Opinion
V-0000-00/00.
Decided July 24, 2008.
This matter concerns the custody of the parties' two children, V., age nine and N., age ten. On November 29, 2007, the parties entered into, on consent, a Final Order of Custody and Visitation which provided for joint physical and legal custody, with the children spending almost an equal amount of time living with each parent. By petition dated January 25, 2008, the father sought to modify that order to the extent that he be granted sole custody of the children.
Petitioner-father is currently represented by Mangi and Graham, LLP by Robert Mangi, Esq. Respondent-mother is currently represented Elaine Miller, Esq. John Zenir, Esq. was appointed attorney for the children during the custody proceedings but has not submitted papers relating to the within motion.
The father's petition to modify the custody order alleges that since the time the consent order was entered into, the mother allowed the children to miss numerous days of school. The father's petition also spells out, in detail, various text messages the mother allegedly sent to him over a period of approximately one month. These text messages contain various threats made to the father, including having him arrested, informing neighbors of the father's alleged deviant ways and references to an alleged sex tape the parties made (though the mother asserts she was asleep during the making of the tape).
The mother moves to dismiss the father's petition alleging the petition fails to state a cause of action pursuant to CPLR § 3211(a)(7). When considering a motion to dismiss pursuant to CPLR § 3211(a)(7), the Court must liberally construe the allegations of the challenged pleading and view those allegations in the light most favorable to the proponent of the pleading. The Court must also presume the allegations to be true. Andre Strishak Associates v. Hewlett Packard, 300 AD2d 608 (2d Dept. 2002) citing Rovello v. Orofino Realty Co., 40 NY2d 633 (1976). It should be noted that the mother does not assert that the allegations in the father's petition are untrue. To the contrary, she acknowledges the children have missed many days of school and also acknowledges that the alleged sex tape exists and its existence is very upsetting to her. She does not deny sending the text messages.
The bulk of the father's petition addresses the text messages sent to him by the mother. A sample of these messages includes: "Your tape-big hit with the parents of [our neighborhood] ", "Can you say restraining order. Guess they don't want perverts who rape their wives and tape the crime. . . ", "As a parent I would not want you near my kids and the best part you see you turning the camera on and off. You truly are sick". Even assuming it is true that the mother sent these and all the other text messages to the father, they do not spell out a change in circumstances. Friederwitzer v. Friederwitzer, 55 NY2d 89. While the father may feel justifiably harassed, these allegations seem better rooted in a family offense petition than a custody modification petition. See Meyer v. Lerche 24 AD3d 976 (3d Dept 2005)(father's use of foul language not grounds to change custody). This is also true of the allegation that the mother may have distributed flyers indicating the father masturbates while his children are near-by. The father's petition simply fails to assert how these allegations render the circumstances of the children different from the time the custody order was consented to.
The issue of multiple absences from school would concern the Court greatly and might, standing alone, rise to the level of alleging the requisite change in circumstances. However, annexed to the mother's motion are the children's report cards and progress reports. These documents make two things very clear. The first is that these children have a history of school absences predating the Order of Custody and Visitation in this matter. The second is that these absences do not appear to affect the children's grades or schoolwork. Each report card generally shows each child receiving the highest or second highest grades and there are no comments from teachers indicating that the multiple absences are creating issues with the schoolwork. Accordingly, regarding this particular allegation, the evidence indicates it is less of a change in circumstances and more of the status quo.
The most troubling allegation contained in the father's petition is that on December 11, 2007, the mother gave one of the children an envelope which contained highlighted statements referring to sexual assault. While it is not clear from the petition whether the child read the document or was in any way exposed to it, if the allegation is true, it would call into question the mother's fitness. Obey v. Degling, 37 NY2d 768 (1975). The mother's intent in doing such a thing could only be to possibly expose the child to the contents of the document and/or involve the child in the difficulties between the parents. In either scenario, those are actions a fit parent would not take.
A modification of an order of custody requires the requisite change in circumstances. Friederwitzer v. Friederwitzer, 55 NY2d 89, 95, 447 N.Y.S.2d 893, 432 N.E.2d 765. A modification should be granted where ". . . the totality of the circumstances warrants a modification in the best interests of the child." Ganzenmuller v. Rivera , 40 AD3d 756 , 757 (2d Dept. 2007), citing Friederwitzer v. Friederwitzer, 55 NY2d 89, 95, 447 N.Y.S.2d 893, 432 N.E.2d 765; Matter of Brian S. v. Stephanie P. , 34 AD3d 685 (2d Dept. 2006). A party seeking a change in custody is not automatically entitled to a hearing on that issue, but must present an evidentiary showing which would indicate a hearing was warranted. DiVittorio v. DiVittorio, 283 AD2d 390 (2d Dept. 2001), Miller v. Lee, 225 AD2d 778 (2d Dept. 1996). The Court finds the father has made enough of an evidentiary showing to call into question the mother's fitness. It is therefore
ORDERED that the mother's Motion to Dismiss the father's modification petition is denied in its entirety, and it is further
ORDERED that the parties are to appear before the Court for a hearing on the issue of custody on September 29, 2008 at 9:00 a.m.
This constitutes the Decision and Order of the Court.