Opinion
08-08-2024
V.B., Plaintiff-Mother, v. R.B.D., Defendant-Father.
Counsel for Plaintiff: Rabin Schumann and Partners, LLP By: Bonnie Rabin, Esq. Counsel for Defendant: Chemtob Moss Forman & Beyda, LLP By: Michael F. Beyda, Esq.
Unpublished Opinion
Counsel for Plaintiff: Rabin Schumann and Partners, LLP By: Bonnie Rabin, Esq.
Counsel for Defendant: Chemtob Moss Forman & Beyda, LLP By: Michael F. Beyda, Esq.
Ariel D. Chesler, J.
BACKGROUND
The parties to this post-judgment modification of custody proceeding were previously married and share three children in common, namely, Y.B.D.; E.B.D.; and E.C.B.D. (hereinafter: the Children). The parties entered into a Stipulation of Settlement, which was incorporated but did not merge with the parties Judgment of Divorce.
Int he parties' stipulation, the parties agreed that the Mother shall have "sole decision-making power with regard to all decisions concerning the Children." The agreement provides for a well-detailed consultation process, but in the end the Mother retains sole decision-making authority after good-faith consultation with the Father.
As to physical custody and parenting time, the parties stipulated that "[t]he Children's primary residence shall be with the Mother" and the Father is provided with liberal parenting time. The parties parenting time schedule is extremely well-detailed and nuanced, changing based on the Children's aging. As of the time this application was brought, the Father enjoys the following parenting time schedule: (1) alternate weekends from Friday afternoon to Monday morning; (2) weekly Wednesday overnights until Thursday morning; and (3) Thursday overnights on weeks the Father does not have alternate weekends.
DISCUSSION
The Mother moved by order to show cause seeking a modification of custody. Specifically, she seeks to modify the Father's already limited parenting time to terminate his Wednesday overnight and replace it with a Wednesday dinner visit and terminate his Father's Thursday overnights and replace it with an additional week-day dinner visit "as scheduled by the parties and/or the children." The Father cross-moves for dismissal and the appointment of a parenting coordinator, or, if dismissal is not granted, for expanded parenting time. The Mother submitted a reply and opposition.
Here, the Court must determine the Father's request for dismissal of the modification claim before the Court can proceed on the Mother's application.
I. The Father's Request for Dismissal of the Mother's Modification Claim
To survive dismissal and advance to a hearing, the parent seeking a modification of custody bears the initial burden to show sufficient evidence of a change of circumstances warranting a hearing. (Matter of Brandy P. v Pauline W., 169 A.D.3d 577, 577 [1st Dept 2019]; Patricia C. v. Bruce L., 46 A.D.3d 399 [1st Dept. 2007]). Indeed, the First Department has stated unequivocally,
To automatically grant [...] a hearing would simply facilitate a disgruntled party in harassing his or her former spouse, compelling the latter to expend considerable time, money and emotional anguish in resisting the loss of custody. Certainly, a person who seeks such a change must make some evidentiary showing to warrant a hearing. (David W. v. Julia W., 158 A.D.2d 1, 6 -7 [1st Dept 1990]).
In analyzing a motion to dismiss a modification of custody request, "the court must view the evidence in the light most favorable to the [party seeking modification]." (Matter of Erica B v Louis M, 218 A.D.3d 421, 422 [1st Dept 2023]; see also, Matter of Christina T. v Thomas C.T., 173 A.D.3d [1st Dept 2019]["Viewing the evidence in the light most favorable to petitioner mother, we agree that she failed to make a prima facie showing that modification of the custody order was warranted on any of the grounds alleged in the petition."]).
The Mother principally alleges four changes in circumstance. First, she alleges the Father moved to Forest Hills, Queens. Second, she alleges that the Father's lack of cooperation with regard to accommodating the Children's activities during his parenting time. Third, she asserts the Father has been exhibiting "concerning" behaviors during his parenting time. Finally, she argues the children are growing up and the agreement does not reflect their current needs.
On the issue of the move, the Father points out that he has been living in Forest Hills FOR five years now and the children can attend their school and activities from his apartment. This Court, and others, have observed that a parent's mere change of residence that does negatively impact the exercise of parenting time is not a sufficient change in circumstance. (D.G. v M.G., 83 Misc.3d 1218 [A][Sup Ct, New York Cty 2024][Chesler, J.]; Schoenl v Schoenl, 62 Misc.3d 567, 573 [Sup Ct, Monroe Cnty 2018][Granting motion to dismiss based on the alleged change in circumstance of a parent moving]). Here, the fact that the Father moved, in itself, is not a change in circumstances. This has been the reality for five years now and it cannot be asserted to warrant a modification when it has very much become the family's post-divorce status quo. Indeed, the Mother does not sufficiently allege any specific instance to demonstrate that the move has caused an issue with parenting. Accordingly, this Court finds the Father's move to Forest Hills a half-decade-ago is not a sufficient change to warrant a hearing; even when considered in light of the other allegations.
The Mother alleges that the Father's "concerning" behavior consists of, inter alia, (1) yelling and becoming angry; (2) limited involvement with the Children even during his parenting time; (3) anxiety and stress to the children; and (4) punishing the children by taking their phone away with the alleged intent to prevent communication between the Children and the Mother. All of these assertions are fatally conclusory and unspecified allegations.
The Mother does not allege any specific instances apart from the Father missing a bat mitzvah and an instance of police involvement during an exchange that occurred during "virtual learning." These two instances do not form a basis to reduce the Father's parenting time even if completely true. Indeed, the singular nature of the police incident and the Father's actual involvement in the children's other religious activities demonstrates the one missed event, even as alleged by the Mother as true, is not a change in circumstances that warrant reducing the Father's parenting time or even triggering a hearing. This overall anemic approach to these allegations compels dismissal because conclusory allegations are routinely found to be insufficient to demonstrate a sufficient change in circumstances to warrant a hearing. (See Matter of Maria K. v Dimitra L., 183 A.D.3d 493, 494 [1st Dept 2020][" Her conclusory allegations about the child's deteriorating mental health are insufficient to warrant review in the interest of justice."]; Matter of Feliciano v King, 160 A.D.3d 854, 855[2d Dept 2018]["The unsubstantiated and conclusory allegations in her petition were insufficient to warrant a hearing."]).
The Court notes there is nothing but the Mother's own assertion to support the conclusion drawn by the Mother that the Father's practice of punishment by taking away a child's phone was aimed at preventing contact and not merely discipline. Indeed, this Court is often asked to speak on the issue of taking phones away as punishment. Such conduct is generally permissible unless it can be shown that its disciplinary value is outweighed by the Child's best interests. Here, the conclusory allegations do not even come close to such a showing. (See Anonymous K. v Anonymous H., 74 Misc.3d 1209 [a] [Sup Ct, NY Cnty 2022][Hoffman, J.]["Defendant must not interfere in the children's use of their cellphone, i-pads or other electronic devices to the extent that the children wish to call their mother during Father's parenting time with the children, to ensure the children's physical and emotional well-being during their time with their Father."]).
Generally, facts and changes contemplated and reasonably anticipated at the time of the entry into the original custody arrangement (whether by agreement or order) do not constitute a change in circumstance for the purposes of seeking a modification of custody. (See Smoczkiewics v Smoczkiewicz, 2 A.D.3d 705, 706 [2d Dept 2003]["The fact that the mother had relocated to a new residence does not qualify as a change in circumstance, as it was expressly contemplated by the parties' agreement."]; Trimarco v Trimaro, 154 A.D.3d 792,794 [2d Dept 2017]; Hight v Hight, 19 A.D.3d 1159, 1160 [4d Dept 2005][Affirming finding of insufficient change of circumstance where parties' Stipulation already contemplated the alleged change]; see also, Matter of Beers v Beers, 163 A.D.3d 1197, 1198 [3d Dept 2018]["[B]oth 'release from incarceration' and 'securing a safe a stable residence' were conditions already contemplated by Family Court in its January 2016 order inasmuch as these conditions served as the basis to permit supervised 'visitation as the parties may agree.' Therefore, neither of these two events constitutes a change in circumstances."]). In viewing the circumstances of this family, the Court notes that, even if true, the Mother's allegations of failure to cooperate and speculation as to the Children's stress about scheduling are not sufficient because the parties' Custody Stipulation specifically provides for this scenario. The agreement provides,
Each party shall be responsible for selecting and scheduling the Children's extra-curricular activities during his or her parenting time, and neither party shall enroll or schedule the Children in an extracurricular activity during the other parties parenting time without such party's consent, except that the parties agree that: (1) if a Child's extracurricular activities include a team or group activity (i.e., one that requires participation of the Child in a group or team) or performance, they will each ensure that the Child attends said activity during his or her midweek or alternate weekend parenting time; and (2) if a Child participates in a team or group activity or performance and as part of the Child's enrollment in that activity the Child is required to attend a performance, rehearsal or game(in the event of a sport) both parents will ensure that the Child attends that activity during his/her midweek or alternate weekend parenting time.
Thus, it is clear from the plain meaning of the parties' Custody Stipulation that the Mother's concerns as to the Children potentially being nervous or anxious that their activities may fall on their Father's time and the Mother's allegations that there is discord as to scheduling do not constitute a change in circumstances because the circumstances were directly contemplated in the parties' agreement. The Custody Stipulation says that the Children have to be brought to their extracurriculars; thus, there is no change in circumstances. The parties in drafting clearly created those safeguards because they already knew, at the time of signing, that there might arise difficulties in managing parenting time and the Children's activity schedules. Furthermore, the Mother never alleges a specific instance in her papers that the Father is breaching this provision and not taking the Children to activities; she makes one (1) conclusory assertion with no detail or corroboration. Such an anemic accusation surely does not constitute a change in circumstances sufficient to survive dismissal. Accordingly, strife over scheduling extracurriculars under these circumstances is not a sufficient change in circumstance.
Similarly, the Mother's argument as to the Children's aging is also unavailing. As correctly argued by the Father, the parties' Custody Stipulation already contemplates changes to parenting time based on the Children's aging. It provides for three periodic changes to the Father's parenting time based on the Children aging. The parties' vacation parenting-time provisions likewise adopt a progressive approach based on the Children's aging. Accordingly, these allegations, "cannot be considered a change of circumstances as it is a scenario addressed by the stipulation of settlement." (W.D. v L.P., 69 Misc.3d 1212 [A] [Fam Ct, Kings Cnty 2020]; Smoczkiewics, supra at 706). If the Stipulation is not being complied with, an enforcement action - not a modification action - is appropriate.
In arriving at this decision the Court puts weight into the current custodial structure of the Mother having final-decision authority (except as to camp) and the Father already having limited parenting time demonstrating these allegations surely are insufficient to warrant the potential trauma and emotional harm to the Children that comes from modification litigation, especially when a custody hearing is sought. Indeed, granting the reduction sought by the Mother would be a punitive considering the current custodial structure and the allegations' attenuation from the Children's best interests being harmed by the Father's current parenting time.
Here, the Mother has failed to meet her threshold burden of alleging a sufficient change in circumstances to warrant modification nor does it warrant a hearing under the circumstances. Accordingly, the Mother's Order to Show Cause is DENIED and the branch of the Father's Cross-Motion seeking dismissal is GRANTED. This also renders any determination on the Father's alternative relief academic because it was sought only if the dismissal was not granted.
II. The Father's Request for Appointment of a Parenting Coordinator
The standard for the appointment of a parenting coordinator is that "a court may properly appoint a parenting coordinator to mediate between parties and oversee the implementation of their court-ordered parenting plan." (Silbowitz v Silbowitz, 88 A.D.3d 687, 687-688 [2d Dept 2011]; see also, R.K. v R.G., 169 A.D.3d 892, 895 [2d Dept 2019]; Matter of Headley v Headley, 139 A.D.3d 855, 856 [2d Dept 2016]). Here, the court-ordered parenting plan that the parenting coordinator will assist with is the parties' Stipulation of Settlement on Custody which was incorporated but did not merge with the parties' Judgment of Divorce.
It is well-established that the Court can appoint a parenting coordinator based on a party's application for a modification of custody without holding a hearing and without finding a change in circumstances sufficient to warrant modification. (See Shannon v Shannon, 130 A.D.3d 604, 604 [2d Dept 2015][Affirming appointment of parenting coordinator without a hearing and not finding sufficient change in circumstances to warrant modification]; Raviv v Raviv. 64 A.D.3d 638, 640 [2d Dept 2009][Affirming appointment of parenting coordinator without a hearing and not finding sufficient change in circumstances to warrant modification]).
The Second Department established this rule in Raviv v Raviv. (Id.). There, the motion court denied the Mother's petition for want of substantial circumstances and appointed a parenting coordinator. (Id. at 639). On appeal, the Court affirmed the appointment of a parenting coordinator, stating "the Supreme Court nonetheless properly recognized that the parties needed to professional help in overcoming the difficulties that led to this post-judgment proceeding." (Id. at 640).
Indeed, the controlling nature of Raviv in the case at the bar is made further salient by the alleged change in circumstance in that matter. In Raviv the alleged change was that the other parent was lacking in cooperation. (Id.). Here, the Mother's allegations are of the same variety, alleging the Father is not cooperating with time selection for the Children's extracurriculars. Further,, unlike Raviv, this Court is being asked specifically by the Father to appoint a parenting coordinator. Moreover, like Raviv, this matrimonial court "recognize[s] that the parties need[] professional help in overcoming the difficulties that led to this post-judgment proceeding." (Id.). Accordingly, this Court is authorized to and does here appoint a parenting coordinator without a hearing and absent sufficient change in circumstances to warrant modification. (See DRL § 241[1][a]["In any action brought [...] the court [...] shall enter orders for custody and support as, in the court's discretion, justice requires, having regard for the circumstances of the case and of the respective parties and to the best interests of the child."]).
In allocating fees between the parties as to a parenting coordinator the Court is instructed to look to fault. (See Raviv, supra at 640 ["[I]n the absence of any clear indication that one party may be more culpable than the other, the parties should share equally in paying the parenting coordinator."]). Likewise, the Court must also make this determination with consideration of the financial circumstances of the parties. (See Ragone v Ragone, 62 A.D.3d 772, 773 [2d Dept 2009]["It was error of the Supreme Court to require the defendant to pay 100% of the fees of the parenting coordinator and therapist without considering her financial circumstances."]). The Court does not assign fault to either party based on the papers; thus, under fault considerations, the allocation should be equal. Additionally, when reference is made to the parties' finances it is clear that the costs should be equal. Thus, the costs associated with the parenting coordinator shall be shared equally between the parties.
In defining the scope of the parenting coordinator's authority, the coordinator may not "resolve" issues as that would constitute an "improper delegation of the court's authority to determine issues relating to visitation." (Matter of Edwards v Rothschild, 60 A.D.3d 675, 678 [2d Dept 2009]; see also, R.K., supra at 895). Moreover, the appointment of a parenting coordinator does not conflict with the Mother's sole legal custody. (Anonymous 2011-1 v Anonymous 2011-2, 136 A.D.3d 946, 949 [2d Dept 2016] [Affirming appointment of parenting coordinator and award of sole custody]). This is because the scope of the parenting coordinator's authority is to mediate discussions between the parents on the issues affecting the children. The Mother still retains the final decision-making power (except as to camp); however, the parenting coordinator can ease the tension the Mother and Father's papers describe. (See Anonymous 2011-I, supra at 949 ["[A] parenting coordinator [... ] can assist the parents in resolving any disputes they may have concerning decisions about the children."]; L.S. v L.F., 10 Misc.3d 714, 727 [Sup Ct, Kings Cnty 2005][Sunshine, J.]["The coordinator can act as a go-between for the parents and child to assure that there are open lines of communication."]). Thus, the role of the parenting coordinator here is to "assist" not decide.
The parenting coordinator shall ensure the parties discuss all of the scheduling concerns of the Children, especially with regard to extracurriculars, and shall facilitate the parent's discussion of these issues and other co-parenting issues while maintaining neutrality. The parenting coordinator shall not have any final decision-making authority and is serving as a mediator between these parents as it relates to concerns with the Children. The Court also notes that while the parenting coordinator's role under this Order is limited, the parties may agree to broaden the scope.
Accordingly, the branch of the Father's Cross-Motion seeking the appointment of a Parenting Coordinator is GRANTED to the extent detailed herein.
CONCLUSION
Here, "there is no question the parties have differing parenting styles" that at times cause conflict; however, there is not a sufficient alleged change in circumstances based on the totality of the circumstances. (Matter of Rosen v Rosen, 162 A.D.3d 1283, 1285 [2d Dept 2018]). The accusations, even as accepted as true, do not rise to a level sufficient to warrant subjecting the Children to the trauma and stress of further modification proceedings. (See David W. v Julia W., 158 A.D.2d 1, 6-7 [1st Dept 1990]; D.G., supra ["The change in circumstances threshold question is a necessary judicial safeguard to avoid subjecting families to unnecessary litigation and the ordeal of a hearing on the sensitive issue of custody."]). However, being cognizant of that conflict, the Court does find it appropriate to appoint a parenting coordinator to facilitate a productive dialogue between the parties to reduce the tension in this family for the benefit of the parents, and more importantly, the Children.