Opinion
XXXXX
08-07-2019
In the Matter of a Child Custody Proceeding Under Article 6 of the Family Court Act J.G., Petitioner, v. W.H., Respondent.
Anthony Pagan, Esq., Bronx, New York, for Petitioner Ryan Besinque, Esq., Bronx, New York for Respondent
Anthony Pagan, Esq., Bronx, New York, for Petitioner
Ryan Besinque, Esq., Bronx, New York for Respondent
Aija M. Tingling, J.
Petitioner, and mother of the subject child, J.G., filed a petition for custody of A.G. (3/23/16) under Article 6 of the Family Court Act of A.G. (3/23/16). Respondent, and father, W.H. filed a petition for visitation of the subject child under Article 6 of the Family Court Act. Trial was commenced on April 11, 2018, and continued on June 7, 2018, June 27, 2018, October 1, 2018, October 18, 2018, November 28, 2018, November 30, 2018, December 13, 2018, February 11, 2019, February 19, 2019 and March 15, 2019.
Summary of Arguments
Petitioner is seeking sole legal and physical custody of the subject child. Petitioner argues that Respondent is untruthful, unreliable, irresponsible and does not abide by court orders. Petitioner argues that the parties are unable to communicate civilly which will impede their ability to make joint decisions.
Respondent filed a petition for an order of visitation. However, in opposing Petitioner's application for sole legal and physical custody, Respondent now requests that the parties be awarded joint legal custody with physical custody to him. Respondent argues that Petitioner is unwilling to compromise on major decisions and limits his access and involvement concerning the subject child.
Respondent also argues that Petitioner refuses to accommodate any make-up time or extended time in the spirit of co-parenting and that her strict adherence to the court orders are not in the subject child's best interest. Respondent believes Petitioner's lack of trust in him is unsubstantiated and unreasonable and that her negative attitude towards him will adversely impact his relationship with the subject child. Finally, Respondent argues that unlike Petitioner, he is willing to foster a relationship between Petitioner and the child, making him more suitable as the custodial parent.
Factual Background
Petitioner's Testimony
Petitioner met Respondent in approximately 1999, when they were living in the same apartment building. They began dating in 2010 and got engaged in 2013. They moved in together in June of 2015 and shortly thereafter, the subject child was conceived. By November 2015, Respondent moved out due to arguments, altercations and Respondent's alleged infidelities and the engagement was cancelled. The parties attempted to salvage their relationship after the subject child was born on March 23, 2016, but they were unsuccessful. Although the relationship did not work, Petitioner testified that she is not allowing that to cloud her judgment as it concerns Respondent.
Petitioner described Respondent as a "gaslighter" which she explained is a manipulative person who employs a technique of distorting reality to create utter confusion. She believes that Respondent is mentally unstable, irresponsible, sneaky and verbally abusive. When the case was first commenced, Petitioner requested supervised visits between Respondent and the subject child alleging that Respondent used marijuana daily, and abused prescription medication and alcohol. Petitioner also testified that in 2012, Respondent pinched her then nine-month-old nephew without cause, causing him a big red mark on his back. All of these things combined, caused Petitioner to fear for the child's safety while in Respondent's care.
The court issued an order for parenting time between Respondent and the subject child on Sundays from10AM to 6PM, with exchanges to be conducted by a neutral party and an agreement that the paternal grandmother would be present for Respondent's parenting time. Petitioner conceded that the visits went "smooth" and the child was content. Respondent's parenting time was subsequently expanded to alternate Saturdays 10AM to Sunday 6PM with a midweek visit Wednesday 7AM to 6PM and then it was expanded again to alternate Fridays 7PM to Sunday 5PM with the mid week visit on Wednesday from 7AM to 6PM. The exchanges were mostly conducted by the paternal grandparents. When Petitioner inquired why Respondent was not conducting the exchanges himself, she was informed that Respondent was at work, supporting her belief he was not spending time with the child. On a few occasions she did not turn over the child to the paternal grandparents because she believed Respondent should have been exercising the parenting time he asked for instead of the paternal grandparents.
At the time, there were usual terms criminal court and family court orders of protection in place on behalf of Petitioner against Respondent. To avoid any issues, both parties consented to a neutral party being present for pick up and drop offs.
Petitioner testified that once Respondent's time was expanded to full weekends, issues began to occur. Over a period of seven months, the child had five diaper rashes and two infections. Petitioner also testified that the child sustained minor injuries while in Respondent's care, consisting of a bruise on the head which he covered with make-up, a scrape on her stomach, and a burn on her finger. On one occasion the subject child had a high fever, which Respondent did not disclose to her upon return of the child. Petitioner also testified that Respondent would belittle her and call her derogatory names in front of the subject child during exchanges.
In addition to Petitioner having concerns about the child's welfare while in the care of Respondent, Petitioner testified that Respondent is inconsistent and incapable of following court orders. She testified that Respondent would always attempt to change his court ordered parenting time to other days as soon as they left the courtroom. Initially, she was willing to be flexible and accommodate Respondent's request for additional time and changes to the schedule, however, the requests were becoming too frequent. Petitioner entered into evidence copies of numerous text message conversations between herself and Respondent, in which he repeatedly attempted to alter the court ordered visitation schedule.
Petitioner also testified about a civil suit Respondent filed against her in Bronx Supreme Court, to retrieve the engagement ring and furniture he left in their shared home after he moved out. She testified that despite the court issuing a final order allowing Respondent to retrieve his belongings at a mutually agreed upon date and time, Respondent asked Petitioner to just keep the items and pay him cash for them. Petitioner entered into evidence various emails from Respondent attempting to negotiate the final court order as additional evidence of his inability to adhere to court orders.
Petitioner also testified that while in the past, she encouraged and fostered a relationship between the child and the paternal relatives, she began to have concerns and reservations about them being around the child. She believes the paternal grandfather is an alcoholic and has always had issues with alcohol abuse. Further, she no longer has a relationship with the paternal grandmother because she enables Respondent's behaviors. She also expressed concerns about Respondent's girlfriend abusing prescription pills and her ability to care for the child should she be left in her care by Respondent.
Petitioner referred to a time when following the civil suit, Respondent appeared at her home to retrieve his belongings with the paternal grandfather who to her, smelled of alcohol.
In emergencies, Petitioner relies upon her brother and sister-in-law to care for the subject child and allows them to pick up the child from daycare. Since the temporary order of visitation did not authorize Respondent to pick the child up from the daycare, Petitioner does not allow it.
Petitioner is seeking sole legal and physical custody of the child because she is unable to co-parent with Respondent. Petitioner believe she is better able to provide the subject child with a peaceful, loving, stable and nurturing environment and better able to meet the child's educational, emotional and medical needs. She testified Respondent is unreliable, inconsiderate, untrustworthy and irresponsible and is not a good father to or role model for the child.
On cross-examination, Petitioner reiterated her disdain for Respondent and his ability to be a good father to the subject child. She testified that she has tried to foster a relationship between the subject child and Respondent by inviting Respondent to stay at her home when the subject child was first born as the child was not allowed outside of the home because she was breastfeeding. It did not work out. When the child was three or four months, she took the child to Dominican Republic for two and a half months, denying that it was due to her conflict with Respondent. When she returned, she attempted again to foster a relationship between the child and Respondent by requesting schedules from him that he could be consistent with and allowing him extra time with the child.
Petitioner evaded questions concerning her willingness to respond to or acquiesce to Respondent's requests to make changes to or for additional parenting time. Overall the remainder of her cross-examination and re-direct was consistent with her testimony on direct examination.
Petitioner's Brother
Petitioner's Brother testified about his personal observations of Respondent and his character. Petitioner's Brother resides in the same home as Petitioner and has observed numerous interactions between the parties. Petitioner's Brother has witnessed Respondent arguing with Petitioner on a few occasions and breaking the door in the home twice. Petitioner's Brother has also witnessed the subject child exhibiting anxiety during the exchange between Petitioner and Respondent and noticed that when the child is returned, Respondent would remove the child's shoes, leaving her barefoot. Petitioner's Brother has observed the paternal grandparents picking up and dropping off the subject child on numerous occasions but did not inquire about Respondent's whereabouts.
Finally, Petitioner's Brother testified that he believes Respondent purposefully pinched his then nine-month old son. At the time of the incident, Petitioner's Brother was present in the home and when he went to the bathroom, he observed text messages on Petitioner's cell phone indicating Respondent purposefully pinched his son. Petitioner's Brother testified that he confronted Respondent one week later and Respondent was apologetic.
Private Investigator
A private investigator was retained by Petitioner to surveil Respondent during his court ordered parenting time with the child. On three occasions, October 25, 2017; November 3, 2017, and, February 21, 2018, the investigator observed Respondent pick up the child from Petitioner's home and drop her off either at his apartment with a woman, or on Seaman Avenue, where the paternal grandparents reside. Thereafter, Respondent would drive to an office building located on 39th Avenue in Queens and park in a garage. He did not observe Respondent leave the building during the observation period between 9:15AM — 2:30PM.
Petitioner's Uncle
Petitioner's uncle also surveilled Respondent during his parenting time with the child to assist Petitioner in this case. Petitioner's uncle surveilled Respondent on two days, August 10, 2018 and September 19, 2018. On the first date, he observed walking near his home without the child. On the second date, Respondent was observed dropping the subject child with the paternal grandmother.
Respondent's Testimony
Respondent works in construction management, Mondays, Tuesdays, Thursdays and some Fridays from 7AM to 3PM. There are times when Respondent is able to work from home, but he may have to participate in conference calls with clients. He informed his employer that Wednesdays are not good to participate in conference calls because he has parenting time with the child. However, if he has to participate in a call during his parenting time, he will try to reschedule with Petitioner or make arrangements for the child to be with the paternal grandmother or his girlfriend, because the Petitioner is not accommodating his requests. He testified that he has rarely relied on the paternal grandmother to watch the child during his parenting time and he has only had to the leave the child with his girlfriend on two occasions for just a few hours. He also denied that his girlfriend uses prescription drugs and that his father is an alcoholic.
Respondent submitted numerous copies of text messages between himself and Petitioner demonstrating that when he asks for accommodations to his parenting time schedule or for additional time, Petitioner either did not respond or declined his request.
In response to Petitioner's claim that he always leaves the child with other people during his parenting time and in opposition to Petitioner's Uncle's surveillance report for August 10, 2018, Respondent submitted his own photographs and testified that he had a flood in his apartment, which is why he was seen without the subject child. Respondent also denied the allegations that he pinched Petitioner's nephew. He testified that Petitioner's brother, never confronted him about it and after the alleged incident, he still picked up Petitioner's nephew whenever asked, and did things with him like wash cars and play with toys.
On cross-examination, Respondent conceded that he did make many attempts to reschedule or cancel his parenting time at the last minute for various reasons, including illness, work, and during his move from an apartment in Queens to Manhattan. When questioned why he was unable to exercise his parenting during the moving process, which occurred over a month, he explained it could not be avoided, and did not think it prudent to schedule the move on a day he did not have parenting time, even though he had alternate weekends and one weekday visit.
Respondent was also questioned about other communication issues with Petitioner. For example, he did not respond to a request by Petitioner to pick up the child's medication during his parenting time because he believed her request was improper and was made at the last minute, midday the day prior to his parenting time. However, after further cross-examination, he admitted that he did not pick up the medication because Petitioner presented no reason why she could not have done it herself and he did not think he should have had to do it.
Respondent believes the parties should work together to co-parent. Although there was a criminal court order of protection issued against him, a family court order of protection issued against him and he sued Petitioner in Bronx Supreme Court after the custody petition was filed, Respondent believes the parties can still cooperate with one another. Respondent defined cooperation as putting aside differences and taking emotion out of it, with a common goal which is the best for their daughter. Respondent would like to forget past and move forward. In an ideal situation, Respondent would want Petitioner to feel comfortable and allow him to attend doctor visits, receive updates when the subject child is not with him, have scheduled facetime, pick up the child for dinner, attend school functions, and attend surgical procedures.
During his parenting time, Respondent tries to be as transparent as possible by sending Petitioner videos and pictures of their activities and what the child eats. Respondent would like for Petitioner to reciprocate the same actions of communication and make the same efforts to keep him updated about the child as he does when she is with him. Respondent does not know who the subject child's doctors are and is not authorized to pick up the subject child from her current daycare. Furthermore, Respondent is not in agreement with the current daycare in which the subject child is enrolled in. Respondent believes the place is "run-down" and not suitable for the subject child. Respondent has made efforts to address the school situation with Petitioner but to no avail. Respondent would like to be involved in the decision making for the child, including schooling and medical issues. He is seeking a visitation schedule that takes into account his work schedule and wants to be treated as a father not a "glorified babysitter."
While Respondent maintains that the parties should be able to communicate about the child, the court notes that during the fact finding, on or about November 30, 2018, Petitioner requested in court that Respondent complete a financial aid application for the child to apply to Horace Mann. Respondent emphatically indicated he would, noting that Horace Mann was a good school, a top-tiered school. He was delighted the subject child was applying there and that he would do everything in his power to assist, in the best interests of the child. On the following court date in December 2018, Respondent still had not submitted the requested documentation, stating that he had not received anything from either Petitioner or the school and that he was unsuccessful in reaching anyone at the school to obtain further information.
On the next court date in February 2019, Respondent finally admitted that he never filled out the documents and had no intention of doing so because he did not consider Horace Mann to be a gifted school due to scandals he heard about teachers there. He also stated he did not complete the financial aid questionnaire because Petitioner did not inquire about his feelings about the child attending the school, which should have been a conversation leading to a joint decision, not being told about it over a text message.
Paternal Grandmother
Respondent called the Paternal Grandmother as a character witness during his case-in-chief. Paternal Grandmother testified that she first met Petitioner at a Christmas party in approximately 2011. While the parties were dating, Paternal Grandmother and Petitioner shared a great relationship and they spent a lot of time together throughout Petitioner's pregnancy as Petitioner's mother had passed away. Paternal Grandmother testified that she was even present for the child's birth and cut the umbilical cord.
Unfortunately, their relationship deteriorated after the subject child was born. When the relationship between Petitioner and Respondent worsened, Paternal Grandmother saw the subject child less frequently. Although she and Petitioner work at the same location, Petitioner does not initiate any conversation with her and they keep it professional. While she does not believe Petitioner has fabricated her versions of events, she believes that Petitioner has her own interpretation of how things have and continue to occur with Petitioner.
Paternal Grandmother testified that she spends time with the subject child during Respondent's parenting time. Respondent may step out during his parenting time, but it is not frequent and never for long periods of time. There are times when she conducts the exchanges of the child with Respondent following in another vehicle to make the transition easier. She described Respondent as a good father, who is very loving and has grown into a man. She testified that she was disappointed to hear Petitioner refer to him as a bad father.
Finally, Paternal Grandmother testified that she would only see the paternal grandfather drink on occasion but would not describe him as an alcoholic. At the time the child was born, Petitioner and Respondent were already broken up and Respondent was dating another woman, whom she has met. She has never seen her use drugs and has no concerns about her overall.
Analysis:
"Any court in considering questions of child custody must make every effort to determine what is for the best interest of the child, and what will best promote its welfare and happiness." Eschbach v. Eschbach , 56 NY2d 167, 436 N.E.2d 1260 (1982). In determining what is in the child's best interests, the court must consider multiple factors including "the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent." The custody determination must be supported by a sound and substantial basis in the record. Lisa W. v. John M. , 142 AD3d 879, 38 N.Y.S.3d 148 (1st Dept. 2016).
Edwards v. Rothschild , 60 AD3d 675, 677, 875 N.Y.S.2d 155, 158 (2009).
The court encourages joint custody where parents are amicable. However, joint custody is not viable "where the parties are antagonistic towards each other and have demonstrated an inability to cooperate on matters concerning the child."
Edwards v. Rothschild, supra . See Lee v. Fitts , 147 AD3d 1058, 47 N.Y.S.3d 468 (2nd Dept.) ; See also Victoria H. v. Tetsuhito A. , 110 AD3d 636, 637, 974 N.Y.S.2d 56, 57 (1st Dept. 2013).
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The Family Court mission of "one judge, one family" is especially prudent in a case as this. During the course of litigation and prior to trial, the jurist has the unique ability to view the parties both individually and as a parental unit, to see their growth and progress towards restoring their level and manner of communication as it relates to the child or lack thereof, and to put the emotions of the parties into perspective when having to make the ultimate decision of custody and visitation in the child's best interest.
In this matter, the court had the opportunity to assess the credibility of the parties. It is apparent from the testimony and demeanor that both parents love and care for the subject child. It is also clear that based on the significant history between the parties, there is an underlying theme of mistrust that prevents these parties from communicating in the best interest of the child. The court also takes into consideration the testimony of the witnesses, Petitioner's Brother and the Paternal Grandmother. The court finds that while both witnesses were credible, their testimony was not given considerable weight as it was self-serving in the interests of the parties by whom they were called.
The testimony of the parties does not support Respondent's position that the parties are able to make joint decisions regarding the subject child. With respect to Petitioner, the court observed that she is unable to discuss Respondent or her interactions with him without becoming unreasonably frantic. While on the witness stand she displayed a mix of emotions stemming from anxiety and distrust of the Respondent, which at times made her appear erratic in her concern for the subject child while in Respondent's care. The court also notes that while the investigator and Petitioner's Uncle observed Respondent on a few occasions not present with the child or dropping the child to the paternal relatives, Respondent is entitled to spend his parenting time with the subject child as he chooses. So long as the child is not placed at risk of imminent harm or danger, it is positive to foster a relationship between the paternal relatives and the child.
Indeed, the history between the parties has rendered any meaningful communication between them unlikely at this time. This causes a concern that Petitioner will exclude Respondent from all important or major decisions regarding the child outside of his parenting time, subjecting him to a status akin to "glorified babysitter".
Concerning Respondent, he was not a credible witness. The evidence coupled with Respondent's own actions in court, demonstrate that he is unable to follow through on agreements or commitments he makes to Petitioner regarding the subject child. He is also unlikely to follow a court order without attempts to negotiate new terms based on his day to day preference. Various examples include his failure to participate in the admission process for the subject child to apply to Horace Mann, despite adamantly reporting that he had done so and his repeated and constant attempts to change court orders before the ink dried. While trivial to the outside person, cumulatively, Respondent's actions appear to be unnecessary nuisances, which have contributed to the destruction of the parties' ability to communicate effectively at this time.
Nevertheless, Respondent should be made and kept fully aware of and have an opportunity to share his input on all major decisions concerning the child.
As the child is only three years old, there is still ample time for the parties to reconcile as parents and devise a way to co-parent and make decisions jointly in the best interest of their child. However, that time is not now.
Holding
Respondent filed a petition for visitation only, yet in his closing and summation he is requesting an order of joint legal custody with primary physical custody to him. As he did not file a petition seeking this relief, procedurally it cannot be granted.
Even if the court considered Respondent's application, this court does not find that it is in the best interests of the child to award primary physical custody to Respondent. The testimony and evidence do not support his argument that he is more suitable as the custodial parent at this time, due to his work schedule, lack of consistency and inability to adhere to agreements made demonstrated by the numerous changes he attempted to make to the court order, and his inability to follow through on commitments made.
Moreover, this court does not find that joint legal custody is a viable option for this family, given the conflict between the parties and their demonstrated inability to make decisions jointly in the best interest of the child.
Based on the foregoing,
IT IS HEREBY ORDERED that:
The petition for sole legal and physical custody filed by Petitioner is GRANTED ;
The petition for visitation filed by Respondent is GRANTED ;
The application for joint legal custody with physical custody to Respondent is DENIED.
IT IS FURTHER HEREBY ORDERED that,
Respondent is granted independent access to the subject child's school, medical and therapeutic records;
Petitioner must consult Respondent in writing via email on all school and medical decisions. Respondent will have 2 weeks, defined as fourteen (14) days from time Petitioner notifies him to provide alternatives or input. After two weeks, Petitioner may make any final decisions on the matter.
Respondent is granted parenting time with the subject child alternate weekends Friday pick up from daycare/school to Monday drop off at daycare/school. Both parties are to ensure the subject child arrives at daycare/school on time. Respondent is also granted parenting time with the child every Wednesday, pick up after school and drop off at 7PM curbside at the mother's residence. If Respondent is unable to pick up or drop off the child for any of his parenting time/holiday time due an emergency, the paternal relatives may assist in the pickup and drop offs for Respondent's parenting time.
Respondent must notify Petitioner 24 hours PRIOR to schedule pick up time of any cancellations.
Each party is entitled to have daily uninterrupted Facetime, video chat/phone contact with the subject child between 7PM and 7:30PM when the child is with the other parent.
Petitioner may not relocate with the subject child more than 25 miles from her current residence without the written consent of Respondent or by order of the court.
Parties shall alternate holiday parenting time with the subject child as follows:
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ORDERED: Each parent is entitled to two consecutive weeks of summer vacation with the subject child during July and August. The father has first choice. The Father is to notify the Mother by May 1st of each year which dates in July and August he will be exercising summer vacation. If the Father does not notify the Mother by May 1st, then Mother may choose the two weeks she intends to spend with the child during the summer vacation and notify the Father by June 1.
ORDERED: The holiday schedule trumps the regular parenting schedule. If a holiday falls on the Father's weekend, his parenting time will continue through that holiday. Any holidays left blank may be arranged between the parties. The parties may modify this agreement upon mutual written consent including electronic means.
ORDERED : Parties must cooperate with obtaining a passport for the subject child. Either party intending to travel out of the country with the subject child must notify the other parent 30 days prior to travel, which shall include an full itinerary of the planned trip.
ORDERED: Neither party to disparage the other or allow third parties to disparage the other party in front of or around the child.
ORDERED: The parties may modify this agreement in writing ONLY upon mutual consent with written acknowledgement of that consent. If there is no mutual agreement to modify, the parties shall follow the order as written.