Opinion
File No. 000000
02-02-2022
In the Matter of a Proceeding Under Article 6 of the Family Court Act, K.A., Petitioner, v. N.Q., Respondent.
Crystal Pannell, Esq., Attorney for Petitioner, K.A. Harry Burstein, Esq., Attorney for Respondent, N.Q. Megan Wooley, Esq., Attorney for Child.
Crystal Pannell, Esq., Attorney for Petitioner, K.A.
Harry Burstein, Esq., Attorney for Respondent, N.Q.
Megan Wooley, Esq., Attorney for Child.
Conrad D. Singer, J.
The following papers were read on this Motion:
Petitioner's Order to Show Cause and Supporting Affirmation with Exhibits 1
Respondent's Opposition to Petitioner's Emergency Order to Show Cause and Exhibits 2
The petitioner father, K.A. ("petitioner" or "father") in this Article 6 proceeding has moved by Order to Show Cause, filed in the Supreme Court of the State of New York, County of Nassau, on December 9, 2021, for an Order which: 1) awards the father temporary sole legal and sole residential custody of the parties' children, C.A. [DOB 0/00/0000] and L.A. [DOB 0/0/0000]; 2) directs the respondent mother, N.Q. ["respondent" or "mother"], to enroll in parenting classes; and 3) directs the respondent to enroll in anger management classes; and 4) upon completion of a court-ordered program, award the parties joint residential and joint legal custody of the parties' two minor children; and 5) awards the father an Order of Protection against the mother. The mother filed papers opposing the father's motion by Order to Show Cause. The father's motion is determined as set forth below:
The parties have never been married. On or about December 6, 2021, the father filed a petition in the Supreme Court of the State of New York, County of Nassau, for temporary custody of the parties' children pursuant to Article 6 of the Family Court Act and a Temporary Stay Away Order of Protection, pursuant to Article 8 of the Family Court Act, against the mother and in favor of the petitioner and the parties' children. The father affirmed in his Petition that he is not seeking a permanent change in custody; he is asking to be awarded temporary custody until after the mother enrolls in programs to help her deal with her anger and violent tendencies, following which he would "welcome a return" to the parties' prior 50/50 custody arrangement.
He subsequently moved, by Emergency Order to Show Cause, for an Order which: 1) Awards him temporary sole legal and sole residential custody of the parties' children; 2) Directs the mother to enroll in parenting classes; 3) Directs the mother to enroll in anger management classes; 4) Upon completion of a court-ordered program, awards the parties joint residential and legal custody of the parties' children; and 5) Awards the father an Order of Protection against the mother.
The Order to Show Cause was signed by Hon. Gary F. Knobel, JSC, was made returnable December 14, 2021, and granted the petitioner the following interim relief: 1) awarded the father temporary legal and residential custody of the parties' children, pending the hearing of his motion; 2) ordered that the children shall not be removed or relocated outside of the County of Nassau, pending the hearing on the father's motion; 3) ordered that the father and the parties' children were awarded a Temporary Order of Protection ["TOP"], requiring the mother to, inter alia , comply with the following:
"Stay away and refrain from: [i] Assaulting, stalking, harassment, aggravated harassment, menacing, reckless endangerment, strangulation, criminal obstruction of breathing or circulation, disorderly conduct, criminal mischief, sexual abuse, sexual misconduct, forcible touching, intimidation, threats, identity theft, grand larceny, coercion or any criminal offense against" the father and both of the parties' children. (Emergency Order to Show Cause , dated December 9, 2021).
The father's motion includes the supporting affirmation of his counsel, in which counsel asserts that emergency relief is needed because the mother is "engaging in erratic and volatile behavior that negatively impacts the children" and "demonstrates poor judgment" pertaining to the parties' children, including her intention to relocate, in the middle of the school year, without informing the father of their new address. (Affirmation of Crystal S. Pannell , Esq. , dated December 3, 2020 ["Pannell Aff. in Support"], ¶ 4).
The mother's opposition to the father's motion consists of her Affidavit in Opposition to Emergency Order to Show Cause, in which she attests that she and the father have never been married and, therefore, none of the relief sought in the father's Petition is ancillary to any divorce action. (Affidavit in Opposition to Emergency Order to Show Cause by N.Q. , dated December 13, 2020 ["Q. Aff. in Opp."], ¶ 2). The mother further asserts that the father failed to inform the Supreme Court that the parties were already involved in a Family Court proceeding that is pending in the Nassau County Family Court, which she had filed on December 6, 2021 [the father's Order to Show Cause was signed in the Supreme Court on December 9, 2021]. (Q. Aff. in Opp. , ¶ 3). She further attests that on December 6, 2021, the Family Court granted her a TOP in her favor and against the father, and that the Court also appointed an Attorney for the Children ["AFC"]. (Q. Aff. in Opp. , ¶¶ 3 and 4). She requests that the father's case be transferred to the Family Court.
She attests that the father has threatened harm to her, and that he previously cut up a dead mouse and left it by her slipper. (Q. Aff. in Opp. , ¶ 7). She attests that the parties have a long history of acrimony and differing parenting styles, that they have different religious and cultural beliefs, and she denies that she improperly disciplines their children. (Q. Aff. in Opp. , ¶ 8). She denies engaging in violent behavior and asserts that the father has a long history of engaging in physical violence towards her. (Q. Aff. in Opp. , ¶ 10). She further attests that she does not intend to leave New York State with the parties' children. (Q. Aff. in Opp. , ¶ 14). She states that she is currently unemployed and that while she prefers to stay in New York, she is amenable to working in another state if that is not possible. (Q. Aff. in Opp. , ¶ 14). She affirms that she would never unilaterally remove the parties' children from New York state.
She further affirms that due to her not understanding that the father had obtained a stay-away TOP against her, she was required to spend the night in jail after she picked up one of the sons from school and called the father to ask him to give her the other son so that both sons could be interviewed by the AFC. (Q. Aff. in Opp. , ¶ 18). She attests that the father's application to the Supreme Court was designed to get the mother removed from her home and that once the children's AFC reports to the Family Court following her interview with them, it will become apparent and will support that she is a caring and fit mother. (Q. Aff. in Opp. , ¶ 19). The father's petition for custody of the parties' two children was subsequently referred to the Family Court pursuant to Supreme Court Order dated December 14, 2021. Pursuant thereto, the stay-away TOP that the father had obtained against the mother in favor of him and their children expired on December 15, 2021.
LEGAL CONCLUSIONS
An order affecting or modifying custody, even temporarily, must be based on the best interests of the child, under the totality of the circumstances. (See Matter of Street v. Palmer , 187 AD3d 1197, 1198 [2d Dept 2020] ; see also , Matter of Sullivan v. Moore , 95 AD3d 1223, 1223 [2d Dept 2012] ). "In any action concerning custody or parental access where domestic violence is alleged, the court must consider the effect of such domestic violence upon the best interest[s] of the child[ren], together with other factors and circumstances as the court deems relevant in making an award of custody". (Matter of Poltorak v. Poltorak , 167 AD3d 903, 905 [2d Dept 2018] ).
"The general rule is that, while temporary custody may be granted without a hearing, ‘where sufficient facts are shown by uncontroverted affidavits, it is error as a matter of law to make an order respecting custody, even in the pendente lite context , based on controverted allegations without having had the benefit of a full hearing". (Matter of Garcia v. Ramos , 79 AD3d 872, 873 [2d Dept 2010] [emphasis supplied]; see also , Matter of Poltorak , 167 AD3d at 905-906 ). In this case, the parties’ affidavits assert competing claims of physical violence by the other parent [see Pannell Aff. in Support , ¶¶ 4 and 12, and Q. Aff. in Opp. , ¶ 10], such that it would be improper for this Court to render a temporary custody determination without a full hearing.
Moreover, this Court does not possess sufficient information to render a temporary custody determination without the benefit of a hearing. Unlike cases where a determination may be made without a hearing as to the children's best interests, the Court is relatively unfamiliar with these parties, as they have only both appeared once before it in connection with the mother's family offense petition; likewise, the Attorney for the Children was only recently appointed to represent the children and the Court is not yet aware of her clients' position with respect to their father's petition for temporary custody; the Court has never met the subject children; and the written COI report returned to the Court in connection with the mother's family offense petition was "unfounded". Under these circumstances, the Court does not possess adequate relevant information to enable it to make an informed and provident determination as to the children's best interests. (compare with Matter of Perez v. Sepulveda , 51 AD3d 673, 673 [2d Dept 2008] ).
The father's motion is therefore denied to the extent it requests temporary sole residential and sole legal custody of the parties' children, and to the extent it seeks to compel the mother to attend certain programs and classes and then revert to joint custody. However, based on the mother's discussion of possibly seeking employment out of state, the father's motion is granted to the extent that it seeks an order prohibiting either party from relocating the residence of the parties' children outside of the State of New York. As will be ordered below, neither party shall relocate the residence of the parties' children outside of the State of New York without further order of this Court.
The father has also requested a TOP on his behalf and on behalf of their children. Family Court Act Section 655 authorizes this Court to issue a TOP upon the filing of a custody petition, "for good cause shown". ( FCA § 655 ). Such TOP "may contain any of the provisions authorized on the making of an order of protection under [ FCA § 656 ]", including, inter alia , that the respondent "refrain from committing a family offense or any criminal offense against the child or against the other parent or against any person to whom custody of the child is awarded, or from harassing, intimidating or threatening such persons"; and "refrain from acts of commission or omission that create an unreasonable risk to the health, safety or welfare of a child". ( FCA § 656[c] and [e] ).
In this case, the Court has reviewed both parties' motion paper submissions, and notes that the father only asserts generalized and conclusory allegations that the mother "committed an assault" against him and the parties' children, and that the mother has "a history of domestic violence and increased aggression" against the parties. (Pannell Aff. in Support , ¶¶ 12 and 13). However, the mother acknowledged that the parties have a "long history of acrimony" and, considering the Court's relative lack of familiarity with the parties, and considering that the Court has not yet had an opportunity to receive a report from the AFC, the Court finds good cause to issue a TOP against the mother, which requires her to: refrain from committing a family offense, or any criminal offense, threats, or intimidation against the parties' two children, C.A. [DOB 00/00/0000] and L.A. [DOB 00/00/0000], and requires her to refrain from any hazardous acts that create an unreasonable risk to the health, safety or welfare of the parties' two children, C.A. [DOB 00/00/0000] and L.A. [DOB 00/00/0000], and which will remain in force until and including June 6, 2022.
For the foregoing reasons, the father's motion is granted in part and denied in part, as set forth below.
Accordingly, it is hereby
ORDERED , that the petitioner father's motion (Motion No. 1) is DENIED to the extent that it requests a Temporary Order granting him sole legal custody and sole residential custody; and it is further,
ORDERED , that the petitioner father's motion (Motion No. 1) is GRANTED to the extent that neither party shall relocate the residence of the parties' children outside the state of New York without further order of this Court; and it is further,
ORDERED , that the petitioner father's motion (Motion No. 1) is GRANTED to the extent that there shall be a Temporary Order of Protection issued by the Clerk of the Court under Docket Numbers V-00000-21 and V-00000-21, against the mother and in favor of the parties' children, with the terms outlined above; and it is further,
ORDERED , that any other request for relief in the father's motion (Motion No. 1) not specifically addressed herein is deemed DENIED; and it is further,
ORDERED , that any prior temporary custody orders and/or prior temporary orders of protection issued under the father's custody petition, including any temporary orders issued by the Supreme Court, are hereby vacated.
This constitutes the Decision and Order of the Court.
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.