Opinion
V-01606/7-11/15H
06-10-2016
In the Matter of a Proceeding Under Article 6 of the Family Court Act, Jorge A., Petitioner, v. Aileen N., Respondent.
APPEARANCES: Jorge A., Pro Se Sarah Spain Holt, Esq. Assistant Public Defender for Aileen N. Marla J. Pilaroscia, Esq., Attorney for the Children
APPEARANCES: Jorge A., Pro Se Sarah Spain Holt, Esq. Assistant Public Defender for Aileen N. Marla J. Pilaroscia, Esq., Attorney for the Children Dandrea L. Ruhlmann, J.
By petition filed September 30, 2015, Petitioner Jorge A. (Father) seeks modification of this Court's Order of Custody entered May 24, 2011 as modified by Order entered May 26, 2013 (2013 Order), which, in part, granted the parties joint custody of their children: Aliyonna A. (DOB: 2010) and Jaylen N. (DOB: 2005), with Aileen N. (Mother) having primary physical residency. Father now seeks primary physical residency of the children.
Since entry of the 2013 Order substantial change necessitates a new custodial/visitation plan to ensure the best interests of the children. Mother shall retain primary physical residency during the school year with Father having three weekends each month during the school year and increased parenting time during the summer and holiday time as detailed herein.
Trial
The Court heard testimony on March 16, 2016 and April 5, 2016 from three witnesses: Robert Consaul (Jaylen's fifth grade teacher), Father and Mother. This Court finds the witnesses' testimony credible (see Matter of Louise E.S. v W. Stephen S., 64 NY2d 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]). 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 AD3d 1438 [4th Dept 2011]).
Trial continued on April 11, 2016 and Respondent-Mother failed to appear. Respondent-Mother's attorney appeared on April 11, 2016 indicating she would not proceed in her client's absence and requested an adjournment. Mother "was required to provide a reasonable excuse for her absence and proof of merit" (Matter of Luis R., 184 AD2d 1012 [4th Dept 1992]). Neither showing was made by Mother. As Father had no additional witnesses, the Court closed proof and permitted the parties to submit written summations.
Change of Circumstances
The parties stipulated to both prior orders of custody (see Friederwitzer v Friederwitzer, 55 NY2d 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 AD3d 987 [4th Dept 2003]). The current custodial arrangement has been in effect since May 2013, or approximately three and a half years. Prior to the 2013 Order Mother had primary physical residency and the parties shared joint custody with Father having parenting time every weekend, however, upon his request, the 2013 Order reduced his parenting time to every other weekend.
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 AD3d 1358 [4th Dept 2007], quoting Matter of Amy L.M. v Kevin M.M., 31 AD3d 1224, 1225 [4th Dept 2006]). Since entry of the prior consent order, Mother admits her involvement with Child Protective Services (CPS) and she agreed with CPS to refrain from using physical punishment to discipline the children. Mother was convicted of driving while intoxicated and as a result both spent weekends in jail and has a probation term of three years. Mother admits to having at one time felt endangered by her current boyfriend. Father has proffered sufficient evidence to establish a change of circumstances (cf. Cowell v Pembrock, 113 AD3d 1118 [4th Dept 2014]).
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 AD3d 1202 [4th Dept 2008], lv denied 10 NY3d 716 [2008], quoting Matter of Maher v Maher, 1 AD3d 987 [4th Dept 2003]). Weighing the factors in sum, the scale falls almost even, requiring the joint custody arrangement with primary residency to Mother to continue and increased periods of temporary residency to Father.
The proof adduced at trial focusing primarily on Jaylen's academics showed that Mother supports the children's academic achievement. Father too ensures the children do their homework during his parenting time, however, upon cross examination conceded although he has independent access to the children's schools, he has not consulted with their teachers. Indeed, Father acknowledges that Aliyonna has speech delays yet he has failed to contact her providers. Robert Consaul, Jaylen's fifth grade teacher at School No. 25 testified that Mother did an exemplary job with her son: Jaylen has both "above grade level" skills, and excellent attendance; and comes to school clean and properly dressed. He is on "safety patrol" because he is responsible. Mr. Consaul does not recall having contact with Father despite that Father had brought supplies to school on the first day.
Scant evidence was adduced regarding the financial status of the parties, or Father's home environment. Father did testify that he pays for Jaylen's football registration and equipment. The children share a room at his home: "Effective June when [Jaylen] turns 11 he'll be moving to my room and my daughter will have her own room."
The quality of Mother's home environment and her ability to provide for the children's emotional development was challenged at trial. Father testified that Mother called him in 2014 so he might listen as she physically punished Jaylen. He heard both Mother hitting Jaylen and Jaylen screaming, "No mommy, no." Father first claimed he hung up the telephone "because I just couldn't listen to it any further." On cross examination Father offered a different version, stating the telephone call was somehow disconnected, and he called the police to check on Jaylen. Still Father himself did not travel to Mother's home to ensure Jaylen was safe. Mother admits in 2014 after a child protective service investigation she agreed to refrain from using physical punishment on the children. Mother also claims that she and her boyfriend have "good communication" and that she, her boyfriend and the children enjoy family time on weekends.
The Court, sua sponte, takes judicial notice of a stay away Order of Protection (2016-693), issued by Rochester City Court on February 5, 2016 in favor of Mother against Phillip M., which Order expires February 5, 2017. No evidence at trial addressed his relationship to Mother. Mother, of course, should ensure the children have no contact with Phillip M. in her presence.
Mother testified that since the last court order she was convicted of driving while intoxicated, spent "some" weekends in jail and is on probation for three years. This conviction, coupled with Mother's use of physical discipline and domestic violence between her boyfriend and her, leads this Court to find her relatively less fit than Father to care for the children. The Court thus finds Father should enjoy more parenting time with his children.
The Court, however, acknowledges Mother has had primary physical residency of the children since their birth. Further, the children's preference as advocated by their Attorney is to continue living primarily with her (see Matter of McDermott v Bale, 94 AD3d 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 children's wishes are not determinative (Matter of Anthony C. v Kristine Z., 38 AD3d 1317 [4th Dept 2007];Matter of Casolari v Zambuto, 1 AD3d 1031 [4th Dept 2003]; Matter of Hughes v Wiegman, 150 AD2d 449, 450 [2d Dept 1989]); "they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful" (Matter of Stevenson v Stevenson, 70 AD3d 1515 [4th Dept 2010], lv denied 14 NY3d 712 [2010]). Here the children are 10 years old and five years old and the Court has considered their preferences, given their ages and maturity.
Indeed the Attorney for Child advocates granting Mother sole custody. --------
Although the parents concede they generally do not work well together, during medical emergencies they have acted together; when Aliyonna suffered from pink eye and Jaylen, a skin condition, both parents went to the hospital to support the children. The Court believes it is in the best interests of the children that both their parents remain active participants in all facets of the children's lives. 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 the children; and it is hereby
ORDERED that Mother and Father shall continue to share joint custody of the children; and it is further
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, third and fourth weekends of the month (Saturday's date controls weekend time), beginning Friday at 5:15 p.m. until Sunday at 7:00 p.m.; and it is further
ORDERED that during summer vacation the children shall reside the first (full) three weeks in July with Father (beginning Sunday at noon), then shall spend two weeks with Mother (exchange Sunday at noon); and the remaining three weeks 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, they 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 from 9 a.m. until 3 p.m. in even years and Father having the children from 3 p.m. until 9 p.m.; and in the odd years with Father having the children from 9 a.m. until 3 p.m. and Mother having the children from 3 p.m. until 9 p.m.; and it is further
ORDERED that in the even years Mother shall have residency with the children on December 24th at noon until 8 p.m and Father shall have residency with the children on December 24th at 8 p.m. until December 25th at 3 p.m. and in the odd years Father shall have residency with the children on December 24th at noon until 8 p.m. and Mother shall have residency with the children on December 24th at 8 p.m until December 25th at 3 p.m.; and it is further
ORDERED that in the even years Mother shall have residency with the children on New Year's Eve at noon until 6 p.m. on New Year's Day and Father shall have residency with the children 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 the children on New Year's Eve at noon until 6 p.m. on New Year's Day and Mother shall have residency with the children 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 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 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 their 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 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 Mother shall not be under the influence nor shall she consume alcohol or illegal drugs in the presence of the children, nor shall she allow any third party to do so; and it is further
ORDERED that Father shall not consume excessive alcohol nor shall he consume or be under the influence of illegal drugs in the presence of the children, nor shall he allow third parties 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 as requested; and it further
ORDERED that this Custody Order shall supersede all prior orders of custody under Docket Number V-1606/07-11. Dated this 10th day of June, 2016 at Rochester, New York. HON. Dandrea L. Ruhlmann FAMILY COURT JUDGE PURSUANT TO § 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF THE RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.