Opinion
Docket No. V-00896-19/23F
01-05-2024
In the Matter of an Article 6 Custody/Visitation Proceeding v. Nathan B. (Respondent, Petitioner). Kailey H. (Petitioner, Respondent),
Petitioner/Respondent, Kailey H, Andrew R. Petroski, Esq. appearing Respondent/Petitioner, Nathan B, John Cadore, Esq. appearing Attorney for the Child, Lisa A. Natoli, Esq. appearing
Unpublished Opinion
Petitioner/Respondent, Kailey H, Andrew R. Petroski, Esq. appearing
Respondent/Petitioner, Nathan B, John Cadore, Esq. appearing
Attorney for the Child, Lisa A. Natoli, Esq. appearing
Hon. Michael J. Genute, J.
On March 22, 2023, Kailey H filed a petition for Modification of Order of Visitation and Modification of Order of Custody regarding a prior order dated December 23, 2021; On July 3, 2023, Nathan B filed a petition for Modification of Order of Visitation and Modification of Order of Custody regarding a prior order dated December 23, 2021; and on July 17, 2023, Nathan B filed a petition for Violation of Order of Custody and Violation of Order of Visitation regarding a prior order dated December 23, 2021.
Background
Before the court are two petitions. The mother's petition, dated March 22, 2023, is one seeking relocation to Florida and asserts that she has many close family members in the area where she hopes to move, along with others also moving to the area. She adds that there are multiple employment positions to which she can apply with her background and experience, each at a significantly higher rate of pay than with her current employer. She further asserts in the petition that the father has failed to consistently exercise his in-person visits, among other cited reasons.
The father filed a petition on July 17, 2023, alleging that the mother denied visitation on July 9, 2023, further alleging that the mother lied about the reason for cancelling the visitation. The father previously filed a petition, dated June 9, 2023, alleging that he had stable housing with his supervisors and wanted additional visitation. That petition was dismissed on the Court's own motion for failing to allege any change of circumstances justifying a modification of visitation.
Following a fact-finding on August 14, 2023, the Court ordered a Lincoln hearing, which took place on August 30, 2023. Following both hearings, the mother filed an Order to Show Cause on September 7, 2023, seeking to re-open the hearing based upon new information that the father had failed to visit or communicate with the child since the original fact-finding on August 14, and that this was pertinent to the father's relationship with the child following post-petition evidence offered from the father suggesting that he had made attempts to improve himself and his relationship with the child. The Order to Show Cause was granted and the Court held an additional half-day of fact-finding on October 23, 2023.
On October 10, 2023, the father filed another petition, alleging that the mother denied the father visitation on multiple dates in the first week of October. Following the October 23 hearing, this petition was dismissed by the court.
The controlling Court Order, dated December 23, 2021, provides for the mother to have sole custody of the child, with the father to have two hours of supervised visitation per week "as the parties can agree and subject to the availability of the supervisors." The previous order, dated October 8, 2020 and noting the father's default, provided for the mother to have sole custody, with supervised visitation for the father to be worked out between a named third party and the mother.
Mother's March 22, 2023, relocation petition and evidence presented
Family Support
The mother, who openly but fairly struggled with her memory of specific dates and times, testified that the move to Florida would offer her more support from family. She particularly noted that she and the child have more of an emotional connection with her father (hereinafter, "grandfather") and brothers than her family members in New York. She also testified about the opportunity she and the child would have to reside with her grandmother until she could get herself financially settled. On cross-exam, the mother also acknowledged that she and the child had about the same amount of family members in New York as in Florida, adding that the child does not have any relationship with many of the father's relatives.
The maternal great-grandmother (hereinafter "grandmother"), having lived in Florida since May of 2021, testified most notably that she would have space at her residence in Florida for the mother and child to reside in for as long as they needed to get settled financially with a residence of their own. (see Pet Ex 1). In this regard, she explained that the mother and child would have their own bedroom and that the main bathroom would be theirs. She added that she would also be a resource for babysitting and related matters, noting that she often takes the grandfather's children to sports and school. The grandmother further explained that she and the grandfather have always been a strong support for the petitioner. The grandmother otherwise testified to seeing the child weekly when she resided in New York and to seeing him around five or six times since she moved.
On cross-exam, the grandmother acknowledged being diagnosed with cancer in 2014, but that she is now in complete remission. She denied ever facing criminal charges for serving alcohol to a minor. On cross-exam, the mother also denied that the maternal grandmother had any criminal history or of having any concerns with the safety of the child when in her presence, denying any history of poor decision making.
The grandfather, who resides with his wife and two children of 12 and 15 years of age, testified briefly about the child, commenting that he is a smart boy, who enjoys fishing, going to the beach, playing with power rangers, and has enjoyed going to Universal Studies. He added that his two older children have a strong bond with the child.
The grandfather explained his relationship with the child, testifying that he had frequent and sometimes daily contact with the child until he moved from New York. Now, he sees the child about five to ten times per year. The grandfather explained that he would likely see the child every day should the mother be permitted to relocate to Florida. He added that he would help the mother move and get settled, noting that it was his "best move ever." The grandfather further testified about his mother/the grandmother being in the area and being the mother's primary point of contact should the move be permitted. He added that there are a lot of cousins living in the general area, as well.
The grandfather further testified as to the education system in his county, explaining that there were seven pre-schools in the area in which the child could attend, adding that there is also a local charter school and daycare programs at the public schools. He continued that he is very involved in the schools, having also had occasion to attend board meetings. He further explained that his wife has also regularly been involved in the education system and has worked in the local schools. The grandfather opined that the school system is a lot better than that in New York, noting the progress of his 12-year old son since the move.
On cross-examination by the father's attorney, the grandfather denied being convicted of two DWI's, that he was ever convicted of any fraud-related crimes, that he has ever used illicit drugs, or of selling drugs to a named individual. He noted that he had a prescription for pain management following shoulder surgery, but that he never used the prescribed medication. The mother denied that she had any safety or other concerns with the grandfather.
For his part, the father acknowledged that the mother wants to relocate to have someone close in her family for her to lean on or if she needs some financial support "or whatever." He otherwise denied that the mother has been solely providing care for the child, asserting that other people around her have been assisting with such support.
Economic benefits
Currently, the mother testified that she resides in a house in Bainbridge, New York, where the child has his own room. She works as an office manager/administrative assistant approximately 22-28 hours per week, making $18/hour, though she hopes to make use of her EMT license, noting that she is a volunteer at a local fire department. The mother testified that she has been in contact with many potential employers in Florida. She has applied to hospitals, where she could apply her EMT license, which could be transferrable should she obtain a Florida driver's license. She noted that there are positions in marketing and sales at the business where the grandfather works, positions with the county and elsewhere, noting that the hours in these positions would offer full-time and more consistent employment at a higher rate of pay, noting that the hourly rates ranged from $18-24 per hour, with no state income tax. The mother also spoke about a promising opportunity at the grandfather's place of employment, explaining that she is familiar with others at the company from her attendance at work functions when accompanying the grandfather. She also noted that her current experience as an office manager will provide her requisite experience there and elsewhere.
On cross-examination from the father, the mother acknowledged that she was now pregnant, noting that she would plan to work while she was pregnant. She added that she would have maternity leave available with any job she would take. She further identified several different jobs in which she has inquired. Concerning the father of her current unborn child, the mother explained that he would likely follow her to Florida at later date.
The grandfather presented testimony that he manages a construction company of 29 people working for him, and that there were several positions within the company for which the mother could apply. He testified that he would be able to hire her at around $15/hour upon her move, and that most employees are making $20/hour, noting that there are quick pay raises for competent people. As for employment opportunities, the grandfather otherwise testified extensively about different employment opportunities that were available in the area, including positions working for the county.
Domestic Violence
The AFC elicited testimony concerning domestic violence between the parties from the grandfather, who testified that he was persistently called due to domestic disputes, at times involving police intervention. He explained that the parties would split up, with the mother and child moving in with the grandfather, and that the father would go long periods of time without seeing the child. Eventually, the parties permanently separated resulting in an order of protection against the father. The grandfather spoke about one incident where he intervened in 2019 where the police were called, testifying that the father would not allow the mother to leave the house, though the grandfather did not witness anything specific between the parties.
The mother corroborated the testimony of the grandfather regarding a specific domestic incident where the police were called, culminating with the mother and child leaving the residence to stay with the grandfather. On cross, the mother denied the presence of the paternal grandmother at the residence at the time of the particular incident. She otherwise testified that the child was less than six months old at the time of this incident, which resulted in a full stay-away order of protection ("OP") for two years. In this regard, the mother explained that the father violated the OP a few times, but mostly as a result of texts and phone calls he would make, adding that she was aware of only one time he was arrested as a result of such violations.
The mother testified that the incidents of domestic violence were limited to her being pushed around by the father. The mother also acknowledged having orders of protection against the father prior to the 2019 incident but noted that there were none in place at the time of the hearing. The mother further explained that she had sole custody from the order of October 13, 2020, with supervised visitation for the father to be worked out between the mother and a third party. This order was superseded by the standing order of December 29, 2021, providing for two hours of supervised visitation per week. The mother was unaware if the father ever completed a domestic violence or anger management program, though they were not required in any prior order.
Regarding the incident of domestic violence discussed by the mother and grandfather, the father denied the incident, testifying that he was screaming for the mother to get out of the house. On cross, he made it clear that he took no responsibility for the incident, adding that the order of protection was not warranted. On cross-exam from the AFC, the father acknowledged the finding by another judge that a family offense had occurred during the incident resulting in a 2-year stay away order of protection. That order of protection has since expired.
After the incident, the father conceded that he never engaged in any anger management or domestic violence program. He did testify to enrolling in a parenting class, which he did not complete due to the course closing down as a result of a lack of overall attendance.
Testimony of the father's substance abuse history and subsequent treatment
While the mother did not seem to feel the father had significant issues with drug and alcohol abuse, she did testify that he has always had an issue with alcohol and drug use, testifying that the supervised visitation began as a result of the father's use of alcohol, marijuana, and cocaine. She otherwise noted that the father's reputation for using drugs and alcohol has continued. However, she denied knowing of any situations where the father was ever intoxicated when visiting with the child, while also testifying that the incidents of domestic violence were precipitated by the father being under the influence. The mother denied knowing of any time that the father engaged in any substance abuse programs, noting that she first learned of the father's July 2023 engagement in such a program at the hearing.
On his direct case, the father introduced a witness who had become his sponsor for AA a few days prior to the hearing and immediately after the witness agreed to testify for the father. The witness testified that he knew the father for about a month and a half at the time of the hearing, confirmed that the father seemed "clean" as he was not showing up drunk for any meetings, but was otherwise unaware of the father's prior level of addiction.
The father proceeded to testify about some sporadic instances where he attended drug and alcohol counselling, noting that he enrolled in Delaware County Alcohol and Drug Abuse Services on July 13, just over a month before the hearing and that he began going to AA on July 6. On cross, the father acknowledged starting the AA/NA program after the mother's March relocation petition. He indicated that he was engaged with drug and alcohol counseling from April to July of 2021, but stopped attending because his therapist retired and it was a voluntary program for him at that point, confirming that he failed to complete the program. He otherwise explained that he never completed any program because he was never in trouble, so did not see the need. The father asserted that he stopped drinking and using marijuana during his time counselling over the summer of 2021. He subsequently added that he smokes marijuana to help him sleep, indicating that he is not a proponent of seeking a prescribed medication for the same.
Regarding his current involvement with AA, the father answered on cross that he does "not believe" he has a problem with alcohol and that he does not have any issue with narcotics, indicating that he was involved as a result of his marijuana use. He further explained that he was involved to better himself, appear better for his four-year-old son, and to show his commitment to sobriety.
On cross-exam by the AFC, the father acknowledged using alcohol in the past, but chose not to answer whether he has previously used narcotics, adding that if such allegations were correct that it would have been prior to 2018. The father proceeded to testify that his use of alcohol "could have been a problem." In further response to the AFC, the father noted that he was doing NA due to the allegations about his drug use.
On cross-examination, the father's sister (hereinafter "sister") acknowledged that the father has sometimes had an issue with alcohol use and was aware of the father's attendance at AA and NA, noting that it was just a precautionary measure for the father. She added that the father has never made admissions to her about any addictions.
The father's involvement in the child's life and supervision of the father's visits
The mother reiterated that, per the existing court order, the father is to have two hours per week of supervised visitation with the child. She explained that the father has exercised his visitation sporadically, with some stretches of consistent visits but at times going months without seeing the child. In fact, the mother created a chart to document the visits from January of 2020 through April of 2023, which was admitted into evidence via stipulation to better document the mother's testimony and for the sake of brevity in lieu of month by month testimony concerning visits for over three years. (s ee AFC Ex. 1). The mother added that the longest stretch without contact took place in the last year, where the father did not see the child for approximately three to four months.
The mother testified that when the father does exercise his visits, they typically last for 2 hours and most often occur on the weekends. Typically, the mother or supervisor tend to initiate contact to set up a visit, but sometimes the father will text, "what's the plan?". The mother admittedly does not reach out often to set up a visit, as she chooses to put to put the onus on the father to reach out. She denied that the father ever reaches out about the child between visits. The mother further explained that she has never denied phone calls or other electronic contact between the child and father and that she would be willing to set up weekly contact should she be permitted to relocate to Florida. She otherwise testified that she would be willing to set up and coordinate in-person visits between them should she ultimately be permitted to relocate.
The mother proceeded to explain that there were instances when the visits would be longer than two hours, due to an event taking place or to make up for a missed visit. The mother noted that she was generally agreeable to additional visits and that she tried to accommodate visits around the holidays. The mother further testified that the child is not familiar with much of the father's family, due to the father not having a relationship with many of them as a result of different disagreements he has had with them through the years.
In terms the supervision portion of the existing order, the mother acknowledging having several different supervisors throughout the years for various reasons. She noted that they have changed supervisors numerous times, sometimes because of the mother's concerns or trust issues with the supervisor, but mostly because the supervisors were uncomfortable with the father's behaviors or had a falling out with the father and did not wish to continue. There were also some instances where the logistics simply could not be worked out. The mother even tried supervising a couple of visits, but stopped due to the father making comments that made the mother feel uncomfortable. The mother tried bringing her boyfriend to the next visit, but statements made by the father led to an argument between the parties. According to the mother, the last visit the father exercised with the child was two or three months prior to the hearing.
Recently, the mother testified to using the father's sister, which had worked in the past. Most recently, the mother noted that there were communication issues between the mother and sister leading the mother to stop trusting the sister as a supervisor. The mother explained that other supervisors were offered, but she had concerns with one as a result of him not having custody of his own children, and others she would not agree to until meeting them, which inevitably would not take place.
Regarding the supervision aspect of the standing order, the mother would prefer that the visits remain supervised due to various problems that have arose, along with the fact that the father has failed to regularly exercise his visits. In this regard, she is unaware if the father ever completed any drug and alcohol programs or those that relate to domestic violence, anger management, or parenting. The mother also expressed concern with the different supervisors, including the father's stepmother, who no longer available as a supervisor. Should these concerns be addressed, the mother indicated that she would have a different perspective on unsupervised visitation.
The mother described a good supervisor as someone who is familiar with the child, familiar with the parties' history, would not take sides between the parties, but merely be a safety net for the child. She would also be comfortable if DSS recommended one.
The mother testified about the child's schooling to date, explaining that he has been enrolled in Headstart and is currently enrolled in pre-school. In this manner, the mother denied that the father has been involved in any parent/teachers' meetings or the like. Identifying the child's pediatrician, the mother explained that the father made the child's first couple appointments after birth, but none since, and that the father does not ask about the child's medical appointments. She further testified that the father has failed to ask about the child's schooling, except for maybe once or twice, to which the mother responded in kind.
On cross, the mother agreed that there would be a benefit to the child seeing his father, but commented that the father fails to exercise any consistency in his visitation. She also responded that the father has never asked about school activities or to be involved with such activities of the child.
For the father, the sister testified that she has known the mother since 2018, that she has a pretty good relationship with the child, adding that she has been more consistently in the child's life than the father. After testifying about the father's and mother's family members being mostly in New York, the sister testified that the mother had asked to make up a visit with the child over Memorial Day weekend in order to go to Florida to be with her grandmother, who was undergoing surgery.
The sister testified that she was unaware why the mother stopped agreeing to the sister being a designated supervisor. The sister subsequently noted that she had called Child Protective Services because of marks being on the child's back and that it was around this time that the mother stopped agreeing to her being a supervisor. On cross, the sister acknowledged that the father thought about keeping the child from the mother at that point. The sister added that the mother had denied her being a supervisor on past occasions, before permitting the sister to again supervise.
The sister denied that the father would go months without trying to exercise his visitation, noting that the father tried weekly to connect with a supervisor to schedule a visit, but that sometimes the supervisor was simply unavailable. The sister added that the father always asked for a visit, but that sometimes it was out of his hands and in the hands of a third party.
Most recently, the sister explained that the father moved out of their parents' residence and into the sister's residence approximately six (6) months prior to the hearing. With this arrangement, the sister explained that she contacted the mother about visitation, but the mother failed to respond. The sister further testified that she supervised about six (6) visits for the past year, noting that she supervised about six (6) visits the prior year, as well, but that the mother also declined the sister as a supervisor for a period of time the prior year.
The father explained that, despite having no petition pending before the court, he was looking for partial custody, more consistent visitation, and a more defined court order, noting that "to be totally honest", he did not want "his kid being 1300 miles away." Curiously, the father proceeded to note his request for alternate weekends, along with a Wednesday visit from 5:00 to 7:00 p.m.
The father claimed that the mother has alienated the child from the father, that the father has "begged" and offered money to see the child, and that he wants to be in the child's life. He further claimed that the mother ignores his request for virtual contact with the child. On cross by the AFC, the father acknowledged that the mother has occasionally agreed to longer visits than the minimum two hours provided for in the order.
Regarding the supervision aspect of the order, the father explained that the mother has regularly denied potential supervisors, adding that he has seen the child less than 20 times per year. On cross, the father acknowledged that the mother has worked with different supervisors, while also claiming that he was strong-armed by the mother into agreeing to a couple of them.
When the father was confronted with the schedule prepared by the mother, (see AFC Ex 1), the father acknowledged not seeing the child for long periods of time, believing that the longest stretch of time was about 3 months, adding "maybe... I couldn't tell you man." The father otherwise claimed that the calendar was inaccurate.
During cross examination by the AFC, the father testified that he has a strong relationship with the child, that the child loves his truck because it's loud and has music, and that the child has asked to stay with the father. Despite this statement, the father proceeded to claim that the mother has alienated him. When the AFC noted the contradiction in this statement, the father claimed that the mother has alienated the child from him in terms of "direct contact." The father was also asked about the language he used in his previously dismissed petition of June 9, 2023, where he asserted that he wanted to "be shown good faith that a relationship between (the child) an(d) (him) can be established and maintained." In response, the father explained that it was a "miswording" and that he does not proof-read everything.
On further cross by the AFC, the father acknowledged that he never filed a petition to modify visitation from the standing 2021 Order until after the mother filed her relocation petition. In further examination, the father denied that he had an anger or domestic violence problem, though appeared quite angry during the hearing, raising his voice and leaning forward towards the examining attorney during fair stretches of the cross.
Father's residence and financial circumstances and contributions
The mother testified that the father's housing circumstances have been inconsistent, acknowledging that he now resides with his sister but adding that he has bounced from his mother's to different family friends, but that she usually learns of such changes via court filings. She added that the father has never paid child support, which the mother testified was part of their agreement for the mother to have sole custody. Nevertheless, the father has never offered to help with the child financially, though sometimes the child will return from the occasional visit with the father with a toy or snack. The mother was otherwise unaware if the father was currently employed, having no knowledge of any employment since they separated.
The father's employer, a contractor, was called by the father, testifying that he knew the father for four to five months. The witness testified that the father was a good employee who worked approximately 40 hours per week.
The father disagreed with the mother about any child support agreement from a prior order, testifying that there was no agreement regarding child support. Instead, the father explained, he missed court on the day of the scheduled appearance, which resulted in the Order of October 8, 2020, providing the mother with sole custody. The father acknowledged that he had no excuse for having missed the court date, noting that it was due to his own negligence. He otherwise confirmed that he does not make support payments, indicating that he left a prior job he had at a car dealership due to an "unfair job situation." The father explained that he tries making financial contributions by getting stuff for the child, adding, "if he points at something and wants something he gets it; I do not tell him no." Ultimately, the father acknowledged that he has never provided the mother with any child support, explaining that he had no way to get her the money.
The father's July 17, 2023 violation petition and evidence presented
The father testified that he was living with his sister and offered that he had some visitation in the prior four to five months previous to the hearing, but that he had also been denied visitation on occasion. As to July 9, 2023, when the father alleges the mother denied his visitation, the father testified that he and his sister drove around videoing the lack of trees or powerlines down, which was the reason offered by the mother for cancelling the visitation. There were no such pictures or videos offered or received into evidence.
As to the allegations in the father's July 17, 2023 violation petition, the mother could not initially recall the specifics as to the cancellation, but noted that she was willing to reschedule, giving the father extra time. Eventually, she did explain that there were reports of downed trees and powerlines on the day in question, and that she also had a concern with a child in the stepmother's custody having impetigo. As a result, the mother and stepmother agreed to reschedule the visitation. She explained that this was never consummated because the father's stepmother was no longer willing to be used as a supervisor.
The mother testified that she would otherwise be willing to make up the time from the missed visit, noting that she never cancelled and refused an alternative visitation. The mother added that she has never denied a visitation where she and the father had agreed on a supervisor. Lastly, the mother acknowledged that she might owe a visit due to an agreed-up double visit that did not occur due to a loss of the supervisor. On cross, the mother continued to deny preventing the father from having visitation.
October 23, 2023 Hearing
Following the granted Order to Show Cause, the mother provided testimony that the father had one in-person visit with the child since the August 14 hearing, and that the visit took place on October 22, the day before court. The mother confirmed that nobody reached out for an in-person visit until the paternal grandmother reached out a few days before the October hearing. She denied that the father made any other requests for an in-person visit, testifying that the father made plans for approximately 3 or 4 virtual contacts with the child after the August hearing, which also was broken up by stretches of having no contact.
There was much testimony concerning the father's request for a virtual contact with the child on August 15, immediately following the August hearing, which had to be rescheduled a couple of times before it took place through the sister via an Ipad on August 18. The mother testified that the father did not reach out again to have contact with the child until around September 7, three weeks following the first virtual visit and being the date that she signed her affidavit related to her OTSC.
As to the father's October 10, 2023, violation petition, which was dismissed following testimony, the mother explained that there was supposed to be a phone or virtual visit on October 3, but that the sister reached out to reschedule for October 4. As the mother had an emergency medical situation on that day, it was rescheduled for October 5. This resulted in a Skype visit, consistent with what the father requested.
The mother otherwise testified that the father was never refused requested visitation, as she always offers alternative days or times if she is not available at the requested day and time. She further noted that the father missed the first virtual visitation they scheduled in August and was a half hour late to another virtual visit.
During the AFC cross examination, the mother testified that she provided school pictures, as requested by the father in early September. Since the August 14 hearing, the mother believed that the father had five (5) Facetime or virtual contacts with the child, along with the in-person visit the day before the hearing, with the longest time-period without any contact from the father being a couple of weeks. The mother explained that this was consistent with the father's visitation since their separation, reiterating that it was common to have two or more months without the father exercising any in-person visitation.
Regarding the in-person visit the father did exercise, the mother explained that it was the father's stepmother who reached out and supervised the visitation at her residence, noting that she supports the stepmother as a supervisor. The mother noted that there have been times when she has denied the paternal grandfather as a supervisor and instances where the father's stepmother has refused due to conflicts she has had with the father.
The mother otherwise testified that the father does not reach out to her when she is in Florida for virtual visits with the child, but that she would work with the father in doing so should her petition be granted.
The sister testified again for the father, generally confirming the mother's testimony, and adding that she and the mother had about a weeks-worth of correspondence before they set up the first virtual visit following the August court date. When asked if she felt that the father was entitled to any make-up visits, the sister replied, "I don't believe so."
On cross-exam, the sister confirmed that the father had to also reschedule some of the scheduled virtual contacts. The sister otherwise confirmed that the mother has been open to scheduling and rescheduling.
Regarding the allegation made in the mother's Order to Show Cause, the sister testified that the father is no longer living with her, effective October 1, because the father had an opportunity to live on his own and decided to take it, noting that he has been working since early in the 2023 year. She denied that the father moved due to any conflict with her, acknowledging that any conflicts they had were "regular sibling nonsense."
On the AFC's cross examination, the sister confirmed that the father never asked her to request an in person visit since the August 14 hearing. To the best of her recollection, the sister testified that the father had two (2) virtual contacts with the child since August, both of which she arranged at the father's request, noting that there may have been a third.
The father testified as to his new address and proceeded to testify that the mother ignored his attempts to have contact with the child for two weeks following the August hearing. He subsequently claimed that he had made weekly attempts to have contact with the child. He opined that the mother was ignoring him, because he represented that he was regularly asking his sister to make contact. The father claimed that the mother cancelled multiple scheduled visits in early October, seemingly denying that he ever had a contact with the child during the first week of that month. He proceeded to explain that the mother delayed in sending him pictures of the child's first day of school and that he was entitled to four (4) extra visits of at least two (2) hours each.
During the AFC's cross examination, the father again demonstrated notable anger and irritation at the questions, claiming there were more texts that were not shared in his petition or his response to the mother's Order to Show Cause. He again asserted that he was regularly asking his sister to contact the mother to arrange for contact with the child. When asked about a having a fixed schedule for his contacts with the child, he claimed this would not work because he did not feel that mother would oblige or cooperate. He did claim that it would be easier if he could contact the mother directly.
Analysis
Mother's March 22, 2023 Relocation Petition
"A custodial parent's proposed relocation provides the change in circumstances that is ordinarily required to modify an existing custody order." (Celinda JJ. v Adrian JJ., 157 N.Y.S.3d 144, 145 [3rd Dept 2021], lv to appeal denied, 181 NE3d 1161 [Ct App 2022] [citations omitted]; see also Michael BB. v Kristen CC., 104 N.Y.S.3d 726, 728 [3rd Dept 2019]; Perestam v Perestam, 38 N.Y.S.3d 273, 275 [3rd Dept 2016]). Additionally, "the parent seeking permission to relocate with the children bears the burden of establishing, by a preponderance of the evidence, that the proposed relocation is in the best interests of the children." (Id., citing Matter of Tropea v. Tropea, 87 N.Y.2d 727, 741, [1996] [other citations and internal punctuation omitted]).
"In determining whether the best interests of the children are served by relocating with the custodial parent, courts must consider a variety of factors, including each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and the child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and the child through suitable parenting time arrangements." (Id. at 146 [internal punctuation omitted], citing Matter of Tropea v. Tropea, 87 N.Y.2d at 740-741 [other citation omitted]; see also Michael BB. v Kristen CC., 104 N.Y.S.3d at 728).
The crux of the mother's reason for moving to Florida is clearly the supports that she would enjoy from the maternal grandfather, his family, and her grandmother. In this regard, the mother and child will have a place to stay at the grandmother's residence, and the grandmother will be able to assist with childcare while the mother establishes herself with employment. These familial supports will be all the more significant in light of the mother's new pregnancy. (s ee Edward C. v Latoya P., 147 N.Y.S.3d 580 [1st Dept 2021] [observing the father's "extended network of family members to provide support" in granting his relocation petition]; Matter of Pepe v Pepe, 998 N.Y.S.2d 897, 898-9 [2d Dept 2015] [finding that "the proposed relocation will provide financial security to the mother and the child, and the presence of the maternal grandparents in Florida will provide extended family support"]; Matter of Tracy A.G. v Undine J., 963 N.Y.S.2d 383, 384 [2d Dept 2013] [acknowledging the benefits of receiving support from the petitioner's family member, along with available employment opportunities, while noting the lack of child support payments from the father]; Jamee Bennett G. v John Nicolaas B., 160 N.Y.S.3d 1, 2 [1st Dept 2021] [commenting that, "given the father's failure to pay child support and how, on relocation, the maternal grandparents would provide her and the children with stability, emotional support..."]; Lavery v O'Sullivan, 169 N.Y.S.3d 632, 635 [2d Dept 2022]; Celinda JJ. v Adrian JJ., 157 N.Y.S.3d 144, 146-47 [3d Dept 2021], lv to appeal denied, 181 NE3d 1161 [Ct App 2022] [commenting that "mother's primary motivation for relocating to South Carolina was her desire to be closer to the maternal grandparents, who, according to the mother, had offered to provide housing and free child-care"]; DeLorenzo v DeLorenzo, 916 N.Y.S.2d 360, 362 (3d Dept 2011). While there was a dearth of testimony regarding her other family members, that is a further indication of just how close the mother feels to the grandfather (her father) and to her grandmother. Also notable is the age of the child, who is just starting school and will not experience a significant disruption from moving at his current age. (see Matter of Pepe v Pepe, 998 N.Y.S.2d at 899)
While there is no empirical evidence of an enhanced employment environment, it is rather clear from the evidence presented that the grandfather's role as a manager in a construction company will offer the mother opportunities within the company and his connections outside of it will offer her a variety of additional opportunities from which to choose. While the mother has a steady job in her current position, the court notes that the employment is limited to 22-28 hours. It is clear in the court's opinion that the mother will have a multitude of employment opportunities in Florida with advancement opportunities through the grandfather's employer or elsewhere, especially once she is able to transfer her EMT license upon obtaining a Florida driving license. (see Matter of Tracy A.G. v Undine J., 963 N.Y.S.2d 383, 384-85; Celinda JJ. v Adrian JJ., 157 N.Y.S.3d at 146). The mother will also benefit financially from the lack of any state income tax in Florida.
The court credits the mother's testimony concerning the lack of visits that the father has exercised throughout the child's life. More specifically, she explained that the father has only sporadically exercised consistent visitation for small stretches of time, but more regularly misses extended periods of time, sometimes for months without visits or any contact. Most telling, however, was the testimony from the October 23, 2023, hearing, where there was very little dispute that the father made no effort to see the child until the day before the hearing. Between the August 14 hearing date and the one on October 23, the testimony suggested that the father had approximately three virtual contacts with the child, outside of his in-person visit the day before the hearing.
In light of the OTSC, which alleged that there was no contact with the father immediately following the hearing, the court was troubled by the testimony of a virtual contact that was worked out between the parties immediately after the August 14, 2023. However, the court finds that the mother testified credibly and to the best of her ability as she likely credited the father for more virtual contacts than he actually had, when comparing her testimony to the testimony of the father, his sister, and the text messages attached to his violation petition as well as to his response to the mother's OTSC. Moreover, the mother had openly acknowledged the struggles she has with her memory as such.
The court also notes the lack of any visitation violations filed by the father until the mother's relocation petition, which runs counter to his claims that the mother has interfered with his visitation since their separation. And while the father requested a picture from the mother from the child's first day of school in September of 2023, there is no other indication that the father has taken a vested interest in the child's well-being, and no testimony about doing anything with the child, except for going to a store or walking around at a park, which was actually shared by the mother. (see C.F. v A.S., 110 N.Y.S.3d 888, 888 [Fam Ct 2018] [commenting that the father "offered no consistent testimony of any actual weekday activities of the child with which he is involved or has been involved in the past two years..."]. Even the grandfather testified to taking the child fishing, to the beach, and to Universal Studies. Notably, the father testified himself that he never says, "no", when the child wants the father to buy a toy during a visit, which is concerning.
The father's most notable counter for opposing the mother's relocation is his distrust of her and that she would not cooperate with a visitation schedule. Based upon the testimony through two days of fact-finding, that trust appears to be misplaced. (see Matter of Tracy A.G. v Undine J., 963 N.Y.S.2d at 385). The sister testified to having no specific issues in communicating with the mother in terms of coordinating visits for the father. In fact, the sister did not even feel that the father was entitled to any make-up time for any missed visits between the two hearings, despite the father's assertions in court and in his violation petition filed on October 10, 2023.
More problematic is the father's credibility. The court was very liberal in allowing post-hearing testimony of the efforts the father has made to improve his personal circumstances. In this regard, the court's primary focus was the best interest of the child, and the father's new endeavors in treatment and employment were certainly relevant to his commitment to being more available and a more invested father for the child. (see Matter of Hamilton v Anderson, 40 N.Y.S.3d 203, 205 [3d Dept 2016]). The court was, however, troubled by the very late attempts the father made to engage in treatment, waiting a month before the hearing to begin engaging in such. Moreover, the father sought out a sponsor a few days before the hearing, immediately after the sponsor agreed to testify on his behalf. While the mother's relocation petition was filed in March, it was not until July that the father began attending and seemingly engaging in these self-help meeting.
Similarly, the court found it convenient that the father's employment began at approximately the time in which the mother filed her petition. Even with this, there were no paystubs or other tangible documentation to better confirm the father's employment, but merely the father's and his witness' testimony that the father was employed and working full-time hours at work. And despite this asserted full-time employment, the father contributes nothing financially for the support of the child. (s ee DeLorenzo v DeLorenzo, 916 N.Y.S.2d 360, 362 [3d Dept 2011]) (noting the father's "spotty employment history... lack of financial responsibility by, among other things, having fallen in arrears on child support," in granting the mother's relocation petition]; see also Jamee Bennett G. v John Nicolaas B., 160 N.Y.S.3d at 2).
Finally, the father testified that he now has a new address and has moved out of his sister's residence. Both the sister and father testified that this move was precipitated because the father has become more self-sufficient through his work and not the result of any falling out between the two of them. They each testified that this move took place, effective October 1, 2023. Ironically, in his violation petition, which he dates October 7, 2023, the father provides the sister's address as his own. And on his court sign-in sheet on the day of the hearing (October 23), the father uses his sister's address. While the father did provide an address where he is now living, the use of his sister's address on official court documents suggests otherwise and raises notable credibility issues concerning the father, whose veracity had already been questioned by the court with his assertions of denied visitation time, which were directly contradicted by not only the mother's and his sister's testimony, but also by text messaging he provided in his own court submissions.
With all this in mind, the mother's relocation to Florida will have "a minimal impact upon the father's relationship with the child..." (Celinda JJ. v Adrian JJ., 157 N.Y.S.3d at 147). There was nothing to contradict this during the Lincoln hearing. Considering the mother's reasons for moving, including the support she will receive from her father, his family, and her grandmother, along with the more diverse employment opportunities she would be afforded, especially in being a young mother with another child on the way, and considering the father's lack of involvement in the child's life, the court finds that the mother has met her burden by a preponderance of the evidence in demonstrating that her relocation to Florida will be in the best interest of the child.
The court's decision and order will actually offer the father more in-person opportunity to see his child throughout the year and will afford the father with the same amount of virtual contact time he is currently allotted. Ultimately, he will have an opportunity to develop a stronger relationship with his child, should he so desire. (s ee Edward C. v Latoya P., 147 N.Y.S.3d 580; Matter of Tracy A.G. v Undine J., 963 N.Y.S.2d at 385; Michael BB. v Kristen CC., 104 N.Y.S.3d 726, 729 [3d Dept 2019]; Lavery v O'Sullivan, 169 N.Y.S.3d 632, 635).
Father's July 17, 2023 Violation Petition
"To sustain a finding of civil contempt for a violation of a court order, a petitioner must show by clear and convincing evidence that there was a lawful court order in effect that clearly expressed an unequivocal mandate, that the person who allegedly violated the order had actual knowledge of its terms, and that his or her actions or failure to act defeated, impaired, impeded or prejudiced a right of the moving party." (Bonnie AA. v Kiya DD., 131 N.Y.S.3d 411, 415 [3d Dept 2020], citing Matter of Wesko v. Hollenbeck, 149 A.D.3d 1175, 1175-1176, 51 N.Y.S.3d 250 [3d Dept 2017] [other citation omitted]). "The petitioner must further establish that the alleged violation was willful." (Id., citations omitted).
The father's July 17, 2023, violation petition is dismissed. While the father testified that, following the mother's decision not to meet for a visitation, he and the sister drove around following a storm to ascertain whether any trees were down, this is the extent of the evidence proffered by the father to suggest that the mother willfully denied the father visitation.
Notably, the Order from December 23, 2021, provides for the father to have two hours of supervised visitation per week "as the parties can agree and subject to the availability of the supervisors." There is no set schedule, and the mother is entitled to make alternative arrangements should concerns arise that could affect the safety and well-being of the child.
The mother explained her concerns with the weather and illness of another child in the stepmother's care, and that she offered a make-up visit, which did not come to fruition because the father's stepmother no longer agreed to supervise his visits. There is absolutely nothing to suggest that the mother denied the father his two hours of supervised visitation that week without offering make-up time, and there is certainly nothing to suggest the mother's acts in preventing the visit were willful, especially in light of her concerns with the health, safety, and well-being of the child. The father ultimately failed to sustain his burden, even by a preponderance of the evidence.
Based upon the foregoing; it is hereby
ORDERED that the mother shall have sole legal and physical custody of the child; and it is further
ORDERED that the mother is hereby granted permission by the Court to relocate to the State of Florida with the child; and it is further
ORDERED that the father shall have supervised visitation with the child for a minimum of one (1) week in the summer and a minimum of one (1) week during a school year break with the arrangements of said visitations to be made by a third party; and it is further
ORDERED that the mother and the father shall equally share in the child's transportation costs for visitation with the father; and it is further
ORDERED the father shall have a minimum period of two (2) hours a week of virtual and/or phone contact with the child with the arrangements to be made by a third party; and it is further
ORDERED that the father shall use his completion of an in-person parenting course, successful completion of substance abuse counseling or confirmation by an OASIS certified counselor with third party input including but not limited to the Attorney for Child and the mother, that the father does not have a substance abuse issue, and upon the successful completion of an in-person Anger Management or Domestic Abuse program, as a change in circumstances for petitioning the Court for unsupervised visitation; and it is further
ORDERED that the father's violation petition filed on July 17, 2023 (Docket No. V-00896-19/23I) is hereby dismissed; and it is further
ORDERED that this decision and order shall replace and supersede all prior orders of the Court.