Opinion
V-xxxx-xx
01-04-2019
In the Matter of a Proceeding Under Article Six of the Family Court Act R.M.M., Petitioner, v. J.A.S., Respondent. In the Matter of a Proceeding Under Article Six of the Family Court Act J.A.S., Petitioner, v. R.M.M., Respondent.
Petitioner is represented by Funsho Ilori, Esq., Middletown Respondent is represented by Cindy Prusinowski, Esq. Kellie Stabile, Esq., Bronx, was appointed attorney for the child
Petitioner is represented by Funsho Ilori, Esq., Middletown
Respondent is represented by Cindy Prusinowski, Esq.
Kellie Stabile, Esq., Bronx, was appointed attorney for the child
Conrad D. Singer, J.
BACKGROUND
The matter before the Court concerns the initial custody determination and proposed relocation of the child, M.M.M. (D.O.B. February 18, 2017) ("child"), who is the biological child of the parties herein, father, R.M.M. ("father"), and mother, J.A.S. ("mother"). The parties never married, but previously resided together in Nassau County, New York. The current proceedings were commenced on February 6, 2018, when the father filed a petition by order to show cause, seeking an order awarding him custody of the child. The father sought an emergency order of custody and swore in his affidavit in support that he feared the mother would take the child with her to Georgia, where the mother was going on job interviews. In the accompanying petition, the father alleged, inter alia , that he is the sole homeowner of the child's residence, that he is the primary financial source for the child and that he has equally shared custodial duties/responsibilities with the mother since the child's birth. (Father's Petition for Custody , dated February 6, 2018 ["Father's Petition"], ¶ 12). The father further alleged that if the child were to relocate to Georgia with the mother, it would "make it extremely difficult" for the father "to maintain a close personal relationship" with the child. (Father's Petition , ¶ 12).
On February 22, 2018, the mother moved by order to show cause seeking an order: 1) directing the father to disclose the child's location; 2) temporarily granting the mother full custody of the child and 3) enforcing supervised visitation between the child and the paternal grandmother. The mother subsequently withdrew this petition in Court on September 24, 2018. On February 23, 2018, the parties appeared in person and with counsel. On that date the Court issued a temporary order of parenting time, on consent of the parties, their respective counsel and the attorney for the child ["AFC"] .
The temporary order of parenting time provides, inter alia , that on Monday through Thursday the father shall pick up the child after work after 2:00 PM for parenting time, and the mother shall pick up the child after work between 7:00-7:30 PM from the father's residence in West Hempstead, New York. The father shall pick up the child on Fridays after work, and the child shall remain with him until Sunday at 6:30PM at which point the mother shall pick up the child from the father's residence. The temporary order permits any other parenting time as agreed between the parties.
On May 1, 2018, the mother filed a petition, by order to show cause, seeking an order granting her custody of the child and granting her permission to relocate with the child to Georgia. In the petition accompanying her order to show cause, the mother alleged, inter alia , that she has "always" been the child's primary caretaker; that she is the "sole policy holder" for the child's health insurance; that she schedules and attends all of the child's doctor's appointments (except for one); and that she has always incorporated learning activities in an effort to improve the child's intellectual development. (Mother's Petition for Custody , dated April 25, 2018 ["Mother's Petition"], ¶ 4). Regarding her request to relocate to Georgia, the mother alleged that she is responsible for a monthly mortgage payment of $ 1,220.00 for a 1850 sq. foot home in Atlanta, Georgia, that the father encouraged the mother to purchase the home with the understanding that they would, in the future, relocate to Georgia and raise a family, and that, since the relationship ended and given the mother's salary, expenses and lack of financial support from the father, the mother cannot afford a more suitable living arrangement for the mother and child in New York. (Mother's Petition , ¶ 7).
A fact-finding hearing on the parties' respective petitions was conducted September 24 through September 26, 2018. Throughout these proceedings the father was represented by Cindy A. Prusinowski, Esq., the mother was represented by Funsho Ilori, Esq., and Kellie Stabile, Esq. was the AFC. All closing written briefs and summations were submitted by November 8, 2018.
SUMMARY OF TESTIMONY
FATHER'S CASE
The forensic evaluation prepared by the court-appointed forensic provider, Dr. Peter Favaro, PhD, was entered into evidence on consent. (Petitioner ["Pet."] Exhibit ["Ex."] 1). The father testified as the first witness on his direct case. The father has never been married and has lived in New York since he was two years old. He finished one year of college and works as a journey man lineman, usually in Nassau County, New York. The father works Monday to Friday, from either 6:30AM to 2:00 PM or from 8:30 AM to 4:00 PM. He has flexible work days and can make his own hours.
The father owns a two-bedroom co-op in Nassau County, New York, and has lived there since he purchased it in 2014. The child has her own room and her own bathroom in the father's residence. The co-op has several amenities, including a dog park and a pool. The father also owns a house in Elmont and his mother, the paternal grandmother, resides in that home.
The parties met in a lounge in Georgia in September of 2013, while the mother was living in Georgia. From the time the parties met until the mother moved to New York in the summer of 2015, the parties had a long-distance relationship and talked and FaceTimed every day. He testified that in 2013 the parties saw each other in person once or twice in addition to their first meeting.
The father testified that the parties discussed the mother moving to New York due to complications with the mother's job and her desire to stay within the same company. He testified that she asked him questions about New York and was trying to find places located close to his home. The mother moved into the father's residence in the summer of 2015 and they lived there together until the mother moved out in February of 2018.
The mother became pregnant around May of 2016. The father testified that he accompanied her to OB-GYN appointments during the pregnancy and that he also attended one Lamaze class with her. He was in the room for the child's birth and he fed the child every three hours while she was at the hospital. The father returned to work about a week and a half after the child was born.
The father testified that the mother returned to work full-time a few months after the child's birth, that she does not have a set work schedule, and that once she returned to work after the child's birth, she worked almost every weekend. The father's work hours remained the same before and after the child was born. He testified that when the parties were both working, the father would return home first and take care of the child.
From November of 2017 through February of 2018 the child's paternal grandmother took care of the child when the parties were at work. The father testified that she read to the child, fed her and bathed her. The father further testified that the mother filed a petition for an order of protection against the paternal grandmother and that such was granted in the mother's favor. At the time of the fact-finding hearing the paternal grandmother had not seen the child since February of 2018.
The father testified that under the parties' temporary custody arrangement, on Monday through Thursday he picks up the child from daycare when he gets out of work, takes her home, cleans her up, and then takes her out. He and the child are "always active" and he takes the child to the pool in his co-op complex. The child sleeps at the mother's residence Monday through Thursday and sleeps at the father's residence Friday evening through Sunday. He testified that Monday through Sunday he feeds her dinner around 6:30 PM, and he cooks for the child.
Dr. Morris Charytan in Valley Stream has been the child's pediatrician since she was born. The father testified that he has attended more than half of the child's pediatrician appointments with the mother and that he would not attend appointments where the doctor was just checking the child's rash.
The father testified that the maternal grandmother lives in Georgia but came to New York and stayed in the father's home on two to three separate occasions to help after the child was born; she stayed in New York at least five months over those visits. He testified that the mother and the child have gone to Georgia around four or five times since the child was born.
The father testified that the mother moved out of the father's co-op on February 12, 2018 and that on that day he came home and saw that the mother and the child's clothes were gone. He testified that the mother previously discussed wanting to move to Georgia because she was having problems with her job in New York. The father testified that he told the mother that she should try to get transferred or talk to her manager, and he also told her to use her master's degree to get a different position. He testified that he told the mother it would be unreasonable for her to take the child to Georgia, that he "always" had the child and that even under the temporary custody order the child is "always" with him except for sleeping by the mother.
The father testified that on the days the mother works the child is dropped off to daycare around 8:30 AM and that the father picks up the child from daycare. He testified that on Fridays there is a problem because the temporary custody order requires the father to pick up the child from daycare even though the child is not at daycare on that day. The father testified that he texts the mother to ask what time he is picking up the child and the mother's response is essentially that he can pick up the child whenever he wants. The father testified that he has had to file police reports because he has had to pick up the child at various times.
The father testified that if the Court were to grant the mother permission to relocate to Georgia, it would "crush" him. He testified that he has "been there" for the child "since day one", and that if the mother were permitted to relocate to Georgia the father would no longer be able to do all the things he does with her now, like cleaning her, feeding her, and taking her out to the Bronx zoo and the dog kennel. He testified that he has weekends off from work and he is always out with the child those days.
The father testified that he could not travel to Georgia on a regular basis to visit the child because he has a job and other responsibilities in New York and that Georgia is far away. When asked to propose a parenting schedule if he were to obtain custody, the father responded that the parties would have to "figure it out" and testified "I can adjust my time if she's with me". When asked to propose specific days, the father responded, "I would be with her every day" and that the mother's time with the child would depend on the mother's work schedule because the mother's work schedule is "up and down" while the father's work schedule is consistent.
On cross examination by the mother's attorney, the father testified that he visited Georgia once or twice a year between 2013 when the parties met and 2015 when the mother moved to New York. On those visits the father would stay in Georgia for the weekend except one time he stayed in Georgia for three weeks after quitting his job. He denied advising the mother that he works half the year. He testified that he makes about $ 170,000 per year.
The father testified that the parties began seriously dating in 2014. In April of 2015 the mother purchased a three-bedroom home in Georgia; before that she lived in a one-bedroom apartment. The father denied that he encouraged her to purchase a larger home for their relationship and testified that he encouraged her to buy the home as a tax write-off and because she could purchase the house for the same price as renting an apartment. He traveled to Georgia to help the mother move her things into the new house.
The father testified that in or about July of 2015 (three to four months after the mother bought the home in Georgia), she moved to New York to live with the father. The father testified that they had conversations about the mother's problems with her job and that the move to New York was a "win/win" situation, as the parties would get to live together, and it would be good for her job situation. He denied encouraging the mother to buy the home "for the family". He testified that the parties' discussions about marriage were "just talk". He denied discussing with the mother that she would move to New York, they would stay in the same place together for a year and then get married.
The father testified that he attended "half" of the child's doctor appointments; he did not attend appointments where the mother was just picking up ointment for the child's rash. He initially testified that he attended approximately nineteen of the child's pediatrician appointments, but then changed his testimony to attending nine or ten of the appointments. He testified that the mother scheduled all the child's pediatrician appointments except for one appointment, which the father scheduled and then the mother rescheduled. The mother also scheduled the child's appointments with her specialists, a cardiologist and a dermatologist. The father testified that he was not aware that the child has alopecia, but he was aware that the child has two bald spots on her head. The father testified that the child is allergic to dairy and that the child drinks a special formula for it, which the he purchases from Target or Stop and Shop. He agreed that if the child were to have an allergic reaction, the child would need an EpiPen, but testified that he does not have one because he would never feed her dairy. The father testified that there is one EpiPen and the parties share it when they are together. He testified that he has never physically purchased an EpiPen.
The father testified about the parties' arrangement under the temporary parenting time order and testified that police officers came to his home once due to a conflict over pick-ups and drop offs; the police came one time due to a call from the mother and one time due to a call from the father.
The father testified that the maternal grandmother assisted the mother with the child while the mother was on maternity leave from February of 2017 to May of 2017. The grandmother returned to Georgia once the mother returned to work, at which point the father's friend Corey started taking care of the child. The father testified that the maternal grandmother returned to New York again in August of 2017 through November of 2017. He testified that his mother, the paternal grandmother, did not take care of the child at first because she was working. However, the father visited the paternal grandmother's home every week from February of 2017 through November of 2017, and that is when the paternal grandmother would see the child. The father denied that an altercation took place between the maternal grandmother and paternal grandmother.
The father testified that on February 12, 2018, the mother moved out of his home. He further testified that he had not observed the mother packing her things the day before (February 11), and that on that day the parties had been in the living room of his home opening the child's birthday gifts together. He testified that he didn't know the mother was planning to visit Georgia that week and that there was an order prohibiting the parties from "relocating" out of state. He further testified that on February 5 the mother had called him when she was supposed to be just visiting Georgia and told him that she had gotten a job there which was to start February 19, 2018.
He testified that in November of 2017 the mother asked him if he could relocate to Georgia and he said "no" because of his union job. The father denied that they negotiated a relocation plan. He testified that he never had any intention of moving to Georgia and that he "took care of everything" when they lived in New York. The father told the mother that there was no benefit for him to live in Georgia. He testified that he had not considered that there might be benefits for the child living in Georgia because things were "good" in New York.
He testified that in 2017-2018 the parties' relationship was not a "normal" relationship and that they had gone to therapy because they had not been talking. He also testified that the mother hadn't invited the paternal grandmother to the baby's Christening in Georgia.
The father denied that the mother values education more than him. He testified that he pulled the child out of school three days after the parties enrolled the child because the child was just a few months old and the paternal grandmother could watch the child. He testified that he wanted to put the child in daycare when she turned two years old and could tell the parents what went on there. He further testified that the mother couldn't help the father with the "hefty" monthly cost of the daycare program. He then testified that they had researched many other daycare programs, and that it wasn't about the price. The father testified that the paternal grandmother would read the child books; the child doesn't have the attention span yet for formal lessons. He testified that the mother had been "pushing" daycare and he unilaterally decided the child should not be in daycare.
On cross-examination of the father by the attorney for the child ("AFC"), the father agreed that the mother is a good mother. The father testified that he has been consistently employed since April of 2003, that his relatives and friends live in New York area and he sees his family members at least once a week. He further testified that the mother hired the child's most recent care provider, Ms. D. M., without his input, and that the parties split the child care costs, even though the father did not agree to hiring her.
The father testified that the mother's closest relatives live in New Jersey. He further testified that the mother and the child traveled to Georgia four or five times prior to February of 2018 and that there were occasions when he went with them. He testified that he objected to the mother taking the child to Georgia including when the mother took the child to Georgia for jury duty for approximately two weeks.
The father further testified that the parties jointly planned a birthday party for the child which was held on February 10, in Baldwin, New York, and that more than 50 people attended the party, including both the mother and the father. A party was also hosted for the child in Georgia on February 17, 2018. The father was not involved in the planning of that party, but the mother told him about the plans. The father testified that he didn't know when the mother traveled to Georgia, and that when he texted her to find out where she was, the mother responded that they were already in Georgia. The father testified that he learned where the child was on February 15 and that he did not reach out to the mother on February 12, 13, or 14 because he was getting information from a mutual acquaintance. The father traveled to Georgia on Saturday morning and attended the child's party there. The parties did not speak at the party and after the party the father picked up his things from the mother's house in Atlanta. The next day, Sunday, he returned to New York with the child.
On re-cross examination of the father by mother's attorney the father read the terms of the Order to Show Cause signed February 7, 2018, which prohibited the mother from relocating the residence of the child outside of New York state without court order, and testified that his understanding was that the Order to Show Cause prohibited the mother from taking the child to Georgia for the child's birthday party there.
Revisiting the events of February 12 and the days that followed, the father testified that he learned that the mother was in Georgia on February 15 by text message. On February 10, the parties both attended the child's birthday party, on February 11, the parties were together in the same home. The father testified that on February 12, the parties both went to work, the father returned home for lunch, then went back to work one block away from his house. He testified that the paternal grandmother called him and told him that the mother had picked up the child, which he thought was "weird" because the mother had never picked up the child. He testified that he left work and returned home, and when he arrived home he saw that all the mother's clothes and shoes were gone. The father testified that the child's clothes were gone as well, except for clothes that didn't fit the child.
The father testified that he did not call the mother when he saw that all of her stuff was gone. The father's testimony changed about whether the parties spoke that day; he finally testified that the mother called the father and said that she already picked up the child and that she was in traffic and on her way back to the father's house. The father testified that the mother's phone call to him was around "late 4ish" as the mother was coming back home to the father's residence and that's when she got served, around 5:00 PM on February 12. The father agreed that he had filed paperwork indicating that he was fearful that the mother would leave NY and relocate to Georgia with the child. He testified that he had "no idea" that the mother was going to be going to Georgia on February 15 and denied the parties had a conversation at the New York birthday party about the mother going to Georgia on February 15.
The father's next witness on his direct case was F.H., the mother of one of the father's long-time friends. Ms. H. testified that she speaks with the father all the time. She testified that she has observed both parties with the child and that the child's mother is a "wonderful mom". On cross-examination of Ms. H. by the AFC, she testified that she has never seen the father do anything that is not in the interest of the child's well-being.
SUMMARY OF TESTIMONY
MOTHER'S DIRECT CASE
The mother testified as the first witness on her direct case. The parties met in August or September of 2013 on the father's birthday weekend and they were friends before they started dating; they spoke a lot and used Facetime. She testified that they stopped speaking for a period, because the father said that she did something that angered him. They resumed speaking in January of 2014.
The father came down to Georgia in September of 2014, but they did not see each other until October, and then he returned to New York in October of 2014. The parties started officially dating in November of 2014 and she visited New York in January of 2015; he came to Georgia in February.
Before the mother purchased her house in Georgia they discussed the purchase.She testified that she was torn between buying and renting again because she was by herself and she didn't want to purchase something too big. She testified that the father told her she should purchase something big enough for the two of them because they were going to have a family, which she took to mean that they would be starting a life together. She purchased the home with that understanding and she closed on the home in April of 2015.
The mother testified that she moved to New York in July of 2015 because the parties had been in a long-distance relationship and the father wanted them to live in the same place for one year and then get engaged. She testified that they also discussed updating the father's apartment, which he would then rent out and then they would move back to Georgia.
The mother lived in her Georgia house before she moved to New York. The mother's house in Georgia has three bedrooms, two and a half bathrooms, a two-car garage, a full laundry room and a deck. There are bedrooms for the mother, the child and the maternal grandmother. Photos of the mother's Georgia house were entered into evidence. (Respondent ["Resp."] Ex. D). In the child's bedroom there is a crib, as well as toys and clothes. The child first went to the house in July of 2017 for the child's christening. The child has been to Georgia about 6 to 7 times total.
The mother testified that her mother, aunts, uncles, cousins, church family, sorority sisters, and friends reside in Georgia. The mother's family members have spent time with the child when the mother and child have visited Georgia. The mother testified that the child has free reign in the mother's house in Georgia to go up and down the stairs and she is allowed to be a child. She testified that the child plays with the mother's four younger cousins who are around the child's age. She also has playdates with the children of the mother's friends. The mother testified that the child doesn't have any playdates in New York; she interacts with the other children who are watched by Ms. M.
In 2008 the mother graduated from Albany State University in Albany, Georgia, with a Bachelor of Arts degree. In 2016, while pregnant, she obtained a Master of Science degree in Organizational Leadership from Grand Canyon University. The mother started working for AT & T in 2012, in Atlanta, Georgia, and currently works for AT & T in Bethpage, New York, as a retail sales manager. She testified that she transferred from Atlanta, Georgia to New York, because the parties had a conversation about relocating, in which they said that whoever's job became available first, that's where they would move. She testified her job became available first and that she came to New York with the understanding they would get engaged, get married, and then move back to Atlanta. She confirmed that the parties had several conversations about it but no one besides the parties was present for these conversations.
The mother's current salary for AT & T is $ 47,000. The mother testified that she has been offered two positions in Georgia. The first position was a transfer back to AT & T in Atlanta, for $ 65,000.00, with full benefits and the opportunity to make additional sales compensation, and potentially more if the store does well. She testified that she was also offered a position as a marketing specialist for a company called "Pretty Global LLC" in Georgia, making $ 77,200.00 per year, Monday through Friday, 8:30AM to 5:00 PM with full benefits. That position was still open to the mother at the time of the fact-finding, but she testified that she was required to send in a response by November 15, 2018. The position with "Pretty Global" was located about 30 minutes from her house. The mother testified that she has not received any comparable offers in New York.
She testified that she started looking for a job in Georgia because the parties' relationship had dissolved, and in New York the mother could not provide a lifestyle for the child and meet her day to day needs. She testified that she could not afford anything in New York and that before she moved to New York she told the father that she could not afford to pay any bills in New York because her money would have to go entirely towards her home in Atlanta. She testified that the father was fine with that arrangement because his bills would stay the same with her in New York, so he would continue to pay his bills and the mother would continue to maintain her home in Atlanta.
She testified that the parties' relationship began to dissolve during her pregnancy and that the parties had not been intimate since September 2016. She further testified that the parties' relationship dissolved for several reasons, including the father being unfaithful to the mother. She testified that she wanted to go to couple's therapy to salvage their relationship, but ultimately the therapist no longer treated the parties.
According to the mother, the parties started discussing her looking for employment in Atlanta in October, while they were in therapy, and they discussed it again in November of 2017. The mother testified that she told the father she was having financial difficulties with maintaining the house in Georgia and she felt that she needed to move to Atlanta. She told the father that she wanted to share the child with him. The mother testified that the father agreed they would share the child between Georgia and New York.
The mother testified that if permitted to relocate, she could give the child full support, including paying for daycare, any extracurricular activities and travel. She testified about putting the child in a specific school where the curriculum includes learning a foreign language at 6 months old. She testified that in November of 2017 the mother had enrolled the child in a school in New York, which the parties had discussed, and then on November 3, three days after the child started the program, the father had the mother remove the child from the school. She testified that the father told the mother that he could not pay $ 370.00 per week for the program and rejected offers from the mother and the maternal grandmother to help pay. She testified that the father said the child did not need to be developed in a school; that his mother could develop and teach the child. The mother testified that the paternal grandmother has no experience in education that the mother knows of.
The mother testified that if permitted to locate, the child would be around the mother's family and friends and their children who are close in age to the child. She testified that the child would be able to go to a school to develop her education, and the move to Georgia would give the parties some separation so they could learn to co-parent in a healthy environment. With the mother in New York the parties don't speak; they do everything through their attorneys. She further testified that the family dynamic with her living in New York is only a temporary living situation; her friend is allowing the mother and the child to stay in a room in the friend's house until the case is over, at which point the mother would have to find a new place to live.
The mother testified that she has used Zillow but has been unable to find a comparable home in the mother's price range. She further testified that if her relocation application were denied she would lose her home in Georgia which would put her in a credit bind.
The mother testified that the father did not attend a Lamaze class with her; he attended one parenting class with her where the instruction centered on massaging pregnant women and breast feeding. The mother returned to work in May of 2017 after giving birth. She testified that until she returned to work, she stayed up with the child most nights because the father had to go to work between 6:00 AM to 6:30 AM. She testified that if the child woke up again at 5:30 AM the father would sometimes walk the child. During the day, the mother and child would work on breastfeeding because they had difficulty after the child's stay in NICU. She testified that the father would hold the child for a little bit after returning home from work, then give the child back to the mother. The father would "do his thing", and the mother would give the child a bottle, bathe her and otherwise take care of her. She confirmed that the maternal grandmother was with the mother from the child's birth through May when she returned to work.
The mother testified that the child stayed with a sitter once she returned to work and that the mother would call the sitter throughout to check on the baby. The mother testified that after she got home she would feed the baby, change her diaper, talk to her, read to her, give her a bottle and put her to bed. She arranged all the child's doctor appointments, and she attended most doctor visits alone. She testified that the father attended four or five appointments with her and that the father's health insurance is the secondary insurance.
The child was diagnosed with a cow's milk allergy early on; the child's body did not break down dairy properly which caused the baby excessive gas. The doctor prescribed a special formula but neither parent's insurance covered it, so they paid out of pocket and both parties split the cost. The mother testified that when the child was enrolled in the daycare program for three days, the mother explained to the director that the child had a cow milk allergy and the daycare required the mother to bring in an EpiPen. She testified that the child's doctor believed it would be best to prescribe the child an EpiPen. The mother purchased the pack of two EpiPens. She provided the child's current child care provider with one EpiPen and she has the other.
The mother also testified that the child has a mild case of eczema and the pediatrician prescribed a topical cream to apply for a flare up. She testified that the father has access to the topical cream, but the mother typically applies it to the child. She testified that the child was diagnosed with alopecia in August of 2017 and that both the child's pediatrician and pediatric dermatologist diagnosed her with the condition. The mother testified that her understanding is that the alopecia is caused by tight braids in the child's hair.
The mother testified that under the parties' temporary parenting time order, the mother picks up the child at 6:30 PM on Sundays and the child stays with the mother through Thursday night. During the week the father picks up the child from the baby sitter after 2:00 PM and the mother picks up the child from the father between 7:00 PM and 7:30 PM. The mother drops the child off on Fridays and the child stays with the father until the mother picks her up from the father on Sunday night.
The mother testified that if permitted to relocate to Georgia she would fly the father down to Georgia once a month to see the child. She also said that the father has the means to fly down to Georgia anytime he wants and that the father still has a key to the mother's house. She testified that she has always discussed celebrating the child's birthday in a neutral location and that they would alternate major holidays. She testified that she understands the importance of having a father because her own father was murdered when she was three years old, and she does not want the child to go through the same experience of not having a father. The mother testified that even when the child is in Georgia she has always tried to FaceTime the father so that he could speak with the child.
The mother reads Disney books to the child to accommodate her shorter attention span. She testified that she tries to prepare food for the child that is soft so that the child can chew it easily.
The mother testified that the child has had a relationship with the maternal grandmother from the very beginning; the grandmother was present when the child was born and has fed her, changed her diapers, helped bathe her and taught her prayers. The maternal grandmother was first in New York from February to May in 2017 and then again from August to November and she returned in December for Christmas.
In contrast, the mother testified that the paternal grandmother did not visit the child until the night before the mother and child were released from the hospital; her visits were infrequent at first. The mother testified that there was an altercation between the maternal and paternal grandmother that caused the father to decide that the paternal grandmother would not see the child, and from April to November 1, 2017, the paternal grandmother did not see the child.
The mother testified that the father is a very caring father, he's very gentle and loves the child. The mother testified that at first the parties were very close friends and would talk about everything, but now the mother has lost a friend and the parties don't speak at all. She testified that she has no living relatives near New York, and she has no family support in the area.
The mother testified that on February 12, the mother called the father to let him know that she had picked up the child and they were on their way home, then she was served. She testified that the father sent her calls to voicemail twice which caused her to assume that they were no longer in a relationship. She called her friend to help her remove her stuff from the father's home. She testified that on February 13, she received a call that the father was looking for her and she asked Ms. H. to be on a three-way call because she no longer trusted the father. The mother testified that during that call she informed the father that she and the child would be leaving for Georgia on Thursday, February 15. She testified that the father told her that he served her out of spite because he learned she "actually got the job". She testified that she responded, "so this is not about Maddux" and he said he was just angry.
The mother testified that the father does not abide by the parties' temporary parenting time order, that he tells the mother he does not receive her texts or hear the doorbell and she is left standing outside his building waiting. She further testified that she has required assistance from the police.
On cross-examination by the father's attorney, the mother testified that her name is on the title of the house in Georgia and that she did not ask the father to be a co-applicant on the mortgage. She testified that the contract on the house was only signed by the mother. At the time the mother signed the contract on the house in early January 2015, she had met the father one time in 2013, and for a period in October 2014 and a period in November 2014. The mother testified again that she signed the contract because the father told her they would be a family and she believed that was true. The mother did not ask the father to pay any portion of the purchase price on the house and there are no restrictions on the mother renting the home. The maternal grandmother currently lives in the home, but does not contribute to the expenses on the house. The mother's father is deceased and she has no siblings.
The mother testified that if her relocation application were denied, then the maternal grandmother would come to New York to help the mother.
The mother stated that the child had been in a daycare program called "Tutor Time" for three days, November 1 through November 3, in 2017. The mother provided "Tutor Time" with an EpiPen, and then took it back when the child was pulled out of "Tutor Time". The mother keeps one EpiPen in the baby bag and the other EpiPen stays at the house. The mother testified that the child has not been in any other formal daycare since her birth other than the three-day stint at "Tutor Time". The EpiPen was purchased in connection with the child entering daycare.
The mother confirmed that the child's doctor diagnosed the child with a dairy allergy one month after the child was born but the doctor did not mention the EpiPen until October of 2017, when the mother was doing the paperwork to have the child enrolled in "Tutor Time".
The mother testified that after the child was pulled out of "Tutor Time" on November 3, 2017, the paternal grandmother started taking care of the child at the paternal grandmother's home. During that period the mother took the child to the paternal grandmother's home in the mornings, Monday through Friday.
The mother testified that she put anything the child might need, including diapers, wipes, Pedialyte, the EpiPen, in the child's baby bag, and gave that bag to the child's current caretaker, Ms. M. She testified that Ms. M. sometimes returns items to the mother the next day, like clothes for the mother to launder. The mother testified that she explained to Ms. M. how to use the EpiPen and that the EpiPen is supposed to be used if the child goes into anaphylactic shock. The mother testified that the child will have extreme gas and have blood and mucus in her stool if she consumes dairy.
The mother testified that the child has not had any formal education to date. The child's current caretaker, Ms. M., takes care of the child in the one-room basement of a home, but not in her home. Ms. M. cares for two other children in that house, and one of those children lives there. One of the children is a little older than 6 months old, the other child is 3 years old. The mother provides everything that the child eats while in Ms. M.'s care. The mother testified that Ms. M. is acting as a caregiver to the child; she is not licensed to run a daycare.
The child is with the father from Friday afternoon until Sunday at 6:30 PM. The child sleeps at the mother's residence on Sunday night. On Monday the mother is usually off from work and she takes the child to Ms. M right before the father is scheduled to pick her up after 2:00 PM. The father picks up the child and keeps her until the mother picks her up at 7:00 PM to 7:30 PM. When the mother gets home with the child the mother feeds the child, bathes her, and then they read. The child eats as soon as they get home. The mother testified that she feeds the child dinner even though the father also feeds the child dinner.
On Tuesdays, the mother drops off the child to Ms. M. between 8:30 AM and 9:00 AM, goes to work, gets off work between 6:30 PM to 7:00 PM and picks up the child. At first the mother alone paid for the Ms. M.'s services, but the parents now split the cost.
The mother testified that at the time she went to Georgia for the child's birthday party in February of 2018 she had already removed some of her and the child's clothing from the father's apartment. She testified that she was working in Bethpage, New York at AT & T when she went to Georgia for the party and that when she left for Georgia she told AT & T that she was going on vacation, that she was leaving on February 15 and would be returning around the 22nd.
Under the offer the mother received from AT & T she was due to start the job in Georgia on February 19, 2018. She testified that she rescinded that job offer. She confirmed that the offer for a marketing position with Pretty Global included a 90-day probation period, after which the job could become permanent, depending on the mother's performance. The mother testified that she began a job search in New York in the summer of 2017 and that she applied to some jobs in New York. She applied online and went to a temporary agency located in Garden City, where she filled out a profile and was interviewed by a manager. She testified that she applied for sales and marketing positions and that her master's degree is in organizational leadership. She did not look for a job in any other field. The mother did not look for any jobs outside of Nassau County.
The mother testified that she does not provide the father with clothing for his parenting time with the child beginning Friday evening. She testified that she left clothes at the father's home when she moved out. The mother testified that both parties provide diapers for the child.
The mother testified that when she previously testified that she wanted to co-parent with the father, she meant that she wanted them to co-exist and raise the child together, but that does not mean they must live in the same place, and she testified that they could "co-parent" if living in separate places.
On cross-examination by the AFC the mother testified that she hired Ms. M. as the current childcare provider without first telling the father. The mother testified that the parties don't communicate and said that the father has not responded when she has tried texting him about important issues. She testified that the job offer from AT & T in Georgia was for the same position that she has in New York but paid more money. The parties spoke about that job offer on February 4 while they were not living together, and she was in Georgia on jury duty. She testified that the father was refusing her FaceTime and phone calls until the mother asked the father's friend to help and then the father accepted the mother's call.
The mother testified that she told her manager at AT & T about the Atlanta job offer and that she was not given an explanation about why AT & T would pay a higher salary for the same position she has here, in a location with a lower cost of living. She testified that the Bethpage location where she works now will be closing in May of 2019 and that the AT & T position in Georgia would have been in Cummings, Georgia, about 45 minutes from Atlanta.
The mother testified that when she was served the father was refusing her phone calls so she felt like she had to "just leave". She confirmed that at the time the father had her served she had already removed some clothes, consisting of winter coats, boots, and some of the child's clothes. She testified that the weather in Georgia at that time was still warm, so she did not need her winter clothes.
The mother testified that when she filed her relocation petition she did not have a job in Georgia and at the time of the hearing, the only potential position open to the mother was the offer from Pretty Global, which she did not receive until September 11, 2018, for a position to start November 15, 2018.
She testified that she did not get any leads on jobs in New York after posting her resume on Indeed, Monster.com and Linkedin. She also attended a career fair at Hofstra University, for anyone with a college education. She testified that her master's degree makes her eligible for director and managerial marketing positions.
The mother learned of the Little Linguistics program in Georgia, which costs $ 1,500 per month. The mother testified that she did not invite the father to investigate the program with her during the summer of 2018. She testified that if permitted to relocate to Georgia, the child would be around friends, family and would interact with other children, and acknowledged that the same would be true in New York. She confirmed that she liked some schools in New York.
The mother testified that her search for comparable homes in in New York consisted of looking on Zillow two or three times for apartments near her. She did not look at any apartments in person. The mother said that the maternal grandmother did not move into the mother's Georgia house until after the mother had already moved in. She testified that she had not considered renting out the house to tenants who would pay her and confirmed that is an option available to her.
The mother testified that she has not had to use the EpiPen following the daughter being diagnosed with a dairy allergy. She confirmed that in addition to being caused by tight braids, the child's alopecia can be caused by her genetic makeup.
The parties lived together from the time the child was born until February. The mother testified that the father paid all the New York bills and that was based on the parties' agreement because the mother couldn't pay for the house in Georgia and pay the New York bills. The mother testified that the father worked every day while the mother was on maternity leave and that the father saw the child every day when the parties lived together.
On redirect by the mother's attorney, the mother testified as to two additional cousins who live in Georgia and are the same age as the child.
The mother's next witness on her direct case was Ramona Smith, the child's maternal grandmother. The child is Ms. Smith's only grandchild. Ms. Smith lived with parties in New York when the child was born and stayed in New York until April of 2017. She returned to New York a second time when the mother had to have surgery again after the child was born.
Ms. S. testified that the mother always took care of the child and Ms. S. tried to help her as much as she could. The mother would change the child's diapers and feed her. Ms. S. testified that she observed the father with the child and that when he would come home from work, he would see the child and play with her. She testified that sometimes he would spend approximately 30 minutes with the baby. She also testified that the father took Ms. S. to do grocery shopping and that the mother would also do grocery shopping. Before the child was born, the mother would cook but after the child was born Ms. S. did most of the cooking. Ms. S. testified that she saw the paternal grandmother twice at the father's house.
Ms. S. testified that she asked the father on two occasions if he was going to marry the mother and he responded "yes". She testified that she overheard the parties discussing eventually moving back to Atlanta.
On cross-examination by the father's attorney, Ms. S. testified that she does not have a car to drive in New York and the father drove her to the grocery store to go shopping for the parents. She testified that he would go in the store with her, but he did not pay. She testified that the father would sometimes go to the store to get the child's diapers himself. She also testified that the father would hold and play with the child and talk to her using "baby talk". She testified that the father always left the house at 6:00 AM and that sometimes he went to bed around 9:00 PM, sometimes later. The child went to sleep at varying times, sometimes at midnight, if she was not sleeping well. She testified that the father worked full-time while she was in New York and he cooked dinner once during that time. She confirmed that the father changed the child's diaper in her presence and that she had a conversation with the father around the time that she was returning to Georgia in April of 2017 where she asked the father if he intended to marry the mother and he responded, "oh yes!". Ms. S. told the mother what the father said.
The father's attorney called him back for further questioning and the father testified that the greatest amount of time he spent in Georgia visiting the mother was two weeks. That visit took place in October of 2014. There were no other occasions where he spent that much time in Georgia.
WRITTEN SUMMATIONS
Counsel for both parties and the AFC submitted written summations. The father's counsel argues that both parties are loving and fit custodial parents, that the child is strongly attached to each parent, and that both parties have been involved with the raising of the child since birth. However, counsel for the father argues that custody should be awarded to the father because the mother is placing her own desires to live in Georgia ahead of the child's strong attachment to the father. Counsel for the father further argues that, without presenting any clear proof of any benefits for the child derived from relocating to Georgia, the mother has petitioned the Court to remove the child from "the only home she has ever known and its ties and bonds, to relocate some 900 miles away to Georgia", which is a "selfish act that fails to consider" the child's best interests or needs. (Closing Arguments and Brief on Behalf of Rowan Munroe ["Father's Written Summation"], pp. 16-17).
The mother's counsel argues that the mother's requested relocation from New York to Georgia would be in the best interest of the child due to the mother's inability to meet her expenses, which is a legally sufficient reason to warrant relocation. (Closing Brief on Behalf of the Mother , ["Mother's Written Summation"], p. 1). Counsel for the mother further argues that in addition to being "economically necessary", relocation to Georgia would enhance the child's life "emotionally and educationally" and that, while the relocation would have an impact on the father's ability to spend time with the child, a liberal visitation schedule, including extended visits during the summer and school vacations, will allow for the continuation of a meaningful relationship between the father and the child. (Mother's Written Summation, p. 2). The mother's counsel further argues that the cost of living in Georgia is "significantly less than the cost of living on Long Island" and that the mother "would earn significantly more money living and working in Georgia by more than 35 percent". (Mother's Written Summation, p. 3).
The AFC argues that because this is an initial custody determination, the mother's proposed relocation to Georgia should be considered as only one factor relevant to the Court's determination as to the appropriate custodial determination. (Attorney for the Child's Post-Trial Memorandum ["AFC's Written Summation"], ¶ 14). To that end, the AFC argues that both parties are fit custodians, to whom the child is deeply bonded and that both parties have established home environments that are meeting of all the child's needs. (AFC's Written Summation , ¶ 16). The AFC argues that the proposed move to Georgia would significantly impact the child's relationship with the father and that the mother has failed to demonstrate that the proposed move would be in the child's best interests. (AFC's Written Summation , ¶¶ 18-19). The AFC recommends enjoining the mother from relocating to Georgia with the child and, if the mother remains in New York, granting the mother residential custody with a liberal parenting time schedule for the father. (AFC's Written Summation , ¶ 24).
DISCUSSION
In an initial custody determination, neither parent has a prima facie right to custody. [ Dornbusch v. Dornbusch , 110 AD2d 808, appeal dismissed , 65 NY2d 1024 [1985] ; appeal denied , 65 NY2d 609 [1985] ; Scott v. Powell , 146 AD3d 964, 965 [2d Dept. 2017] ). The Court must consider what arrangement is in the best interests of the child under the totality of the circumstances, taking into account a number of factors, including the relative fitness of the parents, the quality of the respective home environments, the quality of parental guidance, the ability of each parent to provide for the child's emotional and intellectual development, and the effect an award of custody to one parent might have on the child's relationship with the other parent". ( Goodman v. Jones , 146 AD3d 884, 885 [2d Dept. 2017] ; Eschbach v Eschbach , 56 NY2d 167, 172 [1982] ). While "[c]oncerns such as the financial status and the ability of each parent to provide for the child should not be overlooked...an equally valid concern is the ability of each parent to provide for the child's emotional and intellectual development". ( Eschbach , supra , 56 NY2d at 172 ).
As the mother's custody cross-petition includes a request for permission to relocate with the child to Georgia, the Court is guided by Matter of Tropea v. Tropea , 87 NY2d 727 [1996], the seminal case governing relocation applications in New York custody matters . However, since this is an initial custody determination, "the strict application of the [Tropea ] factors relevant to relocation petitions" is not required. (Matter of Alvarado v. Cordova , 158 AD3d 794, 794 [2d Dept. 2018] ; Matter of Portillo v. Maraj , 160 AD3d 748, 750 [2d Dept. 2018] ; Yu Chao Tan v. Hong Shan Kuang , 136 AD3d 933, 934 [2d Dept. 2016] ; Matter of Saperston v. Holdaway , 93 AD3d 1271, 1272 [4th Dept. 2012], appeal dismissed 19 NY3d 887 [2012], appeal dismissed 20 NY3d 1052 [2013] ). Instead, the mother's relocation to Georgia "is but one factor" to be considered in determining what is in the child's best interests. ( Yu Chao Tan , supra , 136 AD3d at 934 ; Portillo , supra , 160 AD3d at 749-750 ). "Stated differently, in cases involving the geographic relocation of the custodial parent, as in all other custody proceedings, the primary focus of the court is the best interests of the child, not the mere fact of relocation". ( Saperston , supra , 93 AD3d at 1272 ).
In Tropea , the Court of Appeals provided a non-exhaustive list of factors to be considered on a relocation application, including, but not limited to: a) each parent's reasons for seeking or opposing the move; b) the quality of the relationships between the child and the custodial and noncustodial parents; c) the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent; d) the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move; and e) the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements. (Tropea , supra , 87 NY2d at 740-741 ).
Over the course of these proceedings, the Court has had the ability to hear the testimony, view the demeanor of the witnesses, assess their credibility, and give the various testimony the appropriate weight. This Court finds that the mother was a more credible, truthful and forthcoming witness than the father, particularly relating to their respective testimonies as to the circumstances leading to the mother purchasing a house in Georgia, her moving to New York in 2015, and her moving out of the father's home in February of 2018. Both parties were generally polite and composed during the proceedings, but the Court observed the father become argumentative and change his testimony when questioned on cross examination. In particular, the father drastically changed his testimony about the events that occurred February 12, 2018 the mother taking the child to Georgia for the child's birthday party there. The father changed his testimony from having "no idea" that the mother was traveling to Georgia that weekend, to confirming that it was originally planned for both parties and the child to travel to the birthday party in Georgia. Likewise, the father changed his testimony about whether he spoke to the mother the day she moved out of his house, until he ultimately testified that they spoke on the phone around "4ish" while the mother was driving to the father's house with the child, where the father stated that she was served with his custody papers around 5:00 PM.
In contrast, the Court finds that the mother credibly testified that the father told her he filed and served her with custody papers "out of spite" after she informed him that she got a job in Georgia. Moreover, the Court finds that the father's behavior in filing and serving the papers was consistent with someone acting out of spite, since he filed his papers on February 6, one or two days after the mother advised him that she got a job offer, the parties jointly hosted a party in New York on February 10, jointly opened the child's gifts in his home on February 11, and on February 12 the mother was served with the father's papers.
The Court further finds that the parties' testimony establishes that the mother is more likely to foster a meaningful relationship between the child and the father if granted custody of the child. "One of the primary responsibilities of a custodial parent is to assure meaningful contact between the children and the noncustodial parent, and the willingness of a parent to assure such meaningful contact between the children and the other parent is a factor to be considered in making a custody determination". ( Matter of Renee P.-F v. Frank G. , 161 AD3d 1163, 1166 [2d Dept. 2018] ). In this case, the mother credibly testified that she would assure the child's meaningful contact with the father would be maintained if she were granted custody of the child. In addition to proposing a parenting schedule consisting of alternating major holidays and celebrating the child's birthday in a neutral location, the mother also credibly testified that she valued a meaningful relationship between a child and her father due to losing her own father when she was a child. In contrast, the father was incapable of proposing any parenting time schedule if he was granted custody. Overall, the Court concludes that the mother is more likely than the father to foster and facilitate a meaningful relationship with the noncustodial parent. ( Matter of Renee P.-F , supra , 161 AD3d at 1166 ).
The Court further finds that the mother has so far been the child's primary caretaker, as it is undisputed that the mother arranged for nearly every one of the child's doctor's appointments while the father only scheduled one appointment and only attended a few appointments with the pediatrician and attended no appointments with any of the child's specialists. Furthermore, it is undisputed that the mother took care of the child full-time (with assistance from the maternal grandmother) while she was out on maternity leave, and that since she has returned to work full-time the parties have equally relied on third parties to take care of the child while they work. According to the mother's undisputed testimony, she presently prepares a bag with all the items the child needs for the child care provider, including food and EpiPen, and the child care provider returns the child's clothes to the mother for laundering. Both parties testify to changing the child's diapers, reading to her, bathing her, feeding her and taking her to do activities.
The parties both testified about an EpiPen, and while there was no evidence submitted by either party as to whether an EpiPen is medically necessary for the child, other than testimony that the child's physician prescribed the EpiPen, the Court finds that the father demonstrated poor parenting judgment when he testified that although the child requires an EpiPen, he was not required to purchase one because he would "never feed the child dairy".
The Court also finds that given the parties' testimony and the mother having completed a high level of education, that she is the parent who has attempted to provide so far and who will provide the needed intellectual development for the child.
With respect to each parent's financial status, the Court finds that although the father undisputedly earns a higher salary than the mother, the testimony and evidence at trial established that both parents provide for the child's needs, including by purchasing the child's diapers, her special dietary formula, and splitting the cost of her current childcare provider.
The Court has considered that both parents testified that the other parent is a good parent and that they testified that both parents love and care for the child. The Court has also considered the findings set forth in Dr. Favaro's forensic evaluation following his observations of each parent with the child, including his conclusions that the overall observation between the mother and the child was "positive, warm and loving" and the child was "responsive to the her mother", and that the overall observation between the father and the child was "positive", that the "father showed good caregiving and was warm" and that the child "was responsive to her father". (Petitioner's Ex. 1, p. 32). However, the opinions of court-appointed experts, while entitled to some weight, "are not determinative" and "do not usurp" this Court's judgment. ( Nikolic v. Ingrassia , 47 AD3d 819, 821 [2d Dept. 2008] ).
The Court found the testimony of Florette Harrison irrelevant and deemed it unpersuasive.
In this case, having weighed the factors relevant to an initial custody determination, and based on this Court's assessment of the witnesses' credibility and demeanor at trial, and particularly considering the father's relative lack of veracity in testifying about the mother moving out, contrasted with the mother's credible testimony that the father filed his custody petition out of spite, the Court finds that, under the totality of the circumstances, the mother is the parent better able to provide for the child's emotional and intellectual guidance. As discussed above, the Court also finds that the mother is the parent more likely to foster and facilitate a meaningful relationship with the father as noncustodial parent, and finds that, in general, the mother has acted as the child's primary caretaker and has exercised superior parental judgment to that of the father. Overall the Court finds that the father, while "not an unfit parent", is under all the circumstances present here, the "less fit parent" and it is in the child's best interest for the mother to have sole legal and sole residential custody of the child. ( Eschbach , supra , 56 NY2d at 174 ).
While this matter involves an initial custody determination and thus cannot properly be characterized as a relocation case, the mother's application to move the child from New York to Georgia is nonetheless a relevant factor to be considered in connection with this Court's "best interests" analysis. (See , Tropea , supra , 87 NY2d at 739-740 ; Buell v. Buell , 258 AD2d 709, 709 [3d Dept. 1999] ). After reviewing the testimony and evidence submitted at the fact-finding, the Court finds that the mother has failed to demonstrate that relocating to Georgia with the child would be in the child's best interests.
The mother principally argues that she is seeking to relocate to Georgia out of "economic necessity" and because the mother has a strong support network there, comprised of friends and relatives. The father primarily argues against relocation because it will be impossible to continue the substantial and regular parenting time he has enjoyed with the child thus far if the child lives in Georgia. The Court finds, in the first place, that the mother has failed to demonstrate that relocation is warranted due to "economic necessity". The mother has testified that living in Georgia would result in a lower cost of living and an increased salary, which would enable her to financially support the child in all ways, including paying for any of the child's extracurricular activities and travel, paying for the child to attend an early-education school, and paying for the father to fly to Georgia for monthly parenting time with the child. However, the mother's testimony about having an increased salary in Georgia assumes that she would be working in a higher paying job there and the Court finds based on the mother's own representations during fact-finding hearing, that the mother may no longer have any job opportunities available to her in Georgia at this time. The mother testified that her most recent job offer required her to submit a response by November 2018, and there was no testimony or evidence submitted indicating that the job would remain open if she failed to do so. The Court further finds that while the mother engaged in a job search in New York, the mother failed to demonstrate how, if at all, she leveraged her master's degree in conducting such a search, and whether her search in New York was equivalent to her job search in Georgia.
Similarly, the mother argues that she cannot maintain her house in Georgia in addition to a comparable residence in New York. However, she conceded during questioning by the AFC that she had not considered the possibility of renting out her Georgia house to tenants who would pay her (as her mother, who currently resides in the house, does not pay any expenses towards the home) and agreed that such an arrangement is an option. The mother also testified that if permitted to relocate to Georgia she planned to enroll the child in an early-education linguistics school, but also conceded on cross-examination that she had also found schools in New York that she liked.
The mother credibly testified that her family support network is stronger in Georgia and that she has no family support in New York. Several of the mother's relatives live in Georgia, including her own mother, various aunts, uncles, cousins and friends, including her sorority sisters and the child has several cousins in Georgia who are close to her in age and with whom she has playdates. Additionally, the mother clearly has a strained relationship with the paternal grandmother, who lives in New York , although the Court notes that the paternal grandmother has taken care of the child in the past and there was no testimony or evidence at the fact-finding hearing to indicate that it would not be beneficial for the child to enjoy a relationship with the paternal grandmother. Moreover, the mother testified on cross-examination that in New York the child would also be around friends, family and would interact with other children. Furthermore, the mother testified that if not permitted to relocate to Georgia, then the maternal grandmother, with whom the child has a strong relationship, would move to New York to assist the mother.
Such strained relationship is evidenced by the mother's bringing a family offense petition against the paternal grandmother. Following a fact-finding on the mother's family offense petition against the paternal grandmother, the Court found that the mother proved by a preponderance of evidence that the paternal grandmother committed harassment in the first or second degree and disorderly conduct against the mother, and ordered that judgment against the paternal grandmother be suspended for a period of six (6) months, conditioned on the paternal grandmother refraining from crimes against the mother.
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Overall, the Court finds that the mother has advanced good faith reasons to relocate with the child, but she has failed to demonstrate that relocation to Georgia would enhance the child's life economically, emotionally and educationally. (See Tropea , supra , 87 NY2d at 740-741 ).
Moreover, a relocation by the mother to Georgia would undoubtedly cause a significant and adverse impact on the quantity and quality of the child's future contact with the father. ( Tropea , supra , 87 NY2d at 739 ["Of course, the impact of the move on the relationship between the child and the noncustodial parent will remain a central concern"]. Considering the distance between Georgia and New York, the child's young age and level of development, and the father's current practice of exercising substantial parenting time with the child on nearly a daily basis, the Court finds that even a liberal visitation schedule including multiple weekends and extended visits in the summer would be insufficient to preserve the meaningful relationship between the father and the child that the father endeavors to maintain. ( Barnard v. Joyce-Barnard , 46 Misc 3d 1215[A], at *11 [Sup. Ct. Monroe Cty., 2015] [" in the instance of a young child, who is still searching to establish a bond with a parent, the distance will undermine any ‘meaningful relationship’ because the child lacks daily or frequent exposure to the parent"]; In re Luis , 18 Misc 3d 650, 668 [Fam. Ct. Kings Cty. 2007] [" because of child's age and developmental level and the father's daily and fully-engaged interaction with the child, no adequate parenting plan can be developed over this long of a distance"].
The Court is mindful of the mother's credible testimony, disputed by the father, that the father encouraged her to purchase her house in Georgia for their anticipated "family" and that she moved to New York with the understanding that the father wanted them to live in the same place for a year, then get engaged and move back to Georgia. However, even if the mother undertook such actions in reliance on the father's representations, such considerations "do not trump the central issue here, which is the best interests of the child". (See Koegler v. Woodard , 96 AD3d 454, 458 [1st Dept. 2012] ).
In this case, in examining the totality of the circumstances, including the factors relevant to relocation, this Court finds that it is in the best interests of the child for the mother to be awarded sole legal and sole residential custody of the child, with substantial and regular parenting time to the father, and for the child's residence to remain in New York.
The Court has searched the statewide registry of orders of protection, the sex offender registry and the Family Courts' warrant and child protective records and has considered and relied upon the above noted results of these searches in making its decision.
Accordingly, it is
ORDERED , that the mother, J.A.S., shall have sole legal and sole residential custody of the subject child, M.M.M., whose date of birth is February 18, 2017; and it is further
ORDERED , that neither parent shall relocate the residence of the child to outside of down state New York state without an order from a court of competent jurisdiction or written consent of the other party; and it is further
ORDERED , that commencing Friday, January 11, 2019, the father shall have parenting time on alternating weekends, from Friday at 2:30 PM, or, once the child enters school, at the conclusion of school, and ending at 6:30 PM on Sunday evening; and it is further
ORDERED , that for the father's alternate weekend parenting time described above, the father shall be responsible for picking up the child from the child care provider or from school at the commencement of said weekend parenting time, and at the conclusion of his alternate weekend parenting time shall be responsible for transporting the child to the., or another neutral location as agreed to by the parties in a future writing, where the mother will pick up the child at 6:30 PM on Sunday; and it is further
ORDERED , that the father shall have weekly dinner visits with the child from either 2:30 PM or at the conclusion of school until 7:30 PM on every Wednesday, and it is further
ORDERED , that the parents shall adhere to the following holiday parenting time schedule, which shall supersede the regular weekly parenting time schedule and the alternate weekend parenting schedule:
• On President's Day from 9:00 AM until 8:00 PM, the father shall have the child for parenting time in even years, the mother shall have the child in odd years;
• On Easter Sunday from 9:00 AM until 8:00 PM, the father shall have the child for parenting time in odd years, the mother shall have the child in even years;
• On Memorial Day from 9:00AM until 8:00 PM, the father shall have the child for parenting time in even years, the mother shall have the child in odd years;
• On July 4th from 9:00AM until 8:00 PM, the father shall have the child for parenting time in odd years, the mother shall have the child in even years;
• On Labor Day from 9:00 AM until 8:00 PM, the father shall have the child for parenting time in even years, the mother shall have the child in odd years;
• On Thanksgiving Day from 9:00 AM until 8:00 PM, the father shall have the child for parenting time in odd years, the mother shall have the child for parenting time in even years;
• For Christmas Eve from December 24th at 9:00 AM until December 25th at 9:00 AM the father shall have the child for parenting time in even years, the mother shall have the child in odd years;
• For Christmas Day from December 25th at 9:00 AM until December 26th at 9:00 AM the father shall have the child for parenting time in odd years, the mother shall have the child in even years;
• On New Year's Eve starting at 12:00 Noon on December 31st to New Year's Day at 12:00 Noon on January 1st, the father shall have the child for parenting time in odd years, the mother shall have the child for parenting time in even years, with "odd" and "even" being measured by the year in which New Year's Eve falls; and it is further
ORDERED, that when the child is attending school, the parents shall have parenting time with the child for the Christmas/New Year's Eve school recess period as follows: beginning December 26th at 9:00 AM until December 28th at 8:00 PM, the father shall have the child for parenting time in even years and the mother shall have the child for parenting time in odd years, and beginning at December 28th at 8:00 PM until December 31st at 12:00 Noon, the father shall have the child for parenting time in odd years and the mother shall have the child for parenting time in even years. Such Christmas-New Year's recess parenting time shall supersede the parties' regular weekly parenting time schedule and alternate weekend parenting time schedule; and it is further,
ORDERED, that when the child is attending school, the parents shall have parenting time with the child in the Winter and Spring recess periods, as follows: for the Winter recess (typically in February), the father shall have the child for parenting time in even years and the mother shall have the child for parenting time in odd years; for the Spring recess, the father shall have the child in odd years and the mother shall have the child in even years. Such school recess parenting time shall not interfere with the other parent's alternate weekend parenting time but shall supersede the regular weekly parenting time schedule. The school recess parenting time shall commence at 10:00 AM the first weekday that school is closed to the beginning of the other parent's alternate weekend, or, if the parent who has the child for the school recess parenting time also has alternate weekend parenting time that immediately follows the recess period, then until the end of the parent's alternate weekend parenting time; and it is further,
ORDERED, that each party shall be entitled to one uninterrupted seven (7) day week in July and one uninterrupted seven (7) day week in August for uninterrupted summer parenting time with the child. In odd years the mother shall be entitled to select her uninterrupted summer parenting time weeks first, and shall provide the father with written text message notice of her selected weeks no later than May 1 of the same calendar year preceding that summer; the father shall then provide the mother with written text message notice of his selected weeks no later than May 15 of that same calendar year; in even years the father shall be entitled to select his uninterrupted summer parenting time weeks first and shall provide the mother with written text message notice of his selected weeks no later than May 1 of the same calendar year preceding the summer; the mother shall then provide the father with written text message notice of her selected weeks no later than May 15 of that same calendar year. The foregoing two (2) week summer parenting time shall supersede the father's regular weekly parenting time and the parties' alternate weekend parenting time described above; and it is further
ORDERED , that if the father's regular weekly parenting time or alternate weekend parenting time does not fall on any of the following occasions, then the father shall be entitled to at least three (3) hours of parenting time on the father's birthday and shall be entitled to parenting time from 9:00 AM to 8:00 PM on Father's Day; and it is further
ORDERED , that if the father's regular weekly parenting time or alternate weekend parenting time falls on any of the following occasions, then the mother shall be entitled to at least three (3) hours of parenting time on the mother's birthday and shall be entitled to parenting time from 9:00 AM to 8:00 PM on Mother's Day; and it is further
ORDERED , that the mother and the father shall each be entitled to a portion of the child's birthday and Halloween as follows: if the child's birthday and/or Halloween falls on a weekend, then the parent who does not have parenting time on that day shall have three (3) uninterrupted hours of parenting time with the child; if the child's birthday and/or Halloween falls on a weekday, including a weekday when the father would ordinarily have a dinner visit with the child, then on that day the father shall exercise parenting time from 2:30 PM until 5:30 PM or until the earliest time that the mother gets out of work, whichever is later; and it is further
ORDERED , that if the mother intends to leave the child for a period of four (4) hours or greater with a third party, the father shall have the right of first refusal to care for the child during that absence; and it is further
ORDERED , that the father shall be entitled to complete, detailed information and reports from all medical personnel, teachers and education personnel and others providing care for the child, and the mother, as soon as practicable, shall notify the father of any and all doctors' appointments, medical treatments, teacher conferences or counseling sessions or meetings involving the child and the father shall have the right to be in attendance; and it is further,
ORDERED , that the father is entitled to attend any public events in which the child is involved in, including, but not limited to, sporting events, plays, recitals or any such extracurricular activities; and it is further,
ORDERED , that each party shall notify the other if the child is to be away from their respective residence for more than one (1) overnight and shall provide the other with the location, complete itinerary information with respect to travel and the telephone number at which the child may be reached; and it is further
ORDERED , that each party shall allow the other party to have reasonable daily telephone and computer contact with the child when the child is in their respective care; and it is further
ORDERED, that the parties shall not communicate with each other except in writing by email or text and that such communications shall be limited to discussing the children's health, welfare, safety and well-being as well as other parenting issues, including scheduling parenting time; and it is further
ORDERED, that any other relief requested that is not addressed herein is deemed denied; and
ORDERED , that there shall be such other parenting time as agreed to between the parties in a future writing.