Opinion
Docket No. V-00125-17/22D
06-12-2024
In the Matter of a Proceeding for Custody/Visitation Under Art. 6 of the Family Court Act Emily F., Petitioner, v. Victor P., Respondent.
Karen M. Jansen, Esq. Law Office of Karen M. Jansen Attorney for Petitioner Victor P. Self-Represented Respondent Sara Bovill, Esq. Children's Law Center Bronx, NY 10451 Attorney for the Child
Karen M. Jansen, Esq. Law Office of Karen M. Jansen Attorney for Petitioner
Victor P. Self-Represented Respondent
Sara Bovill, Esq. Children's Law Center Bronx, NY 10451 Attorney for the Child
HON. JESSICA I. FLORES, A.J.S.C.
INTRODUCTION
Before this Court is a petition filed by Emily F. (hereinafter the mother) in February of 2022, seeking to modify a final order of custody and visitation issued by the Family Court on October 26, 2017 (hereinafter the final order of custody and visitation), to allow the mother to relocate the child, V.P. Jr., (D.O.B. XX XX, 2013) from New York to North Carolina over the father's objection. This matter is before this Court on remittal from the Appellate Division for a new fact-finding hearing. Upon further proceedings and careful consideration of the mother's testimony and documentary evidence, this Court grants the petition, finding that the child's relocation to North Carolina is in the best interests of the child.
PROCEDURAL HISTORY
The final order of custody and visitation, issued on consent, awarded sole legal and physical custody to the mother, and awarded parenting time to the father pursuant to a schedule. While the instant petition was pending, the mother relocated to North Carolina with the child. Thereafter, the Family Court held a fact-finding hearing. By decision and order dated September 6, 2022, the Family Court denied the petition finding that the mother failed to prove that relocating the child to North Carolina was in the child's best interests. The Family Court, inter alia, directed the mother to return the child to New York to reside with the father unless the mother relocated back to New York by a specified date. Thereafter, the mother appealed and moved to stay enforcement of the decision and order dated September 6, 2022.
By orders entered on November 15, 2022, and April 20, 2023, the Appellate Division granted the mother's motion and stayed enforcement of the decision and order dated September 6, 2022, pending a determination on the appeal. By the same orders, the Appellate Division further ordered that the father shall have parenting time during all school breaks and long weekends, and daily telephone or video calls with the child. Subsequently, the Appellate Division reversed the decision and order dated September 6, 2022, and remitted the matter for a new fact-finding hearing to determine whether the relocation to North Carolina is in the best interests of the child (see Matter of Emily F. v Victor P., 219 A.D.3d 1187, 1188 [1st Dept 2023]). The Appellate Division ordered that the child was permitted to remain in North Carolina and that the father shall have parenting time, inter alia, during all the school breaks and extended weekends along with daily telephone calls and video calls, until a determination on the new fact-finding hearing.
Upon remittal, the mother, the father, and the attorney for the child appeared before this Court.The father informed this Court that he was going to represent himself, and that he did not consent to the child's relocation to North Carolina. The father also informed this Court that he was going to attend all further proceedings, but that he would not participate in the fact-finding hearing.The attorney for the child informed this Court that she was not requesting an in-camera interview of the child.
On February 20, 2024, this Court held a fact-finding hearing solely on the issue of whether the child's relocation to North Carolina is in the best interest of the child, wherein only the mother testified and submitted documentary evidence.This Court notes that the father, although present during the fact-finding hearing, did not cross-examine the mother and did not present any testimonial or documentary evidence on his behalf.
FINDINGS OF FACT
The parties were previously married and resided together in Bronx County between 2013 and 2016. The mother testified that they separated in 2016 due to incidents of domestic violence.
Since the mother's unilateral decision to relocate to North Carolina in June 2022, the mother and the child have continuously resided there. The mother currently lives in a house with the child, her fiancé, and another child who is not the subject of the instant petition. The mother described the house as having three-bedrooms and two bathrooms located within a gated community which has a pool, a playground, and a gym in the common premises. The child has his own bedroom. The mother currently leases the house with an option to purchase it. When the mother resided in New York, she was employed by New York University as a program coordinator from October 2013 through September 2020. Due to budget cuts stemming from financial loss during the COVID-19 pandemic, the mother was laid off from her employment on September 1, 2020. A letter from New York University, in evidence, shows the mother's last date of employment was September 1, 2020. Based on her tax return for 2020, in evidence, the mother earned $55,807.00. Upon becoming unemployed, she applied to 65 positions at colleges and universities in New York. Although the mother had several interviews, she did not receive any offers of employment. After approximately nine months of searching for employment in New York, the mother began to search for employment in North Carolina. She believed North Carolina is a state with an appealing job market since there are several prestigious colleges and universities in that state. The mother also stated that another factor prompting her to search for employment in North Carolina was that she has relatives there, namely her mother and other maternal relatives. According to the mother, the majority of her employment applications were for positions in New York.
While the mother was unemployed, she continued to be financially responsible for paying rent, utilities, other household expenses, and her private student loan. Based on her tax return for 2021, in evidence, the mother received $36,204.00 in unemployment compensation. The mother also testified that her unemployment compensation terminated in 2021, and thereafter, she began to receive monetary assistance and SNAP benefits from a government agency.
In February of 2022, the mother received an employment offer from Duke University in North Carolina. According to the mother, despite this offer, she continued to search for employment positions in New York from February 2022 through June 2022, but she did not receive any responses. At some point, she accepted the employment offer in North Carolina and relocated with the child at the end of June 2022. The mother began her new employment in June 2022.In September of 2022, her salary was $56,925.00, based on a letter in evidence from Duke University. At the time of the fact-finding hearing, according to the mother, her salary was $59,700.00. The mother enrolled herself in a doctoral program in another university, which will increase her salary if she receives a doctoral degree.
The child is currently in the fifth grade, and according to the mother, is performing well in his current school in North Carolina. The child participates in a tutoring program after school, which provides assistance to fifth grade students as a reinforcement for students that have good grades. The child participates in athletic activities and has formed friendships with other children in his neighborhood. The mother opines that based on a report from U.S. News and World Report, the school that the child will be attending in the upcoming school year is highly ranked. The mother summarized that while she and the child were living in New York, she was not doing well financially, and that the child is thriving in North Carolina.
Between June 2022 and September 2022, the mother and the child travelled to New York every two weeks for the father's parenting time. The mother also stated that when the child had a school break during Thanksgiving and Christmas of 2022, she offered to bring the child to New York for the father's parenting time. However, the father did not exercise his parenting time during that Thanksgiving school break because he did not want to force the child to travel to New York. In addition, the father did not exercise his parenting time during that Christmas school break, telling the mother that he would instead arrange to travel to North Carolina. However, the father never went to North Carolina. During the school break of January 2023, the mother brought the child to New York for the father's parenting time. Later in February 2023, the father travelled to North Carolina and had parenting time with the child at the beginning of the month and at the end of the month. The father also had parenting time with the child in New York in April 2023 during the Easter school break. The father did not see the child during the Memorial Day school break in 2023, even though the mother offered that time as parenting time.
According to the mother, the father did not have parenting time with the child during the summer in 2023. The mother explained that in June 2023, she conveyed to the father that the child wanted to spend time with him, but she did not receive a response from the father. A week after conveying her message, the mother followed up with the father. The father responded by providing a copy of a message from his attorney. The father also conveyed to the mother that she needed to consult with her attorney.According to the mother, although the father travelled to North Carolina in August of 2023 when his daughter, who lives North Carolina, gave birth, the father did not visit the child. Further, the father did not exercise his parenting time during the Thanksgiving and Christmas holiday of 2023 because he preferred to let the child decide what the child wanted to do during these holidays. The mother testified that since June 2022 to the present time, the father has communicated with the child mostly by text messaging, as opposed to telephone calls, except for approximately five video calls.
According to the mother, the child wants to continue spending time with the father. She believes she has encouraged a relationship between the child and the father.
As part of her petition, the mother proposed that the father have parenting time in New York during every spring break and every month of July, and offered to be financially responsible for the child's travel expenses for this portion of the parenting time schedule. The mother proposed that the child spend every Thanksgiving and Christmas holiday with her. In addition, the mother proposed that the father can have additional parenting time as long as there was prior communication. The mother stated that daily communication between the child and the father is important but that the father should initiate the contact instead of letting the child decide.
The mother stated that she has been the primary caretaker for the child since birth, and that she has always helped the child with homework and attended parent-teacher conferences. The child was current with his annual physical and dental examination for 2023. According to the mother, the father never accompanied the child to a dental or medical appointment, or to a parent-teacher conference when the child lived in New York.
The mother also stated that the father has other relatives that live in North Carolina, namely an older daughter from a prior relationship and a newly born grandson. The father's older daughter lives two hours away from where the mother resides.
The attorney for the child did not have any inquiries for the mother and did not present a case. Through his attorney, the child expressed his preference for the relocation and also expressed that he wants to continue spending time with the father during school breaks.
LEGAL ANALYSIS
"A parent seeking to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child's best interests" (Quinn v Quinn, 134 A.D.3d 688, 689 [2nd Dept 2015]).When considering whether a custodial parent established that a proposed relocation would serve the child's best interests, the court should consider "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" (Matter of Tropea, 87 N.Y.2d 727, 740-741 [1996]). "The question of a child's relocation out of state necessarily requires 'due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child'" (Matter of Michael B. v Latasha T.-M., 166 A.D.3d 480, 482 [1st Dept 2018] quoting Matter of Tropea v Tropea, 87 N.Y.2d at 739).
Where a Family Court's findings "are based almost entirely on its assessment of the credibility of witnesses, and, in particular, the character of the parents, 'its findings must be accorded the greatest respect'" (Matter of Oscar S. v Joyesha J., 149 A.D.3d 439, 439 [1st Dept 2017] quoting Matter of Elissa A. v Samuel B., 123 A.D.3d 638, 639 [1st Dept 2014]).
As an initial matter, this Court notes that during the fact-finding hearing, the mother requested an award maintaining sole legal and physical custody of the child to her, as part of her relief. This branch of her application is moot based on the Appellate Division's reversal of the order dated September 6, 2022, wherein the Appellate Division noted that the Family Court should not have sua sponte changed the award of sole legal and physical custody to the mother. Therefore, this Court notes that upon said reversal, the provision of the final order of custody and visitation awarding the mother sole legal and physical custody of the child remains in effect.
Turning to the merits of the mother's petition, this Court finds the mother's testimony credible (see Matter of Oscar S. v Joyesha J., 149 A.D.3d at 439). This Court also exercises its discretion and draws a negative inference against the father based on his failure to testify or otherwise participate in the fact-finding hearing (see Matter of Commissioner of Social Servs. v Philip De G., 59 N.Y.2d 137, 141 [1983]; Matter of McGovern v McGovern, 58 A.D.3d 911, 915 [3rd Dept 2009]).
This Court finds that the mother established by a preponderance of the evidence that the child's relocation to North Carolina serves the child's best interests. Based on the evidence adduced at the fact-finding hearing, the mother was unsuccessful in obtaining employment in New York, and the relocation to North Carolina was, for the most part, precipitated by economic necessity (see Matter of Louis B. v Jennifer L., 186 A.D.3d 1146, 1147 [1st Dept 2020]; Matter of Kevin McK. v Elizabeth A.E., 111 A.D.3d 124, 132 [1st Dept 2013]). Based on the mother's testimony, she was unemployed for one year and five months before she received the offer of employment in North Carolina, and her initial effort was concentrated on finding employment solely in New York. Furthermore, even after the mother received the offer of employment in North Carolina, she continued to apply for positions in New York, but without any success. The mother also established that her life, as well as the child's life, have been economically and emotionally enhanced by the relocation since the mother is now employed, and the mother and child have family support and a comfortable living arrangement (see Matter of Monique J. v Keith S., 187 A.D.3d 500, 501 [1st Dept 2020]; Matter of Karen Michelle F. v Wilfredo C., 116 A.D.3d 561, 561 [1st Dept 2014]; Matter of Kevin McK. v Elizabeth A.E., 111 A.D.3d at 127). By way of example, immediately prior to relocating, the mother was receiving unemployment compensation, followed by monetary assistance and SNAP benefits from the Department of Social Services. In terms of the living conditions, immediately prior to relocating to North Carolina, the mother and the child were living in an apartment, which the mother shared with her friend and that friend's children, as a means of sharing household expenses. In contrast, in North Carolina, the mother and the child live in a house with ample space in which the child has his own bedroom and there are recreational amenities onsite. The mother has enrolled herself in a doctoral program with the prospect of obtaining better salary opportunities. Although the mother did not present any evidence as to whether the child's access to good education in North Carolina is more advantageous than in New York, this Court gives weight to the mother's testimony that the child is performing well in school in North Carolina, as indicated by his report card and awards, which are in evidence.
In considering the quality of the relationship between the child and the mother, the record shows that the mother has been the child's primary caretaker (see Matter of Louis B. v Jennifer L., 186 A.D.3d 1146, 1147 [1st Dept 2020]). The mother has always made, and continues to make, arrangements for the child's education, medical and dental care, and other day-to-day decisions, whereas the father never attended parent-teacher meetings, medical or dental appointments while the mother and child lived in New York.
This Court also finds that although the relocation has reduced the father's parenting time, since the father previously had parenting time on alternate weekends and holidays were shared, the parenting time proposed by the mother, in evidence, will not deprive the father of having a meaningful relationship with the child (see Matter of Carmen G. v Rogelio D., 100 A.D.3d 568, 569 [1st Dept 2012]; Matter of Alaire K.G. v Anthony P.G., 86 A.D.3d 216, 221-222 [1st Dept 2011]; Matter of Banks v DeLeon, 174 A.D.3d 598, 600 [2nd Dept 2019]).Furthermore, "[w]here the proposed move will provide economic, emotional and educational benefits for the child, relocation may be appropriate even where it will disrupt the frequency of visits between the child and the noncustodial parent" (Matter of Kevin McK. v Elizabeth A.E., 111 A.D.3d 124, 132 [1st Dept 2013]; Matter of Jamee Bennett G. v John Nicolaas B., 200 A.D.3d 413, 414 [1st Dept 2021]). Based on this Court's review of the parenting time proposed by the mother, it affords the father with parenting time in New York during each spring school break and summer during the month of July, and it requires the mother to pay the travel expenses for the child during this portion of the parenting time. The proposed schedule also provides the father with parenting time in North Carolina during the child's other school breaks, extended school weekends, and certain holidays. This Court also considers that the mother has not interfered with the father's ability to maintain a meaningful relationship with the father since the relocation (see Matter of Kevin McK. v Elizabeth A.E., 111 A.D.3d at 132), and has instead encouraged communication between the father and the child (see Matter of Alaire K.G. v Anthony P.G., 86 A.D.3d at 221), including efforts of accommodating the father's cancellations of parenting time.
The record illustrates that since the relocation to North Carolina, the father has exercised his parenting time on only three of the nine school breaks and long weekends that were available from November 2022 through December 2023, despite having the right of parenting time on all of the child's school breaks and long weekends. This Court also notes that since the relocation to North Carolina, the father communicates with the child predominantly by text messaging as opposed to telephone calls or video calls. In sum, the parenting time set forth herein will allow for the father and the child to continue to have a meaningful relationship, should the father choose to exercise his parenting time.
Although the wishes of the child are not controlling (see Melissa C.D. v Rene I.D., 117 A.D.3d 407, 408 [1st Dept 2014]), this Court gives weight to the child's preference to remain in North Carolina (see Matter of Louis B. v Jennifer L., 186 A.D.3d 1146, 1147 [1st Dept 2020]; Matter of Caravella v Toale, 78 A.D.3d 828, 828 [2nd Dept 2010]).
While the mother testified that there was a prior history of domestic violence between her and the father, causing their relationship to end in 2016, the mother's testimony does not demonstrate that there is an ongoing concern of continued domestic violence or other safety issues. Therefore, this Court will not take into consideration the prior domestic violence history in the instant relocation request.
Lastly, living in North Carolina will provide the child with an opportunity to continue growing up with his half-sibling (see Matter of Alaire K.G. v Anthony P.G., 86 A.D.3d at 221; Matter of Smith v Bonvicino, 50 A.D.3d 806, 807 [2nd Dept 2008]).
CONCLUSION
After considering the totality of the circumstances, it is hereby
ORDERED that the mother's petition seeking to modify the final order of custody and visitation dated October 26, 2017, to allow her to relocate the child to North Carolina is granted; and it is further
ORDERED that this order shall supersede all prior orders relating to custody and parenting time; and it is further
ORDERED that the mother shall have sole legal and physical custody of the child. The mother shall, however, inform the father in writing of any major decisions related to the child; and it is further
ORDERED that the father's parenting time shall be as follows:
Parenting Time In New York
Summer
The father shall have parenting time with the child in New York each summer during the month of July for a minimum of two (2) weeks and a maximum of four (4) weeks, in accordance with the child's academic calendar. The father shall notify the mother no later than May 1st of each year, in writing, as to which weeks he intends to exercise the summer parenting time. If the father does not notify the mother of his intentions by the designated date, then the father's summer parenting time shall be permitted at the mother's discretion, taking into consideration the child's wishes and any previously planned summer activities. The mother shall be responsible for the child's travel expenses between North Carolina and New York, and for transporting the child between North Carolina and New York during this portion of the parenting time.
Spring Break
The father shall have parenting time with the child in New York each Spring Break, in accordance with the child's academic calendar. The father shall notify the mother no later than March 1st of each year, in writing, that he intends to spend this time with the child. If the father does not notify the mother of his intentions by the designated date, then the father's parenting time shall be permitted at the mother's discretion, taking into consideration the child's wishes and desires and any previously planned spring break activities. The mother shall be responsible for the child's travel expenses between North Carolina and New York, and for transporting the child between North Carolina and New York during this portion of the parenting time.
Parenting Time In North Carolina
The father shall be permitted to have parenting time with the child in North Carolina, including overnight access, as mutually arranged and agreed in advance between the parties, in writing, upon at least ten (10) days' notice by the father to the mother. The father's parenting time in North Carolina may include portions of three (3) day school weekends, school recess periods, and holidays (not including Christmas Day or Thanksgiving Day, unless mutually agreed upon, in advance, in writing) in accordance with the child's academic calendar. The father may, where feasible, bring the child to activities that he participates in when the father is in North Carolina, as well as to visit the father's extended family who reside in North Carolina. The father shall be required to ensure that the child's school and extracurricular obligations are met during any parenting time in North Carolina.
Transportation
The mother shall be responsible for transportation arrangements for the child between North Carolina and New York during parenting time with the father. The father shall be responsible for transportation arrangements and costs for any parenting time he exercises in North Carolina.
Telephone/Facetime
The father may telephone/Facetime/text the child daily during reasonable hours. The mother shall ensure that the child's cell phone and iPad are made available to him so that the father can maintain communication with the child. It shall be the father's responsibility to initiate this daily communication. However, the child shall also be permitted to communicate with the father as he so chooses via telephone/Facetime/text messages. The mother shall be entitled to reasonable daily telephone/Facetime/text communication with the child while the child is in the father's care; and it is further
ORDERED that each parent shall be entitled to have independent access to all information and all documents, records and reports from any physician, or other health care provider; hospital; dentist; orthodontist; psychologist; psychiatrist; teacher consultant or specialist; school; organization, or other institution that the child attends. Each parent shall sign releases or other documents necessary and/or required to permit the other parent to have access to the aforesaid information and providers. The parties have an independent obligation to obtain information directly from the child's health, education, and welfare providers, and to provide them with their respective addresses and telephone numbers to which notices pertaining to the child may be sent; and it is further
ORDERED that the parties shall keep each other informed of their current telephone number(s) and shall provide advance notice to the other parent, in writing, of changes to same; and it is further
ORDERED that if either of the parties has any knowledge of any illness or accident or other circumstances affecting the child's health or general welfare, the father or mother, as the case may be, will promptly notify the other parent of such circumstances; and it is further
ORDERED that neither parent shall speak disparagingly to each other in the child's presence, nor shall either parent speak disparagingly about the other parent to the child at anytime; and it is further
ORDERED that the parties shall exert every reasonable effort to maintain free access and unhampered contact between the child and each of them, and to foster a feeling of affection between the child and the other parent. Neither parent or their respective family members, significant others or friends shall do anything which may estrange the child from the other parent or his/her family members, or injure the child's opinion of the other parent or his/her family members, or hamper the free and natural development of the child's love and respect for the other parent or his/her family members. Neither parent, nor any of their family members, shall act in any manner or say anything which in any manner will be detrimental to the child's well-being.
This constitutes the decision and order of this Court.