Opinion
V-0000-00/00A
08-27-2020
In the Matter of a Proceeding Under Article 6 of the Family Court Act D.D., Petitioner, v. R.M., Respondent.
Sari Friedman, Esq., and Jennifer Moran, Esq., represented the Petitioner. Karen Charrington, Esq., represented the Respondent and Patricia Sokolich, Esq., was the attorney for the child.
Sari Friedman, Esq., and Jennifer Moran, Esq., represented the Petitioner.
Karen Charrington, Esq., represented the Respondent and Patricia Sokolich, Esq., was the attorney for the child.
Conrad D. Singer, J.
The following papers were read on this Motion:
Respondent's Notice of Motion and Supporting Papers 1
Affirmation of Attorney for the Children in Opposition to Petitioner's Emergency OSC and in Support of Respondent's Notice of Motion 2
Petitioner's Affidavit in Opposition to Respondent's Motion to Dismiss 3
Respondent's Affirmation in Reply and in Support 4
Before the Court in this custody and parenting time proceeding is the motion filed by the father, R.M. ("respondent" or "father"), which seeks an Order: 1) dismissing the Emergency Order to Show Cause filed June 1, 2020, by the petitioner mother, D.D. ("petitioner" or "mother") and; 2) ordering the resumption of the father's overnight visits and; 3) directing make-up parenting time for him. The Attorney for the Child ("AFC"), filed an affirmation in support of the father's Motion to Dismiss. The petitioner filed an affidavit in opposition to the respondent's Motion to Dismiss and the respondent filed an affirmation in reply. The respondent's Motion to Dismiss is determined as follows:
On June 1, 2020, the mother filed a petition by Order to Show Cause for an Order which: modifies the terms of the parties' prevailing custody and parenting time Order, pending the hearing and determination of the matter, to suspend or limit the father's parenting time to supervised parenting time.
In her petition, the mother attests that such relief is necessary on an emergency basis to ensure their children's best interests. She contends that the father continues to allow his paramour to be present during his parenting time with the children, in spite of the Temporary Order of Protection ["TOP"] issued by this Court on April 30, 2020, which requires the respondent's paramour to, inter alia , "stay away from any home, structure, and building in which the children are located while the children are in that home, structure or building".
The mother contends that on May 28, 2020, the respondent not only allowed his paramour to be present during his parenting time, but he also specifically asked the parties' children to lie to their mother to cover up the violation of the TOP. (Petition in Support of D.D. , dated May 29, 2020, ¶¶ 2, 13). The mother seeks an immediate order suspending the father's parenting time or, in the alternative, limiting his parenting time to be supervised by an agreed upon supervisor. (Petition in Support of D.D. , dated May 29, 2020, ¶ 4).
The father's Motion to Dismiss includes sworn affidavits from both the father and from his paramour, E.J. ("Ms. J."). Both the father and Ms. J. expressly deny the allegation that Ms. J. violated the TOP. The father asserts that Ms. J. "was not present around the children on May 28, 2020, nor any other day". (Affidavit in Support of Motion to Dismiss and in Opposition by R.M. , dated July 1, 2020 ["M. Aff. in Support of Motion to Dismiss"], ¶ 6). The father further contends that he "would never ask [the] children to lie or attempt to bribe". (M. Aff. in Support of Motion to Dismiss , ¶ 8). The father requests the Court's intervention to order the resumption of his overnight parenting time and to order make-up parenting time for him. (M. Aff. in Support of Motion to Dismiss , ¶ 11).
Ms. J. likewise asserts that she has "never done anything to [the parties'] children." (Affidavit in Support of Motion to Dismiss of E.J. , dated July 1, 2020 ["J. Aff. in Support of Motion to Dismiss"], ¶ 3). She further contends that she has stayed away from the children and that she has obeyed the TOP since it was issued by the Court on April 30, 2020. (J. Aff. in Support of Motion to Dismiss , ¶ 5). She denies that she was home on May 28, 2020, the date in question. (J. Aff. in Support of Motion to Dismiss , ¶ 6).
The father's counsel argues that the Court must determine, first, whether the underlying allegations supporting the mother's family offense petition against Ms. J. are true, and second, whether Ms. J. violated the TOP, before it considers modifying the father's parenting time. (Affirmation in Support of Karen H. Charrington, Esq. , dated July 1, 2020 ["Charrington Aff. in Support of Motion to Dismiss"], ¶ ¶ 7-8). Counsel for the respondent further asserts that the mother has engaged in self-help and has canceled the father's court-ordered overnight visits with his children since May 29, 2020. (Charrington Aff. in Support of Motion to Dismiss , ¶ 19).
The AFC states in her Affirmation in Support that the children rely upon and join in the father's Motion to Dismiss papers in all respects. (Affirmation of Patricia A. Sokolich in Opposition to Petitioner's Emergency Order to Show Cause and in Support of Respondent's Notice of Motion , dated July 21, 202 0 ["Sokolich Aff. in Support of Motion to Dismiss"], ¶ 7). She asserts that, based on interviews with the children, and on her interactions with the father and Ms. J., she believes the father cares for and loves his children and the allegations attributed to Ms. J., until proven, should not be cause for the Court to restrict the father's time with the children. (Sokolich Aff. in Support of Motion to Dismiss , ¶ 9).
The mother contends in opposition to the father's Motion to Dismiss that subsequent to filing the subject Order to Show Cause she learned of another violation of the TOP on June 2, 2020, when the children returned home from their evening visit with the father and again indicated that Ms. J. was present in the home during his parenting time. (Affidavit in Opposition of D.D. , dated July 20, 2020 ["D. Aff. in Opp."], ¶ 2).
She further contends that the father's criticizing of her withholding overnight parenting time is a "thinly veiled attempt to distract the Court from his own misconduct", which consists of his "continued facilitation of the violation" of the TOPs put in place to protect the children from Ms. J. (D. Aff. in Opp. , ¶ 4). She urges the Court to disregard the unsworn letters and notes submitted by the father in support of his Motion to Dismiss. (D. Aff. in Opp. , ¶ 6). She denies the assertion that her allegations regarding Ms. J.'s alleged mistreatment of the children and the father's facilitation thereof represent her efforts to bolster her relocation application. (D. Aff. in Opp. , ¶ 15).
In the father's reply papers, his counsel argues that the mother's opposition papers are "a mere regurgitation of her allegations made within her affidavit" and that "no findings or determinations have been made by this Court" as to whether there was any violation of any TOP issued by this Court or whether any mistreatment of the children has taken place. (Affirmation in Reply and in Support of Karen Charrington, Esq. , dated July 30, 2020 ["Charrington Aff. in Reply"], ¶ 4).
Counsel further argues that the mother's petition, based upon allegations that the father assisted his paramour in violating the terms of the TOP, is premature and improper. [Charrington Aff. in Reply , ¶ 6]. Counsel further argues that the mother has failed to satisfy the evidentiary threshold for establishing a change of circumstances warranting a hearing on her modification petition. (Charrington Aff. in Reply , ¶ ¶ 10—11).
"The paramount concern in any custody determination is the best interests of the child[ren], under the totality of the circumstances". (Matter of Tecza v. Alija , 138 AD3d 872, 873 [2d Dept. 2016] ; Matter of Kadyorios v. Kirton , 130 AD3d 732, 733 [2d Dept. 2015] ). A parent seeking to modify an existing custody arrangement is not automatically entitled to a hearing. Rather, "he or she must make an evidentiary showing of a change in circumstances demonstrating a need for a change in custody in order to insure the child's best interests. (Matter of Feliciano v. King , 160 AD3d 854, 855 [2d Dept. 2018], leave to appeal dismissed in part, denied in part , 31 NY3d 1131 [2018] ).
In this case, the mother's petition filed by Order to Show Cause seeks to modify the parties' prevailing custody and parenting time arrangement to either suspend the father's parenting time with the children or limit his parenting time to supervised parenting time. The asserted basis for such modification is his alleged complicity in and/or his facilitation of his paramour's violation of a TOP which requires her to stay away from any home, structure or building while the parties' children are in that home, structure or building.
Ordering the suspension of parenting time is only appropriate under very limited circumstances, as "[a] noncustodial parent should have reasonable rights of visitation, and the denial of those rights to a natural parent is a drastic remedy which should only be invoked when there is substantial evidence that visitation would be detrimental to the child". (Matter of Fitzgerald v. Fitzgerald , 172 AD3d 713, 714 [2d Dept. 2019] ; Matter of Cervera v. Bressler , 90 AD3d 803, 806 [2d Dept. 2011] ). Likewise, "supervised visitation is appropriately required only where it is established that unsupervised visitation would be detrimental to the child". ( Matter of Tecza , supra , 138 AD3d at 873 ).
The Court finds that the mother's modification petition is based exclusively on unproven allegations of misconduct and potentially abusive conduct by Ms. J. toward the children. The Court further finds that the allegations set forth in the mother's petition accompanying her Order to Show Cause do not constitute "extraordinary circumstances" warranting this Court's issuance of an emergency temporary custody order suspending or limiting the father's parenting time to supervised parenting time prior to the final determination of such allegations. (See Posporelis v. Posporelis , 41 AD3d 986, 988 [3d Dept. 2007] ; see also Matter of Long v. Scism , 143 AD2d 95, 95 [2d Dept 1988] ["As a general rule, it is error as a matter of law to make an order respecting custody based on controverted allegations, without having had the benefit of a full hearing in order to resolve those factual issues which develop from conflicting affidavits"] ). The Court takes this opportunity to remind the mother that she should not engage in self-help and that she is fully required to comply with all terms of the prevailing custody and parenting time order unless and until a further order is issued by the Court.
However, the Court finds that the mother's modification petition goes beyond alleging mere conclusory allegations; rather, she asserts that on a specific day the father facilitated his paramour's violation of a Temporary Order of Protection, the terms of which this Court modified to specifically prohibit her from remaining in any structure, home or building while the children were located therein. In light of the conflicting affidavits submitted by all parties on this issue, and although mindful of the AFC's position that the mother's modification petition should be dismissed and the children's best interests would be served by substantial parenting time with the father, the Court finds that a full evidentiary hearing is necessary on all of the parties' outstanding petitions, including this most recent modification petition. (Matter of Cervera v. Bressler , 64 AD3d 533, 536 [2d Dept. 2009] ). This Court did not preside over the parties' divorce proceedings culminating in their prevailing custody order and, although the Court has had occasion to observe the parties' demeanors and behaviors during court conferences, the Court lacks sufficient relevant information to assist it in making an informed and provident determination as to the children's best interests. (Matter of Kadyorios v. Kirton , 130 AD3d 732, 733-734 [2d Dept. 2015] ).
The father's request for the ordering of make-up parenting time is denied, subject to his right to establish the mother's withholding of parenting time sessions at the future fact-finding proceedings. The mother is, however, ordered to immediately comply with all custody and parenting time provisions and is advised that instances of self-help which are established at a forthcoming fact-finding may cause this Court to find that the mother is not likely to facilitate the father's relationship with the children, and such finding could negatively impact her application to relocate with the children.
Accordingly, it is hereby:
ORDERED, that the father's Motion to Dismiss is denied, except for that portion of the motion requesting the immediate resumption of overnight parenting time; and it is further
ORDERED, that the mother shall comply with all custody and parenting time provisions in the parties' prevailing custody order, including provisions granting the father overnight parenting time with the children; and it is further
ORDERED, that all other requests for relief not addressed herein are deemed denied.
This constitutes the Decision and Order of the Court.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.