Opinion
V-24453-18/18A
04-12-2021
In the Matter of a Proceeding under Article 6 of the Family Court Act, S.N., Petitioner, v. J.A., Respondent.
Attorney for the Petitioner Mother SN Carole M. Levy, Esq. 2808 Broadway No.11 New York, NY 10025 Office: (646) 295-4211 Attorney for the Respondent Father JA Joseph Moliterno, Esq. 670 White Plains Road, Suite 207 Scarsdale, NY 10583 Office: (914) 722-6922 Attorney for the child TJ The Children's Law Center By: William Booth, Esq. 820 Concourse Village West, 5th Floor New York, NY 10451 718-741-3400
Attorney for the Petitioner Mother SN Carole M. Levy, Esq. 2808 Broadway No.11 New York, NY 10025 Office: (646) 295-4211 Attorney for the Respondent Father JA Joseph Moliterno, Esq. 670 White Plains Road, Suite 207 Scarsdale, NY 10583 Office: (914) 722-6922 Attorney for the child TJ The Children's Law Center By: William Booth, Esq. 820 Concourse Village West, 5th Floor New York, NY 10451 718-741-3400 Ariel D. Chesler, J.
In this proceeding, the mother, S.N., is seeking modification of a March 3, 2017 order of custody which granted the father, J.A., sole custody of the parties' child T.J. For the following reasons, the court finds that a significant change in circumstances has been established, and that it is in the child's best interests to grant the mother sole legal and physical custody of the child, and to grant the father visitation as outlined below. I. Trial Procedure and Attorney Conduct
We are living in unprecedented times due to the COVID-19 pandemic, which has had a tremendous impact on our court system. These are times that demand flexibility, cooperation and an ability to pivot so that cases can be resolved and Courts can do their work. The Court's work and procedures have been in constant flux throughout the pandemic and Judges and court staff have been expected to move with the current of everchanging technology usage and policy directives. Given the many constraints, technology and other issues, the Courts have accomplished a tremendous amount.
Unfortunately, counsel for both the mother and father in this matter have revealed themselves to be inflexible, disrespectful, and obstructionist. At every turn, both counsel were resistant to the efforts of the Court to streamline and regulate the parameters of the trial in this matter. Counsel took unwarranted offense at the Court's directives for trial procedure, and appeared forever stuck in pre-pandemic times or in the "way they've always done things." This demonstrated a failure to grapple with the reality of the pandemic, the needs of the Court, the pending backlog of cases awaiting resolution, and the many new emergency filings being received in Family Court. It also exhibited a failure to respect the proper authority and discretion of this Court. Such poor behavior was exhibited throughout the pre-trial proceedings, during the trial and even continues in the written summations submitted to this Court.
In this regard, any reference in the summations to email communication from this Court's court attorney, and to messages from the Chief Judge issued long after trial was completed, are stricken.
This Court has been presiding over this litigation since early 2019, has seen the parties numerous times, is very familiar with the issues in the case and with the parties' demeanor. In fact, in January 2020, this Court commenced a trial on a family offense petition before it was withdrawn by the mother. In addition, this Court has handled a number of motions during the pendency of this matter, and issued many orders, including an order granting the mother temporary custody of the subject child during the period of time when the father was incarcerated in the earlier part of 2020.
Trial courts have wide latitude and discretion as to trial procedure (see generally CPLR 4011, applicable to Family Court through FCA 165). The pandemic has devastated court resources and caseloads are tremendous. As noted, not only do we have a significant backlog but many new emergency filings. For these reasons, and given the age of this case, this Court issued a pretrial order on October 21, 2020 to expedite the process since virtual court trial time was very limited at that time.
At the time trial was being scheduled in this case, there were only three virtual courtrooms staffed with court reporters that were available for trial. These few courtrooms were shared by all judges in the Bronx Family Court and many of the time slots were filled with pressing emergency child protective and juvenile delinquency matters. In fact, the first day of trial in this case was slightly delayed because the virtual courtroom was needed for another jurist to hear an emergency juvenile delinquency matter. It was necessary to use those few courtrooms to ensure a proper record of trial could be made. Since that time, additional technological improvements have been made such that audio recording of virtual proceedings can produce complete and accurate records and transcripts of trial.
In the pretrial order, among other things, the Court directed the parties to submit their direct testimony in affidavits and provide proposed exhibits to each other and the court in advance. The court also permitted the mother to file an amended petition as her initial petition was filed when she was self-represented. Notably, based on the request of counsel and in order to accommodate counsel, the original dates for trial and for exchange of documents and affidavits were amended by the Court. The Court's intention was to streamline the process and to use trial time efficiently, while ensuring all parties are able to present their case and put forth the key facts they want the court to consider. The trial time was then to be used on cross-examination of the parties.
Both parties ultimately submitted direct testimony affidavits as required by the pre-trial order. They also exchanged exhibits as directed. However, they failed to submit a statement of undisputed facts as required by the pre-trial order. Further, although both counsel were well aware that trial time was limited, they lacked the foresight or professionalism to contact the Court in advance to address any objections they had to proposed exhibits or the direct testimony affidavits. Instead, on the eve of trial and even during the middle of trial, both counsel submitted written objections to certain exhibits and portions of the affidavits.
The Court was thus forced by counsel's demand to take valuable trial time to rule on which evidence to exclude. The Court was able to rule on certain evidentiary objections on the record but due to time constraints will rule on any remaining evidentiary issues in this decision. After spending a significant amount of time making arguments about certain proposed exhibits on the first day of trial, the Court warned counsel that they should begin cross-examination because there was only the time remaining that day and the time scheduled the following day available for trial. Stunningly, in the face of a tremendous time crunch, counsel for the father responded by stating he wanted to make an opening statement on the record, and counsel for the mother began to also raise objections to certain portions of the direct testimony affidavits.
Also demonstrative of counsels' disrespect to the Court is the fact that they both advise in their summations that they agreed to their own trial procedure without the Court's input or approval. Specifically, they had decided to spend significant time challenging exhibits and affidavit testimony on the record. Regardless of how many years they've practiced, how they had done things in the past or in front of other jurists, proper respect and deference to the Court would have been including the Court in decisions on trial procedure, particularly in a pandemic and in light of the different procedures being employed by this Court. It is troubling that in their many years of practice they did not gain this basic insight.
The Court made clear that it was necessary to begin cross-examination and the Court was compelled to direct counsel for the father to mute himself after he continued interrupting the Court; counsel for the mother also conceded she did not reach out to the Court in advance for direction as to how or when to deal with objections to the direct testimony affidavits. Counsel was again warned of the limited time remaining. The Court noted it had read and was familiar with the direct testimony affidavits, and counsel was directed to ask focused questions. After cross-examination began, the Court again advised counsel to "get right to the crux of the matter, what are the critical things that you think go to change or circumstances or best interest, what are the critical things that are impacting this child's life now and in recent times." Separately, the Court granted counsel an opportunity to submit further objections in writing, which the Court has considered in making its final decision.
At another point, the Court reiterated that counsel "should be asking things to focus the Court on whatever additional things you want to attack that relate to now, that relate to either the best interest [or change in circumstances] Anything that's not disputed I don't know why you need to ask I just need you to move up your questions to the recent history or to the things I'm telling you to focus on. Let me put it, again, more clearly, if you don't do that, you're going to run out of time, and then you won't have time to ask the really critical questions. That's what you should be leading with, the very critical questions."
At the end of the first day of trial, this Court referenced the remaining time for the second day of trial and remarked:
"I have no idea how you're going to complete this trial but this is all the time we have. So I'm going to have to provide very strict additional time limitations tomorrow, and if you choose not to ask certain questions about recent events, then you will be making that tactical decision. I don't know why you would do that. But that would be up to you."
At the start of the second day of trial, the Court ruled that it would not be striking any testimony in the affidavits but would take account of how to consider any problem areas of the affidavits in making its decision. The Court then afforded each party an opportunity to state in their own words why they should be granted custody. The Court made clear that this was an "additional opportunity" for the parties to stress the most important facts as they saw it to the Court.
Thereafter, the Attorney for the Child was permitted to cross-examine each party and counsel for the parties were given specific time limitations, which the Court ultimately extended, to complete cross-examination of the parties and any re-direct. Once again, the Court was forced to remind the parties to focus on critical questions, stating:
"Let me note my objection to both counsel repeatedly not understanding that we're in a pandemic. I'm sorry that there's a pandemic, that we have very few virtual courtrooms, very few court reporters, and very few resources. This is where we all are. That's not something I can control. So, this is why I've given the opportunity of providing very
detailed affidavits, again, giving both clients an opportunity to address the Court today in case there was anything he wanted to focus on . . . go forward and ask the most critical questions with the time you have left."
At the close of trial, the Court directed the parties to submit written summations on all the issues the Court would need to decide in this matter. In response to a request for yet more trial time, the Court stated:
"We don't have any more time. The whole point of the direct testimony affidavit, and the matter has been pending for some time. And this Court does not have time, nor do we have enough virtual courtrooms to do that. I have told you this many times, and you want to continue to operate as if there's not a pandemic. But there is."
In other words, counsel have only themselves to blame for the further reduction of trial time in this matter. Similarly, counsel have only themselves to blame for their refusal to ask more targeted questions that elicited critical testimony which reached the crux of the issues for this Court to consider. It was clear to this Court that counsel for both parents had intended to ask numerous questions of the parties without any limitation, and had determined to proceed without regard to the pandemic, the directives of this Court, or the overall needs of the Court system.
In both of their summations, counsel for the mother and father complain of purported unfairness, prejudice and denial of basic rights and due process caused by this Court's direction to submit direct testimony affidavits and time limitations set for cross-examination. As with the various objections to virtual proceedings in other cases around New York State, these contentions are ultimately unavailing.
Pursuant to CPLR 4011, a court "may determine the sequence in which the issues shall be tried and otherwise regulate the conduct of trial in order to achieve a speedy and unprejudiced disposition of the matters at issue in a setting of proper decorum." Further, Judiciary Law 2-b (3) grants the court power "to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it." The Court does not need the consent of the parties to fashion "innovative procedures" where "necessary" to effectuate the powers and jurisdiction of the Court (see People v. Wrotten, 14 NY3d 33, 37 [2009]).
Given the foregoing rules and powers, which apply at all times, it is certain that such powers and discretion exist during an unprecedented pandemic. In C.C. v. A.R. (69 Misc 3d 983 [Sup Ct, Kings County 2020]), the Court held that the "exceptional circumstance" of the global pandemic permitted it to conduct a virtual proceeding under its broad powers and discretion pursuant to Judiciary Law 2-b (3). Further, as is apt here, the Court noted: "there are no perfect trials whether in-person or virtually. As the Court of Appeals has noted again and again, 'in this imperfect world, the right of a defendant to a fair appeal, or for that matter a fair trial, does not necessarily guarantee him a perfect trial or a perfect appeal'" (Id. at 992 [citing People v. Rivera, 39 NY2d 519, 523 [1976]).
In Bonilla v. State (— N.Y.S.3d —, 2021 WL 318406 [Court of Claims of New York 2021]), the Court remarked that "[g]iven the authority [of] the Court to adopt remote procedures under section 2-b, and the extraordinary equities weighing in favor of the use of such procedures to address our current predicament, all courts confronted with the question during the past year have found it both permissible and advisable to compel a party to participate in virtual proceedings." Further, in response to the defendant's demand that trial be postponed until after the pandemic, the Court stressed the goal of conducting proceedings in an efficient and quick matter and cited the "adage that 'justice delayed is justice denied.'"
Similarly, given all the equities, the needs of the Court and judicial economy, the importance of resolving cases in an efficient and quick matter, and the "current predicament" of this pandemic, courts are well within their authority to utilize other procedures to streamline trial and to more efficiently reach disposition.
Proceeding by affidavits in lieu of direct examination is a well-established practice particularly in bench trials that is used to streamline the trial, and to save costs and time. This procedure may be agreed to by the parties (see e.g. Wechsler v. Wechsler, 8 Misc 3d 328 at fn.1 [Sup Ct, New York County 2005]). The New York County Commercial Division Rules explicitly provide for this procedure and permit the Court to direct that a party's own witness submit direct testimony via affidavit (see Commercial Division Rule 32-a). Similarly, Rule 202.20-i of the Uniform Civil Rules for the Supreme Court and the County Court grants other New York trial courts this same power (NY R UNIF TRIAL CTS § 202.20-i). And, it was held in pre-pandemic times that trial courts generally have the power to direct the use of affidavits in lieu of direct testimony pursuant to CPLR 4011 (see Campaign for Fiscal Equity v. State, 182 Misc 2d 676 [Sup Ct, New York County 1999]).
As further explained in Campaign for Fiscal Equity,
Defendants will not be prejudiced by the use of affidavits. Indeed . . . they will know chapter and verse of a witness's testimony . . . prior to its introduction. This knowledge can only assist defendants in preparing for cross-examination . . . it may be that the use of affidavits will reduce the time necessary to cross-examine a witness. (182 Misc 2d at 679).
Here, there was no denial of due process or basic rights, and no prejudice to either of the parties caused by the use of affidavits or the Court's limitation of trial time. Both parties were represented by counsel, and with the assistance of counsel both parties submitted affidavits addressing the key facts related to the issues before the Court. In addition, both parties were given an additional opportunity at trial to tell the Court in their own words why they should maintain or be granted custody. Both parties also had an opportunity to cross-examine the other party, and both parties had an opportunity to submit written summations. Although it was not the "perfect trial" in the eyes of counsel and not the way counsel was accustomed to proceeding, the Court provided a fair proceeding to all involved.
Nor did this Court abuse its discretion or deny anyone due process when it denied any requests to adjourn for additional trial dates (see In re Steven B., 6 NY3d 888 [2006]). Counsel was well aware of the extremely limited availability of the few virtual courtrooms staffed with court reporters available for use and was advised in advance that the trial time provided was all the time that would be permitted. In fact, it was due to these specific limitations that the Court directed the use of a statement of undisputed facts (which counsel failed to utilize) and direct testimony affidavits so that live testimony could be more focused on critical issues. In fact, the direct testimony affidavits assisted and alerted counsel as to the case each side would be making, and, had counsel not been so oppositional, should have permitted them to better focus their cross-examination on key issues of credibility and critical custody factors or concerns raised by the other party. In sum, counsels' need or demand for an adjournment was due to their failure to follow the court's directives or to heed the court's warnings about the inability to schedule additional trial time.
Both counsel are strongly admonished for their unprofessional behavior and are directed to review section 3.3 of the New York Rules of Professional Conduct. In particular, it is noted that Rule 3.3(f)(2) and (4) direct that a lawyer appearing before a tribunal shall not engage in undignified or discourteous conduct and shall not engage in conduct intended to disrupt the tribunal. When an objection has been made once to the trial procedures ordered by the Court a sufficient record has been made and counsel must cease from challenging, questioning and harassing the rulings and discretion of the Court as was done by these counsel. It is also entirely inappropriate for counsel to dictate or decide how trial will proceed or to obstruct the Court in bringing the trial to completion. Nor may counsel speak to or about the Court with disdain or contempt based on the Court's directions as to trial procedure or other decisions, including limitations of time and any denial of a request for an adjournment to extend the time of trial. These obligations exist for counsel at all times, including at pre-trial conferences and in all communications with court staff. Further, counsel and parties are not entitled to any particular form, order or length of trial and any limitations set by the Court, particularly in a pandemic, must be met with respect and understanding. Failure to proceed in the proper manner is discourteous and disruptive to the Court's obligation to complete the trial.
Finally, despite the egregious conduct of counsel, this Court was able to conduct and complete a fair and comprehensive trial, and the record contains sufficient evidence for this Court to determine the resolution of this conflict. II. Background and Procedural History
The parties have one child, T.J., born on May 16, 2014. In 2014, when the child was around five weeks old, a child protective proceeding was filed against the mother and R.J., the child's purported father. Following the mother's admission that the child suffered an unexplained injury while in her care, on December 4, 2014, the Suffolk County Family Court issued an order of fact-finding and disposition placing the child with a relative and permitting the mother supervised visitation. More specifically, the child was placed with N.J., the sister of R.J. However, when it was discovered that R.J. was not the father, the child was removed and placed in the care of the mother's aunt and uncle — CCT. Thereafter, on consent of the mother, the CCT's were granted custody of the child in an August 14, 2015 order of the Court. On March 10, 2016, a final order of protection was issued against the mother on behalf of the child for two years.
R.J., who had a relationship with the mother, had apparently signed an acknowledgment of paternity and was on the child's birth certificate.
The mother had been in a relationship with R.J. as well as the father. At some point while the child was living with the CCT's the father filed a paternity petition and requested a DNA test. The results of the test showed that there was a 99.99% probability he was the father. The father then filed for custody, and on March 3, 2017, on consent of the CCT's, the father was granted sole custody.
Between 2015 and 2017, the mother had visits with the child supervised by her own mother. In addition, towards the end of 2014 the parties renewed their romantic relationship. When the child came to live with the father in 2016 by virtue of the parties' relationship the mother was able to see the child more. Therefore, the mother supported the father's request for custody, and, when the parties' relationship was going well, the mother was able to spend much more time with their child.
In April 2018, the parties and child moved into a shelter residence together and the mother often watched the child on her own while the father was working. The parties and child were all listed on the father's public assistance budget, with the father listed as head of household.
On September 13, 2018, following an argument, the father signed the mother out of the shelter residence and she was forced to move to a women's shelter on her own. The next day, the mother filed her petition in Family Court seeking to modify the order of custody. Among other things, the mother alleged that the father had used excessive corporal punishment on the child and had been physically violent to her, that she had been the primary caretaker since the parties began living together, and that the father was facing felony criminal charges and incarceration due to his assault of a woman on a subway in front of her and the child.
Following the commencement of this proceeding, the mother was initially granted supervised visitation with the child and eventually successive orders of unsupervised visitation. The unsupervised visits gradually expanded throughout the course of the case, and at no time were safety issues or concerns raised to the Court when the child was with the mother.
When the Court was advised in January 2020 that the father had pleaded guilty to second degree assault and would be incarcerated for four months, after an unnecessarily difficult court conference (due to the father's untenable positions), on January 31, 2020 the Court ordered that the child would live with the mother during the term of the father's incarceration or until June 4, 2020. Following motion practice, the Court separately awarded the mother temporary custody of the child so she could make medical and educational decisions for the child.
On June 8, 2020, a court conference was held after which a new temporary order was issued reflecting that the child had returned to primarily living with the father and granting the mother parenting time on alternate weekends and additional time as agreed to by the parties. Although the next court conference was scheduled for August 24, 2020, due to clerical error the order issued that day incorrectly stated that its terms ended on June 24, 2020.
Because of the clerical error in the order, the father did not allow the mother any visits throughout the summer of 2020. After another conference on August 24, 2020, the court issued an order directing that the child would remain with the mother from September 8, 2020 until October 11, 2020. When the child returned to the mother in September, he was still enrolled in the school near the mother's home which he had attended in the earlier part of 2020. In other words, the father had not made arrangements to change his enrollment for Fall 2020. The mother was also concerned about the child transferring schools in the middle of the semester and his not having received the flu vaccine.
Based on these concerns and others raised in a motion filed by the mother, on October 16, 2020, the Court ordered that the child would remain primarily living with the mother and would visit the father on three weekends each month. This order and schedule has continued until the present.
The Court issued its pre-trial order described above on October 21, 2020 and trial was initially set to commence on November 18, 2020. However, to accommodate counsel the court adjourned the trial to December 21, 2020. Trial was held on December 21 and 22, 2020. At the trial, both parties testified. III. Trial Testimony and Evidence
A. Evidence
Submitted in evidence were the parties' direct testimony affidavits. Each of the parties' written objections to certain proposed exhibits and direct testimony and responses to those objections were also submitted in evidence (Court's Ex. 5-8). In addition, the following were entered as court exhibits: 1) The March 3, 2018 final order of custody from Suffolk County; 2) A Court ordered investigation report dated October 10, 2018; 3) The December 14, 2014 order of fact finding; and 4) This Court's February 13, 2020 order granting the mother temporary custody of the child.
The mother proposed the following exhibits for admission into evidence: 1) Exhibit 1 — 2015 modification petition filed in the Suffolk County child abuse matter; 2) Exhibit 2 — Certificate of Completion of Suffolk County Mental Health Services; 3) Exhibit 3- Certificate of Achievement, Outpatient treatment program; 4) Exhibit 4 —Father's Welfare Management System case detail; 5) Exhibit 5 — 6/23/18 Help USA letter; 6) Exhibit 6 — 7/30/18 Children's Health Project letter; 7) Exhibit 7- 8/7/18 Help USA child profile; 8) Exhibit 8 - 8/14/15 order granting the CCT's custody; 9) Exhibit 9 — 2/3/17 So-ordered temporary stipulation between Father and the CCT's; 10) Exhibit 10 — 7/21/16 Final order of protection against father in favor of J.B.; 11) Exhibit 11 — Domestic Violence registry recap; 12) Exhibit 12 — 9/14/18 family offense petition filed by the mother against the father; 13) Exhibit 13 — The mother's 9/14/18 modification of custody petition; 14) Exhibit 14 — Temporary orders of protection issued in Bronx Family Court in favor of the mother; 15) Exhibit 15 — This Court's 1/31/2020 order dismissing without prejudice the mother's family offense petition as withdrawn; 16) Exhibit 16 — 1/17/2019 temporary order of visitation ordering supervised visitation for the mother; 17) Exhibit 17 - 4/1/2019 Safe Horizon Supervised visitation report; 18) Exhibits 18-20, 22, 24 — Various temporary orders of visitation issued by this Court ; 19) Exhibit 21 — UCS WebCriminal Case Detail for the father; 20) Exhibit 23 — Certified and Delegated school records; 21) Exhibit 25 — Child Support bill as of 11/27/20 showing CCT as payee; 22) Exhibit 26 — 10/16/2020 Order on motion issued by this Court; 23) Exhibit 27 — 12/9/2020 Summary of Medical visit; 24) Exhibit 28 — UCS Webcriminal Case detail for father.
As to the mother's proposed exhibits, the Court ruled on the record that exhibits 1, 10, 11, and 28 would not be entered into evidence. The excluded evidence was irrelevant and in the case of Exhibits 10,11, and 28 more prejudicial than probative. All other exhibits are admitted into evidence.
The father proposed the following exhibits for admission into evidence: 1) Exhibit A- a December 4, 2014 order of protection issued against the mother on behalf of the child; 2) Exhibit B — a Certificate of Disposition from Suffolk County Family Court showing a 2 year order of protection against the mother for the child commencing March 10, 2016; 3) Exhibit C [1-4] — Domestic Violence Registry "recaps"; 4) Exhibit D — June 23, 2014 application for pre-petition removal of the child; 5) Exhibit E — January 17, 2019 petition for custody filed by the maternal grandmother; 6) Exhibit F — October 13, 2020 medical record for the child; and 7) Exhibit G — December 20, 2019 dental record for the child.
As to the father's proposed exhibits, the Court ruled on the record that Exhibits C1-C4 and Exhibit E would not be entered into evidence. The excluded evidence is irrelevant and/or unduly prejudicial. The Court now also excludes Exhibit D as it contains multiple levels of hearsay and is more prejudicial than probative. All other exhibits are admitted into evidence.
Regarding the parties' direct testimony affidavits, any hearsay or speculation contained within them will be disregarded, given little weight or considered only as background information by the Court.
B. Mother's testimony
The court generally finds the mother credible. Her testimony was consistent and honest. There was nothing raised in her cross-examination that called her credibility into question.
According to the mother, a child abuse case was filed against her and R.J. in 2014 and she ultimately made an admission to the petition based on the child having an unexplained injury while in her care. She was ordered to attend psychotherapy and follow all recommended treatment, to participate in a substance abuse program and follow all treatment, to comply with drug testing and to take a parenting skills class. She completed all services except the parenting skills class, as she could not find an affordable one and was not offered a free class. Her visits with the child were to be supervised by DSS.
On cross-examination, the mother explained that until the child was two and a half years old she thought R.J. was the father.
However, around Thanksgiving 2014, she and the father renewed their romantic relationship. Thus, they were a "couple" at the time the father obtained custody of the child, although they did not live together at the time. The mother was happy when the father obtained custody because she would be able to see the child more. In fact, she was able to see her son often when the father was "happy with her." In 2017, the father would often leave the child with her for weekends, or longer periods of time. But, when "things were not working out between" them, the father "rarely" let her see the child. A few months after the father obtained custody, he told the mother that an ACS case had been called in against him. During that time period, the mother never noticed the child having an eating disorder; the child ate all kinds of food.
Although the mother was not named on the custody petition filed by the father, she was present in court with an attorney when he obtained custody. She was there to support the father. However, she was upset that she was not named in the petition or granted any visitation rights in the final order.
By April 2018, the parties and child were all living together. They could not move in together prior to that because there was an order of protection against the mother which expired in March 2018. The family first lived in a shelter on Hutchinson River Parkway, and then moved to a family shelter on Crotona Park North. The mother and child were also on the father's public assistance budget at that time.
According to the mother, she was not aware of the orders of protection until sometime in 2018.
During this time, the parties shared parenting responsibilities such as feeding, dressing, and bathing the child. The mother would read the child to sleep and take him to the park, sometimes with the father and sometimes alone. Occasionally, the father would "disappear for two days" and the mother would take care of the child on her own. She also took the child to medical appointments and signed him up for the day care in the shelter.
The mother felt it was wonderful to live with the child and being with the father. However, she did not like when the father would hit their child which he did sometimes. She would attempt to speak to the father about it but it had no effect. There was also nothing she could because the father had custody and she had an abuse finding against her, as well as a criminal conviction for endangering a minor, and an order of protection against her.
The mother felt that even though the order of protection had expired and the abuse case was concluded, they would be "huge" hurdles for her to overcome. And she had to "make the best of it" if she wanted to live with her son. She also wanted to be there to protect her son. One day at the end of April 2018, while the parties and child were on the subway, the father got into a fight with a woman they don't know. He punched her in the face and broke her eye socket. The mother and child watched the entire incident, which was scary. The father was arrested and charged with assault, and the mother believed he faced the possibility of several years in prison.The father ultimately served four months in prison in 2020.
In May 2018, just before the child's birthday, the parties and child were at the home of their friend, M.R. The parties got into an argument while the child was with other children in a nearby room. At some point, the parties were alone in the living room while M.R. was in the kitchen.
The mother was sitting on the couch while the father stood above her two feet away. They began getting louder and then the father sat down next to her, climbed and laid on top of her and started choking her; she could not breathe and was scared.
While the father was choking her, one of M.R.'s sons entered the room, saw what was happening and yelled for M.R. The father got off of the mother after being told to do so by M.R. This was not the first time he had hurt her but she had hoped things would be different.
The father did not physically harm her again after that but would routinely call her "bitch" and "whore" in front of their son. On cross-examination, the mother conceded that after this incident she returned to her home with the father and had not called the police or seek medical attention.
Around September 9, 2018, the father disappeared with the child and did not return until late the following night. He did not answer the mother's many phone calls and she did not know where they were. When he returned, the mother confronted him, and they got into an argument. When she arrived home from work a few nights later, on September 13, 2018, she discovered that the father had signed her out of the shelter. He had "decided" she did not live there any longer and she ended up at a women's shelter in the Bronx.
The next day, she filed her petitions in Family Court, was granted a temporary order of protection, and ACS was directed to investigate her concerns. Because she was granted a "stay away" order of protection and did not have an order of visitation, she could not visit or speak to the child. She did not see her son for five months until a visit at Safe Horizon; she missed him very much.
The mother's visits eventually progressed to unsupervised visits every Saturday for ten hours. Then, from June 2019 through January 2020, the child stayed with her every weekend and also spent the entire Christmas break with her. Her daughter N.N. would also spend time with them. The father was often late for exchanges of the child but she "dealt with it." The child did spend the weekend of January 31, 2020 through February 2, 2020 with the father because that was the weekend before the father was scheduled to go to prison on February 4, 2020.
Even though she saw her son every weekend, she did not know where he lived with the father or where he attended school. The father would also not tell her about the child's doctor or dentist. She still does not know where the father resides and since his release from prison in 2020, he has refused to tell her his address.
While the father appeared to be facing a long prison sentence, he refused to allow the child to come live with the mother and kept naming other people with whom he would leave the child. The father had told the mother that he was concerned the child would be hurt if left with the mother. Finally, five days before his sentence was to begin, and when it appeared he had no other choice, the father agreed in Court for the child to live with her while he was in prison. The father had initially insisted that the mother transport the child everyday to his school from Long Island where the mother lived. He finally relented because this was an unreasonable thing to ask the child and her to do.
The parties resolved this temporary arrangement at the court appearance on January 31, 2020. On that same day, the mother also withdrew her family offense petition because the father would be in prison for four months and she thought it would be okay.
Although the father was supposed to drop the child off to her on February 3, 2020 at 8 pm, he did not exchange the child until the following day. On cross-examination, she clarified that the child had been dropped off at 10 pm that night. The father also did not provide the child's insurance card, birth certificate, social security card or medical provider's information as directed by the Court. This failure delayed the mother's ability to enroll the child in school near her home.
When the child came to stay with her in February 2020, he had night terrors for the first time, perhaps because he was worried about his father. In addition, his speech and social development were delayed. The mother later learned that her son attended only ten out of nineteen days at P.S. *** for Kindergarten where he was enrolled. She does not know if he attended other schools because the father would not tell her.
On cross-examination, the mother conceded that the child had night terrors before when they all lived in the shelter together but that the night terrors were worse when he came to be with her.
The mother enrolled her son in a school near her home and found a pediatrician for him. She also had him receive the flu shot as recommended, especially because of the pandemic. She also noticed that her son was behind his classmates and worked on academics with him. She saw an improvement in his progress. While he was with her, her son's speech and social skills also improved; her mother, who was a substitute teacher, worked with the child on his speech. His night terrors stopped completely. Further, she introduced structure into her son's life and believes he benefited from having a dependable routine, and thrived in her care. The mother had noticed the child's speech delays in 2018 and 2019 and had told the father about this issue. The father was "real unpatient" [sic] with the child's speech issues, and would yell and scream at him to speak, which caused the child to cry.
When the father was released from prison, the mother hoped the parties could be more cooperative with each other. However, that did not happen and the father made it clear that he would be as difficult and secretive as he had been since the parties ended their relationship. Notably, he did not tell her where he and the child would be living or whether the child could attend his kindergarten graduation.
Despite all this, the mother wanted to resolve this case. She merely wanted more time with the child, including during the holidays, school breaks and summers, as well as access to school and medical information.
But, then the father did not let her see their son from June through the end of August 2020 because he did not like the Court order and/or decided it had expired. Even after the parties had come up with a plan to exchange the child, the father reneged on the agreement. The mother would never "do this" to the father or their son. The mother changed her mind about settling the case because the father did not let her see or speak to the child for a few months, and because the father was "aggressive with the situation."
The mother notes that she pays child support for her son which still goes to her aunt because the father has not changed the child support payee in Court.
When her son came to stay with her in September 2020, she learned he was still enrolled in the school near her home which meant the father had not corrected his enrollment or enrolled him in first grade even though school was to begin in early September. The mother was concerned because she wants her son to get a good education and have someone willing and able to support and push him to achieve. She believed the father was not capable of being that person because he was himself illiterate and his actions made clear that the child's education was not a priority for him.
The child now lives with the mother in her studio apartment; everyone has their own place to sleep. The child and her daughter N.N. get along great, which made the mother happy. The mother and her own mother share legal custody of N.N.; N.N. stays with the mother on weekends, school breaks, and summers. They have agreed that since N.N. is happy she could continue residing with her grandmother during the week. On cross-examination, the mother stated that N.N. was ten years old, and had not lived with her for eight years.
Since the start of the school year, the mother has set up a special area of her apartment for the child to learn. She is available to help and supervise him during the school day, and to keep him focused and to encourage him. The child has been doing really well in school.
If she has to work when her son is with her, she has various family members who can watch him including her mother and grandmother, and the child's godfathers. Her son seems to enjoy spending time with her many family members who live near her. Her son has playdates with cousins and other friends. N.N., his sister, also comes over when the child is around during the week.
The mother promised to bring the child to his doctors and to inform the father about any medical updates. She would share all school information with the father. She also makes sure the child is on time for his visits with his father on the weekends and lets him know how important that time is. She never speaks ill of the father to her son.
She would try to work with the father and believes he should be an active and important part of the child's life. If she were granted custody, she would agree to the father having three weekends a month, alternating holidays, school breaks, time on the child's birthday, and for the father to have the month of August in the summer.
C. Father's testimony
The court finds the father's testimony to be credible in some regards but finds that in certain key respects his testimony was evasive, contradictory, and insufficient. Where his testimony conflicts with the mother's testimony, particularly regarding incidents of violence, the Court credits the mother's testimony. Overall, the father did not provide adequate answers to many allegations and concerns raised by the mother, such as the history of domestic violence. As another example, the mother's claim that the father will not reveal his current address to her is supported by the father's continued failure to state his full address in his affidavit. Instead, he names only his current Street and Borough of residence, and attempts to skirt the issue by noting the mother knew his prior address.
The father also attempts to paint the mother as unsafe or dangerous to the child, but readily admits that they all lived together in 2018 and that she watched the child when the father was working. He also raised no safety concerns about the months the child lived with the mother during his incarceration in 2020 or otherwise during any of her visitation throughout the pendency of this proceeding.
In a similar vein, the father repeatedly references the child's injuries and condition in 2014 at the time of the child protective proceeding as if he has personal knowledge of those events. However, this contrasts with his own account that he did not even know of the existence of the child until some much later point, perhaps in 2015.
According to the father, he began a relationship with the mother in 2012 but was not involved with her when the child was born. She did not tell him she was pregnant which is why he was not at the hospital for the birth.
When the child was five weeks old, he suffered a broken leg, broken arm and bleeding on the right side of the brain and trauma to his chest. He was in a body cast. He was removed from the mother's care. Allegedly at the time, when a DNA test showed that R.J. was not the father, the mother said she did not know who the child's father was. According to the father, the mother's other child N.N., who is four years older than their son, was also removed from her care by DSS.
The mother informed him when the child was living with the CCT's that she had given birth in May 2014 and that he was the father. She also informed him that she falsely named R.J. as the father, which was why he was on the birth certificate. The father then filed a paternity petition and a DNA test showed a 99.99% probability he was the father. Upon receiving that result, he filed for custody and while the case was pending the child came to live with on August 23, 2016. On March 3, 2017, the mother appeared in court and consented to him having custody.
On cross-examination, the father admitted he was aware that during the relevant time period that the mother was having sexual intercourse with him and with R.J., who was the mother's boyfriend at the time. He still maintained that the mother could not have been mistaken about who was the father. But, he was not even aware of the pregnancy except for allegations he heard. In any event, when he did learn of the pregnancy he thought he could be the father but did not pursue a paternity case including after the birth. When he finally spoke to the mother she told him he wasn't the father but he didn't ask her to take a DNA test at that time.
The father maintained that the child came to live with him on the same day he filed for custody, even before the CCT's were aware of his petition.
By falsely claiming R.J. was the father, the mother kept the father out of the child's life for his first two years. When the child came to live with the father, he needed special attention and care. He was around 27 months old and would not eat anything that was not soft such as French Fries. Because he wouldn't or couldn't chew, the father could only give him milk and French Fries. The father worked with him to get him on a regular diet. The father also took the child to the hospital five times because the child had problems going to the bathroom.
On cross-examination, the father admitted that that was all the child wanted to eat, not all he could eat.
The child could also not communicate with words and only pointed. He arranged a speech therapist for the child but could not remember her name. He denied yelling at the child when he had speech issues. He explained that when he first came to live with him he was young and so his lack of speech was "normal," and that he eventually began speaking at his own pace. The father also carried him everywhere as he couldn't or did not want to walk. However, the father did not take the child to an occupational therapist. The father devoted all his time and attention to the child.
When the child began living with the father, he had been living with his uncle B.S. in Queens. They lived there for approximately one year; his cousin C.S. would help care for the child. The father did everything for his son, including taking him to the doctor and making sure he had all his vaccinations. During that first year the child was with him, the mother never visited him or asked to visit him. There were also no supervised visits between the mother and child. He admitted there were visits between the mother and child in 2017 but believed they were not as frequent as claimed by the mother.
After that year, the father went to live with his own father and his girlfriend. At some point, he left the child with his father and the girlfriend and "went down south" for a few days for work. When he returned, he learned that the child was taken to the emergency room and diagnosed with eczema. ACS investigated but never filed a case against the father. The father was never charged or found guilty of any child neglect in any court.
From August 23, 2016 to April 2018, the father was the child's sole custodian. He clothed him, bathed him, fed him, and put him to sleep at night. He brought him to the doctor when he was ill and for regular appointments. He enjoyed his time with his son. He never used corporal punishment on him. Despite all the problems the child had when he first came into the father's care, he was happy, healthy, and thriving.
In April 2018, the mother came to live with them. However, the father was still the child's primary caretaker and was the only parent allowed to make decisions for him. When he was working, the mother would watch the child. The child's doctor was located in the shelter where they resided. During the five months they all lived together, the father never used corporal punishment on his son. Nor was he physically violent toward the mother. They would only have verbal arguments.
Around five months after the mother came to live with him, he was arrested. The mother left two weeks later but the child remained living with him. The father continued to care for the child's daily needs.
In response to the petition the mother filed in September 2018, the father denies that he "put his hands" on his son or that he hit him in the chest. He noted that there was never an ACS case against him for using excessive corporal punishment. He denied being physically violent with the mother, using words such as "whore" in front of the child, and leaving the child for days at a time. He also insisted that the mother did not take the child to all his medical appointments, although she sometimes accompanied him to such appointments. The father was also the one who enrolled their son in school.
The father admits that he was convicted of assault and incarcerated on February 4, 2020 and that the child lived with the mother from that time until June 4, 2020. The father insists that he fully complied with this Court's June 8, 2020 order granting the mother visits on alternate weekends. Even though he was aware the next court date was August 24, 2020, the father maintained he complied with the order which stated it remained in effect until June 24, 2020. He also stated that he "stopped" the alternate weekend visits because the order said it was to continue only through June 24, 2020; he insists he would have continued the visits if ordered to do so.
He also noted that he was on 5 years probation and was required not to have any police contact or be arrested. He conceded he was arrested on November 4, 2020. However, he contended this arrest was not a probation violation. In connection with the November arrest an order of protection was issued against him on behalf of a woman he was dating.
In response to the mother's amended petition, the father denied that he refused to tell the mother where he lived after she no longer lived with him. In this regard, he noted that he continued to live in the same shelter where they all lived. As to the 2019-20 school year, the father noted that the child attended kindergarten at P.S. *** when he moved to Queens where he remained until February 2020 when he moved to the mother's home. The father added that when he lived with the father the child attended school regularly, and that there was a representative in the shelter who monitored the school attendance of children. There was never any complaint about the child missing school.
Separately, the father maintained that the child was not behind academically or socially around February 2020. He also said that the child did not have night terrors when he was with the father. Regarding his obligation to provide certain documents to the mother, the father stated that the mother took the child's birth certificate and social security when she left in 2018, and that he provided her with child's medical insurance information and the name of his doctor. The father also explained that he never refused to allow his son to participate in his Kindergarten graduation and in fact made sure he participated.
The father stated that when his son was returned to him in June 2020, the school term was over. He explained his failure to enroll the child in the school near his home by referencing this Court's order directing that the child would remain with the mother from September through October 2020.
From June 4, 2020 through September 8, 2020, the child lived with the father. The father states that he took "good care" of his son, that his son was up to date with medical and dental care and with immunizations. The child always appeared happy and loving with him.
The father currently resides in a shelter on Rockaway Boulevard in Queens, New York. He works for Door Dash and occasionally for a video game trailer that provides entertainment at events. When he is at work, his cousin C.S. will watch the child. The father will also take the child to his doctor and dentist. He will make sure the child attends school and does his best in school. He already took his son for an education evaluation but no decision had been made.
The father concluded by stating that when this case began the child was a happy, smart and well-adjusted child. The father has devoted the last four and a half years caring for his son and will continue to do so.
D. Parties' Additional Statements at Trial and Cross-Examination by the AFC
At trial, the mother stressed that she should be granted custody because she would do a better job taking care of her son's educational needs. She believed she would support his educational needs better; the child was recently tested for special education. She added that he was comfortable with the school he attended near her, and with the teachers and classmates. The mother stated that her has his own bed and workspace in her apartment. She also noted that her son has a sibling nearby and other family members, including cousins, who live near her.
The father remarked that he was the most stable parent in his son's life and had been "through the ringer" with him. He resented the fact that the mother maintained he could not help his son with schoolwork and noted that he had done so. He also believed the child was doing fine in school when he lived with the father and that the child just moved at his own pace. He added that if the child were moved to special education, he would have to switch programs anyway. He also pointed out that his son would have his own room and everything he needed in the father's new apartment. He believed his son missed him and wanted to see him more. Finally, the father was concerned about the mother's mental state and did not believe she was "mentally there yet," and that the mother has "got to do more than she has done."
In response to questions from the AFC, both parties stated that the child is happy with them, enjoys time with them and wants to spend more time with them. In addition, the mother stated that she would ensure the child has a strong relationship with his father by allowing him to call, Facetime, visit, and that she would not stop the bond between father and son. The father also stated that if he maintained custody the mother could call whenever she wanted, could visit their son, and even take him to school. The father also offered to transport his son with his car to see his mother for visitation. IV. Discussion and Decision
A. Change in Circumstances
"A custody or visitation order may be modified only upon a showing that there has been a subsequent change of circumstances and modification is in the child's best interests" (Matter of Santiago v Halbal, 88 AD3d 616, 617 [1st Dept 2011]). The first or "controlling 'material fact' is whether or not there is a change in circumstances so as to warrant an inquiry into whether the best interests of the children would be served by modifying the existing custody arrangement." (Robert OO. v. Sherrell PP., 143 AD3d 1083, 1084 [3d Dept 2016]; see also Sergei P. v. Sofia M., 44 AD3d 490 [1st Dept 2007]). Once a change in circumstances has been demonstrated, "the parent then must show that modification of the underlying order is necessary to ensure the child's continued best interests." (Matter of Menhennett v Bixby, 132 AD3d 1177, 1179 [3d Dept 2015]; see also Christopher H. v. Taiesha R., 166 AD3d 548 [1st Dept 2018]).
Although it is undisputed that the father was convicted of assault and incarcerated for four months, and that the child lived with the mother during his incarceration, father's counsel contends that the mother did not meet her burden of demonstrating a material change in circumstances. This argument is, if not clearly frivolous, abutting the line of frivolity. One would have to strain to imagine a better textbook example of a significant change in circumstances than a custodial parent being incarcerated and the child residing with the other parent.
In fact, the First Department concluded in Susan A. v. Ibrahim A. (96 AD3d 439, 439 [2012]) that a change in circumstances is established when a parent is "arrested and incarcerated, and was unavailable to care for the children" (see also Breitenstein v. Stone, 112 AD3d 1157, 1158 [3d Dept 2013]["we find that the father's incarceration constituted a change in circumstances that reflected a real need for modification of the custody order"]; Gregio v. Rifenburg, 3 AD3d 830, 831 [3d Dept 2004]["respondent's impending incarceration furnished a sufficient change in circumstances"]).
Here, a significant change of circumstances was established. In April 2018, while in a public subway, the father violently assaulted a woman in front of the child and mother which led to his eventual conviction and incarceration for four months. Merely his impending incarceration following his being charged furnished a sufficient change in circumstances. But, in this matter there is much more. During his incarceration, the father was unavailable to care for the child and the child lived with the mother. During that time, the child bonded with the mother and thrived in school and in her care. The mother enrolled the child in a school near her home, which he continues to attend, and found him a pediatrician. The mother also worked on the child's academics with him and saw an improvement in his progress. While he was with her, her son's speech and social skills also improved. Finally, over time the child's new night terrors, perhaps caused by worry about his father's incarceration, stopped completely.
It is clear to this Court that the father's incarceration and all that followed constituted a huge change in the life of the child. He lived with his mother, switched schools and doctors, established a new routine, developed and improved certain academic and social skills and had a steady, close relationship with his mother. Notably, the father's desire to treat this period as a minor blip in the life of the child shows a lack of insight into the significance of this period.
Separately, there are additional grounds to establish a change of circumstances since the entry of the custody order. At the time the mother filed her petition in September 2018, the parties and child had lived together for approximately five to six months. During that time, the mother served as a significant presence and caretaker in the child's life. That relationship was greatly impacted by the father's decision to remove the mother from his household. It was in great part due to the father's action and failure to facilitate a relationship with the mother that the mother was unable to have a consistent and close relationship until the intervention of this Court. Thus, a change of circumstances was also established when the parties began living together and raising the child together in 2018.
In sum, these very significant change of circumstances warrant an inquiry into whether the best interests of the child would be served by modifying the existing custody arrangement.
B. Best Interests and Custody
In her summation, the mother requests that she be granted sole legal and physical custody of the child. She also proposes that the father have three out of every four weekends with their son, as well as alternating holidays and school breaks, time on the child's birthday, and the entire month of August each year.
In his summation, the father merely asks that the mother's petition be denied. He provides no proposed schedule of parenting time, or any alternative schedules in the event that the mother is granted custody.
The summation of the attorney for the child indicates that the child has no preference of one parent over the other and "wants to live with both parents." The AFC also proposes that each parent be given a significant amount of parenting time, and that the non-custodial parent be given, at a minimum, parental access in line with the temporary orders of the Court.
No parent has a prima facie right to custody over another parent and custody awards must be based only on the child's best interests and in promotion of the child's health and happiness. (Domestic Relations Law §70[a]). No one factor is determinative of custody; rather, the Court is required to consider the totality of the circumstances. Among the factors to be considered are the respective ages of the children, the financial circumstances, the home environment of each parent, the parental fitness of each parent, the preferences of the children, and a goal of keeping siblings together. (See Eschbach v. Eschbach, 56 NY2d 167, 172 [1982]). When applicable, the Court must also consider the length of time of any prior custodial arrangement and ensure stability for the children. (See Friederwitzer v. Friederwitzer, 55 NY2d 89, 94 [1982]).
Initially, regardless of any credibility findings, the Court notes that many key facts are undisputed. These include: 1) the parties living together as a family in 2018; 2) the father's conviction and incarceration in 2020; 3) the father's refusal to grant the mother any visitation in the summer of 2020; 4) the 2014 abuse finding against the mother; 5) the lack of any safety concerns for the mother since at least 2018, and since she was granted temporary custody in 2020; and 6) the child's bond with both parents, his thriving in the mother's care, and his desire to spend more time with both parents.
Here, the Court first considers that the father has a prior order of custody from March 3, 2017 and pursuant to that order he acted as sole custodian for the child and handled his daily care. The father should certainly be credited for caring for the child and ensuring his safety and wellbeing between 2017 and 2018. However, it must be noted that the parties had rekindled their relationship in the time leading up to the father obtaining custody. More significant, only a year had passed from the father obtaining custody when the parties and child all began living together as a family in April 2018. Thus, the prior custodial arrangement truly only lasted one year before the mother became much more involved with the child's life and served as a significant caretaker for the child.
The 2014 abuse finding against the mother is a significant factor in this case. However, while the father stresses the injuries to the child which led to the child protective proceeding, there is no definitive record evidence about how those injuries occurred. In fact, as is detailed in the October 10, 2018 Court Ordered Investigation Report, the father reported to an ACS case worker that the injuries occurred when the mother dropped the child. In other words, there is no evidence that the injuries were caused purposefully.
Further, as ordered by the Court, the mother completed all the services she was directed to complete after she consented to the abuse finding, except for a parenting course which she could not afford. Perhaps more notable is the fact that any continuing safety concerns the father is attempting to impress upon this Court cannot be taken seriously. In April 2018, the father invited the mother to come live with him and the child and to take care of the child, which she often did on her own. No safety concerns were raised about this time period whatsoever. The father even conceded that he left the child alone with the mother in 2017, sometimes for weekends. Nor have any safety concerns been raised by any party during the entirety of these proceedings. This includes the mother's unsupervised weekend visits, and the many months she served as primary custodian and caretaker for the child during the father's incarceration.
On the other hand, this Court has many more safety concerns about the father. It is undisputed that the father is a person who violently assaulted a stranger on a public train in front of the child, and that he was convicted and incarcerated for this behavior. What exactly lead to this incident is unknown but it demonstrates the father's impulsivity and violence. This violent behavior and poor judgment goes to the heart of the father's fitness as a parent. Moreover, this poor judgment has continued; although the father is on probation for five years and was not to get arrested, he was arrested again in November 2020.
The Court also credits the mother's testimony about the father's violence towards her. In particular, the incident in which he choked the mother in May 2018 while the child was in a nearby room is cause for great concern. His violence towards the mother is also evident in his constant desire to control access to the child. Among other things, the Court notes his sudden and cruel eviction of the mother from their family home in September 2018, his failure to share information with the mother, including his address, his refusal to agree to the mother serving as temporary custodian of the child days before he was to be incarcerated, and his decision to deny the mother any access to the child during the Summer of 2020.
This Court must, and will, give great weight to the domestic violence and control perpetrated by the father against the mother, as well as his capacity for violence and impulsive behavior as demonstrated by his assault conviction. In this regard, the Court notes that the father seems to have no insight about the many ways his conviction and incarceration may have impacted the child, including possibly causing or exacerbating his night terrors. It is certain that the child experienced the fear and sadness that would come with any child experiencing the incarceration of his primary custodial parent. And, it is clear to this Court that one who professes to be a fit parent and better custodian would thus never engage in the type of violent assault which the father committed, and which was certain to lead to criminal liability.
There is little evidence regarding the parties' respective home environments. However, there are no safety concerns raised about either of the parties' homes. Both parties have nearby family that are able to assist with the child. An additional benefit of spending more time with the mother is that the child has been able to spend more time with and bond with his sister Nela, who lives nearby and spends a lot of time at the mother's home.
Finally, on the issue of the respective homes, it is notable that the father still fails to provide his exact address to the mother and to the Court. It is only known that the father resides at a shelter on Rockaway Boulevard in Queens, New York; no additional details were provided by the father.
Nor is there is any significant evidence regarding the parties' financial circumstances. However, the undisputed record evidence established that the mother has been paying child support to her aunt and uncle for the child, and that the father never sought to amend or correct that support order so that the funds could directly benefit the child.
Any parent who is awarded custody must be willing to facilitate a relationship between the children and the noncustodial parent. (See Matter of James Joseph M. v. Rosana R., 32 AD3d 725, 726 [1st Dept 2006]; Lohmiller v. Lohmiller, 140 AD2d 497, 498 [2d Dept 1988]). In fact, some courts have found that an unwillingness to facilitate that relationship is "an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the [parent] is unfit to act as a custodial parent." (See Entwistle v. Entwistle, 61 AD2d 380, 384 [2d Dept 1978].
If the father were permitted to maintain legal or physical custody of the child, it is unlikely he would consistently facilitate the relationship between the child and his mother. This is best demonstrated by his continued belief that it was appropriate for the child not to see his mother for the entire summer of 2020 because of an error in the temporary order of the Court. No responsible custodial parent could ever reach the conclusion that it was in the child's best interest not to see his other parent for so long. This is particularly so here, given that the child had been living with the mother for four months during the father's incarceration before the father prevented any visits from happening. It is clearly beyond the father's imagination that he and the mother could arrange visitation outside of or in addition to a Court order.
The father's overall attitude has been that as the custodial parent he has total control over visitation and could allow or prevent visits at will, without regard to the best interest of the child. This was the case during the proceedings before this Court but began much earlier. As the mother stated, in 2017 when their relationship was going well the father would permit her frequent visitation. However, when things between the parties were not going well, the father would withhold the child from the mother. Similarly, the father has refused to share the child's education and medical information, and even his address with the mother.
The father's attitude is also demonstrated by his refusal, even days before he was to begin his prison sentence, to agree for the mother to serve as primary custodian of the child. This was despite his imminent unavailability, and his lack of a concrete plan for the child's welfare. This is further proof of the father's desire to have total control over the mother's access to her son.
In contrast, there are no such concerns about the mother. She has indicated she understands the importance of the relationship between her son and his father and that she would not seek to undermine it. She also proposes a significant access schedule for the father, and promises to keep the father informed about all important events and issues in their child's life. It bears repeating that the father does not even propose any access schedule for the mother.
Although the subject child is only six years old, his desire to spend a significant amount of time with both of his parents, and his lack of a preference for one parent over the other is entitled to some consideration. Most concerning is that the father is much less likely to ensure the child's wishes to spend a significant amount of time with his mother.
In sum, this Court is of the opinion that the mother is better able to facilitate a relationship between the father and their son going forward and that the father would not make any of these same efforts.
The evidence also supports the conclusion that the mother is better able to manage the child's education and medical needs. The evidence showed that while in the father's care in 2019, the child was absent from school on nine days and late on six days. The child's attendance record while enrolled in the school near the mother's home was far better, with only two absences. The father also kept the child through early September 2020 without giving any thought to re-enrolling the child in the school near his home, or discussing an educational plan with the mother to address where the child should be enrolled for September 2020 or thereafter. The mother also testified regarding the child's speech, academic, and social delays, his improvement while in her care, and her efforts to assist with his school work.
While the father denies the child had any of these delays, his response to these concerns primarily attempts to reshift focus to the child's injuries when he was removed from the mother's care in 2014. In other words, rather than a detailed discussion or explanation of the child's abilities and performance in school, the father would rather change the topic. This avoidance tactic makes the father's blanket denial incredible. Moreover, the fact that the child was delayed earlier in his life actually supports the mother's observations of the child's speech and academic delays. In any event, the school records in evidence note delays for the child. Finally, the father appears to recognize there may be some concerns since he took his son to an educational specialist, and notes that his son needs another evaluation.
Similarly, regarding medical care, the father maintains that child was up to date with his medical care, dental care and all his immunizations. Of course, the mother could not know this without him sharing information with her. Notably, the doctor she utilized could not find the child's vaccination records. In any event, the father admitted that he had not gotten flu shots for the child and in fact objected to the mother doing so. The mother exercised sound judgment in getting flu shots for the child since this was highly recommended by the Center for Disease Control during this COVID-19 pandemic.
In sum, the totality of the circumstances here supports that the best interest of the subject child dictates that the mother should be granted sole legal and physical custody of the child (see Susan A., 96 AD3d at 440). Critically, the Court notes that child bonded with the mother and thrived in her care during the time the father was incarcerated; the child has remained enrolled in school near the mother's home since that time and is able to have a closer relationship with his sister; the mother is better able to handle the child's educational and medical needs; the mother is able to facilitate a relationship with the father which ensures the child's wishes will be met, while the father could never facilitate a meaningful relationship between the mother and child; the history of domestic violence and control on the part of the father greatly weigh against the father maintaining custody; and there are absolutely no safety concerns present for the child in the mother's care at this time.
The father shall be informed by the mother of all major decisions for the child, including medical and educational decisions. In addition, the father shall have independent access to all medical and educational records.
C. Visitation
It is well settled that non-custodial parents have a right to visitation with their children, that such visitation is a joint right of the noncustodial parent and children, and that the noncustodial parent plays a valuable role in guiding and loving their children. (See Weiss v. Weiss, 52 NY2d 170, 175 [1981]).
In this case, it is crucial that the child have as much time with his father as possible. This is the position of the AFC, the father, and even the mother has proposed extensive parenting time for the father. Accordingly, the Court will grant the father a final order of visitation as outlined below, on condition that immediately upon receipt of this order the father provide the Court and the mother his complete current address and all contact information. Going forward, the parties should keep each other informed of any changes to their contact information.
Commencing April 12, 2021, the father shall have visitation on the first three weekends of each month from Friday at 6 PM until Sunday at 6 PM. The exchange shall take place at the Wyandanch train station, or curbside at the mother's residence, or as agreed to by the parties. Notably, the father indicated he had a car and volunteered to transport the child for visitation. Both parties shall have liberal and reasonable phone access with the child when he is with the other parent. The parties may also modify or expand the schedule on mutual consent in writing.
In addition, the parties shall share other time as follows:
a. Mother's Day: The mother will have Mother's Day each year
b. Father's Day: The father will have Father's Day each year
c. February school break: The father will have the February school break each year.
d. April school break: In Even years, the father will have the Spring/April school break. In odd years the mother will have the break.
e. Easter: In even years, the father will have Easter Day. In odd years, the mother will have Easter Day.
f. Thanksgiving: In odd years, the father will have Thanksgiving Day. In even years, the mother will have Thanksgiving Day.
g. Christmas: In odd years, the father will have Christmas Eve and the mother will have Christmas Day. In even years, the mother will have Christmas Eve and the father will have Christmas Day. In addition, in even years the father will have the December school break from the last day of school until New Year's Day at 3 PM. In odd years, the mother will have the December school break from the last day of school until New Year's Day.
h. Memorial Day: In even years, the mother will have Memorial Day. In odd years, the father will have Memorial Day.
i. Labor Day: In even years, the father will have Labor Day. In odd years, the mother will have Labor Day.
j. Child's Birthdays: On the child's birthday, if the birthday falls on a weekend day, the father shall have from 10 AM until 4 PM in even years and from 4 PM until 8 PM in odd years, and the mother the remaining time on that day. If the birthday falls on a weekday, the parties may alternate evening time on that day, with the father having it in even years and the mother in odd years.
The father shall also be entitled to four (4) weeks of time with the child each summer (July -August). Two of the weeks shall be in July and two of the weeks shall be in August. The father shall notify the mother of the weeks he is selecting by May 15th of each year. Both parties will be permitted to travel outside of the state and country with the child on advance notice to the other parent with a full itinerary of travel and contact information.
The parties may also modify this holiday/vacation schedule on mutual consent in writing.
Accordingly, it is
1. ORDERED that the mother's petition is granted; and it is further
2. ORDERED that the mother is granted a final order of sole physical and legal custody of the child; and it is further
3. ORDERED that the father is entitled to independent access to the child's educational and medical records and will be notified by the mother of any significant decisions made for the child; and it is further
4. ORDERED that a final order of visitation is awarded to the father; and it is further
5. ORDERED that the parties may modify the visitation schedule on mutual consent in writing.
This constitutes the decision and order of the court. Dated: April 12, 2021 Bronx, NY ARIEL D. CHESLER, J.F.C.