Opinion
01-31-2023
S.P., Petitioner, v. C.B., Respondent.
Petitioner- pro se; Attorney for the Respondent- Brian Kennedy, Esq. Attorney for the Child- Michael Scherz, Esq., Lawyers for Children.
Unpublished Opinion
Petitioner- pro se; Attorney for the Respondent- Brian Kennedy, Esq.
Attorney for the Child- Michael Scherz, Esq., Lawyers for Children.
TANDRA L. DAWSON, J.
Petitioner S.P. (hereinafter the "Father") filed a lengthy modification petition on August 19, 2020 (the "Father's Modification Petition") alleging that the respondent, C.B. (hereinafter the "Mother") exposed the parties' child, XXXX a/k/a XXXX (DOB XXXXX) (hereinafter the "Child") to several traumas that over time caused the Child to develop complex post-traumatic stress disorder. The Father's Modification Petition alleges that the Child would like to live with the Father, his wife and two daughters full-time and that the Father is able to provide for the Child's physical, emotional and educational needs. He is also committed to working with the Child's healthcare providers to improve their psychological well-being.
Although the Child prefers to be referred to as "XXX," as far as this court is aware the Child's name has not yet been officially changed.
The Child's preferred pronouns are they/them/their, according to the Father and Attorney for the Child.
The Father's Modification Petition further alleges that, as reported by the Attorney for the Child (hereinafter "AFC"), the Mother has insulted and berated the Child, threatened to move to Georgia without them and to take the family dog to a dog pound. The Father argues that the Child needs time away from the Mother to fully engage in their dialectical behavior therapy (DBT) program. The Father alleges that the Child has reported to Dr. P. that they witnessed several acts of violence between the Mother and older brother, and has suffered physical abuse by the Mother. The Father alleges that since the Child has resided with him, their mood has changed and that their living arrangement has been stabilizing. The Father's Modification Petition then recites allegations by Child Protective Services suggesting that the Mother may have a problem with alcohol. He also describes an incident the weekend of July 24, 2020, where the Mother wrestled the phone from the Child while they were recording a conversation and barred the Child from exiting the apartment. The Father would like to change the Child's high school placement, change the Mother's pick up and drop off location to 242nd Street and Broadway and be awarded sole physical and legal custody of the Child.
The Mother filed a relocation and family offense petition that she withdrew without prejudice on July 7, 2022. On that same day, the court permitted the Father to orally amend his petition to request a change in custody. On July 7, 2022, the parties agreed to an access schedule between the Mother and Child that will consist of in-person, video or telephone visits upon the Child's request and if consistent with the Child's wishes, which was ordered by the court. (Tr. 7/7/2022 at 20-21; See also, July 7, 2022 Order). Accordingly, the instant trial was limited to the issues of custody and decision making.
Background
The parties entered into a so ordered Stipulation of Custody and Visitation dated August 13, 2015 (hereinafter the "Custody Order") that awarded the Mother legal and physical custody of the Child and set an access schedule for the Father and the Child. The Custody Order was modified by a stipulation dated August 7, 2019, to reflect changes in the Father's access schedule.
The parties have a very long history in this court. The parties made several court appearances, and the court has issued interim orders pertaining to child related issues. Familiarity with prior decisions and orders is presumed and will not be repeated herein except to the extent necessary for the instant Decision and Order. The Mother and the Child have been represented by counsel throughout the proceedings, and the Father proceeded pro se.
Trial of this matter commenced on July 7, 2022, via Microsoft Teams . Counsel for the Mother and the Child waived opening statements.
Trial of this matter was held virtually due to the COVID19 using Microsoft Teams. All counsel and parties were advised of IDV Virtual Court Rules in advance of hearing, which included procedures for pre-marking exhibits in advance of trial, court etiquette and instructing parties how they could sidebar with their attorneys.
The Father's Case
Father's Testimony
The Father made a brief opening statement. The Father stated that he is here to do what is best for the Child. Since the Child has been with living with him, they have flourished and the Father would like them to continue to flourish and heal from the trauma. (Tr. 7/7/2022 at 23-25).
The Child has lived with him since June 2020. The Child consistently meets with their therapist from Belleview, social worker from Columbia, and guidance counselor to plan for college and careers. Since living with him, the Child has not had any hospitalizations or ideations. The Child's attendance at school this year has been spotty due to COVID19 and a COVID19 infection, but the Child has not missed school because of anxiety, stress, or cutting school. The Child is an honor roll student. The Child has a group of friends that they interact with consistently, and the Child interacts with their sisters and the Father's wife. The Father testified that not having an order of custody made it difficult for him to obtain the Child's social security card and birth certificate, which in turn made it difficult for him to acquire their working papers, and school releases were difficult because it was not clear who had custody and legal rights. (Tr. 7/7/2022 at 26, 29-32).
Since the Child has resided with him, the Mother moved out of the state so sharing custody is not possible. Also, communication between the parties is difficult, so according to the Father, joint decision making is not possible. The Father credits his efforts with service providers in helping the Child flourish in school. The Child meets with their psychiatrist from Belleview once a week. Once a month or so, the Father receives an update where they discuss the Child's treatment plan or other changes they are considering. The Father testified that they are on a list to get the Child an individual therapist this year; they realized that the Child needs a two-prong approach, addressing the psychological and chemical imbalance aspects, so they are trying to address both through medicine and therapy. The Father testified that when the Mother took the Child back into her care, the therapy that the Father had paid for the Child stopped. The Father testified that he and his family are very involved in the Child's life. The Father testified that if custody is not resolved, he will not be able to continue to do these things to support the Child. (Tr. 7/7/2022 at 32-37).
On cross-examination by the Mother's attorney, the Father testified that the Child is sixteen years old and attends the High School XXXXXX in Manhattan. The Child has been attending that school for one year, and before that they were attending XXXX School XXXXX in Manhattan. The Father is a teacher. XXXX School XXXX was chosen because the Child was unable to do the high school application process in 2019 because the Child was hospitalized twice, and the Mother refused to let the Child audition for LaGuardia, which was the Child's preferred school. The Father believes that the Mother had something to do with the Child's decision to attend the XXXX School XXXX because at that time, the high school application account was linked to the custodial parent's email, which was the Mother. (Tr. 7/7/2022 at 37-41).
The Child was already with the Father prior to the June 18, 2020 order being entered . The Child came back to the Father's care after the Mother was arrested in Brooklyn, and the Child came to the Father's house in a police cruiser. The Child came to live with the Father sometime in late May 2020. The Father testified that the Child told the Father that they did not want to go to XXXX School XXXX. The Child completed the application for the High School XXXXX. The Father advised the Child on schools. (Tr. 7/7/2022 at 43-46).
The court took judicial notice of the June 18, 2020 order.
The Father testified that during the Child's ninth grade year, he was involved in that he would speak to teachers as their advocate if the Child requested. The Father testified that he was involved in the Child's schooling for the tenth grade in that he would communicate primarily with the school's guidance counselor and social worker about college information. The Father testified that there were a lot of opportunities that he was unable to sign the Child up for, such as college trips, because he does not have legal custody. The Child is staying at the High School XXXXX for the eleventh grade and to his understanding, the Child is enjoying the classes, teachers, and friends at the school. The Father testified that the Child has a lot of anxiety surrounding the coronavirus because high schoolers are not the most adept at following the rules and wearing masks. (Tr. 7/7/2022 at 46-48).
The Father testified that in the ninth grade, the Child was absent or late less than ten times. The Father cannot recall without looking at a report card as to how many times the Child was absent or late in the tenth grade. The Court took judicial notice of a stipulation and order dated August 13, 2015, that the Father acknowledged signing, which awarded the Mother sole legal and physical custody of the Child. (Tr. 7/7/2022 at 52, 55-58).
The Father testified that he believes the change of circumstance in this case was related to a call he received from the police in the middle of the night in 2020, after which he had the officers put the Child into a cab, which the Father paid for. The Child told the Father that they saw their brother and their mom getting into a physical fight and the police were there. The police took the Mother and the Child's brother away and the Child was scared. (Tr. 8/9/2022 at 100, 102).
The following evening or so, the police took the Child back to the Mother and the Child was screaming and told the police that they did not want to go back to the Mother. The Father testified that after that there were more physical altercations between the Child and the Mother. The Father testified that the AFC eventually petitioned the court to allow the Child to live with the Father and since then the Child has been thriving and there have been no hospitalizations or suicidal ideations. (Tr. 8/9/2022 at 102-103).
When the Child went to visit the Mother in December 2021, the Child did not have cut marks on both arms, but they did have scars. The Father first observed scars on the Child's arms in mid-2019 or early 2020, and the Father noticed fresh cuts after 2019. After the Father obtained custody of the Child in June 2020, he last observed fresh cut marks on the Child's arm when they visited the Mother in January or February 2021 where the Child was given access to sharp objects. (Tr. 8/9/2022 at 109, 111, 119, 121).
The Father is seeking sole legal and physical custody of the Child. As to important decisions about schooling, religion, or medical care (including a transgender procedure), he did not believe the Mother should be notified of these decisions in advance unless the Child wanted the Father to notify her. If the Child wanted him to consult the Mother about any of these issues, he would do so. If the Child wanted to visit with the Mother on alternating weekends, for two weeks in the summer, or a month during the summer, he would permit it. (Tr. 8/9/2022 at 123-126).
On cross-examination by the AFC, the Father testified that there has been a lot of stress and strife in their family in the last thirteen years. In 2020, the Mother had housing instability that also affected the Child detrimentally. The Child has told him that the Mother has an explosive temper and threatened a dog; he observed the Child's reaction as a negative and painful response. The Child was physically affected by the Mother's instability. The Father testified that it is his understanding that the Mother currently lives eight hours by car from New York City in Pennsylvania, near western New York where the Mother's family is from. The Father testified that he did drive to where the Mother lives once in August/September 2020 to pick up the Child after the Mother refused to return the Child, refused to get vaccinated for COVID19, and the Child told him that they were exposed to COVID19, thereby jeopardizing the Child being able to begin school in 2020. This visibly affected the Child and the Child was afraid of what would happen. The Child was visibly traumatized, afraid, and scared. Since the Child has been with him and the visits to Pennsylvania have been limited, the Child is functioning better. (Tr. 8/9/2022 at 126-131).
The court allowed the Child's hearsay statements into evidence as an Article 10 exception.
The Mother's Case
Mother's Testimony
The Mother testified that she no longer lives in the New York City area and has not since 2021. The Mother testified that the Child is now sixteen years old. When the Child was born the Mother lived in New York City with the Father. At the time the Child was born, the Father was teaching a full-time schedule and the Mother was not working. The Mother testified that she was the primary caregiver. The Child lived with the Mother until approximately 2020. The Mother was granted custody of the Child and the Father was granted visitation according to a stipulation signed by the parties on August 13, 2015 (Custody Agreement R-Exh. B). On August 7, 2019, the parties were in court and signed a modification of visitation stipulation, which allowed visits to end early or be cancelled if the Child wanted. (R-Exh. C). The Mother testified that she and the Father could have a co-parenting relationship but that never transpired, and so by entering into this stipulation they were trying to come to an agreement that would work for the parties and still allow the Child and the parties' son to be "comfortable." On June 18, 2020, the court modified the Custody Order to allow the Child to reside with the Father except for alternate weekend visits with the Mother. (R-Exh. D). Prior to the court modifying the Custody Order, the Child had been living with the Mother in the New York City area. The Mother moved outside of New York City in November or December 2020. (Tr. 10/3/2022 at 8-10, 14, 16-25, 27, 29).
The Mother testified that on July 27, 2020, she made a police report against the Father because he came to the apartment she was living in, jumped out of the vehicle, and started screaming at her that he hopes she gets "jumped" and he hopes "they kill [her] out there," which she took to mean that he meant her physical harm. The Mother testified that the Father's brother had to jump out of the car to restrain him. She described the Father's demeanor as intense, and that he was yelling, screaming, and caused a scene. The Mother testified that she was shaken and felt upset. She went to the police precinct to file a report as she felt she was being harassed because of the multiple Administration for Children's Services (ACS) reports and felt bullied by the Father. The Mother testified that the Child and their brother were present during this incident. She met with the Father that day to exchange the Child and the Child left with the Father, so the Mother did not observe the Child's demeanor. (Tr. 10/3/2022 at 30-34).
The Mother testified that over the years, things were not violent between her and the Father, but "there was a reason why we had put those boundaries in place" through the custody and visitation stipulations. The Mother testified that she had never called 911 on the Father before, but that the Father had physically threatened her in the past when they first broke up in 2009 or 2010. (Tr. 10/3/2022 at 34-35).
The Mother testified that on the date of the stipulation, August 26, 2021, the Child was residing with the Father. (R-Exh. E). When asked how the change in custody made her feel, the Mother became emotional, crying and stated that she misses the Child and it hurts. From 2020 to 2021, the Mother was rarely having contact with the Child, only "once in a blue moon" when the Child called her. The Mother testified that the Child would not answer the phone when the Mother called and that she tried to call the Child every day. She believes she had two or three phone calls with the Child from 2020 through 2021. In a recent conversation, the Mother and the Child talked about school and their friends. The Mother testified that she spoke with the Child about it being difficult to deal with social issues and that she told the Child that it was important for the Child to let the Father know immediately if "certain things happen." (Tr. 10/3/2022 at 36-40).
The Mother consistently referred to the Child by the pronouns "she" and "her" despite the Child's preferred pronouns "they" and "them" and the court's directive to use the Child's preferred pronouns. The court is very cognizant of the harm caused by misgendering, which can have a negative impact on an individual's mental health and ability to function in the world. Misgendering can also be considered a microaggression, as it denies a person the autonomy to determine and outwardly express their gender, whether it was done unintentionally or maliciously, and particularly after repeated corrections.
In January 2021, the Child stayed with the Mother for a couple of days. The Mother tested positive for COVID19, but the Child and the parties' son were negative. The Mother testified that the Father came in the middle of the night and took the Child, which was traumatizing to the Mother as she had not seen her "daughter" since leaving New York and it was the Child's first visit. The Mother testified that her address was confidential at the time. Before the Mother left New York, she understood that the Child was having mental health issues and was in and out of the emergency room. The Mother testified that the Child had a visit to Bellevue and was admitted to three different hospitals for wanting to kill "herself." The Mother testified that she took the Child to the hospital at least three times and that the Father was contacted every time. (Tr. 10/3/2022 at 44-47).
The Mother testified that when the Child was staying with her in January 2021, the Child had multiple lacerations up and down their arms where the Child was self-harming. The Mother knew this because she saw the scars on the Child's arms with her own eyes and took photographs of them. (R-Exh. A1, A2, A3). The Mother took these pictures because she was "horrified that she looked like that." The Mother testified that she had never seen cuts like that on the Child's arms. The Mother testified that the Child was not bleeding on their arms during that stay. The Mother asked the Child why they did that and was careful as to how she approached the Child because she did not want the Child to feel like they could not talk to her about anything. The Mother told the Child how important it was that the Child knows they could talk to her and the Father, and that the Mother was "heartbroken" about the marks on the Child's arm. The Mother also asked the Child if they reached out to their therapist. The Mother testified that she did not see the Child using cutting instruments to make those marks. The Mother had no way of contacting the Father at this time, but called ACS. (Tr. 10/3/2022 at 47, 53, 55-58).
The Mother was awarded visitation with the Child upon their request according to a Supplemental Temporary Order of Visitation dated May 20, 2022, but had no visits with the Child. (R-Exh. F). The Mother testified that she knows she is capable of making decisions regarding important child-related issues for the Child because she has been their mom for her entire life and knows what to do in case of an emergency and when they need help in school. The Mother testified that she agreed to engage in therapy with the Child and made multiple phone calls to the Child's providers to no avail. When asked what type of therapy she believed would be helpful, the Mother stated that she wants their "relationship to be better" and she just wants "to see her on a regular basis." The Mother has had therapy for the issues she has had with the Child. (Tr. 10/3/2022 at 60-62).
The Mother believes the Child should reside with her and when asked why, she testified, "it may be selfish, I miss my daughter, I miss my home", that "nothing has felt the same," and because "she's worked her ass off." The Mother believes that she should be involved in important decisions pertaining to the Child, and that the Father should be as well. The Mother testified that she wants to be involved in these decisions because she knows "what it's like to be a kid" and that kids "don't always feel comfortable with one parent or the other parent, and sometimes they would feel" more comfortable talking to one than the other. If the Mother were granted custody, she would still involve the Father in the Child's life. (Tr. 10/3/2022 at 63-66).On cross-examination by the Father, the Mother testified that in August 2021 she became aware that the Child left her home the next day when the Mother woke up. The Father did not make any attempt to harass, confront, or contact her at her residence when he picked up the Child or since that time. The Mother testified that on July 27, 2020, the Father came to pick the Child up from the Mother's residence in Brooklyn. Prior to the Father's arrival, the Mother testified that she observed the Child having a "meltdown" and the Mother tried to calm the Child down by speaking softly and reasoning with the Child, after which the Child went into their room and shut the door. The Mother attempted to document the incident by taking a video on her iPhone camera. The Child responded to that recording by calming down. When the Father came to pick up the Child, the Mother attempted to video record. (Tr. 10/7/2022 at 80-84).
The court notes that the Mother did not mention the Child's best interests in the answer to this question.
In the spring of 2020, the Mother attempted to go to the Father's residence to get the Child back because the Child was still in the Mother's custody at that point. The Mother testified that she had to bring the police with her. In the spring of 2020, the circumstances that led to the Child being put in the Father's care were that she had a disagreement with her son. The Mother testified that she called the police, and the Child left the Mother's residence with a police officer that day. It is her understanding that the Father picked up the Child from the police station. The Mother and her son were held overnight at the jail. The Mother testified that after she was released, she went to court to file an emergency motion to come and get the Child. The Mother showed up to pick up the Child with police officers. The Mother testified that it "took a long time," about two hours, to get the Child to leave. (Tr. 10/7/2022 at 88-92).
In 2018, the Child resided with the Mother. Sometime between the Fall of 2018 and March 3, 2019, the Child went to reside with the Father. The Mother allowed the Child to reside with the Father because the Mother was "having a hard time" with her son. The Mother testified that in the fall of 2018, she had an interaction with the police at her residence in Harlem because she tried to take the phone from her son, he got upset, and there was an argument between them. The Mother testified that the argument turned physical. During this argument, the Child was in their bedroom. The Mother recalls getting into an argument with the Child that morning because the Child "stuck up for" their brother. The Mother testified that "between the two [children], whenever I would try to parent, they became very argumentative and very, very difficult in the teenage years and if I had an issue with one, the other would jump in" verbally. The Mother testified that the Child's phone was damaged that morning because the Child was running down the stairs and tripped and the phone fell. The Mother testified that she called the Father that day to come and pick the Child up. (Tr. 10/7/2022 at 92-95).
The Mother testified that on May 26, 2019, an ambulance was called to her address because the Child was suicidal. The Mother testified that in March, April, and May of 2020, the conditions in her household were very strained as she and her children had just moved into a smaller apartment, and ACS was trying to "send [her] all over the place and to take drug tests and what not". The Mother testified about the July 27, 2020, incident and stated that the Child went into the Mother's bedroom and "flipped everything upside down." The Child tried to "rush at her," and the Mother tried to restrain the Child by grabbing each side of their arm. (Tr. 10/7/2022 at 100, 104, 109, 110).
The Mother testified that if she gets custody of the Child, she will drive the Child to school. She has not attended therapy since she left her last residence, which was about five or six months ago. The Mother testified that when she was attending therapy, she went weekly for about a year. (Tr. 10/7/2022 at 113-114).
On cross examination by the AFC, the Mother testified that she has been in and out of this court since 2009. The Mother admitted that during a virtual court appearance on July 7, 2022, settlement was being discussed and she abruptly left the virtual courtroom and also was cursing and saying "sure. Whatever. You're going to steamroll me and give this fucking asshole whatever he fucking wants." Despite this, the Mother denied that she lost control and testified that she intended to curse in court. She did acknowledge that her behavior was not respectful, and she apologized. (Tr. 10/7/2022 at 118-120).
The Mother testified that she has been under a lot of stress since the pandemic and moved three times since March 2020. The Mother testified that her residence in Pennsylvania was about a nine-and-a-half hour drive from New York City. When the Child first lived with the Father, he continued to pay the Mother $1,800/month in child support. In fact, the Mother testified that the Father still pays child support to the Mother in that amount. The Mother testified that she closed the bank account they had established for the Child and does not currently have a bank account on behalf of the Child. The Mother testified that at this point she is not spending any of the $1,800/month child support to actually support the Child. (Tr. 10/7/2022 at 120-123).
In August 2021 when the Child visited, the Mother had not been vaccinated even though she knew she was eligible and the Child was coming to visit her. During the August 2021 visit, the Mother testified that she did not know she had COVID19 until the day after the Child arrived; she was tested the day before the Child's arrival because she knew the Child was coming and did not have any symptoms. The Child did not leave the Mother's home when they were originally scheduled to leave. (Tr. 10/7/2022 at 123-129).
The Mother testified that her understanding of misgendering someone is "by not referring to somebody by the terms that they have chosen." The Mother acknowledged misgendering the Child but testified that she did not do so intentionally. She testified that she is not "used to" it and that "it's not always on the forefront of my brain." The Mother testified that if she had the Child in her life "there would be a more active role in putting that to use" but that at this point she is not "used to it" because the Child is not around her. When asked whether she perceives any harm that misgendering causes to the Child, the Mother testified that she has not "even seen her for years, so there is no harm done." The Mother testified that the last time she spoke with the Child's counselor was two weeks ago but that she does not speak with the counselor often. (Tr. 10/7/2022 at 129-132, 135-137).
On re-direct examination, the Mother testified that when the Child visited the Mother's home in Pennsylvania in August, the Mother did not know that she had COVID19. She had been tested but had not yet received the results. The Child stayed with her longer than they were supposed to and took public transportation to get there. The Child was supposed to take public transportation to return home after the visit, and the Mother did not want the Child to expose others to COVID19. (Tr. 10/26/2022 at 144-146).
The Mother testified that the Child was hospitalized three times when living with the Mother. The Child was hospitalized once in Brooklyn where they remained for three or four weeks. The Child was hospitalized a second time in Hastings-on-Hudson for two or three weeks. The third admission was to an emergency room, but the Mother could not recall where, and the Child remained for a week. The Mother had to call the ambulance for one of these hospitalizations to transport the Child there. The Mother informed the Father each time but for the Hastings-on-Hudson incident. (Tr. 10/26/2022 at 147-150).
The Mother kept referring to the hospital location as "Hastings-Hudson," but it appears she was referring to Hastings-on-Hudson.
After these hospitalizations, the Mother testified that to her the Child appeared to be stressed, frazzled, and was very moody. The Child would close themself off in the bedroom. The Mother testified that the Child's hospitalizations were very stressful for her as she was trying to hold down a job and did not have anyone to depend on. The Mother and the Father were not talking during this period of time. The Mother testified that she used to be in therapy but is not currently. However, she stated that it will pick it back up eventually. If the court granted the Mother's request to have therapy with the Child, she would be open to that. (Tr. 10/26/2022 at 150-156).
On re-cross examination by the Father, the Mother testified that when she is stressed, she does everything she can to make the situation better and has learned to let go of the things she cannot make better, as it is not good for her to hold onto those things. The Mother testified that she called the ambulance when the Child went to the hospital at Hastings-on-Hudson in May 2019. When asked about misgendering the Child and whether the Mother believes that she will be able to utilize the Child's preferred pronouns, the Mother testified that it is something she "can get used to" and that in order to get used to utilizing the Child's pronouns, the Mother would "actually have to be around her." The Mother testified that when the Child was having difficulties while living with her in Brooklyn, she had to quit her job. If the Child went through more difficult or stressful times while in her care in the future, the Mother replied that she can handle it emotionally as she has positive outlets, but could not do it without emotion because it is hard to see the Child go through these things as she loves the Child. (Tr. 10/26/2022 at 157-161).
On re-cross examination by the AFC, the Mother testified that she took a COVID19 test at the Rite Aid drive through on the day the Child was arriving to visit in August. The Mother testified that prior to going to take the test, she had no symptoms. The Mother then testified that she did have the "sniffles" which is nothing to her because she has allergies and it is normal for that time of year. (Tr. 10/26/2022 at 161-163).
The Father's Summation
The Father argues that his demonstrated commitment to the care and well-being of the Child, including their academic, mental and physical improvement, coupled with the Mother's acts of violence towards the children, her inability to maintain stable housing or financial support, her unwillingness to respect the Child's name and gender preferences, and the June 15, 2020 Temporary Order of Visitation which granted the Father expanded visitation, all demonstrate a substantial change of circumstances which necessitate modifying the underlying order to grant the Father sole legal and physical custody of the Child.
The Father argues that when the court granted the Mother sole legal and physical custody of the children in 2015, there were no reports of violence between the Mother and the children, but that by June 2020, the Child was a victim of and witness to multiple acts of violence by the Mother. Since June 2020, living with the Father the Child has "thrived academically in a home environment devoid of violence and with support for their physical, mental and emotional needs." Since that time, the Mother has moved eight hours away from where the Child lives, has been unable to find a job, and has been unable to engage in therapy with the Child. In contrast, the Father argues that he has engaged with the Child's social workers, psychiatrists, psychologist, guidance counselors, teachers, and school administrators to support the Child. The Father argues that he has never restricted the Mother's access to the Child.
The Father argues that granting him sole legal and physical custody will enable him to continue to make decisions in the Child's best interests and "continue their road to recovery." The Father argues that during the trial, the Mother has demonstrated a pattern of defiance, unreliability, and willingness to lie to paint herself as a loving and caring parent. The Father points to several examples of the Mother's behavior in court, including in-court settlement discussions where the Mother stated in response to being read the terms of the settlement agreement, "sure, whatever, you're going to steamroll me and give this fucking asshole whatever he fucking wants," and then proceeded to abruptly leave the virtual court proceedings. The Father also points to the Mother's later testimony regarding this incident, where the Mother stated that she did not lose control in this moment because she intended these actions, although she acknowledged that the actions were disrespectful.
The Father argues that this lack of respect extends to the mental health of the Child, pointing to the fact that the attorneys and the court throughout the proceedings used the Child's preferred name and gender identity, but the Mother rarely used the Child's preferred name, and never used the Child's preferred pronouns, despite admonishments from the court. The Father also points to the Mother's testimony regarding the violent incidents between her and the Child, noting that the Mother testified that it was "possible there were more than one physical altercation between 2018 and 2020" between herself and the Child. The Father argues that this "strain and violence" in the Mother's life does not seem to have subsided since the time that the Child has lived with the Father.
The Father argues that despite the Child living with him, the Mother is still receiving $1,800 per month for child support, and has made no attempts to save or return the money she receives for the Child. The Father argues that the Mother has not been in therapy for at least five months, and that she testified she is having a difficult time connecting to family therapy since she lives eight hours away from New York City.
The Father argues that since June 2020, there has been a substantial change in circumstances that requires granting the Father sole legal and physical custody of the Child, and that the Mother's voluntary move away from New York City, willingness to perjure herself, and her volatile behavior do not show that she is capable of meeting the Child's physical, academic, and mental health needs.
The Mother's Summation
The Mother argues that the Father has not met his burden to show a change in circumstances warranting a modification of the physical and legal custody of the Child. The Mother argues that it is notable that the Child did not testify, since they are sixteen years old.
The Mother argues that she was the primary caregiver for the Child from the Child's birth in 2006, until 2020. The Mother points to an argument that she and the Father had on July 27, 2020 near her home during a visitation exchange of the Child, in which the Mother alleges that the Father screamed at her, yelling that he hoped she "got jumped" and "they kill you out here," which the Mother took to mean that the Father hoped someone would physically harm her, which caused the Mother to shake.
The Mother denied mis-identifying and mis-gendering the Child deliberately, and the Mother argues that it is "ridiculous" and "hypocritical, to refuse to accept [the Mother's] answer that she simply made a mistake with a pronoun" when, the Mother alleges, the court and counsel had "often done" the same throughout the proceedings.The Mother argues that the relevant factors, that include stability in the child's life, the home environment of both parents, each parent's willingness to foster a relationship with the other parent, a custodial parent's deliberate interference with or frustration of the non-custodial parent's rights, the expressed preference of the child, considering the child's age and maturity, the relative fitness of the respective parents, the length of time that the present custody agreement has continued, and a parent's moral character, all militate toward the granting of joint legal custody of the Child to both of the parties.
The Mother argues that "weighty priority" must be given to the 2015 so-ordered stipulation, as the Father knowingly, voluntarily, and intelligently entered into that agreement in which he agreed that the Mother had physical and legal custody of the Child. The Mother further argues that she should still have decision making authority for the Child, despite the fact that the Father will likely have physical custody of the Child as the Mother resides outside of New York City, as she has been the Child's primary caretaker from the Child's birth until they were fourteen years old.
Further, the Mother cites to the Father's poor conduct in the threats that he made to her on July 27, 2020 and the "stealthy" pick-up of the Child from the Mother's home, as a reason for why she wants joint legal custody. The Mother argues that both she and the Father have shown relative fitness as parents, citing to the fact that the Mother took the Child for emergency mental health treatment and initially arranged for the Child's therapist and psychiatrist, and made all important child-related decisions for the Child from birth until age fourteen. The Mother argues that since 2020, the Father has now become engaged with the Child's mental health care and schooling. However, the Mother states that "it seems important to recognize that if either parent can be faulted for not preventing or not addressing the child's self-harm through mutilation of [their] arms by cutting [their] skin, it would have to be [the Father] since the child was in his care, and not [the Mother's] care."
Finally, the Mother argues that there is no evidence of the Child's expressed preference regarding custody that would justify a change of legal custody from the Mother to the Father. The Mother requests that the Father's petition for modification be denied. The Mother further proposes that the Father have physical custody of the Child, and that the parties have joint legal custody, with the Father providing reasonable advance notice to the Mother and to practicably confer with her, with a goal to achieve a joint parental decision about any and all important child-related issues. In the event of a disagreement, the Father would have final decision-making authority.
The AFC's Summation
The AFC urges the court to find that the Father has met his burden to show that: 1) changed circumstances permit the court to grant the Father full legal custody of the Child; and 2) the Child's best interests require a final order modifying the prior final order of joint custody and granting full legal custody to the Father .
As the issue of visitation was resolved consent order dated July 7, 2022, the AFC's additional request for a visitation order is moot.
The AFC argues that the Child has overcome many obstacles and challenges over the years, and that the Child is now thriving in the Father's care and actively participating in school and mental health services. The AFC argues that throughout these proceedings, the Father testified to changed circumstances since entry of the earlier custody order in that the Mother left her Brooklyn apartment and moved a nine-hour drive away to western Pennsylvania, and since moving the Mother has had very limited contact with the Child. The Mother has neither helped arrange for the Child's many needed services nor participated in the services that could have fostered a closer relationship between the Child and the Mother. The AFC argues that in contrast, the Father has provided for all of the Child's needs and ensured that their mental health and educational services have met their needs, and that the Child is thriving under the Father's care. The AFC notes that the Father testified that he finds it impossible to communicate with the Mother, and therefore asked the court to grant him sole legal custody.
The AFC argues that throughout her testimony, the Mother admitted that she has lived in three different locations since the beginning of the pandemic, and that she continues to receive $1,800 in monthly child support paid by the Father for the Child, despite the fact that the Child has not lived with her in more than two years. The Mother admitted that she did not have a bank account for the Child and was not spending any of the child support money she receives to provide for the Child's current or future needs. The AFC argues that the Mother has only seen the Child in person twice since the pandemic, one of the visits being the one where the Mother exposed the Child to COVID19 after the Mother refused to receive a COVID19 vaccine. This exposure jeopardized the Child's ability to attend school when it started in September.
The AFC pointed to the fact that the Mother conceded that she refuses to abide by the Child's request to call them their chosen name and to use their chosen pronouns. During her testimony, the Mother refused to refer to the Child by the Child's chosen name and pronouns, and refused to acknowledge the harm this could cause to the Child.
The AFC argues that the totality of the circumstances, and best interests of the Child, supports a final order granting the Father sole legal custody and primary physical custody.
The Father's Modification Petition
As previously stated, the parties agreed to an access schedule between the Mother and the Child that was ordered by the court on July 7, 2022, and accordingly, the only open issue before the court is custody and decision making.
As in all custody proceedings, the Court's primary consideration is the best interests of the child. See, Eschbach v. Eschbach, 56 N.Y.2d 167 (1982); Friederwitzer v. Friederwitzer, 55 N.Y.2d 89 (1982). Modification of a custody order requires a showing of sufficient changed circumstances "reflecting a real need for change in order to insure the continued best interest of the child... [w]hen the existing custody arrangement arises out of a stipulation between the parties, that arrangement is entitled to less weight than a disposition after a plenary trial." [internal quotations and citations omitted]. See, Murray v. McLean, 304 A.D.2d 899 (3d Dept. 2003); Russo v. Russo, 257 A.D.2d 926, 927 (3d Dept. 1999); Carl JB v Dorothy T, 186 A.D.2d 736, 737 (2d Dept. 1992); see also, Ciannamea v. McCoy, 306 A.D.2d 647, 647-648 (3d Dept. 2003); Meola v. Meola, 301 A.D.2d 1020, 1020-1021 (3d Dept. 2003). While the original custody award is an important factor to consider, "it does not bestow upon the custodial parent a prima facie right to custody and there is no requirement that a petitioner prove that there has been a substantial change in circumstances since the original placement." Gant v. Higgins, 203 A.D.2d 23, 23 (1st Dept. 1994) [internal citations omitted].
In making such determination, factors to be considered include "`the quality of the respective home environments, the length of time the present custody arrangement has been in place and each parent's past performance, relative fitness and ability to provide for and guide the child's intellectual and emotional development.' (Matter of Williams v. Williams, 188 A.D.2d 906, 907, 591 N.Y.S.2d 872)." Murray v. McLean, supra., at 900; see, Russo v. Russo, supra. at 927; Ciannamea v. McCoy, supra. at 647; Meola v. Meola, supra., at 1021. In determining whether a prior custody order should be modified, the court must determine whether the totality of the circumstances warrants a modification in the best interests of the child. In the Matter of Robert T.F. v Rosemary F., 148 A.D.2d 449, 449 (2d Dept. 1989) [internal citations omitted].
Here, the Custody Order was entered on the parties' consent. As such, it will not be set aside unless there has been a sufficient change of circumstances, and the modification is in the child's best interests. See, Matter of Scala v. Evanson, 78 A.D.2d 954, 955 (2d Dept. 2010); Matter of Sergei P. v. Sofia M., 44 A.D.3d 490, 490 (1st Dept. 2007); Matter of Appell v. Gooden, 13 A.D.3d 1212, 1213 (4th Dept. 2004); Smoezkiewicz v. Smoezkiewicz, 2 A.D.3d 705, 706 (2d Dept. 2003); Matter of Watts v. Watts, 290 A.D.2d 822, 823-24 (3d Dept. 2002) lv denied 97 N.Y.2d 614 (2002). Accordingly, the Father must show that there has been a sufficient change of circumstances since issuance of the prior custody order and that a modification is in the Child's best interests. Matter of Lawrence C. v. Anthea P., 79 A.D.3d 577, 579 (1st Dept. 2010) [internal citations omitted]; Matter of Sergei P. v. Sofia M., supra. Here, the Father has made the required showing. The Father's basis for the instant application is the Mother's move to Western Pennsylvania and the deterioration of the Child's mental and emotional well-being while in the Mother's care, which has thankfully greatly improved since the Father was awarded temporary custody on August 12, 2020, which are changed or new circumstances.
The court must also consider the effect of domestic violence upon the best interests of the children, together with such other facts and circumstances as the court deems relevant. (Dom. Rel. Law § 240). The negative impact that domestic violence has on a child's well-being has been recognized by courts. See, Matter of Peters v. Blue, 173 Misc.2d 389,394 (N.Y.Cty. Fam.Ct.1997); see also, Matter of Spencer v. Small, 263 A.D.2d 783 (3d Dept. 1999). In the instant matter, the Mother withdrew her family offense petition on July 7, 2022. The parties have prior history in that a criminal complaint was filed against the Father (Docket No.XXXXX/2009) that was dismissed on July 15, 2009. Accordingly, the court will not consider that domestic violence occurred between the parties in determining custody of the Child in this matter.
In considering the totality of the circumstances as they have been presented during the course of the proceedings, the court has assessed the testimony, demeanor, and credibility of each witness. The Father credibly testified as to his care of the Child and involvement to insure that the Child receives the appropriate treatment and therapy. The Father has also demonstrated sensitivity and awareness to the Child's preferred pronouns and has taken an active role in the Child's education. To the contrary, it was clear to the court that throughout the Mother's testimony she was focused on her needs and desires and not the Child's. When asked about the Child's mental health issues and struggles, the Mother was more fixated on how devastating the current situation was for her, versus how this was impacting the Child. The Mother repeatedly misgendering the Child shows not only a lack of respect, but a lack of awareness as to the needs of the Child and demonstrates that she is willing to put how she feels above the Child. The Mother demonstrated little insight into her role as to the deterioration of her relationship with the Child, which the AFC also cited in support of his position that the Father be awarded sole legal and primary physical custody of the Child. Accordingly, the court finds that awarding sole legal and physical custody of the Child to the Father is in the Child's best interest.
The overwhelming evidence at trial demonstrated the parties' inability to work together for the best interests of the Child. This is aptly demonstrated by the acrimony surrounding the temporary transfer of custody of the Child to the Father. The Mother testified that the parties have never had a co-parenting relationship and that she often feels bullied by the Father. The Father also testified that joint decision-making is not possible as the parties have difficulty communicating. The AFC pointed to the Father's testimony that he found it impossible to communicate with the Mother, and argued that the Father tended to the Child's needs throughout the duration of these proceedings, with no assistance from the Mother. For all these reasons, joint decision making cannot be awarded as it does not serve the best interests of the Child. Inasmuch as joint decision making is not a viable option, given the acrimony between the parties (Reisler v Phillips, 298 A.D.2d 228, 230 [1st Dept. 2002]), the court finds that the parent with whom the Child will reside will have ultimate decision-making authority. (Id.; AC v. JO, 40 Misc.3d 1226[A]; 975 N.Y.S.2d 707 [Kings Co. Sup Ct. 2013]).
As to important decisions about schooling, religion, or medical care (including a transgender procedure), the Father requests that the Mother only be notified of these decisions in advance if the Child wants her to be notified, and that he be required to consult with the Mother only if the Child wants him to. The court is cognizant of the Child's recent challenges and believes that it is in their best interest to have these wishes respected, particularly given the Child's age. Accordingly, the Father shall have final decision-making and inform the Mother of major decisions so long as the Child consents, but given the parties' history, is not being required to consult her prior to exercising final decision making.
Accordingly, it is therefore, ORDERED, that the Custody Order is modified to grant petitioner S. P. sole physical and legal custody of the child, XXXXX a/k/a "XXXX" (DOB XXXXXXX) and it is further
ORDERED that petitioner S.P. shall notify the respondent C. B. of any major decision involving the Child, so long as the Child consents, but given the parties' history, is not required to consult with C.B prior to exercising final decision making; and it is further ORDERED that respondent C.B. may have access to the educational and medical records of the Child, and may request participation in the Child's therapy upon the Child's permission and if consistent with the Child's wishes and interests; and it is further
ORDERED that the parties agree to respect the Child's chosen pronouns and chosen name. The parties will make every effort to avoid misgendering or using the Child's birth name; and it is further
ORDERED, that any relief not expressly granted herein is denied.
This constitutes the decision and order of this court.