Opinion
Index No. XXXXX
07-01-2021
In the Matter of a Proceeding Under Article 6 of the Family Court Act, Wilson D, Petitioner, v. Anne B, Respondent.
Wilson D, Pro Se Jessica Lynn Wright, Esq., Attorney for Anne B. Susan Laragy, Esq., Attorney for the Child.
Unpublished Opinion
Wilson D, Pro Se
Jessica Lynn Wright, Esq., Attorney for Anne B.
Susan Laragy, Esq., Attorney for the Child.
HON. DANDREA L. RUHLMANN FAMILY COURT JUDGE.
By petition filed July 10, 2020, Petitioner Wilson D (Father) seeks modification of an Order of Custody entered September 10, 2010 (Referee Julie Gordon), which, in part, granted the parties joint custody of their children: Daliyah D (DOB: xx/xx/2004) and Gabriella D (DOB: xx/xx/2006), with Anne B (Mother) having primary physical residency. Father now seeks sole custody and primary physical residency of his daughter, Gabriella D. On July 14, 2020 Mother filed her own petitions seeking a return of the girls and suspension of Father's visits. On September 8, 2020 Father filed a second modification petition seeking sole custody of both children. Both parents subsequently withdrew their petitions as to Daliyah, and Mother continues to enjoy primary physical residency of Daliyah. The Court granted Father temporary residency of Gabriella during the pendency of this case.
Since entry of the 2010 Order substantial change necessitates a new custodial/visitation plan to ensure the best interests of Gabriella. Mother's violation petition is hereby dismissed. Father shall have primary physical residency during the school year, with Mother having up to three weekends a month during the school year and increased parenting time over the summer and holidays as detailed herein.
Trial
The Court heard testimony on May 7, 2021 and June 4, 2021 from three witnesses: Heather T (Father's former girlfriend), Father and Mother. This Court finds the witnesses' testimony credible (see Matter of Louise E.S. v W. Stephen S., 64 N.Y.2d 946, 947 [1985] ["respect is to be accorded the Trial Judge's advantage in observing the demeanor of the witnesses"]; see also Boyd v Boyd, 252 NY 422, 429 [1930], rearg denied 253 NY 532 [1930]; Matter of Louise E.S. v W. Stephen S., 64 N.Y.2d 946, 947 [1985]), except for Mother's testimony regarding both the girls' and her own interactions with her boyfriend. Father testified to concerns not raised in his modification petition, however, this Court hereby conforms the pleadings to the proof (see Matter of Ariel C.W. - H., 89 A.D.3d 1438 [4th Dept 2011]).
Change of Circumstances
The parties stipulated to the prior order of custody (see Friederwitzer v Friederwitzer, 55 N.Y.2d 89, 95 [1982] [a custodial agreement resulting from an agreement from the parties warrants less weight than one which followed a trial]). Although priority must be accorded to the existing custodial agreement, when a prior disposition results from a stipulation that was not based on a best interests analysis, it will not be accorded the same weight as if it resulted from a full hearing (Matter of Maher v Maher, 1 A.D.3d 987 [4th Dept 2003]). The current custodial arrangement has been in effect since September 2010, or approximately ten and a half years. Despite this Order, Father acknowledged there was at least a six year gap in which he had no contact with either of his daughters. Father testified he was "very ashamed" that he was absent from his daughters' lives for this protracted period. Thereafter following Father's four visits supervised by maternal grandmother, the parties shared joint custody, with Mother having primary physical residency and Father having parenting time on weekends. Mother asserts those weekends were inconsistent at best; Father testified at first they were at least every other weekend, then every weekend. Mother's own witness Heather T confirmed Father did exercise visits most weekends.
Father first must prove a "'change in circumstances which reflects a real need for change to ensure the best interest[s] of the child[ren]'" (Matter of James D. v Tammy W., 45 A.D.3d 1358 [4th Dept 2007], quoting Matter of Amy L.M. v Kevin M.M., 31 A.D.3d 1224, 1225 [4th Dept 2006]). Since entry of the prior consent order, both Father and Mother admit each of the girls stayed with Father for weeks beyond his agreed to parenting time (without her consent) following the weekend of July 10, 2020. The girls before departing Mother's home on or about July 10, 2020 left notes for Mother on their beds explaining they intended to reside primarily with Father. Indeed Father acknowledges that during the weeks that followed he cut off all communication with Mother "blocking her" relying only on his daughters to communicate directly with Mother. Father maintains Mother's pattern of harassment compelled him to do so. Daliyah has since returned to her Mother's care. Gabriella has stayed with Father, visiting with Mother on most weekends with Father driving her to Rochester. Father has proffered sufficient evidence to establish a change of circumstances concerning his daughter Gabriella (cf. Cowell v Pembrock, 113 A.D.3d 1118 [4th Dept 2014]).
Both parties withdrew their respective petitions regarding custody of their daughter Daliyah.
Best Interests
The Court must consider the present custodial arrangement, the quality of the home environment and the parental guidance provided; the ability of each parent to provide for their children's emotional and intellectual development; the financial status and ability of each parent to provide; the relative fitness of the respective parents; and the length of time the present custody arrangement has been in effect (see Matter of Kristi L.T. v Andrew R.V., 48 A.D.3d 1202 [4th Dept 2008], lv denied 10 N.Y.3d 716 [2008], quoting Matter of Maher v Maher, 1 A.D.3d 987 [4th Dept 2003]). Weighing the factors in sum, the scale falls almost even, requiring the joint custody arrangement to continue with primary physical residency of Gabriella to Father.
Father and Gabriella reside in Father's new house with his girlfriend of only a few months. Father acknowledges that Gabriella recently changed schools as he purchased a house in a school district near Buffalo, New York. The proof adduced at trial focusing primarily on Gabriella's academics showed that Father supports Gabriella's academic achievement. Father ensures that Gabriella does her homework during his parenting time. Gabriella plays trombone, is self-directed and is responsible. Father also testified that Gabriella enjoys going to the gym with him to workout.
Scant evidence was adduced regarding Father's home environment. Gabriella has a room at his home, as Father described it's on "her own floor." Father is financially stable, working two jobs, as a registered nurse and as a flight and operational medical technician in the Air Force Reserves. Upon cross examination Father conceded that although Gabriella is on his medical insurance and that he has independent access to Gabriella's medical providers, he has not consulted with her doctors. Gabriella sees an orthodontist in Rochester, Father does provide all transportation to these appointments. Disconcerting, Father conceded what Heather T testified to: He promised to give Gabriella one-hundred dollars of any monthly child support amount that he received.
The quality of Mother's home environment and her ability to provide for Gabriella's emotional development was challenged at trial. It is uncontroverted that Mother acted as both girls primary caregiver before Spring 2020, bringing Gabriella to the majority of her doctor and dentist appointments. Gabriella has struggled with anxiety and severe depression. Father's former girlfriend, Heather T testified that Gabriella had a low self-image related to her weight; and she had observed marks on Gabriella's arms from self-cutting on a return drive from Rochester after Easter. Both parents have supported Gabriella's mental health treatment. Father ensured that Gabriella was most recently seen by her counselor in mid-May 2021, who did not recommend further treatment. Father, however, testified that Mother has not provided a stable home environment moving from house to house frequently. Father too claims Mother's boyfriend is volatile and poses a danger to both girls.
Mother, unemployed since December 2020, now resides in a duplex, recently purchased by maternal grandmother, in Hamlin with Daliyah and Gabriella's two other half siblings by different fathers. Mother's current boyfriend and his twin 4 year old girls live in one-half of that duplex. Mother's move to Hamlin would require Gabriella to switch schools. Heather T testified that Gabriella complained that Mother was overbearing and required her to watch Mother's boyfriend's children. Upon cross-examination, Mother conceded police had been to her new house because Daliyah had a few "explosive" episodes with Mother's boyfriend, so he called the police. Mother denies that she and her boyfriend have any criminal history, but concedes that the mother of his twin girls has had an Order of Protection against him.
The Court sua sponte takes judicial notice of the Decision and Order of the Hon. Joseph G. Nesser regarding child support wherein that court credited the Support Magistrate's assessment of Mother's lack of credibility. Mother testified before the Support Magistrate that she lost her part-time job due to her company's downsizing. Mother's former employer was her boyfriend.
The Court acknowledges Mother has had primary physical residency of the children since their birth. She supported Gabriella's interests facilitating dance and piano lessons for her. Still Mother's frequent moves, coupled with Gabriella's sensitivity to Mother's home environment (exacerbated by the instability of Mother's boyfriend's relationship with Daliyah), and the added responsibilities of babysitting Mother's boyfriend's children leads this Court to find Mother relatively less fit than Father to care for Gabriella. The Court thus finds Father should enjoy more parenting time with their daughter Gabriella.
Although not dispositive, the Court has considered Gabriella's preference as advocated by her Attorney which is to continue living primarily with Father (see Matter of McDermott v Bale, 94 A.D.3d 1542, 1543 [4th Dept 2012], quoting Family Ct Act § 241 [the purpose of an attorney for the children is "to help protect their interests and to help them express their wishes to the court"]). Although a child's wishes are not determinative "they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful" (Matter of Stevenson v Stevenson, 70 A.D.3d 1515, 1516 [4th Dept 2010] lv denied 14 N.Y.3d 712 [2010]; see also Matter of Rohr v Young, 148 A.D.3d 1681 [4th Dept 2017]; compare Matter of Kessler v Fancher, 112 A.D.3d 1323 [4th Dept 2013] [a child's desires do not chart the course of the litigation]; see also Matter of Williams v Reid, 187 A.D.3d 1593 [4th Dept 2020] [at 7 years old and 5 years old, the children were too young and not of sufficient maturity for their alleged desires to demonstrate a change in circumstances]). Here Gabriella will be 15 years old very soon. The Court gleaned her maturity from an in camera interview after fact finding (see Lincoln v Lincoln, 24 N.Y.2d 270 [1969]; Fam Ct Act § 664). The Court's in camera interview with Gabriella aligns with Father's position and the position that her attorney advocated.
Indeed the Attorney for Child advocates granting Father sole custody.
Although the parents concede they generally do not work well together, during medical emergencies they have acted together; when Gabriella suffered from depression, both parents supported her counseling. The Court believes it is in the best interests of Gabriella that both her parents remain active participants in all facets of her life. Viewing the totality of the evidence, the Court finds that it is in Gabriella's best interests to award primary physical residency to Father.
THE COURT HAVING SEARCHED THE STATEWIDE REGISTRY OF ORDERS OF PROTECTION, THE SEX OFFENDER REGISTRY AND THE FAMILY COURT CHILD PROTECTIVE RECORDS, AND HAVING NOTIFIED THE PARTIES AND THE ATTORNEYS OF THE RESULTS OF THESE SEARCHES AND THE COURT HAVING CONSIDERED AND RELIED UPON THE SAME:
Now, therefore, it is hereby
ADJUDGED that there has been a change in circumstances that reflect a real need for change to ensure the best interests of Gabriella; and it is hereby
ORDERED that Mother and Father shall continue to share joint custody of the daughter Gabriella; and it is further
ORDERED that daughter Gabriella shall reside primarily with Father during the school year (September - June); and it is further
ORDERED that Father shall ensure Gabriella either continues to have well visit check- ups with her pediatrician and dentist in Monroe County, New York or immediately establish appropriate health care providers for her in Erie County, New York and immediately provide Mother with the providers' contact information; and it is further
ORDERED that during the school year (September - June) Mother shall have temporary periods of residency with Gabriella on the first, third and fifth weekends of the month (Saturday's date controls weekend time), beginning Friday at 7:00 p.m. until Sunday at 5:00 p.m.; and it is further
ORDERED that during summer vacation Gabriella shall reside the first (full) three weeks in July with Mother (beginning Sunday at noon), then shall spend two weeks with Father (exchange Sunday at noon); and the remaining full three weeks with Mother (exchange Sunday at noon); and it is further
ORDERED that Gabriella shall reside with Mother for half of all school break periods including Winter and Spring breaks. For breaks (not interrupted by a holiday) in even years, Gabriella shall spend the first half of the break with Mother and in odd years, she shall spend the first half of the break (not interrupted by a holiday) with Father; or as the parties may otherwise agree; and it is further
ORDERED that the parties shall alternate time with Gabriella for Thanksgiving with Mother having Gabriella in even years and Father having Gabriella in the odd years; and it is further
ORDERED that in the even years Mother shall have residency with Gabriella on December 24th at noon until December 25th at 4 p.m. and Father shall have residency with Gabriella on December 25th at 4 p.m. until December 26th at 4 p.m. and in the odd years Father shall have residency with Gabriella on December 24th at noon until December 25th at 4 p.m. and Mother shall have residency with Gabriella on December 25th at 4 p.m until December 26th at 4 p.m.; and it is further
ORDERED that in the even years Mother shall have residency with Gabriella on New Year's Eve at noon until 6 p.m. on New Year's Day and Father shall have residency with Gabriella on New Year's Day from 6 p.m. until January 2nd at 6 p.m. and in the odd years Father shall have residency with Gabriella on New Year's Eve at noon until 6 p.m. on New Year's Day and Mother shall have residency with Gabriella on New Year's Day from 6 p.m. until January 2nd at 6 p.m.; and it is further
ORDERED that Mother shall always enjoy Mother's Day with Gabriella and Father shall always enjoy Father's Day with Gabriella; and it is further
ORDERED that the holiday visitation schedule shall supersede the parties' regular visitation schedule; and it is further
ORDERED that the parents shall have other and further periods of temporary physical residency as they agree; and it is further
ORDERED that each parent shall continue to have independent access to Gabriella's schools, teachers and medical and counseling providers and may receive information regarding Gabriella directly from the providers and agree to sign any release or authorization in order to effectuate such access; and it is further
ORDERED that both parties shall be allowed to attend any important events in Gabriella's life including, educational, extracurricular, social and religious, parent-teacher conferences or other school conferences; and it is further
ORDERED that each parent shall promptly notify the other in the event of a medical emergency concerning Gabriella; and it is further
ORDERED that each party must keep the other advised at all times of their present address and phone number(s); and it is further
ORDERED that neither parent shall permanently remove Gabriella from Erie County, New York or Monroe County, New York without prior written, notarized consent of the other parent or an order from a court of competent jurisdiction, and it is further
ORDERED that neither party shall make any disparaging or derogatory remarks about the other in the presence of Gabriella nor in the hearing of Gabriella, nor permit any third party to do so; and it is further
ORDERED that neither party shall use physical punishment to discipline Gabriella nor shall they permit a third party to do so; and it is further
ORDERED that neither parent shall consume excessive alcohol or any illegal drugs in the presence of Gabriella, nor shall they allow any third party to do so; and it is further
ORDERED that both parties shall have daily reasonable telephone contact with Gabriella and Gabriella shall be allowed to call the other parent as requested; and it further
ORDERED that this Custody Order shall supersede the prior order of custody in connection under Docket Number V-xxxxx-10 with respect to Gabriella D only and the prior order shall continue as to Daliyah D, V-xxxxx-10.