Opinion
V-0000-00.
Decided July 7, 2008.
The mother was represented by Nassau County Legal Aid Society, Marie Normil, Esq. The father was represented by Mangi and Graham LLP, by James J. Graham, Esq. Ellen Pollack, Esq. was appointed attorney for the child.
The matters before this Court are cross petitions for custody of the child, K, age 14.K is the biological child of the parties herein, father J. J. M. and mother M. E. 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 K. The mother filed her own petition approximately one month later, in November 2007. The hearing on the issue of custody commenced on April 29, 2008 and ended on May 19, 2008 with one trial date in between. There was one in camera interview with the subject child on May 21, 2008.
BACKGROUND
The parties herein were never married. At the time K was born, the parties were living together, but they separated around the time K was eighteen months old. There were never any custody or visitation orders issued by any court. The parties arranged for custody and parenting time between them, with the child living with the mother during the week in her home in L.B. and attending school in the L. B. School District. The child would spend virtually all weekends and all holidays with the father. The mother has three children from a prior marriage, two of whom still live with her and K. The father has no other children, though he currently lives with his fiancee and her eight year old daughter.
The impetus for the within petitions appears to be a period of time where K experienced some difficulties including school suspensions, marijuana and alcohol use and a twenty-six day mental health-related hospitalization. Both parents acknowledge a change in their son's behavior from a happy, jovial little boy to a moody, highly emotional young man with a tendency toward violent outburst. Each parent points out that at the time these changes began, they each began a new relationship. The father started sharing his parenting time on the weekends with the woman who is now his fiancee. The mother began a relationship with a gentleman with whom she was still seeing at the time of her testimony. They do not live together and tend to spend the weekends together. The situation with K seemed to climax in November 2007. K failed to come home to his mother's residence one evening and after calling the father and learning K was not there, she called the police. The police eventually informed her they found K. He had been smoking marijuana and drinking alcohol. While the exact condition he was in when he was found is in dispute, no one disputes that he was intoxicated and under the influence of drugs. The mother took K to a local hospital first and eventually he was transferred to the hospital where he had his twenty-six day stay. Since that hospitalization, both parents seem to agree K's behavior has improved. He was placed on a series of medication to help with ADHD, depression, bipolar disorder and certain other drugs to counteract the effects of these drugs. K currently sees a psychiatrist for medication maintenance and a different therapist on a weekly basis for counseling. K also attends a day treatment program, but it is anticipated he will graduate from that program and return to regular school by the beginning of the fall term.
The father asserts he should have custody because he can provide K with a more structured environment. The mother asserts K should remain with her because he has always lived with her and the father has his own mental-health issues which may exacerbate K's.
SUMMARY OF TESTIMONY FATHER'S CASE A.G.
Ms. G. is the father's fiancee. They own a home together, and live there with Ms. G.'s eight year old daughter. On September 23, 2006, K was at his father's home with a cousin when there was an accident resulting in the death of a cat that was a family pet. K became very upset. At some point he had a razor in his hand and put it near his wrist. The father was present and grabbed the razor from K before he cut himself. The father then took K outside to calm him down, then took him to a hospital. They returned the next morning.
K stays at her house every weekend and on holidays. He gets along with her daughter fine, with typical sibling-type behavior and conflicts. When K misbehaves the father will talk to him and calm him down. Their house is in the E. M. School District.
On cross examination by the mother's attorney, it was pointed out that during the September 23rd incident, the mother was not present. Ms. G. did not go with K and Mr. M. to the hospital that night. Ms. G. testified she gets along with K, and for the most part, he listens to her. When K is disciplined, it is in the form of the removal of privileges, such as his televison or game system. Some time after the September 23rd incident, the father tried to enroll K in counseling but was repeatedly told he could not because he did not have custody. When K is with them, they do activities together, the most recent being seal watching.
During cross examination by the child's attorney, Ms. G. testified that should Mr. M. gain custody of K, child care would be provided by a combination of the paternal grandparents and a babysitter who lives across the street, though Mr. M. is generally home from work by 4:00 to 4:30 p.m. If K were to use drugs again while Mr. M. had custody they would get him counseling and keep a close eye on him. Ms. G. would defer to Mr. M. in doling out discipline. She was aware that K was taking medications, but was not certain what they were and exactly what he was being treated for. She did not recall K ever doing homework during his weekends at her home. He has never been at their home during a weeknight. As a result of a recent school suspension, K was grounded.
On redirect, Ms. G. testified she believed he was suspended most recently for threatening a teacher and had been suspended at other times for marijuana possession.
Ms. G. was a fairly credible witness. Her testimony was surprisingly brief and superficial considering the significant role she may play should the father gain custody. However, the Court believed she was being truthful during a majority of her testimony.
J. M.
Mr. M. is K's father. K was thirteen years old at the time of the testimony. He testified that K resided with Ms. S. and two of her sons in an apartment in Long Beach. When K was younger he was involved in student council and wrestling.
On September 23, 2006, a pet cat died when its neck was broken during an accident. K was hysterical. Mr. M. tried to calm him down. At some point K ran down into the basement, came up with a razor and held it near his wrist. Mr. M. grabbed the razor from him. He took K out to the backyard to talk to him, then took him to a hospital. On the way to the hospital he called Ms. S. and told her what occurred and where they were going. Ms. S. indicated that Mr. M. was overreacting. They arrived at the hospital at approximately 11:00 p.m. Saturday night, and returned home 8:00 a.m. Sunday morning. Thereafter, he, K and Ms. S. attended an intake appointment at South Nassau Community Hospital for K. Mr. M. was never informed of a follow up appointment. At the time of the incident K's grades at school had been declining to the point where he was failing some subjects. Also, his attitude was worsening and he had low self esteem.
In October 2007, he received a letter from the school that K was suspended and that a disciplinary hearing would take place. Ms. S. did not attend the meeting because she had prior vacation plans. The reason for the suspension was that K was caught on school grounds with marijuana. Less than two weeks later, a second letter came from the school regarding another disciplinary proceeding. This time both parents attended. The basis was that K was again found with marijuana in school. On November 13, 2007, K was found passed out on a street in Long Beach by the police. Mr. M. believed the police brought K home and then the mother brought K to a hospital the next morning. He stayed at the hospital close to one month. As a result of the hospital stay, Mr. M. learned his son was diagnosed as bipolar. It took one and half months after K's release to get him in drug and alcohol counseling. At the time of this testimony, K was in a day treatment program. Mr. M. began to see physical differences in K as a result of the new medications he was on, including weight gain, tremors, drooling and constant drowsiness. Mr. M. spoke to the mother about this, but the medications were not modified for some time. Mr. M. believed that only Ms. S. could deal with the doctors and therapists since she had custody.
At the end of January 2008, while at his father's house, K became angry and punched a hole in a wall. As a form of punishment, the father taught K how to sheetrock and then had K fix the wall. This was not the only incident of K damaging property in the home. To discipline K, privileges are removed and chores are added. Mr. M. is an electrician and works from 5:30 a.m. until 3:30 to 4:00 p.m. His fiancee is a legal secretary and works from 9:00 a.m. until 5:00 p.m. K spends all weekends and holidays at the father's house, including summer vacation. Mr. M. testified he learned his son was in a day treatment program one week after he entered it, and learned this from his son and not Ms. S. The father recently completed the Common Sense Parenting Program offered by EAC. Mr. M.'s parents and brother live very close by and there is a certified child care provider across the street. All are available to provide child care when necessary.
During cross examination by the mother's attorney, Mr. M. acknowledged that during the razor incident, the razor never actually came into contact with K's skin. He did not call Ms. S. until after he took K outside to calm him down. During the drive to the hospital after the razor incident, Mr. M. was crying when he called Ms. S. Since the time of the incident, Mr. M. made multiple attempts to get K into counseling but was never successful because he did not have custody of the child. K has been on Concerta since the fourth grade and the mother informed the father of this at the time. In general, the mother historically kept Mr. M. informed of what was going on in K's life and within the last three years informed him of issues involving education, mental health and health. During weekend visits, Mr. M. would assist K with homework at times. Since K has been in the day treatment program, his attitude has improved. In the past two years, Mr. M. has had "open access" to K, including speaking to him during the week and seeing him on weekends.
Regarding the incident in November 2007, when K was found drunk by the police, Mr. M. recalled Ms. S. calling him in the evening and telling him K had not returned home. She told him she would go to the police and file a missing person's report. Mr. M. testified he believed that the police found his son and brought him home, but acknowledged that the police may have brought him to the precinct. K then spent almost four weeks in the hospital. Upon his return, Mr. M. went to several intake interviews with K to find a therapist. As a form of discipline, K has privileges removed. These include removing his televison from his room and not allowing him to use his bicycle or skateboard. If K was being punished by his mother, and Mr. M. was informed of it, he would continue the punishment when K came to his home. Mr. M. describes his relationship with K as loving, though there are arguments at times. The father never offered to drive K to, or pick him up from, his day treatment program. He doesn't believe K likes the program. Mr. M. acknowledged that since K was about eighteen months old, Ms. S. made the majority of decisions regarding K, but would keep him informed. K first started "acting out" in the sixth grade, which was two years ago.
Ms. S. called the father and asked for his assistance. In the summer of 2007, the mother informed the father that K had been smoking marijuana. Shortly thereafter, the father found K in possession of marijuana. Mr. M. then discussed drug use with K and tried to explain the dangers of using drugs. Soon thereafter, letters from school arrived indicating K had marijuana in his possession at school.
Mr. M. testified he could provide K with more structure. He could do this because he lives in a safe neighborhood, in a good school district. He has family members close by to help him, and he gets home from work by 4:00 p.m. K would have his own room at the father's house. Mr. M. would keep on top of K's school work and homework. The parenting program he took focused on children with special needs and taught him how to address particular issues. Mr. M. suffers from ADHD and Intermittent Explosive Disorder (IED). He is on medication for the ADHD. The IED could result in violent outbursts, and K has witnessed some of these outbursts in the past. In January 2008, Mr. M. told K he would no longer be allowed to stay over at the father's house if he continued to damage property. On one occasion, K broke a door and the father had K fix it. K called his mother and said he wanted to come home. On Super Bowl Sunday, 2008, Mr. M. brought K home early because he was breaking glass in the backyard and threatening family members. K's behavior began to deteriorate sometime after Mr. M. and his fiancee bought a house together, in 2006. K told his father the reason for this was he was being bullied at school.
During cross examination by the child's attorney, Mr. M. testified he sees a psychiatrist once or twice a month and sees a psychologist weekly. Mr. M. believes K's strengths to be his sense of humor, sensitivity and curiosity. He would like to get K involved in music and culinary school. Currently, they take day trips together, hiking, shell hunting, deer and seal watching and play video games together. Mr. M. testified K expressed a desire to live with him. Mr. M. recently went off medication for the IEP with his psychiatrist's approval. He would be open to counseling together with K and Ms. S. K's destructive outbursts, where he destroys property, are waning.
Mr. M. was a fairly credible witness. He appears to be actively involved in his son's life and wants his son to be a happy, healthy person. His answers to questions were for the most part, honest, thoughtful and rarely evasive.
At the close of Mr. M.'s testimony, the father rested his case.
MOTHER'S CASE
M. B.
Mr. B. is the boyfriend of Ms. S. He is a security consultant and retired N. C. Police Detective. He has been dating Ms. S. for approximately five years. He described his relationship with K as cordial and comfortable. On September 23, 2006, he was with Ms. S. when she received a call from Mr. M. about the razor incident. He testified that during that phone call, Ms. S. was trying to calm K down. Based upon his observations, K and Ms. S. have a very good, loving relationship. He believes K's relationship with his brothers is also good. Mr. B. told K he was available to talk to if K ever so desired. After K came out of the hospital in December 2007, Ms. S. tried to enroll him in alternative school programs and counseling. He believed K's behavior was better soon thereafter.During cross examination by the father's attorney, Mr. B. acknowledged that he did not speak to K on September 23, 2006 and only heard what Ms. S. was saying, though he could hear screaming coming from the phone. Mr. B. and Ms. S. do not live together, so he is not fully aware of what goes on in Ms. S.'s household.
During cross examination by the child's attorney, Mr. B. testified he sees Ms. S. on the weekends and might see K two times a month.
Mr. B. was a credible witness, though the Court found his testimony to be barely relevant. Though it appears the purpose was to establish Ms. S.'s relationship with K from an outside source, Mr. B. acknowledged he sees K, at most, two times a month. Such is hardly enough to form a representative sample of the relationship and to be of much use to the Court. That said, he was forthright and honest and the Court appreciated his candor.
M. S.
Ms. S. testified she is an assistant supervisor for patient access at a local hospital. She has held that position for about ten years. She has lived in her current residence since 1990, and after K's birth in 1993, she lived there with Mr. M., K and her three other sons from a prior marriage. Mr. M. moved out in 1996, but K remained living in her home. Currently, three of the four sons still live with her, including K. The other two residing with her are twenty-four and twenty years old. Ms. S. testified K gets along with her other sons and that they have a typical sibling relationship. Her older sons would assist her with K, trying to encourage him and talk to him about doing the right things. Ms. S. first learned of K using marijuana when he told her in August 2007 that he tried it. At the time he was very upset and didn't feel well. Ms. S. spoke to K about it and hoped the experience of getting sick would mean he wouldn't try it again. A couple of months later, K was suspended form school twice, once for trying to smoke marijuana in school and another for having it in his possession. After the second school incident she sought out counseling for K which he started on October 24th. The father did not attend any of the sessions.
Regarding the September 23, 2006, incident with the cat, she recalled getting a phone call from the father and K was hysterically crying. Mr. M. was also crying. She urged the father to calm down because she felt that the father's emotional state was going to prevent K from calming down. Mr. M. first said he was taking K to the hospital, but then said he would just drive him around. Ms. S. was later surprised when a doctor called her from the hospital K was taken to. In October 2007, she enrolled K in a counseling program in Long Beach and he attended counseling once per week. She attended sessions with him, but the father did not. On November 14, 2007, K failed to come home from school one day and was later found by the police, intoxicated. She took him to a local hospital, and then the next day he was taken to another hospital where his mental health seemed to deteriorate at first. He remained at that hospital for twenty-six days. Upon his release, he had a hard time adjusting because he was heavily medicated. Currently, his mood and attitude are much better. She administers his medications each morning and evening, but in the evenings he doesn't take a full dosage. On April 1, 2008, K started his current day treatment program. Ms. S. testified that K's behavioral changes occurred around the time the father started spending more time with his current fiancee. She believed that K felt the bond with his father was being strained. Prior to K's problems, he would be punished by being grounded. There were times when she grounded K and told the father about the punishment but the father allowed K to go out during the weekends. She never recalled a time when K was being punished by his father. Currently, she described K as "bubbly" though the day treatment program has long hours and he's very tired at the end of the day. She described her home environment as very peaceful. Currently, Ms. S. has weekly meetings with a social worker at her house to discuss K. She had been attending a parenting group every two weeks, but she cannot do that while K is at the day treatment program. If she is awarded custody, she would continue with the counseling and rejoin the parenting group once the day treatment program comes to an end.
During cross examination by the father's attorney, Ms. S. acknowledged that she did not attend K's first disciplinary hearing at school because it conflicted with a vacation. During the second hearing, which she did attend, she told the school that she sometimes smells marijuana on her older sons. She acknowledged her older sons sometimes smoke marijuana. The school K was attending at the time of his marijuana issues in October 2007, is the same school he will attend after he graduates from the day treatment program. K was once found in school with a pill of his ADHD medication that he was supposed to have taken in the morning. Around the time of the commencement of K's problems, Ms. S. began seeing Mr. B.
During cross examination by the child's attorney, Ms. S. testified that, in his free time, K likes to play video games, watch television, play guitar and skateboard. Together they watch television and go out to dinner. Due to K's age, he doesn't like to do a lot of things his mother likes to do. Ms. S. stated she would have "no problem" spending some weekends with K. K's strengths are his sense of humor, his sensitivity and his intelligence. He did get suspended after his twenty-six day hospital stay for breaking glass in school by kicking it. He was grounded by Ms. S. for that. She is not concerned that if he returns to the same school that he will fall back into his problematic behaviors. He no longer sees the kids with whom he got into trouble and has "regrouped" with the friends he alienated while he was going through all his problems. She is in close contact with the parents of those friends. Ms. S.'s older sons are learning disabled. She has been unable to discuss custody issues with Mr. M. because he will no longer communicate with her. If K were to live with his father, Ms. S. fears K would regress, and due to the lack of communication, her relationship with him would suffer. Recently, K had indicated to Ms. S. that he wanted to remain living with her.
Ms. S. was a credible witness. She appeared to be a thoughtful and caring mother who has K's best interests as a priority in her life. Her answers to questions were honest and her demeanor was appropriate. The Court believed her testimony without reservation.
After Ms. S.'s testimony, the mother rested her case.
IN CAMERA INTERVIEW
There was one in camera interview which took place after the close of all the testimony. K is a smart, active young man who answered questions clearly. He presented as a normal thirteen year old, much different from the child described in this case who had drug and other problems. The counseling, as well as efforts by both parents, have certainly assisted K's recovery.
DISCUSSION
The saddest aspect of this case is that the parties had managed to parent K without the assistance of courts or lawyers for most of K's life. Despite K's many problems and issues, the parents appeared to have been doing an excellent job raising their son together. Despite each parent blaming the other, to a certain extent, for some of K's recent problems, the Court was impressed at how well they had worked together.
It is undisputed that, at some point, K began using marijuana, drinking alcohol and experiencing mental health issues. It seems likely the mental health issues were the impetus for the other problems in K's life. Each parent points to changes in the other parent's life as the event which seemed to precipitate K's decline. Each parent started what would turn out to be a long term relationship at or around the time they say K began to deteriorate. No one can be certain, but it is likely that the onset of K's issues and the commencement of his parents' relationship with significant others was mere coincidence. Regardless, the evidence presented at this trial failed to establish that either parent was at fault. To the contrary, for the most part, the Court believes the parents both reacted appropriately to the stressors produced by K's actions. The incident of September 23, 2006, where K and his cousin accidentally killed a family pet seems to be the climax, in each parent's opinion, of where the other parent went wrong. The father implied the mother did not take the incident seriously enough. The mother asserted the father was unable to control his own emotions in the face of K's emotionality. The Court believes they are both wrong. Faced with a hysterical son who made some sort of suicidal gesture, perhaps half-heartedly, the father was certainly within his rights to be very upset. On the other hand, the mother was at home, did her best to calm them both down over the phone, and had every right to feel confident that the father would take the appropriate steps to address the issues.
Perhaps the only area of concern the Court has with the father's behavior is, according to the mother, as a result of these proceedings the father stopped communicating with the mother. If true, the father's judgment is highly questionable. It is to his son's benefit that the parents speak to one another regularly and openly. This is even more important with a child like K who has some special needs.
Regarding the mother's behavior, her attitude toward her older son's marijuana usage appeared lax. While that is problematic in and of itself, it is exacerbated by the fact that she relies on the older boys to assist her with caring for K. In light of K's substance abuse issues, the Court would think marijuana and other drug use would be completely banned from the home, and that there would be more severe consequences to such behavior other than making them go outside.
The father asserts the child should live with him because he can provide the structured environment his son needs. The Court did not hear enough evidence to determine whether or not this is true. Aside from his form of discipline and that he would get the child counseling, very little else was offered to establish why his home would be better structured than the mother's home. Similarly, the father asserted that the school district he lives in is better than the mother's, yet except for the name of the school district, the Court was presented with no information that would allow it to compare the two.
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, while the Court finds neither parent unfit, the Court believes it would be in K's best interests to remain living with his mother. Rodriguez v. Irizarry, supra. In making this decision, the Court has considered all the evidence, the appearance of the parties and witnesses while testifying, as well as the recommendation of the child's attorney. Young v. Young, 212 AD2d 114 (2d Dept. 1995).
The Court finds each parent to be fit and the quality of their home environments to be appropriate. However, the Court finds the mother's parental guidance to be superior, if only slightly, and that she is best suited to provide for the child's emotional and intellectual well being. One incident, as an example, that encouraged the Court to rule in this manner concerns the father's reaction to the child's behavior this past Super Bowl Sunday. It appears K's behavior was particularly bad on this day to extent that he was damaging property and threatening family members. The father's reaction was to bring K home to his mother earlier than planned. This appeared to be a punishment of sorts. The Court was left to wonder what the father would have done had he been the custodial parent at that point. There was no explanation as to why he was unable or unwilling to properly discipline K himself. Instead, he dropped the child off with the mother. This implies, to the Court, either that the father believed the child would behave better with the mother or that she would be better able to control him. Either way, it points to the mother being better suited to be the primary custodian.
The Court also considered K's wishes. The child's wishes are one factor to be considered, but are not determinative. West v. Turner , 38 AD3d 673 (2d Dept. 2007). The Court must weigh the age and maturity level of the children when considering their wishes. Eshbach v. Eshbach, supra. The Court found that K was neither old enough, nor mature enough, for his wishes to be afforded great weight concerning custody. This is supported by the fact that his wishes changed a number of times throughout these proceedings, which is understandable when a child has two good parents as he does.
Accordingly, the mother shall have sole physical custody of K. The parents shall share joint legal custody and endeavor to reach a joint decision regarding K's education, health, mental health and day-to-day welfare. The parents shall jointly choose a parent coordinator who will be used in those circumstances where a joint decision cannot be reached. The cost for such coordinator shall be shared equally. Should the services of the coordinator still render a joint decision unreachable, the mother shall have final decision making power over education, health and mental health. Whichever parent has K on a particular day shall decide issues regarding day-to-day welfare.
The parents shall share parenting time as follows: K shall alternate weekends with each parent. The father's shall commence one hour after the end of school on Fridays, or, in the summer, as soon as the father is able to pick the child up after work. The father shall return the child at 8:00 p.m. Sunday evenings. During the week following the father's weekend, he shall have K with him Wednesday night, starting from the end of school or at the end of the father's work day, until 8:00 p.m. Following the weekend the father does not have K, he shall have K with him Tuesday and Wednesday from the end of school or work, until 8:00 p.m. For these midweek visits, the father is responsible for feeding K and assisting K with any homework.
The father shall have K with him on all three day weekends. If a three day weekend falls during a weekend the mother would normally have K, her weekend shall be pre-empted by this provision. Any other one-day holiday, shall be alternated. The father shall have K with him for K's spring break each year. The parties shall alternate the Christmas break with the father having K for the Christmas break in odd years, and the mother having even years. The parent who did not have Christmas break will have the winter break that follows. The father shall have Father's Day each year and the mother shall have Mother's Day each year. This preempts any other regularly scheduled parenting time. Should K's birthday fall on a weekday when the father does not have K with him, then he shall get to see K for two hours on K's birthday. If the birthday falls on a day when the father has parenting time for the day, the mother shall get two hours with K that day. During summer time, (within 72 hours of the last day of school), K shall spend two consecutive weeks with the father, then two consecutive weeks with the mother, and will continue on in this manner until school starts again.
There shall be any other or different parenting time as the parties jointly agree upon.
Therefore, based on the foregoing, it is
ORDERED that M.E.S. shall have sole physical custody of the child K. M. and the parties shall share joint legal custody, as that term is 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;