Opinion
XXXXX
10-04-2020
In the Matter of a Child Custody Proceeding Under Article 6 of the Family Court Act A.P., Petitioner, v. J.G., Respondent.
Monica Eskin, Esq., Bronx, New York, for Petitioner Karen Steinberg, Esq., Bronx, New York, for Respondent Jaclyn Sherman, Esq., Children's Law Center, Bronx, New York, for the Subject Child
Monica Eskin, Esq., Bronx, New York, for Petitioner Karen Steinberg, Esq., Bronx, New York, for Respondent Jaclyn Sherman, Esq., Children's Law Center, Bronx, New York, for the Subject Child Aija Tingling, J.
The mother and father of the subject child, J.G. (08/12/14), have each filed a petition pursuant to Article 6 of the Family Court Act, seeking to modify a prior order of joint legal custody to sole legal and physical custody of the subject child. The mother is also seeking to relocate with the subject child, which the father opposed. Attorney for the child, does not support the Petitioner's request to relocate.
Trial was held and testimony was taken on October 17, 2018; November 8, 2018; February 13, 2019; February 20, 2019; February 21, 2019 and July 15, 2019.
Summary of Arguments:
Petitioner, mother, seeks sole legal and physical custody of the subject child, alleging that she has been the primary caretaker of the subject child since birth, Respondent father does not provide suitable living arrangements or obtain proper medical attention for the subject child when necessary, and that due to past domestic violence they are unable to communicate for the welfare of the child. Petitioner also seeks to relocate with the subject to Coppell, Texas, where she recently moved with her older son and has obtained employment as general manager at Jack in the Box and contends the subject child will be afforded a better standard of living, better school choices and extracurricular activities.
Although parties both filed petitions, as mother filed first, she is referred to as Petitioner, and father is referred to as Respondent.
Respondent opposes relocation on the basis that it will have a substantial effect on his parenting time. Respondent has also filed modification seeking sole legal and physical custody alleging he is better suited to provide the child with adequate living arrangements, educational and emotional support and is better able to foster a relationship with the non-custodial parent who has acted in bad faith through her numerous filings through this litigation.
Attorney for the child (AFC) also opposes Petitioner's request to relocate with the child to Coppell, Texas. Petitioner failed to establish how relocation is in the best interest of the subject child or that it will not substantially interfere with Respondent's parenting time. However, the AFC argues that a modification of the visitation schedule should be granted, since the child is now school aged and the hours of parenting time per the original order are no longer feasible.
Factual Background
On consent, a final order of custody was issued on December 2, 2014, granting the parties joint legal custody of the subject child with primary physical custody to Petitioner. However, both parties agreed that they never really adhered strictly to the order and made arrangements and modifications concerning parenting time on a day to day as needed basis.
Judicial notice was taken of the final order on custody dated December 2, 2014.
Petitioner's Testimony
The original order did not account for a viable parenting time schedule once the child became school aged, but the parties continued to make their own arrangements on a day to day basis and with the support of their relatives, coordinating via text message. Petitioner expressed concerns to Respondent about frequently picking up the child early from school, which she believed was disruptive to his instruction time, to which he would respond that "it's his parenting time". Tensions escalated on March 1, 2018, when Petitioner was notified by the school that Respondent was picking the child up early. Petitioner then reached out to Respondent several times before he answered her and indicated it was his parenting time and the child was fine. She admitted it was his day to pick up the child from school, but she was concerned because Respondent's normal pick up time was 4PM. Petitioner also testified that the child always had asthma related issues after staying at the father's home. Petitioner went to Respondent's home to retrieve the child, an argument ensued, and Petitioner later filed a police report.
Petitioner retrieved the child with the assistance of the authorities a few days later. She observed the child was wheezing and struggling to breathe and took him to Montefiore Children's Hospital for treatment. This occurred again a month later, following Respondent's parenting time with the child, at which time Petitioner advised Respondent to ensure the child was taking his daily asthma medications because he was only getting sick after leaving Respondent's home .
Judicial notice was taken of the Writ of Habeas Corpus issued on March 2, 2018.
Certified medical records from Montefiore Hospital were submitted into evidence as Petitioner's #4.
Petitioner testified that Respondent has mold in his apartment which exacerbates the subject child's chronic asthma. Petitioner testified that the subject child has been in and out of the hospital since 2014 and that every time, it was following time spent with Respondent at his home. She testified the child was sick a lot, which she attributed to being with Respondent.
See Petitioner's #11, Jacobi Medical records 2014 to 2018.
Petitioner testified that the child was first diagnosed with asthma in 2015 and although his tests results for indoor and outdoor allergens were negative, she believed he was allergic to mold exacerbated by conditions in Respondent's home. Petitioner described Respondent's basement apartment as being gloomy, with no lights, no windows and no air circulation, while having "radiation", mold and mildew all over the walls, but later admitted there are windows but "you can't climb through it." She denied that the child ever suffered any asthma symptoms or issues while in her care from 2017-2018.
Petitioner's #11, Jacobi Medical records, indicate Respondent had a mold inspection completed on July 5, 2018 and the home was mostly free of mold and the small area that contained traces was remediated. The medical records also note the child has had a negative skin test for allergens and has a family history of asthma.
See Respondent's Exhibit J and L, photographs of his apartment.
In September 2018, the child had to be hospitalized again for a non-asthma related issue. Petitioner returned to New York from Texas to be with the child, who was suffering from a virus. After the child was discharged, he continued to have follow-up appointments for varying medical issues, none of which were asthma related. However, Petitioner still blamed Respondent for the child's health issues noting that they agreed to have the child on a strict diet, to which Respondent did not adhere.
Concerning her application to relocate to Texas, Petitioner testified that although both her and Respondent's immediate family members reside in New York and assist them with caring for the subject child, Petitioner was struggling financially in New York. She was employed part-time at YMCA, earning $12/hr and was also employed sporadically with a staffing agency. However, she was not receiving financial assistance from Respondent or the father of her older son (non-subject child) and had to supplement her income with food stamps, rental assistance and approximately $500 from the maternal grandfather for the subject child's tuition. She was also residing in a small studio apartment with her two children.
She applied for and was offered a job as a manager for Jack in the Box in Coppell, Texas, earning $50,000 for training and later $80,000 for a permanent position, with potential to earn six figures with bonuses. She would have the support of her father, who already lived in Coppell, Texas, and the children would be able to have their own room.
When testimony began on October 17, 2018, Petitioner did not disclose that she had already relocated to Texas.
The photos were taken in July 2018. Admitted as Petitioner's 10A, B, C, D, E.
On February 13, 2019, Petitioner finally admitted that she had already relocated to Texas with her older son in July 2018. She accepted the job with Jack in the Box and began her training in Texas in May 2018 and was commuting back to New York for one week per month. She did not tell Respondent she was moving to Texas and left the subject child with the maternal grandmother. She mentioned wanting to relocate to Respondent sometime in the summer of 2018 and provided him with brochures for the school and afterschool where she wanted to enroll the subject child, but Respondent opposed the relocation.
As general manager for Jack in the Box, Petitioner works Monday through Friday from 8AM to 4PM, earning $55,000 and makes $5,000 quarterly for a potential of $85,000/yr. She receives health benefits, 401K and college tuition assistance. If permitted to relocate the subject child to Texas, she would change her work schedule to 6AM to 2PM, to pick up the child from school. She would enroll the subject child in Coppell Elementary School, which has a large park and daily gym activities for the children, and she would also register him in an afterschool program with basketball, bowling and other extracurricular activities. Further, Petitioner has secured a pediatrician who specializes in allergy and asthma for the subject child.
Since Petitioner's move to Texas, the subject child has visited her causing him to miss school. She does not consider this a disruption to his learning since he is attending a free Pre-K4 program, which is not mandatory, which teaches the same curriculum he was learning in private school in Pre-K3.
Petitioner admitted that Respondent and the subject child have a great relationship and they spend a significant amount of time together. However, according to her it is "just visitation" and that the child occasionally spent the night with Respondent on weekends and not during the week. She testified that Respondent's job does not allow him to have the child full time and he relies on the maternal and paternal grandmothers for assistance while Petitioner is in Texas. The child is now residing with Respondent and visiting the maternal grandmother on alternate weekends. Since she moved to Texas, the child was hospitalized once, however it was not asthma related.
If her petition is granted, she would consent to Respondent having parenting time with the child, during holidays, alternating the Christmas holiday and half of the summer, and any other time Respondent wanted to come to Texas, he would have liberal access to the child. Petitioner would bear the cost of all travel for the child.
Respondent's Testimony
Between 2015 and 2017, Respondent would spend four to six weeks in Buffalo for overtime at work and during those weeks, would return to the city to see the child twice a week or on weekends. Otherwise, Respondent had regular parenting time with the child. Although the parties have joint legal custody, Petitioner unilaterally enrolled the child in his first school without telling him, and Respondent agreed to assist with the cost, contributing approximately $3,500 towards tuition fees. Now, the child is enrolled at St. Francis Xavier and attends religious class on Wednesdays and karate.
The subject child suffered his first asthma attack in 2017, while in Petitioner's care. The child now uses two asthma inhalers and has one set in his bookbag, one at home, one at the maternal grandmother's home and one at school and Respondent has administered medication when necessary. However, he has never had to take the child to the hospital for any medical issues, while in his care. According to Respondent, Petitioner would not inform him of follow up appointments until after they occurred. However, following the child's illness in September 2018, when the child was sick, Respondent was aware of follow-up visits, being handled by Petitioner.
In February 2018, the parties had an altercation resulting in Petitioner preventing Respondent from seeing the subject child and the Petitioner's older son with whom he shared a relationship. On March 1, 2018, after not having seen the child for three weeks, Respondent then picked up the child early from school at 1:30PM and asked the school to call Petitioner to let her know. Respondent was aware that Petitioner requested that he not remove the child from school early.
Respondent treated Petitioner's son (non-subject child) as his own and included him whenever he had plans with the subject child. Respondent also coached the non-subject child's basketball team.
Petitioner called repeatedly, eventually appearing at his home, where a verbal argument ensued. Respondent called the police because Petitioner was acting erratic and told her she could pick up the child from the basketball game where he was coaching her older son later that evening, and she did. The following day, Respondent received a call from the 49th precinct to come in and he was subsequently arrested and released. He was arrested again on March 26, 2019 for going to the child's school and violating an order of protection, which he was unaware of and which required him to stay away from the child's school.
Although Respondent believes Petitioner was the aggressor in the March 1, 2018 incident, he consented to a final order of protection adjournment in contemplation of dismissal (ACD) in criminal court.
Concerning the relocation application, he opposes because the child's maternal and paternal family all reside in New York with whom the child has relationships. Further, Respondent's family has regular events that take place at his home, where the family get together.
Respondent submitted photographic evidence of family gatherings including the subject child and non-subject child's birthday.
Notwithstanding, during the summer of 2018, he suspected that Petitioner had already relocated herself to Texas, as the maternal grandmother conducted all of the exchanges for his parenting time. It was not until the November 2018 court appearance during Petitioner's testimony, that he learned she had in fact relocated to Texas. Since that time, Respondent assumed primary care of and responsibility for the subject child, including his medical needs.
Court takes judicial notice of the temporary order of visitation dated November 11, 2018.
He testified that if the court grants custody to Respondent, he is able to continue to care for the subject child as he has his own apartment, with a backyard for the child to play and the child has his own bed in Respondent's home. Respondent is employed full time as a peace officer, and his job is aware of the child's medical issues and would allow Respondent flexibility in his schedule to care for the child. Respondent also sporadically works as a contractor for Con Edison, nightclub security guard and an event coordinator but has no obligation or commitment to those positions.
Further, he would foster a relationship between the child and Petitioner. He testified that currently, while Petitioner is in Texas, Respondent initiates phone calls and video chats between Petitioner and the subject child. In January 2019, Respondent consented for the subject child to go to Texas and spend time with Petitioner. While he is not comfortable with the child traveling alone at such a young age, he will consent to the child visiting Petitioner in Texas with a familial chaperone. He testified that Petitioner could have parenting time with the child whenever she likes, including school breaks, summer vacation and holidays.
Olga Leon (maternal grandmother)
Since Petitioner's relocation to Texas, she has followed the original order on behalf of Petitioner. She keeps the child Wednesday through Friday and alternate weekends and any other time she wants or Respondent asks. When the child was ill in September 2018, Ms. Leon kept the child until November 2018, when he was healthy. During that time Ms. Leon kept him up to date on the child's health and attended several of the child's doctor's appointment, for which Respondent was not present. Ms. Leon intends to eventually relocate to Texas once her youngest children have completed school.
Analysis:
A petition to modify an existing family court order of custody or visitation requires a two-part inquiry. 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." If a change in circumstances has been demonstrated, the next inquiry is whether "modification of the underlying order is necessary to ensure the child's continued best interests."
See Robert OO. v. Sherrell PP., 143 AD3d 1083, 39 N.Y.S.3d 541 (3rd Dept. 2016); Sergei P. v. Sofia M., 44 AD3d 490, 843 N.Y.S.2d 603 (1st Dept. 2007).
Schmitz v. Schmitz, 139 AD3d 1123, 31 N.Y.S.3d 295 (3rd Dept. 2016); Christopher H. v. Taiesha R., 166 AD3d 548, 88 N.Y.S.3d 181 (1st Dept. 2018).
The issue here is Petitioner's request to relocate to Texas. "A parent seeking leave to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child's best interests." The Court of Appeals in Tropea held that
Matsen v. Matsen, 77 N.Y.S.3d 127 (2nd Dept. 2018); see Tropea v. Tropea, 87 NY2d 727 (Ct. App. 1996), see also Matter of Caruso v. Cruz, 114 AD3d 769, 771 (2nd Dept. 2014).
"in determining whether relocation is appropriate, each request of a custodial parent to relocate the child must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child." "in the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child's best interest."
Tropea supra; see also Matsen at 129; Alaire K.G. v. Anthony P.G., 925 N.Y.S.2d 417, 419 (1st Dept. 2011).
Factors the court may consider include but are not limited to: (1) each parent's reasons for seeking or opposing the move, (2) the quality of the relationships between the child and the custodial and noncustodial parents, (3) the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, (4) the degree to which the custodial parent's life and child's life may be enhanced economically, emotionally and educationally by the move, and (5) the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements. "No one factor is determinative because the court must review the totality of the circumstances."
See Tropea at 740—41; see Matsen at 129; see Matter of Caruso v. Cruz, 114 AD3d 769 (2nd Dept. 2014); see Matter of DeCillis v. DeCillis, 128 AD3d 818 (2nd Dept. 2015).
Matter of Marino v. Marino, 90 AD3d 1694, 935 N.Y.S.2d 818 (4th Dept. 2011).
It is incumbent upon the party seeking relocation to demonstrate in detail the benefits of relocation to the child, economically, educationally and emotionally. See, In Matter of C.F. v. A.S., 61 Misc 3d 1209(A) (NY Fam. Ct. 2018)(mother demonstrated that relocation to New Jersey provided financial and educational benefits, allowing mother to obtain full-time employment, more living space for the child and free education, and the move did not substantially with father's liberal parenting time); see also, Davis v. Ogden, 109 AD3d 539 (2nd Dept. 2013).
However, where there is insufficient evidence as to how relocation serves the best interest of the child and/or will not substantially interfere with the non-custodial party's parenting time, a relocation request may be denied and a change in custody may be considered. See Barnard v. Joyce-Barnard, 46 Misc 3d 1215(A), 17 N.Y.S.3d 381 (NY Sup. Ct. 2015)(mother moved 90 miles from father without notice, was unable to provide stable living for the child having moved three times after relocation and mother failed to keep father informed of child's new school or doctors, court awarded physical custody to father).
In some circumstances, even where the custodial parent present valid reasons for relocation, those reasons must be balanced against the disruption relocation would cause in the relationship between the child and non-custodial parent and relocation may be denied. See Yamilly M.S. v. Ricardo A.S., 137 AD3d 459, 26 N.Y.S.3d 278 (1st Dept. 2016); Victoria H. v. Tetsuhito A., 110 AD3d 636, 637, 974 N.Y.S.2d 56, 57 (1st Dept. 2013).
Discussion
Modification of Legal Custody
Both parties admitted that they never really adhered to the 2014 order, have regularly and consistently communicated and made joint decisions regarding the subject child on a day to day basis and continue to do so while Petitioner is in Texas. It appears the issues began when Petitioner decided she wanted to relocate to Texas, and but for this issue, they have been able to co-parent amicably. Neither party has presented evidence that joint legal custody is no longer feasible to promote the best interests of the child.
Modification of Physical Custody and Relocation
The court lacks sufficient information to make a determination that relocation to Texas is in the best interest of the child. Petitioner failed to present any evidence that school options or extracurricular activities in Texas are more readily available or better than in New York or that the child's health will be improved by relocating to Texas. See Hirschman v. McFadden, 137 AD3d 1612, 1613 (4th Dept. 2016).
Instead, Petitioner went through great lengths to portray Respondent as a bad father who "just has visitation" rather than demonstrate how the child will benefit from relocating to Texas. She has blamed Respondent for the child's chronic asthma and other illnesses, painted him as an incapable caregiver and painted him as an ineffective communicator despite the fact that they co-parent and communicate on a day to day basis as needed concerning parenting time and the child's welfare.
This court also does not ignore the fact that Petitioner secretly relocated to Texas, during the pendency of this matter and was less than forthcoming with the court and Respondent about the timeline of the move. Additionally, she left the child with the maternal grandmother without providing Respondent an opportunity to be the child's primary caregiver.
Petitioner gave inconsistent testimony throughout the pendency of this case and at trial. At first Petitioner testified that the child occasionally spent weekends with Respondent, but not weekdays, later conceding the child spends half the week with him. Petitioner maintained that the child only became asthmatically ill immediately following Respondent's overnight parenting time because his home had no windows, no circulation and mold. However, when presented with photographic evidence of Respondent's apartment with windows, she attempted to trivialize this by stating "there are windows, but you cannot fit through it." She testified that Respondent removed the child from school early without her knowledge, however, she later admitted it was his day to pick up the child.
Due to Petitioner's continued allegations against Respondent the court significantly modified Respondent's parenting time with the child, restricted Respondent's access to the child's school and directed that he have his home inspected for mold. When the inspection results indicated there was little to no mold in the home, Petitioner ceased making allegations that the child only became ill when at Respondent's home. However, the one time the child was ill after she was in Texas, Petitioner still tried to blame it on Respondent's alleged lack of adherence to the child's special diet. The court had an opportunity to review the child's medical records from 2016 through 2018 when the last hospitalization occurred, which indicated that the child had been diagnosed with asthma at 16 months old. Further, during each hospital visit for asthma, the notes indicate the mother insists the child is exposed to triggers in the father's home, however the child continually had a negative skin allergy test. While Respondent admitted to not actively making follow-up calls to the various doctors, Petitioner has not established any negligence on the part of Respondent regarding the subject child's medical needs. Further, Petitioner has failed to present any evidence of how the child's health will improve by relocating to Texas.
Courts have previously found that where a party engages in acts inconsistent to the best interest of the child, it raises a strong probability that they may be unfit to act as the custodial parent and may warrant modification of physical custody. In re Gerber, 133 AD3d 1133, 21 N.Y.S.3d 386 (3rd Dept. 2015). Under the circumstances herein, it appears to this court that Petitioner's action have all been designed to minimize Respondent's role as a parent, in efforts bolster her application for relocation.
Petitioner's proposal of school breaks, holidays and half the summer vacation substantially reduces Respondent's parenting time with the child. Although Petitioner has offered to bear the costs of travel for the subject child for parenting time with Respondent in New York during the summer, holidays, and school breaks, no evidence was presented how these accommodations will be afforded given the age of the subject child, who cannot travel alone. Petitioner's offer for Respondent to have parenting time whenever he wants to come to Texas, is questionable given that Petitioner has admitted she has called the police on Respondent several times for various and seemingly trivial arguments and this court does not find it reasonable to believe that Respondent could travel to Texas "whenever he chooses" to spend time with the child without incident.
Contrary to Petitioner's description of Respondent, the record makes clear that Respondent is not an absent father and relocation of the subject child will significantly impact Respondent's parenting time and relationship with the subject child. Both Petitioner and Respondent's family reside in New York, where they have a strong support system, whereas Petitioner's only support in Texas is her estranged father. There is no fault in relying on family to help raise and care for a child, which both parents appear have been and continue to do. Respondent has demonstrated that he has the ability to foster a relationship between Petitioner, the maternal relatives and the subject child and has done so by not restricting Petitioner from access to the subject child while she is in Texas. Respondent has proper accommodations and has assumed the role of primary caretaker of the subject child since November 2018.
See Yamilly M.S. v. Ricardo A.S., 137 AD3d 459 (1st Dept. 2016). --------
Holding
The parties have not established that joint legal custody is no longer viable for this family. As such, the petition for modification for sole legal custody filed by both parties is denied.
Petitioner's application to relocate the subject child to Texas is also denied. Petitioner has not demonstrated by a preponderance of the evidence that the proposed relocation is in the child's best interest. Relocation of the subject child would substantially inhibit and interfere with Respondent's parenting time and Petitioner's decision to relocate during the pendency of this case is self-serving and not in the best interest of the child. Thus, relocation is not in the best interest of the child at this time.
Respondent has established that he has the means and capability to act as the primary physical custodian of the subject child at this time.
IT IS HEREBY ORDERED that the petition for modification for sole legal custody and physical custody and relocation filed by Petitioner is DENIED without prejudice. IT IS HEREBY ORDERED that the petition for modification of sole legal and physical custody filed by Respondent is DENIED IN PART AND GRANTED IN PART. The parties will continue to share joint legal custody. Respondent is granted physical custody while Petitioner resides in Texas with parenting time to Petitioner to be agreed and arranged by the parties. If Petitioner relocates back to New York, the parties will share joint physical custody of the child as agreed and arranged by the parties. Dated: October 4, 2020
ENTER:
__________
Hon. Aija M. Tingling
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE CHILD'S ATTORNEY UPON THE APPELLANT, WHICHEVER IS EARLIEST.