Opinion
V-0000-00.
Decided September 9, 2008.
The mother was represented by Douglas Rothkopf, Esq., the father was represented by the office of Kenneth J. Weinstein, Esq., by Michael J. Langer, Esq. Steven R. Herman, Esq., was appointed attorney for the children.
The matters before the Court are cross petitions for custody of the children, Z., age 9, E. age
6 and G., age 4. The children are the biological children of the parties herein, father E.S. and mother R.S. The current proceedings were commenced in October, 2007, when the father filed a petition pursuant to Article 6 of the Family Court Act (FCA) seeking custody of the three children. A short time thereafter, the mother filed her own petition. The mother was represented by Douglas Rothkopf, Esq. The father was represented by the office of Kenneth J. Weinstein, Esq. by Michael J. Langer, Esq., Steven R. Herman, Esq. was appointed attorney for the children.
The hearing on the issue of custody commenced on March 18, 2008 and ended on July 22, 2008, with multiple trial dates in between. There were no in camera interviews, forensics or probation reports.
BACKGROUND
The parties are currently married, but live apart. At the time the mother left the marital residence, she took the three children with her and moved to her parents home, a close distance from the marital residence. As the parents were unable to work out a parenting schedule on their own, a temporary Order was entered into. However, this Order failed to end the difficulties, with the father arguing that the mother was completely inflexible and would not allow him to see the children at any time not spelled out in the Order, regardless of whether it was a holiday, birthday or some other event. The mother, for her part, asserted the father was unreasonable and arrogant, and seemed to imply that sticking to the schedule was the easiest way to deal with him.
Many other allegations were tossed back and forth. The mother alleged the father had a history of leaving home for weeks at a time, sometimes alone, sometimes with the children. Usually he failed to tell her he was leaving until the day of, and often would not tell her where he was going. She claims she would wake up in the morning and the father and children would be gone. On one occasion he came home without the children and would only tell her they were fine. The father asserts the mother treated the children as her own property, and said as much to him. The mother would become angry if the father asked details about the children's lives, such as schooling and medical issues and once became enraged when the father contacted a teacher on his own.
DISCUSSION
The most striking aspect of the evidence of this case was how very little of it there was. On the mother's case, the mother was the only witness. On the father's case, the father testified and he also called a rebuttal witness, a police officer, that was barely relevant. Despite the fact that the mother lives with her parents who, accordingly, have been able to witness their daughter and her parenting skills, the Court did not hear from them. Similarly, the father testified that should he gain custody of the children, he would rely on family members to help and assist him with child care. Yet, none of those people were presented to the Court. Instead, the Court heard the mother's complaints about the father, and the father's complaints about the mother.
The Court was given more than ample time to observe the parties demeanor and judge their credibility. In terms of credibility, each party had difficulties, but the Court found the father slightly more credible than the mother. The mother's testimony was rife with selective memory issues. It appeared, during cross examination, that when presented with some prior behavior that may have painted the mother in a negative light, she didn't remember if it occurred. The father tended to be evasive, though would eventually get around to answering the posed question. To his credit, the father managed to say some positive things about the mother, most importantly that he thought she was a good mother. The mother, despite having married the father and having three children with him, all relatively young, was unable to say a single positive thing about the father. Each party expressed the concern that should the other party be awarded custody of the children, then the custodial parent would alienate the children from the noncustodial parent. There were numerous instances of apparent facial expressions by the non-testifying parent during the other party's testimony.
Some of the strongest allegations each party made against the other seemed to involve money. The mother tried to establish that the father cut off the stream of funds to the mother and she therefore had to rely on her parents to be supported. One such instance was where the father allowed the lease for the mother's car to expire, leaving the mother, and therefore the children, without a vehicle. At some point the father offered the mother use of his car, but she rejected it, apparently not finding it an impressive enough vehicle and preferring something similar to her previous vehicle or similar to the one the father's mother drove. The Court believes the father, as the monied spouse, cut off some financial support to the wife as a means of jockeying for position in the eventual divorce case. This was done to punish the mother yet probably had a harsher affect upon the children.
On the other hand, the father asserted that the mother would tell the father that time with his children outside the temporary Order would cost him money. This seems to be related to the father's allegations that the mother views the children as hers alone, and that she shall decide what information about the children the father will be entitled, and when he may see them. In fact, it appears the custody proceedings originally commenced as a result of the mother's refusal to allow the father to see the children at all. The Court is cognizant of the initial Writ proceeding. There was testimony that when the mother left the marital residence with the children, she did not tell the father where they were, and did not allow him to see or speak to the children, forcing the father to bring a writ of habeas corpus. There was also some undisputed testimony that the mother signed the children up for sports or allowed them to go camping with her family members during the father's parenting time, without consulting the father first. In fact, the father asserts the mother never consults with him on any issue regarding the children. The Court believes the mother, out of frustration, has interfered with the father's parenting time and refused to share decision-making with the father. As with the father's behavior, this probably hurt the children more than the father.
In determining what is in the child's best interests, the Court should "look at the totality of the circumstances, and consider, inter alia, the relative fitness of the parents, the quality of their respective home environments, the quality of parental guidance, and the ability of each parent to provide for the child's emotional and intellectual development . . ." Vinciguerra v. Vinciguerra, 294 AD2d 565, 566 (2d Dept. 2002) (cites omitted). See also Eschbach v. Eschbach, 56 NY2d 167 (1982), Rodriguez v. Irizarry, 23 AD2d 704 (2d Dept. 2006). The Court must consider all of the relevant circumstances to reach a proper best interests determination. Friederwitzer v. Friederwitzer, 55 NY2d 89 (1982), Rodriguez v. Irizarry, supra . Herein, the Court is actually presented with a situation where neither parent established, to any significant degree, that it would be in the children's best interests to have custody awarded to either of them.
The Court finds neither parent established the other to be unfit. The Court cannot pass judgment on the quality of the home environments, as neither parent presented evidence of either advantages of their own home environment or the disadvantages of the other parent's. Similarly, neither parent established superiority over the other regarding providing for the children's emotional and intellectual development. In essence, the Court believes each parent loves the children and has the ability to properly parent the children, despite deficiencies. Ring v. Ring, 15 AD2d 406, 2005 NY Slip Op.01024 (2d Dept). As neither parent distinguished him or herself as the better parent, or established that it would be in the children's best interests for either parent to be awarded sole custody, the Court hereby directs the parties share in joint custody of the three children. ". . . [V]iewed as a whole, the record shows that both [parents] care and love the child[ren] who [are] the subject of this petition. Under the particular circumstances of this case . . . an award of joint legal custody of the child[ren] is warranted". Irons v. Schneller, 258 AD2d 652, 1999 NY Slip Op. 01638 (2d Dept), citing Eschbach v. Eschbach, supra; Friederwitzer v. Friederwitzer, supra; Matter of Amanda H. v. Paul Robert W., 251 AD2d 578, 674 NYS2d 773; Ira K. v. Frances K., 115 AD2d 699. Though during the trial the parties evinced a difficulty at agreeing on issues regarding the children, the Court does not believe the relationship has broken down to the point where the parties will be unable to communicate meaningfully when it comes to making decisions regarding their children. Lukaszewicz v. Lukaszewicz, 265 AD2d 1031 (3d Dept. 1998). Accordingly, the parents shall share decision-making on all major, non-emergency medical, educational, religious, financial and general welfare decisions, while day-to-day decisions shall be decided by the parent with whom the children are residing at that time. Should the parents be unable to reach a joint decision, a parent coordinator shall be consulted. L.S. v. L.F , 10 Misc 3d 714 , 2005 NY Slip Op. 25462 (Sup.Ct. Kings, Cty). Unless the parties can agree on a coordinator, ten days from the date of this Order each parent's attorney shall submit the names, addresses and phone numbers of three parent coordinators to the children's attorney. The children's attorney shall then submit the list to the Court, including three names of his own, should he so choose, without indicating which party chose which name. The Court will randomly choose one such coordinator from the list for the parties to use in that capacity. The parties must meet at least once on each issue with the coordinator before requesting judicial intervention on whatever issues they cannot agree on. The father shall bear the cost of the parent coordinator.
The issue of residential custody is a little more complicated and the parties' failure to provide the Court with substantial information regarding each parties' home makes the decision even more difficult. However, the father did not complain about the home environment of the mother's parent's home, leading the Court to believe the environment is acceptable to him. It is a concern for the Court that it was never addressed whether the mother intended to remain living with her parents, or if she viewed this as a temporary arrangement. Similarly, the mother did not complain about the father's home environment, leading the Court to believe the home itself is acceptable to her.
The children have been living with the mother since she left the marital residence, but the father timely filed for custody and the Court does not believe the father should be penalized for the mother's unilateral decision to relocate. The Court notes the children's attorney indicated the children are attached to, and love both parents very much. They appear to enjoy being with both parents and wish to see both parents regularly. The Court has considered the position by the children's attorney and the children and believes it is entitled to significant weight. Kozlowski v. Mangialino , 36 AD3d 916 (2d Dept. 2007), Young v. Young, 212 AD2d 114 (2d Dept. 1995).
Accordingly, the Court finds the parents shall share residential custody of the children, with he children living with each parent for approximately two week periods of time. The children shall live with the father from the first to the fifteenth of each month, returning to the mother's home after school on the fifteenth if it is a school day, or by 6:00 p.m. if it is not. The children shall remain with the mother from the night of the fifteenth until the last day of the month, whether it be the twenty-eighth, twenty-ninth, thirtieth or thirty-first of the month. The children shall be returned to the father after school on the last day of the month, or by 6:00 p.m. if there is no school.
When the children are with the father, the mother shall have daily, unfettered phone contact including, at the least, at 7:00 p.m. each night. When the children are with the mother, the father shall have daily, unfettered phone contact including, at the least, at 7:00 p.m. each night. During the father's two weeks, the mother shall see the children each Wednesday night from after school until 8:00 p.m. If there is no school, then the mother's parenting time will start at 4:00 p.m. The mother shall be responsible for providing dinner and, during the school year, ensuring homework is done during the Wednesday parenting time. During the mother's two weeks, the father shall see the children each Wednesday night from after school until 8:00 p.m. If there is no school, then the father's parenting time will start at 4:00 p.m. The father shall be responsible for providing dinner and, during the school year, ensuring homework is done during the Wednesday parenting time. This two week schedule shall be superceded only by major religious holidays and school vacations, with the parents equally sharing each. As there was no testimony regarding the vacation schedule for the school year, the Court is ordering that the father shall have the children for the entirety of their spring recess in odd years and winter recess in even years. The mother shall have the children with her for the entirety of their spring recess in even years and winter recess in odd years. The two week schedule shall re-commence the first school day after the recess. For the Christmas/New Year's break, the father shall have the children with him from the evening of December 24th until the 28th in odd years, with the children returning to the mother by 1:00 p.m. on the 28th and remaining with her until school begins. For the Christmas/New Year's break, the mother shall have the children with her from the evening of December 24th until the 28th in even years, with the children returning to the father by 1:00 p.m. on the 28th and remaining with him until school begins. The two week schedule shall re-commence the first day school begins. In odd years, the mother shall have the children with her the Wednesday night before Thanksgiving until Monday morning when school begins. In even years the father shall have the children with him the Wednesday night before Thanksgiving until Monday morning when school begins. The two week schedule shall re-commence the Monday following Thanksgiving.
In odd years, the father shall have the children for Purim, the first four nights of Passover, the second day and night of Rosh Hashanah, the last four nights of Sukkot, and the first four nights of Chanukah. In even years, the father shall have the children the last four nights of Passover, the first day and night of Rosh Hashanah, the evening before Yom Kippur and Yom Kippur through and including breaking of the fast, the first four nights of Sukkot and the last four nights of Chanukah. In odd years, the mother shall have the children for the last four nights of Passover, the first night and day of Rosh Hashanah, the evening before Yom Kippur and Yom Kippur through the breaking of the fast, the first four nights of Sukkot and the last four nights of Chanukah. In even years the mother shall have the children with her the first four nights of Passover, the second day and night of Rosh Hashanah, the last four nights of Sukkot and the first four nights of Chanukah. Should a Jewish Holiday conflict with a school recess, the Jewish Holiday schedule shall control until that holiday is over. Once the Jewish Holiday is over, the regular two week schedule shall re-commence.
Each parent is free to travel with the children nationally or abroad, but must give the other parent thirty day's advance notice of any such trip in writing, providing a detailed itinerary including names and addresses of hotels or other lodging places, with those numbers to be used only in case of emergency. Any such travel may supercede the other parent's Wednesday night parenting time, but may not infringe on the other parent's two week schedule without written consent. Travel may not interrupt daily phone contact with the children. The mother shall keep possession of the children's passports, should they exist, but must turn them over to the father upon him providing thirty day's notice of travel. After travel is over, the father shall immediately return the passports to the mother's possession.
The parents are free to agree on any other parenting time, holiday schedule or religious holiday schedule they consent to, in writing.
Accordingly it is
ORDERED that the mother and the father shall enjoy equal residential custody (physical custody) with the parties sharing legal custody (joint custody), as the terms are defined in this decision; and it is further
ORDERED that parenting time shall occur as described in this decision.
This constitutes the Decision and Order of the Court;