Opinion
xxxxx
06-29-2020
In the Matter of a Proceeding Pursuant to Article 6 of the Family Court Act R.M., Petitioner, v. D.M., Respondent.
For the petitioner: Mary Jean Howland, Esq. For the respondent: Sanchia Palmer, Esq. For the children: Eric M. Fayer, Esq.
For the petitioner: Mary Jean Howland, Esq. For the respondent: Sanchia Palmer, Esq. For the children: Eric M. Fayer, Esq. Arlene E. Katz, J.
Mother R.M. and father D.M. are the parents of J., born in 2011, and D., born in 2013. This family has been before this Court on a number of custody, support and family offense matters since shortly after the birth of their oldest child. The procedural history is lengthy, but as is relevant herein, the history is as follows.
On March 2, 2015, an order of custody and visitation on consent was entered by which the parties shared legal custody, the father was granted physical custody of J., and the mother was granted physical custody of D.
On June 8, 2017, a modified final order of custody and visitation on consent was entered by which the mother was granted sole legal and physical custody of both children, with the father being granted visitation on alternate weekends. This order was the result of a settlement reached after the commencement of a fact-finding hearing during the second day of testimony.
On March 12, 2019, the parties' order was modified again by an order of custody by which the mother retained sole legal and physical custody and the father's visitation was ordered to be supervised by a social worker until September 12, 2019. After that, any visitation would only be upon further court order. This order was also a result of a settlement reached after the commencement of a fact-finding hearing during the second day of testimony.
On September 4, 2019, the father filed a pro se petition for modification of an order of visitation. By his petition, he sought unsupervised visitation with the children. However, the petition was dismissed without prejudice as the father failed to appear for the preliminary proceeding on November 12, 2019. The file does not reflect any subsequent petitions having been filed by the father or any application having been made to restore his petition to the court's calendar.
On January 13, 2020, the mother filed a pro se petition for custody in which she alleged that the father is physically abusive. On February 11, 2020, both parties appeared and issue was joined. Counsel for the mother indicated that the mother was seeking permission to relocate. The matter was adjourned with Parker warnings having been given (see People v Parker, 57 NY2d 136 [1982]). Counsel was assigned to the father on February 13, 2020. Prior to the next appearance, the courts closed except for essential matters due to the COVID-19 public health crisis, and this matter did not fall within any of the enumerated essential matters.
On June 11, 2020, the mother, by her attorney, filed an order to show cause seeking permission to move to Florida with the children. Petitioner's counsel filed an affirmation of service in accordance with the order to show cause. On June 19, 2020, the attorney for the children filed an affirmation in support with proof of service. That same day, the father's attorney filed an unsigned affirmation in opposition without proof of service or an affidavit of merit from the father.
On June 25, 2020, the Court held an attorneys' conference and then called the parties. Due to the COVID-19 public health crisis, the matter was heard virtually with counsel appearing by Skype and the parties appearing by telephone. Initially, counsel for the father indicated that the father was not available for the appearance, although no reason was provided for his unavailability. In addition, counsel provided no explanation as to why there was no affidavit signed by the father in opposition to the mother's order to show cause. Just before the conclusion of the appearance, the father called his attorney and she put him on speakerphone to be sworn in. The arguments made by counsel are fully set forth in their moving and responsive papers and will not be reiterated herein except as they pertain to this Court's interim determination.
The father's responsive papers contained an affirmation of counsel but no affidavit of the father himself. Upon further review of the papers, it appears that the father's attorney's affirmation is unsigned, and it was not accompanied by an affidavit or affirmation of service. Even putting the lack of signature and proof of service aside, this Court must disregard the father's opposition as it does not contain an affidavit of merit sworn to by someone with personal knowledge of the facts set forth therein (Egan v Federated Dept. Stores, Inc., 108 AD2d 718, 719 [2d Dept 1985] ["Plaintiff did not submit an affidavit of merit and her attorney's affirmation was not a valid substitute as it was not based upon personal knowledge"]; Willis v Conkling, 20 AD2d 932, 932 [affidavit "not made by one with personal knowledge" "is patently insufficient"]; Block v New York City Health and Hospitals Corp., 78 AD2d 690, 691 ["affidavit must be made by an individual having personal knowledge of the facts"]; Lusic v Killmer, 100 AD2d 864, 865 ["it being well established that the affidavit of merit must be made by a party with personal knowledge of the facts"]; De Lisa v Pettinato, 189 AD2d 988, 988 ["The showing of merit required an affidavit by one with personal knowledge"]).
"Any court in considering questions of child custody must make every effort to determine what is for the best interest of the child, and what will best promote its welfare and happiness" (Eschbach v Eschbach, 56 NY2d 167, 171 [1982]. "There are no absolutes in making these determinations; rather, there are policies designed not to bind the courts, but to guide them in determining what is in the best interests of the child" (id., citing Friederwitzer v Friederwitzer, 55 NY2d 89 [1982]).
"When reviewing a custodial parent's request to relocate, the court's primary focus must be on the best interests of the child" (Karen H. v Maurice G., 101 AD3d 1005, 1006 [2d Dept 2012]). The parent seeking permission to relocate "[bears] the burden of proof by a preponderance of the evidence that the move was in the children's best interests" (id.). The seminal case on the issue of relocation is Tropea v Tropea (87 NY2d 727 [1996]). In that case, the Court of Appeals identified the factors that should be considered in determination a relocation, including
"each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and the child through suitable visitation arrangements" (id. at 740).
"Despite the multitude of factors that may properly be considered in the context of a relocation petition, the impact of the move on the relationship between the child and the noncustodial parent will remain a central concern" (Eddington v McCabe, 98 AD3d 613, 615 [2d Dept 2012]).
In this matter, the parties' initial custody order and two subsequent modified orders were all entered on consent with each party being represented by counsel. Over the past six years, the father consented to progressively less and less time and involvement with the children. In 2014, he agreed to an order of split custody whereby he had primary physical custody of the daughter and the mother had primary physical custody of the son, with the parents sharing legal custody. In 2017, the father agreed to the mother having sole legal and physical custody with the father having weekend visitation. In 2019, the father agreed to an order continuing the mother's sole legal and physical custody, with the father's visitation limited to supervised visitation for a period of six months, with any subsequent visitation to occur only upon further court order. "Where parents enter into an agreement concerning custody, it will not be set aside unless there is a sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interests of the child" (Lazo v Cherrez, 121 AD3d 999, 1000 [2d Dept 2014]).
Since September 12, 2019, the father has had no court-ordered right of visitation, and his one attempt to petition for unsupervised visitation was dismissed due to his failure to appear in court for the preliminary proceeding on his petition. For more than nine months, there has been no visitation between the father and the children, nor has the father petitioned this Court to resume visitation. In addition to the issues involved with these subject children, this Court takes judicial notice of the court file, which includes a 2018 finding of neglect against the father for one half-sibling of the subject children, and a 2020 finding of neglect against the father for another half-sibling of the subject children. Both of those children were removed and placed in the care and custody of the Commissioner of Social Services of Westchester County, and at least one of those children remains in foster care to date.
It is generally disfavored to enter interim orders without a hearing to determine the best interests of the subject child (see Jones v Scaldini, 238 AD2d 422, 423 [2d Dept 1997] ["The record revealed no apparent need or reasons to change custody without conducting an inquiry as to whether such a change is in the son's best interests"]; Martin R.G. v Ofelia G.O., 24 AD3d 305, 306 [temporary transfer of custody pending a hearing on relocation reversed when "there was no apparent basis for the order nor any emergency concerns to support it"]). However, the entry of an interim order is sometimes warranted when the facts and circumstances of a particular case are such that not entering an interim order would be contrary to the child's best interests (see Barksdale v Medina, 272 AD2d 78, 78 ["extraordinary circumstances justif[ied] a temporary change of custody pending a hearing on the child's best interests"]; see also Assini v. Assini, 11 AD3d 417, 417 [2d Dept 2004] [order granting motion "for temporary custody of the parties' child pending hearing and determination of his motion to modify the custody provisions of the parties' stipulation" affirmed]; see generally Wancewicz v Canabush, 158 AD2d 904, 904 [appeal of Family Court "order awarding temporary continued joint custody to the parties pending a full hearing on the issue of modification of custody" dismissed]; Crooks v Smith, 260 AD2d 804, 804 [appeal of Family Court's "temporary order modifying petitioner's visitation with his children" dismissed]).
This Court is charged with determining what is in J. and D.'s best interests. Although a final determination cannot be made at this point in the proceeding, it is not only in the children's best interests for this Court to issue an interim order, but it would be to their detriment to not do so. In the mother's affidavit in support of the instant application, she describes her and the children's current living situation as a small apartment in an urban area with no local support. She used to receive help from her father and aunt, but both are now deceased. She is struggling financially and emotionally. She would like to move in with her mother in Florida, where she and the children would share her mother's larger house with a yard and a pool. She asserts in her affidavit that the children want to move to Florida.
The attorney for the children submitted an affirmation in support of the mother's application. The children have been represented by the same attorney since they were infants. He affirmed that he spoke with them as recently as June 17, 2020 via a video call. He confirmed that his clients have not seen their father in a long time and explained that "they are not particularly interested in seeing him now or in the future" (affirmation of attorney for the children ¶ 6). In discussing the proposed move to Florida, he indicated that both children are in favor of moving, as their grandmother had a house with a lot more room. They looked forward to living in a house with a backyard and a pool, as their current apartment has no outdoor play area. The children also referenced cousins and other family members in Florida as opposed to having not much family in New York. Both children indicated that they would not miss seeing their father. Based upon the children's consistent positions and the father's lack of visitation for nine months, the attorney for the children supports the mother's application to move.
The main factors set forth in Tropea are considered in the context of the particular facts and circumstances of this case. The mother has articulated clear reasons for wanting to move, all of which are based on improving the lives of the children. However, the father himself has not set forth any reasons why he opposes the move. The mother has been the children's primary caretaker for at least the past three years, with her role in the children's lives increasing as the father's visitation became progressively restricted. At this time, the father has no visitation and has not made any meaningful attempts to resume his visitation. The last time he saw the children was in September 2019. Under other circumstances, a move to the other end of the Eastern Seaboard could have a significant impact on a noncustodial parent's visitation. However, that is not the situation in this case. The father has not taken steps to resume his visitation for the past nine months while the children lived relatively close to him. As there is not even a petition pending to resume visitation, the current physical residence of the children is largely irrelevant. The mother has clearly articulated the ways in which the children's lives will be enhanced by moving to Florida. They will have a larger living space with space to play outdoors, as well as the support of their grandmother. While this Court must consider the feasibility of preserving the relationship between the father and children through suitable visitation arrangements, there is currently no order of visitation and no petition by the father to restore a visitation schedule. While unfortunate, this factor cannot be a significant consideration in the instant determination given the father's ongoing failure to seek visitation.
"Generally, a custodial parent will not be permitted to relocate if it deprives the noncustodial parent of meaningful access to the parties' child absent a showing of exceptional circumstances warranting the relocation and that the relocation is in the best interest of the child" (Browner v Kenward, 213 AD2d 400 [2d Dept 1995], aff'd Tropea v Tropea, 87 NY2d 727 [1996]). However, as referenced throughout this decision, what is often the most difficult factor to weigh is inapplicable in the instant matter. Under the circumstances, this Court finds that granting the requested interim relief would result in "no impairment of [the father's] meaningful access to his [children]" as he currently has no meaningful access to begin with (Thomas v Thomas, 271 AD2d 726, 727 ).
The mother has sole legal and physical custody of the children pursuant to the current order. The father has failed to seek visitation or pursue court intervention for nine months. On these facts, this Court finds that it is in the best interests of the children to permit relocation on an interim basis pending a hearing in this matter. Although this interim order grants relocation, it is not necessary to temporarily modify the existing final order on consent, as the mother already has sole legal and physical custody of the children with no current provisions for visitation with the father. This Court has considered the best interests of the children and has made this interim order in accordance with that standard. ACCORDINGLY, IT IS HEREBY
ORDERED ON AN INTERIM BASIS that the mother is granted permission to relocate with the subject children to Florida; and it is further ORDERED ON AN INTERIM BASIS the mother and subject children shall remain under this court's jurisdiction and shall appear for future proceedings in person or virtually as directed by this Court. PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN THIRTY DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. Dated: June 29, 2020
E N T E R:
__________ HON. ARLENE E. KATZ, JFC