Opinion
Docket No. V-XXXXX-19/21O
01-04-2023
Matter of A.S. v. L.C.
Clifford G. Eisenhut, Esq., Utica, New York, for the mother Theresa M. Girouard, Esq., Rome, New York, for the father Anne M. Zielenski-McGahey, Esq., Utica, New York, Attorney for the Child
Unpublished Opinion
Clifford G. Eisenhut, Esq., Utica, New York, for the mother
Theresa M. Girouard, Esq., Rome, New York, for the father
Anne M. Zielenski-McGahey, Esq., Utica, New York, Attorney for the Child
Hon. F. Christopher Giruzzi, Judge
Procedural History
On June 23, 2021, A. S. (hereafter referred to as 'mother' / Petitioner / Ms. S.) filed a petition against L. C. (hereafter referred to as 'father' / Respondent / Mr. C.) with the Oneida County Family Court seeking modification of a prior order of custody dated January 15, 2021. This proceeding involves the parties' minor child A.C. (DOB XXX, XX, 2013). Contained within the petition the mother alleges a change of circumstances exists as the father does not permit unfettered telephone access with the child, he makes disparaging remarks about her while A. is present and is present during exchanges of the child, as opposed to having a third party. All of which are in violation of the prior order of custody. The mother also filed a petition seeking an order of protection against Mr. C. alleging he committed the family offense of harassment against her on XXXX XX, 2021. Specifically, Ms. S. alleges that the father is not to be present at her home, and on this day he came to pick up the child's sports equipment despite being given advanced notice not to do so. In addition, the father continuously comes to her home for exchanges and makes her feel "very uncomfortable" and he "demands" that she come outside during these periods of time. The court will note upon the filing of the petition, a temporary order of protection was issued in favor of the mother for a period of one year. This temporary order of protection expired on XXXX XX, 2022 and was not subsequently extended.
On July 23, 2021, Ms. S. filed a violation petition stating the respondent advised her on June 21, 2021, that he was "trading off" a firehouse day which was originally scheduled for June 24, 2021. The mother claims the father never subsequently provided notification as to what day this was in exchange for, which in essence deprived her of a day being spent with A. The court notes, the prior order of custody contains a provision that the father is to notify the mother of any workdays that he trades, including all dates involved in such trade. In addition, the mother asserts the father continues to obstruct her ability to have meaningful telephone contact with the child by "rushing" A. off the phone or indicating the child is too busy to speak with her. To that end, the mother seeks that time restrictions be removed from the current order for when she can call the child and "only seeks one reasonable, uninterrupted call with the child per day." Lastly, the mother claims the father is not complying with the child's therapist's treatment recommendations.
The mother filed an additional "Petition for Modification of Order of Visitation Made by Family Court" on July 23, 2021. This petition includes additional allegations that the father did not properly adhere to COVID-19 protocols regarding the child's proper return to school during the month of April of 2021. Ms. S. also sets forth that Mr. C. engages in the practice of "stopping by" her home uninvited during her designated parenting time, and he is late in picking up the child upon commencement of his time with the child.
Mr. C. also filed three petitions of his own, one which seeks a modification of the prior order of custody, and two which allege the mother has failed to follow the prior order of custody. Specifically, as it relates to the modification application the father states a change of circumstances exists, as the mother does not have the ability to transport the child, she files false reports against him and has held the child's sporting equipment 'hostage' on June 21, 2021. He also states Ms. S. gives the child melatonin over his objection and at times will not allow the child to attend a summer camp program. The modification petition requests entry of an order whereby the mother will be permitted parenting time every other weekend during the school year, with an additional weeknight during the summer months. The father also requests an order directing the mother submit to a psychological evaluation along with paying his attorney fees which have been incurred due to this litigation.
As it pertains to the violation petitions filed on December 6, 2021, and February 23, 2022, the father sets forth that Ms. S. did not pick up A. on one occasion, she makes remarks to the child about his family members along with "blocking" him from her call list. In addition, the father alleges the mother was responsible for A. being late to a basketball game on January 15, 2022, and there were two occasions where the child was involved with "mischief" during the mother's parenting time. During the time when the child was allegedly misbehaving, the mother remained asleep at home.
On January 20, 2022, the mother appeared with her attorney, Clifford G. Eisenhut, Esq., the father was present with his counsel, Theresa M. Girouard, Esq. and Anne M. Zielenski-McGahey, Esq. appeared as the Attorney for the Child. As the parties consented to the trial being commenced virtually the court proceeded with taking testimony and adhered to all virtual protocols. Additional testimony was taken in person at the Oneida County Family Courthouse in Rome, on July 7, 2022. At the conclusion of the proceedings, the Attorney for the Child requested a Lincoln hearing and upon the court granting the request an in-camera interview with the child was scheduled and conducted on September 1, 2022. The Attorney for the Child also made an oral motion to dismiss the petitions by arguing neither parent has demonstrated a substantial change of circumstances warranting modification of the prior order of custody. The court then directed the parties to submit any closing arguments, responses to the motion to dismiss, along with proposed parenting plans by August 22, 2022, which they did.
Upon conclusion of the proceedings there were a further post-trial motions brought by the parties. Specifically, on July 27, 2022 Mr. C. filed an Order to Show Cause seeking court permission which would allow him to travel to XXXXX from July 31, 2022 through August 3, 2022 to attend funeral services as a result of the untimely death of his sister. The matter was made returnable on July 28, 2022, which resulted in a bench directive, upon stipulation, allowing the father to travel with the child in accordance with the relief being sought. The court reserved on the application for an award of counsel fees as a result of the father's attorney having to file the application.
On August 22, 2022, the attorney for the mother filed a "Notice of Motion", on submission, seeking an order awarding counsel fees pursuant to 22 NYCRR Section 130.1.1(a). The mother states the motion which sought an order allowing the father to travel with the child to XXXXX was unnecessary. It was also argued the situation could have been avoided if the father had shared "complete information" concerning the trip and underlying circumstances.
The court finds that an award of legal fees for either party is not warranted. The father learned that on July 25, 2022, that travel arrangements to attend his sister's funeral service would interfere with the mother's weekend parenting time. The parties could not work out an agreement between themselves. On July 26, 2022, at 10:07 the attorney for the father notified the mother's attorney of the situation and advised that if the mother did not consent to the travel arrangements as proposed, that an order to show cause would be filed. The motion was filed, and arguments were heard on July 28, 2022. The attorney for the mother set forth in his affidavit that the motion was "unnecessary, frivolous, and meritless" However, given the history of issues involving communication between the parties, the court finds such application was not frivolous. Rather, it was an extension of the acrimonious and non-cooperative relationship between the parties. Upon the parties appearing before the court, this issue was resolved in a fairly short period of time and the mother understood and provided consent to the travel despite the slight interference with her weekend parenting time. Also, at the court appearance, the mother was granted make up time with the child. Based upon the extraordinary and unique circumstances the court finds neither party was willfully obstinate in finalizing an agreement before the motion was filed. The inherent history of conflict brought about by each of the parties resulted in the need for an Order to Show Cause. As such, both of the parties' motion for legal fees is denied in this regard, as well as those incurred for the underlying proceeding.
Summary of Testimony
The attorney for the mother called Ms. A.S. as the first witness. Ms. S. testified that she currently resides in XXXX and is the mother of A. Ms. S. also stated that she is employed by the XXXXX Corporation, which is located in XXXXX, and maintains a work schedule consisting of Monday through Friday from 7:00 AM until 3:30 PM. This employment commenced in December of 2021. The mother stated that she is seeking a modification of the prior order of custody and a final award of sole legal custody based upon ongoing issues with the father. The mother's testimony focused primarily on four points of contention involving Mr. C., being (1) non-compliance with COVID-19 protocols for the child (2) failure to provide proper notice as to work days "traded", resulting in a loss of parenting time (3) interference with her ability to have meaningful telephone contact with the child (4) the father stopping at her residence without permission thus, interfering with her parenting time as well as being in violation of the prior custody order.
Ms. S. testified that A. was subject to a COVID-19 quarantine period beginning on April 21, 2021. The mother further testified this was the result of Mr. C. having tested positive for the virus on said day. Upon the father receiving a positive test for COVID-19, Mr. C. told Ms. S. that she would need to pick up the child from school and continue caring for him until the following Tuesday at 4:00 PM. Ms. S. testified that despite making further inquiry of the father, he would not provide any specific information as to the child's quarantine period. As a result, the mother contacted the Oneida County Department of Health to seek clarification as to the duration of A's quarantine period. The witness then testified the health department issued an "Order of Quarantine" directing A. not to be exposed to individuals outside of the home until May 3, 2021. The mother stated she conveyed this information to the father via electronic mail on April 27th at 2:58 PM. Ms. S. went onto state that despite having this information, the father brought the child to school the following day, which resulted in him being dismissed early. As a result of further COVID-19 exposures, Ms. S. testified that A.'s quarantine period was extended through May 17, 2021. The witness also stated the father would bring A. to baseball practice during the child's quarantine period which was contrary to the Town of XXXX Little League COVID-19 Policy.
Ms. S. then provided extensive testimony alleging the father has not complied with a provision in the current custody order, requiring advanced notification of any changes in his employment schedule. The witness went onto explain the father is employed by the XXXX Fire Department and maintains a schedule whereby he works one day (also referred to as a 'firehouse' day) and then has three days off. The mother stated that pursuant to the current custody order that A. spends every forth day along with every other weekend with her. Ms. S. then stated the father regularly engages in the practice of "trading" scheduled firehouse days for days off, with his co-workers. The mother also testified that when the father trades one of his regularly scheduled workdays, and she is not notified, her court ordered parenting time with A. is diminished. The mother cited eight specific instances whereby she was not provided with proper notice of "trade dates" resulting in a loss of parenting time with A.
Ms. S. also testified that it has been difficult maintaining regular communication with A., while the child is with his father. Ms. S. stated that she would "typically" attempt to contact A. via telephone between the hours of 3:30 PM and 5:30 PM. The court notes the current order of custody provides that each party shall have reasonable telephone access with the child, while the child is in the care of the other parent. In addition, such telephone contact shall be accommodated between 3:30 PM and 5:30 PM "to the greatest extent possible". The witness also stated that she has only been able to speak to the child approximately "fifty percent" of the time upon initiating a telephone call. Ms. S. also referenced and testified to various entries contained within voluminous cell phone records. These references were to support her claims, as to the limited nature or unsuccessful attempts to contact A. by telephone.
The mother then testified that Mr. C. is not welcome at her home due to "past issues" they have had. Ms. S. stated there have been occasions whereby the father stopped at her residence without being invited, and such visits disrupted her parenting time with A. Specifically, the mother testified that on June 12, 2021, the father appeared outside her home in a fire truck during her parenting time with A. The mother further stated that while the father did not exit the vehicle, that his presence interrupted the time she had with A. In addition, the witness stated that on June 21, 2021, the father sent her a text message notifying her that he was going to retrieve the child's baseball equipment from her home after picking up A. from school that afternoon. Ms. S. stated that she told Mr. C. this was unnecessary, as she would bring A's belongings to the baseball field later in the day. The mother stated that Mr. C. disregarded her request not to come to her home, and upon him showing up she contacted the authorities. The court notes this incident precipitated the filing of the mother's petition seeking an order of protection.
The mother made further general allegations that the father has made disparaging remarks about her while in the presence of the child. The witness also stated that when the father has parenting time with A. and must report to work on an emergency basis that she should be notified and have priority to care for the child.
On cross-examination, Ms. S. stated that when A. was with her during April of 2021 that she did not administer an at home COVID-19 test, as she "feared" the father would file a violation petition. The witness also stated that during the COVID-19 pandemic that he did not adhere to quarantine rules.
The mother further testified that Mr. C. acknowledged he made "some" mistakes, upon conveying particular "trade days" which in turn altered his regular work schedule. Ms. S. also stated there were many times whereby she was able to contact the child via telephone outside the hours of 3:30 PM to 5:30 PM. The witness testified there have been "several" instances where she has not seen A. for more than one week, however, could not recall any specific dates or months when this occurred.
Ms. S. also testified the father has been cooperative when asked to assist transporting A. during her parenting time, when no other options were available. The mother further stated that during the incident on June 12, 2021, when the father showed up in a fire truck outside her home, that A. was not concerned nor appeared to be afraid.
The mother also testified she engages in many activities with the child during her parenting time including fishing, bike riding and going to parks. Ms. S. also stated that A. goes to counseling one time per month as it is beneficial for him to attend and talk with a "neutral party". The mother further stated the child needs "stability" and a "50 / 50" shared parenting arrangement would benefit A.
On cross-examination by the Attorney for the Child the mother testified that she has been unable to call A. between the hours of 3:30 PM and 5:30 PM due to having doctor appointments during this time. The mother also said that there were times when she was forced to "do errands" between these hours as she had to rely upon others for transportation along with having to nap before going to work at XXXXX. The court notes, the mother's employment with XXXXX ended in September of 2021.
On re-direct, Ms. S. testified that in the event she was unsuccessful in contacting A. via phone during the hours of 3:30 and 5:30 PM that she would make further attempts later in the evening. In addition, upon reflecting upon a parenting plan Ms. S. stated that a "50 / 50" schedule would include an alternate weekend schedule along with week time being shared between the parties.
The court finds the mother's testimony was somewhat credible however, there were portions which were contradictory and self-serving in nature.
The attorney for the mother then called Mr. C. as a witness. Mr. C. testified that he is the individual primarily responsible for making medical decisions on behalf of A., with the exception that Ms. S. arranges counseling appointments for the child. The witness further testified the appointments with the counselor are monthly, and the parties alternate bringing the child to see her on a rotating basis.
Mr. C. further testified that as a firefighter with the XXXX Fire Department there are occasions whereby, he gets called into work in the event of an emergency. The witness further stated these instances are referred to as "call backs", as they are non-scheduled work times. The father also stated such situations are typically limited to a maximum of three hours in duration, and it is not mandatory that he go into work for every "call back". The father also testified there have been instances when he has relied upon the mother to care for A. when reporting to the fire station for a call back.
The court finds, that while limited, the father's testimony on direct examination by the attorney for the mother to be credible.
The mother did not present any further witnesses.
The attorney for the father called Mr. C. as the first witness. The father testified that he tested positive for COVID-19 on April 23, 2021, requiring him to quarantine until April 27th. The father further testified that upon being diagnosed with COVID-19 he informed Ms. S. that A. should stay with her until his quarantine period was completed. The witness then testified that he picked up A. from the mother's home at the conclusion of his quarantine period on April 27th. The father also stated that he was not advised that the Oneida County Health Department had extended the child's quarantine period beyond this day and as such, brought A. to school on April 28th. The father further testified the school contacted him shortly thereafter to advise A. needed to be picked up and returned home based upon the county health department's order.
Mr. C. testified that he has complied with the current order of custody, as it relates to notifying the mother of changes in his employment schedule, particularly "trade days". In this regard, the father explained members of the fire department do not have an opportunity to select their vacation days, but they do have "unlimited trades". The witness stated by trading days a member of the department could accumulate larger blocks of time off. The father testified that anytime he has traded a regularly scheduled workday, for a day off, that he would convey this information to Ms. S. Mr. C. went onto state he could recall two occasions where "errors" occurred as it related to conveying trade date information to the mother. This was the result of "double trades". He went onto state that although the mother was not properly notified, it did not result in a loss of parenting time for her. As an illustration, the witness stated he traded his regularly scheduled day off, of August 3rd, to work on August 4th as a co-worker needed such time to bring their child to college. The father then traded August 4th to have off as this was the day of the fire department clam bake. Mr. C. stated that another individual agreed to work for him on August 4th as this individual "didn't like clams". The father re-iterated that because of such trades being made, the mother did not loose any parenting time pursuant to the current order of custody. The father also stated that between January of 2021 and September of 2021 there were occasions when the mother requested additional parenting time with A., outside of the custody order, which he did not object to and accommodated.
Mr. C. testified that he has always encouraged A. to spend time with his mother along with communicating with her, via phone, when the child is in his care and custody. The father also stated that he has never declined to assist the mother in effectuating her parenting time with A. and has facilitated telephone contact between them outside the court ordered hours of 3:30 PM to 5:30 PM. He testified that of the calls made by the mother, approximately one-hundred and thirty were initiated outside the time frame of 3:30 PM to 5:30 PM. The witness further testified that he has had to "end" telephone calls between the mother and A, as she would occasionally "interrogate" him. The father further stated that when the mother engages in such questioning, the child appears to be "deflated" after their conversation. Mr. C. also stated there were other instances when A. would exit the room when Ms. S. called to speak with him. The father further testified that despite this, he would encourage the child to speak with Ms. S. and for him to remain on the line with her once a call was initiated.
The father further stated there is no prohibition in the current order of custody precluding him from going to the mother's residence. Mr. C. testified the current order of custody sets forth that the parent whose time it is with the child, shall be responsible for picking up the child and such exchanges are to be "curb-side". The father testified that when he would pick up A., upon commencement of his parenting time, he would remain in his vehicle. He also stated that on occasion, the mother would exit her residence and approach his vehicle during the exchanges.
As it relates to the June 21, 2021, incident the father stated he went to the mother's home for the purpose of retrieving the child's baseball uniform and equipment prior to a game scheduled for that evening. This was to avoid A. from having to change into his uniform at the baseball field. Upon arrival at Ms. S.'s home, A. exited the vehicle and approached the home to obtain his belongings from inside the residence. The witness then stated that Ms. S. came out of her home, began "yelling", threatened to contact the police, and did not allow the child access to his belongings.
The father denied any allegation that he would regularly visit the mother's home and added that Ms. S. has welcomed him into her residence for the purposes of resolving an issue with her hot water heater. The father also stated that he used this opportunity to install new smoke detectors in the home.
Mr. C. testified that A. has been in "perfect" health since the prior court order of custody being entered, except for having to make "two or three" trips to the emergency room during the mother's parenting time. The father expanded on this testimony and stated these incidents involved the child falling off a bike, sustaining an eye laceration and an incident when he had stomach issues. The father also stated the child has medical needs, as he was born with gastroschisis, which is a condition whereby there is a hole in the abdominal wall. This condition has required A. to have five surgeries. The father further testified as to concerns he has about the mother's supervision when caring for the child. Mr. C. stated these concerns have been discussed with the child's counselor, who advised that Ms. S. needs to be "awake" and "coherent" when exercising parenting time with A. The father also expressed concerns about the mother giving the child melatonin during the early months of 2021. Mr. C. stated that upon confronting the mother, that she admitted giving the child this medication because he was "too amped up".
The father stated that by filing his modification petition he is seeking a reduction in the mother's parenting time due to concerns that he has regarding her parenting ability. The witness went onto state that a "shared arrangement" between the parties would not be in A.'s best interest. Mr. C. further testified that as the primary caretaker of A., that he provides the child with a "great life". The father elaborated by stating he engages in many activities with the child including coaching his baseball team along with having the ability to provide transportation for A. to wherever he needs to go.
On cross-examination, Mr. C. testified that he brought A. to school on April 28th despite the directives from the Oneida County Health Department, which extended the child's quarantine period beyond this date. The father also stated that Ms. S. provided a copy of the health department's order via email however, he did not read it until after the child had already been dropped off at school that day. The father testified that he "ignored" the text message sent by the mother on April 27th alerting him to check his emails, which contained the correspondence from the health department. The father also stated that the child's quarantine days were "confusing".
The witness testified there was also an occasion on June 9, 2021, whereby he did not respond to a text message from the mother wherein she was seeking clarification was to which baseball field A. was playing on that evening. The father stated that the text message was not received until 5:33 PM, the game started at 5:30 PM and he did not respond as he was already on the field coaching.
The father also stated the parties typically communicate via text message regarding "trade dates", or of any changes in his work schedule. Mr. C. also testified there was a trade date involving June 24, 2021, but the alternate firehouse date that he worked, was only verbally communicated to the mother. The father acknowledged that notification of this trade date was not reduced to writing. The father further stated that while he tries not to trade days "too often", advanced notification is provided to the mother, as she would have to provide childcare for A. on such days. The witness also stated that a "workday roster" is generated regularly by the XXXX Fire Department and if it were to be shared with the mother, it could potentially resolve any confusion or disputes as it relates to trade dates. The father testified that in June of 2021, there was an occasion where he called the mother to speak with A., and during their conversation he notified Ms. S. that he was going to drive by her home in a fire truck. The witness further stated the mother did not raise any objection, and he proceeded to drive by her residence along with honking the horn on the fire truck. The father also testified that the existing custody order does not preclude him from going to Ms. S.'s home, rather it just states the exchanges will occur curbside. As to the June 21, 2021, incident the father stated Ms. S. was notified that he was going to her home to pick up baseball equipment for A.
On cross-examination by the Attorney for the Child, the witness stated that he is not in favor of the child taking melatonin as it is detrimental to a young man's health, nor has it been recommended by his counselor or nurses. The father further stated that he provides the mother with an annual work schedule depicting which days that he is not scheduled to work.
The court finds the father's testimony to be very credible, truthful, and forthright.
The attorney for the father called Ms. S. to testify. Ms. S. testified that she was employed by XXXXX until September of 2021 and was then unemployed until December of 2021. The witness further stated that she did not advise the father of her unemployment status. The court notes, the witness did not provide an explanation as to why this information was shared not with the father.
The mother testified that she currently maintains a work schedule from Monday through Friday between the hours of 7:00 AM through 3:30 PM. Ms. S. also stated that on occasion she has an opportunity to work overtime and on those days her shift will begin at 5:00 AM and typically conclude at 4:30 PM. Ms. S. further stated that when A. is with her when working overtime, that her mother will come to the home to stay with A. while her daughter brings her to work.
The mother gave further testimony that she has requested additional time with A. on approximately seven occasions in the past year however, the father did not permit her to spend additional parenting time with A. The court notes the remaining portion of the mother's testimony was generally repetitive in nature and will be considered in the final determination herein.
The court finds the mother's testimony during this portion of the trial to be somewhat credible and evasive in portions.
Upon conclusion of testimony the Attorney for the Child made an oral motion to dismiss the petition arguing neither party had established a substantial change of circumstances since the last order was entered. The child's attorney also requested the court conduct a Lincoln and as such, an in-camera interview was scheduled for September 1, 2022. The court did in fact conduct such a hearing and afforded counsel further opportunity to submit any closing arguments in writing, legal memoranda along with proposed parenting schedules for the court's consideration.
On August 22, 2022, the Attorney for the Child filed a "Motion to Dismiss Pending Petitions" incorporated into a memorandum, which sought in the alternative a modification of the current parenting schedule to further minimize the parent's communication with each other. The child's attorney set forth that it would be beneficial for the mother and father to engage in counseling to assist with the "unhealthy interaction" they continue to exhibit.
STANDARDS OF LAW
Article 8 Order of Protection
In a family offence proceeding the allegations set forth in the petition and those asserted must be proven by a "fair preponderance of the evidence". (Matter of Bah v. Bah, 112 A.D.3d 921 [2nd Dept. 2013]; Family Court Act §882) In order to determine if a family offense has been committed by the party accused thereof, the credibility of witnesses must be examined and inquiry into the allegations brought forth. As required, a full evidentiary hearing was conducted in this matter. (Shamika E. v. Ben A., 289 A.D.2d 1065 [4th Dept. 2001])
Violation of Custody Order
In order to prevail on a petition seeking a finding that a parent has willfully violated a mandate of the court regarding parenting time, or any other provision contained therein, the party seeking such relief must demonstrate by clear and convincing evidence that a valid order was in place, the other party knew the order was in place and conditions thereof, and the petitioner suffered prejudice. (Holland v. Holland, 80 A.D.3d 807 [3rd Dept. 2011]. In addition, the violation of such order must be found to have been willful. (Constantine v. Hopkins, 101 A.D.3d 1190 [3rd Dept. 2012]; Matter of Omahen v. Omahen, 64 A.D.3d at 977 [3rd Dept. 2009]).
Custody Determination
An existing custodial arrangement will only be modified upon a showing of a change in circumstances which reflects a real need for change to promote and ensure the best interests of the child. (Matter of Stacy L.B. v. Kimberly R.L., 12 A.D.3d 1124 [4th Dept 2004] quoting Matter of Irwin v. Neyland, 213 A.D.2d 773 [3rd Dept 1995]) As it relates to this matter, the current custodial arrangement is based upon stipulation and as such "is entitled to less weight than a disposition after a plenary trial". (Matter of Hughes v. Davis, 68 A.D.3d 1674 [4th Dept. 2009]) Upon demonstration of a change of circumstance the court shall examine various factors in making a determination based upon the best interests of the child. Among the factors to be considered are the quality of the parental guidance provided by the custodial parent, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of each parent, and the length of time the present custody arrangement has been in effect. (Friederwitzer v. Friederwitzer, 55 N.Y.2d 89 [1982]; Matter of Salvanti v. Salvanti, 221 A.D.2d 541 [2nd Dept 1995]) The existence or absence of any one factor is not determinative since the Court is to consider the totality of circumstances. (Eschbach v. Eschbach, 56 N.Y.2d 167 [1982] ; Matter of Maher v. Maher, 1 A.D.3d 987 [4th Dept 2003]). It is well established that the alteration of an established custody arrangement will be ordered only upon a showing of a change in circumstances which reflects a real need for change to ensure the best interests of a child. (Francisco v. Francisco, 298 A.D.2d 925 [4th Dept. 2002]) It has further been held that once this threshold showing has been made, the Court may then proceed with a best interest analysis. (Murray v. Murray, 179 A.D.3d 1546 [4th Dept. 2020]; Matter of Hamilton v. Anderson, 99 A.D.3d 1077 [3rd Dept. 2012])
The Court of Appeals has held that the appropriate legal standard for an award of custody is the best interests of the child based upon the totality of the circumstances after analysis of such factors as the Court deems appropriate, including the following factors: prior judicial determinations/prior agreements of the parties; length of time of current custodial arrangement (stability); parental fitness/stability (physical, psychological, financial); domestic violence; provision for child's educational, intellectual, emotional development; quality of home environment; attitude toward other parent and that parent's relationship with the child; wishes of the child (Lincoln hearing, age, maturity, potential for being influenced); keeping siblings together; and showing of harm if child's residence is changed. (Friederwitzer v. Friederwitzer, 55 N.Y.2d 89 [1982])
FINDINGS AND CONCLUSIONS OF LAW
Family Offense Petition
The mother seeks an order of protection against the father in accordance with §842 of the Family Court Act. The mother specifically alleges in her petition that the father engaged in conduct on June 21, 2021, which constitutes the charge of Harassment as defined by the Penal Law. Specifically, the mother asserts the father violated the current order of custody by arriving at her home without invitation, demanding that she come outside during the exchange of the child, and made her feel "uncomfortable". In the mother's petition she also states the father has been verbally, mentally, physically, and sexually abusive in the past. It is without controvert the father did go to the mother's home on June 21, 2021. As such, the court needs to determine if Mr. C.'s actions on said day, constitute harassment, by a fair preponderance of the evidence.
Upon review of the testimony and evidence elicited, the court finds the mother has failed to meet her burden in establishing that the father engaged in behavior constituting a family offense. The mother did not provide any testimony as it related to the allegations contained in paragraphs six or seven of her petition which was filed on June 23, 2021. Also, it appears many of these incidents may have been the subject of a previous trial and subject to dismissal as any claims were not substantiated
As it relates to the incident that occurred on June 21, 2021, the court further finds Mr. C.'s actions do not constitute the charge of harassment, or any other charge as contained within the Penal Law. The domestic incident report attached to the mother's petition supports this finding and sets forth that Mr. C. was merely attempting to retrieve A.'s baseball equipment on said day. He also remained in his vehicle. The mother and father's testimony at trial was consistent in this regard, and the record reflects that it was A. who approached the mother's home in an effort to obtain his sports gear. Despite law enforcement being notified and having arrived at the scene of the alleged incident, the father was not arrested nor detained for any reason. It is also noted, the prior custody order does not prohibit nor preclude the father from going to the mother's residence rather, it states "all pick up and drop off, whether by parties or 3rd parties, shall be curbside at either home". As such, the mother has not established by a fair preponderance of the evidence that the father committed a family offense and her request for an order of protection must be denied. (Streat v. Streat, 117 A.D.3d 837 [2nd Dept. 2014]) It is further noted, the prior temporary order of protection which was issued upon the application being filed has since lapsed and was not extended by the court.
Violation of Custody Order
Both the mother and father seek a finding that the other has violated the terms of the underlying "Corrected Superseding Order Modifying Order of Custody & Visitation" dated March 14, 2021. In the petition filed by the mother on July 23, 2021, Ms. S. alleges (1) the father failed to notify her what day he did not work, upon trading June 24, 2021, which was a scheduled "firehouse day" (2) Mr. C. has intentionally obstructed telephone contact between her and A. (3) the father has not complied with recommendations made by the child's therapist (4) the father disparages her while in the presence of the child.
Upon close examination of each of the allegations and evidence proffered during trial, the court finds the mother has failed to substantiate her claims by the requisite standard of proof. It is evident that the father's employment schedule, particularly "trade days", have been a source of contention between the parties. While there may have been confusion or errors made by the father in conveying certain trade day information to the mother, there is nothing to rely upon which shows that these over sights were willful in nature as required by the law. In addition, while conceptually the mother alleges that the lack of information has diminished her parenting time, she has failed to articulate with any concrete detail as to what extent she has been prejudiced. (Baker v. Mackey, 196 A.D.3d 1161 [4th Dept. 2021])
As it relates to the mother's allegations of the father impeding her ability to maintain telephone contact with A., the court finds such claims are also unsubstantiated. As set forth above, the burden rests upon the petitioner to demonstrate that "the alleged violator's actions or failure to act defeated, impaired, impeded or prejudiced a right of the proponent and that the alleged violation was willful" by clear and convincing evidence. (Matter of Carl KK v. Michelle JJ., 175 A.D.3d 1627 [3rd Dept. 2019]). The evidence was contrary as to what the mother has alleged, as the exhaustive telephone records demonstrate the father made reasonable accommodations for telephone contact between the hours of 3:30 PM to 5:30 PM and beyond, as required by the court order. While the recent holding in Timothy RR. v. Peggy SS., 206 A.D.3d 1123 [3rd Dept. 2022] found a mother in willful violation for inhibiting telephone contact between children and their father, the underlying facts herein are distinguishable. The proof did not demonstrate Mr. C. having consistently refused to answer or that he ignored incoming telephone calls from the mother. The mother also admitted that she was able to contact A. on many occasions, outside of the recommended times in the court order. Ms. S. also explained that she initiated calls before 3:30 PM and after 5:30 PM, as during that time range she would have to "run errands" or prepare for work.
As to the duration of the telephone calls between the mother and child, the court is sympathetic to the mother's frustration in this regard. However, the evidence did not demonstrate that the shortened length of the phone communication between Ms. S. and A. is the result of the father's overt actions. The limited time could be attributable to many variables including the age of the child and / or the approach the mother takes when interacting with A. via telephone. The court encourages Ms. S. to work with the child's counselor to address this concern.
The court further finds there is no merit to the mother's blanket assertions that the father has not complied with the recommendations made by A.'s therapist. The mother offered no testimony by L.A. or other documentation to support her claims. The father's testimony set forth that it was Ms. S. who was responsible for coordinating therapy appointments. This testimony went un-refuted. It is further noted, that while the child may have missed a "few" counseling sessions, credible testimony was proffered that the child is progressing well in school and overall demeanor has improved since entry of the prior order of custody. Despite the progress being made, the court will incorporate an ordered paragraph in a final order of custody to ensure the child's continued attendance with counseling sessions.
The court also finds the mother has not established that the father has disparaged her while in the presence of the child. To the contrary, the father provided credible proof that he has encouraged parenting time and offered positive reinforcement to the mother-child relationship. While the mother was somewhat credible in her assertion that the father made a disparaging remark on June 21, 2021, the allegation was not demonstrated by the required standard of proof. In any event, the court will note that it is somewhat perplexed by the mother's behavior on said occasion, as the child was merely attempting to retrieve his baseball equipment for a game later that evening. It is certainly justified that A. would want to have these items prior to arriving at the baseball field, and Ms. S.'s behavior demonstrates a lack of understanding as to the child's day to day needs or concerns. This is a factor which will also be considered in the final determination of custody.
As to the father's violation petition, he sets forth in his application filed on December 6, 2021, similar issues as brought forth in the mother's violation petition. Such issues include, the mother not providing transportation for the child, disparaging remarks being made by Ms. S. about the father's family while in the presence of the child, along with an inability to contact the child via text or cellular telephone during the mother's parenting time. Upon review of the father's testimony and proof submitted at trial, the court also finds the father has not demonstrated by clear and convincing evidence that the mother has violated the terms and conditions of the current custodial order. While the proof submitted does not rise to the level of a violation, such testimony and allegations will be considered when determining the modification applications by each of the parties herein.
Custody Determination
Change of Circumstances
The court finds that given the testimony, evidence received, and assertions made by each of the parties that a change of circumstances exists warranting modification of the current order of custody. As set forth above, the court has considered that the most recent custody arrangement was based upon stipulation, as opposed to a directive after a plenary hearing. Based upon the foregoing and the fact that the agreement was entered less than two years ago, the custodial order is not entitled to the same weight as if it was entered after the merits of the case were litigated.
The court further recognizes that many concerns raised during the course trial were related to communication issues between the parents, and in many circumstances such a limited scope of issues does not always constitute a change of circumstances. In this regard, the court in Avola v. Horning, 101 A.D.3d 1740 [4th Dept. 2012] found the mother did not establish the requisite change in circumstances as "communication issues have not meaningfully interfered with the child's emotional and intellectual development, health, or success in school". However, the facts before this court are much different, as there was a substantial amount of testimony as to ongoing mis-communication or non-communication between the parents. It is evident, these ongoing disputes have had a negative impact upon the child and are not healthy for his overall well-being. In short, if the current parenting arrangement continues, only further distress will be dispelled upon A. as he ages.
In making a change of circumstances finding, the court relies heavily upon the allegations made by the mother and evidence which was a result thereof. Ms. S. gave extensive testimony pertaining to A.'s quarantine period, due to an exposure of COVID-19 in April of 2021. Under the circumstances, the father took appropriate actions by having A. reside with Ms. S. during what he believed to be the child's "quarantine period". It was evident at trial that unbeknownst to the father, Ms. S. took it upon herself, to contact the Oneida County Health Department which resulted in the issuance of the Public Health Director's Order directing A. to quarantine until May 3, 2021. This order was received by Ms. S. on April 26, 2022 at 4:55 PM however, was not forwarded to the father, via email, until April 27, 2021 at 2:58 PM. While Ms. S. attempts to cast dispersions upon the father about bringing the child to school on April 28th, the court is not convinced this was done so with complete disregard of the county directive. Rather, it appears this situation was an attempt by the mother to create an opportunity to discredit the father's parenting skills and respect for authority.
Another major contention between the parties, was the father's employment schedule at the XXXX Fire Department. The court recognizes the prior stipulated custodial order attempted to incorporate clauses and provisions, to maximize the mother's parenting time with A. This was done while taking into consideration the father's complex work schedule. While such provisions were made in good faith, they have led to a situation which has been the causation of extreme contention between the parties. Specifically, the ordered paragraph that has been the primary source of controversy, states that Ms. S. is to have additional parenting time on all of the father's "scheduled fire department workdays and / or on fire department workdays for which L.C. has traded". The mother's exhaustive testimony in this regard, reveals a fixation that she has been deprived time with the child, due to the father's lack of notice relative to various "trade days". This alleged deprivation of time with A. has led to ongoing issues, and the court finds this serves as the main source of contention between the parents. It is these issues which also causes undue stress upon A.
Based upon these factors, both parties have met the threshold issue for the court to determine there is in fact a substantial change of circumstances, significant enough to warrant a review of the custodial arrangement. In short, a modification of the underlying order is necessary to ensure the continued best interest of the child. (Matter of Patricia P., 106 A.D.3d 1386 [3rd Dept 2013]); Grybosky v. Riordan, 87 A.D.3d 1339 [4th Dept. 2011])
In addition to the findings above, the court has also considered the mother's new employment schedule, the continued transportation issues which remain, and her ongoing reliance upon a multitude of prescribed medications. These issues will be further explored in the best interest analysis as set forth below.
Best Interests Analysis
Prior judicial determinations / Prior agreements of the parties
There is a prior order of custody currently in place which grants the father sole legal and primary physical residence of the child. The order also states the mother shall have parenting time on alternate weekends, from Saturday at 8:00 AM until Monday at 4:00 PM. An exception is when the child has school on a Monday, as the father picks up A. from school upon conclusion of his day. In addition, the mother was granted further parenting time on all the father's scheduled fire department workdays, or those scheduled workdays for which he has "traded" away for. On these days trade days, the mother is to have A. from 7:00 AM through the following day at 4:00 PM, unless it is school day, as the father will pick up the child upon school being dismissed. The order also states that in the event the father must work on a Thursday, Friday or Saturday, the mother's parenting time shall conclude the following day at 8:00 AM. Upon modification petitions being filed by the parties, no temporary orders of custody were entered, and the underlying order was to continue and be adhered to.
The court finds no basis to disturb the provision in the current order which grants the father sole legal and physical residence of the child. There was no evidence proffered that the existing custodial arrangement is in anyway detrimental to the child. Rather, the record reflects A. is progressing in counseling, engages in extracurricular activities with the father, along with doing well in school. In addition, the father continues to ensure that A. attends medical and dental appointments along with meeting his day-to-day needs in all respects. The court also heard credible testimony during the proceedings that A. has been "happier" since entry of the current order of custody, and any past behavioral issues have subsided. It is evident, that given the contentious nature of these proceedings, along with the communication issues which remain between the parties that joint custody would not be workable. (O'Connell v. McDermott, 80 A.D.3d 701 [2nd Dept. 2011])
Parental fitness/stability (physical, psychological, financial)
The father continues to maintain stable housing along with enjoying regular employment as firefighter where he works one day on (also referred to as a 'firehouse day') followed by having three days off. There is no evidence that the father has suffered from any mental health nor substance abuse issues in the past. Mr. C. spends a great deal of time with A., coaches the child's baseball team and enjoys extensive family support in the area. In short, the father is heavily invested in the child's life and provides a stable primary home for A.
Ms. S. also maintains a stable residence and has demonstrated an ability to provide proper care for A. when she has parenting time. The mother also enjoys family support in the area but relies upon her daughter and mother for transportation as she does not have a valid New York State driver's license. The mother does not suffer from any diagnosed mental health issues. While currently employed since December of 2021, the previous three months the mother was not working. The court finds it peculiar that Ms. S. failed to notify the father that she was not working during this period, as her extensive availability could have provided an opportunity to request additional parenting time with A. The court has taken these factors into account to continue the current custodial arrangement and in entering a new order of parenting time.
Domestic violence / Child abuse
The mother referenced being a victim of prior domestic violence acts, between the parties, in her Article 8 order of protection petition. However, at trial the mother did not expand on any specifics in this regard. Rather, only blanket assertions of the father's past conduct were set forth in the underlying application. The court will note, that both parties had previously filed order of protection applications against one another, and they were subject to a hearing in 2020. The court takes judicial notice that both petitions were dismissed with prejudice, after a full trial. As it relates to the pending allegations, the mother's testimony focused on an incident whereby the father came to her home to retrieve the child's baseball equipment and another when he remained curbside in a fire truck. Neither time did the father exit the vehicle. As set forth above, there was no credible evidence of a family offense being committed or that any acts of domestic violence ensued at that time.
Neither parent has been subject to any Article 10 child neglect or abuse proceeding.
Provisions for child's educational, intellectual, emotional development and medical care
The testimony demonstrates the father has always played an active role in the emotional, social, and intellectual development of the child and has continued to do so while having primary physical custody. The testimony further set forth that the mother is provided notice by the father as to A.'s medical and dental appointments, and there have been times when both parents attended. The court finds the allegations that the mother was intoxicated during one of the child's dental appointments was unsubstantiated and without merit.
It is without controvert the mother arranges counseling appointments for the child. A provision in the final order of custody will include a paragraph ordering that counseling continue, based upon the positive impact the sessions have had on A. The testimony by both parents was somewhat limited as to the child's overall well-being along with academic progress however, the court has no basis to conclude other than positive strides are being made in these areas.
Quality of home environment
The court finds that both parties maintain proper and suitable housing for the child.
Attitude toward the other parent and that parent's relationship with child
Despite the acrimonious relationship between the parties, the court finds there is no credible proof that either parent has attempted to deliberately alienate A. from the other parent. In addition, neither has attempted to interfere with the other's parental access to the child. As previously set forth, the assertions made by the mother, that she has been denied parenting time due to the father failing to provide advanced notice of "trade days", is unsupported by the proof. While a joint custodial arrangement is not in A.'s best interest, the court notes there are positive indications that each parent understands the importance of the child having a healthy relationship with the other. The father was very credible in this regard, as he has encouraged A. to have a meaningful relationship with Ms. S.. Also, Ms. S. is not seeking to eliminate or significantly curtail the father's parenting time, rather she proposed a fifty-fifty shared physical custodial arrangement.
Recommendation of the Attorney for the Child / Wishes of the Child
The Attorney for the Child urges and believes there has been no change of circumstances since entry of the prior custody order, and all modification petitions should be dismissed. However, based upon the findings herein the motion to dismiss is denied. The court has carefully considered the alternate position of A.'s attorney and finds this to be in the child's best interest. That is, a set determinative schedule be put in place which minimizes the parent's communication with each other would benefit the child. The court notes, that although the position of the Attorney for the Child is not determinative, it is a factor to be considered in making a final determination. (Matter of Wright v. Dunham, 13 A.D.3d 1138 [4th Dept. 2004]; Alwardt v. Connolly, 183 A.D.3d 1252 [4th Dept. 2020])
Sole /joint custody
Based upon each of the parent's respective testimony, their acrimonious relationship, and all other findings herein the current custodial arrangement made part of the prior court order shall remain. However, the parenting schedule shall be modified.
CONCLUSION/TOTALITY OF CIRCUMSTANCES
Given the finding that a substantial change of circumstances exists, and in its analysis of the best interest of the child, the court has examined a number of relevant factors and has an opportunity to hear the testimony of witnesses, observe their demeanor and assess their credibility. (Friederwitzer v. Friederwitzer, 55 N.Y.2d 89 [1982]). The Court further notes, a best interests analysis incudes factors such as "maintaining stability for the child,.the home environment with each parent, each parent's past performance, relative fitness, ability to guide and provide for the child's overall well-being, and the willingness of each parent to foster a relationship with the other parent". (Buckley v. Kleinahands, 162 A.D.3d 1561 [4th Dept. 2018] citing Kaczor v. Kaczor, 12 A.D.3d 956 [3rd Dept. 2004])
The court finds that while a modification of the prior order of custody is necessary, such variations will be strictly related to the parenting time schedule. This will allow for more consistency and obviate the need for the parties to have continued dialog as it pertains to the father's "trade days". In making this determination the court has relied upon the father being awarded sole legal custody after trial on April 28, 2020, and that this designation remained upon the parties consenting to a superseding order of custody set forth on the record on January 15, 2021. In addition, since that time, the father has ensured all of A.'s needs have been met both socially, emotionally, and academically.
It is noted, Ms. S. spent a vast majority of her testimony focusing on communication issues between her and Mr. C., which related to quarantine periods for the child in April / May of 2021. Also, there was exhaustive testimony as it related to the purported lack of notice of "trade days" which allegedly resulted in a loss of time with the child. Based upon the evidence put forth, the court finds the father did not display any intentional disregard of COVID-19 protocols as there was confusion amongst society as to the calculation of quarantine periods after exposure. The court further finds the mother's attempts to notify the father of the Oneida County order of quarantine were delayed and half-hearted. The evidence also failed to demonstrate that Mr. C. attempted to limit any court ordered parenting time, by failing to inform Ms. S. of "trade days". Lastly, the proof at trial contradicted the mother's assertion that the father impeded her telephone access with the child, and the father's visits to the mother's home did not violate the terms and conditions of the court order as asserted.
Therefore, based upon each of the factors as set forth above, commencing the date of this decision, the father shall continue to maintain sole legal and residential custody of A. In addition, the mother's parenting time will be a set determinative schedule, to eliminate extensive communication between the parties, as made part of the attached Final Order of Custody after Trial. The court is confident that in the event either party is working during their respective parenting time with A., they will rely upon other family members to care for A., as done in the past. This is the benefit of each parent having various family supports in the community.