Opinion
09-20-2022
In the Matter of a Proceeding Under Article 6 of the Family Court Act Joseph S., Petitioner, v. Tina W. and STORM C., Respondents.
Kristine M. Demo-Vazquez, Esq., for Joseph S. Senior Legal Aid Attorney Denise Buscemi, Esq., for Tina W. Assistant Monroe County Public Defender Erin Erturk, Esq., for Storm C. Edward W. McClenathan Esq., Attorney for the Child
Unpublished Opinion
Kristine M. Demo-Vazquez, Esq., for Joseph S.
Senior Legal Aid Attorney Denise Buscemi, Esq., for Tina W.
Assistant Monroe County Public Defender Erin Erturk, Esq., for Storm C.
Edward W. McClenathan Esq., Attorney for the Child
Dandrea L. Ruhlmann, J.
This is a custodial dispute among biological Father, Maternal Grandmother and biological Mother.
Petitioner-Father Joseph S. (Father) filed three petitions against Respondent-Maternal Grandmother Tina W. (Grandmother) and Respondent-Mother Storm C. (Mother). By petition dated February 9, 2018 he initially sought visitation with his child, Tina C. (DOB: XX/XX/2015), and later amended his petition on April 19, 2019 seeking sole custody. He filed a violation petition on August 18, 2020, alleging he was denied visits on ten occasions. On August 24, 2020, he filed a second violation petition alleging he was denied visits on two occasions, one date which was included in the prior violation petition.
The Court finds that Father sustained, in part, his petition for visitation but failed to sustain his application for sole custody. Grandmother proved both extraordinary circumstances and it is in Tina's best interests that she and Mother continue to have joint custody of Tina, with Grandmother retaining primary physical custody and final decision making authority. Father shall enjoy supervised visitation. A review of the voluminous record received into evidence does not support Father's violation finding against Grandmother.
Procedural History
Prior to the instant case, Father filed a paternity petition on October 14, 2015 and was adjudicated the legal father of Tina C. by Order of Filiation entered March 7, 2017, a Corrected Order of Filiation entered March 31, 2017, and a Second Corrected Order of Filiation entered March 19, 2018. Grandmother was appointed Temporary Guardian of the child by Order entered October 4, 2016, and her guardianship was eventually converted to a custodial action. An Order of Custody was entered March 6, 2018, upon consent of Mother, Father and Grandmother granting joint custody between Grandmother and Mother with Grandmother having primary physical residency and final decision making authority. There was no finding of extraordinary circumstances. As a result of his incarceration, Father's rights were reserved because he was incapable of fulfilling the obligations of a custodial parent See Matter of Van Orman, 19 A.D.3d 1167 (4th Dept 2015).
Credibility
A protracted trial spanned eight days over the course of two and a half years (due in part to Covid-19 shutdowns and scheduling limitations of all counsel). The trial was held both virtually and in person. Five witnesses testified: Father, Mother, Grandmother, Theresa J. (Father's friend who supervised approximately eight visits in 2018) and Chelsea H. (the subject child's aunt through marriage to Joseph C. and a visitation supervisor). The Court finds all the witnesses' testimony (except Father) to be credible. Father's testimony lacked credibility (see Matter of Louise E.S. v W. Stephen S., 64 N.Y.2d 946, 947 [1985] ["respect is to be accorded the Trial Judge's advantage... in observ[ing] the demeanor of the witnesses"]; Eschbach v Eschbach, 56 N.Y.2d 167 [1982]; Matter of Paliani v Selapack, 178 A.D.3d 1425, 1426 [4th Dept 2017]); see also Matter of Cross v Casewell, 113 AD30 (1107 [4th Dept 2014]). For example, Father alleged Chelsea H. did not fulfill her duty as a visitation supervisor because she failed to supervise the visits. Father claimed that Ms. H. was "100 percent lying," however photographs taken at those visits and received as Respondent's Exhibits E - H rebut Father's testimony. "It is well settled that a court's determination regarding custody.... based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record" Matter of Crill v Crill, 181 A.D.3d 1199 [4th Dept 2020]).
President Donald J. Trump signed an emergency declaration in response to the coronavirus pandemic on March 13, 2020; New York State Governor Andrew M. Cuomo declared a state of emergency on March 14, 2020, as did Monroe County Executive Adam Bello.
Evidence
The Court also received into evidence twenty-three exhibits: Petitioner's Exhibit 1, Second Corrected Order of Filiation; Petitioner's Exhibits 4-15 pictures of Tina with Father at various visits; Petitioner's Exhibit 16 a compact disc obtained from Walmart depicting an unexpected meeting between Father and Tina; Respondent's Exhibit A certified records dated August 1, 2019 of the Society for the Protection and Care of Children (SPCC); Respondent's Exhibit B certified records dated February 6, 2020 of SPCC; Respondent's Exhibit C certified records dated December 15, 2020 of SPCC; Respondent's Exhibit D certified records dated February 6, 2020 of Genesee Pediatrics (Rochester Regional Health); Respondent's Exhibits E - H, pictures of the child going to or at visits with Father; and Respondent 2's Exhibit A Child Protective Records, including a compact disc , Attorney for the Child's Exhibit 1 Order of Dismissal of Paternity Petition entered May 9, 2016. The Court took judicial notice of Father's paternity petition filed October 14, 2015 in connection with the Dismissal of his Paternity Petition.
The Court gave the statements in the records the appropriate weight (including no weight when appropriate).
Child Tina C. (DOB: XX/XX/2015)
Tina, now seven, was only nine weeks old when she began living with Grandmother. Tina has always been healthy and active, meeting all of her milestones and having routine well child visits. This year she began the second grade at Village Elementary. She has no special needs.
Petitioner-Father Joseph S. (DOB: XX/XX/1967)
Father Joseph S. has five children who he testified are "grown and moved on." He was not present when Tina was born. In 2015 he filed but withdrew a paternity petition because he wanted to confirm through genetic marker testing first that he was Tina's biological father. In 2016 he filed a second paternity petition and paternity thereafter was established. Subsequently he sought visitation, and later amended his petition to seek sole custody of Tina.
Father testified he was wrongly incarcerated in 2018 after Mother alleged he raped her in the presence of Tina and released only after the grand jury no billed the case. Father admits in 2019 he was convicted of driving while intoxicated, sentenced to probation for three years and had his license suspended . Since the onset of trial Father has changed residences and jobs. Originally he lived with his brother and had a bedroom for Tina. He has since downsized to a one bedroom apartment and lives alone. Father asserts he owns a house in the City of Rochester which he hopes to renovate. Father was employed as a machinist at Ingleside Machine Company, making $15.50 per hour. Now he is employed by Flower City, a custodial agency. Father took classes but did not finish his degree at Monroe Community College.
It is unknown whether his license is reinstated.
Respondent-Maternal Grandmother Tina W. (DOB: XX/XX/1973)
Grandmother is the sole caretaker of the subject child. She lives with her husband Aleon W., her son Noah, her granddaughter Sayionna C., her step- daughter Brielle M. and, when feasible, with Mother. Grandmother's son Joseph C. and Chelsea H. also lived in the house before their own son was born. Grandmother and her husband own a local bakery and deli which opened in April 2021. Grandmother previously worked as a registered nurse.
Grandmother schedules and takes Tina to all her doctors' appointments, taught Tina to walk, fed her, bathed her, bought her clothes and provided for daycare . At the onset of trial, she had recently returned from a five day vacation to Disney World with Saiyonna, Tina and Noah and their maternal great aunt Keisha. She has also taken the children to the King's Dominion Amusement park in Virginia. Grandmother employs time out techniques to discipline Tina. When Mother is incarcerated, Grandmother pays Mother's telephone bill to allow Mother to check on her two girls daily.
Grandmother paid for Tina's private preschool which the child attended for three days a week when she was 2 and 3 years old at a cost of $150 per week.
Respondent-Mother Storm C. (DOB: XX/XX/1995)
Storm C. has a history of sporadic incarceration, but when freed she lives with her extended family at Grandmother's house. As to extraordinary circumstances, Storm testified that Grandmother is the primary caretaker of Tina and it makes her happy and proud that both her girls enjoy such good care. Grandmother testified that while Storm only lived with them a short while, she helped bathe Tina, feed her and change her diapers. Mother has a nontraditional relationship with Tina. She is not now, nor ever has been, Tina's primary caregiver.
Visits
Father has experienced several forms of visitation: supervised public place visits, which expanded over time to monitored visits including a monthly overnight visit at his sister's house, theraputic visits at SPCC, and supervised visits at SPCC . He is frustrated with restrictions on his time with Tina, however, his own poor judgment has impeded expansion of his visits.
Due to COVID-19, some visits were reduced to telephone calls.
One egregious example of his poor judgment is when he kept Tina for two or three days instead of returning her at the end of a visit in Summer 2017. He admitted he violated this Court's order and that Grandmother only retrieved the child with police intervention. Grandmother testified that when Father withheld the child she complied with Father's strange demand that she repeat, "Mr. S., Tina is your daughter, not my daughter." Father acknowledged he released Tina to Grandmother at night on Jefferson Avenue in the City of Rochester. Grandmother testified at approximately 10:30 p.m. a tearful Tina was returned to her. Father showed no empathy for how Tina might be afraid and confused by this incident, and he gave no heed to Grandmother's genuine concern.
Father admitted he kept Tina on a second occasion testifying "I didn't bring her back because she was digging in her private area, she kept digging in her private area." Father did not take Tina to the hospital that day. "[S]omething stopped us from going. I'm not sure what happened, I think it was something, my sister's car or something...." He recalled taking Tina to the emergency room the next day, only to learn that Tina's lack of hygiene was suspect. Grandmother brought the child to the Bivona Child Advocacy Center and the REACH Clinic after this incident and no follow up was recommended.
Bivona Child Advocacy Center provides comprehensive services for children who have experienced abuse in their families. It provides a child advocacy centered model of services: partnering in one location with various service providers; including law enforcement, child protective services, victim advocacy and health services.
REACH is a part of UR/Strong Memorial Hospital and is a referral and evaluation service located within the Bivona Child Advocacy Center to care for children who may have been physically or sexually abused.
Father bristled at complying with a prior Family Court Order by the Honorable Fatimat O. Reid, for theraputic visitation at SPCC. He opposed counseling because in his opinion "he and Tina had no problems, all of his problems were with Grandmother." Father "believe(s) these people already got a narrative of me by - - somebody told them something and so now they going to make me into somebody." Father and SPCC agreed to end theraputic counseling after several sessions.
When she was younger Tina's toileting was a concern because Father insisted on assisting her during visits, even after she could independently use the toilet. Father resents the rules SPCC imposed on his visits, such as leaving the door open when the child uses the bathroom, not allowing the child to sit in his lap, and no gift giving.
Supervisor Chelsea H. witnessed a winter time exchange at the Public Safety Building. Father dropped Tina off without shoes, socks, a coat, a hat or gloves, dressed only in a T-shirt and pants. Father had everything else in his hands and sadly dropped Tina while he tried to dress her.
Finally, Father admitted to being the subject of an indicated report by Child Protective Services (see Respondent 2, Exhibit A, Substantiated Report of Caseworker dated 10/16/2020) for inappropriate sexual contact of Tina . The report centers on a summer visit with Tina at a local beach. Father was indicated for touching the five year old's vagina while she was changing out of her swimsuit .
Father is appealing the indicated report.
Father allowed Tina to swim at the beach topless during this visit which is depicted in Respondent's Exhibits F, G and H.
Grandmother has an address confidentiality order and she provides transportation for visits. Father testified that Grandmother will often say no to an activity because "she wasn't going to pay no money for gas and that it was too far...." At first Grandmother would not bring Tina to the bounce house on Ridge Road, because it was too far, but she eventually relented.
Although Father filed violation petitions against Grandmother it was Father's lack of engagement and attendance which caused SPCC to put visits on hold . Over the years Grandmother also missed visits usually for illness, and appointments but overall was reliable, ensuring Father's access to Tina. Father, however, did credibly testify that once he observed Grandmother driving without Tina being secured in her car seat.
The Court reinstated visits at SPCC.
Still Father actively participates in his supervised visits with Tina. For example, he and Tina ran around squirting each other with water guns that he brought to a visit. He often brought Tina to playgrounds engaging her in play. The Court received pictures in evidence showing Tina with a big smile at visits. More compelling, a video captured in a Walmart parking lot, Petitioner's Exhibit 16, shows Tina running to Father, when she unexpectedly saw him leaving the store, despite Grandmother's cancellation of Father's visit earlier that day.
Acrimonious Relationship
The rancor between Father and Grandmother is apparent. Father claims everyone is "one hundred percent lying" about him. He would only allow Grandmother to have access to Tina if it was "a healthy relationship." He said "'[t]he welfare was possibly sending money in [Grandmother's] name, so how [did he know] that [Grandmother] wasn't taking the money for this or that . Father claims that Grandmother "terrorizes" his daughter and during visits "tr[ies] to make [him] become emotional and do something so she can come back up in here [to court]." Father testified that Grandmother further encourages Tina to call him Joe S. instead of father. Father not only opposes a joint custody order with Grandmother but refuses to interact with Grandmother because "that's not the way it works in [the] United States." He firmly stated "I'm not giving Ms. W. any rights over my child. Why would I do that?"
Father has never paid child support for Tina.
Still Grandmother testified she encourages Tina's relationship with Father, emphasizing that Tina should have "a good time" with Father because "they need to know each other." Grandmother has provided transportation to all visitation exchanges. When Father participated in both theraputic visitation and supervised visitation with Tina at SPCC, Grandmother waited in the designated waiting area during visits.
Child's Relationship with Relatives
Tina has formed strong bonds with her maternal family. Grandmother resides with her husband, Allion W. (DOB: XX/XX/1962), her sister Saiyonna (biological half sibling (DOB: XX/XX/2014), her uncle Noah C. (DOB:XX/XX/2011), her step daughter, Brielle M. (DOB: XX/XX/2006) and sporadically (when not incarcerated) Mother. Other members of Tina's extended family have lived at Grandmother's home over the years, but only Brielle M. poses a potential risk to Tina. Grandmother discovered in 2020 when Brielle was fourteen that she sexually abused Saiyonna and Noah. Tina was not a victim of Brielle's abuse. Grandmother alerted Child Protective Services. A safety plan was devised and has been adhered to by the family.
Tina and her sister Saiyonna share the same wake up and bedtime. Together they play dress-up, take tumbling classes, play soccer, sing and pretend to cook. They enjoy competing with each other, for example, by performing ballet pirouettes to see who can outlast the other, jumping rope or doing push ups.
Tina and her young uncle Noah, used to play with blocks and Legos together. Now they mainly ride bikes or play soccer outdoors. Together they have made stuffed animals at "Build a Bear," enjoyed the Strong Museum of Play and attended G - rated movies.
Lexis, Tina's young aunt (less than ten years old) does not live in Grandmother's home but comes over daily. She often eats meals with Tina.
Joseph C. (DOB: XX/XX/1998), Tina's adult uncle and his now estranged wife, Chelsea H. (DOB:XX/XX/1998), have lived on and off at Grandmother's home. Joseph is Tina's "exercise buddy" and treats her to McDonald's. Uncle Joseph and Chelsea have supervised Father's visits with Tina. They are the parents of a newborn, Jonathan. Grandmother provided daycare to Jonathan but that ended, since his parents have separated and live outside of Rochester.
Chelsea H. has known Tina since Tina was two years old. Chelsea lived at Grandmother's home with Joseph C. before their child Jonathan was born. While in residence, Chelsea did Tina's hair, helped to bathe Tina, helped Tina with her homework and tutored her in reading.
Father's Sole Custody Claim
Father seeks sole custody without any realistic plan. Father testified his friend Charlene will provide daycare for Tina, yet he did not know Charlene's last name, nor her exact address. Instead he described Charlene as staying on the corner of Goodman and another street.
Father favors Tina having a safe relationship with her Mother again without any feasible plan. While he would allow Mother to visit Tina as they mutually agree, he is not open to allowing Tina to maintain a relationship with her tight-knit maternal family. His only plan is to allow Tina to see her sister Saiyonna when Mother visits, yet Mother is currently incarcerated. Father's plan for sibling visitation is fanciful at best.
The Attorney for the Child
Essentially Tina has been in the sole care and custody of Grandmother for her entire life and, according to her attorney, Tina is very happy with this arrangement and is thriving (see Matter of McDermott v Bale, 94 A.D.3d 1542, 1543 [4th Dept 2012], quoting Family Court Act § 241 [the purpose of an attorney for the children is "to help protect their interests and to help them express their wishes to the court"]). Although a child's wishes are not determinative (see Matter of Anthony C. v Kristine Z., 38 A.D.3d 1317 [4th Dept 2007]; Matter of Casolari v Zambuto, 1 A.D.3d 1031 [4th Dept 2003]; Matter of Hughes v Wiegman, 150 A.D.2d 449, 450 [2d Dept 1989]); "they are entitled to great weight, particularly where [the child's] age and maturity would make [her] input particularly meaningful" (Matter of Stevenson v Stevenson, 70 A.D.3d 1515 [4th Dept 2010], lv denied 14 N.Y.3d 712 [2010] but cf Braga v Bell, 151 A.D.3d 1924 [4th Dept 2017]).
Tina is now seven years old and the Court has considered what the Attorney for the Child has advocated on her behalf, given her age and maturity. A provision allowing a child to decide when he sees a parent "tends unnecessarily to defeat the right of visitation" (Casdari, 1 A.D.3d at 1031 [citations omitted]), thus "the wishes of [a child] with respect to contact with [a parent] is not controlling" (Anthony C. 38 A.D.3d at 1318). There was no request for an in camera (possibly due to COVID restrictions that limit access to the Hall of Justice). The Court, thus, did not hold a Lincoln proceeding (see Lincoln v Lincoln, 24 N.Y.2d 270 [1969] ; Family Court Act § 664).
Extraordinary Circumstances
The trial was bifurcated. After hearing the testimony of Grandmother, Mother and Father on September 12, 2019, the Court found Grandmother established extraordinary circumstances. As between a parent and a non-parent, the parent has a superior right to custody that cannot be denied unless the non-parent established that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness or other like extraordinary circumstances (Matter of Infant L., 61 N.Y.2d 420 [1984]; Matter of Bennett v Jeffreys, 40 N.Y.2d 543 [1976]; Matter of Vincent A.B., v Karen T., 30 A.D.3d 100 [4th Dept 2006], lv denied 7 N.Y.3d at 711 [2006]). "The nonparent has the burden of establishing that extraordinary circumstances exist even where, as here, the prior order granting custody of the child to the nonparent was made upon consent of the parties" (Matter of McNeil v Deering, 120 A.D.3d 1581, 1582 [4th Dept 2014], internal quotations omitted, and see Matter of Ramos v Ramos, 75 A.D.3d 1008 [3d Dept 2010] [the existence of a prior stipulated order is not sufficient to demonstrate extraordinary circumstances]). Domestic Relations Law §72 addresses grandparent visitation and custody. Domestic Relations Law §72(1) provides that a grandparent of a child with two living parents has standing to seek visitation only if she can establish circumstances in which equity would see fit to intervene (see Emanuel S. v Joseph E., 78 N.Y.2d 178 [1991]). Although circumstances under which "equity would see fit to intervene" have not been sharply defined, the Court considered both (1) the nature and extent of the grandparent-grandchild relationship (see Matter of Varney v McKee, 44 A.D.3d 1178 [3rd Dept 2007] [sufficient evidence evinced a relationship between petitioner-grandparent and the child "deserving the court's intervention"]); and (2) "the nature and basis of the parents' objection to visitation" (Matter of Lynda D. v Stacy C., 37 A.D.3d 1151 [4th Dept 2007], citing Matter of Follum v Follum, 302 A.D.2d 861 [4th Dept 2003], quoting Emanual S., 78 N.Y.2d 178, 182). While the equitable circumstances provision of the domestic relations statute is not intended to allow automatic standing to seek visitation (see Wilson v McGlinchey, 2 N.Y.3d 375 [2004]), it is error to conclude that standing is permitted only in cases where there was a change in the status of the nuclear family, or interference with a derivative right, or some abdication of parental responsibility (see Emanual S., 78 N.Y.2d 178). In 2003 Domestic Relations Law §72 was amended to specifically address a grandparent's right to custody (see Suarez v Williams, 26 N.Y.3d 440 [2015]).
Disruption of custody for a prolonged period of time with consequential bonding of the child to a non-parent custodian, the biological parent's abdication of parental rights and responsibility and a child's potentially poor relationship with a biological parent could constitute extraordinary circumstances (Matter of Banks v Banks, 285 A.D.2d 686 [3d Dept 2001]; Vincent A.B., 30 A.D.3d 1101). A period of separation during which a petitioner is trying to regain custody is entitled to some consideration, but is not necessarily pivotal (Matter of Cote v Brown, 299 A.D.2d 876 [4th Dept 2002]).
This Court is mindful that Father has not abdicated entirely his parental responsibility. Still Father voluntarily withdrew a paternity petition, as he was unsure of whether he was Tina's biological parent, and waited over a year to refile. While ultimately Father was not convicted, de facto his incarceration further extended his prolonged separation from Tina.
Tina was in the primary care of Grandmother for over 220 consecutive weeks. Grandmother established that equity sees fit to intervene because she took responsibility for meeting Tina's "physical, emotional, educational, and medical needs to such an extent that she provided the major parental functions" (Matter of Brown v Elfaiz, 191 A.D.3d 871 [2d Dept 2021]).
Change of Circumstances
"Although an existing order of custody and visitation that is based on the consent of the parties is entitled to less weight than a disposition after a plenary trial, [a] court may not modify such an order unless a sufficient change in circumstances since the time of the consent order has been established, and then only where a modification would be in the best interests of the child" (Matter of DeJesus v Gonzalez, 136 A.D.3d 1358, 1359 [4th Dept 2016]), lv denied 27 N.Y.3d 906 [2016] [internal quotation marks omitted]). The Court had reserved Father's rights as a result of his incarceration. The Court finds a change of circumstances because Father is no longer incarcerated and is gainfully employed. Tina would benefit from a safe, healthy relationship with Father and her paternal family.
Best interests
Factors courts have carved out to ascertain the best interests of a child, include (1) the quality of the child's home environment and that of the parent seeking custody; (2) the ability of each party to provide for the child's emotional and intellectual development; (3) the financial status and ability of each party to provide for the child; (4) the individual needs and expressed desires of the child as well as the need for a child to live with siblings; and (5) the continuity and stability of the existing custodial arrangement, including the relative fitness of the parents/grandparents and the length of time the present custodial arrangement has continued (Fox v Fox, 177 A.D.2d 209, 210 [4th Dept 1992]; see also Eschbach v Eschbach, 56 N.Y.2d 167, 172-173 [1982]). Further in determining the best interests of a child, a court must consider any "abduction, elopement or defiance of the legal process" (Robert T.F. v Rosemary F., 148 A.D.2d 449 [2d Dept 1989] citing Friederwitzer v Friederwitzer, 55 N.Y.2d 89, 94 [1982]) as well as the effects of domestic violence (Hendrickson v Hendrickson, 147 A.D.3d 1522 [4th Dept 2017]).
The Court must evaluate the totality of the circumstances, no one factor is determinative (Matter of Cross v Casewell, 113 A.D.3d 1107 [4th Dept 2014]). Weighing the factors on whole, the court finds the scale falls in favor of a joint custody arrangement between Mother and Grandmother with primary physical residency of Tina to Grandmother. Great deference is accorded to the determination of the trial court and will not be disturbed where it is supported by a sound and substantial basis in the record (see Matter of Aronica v Aronica, 151 A.D.3d 1605 [4th Dept 2017]). The Court has considered each of these factors in evaluating what custodial arrangement is in Tina's best interests.
Based on the totality of the evidence, the best interests of Tina warrant that Grandmother and Mother shall continue to enjoy joint custody of Tina with Grandmother continuing to enjoy primary physical residency and final decision making. Father shall have designated periods of supervised visitation. The Court finds the parties cannot act together. Grandmother and Father's acrimonious relationship renders them unable to communicate in a civil manner (see generally Hill v Trojner, 137 A.D.3d 1671 [4th Dept 2016]).
This Court thus must devise an alternative visitation plan mindful of its responsibility to ensure Father's entitlement to "regular and meaningful" access to his child (Matter of Kargoe v Mitchell, 12 A.D.3d 978 [3d Dept 2004], lv dismissed 4 N.Y.3d 794 [2005]; Carl J.B., 186 A.D.2d 736). A child's best interests are protected best by allowing the development of the fullest possible healthy relationship with both parents, or here, with both parents and Grandmother (see Nimkoff v Nimkoff, 18 A.D.3d 344 [1st Dept 2005] [Family Court erred in not beginning overnight visitation between father and the children where so recommended by a court-appointed forensic psychologist and by instead focusing on father's demeanor in the courtroom]). While it would not be in Tina's best interest to uproot her from her Grandmother's home, a set schedule of supervised visitation will strengthen her relationship with Father. Success at Father's fair hearing to overturn his indicated report shall constitute a change of circumstances, allowing him to repetition the Court.
THE COURT HAVING SEARCHED THE STATEWIDE REGISTRY OF ORDERS OF PROTECTION, THE SEX OFFENDER REGISTRY AND THE FAMILY COURT CHILD PROTECTIVE RECORDS, AND HAVING NOTIFIED THE PARTIES AND THE ATTORNEYS OF THE RESULTS OF THESE SEARCHES AND THE COURT HAVING CONSIDERED AND RELIED UPON THE SAME:
NOW, THEREFORE, it is
ORDERED and ADJUDGED that Grandmother has proven extraordinary circumstances; and it is further
ORDERED that the Court finds both a change in circumstances exist and it is in the best interests of Tina C. (DOB: XX/XX/2015) that Grandmother and Mother shall continue to share joint custody of Tina; and it is further
ORDERED that Grandmother shall continue to have primary physical residency of Tina with final decision making authority; and it is further
ORDERED that Father's amended petition for sole custody is denied; and it is further
ORDERED that Father's violation petitions are denied; and it is further
ORDERED that Father shall continue supervised/continuous monitored visits with Tina at the Society for the Protection and Care of Children (SPCC) until November 6, 2022 or until such time as Grandmother and Father can agree upon an appropriate supervisor (which approval shall not be unreasonably withheld); and it is further
ORDERED that after November 6, 2022, Father's friend Theresa J. or any other individual agreed upon between Father and Grandmother (which approval shall not be unreasonably withheld), shall supervise visits; and it is further
ORDERED that after November 6, 2022, Father shall enjoy the Supervised Exchange Visitation Program at SPCC for supervised visits on Saturdays one week and on Sundays the following week (except for the first Saturday/Sunday weekend of the month which shall be Grandmother's full weekend with the child); and it is further
ORDERED that Father shall enjoy four hours of supervised visitation from 10 a.m. until 2 p.m. on every other Saturday and from 2 p.m. until 6 p.m. on every other Sunday; while Grandmother shall have a full weekend with Tina on the first Saturday/Sunday weekend of each month; and it is further
ORDERED that Father shall be present and supervised for the entirety of his visitation time with Tina; and it is further
ORDERED that Grandmother, Mother and Father shall each have independent access to Tina's schools, teachers and medical and counseling providers and may receive information regarding Tina directly from the providers; and it is further
ORDERED that the right to independent access does not include Father's right to attend medical visits with Tina; and it is further
ORDERED that all parties shall be allowed to attend any important events in Tina's life including, educational, extracurricular, social and religious, parent-teacher conferences or other school conferences; and it is further
ORDERED that all parties transporting Tina by car/vehicle shall have a valid license and Tina shall be secured in an appropriate car seat; and it is further
ORDERED that the following Holiday/Special Day Visitation schedule for Father shall supersede his regular residency schedule, and the exchanges for these supervised visits shall occur at the Public Safety Building:
• Thanksgiving Day 2022 from noon until 2 p.m.;
• Christmas Day 2022 from noon until 2 p.m;
• Beginning in 2023, supervised visit on Thanksgiving Day shall be from 11:45 a.m. until 3:00 p.m.;
• Beginning in 2023, supervised visit on Christmas Day shall be from 1 p.m. until 4 p.m.; and it is further
ORDERED that Mother shall enjoy parenting time as agreed to with Grandmother; and it is further
ORDERED that Grandmother, Mother and/or Father shall not use or be under the influence of illegal drugs, marijuana or alcohol in the presence of Tina; and it is further
ORDERED that no party shall use corporal punishment on Tina, nor shall they allow any third party to use corporal punishment upon her; and it is further
ORDERED that neither Grandmother, Mother nor Father shall speak disparagingly about another party in the presence of Tina; and it is further
ORDERED that Grandmother, Mother and Father shall have the right to communicate with Tina by telephone, text, Skype or Facetime or such similar application, with reasonable frequency, at reasonable times and for a reasonable period of time, and the parent/grandparent having Tina shall not interfere with that communication. That Tina shall always be allowed to communicate with either parent or Grandmother by telephone, text, Skype or Facetime or such similar application, at any reasonable time; and it is further
ORDERED that neither Grandmother, Mother nor Father shall permanently relocate Tina outside of Monroe County without the expressed written, notarized consent of the other parties, and/or an order of a Court of competent jurisdiction; and it is further
ORDERED that Grandmother shall refer to Father as Father, Dad or Daddy only in the presence of the child, not as "Joseph S.;" and it is further
ORDERED that each parent and Grandmother shall abide by the following Children's Bill of Rights:
[1] The right not to be asked to choose sides between their parents and/or grandparents.
[2] The right not to be told of the legal proceedings between the parties.
[3] The right not to be told bad things about the other parties' personality or character.
[4] The right to privacy when talking to either parent and/or grandparent on the telephone;
[5] The right not to be cross examined by one parent and/or grandparent after spending time with the other party.
[6] The right not to be asked to be a messenger from one party to the other party.
[7] The right not to be asked by one party to tell the other party untruths.
[8] The right not to be used as a confidant regarding adult matters.
[9] The right to express feelings, whatever those feelings may be.
[10] The right to choose not to express certain feelings.
[11] The right to be protected from parental/grandparent warfare.
[12] The right not to be made to feel guilty from loving both parents and grandparents; and it is further
ORDERED that success at Father's fair hearing to overturn his indicated report shall constitute a sufficient change of circumstances, permitting him to repetition the Court; and it is further
ORDERED that this Order shall supersede all prior orders of custody and visitation.
Dated this 20th day of September, 2022 at Rochester, New York.
PURSUANT TO § 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF THE RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR ATTORNEY FOR THE CHILDREN UPON THE APPELLANT, WHICHEVER IS EARLIEST.