Opinion
Index No. XXXXX
08-24-2021
In the Matter of a Proceeding Under Article 6 of the Family Court Act, KATIE S, Petitioner, v. CHRISTOPHER K, Respondent.
Ted A. Barraco, Esq., for Petitioner Robert D. Strassel, Esq., for Respondent Katie E. Woodruff, Esq., Attorney for the Child
Ted A. Barraco, Esq., for Petitioner
Robert D. Strassel, Esq., for Respondent
Katie E. Woodruff, Esq., Attorney for the Child
Dandrea L. Ruhlmann, J.
By petition filed September 22, 2020, Petitioner Katie S (Mother) seeks modification of this Court's Order of Custody entered April 12, 2016 (2016 Order [Thomas W. Polito, Referee]), which, in part, granted the parties joint custody of their child: Marceline S (DOB: xx/xx/xxxx) with Mother having primary physical residency. Mother now seeks sole custody. Christopher K (Father) by cross-petition filed April 13, 2021 also seeks sole custody of Marceline.
Since entry of the 2016 Order substantial change necessitates a new custodial/visitation plan to ensure the best interests of the child. Mother sustained her petition for a modification and is awarded sole custody and primary physical residency with Father having visitation on alternate weekends during the school year and increased parenting time during the summer and holiday time as detailed herein. A Temporary Order of Protection issued in favor of Mother at the onset of this case, expired on May 13, 2021. Without objection the Court did not extend such order and it is hereby dismissed with prejudice.
Trial
The Court heard testimony on May 13, 2021 and June 25, 2021 from witnesses: Mother, paternal uncle Joshua K, maternal grandmother Margaret S (Maternal Grandmother), Father, and Father's former girlfriend, Amanda S. This Court finds the witnesses’ testimony credible (see Matter of Louise E.S. v W. Stephen S. , 64 NY2d 946, 947 [1985] [respect is to be accorded the trial judge's advantage in observing the demeanor of the witnesses]; see also Matter of Smith v Ballam, 176 AD3d 1591, 1593 [4th Dept 2019] [trial court's determination of credibility after an evidentiary hearing holds great weight and will not be set aside unless it lacks an evidentiary basis in the record]). Father testified to concerns not raised in his modification petition, however, this Court hereby conforms the pleadings to the proof (see Matter of Ariel C.W. - H., 89 AD3d 1438 [4th Dept 2011] ). The Court admitted into evidence Petitioner's Exhibits 1-4 (photographs); 5-6 (audiotapes) and Respondent's Exhibit A (text message).
The Court closed proofs and permitted the parties to submit written summations. On July 14, 2021, the Court engaged in a virtual in camera interview with six-year-old Marceline.
Change of Circumstances
The parties stipulated to both prior orders of custody (see Friederwitzer v Friederwitzer , 55 NY2d 89, 95 [1982] [a custodial agreement resulting from an agreement from the parties warrants less weight than one which follows a trial and a decision by a court]). Although priority must be accorded to the existing custodial agreement, when a prior disposition results from a stipulation that was not based on a best interests analysis, it will not be accorded the same weight as if it resulted from a full hearing (Matter of Maher v Maher , 1 AD3d 987 [4th Dept 2003] ). The current custodial arrangement has been in effect since March 2016, for over five years.
The parties first must prove a " ‘change in circumstances which reflects a real need for change to ensure the best interest[s] of the child’ " (Matter of James D. v Tammy W. , 45 AD3d 1358 [4th Dept 2007], quoting Matter of Amy L.M. v Kevin M.M., 31 AD3d 1224, 1225 [4th Dept 2006] ). Since entry of the prior consent order, Father admits his involvement with Child Protective Services (CPS) arising out of his use of corporal punishment in September 2020 on Marceline. Father left his handprints on her buttock, and a small bruise near her eye. Father also conceded that on a separate occasion his girlfriend, now wife (Heidi F), put pepper in Marceline's mouth after the child "talked back" to her. Father testified that Marceline during a tantrum, refused to get ready for church, telling Father "I don't have to listen to you, you are not my Mom, I hate you." While no evidence of a CPS indicated finding against Father was proffered, Father testified that he believes that "the fear of God is the beginning of wisdom," and if a child does "something wrong there has to be consequences." This Court ordered Father to refrain from using (or allowing third parties to use) any corporal punishment to discipline Marceline.
The gravamen of Father's claim is that Mother and her family have engaged in a pattern of alienating his affections, or as he testified designed to "phase him out of Marcy's life." Maternal Grandmother concedes that since the entry of this Court's temporary order she told Marceline "it's not me that makes you go to your dad's it's the Court." Further to audiotape Father's explosive behaviors, Mother engaged in the unseemly practice of baiting Father during exchanges of Marceline. Mother, the only party with knowledge that such conversations were being recorded, ensured that her demeanor and comments to Father were appropriate, while Father cursed at her (Petitioner Exhibits 5-6). A concerted effort by one parent to interfere with the other parent's contact with the child is so inimical to the best interests of the child, that it, per se , raises a strong probability that the interfering parent is unfit to act as a custodial parent (see Matter of Avdic v Avdic , 125 AD3d 1534 [4th Dept 2015], rearg denied, 129 AD3d 1556 [4th Dept 2015] [the court's determination that the mother had engaged in parental alienation behavior raised a strong probability she is unfit to act as a custodial parent]). Alienation requires more than just the "unjustified frustration of the non-custodial parent's access" ( J.F. v D.F., 61 Misc 3d 1226(A), *4 [Sup Ct Monroe County 2018 Dollinger, J.]). The Court does not condone Mother's manipulative conduct and finds it is contrary to Marceline's best interests; however, Father has not sustained a claim of alienation. In contrast, Mother has proffered sufficient evidence to establish a change of circumstances (cf. Cowell v Pembrock , 113 AD3d 1118 [4th Dept 2014] ).
Best Interests
The Court must consider the present custodial arrangement, the quality of the home environment and the parental guidance provided; the ability of each parent to provide for their children's emotional and intellectual development; the financial status and ability of each parent to provide; the relative fitness of the respective parents; and the length of time the present custody arrangement has been in effect (see Matter of Kristi L.T. v Andrew R.V. , 48 AD3d 1202 [4th Dept 2008], lv denied 10 NY3d 716 [2008], quoting Matter of Maher v Maher , 1 AD3d 987 [4th Dept 2003] ). Weighing the factors in sum, the scale falls in favor of sole custody and primary physical residency to Mother and increased periods of visitation to Father.
The quality of Father's home environment and his ability to provide for the child's emotional development was challenged at trial. Mother maintains Marceline has sensory issues that impact her choice of clothes and food. Mother testified Marceline required loose fitting clothes, only wore pants when temperatures were below fifty degrees, and hated socks. On cross examination Father stated that Marceline's difficult behaviors were not completely attributable to her sensory issues. Both Father's former girlfriend and Maternal Grandmother testified that Marceline has periodic tantrums, without clarifying whether they were sensory related. Father remains skeptical of such diagnosis. Indeed Father acknowledged he only attended two of Marceline's occupational therapy appointments since September 2019. Father conceded that at his house, he requires Marceline to dress appropriately for the weather, including wearing socks. Father admitted at least once he threatened Marceline that he would tape her winter boots to her feet with duct tape since she refused to wear them. After a child protective service investigation regarding excessive corporal punishment he agreed to refrain from physically disciplining Marceline.
Father claims that he and his girlfriend, now wife (Heidi F), spend family time on weekends. It is unrefuted that Marceline has a strong sisterly bond with Ali, the six year old daughter of Amanda S, Father's former girlfriend. Father shares defacto custody and residency of Ali with his former girlfriend, Amanda S.
The proof adduced at trial focusing primarily on Marceline's academics shows that Marceline is struggling with her behaviors and performance at school. Father expressed his frustration that Marceline "is failing kindergarten." Mother's text message to Father received into evidence as Respondent's Exhibit A reflect the school's recommendation that Marceline attend summer school and undergo a medical evaluation related to her attention and behavioral deficits. Father maintains that he has supported Marceline through reading, ABC's (and other instruction at home), however, conceded although he has independent access to Marceline's school, he has not consulted with any of her teachers. Scant evidence was adduced regarding the financial status of the parties.
Mother has had primary physical residency of Marceline since her birth. Despite Mother's tumultous relationship with Father, the totality of the evidence demonstrates that Mother has met Marceline's medical, educational and emotional needs. Although, not dispositive, the Court has considered the child's preference as advocated by her Attorney which is to continue living primarily with Mother (see Matter of McDermott v Bale, 94 AD3d 1542, 1543 [4th Dept 2012], quoting Family Ct Act § 241 [the purpose of an attorney for the children to "to help protect their interests and to help them express their wishes to the court"]). Although a child's wishes are not determinative "they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful" (Matter of Stevenson v Stevenson, 70 AD3d 1515, 1516 [4th Dept 2010], lv denied 14 NY3d 712 [2010] ; see also Matter of Rohr v Young, 148 AD3d 1681 [4th Dept 2017] ; compare Matter of Kessler v Fancher, 112 AD3d 1323 [4th Dept 2013] [a child's desires do not chart the course of the litigation]; see also Matter of Williams v Reid, 187 AD3d 1593 [4th Dept 2020] [at seven-years-old and five-years-old, the children were too young and not of sufficient maturity for their alleged desires to demonstrate a change in circumstances]). Here Marceline is just six years old. The Court gleaned her maturity from an in camera interview after fact finding (see Lincoln v Lincoln, 24 NY2d 270 [1969] ; Fam Ct Act § 664 ).
Indeed the Attorney for Child advocates granting Mother sole custody.
The evidence demonstrates that these parents cannot work together; however, the Court finds it is in the best interests of Marceline that both her parents remain active participants in her life.
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 hereby
ADJUDGED that there has been a change in circumstances that reflect a real need for change to ensure the best interests of Marceline S (DOB: xx/xx/xxxx); and it is hereby
ORDERED that Mother is awarded sole custody of the child; and it is further
ORDERED that the child shall reside primarily with Mother; and it is further
ORDERED that Father shall continue to have parenting time with the child on every other weekend from Friday until Sunday; and it is further
ORDERED that during summer vacation the child shall reside with Father for two full weeks in July and two full weeks in August and Father shall designate his weeks in writing to Mother each year by June 15; and it is further
ORDERED that Father shall engage in therapeutic counseling (virtually or in person) with Marceline and Mother to address any trauma associated with prior physical discipline; and it is further
ORDERED that the parties shall alternate time with the child for Thanksgiving with Mother having the child from 9 a.m. until 3 p.m. in even years and Father having the child from 3 p.m. on Thanksgiving until 9 p.m. on the Friday following Thanksgiving; and in the odd years with Father having the child from 9 a.m. until 3 p.m. on Thanksgiving and Mother having the child from 3 p.m. on Thanksgiving until 9 p.m. on the Friday following Thanksgiving; and it is further
ORDERED that in the even years Mother shall have residency with the child on December 24th at 1 p.m. until December 25th at 1 p.m. and Father shall have residency with the child on December 25th at 1 p.m. until December 30th at 1 p.m. and in the odd years Father shall have residency with the child on December 24th at 1 p.m. until December 25th at 1 p.m. and Mother shall have residency with the child on December 25th at 1p.m. until December 30th at 1 p.m.; and it is further
ORDERED that Mother shall always enjoy Mother's Day with the child and Father shall always enjoy Father's Day with the child; and it is further
ORDERED that the holiday and summer visitation schedule shall supersede the parties’ regular visitation schedule; and it is further
ORDERED that Father shall have residency with the child during February (Winter) school recess in odd years, and the Spring school recess in even years; and Mother shall have residency with the child during February (Winter) recess in even years and the Spring school recess in odd years; and it is further
ORDERED that the parents shall have other and further periods of temporary physical residency as they agree; and it is further
ORDERED that the maternal and paternal grandparents shall be permitted to assist with transportation for the child to and from visitation periods when necessary; and it is further
ORDERED that the child shall be transported in an appropriate safety seat and by licensed drivers only; and it is further
ORDERED that each parent shall continue to have independent access to the child's schools, teachers and medical and counseling providers and may receive information regarding the child directly from the providers and agree to sign any release or authorization in order to effectuate such access; and it is further
ORDERED that both parents shall be allowed to attend any important events in their child's life including educational, extracurricular, social and religious, parent-teacher conferences or other school conferences; and it is further
ORDERED that each parent shall promptly notify the other in the event of a medical emergency concerning the child; and it is further
ORDERED that each parent shall keep the other advised at all times of their present address and phone number(s); and it is further
ORDERED that neither parent shall permanently remove the child from Monroe County, New York or Warsaw County, New York without prior written, notarized consent of the other parent or an order from a court of competent jurisdiction, and it is further
ORDERED that neither parent shall make any disparaging or derogatory remarks about the other in the presence of the child nor in the hearing of the child, nor permit any third party to do so; and it is further
ORDERED that neither parent shall use physical punishment to discipline the child nor shall they permit any third party to do so; and it is further
ORDERED that Mother shall not consume excessive alcohol, marijuiana or illegal drugs in the presence of the child, nor shall she allow any third party to do so; and it is further
ORDERED that Father shall not consume excessive alcohol, marijuiana or illegal drugs in the presence of the child, nor shall she allow any third party to do so; and it is further
ORDERED that both parents shall have daily reasonable telephone contact with the child and the child shall be allowed to call the other parent as requested; and it is further
ORDERED that Docket Number x-xxxxxx-xx is dismissed with prejudice; and it is further
ORDERED that this Custody Order shall supersede all prior orders of custody.