Opinion
No. XXXXX.
2010-08-18
YG, Plaintiff v. DG, Defendant.
Plaintiff mother represented by Ivan Hametz (516–877–0777); the defendant father was represented by Megan Wooley (516–221–4894) and the child was represented by Bruce Cohen (516–938–1270).
ANTHONY FALANGA, J.
Pursuant to an order to show cause submitted on December 8, 2009, the plaintiff (hereafter wife) who resides in Michigan, moved pro se for an order 1) modifying the order dated September 6, 2006 so as to award her residential custody of the parties' daughter C born January 21, 1996 and awarding her child support. Said application was decided by decision and order dated December 11, 2009 as follows, denoted in italic print:
Pursuant to an order to show cause submitted on August 31, 2006, the defendant (hereafter husband) moved for an order changing custody of both of the parties' daughters, K born December 22, 1993 and C born January 21, 1996, from joint to sole custody to the defendant. Said motion was decided by order dated September 6, 2006 as follows, denoted in bold print:
The parties have advised the Court that on August 28, 2006, the plaintiff relocated to the State of Michigan. She has agreed that, at the present time, the defendant shall have residential custody of the children in the State of New York. Her attorney indicates that at some time in the future, when she has obtained employment and gotten settled in Michigan, she will seek relocation of the children to the State of Michigan. As stated by her attorney, the plaintiff “reserves the right to have her children back in home (sic) as soon as it is financially practicable. ”
Thereafter, the wife filed an application on April 10, 2007 seeking custody of both children. An attorney was appointed for the children by order dated May 24, 2007. On October 4, 2007, the parties entered into a so-ordered stipulation affording the plaintiff visitation with the children in Michigan during the December 2007 and April 2008 school recess periods. Counsel for the parties and counsel for the children and the defendant appeared on June 4, 2008. The plaintiff's appearance was waived. Counsel for the plaintiff advised the Court that the plaintiff was seeking custody only of C. All counsel advised the Court that a forensic evaluation was not required. A hearing was scheduled for July 29, 2008. Pursuant to a so-ordered stipulation dated August 1, 2009, the parties entered into a detailed parenting schedule and the wife withdrew her application for custody with prejudice.
C has recently authored several documents setting forth difficulties she is experiencing in her relationship with her father. She has asked the Court and her attorney, Bruce Cohen, to assist her in her request to move to Michigan to live with her mother.
Based upon all of the foregoing, the motion is decided as follows:
The issues cannot be determined without a hearing. Accordingly, the application is decided as follows:
Bruce Cohen, Esq. will be reappointed, through the Appellate Division panel, by separate order to represent C.
On or before February 9, 2010, each party shall serve the following documents on the other party, to wit: 2008 tax return, 2009 W–2 and or 1099; current and representative pay stub and an affidavit of net worth.
The proceeding is hereby calendared for a hearing on February 16, 2010 at 9:30a.m. The parties, the husband's attorney, and the attorney for the child shall be present at the hearing.
An attorney was appointed to represent the wife at the hearing. The hearing commenced on April 20, 2010 and continued on April 21, 22, June 22, 23 and concluded on July 20, 2010. At the conclusion of the hearing, the Court reserved decision and afforded the parties the opportunity to submit written summations which were timely received and marked into evidence as follows: wife's attorney's summation exhibit as Court Exhibit V; husband's attorney's summation as Court Exhibit IV and; C's attorney's summation as Court Exhibit VI.
The following persons testified at the trial, to wit: both parties; K M, the wife's sister; B W, C's school guidance counselor; G M, C's school social worker; and the husband's present wife, B G. In addition, C was interviewed in chambers on the record.
The wife's sister testified as follows: C has often reached out to her aunt by various means including mail and “Facebook,” seeking assistance enabling C to move to Michigan; the wife has custody of C's nine year old half-sister, M; C related to her aunt that she is uncomfortable living with her father; C has been seeking the aunt's help in moving to Michigan since 2006 when C's mother moved to Michigan; C's desire to move to Michigan to be with her mother has recently intensified; C has complained of a lack of privacy in her father's home; C has complained that her stepmother has threatened that all contact between C and her family would be cut off if she keeps pushing to relocate to Michigan; K also makes C uncomfortable and tells C that her quest for relocation is causing trouble in their father's home.
C's guidance counselor testified as follows: C is in the eighth grade; she has a lot of friends; she speaks to him about social and family issues; she does well academically; she misses her mother; he met with C and her mother several months ago; he has discussed her relationships with her father, stepmother and sister with C; most of the time, C has a good relationship with her stepmother; she has normal sibling issues with her sister; she has good days and “not so good” days with her father; several months ago C stated that she might hurt herself; that she was confused about where she should live; she later stated that she would never hurt herself; she has views about the “pros and cons” of where she might live; she is torn as to where she should live; C advised that if she moved to Michigan, her mother wouldn't have to pay child support; the witness expressed concerns over C's proposed move to Michigan in that she would have to make new friends and “start all over again;” the witness opined that C feels pressure in making a choice as to where she should live; she is concerned about disappointing either parent; she misses M; she advised the witness that she would miss K if she moved to Michigan, but that K would soon be going away to college; C has intensified her discussions with him relating to relocation because she will be starting high school in the Fall 2010; C told him that her aunt has been working on getting her to relocate to Michigan.
C's social worker testified as follows: she counseled C from September 2007 to June 2009 and from late March 2010 to the present; she saw her once in September 2009; custody has been a constant theme during the counseling sessions; C is torn over not wanting to hurt either parent and where she should live; C had a positive relationship with both parents in 2007 and 2008; C is a nurturer; she is concerned that her mother is alone; C told her a few weeks ago that there was a court proceeding pending and that she was expecting to go live with her mother; C seemed pleased that she would be living with her mother; C has complained to the witness that her father hasn't done enough to assist her mother to remain in New York; C has expressed feelings of needing to nurture her mother; she likes to see her mother smile and get her life together; C stated that she helps her mother feel better.
C's mother testified as follows: from 1996 to 1998 C lived with both parents in Nassau County; from 1998 to 2006 she lived with her in Nassau County; C has expressed a desire to live with her mother since 2006; K has not expressed a desire to live with her; the parties' stipulation of settlement restricted her from relocating the children's residence beyond a 50 mile radius; in 2006 she had to move out of the premises where she was residing with the children because of mold; the children have been in therapy for three years; she had no job prospects when she moved to Michigan in 2006; she has had three jobs since she has lived in Michigan; she has not paid child support to the husband voluntarily or pursuant to court order; she owes child support arrears of $14,963.72; there is a money judgment against her for arrears; she had been paying child support of $222.00 a week until she lost her job in April 2008, at which time she owed arrears of only $36.00; her application for a downward modification was denied by the Family Court; she didn't get another job until December 2009; the husband has not submitted any of the children's medical bills to her; C and K have access to her “Facebook” page; she has communicated with C via “Facebook,” instant messaging, and telephone four or five times a day for the past three and a half years; she threatened C's school (Wantagh Middle School) that she would sue the school unless counseling by Mrs. Mencher was terminated after Mrs. Mencher testified during a hearing on the wife's prior application for a change of custody; the wife told C she would be better off talking to her than to C's attorney; she suggested that C not speak to C's attorney; in 2007, she had three visits with both children; in 2008, she saw them in February and August; she didn't exercise visitation for Easter 2010; the cost of travel makes visitation difficult; in late March 2010, she told the husband she could not afford the $250.00 it would cost to drive halfway to meet him after he advised he was willing to drive halfway to implement visitation; she has considered the effect of separating C and K and she is not concerned; K is happy in New York and C will be happy in Michigan; C is closer to M than K; C is now 14 and old enough to understand where she wants to live; she told C to talk to her father about wanting to move to Michigan; she works until either 3:30p.m. or 5:00p.m.; she has neighbors who would watch C if necessary; she has not been consulted by the husband regarding the children's educational and or medical needs; on May 1, 2008, she admits sending C an email (H in evidence) telling C it would be easier to tell her mother what she wanted to tell the Judge rather than telling C's attorney; the witness was aware of a so-ordered stipulation dated October 4, 2007 (I in evidence) prohibiting the parties from discussing the litigation with the children; C has resumed counseling with Mrs. Mencher; the wife pays a neighbor to care for M while she is at work during the summer; C will be with her from July 11, 2010 through August 9, 2010; she purchased a condominium in March 2008 with no down payment.
Brianne Getty testified as follows: she married the husband herein in October 2006; she's employed by State Farm in Melville; she has worked for State Farm for 16 years; she attends C's and K's school functions; she and the husband own their home purchased in 2005; it is a three bedroom cape; each girl has her own room; she has a close and loving relationship with C; she relocated from Pennsylvania to marry the husband; she met the husband in Pennsylvania; she worked in Pennsylvania for two years; the girls call their mother for help with their homework; the girls come to her for advice; the girls told a counselor they felt that their mother had “ditched” them; K has expressed that her mother hates her and loves C more; she has gone to Dr. Millman, a psychologist with the girls; her relationship with the girls has always been good; C has often expressed missing her mother; she has told C it was natural to miss her mother; a webcam was purchased to help C keep in touch with her mother; C comes to her with complaints about her father; C has a close relationship with her mother.
The husband testified as follows: he is 44 years old; he has lived in a private home in Wantagh for five years; each daughter has her own room; he is in relatively good health; he works for State Farm; in 2006, he returned from a vacation whereupon the wife told him she was relocating to Michigan and the children would be living with him; the parties had been separated since 1998 and were divorced in February 2000; he was never in arrears in child support; he and C have a loving and caring relationship; he attends his daughters' concerts and activities; C loves her mother a great deal and has a good relationship with her; C misses her mother; C is a “straight A” student; C is in good health; he paid for the girls' orthodontia; the girls' relationship is strained over the issue of C's possible move to Michigan; he believes New York offers C a more stable environment; C told him she will be happier in Michigan; she complains that no one listens to her; their mother did a pretty good job of raising the girls when she had custody; he did not advise the wife when K had a skin biopsy; the first time C spoke to him about moving to Michigan to be with her mother was in or about September 2009; the issue was generated by daughter K discovering a copy of a letter C had written to the Judge presiding over the proceedings with a copy of the letter having been sent to her mother; after reading the letter the witness reported that he, his wife, K and C discussed the matter; C told them that she had shared the content of the letter with one or more third parties; C stated she wanted to move to Michigan because she missed her mother and half-sister M a great deal and that she had lived most of her life with her mother and felt she belonged with her; in response to why she had written a letter to the Judge she offered that she didn't believe her position on relocation was being addressed.
The defendant offered that although there was no doubt C missed her mother a great deal and loved her, her best interests, he believed, would be served if she remained in New York with him, his wife and her sister. Moreover, he did not feel his ex-wife was sufficiently financially stable to be the custodial parent. He expressed concerns that if his daughter joined her mother in Michigan, C would sacrifice her own adolescence by assuming her mother's role in caring for her half-sister M; he was resolute that no matter the Court's determination regarding relocation, he would always love his daughter, and although their relationship might be strained at the outset if the move was permitted, he had no doubt their relationship would, within a short period of time, revert to being caring and loving. Indeed he believed the same would be the case if relocation were denied.
Applicable Law
The husband has had residential custodial of C and K for almost four years pursuant to an order dated September 6, 2006. The wife is seeking a modification of said order, granting her residential custody of C.
While the relief sought by the wife would engender a move by C from New York to Michigan, the application before the Court is not a typical relocation motion, but rather is an application for a change of custody that would result in the relocation of the subject child to another state. Reported relocation cases involve an application by a custodial parent who seeks to change his or her residence in a manner that may detrimentally affect the non-custodial parent's ability to enjoy frequent and regular contact with a child. In such a case, the custodial parent bears the burden of establishing that the relocation will serve the best interests of the child. In the case at bar, the wife has the burden, not only of demonstrating that C's best interests will be served by relocating the child to Michigan, but the wife must, first demonstrate that C's best interest would be served by changing residential custody from the husband to the wife.
To modify an existing custody arrangement, there must be a showing of a change in circumstances such that modification is required to protect the best interests of the child (see Adams v. Perryman, 68 AD3d 860;Matter of Zeis v. Slater, 57 AD3d 793).
The essential consideration in any custody controversy is the best interests of the child (see Eschbach v. Eschbach, 56 N.Y.2d 167;Matter of Dwyer–Hayde v. Forcier, 67 AD3d 1011). “Factors to be considered in determining the child's best interests include the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent” (Matter of Elliott v. Felder, 69 AD3d 623; see Matter of Vann v. Vann, 14 AD3d 710;Matter of Holle v. Holle, 55 AD3d 991). All these factors must be considered in determining the matter presently before the Court.
In the event, this Court finds that a change of custody is in C's best interest, the Court must then determine whether the wife will be permitted to relocate C to Michigan, or whether such change of custody will be contingent upon the wife's return to New York.
The case law applicable to relocation is instructive, as the change of residential custody sought by the wife includes leave to relocate C's to Michigan.
The applicable law, set forth in the Matter of Tropea v. Tropea, 87 NY2 727, by the Court of Appeals, is as follows:
... (E)ach relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with the predominant emphasis being placed on what outcome is most likely to serve the best interests of the child. While the respective rights of the custodial and noncustodial parents are unquestionably significant factors that must be considered (citations omitted), it is the rights and needs of the children that must be accorded the greatest weight, since they are innocent victims of their parents' decision to divorce and are the least equipped to handle the stresses of the changing family situation. Of course, the impact of the move on the relationship between the child and the noncustodial parent will remain a central concern. Indeed, even where the move would leave the noncustodial parent with what might be considered “meaningful access,” there is still a need to weigh the effect of the quantitative and qualitative losses that naturally will result against such other relevant factors as the custodial parent's reasons for wanting to relocate and the benefits that the child may enjoy or the harm that may ensue if the move is or is not permitted. Similarly, although economic necessity or a specific health-related concern may present a particularly persuasive ground for permitting the proposed move, other justifications, including ... the custodial parent's opportunity to improve his or her economic situation, may also be valid motives that should not be summarily rejected, at least where the over-all impact on the child would be beneficial ...
In addition to the custodial parent's stated reasons for wanting to move and the noncustodial parent's loss of access, another factor that may well become important in a particular case is the noncustodial parent's interest in securing custody, as well as the feasibility and desirability of a change of custody. Obviously, where a child's ties to the noncustodial parent and to the community are so strong as to make a long-distance move undesirable, the availability of a transfer of custody as a realistic alternative to forcing the custodial parent to remain may have a significant impact on the outcome ...
Other considerations that may have a bearing in particular cases are the good faith of the parents in requesting or opposing the move, the child's respective attachments to the custodial and noncustodial parent, the possibility of devising a visitation schedule that will enable the noncustodial parent to maintain a meaningful parent-child relationship, the quality of the life style that the child would have if the proposed move were permitted or denied, the negative impact, if any, from continued or exacerbated hostility between the custodial and noncustodial parents, and the effect the move may have on any extended family relationships.
... (I)n all cases, the courts should be free to consider and give appropriate weight to all of the factors that may be relevant to the determination. These factors include, but are certainly not limited to each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and the child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and the child through suitable visitation arrangements. In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child's best interests.
DECISION OF THE COURT
C is unquestionably a much beloved child. She has two devoted parents and a warm and supportive stepmother. The wife's love for C has proven to be unwavering. The wife's attorney's summation states that the wife has brought on this proceeding as a result of C's pleas for her to do so. The husband's devotion to C is equally clear; he has declined the “easy road” of acquiescing to his teenager daughter's demand to live with her mother, and has incurred substantial costs in the sincere belief that he is promoting C's best interests by retaining residential custody.
C has lived in Nassau County, New York since birth. She lived with her mother and sister K from 2000 to 2006. After, her parents divorced, the husband moved into a home in the same school district as the wife. C has lived with her father, stepmother, and K since 2006. C is thriving in her present environment. She is a straight “A” student in school with a 95 or 96 grade point average. She has many friends. Her father and stepmother attend C's school events and activities, school meetings and counseling sessions. C enjoys a close loving relationship with her father and stepmother.
C is a mature and well spoken young woman. Although her guidance counselor and school therapist both perceive her to be “torn” over the issue of residential custody; and both expressed concern that undo pressure had been brought to bear to persuade C to move to Michigan, C has unequivocally expressed her desire to live with her mother. This desire is so strong, that C is willing to leave her father, her friends, her schoolmates, her neighbors and her community to move to Michigan to be with her mother. The husband recognizes how much C misses her mother and has made efforts to foster C's contact with her mother. He has provided a webcam through which C and the wife speak face to face numerous times a day. He offered in the past to facilitate the wife's parenting time by driving half way to Michigan.
The wife offered at the hearing that C wants to live with her; that C has had complaints in the past about a lack of privacy in the husband's home; and that the husband has not advised her about certain health issues. While the wife established that C believes that C will be happier if she is permitted to reside with the wife, the wife did not offer any proof that such change of residential custody would be in C's best interests.
The wife offered no proof with regard to the location or reputation of the school C would attend in Michigan or how C would travel to and from school each day. The wife offered no proof of the nature of the community in which she resides. There was no proof at trial that C would have her own bedroom in the wife's house. There was no proof at trial that the wife has any extended family nearby. The wife did testify that a neighbor watches her nine year old daughter. M, during the summer and after school when the wife is working, but the wife was unable to advise the Court with regard to any plan she had made for supervision of C during a month's visit planned for the summer of 2010.
Although the wife testified that she was forced to move in 2006 due to a mold problem in her residence in Nassau County, she did not afford the Court any insight into her decision to move out of state and relocate to Michigan, rather than to a local residence that would have enabled her to retain residential custody of the parties' daughters. The wife did not have a job waiting for her when she moved to Michigan and she has suffered lengthy periods of unemployment since her move to Michigan. She purchased a home in Michigan with no money down. She has significant debt including over $14,000.00 in child support arrears she owes to the husband. She was unable to exercise a visit with C even after the husband agreed to drive half way because she could not afford the $250.00 it would have cost her.
As set forth herein above, in making its determination, the Court must consider the following factors, to wit: the quality of the home environment and the parental guidance each parent will provide for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent. The Court finds that the husband has made diligent effort to foster C's relationship with her mother; that the quality of the home environment offered by the husband serves C's best interests; that the husband is the parent best able to provide for C's emotional and intellectual development; and that the husband is better able to provide a more secure financial standard of living for the child. The wife has failed to demonstrate that a change of residential custody would be in C's best interest.
C has been on a quest since 2006 to be reunited with her mother. The Court is well aware that C and the wife will be bitterly disappointed by this decision. The Court points out to C that in four years, she will be graduating from high school and of an age to determine whether and where she will pursue a post high school education, and where she will reside. The four years will pass quickly. The Court acknowledges that C believes she would be happier in Michigan with her mother, but things that make one happy are not always in one's best interests. The Court counsels C that she will experience disappointments in life from time to time. She may not make a certain team or get the lead in the school play; she may not get into her first choice of college; perhaps someday she will give her heart to someone who does not return her affection. C must address her disappointment with the Court's decision and move forward with her life during the next four years. The Court assures C that its decision took serious note of the strength of her wish to live with her mother, but the Court is firm in its determination that her best interest require that she remain in New York with her father.
The wife's application for an order modifying the order dated August 1, 2008 so as to award her residential custody of C is denied.
The Court finds, however, that C's best interests also require a modification of the parenting time provisions of the order dated August 1, 2008 and the order dated November 24, 2008 which requires that the wife pay 100% of the cost of exercising parenting time.
Commencing in December 2010, the wife shall have parenting time with C during Christmas recess each year from the day after school ends until the day before school begins. Commencing in the year 2011, the wife shall have parenting time with C during Spring recess each year from the day after school ends until the day before school begins and for the first seven weeks of summer recess each year commencing the day after school ends. The husband shall pay the cost of C's plane fare to travel to and from Michigan for these three visits. Article A subparagraphs B and C of the order dated August 1, 2008 are vacated. In all other respects said order remains in full force and effect.
This constitutes the decision and order of the Court.