Opinion
V-10975-18/18A V-10975-18/18C
03-22-2019
STEPHANIE R., Petitioner, v. JOHN R., Respondent. John R., Petitioner, v. Stephanie R., Respondent.
Attorney for Stephanie R.: LYNN POSTER ZIMMERMAN, ESQ., 775 Park Avenue, Huntington, NY 11743 Attorney for John R.: JOSHUA BLUMBERG, ESQ., Blumberg, Cherkoss, Fitzgibbons & Blumberg, LLP, 330 Broadway, Suite 1 Amityville, NY 11701 Attorney for the Child: PAUL K. SIEPMANN, ESQ., P.O. Box 672, Patchogue, NY 11772
Attorney for Stephanie R.: LYNN POSTER ZIMMERMAN, ESQ., 775 Park Avenue, Huntington, NY 11743
Attorney for John R.: JOSHUA BLUMBERG, ESQ., Blumberg, Cherkoss, Fitzgibbons & Blumberg, LLP, 330 Broadway, Suite 1 Amityville, NY 11701
Attorney for the Child: PAUL K. SIEPMANN, ESQ., P.O. Box 672, Patchogue, NY 11772
Chris Ann Kelley, J.
This Decision and Order is issued following a consolidated trial before the Court. The Court considered petitions for modification of custody filed by each of the parties as well as a violation petition filed by Stephanie R.
The parties, Stephanie R. and John R., are the divorced parents of J.R. (hereinafter "the child"). As set forth in the Judgment of Divorce, the parents have joint legal and physical custody of the child subject to the schedule set forth within the 2015 Stipulation of Settlement executed by both parents. Under the terms of the agreement, the parents have a split ("50/50") weekday custodial schedule with alternating custodial weekends. Separate provisions address vacations, school recess and holidays. With the exception of emergency situations, "[e]ach parent shall pick up the child, and shall return the child to the other parent at their residence at the end of the custodial time" (see Stipulation of Settlement). When the Judgment of Divorce was entered, the child was seven years old.
The Judgment of Divorce confers continuing jurisdiction over this action upon the Family Court concurrent with that of the Supreme Court, so as to permit the Family Court to consider custody, visitation and modification proceedings, FCA § 652.
On July 19, 2018, petitioner/respondent mother Stephanie R. (hereinafter "Ms. R.") filed a petition alleging violation of the 2015 Court Order. Specifically, she claimed that petitioner/respondent father John R. had denied her scheduled visitation, removed the child's belongings and had moved the child into his home on July 5, 2018. She alleged that she had not seen the child since that date.
On August 2, 2018, petitioner/respondent father John R. (hereinafter "Mr. R.") filed for modification of the custody and visitation provisions of the 2015 Judgment of Divorce. Mr. R. alleged that the now ten year old child no longer wished to reside in the mother's house. He raised concerns about drug use and alleged that petitioner's home had "too much chaos". Mr. R. is seeking custody of the child on all weekdays.
On August 15, 2018, Ms. R. initiated a habeas corpus proceeding, alleging that Mr. R. had illegally detained the child. The Court ordered that the child be produced in the Suffolk County Family Court on August 17, 2018. A subsequent Order allowed time for service of process and amended the return date to August 22, 2018. The child was returned to the mother's custody. On August 23, 2018, the Court deemed the writ satisfied.
By petition of September 4, 2018, Ms. R. filed for modification of the 2015 Order. Referencing the time period between July 5 and August 23, 2018, she sought full residential custody, alleging that modification was warranted on the basis of parental alienation.
A joint trial was conducted on November 9, 2018 and January 11, January 15 and January 23, 2019. An in camera interview of the child was conducted on January 23, 2019. The evidence adduced at trial consisted of the in camera testimony of the child as well as the testimony of Stephanie R., John R., Joanne D. and Evelyn S. In addition to the testimony of witnesses, there were items admitted into evidence. Because Ms. R.'s petition was filed first, evidentiary references to "petitioner" relate to Ms. R. and evidentiary references to "respondent" relate to Mr. R. The following were admitted into evidence: 2015 Stipulation of Settlement (Petitioner's 1); Judgment of Divorce (Petitioner's 2); June 19, 2018 text messages (Petitioner's 3); July 5, 2018 - October 10, 2018 text messages (Petitioner's 4); August 16, 2017 text with photographs of various women (Petitioner's 5); October 7, 2017 text with photograph of Mr. R. (Petitioner's 6); September 26, 2017 text with photograph of Ms. R. (Petitioner's 7); and social media photograph of Ms. R. (Respondent's B).
The Court has had a full opportunity to consider all of the evidence presented. The Court has also had an opportunity to observe the demeanor of the witnesses called to testify and has made determinations on issues of credibility with respect to these witnesses.
After careful consideration, and for the reasons stated below, the petitions for modification of custody filed by each party are denied except to allow Ms. R. compensatory parenting time and the 2015 Judgment of Divorce otherwise stands. The Court further determines that Mr. R. is in violation of the custody and visitation terms of the prior order and that Ms. R. is entitled to compensatory custody. The parties are required to engage in therapeutic counseling with their child.
FINDINGS OF FACT
The evidence at trial established that, following the parties' divorce in 2015, both parents complied with the Court-ordered parenting schedule. There was no evidence that, in the approximately three-year period leading up to these proceedings, either of the parties sought Court intervention to modify the parenting schedule or address a violation. On certain occasions, such as summer visitation or a family wedding, the parties were able to informally work with each other to accommodate departures from the court-ordered schedule.
Ms. R. resides with several family members in a home owned by her brother, D. She has lived there for three years. It is a four-bedroom, four-bathroom home. In addition to Ms. R. and the child, the other residents are Ms. R.'s adult daughter, S., and the child's maternal grandmother, Joanne D. Each of the four residents has their own bedroom. For an approximately one year period between 2017 and 2018, Mrs. R.'s second husband also resided there but, in November, 2018, during the pendency of these proceedings, he moved out. In a separate downstairs apartment, Ms. R.'s adult nephew, A., resides with his fiancée, and two children, ages four and eight months. The downstairs apartment has a separate outdoor entrance as well as an indoor entrance between the apartment and the upstairs home. The interior door is locked when the downstairs residents are not there.
Joanne D., the maternal grandmother, routinely makes dinner for the four upstairs residents. There are occasions when her grandson, A., his fiancée and/or her great grandson join them.
Ms. R. is a high school graduate who is employed full time as a secretary for a business located approximately one mile from her home. She works on weekdays between 8:00 a.m. and 5:00 p.m. and normally picks up the child from school on her parenting days. She assists him with his homework in the evenings. When Ms. R. is not at work, the credible evidence at trial established that she is actively engaged in the child's life. Ms. R. attends parent-teacher conferences and leaves work to attend school holiday parties during the day. If the child is sick at school, Ms. R. picks him up. Ms. R. arranges for annual well visits and medical appointments.
The family members in Ms. R.'s home help with care and support of the child. Joanne D., the maternal grandmother, is 64 years old and in good health. She spends a significant amount of time with the child, with whom she has had a close relationship since birth. She does not work outside of the home. She is home when the child returns from school and she cares for him. Occasionally, she picks him up at school. In the morning, she helps him get dressed, fed and prepared for school. Ms. R.'s adult daughter transports the child to school in the mornings.
Mr. R. has an associate's degree and is employed as a union electrician. He works both day and evening hours. He lives in the former marital home, which he currently owns and in which he has resided for eight years. It is a four bedroom, two and one-half bathroom home with a living room, dining room, den and playroom. The home has a backyard with a swing set and a trampoline. The child has his own bedroom. When the child is there, Mr. R. provides help with homework, school transportation and other daily routines. The father and child usually have dinner together and enjoy joint activities such as walking the dog, playing video games and sports. Mr. R. is registered on the child's electronic school portal. He has attended some parent-teacher conferences. When Mr. R. works at night, the child is cared for by a good friend of Ms. R. Transportation from school to the friend's home is provided for by a paternal family member or the friend's fiancé.
Ms. R. and Mr. R. are the parents of a bright, articulate and healthy child. Each parent has a very close and loving relationship with their child. He is currently enrolled in the fifth grade with an overall grade average in the 90's. He is socially engaged and interacts with his friends on weekends. He plays with neighborhood children and his maternal cousins. When at Ms. R.'s home, he watches the neighbor's dog when the neighbor is away. When not at school, the child engages in activities typical of a child his age.
Up until April, 2018, the parties appear to have had a positive co-parent relationship. They communicated with each other to discuss academic and health issues relating to the child. They were able to work out informal amendments, such as school transportation, summer vacations or swapping parenting dates. The situation changed in April, 2018, when the child underwent a tonsillectomy procedure. During the child's convalescence, Mr. R. was permitted visitation with the child at Ms. R.'s residence. Mr. R. testified that his visits to the home engendered a breakdown in communications between them. He attributes this to Ms. R.'s new husband, who was unhappy with Mr. R.'s presence in the marital home.
Friction in the relationship continued between the parties. In June, 2018, Mr. R.'s child support payment was late. In response to a text inquiry from Ms. R., Mr. R. wrote that he had recently spent $500 on birthday presents for the child and would deposit the money when he could. As evidenced by his text message, Mr. R. felt it was "stupid" to pay child support when the parents had a 50/50 custodial arrangement (Petitioner's 3). This was a sentiment he expressed more than once to Ms. R.
In June, 2018, conflict occurred after the child attended a maternal family wedding. After the wedding, during Ms. R.'s scheduled parenting time, Ms. R. called Mr. R. and requested that he pick up the child from her residence. The child also called Mr. R. while he was very upset. Thereafter, Mr. R. drove to Mrs. R.'s home to pick up the child, testifying that his removal of the child from the mother's residence was in response to telephone calls from both the mother and child. There was no evidence presented to explain what led to this occurrence.
The events of July 5, 2018 triggered legal proceedings. Following a visit with Mr. R., the child was returned to Ms. R. at approximately 5:00 p.m., in compliance with the court-ordered schedule. A few hours later, at approximately 11:30 p.m., Mr. R. received a telephone call from the child, who was very upset and crying following a fight with his mother. The argument between the two arose from the mother's request relating to a shower and the son's response to the effect that he did not have to listen to his mother and that he could do what he wanted. The mother also telephoned Mr. R. to inquire why the son's attitude and behavior towards her had changed. Ms. R. learned that the child was leaving when the child's friend, who had planned to stay there that night, told her. After these phone calls, Mr. R. drove to the mother's home, where he encountered the child and the nephew outside of the residence. Mr. R. waited in the car while the two children entered the home, gathered the child's belongings and placed them in his car. Over a period of ten to fifteen minutes, ten plastic shopping bags were loaded into the car. During this time, Ms. R. watched the events from a position inside of the home's front door. She did not exit the house.
Mr. R. fully acknowledges that the pick up of the child on the evening of July 5, 2018 occurred during Ms. R.'s scheduled parenting time. During this time, there was no agreement in place relating to the 2018 summer vacation schedule. Mr. R. was aware of the Court Order that was in effect and admitted knowledge that taking custody of the child was in violation of that Order.
Counsel: You just stood there and let it happen; is that correct?
Mr. R.: Yes.
Counsel: Despite knowing that there is a court order that that time was meant to be Miss R.'s, correct?
Mr. R.: Yes.
Counsel: And you kept your son for another six weeks; is that correct?
Mr. R.: Yes.
Counsel: And at no time did you bring him back to his mother's house?
Mr. R.: No.
Transcript of January 11, 2019, Page 122
In the six-week period following July 5, 2018, the child remained in Mr. R.'s custody and, despite some efforts by Ms. R., there was no mutual communication between the parties. Mr. R. testified he never responded to the mother's text messages relating to return of the child or return of his belongings. Although Ms. R. went to the father's home several times, she did not approach the actual building. On one occasion, she spoke with the child in person in her car in Mr. R.'s driveway. Through text messages and phone calls, Ms. R. regularly communicated with her son. Her son communicated to her that he wished to stay with Mr. R. In one phone call during this time, her son told her that, if she went in the driveway, it was called trespassing. No efforts were made to return the child until Ms. R. initiated the habeas corpus proceeding.
Counsel: Did you make any effort to return J.R. to his mother from July 5 to the end of August when you were brought to court with a Writ of Habeas Corpus?
Mr. R.: No
Counsel: And you were aware that there was a court order, a Judgment of Divorce that required Miss R. to have parenting time from Monday to Wednesday and every other weekend; is that correct - - I am sorry. Wednesday, Friday and every other weekend?
Mr. R.: Yes.
Counsel: So is it fair to say you were well aware of that violation of the court order by not returning him?
Mr. R.: Yes.
Transcript of January 11, 2019, Pages 126-127
Ms. R. expressed concern that, during the summer of 2018, the child's demeanor and attitude towards her changed. She believes that as a result of the father's actions, the child has become angry towards her. For instance, the mother questioned why the father had the child read the divorce papers (Petitioner's 4). Following the events of July 5, 2018, her relationship with the child was "rough" and, although the child seems to have adjusted since his return, he was initially disrespectful and disobedient towards her. Mr. R. concedes that this period of separation from Ms. R. "could have impacted on" the relationship between mother and child. Mr. R. testified that, following the habeas corpus proceeding, the child initiated conversations with him about court proceedings. Mr. R. also testified that, in the wake of these events, the child's consistent and unwavering position was to agree with Mr. R.'s modification of custody petition.
Both of the parties have concerns about the other's home environment. Ms. R. has concerns that Mr. R.'s cohabitation with different girlfriends over the past three years is disruptive and detrimental to the child's welfare. She was particularly concerned that the child previously referred to one woman as "Mom", requiring her to have a conversation with the child about it. She testified about an event during the summer of 2018 when the child witnessed his father having intercourse in a swimming pool at 2:00 a.m. She further testified about an accident that occurred during the summer of 2017 when Mr. R.'s girlfriend was watching the child. While Mr. R. was working, the son fell and hurt his arm. At the time the accident occurred, the girlfriend was taking a shower while a 14 year old was left in charge of watching the child and a small group of friends by a swimming pool. Mr. R. acknowledged that it was inappropriate to leave a 14 year old to watch his son near a pool. Ms. R.'s testimony also referenced events of December 31, 2018, when the child witnessed a verbal altercation occurring at the home of a former girlfriend and her new boyfriend.
Ms. R. alleges that Mr. R.'s home is in foreclosure and is not clean. Mr. R. responds that the mortgage has been modified and, as of January 15, 2019, he is current on the new modification. Ms. R. also has concerns that the father's evening employment interferes with the child's sleep and homework schedules.
Mr. R. describes Ms. R.'s home environment as one that is never calm. His concerns relate to a chaotic and unorganized home structure involving a large group of people. He also has concerns about the child's schedule and academics. He alluded to the possession of a marihuana cigarette by the child's sister.
Both of the parties testified about specific events that each believes reflects poorly on the other's fitness as a parent. Ms. R. raised specific concerns about the child being given too much information by Mr. R. about the within court proceeding. Both parents agree that the child is too mature for his age. According to Ms. R., the child is fully aware of the details of this case and is sad and cries. She believes that the father is telling the child negative things about her family and herself in an effort to have the child express a specific custodial preference. Mr. R. admits that he told the child there was a court proceeding and has advised the child of the court dates. Ms. R. testified that, on Christmas Eve, the child was very upset as he was constantly thinking about court and wanted the court case to stop. Ms. R. relayed this information to Mr. R. on December 25, 2018. Mr. R. indicated that he would handle it accordingly. However, following a visit with his father, the child returned home on December 27, 2018 with "a whole different perspective" and indicated that he wanted the case to continue.
Ms. R. introduced into evidence a series of photographs sent to her by Mr. R. (Petitioner's 5, 6 and 7). Although none of the pictures depict nudity, some could be characterized as suggestive. In introducing this evidence, it was inferred that Mr. R. had acted improperly and that the child might have seen inappropriate images. The evidence consisted of four pictures of women texted to Ms. R. on August 16, 2017 (Petitioner's 5); a photo of Mr. R. in bed with his girlfriend with the message "All I do is win win no matter what lmao" texted to Ms. R. on October 17, 2017 (Petitioner's 6); and an older photograph of Ms. R. accompanied by a disparaging remark about her current bodily appearance texted to Ms. R. on September 26, 2017 (Petitioner's 7).
Mr. R. also testified about certain events that he believes reflect poorly on Ms. R.'s parenting skills. He testified concerning a picture of Ms. R. that was posted on her Instagram account on December 29, 2018 (Respondent's Exhibit B). Mr. R. learned about the photograph in early January, 2019, when his son showed it to him via the son's phone. The photo appears to depict Ms. R. drinking from a glass bottle with clear liquid and the caption "And this ended the night lol". Mr. R. was concerned that the child seemed "thrown back" by the image and then shared it with his friends and laughed about it. Immediately, Mr. R., in the child's presence, printed the picture. He testified that the child knew that his father disapproved of the picture.
He further testified about a December, 2018 academic reading project that was not completed on time. Completion of the assignment would have resulted in extra credit and a chance to increase the child's grade. Although Ms. R. was aware of it, Mr. R. learned about the project when the child was with him after the due date. He attributes this to the December 2018 holiday break when he did not have access to the assignment paper in the child's school backpack. Although Mr. R. attributed this to a failure on Ms. R.'s part to make sure the project was completed, he conceded that this event was the first time that something of this nature had occurred.
Mr. R. further testified about the child's diagnosis of strep throat in mid-December, 2018. Upon picking the child up from school, the child told Mr. R. that he did not feel well. Mr. R. immediately took him to a doctor. The child subsequently missed two days of school. Mr. R. characterized this as a failure to attend to the child's medical needs. No proof established that the mother failed to attend to his medical needs while in her care and on cross-examination, Mr. R. conceded that this was the only incident relating to a medical concern.
CONCLUSIONS OF LAW
The threshold issue before the Court is whether there has been a showing that there is a change in circumstances such that modification is required to protect the best interests of the child, [Matter of Preciado v. Ireland , 125 AD3d 662, 2 N.Y.S.3d 594 (2nd Dept. 2015) ; Matter of Holmes v. Holmes , 116 AD3d 955, 983 N.Y.S.3d 850 (2nd Dept. 2014) ]. "The paramount concern in any custody determination is the best interests of the child, under the totality of the circumstances," [Matter of Kadyorios v. Kirton , 130 AD3d 732, 13 N.Y.S.3d 249 (2nd Dept. 2015) citing Eschbach v. Eschbach , 56 NY2d 167, 172, 451 N.Y.S.2d 648 (1982) ; see also, Friederwitzer v. Friederwitzer , 55 NY2d 89, 432 N.E.2d 765 (1982) ; Lieberman v. Lieberman , 142 AD3d 1144, 38 N.Y.S.3d 81 (2nd Dept. 2016) ].
Applying these legal principles to the facts of this case, and for the reasons discussed below, the Court denies the petition of each of the parties to modify the existing joint custody order so as to award sole custody. Based on the credible evidence at trial, neither of the parties has established a significant change of circumstance which would undermine the integrity of the custodial provisions set forth in the 2015 Stipulation of Settlement and Judgment of Divorce.
The record before the Court is unique. Between the time of the parents' divorce in 2015 and April, 2018, the credible evidence amply demonstrates that both parties were able to work together and abide by the terms of the joint custody order. To the credit of both parents, they were able to communicate openly in a mature fashion, make adjustments to the schedule in an amiable way and cooperatively work for the benefit of their son. During this three year period, all of this was done without recourse to judicial intervention.
In April, 2018, circumstances related to the child's tonsillectomy procedure injected stress into the relationship between the parties. Ms. R.'s new husband was unhappy with the liberal visitation that Ms. R. properly and considerately afforded to Mr. R. during the child's period of convalescence in her home. In the weeks that immediately followed, the evidence at trial established that, although the parties were still able to work together, their communications were less amiable, despite Ms. R. accepting the departure of her second husband, showing that she prioritizes the child above all others. Mr. R. expressed his displeasure at his child support obligation. The child support payment due in June, 2018 was late. At this time, the child began to voice complaints about his mother. The child's behavior and attitude towards his mother changed.
The friction between the parties culminated on July 5, 2018 when Mr. R., by his own admission, knowingly removed the child from Ms. R.'s home. He kept custody of his son for six weeks and made no attempts to return the child to the mother's home. Under oath, Mr. R. fully admitted that he was "well aware" that not returning the child was a violation of a court order.
The Court has considered the totality of these circumstances. This has included consideration of the following: (1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent's relative fitness, including his or her ability to guide the child, provide for the child's overall well being and foster the child's relationship with the noncustodial parent; and (5) the child's desires," [Matter of Wilson v. Bryant , 143 AD3d 905, 906, 41 N.Y.S.3d 503 (2nd Dept. 2016) ]. The weight to be afforded to each of the various factors is within the discretion of the trial court and requires an evaluation of the testimony, character and sincerity of all of the parties involved. [See Bourne v. Bristow , 66 AD3d 621, 886 N.Y.S.2d 502 (2nd Dept. 2009) ].
Both parties have worked hard to be a constant and reliable presence in their child's life and to promote stability. Both parents are gainfully employed and both are capable of nurturing and guiding the child. Although the homes of each parent are very different - Ms. R.'s large and busy family residence and Mr. R.'s bachelor home with a game room containing video games "beyond belief" - they each offer a loving and safe environment in which the child has been well cared for and thrived, [Matter of Salvati v. Salvati , 221 AD2d 541, 543; 633 N.Y.S.2d 819 (2nd Dept. 1995), app. dism . 87 NY2d 954, 641 N.Y.S.2d 827 (1996), lv. den . 88 NY2d 803, 645 N.Y.S.2d 445 (1996) ]. Ms. R.'s second husband is no longer part of her household. Both parents have been actively and positively involved in their son's life. The parents have both attended to medical issues, academics and scheduling. The child's academic performance is outstanding. There is no evidence that the child's educational performance has deteriorated. His behavior and activities are those associated with a healthy child of that age. He clearly loves both of his parents.
The key issue before the Court is whether the conduct of the parties in 2018 constitutes a sufficient change of circumstances to modify the order of custody. The Court finds that it does not. Although Mr. R. acknowledged under oath that he interfered with Ms. R.'s custody in July, 2018, this action was an anomaly. On some occasions, he did send spiteful and immature communications to his former spouse. In attempts by each to attack the other's parenting skills, both described singular incidents, (e.g. a missed homework assignment in January 2019, a fall by a swimming pool in 2017, the child witnessing a verbal argument in December, 2018) that occurred but were in no way indicative of a continued pattern of behavior by either parent. These past actions are insufficient to justify a change of custody, [Matter of Fallarino v. Ayala , 41 AD3d 714, 838 N.Y.S.2d 176 (2nd Dept. 2007) ]. "When .. there is no indication that a change of [physical] custody will result in significantly enhancing the child's welfare, it is generally considered in the child's best interests not to disrupt his life" [Matter of Salvati v. Salvati , supra at 43; see Matter of Russell v. Russell , 72 AD3d 973, 974-975; 900 N.Y.S.2d 106 (2nd Dept. 2010) ]. In this instance, the child has known and been cared for by both parents all of his life. Neither party is an unfit parent. Removing the child from his established and stable routine of the past three years would be traumatic and upsetting. Continuation of the present arrangement, in which the child is loved and supported by family members in both homes, affords stability and continuity, [ Gonzalez v. Gonzalez , 17 AD3d 635, 636; 794 N.Y.S.2d 103 (2nd Dept. 2005) ]. In addition, there was an overwhelming lack of evidence that removing the child from the custody of either parent, each of whom has loved and cared for the child since birth, would substantially enhance the child's welfare. Absent some indication that such a change will substantially enhance the child's welfare and that a custodial parent is unfit or less fit to continue as such, an established custody arrangement should not be disturbed [see Matter of Bryant—Bosshold v. Bosshold , 273 AD2d 717, 718, 709 N.Y.S.2d 709 (2nd Dept. 2005) ]. Under the totality of the circumstances, the interests of the child would best be served by preserving the status quo , and leaving the child in the joint legal and physical custody of his parents, who have each loved and cared for him throughout his life.
The Court has also considered the arguments of Ms. R. relating to parental alienation and determines the evidence at trial insufficient to justify a change of custody. Mr. R.'s arrival at her home on the evening of July 5, 2018 was in response to telephone calls from both Ms. R. and the child. At the same time, Mr. R. acknowledged that his subsequent actions in denying custodial time to Ms. R. were in violation of the Order. However, considering such conduct in the context of the child's best interests, the Court determines that, under the totality of the circumstances, modification of the custody order is not warranted, [ Friederwitzer v. Friederwitzer , 55 NY2d 89, 447 N.Y.S.2d 893 (1982) ].
The position of the subject child's attorney has also been considered by the Court, [Matter of Guiracocha v. Amaro , 122 AD3d 632, 996 N.Y.S.2d 108 (2nd Dept. 2014) ]. The attorney is supportive of Mr. R.'s modification petition, arguing that it is unclear that the events of July 5, 2018 constitute a violation of the custodial order. He characterizes his client as a mature young man of incredible intelligence who has a firm opinion about the outcome of these proceedings.
Separate and apart from the position set forth by the child's attorney, the child's stated wishes must be considered by the Court, [ Matter of Ivory B. V. Shamecca D.B. , 121 AD3d 674, 993 N.Y.S.2d 173 (2nd Dept. 2014) ]. The child appeared for an in camera examination on October 2, 2018. His testimony raised credibility issues. The child's testimony appeared, on the whole, to have been heavily influenced by Mr. R. The child was quite forthright when it supported Mr. R.'s position but was inexplicably unable to recall important details that would have weighed in favor of Ms. R. In reaching this decision, the Court has considered that the child has benefitted from the equal participation of both parents, which worked for a very long time. There is no credible evidence before the Court that the child has been adversely impacted by the events of 2018. His academics and extracurricular activities have not suffered. Ms. R. testified that her present relationship with the child is "back to the way it used to be". While the Court's decision herein is not in conformity with the stated interests of the child, the Court finds that, based on the credible evidence at trial, the determination to continue the existing custody arrangement is in the best interests of the child.
The Court's determination to deny the custody petitions of the parties by no means excuses the past behavior of Mr. R. with respect to the events of July 5, 2018 or his subsequent behavior. Mr. R. should be aware that his self-admitted, improper interference with the relationship between Ms. R. and her son "has been said to be an act so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as a custodial parent", [ Leistner v. Leistner , 137 AD2d 499, 524 N.Y.S.2d 243 (2nd Dept. 1988) ]. The Court has concerns relating to Mr. R.'s unilateral decision to deny meaningful access to the mother, resulting in her having to file a writ of habeas corpus to enforce the existing court order. Of equal concern is the Court's determination that, based on the consistent and credible evidence at trial, the father has acted inappropriately by subjecting the child to conversations about the pending litigation and attempting to manipulate the child's position on his custody preference. This includes evidence that Mr. R., for purposes of litigation, enlisted his son to help him print a picture of Ms. R. in a private social moment (Respondent's B). Rather than consistently supporting his child during a difficult time and helping his young son to develop coping skills, Mr. R. made poor parental decisions on these occasions. Although the facts of this case do not justify a change of custody, a fine or a jail sentence, any future behavior of this nature will not be countenanced by the Court.
In addressing the consequences of Mr. R.'s actions last July, the Court determines that Ms. R. is entitled to compensatory custodial time. After careful consideration, the Court cannot conclude that a reciprocal block of six weeks time to Ms. R. would be in the best interests of the child. To the contrary, the Court believes that another lengthy period of separation would only be detrimental to a continued meaningful relationship between the child and each parent. Accordingly, the Court is ordering a modification of the 2015 Order to allow Ms. R. two additional non-consecutive weeks of custodial time of her choice during the period between June, 2019 and August, 2019, inclusive, said time to be deducted from Mr. R.'s custody dates.
The Court further determines that joint therapeutic counseling is required to assist the family in learning appropriate behaviors to employ in order to foster a healthy and meaningful relationship with the child. Therapeutic counseling dates are to be split equally between the parties' scheduled parenting time set forth in the Stipulation and Judgment of Divorce. The parties and the child will enroll and engage in such counseling until positively discharged and provide the Court and the attorney for the child with written confirmation of same. Both parents are to pay equally for the cost.
Finally, the Court notes that, despite singular instances of hostility and inappropriate behavior by the Father, it is clear that both parents love their son. Both parties are intelligent and involved. For three years, they were able to work together in a healthy and civilized fashion. In many ways, they were the paradigm of a workable co-parenting arrangement. Despite the contentious events of the past year, the parties appear able to work together in the best interests of their child.
The Court finds that it is in the best interests of the child to remain in the joint legal and residential custody of the parents and it is hereby:
ORDERED that the September 4, 2018 petition for modification filed by Stephanie R., is denied; and it is
ORDERED that the August 2, 2018 petition for modification filed by John R. is denied;
ORDERED that neither party is to denigrate or use derogatory comments to or in the presence of the child regarding the other parent, or allow any third party to do the same, and it is
ORDERED that neither party is to discuss or communicate with the child, or allow any third party to do the same, concerning any legal proceedings related to the issues herein; and it is
ORDERED that neither party is to encourage, empower or facilitate the child refusing or failing to abide by the custody and visitation terms of the 2015 Judgment of Divorce and 2015 Stipulation of Settlement; and it is
ORDERED, ADJUDGED AND DECREED that John R. is in violation of the custody terms of the 2015 Judgment of Divorce and 2015 Stipulation of Settlement; and it is
ORDERED, ADJUDGED AND DECREED that, during the period between June, 2019 and August, 2019, inclusive, Stephanie R. shall be entitled to a compensatory, non-consecutive two week period of custody, said time to be selected at the discretion of Stephanie R. and to be deducted from John R.'s custody schedule; and it
ORDERED, ADJUDGED AND DECREED that Stephanie R., John R. and the child J.R. are to forthwith enroll and engage in joint therapeutic counseling with a mutually agreed upon therapist covered by the parties' insurance, with therapeutic counseling dates to be split equally between the parties and the cost to be split equally between the parties. If the parties are unable to agree, Ms. R. is solely authorized to select the therapist; and it is
ORDERED that the parties shall provide the Court and the attorney for the child written confirmation of successful completion of joint therapeutic counseling.
In light of the foregoing Orders, the oral cross-motions to dismiss made by each parent are denied.
To the extent that counsel for the parents have reserved their rights to pursue legal fees on all proceedings, the Court notes that, considering the facts set forth in this decision and the record generally, an award of fees is not warranted, [ Fontaine v. Smielak , 92 AD2d 880, 459 N.Y.S.2d 865 (2nd Dept. 1983) ].
In making this decision, the Court has searched the statewide registry of orders of protection, the sex offender registry and the Family Court's child protective records, and has considered and relied upon the results of these searches.
The foregoing constitutes the Decision and Order of the Court after trial.
Pursuant to Section 1113 of the Family Court Act, "an appeal must be taken within 30 days of receipt of the order by appellant in court, 35 days from the mailing of the order to the appellant by the clerk of the court, or 35 days after service by a party or law guardian upon the appellant, whichever is earliest."