Opinion
V-00741/17A
02-23-2018
In the Matter of a Custody/Visitation Proceeding Paul A. Boyne, Petitioner, v. Heather P. Boyne, Respondent.
Paul A. Boyne, Petitioner, pro se. Michael J. Mercure, Esq., Hudson Falls, New York, for the Respondent. John Kennedy Oswald, Esq., Greenwich, New York, Attorney for the Child.
Paul A. Boyne, Petitioner, pro se. Michael J. Mercure, Esq., Hudson Falls, New York, for the Respondent. John Kennedy Oswald, Esq., Greenwich, New York, Attorney for the Child. Richard B. Meyer, J.
Petition by Paul A. Boyne (father) to modify the custody provisions contained in a 2007 judgment of divorce issued and rendered by the Connecticut Superior Court, Hartford Judicial District.
The parties are the divorced parents of three sons, all of whom have attained the age of majority, and one daughter, now fifteen years of age. Under the parties' judgment of divorce, the respondent, Heather P. Boyne (mother), was awarded sole legal and physical custody of the children and "the father shall have no visitation with the minor children, except at the discretion of the plaintiff and initiated only by the plaintiff."
There have been prior proceedings in this Court regarding the Connecticut divorce judgment and the father's visitation with the remaining minor child. The father initially filed a petition on January 13, 2017 to enforce and modify the divorce judgment, which was dismissed without prejudice on January 23, 2017 due to lack of jurisdiction because neither parent nor the child had resided in New York for the requisite six month period prior to the petition being filed (DRL §75-a[7], §76-b). The father filed a motion objecting to the dismissal and the Court scheduled an appearance for February 23, 2017. By decision and order dated March 8, 2017, the Court (Michelini, J.) dismissed the petition for lack of jurisdiction. On March 20, 2017, the father filed another petition to enforce and modify the divorce judgment, which he discontinued on the date of the first appearance, April 4, 2017.
On April 10, 2017 the father filed a third petition to enforce the divorce judgment, and two days later he filed a petition to invoke parens patriae powers seeking an order of this Court "strip[ping] the mother of the enabling custodial powers in protection of the best interests of the child." At an initial appearance held on May 8, 2017, the mother, still appearing pro se, denied the allegations of the petition. The father then filed an application on May 12, 2017 to register the divorce judgment (DRL §77-d). This Court thereafter communicated with the Connecticut court regarding whether Connecticut would be retaining exclusive, continuing jurisdiction. By letter dated June 5, 2017, the Connecticut court advised that since the mother and child had relocated to New York in December 2016 and the father had submitted to the jurisdiction of the New York courts, "Connecticut will relinquish jurisdiction over this matter pursuant to the UCCJEA to the State of New York."
After the twenty day period elapsed from the date of service of the notice required by DRL §77-d(2) without any contest to registration being filed, an order was issued on June 5, 2017 confirming the registration of the judgment (DRL §77-d[5-6]). Also on June 5, 2017, the father filed the instant petition to modify the divorce judgment. Three days later, the father filed a petition for an initial order of custody and visitation. An initial appearance on these two petitions was scheduled for June 26, 2017, the date set for trial on the April 10, 2017 petition to enforce and the April 12, 2017 petition to invoke parens patriae powers.
Both parties appeared pro se on June 26, 2017, at which time the mother denied the allegations in both the instant modification petition and the petition for an initial order of custody, and the hearing was held on the two pending April petitions. After the father questioned the mother extensively about the existence and content of the "agreement" referenced in the divorce judgment, the attorney for the child and the mother both consented to enforcement of the judgment. The father also sought to have this Court declare the custody provisions of the divorce judgment illegal and invalid, which this Court denied as being beyond this Court's jurisdiction because that judgment could not be collaterally attacked in New York. As a result, the hearing was concluded and an order entered enforcing the judgment. Subsequently, the petition to invoke parens patriae powers, as well as the June 8, 2017 petition for an initial order of custody and visitation filed on June 8, 2017 were dismissed.
In the modification petition now pending, the father alleges, inter alia, that the Connecticut divorce judgment was based upon a "non-existent 'agreement'", the award of sole custody to the mother was not in the child's best interests, the mother has maliciously isolated the child from the father, the judgment constitutes a "de facto termination of the father's parental rights", the judgment is an "egregious and grotesque abuse of judicial discretion" and violation of the father's and daughter's civil rights, and the judgment was illegal, "defective and not based on law or due process". The alleged change of circumstances since entry of the 2007 judgment consist of Connecticut's relinquishment of jurisdiction, the judgment not being in conformance with New York law, and the claim that "[t]he child is being emotionally and psychologically abused as defined in federal law. CAPTA". The father requests modification so that the parties will have "joint custody", "visitation at the discretion of the father", "an order for a parenting plan", and "an order under UCCJEA §75-k(1)(d) and §75-k(4) to the Connecticut Court to produce a copy of the 'agreement' referenced in No.155.10, p. 2. para 2. (NYS Family Court Form UCCJEA-8)".
Over the course of the next seven plus months to date, the father filed almost fifty requests for court orders, which this Court deemed to be motions due to the father's pro se status, seeking disqualification of the mother's assigned counsel as well as the attorney for the child, immediate hearings, adjournments of scheduled hearings, summary judgment awarding custody of the child to him, recusal of this Court, clarification of interlocutory determinations and prior orders of this Court, and other relief. Although the father demanded an immediate hearing on this petition in December 2017, which was granted such that the trial was scheduled for this date, the father then sought adjournments via various means, including an application to the Appellate Division, Third Judicial Department, for a stay. Three days prior to trial, he sought to withdraw his petition, claiming that because an investigation of alleged child neglect was to be conducted by the Washington County Department of Social Services, apparently upon his complaint against the mother, there was no need for a trial on his petition to modify the divorce judgment. This Court notified the father in writing that he could not unilaterally discontinue the proceeding and that the signatures of the attorneys for the mother and child would be required for the discontinuance pursuant to CPLR Rule 3217(a)(2). The father continues to insist that he can unilaterally discontinue this modification proceeding, one of his grounds being that the CPLR does not apply to Family Court proceedings, a position that is in error. "Where the method of procedure in any proceeding in which the family court has jurisdiction is not prescribed by this act, the procedure shall be in accord with rules adopted by the administrative board of the judicial conference or, if none has been adopted, with the provisions of the civil practice act to the extent they are suitable to the proceeding involved"(FCA §165[a]). No such stipulation of discontinuance was filed with the clerk of this Court.
The father failed to appear for trial this date, while the mother, her counsel, and the attorney for the child appeared and indicated readiness to proceed. Both attorneys requested dismissal of the petition with prejudice.
"An existing custody order will be modified only if there is a showing of a change in circumstances revealing a real need for the modification in order to ensure the best interests of the children (see Matter of Griffin v. Griffin, 18 AD3d 998, 999, 795 N.Y.S.2d 367 [2005]; Redder v. Redder, 17 AD3d 10, 12-13, 792 N.Y.S.2d 201 [2005]; Matter of Scialdo v. Kernan, 14 AD3d 813, 814, 788 N.Y.S.2d 473 [2005]; Matter of Tavernia v. Bouvia, 12 AD3d 960, 961, 785 N.Y.S.2d 187 [2004]; Matter of Gregio v. Rifenburg, 3 AD3d 830, 831, 770 N.Y.S.2d 490 [2004])" (Mathis v. Parkhurst, 23 AD3d 923, 923-924, 805 N.Y.S.2d 155, 156 [3d Dept., 2005]; see, also, Thompson v. Thompson, 267 AD2d 516, 517-518, 699 N.Y.S.2d 181, 183 [3d Dept., 1999]; Peck v. Bush, 35 AD3d 1118, 1118-1119, 826 N.Y.S.2d 496, 497 [3d Dept., 2006]). "It is only when this threshold showing has been made that Family Court may proceed to undertake a best interest analysis (see Matter of Griffin v. Griffin, supra at 999, 795 N.Y.S.2d 367)" (Meyer v. Lerche, 24 AD3d 976, 977, 807 N.Y.S.2d 151 [3d Dept., 2005]; see, also, Kerwin v. Kerwin, 39 AD3d 950, 951, 833 N.Y.S.2d 694, 695 [3d Dept., 2007]). Moreover, "[a] parent who seeks a change in custody is not automatically entitled to a hearing but must make some evidentiary showing sufficient to warrant a hearing" (Teuschler v. Teuschler, 242 AD2d 289, 290, 660 N.Y.S.2d 744 [2d Dept., 1997]; see, also, Grassi v. Grassi, 28 AD3d 482, 482-483, 812 N.Y.S.2d 638, 639 [2d Dept., 2006]; Gerow v. Gerow, 257 AD2d 718, 719, 682 N.Y.S.2d 481, 482 (3d Dept., 1999] ["petitioner's conclusory and unsubstantiated assertion that 'she is capable of unsupervised visitation outside of respondent's home and in the presence of [her] boyfriend' falls far short of the evidentiary showing required to trigger a hearing on this issue"]).
The father here is a sad and sympathetic figure who is convinced he is the victim of a vast conspiracy by the mother, lawyers, and a biased and incompetent judiciary in New York and Connecticut. He is so fixated and consumed by his perception of being unjustly victimized that he is both unable and unwilling to accept statutory and case law with which he disagrees. For instance, he refuses to acknowledge the statutory provisions of the UCCJEA (DRL §75[2], §77-b, §77-l), enacted in 2001, and the Parental Kidnapping Prevention Act (PKPA) (28 U.S.C.A. §1738A), enacted in 2000, requiring full faith and credit to be afforded to custody orders of other states. Notably, his opposition to recognition of the Connecticut divorce judgment is contradicted by his own voluntary filing of a petition to register that judgment in New York, a petition which was granted without dispute by the mother or the attorney for the child.
He is also convinced that the divorce judgment's custody provision limiting his visitation to the mother's discretion and initiation is tantamount to an outright prohibition against his exercise of any visitation whatsoever. However, on its face, the divorce judgment's visitation provision does not prohibit or preclude the father's visitation, nor does it require that his visitation occur under supervision or a therapeutic setting, limitations which are more restrictive and which are legally appropriate when such will serve the best interests of the child (see, e.g., Lane v. Lane, 68 AD3d 995, 892 N.Y.S.2d 130 [2d Dept., 2009]; Sinnott-Turner v. Kolba, 60 AD3d 774, 875 N.Y.S.2d 512 [2d Dept., 2009]; Khan v. Dolly, 39 AD3d 649, 833 N.Y.S.2d 608 [2d Dept., 2007]).
Despite his numerous filings and requests, the father has never stated or alleged facts which, if true, indicate that the mother has prevented or refused to allow any contact or visitation between the father and children. There is no order of protection of which this Court is aware — a circumstance confirmed by counsel this date — which prevented the father from contacting the mother to request or arrange for visitation. Nor has the father alleged that the mother rebuffed or otherwise denied any such efforts. No facts have been alleged in any of the father's filings with this Court which, if true, would establish an abuse of discretion by the mother in scheduling visits, establishing the length or frequency of visits, or imposing unreasonable restrictions or circumstances under which visits would occur. There is simply nothing in the record here indicating that the mother has in any way interfered with the father's visitation with the child.
Also, as to the father's request for joint custody, there is nothing to indicate that the father and mother each "possess a desire to share in the upbringing of their children and have demonstrated a willingness and ability to set aside their personal differences and work together for the good of their children (see, Juneau v. Juneau, 206 AD2d 647, 648, 614 N.Y.S.2d 615)" (Palmer v. Palmer, 223 AD2d 944, 945, 637 N.Y.S.2d 225, 226-227 [3d Dept., 1996]). Indeed, joint legal custody is appropriate only where there are "relatively stable, amicable parents behaving in mature civilized fashion (see, e. g., Dodd v. Dodd, 93 Misc 2d 641, —, 403 N.Y.S.2d 401, —, Supra; Bodenheimer, pp. 1010-1011)" (Braiman v. Braiman, 44 NY2d 584, 589-590, 407 N.Y.S.2d 449, 451, 378 N.E.2d 1019, 102 [1978]). Thus, "joint custody is inappropriate where the parties are so acrimonious, embattled and embittered as to effectively preclude joint decisionmaking (see, Braiman v. Braiman, 44 NY2d 584, 589-590, 407 N.Y.S.2d 449, 378 N.E.2d 1019)" (Palmer v. Palmer, supra., at 945, 637 N.Y.S.2d at 226), or "are unable to cooperate or communicate with each other in a harmonious fashion (see Braiman v. Braiman, 44 NY2d 584, 589—590, 407 N.Y.S.2d 449, 378 N.E.2d 1019 [1978])" (Lopez v. Robinson, 25 AD3d 1034, 1036, 808 N.Y.S.2d 494, 496 [3d Dept., 2006]). Having observed both parties interact, the father's questioning of the mother at the June 26, 2017 hearing, and based upon the father's demeanor towards and allegations against the mother, it is difficult to imagine any credible evidence that could be presented which would justify an award of joint legal custody here.
"While generally an evidentiary hearing would be necessary concerning a modification of a prior custody determination (see, Matter of Oliver S. v. Chemung County Dept. of Social Servs., 162 AD2d 820, 821, 557 N.Y.S.2d 729; Greenblatt v. Van Deusen, 87 AD2d 713, 714, 448 N.Y.S.2d 888), no hearing is required when 'the information before the court enables it to undertake a comprehensive independent review of the child's best interest' (Matter of Oliver S. v. Chemung County Dept. of Social Servs., supra, at 821-822, 557 N.Y.S.2d 729; see, Matter of Goldman v. Goldman, 201 AD2d 860, 861, 862, 608 N.Y.S.2d 533)." (Davies v. Davies, 223 AD2d 884, 886-87, 636 N.Y.S.2d 232, 234 [3d Dept., 1996]).
This Court attempted to afford the father the opportunity to present evidence in support of his modification petition. His desire to withdraw that petition because child protective services may be conducting an investigation of the mother based upon his allegation that she has isolated the child from him reveals that his real motivation is some sort of punishment of the mother rather than a good faith effort to engage in and foster a relationship with his daughter. Moreover, even if a neglect proceeding were to be commenced and result in a finding of neglect, the disposition of that case would not necessarily include an award of custody or visitation to the father, particularly since, among other things, there would first have to be conducted an investigation of the father (FCA §1017), and a determination by the court that placement of or contact between the child and the father is in the child's best interests.
After hearing the arguments of counsel this date, consideration of the father's requests to withdraw his petition, and after a comprehensive review of all of the information developed throughout all of the proceedings between the parties in this state, it is the determination of this Court that the modification petition and this proceeding be and the same hereby is discontinued with prejudice pursuant to CPLR Rule 3217(b) on the following conditions and terms:
1. Upon the filing of any future petition or pleading by the father, Paul A. Boyne, with a court of this state having jurisdiction, seeking to enforce, modify, invalidate or otherwise affect the custody provisions of the 2007 Connecticut divorce judgment between the parties, and prior to any final determination thereof, the father, Paul A. Boyne, shall submit to and cooperate fully with a neutral forensic psychological evaluation to be conducted by either Capital Psychological Associates, 4 Atrium Drive, Suite 340, Albany, New York, or Brayton Psychological Services, 92 Bay Street, Glens Falls, New York, and a report thereof is filed with the said court; and
2. The assignment of John K. Oswald, Esq. as the attorney for the child shall continue until the child attains the age of majority; and
3. In any future proceeding involving a requested modification of the custody provisions of the 2007 Connecticut divorce judgment, the threshold issue and question of a requisite change of circumstances shall be determined based only upon evidence of circumstances arising after this date.
It is so ordered .
ENTER
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Richard B. Meyer , J.F.C.