Opinion
V-01908-06/16O
07-27-2017
In the Matter of a Proceeding Under Article 6 of the Family Court Act Peter W. KEESLER, Jr., Petitioner, v. Jillaine CHENEY, Respondent.
RANDY STUART MARGULIS, ESQ., Attorney for Father, PETER W. KEESLER, JR. EDWARD J. MARTNSHIN, ESQ., Attorney for Mother, JILLAINE CHENEY THOMAS A. DEUSCHLE, ESQ., Attorney for Child, PETER (13) D.O.B. 11/XX/2003
RANDY STUART MARGULIS, ESQ., Attorney for Father, PETER W. KEESLER, JR.
EDWARD J. MARTNSHIN, ESQ., Attorney for Mother, JILLAINE CHENEY
THOMAS A. DEUSCHLE, ESQ., Attorney for Child, PETER (13) D.O.B. 11/XX/2003
Mary G. Carney, J.
Before the Court is a single petition filed by Peter W. Keesler, Jr. (hereinafter referred to as "Father") seeking modification of a prior Family Court Order of custody and access against Jillaine Cheney (hereinafter referred to as "Mother"). Father seeks an order of sole legal and physical custody of the parties' son, Peter (13) (d.o.b. 11/xx/2003) (hereinafter referred to as "Peter"), based on what he alleges is a deterioration of Peter's physical and mental health resulting from Mother's behavior towards him as well as Mother's interference with Father and Peter's communication.
Testimony was heard on January 5, 2017 , February 10, 2017 and May 31, 2017 . In addition to Father and Mother, the court heard from one (1) other witness, to wit: Sarah G. Lane, LMSW (Court Social Worker, Erie County Family Court). The court held an in camera conference with Peter on July 6, 2017 and thereafter received written summations from all attorneys on or around July 20, 2017 .
This Court has had the unique opportunity to evaluate and observe the demeanor, temperament and sincerity of the witnesses and weigh their respective credibility. This Court has further considered the petition filed by Father and all documents received in evidence together with the applicable statutory and case law and now makes the following material findings of fact and conclusions of law.
FINDINGS OF FACT
Mother has always enjoyed sole legal and physical custody of Peter subject to Father's rights of access. The history of the parties' court involvement demonstrates that Father's access has been expanded by stipulation continually, with the last controlling orders being issued by Erie County Family Court in or around October, 2008 and again October, 2013 . Pursuant to the October, 2013 order, the parties share time equally with Peter in the summer months in an alternating week schedule. Father enjoys regular access during the school year three (3) out of every four (4) weekends, plus evening access every Wednesday and every other Tuesday, in addition to holiday access as set forth in the 2008 order.
Father's petition and testimony focused on two (2) main areas of concern: (1) that Mother disrespects Peter's right to privacy as a maturing young man and frequently belittles or embarrasses him; and (2) that as a result of the conditions in Mother's home, Peter's physical and mental health have deteriorated.
Father is 54 years old and employed full time as a truck driver for Chemical Distributors Inc. (hereinafter referred to as "CDI"). He has been employed by CDI for twelve (12) years and earns approximately $56,000.00 annually. He resides alone in a two (2) bedroom apartment in West Seneca, New York which is closely situated to the West Seneca West High School. Photographs of Father's residence were received in evidence as Petitioner's Exhibit 4 demonstrating ample space and a bedroom for Peter. Father testified that he is looking to purchase a home, but would not change school districts mid-year if granted custody of Peter. The court found Father to be very forthright, credible and reliable witness.
Mother is 51 years old and unemployed. Mother testified that her only sources of income are the $802.00 she receives monthly from Social Security Disability and $114.00 she receives weekly from Father as child support. Mother testified that she receives disability compensation for back, neck and knee injuries sustained in a car accident approximately ten (10) years ago. While the court found Mother to be credible, she was a less reliable witness than Father. Mother's credibility was strained by her defensiveness and evasive responses to straightforward questions.
As an example of Mother's evasiveness, there was credible testimony from Father that he inadvertently learned in or around January, 2016 that Peter had not seen the dentist in over two years. As such, he made an appointment for Peter on his access day and took him to the dentist in April, 2016 and again in October, 2016 . Peter's next scheduled dental appointment (during the pendency of this proceeding in or around April, 2017 ) was cancelled by Mother; rescheduled to May, 2017 and then cancelled again entirely and changed to a new dentist. Mother admitted she cancelled the two appointments and rescheduled the dental appointment to a time during Peter's school day with a dentist Peter had never seen before. She testified that she had no issue with the dentist Peter had been seeing, but offered no reasonable explanation as to why she took such action.
Both parties testified that Peter's weight is a concern for them. Father testified that Peter is approximately 5'8" and 192lbs. He testified that he weighs Peter every so often, takes steps to make sure he stays physically active and cooks him healthy meals. Petitioner's Exhibits 1 and 2 in evidence are photographs of Peter demonstrating his physical appearance. Father testified that Peter himself is very concerned and upset about his weight.
When Mother was cross examined about her concern over Peter's weight, she responded somewhat defensively that she took him to a nutritionist approximately two (2) years ago at the recommendation of the pediatrician. There was no testimony that she has done much of anything else since then to address Peter's weight problem. She further testified that she did not believe Peter was at all bothered by his weight problem as he "does not act or say he is" in her presence.
Although the October, 2013 order contains language that neither party shall interfere with the other's telephone access, Father testified that Mother frequently interferes with Peter's court ordered right to privacy in this regard. Father complained that he was often unable to reach Peter by phone even though he provided him with his own cell phone. When he does connect with Peter, he testified that he can hear Mother in the background distracting Peter, making noise or talking. Father described this as "constant interference" and concluded that Mother does not support Peter's phone contact with Father. This testimony was uncontroverted.
Father testified that sometime in the first part of 2017, he was released from work early on a Wednesday (his access day with Peter) before his usual exchange time but at the conclusion of Peter's school day. He testified that he sent a text message to Peter that he could pick him up from school and called Mother to advise her. According to Father, Mother was not pleased with this news and exclaimed, "You have no right to pick him up from school you're done!"
Admittedly, the parties' prior order indicates Father's Wednesday access shall commence after school where the parties would normally exchange at Tim Hortons. While an occasional pick up from school on notice to the other parent would seem to be a fairly innocuous event, Mother saw fit to contact the Hamburg Police who intervened at her request. Mother provided no credible explanation or reasoning to support her reaction to the event, which the court found disproportionately severe and unnecessary. Mother was already aware that Peter was safe and with his Father.
Father linked Mother's anger over this "school" incident to the considerable anger she had over him taking Peter to the dentist and concluded that Mother uses her power as sole custodian to try to exclude Father at all costs. Father testified that he is never made aware of Peter's appointments with the pediatrician or allergy specialist. Nevertheless, he testified as competently as Mother regarding Peter's special medical issues and the medicine he takes. While Mother suspected that Father does not always give Peter his medicine, she offered no credible evidence to corroborate her conclusion.
Both parties described Peter as a sensitive child, but Father enthusiastically described him as "a very friendly, outgoing, honest happy boy" whereas Mother simply described him as "emotional" . Father was able to articulate specific observations of Peter being "emotional" in his care. He testified that he was mostly "upset" when discussing his relationship with Mother. He offered testimony concerning an incident at a bowling Christmas party where Father concluded that Mother embarrassed Peter by not allowing him to sit where he chose to (with Father). Father observed Peter crying in front of his peers as a result of Mother's actions, which were described as unnecessarily confrontational given the circumstances. Mother did not offer any credible testimony refuting the facts as alleged by Father.
One of Father's chief complaints regarding Mother's parenting is her repression of 13-year-old Peter's right to socialize with friends and join activities of his choosing. Both parties agreed that the only extracurricular activity in which Peter "is allowed" to participate is bowling. Mother admitted that she still arranges "play dates" for Peter with his friends' parents, rather than allowing Peter the freedom to make those arrangements himself.
Testimony from Sarah G. Lane, LMSW, outlined her concerns regarding Father's ability to support Peter's relationship with Mother should custody be transferred to him. Her chief concern was that Peter would become estranged from his Mother in Father's care, due to Father's negative attitude towards Mother. Ms. Lane admitted that she had not met with Peter directly to discern what his relationship with Mother is like presently. She outlined specific concerns that Mother was overprotective of Peter and stifled his freedom to form independent peer relationships and join extracurricular activities of his choosing.
Ms. Lane was found to be a generally credible and reliable witness. She indicated specific concerns related to Peter's special needs as a child with asthma and other health conditions requiring medication. Her concern was that Father does not specifically administer Peter's medicine to him while Mother was reported to be more vigilant. Still, she testified that she was not aware of whether Father observed Peter administer his own medication.
CONCLUSIONS OF LAW
It is well established that alteration of an established custody arrangement will be ordered only upon a showing of a change in circumstances which reflects a real need for change to ensure the best interest of the child. Amy L.M. v. Kevin M.M. , 31 AD3d 1224 (4th Dept. 2006) ; Horn v. Horn , 74 Ad3d 1848 (4th Dept. 2010) ; Dormio v. Mahoney , 77 AD3d 1464 (4th Dept. 2010) ; Moore v. Moore , 78 AD3d 1630(4th Dept. 2010).
The court concludes that Father met his burden of demonstrating a change in circumstances sufficient to warrant an inquiry into whether a change in custody is in the best interests of the child. Elniski v. Junker , 142 AD3d 1392 (4th Dept., 2016) ; see also Miller v. Miller , 141 AD3d 1117, (4th Dept. 2016). The preponderance of the evidence demonstrated that Peter's relationship with his Mother, along with his physical and emotional health, are deteriorating in Mother's custody. There was credible testimony that Mother interferes with Peter's right to privacy concerning phone calls with Father and bedtime routine. There was also testimony that Mother restricts Peter's freedom concerning participation in extracurricular activities of his choosing and forming independent peer relationships. All of these circumstances, coupled with Peter's strong preference to reside with Father form the basis of a change in circumstances sufficient to warrant a best interests analysis. O'Connell v. O'Connell , 105 AD3d 1367 (4th Dept. 2013) ; see also Dorsa v. Dorsa , 90 AD3d 1046 (2nd Dept. 2011)
Mother has enjoyed sole custody of Peter nearly all of his life pursuant to a string of consent orders between the parties. Both parties admitted that they are essentially unable or unwilling to communicate and discuss important issues related to Peter and that they exchange Peter in a "neutral" location, specifically at a Tim Hortons . It was undisputed that they cannot and have not made decisions jointly for Peter. In determining whether a custody agreement should be modified, the paramount issue before the Court is whether, under the totality of the circumstances, a modification of custody is in the best interest of the child. Perry v. Korman , 63 AD3d 1564 (4th Dept. 2009) ; citing Maher v. Maher , 1 AD3d 987, 988-989 (4th Dept. 2003).
There is no one factor that is determinative of whether there should be a change in custody, including the existence of a prior custody agreement. The prior agreement is one of the factors to be considered. No agreement of the parties can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child's best interest. Friederwitzer v. Friederwitzer , 55 NY2d 89 (1982). In addition, the court in Friederwitzer noted that the weight to be given to the prior agreement depends on whether there was a full hearing before the trial court or it was merely the uncontested stipulation of the parties incorporated into the court's judgment. See also, Maher v. Maher , 1 AD3d 987, (4th Dept. 2003).
In determining the child's best interest, the factors to be considered include: (1) The quality of the home environment and the parental guidance the custodial parent provides for the child. (2) The financial status and the ability of each parent to provide for the child. (3) The ability of each parent to provide for the child's emotional and intellectual development. (4) The demonstrated parenting ability and demonstrated fitness of the parties. (5) The love, affection, and nurturing given by each party to the child, the emotional bond between the child and each party, and the willingness and ability of each party to put the child's needs ahead of his or her own. (6) The willingness and ability of each party to facilitate and encourage a close and optimum relationship between the child and the other party. (7) The individual needs of the child or the desires and preferences of the child. (8) Any other factors deemed relevant to a particular custody dispute; e.g., domestic violence and its impact on the child. Friederwitzer v. Friederwitzer , 55 NY2d 89 (1982) ; Eschbach v. Eschbach , 56 NY2d 167 (1982) ; Fox v. Fox , 177 AD2d 209 (4th Dept. 1992).
With respect to the quality of the home environment and parental guidance the custodial parent provides for the child, testimony established that Mother has several deficiencies. Testimony established that Mother has a tendency to be overprotective of Peter and restrict his peer relationships and access to extracurricular activities. Although Mother acknowledged Peter has a weight problem, she opined that "it didn't bother him" and has done nothing in over two (2) years to address the situation. Additionally, it was undisputed that Mother failed to take Peter to the dentist for over two (2) years, and when she became aware that Father was taking him, she changed his dentist and appointment without explanation.
There was concerning and moving testimony that Mother's relationship with Peter is presently very weak. Father testified that he has concluded Mother belittles Peter to his face and "gives him a hard time about everything" . Father observed Peter crying when he discusses his relationship with Mother or when it is time to return to his Mother's home. Father observed Mother embarrassing Peter at a bowling Christmas party causing Peter to cry in front of his peers.
Father introduced photographs of his residence and described a home environment in which he cooks healthy meals for Peter and engages in physical activities with him like playing catch, riding bikes, playing basketball and going to the batting cages among other activities. Mother did not offer similar credible testimony. While she testified that she engages in a number of activities with Peter, the court did not find Mother entirely credible on this subject as she admitted that she has physical limitations due to her disabilities. Based on the circumstances, the court concludes that the quality of Father's home environment and parental guidance appeared superior to Mother's.
Father's financial status and ability to provide for Peter are clearly superior to Mother's. Father has steady and stable income from long-standing full time employment. Mother relies on social security disability and child support as her sole sources of income. This factor weighed more heavily in favor of Father.
There is no question that Peter is extremely bright having finished the 8th grade with an average in the mid-nineties. Both parties agree that Peter is an excellent student and each appears equally equipped to support and foster Peter's intellectual development and love of school. This factor did not weigh heavily in favor of either party.
With respect to each parent's ability to provide for Peter's emotional development and demonstrated parenting ability, the parties reveal clear differences. Father testified competently about Peter's strengths as a maturing young man and supported his participation in extracurricular activities of his choosing. He testified lovingly about Peter's positive attributes and demonstrated a desire to nurture his strengths. Father clearly displayed a greater sensitivity to Peter's maturing emotional and psychological needs.
In contrast, Mother's decisions concerning Peter's emotional development appeared to be centered solely on her own interests and not Peter's. She admitted making "play dates" for her 13-year-old son and did not dispute the testimony offered by Father concerning his bedtime routine. Furthermore, testimony established that Mother and Father have a moderately discordant relationship, and at times, Mother uses Peter to "punish" Father. Examples of this were illustrated by withholding additional access, interfering in telephone conversations, changing Peter's dental provider without sufficient reason and calling the police to intervene when Father tried to pick Peter up early on a Wednesday. These behaviors call into question Mother's willingness and ability to Peter's needs ahead of her own.
Both parents clearly love Peter and want what is best for him. Both parents are competent and equally well versed in Peter's special medical needs and medications. Without diminishing Mother's love of her son which is clear, Father's demonstrated an affection for Peter and described a stronger emotional bond with him than Mother did. Father articulated several activities that he and Peter enjoy doing together and was able to describe Peter in loving terms whereas Mother did not offer any similar testimony. There was credible testimony that Mother embarrasses and belittles Peter at times.
There was credible evidence that Mother has not always encouraged an optimum relationship between Peter and Father. Nevertheless, Mother demonstrated proof of completing a New York State Parent Education and Awareness Program through Catholic Charites in or around December, 2016 . (See Respondent's Exhibits A and B in evidence). Father offered no such similar proof. Father described Mother as a "nuisance" and "pain" and admitted they have little to no communication. Therefore, the willingness and ability of each party to facilitate and encourage a close and optimum relationship between the child and the other party did not really weigh heavily in either parent's favor. Father did acknowledge a sincere desire and intention to support Peter's relationship with Mother should he be granted custody, but he also described her in negative terms. He demonstrated an understanding of the significant role Mother plays in Peter's life and supported her decisions by planning to maintain Peter's current religious education and medical providers. Still, the court believes he could benefit from parent education in this regard.
The final factor that weighed most in favor of Father was Peter's strong individual need and preference to reside with him. The Attorney for Peter clearly advocated in favor of modifying custody to support Peter's physical and emotional well-being. The Fourth Department has held that a child's preference should be considered keeping in mind the child's age and level of maturity. "While the express wishes of children are not controlling, they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful." Stevenson v. Stevenson , 70 AD3d 1515 (4th Dept., 2010) ; see also Mercado v. Frye , 104 AD3d 1340 (4th Dept. 2013).
The court had the pleasure of meeting Peter on July 6, 2017 . He is an exceptionally bright, thoughtful and forthcoming young man. He presented as very mature, well prepared and clear in his preferences. His preference has been particularly meaningful to the court's decision, but not determinative. Peter's fine grades are reflective of his intellect and aptitude. He appears to be a young man that is highly capable of adapting and adjusting to new situations, which will serve him well as he commences his Freshman year of high school in the fall. The court concluded that Peter carries a deep and sincere sadness at being squarely in the middle of his parents' dispute.
Based on the totality of the circumstances, the court finds Father has met his burden of proof to show that Mother is less fit than Father to act as Peter's primary custodial parent, based on his greater sensitivity to meet Peter's maturing needs. While Mother competently attends to Peter's medical and educational needs, she appeared deficient in tending to his changing emotional, physical and psychological needs.
DECISION
The court after a review of all the evidence and being in a position to observe the demeanor and credibility of the parents finds that, in the totality of the circumstances, the best interests of Peter are served by modifying custody in this matter to designate Father to be Peter's sole custodian. In modifying the parties' custodial arrangement, the court has carefully weighed all factors, including giving special weight to the child's express position, in determining this modification to be in Peter's best interests.
NOW, THEREFORE, the Court having searched the statewide registry of orders of protection, the sex offender registry and the Family Court's child protective records, and having notified the attorneys for the parties and for the child of the results of these searches; And the Court having considered and relied upon the results of these searches in making this decision it is hereby
ORDERED that Father's Petition for Modification of a prior order of custody and access (Docket No. V-01908-06/16O) is hereby granted as follows:
(1) Father shall enjoy sole legal and physical custody of Peter. As a component of Father being designated custodian of Peter, he shall immediately enroll in an on-line co-parenting class at: https://www.onlineparentingprograms.com Specifically, the 6 Hour Online Co-Parenting — Fundamentals of Raising Children Between Multiple Homes ($69.99). Father shall submit proof of completion of this course to the Attorney for the Child on or before October 1, 2017 .
(2) The court hereby continues the Attorney for the Child's appointment for a period of six (6) months from the date of this decision to remain available to Peter during this transition.
(3) Father shall have primary authority to make all decisions concerning Peter's health, education and general welfare; subject to an affirmative obligation to consult and advise Mother regarding same. Father shall keep Mother contemporaneously informed of all decisions concerning Peter's health, education and general welfare.
(4) Mother shall have equal and independent access to all of Peter's educational and medical records and providers. Father has an affirmative obligation to inform Mother in writing (e-mail or text) within thirty (30) days of receipt of this Order of the names, addresses and phone numbers of each and every educational, medical, day care and extracurricular provider so that Mother may avail herself of her rights of independent access. Said obligation is on-going should any providers change.
(5) Both parties shall have a continuing obligation to keep the other informed of his or her current contact information at all times including physical address, telephone numbers and email addresses.
(6) The parties shall adhere to the following additional components of access at all times:
a. There shall be no disparaging remarks or discussion of these proceedings made in the presence of the child by either party, nor shall they permit any 3rd parties including step-parents, siblings or significant others of the parents to do so.
b. Each party shall be responsible for maintaining Peter's regularly scheduled activities during his or her respective access times.
c. Mother shall provide transportation to effectuate her access with Peter. Exchanges shall be "curb to curb" at Father's residence unless otherwise agreed upon by the parties. "Curb to curb" is herein defined as an exchange in which the parties have no contact — Mother shall remain in her vehicle and Father shall remain inside the residence.
d. Both Mother and Father shall give Peter privacy to have reasonable electronic access with the other parent (by phone, text, skype or other electronic access) when he is in his or her care. Each party is entitled to reasonable electronic access when he is in the care of the other parent.
e. Holiday access supersedes regular and vacation access.
(7) Mother shall have regular access as follows:
a. Every Wednesday from after school or activities (or 5:00pm if no school or activities) return to Father at 9:00p.m.
b. Every other Friday to Sunday from after school or activities (or 5:00pm if no school or activities) to Sunday return to Father at 5:00p.m. * Unless otherwise stated as holiday access, if Peter has no school on a Monday immediately following Mother's weekend , access shall be extended to return to Father's residence by 5:00p.m. Monday.
c. Any additional access as agreed and arranged.
(8) Both parties shall have special uninterrupted summer access with Peter as follows:
a. Each party shall be entitled to two (2) weeks uninterrupted access each Summer during Peter's recess from school; herein defined as the time running from the day after the last day of school to the day before school resumes session.
b. The vacation weeks shall run non-consecutive. A week is herein defined as seven (7) consecutive days and no more.
c. Vacation access supersedes regular access, but is subordinate to holiday access and cannot be "added on" to extend a week to ten (10) days without the express consent of the other parent.
d. In odd years (2017, 2019, 2021 etc.), Mother shall choose her two (2) weeks first and advise Father in writing no later than June 1st . Thereafter, Father shall choose his weeks and advise Mother in writing no later than June 15th .
e. In even years (2018, 2020, 2022 etc.), Father shall choose his two (2) weeks first and advise Mother in writing no later than June 1st . Thereafter, Mother shall choose her weeks and advise Father in writing no later than June 15th .
f. Any additional summer access as can be agreed and arranged.
(9) The parties shall share holidays and days of special meaning as follows:
a. Easter Holiday — In 2017 and all odd years , Mother shall have the Easter holiday from Easter Saturday at 5:00 p.m. to Easter Sunday at 5:00 p.m. In 2018 and all even years, Father shall have the Easter holiday from Easter Saturday at 5:00 p.m. to Easter Sunday at 5:00 p.m.
b. Mother's Day — Regardless of whose "regular weekend", Mother shall always have Mother's Day Weekend from "Mother's Day Friday" from after school or activities (or 5:00pm if no school or activities) to Sunday return to Father at 5:00p.m.
c. Father's Day - Regardless of whose "regular weekend", Father shall always have Father's Day from "Father's Day Friday" from after school or activities (or 5:00pm if no school or activities) to Sunday return to Father at 5:00p.m.
d. Memorial Day Weekend — Regardless of whose "regular weekend", Mother shall always have Memorial Day Weekend from after school or activities (or 5:00pm if no school or activities) to Monday return to Father at 5:00p.m.
e. Fourth of July — In 2018 and all even years , Father shall have the holiday from 12:00p.m. on July 4th to 12:00p.m., July 5th. In 2019 and all odd years , Mother shall have the holiday from 12:00p.m. on July 4th to 12:00p.m., July 5th.
f. Labor Day Weekend - Regardless of whose "regular weekend", Father shall always have Labor Day Weekend from after school or activities (or 5:00pm if no school or activities) to Monday at 5:00p.m.
g. Thanksgiving — In 2017 and all odd years , Father shall have the Thanksgiving holiday from Wednesday 5:00 p.m. to Friday 5:00 p.m. In 2018 and all even years, Mother shall have the Thanksgiving holiday from Wednesday 5:00 p.m. to Friday 5:00 p.m.
h. Christmas — The parties shall equally share the Christmas holiday and recess from school, each party having half the days consecutively. Parties shall alternate the "half" every year as follows:
i. In 2017 and all odd years thereafter , Father shall have the first half of the break commencing the last day of school at school dismissal through and including Christmas Eve to Christmas Day to 12/26 at 5:00p.m. , and Mother shall have the second half of the break commencing 12/26 at 5:00p.m. through and including New Year's Eve and New Year's Day at 5:00p.m., at which point the parties shall return to their regular access schedule.
ii. In 2018 and all even years , Mother shall have the first half of the break commencing the last day of school at school dismissal through and including Christmas Eve to Christmas Day to 12/26 at 5:00p.m. , and Father shall have the second half of the break commencing 12/26 at 5:00p.m. through and including New Year's Eve and New Year's Day at 5:00p.m., at which point the parties shall return to their regular access schedule.
i. Any such additional and further and additional holiday or day of special meaning access as can be agreed and arranged between the parties.
This constitutes the Decision and Order of the Court. Submission of an Order by the Parties is not necessary.