Opinion
V-12768-07/07B.
Decided March 29, 2010.
Carrie Anne Cavallo, Petitioner's Attorney.
Danielle R. Petitti, Respondent's Attorney.
Children's Law Center by Despina Hartofilis, Attorney for Child.
Petitioner and respondent are the parents of Antonio M. a nine (9) year old child. The parties obtained a judgment of divorce in New Jersey on June 13, 2003 and, on consent, were awarded an order of joint legal custody for Antonio.
The father, Anthony M., filed a violation petition and a petition for modification of the custody order on April 25, 2007. The father was seeking a specific and expanded visitation schedule. By stipulation the parties resolved the visitation issues between them prior to trial.
The mother, Francesca P., had filed a petition to modify the custody order to provide for sole legal custody of the child on May 6, 2008 (Docket V-12768-07/08D). A trial was conducted in Kings County Family Court for the sole purpose of determining whether the existing order of joint legal custody should be modified to award sole legal custody to the mother.
At trial the petitioner father was represented by the office of Patricia Fersch, by Danielle Petiti, Esq..; the respondent mother was represent by Carrie Ann Cavallo, Esq.; and the subject child was represented by the Children's Law Center by Despina Hartofilis, Esq. The trial commenced on September 15, 2009 and continued September 23, 2009; October 21, 2009; December 3, 2009; December 4, 2009; and March 5, 2010.
The Court heard direct testimony of the mother as well as the testimony of Dr. Gerald David, the psychologist assigned by the Court to prepare a forensic evaluation. After the conclusion of the mother's direct case and the testimony of Dr. David, the father's attorney made an oral application to dismiss the petition for failure to make a prima facie case. The matter was adjourned to afford an opportunity to the respective counsel to argue the motion and to cite any relevant case law. After argument, the motion was granted and the mother's petition was dismissed for the reasons set forth below.
Discussion
It is not disputed that the parties agreed to joint legal custody in the 2003 divorce. The mother's petition alleges that the father has failed to cooperate in a constructive manner and, therefore, has made the joint decision making (allegedly) impossible. As such, the mother must prove a sufficient change of circumstances to modify the order now in effect. Ebert v. Ebert, 38 NY2d 700 (1976); McNally v. McNally , 28 AD3d 526 (2d Dept. 2006); Matter of Gaudette v. Gaudette, 262 AD2d 804 (3rd Dept. 1999) lv. denied 94 NY2d 790 (1999). The burden, as the proponent of the change of circumstances, is clearly on the mother in this case.
At trial, the Court heard extensive testimony from Ms. P. in which she repeatedly characterized Mr. M. as "unhelpful" and "uncooperative" and "non-responsive".
The respondent mother offered many specific instances in which she had concerns about the child's stomach aches and other digestive issues and general health concerns. These instances were well documented by e-mail correspondence between the parties and the mother sought to show that the father would not respond immediately or approve a certain medical procedure in a timely manner. However, each instance of tardiness or delay was addressed by the father's attorney on cross-examination and the Court can not, on an objective basis, consider his conduct to be inadequate or dilatory or contrary to the continuation of joint decision making by these parties.
The respondent mother, in this Court's opinion has an unrealistic view of the concept of reasonable decision making and has chosen to impose her unrealistic expectations upon the father. The mother has asserted that Antonio required serious medical procedures and was in need of a series of diagnostic tests which would require careful consideration by any parent. Mr. M., according to the record wanted to consider these steps and explore whether the procedures were in fact necessary. In several instances the procedures were not necessary and the doctors eventually concluded that the child had no serious medical problem.
Similarly, a good portion of the mother's direct case was centered on making educational decisions for Antonio. These decisions were often rushed or unrealistic proposals. The record indicates that Mr. M. has, in fact, participated diligently in each of these concerns and has been attentive and responsive to the child's needs. In several instances it had been the mother who made decisions involving the child's school or after school programming without involving the father at all.
This Court has considered the mother's allegations even in a light most favorable to the mother's position, and can not find that there is any persuasive evidence to support changing the current custody order.
The case law in New York, for eliminating joint custody between two parents, would require that there be a high level of acrimony and long term hostility between the parties rendering joint decision making impossible. (See Braiman v. Braiman, 44 NY2d 584 (1978); Matter of Granatta v. Granatta, 289 AD2d 527 (2d Dept. 2001); Drummond v. Drummond, 205 AD2d 847 (3rd Dept. 1994)). In this case, while the parties may not have a friendship, they conduct themselves in a civilized fashion and are capable of cooperation in making decisions on matters relating to the care and welfare of the child. (See Braiman v. Braiman, supra; Janecka v. Franklin, 131 AD2d 436 (2d Dept. 1987)).
Furthermore, the testimony of Dr. David and other testimony reported that Antonio is both well adjusted and very much above-average in intelligence. It can not be shown that whatever differences exist between the parents has negatively affected the child, nor is there any evidence that the child's stability and well-being have been threatened. Eschbach v. Eschbach, 56 NY2d 167; Olympia M. v. Steven M., 228 AD2d 270 (1st Dept. 1996). Dr. David concluded that joint custody remains appropriate in this case and that position is supported by the record.
Conclusion
As a general matter, there should always be an effort by parents to conduct themselves in a conscientious and considerate manner when it comes to decisions affecting their child. However, parties have to accept a basic reality that cooperation requires both parties to act reasonably and that small delays or set-backs are not grounds for eliminating the participation of one parent in decision making.
In this case the alleged difficulties do not meet the legal requirements needed to change the order of joint custody and as a result the mother's petition for modification is dismissed.
This shall constitute the decision and order of this Court.