Opinion
V-XXXX-14/14A,C & D
08-16-2015
Matter of D.T., Petitioner, . V.T., Respondent.
Appearances by counsel: Rory Gilhooley, Esq. of Finocchio & English, Syracuse, New York for the petitioner-father D.T.; Galen F. Haab, Esq. of Germain & Germain, Syracuse, New York for the respondent-mother V.T.; Martin C. Collins, Esq. of Syracuse, New York, Attorney for the Child.
Appearances by counsel: Rory Gilhooley, Esq. of Finocchio & English, Syracuse, New York for the petitioner-father D.T.; Galen F. Haab, Esq. of Germain & Germain, Syracuse, New York for the respondent-mother V.T.; Martin C. Collins, Esq. of Syracuse, New York, Attorney for the Child.
D.T. (hereinafter referred to as the "father") filed an Order to Show Cause and verified violation petition on October 14, 2014 in the Onondaga County Family Court seeking a finding that V.T. (hereinafter referred to as the "mother") violated the custody order issued by the Denver District Court as well as various types of ancillary relief. The father alleges the mother violated the custody order by denying the father parental access commencing September 12, 2014 through the date the petition was filed.
The father filed an affidavit and application for registration of the Denver District Court order of custody on September 22, 2014 in accordance with Section 77-d of the Uniform Child Custody Jurisdiction and Enforcement Act (hereinafter referred to as UCCJEA) with the Onondaga County Family Court. On October 20, 2014 the mother filed a "motion to dismiss violation petition / petition to enforce custody & visitation order - UCCJEA" with Onondaga County Family Court.At the initial appearance on November 3, 2014 the father appeared with his attorney, Rory Gillhooley, Esq., the mother appeared pro se, and the Attorney for the Child, Martin C. Collins, Esq. appeared. The Court issued a temporary order of custody directing the parties to share joint legal and physical custody of the minor child. The Court set a parenting time schedule for the parents and further directed the parties to exchange the child at a public location in Syracuse.
On November 18, 2014 the mother appeared with her counsel Galen F. Haab, Esq., the father appeared with his counsel and the Attorney for the Child appeared. The mother withdrew her motion to dismiss and the parties stipulated to a holiday schedule and agreed to exchange the child at the Market Diner in Syracuse.
The father filed a verified petition on November 25, 2014 seeking modification of the order of custody. The modification petition was based on the following allegations: (1) concern for the child's well being while he was in the mother's care due to her mental health condition (2) the mother's failure to share health related information (3) the mother's failure to cooperate with an autism evaluation for the child. The father seeks sole custody of the child.
On December 15, 2014 the mother filed an answer and cross-petition seeking modification of the order of custody. In opposition to the father's petitions the mother asserted (1) the responsiblity of providing health care related decisions were historically made by her (2) the father had a history of making poor medical choices for the child (3) the father does not have the ability or willingness to communicate with the mother (4) the father suffers from severe autism and can not appropriately care for himself or the child. The mother seeks sole custody of the child.
The matter proceeded to trial and testimony was heard on April 14, 15, 16, 17, and on April 21, 2015. The attorneys were directed to submit written closing arguments and proposed parenting plans by May 12, 2015. The Court continued the temporary order of custody.
RECORDS CHECK
The Court has searched the statewide registry of orders of protection, the sex offender registry, Family Court child protective decisions, and Family Court warrants of arrest for each of the parents. There were no findings and, therefore, no impact on the custody decision.
CHILD ABUSE / DOMESTIC VIOLENCE FINDING The Court has reviewed the custody modification petitions and there are allegations of domestic violence at the time the child is exchanged by the parents as well as testimony from both parties concerning incidents of physical violence between the parents during the exchange of the child.
The Court will therefore, consider these allegations in its analysis of the best interests of the child.
STANDARD OF LAW Violation of Custody Order
The father must show that the mother did not comply with a valid court order and the evidentiary standard is a preponderance of the evidence. (Brown v. Marr, 23 AD3d 1029). Modification of Custody Order
It is well established that the alteration of an established custody arrangement will be ordered only upon a showing of a change in circumstances which reflects a real need for change to ensure the best interests of a child. The evidentiary standard is a preponderance of the evidence. (Francisco v. Francisco, 298 AD2d 925.) If a change in circumstances is shown, the Court conducts a best interests of the child analysis.
Best Interests of the Child Analysis
The Court of Appeals has held that the appropriate legal standard for an award of custody is the best interests of the child based upon the totality of the circumstances after analysis of such factors as the Court deems appropriate, including the following factors: prior judicial determinations/prior agreements of the parties; length of time of current custodial arrangement (stability); parental fitness/stability (physical, psychological, financial); domestic violence; provision for child's educational, intellectual, emotional development; quality of home environment; attitude toward other parent and that parent's relationship with the child; wishes of the child (Lincoln hearing, age, maturity, potential for being influenced); keeping siblings together; and showing of harm if child's residence is changed. (Friederwitzer v. Friederwitzer, 55 NY2d 89.)
FACTUAL BACKGROUND
The father and the mother were married on December 16, 2010 and are the parents of one son, D. O. T. born on December 28, 2011. In January of 2014 the father commenced a divorce proceeding against the mother in the County of Denver District Court in the State of Colorado. The Court conducted a trial on June 5, 2014 and rendered a bench decision on June 6, 2014 regarding custody and equitable distribution. The Court signed a "Decree of Dissolution of Marriage" on August 22nd 2014 incorporating the findings rendered on June 6, 2014.
The Court granted the parties joint legal and physical custody of the minor child. Prior to the divorce being finalized the father re-located from Colorado to C., New York in January of 2014 and the mother re-located to B., New York in July of 2014.The parties adhered to the shared custodial arrangement as directed by the Denver District Court commencing July 17, 2014. The parties agreed to exchange the child at a public location.
VIOLATION OF CUSTODY ORDER
The father credibly testified that between September 12, 2014 and November 3, 2014 the mother denied him all contact and access to the child. He stated he made several attempts to arrange parenting time and to inquire how the child was doing via text message, to no avail.
The paternal grandmother testified that between September 12, 2014 and November 3, 2014 that neither she nor the father saw the child. She further testified that she would go to Destiny USA at the agreed upon exchange location each Monday, Wednesday and Friday during the hours of 9:00-9:30 AM in order to meet with the mother to exchange the child. The paternal grandmother stated that she would text the mother in an attempt to exchange the child and no response was provided by the mother.
The mother admitted to the violations. The mother testified that she withheld the child from the father as exchanges between the parties were becoming violent. The mother also testified that in hindsight this was not a good decision. The mother stated she is willing to "right the wrong" and provide make up time for the father including extra weekends. The mother testified that she believes the father was deprived of approximately thirty three (33) days of parenting time.
The paternal grandmother testified she observed a dramatic change in the child's verbal and social behavior when the father's parenting time resumed on November 3, 2014. Specifically, she testified the child was very aggressive, used a variety of vulgar language and was not as affectionate as he was previous to September 12, 2014.
The Court finds the mother willfully violated the order of custody by withholding the child from the father.
MODIFICATION OF CUSTODY ORDER Both parties alleged a change of circumstances in their pleadings and each parent seeks sole custody of the child. As outlined in later portions of this Decision, the Court heard extensive testimony from both parents clearly demonstrating an acrimonious relationship between the parties, a lack of communication between them, and an inability of the parents to come to an agreement regarding medical or educational decisions for the child after their relocation to Onondaga County.
Based upon the credible testimony and evidence, the Court finds that there has been a change of circumstances such that there is a real need to change the custodial arrangement between the parents. Not only is the lack of agreement upon major decisions a significant change, it has also long been held that a breakdown and deterioration of a parental relationship is in and of itself a change in circumstances justifying a modification of an existing custody order. (Gaudette v. Gaudette, 262 AD2d 804.)
The Court also notes that the mother's violation of the custodial order with respect to the child demonstrates a change of circumstances such that the Court must analyze what is in the child's best interests. (Darla N. v. Christine N. and Anthony N. 289 AD2d 1012.).
BEST INTEREST OF THE CHILD ANALYSIS
Prior judicial determinations / Prior agreements of the parties
The current custody order was the result of the decision rendered by the County of Denver District Court after trial. The Court ordered joint legal and physical custody of the minor child and outlined a parenting time schedule contemplated upon the parties relocating to the Syracuse area. Upon relocation the parties were directed to adhere to a 5-2-2-5 parenting time schedule with the father having the child on Monday and Tuesday, the mother having Wednesday and Thursday and the parties alternating weekends.
The Court further ordered the parties to discuss major decisions regarding the child in advance in an effort to reach an agreement. The parties were also directed to utilize either text messaging or electronic mail when communicating unless in the event of an emergency. The Court further ordered that communication between the parties "shall be civil, non-disparaging, entirely focused on the child, and not concerning extraneous personal issues."
During many exchanges of the child there were incidents in which arguments ensued between the parties and on at least two occasions required police intervention. The Court finds that joint custody has become unworkable due to the lack of communication between the parents and their antagonistic relationship. In addition, both parents through their testimony demonstrate they are unable to to cooperate on joint parental decisions for the child including medical and education decisions. The Court finds the father's testimony was credible and sensible concerning an educational plan and he demonstrated attentiveness to the child's medical care. The child will benefit from one parent being awarded sole legal custody to make important decisions in a timely fashion on behalf of the child. Parental fitness/stability (physical , psychological , financial)
Dr. T. L. testified on behalf of the father as an expert witness in the field of psychology. The father underwent a series of psychological tests conducted by Dr. T. L. and the results were outlined in a five page report. The Court received the report into the record upon stipulation of the parties.
Dr. T. L. testified the father is diagnosed with Asperger's Syndrome and has a "high functioning" form of autisim. Dr. T. L. testified the father is very intelligent, shows no signs of anger management issues and has low self esteem. Dr. T.L. opined the father does not suffer from any condition that would affect his ability to parent.
On cross examination Dr. T. L. testified about the father's autism spectrum disorder. He testified the father has difficulty perceiving emotions but that the deficits were minimal. Dr. T.L. testified the father underwent the Millon Clinical Multiaxial Inventory-III, Minnesota Multi Phasic Personality Inventory-2, and Rorschach Inkblot Tests. Dr. T. L. stated the father demonstrated a favorable ability to perceive events and appropriately anticipates the consequences of his actions.
During cross-examination Dr. T. L. testified he did not measure the father's reaction to tense situations with the mother and that there was no evidence the father exhibited controlling behavior towards the mother.
The Court finds that Dr. T. L.'s testimony was very credible and reliable.
The father testified that he lives in a five bedroom home in C, NY The father further testified that he resides with his mother, grandmother and his twenty one year old brother. The father testified as having been diagnosed with Asperger's Syndrome with symptoms exhibited by an inability to focus for extended periods of time and sensory issues such as a dislike of cotton. The father further stated that he is not prescribed, nor does he take any medications. The father stated that he has concerns that his son may also have Asperger's Syndrome.
The father also testified that he loves his son very much and he engages in several enrichment activities during his parenting time such as reading, putting together puzzles, and playing with the child.
The father testified to having completed three parenting classes in the past year: Parenting through Divorce, the Children's 1st Program, and the Children's Consortium five week parenting technique class. The Court received exhibits documenting and verifying the father's attendance.
The father testified very credibly that he has a great deal of experience interacting with young children. He has volunteered at the R. G. Z. intermittently since the summer of 2004. The father stated he continues to volunteer with "Education Volunteers" and engaged in this activity as recently as this past spring.
The father stated his past employment includes a sales position at the zoo gift shop, a book store in Colorado and participation in a work study program. Although currently unemployed the father testified he is seeking part time work at a variety of retail establishments.
The father testified he has a learners permit and anticipates having a driver's license by the end of the summer. The father testified that his mother or brother, with whom he resides, are and will be, available to provide transportation for him and the child.
The father gave testimony concerning the mother's mental health status and stated the mother was diagnosed as being bi-polar at the age of sixteen. He also testified the mother's mental health has deteriorated over the years and her mood swings have become more frequent and violent in nature. The father testified the mother refused to cooperate or consult with him on multiple parenting issues despite his efforts to interact in an amicable fashion and that the relationship between the parties has progressively deteriorated.
The father was cross-examined at great length about his employment history. The father's testimony was consistent with his direct examination. The father added that since the child was born he has been a "stay at home father" and the primary care giver for the child.
The father testified his mother and grandmother are currently financially supporting him. The father also testified that in the unfortunate event they were to pass away that his father, the paternal grandfather, would assist him financially. The father also testified that he is seeking part time employment which would enable him to pursue a career in teaching.
The father also credibly testified that he would be willing to engage in co-parenting counseling. He stated counseling would benefit the parties but would only be helpful to them if the mother cooperates as their relationship is acrimonious. As an example of the acrimony, he testified that he can not travel to Canada with the child to visit the child's paternal grandfather as the mother would not sign the necessary paperwork to allow such travel.
The Attorney for the Child conducted a cross-examination of the father and he testified that during his parenting time he prepares all meals for the child with the exception of dinner which is prepared by his grandmother. The father further stated he performs household chores and does the laundry for him and the child.
The father further testified that the mother is generally short tempered, easily frustrated, does not appropriately care for the child and that the child is often left with a babysitter or the mother's paramour during her parenting time. The father stated that although his financial resources are limited at this time he can provide a safe and loving home. The Court finds the father's testimony to be genuine, sincere and earnest. Overall testimony was very reliable, credible and he testified in a calm tone and demeanor.
The attorney for the father also called Ms. E. V. as a witness. Ms. V. testified she has been employed at the R. G. Z. for the past nine years as the Volunteer Service Manager. She further testified that she has known the father for many years through his volunteer work at the zoo and he volunteers over one hundred hours per year, on average four to eight hours during the regular work week. Ms. V. stated the father has an excellent rapport with the children who participate in various programs at the zoo. Ms. V. also stated that she has never observed the father being inappropriate with the children or losing his temper while volunteering. Ms. V. has witnessed the father and his son together on many occasions and they have always appeared to be very close and happy. The Court finds her testimony very credible and reliable.
Ms. D. T. (hereinafter referred to as "paternal grandmother") testified she is fifty four years old. She also stated she is currently employed in an administrative capacity at S.U. The paternal grandmother testified that her former husband (father of the petitioner) has Asperger's syndrome along with both of her sons.
The paternal grandmother testified the father has been the primary caretaker of the child since birth. She also testified she has observed him on a regular basis bathing, reading and playing with the child. The paternal grandmother stated that either her, or her son M., are home with the father during his parenting time in the event transportation is needed. The paternal grandmother's testimony was very credible in this regard.
The paternal grandmother also testified the child suffered from "horrific" diaper rashes encompassing his entire bottom area upon return from the mother's parenting time. The Court received the photographs of the diaper rashes into evidence as exhibits 18 through 26.
On cross-examination the paternal grandmother testified the father was a "stay at home father" for the first two years's of her grandson's life as well as being the child's primary caretaker. She also testified the residence where the father and she resides is "multi-generational".
Upon the conclusion of testimony from witnesses called on the father's behalf the mother, Ms. V. T., testified. She stated that upon her return to the Syracuse area the parties adhered to a shared parenting schedule per the Colorado custody order whereby the father had Monday through Wednesday and the child was with her Wednesday through Friday and the parties would alternate weekends.
The mother testified she is seeking sole legal and physical custody. She stated that joint custody "does not work" for the child and it is not in his best interest. She further testified that if the Court awarded joint custody she desired to have final authority over major decisions in the child's life. She also requested to maintain the same parenting schedule until the child attends school at which point the child would be with her during the week and the father would have weekend parenting time.
The mother testified on cross-examination that she was diagnosed with depression at age sixteen and with a bi-polar disorder at age eighteen. She also testified that she was prescribed zoloft during her pregnancy with the child. The mother testified that since her return to the Syracuse area in June of 2014 she has resided at the following locations: June 16, 2014 to September 24, 2014 with her aunt in C.; September 25 to December 18 with her grandparents in L.; December 19 to February 24, 2015 with her boyfriend, Mr. P., in B.; February 24 to the present at a second residence in B. with Mr. P.
The mother further testified that she is employed at the F.A.M. located in C. and maintains a work schedule consisting of Friday through Tuesdays from Noon until 9:00 pm. The mother testified she recently completed the Children's First Program as ordered by the Court.
The mother's testimony was credible in certain portions although her overall tone and demeanor was defensive and evasive. The Court will also note that the vast majority of the mother's testimony addressed the incidents that occurred between the parties during the exchanges of the child.
Mr. C. P. was called as witness on behalf of the mother. He testified the parties have resided together since December of 2014 and the two of them entered into a joint lease on their current residence in February of 2015. Mr. P. testified he is unemployed as he suffers from knee problems which prevent him from standing for extended periods of time and other medical issues which impede his ability to remain seated for long periods. Despite these problems he testified that he spends approximately twenty hours per week seeking employment.
Mr. P. also testified he has a five year old son and he enjoys a shared physical custodial arrangement with his child's mother. He stated his child attends ENABLE pre-school and receives physical and speech therapy. Mr. P. testified Ms. T. is "fantastic" with his son, and that D.O.S. and his son are "good buddies".
He further stated Ms. T. is "extremely caring and compassionate" and he has never seen a better mother. He also testified that he has accompanied the mother to every exchange since November 2014. Mr. P. testified he estimates there have been approximately fifty exchanges and the mother has only acted in an antagonistic manner toward the father on one occasion.
The Court will note that Mr. P. had a very calm demeanor during his testimony but the Court discounts portions of his testimony given his relationship with the mother and finds portions of it lacking in credibility. Provisions for child's educational , intellectual , emotional development
Child's Health Care
The father credibly testified that the mother unilaterally scheduled a medical appointment earlier this year without being consulted. The father also stated the appointment did not occur until early February and he was provided very little notice.
The mother testified that she scheduled the medical appointment for February 4, 2015 as this was the earliest possible date given her employment schedule. The mother also testified that in the past she would primarily be the parent responsible for scheduling medical appointments for the child.
The father also testified the child developed a severe diaper rash while in the mother's care on several occasions. He further stated he would treat the diaper rash with cream during the course of his parenting time and upon the child returning from the mother's home the rash would reappear.
The father testified he is concerned the child may have Asperger's syndrome due to his family's medical history. He further testified the child was to undergo a developmental evaluation at the M.L.W. Evaluation Center per a stipulation reached in Court by the parties on December 15, 2014. The father testified the evaluation had not been conducted as of the commencement of the trial due to the mother's failure to return an intake packet to the evaluation center in a timely fashion.
The mother testified there are no "red flags" indicating that the child is autistic. The mother testified there had been an "issue" with scheduling the evaluation but that the child is now on a waiting list. The mother testified she provided the information requested to the evaluation center three days prior to the commencement of her testimony.
The Court finds that although the father attended the medical appointment on February 4, 2015, appropriate advance notice was not provided by the mother and the mother delayed the medical appointment from being scheduled in a timely fashion.
Furthermore, based upon the testimony, the Court finds the mother's lengthy delay in providing the necessary information to the evaluation center has impeded the evaluation process.
Education of the child
The father testified he is not in favor of the child attending pre-school in the fall of 2015 due to the child's age and maturity level. The father also stated if the evaluation finds the child to be autistic or have other disabilities that he would accept services in the home and if not available, would then have the child attend pre-school. The father stated he resides in the W.G. School District and through his own research found the district has many programs available for children with special needs such as Asperger's. The Court finds that the father's testimony in this regard to be genuine, reliable and insightful.
The mother testified she desires to enroll the child into a pre-school program to ascertain what services the child may be eligible for. The mother testified the last time the parties had a conversation relative to the child's education was in August or September of 2014 and that they were not on the "same page". The mother testified that she had a pre-school evaluation completed through the B. School District without the father's consent or knowledge which the Court finds extremely troubling.
Quality of home environment
There was no testimony indicating that the home of either parent was unacceptable.
Attitude toward other parent and that parent's relationship with child
The father testified the parties have exchanged the child approximately one hundred times since the summer of 2014. The father stated that during many of those exchanges the mother demonstrated "mood swings", was angry, unpleasant and uncooperative with him in the presence of the child.
The father testified that he was seeking sole legal and physical custody as the mother has refused to consult or cooperate in making joint decisions regarding the child.
The mother testified the father has several shortcomings including an inability to compromise, reluctance to change, and an inability to care for himself. The mother was also very critical of the father for not having driving privileges. The mother testified that she has many strengths including financial stability, as well as affection toward the child as he is "the center of my world".
The parties both testified there were many incidents during the exchange of the child and there was a great deal of testimony regarding three separate exchanges as set forth below.
1. Meltzer Park Exchange
The father testified the parties mutually agreed to exchange the child at a local park for his parenting time commencing August 13, 2014. The father testified that his mother drove him to Meltzer Park for the exchange. The father stated that upon the mother arriving the child exited the vehicle and wanted to play at the facility. The father testified that due to inclement weather he told the child he could not play outside which led to the child becoming upset. The father testified that the mother began to exit the park in her vehicle but then returned stating "I want the kid".
The father testified the mother then pulled the child out of his car and the child ran away. He further stated that he calmly attempted to have the child return to the vehicle. The father further testified the maternal grandmother began to yell at him and an argument occured. The father also testified that the maternal grandmother approached him and pushed him in the chest. He further stated that the mother was present and did not take any action to intervene. The father stated the police were called to the scene and upon arrival the officer advised them to exchange the child at a later time. The father's account of this incident was credible and his demeanor was calm when recounting the event.
The paternal grandmother testified that upon the mother's arrival at the park the father put the child into their motor vehicle. She further testified that upon the mother becoming hostile she recorded the event with her cellular phone. The paternal grandmother testified the mother grabbed the phone out of her hand and threw it onto the passenger seat and proceeded to take the child out of the vehicle. The Court received the video of the incident as Exhibit 14.
The mother testified that she returned to the park as the child was emotionally upset about leaving her and that she attempted to comfort the child. The mother also testified that she took the paternal grandmother's phone and "gently turned it off and returned it to her".
The Court will note that the mother's testimony was somewhat credible but animated and defensive in portions. The Court finds the mother's actions were neither justified or appropriate under the circumstances.
2. Destiny USA Exchange
The father testified that during an exchange at a local mall known as Destiny USA in August of 2014 the mother attempted to interfere with his parenting time. The father stated he requested the mother not interfere with his access to the child at which time the mother attempted to prevent him and the child from exiting the mall.
The mother testified that she desired to give the father the child's security blanket and he threw it back to her. She further alleges that the father and his mother were shouting at her. She further testified that the paternal grandmother held a cell phone to her face and videotaped her for three to five minutes. She further stated the paternal grandmother called her psychotic and schizophrenic and stated, "Don't worry I will get you to be violent".
The paternal grandmother testified the mother became upset when the father refused to accept a blanket for the child during the exchange as it had a strong odor of cigarette smoke. The paternal grandmother stated that upon trying to intervene the mother told her to "stop being schizophrenic" and referred to her in other derogatory ways. The paternal grandmother testified she was present for many exchanges at Destiny USA and the mother would be hostile, aggressive, mad, angry and "very nasty." The Court finds the paternal grandmother's account of the events to be very credible and reliable.
Ms. C. S. testified that she is the maternal aunt of the child and the mother resided with her upon her return from Colorado in 2014. Ms. S. testified that she is an office manager for a local company. Ms. S. stated she accompanied the mother to this particular exchange. She testified that upon reaching the top of the escalator the child made his way toward a nearby carousel. Ms. S. testified the father and his family approached them on either side and the father, along with the paternal grandmother, began screaming at the mother. She also testified a bystander called 911. The Court finds Ms. S. to be generally credible.
3. Market Diner Exchange
The father testified regarding an incident during the exchange of the child on December 5, 2014 in the parking lot of the Market Diner. The father stated the mother approached him and demanded the child's "dirty laundry". The father testified that he told the mother that he was washing the child's clothes and did not have them. He further testified that the mother became very upset and she held her cell phone in close proximity to his face at which point he pushed the phone away. The Court will note that the father's testimony was very credible and he had a very calm demeanor when recalling the events of December 5th.
The mother testified that while in the parking lot she requested clothing belonging to the child from the father. She then testified the father approached her motor vehicle and she requested that the father step back. She also testified the child was in her vehicle and was later brought inside the diner by Mr. P. upon her request. The mother testified that she felt uncomfortable as the father was near the front driver's portion of her vehicle at which time she video recorded the father with her cell phone.
Mr. P. testified that he was present for the December 5th exchange and the mother was recording the event for her own protection. He further stated that the father approached the mother's car and she told him to stay away. He also testified the mother put the cell phone close to the father for "better audio". He then went into the Market Diner for breakfast with the child as he knows "these things can get lengthy." Mr. P. further testified that the mother acts appropriately during exchanges of the child except on this one particular occasion.
Officer A. S. testified that he has been an officer with the Syracuse Police Department since 2007 and he has handled over one thousand domestic calls. Officer A.S. testified that on December 5, 2014 he responded to what he considered a domestic dispute over custody at the Market Diner. He further stated that the complaint was called in by a woman claiming that she was assaulted by the father of her child.
Upon arrival at the Market Diner, Officer A.S. stated that the mother accused the father of stealing her cell phone and of assault. Officer A.S. testified the mother showed him a video of the incident which depicted the father pushing the cell phone away from his face. He further stated that the camera was approximately two inches away from the father's face. Officer A.S. testified that in his opinion no assault took place. Officer A.S. further testified that the mother was the aggressor and the father kept calm during the incident.
The Court finds Officer A.S. testimony to be very reliable and credible as to what transpired during this exchange of the child.
Recommendation of the Attorney for the Child / Wishes of the Child
The Attorney for the Child states that a continuation of the shared physical custodial arrangement would be in the best interest of the minor child. The Court has carefully considered this position but notes that the Court is not bound by the recommendations or position of the Attorney for the Child (Maher v. Maher, 1 AD3d 987) and that his recommendation although duly considered, is not determinative. (Wright v. Dunham, 12 AD3d 1138.) Sole / joint custody
Each of the parties seeks sole legal and physcial custody of the minor child less than a year after they were granted joint custody. The Court finds that an award of joint custody would be improper where, as here, the parents are so severely antagonistic and embattled that joint custody only enhances family chaos. (Braiman v. Braiman, 44 NY2d 584; Bliss v. Ach 56 NY2d 995; Matter of Florio v. Niven 123 AD3d 708.)
The Court finds the parents do not interact or communicate in a civil manner and that their parenting styles are incompatible with respect to education, medical care and the child's activities. The parents have demonstrated that they are unable to cooperate to the degree necessary in an arrangement in which physical custody is shared and decisions about medical and educational testing must be made. A clear example of the discord between the parties is their testimony as to their inability to come to an agreement on whether to refer to the child by his first or middle name. The father testified he refers to the child by his first name "D." as this is a family name derived from his Welsh heritage. The mother testified that the child should be referred to as "O." as the child cannot pronounce "D." and that referring to the child by his given name is contrary to a professional recommendation she received. Based upon its findings herein, the Court finds that the child would be placed in an injurious situation if joint custody and shared physical custody were to continue. (Edwards v. Rothschild, 60 AD3d 675.)
In its analysis of the best interests of the child, the Court has examined a number of relevant factors. (Friederwitzer v. Friederwitzer, 55 NY2d 89.) Although both parents have flaws as to their behavior, civility, and maturity when interacting, this Court finds based upon the credible testimony and evidence that the father can provide a more stable environment for the child. (Laici v. Baldwin, 136 AD2d 905.) The Court notes that although the father is not employed he has stable housing and enjoys a great deal of family support. The Court finds through the father's testimony that the main focus in his life is ensuring that the child is provided for emotionally, intellectually and medically.
The Court finds overwhelming proof that the mother violated the joint custody and parenting time directives contained in the current order of custody. The Court finds that the mother's admission to interfering with the father's parenting time as well as her inappropriate conduct at a number of exchanges, is detrimental to the child. It is also indicative of her unwillingness to foster a strong relationship between the father and child. Significant weight must be given to the mother's failure to comply with an existing order of custody. (In Re Nia Dara B. V. Jonathan B. 127 AD3d 518) Furthermore, denying parental access for over a two month period is one factor which warrants a modification of custody. (Keefe v. Adam 85 AD3d 1225).
The Court further finds that since relocating to the Syracuse area in July of 2014 the mother has changed residences a number of times. This inconsistency in housing is demonstrative of the mother's instability which the Court has considered in making its final determination. (Fialkowski v. Fialkowski 200 AD2d 668.) In contrast, the father has had, and currently has, a stable residence.
The father has provided the child with a stable, loving home and fostered the child's medical, scholastic, and social development. (Stilson v. Stilson, 940 N.Y.S.2s 426.) The father also has demonstrated greater flexibility in dealing with the child's day to day care and can provide the consistency the child needs. Furthermore, the Court finds the father has demonstrated a better capability to address the child's medical and educational needs by a substantial preponderance of the evidence. /Head> CONCLUSION / TOTALITY OF CIRCUMSTANCES
The Court, having had the opportunity to review the evidence as well as to hear the testimony of the witnesses, to observe their demeanor, and to assess their credibility, finds that the mother has violated the parenting time provisions of the divorce decree and accordingly sustains the father's violation petition. However, the Court declines to impose a sanction against the mother in view of the testimony presented by both parties and also denies the ancillary relief sought by the father in this petition.
The Court notes that both parties are seeking modification of the existing custody order. The Court finds that based upon the testimony and totality of circumstances that there has been a substantial change of circumstances and a real need exists to modify the current custody order to promote and ensure the best interests of the child. The Court thus grants the father's petition for modification as being in the best interest of the child and awards sole legal and physical custody to the father of D. O. T. (D.O.B. December 28, 2011). The Court denies and dismisses the mother's cross-petition.
In this custodial arrangement, the Court recognizes the role that each parent already plays in the life of the child. Thus, as a part of the Order of Custody, which will be issued by the Court as a separate document the Court finds that extensive parenting time for the mother would be appropriate and in the best interest of the child.
In closing, the Court would like to recognize the attorneys for their professionalism and their efforts on behalf of their respective clients throughout the proceedings. It is the hope of the Court that the parents and grandparents will take the opportunity presented by these court proceedings to commence a period of mutual civility in the best interests of the child.