Opinion
Index No. XXXXX
11-09-2021
In the Matter of a Proceeding Under Article 6 of the Family Court Act Daniel W, Petitioner, v. Lauren S, Respondent.
William H. King, Jr., Esq. for Daniel W. Vivian M. Aquilina, Esq., of counsel to Legal Aid Society of Rochester for Lauren S. Jennifer L. Adams McLaren, Esq., of counsel to Fero & Ingersoll, LLP, Attorney for the Children.
Unpublished Opinion
William H. King, Jr., Esq. for Daniel W.
Vivian M. Aquilina, Esq., of counsel to Legal Aid Society of Rochester for Lauren S.
Jennifer L. Adams McLaren, Esq., of counsel to Fero & Ingersoll, LLP, Attorney for the Children.
HON. DANDREA L. RUHLMANN, FAMILY COURT JUDGE.
Is it in the children's best interests for father to relocate with the children to the parties' hometown despite opposition from mother?
By Petition filed on June 23, 2020, Daniel W (Father) seeks sole custody and primary physical residency of the parties' children (Leif W (DOB: xx/xx/2013) and Lilith W (DOB: xx/xx/2016). By Order to Show Cause and Petition filed June 24, 2021 and Amended UCCJEA Order to Show Cause and Amended Petition filed on June 29, 2021, Mother also seeks sole custody and primary physical residency of the children. By Orders entered June 25, 2021 and June 29, 2021 this Court ordered that the children not be removed from Monroe County, New York and established a virtual court appearance. It is in the children's best interests for their parents to enjoy joint custody with Mother awarded primary physical residence during the school year and Father enjoying primary physical residence during the children's summer vacation.
Credibility
Over five days, the Court heard the testimony of Father, Mother and three other witnesses; Christine B, Erica R and Michael W. The Court received into evidence two photographs of a knife and lighter, Petitioner's Exhibit Nos. 1 and 2.
The Court found all of the testimony to be 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 Hendrickson v Hendrickson, 147 A.D.3d 1522 [4th Dept 2017]; and see Matter of (Chyreck v Swift, 144 A.D.3d 1517 [4th Dept 2016]).
Children's Desires
Although not dispositive, the Court has considered the children's preference as advocated by their attorney which is to spend equal time with Mother and Father. The purpose of an attorney for the children is "to help protect their interests and to help them express their wishes to the court" (see Matter of McDermott v Bale, 94 A.D.3d 1542, 1543 [4th Dept 2012]). 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] [internal quotation marks omitted]; see also Matter of Rohr v Young, 148 A.D.3d 1681 [4th Dept 2017]; compare Matter of Lawrence v Marris, 151 A.D.3d 1879 [4th Dept 2017] [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 the Court has considered the children's wishes as expressed by their attorney as well as their ages (8 and 5). There was no request for an in camera interview after fact finding (see Lincoln v Lincoln, 24 N.Y.2d 270 [1969]; Fam Ct Act § 664).
Best Interests
The parties' long-term relationship began in high school. They lived together near their hometown of Southwick, Massachusetts from approximately 2006 to 2012, and thereafter, in Orono, Maine while Mother attended graduate school at the University of Maine. Leif was born in Maine in 2013. The parties married in Southwick shortly thereafter. Lilith was born in Maine almost three years later.
Mother had a difficult pregnancy with Lilith impacting her studies, causing her to withdraw from the doctoral program at the University of Maine. She did however receive her masters degree in psychology. The family relocated to St. Louis, Missouri in April 2017 after Mother received a job offer in her field. When her position did not materialize Father became the sole provider for the family. The parties usually celebrated Thanksgiving and Christmas in Southwick, but they did not do so during their year and one half stay in Missouri. In fall 2018 the family relocated again to Rochester, New York, enabling Mother to work in her chosen field at the University of Rochester.
Both parties' acknowledged over time their marriage became strained, and each dated other people. Mother then began a more serious relationship outside the marriage. The parties engaged in marriage counseling, and signed a new one year lease on their Rochester home. In June 2020 after Mother spent the night with her boyfriend, Father filed a petition for custody, took the car and the children, and relocated to the parties' hometown of Southwick. When Mother texted him about their plans for breakfast as a family, Father informed Mother he was in Massachusetts. Mother attempted, but was not able to serve Father with this Court's Orders to Show Cause which required, in part, no removal of the children from Monroe County, New York.
This case involves an initial custody determination. The parties lived together as a family in New York for approximately two years. Although Father has since moved to Massachusetts this is not a relocation case to which the factors set forth in Matter of Tropea v Tropea (87 N.Y.2d 727, 740-741 [1996]) apply. Although a court may consider the effect of a parent's relocation as part of a best interests analysis, relocation is but one factor among many in an initial custody determination (Matter of Saperston v Holdaway, 93 A.D.3d 1271 [4th Dept 2002], appeal dismissed by 19 N.Y.3d 887 [2012] and 20 N.Y.3d 1052 [2013] [the primary focus of the court must be on the children's best interests, not the mere fact of relocation]; (see also Matter of Quistorf v Levesque, 117 A.D.3d 1456 [4th Dept 2014]). The relevant issue is whether it is in the best interests of the children to reside primarily with Mother or Father (see generally Eschbach v Eschbach, 56 N.Y.2d 167, 172-174 [1982]).
Factors courts have carved out to ascertain the best interests of children, include
(1) the continuity and stability of the existing custodial arrangement, including the relative fitness of the parents and the length of time the present custodial arrangement has continued; (2) the quality of the children's home environment and that of the parent seeking custody; (3) the ability of each parent to provide for the children's emotional and intellectual development; (4) the financial status and ability of each parent to provide for the children; and (5) the individual needs and expressed desires of the children as well as the need for children to live with siblings (see Fox v Fox, 177 A.D.2d 209, 210 [4th Dept 1992]; see also Matter of Braga v Bell, 151 A.D.3d 1924 [4th Dept 2017], lv denied 30 N.Y.3d 905 [2017]). Further in determining the best interests of a child, a court must consider any "abduction, elopement or defiance of the legal process" (Robert T.F. v Rosemary F., 148 A.D.2d 449 [2d Dept 1989] citing Friederwitzer v Friederwitzer, 55 N.Y.2d 89, 94 [1982]); and see Matter of Plaza v Plaza, 305 A.D.2d 607 [2d Dept 2004]) as well as the effects of domestic violence (Hendrickson v Hendrickson, 147 A.D.3d at 1522). This Court has considered each of these factors in evaluating what custodial arrangement is in the children's best interests.
The evidence adduced at trial established that Father, with a high school education and a food safety certificate, always provided financially for the family. He found steady employment with each move based on his skills as a meat cutter. After the parties' marriage floundered, he transferred from BJ's Wholesale Club in Rochester, New York to a BJ's Wholesale Club in Chicopee, Massachusetts, retaining his benefits; including dental insurance, sick leave, personal days, vacation time and a 401K Retirement Plan. He did, however, suffer a reduction in pay. As Father testified on rebuttal, he recently obtained a new position as meat/seafood manager for a retail food co-op. As of January 2022 he will earn $59,700 annually, working 45 hours a week aligned with the children's school schedules Monday through Thursday, and on Saturdays from 6:30 a.m. to at least 2:30 p.m.
Both paternal grandparents and maternal grandmother reside in Southwick, as well as many members of Father's extended family. Testimony revealed that there is a solid support system ready to help with the children in the parties' hometown.
Mother now employed at the University of Rochester is able to contribute monetarily to the family. As a research assistant to a professor and a laboratory manager working with primates, her field of employment requires an affiliation with a major university. Mother testified that the small town of Southwick is at least a forty-five minute drive from such universities. Mother testified further that she has some degree of flexibility at work, allowing her to provide daycare for the children outside of their school hours. Still this past summer Mother sent the children to Father in Southwick when she had to undergo unexpected dental work and covid quarantines gave rise to the children's extended absences from school. Mother, unlike Father, is not required to work on the weekends.
In Rochester, Mother has acted as the children's primary caretaker. Since the parties only had one reliable car Father used it for work, and was the parent designated to retrieve any child from school when he/she became ill. Since Father worked in retail supermarkets, after his shift ended he did the family's grocery shopping. Mother testified that Father also did the majority of the housekeeping. Mother assisted with the children's remote schooling during the COVID-19 shutdown.
Both parents agree that eight-year-old Leif is intelligent, has a great interest in science and, at times, displays erratic behavior. As a third grader at a charter school for science in Rochester, his teacher Christine B, testified he was a strong reader who was at grade level, but needed to be challenged because he thinks outside the box. Ms. B's contact regarding Leif's education was primarily with Mother. During remote learning sessions, Ms. Bergin testified that Mother nurtured Leif, for example, by giving him kisses on his forehead.
Mother initiated and continues counseling for Leif every two weeks. Leif expresses what Mother describes as "big feelings" by acting impulsively and physically at times with his sister and others. In first grade Leif's behavior resulted in his suspension from the school bus. Leif's behavioral challenges cannot be attributed to either parent, but rather may be explained in part by his understandable upset that the parties separated and Father has moved so far away.
This year Lilith joined Leif at the charter school, since siblings are given enrollment priority. Lilith was diagnosed with lead poisoning while the family lived in St. Louis: Both parties followed through with her required medical treatment. Lilith also has a speech delay. Mother asserts that Lilith and Leif suffer from disrupted sleep, which Mother has treated with melatonin. Father has not observed such sleep pattern disruptions in the children, but seemingly acquiesced to this plan.
Michael W, Father's brother and a police officer in Southwick allowed Father to stay in a large mobile home on his property before Father obtained affordable housing. He testified positively about Southwick's public school district saying he and his wife have been pleased with the education their three children received there. His children, now 16 years old, 13 years old and 11 years old, attended the same elementary school that the parties' children would attend in Southwick. Michael W testified the school is a welcoming community, with an advanced science class offering, which may be of interest to Leif. Erica R, Father's first cousin, echoed the favorable impression of the Southwick schools and extracurricular activities. Ms. R added the children have enjoyed sleepovers at her home with her own daughter.
Both parties testified about concerns regarding the other parent. Father questions Mother's common sense because she sent a knife (twice) and a lighter (once) to Southwick in Leif's backpack. The Court agrees that in these instances Mother demonstrated a lack of judgment, but Father acknowledged it was not until the second occasion that he relayed his concerns to Mother. He avers Mother smokes, drinks too much alcohol, and suffers from depression.
Mother admits she struggled with alcohol while they lived in St. Louis. She is engaged in therapy and has both psychiatric and psychological support in Rochester. Mother argues that Father also suffers from undiagnosed and untreated mental health issues. Father acknowledges that the parties' marriage counselor recommended he seek independent counseling, but he chose not to do so. Both Mother and Father testified to lapses in supervision by the other parent: Mother allowed the children outside at night, unsupervised and in their undergarments, while video chatting with Father; while Father during a recent visit permitted them to run from the car to the house, naked, after they, unbeknownst to him, had stripped off their bathing suits. Mother's main concern is that the children have been (during this case's pendency) and, would continue to be, shuffled among relatives in Southwick, because Father's employment requires extensive weekend hours.
The parties do agree that they have a similar style of discipline, which involves taking away toys, talking about the offensive behavior and time outs. Father did admit to using corporal punishment, but testified he rarely uses it.
After considering the totality of the evidence and weighing the best interests factors carefully, the Court finds it is in the best interests of the children that both parents remain active participants in all facets of their lives. Mother has been the children's primary caregiver. The fact that one parent is a child's primary caretaker before his parents separate is not determinative (see Hendrickson, 147 A.D.3d at 1522). Nor should a more fit parent be "deprived of custody simply because the parent assigns day-care responsibilities to a relative owing to work obligations" (Matter of Gilbert v Nunez-Merced, 181 A.D.3d 2010 [4th Dept 2020], lv denied 35 N.Y.3d 910 [2020], quoting Chyreck, 144 A.D.3d 1517, 1518. The Court must evaluate the totality of the circumstances, no one factor is determinative (Matter of Edmonds v Lewis, 175 A.D.3d 1040 [4th Dept 2019], lv denied 34 N.Y.3d 909 [2020]). Great deference is accorded to the determination of the trial court (see Matter of Cross v Casewell, 113 A.D.3d 1107 [4th Dept 2014]).
Mother and Father can and have worked well together to support their children. Indeed the parties' upon consent, during this case's pendency, modified the Court's temporary order, to ensure the children endured less travel. Here, both parents are relatively "fit," supportive of their children and demonstrate no major deficits in parenting. The children have lived a significant portion of their lives in Rochester, New York and have never lived as a family in Southwick, Massachusetts. The children's school, doctor, dentist and counselors are all in Rochester. Father provided scant proof that the children's lives would be enhanced economically, emotionally or educationally by uprooting them now. It is in the children's best interests to award primary physical residency to Mother during the school year and to Father during the children's summer recess. Such custodial arrangement is consistent with the children's preferences as advocated by the children's attorney (see infra.)
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 it is in Leif W (DOB: xx/xx/2013) and Lilith W (DOB: xx/xx/2016) best interests that Mother and Father are granted joint custody of the children; and it is hereby
ORDERED that the children shall reside primarily with Mother during the school year (September - June); and it is further
ORDERED that during the school year (September - June) Father shall have temporary periods of residency with the children on the first and third weekends of the month (Saturday's date controls weekend time), beginning Friday at 7:00 p.m. until Sunday at 5:00 p.m (or Monday at 5:00 p.m. on weekends with state/federal holidays).; and it is further
ORDERED that during summer recess the children shall reside during the first (full) four weeks in June/July with Father (beginning Sunday at noon), then shall spend two weeks with Mother (exchange Sunday at noon); and the next three weeks in August/September with Father (exchange Sunday at noon); and it is further
ORDERED that the children shall reside with Father for half of all school break periods including Winter and Spring breaks. For breaks (not interrupted by a holiday) in even years, the children shall spend the first half of the break with Father and in odd years shall spend the first half of the break (not interrupted by a holiday) with Mother; or as the parties may otherwise agree; and it is further
ORDERED that the parties shall alternate time with the children for Thanksgiving with Mother having the children in even years and Father having the children in the odd years; and it is further
ORDERED that in the even years Father shall have residency with the children on December 23rd at 4 p.m. until December 28th at 4 p.m. and in the odd years Mother shall have residency with children on December 23rd at 4 p.m. until December 28th at 4 p.m.; and it is further
ORDERED that in the even years Mother shall have residency with the children on December 28th at 4 p.m. until 4 p.m. on January 2nd and in the odd years Father shall have residency with the children on December 28th at 4 p.m. until 4 p.m. on January 2nd; and it is further
ORDERED that Mother shall always enjoy Mother's Day with the children and Father shall always enjoy Father's Day with the children; 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 the parents shall continue to exchange the children at the established location in Herkimer, New York, or as agreed at an alternate location; and it is further
ORDERED that each parent shall continue to have independent access to the children's schools, teachers and medical and counseling providers and may receive information regarding the children 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 the children's lives 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 the children; 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 the children from Monroe County, New York or from Hampton County, Massachusetts 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 the children nor in the hearing of the children, nor permit any third party to do so; and it is further
ORDERED that neither party shall use physical punishment to discipline the children nor shall they permit a third party to do so; and it is further
ORDERED that neither parent shall consume excessive alcohol, excessive marijuana or illegal drugs in the presence of the children, 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 the children and the children shall be allowed to call the other parent at reasonable times as requested.