Opinion
XXXXXX/2012
02-02-2017
J.T., Plaintiff, v. N.T., Defendant.
Counsel for Plaintiff: Peter M. Nissman, Esq., New York, NY Counsel for Defendant: Corey M. Shapiro, Esq., New York, NY Attorney for the Child: Sandra L. Schpoont, Esq., New York, NY
Counsel for Plaintiff: Peter M. Nissman, Esq., New York, NY Counsel for Defendant: Corey M. Shapiro, Esq., New York, NY Attorney for the Child: Sandra L. Schpoont, Esq., New York, NY Deborah A. Kaplan, J.
Background
The parties were married on February 6, 2010 in New York City and there is one child of the marriage, G.T., born in July 2011, now age 5. The divorce action was commenced on September 28, 2012. On November 27, 2013, the parties entered into two agreements, a custody agreement and a financial agreement, which together resolved all of the issues in the case. Both agreements were incorporated but not merged into the Judgment of Divorce, dated April 16, 2014 and entered on May 5, 2014. The father has two older children from a previous marriage, and while the mother asserts he has another child born after the parties' child, the father contends that the child is not his. The mother has no other children.
On September 29, 2016, the mother filed an order to show cause seeking permission to relocate with the parties' child to California and a modification of the parties' custody agreement. This application was made pursuant to Domestic Relations Law § 240 and Article I, Paragraph 18 of the parties' custody agreement, which sets forth a 30-mile radius clause and provides that "any relocation outside the Radius shall be by either court order or written agreement of the parties." On the return date of the plaintiff's relocation application, November 16, 2016, a conference was held and trial dates were scheduled for January 17, 19 and 20, 2017. Both parties were directed to immediately submit updated statements of net worth (the plaintiff's net worth statement was annexed to her application) and three suggested names each for attorneys to represent the child. The following day, November 17, 2016, the court issued orders appointing Sandra Schpoont, Esq. to represent the parties' child and Bettina Thomsen, LMSW, of Comprehensive Family Services (CFS) to report on the current living situation of each party, the child's relationship with each party and the potential impact on the child if the mother is permitted to relocate with the child. The CFS report was issued on January 11, 2017.
On January 13, 2017, the defendant filed a motion seeking primary residential custody of the child in the event that the court grants the plaintiff's application for relocation. The court granted the defendant's application to the extent that it would consider his request at the trial that had already been scheduled. Subsequent to the trial, counsel for both parties and the attorney for the child submitted post-trial memoranda, which have been reviewed and considered by the court, in addition to the credible evidence adduced at trial.
Evidence at Trial
At the trial, which was held on January 17, 19, 20 and 24, 2017, the plaintiff and the defendant testified. The other witnesses called were Bettina Thomsen, LMSW, of Comprehensive Services, Mr. M.T., Ms. M.T., M.M. and V.P. The court notes that the additional date of January 24th was added to accommodate additional witnesses.
With respect to Ms. Thomsen, counsel stipulated that she was an expert and that her report would be entered into evidence as her direct testimony. In her report, Ms. Thomsen noted that both parents share a bond of attachment with the child, the child appeared to be relaxed and comfortable with both parents and both parents were appropriately responsive to the child. Ms. Thomsen observed further that each parent had a different perspective on the effect a move would have on the child's relationship with the father. Ms. Thomsen explained that she did not attempt to corroborate each party's claims regarding the father's current involvement in the child's life. Ms. Thomsen submitted that if the defendant's claim that he is regularly and actively involved in the child's life is accurate, then the child's relocation would certainly have an impact on the nature and quality of the relationship between them. However, if the plaintiff's characterization of the defendant's level of involvement with the child is more accurate, then the likelihood is that relocation would still allow for the child and father's relationship to develop, particularly given the plaintiff's willingness to have the child spend substantial extended periods of time with his father.
Ms. Thomsen testified that the defendant made frequent references to the good relationship he maintained with his first wife and Ms. Thomsen requested that he arrange for her to speak to her. However, the defendant never facilitated a meeting between his first wife and Ms. Thomsen. Ms. Thomsen also noted that there was limited interaction between the child and the defendant's older daughter, but that she observed the child playing together with his older half-brother. She described the child's brother as "quite lovely; he was very sweet; he was very polite." In Ms. Thomsen's opinion, the age difference between the two boys did not, at this time, present any difficulty.
Ms. Thomsen observed that it is not uncommon for children to attend a number of different schools when they are young, and that moving from preschool in one location to kindergarten in another, was "a fairly typical developmental task that many four — and five-year- olds achieve with success and without issue." Ms. Thomsen noted that there was nothing to suggest that the child was not resilient and there were no developmental concerns about his ability to process new information or new experiences. She emphasized that what is important is how information about any potential relocation is communicated to the child. She submitted that if both parents positively presented the move and were unified in their approach, she did not believe that this would be a particularly difficult situation for the child to face. She submitted that given that the parties have difficulty communicating with each other, it would be important that the court assist them by crafting a parenting plan that both would be required to comply with, including scheduled FaceTime calls.
The plaintiff testified that she is 44 years old. Currently, she is not married, but since mid to late 2014, she has been in a committed relationship with a 40-year old man. She has had no other significant relationships since she and the defendant separated. The plaintiff lives with the parties' child on the Upper West Side of Manhattan. The mother related that the father has parenting time with the child every Wednesday after school until 7:30 p.m., and on alternate weekends beginning on Friday at 3:00 p.m. until Sunday at 6:30 p.m. The father also has two non-consecutive blocks of six days of summer vacation with the child, and the mother has access to the child on Mother's Day, and the father, on Father's Day. Until his recent application for a change in custody, the father has never sought to modify the parties' parenting schedule.
The mother testified that she began working for "ABC, LLC" in March 2010, and has continued to work there for the past seven years as a consultant financial controller for ABC, LLC, a worldwide company. The mother provided detailed information regarding her numerous and weighty responsibilities at the company. Regarding her current work schedule, she explained that she generally gets to work between 8:45 a.m. and 9:15 a.m., after dropping the child off at school and leaves work anywhere between 2:30 p.m. and 7:30 p.m., depending on the work that needs to be accomplished on a given day. She works five days a week.
The name of the mother's employer has been changed for publication.
The description of the mother's employer has been redacted for publication.
The plaintiff related that in addition to the income she receives from ABC, LLC, which makes up the majority of her annual income, she supplements her income by doing other accounting/bookkeeping work on nights and weekends for a number of different smaller companies through her business, SFS, Inc. She asserted that she nets, before taxes, approximately $25,000 from this additional outsourced accounting work. While the plaintiff provided that this supplemental income is insufficient to support herself and the child, it affords her increased financial security. She can, for example, contribute to the child's college savings plan and her retirement accounts and vacation with the child. The plaintiff also reported that she receives child support from the defendant, but that he is often late in paying. She also testified that she received approximately $100,000 from the defendant in 2015, a portion of which was arrears for court-ordered obligations, including pendente lite maintenance, add-on child support expenses and counsel fees that the defendant failed to pay.
Per the plaintiff, as of January 1, 2017, as a result of a reorganization, ABC, LLC headquarters was moved from New York to Los Angeles, California. Only a small team (approximately six people) from the Finance Department, of which the plaintiff is a member, remains in New York to finalize the company's year-end audit, which should be completed by February 28, 2017.
According to the plaintiff, ABC, LLC has offered her a position as controller of the company if she relocates to Los Angeles. Specifically, the offer letter from ABC, LLC provides for an annual salary of $165,000; 20% performance bonus; a long-term incentive of $100,000 over three years; participation in a 401(k) plan with employer matching, health insurance coverage; one month of vacation; five personal days, plus numerous company holidays, and a $15,000 relocation bonus. The plaintiff contends that this offer increases her annual compensation by more than $87,000. This amounts to a 60% pay raise.
The plaintiff testified that when she learned about the ABC, LLC relocation, she took steps to find other full-time employment, including speaking to a recruiter. She reached out to her business network, looking for bigger, full-time clients for SFS, Inc. to take on, went on interviews with prospective clients and contacted a business colleague to put her back into contact with a business she had worked with previously. She concluded, however, that there was no opportunity comparable to the one that ABC, LLC was offering. She testified that she has earned the trust and respect of upper management at ABC, LLC and is on a path to become chief financial officer of the company, which would come with a substantially higher salary, equity shares, bonuses and career prestige that would not be available to her elsewhere at this time, if ever. Moreover, she points to the flexibility that her position affords which she claims is "unheard of" and so important to her given that she is a single mother. For example, if the child is sick, the company allows her to work from home since they know and trust her. She also can continue to supplement her income through her financial services company. The plaintiff avers that if she were to lose this job opportunity, it would be devastating to her financially.
With respect to the child, the plaintiff provided in much detail her deep involvement in the child's daily life. She takes the child to school daily and picks him up on most days. She was the parent who researched and chose the schools the child has attended thus far, as well as the child's extracurricular activities, including soccer, Tae Kwon Do, Martial Arts, Kumon, tennis and chess. She claims that the father has never objected to any of her proposals, nor has he offered any suggestions of his own regarding the child's education or activities. The mother said that she takes the child to these activities, or if she is unavailable, either the nanny or the child's maternal grandmother accompanies the child. She also helps the child with the homework he receives from Kumon.
At the child's current school, the mother is a library volunteer, a "secret reader" and a chaperone on school trips. Previously she has been a class parent. She attends all — and volunteers at many — school events, including carnivals, concerts, breakfasts, stepping up ceremonies and year-end parties. Noting that the child has a lot of friends, the plaintiff related that she takes the child to his friends' birthday parties almost every week. The father, on the other hand has had little involvement in the child's school or extracurricular activities, has never come to the child's first day at school and does not take the child to his classmates' birthday parties during his parenting time, despite the fact that the child very much wants to go to his friends' parties since the children talk about upcoming parties in school and then discuss the parties afterwards. The plaintiff further testified that she selected the child's pediatrician and dentist and takes the child to all appointments. The plaintiff noted that only recently has the defendant taken an interest in the child's activities and indicated his wish to be involved. Since the filing of her motion, he insists on coming to the child's doctor visits.
The mother, who said she loves to travel, discussed various trips she has taken with the child, including to Turks and Caicos, Thailand, France, California and Vermont. Some of the activities in which she and the child engage are skiing, surfing, hiking and going to theme parks.
In further support of her application to relocate, the mother noted that she grew up in California and has family there, including her parents, nephew, cousins and her sister, whom she refers to as her best friend. She also has many lifelong friends in the Los Angeles area and one of the child's best friends recently moved to the area. Thus, if the plaintiff were permitted to relocate to California, she maintains that she would have an extensive support network of family and friends, whereas here, save for her nanny, she has little support. The plaintiff described a very close relationship between her mother and the parties' child. The plaintiff's mother visits regularly and loves being involved in the child's life. The plaintiff's mother picks up the child from school, takes him to Kumon, cooks dinner, bakes with him and takes him to the toy store. On her last trip, the child's grandmother took the child to a doctor for a sonogram of a lump on his neck. The plaintiff relates that her mother is a recovering alcoholic who has been sober and healthy for two years. The child also has a close relationship with the plaintiff's other family members in California, including his aunt and cousin, the plaintiff sister and her sister's son.
In addition, the plaintiff has located a school that will accept the child mid-year in the area where she would like to live, Santa Monica, which is an easy commute to ABC, LLC' Los Angeles' headquarters. The plaintiff testified that she toured the St. XXXXXX Catholic Elementary School and met with the head of admissions, the principal, assistant principal and kindergarten teacher, and was provided with a detailed explanation of the day in the life of a kindergartener. The plaintiff talked about the size of the kindergarten classroom, describing it as three times the size of the child's current classroom; the classroom's high ceilings and windows; the fact that the kindergarten class has its own library and a smart board. They also have recess twice a day, which the plaintiff says is important for an active five-year old boy such as her son. The school also offers a large outdoor space, approximately two blocks long, with a playground, soccer field and basketball court. The plaintiff observed many children running around outside in tee-shirts. At the child's current school there is a small outdoor space with a jungle gym, but no grass or fields. She noted that the child loves to play outdoors and is always disappointed when inclement weather prevents his class from going outdoors. In addition, the plaintiff testified that the church connected to the St. Monica school is large and beautiful.
Redacted for publication. --------
The mother described her current apartment as a small, 600 square feet one bedroom which she has converted into a two bedroom by putting up a temporary wall. Her monthly rent is $4,200 and will shortly increase to $4,300. She asserted that for this amount of rent in the Santa Monica area she will be able to have a house with several bedrooms, a backyard and a garage.
The plaintiff described the parties' marriage as brief, highly emotional, abusive and chaotic. She testified about an event in May 2011 when she was seven months pregnant and learned that the defendant was having an affair with the nanny of his older children. The plaintiff related that when she saw text messages on the defendant's phone, she picked up the phone and went into the bathroom to read them. A fight ensued as the defendant tried to wrest the phone from the plaintiff. The plaintiff testified that the defendant tackled her to the floor on her pregnant stomach and grabbed her arm causing it to bleed. She ran out of the front door barefoot, with blood on her shirt and the defendant pursued her. The plaintiff was able to contact friends who came and got her and brought her to their apartment and took pictures of her injuries. Those photographs were introduced into evidence and depict a visibly pregnant plaintiff with a mark on her stomach in one photograph and a red mark on her arm in the other. Notably, this incident took place in the presence of the defendant's older children who were in the apartment spending time with their father and step-mother.
After this incident, the plaintiff went home to California, but ultimately, at the defendant's behest, she returned to New York. Nevertheless, after the parties' child was born, the marriage continued to be chaotic and abusive, the plaintiff contends.
The plaintiff testified about another incident prior to the parties' going on vacation to Fire Island. She explained that as a result of breastfeeding the parties' child, her breasts were large and she was having trouble finding suitable tops. The plaintiff asserted that the defendant was "screaming and screeching" at her while the child was in her arms and he tried to grab the child away from her. Thereafter, while the parties and their child, who was one-year old at the time, and the defendant's older children were vacationing on Fire Island, another incident occurred. After an argument with his older daughter, the defendant began screaming at the plaintiff, chased after her upstairs while she had the baby in her arms and caused her to trip and fall. When she ran out of the house with the child, the defendant followed her. The plaintiff stated that she decided then that the marriage was over and she again returned to California. However, once again, she returned to New York at the defendant's request.
While the plaintiff was in California, without discussing with her terminating the lease on the apartment where the parties had been living, the defendant moved out of the apartment. The plaintiff described the two-bedroom apartment where the parties had lived as large and fully and beautifully furnished. However, when the plaintiff entered the apartment with the child upon her return from California, it was nearly empty, save for a dining room table, chairs and bar stools, an unmade inflatable mattress, a night table and lamp in one bedroom, and the child's crib, which was unmade and filled with various items, and a nursing chair, in the other bedroom. There were no towels or bed linens in the apartment so the plaintiff slept on her sweaters the first night. In support of her testimony, the plaintiff offered pictures of the apartment as she found it on her return on September 25, 2012.
After the lease on the apartment expired several days after her return, the plaintiff had nowhere to go. She went to a friend's home for a few days, but was asked to leave when she and the child fell ill with a contagious stomach virus. When she registered at a hotel, the defendant saw the credit card bill and cancelled her credit card. He also refused to guarantee a lease for her and the child. When the plaintiff asked the defendant right before Hurricane Sandy was about to hit if she and the child might stay in his apartment and he could go to his parent's Manhattan home, the defendant refused.
The plaintiff averred that if her relocation request is granted, she would bring the child to New York City to visit the defendant any time the child had a long weekend or a weeklong holiday. Per the plaintiff, the child sleeps well on an airplane. She also suggested that the parties share equally the summer vacation. She offered to help research summer camps in New York if the child stayed with the defendant for a longer period of time in the summer. The plaintiff also suggests that the father could come to California and stay in her home with the child and she would stay with another family member. She stated that she would also fly the defendant's older children out to California so they could spend time there with the child. Notably, the defendant's older son has already spent time with her and the child since the parties' divorce.
The plaintiff acknowledged that the child loves his father and she is invested in their having a good relationship. She said that she has every intention of fostering a meaningful relationship between the father and child and that such a relationship is crucial to the child's well-being. While the plaintiff acknowledged having negative feelings about the defendant given the history of their marriage, she does not convey those feelings to the child. Rather, she asserted that it is her job, for the sake of the child, to hold the defendant in high regard.
Further, it is the plaintiff's belief that if she and the child relocate, the father's relationship with the child would improve, since they will have extended periods of time together, and some of that time will be outside the presence of the defendant's other children. She expressed concern that since the child's half siblings are significantly older, the parties' young child is sometimes exposed to games and movies that are really intended for older children.
M.M., the CFO of ABC, LLC, also testified for the plaintiff. He related that only two people, one of whom is the plaintiff, were offered positions in California. Mr. M. described the plaintiff as hard working, organized and the quality of her work as excellent. He noted that the business's move to California was beyond the control of the employees. Mr. M. will not be relocating to California.
V.P. testified for the plaintiff as well. She stated that she was a self-employed architect and that the plaintiff was her bookkeeper. Ms. P. told the court that she has referred small businesses to the plaintiff at the plaintiff's request and has received positive feedback from everyone she has referred to the plaintiff.
The defendant opposes the plaintiff's application to relocate arguing that such a move would be devastating as it would destabilize the child's lifestyle in New York, weaken his relationship with the defendant, as well as with the child's older siblings and other family members, and impair his strong connection to New York. According to the defendant, the child has known his half-siblings since birth and the parenting plan he agreed to with the plaintiff parallels the parenting time he has with his older children. The defendant also contended that it would be impossible for him to travel to California on a regular basis without disrupting his parenting time with his other children or jeopardizing his business. The defendant reported that works for M.L. and 95% of his clients are located in the tri-state area.
The defendant also pointed out that the plaintiff lives in a luxury rental complex, one block from Central Park. He described the building as dog-friendly, with an indoor pool, a children's playroom, a private second floor garden with a sundeck and barbeques.
Regarding his living situation, the defendant related that he lives in Leonia, New Jersey, minutes from the George Washington Bridge. Near his home there are recreational activities, including a movie theater, numerous playgrounds and fields, a pool club, tennis courts, an equestrian center, hiking grounds, skiing and a boating river where people canoe and kayak. The defendant's home has room for all of his children; each has his or her own bedroom and there is a fenced-in yard. He described the child's room as having a twin-sized bed and bedside table; a floor to ceiling bookshelf where he keeps books, arts and crafts, toys, and board games; a bureau and pullout bins for other toys.
According to the defendant, he sees the child every Wednesday. He leaves work early and picks up the child from school. They regularly visit the defendant's grandparents and his great grandmother, who live near the child's school, and then usually he and the child have dinner together. On alternating weekends, the defendant also leaves work early, picks up the child, they then meet his older children at Grand Central Terminal and then drive to his home in New Jersey. On Friday evening, he makes dinner and the child helps him, and after dinner everyone participates in cleaning up. The defendant described the child's bed routine. The child takes a bath or shower, gets into pajamas and he and the defendant read a book or two together. When he puts the child into bed, he lies down with him for a minute or two and then focuses on his other two children. According to the defendant, on Saturday mornings, the child is the first to awaken so he has some time alone with him and they do some kind of craft or building, such as Legos.
During the weekend, the defendant and the children may go out for breakfast, go to the pool club, tennis courts or equestrian center. Sometimes, the defendant provided, they go to the river to canoe and fish, hike, ski, go to the mall or just play in the defendant's backyard. The defendant testified that often they spend time on the weekend with the defendant's siblings as his older sister lives in New Jersey and his middle sister lives in New York City. Occasionally, they visit with his youngest sister who lives in Massachusetts with her husband and young son. On Saturday evenings, they may go out to dinner at a Korean barbecue restaurant which the children love because they can cook their own food. On Sundays, the defendant works with the child on his homework from Kumon, and then they engage in other activities together. In the evening, the defendant drops his older children at Grand Central Terminal and then returns the child to the plaintiff. When the child is with him on the holidays, Christmas for example, they spend time with the defendant's family. For spring break two years ago, the defendant testified that he took the child and his other two children to Delray Beach, Florida.
The defendant described the child's relationship with his older siblings as close. He noted that the child has also developed a loving relationship with the defendant's grandparents, great grandmother and aunts, uncles and cousins. Regarding the child's education, the defendant contended that the parties agreed that the school the child is currently attending offers an excellent education and since it goes through 8th grade, the child would have structure and stability until high school. As to his parenting style, the defendant provided that he keeps a chalkboard at home with rules and rewards and a list of chores that the children may perform to earn benefits. He explained that the children must comply with what they are asked to do or lose the use of electronic equipment; they may not say "hateful things," and they are rewarded with an allowance for doing basic chores such as cleaning their rooms, making their beds and helping with the dishes. He complained that the plaintiff advocates spanking and had put soap in the child's mouth as a form of discipline. He notes further that the parties have joint custody of the child and that they alternate yearly as to who has "final say" on extracurricular activities and summer activities. Further, if there a dispute about a major issue related to the child, the parties must consult with a parenting coordinator or child psychologist, before the mother makes a final decision.
The defendant rejects the plaintiff's proposal that the child spend extended holiday time and summers with him to make up for the lost weekly Wednesday visits and alternating weekends. He claimed that this would impair his relationship with the child and impair the child's relationship with his siblings, which cannot be made up for with "extra holiday time." The defendant also complained that it would be an economic hardship for him to visit the child in California since he does not have anywhere to stay there and would have to purchase airline tickets, rent cars and only visit with the child in hotels. He pointed to the fact also that his work schedule would not allow for him to block off one weekend with his older children and then another weekend with the child in California. The defendant also stated that he is involved in the child's school and the move to California would not allow for his regular involvement in the child's school and school activities. The defendant also conveyed that he has difficulty speaking with the child on the phone as the plaintiff is not responsive when he calls and asks to speak to the child.
The defendant maintained that the plaintiff's motivation in relocating to California serves her own self-interests of returning to her home state and that there is no economic necessity for the move. He argued that she has been self-employed for over 16 years as an outsourced accountant and controller and does not have the necessary experience to qualify her to be a CFO. He questioned what sort of search she has undertaken to find another position and questioned also the accuracy of her tax returns and the expenses listed on her net worth statement. He also offered to pay the plaintiff additional child support and noted that his monthly child support obligation will increase next year and provide a further resource for the plaintiff to meet her living expenses. Moreover, per the defendant, the plaintiff has a non-retirement securities account which can provide a cushion while she looks for a new position.
With respect to the plaintiff's mother, the defendant testified that he believes that she is dangerous given her past behavior. However, he did not dispute the fact that the plaintiff's mother has cared for his other two children and he has not objected to her caring for the parties' son since she has been sober. The defendant also expressed concerns about drug use and inappropriate behavior by the plaintiff's sister and her cousins, although he offered no evidence to support such concerns. He related, too, that the plaintiff's relationship with her father is estranged. The defendant also provided that during the child's fifth birthday party, the plaintiff used expletives and made an inappropriate comment and produced an email from the plaintiff in which she calls his family "lame" and characterizes him as a "free babysitter."
In support of his application for custody of the child, the defendant asserted that the child is thriving in New York and that he is able to meet all of the child's needs. He can pick the child up from school, or if he were unable, then the child's nanny could pick him up; he has a comfortable home not far from New York City and close to numerous recreational activities, where the child could live; he has family nearby; and he is an experienced parent, having raised two children full time for six years with his first wife prior to the birth of the parties' child. The defendant complained that the plaintiff did not allow him to celebrate Father's Day with the child this past year, gave him only three-days' notice of the child's 5th birthday party and did not invite his family or the child's older siblings to the party. The defendant pointed out that the travel time from California to New York amounts to at least seven to eight hours and the child should not be expected to spend his childhood "commuting" between California and New York as this would not be in his best interest, would impact negatively on his lifestyle and be stressful. The defendant acknowledged that he traveled to California twice in 2016.
Regarding the incident when the plaintiff was pregnant and took his cellphone, the defendant related that it was the plaintiff who attacked him and then left the apartment, shoeless. He stated that he followed her downstairs to the lobby but then returned to the apartment since his other children were there and, having witnessed the incident between him and the plaintiff, were upset. Per the defendant, the next morning the plaintiff came upstairs, packed her bag and left the apartment. He speculated on cross-examination that the injuries the plaintiff sustained were as a result of her hitting him with her arms. He averred that he did not know how she sustained injuries to her stomach. With respect to the incident on Fire Island to which the plaintiff testified, the defendant asserted that the only confrontation he had was with his older daughter who was being defiant; nothing occurred between him and the plaintiff.
Turning to the plaintiff's claims that the defendant left her without a place to live on two occasions, the defendant explained with respect to the plaintiff's return to the parties' apartment in September 2012, the lease was about to expire. He acknowledged removing property from the apartment, but stated that the property belonged to him. Regarding the incident around the time of Hurricane Sandy, the defendant contended that he offered the plaintiff his grandmother's apartment since she was out of town at her farm. He asserted also that he offered the plaintiff a place to stay in Stamford, Connecticut at a reasonable price. He further explained that he could not serve as a guarantor on an apartment for the plaintiff because he had bad credit; he was broke as he had not earned much income the year before and was still paying maintenance to his first wife. He admitted cancelling the plaintiff's credit card, noting that she had funds in her own account.
The defendant denied having any other children besides his two older children with his first wife and the parties' child. However, on cross-examination, the defendant acknowledged writing emails to his ex-girlfriend, A.M., with whom the plaintiff insists he had a child. In one email he tells Ms. M. that she will be a "terrific mother" and will feel "joy you cannot imagine in our son." He also discusses in detail their raising the child together. The defendant explained that what he meant by these emails was that he agreed to raise the child with Ms. M. if they stayed together. The defendant also recalled Ms. M. becoming pregnant while they were dating, but he claimed "there was some debate as to when she became pregnant." At one point in his testimony the defendant denied that the child was his, but at another point stated that "I don't' know if it's my child. I don't know that." He stated that he had not taken a DNA test. The defendant also testified to a loan of $50,000 made to him by Ms. M. which was not included on his statement of net worth. He acknowledged that he has failed to make payment on that loan, despite having made commitments to pay at least a portion of it in 2015 and despite spending money on going out and taking trips. The defendant also testified that he has introduced the parties' child to Ms. M. and at least three other girlfriends, including his current girlfriend who is 26 years old and was recently diagnosed with Multiple Sclerosis. The defendant told the court that he had asked his first wife if she would speak to Ms. Thomsen but that she declined, saying she did not want to be involved in a court case in New York.
When asked how often he took the child to medical appointments at Tribeca Pediatric, the defendant responded that he had been there "a couple times, when it fell on my visitation and she needed me to take him." He stated that he had not taken the child to any well visits, nor has he ever taken the child to the dentist, whose name he did not know. The defendant reported attending "a handful" of the child's extracurricular activities in New York City, explaining that he attends the child's activities in New Jersey when the child is with him. The defendant stated that he has attended teacher conferences and stepping-up events, has come to the child's class to read to the children and is about to play guitar for his class. He has never accompanied the child on his first day of school. The defendant admitted to not taking the child to his classmates' birthday parties that were scheduled during his parenting time, asserting that they generally had other plans. The defendant denied not making timely child support payments, but testified that he "usually" pays child support the first of the month and that is what he "generally" tries to do. M.T., the defendant's sister, testified for the defendant. She is a parent of two children ages 16 and 13 and is a full-time professor. She stated that she sees the parties' child about once a month if she is able. She averred that the child has a great relationship with her children. Ms. T. described the defendant as a caring, loving, playful and attentive father. Ms. T. acknowledged on cross-examination that she was not familiar with the extracurricular activities in which the child is involved and that in the last year, her children had seen the child about six times.
J.T., the defendant's father, testified for the defendant, stating that he sees the child approximately twice a month at various locations, including his apartment and the defendant's home. Mr. J.T. testified that he had never been to the child's school or attended any of his extracurricular activities. He did not attend the child's baptism or any of the child's birthday parties. He did not know what television shows the child watched and could not identify his favorite toy.
Arguments of Counsel
The court has reviewed the submissions of counsel, including their proposed parenting arrangements. Briefly, the plaintiff's counsel argues that the plaintiff's position at ABC, LLC offers her a unique opportunity which will improve her and the child's economic circumstances. Counsel notes that the position permits the plaintiff a great deal of flexibility which allows her to be a class mother, chaperone school trips, be active in the child's classroom and work from home when the child is sick. The ABC, LLC position also allows the plaintiff to supplement her income by providing basic bookkeeping services to smaller clients, and offers potential upward mobility.
Counsel for the plaintiff further points out that the child and the plaintiff have many close friends and family in California and that the quality of the child's lifestyle would be enhanced by the move. Counsel details the steps that the plaintiff has taken to further the child's best interests and sets forth in some detail conduct by the defendant which is detrimental to the child's well-being, including incidents of domestic violence. Plaintiff's counsel also argues that the defendant is virtually uninvolved in the child's school events, extracurricular activities and medical appointments.
In the brief submitted by defendant's counsel he maintains that the relocation to California would disrupt the child's life and his close relationships with his father and siblings. He asserts that the defendant is an experienced and appropriate parent and that the plaintiff's allegations of domestic violence should not be credited. He takes issue with the plaintiff's statement that the defendant is nothing more than a "free baby sitter" and her calling his family "lame."
The defendant's counsel contends that the plaintiff did not make any effort to secure a new position in New York. He contends that she is an excellent accountant who could find suitable work in New York, but wishes to live in California.
In sum, the defendant's counsel asks that the relocation application be denied and that the plaintiff be directed to pay all of the litigation expenses. Alternatively, counsel represents that his client would agree to any parenting plan that permits the child to primarily reside in New York and continue to go to the school he is attending now. The defendant would also agree to increasing the amount of child support he pays should the court determine that an increase is necessary.
The attorney for the child substituted judgment for her client based on the child's age and immaturity. It is her position that the evidence overwhelmingly supports the mother's relocation to Los Angeles, California with the child. The attorney for the child notes that the mother is the parent primarily responsible for the child and that she has no support system in New York, but an extensive support system in California. In addition, she submits that the relocation will allow the mother to continue her employment with ABC, LLC, afford her a raise and the potential for a promotion. The attorney for the child also submits that the evidence demonstrates that the child's life will be enhanced emotionally by the move and that the child's relationship with his father can be preserved through a suitable visitation arrangement. Indeed, the attorney for the child suggests that the child's relationship with his father may improve upon the mother's relocation if a schedule is crafted such that the child has more one-on-one time with him.
Discussion
As the First Department has held, "[w]here parents enter into a formal custody agreement, it will not be set aside without a showing of sufficient change in circumstances since the time of the stipulation, and unless the proposed modification is shown to be in the best interests of the child" (Sergei P. v Sofia M., 44 AD3d 490, 490 [1st Dept 2007]). It is the court's duty in determining any modification to consider the totality of the circumstances based on the evidence adduced at a hearing (Matter of Graziani C.A., 117 AD3d 729 [2d Dept 2014]). The court makes its determinations based on an assessment of the witnesses' demeanor and credibility (Hall v Clas, 144 AD3d 801 [2d Dept 2016]) and upon the character, temperament and sincerity of the parties (Ennis v Piterniak, 134 AD3d 823 [2d Dept 2015]).
In particular, the resolution of relocation disputes is a challenging task as such cases "present some of the knottiest and most disturbing problems that our courts are called upon to resolve" (Matter of Tropea v Tropea, 87 NY2d 727, 736 [1996]). Although the court must consider the rights of each of the parents, it is the child's needs and rights which are of paramount importance (DeFilippis v DeFilippis, 2017 WL 99149 [2d Dept 2017]; see also, Koegler v Woodard, 96 AD3d 454 [1st Dept 2012]). "In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child's best interests" (Tropea, 87 NY2d at 741).
The factors that the court must consider when a party seeks to relocate with a child "include but are certainly not limited to, each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parent, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the life of the custodial parent and child may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements" (Rubio v Rubio, 71 AD3d 862, 863 [2d Dept 2010], quoting Tropea v Tropea, 87 NY2d at 740—41).
Here, the court finds that the mother's testimony was wholly credible. She was forthright and thoughtful in her responses and appropriately distraught when discussing disturbing events, including incidents of domestic violence, that occurred during the marriage. The father's testimony, on the other hand, was often evasive, equivocal and, at times, strained credibility.
The court is persuaded that the plaintiff's reasons for seeking to relocate are sincere and compelling. The fact that she may have sought to move back to California during the divorce proceedings some four years ago is of no real moment with respect to the instant application where there is a demonstrated basis that relocation to California at this time and for the reasons set forth herein is in the child's best interest. Notably, the plaintiff returned to California twice during the marriage after incidents of domestic violence, but returned to New York each time at the defendant's request.
The plaintiff has been working for the same company for some seven years and has assumed a great deal of responsibility. She has earned the trust of upper management, has a stable position, a flexible work schedule and has now been offered an outstanding career opportunity if she is permitted to relocate to California. There is no way that the plaintiff could have anticipated the company's restructuring and subsequent move to the West Coast. However, the compensation and benefits she is being offered if she relocates are substantial — in total, she will be earning some 60% more in this new position. Additionally, this is a strategic career move as there is the potential for professional advancement if she accepts the controller position. In addition, she will be able to continue to supplement her income by providing basic bookkeeping services to her smaller clients. The plaintiff has tried to find a position in New York comparable to the one ABC, LLC is offering in Los Angeles, and has tried to grow her outsourced accounting business, but she is unable to earn sufficient income here, absent the income she receives from ABC, LLC which represents the vast majority of her income. Certainly, given the foregoing, the plaintiff's economic circumstances, and therefore, the child's, will be vastly enhanced by this move, and, conversely, if she is not permitted to move, her financial circumstances will suffer. Moreover, in California, the plaintiff will be able to rent a home with several bedrooms, a private outdoor space and a garage for far less than what she is paying for a small one-bedroom apartment in Manhattan.
Not only will the child's life be enhanced economically by the move, but also educationally and emotionally. The school that the mother has identified and which has agreed to enroll the child midyear if relocation is granted, is a highly regarded Catholic private school. It is academically strong and offers a nurturing environment. The physical facility, including the church, is large and attractive, and the outdoor space is expansive.
In addition, the plaintiff will have an extensive network of support comprised of close family and friends; in New York, she has no such support network. The child will have the opportunity to live near his maternal grandmother, with whom he has a close relationship. While the defendant now raises concerns about the maternal grandmother given her past abuse of alcohol, notably, he has not objected to the child being in her exclusive care since she has been sober and has allowed her to care for his other two children. The child will also be near his maternal aunt and cousin, as well as other cousins with whom he is close. He also has a close friend who recently relocated with his family from New York to the Los Angeles area. The living arrangement would be conducive to the child's well-being as well since the child will live in a house, with his own room, and a backyard where he can spend more time out of doors.
In reaching its determination, the court also finds that the mother is the child's primary caregiver. She is and has always been the parent far more involved in the child's daily life (Rivera v Cruz, 143 AD3d 902 [2d Dept 2016]; Ceballos v Leon, 134 AD3d 931 [2d Dept 2015]; Matter of Noel v LePage, 133 AD3d 1129 [3d Dept 2015]). She has always attended all events at the child's school, has routinely volunteered at his school, she attends the child's extracurricular activities, takes the child to his medical appointments and travels extensively with him. By comparison, the defendant's role in the child's daily life is more minimal. He has rarely attended the child's extracurricular activities in New York, has not accompanied the child on his first days of school, has not accompanied the child to his classmates' birthday parties and has not taken the child to any well visit doctor or dentist appointments. Indeed, he does not know the name of the child's dentist.
The court further notes that the defendant's basic child support payments and his payments toward the child's add-on expenses are not always timely, and at the time of the divorce he owed the plaintiff substantial arrears for maintenance, child support and counsel fees. He also testified that he currently has significant debt and noted on his net worth statement a cash balance in his checking account of $2,750. Thus, his offer to pay the plaintiff additional support is not practicable.
In addition, the defendant's failure to acknowledge paternity of Ms. M's child, or at least submit to a DNA test, is troubling. His explanation for the emails he wrote to Ms. M wherein he refers to the child she bore as "our son," strains credibility. That the defendant has had numerous girlfriends since the parties' 2014 divorce the last few years raises concerns for the court as well. His short-term romantic relationships with at least four different women in a short period of time, all of whom the child was introduced to, injects confusion and instability into the child's life (David B v Katherine G, 138 AD3d 403 [1st Dept 2016]).
The fact that the defendant failed to list the significant debt of $50,000 to Ms. M on his sworn net worth statement is troubling as well. This is a direct misrepresentation to the court of his financial position. The court notes, too, that despite the intervention of counsel for Ms. M in 2014, and the defendant's representation to her counsel that he would begin to repay the loan she made to him, he has made no payments to date.
Finally, the attorney for the child supports the plaintiff's relocation application. The attorney for the child believes, based on the evidence adduced at trial, that the move is in the child's best interests and, further, that a parenting schedule can be arranged which will give the father even more one-on-one time with the child (David B v Katherine G, supra.).
Notwithstanding the foregoing, the father and child have a close and loving relationship and the move will, no doubt, mean that the child sees his father on a less frequent basis. However, the court finds that the advantage of the move to the mother outweighs any potential negative impact of the move on the relationship between the father and child (Diane M v Nityanan T, 123 AD3d 632 [1st Dept 2014], and liberal visitation, which includes extended holiday and long weekend visits, coupled with substantially longer summer parenting time, will allow the father and child to maintain and continue to build a strong and meaningful relationship (Kevin McK v Elizabeth A. E., 111 AD3d 124 [1st Dept 2013]; see also, Karen Michelle F v Wilfredo C, 116 AD3d 561 [1st Dept 2014]). Indeed, it is possible that more extended visits will give the father and child more quality time and be more conducive to preserving the father-child relationship (Hall v Hall, 118 AD3d 879 [2d Dept 2014]). While the child has a loving relationship with his half-siblings and this should unquestionably be preserved, it will be beneficial for this young child to have more one-on-one time with the father. In addition, the mother has established that she is committed to fostering a relationship between the father and the child (In re Christopher EC, 143 AD3d 420 [1st Dept 2016]). The mother's testimony on this subject was unequivocal, including offering to leave her home when the father comes to visit so he could spend time with the child in the child's home. She also expressed her desire to continue the bond between the child and his half-siblings, stating she would fly the children to California so that they could spend time with her and the child. Given the mother's prior good relationship with the defendant's children — indeed, during the marriage, the children spent time with the parties regularly and vacationed with them — and the fact that the defendant's older son has visited with her and the child since the divorce, there is every reason to believe that the plaintiff will ensure that the child maintains a close relationship with his older half-siblings. Moreover, while the defendant complained that given his job, he cannot take the time to travel to California, in 2016, he took at least one business-related trip and one trip for pleasure to California with his girlfriend.
Taking into account all of the relevant factors, the court concludes that the mother has established by a preponderance of the evidence that the proposed relocation to California would serve the child's best interest. Accordingly, the mother's application to relocate with the parties' child to California is granted and the radius relocation clause in the parties' custody agreement is superseded by this decision and order. Consistent with this determination, the child shall be seen by health providers near the child's residence in Los Angeles, California. The child shall also be permitted to attend school at St. XXXXXX Catholic Elementary School.
Inasmuch as the court finds that the relocation to California with the mother is in the child's best interests, it follows that the father's application for primary residential custody denied.
In any event, the court notes that in considering whether an award of custody to the father would be appropriate, the prior history of domestic violence is a factor the court would consider (Matter of Melissa G v John W, 143 AD3d 406 [1st Dept 2016]). Here, the court finds that the plaintiff testified credibly with respect to incidents of domestic violence during the parties' marriage. The court notes that prior to the instant application, there had been no testimony regarding domestic violence since the parties had reached an agreement before any custody proceedings were commenced. Other evidence adduced at the hearing, including the condition in which the defendant left the parties' apartment after he moved out without consulting the plaintiff, and his decision to cancel the plaintiff's credit card at a time when she had no residence in New York and he was not in compliance with his court-ordered support obligations, also suggests that the defendant has not always acted in the child's best interests to ensure his needs were met, including that he have a safe, stable and appropriate place to live with his mother. While in an apparent effort to explain why he cancelled the plaintiff's credit card, the defendant testified that the plaintiff had savings, "taxable, free and easy," the fact is that he was required to pay his court ordered obligations so that the plaintiff, the non-monied spouse, would not have to deplete her assets (Sykes v Sykes, 41 Misc 3d 1061 [Sup Ct, New York County 2013]; Calligar v Calligar, 2003 WL 21147184 [Sup Ct, Nassau County 2003]).
However, the preservation of the relationship between the father and the child going forward is of critical importance. As discussed above, the court believes that a parenting schedule can be devised which provides the father with ample access to the child such that it allows for the continuation of a consistent, ongoing and meaningful relationship. Unless the parties can agree otherwise, the court orders that the following schedule be effected.
The child shall spend the three-day March school holiday, Memorial Day weekend in May and Veterans Day weekend in November with the father every year. In those years that the child spends the first half of the Christmas vacation with the father as discussed below, the child shall spend the Martin Luther King Day weekend with the father.
The child shall spend Easter break with the father in 2017 and 2018, and with the mother in 2019. Thereafter, every third year, the child shall spend Easter break with the mother. The parties shall share equally the Christmas vacation each year, with the father enjoying the first half of the vacation in odd years, and the mother enjoying the second half of the vacation. In even years, the schedule shall be reversed, with the mother having the child for the first half of the vacation and the father, the second half. The parties shall alternate the extended Thanksgiving holiday weekend with the father having visitation with the child in odd numbered years, and the mother in even numbered years.
In addition to the foregoing, the father may visit with the child in California for up to seven consecutive days three times a year at a time convenient to both parties. The father shall give the mother 45 days' notice of his intention to come to California to spend time with the child. During those time periods, as the mother has offered, the father may stay with the child in the mother's home and the mother shall stay elsewhere.
The parties shall share equally the child's summer vacation. Unless the parties agree otherwise in a written agreement, in odd years, the child shall spend the first half of the summer with the father, and the second half with the mother. In even years, it will be the reverse. Specifically, with respect to summer 2017, the child shall spend from June 17th until the morning of July 23rd with the father.
With respect to Easter, Christmas and summer vacation, unless otherwise agreed upon by the parties in writing, the father shall pick up the child in Los Angeles, California at a mutually agreed upon location, and the mother shall retrieve the child from the father's home or another mutually agreed upon location in the New York/New Jersey region at the end of the vacation. With respect to all other access time with the father on the East Coast, the mother, or a responsible adult designated by her, shall be responsible for bringing the child to the New York/New Jersey area and returning him to California. Unless the parties agree otherwise in writing, the father shall meet the child and the plaintiff or another adult designated by the plaintiff, at the airport, provided it is a New York City airport or Newark Airport. Further, with respect to all travel to the New York metropolitan area, the mother shall schedule a flight immediately following the child's school day, or earlier if at all possible, with a return flight to arrive back in Los Angeles at or around 7:00 p.m. on the day immediately prior to the commencement of school. The costs of the child's airfare shall be paid 60% by the mother and 40% by the father. All other travel related costs for the child and the mother shall be the responsibility of the mother. The father shall be responsible for the costs of his flights and his other related travel expenses.
The father shall be entitled to spend Father's Day with the child, provided he travels to California to see the child. The mother shall have Mother's Day with the child. Unless otherwise agreed to by the parties in writing, the parties shall share the child's birthday in California, with the mother enjoying the first half of the day with the child in odd years, and the father, the second half of the day, with the reverse schedule in even years.
Both parties shall provide two weeks' advance notice and itineraries of any travel with the child, along with contact information and the names of any other persons traveling with the child. Each party shall be permitted to speak to the child daily either via FaceTime or Skype or other video-conferencing services when the child is with the other party. Unless otherwise agreed to by the parties in writing, such contact shall take place 30 minutes prior to the child's bedtime.
The parties shall meet with Dr. Larry Cohen to discuss how the child will be told about the relocation, including whether the child should be told about the move in Dr. Cohen's presence or not. The parties shall also discuss with Dr. Cohen at what age it is appropriate for the child to travel unaccompanied by his mother or another designated adult.
Therefore, upon the facts presented and the applicable law, it is hereby:
ORDERED, that as set forth herein, the plaintiff's motion for an order permitting her to relocate with the parties' son, G.T., age 5 to Los Angeles, California, is granted; and it is further
ORDERED, that as set forth herein, the plaintiff's application for an order modifying the visitation provisions of the custody and visitation agreement, is granted; and it is further
ORDERED, that consistent with this determination, the child shall be seen by health providers near the child's residence in Los Angeles, California, and shall be permitted to attend school at St. XXXXXX Catholic Elementary School; and it is further
ORDERED, unless otherwise agreed to by the parties in writing, the parties shall comply with the access schedule set forth herein; and it is further
ORDERED, that the defendant's application for an order granting him primary residential custody of the child is denied; and it is further
ORDERED, that counsel for the plaintiff is directed to serve a copy of this order with notice of entry within ten (10) days of entry, upon counsel for the defendant and the attorney for the child.
This constitutes the Decision and Order of the Court. Dated: February 2, 2017 HON. DEBORAH A. KAPLAN J.S.C.