Opinion
V-2543-4/06/06A.
Decided June 17, 2010.
Joseph O'Shea, Esquire, Staten Island, NY, Attorney for Petitioner Father.
George Sieghardt, Esquire, Staten Island, NY, Attorney for Respondent/Cross-Petitioner Mother.
Christopher Robles, Esquire, Staten Island, NY, Attorney for the Child Andrew.
Mitchell Newman, Esquire, Staten Island, NY, Attorney for the Child Julia.
By cross modification petitions dated June 8, 2006 and August 23, 2006, respectively, Petitioner/Father Mr. James N. and Respondent/Mother Elizabeth M. move this Court to modify a Final Order of Joint Custody entered pursuant to a Stipulation of Settlement (the "Stipulation") which survived and did not merge into a Judgment of Divorce entered on July 15, 2005 (the "Judgment"). In the Stipulation, the parties agreed that they would have "joint and shared custody" of the subject children Andrew N. (DOB redacted) and Julia N. (DOB redacted). Both parties were represented by counsel at the time they entered into that agreement. For the reasons set forth below, Mother is granted an Order of Sole Custody. Father's Modification Petition is dismissed.
Procedural Background
A. Family Court Litigation.
On January 6, 2005, while the divorce proceeding was pending, Mother filed a Family Offense Petition against Father. A temporary order of protection was issued against Father in favor of the Mother in which Father was ordered to stay away from Mother except for court ordered visitation contact. That same day Father filed a Family Offense Petition against Mother. No Temporary Order was issued on that Petition. On January 19, 2005, Father filed a Supplemental Family Offense Petition against Mother on behalf of himself and the children. No Temporary Order of Protection was issued on that Petition. Father's cases were joined for trial with Mother's case against Father.
On March 21, 2005, after a contested trial where both parties were represented by counsel, a finding of Aggravated Harassment in the Second Degree [PL § 240.30(2)], was made against Father and a five year Final Order of Protection was issued in favor of the Mother against Father. See Order dated March 20, 2005 (Porzio, J). Based on that Court's finding of aggravating circumstances, Father was ordered to attend anger management as a condition of the Final Order of Protection. A finding of Harassment in the Second Degree was entered against Mother [PL § 240.26 (3)]. A one year limited Final Order of Protection was issued against Mother on behalf of Father. A three year limited Final Order of Protection was issued against Mother on behalf of the subject children with the added conditions that Mother not use corporal punishment on the children and that she attends anger management. No evidence was submitted at this custody trial as to whether either parent ever complied with Family Court's Order that they each attend anger management.
On April 22, 2005, an appeal was filed which was dismissed on July 22, 2005. On April 4, 2006, Father filed a Violation Petition against Mother. On June 8, 2006, Father filed another Violation Petition against Mother which was dismissed for failure to appear on November 6, 2006 for trial. Father filed another Violation Petition against Mother on March 27, 2007. This Petition was joined for trial with Father's April 4, 2006 Violation Petition. After trial on September 12, 2007, all petitions brought by Father against Mother were dismissed and Father was enjoined by Family Court from filing any further petitions against Mother under Article 8 of the Family Court Act absent prior Court approval (See Order dated 9/12/07 DiDomenico, J.).
On April 4, 2008, after each party filed the instant custody modification petitions, Mother filed a Violation Petition alleging that Father violated the Final Order of Protection. On April 16, 2008, Father's counsel moved to dismiss that petition which motion was denied. All counsel agreed that the Violation Petition would be set for trial after a decision was rendered on the instant modification petitions. By letter dated May 20, 2010, Mother withdrew the Violation Petition thus eliminating the need for another trial.
In total, since 2004, Father filed nineteen petitions against Mother in Family Court, including five petitions to modify child support, one of which is currently scheduled for trial on June 30, 2010. Mother has filed twelve petitions against Father in Family Court including several for enforcement of child support, one of which has been joined for trial on June 30, 2010. The constant litigation between the parents has resulted in multiple trials in multiple courts, multiple investigations by the Administration for Children's Services ("ACS"), multiple lawyers, and multiple forensic evaluations, all of which have caused the subject children to be interviewed on a myriad of occasions by a number of professionals.
B. This Trial.
The instant cross modification petitions were tried on several dates. Father testified on his own behalf and called the following witnesses: Dr. R.L. (court appointed forensic evaluator) and Ms. M. (neighbor). He also introduced documentary evidence (Petitioner 1-10). Mother testified on her own behalf and called the following witnesses: Dr. M.W. (forensic evaluator); Cynthia Lee, Esquire (former attorney for the subject child J.N.) and Dr. D.M. (family therapist). Mother also introduced documentary evidence (Resp. A-H). Court ordered forensic reports were prepared by Dr. M.W. (Resp. Ex. G) and by Dr. R.L. (Petitioner Ex. 4). A supplemental forensic report dated February 9, 2009 was prepared by Dr. R.L. (Petitioner Ex. 5).
The case was tried on October 14, 2008, October 29, 2008, October 30, 2008, February 10, 2009, March 4, 2009, March 30, 2009, June 11, 2009, June 16, 2009, June 18, 2009, August 4, 2009, August 18, 2009, September 1, 2009, September 23, 2009, October 21, 2009 and November 23, 2009.
Mr. Mitchell Newman, Esquire, on behalf of the child Julia., called Mr. R.M. (Mother's husband) as a witness. Mr. Christopher Robles, Esquire served as attorney for the child Andrew. In camera examinations of the subject children were conducted in the presence of their lawyers on January 22, 2010 and January 26, 2010, respectively. Counsel for the parties submitted written questions for consideration at the in camera examination. Written summations were submitted by all counsel.
Factual Background
The parties were married on September 12, 1992. On July 15, 2005, Mother filed for divorce. By Stipulation of Settlement dated October 13, 2004, the parties resolved the issues arising from their marriage and agreed to joint custody of the two subject children Andrew and Julia. This stipulation was incorporated, but not merged, into the Judgment of Divorce entered July 15, 2005. Pursuant to the Divorce Judgement, the parties agreed that they would have "joint and shared custody of the children" and that the children would have visitation with each parent pursuant to the detailed schedule set forth in the Judgment and "as mutually agreed to by and between the parties." (Resp. H). Since the entry of the Judgment, the children have been spending Mon-Tues with Father, Wed-Thurs with Mother and alternating weekends with each parent. With the exception of Thanksgiving, all holidays are shared equally. The parties agreed that they would alternate Thanksgiving as follows: two years to Mother and one year to Father.
On July 8, 2007, Mother married R.M. ("Stepfather"). Mr. M. has a severely autistic and mentally retarded teenage son who spends significant time with Respondent Mother and the N. children at Mother's home.
A. Father:
Petitioner Father is 43 years old. He lives alone with two dogs. He has been engaged since February 2006 to his girlfriend Alexandra C. who he intends to marry when this case is over. After his marriage, Father told Mother he intends to relocate to Basking Ridge, New Jersey where his fiancé lives and works. As of the time of his trial testimony on March 4, 2009, the children had met Father's fiancee approximately six times. Ms. C. was not called as a witness in this case and no application was made by Father to include her in any of the court ordered forensics or supplemental forensics in this case. Accordingly, this Court has little information regarding Father's fiancé, her fitness to participate in parenting these children in the event she marries Father, or the quality of her interaction with these children.
Father is self employed as a real estate agent and an insurance salesman. He was employed as a Vice President at UPAC, a division of First Bank, for about eighteen months, but is no longer employed there. During 2008, his income was approximately $100,000. Prior to his work at UPAC, Father managed a real estate office. No evidence was introduced as to Father's current income. Mother told Dr. L. that she believed Father may be supporting himself by selling marijuana and using equity from the home (Pet. Ex. 4). Mother alleges that the child Julia discovered "five bags" of marijuana in Father's cellar. Father admitted that he was arrested for possession of marijuana when he was 32 years old.
In June 2007, Family Court entered an Order against Father for child support arrears in the amount of $2,734.00 (Resp. D). In 2008, Mother filed an enforcement petition against Father for nonpayment of that Order. Father paid $1,000, toward arrears during the course of this trial (James N., 3/04/09, p. 44). Father admits that he is required to maintain a $500,000 life insurance policy for the benefit of his children pursuant to the Judgment of Divorce. Father further admits that he allowed his life insurance policy to lapse several years ago and it was only a $250,000 policy. Father is further required to contribute $1,000 per year, per child, to a College 529 plan. Father admits he has not contributed to the plan for several years. Father admits he decided to put the money he is required to save for college tuition into "real estate and his home" (James N. 9/23/09 p. 61). Father admits he owns several vehicles including a Mercedes E-class, Cadillac Deville, Camaro Z-28, and a motorcycle. Father pays over $1,000 per year to insure these vehicles. (James N. 9/23/09 p. 63-64).
On the subject of why the parties divorced, Father told Dr. L. that during the marriage Mother "withdrew" from him which resulted in his having "affairs."(Pet. Ex. 4).
B. Mother.
Mother is 42 years old. Mother works out of the home as an insurance agent for her father's insurance company. Mother lives with her husband and her parents in her parent's home. Prior to her remarriage, she always provided health insurance coverage for the children. Pursuant to the Judgment, Father is required to contribute 50% toward any unreimbursed medical and/or dental expenses. According to Mother, Father contributes to dental expenses from time to time but did not contribute anything for Andrew and Julia's braces.
Her husband, Mr. M., works full time as a school bus driver for special education children. Like Mother, he also has medical insurance and other benefits as part of his employment. Stepfather is currently providing the subject children with medical and dental coverage. Mother claims to have a "massive" support system of friends and family.
C. The Children.
Julia N. is 12 years old. She attends Intermediate School 72. Andrew N. is currently 14 years old. He attends Stuyvesant High School. Both children excel academically. Neither child is alleged to have special needs.
The relationship between Mother and Julia has been strained since the marriage of Mother to Mr. M. Julia has had incidents with Mother and her maternal grandmother in which she is alleged to have spoken disrespectfully to them or otherwise not followed the rules of the home.
Father admits that, in December 2006, Mother invited him to her house to discuss Julia's behavior. At that time Mother told Father that Julia's behavior was "out of control." While Father claims he could not now recall the details of that meeting, Mother credibly testified that Father instructed Julia at that time to obey Mother and the rules in her home. Father claims that Mother admitted to him that she smacked Julia in the face. Notwithstanding Mother's alleged admission in that regard, Father left Julia in Mother's care that same evening.
Approximately a week later, Father brought Julia to a local police precinct to report an incident of "violence" by Mother against Julia (James N., 3/04/09, p. 55). Father could not recall the details of this particular report made against Mother and no further evidence was elicited on this subject at trial. Father did acknowledge that he has called the police a number of times on Mother and has filed several incident reports against her. On at least one occasion, he brought the children to the police precinct with him. Some of these reports had to do with missed visits.
Both parents are actively involved in all aspects of their children lives.
The Significant Events
Over years of bitter litigation and days of trial, each party has recounted to this Court a litany of incidences that have occurred between them. Some of these instances may be best described as petty with each parent bearing a share of the responsibility such as Father putting Julia on a motorcycle after he found out she rode a quad with Stepfather, Mother changing Julia's dental appointment to occur on a day Father had visitation and Father switching it back to a day Mother could take her. Rather than dignify these incidences, this Court discusses in this opinion only those significant events which weighed most heavily in this Court's decision to grant sole custody to Mother.
1. ACS Involvement. a. Marijuana in Julia's Lunch Box.
On or about October 2005, while Father had parenting time with Julia, school personnel found marijuana in her lunch box. She was eight years old and in second grade at the time. Father admitted that Julia had spent time at his house the night before this incident and that he gave Julia her lunch box. Father admits that he placed a snack for Julia in the lunch box, however, he claims he has no idea how marijuana and two forms of his identification wound up in her lunch box. Father speculated that an acquaintance he had been dating may have put these items in Julia's lunch box. He offered no explanation as to why this person would have done that except that she had a reputation for stealing and she lit a "joint" in his presence.
As a result of this incident, Father was called up to Julia's school. ACS was called and conducted an investigation that included interviews of the children. ACS also conducted a contemporaneous urine drug test of Father which was positive for marijuana. Father claimed that a second urine test which was taken at a later time was negative for marijuana. As neither of those drug tests were admitted at trial, the Court does not credit Father's testimony that the second urine test from December 2007 was taken "one week later." Furthermore, the Court offers little weight to the results of the drug tests that were introduced into evidence as they were taken more than two years after this incident.
b. Andrew's Punishment.
Another ACS investigation involving Father and the children occurred in January 2007. At that time, Father was investigated for ordering Andrew (then 11 years old) on Christmas Day to stand on the street corner without shoes or a coat in order to punish him for arguing with his sister. Father recalled the incident, admitted that Andrew was wearing no shoes and only a light jacket on that day but claimed that Christmas that year occurred during the "warmest December on record." He denied Andrew was sent out as a form of punishment.
c. Andrew's Souvenir.
Father admits to calling ACS on Mother for reportedly giving Andrew a dangerous knife. After viewing the knife and speaking to the children and Mother, ACS deemed the allegation of inadequate guardianship unfounded. Specifically, ACS found that Mother had brought a wooden knife home from her honeymoon in the Dominican Republic as a souvenir for Andrew. Father admits that he did not see the knife before calling ACS on Mother. When asked at trial why he would report Mother to ACS without first seeing the knife or asking Mother about it, he said it "seemed" something of a "safety issue." (James N., 3/04/09, p. 55).
2. Police Reports.
Father admitted he filed eight police reports against Mother for failing to produce the children for visitation from the time the Judgement of Divorce was signed on July 15, 2005 to October 2008. He states that Mother filed one police report against him.
3. Julia's I-Pod.
The parties spent a lot of trial time exploring an incident that occurred in Mother's home in January 2009. Father admits that he was not present during the time of the incident. Specifically, Mother and Julia were arguing because Julia was caught shoplifting at the mall. Julia wanted to call her Father and Mother allegedly forbid her from using the telephone and told her to go to her room and study. Father repeatedly called Mother's home to speak with Julia. Stepfather interfered in the argument (as he often did) which caused the incident to escalate into a screaming match in which Julia called Stepfather derogatory names, including "fat pig."
In an uncontrollable rage, Stepfather took Julia's I-Pod and smashed it with a hammer in front of her. This violent outburst caused Julia to hyperventilate. An ambulance was called. Julia was taken to a local emergency room and released. Mother called Father from the hospital. Father went to the hospital to see Julia. Stepfather addressed this incident in therapy sessions with Dr. M. Mother brought Julia to Dr. M. to help her deal with her feelings about this incident. When Father found out Julia was seeing Dr. M., Father called Dr. M. and forbid him from continuing her treatment.
4. Pennsylvania Vacation.
Father regularly takes the children to the Pocono Mountains area in Pennsylvania for vacation. In December 2006, Mother called Father about a week prior to their departure and explained that she had mistakenly purchased Broadway play tickets during that vacation week for both children. Father drove the children back from Pennsylvania for the performance only after Mother agreed to pay him $200.00. Father claims that this was to reimburse him for the costs incurred when he had given up a day of his annual time share week stay. (James N., 3/04/09, p. 58).
5. Julia's Dance Recital.
Julia participated in a dance recital at her school in March 2008. Although the dance recital was open to all parents of participating students, Father told Mother that he "didn't think it would be a good idea if she showed up" because of the problems occurring between them. (James N., 3/4/09, p. 89). When Mother arrived with Stepfather, Father claims Mother sat immediately in front of him. Mother credibly testified that she sat about eight or nine rows behind him. Father complained to the principal and the security guard who confronted Mother. Mother left without seeing Julia perform.
6. Julia's Communion/Andrew's Confirmation
Julia made her First Holy Communion in March of 2005. The Court credits Mother's testimony that Father received six tickets to this event and told Mother she could not attend and did not give her any tickets. The Court does not credit Father's testimony that he could not recall if Mother requested a ticket to attend. Mother's parents who traveled from Florida to see Julia make her communion were disappointed. Mother gained access to the back of the church where she remained standing in the public viewing area. Father had a communion party for Julia and did not invite Mother or the maternal grandparents.
A similar incident happened when Andrew made his Confirmation in April 2009. Father did not offer any tickets to Mother. Mother had to sneak into the church to see her son receive his sacrament.
7. Mother's Remarriage.
Mother credibly testified that Father actively interferes in the subject children's relationship with Stepfather. Mother testified that Father punished Andrew after he went on a fishing strip with his Stepfather. Mother further testified that her wedding ceremony to Stepfather was planned to include the subject children in the ceremony. Andrew was the best man and Julia was the maid of honor. Stepfather wrote vows to the subject children. Mother and Stepfather purchased rings for the children. Their honeymoon included the children on a family vacation to the Dominican Republic. Mother credibly testified that Father refused to sign for passports for the children. Prior to departing on her honeymoon, Mother had to rush to Court to secure a court order allowing passports for the children.
8. Mother's Use of Corporal Punishment.
Mother denies that she smacked Julia in the face in December 2006. Father claims that Mother was mad because Julia wanted to open an email from Father and became disrespectful towards Mother and the maternal grandmother when she was denied access. Father admits he was not present at the time of the incident and therefore, the information he has on this subject came from Julia.
9. Disparaging Each Other.
Mother has on many occasions spoken disparagingly about Father to the children and in their presence. She has also spoken to the children about this litigation, including telling Julia that her grandparents may loose their home due to legal costs, notwithstanding this Court's Order that these matters not be discussed with the children or in their presence. Stepfather has also on countless occasions expressed his own negative opinion of Father to the children.
Similarly, Father routinely speaks disparagingly about Stepfather to the children. In addition, Father has also done nothing to foster the relationship between the subject children and Stepfather. He has told the children to avoid Stepfather as much as possible, a strategy which is hardly realistic given the fact that these children reside with Mother and Stepfather.
This litigation, coupled with the unfortunate conduct of Mother, Father and Stepfather, has caused great distress and anxiety to these lovely children who have managed to succeed in all aspects of their lives, notwithstanding the unfortunate role modeling they have witnessed from the adults who claim to have their "best interests" in mind.
10. The Forensics Examinations.Dr. W. recommended that Mother be granted sole custody. Dr. L. made no express recommendation as to which parent should have custody but recommended that the children live with Father and have liberal visitation with Mother. Dr. L. believes it would be beneficial for the children to visit with Mother after school on weekdays "until R.M. [Stepfather] returns home from work" and then return to Father's home for the night. This recommendation was premised in large part on the IPO incident, Stepfather's "uncontrollable rage" and Mother's alleged inability to protect Julia from Stepfather.
The Applicable Law
Where, as here, parties seek to modify a Final Order of Joint Custody, the applicable standard is whether a substantial change of circumstances exists to warrant modification. See Dhingra v. Puri , 62 AD3d 935 (2d Dept. 2009). In determining whether a change in circumstances warrants a change in custody, the Court shall consider such factors as: (a) whether the alleged change implicates the fitness of one of the parties; (b) the nature and quality of the relationships between the child and the parties and (c) the existence of a prior agreement. Matter of Joseph F. v. Patricia F. , 32 AD3d 938 (2d Dept. 2006). Factors to be considered in any custody determination include the parental guidance provided by the custodial parent, each parent's ability to provide for the child financially, the relative fitness of each parent, and the effect an award of custody to one parent might have on the child's relationship with the other parent. See McGovern v. Lynch , 62 AD3d 712 (2d Dept. 2009). Where domestic violence is alleged, the Court must consider the effect of such violence on the best interest of the child. See Domestic Relations Law § 240 ; Manfedo v. Manfredo , 53 AD3d 498 (2d Dept. 2008); Matter of Mareno v. Cruz , 24 AD3d 780 (2d Dept. 2005).
The custodial parent's anger, hostility and attitude toward the non custodial parent can substantially interfere with his or her ability to place the needs of the children before his or her own needs in fostering a continued relationship with the non custodial parent. Young v. Young , 212 AD2d 114, 123 (2d Dept. 1995). Joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in a mature civilized fashion. Braiman v. Braiman , 44 NY2d 584 (1978). "As a court-ordered arrangement imposed upon already embattled and embittered parents, accusing one another of serious vices and wrongs, it can only enhance familial chaos." See Braiman v. Braiman , 44 NY2d 584, 590. Joint custody is not a viable option where the parties relationship has become so acrimonious that they cannot make joint decisions without resorting to court intervention. See Dhingra v. Puri , 62 AD3d 935 (2d Dept. 2009). The recommendations of court appointed experts, and the attorney for the child, are factors to be considered and are entitled to some weight, but they do not usurp the judgment of the trial judge. See Baker v. Baker , 66 AD3d 722 (2d Dept. 2009).
In this case, both parties agree that the current joint custody arrangement set forth in the Judgment is not working given the deteriorating relationship between them. See Dhingra v. Puri , 62 AD3d 935 (2d Dept. 2009); Frey v. Ketcham , 57 AD3d 543 (2d Dept. 2008); Mildred S.G. v. Mark G. , 62 AD3d 460 (1st Dept. 2009). After considering the evidence in this case including the in camera examinations, and for the detailed reasons set forth below, this Court finds that, while Mother has clearly made her own errors in parenting, on balance, she is more fit than Father to serve as the sole legal custodian of the subject children.
During his lengthy testimony before this Court, Father was not credible on all of the events critical to this Court's decision. For example, his explanation as to how marijuana wound up in Julia's lunch box when he was undeniably the sole guardian of that young child at that time was particularly preposterous. He has reported Mother to ACS approximately nine times which, among other consequences, subjected the children to numerous interviews. On one occasion, Father alleged Mother gave Andrew a dangerous instrument which, in fact, was a wooden souvenir knife from Mother's honeymoon vacation. The fact that Father called ACS on Mother without seeing the knife, or asking Mother about it, suggests that he has little appreciation of the adverse effects these investigations have on the subject children and their relationship with Mother. See Mildred S.G. v. Mark G. , 62 AD3d 460 (1st Dept. 2009).
Father's interference in the children's relationship with Stepfather, which ranges from punishing Andrew for time spent with Stepfather to rewarding the children for clandestinely reporting negative incidences that occur in Mother's home, is another major area of concern to this Court (Resp. G, p. 8). See Frey v. Ketcham , 57 AD3d 543 (2d Dept. 2008). He has encouraged Julia to document in "books" incidences involving Mother and Stepfather which he incredibly claims was to further her therapy. Rather than helping the children develop strategies to deal with their mother's remarriage, Father presents as ready to capitalize on any mistake or misstep by Mother in her parenting of the children. This is particularly destructive to Julia whose behavior suggests that she is still struggling with the effects of this divorce and the remarriage of her mother.
Indeed, after many days of trial testimony, this Court has serious concerns about Father's parenting and his ability to place the children's interests before his own needs. His decision making with respect to the securing of mental health treatment for the children is extremely troubling. Father fired two of the children's therapists, and forbid Dr. M. from working with the children. Although afforded ample opportunity to do so, Father was unable to explain to this Court why he would deprive the children of mental health services given that many of the children's emotional issues stem from the toxic relationship between him and their mother.
Dr. W., in her forensic report, opined that Mother was by far the more appropriate parent to serve as sole custodian of these children. She described Father's bizarre attempt to blame the marijuana found in Julia's lunch box on a woman he had been dating as "externalizing" all responsibility and/or evidencing that father was "helpless to resist his temptations" which at best showed "poor judgment" and a "poor read of character". Dr. W.'s impression of Father was, as follows:
His overt presentation was earnest, concerned and responsible, but ultimately, the evaluator came to experience him as manipulative, controlling, dissembling and with very poor judgment and little insight into his own behavior." (Resp. G., p. 12).
While Dr. L. reached a different conclusion, this Court respectfully declines to follow Dr. L.'s recommendation that the children reside with Father for the following reasons. See Baker v. Baker , 66 AD3d 722 (2d Dept. 2009). First, Dr. L. did not find Father's failure to support these children as a significant factor. Second, although Dr. L. visited Mother's home, he never visited Father's home. Dr. L. indicated in his report that the children said Father's home is "messy" and that "Father's room looks like a bomb went off". His failure to visit Father's home is particularly significant in light of Dr. L.'s recommendation that Julia spend Monday through Friday and every other weekend in Father's home. Third, Dr. L. indicated that therapy for the subject children is beneficial, however he gave little, if any, weight to his finding that Father lied when he said that he could not afford to pay for their therapy. Dr. L. believed that Father fired the childrens' former therapists.
In addition, Dr. L. placed a great deal of emphasis on the existence of an Order of Protection on behalf of Stepfather's first wife's entered against Stepfather almost ten years ago in 2001. However, Dr. L. did not include in his report the five year Final Order of Protection against Father on behalf of Mother which was in effect throughout the pendency of this case and only recently expired. Dr. L. further found fault in Stepfather for not attending anger management, notwithstanding his participation in therapy since 2008. Dr. L. could not recall if Father attended anger management as required by the Final Order of Protection.
Last, while this Court has a high regard for Dr. L.'s work as a general matter, Dr. L.'s credibility was severely undermined in this particular case. Ms. Cynthia Lee, the children's former attorney, credibly testified that, on the evening prior to submitting his report to this Court recommending that the children reside with their Father, Dr. L. called Ms. Lee and referred to Father as a "sociopath". At trial, Dr. L. did not deny that he expressed this concern to Ms. Lee. However, his opinion that Father was a "sociopath" appears nowhere in either of his reports (Pet. Ex. 4). Dr. L. could also not recall telling Ms. Lee that he would be recommending an immediate change in custody of the children to Mother. In addition, at the time of his evaluation, this witness was in the midst of his own bitter divorce proceeding where he was actively involved in pursuing custody of his own children.
In granting sole custody to Mother herein, this Court is by no means suggesting that Mother's parenting has been appropriate at all times. Her badmouthing of Father is of deep concern to this Court. On balance, however, and as between these two parents, Mother presents as the more stable parent for these children for the following reasons:
First, she has consistently attempted to secure counseling for herself, Stepfather and the subject children. Indeed, even after Father demanded the children end their sessions with Dr. M., Mother and Stepfather continued to attend therapy. These sessions became even more frequent after Stepfather had serious brain surgery in 2008. Mother and Stepfather credibly report, consistent with Dr. M.'s testimony, that they have learned through counseling boundaries for dealing with the children and with each other and alternative strategies for reducing anger and conflicts. Their growth in this regard is evidenced by the fact that conditions in Mother's home have improved in that there is less arguing and there have been no further acts of violence reported to this Court.
On the subject of domestic violence which this Court is required to specifically consider, the Court has considered the Family Court Orders of Protection involving these parties and the children, all of which have expired. There were no findings of violations of any of these Orders introduced at this trial and no further acts of violence by either parent against the children were proven. See Domestic Relations Law § 240 . The parties, however, spent a great deal of time on an incident in which Stepfather smashed Julia's Ipod in January 2009. Stepfather testified at length as to what happened that day between him and Julia and assumed full responsibility for that incident. He presented to this Court as genuinely and deeply remorseful for losing his temper at that time and for failing to respect Mother's role as decision maker for these children. He credibly testified, consistent with Mother's testimony, that he has learned now to take a critical "step back" in order to give Mother the space she needs to parent her children. This growth is critical in order for Stepfather to have, if not a loving, than at least, an appropriate and civil relationship with the subject children of whom he appears to be genuinely fond.
In sum, while the conduct of Stepfather toward Julia and Julia's conduct towards Stepfather, was indeed inappropriate, this incident appears to have been the culmination of a struggle between them, which cannot be solely blamed on Mother. Blended families are often faced with the formidable challenge of learning appropriate boundaries between stepparent and the other spouse's biological children. This is difficult in all cases, and perhaps made even more difficult in this case, where the relationship between Mother and Father and Father and Stepfather has been so acrimonious.
Second, Mother presents as the parent more able to provide for the children as a practical matter. She lives in her parent's home, and with Stepfather's pay considered, there are two salaries available to support the subject children. Father, on the other hand, has been unemployed for an extended period of time. While he claims to be self employed, no evidence was offered to explain what his income is or how he supports himself. Indeed, as of the time of the Dr. W. report, Father had a $330,000.00 mortgage, three luxury cars, a vacation time share and other amenities. No evidence was offered, however, as to how Father is able to maintain this lifestyle nor how he intends to continue to do so in the future.
Mother credibly testified that in 2007, she filed a Petition in Family Court for child support arrears. Mother testified that a Judgment was entered against Father in the amount of $2,700.00 for child support arrears and $1,400.00 for Mother's counsel fees. Mother testified that Father has not consistently made payments towards those arrears. Mother further testified that she currently has an enforcement proceeding pending in Family Court on this subject. In addition, Mother credibly testified that Father failed to contribute towards summer camp, unreimbursed medical and dental expenses or similar expenses he is required to pay under the Judgment. Mother testified that in 2008, she planned on sending Julia and Andrew to summer camp. Mother testified that because Father failed to pay for his share of the summer camp expenses she was only able to send Julia to camp. While there is no evidence to support Mother's concern that Father may be selling marijuana, there is likewise insufficient evidence as to Father's ability to support these children if sole custody was awarded to him. For these reasons, an Order of Sole Custody is granted to Mother.
Parenting Time
1. Father's Parenting Time
After carefully considering the in camera testimony of the children and testimony of the parents, Father's visitation shall be as follows: Father shall have visitation Tuesdays and Thursdays of every week; and the 1st, 3rd and, where applicable, 5th weekends of every month. Father's visitation on Tuesdays and Thursdays during the school year shall be from after school until 8:30 p.m. Father's visitation on Tuesdays and Thursdays when school is not in session shall be from 3:30 p.m. until 9 p.m. Father's alternate weekend visitation during the school year shall begin after school on Friday and end on Sunday at 8:30 p.m. Father's alternate weekend visitation when school is not in session shall be from 3:30 p.m. on Friday until 9 p.m. on Sunday. Father shall pick up and drop off the children curbside at Mother's home. The children shall no longer be compelled to end their Sunday visit with their Mother at 4:00 p.m. Requiring the children to stop what they are doing every Sunday at 4:00, which may have been feasible when they were younger, is no longer feasible or in their best interests given their current ages. Thus, Mother's weekend shall continue uninterrupted. The Thanksgiving holiday is modified in that the parties shall alternate this holiday equally.
2. Church Attendance
As attending Roman Catholic Mass is important to these children, and as they have a desire to continue to worship in that faith without interference, each parent shall be responsible for ensuring that the children are permitted to attend a worship service of their choosing each weekend and on Holy Days of Obligation. As this Court recognizes that Mother is not of the same faith of the children, Mother is not compelled to attend the service, but is ordered to provide the children with transportation necessary for them to attend mass.
3. Extracurricular Activities
As the subject of extracurricular activities has been the source of much fighting between Mother and Father, the children shall have the right to meaningfully participate in such activities even if the activity meets on the other parent's weekend or during the other parent's "time". Given the ages of these children their interest in being permitted to freely engage in such positive activities as a dance group or a baseball team outweighs the right of either parent to insist on their "time".
These children love both of these parents and want both parents to share in the important moments of their lives. To this end, both parents shall be permitted to attend all significant academic, religious, or extracurricular events in the lives of these children and shall be permitted to invite to those events Stepfather or any significant other these children would like to share these events with. Each parent bears the responsibility and the cost of securing tickets to such events. In the event that Father is unable to secure the information necessary for him to attend then Mother shall secure, at Father's expense, at least one ticket for him to be present on such occasions.
Conclusion
While these children love their parents equally, neither parent has allowed these children the freedom to have an equal loving relationship with the other parent. The parents inability to communicate, or to be in each other's presence, has taken a sad toll on these children. Julia feels that she must protect her mother from her Stepfather, a fear which is encouraged by Father's antipathy for Stepfather and his refusal to accept the fact that he is now part of the children's lives. Mother's past inability to set boundaries necessary to consistently parent her children appears to have shaken the children's sense of security which may account for Andrew's withdrawal. Mother's disparaging of Father, and Father's constant badmouthing and disapproval of Stepfather, continues to wear on the children. Happy events, such as performances and religious ceremonies, are marked by stress and feelings of disloyalty as the children witness one parent actively working to exclude the other from attending. Even the relief one would expect these children to receive from their deep spiritual faith is limited as one parent makes them feel guilty for wanting to attend Mass, while the other parent makes them feel guilty for not attending. It is the sincere hope of this Court that this decision may provide some relief to these children by severely limiting the need for these parents to interact with each other on issues pertinent to these children.
This Order shall be effective, after the Attorneys for the Children have had an opportunity to explain this decision to the subject children, but no later than June 30, 2010.