, who sometimes cares for the Child, and another sister also reside in Brooklyn. He suspects that the Mother wants to relocate because she does not like the influence his family has over the Father, as she has said that she does not want the Child going to the Paternal Grandmother. Although he is not seeking custody because the Mother is a "good mother," he would like to keep his alternate weekend visitation and to have half of all the holidays, spring break, winter, summer, and Christmas holidays.
On cross examination, the Father testified that, during the pendency of the proceedings, he went to a four-month homeland security training in Georgia, and was not available until April 2020. It should be noted this was during the Covid Pandemic. He acknowledged that he did not visit the Child during the four-month in training because his car broke down and it was too expensive to travel back and forth from Georgia to New York. He did not know about a neurologist or kidney doctor seeing the Child because the Mother usually does not tell him everything about the Child's medical issues. To his knowledge, the Child is receiving speech, occupational and physical therapy and is "slightly autistic." When the Mother had asked the Father to go with her to doctor's appointment, he claimed that he has always gone to accompany her.
The trial continued on January 21, 2021, and the next witness to testify was the Paternal Grandmother, who testified that she has good health, only hypertension, and sees the Child every other weekend when the Father has visitation at her residence in Hawthorne, New Jersey. The Paternal Grandmother, who has worked as a childcare provider for 15 years and obtained a certificate in childcare development from Barnard College Center for Child Development in 1993, testified about her participation in caring for the Child including potty-training, bathing, diapering, and preparing meals for him. She testified about how doting and caring the Father is with the Child, and about the joyful interaction between the Child and her granddaughter, Daisha Brown, who was 23 months at the time of her testimony. She stated that the Child knows her very well and calls her "Nana," and knows and interacts with his aunts, the Father's sisters. The Paternal Grandmother further testified that she no longer asks for additional visitation because she has "no relationship" with the Mother, and eventually withdrew her Petition for Visitation because she was getting visits with the Father. She also has virtual visits with the Child during the weekday visitation. On cross examination on January 29, 2021, the Paternal Grandmother testified credibly that she is available to provide daycare for the Child whenever the Mother needs or would allow it. The Paternal Grandmother feels that the Child is perfectly all right without any medical conditions. She indicated that there is "no evidence" of any maladies "only hearsay" by the Mother. With that, the Father rested his case.
The next person to testify was the Mother on her direct case. She testified that she wanted a Child for a long time and that the Child was conceived using the egg of one of her cousins and the Father's sperm. She explained that the Child was extremely premature and, as a result, suffers from several medical conditions like chronic lung disease, asthma, autism, a head bleed which resolved itself, and is a little bow legged. Also, the Child endures a battery of treatments almost every day from occupational and physical therapy to Applied Behavior Analysis therapy ("ABA"), also called behavioral engineering, for autism. Additionally, he has doctors' appointments with pulmonologists, pediatricians, an ophthalmologist, and a neurologist. The Mother further testified that she has been looking at schools for the Child here in New York, but explained that she wants to move to Florida to have a bigger house with a patio where the Child can be free, instead of in her small one-bedroom apartment in Brooklyn. She claimed to have "many family members" there who can provide support and help her with Child. However, she was just exploring schools here and excited about their being within a block from her in Brooklyn.
The trial continued on March 18, 2021 with the Mother's cross examination testimony. She stated: "I believe [the Father] is a good father," and has observed a bond between him and the Child, while answering that "I believe that it's important for him to be in his life." But the Mother also testified that the Father is not consistent and goes to military training weeks at a time leaving her frustrated and alone taking care of the Child's therapies and doctor's appointment. She claimed that he had called him in the past to help, but he consistently says that he is tired and needs to sleep or cancels at the last minute. She acknowledged that the Child sees several therapists and that they went together to a progress appointment with his four therapists, and they increased the number of certain therapies like speech, ABA and OT and decreased a number of others. The professionals explained to the Father about the "trace of autism" and his learning problems because of his prematurity. At the conclusion of the Mother's testimony, the Court modified the Temporary Order of Visitation, on consent, giving the Father more visitation to accommodate the Child's increasing medical needs.
The trial continued June 1, 2021 with the next witness, the Maternal Grandmother, Gloria V., who testified that she works as a crossing guard, that her husband works as a truck driver and they both reside together in Brooklyn, New York. Ms. Vega testified of her observations of the Father when he had weekly court-ordered parenting time at her home: "He was passionate with the baby. He will play games with him He would talk to the baby. He would read to the baby [and d]o things for him. If he needed a bottle, he will [sic] give him a bottle." "He loved him. He cared for him he was very passionate with him." She further acknowledged that the Father had a "good interaction" with the Child, and that she herself has a cordial relationship with the Father. She also testified that she "wants to move to Florida" upon her future retirement, but neither her nor her truck driver husband have retired as of yet.
Next to testify was one of the Mother's friend, Lacey R., who currently lives in Orlando, Florida. Ms. Ruiz testified that she works as a warehouse associate and will be available to take care of the Child in Florida if Mother were to move there. She further testified that she has known the Mother for three years and she provided childcare for the Child in New York, and was present during the Child's therapies, feeding, diapers and she took care of the Child from 6:00 a.m. to 2:00 p.m. every day while the Mother worked. However, on cross examination, it was discovered that Ms. Ruiz has not child care training or certification, and has never seen the Father caring or interacting with the Child.
The Father offered rebuttal testimony on July 27, 2021, by presenting a video to demonstrate that the Child behaves like a normal child, bouncing around and playing hard with his little cousin, Daisha, the paternal aunt's daughter. The video showed the Child jumping on the bed with his baby cousin and running around a coffee table, operating an electric car and playing in the sandbox with his cousin. However, this Court observed with concern that the Child was jumping unrestrained in bed close to a wooden headboard, the Child driving an electric car close to the home staircase, and playing around a pointy glass table. They kept telling the Child to give his cousin a hug, but he did not act, just ran around, and appeared to be mostly non-verbal other than being prompted to engage in word games and songs. On cross examination, the Father stated that he knows that Child has lung problems, but he believes that he is otherwise fine. Thereafter, both parties rested their respective cases and asked the Court for permission to submit written summations after receiving the transcripts. The Court afforded them until early October 2021 to submit their written Summations.
III.
The written Summations by the parties were received by the Undersigned on October 4, 2021. As per the Father's written summations, he believes that he credibly testified as to his love, attachment, involvement and bonding with his son since the Child's birth. He participated in the Child's therapies so long as the Mother provided him with notice and access, and tries to stay informed of the Child's medical issues, despite Mother's refusal to provide information about his medical condition and appointments. The Father further contends that the Child enjoys spending time with the paternal family. He proposes that the Court enters an order denying Mother's application for sole custody, denying her application to relocate with the Child to Florida, and granting the parties joint legal custody with equal parenting time or, in the alternative, granting physical custody to Mother, with liberal visitation to Father on alternate weekends from Friday at 6:00 p.m. to Sunday at 6:00 p.m. plus for the parties to alternate the major holidays, winter break, spring break, Easter and four weeks in the summer.
In her written summations, the Mother argues that she has been the primary caretaker of the Child since birth, he has resided solely with her, and she has tirelessly and diligently met all his emotional, intellectual and medical needs. She provides for him financially and attend all of his therapy sessions, doctor's appointments and hospital visits. The Mother contends that the Father is in denial with respect to the Child's medical issues and is not actually involved with the Child's medical appointments and therapy sessions. She claims that the Father's schedule changes all the time and when she calls him to assist her during the week, he is sleeping or tired. She further contends that she has informed Father about all of the Child's illnesses, his doctors, his appointments and therapy schedule, however, the Father has not taken an active role with respect to the Child's needs. In support of her relocation to Florida, the Mother argues that her support system includes her sister, the Maternal Grandmother and her friend. The Maternal Aunt and friend have already relocated to Florida, and the Maternal Grandmother plans to move there also. As such, the Mother proposes that the Father visit with the Child one weekend every two or three months, winter breaks, spring breaks and the summer. All other times, she proposes that the Father can Facetime with the Child. This Court disagrees with the Mother's arguments and plans.
IV.
The paramount consideration in any custody dispute is the best interests of the Child (see Eschbach v Eschbach, 56 N.Y.2d 167, 171; Matter of McFarlane v Jones, ___A.D.3d___, 2021 NY Slip Op 02392 (2nd Dept. 2021]; Matter of Kevin S. v Carima S., 53 Misc.3d 1215 [A] [Fam Ct. (Vargas, J.) 2016]). In determining best interest, the court must consider, among other things, "(1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent's relative fitness, including his or her ability to guide the Child, provide for the Child's overall well-being, and foster the Child's relationship with the noncustodial parent; and (5) the Child's desires" (Matter of Khan v Potdar, ___A.D.3d___, 2019 NY Slip Op 72783[U], lv denied 36 N.Y.3d 902 [2020]; see Matter of Supangkat v Torres, 101 A.D.3d 889, 890).A significant factor in custody determinations is which parent will assure that the Child maintains a meaningful relationship with the other parent (see Bliss v Ach, 56 N.Y.2d 995 [1982]; Scott M. v Ilona M., 38 Misc.3d 1215[A] [Sup Ct, Kings County 2013]). Parental alienation of a Child from the other parent, including willful interference with his or her visitation rights is an act so inconsistent with the best interest of the Child as to raise a strong probability that the offending party is unfit to act as custodial parent (see Matter of Bennett v. Shultz, 110 A.D.3d 792 [2nd Dept. 2013]). The burden is on the offended party to provide sufficient evidence that the offending party engaged in parental alienation (see Matter of Khan v Potdar, 185 A.D.3d 822 [2nd Dept. 2020]).
Joint custody is appropriate between relatively stable amicable parents behaving in a civilized fashion (see Matter of Irizarry v. Irizarry, 115 A.D.3d 913 [2nd Dept. 2014]; Matter of Wright v. Kaura, 106 A.D.3d 751 [2nd Dept. 2013]). It is inappropriate, however, when the parties have demonstrated an inability to communicate and cooperate in matters concerning the Child (see Matter of Opra v. Fitzharris, 95 A.D.3d 1020 [2nd Dept. 2012]; Matter of Lee v Fitts, 147 A.D.3d 1058 [2nd Dept. 2017]).
Applying these principles to the case at bar, the Court finds that it is in the Child's best interests for the Mother and Father to share joint legal custody with the Mother retaining physical custody (see Matter of Patricia RR v. Daniel SS, 172 A.D.3d at 1471). The evidence at the trial established that both the Mother and the Father were anxiously expecting the birth of the Child, love him, have a strong, positive and healthy relationship with him, and play an active role in his intellectual and emotional development. Both have introduced the Child to their respective families, have provided him with shelter, food and health care, and attended to the Child's numerous therapy sessions and doctors' appointments. Both parents have stable employments, appropriate residences, and have provided continuous financial support for the Child. There are no allegations of domestic violence perpetrated by the parties, and there are no serious allegations of any neglect or abuse of the Child by either parent.
Although the Father credibly testified that the Mother has been controlling and limited his access to the Child prior to court intervention, the parties fortunately have improved their relationship and do not have a calamitous relationship that would preclude joint custody (see Janecka v Franklin, 143 A.D.2d 731 [2d Dept. 1988]). To the contrary, the parties appear to be "relatively stable, amicable parents [who behave] in [a] mature [and] civilized fashion" (Matter of Lee v Fitts, 147 A.D.3d at 1059). In fact, the parents each testified that together they worked through the in-vitro fertilization process, have attended the Child's hospital visits, doctors and therapy sessions, and have always comported to what would be best for the Child (cf. Matter of George W.S. v Donna S., 187 A.D.2d 657 [2d Dept. 1992]). Since Father's rebuttal testimony sought to demonstrate that he has a bond with the Child and that the Child enjoys spending time with him and his family, this Court viewed Father's evidence as dipositive of the contribution of both of his loving parents. As such, this Court is awarding them joint legal custody to share responsibility for and control of the Child's upbringing (see Matter of Charles N.N. v Jaclyn A.M., 193 A.D.3d 653 [2nd Dept. 2021]; Matter of Patricia RR v. Daniel SS, 172 A.D.3d at 1471). With joint legal custody, the Father shall have equal access to the Child's medical and educational information and would be available to assist the Mother is taking care of the Child's needs.
This conclusion notwithstanding, the Court's determination as to who should have physical custody of the Child and would foster a positive relationship between the Child and the other parent, requires a more in-depth analysis (see Cunningham v Brutman, 150 A.D.3d at 815). Based on this Court's observation of the witnesses' demeanor and behavior in court, the Father credibly testified that he has continuously requested unsupervised time with the Child, expressed an interest in caring for the Child on his own, and requested access to the Child's medical appointments. Despite his participation and financial contribution to a very complicated procedure which led to the Mother conceiving, she has refused to fully acknowledge the Father's role in the Child's life. She insists that he is lazy and has no interest in helping her with the Child's special needs. While the Court acknowledges that the Child has medical issues leading to multiple doctor's appointments and therapy sessions, the Mother has engaged in behavior which borders on parental alienation.
Indeed, there is a high probability that if the Court were to award sole legal and physical custody to the Mother, she would not foster the relationship between the Father and the Child. Even in her Summations, the Mother has refused to recognize the Father, claiming that he does not help her with the Child, that he sleeps, and that he refuses to take an active role with respect to the Child's various medical needs. Nevertheless, it is undisputed that the Mother has been the primary caretaker of the Child since birth, who has continuously lived with her, and that the Father has essentially consented to such arrangement after the Child was released to her at the hospital. She has tirelessly attended to all the Child's increasing medical needs by ensuring that he makes every medical appointment and therapy session. With court intervention and supervision, she has thereafter complied with the visitation orders and provided more freedom for the Father to enjoy his parenting time with the Child. Balancing all these factors, the Court hereby determines that the Mother should be awarded physical custody of the Child (see Matter of Marvin F. v Jaran H., 2021 NY Slip Op 51101[U]).
Turning then to the Father's application for parenting time with the Child. It is well settled that "[v]isitation is a joint right of the noncustodial parent and of the child" (Weiss v Weiss, 52 N.Y.2d 170, 175 [1981]). "Absent extraordinary circumstances where visitation would be detrimental to the Child's well-being, [circumstances not present here, ] a noncustodial parent has a right to reasonable visitation privileges" (Matter of Spampinato v Mazza, 152 A.D.3d 525 [2nd Dept. 2017]). Here, the record reveals that the Father is loving and caring with the Child, his visitation has steadily increased with court intervention, and the Child enjoys the visits. The Father is capable of caring for and feeding the Child, changing his diapers and clothes and putting him to sleep. He also stimulates the Child's intellectual abilities by playing with him, reading him stories, playing classical music for him, singing and playing word games. There has been no indication that the Child is neglected or suffered any harm while visiting with the Father. Hence, the Father is entitled to a full parenting schedule with the Child, especially given the fact that the Mother is hereby awarded physical custody.
V.
With respect to the Mother's relocation request, where, as here, "a party seeks permission to relocate in the context of a petition seeking an initial custody determination, the strict application of the factors relevant to a relocation petition is not required" (Matter of Williams v Bryson, 167 A.D.3d 1021 [2nd Dept. 2018]; see Matter of Alvarado v Cordova, 158 A.D.3d 794 [2nd Dept. 2018]). But, "[a] parent seeking to relocate [still] bears the burden of establishing by a preponderance of the evidence that the proposed relocation would be in the Child's best interest" (see Matter of Tropea v Tropea, 87 N.Y.2d 727, 741 [1996]; Matter of Gustave v Harris, 176 A.D.3d 937 [2nd Dept. 2019]; see Quinn v Quinn, 134 A.D.3d 688 [2nd Dept. 2015]). In determining whether a proposed move is in a child's best interests, courts are "free to consider and give appropriate weight to all of the factors that may be relevant to the determination" (Matter of Tropea, 87 N.Y.2d at 740; see Matter of Caruso v Cruz, 114 A.D.3d 769 [2nd Dept. 2014]), including: "each parent's reasons for seeking or opposing the move, the quality of the relationship between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the Child's future contact with the noncustodial parent, the degree to which the custodial parent's and the child's life may be enhanced economically, emotionally, and educationally by the move, and the feasibility of preserving the quality of the Child's relationship with the noncustodial parent through suitable visitation arrangements" (Matter of Tropea v Tropea, 87 N.Y.2d at 740-741; see Matter of Feery v Feury, 168 A.D.3d 729 [2nd Dept. 2019]; Matter of Nolan v Renda, 149 A.D.3d 839, 840-841 [2nd Dept. 2017]; Matter of Ventura v Huggins, 141 A.D.3d 600 [2016]). However, "the impact of the move on the relationship between the child and the noncustodial parent will remain a central concern" (Matter of Tropea, at 739; Matter of Caruso, 114 A.D.3d at 771).
Here, the Mother argues that she should be allowed to relocate with the Child to Florida. In support of her application to relocate, the Mother claims that she has no support system in New York, but will have support in Florida from her friend and the maternal aunt who are presently residing in Florida. Also, she would be assisted by the maternal grandmother upon her eventual move to Florida. However, the Mother distorts her current support system in New York, and has presented sparse evidence that the Child's life would be greatly enhanced economically, emotionally and educationally by the move to Florida (see Matter of Lopez v Chasquetti, 148 A.D.3d 1151, 1152 [2nd Dept. 2017]). To the contrary, she testified in a positive light about the Child's numerous OT and ABA therapies and doctors who have improved the Child's medical maladies and are all located in New York. She also explained about her exploration in Brooklyn for a school which would provide for all of the special needs of the Child and its close proximity to her apartment here. Indeed, this Child appears to be thriving and healthy because of all the advantages and cutting-edge therapies in New York. Nor has the Mother provided real evidence of any pending job offer in Florida.
The Mother's proposed relocation would significantly limit the Father's contact with the Child (see Quinn v Quinn, 134 A.D.3d at 688). By lengthening the Father's commute from a few minutes to hundreds of miles, the move effectively decimates the Father's visitation. The Mother's real motives for relocating to Florida came shining through when she "generously" proposes that the Child should spend only one weekend "every two or three months" plus some breaks with the Father. This Court is not convinced that the Mother would even comply with such a minimal schedule. In this Court's observation, the Mother has reluctantly consented to Father having unsupervised visits, and has sought frequently to minimize the Father's role in the Child's life. This Court is cognizant that while the Father has consistently praised the Mother's care of the Child, the Mother has shown her distrust for the Father and insists that he has not taken an active role with respect to the Child's needs. The problem arises because the Mother does not actively involve or notifies the Father of the Child's care sessions and treatments, and then is resentful because he does not attend. On the other hand, the Court finds that the Father credibly testified that he would be willing to play a more active role in the Child's life as long as he is provided with notice and access. If she were allowed to relocate to Florida, this Court strongly believes that the Father will lose any ability to have a meaningful visitation and relationship with the Child. As such, the Mother's relocation application is hereby denied (see Matter of Feery v Feury, 168 A.D.3d at 729; Matter of Lopez v Chasquetti, 148 A.D.3d at 1152; Quinn v Quinn, 134 A.D.3d at 688).
VI.
In accordance with the foregoing, the Father's Petition for joint custody is grante d in its entirety, the Mother's Petitions for sole custody and to relocate to Florida are hereby denied. This Court issues the following Final Order of Custody and Visitation:
Custody: The parties shall have joint legal custody of the Child, with the Mother having residential or physical custody.
The Court finds that both parents are capable of consulting and sharing in the decision making regarding the Child. Therefore, both parents shall share in all decision making of education, major medical issues, religious upbringing, residence and extracurricular activities.
The parties shall each be responsible for, and entitled to, make day to day decisions about the Child when he is in their care. Neither parent may compel the other parent to make a particular determination about day-to-day issues.
"The Court cautions the parties that a parent should not attempt to create friction or disagreement in order to seek modification of the joint custody decision. If it can be determined that a party intentionally creates situations to interfere with joint custody continuously, it could negatively impact on any future custody determinations" (Matter of Scott M. v Ilona M., 38 Misc.3d at 1216[A]).
Parenting Time & Holidays: The Father shall have alternate weekend parental access with the Child from Friday at 6:00 p.m. until Sunday at 6:00 p.m. If the Father's weekend falls on a holiday weekend, then the Father shall have access continued until that Holiday Monday at 6:00 p.m.
The Father shall also be entitled to an overnight visit with the Child on the off week on Wednesday at 6:00 p.m. until Thursday morning at 8:00 a.m. drop off timely at school/daycare.
The Father shall pickup or drop off the Child for his visitation curbside of the Mother's residence.
The parties shall alternate the holidays with each being entitled to an overnight visit on said holiday. In the event the Father has to work on particular holiday, then the Mother shall be entitled to stay with the Child on that day with the Father being entitled to the following holiday that occurs. This holiday schedule shall supersede the parenting time schedule in Paragraphs 5 and 6, above, which parenting time schedule shall resume immediately after conclusion of the holiday.
During odd-numbered years commencing in 2021, the Mother will have Thanksgiving Break from Wednesday before Thanksgiving until Sunday at 7:00 p.m. The Father will have Thanksgiving Break in even years. All these holiday break schedules shall supersede the parenting time schedule in Paragraphs 5 and 6, above, which parenting time schedule shall resume immediately after conclusion of the break.
During odd-numbered years commencing in 2021, the Father will have Christmas Break from December 24th to December 30th when the Mother will have the rest of the break. In even years, the Mother will have that same Christmas time.
Each parent will be able to have dinner with the Child on the respective parent's birthday if their birthday does not occur on their scheduled parenting time.
The parents will alternate birthday party planning for the Child and invite the other parent. The Mother will plan the Child's party in odd years and the Father in even years. In the event that the parent who is supposed to plan the Child's party declines, they must inform the other parent by March 1st. Both parents are to be invited to the Child's party.
During odd-numbered years, the Father shall have parenting time with the Child for the entire Presidents' Week Break (which is defined as including the first, but not the second weekend attached to that break). During even numbered years, the Mother shall have parenting time with the Child for the entire Presidents' Week Break.
During odd-numbered years, the Mother shall have parenting time with the Child for the entire Spring-Easter Break (defined as including the weekend attached to that break that includes Easter Sunday, but not the other weekend attached to that break). During even-numbered years, the Father shall have parenting time with the Child for the entire Spring-Easter. This holiday break schedule shall supersede the parenting time schedule in Paragraph 5 & 6, above, which parenting time schedule shall resume immediately after conclusion of the break.
The Father shall always be entitled to parenting time with the Child on Father's Day and the Mother shall always be entitled to parenting time with the Child on Mother's Day.
Neither parent shall enroll the Child in an activity during the other parent's parenting time unless with the written consent of said parent. Consent shall not be unreasonably withheld.
The parties shall have any other parenting time with the Child as agreed upon.
Vacations: Each parent shall be entitled to four (4) non-consecutive or consecutive weeks with the Child during summer vacation with the Child. Each party shall notify the other no later than June 1st of each year of what weeks they wish to have vacation with the Child during the summer. In the event of a conflict with scheduling a Summer visitation in this paragraph, Father's plans shall have priority in even-numbered years while the Mother's plans shall have priority in odd-numbered years.
The Parents are allowed to travel with the Child during their parenting time. For any travel involving one or more overnight stays outside of the Tri-State Area (New Jersey, New York and Connecticut), the party traveling must give the other party an itinerary for the trip in advance, including destination, mode of transportation (and carrier where applicable) and the name, address and telephone number of the location(s) where the Child will be staying while traveling. In the event that a party is going to travel outside the United States, the party traveling must give the other party, at least three weeks in advance, an itinerary for the trip, including destination, mode of transportation (and carrier where applicable) and the name, address and telephone number of the location(s) where the Child will be staying while traveling. The party traveling must also be provided by the other parent, at least three weeks prior to traveling, the Child's passport, and any other documents and/or written consent needed to be able to travel with the Child.
With respect to the Child's passport, the parties agree to signing all the necessary consent form so as to always keep the Child's passport current. The Mother shall always hold the Child's passport but must deliver it to the Father if he wishes to travel outside the United States pursuant to the terms of this agreement.
Right of First Refusal: Should one parent not be able to watch the Child on their respective parenting time, such parent must first contact the other parent to give them the opportunity to watch the Child prior to hiring a nanny/babysitter/Grandmother.
Child's Information: Each parent shall be entitled to complete, detailed information from any pediatrician, general physician, psychiatrist or psychologist, dentist, consultant or specialist or any other health care provider attending to the Child for any reason whatsoever, and entitled to be furnished with copies of any reports given by such health care providers, or any of them, to the other parent. Both parents shall be included in any emergency contact information given to health care providers. The import of this provision is to keep both parents involved in and informed of the Child's health care, an especially important goal, as, during the Child's parenting time with one parent, for the well-being and safety of the Child, that parent must be knowledgeable of any health care issues being dealt with by the other parent concerning the Child. Both parents shall be entitled to all information concerning the Child's health insurance.
Each parent shall be entitled to complete, detailed information from any teacher or school or educational institution or after school or supplementary program giving instruction to, or providing extra-curricular activities for the Child, or at which the Child may attend, and to be furnished with copies of all reports given by them, or any of them to the other Party. Both parents must be listed on the Child's Blue Card at school.
Both Parties shall be listed as parents of the Child in reference to any application, registration or filing which may be filed by or on behalf of the Child in reference to education, hospitalization, and/or any other institutionalized activity.
Miscellaneous: If either parent has any knowledge of any serious illness or accident or other serious circumstance affecting the Child's health, education, or general welfare, that parent will promptly notify the other of such circumstance.
The Mother shall not relocate beyond a 20-mile radius from her current residence with the Child without the Father's written approval or court order.
Each parent shall provide the other with a current address and telephone number and will notify each other within 72 hours of any changes to this information.
Both parties shall have liberal, private and reasonable electronic/telephonic access with the Child when he is with the other parent.
During the Covid Pandemic, the parents are to safeguard the Child's health by providing him with masks/cloth face coverings, engaging him in frequent handwashing, and practicing social distancing, as required by government regulations.
Neither party shall insult or disparage the other party in the presence of the Child, nor permit third parties to do so. Parties are to encourage and foster a healthy relationship with the Child and both Parents.
The foregoing constitutes the Decision, Order and Judgment of the Court, which concludes this matter.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.