Opinion
No. XX/10.
2010-08-25
ROBERTO A.M., Plaintiff, v. ESMERALDA M., Defendant.
David H. Perlman, Esq., Brooklyn, Attorney for Plaintiff. Kim Susser, Esq., Hannah R. West, Esq, New York Legal Assistance Group, New York, Attorney for Defendant.
David H. Perlman, Esq., Brooklyn, Attorney for Plaintiff. Kim Susser, Esq., Hannah R. West, Esq, New York Legal Assistance Group, New York, Attorney for Defendant.
Susan Iannelli, Esq., Brooklyn, Attorney for the Children.
JEFFREY S. SUNSHINE, J.
Procedural Background
The mother moved for an order of custody and modification of prior orders of custody entered in the Family Court, on consent. There are two (2) children of this marriage ages 14 and 9, hereinafter referred to as “the eldest child” and “the younger child”.
This matter was tried in 2009 on October 27 and 30, November 6 and 10, and December 10 and 11, and in 2010 on January 8 and February 17. Thereafter, post trial submissions were prepared and after adjournment granted, on consent. The matter was submitted for consideration on June 1, 2010. Defendant-mother (hereinafter referred to as mother) and plaintiff-father (hereinafter referred to as father) were married in December 1996 and in 2003 were physically separated when the mother left the marital residence alleging abuse against herself and the children. On June 27, 2003 the father filed a petition for custody in Family Court, Kings County. Thereafter, on October 21, 2003, from the Family Court, joint custody was awarded on consent to both parties with the mother retaining primary custody and the father receiving weekend visitation. In accordance with the Family Court's data entry records, shortly thereafter, on October 30, 2003, the mother, pro se, filed a family offense petition, which was dismissed the very same day without prejudice.
The children's names are not used herein to protect their identities.
On June 1, 2005, the father filed a petition for a modification of an order of custody, and in response, on July 28, 2005, the mother also filed a petition for a modification of an order of custody. The mother defaulted having failed to appear on October 21, 2005. Accordingly, the father's petition was granted, awarding him custody. Thereafter, the mother filed petitions dated January 6 and February 9, 2006, respectively. The mother sought to modify and to vacate the custody orders of October 21, 2005, alleging that the father threatened her life and the lives of their children were she to appear in court on that date in 2005. The mother's petitions were denied in 2005 and the custody order remained unchanged until October 22, 2008. The parties consented in Family Court to the father retaining primary physical custody with clearly defined visitation rights for the mother. The mother was represented by private counsel at this time.
On December 17, 2008, the father filed the within action for divorce and the Family Court matters were consolidated, on consent, by this court into the matrimonial action. Alleging a change in circumstances, on August 6, 2009, the mother filed an order to show cause seeking custody of the children. At the conclusion of the oral argument for the order to show cause, it was clear that there was a sufficient change in circumstances, as alleged, to warrant a trial on the issue. The prior attorneys for the children were unavailable, therefore, Susan Iannelli, Esq. was appointed, on consent, to represent the children. History of the Marriage
The father and mother met in 1989. Gilbert H, the mother's son from a previous relation, is 21 years of age. The mother also has an infant son, hereinafter referred to as “Infant–E”. The father herein is not the father of Gilbert H or Infant–E; however, he has played a significant role in raising Gilbert H. The father is also now the father of a new infant daughter who lives with her mother in Puerto Rico. The parties met when Gilbert H was about ten (10) months old, and moved in together at the mother's parents' house a few months thereafter. The father testified that the last time he lived with the mother was in June 2003. The mother testified that the parties were physically separated on December 3, 2003.
The father is employed as a bus operator for the New York City Transit Authority and has been since 2004. In 2002 to 2004, he was employed by the New York City Department of Transportation; in 2001 to 2002, he was employed by a security company; and in 1994 to 2001, he was employed as a New York State Park Control Officer. The mother, after receiving training, is certified by the State of New York as an emergency medical technician, and she is currently employed by a private ambulance company. Chronology of Events
The mother alleges that the incidents of physical abuse between the parties began in 1995. She testified that the father's temper is such that “one minute he could be fine and the next minute he could just turn into a monster.”. She further testified that she was scared of the father because “he's always been abusive” towards her in the past. When the parties were living together, he frequently subjected her to verbal abuse, often in front of the children. He cursed at her, called her names, and told her she “would never amount to anything, that no one would ever want” her, that she was a “piece of s–––, a piece of garbage,” that she was damaged goods. According to the mother, this made her feel like she was worthless, but now she says she is a stronger person and no longer believes those things. The mother testified that the father's abusive actions affected the children; they are angry and lash out at each other.
The maternal grandmother also testified to witnessing incidents of abuse. She contends that the father was often verbally and physically abusive towards the mother before the couple physically separated. The maternal grandmother saw hand prints and finger marks from slapping on her daughter's face.
The mother testified to numerous incidents that she alleges illustrate this abuse. In February 1996 there was one particular event that caused her to temporarily separate from the father when she was seven (7) months pregnant with their eldest child. The incident began when the father started yelling at the mother; the father was “enraged” that the mother did not finish unpacking several boxes. He told her to “f empty every f box in the room,” and he then struck her across the face, causing her to fall to the kitchen floor. The mother stayed on the floor crying for a minute or two. Gilbert H was in the apartment in a different room. The mother claims she called her brother-in-law (the father's brother). The brother-in-law then drove Gilbert H and her to his house. The mother then went to stay with her grandfather in Florida for three to four months, and that is where she gave birth to the eldest child in March 1996. She alleges that the father was constantly calling her when she was in Florida. He told her that he could find her anywhere because he was a police officer. The mother told the father that she was afraid, and he convinced her to return to New York.
Gilbert H testified to the same incident. His testimony was consistent with the mother's, except that he said that he remembers the incident taking place in his mother's room, his mother's brother coming to help the mother, and in Florida living with his mother's aunt.
The mother testified to an incident in April 1997 that occurred at the marital residence while the parties were home with the eldest child. The father was in the shower when his phone rang in the other room. He yelled to the eldest child to answer it, but before the eldest child got to the phone, the mother answered it and heard a woman on the line. The father jumped out of the shower, and while he was still naked, started punching and kicking the mother. He hit her over the head with his cell phone and broke the phone. On re-cross examination, the mother admitted that this incident must have happened later in time, as the eldest child was only one year old in 1997.
The mother also testified that in approximately 1998 the parties had a dispute about finances. As the dispute escalated, the father began screaming, and the mother attempted to leave the marital residence with Gilbert H and the eldest child. The father allegedly threatened her that if she left he would kill the whole family. According to the mother, the father grabbed the eldest child by the pajamas, “and he pointed the gun at the back of his head.”. Then, the father pointed the gun at himself while Gilbert H and the eldest child were crying. The father shoved the mother and Gilbert H out the door but held the eldest child back, with the gun pointing to the back of the eldest child's head for a few minutes. The mother testified that she was afraid to leave the eldest child alone with the father for too long, so she returned to the marital residence a few hours later. Gilbert H testified similarly to this incident, except that Gilbert H said that the father picked the eldest child up by his hair, that he and the mother stayed overnight at the maternal grandmother's house, and that the incident happened in 1999.
The father did not testify about this incident. He did confirm, however, that when he graduated from the police academy on December 12, 1994, he became licensed to carry a gun. He testified that on some occasions, while he was a police officer, he kept the firearm in his home in a locked box without ammunition in the house. However, he initially testified that he only “broke it down” in the home.
Gilbert H testified to an incident that occurred in 1998 when he was in the car with the parties. After Gilbert H witnessed them arguing about finances, he saw his stepfather punch the mother in the face with a closed fist.
The mother testified that in approximately 1998 or 1999 there was an incident involving the family's pet dog. The mother disagreed with the father's insistence on keeping the dog chained to the stairway bannister because the dog would frequently urinate there; she also thought the dog should not be tied up all day. The mother testified that the parties began arguing about the dog and that the father “ran to the room and he put the gun to the dog's head, he started screaming and carrying on in front of the children.”. She testified that Gilbert H and the eldest child were both crying because they were able to see what was happening.
The mother testified about an altercation that occurred between her and the father in February 1999. During an argument, she alleges the father began shoving the mother and tackled her to the bed. Then, he jumped on top of her and choked her. The mother testified that she remembers “looking up to the ceiling in my bedroom, and I thought I was going to die that day.”. She lost consciousness, and when she woke up the father was gone. The mother alleges that she called the police and the father was arrested. According to the mother, the Criminal Court issued her a temporary order of protection against the father; the order was in effect from February 3 to February 8, 1999. The mother then admits that she recanted her statement to the District Attorney because the father was scaring her that he would lose his job and that the children would lose their health insurance if she pursued the matter.
Gilbert H testified that in 2000, while the father had a friend over, he witnessed the father grab the mother by her shirt and forcefully hit his head against her head. Following the incident, Gilbert H heard his mother crying while the father continued socializing with his friend.
The mother testified that the parties separated in 2003 after the father attacked her and Gilbert H. The altercation began with an argument between the mother and the paternal grandfather about the way she was disciplining the eldest child. The mother gave the eldest child a timeout because he hit the neighbor's daughter. The paternal grandfather asked the mother, “[w]hy do you have him in the f room,” called her a “f bitch,” and shoved her. The mother testified that Gilbert H told the paternal grandfather that he was tired of him and the father constantly abusing the mother. According to the mother, the paternal grandfather attacked and punched Gilbert H, who responded by swinging back. The father walked in, tackled Gilbert H to the floor, straddled him, and began “punching him all over.” Gilbert H allegedly received two (2) or three (3) black and blue marks as a result of this altercation. The mother testified that during the incident, the eldest child was present in the same room; he was crying and saying “please stop.”. The younger child was in the bedroom, and the mother could hear crying coming from the bedroom. During this incident, the mother was screaming because she was afraid for herself and her children. The father screamed at the mother, “get the f––– out of my house, get the f–––out.”. When the father was allegedly attacking Gilbert H, the mother admits to urinating on herself and told him not to hurt Gilbert H. The mother left the marital residence the same night that this incident occurred; she stayed with her mother. The mother testified that as she was leaving the marital residence, “I felt afraid, I felt hopeless, I felt empty.”. The mother testified to the impact the incident had on the children; after the incident, the eldest child and the younger child cried a lot and they became aggressive towards each other. Gilbert H's testimony substantiated the mother's account of this incident, except that he does not recall any bruises or marks on his body. Gilbert H also stated that he did not tell anyone about the incident in 2003 because he was scared that there would be repercussions. He recalled that his mother called the police and the police responded.
The mother testified that after that incident, Gilbert H and the children started living with the mother in the maternal grandmother's house. Gilbert H's testimony confirmed the mother's testimony. Gilbert H testified that at the end of the school year he moved to New Mexico with his uncle, the mother's brother, and his family for a year. After the year was over Gilbert H returned to New York with his grandmother.
The mother testified that in October of 2003, while driving toward Ocean Parkway in Brooklyn, New York the father pulled the car over to the curb, leaned toward the younger child, and started choking him. The mother claims she did not call the Administration for Children's Service (ACS) or the police because she was afraid and medical treatment was not needed.
On October 21, 2003, by order from the Family Court of the State of New York the parties were awarded joint custody of the children, with primary physical custody with the mother. The father was awarded access to the children Thursday through Sunday and other visitation that is agreeable to the parties. The mother testified that during this period she lived in the maternal grandmother's apartment with all three (3) of her children. She enrolled the children at school, took the children to the doctor, took the children to school, cooked meals for the children, and did the children's laundry. While taking care of the children she was also working for a private ambulance company from 7 a.m. to 2 p.m and also working a few night shifts. While she was working, the maternal grandmother or the paternal grandmother would watch the children.
On June 1, 2005, the father filed a petition for modification of an order of custody with the Family Court requesting physical custody of the children. On July 28, 2005, the mother also filed a petition for modification of an order of custody in the Family Court seeking sole custody of the children and the elimination of the father's Thursday through Sunday visitation period. On August 5, 2005, the mother did not appear for a court date relating to the custody issue; the mother testified that she did not receive any notice about this date from the father or the Family Court. She was, however, notified by the Family Court when she filed the July 28, 2005 petition. The matter was adjourned to October 21, 2005.
The mother testified that she was notified of the October 21, 2005, court date when the father dropped off papers at her house; however, she did not appear in Family Court on that date because the father threatened her life and the life of their children. Due to her default, the court ordered custody of the children to be transferred from the mother to the father.
The mother testified to an incident that occurred a few weeks before the October 21, 2005, court date that she believes illustrates the threats made by the father and the reasons for her past actions in the Family Court. The mother saw the father when he was dropping off the younger child. The father asked to speak with her and she got into his car. The father drove off and began to choke the younger child. He was crying and saying, “why are you doing this to me, daddy, what are you doing?”. At this time, the mother started screaming, pulled the father off the younger child, and asked the father not to hurt the younger child. The father told the mother, “if you show up [to the October 21, 2005, court appearance], I'm going to kill him, I'll kill you, I'll kill all of us.”. The father said to the younger child, “I am just fixing your jacket, I am just fixing your shirt.”.
The mother also testified to another incident related the father's threats that occurred one (1) or two (2) weeks before the October 21, 2005, court date. The father started yelling when he dropped the children at their maternal grandmother's house to see their mother. He screamed at the mother in front of the children; threatening her if she showed up to court he would kill her and the children, “that we would make the papers if I showed up.” The father said, “b––––, don't show up, you are going to pay the consequences” and started punching the mother for a few minutes. The mother was finally able to grab the children and slam the door to separate herself and the children from the father.
The mother testified to numerous phone calls from the father to the mother that further demonstrate the extent to which the father tried to discourage the mother from going to court on October 21, 2005. The mother also testified that the father called her yelling and screaming about money, telling her, “[y]ou will never have a dime. You'll never have anything of mine. You'll have nothing.” That day, the mother called the police and filed an incident report because the father was calling and harassing her. The mother also testified that for several days thereafter, the father repeatedly called the mother every few minutes, so frequently that the mother needed to unplug her phone.
Following these incidents and threats, the mother was afraid to appear in court on October 21, 2005. She avers that she did not realize that her failure to appear would result in the father gaining primary custody of the children. During this time the mother was represented by a privately retained counsel. The 2005 custody decision granted the mother liberal visitation rights; however, she did not think that she would be able to agree with the father about visitation because, she said, “he is very controlling” and “he's always controlled everything in my life, when I was living with him.”. An example of the cause for the mother's concern is from 2005 when the younger child told the mother that the father hit the eldest child and that the eldest child was not allowed to visit her until his bruises healed. The mother went to the police and the police officer brought the eldest child out from the father's house. The mother claims she saw a black and blue mark on the eldest child's upper right arm. The mark was fading; the younger child told the mother that the incident happened at least one (1) week earlier. The younger child told his mother that the eldest child was not listening to his father and that his father hit him.
The mother claims that in 2007, after not seeing the eldest child for two (2) weeks, she went to the police because the younger child told her that the eldest child was hit and the eldest child said, “mommy, I can't see you until my bruises go away.” After the mother called the police, the police escorted her to the father's house and interviewed the eldest child. The eldest child told the police, in the presence of the father, that his bruise was caused by an accidental fall in the bathroom.
The father testified that he took the younger child to the emergency room for a bruise in 2007. The father was driving the car when either the eldest child hit the younger child or the younger child hit his face on the arm rest.
The father claims that when the eldest child was baptized on April 22, 2007, the mother was not present. That date was the mother's birthday, and she was not present at the baptism. The father testified that he called the mother to tell her about the baptism, but she did not answer the phone. He says he did not contact the maternal grandmother and does not have a reason for not doing so. He excuses his action by saying that the children could have told her themselves.
The mother explained that she consented to the present custody order on October 22, 2008, on the advice of her private attorney. She claims her attorney advised her that it was unlikely that the children would be returned to her because she did not have her own apartment. She also testified that she consented because she was confused and scared after being involved in extensive court proceedings. The mother contends that she is now stronger than she was in October 2008, and she said, “I'm just fighting for my children.”.
The mother claims that she received text messages from the eldest child on August 18, 2009, describing an incident that happened the previous day. The eldest child told the mother that the father was punching him because the eldest child played a video game system that his father did not allow him to play. Gilbert H also testified to learning of this incident from the eldest child. The mother stated that the text messages upset her because they reminded her of how the father used to hit her. One text message refers to the father putting the eldest child on the New York City bus to ride the entire route with him until 1:00 a.m. Later that evening, after the text messages were sent, the mother spoke with the eldest child on the phone about the incident, but she did not call ACS or the prior attorney for the children
because she claims she never gets any help from them. Prior to the bus incident on August 18, 2009, the mother testified that the children rode the bus with the father “quite a few times” in 2007 and 2008. On those occasions, the children would go to the maternal grandmother's house after school, and the father would call and have the children dropped off at the bus stop. The children told the mother that they rode the bus late at night with their father, sometimes even on school nights. According to the mother, the children did not like riding the bus. The mother testified that this makes her upset because the children are tired, the bus is not the proper place for them to do their homework, and they need to eat and use the restroom.
Pursuant to the recently enacted 22 NYCRR 7.2, the court is replacing any reference to the “law guardian” with “attorney for the children”.
The mother alleges that on approximately September 14, 2009, the eldest child called and told her that the paternal grandfather punched the younger child in the leg. The eldest child passed the phone to the younger child, who was screaming and crying, and he confirmed that his grandfather punched him in the leg. The mother then called ACS and they investigated the incident. The mother spoke with the eldest child on the phone the day after the incident she learned that his father questioned him about the investigation. The father wanted to know what was discussed when the children met with the ACS worker in the aftermath of this incident, and the father called the eldest child “a f rat and a f trader.”. The mother testified that this is the only time she called ACS about the children because other times, when she has gone to the police, nothing is done about the situation. The mother testified that the children have told her that the paternal grandfather hits them when he gets into a rage. It is undisputed that there is an order issued by the Family Court in 2008 forbidding the paternal grandfather from exercising corporal punishment on children. The Father's Contentions
The father describes the children as “normal siblings” who occasionally fight. The father testified that he disciplines the children in several different ways. He testified that he takes something away from them or does not let them go to their uncle's house. Other times, he spanks them “on the buttocks.” He denies disciplining by choking them or punching them. The father said that he boxes with the children, while using headgear, “to teach them how to defend themselves.”.
The father believes that it is okay to spank the children “if they do something that I deem is worthy of that form of castigation.”. He further testified that he does not “intentionally” try to hurt the children, that he rarely spanks them, and that he did not spank them at all in 2009. He also denied ever leaving a mark after a spanking.
The most recent custody order stated, “no excessive corporal punishment shall be used by either parent.” The father testified that he does not “even know what the definition of corporal punishment is.”. He did discuss this court order with the paternal grandfather, but he said that he did not “over emphasize” it “because that's something that doesn't happen.”. The father testified that he is “satisfied” with how the paternal grandfather treats the children and that the grandfather does not mistreat or abuse them. There have been allegations of corporal punishment against the paternal grandfather, but all were unfounded by ACS. The father did not speak with his father about attending anger management classes.
The father claims that he is a disciplinarian and that strong discipline is part of “Hispanic culture”. The father said that his mother “was quick to get the belt” to use on him, but he said he did not recall his father ever hitting him with a belt, until he was reminded that he had told Dr. Fixman, the forensic evaluator in the parties prior Family Court action, that his father hit him three (3) times throughout his life. When the father said the children “get a taste,” he meant that they get a taste of “punishment,” which “doesn't necessarily mean a belt.”. The father denied that reaching for the belt was a way to intimidate the children. He now claims, though, that when he reaches for the belt, the children threaten to call the attorney for the children. The father testified that from 2007 to the present he has not hit either child with a belt and from 2008 to the present he has not hit them at all. The father testified, “I don't reach for the belt because I don't hit my children with belts. I don't hit my children at all.”. He believes it is fine to spank a child. When asked when was the last time he spanked the children, he responded, “[i]t's been so long I couldn't even tell you.”. He claims when he wants the children to stop misbehaving, he will say, “[c]an you guys please stop doing whatever you're doing,” and his tone of voice changes. The father was unsure of how often he used a strong tone of voice towards the younger child because they have a “normal father-son relationship” and he doesn't “... have a tally.” After the younger child is reprimanded, he'll say, “I'm sorry, Daddy,” and after the eldest child is reprimanded, he'll say, “[n]o problem, Dad.”. The Mother's Contentions
The mother testified that she earns now $23,000.00 each year. The mother recently changed her hours so that she would have more time at home to take care of the children. The mother testified that if she was awarded sole physical custody of the children, she would still want them to be able to see their father. She wants custody of the children because “... they have always been with me” and “I have always been with them.”. To get the children back after the 2008 consent order, the mother believed that she needed to have her own apartment. The mother would also like to have the children live with Infant–E. The mother plans to support the children by continuing to work. The mother plans to live with the children in her current apartment, at this time, but she is seeking a larger apartment. If the mother is unavailable to drop the children off at school or to pick them up from school, she plans to hire a babysitter to drop them off and pick them up.
According to the mother, when the father and mother were living together, the mother cooked the children's meals, did the laundry, and gave the children baths, while the father was rarely home. The mother alleged that he was either working or spending time with other women. The mother testified that she has never felt the need to hit the eldest child and that they have a good relationship. She says that they are able to talk about a lot of things and that “... he is very open with me and I have always instilled that in him, that he can always come to me no matter what it is, that he can feel free to tell me and if I could help him in any way to lead him the right way.”
The mother testified she sometimes needs to discipline the children by separating them when they are in her care. She has seen the eldest child and the younger child hit each other “hard”. This concerns the mother because the eldest child is much bigger than the younger child and she is afraid that the eldest child could really hurt his sibling. The Maternal Grandmother
The maternal grandmother's interaction with the father is limited to phone conversations regarding visitations for the children; she testified that she does not see the children interact with their father. The maternal grandmother testified that the father screams and curses at the children when picking them up in the car whenever they forget something in the house. According to the maternal grandmother, the father “... puts fear in them.” The maternal grandmother testified that in June or July 2008 she observed a three (3) to four (4) inch bruises on the eldest child's thighs/upper legs. She testified that the younger child told her that these bruises were inflicted by the father, but she has also observed the brothers fighting each other. The maternal grandmother never reported the bruises because “... he [the eldest child] stays away from the house. He [the father] keeps him away from the house when he has his black and blues, when he gets hit.” Around the time the maternal grandmother observed the bruises, in June 2008, she also noticed that the eldest child was unusually angry; this anger was demonstrated through an incident of physical violence when the eldest child punched the younger child. Conversely, according to the maternal grandmother, when the mother disciplines the children, she puts them in time-out and tells them not to do what they had been doing.
The mother testified that the only way she disciplines the children is by separating them. The mother avers that the children tell her that the father disciplines the eldest child by punching him, kicking him, and tackling him. The father hits the eldest child “... like he is fighting with another man.”. When father and mother were living together, the mother observed the father yell at the eldest child and smack him, but the eldest child was “much smaller” then.
According to the mother, the father constantly asks the children about what they discuss with the attorney for the children. The eldest child is concerned, whenever there is a court date, with the way his father will react towards him when the father gets home. Regarding what the eldest child tells the attorney for the child, the eldest child told the mother that the father is constantly telling him, “that he's going to F-him up, he's going to beat the s––– out of him.” The mother testified to an incident on approximately October 9, 2009, that she believes demonstrates the way the father has obstructed the judicial process. She testified that the eldest child called the mother and sounded upset; his voice was shaky. The father was questioning the children about the attorney for the children visits, and he was yelling and screaming about them. According to the mother, the father took the attorney for the children's business card from the younger child's hands and ripped it up, asking him “why do you want that f white devil's card.” The father testified that he was not concerned about what the children would tell their attorney about how he might lose his temper around them. The father testified that he did not rip up the attorney for the children's business card, but rather that he threw the business cards in the garbage when they got saturated with ink and that he gave the children new cards. The father denied calling the attorney for the children a “white devil”. Parental Roles in Medical and Education
In his testimony, the father was able to recite information about the children's pediatrician, including his name, address, and office phone number; the cell phone number is on the father's speed dial. When the children need to go to the pediatrician, the father testified that either he or the paternal grandparents take them most of the time, with the mother rarely bringing them. However, the mother testified that she has taken the children to see the doctor as well.
The mother testified that the children are currently enrolled in a local public school. The eldest child started attending the local public school in 2003. The local public school is a block away from the maternal grandmother's house; the mother enrolled the children there after they went to live with the maternal grandmother in 2003.
In testimony, the father was able to recall the names of the eldest child's and the younger child's teachers, while mother could not recall the names of any of the eldest child's teachers. She testified, though, that the eldest child's English teacher recently called her regarding a homework assignment he missed as well as his misbehavior in class.
The mother testified that during the 2008–2009 school year she went to the school two (2) or three (3) times a week to monitor the children's progress. The mother attends plays, shows, and activities that the children are in at the school. The mother did not speak with the children's teachers often during the 2008–2009 school year because there was “a lot going on.”. During that school year, the mother signed a consent form so that the children could get counseling at school about twice a week. The mother claims that counselor allegedly later told the mother that the father never signed the consent form so that the children were not able to go to school counseling. The mother has concerns about the eldest child's progress in school; she believes that he is not putting his full potential into school because of all the years the courts have been involved in their lives. The mother does not have any communication with the father about the children's schooling; since 2005, the mother does not know what is happening with the school unless she goes to the school herself or speaks with the children. The mother also testified, though, that she receives communication from the eldest child's school and seems to be involved with his education. She says she has sought help for him from the school and claims to be in contact with the principal and assistant principal.
The mother and father testified that the paternal grandfather drives the younger child to school on Monday, Tuesday, and Friday. He further testified that father drives him on Wednesday and Thursday. The maternal grandmother testified that in the morning the younger child is driven to school; on Mondays and Tuesdays the paternal grandfather drives him, and the father drives him on Wednesdays and Thursdays.
According to the mother and father, the eldest child takes the city bus to school every morning. According to the mother and the maternal grandmother, the eldest child takes the bus from the father's residence each morning to the maternal grandmother's house, and then takes the bus to school.
The father testified that he picks the children up from school every day unless he is working, in which case either the paternal grandfather or the maternal grandmother picks them up. The mother testified that the paternal grandfather, paternal grandmother, or maternal grandmother pick the children up from school. The maternal grandmother testified that she picks the younger child up from school and both children go to the maternal grandmother's house every day after school. Access
The father contends that often when the mother has the children on weekends she will not spend a lot of time with them because she “has things to do” or because she has to work. The father said that he has trouble communicating with the mother because she refuses to answer his phone calls; because of this, much of the communication regarding visitation is done through the children or the maternal grandmother. The father testified that when the children visit with the mother, he or the paternal grandfather pick them up and drop them off at the maternal grandmother's house. The father testified that on some Sunday nights the children sleep over with the mother and then go to school on Monday. The father testified that the younger child likes going to his mother's house and spending time with Infant–E. The father testified that in October 2009, the mother spent approximately four (4) or five (5) days with the children, in September 2009, she spent approximately three (3) or four (4) days with the children, and in November 2009, she spent approximately six (6) days with the children.
The mother testified that since October 2008, by court order, the father has primary custody of the children and the mother has the children on alternate weekends and alternate holidays. The mother also testified that she sees the children one non-scheduled weekend a month and three (3) or four (4) non-court-ordered times during the week at the maternal grandmother's house. The mother testified that from September 2008 until January 2009, she was on maternity leave with Infant–E and during this time the eldest child and the younger child spent the night with her three (3) to four (4) times a week. She also testified that after her maternity leave, until the end of the school year in 2009, the mother saw the children two (2) to three (3) times a week in addition to the court ordered visitation times. Currently, on the court ordered alternating weekends, the mother has the children from 4:00 p.m. on Friday, until Monday morning when she drops them off at the maternal grandmother's house before school (the maternal grandmother lives one block away from the school). The mother testified that if she needs to work on a Saturday that she has the children she takes them to their maternal grandmother's house for the day.
The maternal grandmother testified that she sees the children three (3) weekends a month and the mother sees the children the other weekend of the month for the whole weekend with overnight visitation. The maternal grandmother's testimony confirmed that the mother leaves the children with her when she works on Saturdays that coincide with her visitations. The maternal grandmother testified that on the weekends when the children are with their father he calls her to ask her to watch the children; he drops them off at her house and picks them up at 4:00 p.m. when the maternal grandmother needs to leave for work.
The father testified that he has an apartment in a two (2) family home; the father, the eldest child, and the younger child each has his own room, and the paternal grandfather lives in the finished basement. The father testified that the second apartment is unoccupied. The building was owned by the father and his parents; however, they sold it to the father's brother and his mother, and the father now allegedly pays them rent.
The father testified that when he leaves for work in the morning, the paternal grandfather wakes up, goes upstairs, and stays in the father's room. The father claims that he does not see the children get dressed on the mornings that he works, but he does make sure that their clothes are laid out the night before. The father testified that he or the paternal grandfather make breakfast for the younger child and that the eldest child eats breakfast at school. He also testified that the paternal grandmother prepares dinner, and when she does not, the father gets food at a reduced rate from friends who own restaurants.
As a bus operator, the father's shift begins at 5:34 a.m on Mondays, 4:45 a.m. on Tuesdays, 5:55 a.m. on Fridays, 8:13 a.m. on Saturdays, and 10:17 a.m. on Sundays, and he is off on Wednesdays and Thursdays. The father testified that occasionally he works at night, but it is not on a set schedule. The father testified that from September 2009, to November 2009, he had to work approximately four (4) nights.The mother testified that during the week, she communicates with her children by cell phone, calling and texting. She calls them every morning to see how they are doing and ensure they are prepared for school. If the children need anything during the day, the mother is accessible by cell phone. The mother testified, “I'm here for them all the time.”
The mother works from 7:00 a.m. to 3:00 p.m. Monday through Friday and alternate weekends, every other Saturday. She testified that in January 2009 she moved into a one (1) bedroom and one (1) bathroom apartment where she currently lives with Infant–E. The eldest child and the younger child spend time at the apartment and occasionally sleep there. The eldest child sleeps on a futon and the younger child sleeps on a cot unless he requests to sleep in the bed with his mother so they can talk at night. Infant–E has a crib in the bedroom where he sleeps. The mother testified that she hoped to buy bunk beds for the children. In the living room, there is a television and some toys, videos, and books. The apartment is on the third floor and has window guards. Extracurricular Activities
The father testified that the children participate in baseball, basketball, and religious instructions. The children go to baseball practice once or twice a week and basketball practice on Saturday mornings. The father takes the children to basketball when he is not working, and on other occasions the paternal grandfather or the father's brother takes them to basketball. The mother has been to a few basketball games, but the father has never given her a schedule for the basketball games or for the baseball games. The father testified that the reason the mother does not have the children's basketball and baseball schedule is because the mother does not answer his calls and he has no way of giving her a schedule. The father testified that the children have been attending camp for the last four (4) summers. Vacations
The father testified that he has gone to Puerto Rico on six occasions in 2009 and that on some of those occasions he has brought the children along. He has a girlfriend and a newborn infant daughter in Puerto Rico whom he visits. He has no plans to relocate to Puerto Rico or to have them move to New York; however, he testified that the children have said they would not mind living with their sister. In January 2009, the younger child went to Puerto Rico with his father for eight (8) days and missed four (4) days of school. In August 2009, both children went to Puerto Rico with their father for seven (7) days. The other four (4) times the father went to Puerto Rico without the children. When the father travels to Puerto Rico, he alleges that the mother is given first priority for caring for the children. The father avers that he was unable to attend a court date on November 20, 2009, because he needed to deal with an emergency situation in Puerto Rico involving his daughter. He wanted to have input in a decision that had to be made regarding her condition. When the father learned that he needed to go to Puerto Rico, he called the mother to tell her the children would need to stay with her while he traveled. The mother allegedly did not answer his calls and he had one of the children call her. Counseling
The father testified that the children had counseling in 2007 and 2008 with a child therapist. The father took the children to see the counselor approximately eight (8) times. He stopped taking the children to the counselor after the Family Court proceedings ended, in approximately October 2008, despite Dr. Fixman's recommendation. He explained that part of his reason for ending the children's therapy was because parking was very difficult around the doctor's office. The father wanted the children to see a therapist because he believes the children are affected by the father and mother not living together. Further, the eldest child is going through puberty, and the father is “a little uncomfortable with that topic,” so he wanted a professional to help. Gilbert H
Gilbert H testified to living with his stepfather from 1995 to 2003 and with the maternal grandmother for the last seven (7) years. He testified that when he started living with his stepfather there was no physical or verbal abuse and they had “a normal family relationship.” However, within a short period of time, “he [stepfather] was physically abusing me, my mother, mentally and emotionally I was scared every time I looked at him.”
Gilbert H says he sees the younger child about two (2) to three (3) times during the week and one (1) day of the weekend. Gilbert H testified that he is interested in his brothers' education and inquires about their progress. Gilbert H stated that he sees the younger child and the eldest child Tuesdays at 7:30 a.m. at the maternal grandmother's house. He believes that the children have a good relationship, but that they do fight. He testified that the eldest child travels with the younger child on the bus to visit the grandmother; they get there around 7:30 a.m. and then walk to school.
Gilbert H testified that on November 28, 2009, during the pendency of this action, he was at his grandmother's house with his grandmother and his two (2) brothers when an incident occurred between the younger child and himself. The younger child wanted to use Gilbert H's laptop and asked Gilbert H while he was in his room. While the younger child was using it, Gilbert H took a nap and when Gilbert H woke up, he asked the younger child to get off the laptop, but the younger child refused and was ignoring him. Gilbert H got upset so he got up and lifted the younger child from the chair and brought him to the living room and put him down. While this was happening, the eldest child was in Gilbert H's room. The younger child came back into the room kicking and swinging at Gilbert H and told him, “I hate you. I wish you were dead. I wish you weren't my brother.”. It is uncontroverted that the younger child then spit on Gilbert H's sneakers. Gilbert H claims he then grabbed the younger child's wrists and was holding his hand so he couldn't swing at Gilbert H. While this was happening, the eldest child and the grandmother were telling at the younger child to stop. Gilbert H testified that he asked the younger child at least three (3) or four (4) times to get off the computer. This was the first time that the younger child simply ignored Gilbert H. Gilbert H testified that after the incident, he left the maternal grandmother's house because he was upset about the things that his brother had said because he loves his brother and would do anything for him. Gilbert H alleges the maternal grandmother was ill at this time because it was about a week after she had surgery. Gilbert H testified that he does not believe that the eldest child or the younger child made any phone calls to the police before he left the maternal grandmother's house. Gilbert H returned to the maternal grandmother's house around 9 or 10 o'clock that night. Gilbert H never talked to a police officer or detective regarding this incident, but he did talk to a caseworker from ACS approximately three (3) days after the incident. Gilbert H and the younger child have tried to mend their relationship, however, Gilbert H testified that he is still hurt by the things that were said. He also testified that after the incident he distanced himself from the younger child to avoid any further problems and the brothers do not communicate as much as they did before the incident. Gilbert H testified that he never choked or punched the younger child. The eldest child was not involved; however, he did tell the younger child to stop and listen to Gilbert H. Gilbert H testified that following the incident he apologized to the younger child and that the only thing that he discussed with the younger child was how the child got him into trouble.
Gilbert H said that he is testifying to help his brothers because he believes that they are unsafe living with their father. The eldest child told Gilbert H of an incident that had occurred in 2008 between him and his father. He told Gilbert H that his father had smacked him in the face really hard and that he was scared. Gilbert H testified, “I fear that he [the father] ... might really hurt him [the eldest child] one day.”. Gilbert H also testified that he believed that if he reported any incident the violence would get worse; the father would take his anger out on him by physically harming the eldest child. Gilbert H stated he is also scared of the emotional harm that the father is capable of causing, referring specifically to the verbal abuse that Gilbert H observed when he lived with the father. New York City Police Officer Shnayder
The father called New York City Police Officer Shnayder to testify to the above incident where Gilbert H hit the younger child. The grandfather, who called the police, told the police officer that when he picked up the younger child from his maternal grandmother's house, his grandson was very upset and during the ride home, the child told his grandfather that he was in a fight and got beaten up. When the police officer first arrived, he was met by the paternal grandfather outside of the house. The officer interviewed the younger child for approximately one (1) minute and then spoke on the phone to the father. According to the police officer, the younger child was interviewed in front of the paternal grandfather who was not interfering with the interview. The officer testified that the younger child appeared withdrawn and upset; he did, however, admit to spitting on Gilbert H's sneaker and that he was choked by Gilbert H. Gilbert H had no visible injuries, however, ACS was contacted and eventually the investigation was closed. Dr. Jane Fixman
In 2007, the mother made an application for government funds to be provided for the testimony of Dr. Jane Fixman, the forensic from the prior Family Court action, pursuant to 722–C. That application was granted. A Family Court judge appointed Dr. Fixman to conduct a forensic evaluation regarding “physical custody/parenting time”, “domestic violence” and “physical abuse” of the children. The gravamen of the mother's claim rests with her position that she only agreed to the present custody arrangement because of the threats and fear that she would be harmed by the father if she did not consent, and she was told that, consistent with Dr. Fixman's report, she did not have proper arrangements for the children to live. The Court did provide government funds for the mother to call as a witness Dr. Jane Fixman who served as the court appointed forensic evaluator in the prior Family Court proceeding. The Court would not allow Dr. Fixman to testify as a neutral expert on the present custody modification in as much as she has not conducted an updated evaluation. As such, she was deemed the witness of the wife and was called by her. Dr. Fixman also spoke with the wife's counsel in preparation for her testimony. It was clear to this court that a substantial basis for Dr. Fixman's original report and recommendations was the mother's living situation at that time.
Discussion
Standard for Modification
In order to determine whether a custody arrangement should be modified, the court must apply one of two (2) different standards depending on whether the arrangement was created by a court order or agreement of the parties. The first, and more lenient, standard applies to court ordered arrangements; to modify such an arrangement the court must find “... a change of circumstances such that modification is required to protect the best interests of the child” ( see Zeis v. Slater, 57 AD3d 793, 870 N.Y.S.2d 387 [2 Dept., 2008] ). However, “... where parents enter into an agreement concerning custody it will not be set aside unless there is a sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interests of the children” ' Smoczkiewicz v. Smoczkiewicz, 2 AD3d 705, 770 N.Y.S.2d 101 [2 Dept., 2003]; Gaudette v. Gaudette, 262 A.D.2d 804, 691 N.Y.S.2d 681[3 Dept., 2003] ). The Appellate Division, Second Department has recently held that “Where, as here, parents enter into an agreement concerning custody, that agreement will not be modified unless there is a sufficient change in circumstances since the time of the stipulation, and unless modification of the custody arrangement is in the best interests of the child (see Matter of Said v. Said, 61 AD3d 879, 880, 878 N.Y.S.2d 384;Matter of Manfredo v. Manfredo, 53 AD3d 498, 499, 861 N.Y.S.2d 399;Matter of Rawlins v. Barth, 21 AD3d 495, 799 N.Y.S.2d 738).”
(Baker v. Baker, 66 AD3d 722, 887 N.Y.S.2d 223 [2 Dept., 2009] ).
In this case, the parties consented to the custody decision of October 22, 2008. Therefore, the latter standard will be applied in this case.
The court finds that there have been sufficient change in circumstances since the last Family Court order on October 22, 2008. The court has conducted separate in camera interviews with each child on two separate occasions for a total of four in camera interviews ( see Jean v. Jean, 59 AD3d 599, 875 N.Y.S.2d 88 [2 Dept., 2009] [“The decision to conduct an in camera interview to determine the best interests of the child in a custody dispute is within the discretion of the trial court” ( see Matter of Desroches v. Desroches, 54 AD3d at 1036)”] ). The court paid careful attention to those interviews. It is clear the children wanted to live with their father when the parties consented to the 2008 custody arrangement but now they want to live with their mother, as is argued by their attorney. The mother has now found a new residence and improved her work schedule to increase her availability for the children. Most importantly, it is apparent to this court that the children have experienced escalating violence in the home. These findings lead this court to believe that there is a sufficient change in circumstances that were not foreseen and it is in the best interests of the children that a modification of the custody and access schedule be granted. Credibility
“The trial court, which had the opportunity to view the demeanor of the witnesses, was in the best position to gauge their credibility” (Peritore v. Peritore, 66 AD3d 750, 888 N.Y.S.2d 72 [2 Dept., 2009]; see Varga v. Varga, 288 A.D.2d 210, 732 N.Y.S.2d 576 [2 Dept., 2001], citing Diaco v. Diaco, 278 A.D.2d 358, 717 N.Y.S.2d 635 [2 Dept., 2000] [“Evaluating the credibility of the respective witnesses is primarily a matter committed to the sound discretion of the Supreme Court”]; Ferraro v. Ferraro, 257 A.D.2d 596, 684 N.Y.S.2d 274 [2 Dept., 1999] ). The court's assessment of the credibility of witnesses is entitled to great weight ( see generally Wortman v. Wortman, 11 AD3d 604, 783 N.Y.S.2d 631 [2 Dept., 2004] ). “In a non-jury trial, evaluating the credibility of the respective witnesses and determining which of the proffered items of evidence are most credible are matters committed to the trial court's sound discretion” (Ivani v. Ivani, 303 A.D.2d 639, 757 N.Y.S.2d 89 [2 Dept., 2003], citing L'Esperance v. L'Esperance, 243 A.D.2d 446, 663 N.Y.S.2d 95 [2 Dept., 1997]; accord Krutyansky v. Krutyansky, 289 A.D.2d 299, 733 N.Y.S.2d 920 [2 Dept., 2001]; see Schwartz v. Schwartz, 67 AD3d 989, 890 N.Y.S.2d 71 [2 Dept., 2009] ). The trial court's “... assessment of the credibility of witnesses and evidence is afforded great weight on appeal (Schwartz v. Schwartz, 67 AD3d 989, 890 N.Y.S.2d 71 [2 Dept., 2009] ). The court finds the mother's testimony of escalating violence credible and the father's downplaying and denial of the violence not credible. The court specifically finds that:
(1) On August 17, 2009, the eldest child was punched by the father in the ribs after playing a video game he was forbidden to play;
(2) On August 17, 2009, the father made the eldest child ride the city bus until 1:00 a.m., and the child was not able to use the bathroom or eat until the father's shift was over;
(3) On or about September 14, 2009, the paternal grandfather who resides in the apartment below the father punched the younger child in the leg; and
(4) On or about October 9, 2009, the father ripped up the law guardian's business card in front of the children and then called her a “white devil”.
Furthermore, the record is replete with additional incidents of domestic violence reported by the mother, and supported by evidence and testimony by the maternal grandmother.
Domestic Violence
Pursuant to Domestic Relation Law section 240(1)(a) the court must consider this history of domestic violence when making a custody determination. The statute reads as follows:
In any action or proceeding brought ... to obtain ... the custody of or right to visitation with any child of a marriage ... Where either party to an action concerning custody of or a right to visitation with a child alleges ... that the other party has committed an act of domestic violence against the party making the allegation or a family or household member of either party ... and such allegations are proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the best interests of the child, together with such other facts and circumstances as the court deems relevant in making a direction pursuant to this section and state on the record how such findings, facts and circumstances factored into the direction [emphasis added] ...
In 1996 the New York State legislature enacted the requirement that “... the court consider in custody proceedings the effect upon the best interest of the child of proven allegation of domestic violence.” ( seeDRL 240, McKinney's Con. Laws of New York, History and Statutory Notes, L.1996, c. 85 legislation). However, effective December 15, 2009, the statute was amended to include “... and state on the record how such findings, facts and circumstances factored into the direction” ( seeDRL 240[1](a)). Despite the extensive history that this family has with the New York court system, this trial was the first opportunity for a court to actually hear the testimony at trial and in detail learn the history of violence and abusive behavior the wife and children were subjected to during the marriage.
In the case at bar, it is evident that while the father is an involved parent who takes an active role in the childrens education, health, religion and extracurricular activities they cannot overcome the level of fear, intimidation and physical violence. However, this court finds credible the following instances of domestic violence:
(1) In February 1996, the father slapped the mother when she was seven months pregnant with the eldest child, causing her to fall to the kitchen floor;
(2) In or around April 1997, after the mother answered the father's cell phone, the father jumped out of the shower and repeatedly punched and kicked the mother;
(3) In 1997 or 1998, while the mother and father were arguing over finances, the father grabbed the eldest child, held a gun to the back of his head, and threatened to kill everyone, including himself;
(4) In 1998, while the parties were driving in the car, the father punched the mother in the face with a closed fist;
(5) In 1998 or 1999, when the father and mother had an argument over where to keep their dog, the father held his gun to the dog's head;
(6) In February 1999, the father pushed the mother onto the bed, jumped on top of her, and choked her until she passed out;
(7) In 2000, the father grabbed the mother and forcefully hit her in the head with his head;
(8) In June 2003, the paternal grandfather had an argument with the mother over the way she was disciplining the eldest child. When Gilbert H got involved, the paternal grandfather—and later the father—tackled him to the ground and repeatedly punched and kicked him;
(9) In 2005, before the Family Court date to determine custody, the father threatened the mother not to show up to court. The parties were in the car with the younger child; the father choked the younger child and told the mother that he would kill her and the children if she went to court;
(10) In 2005, also before the Family Court date to determine custody, when the parties were in the maternal grandmother's house, the father repeatedly punched the mother for one or two minutes and again threatened that he would kill everyone if she showed up in court;
(11) In 2005, the younger child told the mother that the eldest child had been hit and was not allowed to see her until his black and blue marks healed. The mother went to the police, the police officer brought the eldest child out of the house, and the mother noticed his bruise;
(12) On August 17, 2009, the eldest child was punched by the father in the ribs after playing a video game he was forbidden to play;
(13) On August 17, 2009, the father made the eldest child ride the city bus until one o'clock in the morning, and he was not able to use the bathroom or eat until the father's shift was over; and
(14) On or about September 14, 2009, the paternal grandfather punched the younger child in the leg.
As in Wissink, these incidents of domestic violence override the positive qualities of the father's parenting. The father arranges the children's extracurricular activities (sports and religious instruction), which is similar to the way the father in Wissink was involved in his daughter's life. In Wissink, notwithstanding this positive interaction and even the fact that the daughter wanted to live with her father, the documented incidents of domestic violence warranted the Appellate Division, Second Department reversal. The father's involvement in the children's extracurricular activities is not enough to withstand the incidents of domestic violence. Furthermore, while certainly not controlling, the children in the case at bar, as advocated through their attorney, want to live with their mother, not with their father ( see Baker v. Baker, 66 AD3d 722, 887 N.Y.S.2d 223 [2 Dept., 2009] [“The recommendations of court-appointed experts, and the position of the attorney for the child, are factors to be considered and are entitled to some weight, but such recommendations and position are not determinative and do not usurp the judgment of the trial judge”] ).
The prior custody agreement are differential from the one herein in two ways. First, there were never a finding after trial rendered by a court. Rather, the parties either came to an agreement or withdrew prior petition for modification. Secondly, the new statutory scheme which was adopted in 2009 was certainly not in effect. As stated early, the 2009 amendment to Domestic Relation Law section 240[1](a) now requires that the court “... state on the record how such findings, facts and circumstances [of domestic violence] factored into the direction”. All of the prior custody determinations were predicated upon agreements which predated the statutory amendment.
The Court had an opportunity to observe the parties and hear extensive testimony as well as conduct in camera interviews separately with both children (twice each) during this proceeding. It is clear that the father's conduct in dealing with the children is far more physical than the mother's or that which is required to properly discipline children. He was disingenuous in his denial and inconsistent in his positions taken as it relates to discipline of the children or the events of violence. It is clear to this court that the physical nature of his interactions with the children have now led to physical altercations between his children themselves, him and the children and the younger child and Gilbert H. The court finds the claim of the maternal grandmother that the eldest child had black and blue marks credible. His testimony was condescending and at times, belittling. Simply put—there is too much of a stress on physical intervention and threats.
In addition to the threats on her and the childrens lives, the mother explained that she also agreed to the father having custody of the children in 2008 because she avers that her attorney advised her that it was unlikely that the children would be returned to her because she did not have her own apartment. The court finds credible the mother's assertion that she believed that her living situation and space restraints were a basis for her to have to agree to the custody to the father especially in light of Dr. Fixman's testimony. However misguided her belief may or may not have been, the court cannot in and of itself determine that her new plans for residential arrangements standing alone would be the basis for a change in custody based upon an unanticipated change in circumstance. It is not this court's intention to act as appellate authority of past Family Court orders. It is well established though in making custody determination there is not only one factor but a host of factors that a court must consider including the history of violence and the new acts of violence ( see Craig v. Williams–Craig, 61 AD3d 712, 876 N.Y.S.2d 650 [2 Dept., 2009] ). Custody
The Appellate Division, Second Department recently held in Bourne v. Bristol, 66 AD3d 621, 886 N.Y.S.2d 502 [2 Dept., 2009] ) that:
[t]he essential consideration in determining custody is the best interests of the child ( see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Matter of Carrasquillo v. Cora, 60 AD3d 852, 876 N.Y.S.2d 436;Gurewich v. Gurewich, 43 AD3d 458, 841 N.Y.S.2d 143). The factors to be considered in making a custody determination include “the parental guidance provided by the custodial parent, each parent's ability to provide for the child's emotional and intellectual development, each parent's ability to provide for the child financially, the relative fitness of each parent, and the effect an award of custody to one parent might have on the child's relationship with the other parent” (Craig v. Williams–Craig, 61 AD3d 712, 712, 876 N.Y.S.2d 650;see Matter of McGovern v. Lynch, 62 AD3d 712, 879 N.Y.S.2d 490;Matter of Carrasquillo v. Cora, 60 AD3d 852, 876 N.Y.S.2d 436). The “existence or absence of any one factor cannot be determinative on appellate review since the court is to consider the totality of the circumstances” (Eschbach v. Eschbach, 56 N.Y.2d at 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260;see Pollack v. Pollack, 56 AD3d 637, 868 N.Y.S.2d 243;Matter of Bowe v. Robinson, 23 AD3d 555, 805 N.Y.S.2d 91;Kaplan v. Kaplan, 21 AD3d 993, 801 N.Y.S.2d 391).
This court acknowledges the father's extensive involvement in the children's lives. However, it is crystal clear to this court that he has not provided for the childrens emotional development. On the contrary, he has repeatedly thwarted efforts to promote their emotional stability. The incidents of domestic violence against the mother which were witnessed by the children, the corporal punishment used by the father resulting in black and blue bruises, pulling the children out of therapy after only eight (8) session immediately upon the completion of the Family Court matter, failing to sign the counseling form provided by the school, failing to advise the paternal father that corporal punishment is prohibited by court order yet leaving the children in his care on a regular basis is simply not acceptable. Such decisions and actions by the father have clearly had on impact on these children. The mother, the maternal grandmother and Gilbert H stated that the children have behavior issues. This court notes the impact on the younger child of the infant children that each parent has with other people.
It is also clear from observing the father's action that he believes that his custodial authority extends to eliminating the mother from the children's lives. An example of this belief is when he made arrangements for the baptism of their child without ever notifying the mother or even the maternal grandmother with whom he has regular contact. The father's claim that the mother will not speak with him does have some merit, but notification itself does not have to be verbal. Given the history of violence and abusive behavior it would not be appropriate for the court to fault the mother for refusing to speak with the father.
The father explained his own behavior as a reflection of his “Hispanic culture”. The father cannot defer to an argument of cultural experience as an explanation for his behavior. While the court respects, honors and admires the diverse cultural experience of our nation of immigrants we cannot ignore the effects of violence and power in a family unit. It is also clear that whenever the father speaks or testifies the mother cannot even bring herself to look at him directly. She either looks down or to the side and her painful renditions of past violence towards her and her children and threats to others have caused the court to pause in concern.
The court does have additional concerns that the father does not truly appreciate the depth of the children's needs. His denial of access to therapy for them, for example because parking is difficult or having children ride on a New York City Bus through the late hours on his route are of concern. Similarly the Court does not find credible the fathers explanation as to his acts towards the attorney for the children.
The court does find credible the mothers articulated fear of the father was overwhelming under these unique circumstances, but does recognize that the fear coupled with economic uncertainty and space limitations should not be a determining factor in making custody agreements.
The court also acknowledges the role that the grandparents have played in assisting both parents in their obligations. Economic necessity required and will still require grandparent involvement. There is a volatile relationship that the children have with their father and there has been some claims of physical violence between the children and the paternal grandfather which resulted in an order of the Family Court that there shall be no corporal punishment. The transfer of the children's residence from the father to the mother shall occur no later than August 30, 2010, to provide the children time to adjust and prepare for the coming school year. Access
The father shall have access every other weekend from Friday pick up school to drop off at school on Monday morning. In the event there is a three (3) day weekend with the Monday school schedule cancelled the father shall return the children to school on Tuesday. The father shall have a midweek dinner with the children every Wednesday, with pick up from school and return to school Thursday morning. The father shall have two (2) consecutive weeks with the children during the summer recess. He shall provide the mother in writing with his choice of weeks no later than May15 of each year. The children shall be with the mother on Mother's day and her birthday and they shall be with the father on Father's day and his birthday. The parties shall alternate the holidays;
+---------------------------------------------------+ ¦ ¦Father ¦Mother ¦ +-----------------------------+----------+----------¦ ¦New Years Day ¦Even Years¦Odd Years ¦ +-----------------------------+----------+----------¦ ¦School February Recess ¦Odd Years ¦Even Years¦ +-----------------------------+----------+----------¦ ¦School Easter/Passover Recess¦Even Years¦Odd Years ¦ +-----------------------------+----------+----------¦ ¦Thanksgiving ¦Odd Years ¦Even Years¦ +-----------------------------+----------+----------¦ ¦Christmas Eve ¦Even Years¦Odd Years ¦ +-----------------------------+----------+----------¦ ¦Christmas Day ¦Odd Years ¦Even Years¦ +-----------------------------+----------+----------¦ ¦School Holiday Recess ¦Odd Years ¦Even Years¦ +-----------------------------+----------+----------¦ ¦New Years Eve ¦Even Years¦Odd Years ¦ +---------------------------------------------------+
In the event either party is working during their scheduled time with the children, they shall provide the other parent timely notice and the opportunity to have that time with the children. Furthermore, the father shall be entitled to complete and full information from any health professional or educational institution for the children. The mother shall timely notify the father by text or email of upcoming school events or health issues regarding the children.
The parties shall each endeavor to promote the children's relationship with the other parent. They shall not prejudice the children against the other parent or impair the children's regard for the other parent. The children shall have reasonable unhampered contact with the other parent. The parents shall ensure that there shall be no corporal punishment exercised against these children by the parents or grandparents.
Conclusion
Accordingly, the violence upon the children after October 22, 2008, which has been corroborated is a basis to change custody when the court considers the prior history of domestic violence testified to and the acts complained of after this date. The court cannot and will not second guess the previous agreements and orders predicated on them. The statutory amendment to Domestic Relation Law section 240[1](a) requires the court to review the events that pre-date those petitions actually considered and stated in this opinion. It is in the best interest of these children that custody be awarded to the mother.
The Family Court order dated October 22, 2008, is herein modified. The mother is awarded custody and the father is awarded access as stated above. Susan Iannelli as attorney for the child is discharged. This matter is adjourned for a final compliance conference on the ancillary issues on November 3, 2010 at 9:30 a.m. The parties shall exchange updated affidavits of net worth no later than September 28, 2010. Depositions shall be completed by October 28, 2010.
This shall constitute the decision and order of this court.