Opinion
No. 07/16605.
07-22-2014
A.D.G., Plaintiff, v. I.N.G., Defendant.
Marilee Sercu, Esq., Rochester, attorney for plaintiff. Sharon Kelly Sayers, Esq., Rochester, attorney for defendant. Lisa Morris, Esq., Rochester, attorney for the Children.
Marilee Sercu, Esq., Rochester, attorney for plaintiff.
Sharon Kelly Sayers, Esq., Rochester, attorney for defendant.
Lisa Morris, Esq., Rochester, attorney for the Children.
Opinion
RICHARD A. DOLLINGER, J.
In this matter, a divorced wife, with five children, seeks to follow her current husband, a member of the United States Army, and move the children to Alaska. The children's father, who contested a bitter custody and visitation fight several years ago, objects to the move. He lives in New York City and argues, with substantial persuasiveness, that if his children move to Alaska, he may easily forfeit any reasonable contact with them. In addition to the dispute over moving, the couple each seek related relief. The wife seeks an order of contempt amid allegations the husband took excessive exemptions on his tax filing. The husband seeks an order vacating prior orders of protection and a requirement that his visitation with his children be supervised.
An analysis of the proposed move implicates the very heart of Tropea v. Tropea, the New York Court of Appeals decision that lays out the analysis for determining whether this move would be in the best interests of the couple's five children. Tropea v. Tropea, 87 N.Y.2d 727, 741 (1996). This Court will not recount the lengthy history of this long and bitter custody contest. Initially, after the couple separated, the husband moved to New York City. He sought custody and extended visitation with his children, both in New York City and at his parent's summer home in upstate New York. During the course of the hearing process, there were questions raised about the father's drug use and mental health. The Court issued a series of orders to attain a better perspective on these questions and there were extended disputes over drug testing protocols and the husband's attendance and compliance with mental health directives. There were incidents that involved police calls and disputed telephone calls between the father and his children. There was substantial friction between the parents and, in this Court's view based on the years of grappling with the visitation and access to the children, the friction boiled over into the lives of the children. Importantly, in one of the orders issued by this Court, the Court ordered the following:
ORDERED, that if the plaintiff participates in mental health counseling and drug and alcohol abuse counseling and successfully complete such programs and his visitation as granted in this Order is determined to have been beneficial to the parties' minor children, the plaintiff father would be in a position where he could apply for a modification of his visitation and/or his custodial position.
At the conclusion of this bitter contest, this Court permitted the mother and her children to move to Watertown, New York, where her new husband was stationed. With her new husband, she now has a new 10–month–old child. The father has had restricted access to his children for more than two years, visiting them only once a month with a supervisor present. Prior to his cross-motion on this application, the husband had never sought relief from the supervision requirement nor had he sought additional time with his children. The husband has made his child support payments regularly and there is no claim for any deficiency in payments.
Against this backdrop, the mother now seeks to move to military housing in Alaska to be with her current husband. She argues that the move to Alaska is in the best interest of the five children she has with her former husband and further argues that the stable family unit—created by the five children, her current husband and her new child—provides the best environment for the five children under this Court's jurisdiction. The husband's argument is stark: if the children go to Alaska, his visitation will be nearly impossible, as the cost of a trip for him—airfare, hotels, activities with the children—will be prohibitive. In addition, the cost for the children to visit him—airfare for five from Alaska to New York and back—will make such a visit impossible. He argues further that phone contact—or Skyping (face-to-face communication over a computer)—does not provide any meaningful contact between himself and the children.
In the midst of these proposed changes, the children have strong views as well. The court-appointed attorney for the children (“AFC”) interviewed the children to obtain their preference. The oldest child, age 15, has had no direct contact with his father in nearly three years and not talked to him in 18 months. He wants to move to Alaska and have no further contact with his father. The second child, age 13, meets his father once a month, enjoys visitation with him and would like to continue contact with him but, he, too, wants to move to Alaska. The third son, age 10, has the same contact with his father—once a month for supervised visitation and by telephone every Sunday—but, he, too, wants to move to Alaska. The nine-year-old daughter has the same contact but, she, too, wants to move to Alaska. The youngest, age 7, enjoys his contact with his father but, he, too, supports the move. If the position of the attorney for the child is that relocation is in the child's best interests and that position is not contradicted by other evidence in the record, the AFC's legal analysis on behalf of the children is entitled to some weight. Ortiz v. Ortiz, 987 N.Y.S.2d 431 (2d Dep't 2014).
The husband asks this Court to grant a Lincoln hearing with the children. Lincolnv. Lincoln, 24 N.Y.2d 270 (1969). The purpose of the Lincoln hearing is to determine either the children's preference regarding certain matters or “corroborate information acquired through testimonial or documentary evidence adduced during the fact-finding hearing.” Matter of Rush v. Roscoe, 99 AD3d 1053 (3d Dep't 2012) ; Matter of Sandra S. v. Abdul S., 30 Misc.3d 797 (Fam Ct. Kings Cty 2010). The children's preferences are relayed by their attorney and there is no evidence—or even an argument by the father—suggesting that the attorney's analysis differs in anyway from each child's preference. The husband never suggests the children have a preference to reside with him. Furthermore, the Court declines to use the Lincoln hearing to “verify facts” because no trial or hearing has occurred.
In assessing a parent's request to relocate, the relevant factors include 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 child through suitable visitation arrangements. Matter of Tropea v. Tropea, 87 N.Y.2d 727, 741 (1996) ; Holtz v. Weaver, 95 AD3d 1557 (4th Dept.2012). While weighing all these factors, the primary focus of this court is the best interests of the children. Id. at 1557.
This court notes that the wishes of the children are nearly uniform: the children want to move to Alaska and, with the exception of the oldest son, want to continue to have contact with their father. The Court notes that none of the children, based on the analysis of the AFC, expressed a desire for more time with their father or expanded visitation with him. Given these facts, the children's wishes have some role in this court's decision as they are “some indication of what is in [his or her] best interests” Eschbach v. Eschbach, 56 N.Y.2d 167, 173 (1982) ; Matter of Valenti v. Valenti, 57 AD3d 1131 (3rd Dept.2008) (a child's preferences are one of the factors to be considered in making a custody determination); Matter of Oddy v. Oddy, 296 A.D.2d 616, 617 (3rd Dept.2002). But, this Court is mindful that while important, the children's wishes are not determinative. Nehra v. Uhlar, 43 N.Y.2d 242, 249 (1977) (a child's preference regarding custody is not determinative and the court must examine all relevant circumstances); Matter of S.M–C. v. S.C., 26 Misc.3d 1237A (Sup.Ct. Duchess Cty.2010).
An analysis of the Tropea factors drives the Court's conclusion. The mother's motive for moving to Alaska is genuine. She wants to follow her current husband. She has a child with her current husband. The mother has six of her own children at home and she does not work outside the home. While, as this Court noted during oral argument, the United States Army does not dictate a court's decision in this case, nonetheless, the wife's husband's military commitment must be respected. Similarly, this Court does not dispute the father's objection to moving: the distance and the costs associated with visitation will be prohibitive and, as a practical matter, this Court envisions that the father may only actually see his children less than half a dozen times a year, even though he may Skype or talk to them on the phone weekly.
In considering the quality of the relationship between the children and their parents, the mother's relationship with her children is undisputed. The children love their mother and want to reside with her. While the father has raised questions regarding alienation by the mother in the past, this Court has never heard any solid evidence of such alienation. In his affidavit before the Court on this application, the father alleges that his one of his sons told him that “mom says you're not my dad.” The father also alleges that one of his son was issued an Army dog tag with the wife's second husband's name as the child's last name. The father claims that the wife's new husband has hit his children.
The wife disputes these claims, explains the incident involving the “dog tags” as a mistake on the part of other Army personnel, argues that there is no evidence of alienation—she never told any of the children that the father was “not their dad.” She notes that none of the children have ever complained to their attorney that the wife's husband hit them. There is no evidence of injuries sustained by any of the children or any doctor's visits or medical attention that would the support the father's allegations. The husband, in his lengthy affidavit, lists a series of incidents—interrupted telephone calls, excessive noise when calls occur, gifts that are removed from the children, lack of communication with the wife's new husband—that, he claims, would justify a modification of custody. This Court is unconvinced. The stories told are largely inadmissible hearsay repetitions of comments by the children and are vigorously disputed by the mother. Furthermore, the Court, based on a review of the entire record in this case, has ample evidence to discredit the father's version of events. At one point, this Court, after a heated in-court exchange between the couple involving drug use, ordered both parents to have an immediate drug test. When both complied, the father's test came back positive for controlled substances and the father refused to return to court with the results. Based on this incident—and others throughout this process—the Court declines to credit the father's version of these supposed “alienation” events.
In a post-motion letter to the Court from his attorney, the father claims that one of his children told him the he(the father) “had to let us go to Alaska” because the mother has suggested that she would have to home school the children and “buy an RV” to visit the wife's husband and the child would be left without friends. Even if credited, this hearsay statement does not provide a basis to reverse the Court's conclusion in this case.
In reviewing this half-decade-long dispute, one undeniable fact emerges: the father's relationship with his children has, on occasion in the past, been stormy. His oldest child refuses to see his father based on incidents that occurred years ago and, given the oldest child's continuing refusal to see his father, continues to this day. In prior proceedings before this Court, the wife produced evidence of inappropriate comments made by the father to the children regarding their mother and her new husband. The prior Court order includes findings by this Court that the husband made repeated inaccurate reports to police about his wife and children, discussed with his children his ex-wife's sex life with her new husband, made comments to his children about their mother about herpes and abortion and had expressly violated prior court orders restricting his conversation with his children. The father's behavior resulted in the restricted supervised visitation order which now governs his interaction with the children.
There is also evidence of the father's lack of commitment to extended visitation with his children. In another portion of the prior order, the Court conditioned any future changes in the father's visitation upon successful completion of drug and alcohol counseling and mental health counseling. Despite the obvious opportunity to conclusively demonstrate compliance with that directive—and pave the way for extended visitation with his children—the husband instead simply avers, in his affidavit, that he is “clean and sober.” To demonstrate compliance with the prior Court order, the husband forwards a letter from an individual identified with “PhD.” The note does not describe the individual as a psychologist. The writer of the letter states that the husband had, in April—on or around the time of the filing of the order to show cause to move the children to Alaska—“resumed” counseling. The letter suggests that the husband is not abusing substances and has significantly improved. There is no evidence of any drug testing or any “completion of mental health counseling.” This last ditch attempt to show compliance with the prior court directive is unpersuasive. The failure to prove compliance with the prior court order by documentary evidence or testimony of experts, under oath through affidavit, undercuts the father's bald claim of compliance with the order. This Court also notes that the father, upon compliance with the order, could have requested additional visitation—or unsupervised visitation—at any time during the last three years. It seems incongruous that a father, seeking more time with his children, would not perform the simple and healthy task of obtaining drug/alcohol and mental health counseling and then ask this Court for more time with his children over a 36–month period. This court notes that other courts have concluded that inconsistent and sporadic visitation can be evidence that relocation would not substantially interfere with a parent's rights as a practical matter. Matter of Curtis L.S. v. Janice P.W., 12 Misc.3d 1191A (Fam. Ct. Richmond Cty.2006); Ira S. v. Lauren S., 23 AD3d 288 (1st Dept.2005). In applying this factor and weighing the solid relationship between the mother and her children and the strained and inconsistent relationship between the children and their father, this factor tends to support approving the move to Alaska.
In considering the next factor—the impact of the move on the father's access to his children—the move to Alaska will severely restrict the father's access to his children. The father, in his opposing affidavit, alleges a single ticket to Alaksa will cost $900 and take 12–14 hours. There is no question that the distance and cost will severely reduce the father's contact with his children. Even if this Court reduces his child support obligations to allow him to divert those funds into travel expenses, the father will not frequently see his children. Matter of Bracy v. Bracy, 116 AD3d 1172 (3d Dep't 2014) ; Matter of Jones v. Soriano, 117 AD3d 1350 (3d Dep't 2014) (there is no doubt that the father would be deprived of “ ‘regular and meaningful access to his child and, more to the point, that the child will no longer will benefit from his consistent presence in her life.” Under this factor, the Court should be disinclined to approve a move.
In respect to the “enhanced economic, emotional and educational life” of the children, there is no evidence before the Court on the economics of the wife's intended move. There is no evidence of the second husband's income or how the family—now with eight members—will be supported while apparently living on the Army base in Alaska. It would be easy to conjecture that the United States Army would not permit this family to suffer economically living in Alaska but this Court has no proof to justify such a conclusion. As for the educational factor, this Court notes that by every gauge, the children have thrived educationally while living with their mother and her new husband in Watertown. The father acknowledges that his children are smart and attentive. There is no evidence that the children, living with their mother and her second husband, are not educationally prospering.
The husband also argues the wife, by enrolling her children in school in Alaska prior to a determination from this Court has disregarded existing orders and the authority of this Court. This Court declines to draw that inference: this Court could easily void such enrollments if in the child's best interests.
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There is no also evidence that the child will lack emotional support after the move. While the father alleges certain conduct by the wife in alienating the children, the AFC's analysis on the children's preference to move to Alaska contains no suggestion that the children would suffer “emotionally” as a result of the move. This Court notes that the “emotional” factor cited by the Court of Appeals in Tropea is difficult to quantify. In that regard, the court have generally suggested that “emotional upset” is a rationale in evaluating a relocation petition. Amy S. v. George R. S., 14 Misc.3d 1210A (Fam. Ct. Suffolk Cty.2006) (the complete breakdown in the relationship between father and child, father's seeming inability and/or unwillingness to either recognize or rectify this situation, and the tremendous amount of emotional pain were factors to be considered). In addition, emotional support from extended family can be sufficient to find emotional enhancement in a proposed move. Vasquez v. Vasquez, 4 Misc.3d 1005A (Sup.Ct.App. Term 1st Dept.2004) (emotionally, the children demonstrated no ill effects as a result of the move and the court concluded that the children will ultimately be enriched due to their close proximity to their grandparents, aunt and cousin). Here, there is no evidence of any “upset” affecting the children. Ion contrast, they all favor and welcome the move.
This Court also notes that there is no evidence of any extended family support if the children move to Alaska. The wife's family resides in Rochester and the father's reside in New York City. But, there is no suggestion before this Court that the children have an interest in visiting the father's family and no sworn support from any of the father's family members suggesting an interest in visiting with the children. While extended family support can be a factor in the “emotional life” of the children, there is no evidence before this Court on which to make any valid determination on that aspect of the Tropea factors. For these reasons, the evidence of “emotional” consequences to the children favors relocation.
The final question before this Court is whether suitable arrangements can be made for visitation by the father, even if he lives thousands of miles away. In some cases, courts have required the moving parent to fund all visitation expenses. M.M. v. L.M., 42 Misc.3d 1235(A)(Sup. Ct. New York Cty 2014) (in order to maintain a relationship with the non-movin parent, the moving parent must ensure that appropriate visitation arrangements are in place for respondent and he must bear all costs of visitation, including travel expenses and accommodations). In this case, the father should have the means to fund his visitation with his children. The Court considers the relationship between the father and his children, while problematic with the oldest children, is still worthwhile for the children. They want to have a relationship with him. However, in considering such “suitable visitation arrangements,” this Court declines to wipe an already cluttered slate of orders and parental restrictions clean. The requirement to devise “suitable visitation arrangements” must be examined in the context of the limited and supervised visitation currently in place in this case. With those confinements conceded, this Court can find a “suitable visitation arrangement” for the father consistent with the prior orders in this case.
Under these circumstances, this Court finds that the children's move to Alaska is in their best interest and should be approved. In most circumstances, this Court would, after approving such a move, require the parties to work out a proposed schedule to provide “suitable visitation arrangements” for the father after the move,. However, given the acerbic relationship between these parents and the seemingly endless struggles involved in all aspects of this case, the Court instead elects to fashion its own “suitable visitation arrangements. Therefore, to accommodate the father's future interaction with his children and make it as “meaningful” as possible (under the constraints set by the current orders), the Court will impose the following visitation schedule:
(a)the father's child support obligation shall be modified downward by the sum of $5,000 annually, effective upon the date of the wife's move to Alaska;
(b)the father will, upon proof to this Court of successful completion of the drug and alcohol counseling and mental counseling prescribed in its prior orders, permit the father to have three days in one weekend (5 pm Friday until 9pm Friday, 9am Saturday until 8pm Saturday and 9am Sunday to 7pm Sunday) one weekend each quarter of the year with his children in Alaska;
(c)the weekend visitation provided by this decision shall be supervised by an adult, whose services shall be paid for 50 per cent by the father and 50 per cent by the mother;
(d)the father shall be required to give 20 days notice of his intention to exercise the weekend visitation set forth in this decision;
(f)the mother shall encourage all children to participate in visitation with their father;
(g)at all times that the children are with their father in Alaska, the father shall provide the wife with an itinerary of any travel and contact cell numbers in order to permit her to contact the children and vice versa;
(h)the Sunday evening telephone conversations—or Skyping—shall continue as previously ordered;
(i)the children shall reside in Alaska until the further order of this Court and this Court shall retain primary jurisdiction over the children and where they reside and any party seeking to change this order must seek relief only in the Monroe County Supreme Court and no other;
(j)the mother shall provide the cell phone numbers for herself and any child that has a cell phone to the husband and shall provide the husband with notice of any schools attended by the children or any emergencies involving the children upon reasonable notice; and
(k)the wife may take the children on vacations from Alaska but shall inform the father seven days prior to any such vacations.
Sadly, this decision, while difficult, is driven, in large measure, by past behavior of the father. The father's conduct constricted visitation with his children. Now, distance will further constrict it. But, having found the move to be in the children's best interest, the Court can only offer the father the solace that he has an opportunity to see and communicate with his children and improve his relationship with him. The Court knows it will not be easy or convenient for the father. But, having engaged in a pattern of elevating his own interests over his children's in the past, he now reaps what he has sown.
This couple both asked the Court for additional relief. The wife requests an order for the husband to be held in contempt for filing tax returns containing exemptions to which he was not entitled in the separation agreement and judgment of divorce. The husband responds that the wife is violating the terms of the same documents by claiming excess exemptions for the children beyond those permitted by the agreements. This issue can not be resolved as there is a factual dispute. This aspect of the application is referred to a hearing. I also order both parties to disclose to each other all federal income tax returns from 2010 through 2013 no later than August 8, 2014.
The husband also moves to vacate a prior order of protection issued by this Court and the requirement for supervised visitation. This Court finds insufficient credible proof to justify such a vacatur of the order of protection and the requirement for supervised visitation remains, even when the children are living in Alaska.
The wife also requests attorneys fees. The application is denied as there is no evidence that the wife is the lesser moneyed spouse and there is no statement of net worth accompanying her application. See Zito v. Zito, 2014 N.Y. Slip Op 50939(U)(Sup. Ct. Kings Cty 2014) ; 22 NYCRR 202.16(k)(2) (no motion shall be heard unless the moving papers include a statement of net worth).
SUBMIT ORDER.