Opinion
07-07-2022
Janelle Dunn, Petitioner, v. Anthony Harris, Respondent.
Unpublished Opinion
Scott A. Miller, J.
Petitioner Janelle Dunn (hereinafter "the mother") and Respondent Anthony Harris (hereinafter "the father") are the parents of the subject child Renee Dunn-Harris (date of birth: XX/XX/2020) (hereinafter "the child") . This is a proceeding pursuant to Article 6 of the Family Court Act. This action commenced with the mother's filing of a Petition for Modification of a prior custody and visitation order by Order to Show Cause on April 7, 2022. Within her papers, the mother sought sole legal custody and permission to relocate to Denver, Colorado. On April 15, 2022, the father filed an Enforcement Petition. On April 20, 2022, the father filed an Affidavit in Opposition to the mother's Order to Show Cause. On June 21, 2022, the mother filed a second Order to Show Cause, again seeking permission to relocate to Denver, Colorado, but this time for a different job than was first presented to the Court. On June 29, 2022, the father filed an Affidavit in Opposition to the mother's second Order to Show Cause.
The names of the parties and the subject child have been fictionalized to preserve anonymity. Certain proper names have been removed for the same reason.
An evidentiary hearing was conducted by the Court on July 1, 2022. The mother was represented by Attorney Sujata Ramaiah, the father was represented by Attorney Suzanne Reine, and the child was represented by Attorney Thomas Shannan of Citizens Concerned for Children, Inc. Petitioner's Exhibit 1 as well as all exhibits attached to the mother's Order to Show Cause filed on June 21, 2022, were received into evidence. Respondent's Exhibits A through D and F through I were received into evidence. The court heard testimony from both parties.
The Court searched the statewide registry of orders of protection, the Sex Offender Registry, and the Family Court's child protective records, and notified the parties and the attorneys of the results of these searches.
FINDINGS OF FACT
The Court found the father to be credible in every respect. He is a loving and devoted parent who is committed to developing his relationship with his daughter. He is ready, willing, and able to take on as much care and responsibility for the child as he is allowed. He is also supportive of the mother's relationship with the child. By contrast, the Court did not find the mother to be credible in significant areas of her testimony such as her stated intentions for seeking relocation, her belief that the father committed domestic violence against her in the past, and her characterization of how important decisions regarding the child have been made. The Court finds that the mother has excluded the father from all decision-making, that she does not value the relationship between the father and the child, and that she seeks long-distance relocation to sever the growing bond between father and daughter.
The current Order of Custody and Visitation, entered on December 14, 2021, after a limited fact-finding hearing, granted the parties joint legal custody, with the parents having a "duty to communicate fully and work cooperatively with each other on essential and important decisions. However, if they cannot agree after a good faith effort the mother shall have final decision-making authority." (Order of Custody and Visitation entered December 14, 2021). The Order further grants the mother primary placement, with the father to have liberal and regular visitation with the child. As long as the father child-proofed his outlets, ensured a safe bed for the child, purchased child utensils and cups, immediately made efforts to obtain his full driver's license, and immediately purchased a car seat, the father was to have one 24-hour overnight visit per week beginning March 1, 2022, and he was to have two 24-hour overnight visits per week beginning June 1, 2022. (Order of Custody and Visitation entered December 14, 2021).
The mother violated this Order by refusing to allow the father to begin overnight visitation on March 1, 2022, as ordered, despite the father having complied with all prerequisites. The father was only able to begin exercising his overnight visitation on May 1, 2022, following the filing of his Enforcement Petition on April 15, 2022, and following the initial appearance in this matter on April 25, 2022, during which the Court cautioned the mother that," overnights need to be followed per the order."
Immediately upon (delayed) commencement of the father's overnight visitation, the mother again violated the Order by unreasonably interfering with the father's parenting time. She informed the father that, per the Order, she is permitted to twice interrupt the father's overnight parenting time to breastfeed the two-year-old child, both before bed and again in the morning. Nowhere in the Order is this provision to be found, and this Court never issued such an order. If the mother truly believed that the two-year-old child required breastmilk during her 24-hour visit with the father, the mother could have provided the father with pumped breastmilk. She did not. (Respondent's Exhibit I). As such, the Court can only conclude that the mother is intentionally interfering with the parental bond between the father and the child.
The mother has consistently treated the father with arrogance, accusation, and palpable disdain. Her hostile treatment of the father is revealed by text messages submitted by both parties. (Order to Show Cause filed June 21, 2022, Exhibit H; Respondent's Exhibit D, F, G, I). The mother's text messages to the father have a combative, interrogative, almost abusive tone. Through her treatment of the father, the mother has revealed not only that she is unwilling to foster the father's relationship with the child but also that she is intentionally thwarting it.
Although there is no currently pending family offense petition, the mother previously filed a family offense petition against the father. The family offense petition was never litigated and was instead settled on consent with no admission of wrongdoing under a final, non-harassing order of protection against the father in favor of the mother issued on December 9, 2021, and expiring December 9, 2022. In the instant evidentiary hearing, the mother testified about her prior domestic violence allegations. The Court did not find the mother to be credible. Her descriptions were rushed and vague. She testified that, in the weeks and months following the child's birth, the mother would "try to have private moments and breastfeed [her] daughter" but that the father "would be there." She testified, "I would have to go hide myself. He would get frustrated. I would get frustrated. I had to lock myself in the bedroom so we could nurse in peace. [The father] kept bothering me. He would try to put the child on [my breast] to latch. What would be helpful would be to stay calm." On one occasion, the child was crying. The mother testified that the father "grabbed" the child out of the mother's arms and also at some point "grabbed" the mother's arm. As a result, the mother called the Cornell University Police Department and obtained an order of protection against the father. This was the basis for the mother's family offense petition against the father. This was the extent of the mother's allegations of domestic violence by the father.
Again, while there is no currently pending family offense petition, the Court finds that the father never committed domestic violence against the mother as the mother's evidence fails to establish by a preponderance that the father committed a family offense against her at any time. The mother was not credible. Even assuming her testimony to be true, she did not meet her evidentiary burden of proving that the father's physical contact with her or the child was done with the intent to "harass, annoy, or alarm." In fact, there is every indication that the father was trying to help resolve a difficult situation for the new parents and their crying baby. It is clear that the mother has levied false allegations of domestic violence against the father for over two years in an effort to sabotage his relationship with the child. As the father does not pose a danger to the mother or child in any way, there is no support in the record for the currently pending Address Confidentiality Order.
Recently, on April 16, 2022, the mother again called the police on the father when he unknowingly failed to comply with her last-minute change in the pick-up location following a visit. The mother was aware that the child was safe directly across the street at the paternal grandmother's home and that the father simply did not see the mother's text message sent less than 30 minutes prior. The mother's actions subjected the two-year-old child to police contact for no legitimate purpose.
The mother obtained her master's degree in higher education and student affairs leadership from the University of Northern Colorado in 2017. From 2017 until February of 2022, the mother worked as a residence hall director at a residential college at Cornell University. Although offered a full-time position for $42,00 per year, the mother opted for a part-time position that paid her $33,000 per year. As part of her employment, the mother and the child received free room and board within the residential hall on the Cornell campus. Additional compensation included free utilities, free internet, and a free partial meal plan.
The mother voluntarily resigned from this position in February of 2022 because "the requirements of [her] work were increasing and it was jeopardizing [her] breastfeeding time." She testified that, even if she wanted to, she would not have been permitted to extend her employment at Cornell past June 1, 2022.
Since quitting her position at Cornell in February of 2022, the mother has been "applying [herself] to the gig industry," working as a driver/runner for Uber, Uber Eats, and Instacart. She currently works four to five hours, two days per week. She and the child lived with a colleague from February until June of 2022 and are currently residing in temporary extended-stay lodging. The mother's internet access was recently shut off. By her own sworn statement, the child is now living in "poverty" in her care. (See Order to Show Cause filed June 21, 2022, at ¶ 5). The Court finds that the direness of the mother's current financial situation is partially of her own doing since she chose to leave her position at Cornell four months early without first securing comparable employment, and since doing so, she has chosen to only work eight to ten hours per week in the "gig industry."
The mother began searching for employment in Denver in January of 2022. However, despite the order of joint custody, the mother left the father completely out of the loop that she was applying for jobs in Colorado. This is not co-parenting. She gave the father no opportunity to give input or perhaps begin his own job search in Colorado. The father first learned of the mother's original job offer in Denver when the mother filed her modification petition in April of 2022.
The mother was subsequently offered a different position with the Denver Public Schools with a starting annualized base salary of $69,000 and anticipated start date of July 13, 2022. (Order to Show Case filed June 21, 2022, Exhibit A). If permitted to relocate, the mother and child would live in a home owned by the maternal grandmother. (Order to Show Case filed June 21, 2022, Exhibit E). The mother would pay $1500 per month towards the mortgage. No testimony was given as to the cost of other necessities such as utilities. No testimony was given as to the cost of living in Denver, Colorado as compared to the cost of living in Ithaca, New York.
The mother has not secured any form of childcare in Denver while she plans to work full-time - nor has its cost been assessed or factored into any of the above calculations - but she cites numerous relatives and friends who live in the area as a support system. (Order to Show Cause filed June 21, 2022, Exhibit D). The mother's closest support, the maternal grandmother, however, resides in Georgia and has no concrete plan for moving to Colorado.
While the exhibit states that each person is a "family member," the mother testified at the hearing that only the individuals with last name "E." are blood relatives.
In previous litigation, the mother sought permission to relocate to Georgia for an anticipated position with an aerospace corporation. Although the Court permitted the mother to temporarily relocate to Georgia with the child, the order became moot when the mother was not ultimately offered the position. This is now the mother's third request to this Court to relocate with the child out-of-state, including the original job offer with Denver Public Schools. (Order to Show Cause filed June 21, 2022, Exhibit B). The Court finds that the mother has not exhausted - or even adequately explored - other employment opportunities available to her in this area such as other positions at Cornell University or positions at Ithaca College, Tompkins Cortland Community College, SUNY Cortland, SUNY Binghamton, Syracuse University, University of Rochester, or Rochester Institute of Technology.
The father received his four-year degree from Ithaca College in 2013. Prior to the Covid-19 pandemic, he was employed with a child daycare center in Ithaca. His position was terminated when the center shut down due to the pandemic. The father then began working as a Covid-19 contact tracer until February of 2022 when the New York State Department of Health decided that contact tracers were no longer needed. The father was again out of work, through no choice of his own, for approximately three months until he secured his current position as an Assistant Camp Director for a children's summer camp in Ithaca. While he was laid off, he could not keep up with his child support obligations and fell behind by about $2,000. He is currently paying his weekly obligation plus arrears. He is actively seeking alternative employment with the Ithaca City School District for when this current seasonal position ends.
If permitted to relocate, the mother proposes two weeks of visitation in Denver and two weeks of visitation in Ithaca for the father each year, totaling 28 days per year. This is a drastic change from the approximate 104 days per year that he receives under the current order. The mother proposes that the parties split the cost of travel for these visits. Given the financial situation of both parties, semi-annual travel between Denver and Ithaca - no matter how the cost is divided - is simply not feasible. Further, given the mother's multiple failures to comply with the current Order, the Court has no confidence that the mother would abide by the ordered visitation.
The father shares a close and loving relationship with his daughter. Numerous pictures of the child with the father and the father's relatives were received into evidence as Respondent's Exhibit A. The father leases a two-bedroom condominium in which he has resided for two years. The child has her own bedroom which includes a princess bed. The father has all necessities for the child in his home. The father has completed Parents Apart and a Parenting Skills Workshop. (Respondent's Exhibit H).
The father grew up in Ithaca and has numerous close relatives that reside here including his mother, father, brother, grandmother, and many aunts and uncles. The father's aunt is a certified daycare provider with a bachelor's degree in early childhood, and she is available to provide childcare for the child if needed. Outside of his formal employment, the father is a vocalist and drummer, and he participates in community events. The father is deeply rooted in his church in Ithaca, and he brings the child there to take part in music and other children's activities. He is a certified wilderness first aid instructor, and he enjoys exploring nature with his daughter. He reads to her, helps her with her speech, and plays with her.
The Court had the opportunity to observe the child for several hours in the courtroom during the evidentiary hearing. The child appeared equally happy and comfortable with both parents. She never once appeared unhappy or uncomfortable in the father's care and never demanded to be returned to the mother.
Although the mother testified that she and the father made decisions together as to the child's medical care, educational plans, and diet, the Court finds that the mother made these decisions unilaterally and then demanded the father's compliance. Specifically, due to her "faith," the mother has refused to allow the child to receive any of the basic vaccinations recommended by the Centers for Disease Control and Prevention and the American Academy of Pediatrics (e.g., Hepatitis A and B, Measles/Mumps/Rubella, Diphtheria/Tetanus/Pertussis, Pollio, etc.) and has persisted in her refusal despite the repeated urging of the child's pediatrician that the child receive these life-saving immunizations. (Respondent's Exhibit C). Not only does this put the child in danger of contracting dangerous and deadly diseases, but it also prevents her from attending public schools and summer camps where she would benefit from crucial interaction with other children her age. The mother instead plans to home school the child, testifying that out-of-home daycare and education are also contrary to her "faith."
The mother did not expound about what "faith" she follows or how allowing the child to receive immunizations would go against it.
Notwithstanding the father's devotion to his faith and church community, the father is also devoted to the child's health and well-being, and he is in agreement with the child's pediatrician that the child receive all recommended vaccinations. (Respondent's Exhibit C). He also desires that the child attend public schools and summer camps, just as he did growing up. The father has been understandably afraid to voice his position on these issues to the mother. He reasonably fears that the small amount of time he has only recently begun to enjoy with this daughter will be withheld if he opposes the mother. The father testified, "My opinion wasn't valued or asked or respected." Under the current Order of Custody and Visitation entered December 14, 2021, the parties have joint legal custody, with the mother to have final decision-making authority in the event they cannot agree after a "good faith effort." The Court finds the mother has not engaged in a "good faith effort" to make decisions jointly with the father as required by the Order.
The mother seeks permission to relocate 1,600 miles to Colorado for a position where she would oversee the before-school and after-school program for eight public schools in the Denver area, yet the mother would not permit the child to attend those very programs. Not only is this ironic but it calls into question the mother's genuine and long-term commitment to the proposed position with the Denver Public Schools.
Both parents feed the child a plant-based diet. However, the mother further restricts the child's diet by not allowing her to consume dairy products. The mother "believes" the child is lactose intolerant though the child has never been tested for or diagnosed with lactose intolerance by a medical professional. The mother insists that the father likewise deprive the child of milk products, and he has complied with her demands to the best of his ability despite two slip-ups - one with mashed potatoes and the other with a wayward quesadilla scrap for which the mother harshly reprimanded the father. (Order to Show Cause filed June 21, 2022, Exhibit J).
CONCLUSIONS OF LAW
The Court of Appeals has held that, "the courts should be free to consider and give appropriate weight to all of the factors that may be relevant to the determination [of relocation]. These factors include, but are certainly not limited to each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements. In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child's best interests." Matter of Tropea v. Tropea, 87 N.Y.2d 727, 740 (1996). See also Thomas SS. v. Alicia TT., 2022 NY Slip Op. 04213 (3rd Dept. 2022).
Although this was not the final fact-finding hearing, the Court has heard enough evidence to make a decision as to an appropriate interim order on this short notice request. While each party will still be permitted to present further evidence at a full fact-finding hearing, based upon the evidence presented at the hearing, it appears unlikely that the mother will be able to meet her burden under Tropea. The mother's primary motivation for seeking relocation is to sever the growing bond between the father and the child. Her contemptuous treatment of him, failure to include him in decision-making, failure to follow this Court's orders, intentional interference with his parenting time, and repeated attempts to relocate out-of-state support this conclusion. It is clear from the Court's own observations during the hearing that the father has developed a close and loving relationship with his daughter. The mother's proposed move 1,600 miles away would have a devastating impact on that relationship with no way to adequately preserve it. The mother's proposal for 28 days of visitation per year reduces the father's current parenting time by nearly 75%. Given the financial situation of both parties, even semi-annual travel between Denver and Ithaca is simply not feasible. Even if the mother and child's economic situation would be somewhat improved by the move, it would not be outweighed by the detrimental impact on the father-daughter relationship. Further, the Court finds that the child's emotional development would not be enhanced by the move as the child has just as many - if not more - relatives in Ithaca on her father's side of the family as she does in Denver on her mother's side of the family. The child's educational development would likewise not be enhanced by the move since the mother plans to home school the child no matter where they reside. All factors considered, the Court would likely determine after a full fact-finding hearing that the proposed relocation would not serve the child's best interests, and as such, the mother's request to temporarily relocate is denied.
Further, the mother has put custody in issue with the filing of her modification petition seeking sole custody. An" existing custody order will be modified only when the party seeking modification demonstrates a sufficient change in circumstances since entry of the prior order to warrant modification thereof in the child's best interest (see Matter of Peck v. Bush, 35 A.D.3d 1118 [2006]). Indeed, 'it is only when this threshold showing has been made that Family Court may proceed to undertake a best interest analysis' (Matter of Meyer v. Lerche, 24 A.D.3d 976, 977 [2005])." Matter of Kerwin v. Kerwin, 39 A.D.3d 950, 951 (3rd Dept. 2007). This Court would likely find that there has been a significant change in circumstances since issuance of the Order of Custody and Visitation entered December 14, 2021, in that the mother has repeatedly violated the Order by failing to make decisions jointly with the father, failing to allow overnights when mandated, and failing to allow the father to exercise his parenting time by inserting herself into the visits to breastfeed the child. Her hostile communication with the father and clear desire to move the child far away from the father also support this finding, which will ultimately require the Court to engage in a best interests analysis.
"'[T]he overriding consideration in determining custody is always the best interests of the child' (Matter of Eck v. Eck, 33 A.D.3d 1082, 1083, 822 N.Y.S.2d 651 [2006]; see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451, N.Y.S.2d 658, 436 N.E.2d 1260 [1982]). This assessment must be based on a careful analysis of all the circumstances, including 'maintaining stability for the child[ ], the child[ ]'s wishes, the home environment with each parent, each parent's past performance and relative fitness, each parent's ability to guide and provide for the child[ ]'s overall well-being and the willingness of each to foster a positive relationship between the child[ ] and the other parent' (Matter of Grant v. Grant, 47 A.D.3d 1027. 1028-1029. 849 N.Y.S.2d 341 [2008], quoting Matter of Kilmartin v. Kilmartin, 44 A.D.3d 109, 1102, 845 N.Y.S.2d 466 [2007])." Schneider v. Lascher, 72 A.D.3d 1417 (3rd Dept. 2010).
Again, while this was not the final fact-finding hearing, the Court has heard enough evidence to determine that modification of the current order is necessary and is in the child's best interests. The present joint legal custody arrangement is not feasible at this time, and it is in the best interests of the child that the arrangement be modified. The parents will continue to share joint legal custody, but now it will be the father who shall have final decision-making authority if the parents are unable to come to an agreement, as he is the only parent at present who is willing to foster the child's relationship with the other parent. The father has demonstrated his fitness as a parent, has maintained stability for the child, has maintained safe and stable housing even through two unforeseen lay-offs, and has demonstrated the ability to guide and provide for the child's overall well-being. In addition, it is this Court's determination that, at present, the child's best interests require the father to have final decision-making authority as to obtaining medically recommended vaccinations for the child. See Soper v. Soper, 203 A.D.3d 1162 (2nd Dept. 2022) (upholding the Family Court's award of sole decision-making authority to the father with regard to the children's medical care where the mother refused to consent to the children receiving vaccinations recommended by their pediatricians, leading the youngest child to be prohibited from attending school); see also Matter of L.N. v. V.V., 67 Misc.3d 1208 (A) (Family Court, Kings County, 2019) (awarding final decision-making authority to the mother, including whether to vaccinate the child, where the father opposed recommended vaccinations). While the mother certainly has been the primary caregiver to the child, and the mother and child have a close and loving bond, for all the reasons set forth above, the father's parenting time shall also be increased.
The Attorney for the Child supports temporary relocation. (AFC's letter dated July 5, 2022). However, it must be noted that the child is too young to express her own wishes, and as such, the AFC's position does not and cannot reflect the child's wishes. Additionally, the Attorney for the Child is not empowered to determine the credibility of the parties; this is solely the province of the trial court. Once credibility determinations are factored in, it is apparent that the best interests of the child necessitate that relocation be denied at this time if there is to be any hope of preserving and fostering the relationship between the father and the child. The Court is convinced that, based upon the mother's record of interfering with the father's relationship with the child, a relocation at this time will only further cause irreparable harm to the child and will likely permanently sever any chance of a relationship between the father and daughter.
The mother's effort to relocate is far too premature. The Court strongly urges the mother to begin demonstrating that she is willing and able to foster and facilitate the relationship between the father and child here in Tompkins County, especially if she intends to pursue this or any future relocation request. As such it is hereby
ORDERED that the mother and father shall share joint legal custody of the child. The parents have a duty to communicate fully and to work cooperatively with each other on essential and important decisions. However, if they cannot agree after a good faith effort, the father shall have final decision-making authority; and it is further
ORDERED that the mother shall have primary placement of the child four (4) out of every seven (7) days per week; and it is further
ORDERED that the father shall have parenting time with the child three (3) out of every seven (7) days per week; and it is further
ORDERED that during the pendency of this Interim Order, each parent shall have sole decision-making authority with respect to the child's daycare/babysitting arrangements during the respective parent's parenting time with the child; and it is further
ORDERED that the parents shall make a good faith effort to agree upon a 4-3 weekly parenting schedule, but if the parents are unable to agree, the parents shall follow a 2-2-2-1 weekly schedule (i.e. 2 days mother, 2 days father, 2 days mother, 1 day father schedule); and it is further
ORDERED that any and all clarifications, modification, changes, edits, or alterations to the parenting schedule must be clearly and unambiguously agreed to by both parents in writing; and it is further
ORDERED that the mother is not permitted to relocate with the child outside of Tompkins County, New York; and it is further
ORDERED that the mother is not permitted to remove the child from Tompkins County or contiguous counties without the prior written permission from the father or the Court; and it is further
ORDERED that if the mother removes or attempts to remove the child from Tompkins County or contiguous counties without the prior written permission from the father or the Court, the Court will view it as a willful violation of this Order likely to result in sanctions; and it is further
ORDERED that the mother is not permitted to interrupt the father's parenting time to breastfeed the child. The mother may provide the father with pumped breastmilk if she so chooses, however she is not required to do so; and it is further
ORDERED that the father shall promptly schedule an appointment with the child's pediatrician to discuss the benefits and potential risks of the child obtaining all vaccinations recommended by the Centers for Disease Control and Prevention and the American Academy of Pediatrics. If the father decides that the child should receive her vaccinations, the child shall receive said vaccinations notwithstanding any objection by the mother. The father shall create a schedule of appointments with the pediatrician for this purpose. The father shall promptly notify the mother of all appointments, and both parties shall ensure that the child attends all scheduled appointments to receive all vaccinations approved by the father; and it is further
ORDERED that the father shall promptly schedule an appointment with the child's pediatrician and/or any medical professional to which the pediatrician refers him for the child to be tested for lactose intolerance; and it is further
ORDERED that the currently pending Address Confidentiality Order is hereby vacated; and it is further
ORDERED that in regulating their own behavior, the parties shall consider the following "rights of a child whose parents are separated (adapted from the Parent's Handbook of the New York State Parent Education and Awareness Program - 2016):
1. The right not to be asked to "choose sides" between their parents. 2. The right not to be told any details of the legal proceedings going on between their parents. 3. The right not to be told "bad things" about the other parent's personality or character. 4. The right to privacy when talking to the other parent on the telephone. 5. The right not to be interrogated by one parent about the other parent. 6. The right not to be asked to carry messages between parents. 7. The right not to be asked by one parent to tell the other parent untruths. 8. The right not to be used as a confidant regarding adult matters. 9. The right to express feelings, whatever those feelings may be. 10. The right to choose not to express certain feelings. 11. The right to be protected from parental "warfare." 12. The right not to be made to feel guilty for loving both parents.