Opinion
V-04666-05/15V
05-09-2016
M. Jelks, Petitioner, v. K. Wright, Respondent.
Thomas R. Lochner, Esq. Attorney for Petitioner/Father Evan M. Lumley, Esq. Attorney for Respondent/Mother Joseph C. Bania, Esq. Attorney for child
Thomas R. Lochner, Esq. Attorney for Petitioner/Father Evan M. Lumley, Esq. Attorney for Respondent/Mother Joseph C. Bania, Esq. Attorney for child Deanne M. Tripi, J.
PROCEDURAL HISTORY
The Petitioner, M. Jelks (hereinafter referred to as the "Father"), filed an Amended Custody Modification Petition against K. Wright, (hereinafter referred to as the "Mother"), seeking sole custody of the child. The parties have a daughter from their out of wedlock relationship; to wit: K.J., born on July 13, 2004. The Petitioner/Father also filed an Amended Custody Violation Petition under Docket Number V-04666-05/15W which is addressed in a separate Decision & Order on Violation Petition.
The Mother had filed a Petition in 2014 and the Father failed to appear. Therefore, the Court granted a Final Order on Petition for Modification of Order of Custody and Visitation on May 27, 2014 and said Order was on Default. Neither party has moved to set aside said Order. The Order modified the parties' previous Order and granted the parties joint custody with the Mother designated as the primary residential parent instead of the Father. The Court directed that the child complete the 2013-2014 school year at Maplemere School in Amherst, New York. Thereafter, the Order directed that the child is to attend school in the Mother's School District and the Father's access is every other weekend from Friday at 9:00 a.m. through Monday at 9:00 a.m. with additional access as agreed and arranged. The Order included additional provisions for summer, holidays and noted that the parties' holiday schedule outlined in their Order granted on April 22, 2009 was still in effect. (See Order in Respondent's Exhibit "A)
All parties were represented by competent counsel who aggressively advocated for the interests of their respective clients. The Father was represented by Thomas R. Lochner, Esq. and the Mother was represented by Evan M. Lumley, Esq. The child, K.J., was represented by Joseph C. Bania, Esq.
The Court conducted a trial on all both Petitions on October 27, 2015 and February 29, 2016. The Court had a Lincoln Hearing with the parties' daughter, K.J., on March 28, 2016. The attorneys for the parties submitted final written Summations.
This Court, based upon its unique opportunity to evaluate and observe the demeanor, credibility, temperament and sincerity of each witness, and to review the pertinent statutes, case law and evidence entered in the trial, as well as arguments of able counsel, makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
The Father commenced his case in chief by having his sister, T . Jelks , testify. T. Jelks has two daughters, ages 17 and 8.. She informed the Court that, between September 1, 2014 to the Spring of 2015, she had assisted the Father on approximately five different occasions with picking up K.J. from the Mother's residence for his scheduled access. However, she was only successful in picking up K.J. on two (2) of those occasions. T. Jelks gave further detail by indicating that she went to the house a few times and there was no answer at the door. Another time, K.J. did not come out of the house until 35 minutes after access was to commence. She recalled a different occasion when she went to pick up K.J. and waited for some time for K.J. to come out. K.J. eventually came out of the house and then went back into the house and never came out again.
The child resided with her Father in Amherst, New York until May 2014. The Father resides in the Sweet Home School District. T. Jelks would regularly see K.J. at the Father's house during the week, on weekends and when they came over to the paternal grandmother's house. She described K.J. as more open and talkative in the past. Since going to live with her Mother, the child has been withdrawn and does not talk much. K.J. does not interact anymore with her cousins. They used to play together and talk but now K.J. just sits and stares and does not say anything.
M . Jelks , the Father's wife, testified that they were married on May 22, 2015. They had known each other for seven (7) years and she lived with the Father for 5 ½ years. She is employed at Catholic Health as an accountant. They do not have any children together. M. Jelks has a son age 6 and the Father has a daughter named T. Robinson (age 19) and the children reside with them in their single family home in Amherst, New York. K.J. resided with them until May 2014.
Prior to May 2014, M. Jelks described K.J. as outgoing and outspoken. She had a good relationship with her cousins. K.J. attended school at Maplemere Elementary. She had very few disciplinary issues at school. Since May 2014, M. Jelks said that they saw K.J. occasionally on the weekends during the summer of 2014 and they had even fewer visits in the Fall of 2014. When K.J. does visit, she is very withdrawn and frequently does not even greet them. During the visits, K.J. does not talk much. Unless they plan an event, K.J. traditionally stays in her room playing on her tablet or phone and sometimes plays with her siblings and cousin.
T . Robinson , the daughter of M. Jelks, testified that she was born on August 18, 1996 and is currently 19 years of age. She resides with the Father and attends school at Niagara University where she is taking Spanish and Criminal Justice classes. K.J. resided with them until May 2014. She said that K.J. was very comfortable, interacted with them and acted "normal." T. Robinson described her relationship with K.J. as close.
She saw K.J. in June 2014 on K. Wright's street and K.J. was standing on the street surrounded by four (4) to five (5) guys and she was wearing a see-through shirt which showed her bra. T.Robinson told K.J. to go and change her shirt. After May 2014 and through the Fall of 2015, T. Robinson has noticed that K.J. is on Snap Chat between the hours of 2:00 a.m. and 4:00 a.m. on school nights and she is swearing and posting pictures of herself. She has also noticed her on Instagram and saw a picture that K.J. posted on Facebook kissing a guy. The pictures of K.J. depict her wearing a lot of makeup.
T. Robinson testified that during the Summer of 2014, she saw her sister K.J. when K.J. came to visit with the Father for two weeks in August. During the majority of the two weeks, K.J. was standoffish, antisocial and would not speak to them most of the day. From the Fall of 2014 through 2015, K.J. has continued to have an antisocial attitude toward them. Although T.Robinson attempted to engage with K.J., K.J. would not engage with T.Robinson or her cousins. T. Robinson described K.J. as disrespectful to adults. During the Fall of 2015, she saw K.J. on weekends and at Christmas 2015. She described K.J. as very quiet but once K.J. is at the Father's house for a while, she becomes more talkative.
M . Jelks , the Father, testified that he was born on August 28, 1973 and is currently 42 years old. He has resided at Azure Pine Court in Amherst, New York for about three ( 3) years. Prior to that, he lived on Hartford Road in Amherst, New York. The Father resides in the Sweet Home School District. He has been employed at Midland Asphalt as a Human Resource Manager for three (3) years. He used to work at WIVB, Channel 4 as an HR journalist business manager for four (4) years.
K.J. primarily resided with the Father until May 2014. The Mother had access every other weekend from Friday through Sunday, holidays and vacations. During the 2013-2014 school year, K.J. played tennis and gymnastics. When K.J. was with her Mother, K.J. did not attend these activities. The Father took K.J. to Winning Smiles where she received dental care. He says that the Mother took her to one appointment and he took her to all other appointments. When K.J. resided with him, he took her to a Pediatrician known as Dr. C. located at Kenmore and Main. He is unaware of her current pediatrician.
The Father said that the Mother became the primary residential parent in May 2014 and he was granted alternate weekend access from Fridays to Mondays. However, he testified that he was not given access between early June 2014 to August 15, 2014. The Father had access on August 15, 2014 through around September 4, 2014. When he went to the Mother's house to pick K.J. up on August 15, 2014, it took her 45 minutes to come out of the house. It was evident by her body language and demeanor that she did not want to go with him. She was standoffish on the first day and did not really speak to him. After the summer access, the Father testified that he tried to resume the alternate weekend access which would have been on the weekend of September 5, 2014 pursuant to the Order granted on May 27, 2014 but was denied access during September 2014, October 2014 and through early November 2014 with the Mother providing him with a myriad of excuses as to why he was not having access. He then testified that on the weekend of September 12, 2014, the Mother called him and asked him if he could pick up K.J. from school after her test. He told her that he can pick up after work and sent his sister who waited outside of the Mother's house for 45 minutes and there was no response at the door. Thus, he was denied access. The Mother never denied or refuted that the Father was denied visitation from September 2014 until around November 7, 2014. The Father says that when he has his weekend access, he picks up K.J. on Fridays and returns her on Sunday due to his work schedule. The Father says that he saw K.J. for one weekend in January 2016. In February 2016, he was sick one weekend and could not exercise access and when he went to pick up K.J. on his other alternate weekend in February 2016, there was no answer. Thus, he did not have any access in February 2016. The Father believes that the Mother has intentionally impeded his access with K.J.
Pursuant to the parties' Order and Decision dated April 22, 2009, the parties have a set holiday schedule. In the even years, the Father is to have Thanksgiving. The Father contacted the Mother on Thanksgiving Day in 2014 and told the Mother he was coming to pick up the child and she told him that they were not home. However, when he arrived at the Mother's house, he discovered that the Mother had attempted to mislead him since K.J. was home. The Father exercised his Thanksgiving access despite the Mother's attempt to thwart same.
The Father testified that K.J. attended Maplemere Elementary School from Kindergarten through 4th grade. The Sweet Home School District Elementary Transcripts for Grade 4 in Petitioner's Exhibit "1" show that K.J. maintained a "Satisfactory" to "Exceeds" rating in most of her subjects with a few "Developing" ratings. K.J.'S teachers gave her very positive and favorable comments. The Petitioner's Exhibit "1" includes immunization records verify that she is current on all of her required shots. K.J. only had a few unexcused absences during this school year. (See Petitioner's Exhibit "1") K.J. took flute lessons at school. During 4th grade, the Father received a call from the principal at Maplemere informing him of incidents that had occurred over the weekend between K.J. and others on social media and via phone. However, she did not have a disciplinary problems at Maplemere Elementary.
In October 2014, the Father discovered that K.J. was attending St. Joseph's University School in Buffalo, New York. He was not consulted prior to her enrollment there. The St. Joseph's University School records for Grade 5 are in Petitioner's Exhibit "2". During the 2014-2015 school year, the records show that K.J. has maintained good grades averaging between 85 to 100. The records make specific notations regarding K.J.'S behavior particularly in lunch and special area classes. The records state, "K.J. often has problems with peers and adults at these times." Some of the comments from her teachers include a comment from Mrs. G., "it has been a pleasure getting to know your child in Physical Education. They are demonstrating good effort and participation, but need to work on respectful behavior, listening and following directions." Mrs. J. noted that, "often time forgets to complete assignments or does not complete homework in a timely manner." "Still requires reminder and additional support at home." The school created a "K.J.'S Daily Behavior Chart." (See Petitioner's Exhibit "2") The Father contacted Ms. J., K.J.'S fifth grade teacher, and had a meeting with her. In April/May 2015, he was contacted by the teacher to discuss K.J.'S behavior at school whereby she was on the verge of being expelled. K.J.'S behavior included being disrespectful and having altercations with other students. In an attempt to keep K.J. at the school, the school met with both parents and it was agreed that K.J. would attend the in-school counseling program. The Father believes that K.J. only attended a few counseling sessions at the end of the 2014-2015 school year. The child did not have any sessions in the 2015-2016 school year. The school counselor had sent an authorization to the Mother at the beginning of the school year for her to sign to resume the counseling and the Mother had not signed it. Therefore, another meeting was scheduled in February 2016 with both parents, the counselor and the assistant principal to resume the counseling at school. K.J.'S behavior has clearly become an issue during the last two school years. The child's 6th grade school records were not submitted into evidence.
The Father expressed concerns that his daughter is regularly on social media while at her Mother's residence. The Father submitted in Petitioner's "6", Facebook postings from K.J.'S Facebook page. On the third page of Petitioner's Exhibit "6", the picture depicts K.J. holding her phone and has her middle finger up in her other hand.
K. Wright, the Mother, testified that she has resided at 41 Berwyn Avenue in Buffalo, New York since 2007 and it is her mother's residence. The Mother resides with three (3) of her four (4) children: to wit: her son who is age 18, her daughter who is age 16 and K.J. who is age 11. The Mother says that her son graduated from Canisuis High School and attends college at the University at Maine. Her daughter is currently in 11th grade. Her oldest son is 26 years old, used to primarily reside with her but does not reside with her any longer. He works full time with the elderly. The home has four bedrooms.
K.J. attends school at St. Joseph's University School which is about five minutes away.The Mother alleges that when she was considering which school K.J. would be attending, she sent a text message to the Father inviting him to come to the different schools. The Mother says she received no response to same. The Court does not find this testimony credible and does not believe that she reached out to the Father to get his opinion about K.J.'S school. The Mother then said that in 2014-2015, K.J. had a photo project at school and she needed pictures from both sides of the family. The Mother says that the Father never gave any photos, however, the evidence shows that the Father was never notified of same. K.J. was late to school 25 times during the 2014-2015 school year and absent 13 times. (See Petitioner's Exhibit "2") The Mother testified that K.J. still participates in flute at school and in the school band. Since May 2014, K.J. has not participated in gymnastics or tennis.
At the end of May 2015, the Mother stated that they had a meeting at the school to address K.J.'S behavior after there was an incident with another student in the lunchroom. The Mother was notified via email of a second incident involving K.J. pulling another student's hair. The Mother also recalled receiving another email regarding K.J.'S manner or dress at school and wearing jewelry. The Mother believes that K.J.'S behavior is a result of adjustment issues at the new school. The Mother acknowledges that K.J. only had two or three required counseling sessions at the school at the end of the 2014-2015 school year. She was sent an authorization form for K.J. to commence counseling again in the 2015-2016 school year and cannot recall when she returned it. The Mother says that the school did not contact her about counseling until October 2015. It is evident that the Mother did not attempt to pursue the counseling until the issue was brought up again in February 2016. Thus, K.J. has not been in counseling for most of the current school year.
On Christmas Eve 2014, the Mother took all of her children, including K.J., out of town to Texas despite the fact that the parties' Decision and Order granted on April 22, 2009 which provides that the Father has access on Christmas Eve. The Mother first stated that there were no Court Orders that provided Christmas Eve to either parent which is inaccurate. Even if the Mother believed that to be true, the Father has always exercised access on Christmas Eve and she has always had Christmas Day. The evidence shows that the Mother did not ask the Father for his consent. Rather, she says that "told" the Father that she would be out of town but the Court does not believe that the Mother ever told the Father that she was going out of town.
The Mother denies knowing about K.J.'S Facebook page and the first time she saw it was during these Court proceedings in October 2015. Since October 2015, after learning about the page, she has not monitored K.J.'S Facebook page at all despite seeing the third picture where K.J. is holding her phone in one hand and raising her middle finger in the other. (See Petitioner's "6")The Mother asserts that the Facebook page is now taken down.
At the conclusion of the Father's case in chief, the Attorney for the child made a Motion to Dismiss for failure of the Father to show a change in circumstances. The Mother's attorney joined in that Motion stating that the Father had not shown a change in circumstances and any change would not be in the child's best interests. The Court denied said Motion.
DECISION
The Fourth Department held in Carey v. Carey, 85 AD3d 1574, 925 N.Y.S.2d 360 (4th Dept., 2011), that it is well established that alteration of an established custody arrangement will be ordered only upon a showing of a change in circumstances that reflects a real need for change to ensure the best interests of the child." See also, Tarrant v. Ostrowski, 96 AD3d 1580, 947 N.Y.S.2d 726 (4th Dept., 2012). In Collins v. Collins, 115 AD2d 979, 497 N.Y.S.2d 544 (4th Dept. 1985), the Court found that the "the party seeking a change in custody bears a heavy burden of proof that the change contemplated is in the child's best interests." See, Ammann v. Ammann, 209 AD2d 1032, 619 N.Y.S.2d 469 (4th Dept., 1994).
Upon determining that there is a change in circumstances, then the Court must determine if a change is in the child's best interests by reviewing the totality of the circumstances. See, Eschbach v. Eschbach, 56 NY2d 167, 171, 451 NY2d 658 (1982) and Marino v. Marino, 90 AD3d 1694, 935 N.Y.S.2d 818 (4th Dept., 2011).
When determining best interests and reviewing the totality of the circumstances, some of the factors the Court should consider include (1) the continuity and stability of the existing custodial arrangement, including the relative fitness of the parents and the length of time the present custodial arrangement has continued; (2) quality of the child's home environment and that of the parent seeking custody; (3) the ability of each parent to provide for the child's emotional and intellectual development; (4) the financial status and ability of each parent to provide for the child; (5) the individual needs and expressed desires of the child; and (6) the need of the child to live with siblings." See, Fox v. Fox, 177 AD2d 209, 582 N.Y.S.2d (4th Dept, 1992). It is also well settled that, "a concerted effort by one parent to interfere with the other parent's contact with the child is so inimical to the best interests of the child... as to, per se, raise a strong probability that [the interfering parent] is unfit to act as the custodial parent." Marino, Supra., at 1695.
The Court of Appeals held in Friederwitzer vs. Friederwitzer, 55 NY2d 89, 447 N.Y.S.2d 893 (1982) that, "the preexisting custodial arrangement, wether established by agreement or order, is a weighty factor, and the existing arrangement should be changed based only upon "countervailing circumstances on consideration of the totality of the circumstances."
The Court of Appeals in Obey vs. Degling, 37 NY2d 768, 375 N.Y.S.2d 91 (1975) held that "custody should be established on long term basis, wherever possible and children shouldnot be shuffled back and forth merely because of changes in marital status, economic circumstances or improvements in moral or psychological adjustment, at least so long as the custodial parent has not been shown to be unfit, or perhaps less fit to continue as the proper custodian." The Court of Appeals held that "rearing of a child requires greater stability than a roller-coaster treatment of custody." Dintruff vs. McGreevy, 34 NY2d 887, 359 N.Y.S.2d 281 (1974).
The evidence shows that K.J. resided with her Father all of her life until May 2014, when the Mother secured a Default Order of Custody. While she resided with her Father, K.J. attended Maplemere Elementary School. The school records in Petitioner's Exhibit "1" are for the 2013-2014 school year and show that she maintained a "Satisfactory" to "Exceeds" rating in most of her subjects with a few "Developing" ratings. The comments from her teachers were all positive. Mrs. Sionko, K.J.'S Math teacher wrote, "When given a multi-step word problem to solve, K.J. gets right to it. She readily reads and interprets the question, and then sets out to plan her work. Her perseverance and problem solving skills are excellent. K.J. takes pride in all of her work and math is no exception." (See Petitioner's Exhibit "1"). K.J.'s Science teacher commented on how she was a pleasure to have in class and they would miss seeing her smiling face in the hallways. K.J. appeared to be working hard and happy at Maplemere Elementary School.
Since attending school at St. Joseph's University School in the 2014-2015 school year, Petitioner's Exhibit "2" shows that she academically did well in 5th grade and ended the year with an 87 average in Religion; 88 in Language Development; 84 in Reading Development; 90 in Math; 87 in Social Studies, 100 in Technology, 92 in Art, 93 in Music and 92 in Gym. The teachers made many notations in the report card as noted in the Statement of Facts. Additionally, in the "Personal Growth" section, the school stated, "K.J. is a bright young woman who has potential to be a great academic student, however, she often times lets her disruptive behaviors interfere with her ability to learn. I hope that K.J. will continue counseling services over the Summer, as I feel she benefits from learning appropriate socio-emotional skills to use especially when she becomes frustrated with adults and peers." (See Petitioner's Exhibit "2") It is evident from the teacher's comments in the 2014-2015 report card, K.J. struggled with peers and adults, had issues with acting respectfully, listening, completing assignments and homework on time. During that academic school year, the parents met with the school as a result of the child's conduct at school which included disrespect toward teachers and peer conflicts. She was on the verge of being expelled when the school agreed K.J. could remain at school provided she went to in-school counseling. K.J. attended a few sessions during that school year. K.J. did not have any counseling over the summer and in fact, did not resume any counseling until she had one session in October 2015 and one session in February 2016. It is evident to the Court that the Mother failed to follow through with the child's school counseling which she appears to require. K.J. has not thrived emotionally at St. Joseph's University. K.J. is now completing 6th grade at St. Joseph's University but the Court was not provided with the 2015-2016 school records.
Regarding her attendance, the school included records from Kindergarten through 4th Grade at Maplemere Elementary School. (See Petitioner's Exhibit "1") During 3rd grade, K.J. had seven (7) unexcused absences. The Mother had access every Wednesday overnight to Thursday and every other weekend from Friday through Sunday. It is noted that six (6) of those unexcused early dismissals occurred as a result of the Mother picking up K.J. early for either various alleged doctor appointments or without any explanation at all. During 3rd grade, K.J. had five (5) unexcused tardies which were all pertaining to the Mother getting K.J. to school late and usually after her Wednesday overnight access. During 4th grade, K.J. had 3 unexcused early dismissals, whereby on two (2) of those occasions, the Mother picked K.J. up early for an alleged appointment. K.J. was tardy on two (2) occasions in 4th grade as a result of the Mother being unable to get her to school on time.
Since the child has been living with the Mother, the Father has access only on every other weekend and he takes K.J. Friday through Sunday night when he is granted access. While at St. Joseph's University School during the 2014-2015 school year, the records show in Exhibit "2" that K.J. has been late to school twenty five (25) times and absent thirteen (13) times and all of the absences and tardiness occurred on the Mother's access periods. K.J.'S 2015-2016 school records were not provided to the Court. It is evident that K.J.'S attendance and promptness have been an issue when she is in the Mother's care. Missing school or starting school late is stressful to children and can have a direct effect on their performance and preparedness. The evidence shows that K.J. has been struggling in school at St. Joseph's University, has had negative interactions with peers and teachers and, in 2014-2015 school year, the teachers noted that she was often unprepared coming to school without completed homework and not completing other assignments.
In reviewing the Mother's living situation, she has a three (3) other children, two (2) of which are currently residing with her. The Mother resides in a four bedroom home in Buffalo, New York and she works full time. The Mother is financially able to care for K.J.. The Court is concerned about how the Mother has handled K.J.'S behavior at school. The Mother admitted that she received an email from the school in May 2015 informing her of an incident that K.J. had with a fellow student in the lunchroom, another email informed the mother of K.J. pulling another student's hair and a third email informed the Mother of K.J.'S inappropriate manner of dress and jewelry. Despite these emails, the Mother did not advise as to what punishment, if any, K.J. received or how this matter was handled. The Mother failed to follow through with the required weekly school counseling. Her half sister Tia explained to the Court that she saw K.J. on a street corner surrounded by boys and was permitted to wear a see through top. It is evident from the testimony, that K.J. is on various social media cites and logs on in the early morning hours on school nights. The Mother was unaware of these cites has not has monitored or supervised same. K.J. has issues completing homework and it appears that the Mother is not monitoring same. The Court has concerns for K.J. in the Mother's primary care due to the lack of supervision over K.J.'S use of social media, her manner of dress, her whereabouts, her behavior at school toward fellow students and teachers, her absenteeism and tardiness and her preparedness for school.
The Father resides in a home in Amherst, New York and works full time. He is married to M. Jelks and his daughter T. Robinson, currently 19 years of age, resides with him. The Father is financially able to care for K.J.. When K.J. resided with her Father until May 2014, K.J. did not have disciplinary problems at school, she did not have issues with attire, completing homework and assignments and, when leaving from the Father's residence, she did not have issues with attendance or tardiness. The Court believes that K.J. emotionally and mentally thrived in the Father's care where she has been for most of her life.
All of the Father's witnesses, including the Father, testified about K.J.'S significant change in demeanor and attitude toward them since living with her Mother. When she is at the Father's house, K.J. is essentially in her room and does not engage with the other paternal family members. The evidence shows that when she attended school from the Father's house, the teachers at Maplemere loved her bright smile and cheery demeanor which she also exhibited at the Father's house. Her current demeanor and personality at the Father's house is withdrawn. The Court has concerns K.J.'S emotional state since residing with the Mother as seen by her conduct at her current school and with the Father.
K.J.'S access time with the Father is not an option but it has been treated as same by both the Mother, and therefore, by K.J. as well. The Mother testified that she promotes the access but did not deny that the Father has been denied significant access time with K.J. including almost all of the Fall of 2015, almost all of January 2016 and one weekend in February 2016. The trial ended in March 2016 so it is unknown if access is occurring at this time. The evidence shows that many times the Father or his sister have arrived to pick up K.J. for access and no one answers the door. The evidence shows that on many occasions, it has taken a long time for K.J. to come out of the house and on one occasion, she came out and went back into her Mother's home and another visit was denied. During Thanksgiving 2014, the Mother essentially told the Father that they were not home and he was not getting access. When the Father arrived, he found K.J. home. The Mother is well aware that the Father was to have access on Christmas Eve pursuant to the parties' Decision and Order Modifying an Order of Custody and Visitation dated April 21, 2009, but she denied him access on Christmas Eve in 2014. The Mother is responsible for ensuring that K.J. is ready to go for all of her access time with the Father and is ready to leave the house timely. Even when this trial was pending, the Mother did not ensure that the Father had all of his access time, thus the Court believes that the Mother has not fostered the relationship between the child and the Father. It is well settled law that the intentional interference with the non-custodial parent's relationship by way of denying access is "so inconsistent with the best interests of the child as to, per se, raise a strong probability that the [offending party] is unfit to act as a custodial parent." See, Ross v. Ross, 117 AD3d 1346, 987 N.Y.S.2d 463 (3rd Dept., 2014). See also, Marino, Supra. at 1695, Dobies v. Brefka, 83 AD3d 1148, 921 N.Y.S.2d 349 (3rd Dept., 2011).
The Court conducted a Lincoln hearing with K.J. K.J. is a well spoken and mature young lady who was able to express her wishes to the Court. The Fourth Department found in Cheney v. Cheney, 118 AD3d 1358, 987 N.Y.S.2d 531 (4th Dept., 2014) that the child's preference of who the child wishes to reside with is not dispositive but it is a factor to consider in determining that there has been a change in circumstances. See also, McG. Dintruff v. McGreevy, 34 NY2d 887, 359 N.Y.S.2d 281 (1974).
Based upon the above, the Court finds that there has been a change in circumstances since the Court issued the Final Order on Petition for Modification of Custody and Visitation by way of Default on May 27, 2014. Based upon the totality of the circumstances, the Court finds that it is in K.J.'S best interests to return to her Father's primary custody.
In taking all of the all of the above into consideration, and for the foregoing reasons and for the best interests of the child, it is hereby
ORDERED, that the parties shall share joint custody with the Father named as the primary residential parent, and it is hereby
ORDERED, that the child shall complete the 2015-2016 school year at St. Joseph's University School and thereafter, K.J. shall attend school in the Father's school district, and it is hereby
ORDERED, that the Father's access schedule until June 2016 shall be alternate weekend access from Friday from school, or at 3:00 p.m. if no school, to Sunday at 7:00 p.m., and when there is no school on Monday, then the access shall be through Monday until 7:00 p.m., and the Father's alternate weekends in May 2016 shall be the weekend of May 14, 2016 and May 28, 2016, and it is hereby
ORDERED, that commencing June 4, 2016, that the Mother shall have weekend access from Friday from school, or at 3:00 p.m. if no school, to Sunday at 7:00 p.m., and when there is no school on Monday, then the access shall be through Monday until 7:00 p.m., and it is hereby
ORDERED, that commencing June 1, 2016, the Mother shall have access with K.J. every Wednesday from school, or 3:00 p.m. until 7:00 p.m., but if there is no school on Thursday, then the access shall be overnight until Thursday at 7:00 p.m., and it is hereby
ORDERED, that despite the alternate weekend schedule access schedule, the Mother shall always have access on Mother's Day from 10:00 a.m. to 7:00 p.m. and the Father shall always have access on Father's Day from 10:00 a.m. to 7:00 p.m., and it is hereby
ORDERED, that the parties shall have the following holiday schedule which shall supercede the regular schedule outlined above:
President's Day : Defined as 10:00 a.m. to 7:00 p.m.: The Father shall have access in even years, commencing in 2018, and the Mother shall have access in odd years, commencing in 2017;Child's Birthday (July 13th) : The Mother shall have access from 12:00 p .m. to 9:00 p.m.;
February Recess : Defined as the last day of school through the Sunday before school resumes at 7:00 p.m.:If there is a school recess, then the Father even years, commencing in 2018, and the Mother having the recess in odd years, commencing 2017;
Easter Sunday : Defined as Easter Sunday from 10:00 a.m. to 9:00 p.m.: Despite the alternate weekend access schedule, the Father shall have access on Easter Sunday in every odd year, commencing in 2017 and the Mother shall have access on Easter Sunday in every even year, commencing in 2018;
Spring Recess :Defined as the last day of school through the Sunday before school resumes at 7:00 p.m.: The Father shall have access on Easter Sunday in every odd year, commencing in 2017 and the Mother shall have access on Easter Sunday in every even year, commencing in 2018;
Memorial Day : Defined as 10:00 a.m. to 7:00 p.m., the Father shall have access in every even year, commencing in 2018, and the Mother shall have access in every odd year, commencing in 2017;
Fourth of July : The parties shall alternate Fourth of July defined as July 4th at 10:00 a.m. to July 5th at 10:00 a.m.: The Father shall have access every odd year, commencing in 2017, and the Mother shall have access in every even year, commencing in 2018;
Labor Day : Defined as 10:00 a.m. to 7:00 p.m., the Father shall have access in every odd year, commencing in 2017, and the Mother shall have access in every even year, commencing in 2018;
Summer Access : Both parties shall have two non-consecutive or consecutive weeks of uninterrupted access time with the child upon written notice to the other parent: In the odd years, the Mother shall notify the Father of her access weeks by June 1st and the Father shall notify the Mother by June 14th and in the even years, the Father shall notify the Mother of his weeks of access by June 1st and the Mother shall notify the Father by June 14th and said access shall not interfere with the 4th of July holiday;
Thanksgiving: Defined as 10:00 a.m. to 9:00 p.m.: The Father shall have access every even year, commencing in 2016, and the Mother shall have access in every odd year, commencing in 2017;
Christmas Eve: The Father shall have access every Christmas Eve at 10:00 a.m. until Christmas Day 10:00 a.m. in the even years, commencing in 2016, and Christmas Eve at 10:00 a.m. to 9:00 p.m. in every odd year, commencing in 2017;
Christmas Day: The Mother shall have access on Christmas Day every year with the access to start on Christmas Day at 10:00 a.m. in the even years, commencing in 2016, and at 9:00 p.m. on Christmas Eve in the odd years, commencing in 2017;
Christmas Recess : In every year, the Mother shall have access from Christmas Day through December 29th at 12:00 p.m. and the Father shall have access every December 29th at 12:00 p.m. until school resumes; and it is hereby
ORDERED, that the parties may have additional or other access, from time to time, as mutually agreed and arranged, and it is hereby
ORDERED, that both parties shall have independent access to all of the child's health, education and welfare records and providers, and it is hereby
ORDERED, that the Father shall notify the Mother of the child's treating physicians and dentists or of any changes to same, and it is hereby
ORDERED, that the Father shall not relocate K.J. outside of Erie County in the State of New York, without the consent of the Mother or an Order from the Erie County Family Court, and it is hereby
ORDERED, that the parties shall immediately provide one another with their current cellular and land line phone numbers and their residential addresses as well as notify one another of any changes to same as soon as it occurs, and it is hereby
ORDERED, that K.J. shall have reasonable telephone access with her respective parents and each parent shall have reasonable telephone access with K.J. when she is not in their care, and it is hereby
ORDERED, that each parent may enroll K.J. in extracurricular activities that occur on their respective access time with notice to the other parent of the activity, contact information of said activity and any schedules associated with said activity and if said activity is to occur on the other parent's access time, written consent must be obtained from that parent if that parent is expected to take the child to said activity but if the child is not expected to attend the activity on that parent's time, then consent is not required, and it is hereby
ORDERED, that this Order supercedes all other Court Orders.
And the Court having searched the statewide registry of orders of protection, the sex offender registry and the Family Court's warrant and child protective records, and having notified the attorneys for the partes and for the child; And the court having considered and relied upon the results of these searches in making this decisions.
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 THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. ENTER May 9, 2016 Frank J. Boccio ____________________________ Hon. Deanne M. Tripi Family Court Judge By: Lisa Rutkowski, Clerk
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Order mailed on [specify date(s) and to whom mailed]: Order received in court on [specify date(s) and to whom given]: M. Jelks K. Wright Thomas R. Lochner, Esq. Evan M. Lumley, Esq. Joseph C. Bania, Esq.