Opinion
Index No. 365195/2022
12-15-2023
B.T., Plaintiff, v. M.T., Defendant.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 122, 124, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 180 were read on this motion to/for CUSTODY & VISITATION.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 123, 125, 176, 177, 178, 179, 181 were read on this motion to/for CUSTODY & VISITATION.
Upon the foregoing documents, it is
INTRODUCTION
Plaintiff Father is seeking sole legal custody and primary residential custody of the minor child, and a parenting coordinator by way of motion sequence 002. Defendant Mother is seeking an appropriate parenting time schedule by way of motion sequence 003. The Court consolidated the two motions to be heard together through its September 5, 2023 Interim Order.
BACKGROUND
Courts tasked with handling disputes about custody, visitation and parental access are often required to make orders setting a temporary access schedule pending further information and further proceedings. Indeed, where a case commences with disagreement between the parties as to an access schedule, the Court may need to order an immediate and temporary schedule and cannot wait until trial to do so. Inaction would be a failure on the part of the Court. Nor can the Court allow one parent or the other to dictate what the schedule should be until such time that a trial is held.
It is also common and necessary practice that such orders are updated, reconsidered and changed throughout the case based on additional information provided to the Court through experts, Court Ordered Investigations, Attorneys for the Children, and sometimes based on information learned directly from the parties. Other times it is necessary to update orders to address changes in school schedules or activities, work schedules of the parents, or to divide school vacations, holidays or the Summer. Positive reports following supervised visits after a certain period of time may result in an interim order of unsupervised access. The Court may determine these interim schedules over the objection of one of the parties. The foregoing examples are not meant to be an exhaustive list, and it would be impossible to create an all-encompassing list that captures the everchanging lives of children and parents, and the many unique scheduling issues that each individual family may face, which Courts must decide on a temporary basis in advance of a trial or hearing.
It is neither legally required nor practical to hold a hearing each time the Court considers and makes minor modifications to schedules or expands one parent's time. It would be functionally impossible and impractical to have a hearing every time the Court learns new information necessitating a change to temporary access orders. Indeed, requiring a hearing for every minor change would shut down our already overburdened Courts.
It is of fundamental importance for each parent to have close and frequent connection to their children, particularly where as here, the child is two and one-half years old and both parents and the child will form life-long bonds in these early years. When considering access, Courts often promote equal time for parents unless there are factors and circumstances which demonstrate such a schedule is not in the best interest of the child.
In this case, there has never been an order of custody or temporary access order issued by the Court. These motions were filed in September 2023, and on September 5, 2023 pending further briefing on the motions and further proceedings, the Court issued an interim order on the motion setting forth an interim access schedule. Then, following another conference on the motions, on November 15, 2023, the Court issued another interim order on the motion which slightly expanded the father's time with the subject child.
During the conferences on the motions, no concerns were raised about the safety of the child in either party's care, and no significant reasons were provided to limit the father's access. The greatest concerns raised in the motion papers relate to the mother, including her having absconded with the child to Michigan. Earlier in this action, following oral argument on or around August 10, 2022, this Court had to issue a Writ of Habeas Corpus directing the Defendant to return the subject child to New York. The Court is also concerned with the mother's consistent opposition to expanded access for the father and her objecting to any minor change to the parenting access schedule (consisting of two additional overnights and two additional dinner visits a month). This demonstrates to the Court her inability to facilitate a relationship between the Plaintiff and the child.
Although the November 15, 2023 interim order was intended to last less than 30 days, as the parties were to be heard on December 11, 2023, the mother filed a notice of appeal and sought a stay at the Appellate Division. On December 5, 2023, a single Justice issued a stay of the November 15, 2023 order and referred the stay request to a full panel. Further proceedings in this action and on these motions were not stayed by the Appellate Division.
HEARING AND ARGUMENTS
Although a hearing is not required for the Court to issue a temporary parental access schedule, particularly where no prior order or agreement exists, on December 11, 2023, this Court heard argument on the motion and conducted a hearing on the issue of temporary access. The Court heard sworn testimony from each of the parties and generally credits their testimony.
Similar to the motion papers and the prior conferences on the motion, no safety concerns or other factors were raised that the Court found warranted curtailing the father's time or allowing the mother to control or dictate what the temporary schedule would be.
To the extent concerns were raised in the testimony, they primarily related to the issue of legal custody which was not the subject of the hearing. In particular, the Court heard about conflict and communication issues between the parties as well as concerns about the mother's stance on routine vaccinations for the child.
The arguments that were made before the court seem to conflate custody and access. Both parties have demonstrated that there exists challenges to coparenting which again, should and will be considered when determining custody, specifically decision making. The parties both admit that they have had issues coming together regarding matters associated with medical vaccinations as well as introducing the child to new partners.
The mother argues that a hearing is always necessary to issue a temporary access schedule or in order to modify the "status quo." However, there is no legal status quo and no prior orders of custody or access have been issued. The mother erroneously relies on cases which concern modification of a final order of custody (see e.g. Matter of Lela G. v Shoshanah B. , 151 AD3d 593 [1st Dept 2017] ). She cites Carlin v. Carlin ( 53 AD3d 559, 560 [2nd Dept. 2008]), but does not refer to the cite in its entirety. In that case, the Court stated:
As a general rule, while temporary custody may be properly fixed without a hearing where sufficient facts are shown by uncontroverted affidavits, it is error as a matter of law to make an order respecting custody, even in a pendente lite context, based on controverted allegations without having had the benefit of a full hearing" (see Coon v. Coon , 29 AD3d 1106, 1109, 814 N.Y.S.2d 781 ; Hizme v. Hizme , 212 AD2d 580—581, 622 N.Y.S.2d 737 ; Robert C.R. v. Victoria R. , 143 AD2d 262, 264, 532 N.Y.S.2d 176 ; Biagi v. Biagi, 124 AD2d 770, 508 N.Y.S.2d 488 ).
There have been no controverted issues raised in the affidavits or during the limited hearing regarding the child's safety or the parties’ parenting abilities. Additionally, the child is only two and one-half years old, and even prior to Court intervention there has not been sufficient time to truly develop a status quo.
The mother's counsel also argued to the Court that once an interim order on a motion is issued, the Court cannot modify it without a hearing. In other words, counsel argues that once an interim order is issued the Court cannot decide the motion in manner that deviates from its own interim order. Yet, by their very nature interim orders on a motion last only until such time as the Court issues another interim order, or a Decision on a motion. Similarly, interim relief granted on the face of an Order to Show Cause is without question subject to later change by the Court either in subsequent interim orders or upon determination of the motion. Thus, there is no basis to require a change in circumstances between the time an interim order is issued and final order is issued on the motion. In sum, counsel's argument has no merit.
The Court considered all the arguments raised and many factors in determining the access schedule, including the mother's concerns that she lives on the [Upper Manhattan], that the mother deemed herself the primary residential parent, which she has been, without the father's consent, that the child's pre-school is on the [Upper Manhattan] and the father lives in [Downtown Manhattan], and the father's work schedule.
Following consideration of the arguments and testimony, the Court finds that significant time with both parents is in the best interest of the child. Specifically, the father shall have access on every Wednesday overnight, on alternate weekends from Friday night to Monday morning, and on alternate Thursday overnights, as directed below. The parties shall also equally share or alternate all holidays, school breaks, vacations and summer time periods.
The parties may modify this temporary schedule on mutual consent in writing.
It is hereby;
ORDERED , that all interim orders issued on these motions are hereby vacated; and it is further
ORDERED , commencing on the date of this Order the Plaintiff Father shall have parenting time with the child every Wednesday from 6:30pm until Thursday morning at school (or 9:00am if school is not in session), and alternating weekends from Friday at 6:30pm until Monday morning at school (or 9:00am if school is not in session); and it is further;
ORDERED, commencing on the date of this Order, that following the Defendant Mother's weekend with the child, Plaintiff Father shall have parenting time with the child Wednesday from 6:30pm until Thursday morning at school (or 9:00am if school is not in session). Plaintiff shall pick up and drop off the Child at the Defendant's residence; and it is further
ORDERED, commencing on the date of this Order, that following the Plaintiff's weekend with the child, Plaintiff Father shall have parenting time with the child Wednesday from 6:30pm until Friday morning at school (or 9:00am if school is not in session); and it is further
ORDERED , that the parties shall equally share or alternate all holidays, school breaks, vacations and summer time periods; and it is further
ORDERED , on consent that the Parties shall engage with a Parenting coordinator; and it is further
The issue of custody is referred to trial and all other relief sought is denied.
This constitutes the Decision and Order of this Court.