Opinion
2019006996
10-20-2020
Zachary HARRISON, Plaintiff, v. Tomica HARRISON, Defendant.
Leah Tarantino Cintineo, Esq., Attorney for Plaintiff, Rochester, New York Lawrence J. Krieger, Esq., Attorney for Defendant, Rochester, New York Matthew Fero, Esq., Attorney for the Child, Rochester, New York
Leah Tarantino Cintineo, Esq., Attorney for Plaintiff, Rochester, New York
Lawrence J. Krieger, Esq., Attorney for Defendant, Rochester, New York
Matthew Fero, Esq., Attorney for the Child, Rochester, New York
Richard A. Dollinger, J.
Determining where a child resides when the parents have a dispute over disciplining the child and live half a continent apart is a daunting challenge for a judge. In New York, a parent seeking a change in residence needs to establish, as a threshold determination, that a preponderance of evidence demonstrates a substantial change in circumstances. Because in this matter, the credible proof fails to meet that stringent standard, the original agreed primary residence order and agreement remain in effect and the petition to change it must be dismissed.
In another context, the New York Court of Appeals noted that disputes involving where a child will reside can "present some of the knottiest and most disturbing problems that our Courts are called upon to resolve." Tropea v. Tropea , 87 NY2d 727, 736, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996).
The couple involved in this matter were divorced in Kentucky in 2014. Under the terms of the divorce agreement, the mother was designated as the primary residential parent for the young child. A modification agreement, signed by the father in 2015, re-affirmed that the child would primarily reside with his mother. The agreement stated that neither parent would "encourage the child to request a change of custody or to resist visitation or interrogate the child about the other parent." With the Kentucky Court's permission, the mother eventually moved with the child to Dallas Texas. The father, a former member of the United States military, eventually moved to New York State. The agreement between the parents created an extensive visitation opportunity for the father and included an extended period of time each summer. The father exercised his visitation on a regular basis. There is no evidence of any dispute between the parents over the visitation of the child with his father.
In June, 2019, the child, now seven years old, was sent by his mother from Dallas Texas to Rochester to engage in summer visitation with his father. The child arrived in Rochester late in the evening. The child arrived in a different environment from the single-parent household that he lived in with his mother in Texas. His father, shortly after the divorce in 2014, remarried. The father's new wife had a child, a boy who is only four months older than the child that is the subject of this proceeding. In addition, the father and his new wife had a younger daughter. All of them lived in the same household. The father's child was welcomed with open arms into this new family setting. The father, in extended testimony, described how his son quickly acclimated to his new family, developed a strong relationship with his "older brother" in the household and developed a strong affection for his younger half sister.
From the time the child was born until the summer of 2019, the child lived primarily with his mother. As other Courts have commented, a "long-term custodial arrangement established by agreement should prevail unless the custodial parent is unfit or less fit." R.M. v. C.C. , 2020 NYLJ LEXIS 1443 (3rd Dept 2020); Fox v. Fox , 177 AD2d 209, 211 (4th Dept 1992)
The father, in his testimony, criticized the mother's travel arrangements which resulted in the child arriving late in the evening on the day that the father's visitation period commenced. While the Court does not condone the late arrival, there is no evidence that the late travel impacted the child. Similarly, the father complained that the child arrived without any clothes or other items and while those omissions may be inconsiderate, they are not decisive or relevant in any determination by the Court on this application. The child was not bothered by either incident and did not complain about either event. When the therapist asked the child about the father's complaint that the child came to New York without appropriate clothes from his mother, the child brushed the complaint aside, adding: "Daddy buys me clothes and I bring them back with me."
After the child had been in Rochester for a short period of time in the summer of 2019, the father heard a disturbing report from his son. According to the father's testimony, the son told him that he had been "whooped" by his mother. According to the father's testimony, the child told him that his mother routinely "whooped" him, as often as two or three times a week. The father described that his son told him that his mother would tell the child that he was subject to discipline. The mother would then require the child to obtain a belt and when the belt was delivered to her, she would then proceed to hit the child multiple times in each separate "whooping." The child, according to the father's testimony, told the father that he was very upset by these "whoopings" and that he cried when they were administered. The father's reaction was emotional and over-whelming. The father acknowledged during his testimony that he, too, had been "whooped" as a child and he cried on the witness stand, acknowledging that such violence by a loved one made any child - and himself - feel "heart-broken and heartless."
After the father was told that his child had been hit by his mother, the father brought a petition in July, 2019 in Supreme Court seeking a change in the temporary residence of the child. There is no evidence that the father consulted with the mother about the whoopings of the child prior to filing the petition. After considering the petition, another justice of this Court granted a temporary order, changing the residence of the child and allowing the father to keep the child in Monroe County until the further order of this Court. The judge who had overseen the temporary order was reassigned and this matter was eventually referred to this Court. Meanwhile, the child was referred to a therapist in Monroe County. Before this Court could schedule the hearing, the pandemic closed the Courts and this matter was bumped back on the Court's calendar. It was not until September, 2020 that the issues underlying the petition and order granted by the Court in July, 2019, were heard before this Court. During that entire time, the child remained in Rochester, living with his father's family.
Before reviewing the merits of this application, it is undisputed that there is a difference in the two households for this child. The mother is a registered nurse. She works at a major hospital in Dallas. The mother testified that she has a system of providing daycare for the child when she is not present in the house. She also testified that she has relatives living in Texas even though they live more than an hour and a half away. The mother testified that the child had performed well in school in Texas. There is no dispute that the child had good grades and academic accomplishments in Texas. In addition, the mother reported that the child played sports and had numerous friends. It is undisputed that when the child arrived in Rochester in June, 2019 he was a fine young man. There is also no dispute about the child's life in Monroe County. He has a supportive family and his step-mother's son is almost a twin in age. His step-mother's family has grandparents and cousins nearby, he enjoys school, plays the piano and chess, participates in scouts and other activities. His local school is across the street. His father described him as a "terrific" child when he came to Monroe County and there is no doubt, after interviewing the child in a Lincoln hearing, that this Court concurs with both parents: he is a "terrific" child.
1. Subject Matter Jurisdiction
While neither litigant raised this issue before the hearing, it is unclear whether this Court has jurisdiction over this matter, which seeks to modify a Kentucky custody decree. Under undisputed facts, Kentucky no longer has "[e]xclusive, continuing jurisdiction" over the matter, because neither "the child, the child's parents, [nor] any person acting as a parent" now reside in that state (see Domestic Relations Law § 76-a ). Nevertheless, the father's application sought to "modify a child custody determination made by a Court of another state," which falls under the purview of Domestic Relations Law § 76-b. Under that section, a New York Court has jurisdiction only if it would have "jurisdiction to make an initial [custody] determination" under Domestic Relations Law § 76 (1) (a) or (b). In order to maintain jurisdiction under those subdivisions, New York must be the child's "home state," unless the child has no home state, or the home state declines to exercise jurisdiction and certain other conditions are met.
When this matter was initially presented to another supreme court judge, the child's home state was clearly Texas, not New York. There is no evidence - or even any suggestion - that Texas had declined to exercise jurisdiction over the matter. Accordingly, it would appear that Supreme Court lacked subject matter jurisdiction over the matter when it was filed. While the father did not specify the basis of jurisdiction in his initial order to show cause, this Court can only conclude that he sought to invoke the "[t]emporary emergency jurisdiction" exception to the general "home state" jurisdictional predicate, found in Domestic Relations Law § 76-c. The father's initial affidavit alleged that the child's "safety is truly at risk and he should not be sent back to reside with his mother in Texas on August 4, 2019 without further investigation by the Court and Counsel."
Under Domestic Relations Law § 76-c, if "there is a previous child custody determination that is entitled to be enforced under this article," any temporary order modifying the original determination "must specify in the order a period that the Court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction" under the normal "home state" rules. The temporary order, issued in September, 2019, contained no such provision, and so the order does not comport with the requirements of Domestic Relations Law § 76-c. Moreover, a New York court, in this factual circumstance, is only authorized to make temporary determinations under its "temporary emergency jurisdiction." The statute allows the home state of the child, which has a preeminent position in custody determinations, to make the final custody determination. Indeed, the facts in this case demonstrate the legislative wisdom in requiring that such determinations be made by the state where the child primarily resides, as essential evidence in this matter that might have shed light on the child's abuse allegations necessarily would be found in Texas, not New York.
Nonetheless, while jurisdiction under sections 76 and 76-b goes to the Court's subject matter jurisdiction and can not be waived ( Nemes v. Tutino , 173 AD3d 16, 23 [4th Dept 2019] ), the mother made no motion to dismiss on jurisdictional grounds, nor, so far as the Court can determine after reviewing all of the e-filings, did the mother raise the issue in any filed papers. Having effectively acquiesced to the jurisdiction of the Court for almost a year and a half - far longer than necessary to establish New York as the child's new "home state" - this Court concludes that it now has "home state" jurisdiction under Domestic Relations Law § 76 and can resolve the matter on the merits.
2. Impact of the Kentucky Agreement and the Law on Corporal Punishment as a Change in Circumstances
The modification agreement, signed in Kentucky, makes no reference to the discipline of the child by either parent. The agreement does not contain the words "corporal punishment." Significantly, under Kentucky law, a parent may use physical force to discipline a child. The Kentucky Supreme Court has noted:
KRS 503.110 states in relevant part that a parent is justified in using such force as the parent believes is "necessary to promote the welfare of a minor," provided, however, that the force used "is not designed to cause or known to create a substantial risk of causing death, serious physical injury, disfigurement, extreme pain, or extreme mental distress."
Staples v. Commonwealth , 454 SW 3d 803 (Kty 2014) (acknowledging a statutory recognition of a parent's right to reasonably discipline his or her child). Tucker v. Commonwealth , 2018 Ky. Unpub. LEXIS 43 (Ky 2018) (criminal abuse verdict upheld when evidence demonstrated father hit infant with belt on bare bottom, leaving marks visible and photographed the next day); Clay v. Rivera , 2020 Ky App. Unpub. LEXIS 107 (Ct. App. Kentucky 2020)(domestic violence when father struck child because the whooping was "intense enough to cause pain" and there were photographs of the bruising). Other states have adopted similar reasoning. See In re Dependency of J.G. , 2020 Wash. App. LEXIS 2280 (Wash. Ct. App. 2020) (in determining whether physical discipline is reasonable or moderate, a fact finder should consider the age, size, and condition of the child as well as the location of the injury, the nature of the misconduct, and the child's developmental level" ... any act that is "likely to cause and which does cause bodily harm greater than transient pain or minor temporary marks" is presumptively unreasonable); State v. Suchomski , 567 NE2d 1304(Ohio 1991) (a parent may not cause "physical harm" and the Court concluded a child does not have any legally protected interest which is invaded by proper and reasonable parental discipline).
Importantly, in considering the issues in this matter, the Court acknowledges that any corporal punishment utilized by the mother in this instance occurred in Texas. "Whooping" as a term describing a child's punishment by a parent dots Texas's judicial landscape. According to the Texas Education Code § 37.0011, "corporal punishment" is defined as "the deliberate infliction of physical pain by hitting, paddling, spanking, slapping, or any other physical force used as a means of discipline." V.T.C.A. Penal Code § 9.61 authorizes the use of force that is not deadly and is justified "when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare." See Ex parte Runnels , 2019 Tex. App. LEXIS 5144 (Ct. App. 12th Dist. 2019) (a parent has the duty of reasonable discipline of the child, including corporal punishment); Redacted , 2016 Tex. Dist. LEXIS 33130, p. 53 (Dist Ct, 505th Jud. Dist 2016) (open-handed spanking on the child's behind is not "corporal punishment" and is permitted in Texas). A parent's discipline in Texas only constitutes abuse if there is "mental or emotional injury to a child that results in an observable and material impairment in the child's growth, development, or psychological functioning." ( V.T.C.A., Family Code § 261.001. Definitions). The Texas Supreme Court recently denied review to a petition involving a parent's right of discipline in Texas, but two of its justices wrote in a concurring opinion that the "reasonable choice of disciplinary methods may be necessary to adequately preserve the family autonomy." In the Interest of A.M. , 2019 Tex. LEXIS 1042, at 6 Tex. 2019) (Blacklok, J. Concurring). In another context, the Texas courts "have, with increasing frequency, concluded that spanking with a belt constitutes child abuse and may be considered as a factor in terminating a person's parental rights" ( In re J.A.J. , 225 SW3d 621, affd in part, revd in part , 243 SW3d 611 [Tex 2007] ).
The V.T.C.A. Family Code § 151.001 outlines the rights and duties of a parent which includes "duty of care, control, protection, and reasonable discipline of the child" and that encompasses the practice of corporal punishment in parent-child relationships.
The concurring opinion, in a footnote, cites evidence of the on-going debate, regarding parental choices in discipline nationally and in Texas.
Compare Tracie O. Afifi et al., Spanking and adult mental health impairment: The case for the designation of spanking as an adverse childhood experience , 71 Child Abuse & Neglect 24 (2017), Benjamin Shmueli, Who's Afraid of Banning Corporal Punishment A Comparative View on Current and Desirable Models, 26 Penn. St. Int'l L. Rev. 57 (2007), and David Orentlicher, Spanking and Other Corporal Punishment of Children by Parents: Overvaluing Pain, Undervaluing Children , 35 Hous. L. Rev. 147 (1998), with National Opinion Research Center at the University of Chicago, General Social Survey (2018), https://gssdataexplorer.norc.org/trends/Gender%20 & %20Marriage?measure=spanking (finding that 66% of respondents nationally and 77% of respondents in the South, which includes Texas, responded that they either "agree" or "strongly agree" that "it is sometimes necessary to discipline a child with a good, hard spanking"), and Reuters/Ipsos, Online Poll (2014), http://polling.reuters.com/#!response/TM361Y14_1/type/smallest/dates/20140917-20141009 (finding that 68% of respondents nationally and 77% of respondents in the Southwest, which includes Texas, responded that they either "somewhat agree" or "strongly agree" that "non-excessive corporal punishment such as spanking should be allowed at home").
In the Interest of A.M. , 2019 Tex. LEXIS 1042, at 6, n.2 (Blacklok, J., concurring)
New York has taken a similar approach regarding the use of corporal punishment in the discipline of a child. Under Penal Law § 35.10 (1), a parent may use physical, but not deadly force "to the extent that [a parent] reasonably believes it necessary to maintain discipline or to promote the welfare of such person." PENAL LAW § 35.10 (1). Matter of Zana C. (Dana F.) , 171 AD3d 1045 (2nd Dept 2019) (parents possess a right to use reasonable physical force against a child to discipline or promote the child's welfare). Importantly, the justification defense under Penal Law Section 35.10 only partly sketches the landscape on which this Court must travel. In New York, any change in primary residence, such as the father seeks here, requires the Court to conclude, as a threshold matter, that a substantial change in circumstances has occurred. This Court has previously noted:
The New York Courts have also struggled in differentiating between events that constitute a change in circumstances and "common parenting issues or isolated events that do not warrant a change in custody." Lao v. Gonzales , 130 AD3d 624 (2nd Dept 2015). This Court has previously attempted to quantify the exact nature of any change of circumstances before advancing to the best interests analysis. See Schoenl v. Schoenl , 62 Misc 3d 567 (Sup.Ct. Monroe Cty 2018) (Dollinger, J.). But, as a bottom line, any alleged change must significantly improve the lives of the children or, as the Second Department intoned, implicate "the fitness of the custodial parent, or affect[s] the nature and quality of the relationship between the children and the noncustodial parent." Matter of Miedema v. Miedema , 125 AD3d 971, 971-972 (2nd Dept 2015).
Tamoutselis v. Tamoutselis , 2020 NYLJ LEXIS 824 (Sup. Ct. Monroe County) (Dollinger, J.). In this regard, the New York Courts require a delicate balancing of parental behavior and child integrity when considering whether a parent's use of a belt to discipline a child would constitute a change in circumstance warranting an inquiry whether the child's best interests would be served by a change in custody. It is undisputed that a change in circumstances may be shown through evidence that the children have been subjected to excessive corporal punishment. See Matter of Mary BB. v. George CC. , 141 AD3d 759, 761, 34 NYS3d 736 [2016] ; Matter of Terry I. v. Barbara H. , 69 AD3d 1146, 1147-1148, 892 NYS2d 685 [2010] ). Certainly "the infliction of inappropriate physical discipline" could constitute a change in circumstance ( Hagans v. Harden , 12 AD3d 972 [3rd Dept. 2004] ; see also Isler v. Johnson , 118 AD3d 1504 [4th Dept. 2014] [" ‘[T]he mother's allegations that [the father] imposed excessive and inappropriate discipline on the subject children, including corporal punishment, [were] sufficient to warrant a hearing" (Matter of Vasquez-Williams v. Williams , 32 AD3d 859, 860 [2nd Dept 2006] ; In re Gabriel J. , 100 AD3d 572 [1st Dept. 2012] ). Indeed, "[a]lthough parents have a right to use reasonable force against a child in order to maintain discipline or to promote the child's welfare, the use of excessive corporal punishment constitutes neglect" which can potentially result in loss of parental rights (Matter of In re Laequise P. , 119 AD3d 801, 802 [2nd Dept 2014] ). Moreover, "[a] single incident of excessive corporal punishment may form the basis for a neglect finding" ( In re Dylynn V. , 136 AD3d 1160, 1163 [3rd Dept 2016] quoting Matter of Dawn M. [Michael M.] , 134 AD3d 1197 ). The question for this Court in this matter becomes whether there is a preponderance of evidence that the parent's use of a belt to punish the child in this instance constitutes "excessive and inappropriate" discipline.
In New York and other states, there is no per se rule. Some New York courts have concluded that the use of a belt to discipline a child constitutes neglect (see e.g. Matter of In re Omavi A. , 68 AD3d 1463, 1464 [3rd Dept 2009] ; Matter of Danielle YY , 188 AD2d 894, 896 [3rd Dept 1992] ; In re Jayden R. , 134 AD3d 638, 638-39 [1st Dept 2015] ; Matter of In re Nurridin B. , 116 AD3d 770, 771-72 [2nd Dept 2014] ). A finding of excessive and inappropriate discipline by corporal punishment and striking a child can, standing alone or in conjunction with other factors, justify a finding of a substantial change in circumstances warranting a change in custody (see Samuel v. Samuel , 64 AD3d 920 3rd Dept. 2009] ["Most significantly [in assessing whether a change in circumstances had been demonstrated], the mother admitted at the fact-finding hearing that she struck the daughter with a belt"]; Owens v. Garner , 63 AD3d 1585 [4th Dept. 2009] ).
However, in Matter of In re Anastasia L.D. , (113 AD3d 685, 686-87 [2nd Dept 2014] ) the Court held that disciplining a child with a belt did not constitute neglect, where there was no evidence "that the father intended to hurt [the child], or that his conduct demonstrated a pattern of excessive corporal punishment," and that the child did not "suffer[ ] the requisite impairment of her physical, mental, or emotional well-being to support a finding of neglect" (see also In re P. Children , 272 AD2d 211 [1st Dept 2000], lv denied 95 NY2d 770 [isolated incident held insufficient to support finding of neglect where mother struck nine-year-old with buckle end of strap] ). Further, in Ortiz v. Ortiz (2 AD3d 1236 [3rd Dept. 2003] ), the Court held that, because CPS did not find the father's use of a belt constituted neglect, it also did not constitute a change in circumstances warranting a change in custody. See also Alexander J.S. v. David S. , 72 AD3d 829 (2nd Dept 2010) (no neglect where there was no evidence that father intended to injure child, or engaged in a pattern of using excessive force to discipline her).
3. The Parent's Testimony
Against this backdrop, the Court considers the testimony of the parents. In that respect, both parents were convincing witnesses. The father spoke with horror of his son's rendition of the circumstances of the son's "whoopings" by his mother. The father was emotional and his fervor for his child and his commitment to his son and his family was palpable. The father testified that the child, upon arriving in New York, was hesitant to make decisions and often would cry and retreat to his room when his father suggested some discipline. Over time, the father and his wife acknowledged, the child became more "like himself." However, importantly, on the critical facts regarding what happened in Texas, the father's testimony was entirely dependent on the words of his son. The father had no independent evidence of any harm to his son at the hands of his mother. There was no testimony that the father observed bruises, scars or any physical evidence of any corporal punishment administered on his son. In addition, while the father acknowledged that he had constant contact with his son through video communications - three times a week when the child resided in Texas, the father told the child's therapist - and over the telephone during the year prior the summer of 2019 and had other in-person visitation with his son during the year, the father never detected any physical harm to his son and the son never complained of any physical harm. The father's wife also testified credibly about overhearing the child talking to his mother when she heard the mother say to the child that she resorted to "whoopings" when the "bear crawls" did not work.
Prior to the father's testimony, the father introduced the child's dentist who testified that when he first saw the child, the child have five cavities which needed immediate attention. The mother explained that the child has a regular dentist in Texas, she knew the child had cavities and the child would have been treated for those cavities in Texas, but the child's visitation with his father occurred before the dental visit could be rescheduled. There is no evidence that these cavities impacted the child's adult teeth. The Court declines to draw any adverse inferences against the mother based on the dentist's testimony.
This Court acknowledges that the father only learned of his son's experiences after he had been in his father's residence for some time during the summer of 2019. Any bruises, cuts or even red marks, which might have been caused by whoopings, could easily have faded after the child's arrival in Rochester. However, if as the child contends, he was whooped two or three times a week by his mother, it would seem that some physical evidence would have been manifest when the child arrived in Rochester or when the father visit in person with the child during prior visitations.
The mother's testimony was equally compelling. The mother testified that she used corporal punishment - with a belt selected by the son - three times over an undefined period as a consequence of the child lying. The mother could not accurately recall the first time. She testified that she told the child why she was administering the punishment before she administered it. She testified that she hit the child with the belt on his buttocks. She described three "pops" with the belt. The child wore his pants and underpants when the mother hit him. She testified that she did not hit the child "hard." She admitted that the child cried when the belt hit him. She told him, after the discipline, that she loved him and "he would do great things in life." After the first discipline, she testified he went outside and played with his friends. She described the second time in January, 2019 and detailed a virtually identical version of the first discipline and admitted that the child cried that time as well. In the third episode, which occurred in the late Spring of 2019, the mother admitted that she was walking around a public park and the child disobeyed his mother's instructions on chasing a ball. The mother admitted that after she confronted the child, she gave him "a pop on the bottom" with her hand. These are the only three incidents described by the mother.
In her testimony, the mother described that she was raised in a "Cajun culture" in Louisiana in which corporal punishment was a norm for child discipline. She also quoted the infamous "spare the rod and spoil the child" aphorism. See Proverbs 13:24; but see Butler, Hudibras, 1662 (the actual phrase comes from Butler's narrative poem). Regardless of any conclusion reached by the Court in this instance, the suggestion that some biblical or religious justification can somehow mitigate a finding of child abuse when a parent strikes or injures a child merits no credence in this Court. The mother also testified, under direct examination, that she would refrain from corporal punishment in the future. The Court does not consider this "after-the-fact" judgment to have any role in this decision.
The mother also described visits that she had with the son since he lived in Rochester. She described a visit to New York City and said the child and the mother enjoyed the time together. She also described how, when she went recently before trial to pick up the child for visitation, the child ran up to her, grabbed her by the neck and hugged her. There is no evidence that the child, during these recent visits when the petition to change primary residence was pending, exhibited any fear of his mother.
4. The Therapist's Testimony and Notes
The father offered the child's therapist as a witness and this Court, over an objection from the mother's counsel, allowed the therapist to testify about her interactions with the child. The therapist's records reveal the pattern of the child's therapy. The therapist met with the father alone on the first visit. Prior to the session, the father filled out the therapist's "child/adolescent history form." The father, on the first page of the form, when asked which parent had primary residence, checked the box labeled "father" and put the word "temporary" in parenthesis. The father described the nature of the child's problems as "he alleges frequent physical abuse and other abuse by his mother in Texas." In response to an inquiry about the child's "difficulties," the father described his child as "shy and reserved" and added "he does not want to return to Texas." He described his son's problems to be "extremely incapacitating." The father also acknowledged that he had suffered "physical and mental abuse as a child that was severe." In response to a question about the child's relationship with his mother, the father said the child did not want to return to Texas and added "mother and boyfriend abuse him." The child was "afraid of his mother because of the abuse." He repeated the phrase "abuse from his mother" when asked whether the child had conflicts with a parent.
This Court declined to bar the therapist's testimony under the hearsay rule. These statements went to the state of mind of the child and, in this Court's view, were necessary and material to the Court's determination regarding a change of circumstances. Billings v. Billings , 309 AD2d 1194 (4th Dept 2003).
The therapist's notes, as admitted in this trial, contain a note in handwriting at the top: "copied by [the therapist] from original. This color darkened the copy." No one explained this entry on the admitted form. However, the document was either copied by the therapist from an original filled out by the father or the therapist filled out the form while conversing with the father. This Court regards this document as evidence of the father's initial presentation of background information to the therapist.
The father circled the response "extremely incapacitating" in the form. While the litigants never explored what this phrase meant to either the father or the therapist, there is no evidence that the child was, at any time, incapacitated, under any reasonable definition of that term. The evidence unmistakably indicates that the child was "reserved" when he came to Rochester and was "timid" during the initial meeting with therapist, often talking in a low voice. The therapist at one point described him as "frightened" during the initial session. But, the father described his child as becoming more "sure of himself" as he spent time in Rochester. But, even when interpreted most favorably to the father, the evidence in this matter never suggested this child was "extremely incapacitated" at any time or that his mental or physical health restricted any of his daily activities or interactions with his extended family.
In filling out the form, the father described the child's time in school in Texas, stating that he was very well behaved and had great relationships with his teachers. He described the form of discipline used by the mother to include "bear crawls" and "belts," adding that "he was made to select the belt to be used on him." The father testified that the child told him that the mother required the child to perform 50 "bear crawls" at a time. The father also responded to a question about how the child responded to discipline by his mother and described that "he shuts down." However, despite these comments, the father gave a glowing description of his son as "terrific, cares about everyone's happiness," "innocent and positive," adding "I love his gentleness."
The "bear crawls" - which the father indicated were a form of punishment administered either by the mother or her boyfriend - were a part of the child's home life in Texas. The Bear Crawl is a strengthening, stabilizing and cardio exercise that involves nearly all your muscle groups including the ones in your lower body, upper body and core. How To Do Bear Crawl , Get Healthy U, https://gethealthyu.com/exercise/bear-crawl/website, visited 10/8/20. There is no evidence before the Court that having a young child perform a "bear crawl" is inappropriate. There is also no evidence that the child was injured by engaging in these activities, no evidence it disrupted his daily life activities or that he harbored any ill will to his mother as a consequence. The mother described the activity as a "karate warm-up exercise" and that the child and her boyfriend both participated in them. She also said that she used the "bear crawls" as a form of discipline on occasion. Based on this evidence, the Court declines to consider the bear crawls as evidence of any abuse by the mother to the child.
There is no evidence that the father ever observed the abuse of his child and no evidence that he was present to observe the child's reaction. His comment that the child "shuts down" when his mother administered discipline or "whooping" is unsubstantiated. The mother directly contradicted this assertion: she testified that the first whooping, the child went out to play with other children and showed no effect of the mother's conduct.
On the same day that the information form was filled out, the therapist met with the father, according to the therapist's testimony and notes. The father made an extensive disclosure to the therapist about his background, the pending court proceedings, the names of lawyers and the judge. The notes indicate the father told the therapist that the mother had "not moved on." He told the therapist that the child suffered "beatings from mom, frequently." He referred to the mother's boyfriend as ordering the child to perform "bear crawls." The father told the therapist that the child was "isolated in Dallas" and further that he was worried about "retaliation." He told the therapist that the mother had abused her other older daughter and that she had no relationship with that daughter. He confessed that he had been abused by his mother and added that he "would not do that to his kid." The father also complained about clothes not being delivered when the child came to Rochester that summer and the fact that the child arrived late.
At some point on the day, the therapist met with the father and his son. The therapist described the child as afraid to discuss the physical abuse and he clung to his father. The therapist testified that the child spoke about the whoopings and the bear crawls in a "low voice" that was almost a whisper.
In evaluating these initial notes and the therapist's testimony at trial, the Court is struck by how much information that father relayed to the therapist about the mother in the initial meeting. The initial meeting with the father was, in any reasonable reading of the therapist's notes, an extensive rendition by the father's opinion of his former wife's character and life circumstances and the circumstances of the child's coming to Rochester. The notes reveal that the topics which were discussed related more to the father's strained relationship with his ex-wife than the condition of the child. It is unclear whether the child had ever heard the father's complaints about his ex-wife previously, but in a fair reading of the therapist's notes in the initial meeting, the father clearly projects as a parent who is seeking to undercut the mother's fitness as a parent and sway the therapist's views of both his - and the child's - complaints. The father's version of events and the underlying circumstances clearly dominated the discussion with the therapist before the child was introduced to the therapist.
Two days after the joint meeting with the father and son, the therapist met with the child alone. The child was in a "good mood" and, consistent with the play therapy approach of the therapist, the child played "Go Fish." After the game, the therapist probed the issue of beatings: the notes are unclear whether the therapist or the child broached that topic. The notes are also unclear whether the child or the therapist initially used the word "beatings." The notes indicate the child did not offer an example of the "beatings." She asked him to give her examples. He replied in a "little voice" that he was whooped when he lied about "how much of a vegetable or something he had eaten." The notes do not describe the child's description of the force used in the "whooping" or that the child stated that the mother "hurt" him. The notes do indicate that the child quickly changed gears: the child immediately shifted to a discussion of what he ate for lunch and added that he was not troubled because his mother sent him to visitation in New York without a supply of climate-appropriate clothes. The notes lack any indication that the child's mood changed when he talked about the "beatings." There is no evidence that his demeanor was shaken or disturbed. The therapist noted that he spoke in a low voice - "barely a whisper" - and that he "seemed afraid he would get into trouble talking about what happened with mom." However, the therapist's notes do not indicate that the therapist probed the child for the nature of the "trouble" that the child seemed to fear.
The therapist also testified that based on the way that the child described being struck by his mother, it was "not simply a pat on the tush." However, the child's rendition of the discipline to the therapist does not impact this Court's determination on the force used by the mother in disciplining the child. The therapist's notes do not indicate that the child cried or broke down when recounting these beatings. In the therapist's notes for that meeting, there is only one sentence that mentions the "beatings."
Thereafter, the therapist met with the child seven times after the initial interview. The child never mentioned any whoopings during those sessions. The notes for those sessions clearly indicate a child growing in confidence and enjoying his new life in Rochester. In October, the therapist raised the issue of the child's relationship with his mother. The child admitted he missed his mother. On this date, the therapist 's notes reveal that she knew that the mother was coming to Rochester for a court date. The therapist knew that the court proceeding involved a possible return of the child to Texas. She asked whether he would consider returning to Texas, he responded: "no, no, no." He told her the reason was "whoopings," in a soft voice. He added he did not trust his mother: "She would lie, She is a liar," the notes indicate.
In the next visit with the therapist, the child said the visit with his mother went well, he told her that he enjoyed the time, but he was "not sad to see her leave" and he wanted to stay here (in Rochester). He had lots of things to do with his mother during the visit and the therapist added in her notes: "she [the mother] seems to be making appropriate choices of activities." Thereafter, in the next six visits, the child never mentioned any "beatings", "bear crawls" or other issues related to his mother. Just before Christmas, the child had another session in which the child described an impending visit over the holidays with his mother. The child made no mention of any fear of his mother or any issue related to beatings. However, the therapist's notes indicate she had a conversation with the father after the child left, in which the father expressed his frustration with the mother in the planning for the Christmas visit. The notes are not clear whether the child was present when the father told the therapist about his on-going frustrations. This intervention by the father, documented in the notes, again heightens the Court's concern about his apparent attempts to influence the therapy process. In reading the notes, it seems incontrovertible that the therapist was privy to and recording the father's frustration in dealings with the child's mother in her notes while the therapist was, simultaneously, attempting to sooth the child's anxiety over the alleged beatings.
In the middle of January, the child again visited the therapist. He recounted the visit with his mother over Christmas. He also admitted to the therapist that he missed his mother "sometimes." But, he told the therapist that the mother would not readjust a plane flight from New York City to Rochester to allow him to participate with his Rochester family in attending The Lion King in Rochester. It is unclear, in the therapist's notes, how the child knew that his mother was unwilling to change the plane flights from New York City to Rochester. However, the therapist's notes indicate that the father had told the therapist of the flight delays in returning to Rochester, another instance in which the father was communicating his frustrations to his son's therapist. After the mid-January meeting, the therapist elected to move the visits to every other week because the trial had been pushed out to a later date. The Court is intrigued that this note is included in the therapist's notes because the child would not have known when the trial was scheduled and further the child would not have known that the "new judge" in the matter was the author of this opinion. The therapist's notes give no indication that the father spoke to the therapist on the occasion of this visit. If not, the fact that the child knew the trial date had been changed and the name of the judge involved indicates that the father was talking to the child about the pending litigation or talking to the therapist about it.
On January 29, 2020, the child visited with the therapist and the child's entire presentation was changed. Instead of recounting his life in Rochester, the therapist's notes begin with the child recounting his memories of being beaten by his mother, apparently because he got a demerit in school. He told the therapist that he was hit on the back and bottom "with the hard part" (the therapist notes indicate she assumed it was a buckle) and the child told her that he tried to explain what had happened before the discipline, but "she wouldn't listen." He described how Rudy - the mother's boyfriend - and his mother would "gang up on him - two against one" - and added there was "no way he was going to be OK when that happened." He also explained that he had "lied" to his mother at times.
However, another important event occurred on same day, January 29, 2020. The father, after planning a trip for his entire family to Hawaii over a school break, discovered that the prior Court order, signed in the summer of 2019, prohibited either parent from removing the child from Monroe County. In mid-or-late January, the father had a discussion with the mother and asked her to permit him to take the child to Hawaii. The mother refused unless the father permitted the child to visit Texas during that trip. As a consequence, the father brought an order to show cause seeking this Court's permission to travel to Hawaii. On January 29, 2020 - the same day the child visited with the therapist and for the first time in five months spoke of the beatings - the father signed an affidavit in support of his application for Court permission to take his son to Hawaii for vacation. In that affidavit, the father alleged that the therapist "strenuously objected" to the child traveling to Texas for fear that he would be re-traumatized. In this Court's view, the fact that the child, for the first time in months talked to the therapist about nothing but his experiences in Texas on the same day that the father signed an affidavit attesting to his difficulties with his ex-wife, recounting his son's allegations of abuse and requesting that his son be permitted to travel with him to Hawaii, but not to see his mother in Texas is difficult to characterize as a mere coincidence. The fact that these episodes occurred on the same day leads easily to an inference that the child knew or suspected that his vacation in Hawaii depended, in part, on convincing the therapist and perhaps this Court, that his alleged beatings by his mother continued to have a significant impact on him.
There is nothing in the therapist's notes - prior to January 29, 2020 - suggesting that she "strenuously opposed" the child traveling to Texas to be with his mother and, in fact, the therapist knew that the child has spent an enjoyable time with mother - by the child's own admission — over the Christmas holiday. There is no indication in the therapist's notes that she ever opposed the child having visitation with the mother.
After the January 29 session - when his father and mother were in the legal dispute over the planned trip to Hawaii - the child met with the therapist 10 more times, but he only once mentioned the beatings or the whoopings again - the day before the family left for Hawaii. The therapist knew that the Court had allowed the family to go on vacation to Hawaii, but there are no notes indicating how the therapist knew. In that February 12, 2020 session, the child told the therapist that he wanted his mother to "feel how it felt to be hit" and he wanted "to break the belt in two." There is also a mysterious and troubling note by the therapist that clouds this Court's evaluation of the entire therapy process and the father's role in it. The notes indicate that the therapist was told about an incident in which the mother discovered that the child had nail polish on his fingers while playing with his sibling and other children in Rochester. The note indicates the mother "threatened to send him to school in a dress." The father testified that the mother said this to the child. After the conversation with the father, in which he relayed this episode to the therapist, the therapist added the word "homophobic" in parenthesis in her notes. During her testimony, she indicated she inserted the word "homophobic" into the notes because the father had told it to her and that the term described the child's mother. It is unclear, based on the record before this Court, whether the child was present when the father told the therapist. This comment, made to the child's therapist, is stark evidence of the father's antipathy to his former spouse and the fact that he uttered it to the therapist, perhaps in the presence of the child, heightens this Court's concern about the influence of the father on the entire therapeutic process and, consequently, the probative value of the therapist's testimony.
The mother, in her testimony, strongly denied any allegation of homophobia and denied that she ever said that the child "should wear a dress," as the father told the therapist that she did.
During the remaining nine visits which extended into the late Spring 2020 and involved remote visits as a result of the pandemic, the child never repeated anything about the alleged beatings and never again mentioned "bear crawls." In a detailed perusal of the therapist's notes after February, 2020, there is simply no evidence of any anxiety in the child or any emotional upset as a result of the alleged beatings. At the final visit, the child was asked directly whether he would like to "live with his mother in Texas". The notes indicate he said: "I would like to live with mom in Texas, too." He also acknowledged that he was less scared of her. While discussing this topic, the child never mentioned any beatings or other punishment.
At the conclusion of the therapist's testimony and after extensive cross-examination and re-direct, the father's counsel, in a further re-direct asked the therapist whether she had a professional opinion of the status of the child's mental health. This Court cut off the questioning, advising the attorney that the question would elicit testimony beyond the scope of any cross-examination and introduce a whole new issue into the proceeding. To the extent that the father objects that the Court improperly limited the ability of the child's therapist to offer an opinion, the Court disagrees. The father sought to elicit this testimony not on direct, or even redirect, but on a further re-redirect. It is well-settled that "[t]he extent of redirect examination is within the sound discretion of the trial Court" (People v. Mack , 128 AD3d 1456, 1457 [4th Dept 2015] ), and is properly limited to matters elicited on cross-examination (see id.; see also People v. Melendez , 55 NY2d 445, 452 [1982] ["the Court should only allow so much additional evidence to be introduced on redirect as is necessary to "meet what has been brought out in the meantime upon the cross-examination"] ). Here, the proffered opinion testimony offered on re-redirect was not related to the re-cross examination, and thus was properly excluded. Redirect is not meant to "afford a party the opportunity to place evidence before the jury that should have been brought out on direct examination" (People v. Melendez , 55 NY2d 445, 452 [1982], quoting 6 Wigmore, § 1873, p. 672).
In conclusion, while this Court allowed the therapist to testify, there is no significant evidence in the therapist's notes or her testimony suggesting that the child was traumatically injured by the conduct of his mother or that it had impacted any portion of his life. Most of the therapist's notes are a sunny appraisal of the child's life in Rochester. The therapist's testimony and notes do little to corroborate the child's testimony that he was beaten three times a week by his mother for a lengthy period of time.
The child's attorney argues forcefully that his client's mental and emotional well-being was compromised by the mother's conduct. This Court declines to join that conclusion, as the therapist's notes do not suggest any lasting emotional harm to the child and there is no evidence of any interruption in the child's mental development. He was solid student in Texas and that level of achievement has persisted in New York. The therapist never referred to the child to any more serious mental or physical healthcare provider. There is no evidence, for example, that she was prompted to contact the child's pediatrician, either here in New York or in Texas.
5. Conclusion
All these factors illuminate, but are not decisive in resolving the critical question at the heart of this matter: who does the Court believe is truthful on the account of the corporal punishment administered by the mother against her son in Texas? The son told his father that he was beaten repeatedly - three or four times a week - for a long period of time in Texas. Based on this testimony, the proof would indicate that the child was struck by his mother every other day for a lengthy period of time. However, there is no evidence that the child was physically harmed: no evidence of bruises, skin irritation, or other physical symptoms at any time. There is no evidence of any emotional harm: there are no records from the Texas schools or any healthcare personnel suggesting any changes in the child's development or demeanor in Texas before coming to Rochester. In addition, the evidence clearly establishes that the son, during the same time frame, had constant access to his father, both by audio/visual means and extended vacation periods, including the extended summer vacation the year before. There is no evidence that the child ever mentioned discipline by his mother until after he had spent several days in Rochester. There is ample evidence that the child who came to Rochester in 2019 was, in the father's view, "terrific", "innocent and positive." The father said, in the intake information with the therapist, that the child "cared about everyone." Under all these circumstances, the therapist's testimony and the testimony of the remaining witnesses do not persuade this Court that the child was traumatized by the corporal punishment administered by the mother in Texas.
This Court held a Lincoln hearing with the child and his attorney. While the Court cannot divulge the contents of the hearing, nonetheless, the child did corroborate his account of the alleged beatings he told to his father. His account was consistent with his mother's account of the manner of the discipline and the mother's method of having the child select the belt and keep his pants on when he was struck. He did repeat that he was disciplined three or four times week for a lengthy period of time. The child, accompanied by his attorney, acted in an age appropriate manner during the meeting with the Court. His attorney has consistently maintained that the child preferred to remain Rochester. The child's preference can be an important factor in evaluating his "best interests," but the Court of Appeals has explicitly held that a change in the child's wishes, without more, does not justify altering an agreed visitation plan:
This is all the more so where, other than children's wishes, there is no change of circumstances, especially with respect to the crucial matter of fitness, to justify a modification of the custodial arrangements which the parties themselves determined was best for their young children. Where there is no material change of circumstances, there is no foundation for a modification petition.
Ebert v. Ebert , 38 NY2d 700, 703 [1976] ; accord People ex rel. Schussler v. Schussler , 86 AD2d 787 [2nd Dept 1982] ).
In addition, this Court finds that the father has not established by preponderance of the evidence that the mother beat the child three or four times a week during the child's residence in Texas. If the repeated "whoopings" occurred, then this Court could easily conclude that the mother was abusing her son under the laws of either Texas or New York. However, this Court finds that the mother's testimony on the number of times that she administered corporal punishment was credible and persuasive. She did not deny striking her son twice with a belt. She testified that she did not strike him hard and on the two occasions when the belt was used, she hit him only three times. She admitted that he cried when she disciplined him. The final time she admitted that she struck him with her hand. She admitted that the child engaged in "bear crawls" in her home, but there is no evidence the child ever refused to participate in these activities. The mother's testimony was subject to cross-examination, but while he admitted that she struck the child and had him participate in bear crawls, she adamantly said she never struck him in anger or intended to harm him. The mother's persuasive testimony and the lack of any corroboration of the son's rendition of the discipline "three or four times a week" leads this Court to conclude that the child was disciplined by his mother by striking him with a belt twice in Texas and that he was spanked once with the mother's hand just before coming to Rochester, but that these admitted disciplines do not rise to rise to the level of abuse or constitute a change in circumstances.
However, the Court's inquiry does not stop there. As indicated above, New York law permits this Court to find that mother abused the child if the proof establishes that a "whooping" was, in even a single instance, a form of abuse. To reach that conclusion, the Court would need to find a preponderance of the evidence that the mother's punishment - in a single episode - was excessive and caused harm to the child. The preponderance of evidence in this matter does not allow this Court to reach that conclusion. There is no evidence that the mother struck the child in anger or used excessive force in hitting the child. The mother's admissions, which the Court credits, do not establish that the severity of any of three episodes of discipline was excessive nor do they establish that the three episodes, when considered in totality, constitute excessive force that caused harm to the child.
The mother testified that she had learned from this experience that corporal punishment was frowned upon by the New York Courts and she said she would not use that punishment again. This Court does not consider this testimony in any respect relevant: the fact that a parent "learns a lesson" from hitting a child and agrees to refrain from taking that action in the future does not justify or excuse the conduct in the eyes of this Court — or the child. This Court also notes that mother, a registered nurse, testified that she was "a mandated reporter" of child abuse. The Court does not consider this fact in this decision because, as countless examples have shown, the history of intra-family abuse is littered with instances in which "loved ones" are both the perpetrators and victims of abuse.
In reaching this conclusion, this Court applies New York law to these findings. This Court concludes that if Texas law were applied, the same conclusion would be justified.
Finally, this Court considers whether these episodes, while not as a matter of fact sufficiently severe to constitute abuse, nonetheless have an emotional consequence to the child beyond the physical harm that could constitute abuse. The preponderance of evidence does not justify that conclusion. There was no evidence produced at the trial, or during the Court's interview with the child during the Lincoln hearing, that this child was anything, but a "terrific" child while he lived with his mother in Texas. He has not changed during his time in New York, except, as he became more familiar with his new family in New York, his reticence evaporated and his personality further emerged. The therapy notes do not reflect any serious emotional problems in the child's outlook. The child is an accomplished student — he was a straight A student in Texas, according to his mother. He played sports and engaged in activities in Texas. He has done the same in New York.
This Court acknowledges that the American Academy of Pediatrics recommends that parents refrain from using "spanking" for disciplining children. Sege et al, Effective Discipline to Raise Halthy Children, Policy Statement, Council of Child Abuse and Neglect, Committee on Psychological Aspects of Child and Family Health , American Academy of Pediatrics, December, 2018. But, as noted earlier, the public policy in New York, as evidenced by Penal Law § 35.10(1), does not bar spanking when necessary to maintain discipline of a child.
Based on all these facts and weighing all the evidence, this Court concludes that the father has failed to demonstrate that the preponderance of the evidence in this proceedings proves that the mother's acknowledged discipline of the child in Texas amounts to a change of circumstances under New York law. This child was a "terrific" child when he came to New York for extended visitation with his father. The child's rearing in Texas, by his mother, accounts, in large part, for the child's development to that point. The discipline imposed was not abusive and did not impact the child's development or maturation. Because the preponderance of the evidence does not demonstrate a change in circumstances under New York law, there is no basis for this Court to consider the second step in the process required when a parent seeks to change custody or primary residence. The best interests of this child were defined by these parents years ago, when the father agreed the mother would be the primary residential parent. The undisputed evidence indicates that the mother, in her role as the primary residential parent, has had a positive and beneficial impact on the life of this wonderful, if not enchanting, child. This Court could easily conclude that the child's residence with his father and the father's new and loving family in New York could create an equally beneficial environment for the child's growth. The father's powerful testimony regarding his love for the child and his desire for the child to remain in Rochester was palpable and sincere. But, New York law does not allow this Court to substitute its judgment on the child's interests for that of the parents unless a substantial change in circumstances is proven by the preponderance of the evidence. See Avent v. Avent , 180 AD3d 1329, 1330 [4th Dept 2020] (since there was no change in circumstances, "an inquiry into the best interests of the child was therefore unwarranted"); Matter of Perry v. Perry , 52 AD3d 906, 907 [3rd Dept 2008] ("Absent an alleged change in circumstances, Family Court's failure to reach the issue of the children's best interests was not error").
The proof in this case falls short of that strict requirement. The father's petition to change the primary residence of the child and keep the child is New York is denied and the child should be returned to the mother, the parent whose primary residential status was set forth in the Kentucky agreement and divorce documents.