Opinion
No. XXXXX.
2012-01-25
In the Matter of L. v. K.
Petitioner, pro se. Rebecca Crance, Esq, for respondent.
Petitioner, pro se. Rebecca Crance, Esq, for respondent.
William Koslosky, Esq, Attorney for the Children.
MICHAEL L. HANUSZCZAK, J.
Due to the lengthy history of this proceeding, the Court deems it appropriate to add background information to the procedural posture section of the Decision. The twelve petitions, cross-petitions, and motions resolved by the Court's decision were heard in Onondaga County Family Court due to the recusal in Oneida, Lewis, and Herkimer counties of eight Family Court judges and judicial hearing officers.
In reaching its Decision, this Court has considered all relevant, credible, and legally admissible testimony and evidence. The portions of its Decision which modify prior court orders are based upon the foregoing criteria. The Court did not take into consideration comments and statements made during the course of the trial by the petitioner regarding prior factual and procedural decisions made by judges or judicial hearing officers.
PROCEDURAL POSTURE
L. (hereinafter “father”) and K. (hereinafter “mother”) were married in [redacted], New York on [redacted], and are the parents of two children, [redacted. The parties divorced, and their Final Judgment of Divorce was signed on September 17, 2007 by the Hon. John W. Grow and filed in the Office of the Oneida County Clerk on September 27, 2007.
The divorce decree incorporated but did not merge the parties' Stipulation of Settlement, executed on July 14, 2004, and their Modification Agreement, executed on November 17, 2005. The parties were awarded joint legal custody of the children with physical custody to the mother. Under the terms of the agreements, the father was awarded detailed parental access, including mid-week, every third weekend, and holiday/vacation periods of time.
With respect to child support, the divorce decree stated that the parties agreed that the father would pay the sum of $1,100.00 per month directly to the mother on the first of each month as temporary child support subject to an inquest on the issue of child support. (Note: the Court found that the mother, who was the defendant, defaulted in the matrimonial proceeding.) After conducting a hearing, the Hon. John W. Grow issued an order on October 7, 2008 declining to modify the $1,100.00 per month support obligation which had been agreed to by the parents.
Subsequent to the entry of the divorce decree and support hearing, there were a number of custody, family offense, and support actions filed in the Oneida County Supreme and Family Courts. In 2009, the existing proceedings were transferred to Onondaga County by the Hon. James C. Tormey, Administrative Judge of the Fifth Judicial District.
In the custody-related proceedings, after conducting a trial, the Hon. Martha Walsh Hood, Onondaga County Supreme Court, issued an Order on May 7, 2010 which incorporated the findings and conclusions of the Decision After Trial, dated January 22, 2010. The Order awarded sole legal custody of the children to the mother and awarded parental time to the father, including every Thursday from after school until 7:00 p.m; the first and third Saturdays–Sundays of each month from 9:00 a.m. until 5:00 p.m.; and alternating holidays from 9:00 a.m. until 5:00 p.m. The exchange of the children was directed to occur at the mother's residence, either in the driveway or at curbside. The parties were further directed to attend the Parent Education Program within sixty days of the Decision. All communication regarding the children was to take place through a willing third party over the age of eighteen or, in the case of emergency, by e-mail or voice mail.
Subsequent to this Order, the parties filed a number of petitions and motions. On September 3, 2010, the Hon. Michelle Pirro Bailey, Onondaga County Family Court, issued an order dismissing the father's modification petition (Docket No.: V-[redacted]/10A), filed on August 31, 2010, after consideration of the Report and Recommendation, dated September 3, 2010, by the Hon. Brian M. Miga, Judicial Hearing Officer, Oneida County Family Court.
On November 1, 2010 the father filed a modification/violation petition. (Docket No.: V-[redacted]/10B).
On November 3, 2010, the mother filed a petition alleging that the father violated the Order, dated May 7, 2010, and Final Judgment of Divorce, dated September 17, 2007. (Docket No.: V-[redacted]/10C)
On December 10, 2010, the father filed a violation petition. (Docket No.: V-[redacted]/10D)On February 14, 2011, the mother filed a Supplemental Affidavit in connection with her violation petition alleging that the father committed additional violations of the orders and asking for modification of the terms of the custody order and additional relief. This document was labeled by the Court as a modification/violation petition under Docket No.: V-[redacted]/11E.
On March 9, 2011, the father filed a violation petition alleging that the mother violated the terms of the Order, dated May 7, 2010, the Final Judgment of Divorce, dated September 17, 2007, and the Order to Show Cause, dated February 16, 2011. (Docket No.: V-[redacted]/11F)
On March 15, 2011, Judge Pirro Bailey issued a Decision and Order which dismissed the father's modification/violation petition filed on November 1, 2010 (Docket No.: V-[redacted]/10B) and also dismissed the father's violation petition filed on December 10, 2010 (Docket No.: V-[redacted]/10D).
In her March 15, 2011 Order, Judge Pirro Bailey directed the father to comply with discovery demands within thirty days of the order or be precluded from offering evidence of such items at trial. Judge Pirro Bailey denied all of the relief requested by the father in his omnibus motion, dated March 13, 2011, with the exception of his application to hold the mother in contempt for violation of the Court's February 16, 2011 order. Judge Pirro Bailey directed that a hearing be scheduled to determine that issue.
On April 5, 2011, the mother filed a Supplemental Affidavit in connection with her violation petition alleging that the father had committed additional violations of the orders and asking for relief. This document was labeled by the Court as a violation petition under Docket No.: V-[redacted]/11G.
On April 27, 2011, the father filed a petition seeking modification of the custody orders. (Docket No.: [redacted]/11H)
On June 13, 2011, the father filed a petition seeking modification of the custody orders. Docket No. V-[redacted]/11I)
On June 22, 2011, Judge Pirro Bailey issued an Order directing the parents to schedule themselves and the children for a forensic psychological evaluation within thirty days of the date of the Order. On June 24, 2011, Judge Pirro Bailey's request for the transfer of the proceedings was approved by the Hon. James Tormey.
On July 29, 2011, the father filed a petition seeking modification and alleging violations of the orders and the recusal of the assigned judge. (Docket No.: V-[redacted]/11J)
On August 17, 2011, the Hon. Bryan Hedges, Onondaga County Family Court granted the father's motion for recusal. On August 23, 2011, the custody proceedings were transferred to this Court by Administrative Order.
On November 29, 2011, the father filed a petition seeking modification/violation of the orders. (Docket No.: V-[redacted]/11K) Since the father also sought to suspend/vacate the support order, the Court labeled that portion of his petition a modification petition under Docket No.: F-[redacted]/ 11D.
In the support-related proceedings, after conducting a hearing, Support Magistrate Kathryn Z. Davies, Onondaga County Family Court, issued an Order on February 23, 2011 denying the father's petition for a downward modification of the support order and continuing his $1,100.00 per month support obligation (Docket No.: F-[redacted]/10B). On March 11, 2011, Support Magistrate Davies transferred the father's request for the suspension of his child support obligation to a Family Court judge for a hearing on his allegations of interference with parental access. (Docket No.: F-[redacted]/11C) On September 16, 2011, the father's support matter was transferred to this Court by Administrative Order.
For the convenience of the parties and the attorneys, the Court has attached Appendix A to this Decision containing a summary of the pending petitions with the relief requested.
On September 20, 2011, the parties appeared before this Court in Onondaga County Family Court. The mother was present together with her attorney Rebecca Crance, Esq. The Court advised the father that he had the right to retain an attorney, and the father, who is an attorney currently under a suspension order, elected to represent himself. The Attorney for the Children William Koslosky, Esq. was also present. For the purpose of trial, the Court consolidated the custody and support petitions and motions. A Lincoln hearing was conducted with the children in the presence of the Attorney for the Children on December 12, 2011. Testimony was taken on six days, the 7th, 8th, 9th, 13th, 16th, and 19th of December, 2011. At the conclusion of testimony the Court stated that the record would be kept open until December 30, 2011 for the purpose of the submission of responding affidavits to the Attorney for the Children's motion to dismiss.
STANDARD OF LAW—CUSTODY VIOLATION
The petitioner must show that the respondent did not comply with a valid court order. The evidentiary standard is a preponderance of the evidence. Brown v. Marr, 23 AD3d 1029 (4th Dept.2005)
STANDARD OF LAW—CUSTODY MODIFICATION
It is well established that the 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 interests of a child. Francisco v. Francisco, 298 A.D.2d 925 (4th Dept.2002). In a custody dispute, the standard is the best interests of the child based upon the totality of the circumstances. Friederwitzer v. Friederwitzer, 55 N.Y.2d 89 (1982). The factors which were analyzed by the Court included: prior judicial determinations; parental fitness (physical, psychological, financial); domestic violence; parent/child relationship; provision for child's development; defiance of legal process; and the wishes of the child. Other factors considered by the Court included: evaluation of parties' demeanor and credibility and the recommendations of the Attorney for the Children. The evidentiary standard is a preponderance of the evidence. Francisco v. Francisco, 298 A.D.2d 925 (4th Dept.2002). It was not the intention of this Court to retry matters that have already been decided in prior proceedings as this was not a retrial based upon an appellate decision. However, as the Court sought to have the fullest relevant information available about facts that affect the best interests of the children, it afforded the parties some latitude to provide testimony and proofs of relevant matters that predated the petitions. Robb v. McIntosh, 99 A.D.2d 571 (3rd Dept.1984).
STANDARD OF LAW—CHILD SUPPORT SUSPENSION/VACATION
It is a matter of fundamental policy that the parents of an unemancipated child are responsible for the support of that child until the child turns 21 years of age. (Fam. Ct. Act § 413(1)(a).) However, where it can be established by the noncustodial parent that the custodial parent has unjustifiably frustrated the noncustodial parent's right of reasonable access and that the child is not in danger of becoming a public charge, child support payments may be suspended or vacated. Usack v. Usack 17 AD3d 736 (3rd Dept.2005).
RECORDS REVIEW
The Court searched the statewide registry of orders of protection, the sex offender registry, Family Court child protective decisions, and Family Court warrants of arrest for each of the parents; and found that there were no current results and no impact on its custody decision
FINDINGS OF FACT and CONCLUSIONS OF LAW
I. Custody Violation Petitions
A. Mother's Petitions
The mother alleged that the father has a history of violating the parental access provisions of the custody order. The Court takes judicial notice of the May 7, 2010 Order, which granted the father access from after school to 7:00 p.m. on Thursday; from 9:00 a.m. to 5:00 p.m. on Saturday and Sunday of the first and third weekends of each month; on Father's Day from 9:00 a.m. to 5:00 p.m., and on alternate holidays with pickup and drop off to occur at the mother's residence.
The mother testified very credibly that the father did not exercise his parenting time on any Saturday from April through June, 2011 (December 7, 2011 Transcript at 84) or see the children at all during the period of May 8, 2011 through June 19, 2011 (December 7, 2011 Transcript at 89). She stated that he did not exercise parenting time on Thursday at least fifteen times from January 2010 to the present and did not notify her in advance that he would not appear. (December 7, 2011 Transcript at 80.) She stated that the father did not exercise all of his parenting time during his weekends in August, 2011. (December 13, 2011 Transcript at 32.) She testified that there have been multiple times when the father did not appear on Saturday and Sunday and did not previously notify her and that she and the girls would wait thirty minutes on Saturday and fifteen minutes on Sunday. (December 13, 2011 Transcript at 10, 11.) She testified that the father did not see the girls on Saturday, February 19, 2011; Sunday, February 20, 2011, or the following Thursday, February 24, 2011. (December 8, 2011 Transcript at 151.) With respect to the February dates, the mother testified that she took the girls to Ballston Spa on February 18, 2011so that one of the children could compete in a swim meet at 7:00 a.m. on the morning of the 19th, but that she was unable to return home with the girls in time for the father's pick up time at 9:00 a.m. because the New York State Thruway was unexpectedly closed. She stated that she texted the father when she and the girls arrived home later that day and that she offered the father make up time with the girls but he did not answer her. (December 8, 2011 Transcript at 140,146,149,150,151.)
The mother credibly testified that since the issuance of the 2010 decision, the father has returned the children on time only five times on Thursday and that he returned the children late on other occasions without notifying her. (December 7, 2011 Transcript at 74, 81.) She testified that on Saturdays the father usually returns the girls from an hour to an hour and one-half late and that the girls appear upset when they arrive home. (December 7, 2011 Transcript at 86, 87.) The mother testified that she usually texts the father when the girls are about one-half hour late and again when they are one and one-half hours late, but that the father does not respond or sends a response that is demeaning to her or threatening court action. (December 7, 2011 Transcript at 86, 87.)
During her testimony, the mother stated that she and the father reside about five miles away from each other in [redacted] and that it is approximately an eight to ten minute drive between their homes. (December 13, 2011 Transcript at 9.)
The father did not deny the mother's violation allegations. In his defense, he testified that he has a problem with promptness and timeliness under the Order because his driver's license is suspended, and he must use a substitute driver such as his girlfriend [redacted] or his friend [redacted]. (December 16, 2011 at 59.) The father also testified that he chooses to be late because this is his way of making up the time that is lost when he is late. (December 16, 2011 Transcript at 187.) He stated there are times when he is late on Saturday evenings because he and the children attend Mass. (December 16, 2011 Transcript at 69.) The father stated that he and the children do not always attend church on Sunday mornings because when he picks the children up in the morning they are not always dressed in clothes that are appropriate for church. (December 16, 2011 Transcript at 69.) He acknowledged that he missed a weekend with the girls in August, 2011 but stated that he was on vacation in Lake George and that because of the distance and expense it would not have been reasonable for him to drive back and forth to the mother's residence on Saturday and Sunday. (December 13, 2011 Transcript at 117.) He also stated that the current order limits him to Oneida, Herkimer, and Onondaga counties when he has the girls and that if he wants to travel to Syracuse he must drive through Madison County as it is not possible to travel to Syracuse in Onondaga County without violating the Order. (December 16, 2011 Transcript at 66.)
On cross-examination, the father stated that he did not see the girls from January to May, 2010 because there was an Order of Protection in place directing him to stay away from the mother. (December 16, 2011 Transcript at 156.) He admitted that the Order did not prevent him from seeing the girls, but stated that he was at risk of false accusations by the mother if he picked up the girls while the Order was in effect. (December 16, 2011 Transcript at 160–163.) With respect to the February swim meet incident, the father stated that he did not choose to pick up the girls on February 20, 2011 or to notify them that he was not coming since he did not receive his parenting time on the 19th. (December 16, 2011 Transcript at 166–167, 169.) The father testified that he could not remember if the mother offered him make-up time for the 19th, but stated it would not have meant anything to him because he wanted to take the girls on a ski trip and he had “lost the weekend.” (December 16, 2011 Transcript at 167, 169.) With respect to questions involving pick up times, the father stated, “I don't violate anything. I just come. She knows I'm coming.” (December 16, 2011 Transcript at 186.)
The Court finds that the father violated the May 7, 2010 custody order by not exercising his parenting time with the children and not notifying the mother of his decision on the following dates: February 20 and 24, 2011 and from May 8 to June 19, 2011. The Court further finds that, as a course of conduct, the father did not pick up and drop off the children at the appointed times and that he did not notify the mother of his intentions. Based upon the father's own testimony that he intentionally disregarded the terms of the Order, the Court finds these violations are willful.
B. Father's Petitions
The father alleged that the mother violated the May 7, 2010 Order when the girls were not made available to him on Saturday, February 19, 2011. (December 13, 2011 Transcript at 116; December 16, 2011 Transcript at 12.) He further alleged that the mother contacted him electronically when such contact was forbidden by the Order unless there was an emergency. (December 13, 2011 Transcript at 84.) He alleged that the mother violated the Order when she approached him in the summer at Lake George and asked him to watch the children while she went to retrieve items from her car. (December 8, 2011 Transcript at 254–256, 258, 262.)
The father also alleged that the mother's violations are not limited to specific incidents but rather she is actively seeking to remove him from the children's lives. (December 13, 2011 Transcript at 111.) He testified that he and the mother had a conversation in May, 2010 concerning the children but that their discussion deteriorated into an argument because she would not accept [redacted] as a third party intermediary mentioned in the custody order. (December 13, 2011 Transcript at 77–78.) He further testified that the mother threatened “to do whatever it takes” to prevent him from getting custody of the children. (December 13, 2011 Transcript at 81.)
The father testified that the mother would not accommodate his requests for additional parenting time on Thanksgiving in 2010. (December 13, 2011 Transcript at 69.) He stated that he and the girls had a nice time on the previous weekend but that the mother frustrated his efforts to see the children on Thanksgiving. (December 13, 2011 Transcript at 70.) He also stated that he has been “pushed out of the equation” when it comes to making decisions about the girls. (December 13, 2011 Transcript at 90.) The father voiced his frustration with his current parenting situation, stating that his time with the children is infringed upon when he is told to take the children to activities that are chosen by the mother. (December 13, 2011 Transcript at 87.) The father alleged that the mother's actions are a “culmination of efforts” designed to harm his rights as a father. (December 13, 2011 Transcript at 113, 118.) The father also testified that his time with the children is “everything” to him. (December 13, 2011 Transcript at 85.)
The father stated that his solution to the problem is to grant him sole custody for one year and then to grant equal time for both parents in alternate weeks of custody. (December 13, 2011 Transcript at 90.) He stated that this type of a custodial arrangement would ensure that he would be in position to work with the mother and each parent could “take care of the children in our own respective paternal and maternal homes.” (December 16, 2011 Transcript at 80.)
In her defense, the mother acknowledged that the girls were not available for pickup until the afternoon of Saturday, February 19, 2011. (For the following testimony, see December 8, 2011 Transcript at 140–151.) She stated that she contacted the father via certified mail in October, 2010 to inform him that their daughter was scheduled to participate in a swim meet in the Albany area on Saturday, February 19, 2011 and asked if he would switch his parenting time to the weekend of February 11. She stated that she also contacted him via an e-mail on February 1, 2011 and also sent a request by certified mail. She stated that the father did not respond to her. The mother testified that she traveled to a motel at Ballston Spa on Friday, February 18 so that the child could participate in events at a swim meet at a school in [redacted]. She stated that she received a text message from the father while she was en route to the motel and that the message stated the child would not be allowed to go to the swim meet and that he would take action on the matter. The mother testified that she then planned to allow their daughter to participate in a 7:00 a.m. swim event and then travel back to her home so as to be on time for the 9:00 a.m. pick up by the father. She further testified that the New York State Thruway was closed due to poor weather, and she texted the father that she could not return until later.
On crossexamination, the mother denied that she violated the Court Order when she e-mailed or texted the father in non-emergency situations. (December 8, 2011 Transcript at 269, 270.) She stated that the parties did not agree on a “willing third party” to facilitate communication and that she disagreed to the use of [redacted] because [redacted] had spoken negatively of her, filed a complaint with the New York State Department of Education about her, and served court papers upon her. (December 13, 2011 Transcript at 53.) The mother stated that her request to the father in the summer of 2011 at Lake George was not a violation of the Court order because she did not have a conversation with the father; she only asked him to watch the girls for a few minutes. The mother stated that the meeting with the father was unexpected and that she only intended that he have a chance to visit with the girls for a few minutes. (December 8, 2011 Transcript at 262–263, 268.)
C. Findings and Conclusions on Violations
Prior to its analysis of the violation allegations, the Court wishes to make it clear that, as the Family Court is a court of limited jurisdiction, it does not have subject matter jurisdiction to rule on the fathers' rights and gender inequality statements and arguments espoused by the father during the trial. Rather, this Court must confine itself to matters that are within its authority by virtue of statute and decisional law. The Court notes that, despite the criticism of the father regarding the courts, current provisions of family law in New York authorize a state court to award sole custody of a minor child to a male or female parent or to make an award of joint custody with shared parenting time if it is in the best interests of the child to do so. When parents seek the aid of the Court to resolve their custodial disputes, the Court has the necessary authority to hear and determine the best interests of the children. Eschbach v. Eschbach, 56 N.Y.2d 167 (1982).
The Court finds that the testimony of the father with respect to the violation allegations was inconsistent and also demonstrated his unreasonable determination to blame the mother for the problems in the relationship between his children and himself. The Court finds that the mother did violate the May 7, 2010 Order by not having the children available for pick up at 9:00 a.m. on Saturday, February 19, 2011, but that such violation was not willful. Indeed, the Court finds that the mother acted responsibly in contacting the father months before the swim meet; the father is faulted for not responding in a timely and positive manner to her request for an exchange of parenting weekends. That, coupled with the father's unexplained decision to not see the children on Sunday and the following Thursday is an example of behavior by the father that is not consistent with his statements throughout the trial that his time with the children means everything to him.
Similarly, the mother did not violate the Order by communicating with the father as it was not possible to follow the Order as the parents did not agree on the identity of a “willing third party.” Nor is the mother's rejection of [redacted] as the third party violative as [redacted] has chosen to inject herself in a highly partisan fashion in the dispute between the parents. Finally, the Lake George incident is an example of an agreement by the parents for the father to have some additional time with the girls. Although the May 7, 2010 Order does not specifically provide for such additional time, Courts do not traditionally view such parental agreements as violations. In fact, it is illogical for the father to accuse the mother of violating the Order when he agreed to watch the girls. It is the finding of the Court that the father's allegations concerning the mother's conduct are indicative of the ongoing acrimony by the father against the mother. The father's testimony was generally credible, but the inferences he sought the Court to draw were very incongruous, inconsistent, and illogical. The Court also finds that the father demonstrates little, if any awareness, of the impact of his disregard of the parenting schedule on the mother and the children. The Court further finds that many the restrictions contained in the current custodial arrangement are a response to the father's own behavior.
The Court takes note that at the conclusion of the mother's case, the father orally moved to dismiss her actions. (December 13, 2011 Transcript at 64.) The Court denies this request with prejudice. On December 19, 2011, the Attorney for the Children filed a motion to dismiss the father's petitions. Based upon the findings articulated in the previous paragraphs, the Court grants the motion of the Attorney for the Children and dismisses the father's violation petitions and motions. The violation portions of the following petitions and motions are dismissed with prejudice: V-[redacted]/11F, H, J and the violation/contempt portion of V-[redacted]/10B, D.
II. Support Petitions
The father has requested that his child support obligation be suspended or vacated based upon the mother's interference with his parental access and his relationship with the children. Based upon the findings contained in the Violations section of this Decision, the Court concludes that there is no competent evidence that the mother has interfered with the father's access or relationship with the children and denies his petition. The Court notes that the Attorney for the Children, who was assigned by this Court on October 19, 2011 to represent the children in this portion of the support proceeding, has moved the Court to dismiss the fathers' support petitions. The Court also notes that the attorney for the mother supports this motion. Accordingly, the Court grants the motion of the Attorney for the Children and dismisses the father's support petitions with prejudice. The following petitions are dismissed with prejudice: F-[redacted]/11C, D.
III. Modification Petitions
A. Mother's Petition: Change of Circumstance
The mother alleged that there has been the following change of circumstances since the entry of the May 7, 2010 custody order: the father has repeatedly violated the terms of the Order.
Decisional law holds that the continued deterioration of the relationship between the parents may provide a sufficient circumstance to warrant modification of the custody order. Carella v. Ferrara, 9 AD3d 605 (3rd Dept.2004). In the instant case, the Court has found that the father committed multiple willful violations of the May 7, 2010 custody order. In addition, the Court has found that the parties are unable to comply with the communication portion of the Order as they have not agreed upon a third party intermediary. Based upon these changes in circumstances, the Court will grant the mother's petition for modification and proceed to a best interests of the children analysis to determine the appropriate relief. Coryea v. Allen, 262 A.D.2d 1023 (4th Dept.1999).
B. Father's Petitions: Change of Circumstance
The father alleged that there has been the following change of circumstances since the entry of the May 7, 2010 custody order: the mother has violated the custody order.
The Court has found that the mother did not willfully violate the May 7, 2010 custody order and it deems her nonwillful violation an insufficient basis upon which to find that there has been a change of circumstances. In addition, as stated elsewhere in this Decision, this Court does not have the authority to rule on the father's arguments regarding what he terms as the “natural rights” of a father as well as a wide variety of allegations regarding the legal system of this State.
Nevertheless, as the Court has found that the communication section of the current custody order is unworkable, the Court will grant the father's application to modify the custody order and determine what relief is appropriate. Accordingly, the motion of the Attorney for the Children to dismiss the father's modification petitions is denied. C. Best Interests of the Children Analysis 1. Prior judicial determinations
The Court takes judicial notice of the Order signed on May 7, 2010 in which sole legal custody was granted to the mother after a trial and which also granted specific parenting times to the father. The parties acknowledge that they were apprised of the Decision After Trial dated January 22, 2010. The Order incorporated the findings and conclusions of the Decision After Trial and was signed on May 7, 2010.
2. Parental fitness (physical, financial, psychological)
The Court makes no finding as to the “physical” factor as there were no allegations that either parent has a physical disability that would interfere with fulfilling the role of a parent.
With respect to “financial” fitness, the mother testified that she is employed full time as a seventh grade [redacted] teacher in the [redacted] School System. (December 7, 2011 Transcript at 73.) The father testified that his license to practice law is under suspension and that he is trying to build a business. (December 16, 2011 Transcript at 177; December 19, 2011 Transcript at 27.) He stated that his girlfriend pays for his bills. (December 16, 2011 Transcript at 177.) Accordingly, the Court finds that the mother is financially fit as a custodial parent but that the father is currently without a reliable means of support for the purposes of the “financial” factor.
With respect to “psychological” fitness, the mother made a series of allegations about the father. She stated that his ability to control his temper has worsened and that his writings to the court are bizarre. (December 8, 2011 Transcript at 186.) She stated he has a pattern of making statements and threats that are not normal, for example, that the court has “seized” his children (December 7, 2011 Transcript at 109) and that he would not return the children (December 7, 2011 Transcript at 115). She testified that on April 3, 2011 she was alarmed after receiving a text message from the father stating that he was in Rio with the children, but that almost immediately the vehicle containing him and the children appeared in her driveway. (December 7, 2011 Transcript at 117–119.) In her testimony, [redacted] stated that during the ten-month period when he did not see the girls, the father spoke to her about moving to an unspecified country. (December 13, 2011 Transcript at 130–131.)
The mother testified that she has concerns that the father abuses alcohol in the presence of the children and that this will impair his ability to supervise the children. (December 13, 2011 Transcript at 22–23.) She stated that on Father's Day in 2011, the father sponsored a father's rights party at which the children were present and at which alcohol was served. (December 13, 2011 Transcript at 43.) She testified that the father was too drunk to drive the children home and that [redacted] brought the children home. (December 13, 2011 Transcript at 23.) In answer to cross-examination by the father the mother stated that “there an another occasion too that someone also had to drive you both home because you were both drunk and the police spoke to you.” (December 13, 2011 Transcript at 43.)
The mother also testified that the father was responsible for an incident on Christmas Day, 2009 when a man dressed as Santa Claus appeared at her home with presents for the children and with court papers for her which were contained in a box wrapped as a present. (December 9, 2011 Transcript at 402–403.)
The mother testified that she believes the father has a bias against well-educated women based upon his written and spoken communications and that this bias may damage the girls as they mature. (December 8, 2011 Transcript at 296–298.)
The mother testified very credibly that she believes that the father also has a bias against medical professionals including doctors and counselors. The mother stated that the father told her that he will never engage in counseling and if supervised visitation is ordered, he will remove himself from the girls' lives. (December 13, 2011 Transcript at 47.) She further testified that their daughter should wear eyeglasses all of the time but that the child does not do so when she is with the father because she is afraid. (December 8, 2011 Transcript at 131–132.) She testified that in the spring of 2011, their younger daughter received several burns on her hand while in the father's care. (December 7, 2011 Transcript at 110.) The mother stated that it did not appear that the burns had been treated so she took the child to Urgent Care where second degree burns were diagnosed and the burns were treated and bandaged. (December 7, 2011 Transcript at 111–112.) The mother stated that the father removed the bandage on their daughter's burned hand against doctor's instructions although the bandage was to stay in place for seven days. (December 7, 2011 Transcript at 113–114.) The mother testified that in the summer of 2010, their daughter woke with a swollen eye and the father refused to let her take the child to a 10:00 a.m. appointment with her pediatrician because it was “too sunny a day to spend at the doctor's office.” (December 8, 2011 Transcript at 128.) The mother stated that the father's girlfriend had to convince the father to allow the mother to take the daughter to her appointment. (December 8, 2011 Transcript at 129.)
The mother also testified that on a Thursday in the fall of 2010, the father informed her that he left the girls alone at an establishment called the Golf Shack, which is located at a mall. (For the following testimony, see December 8, 2011 Transcript at 182–185.) She stated their older daughter was invited to a birthday party at the Golf Shack, that the party was to begin at 7:00 p.m., and that she texted the father stating that if he would drop off the older child at the party and bring home the younger child, she [the mother] would pick up the older child after the party. She stated that when the father did not return the younger child, she texted him and he responded that he had left the girls at the mall. She stated that when she arrived at the mall, the father and his girlfriend were there, laughing at her.
In his testimony, the father admitted that he texted the mother that he had taken the children to Rio, but that it was an obvious “joke” and that the mother blew the statement out of proportion. (December 16, 2011 Transcript at 77.) He stated that his text messages to the mother are in response to her texts to him asking the whereabouts of the girls. (December 19, 2011 Transcript at 86.) The Court notes that in his Oral Summation after the completion of the trial, the father stated that absent a switch in custody or parenting time, he will be forced to leave the area. (December 19, 2011 Transcript at 86.)
With respect to the mother's allegations regarding alcohol abuse, [redacted] testified that she had seen the father drunk “once in a while” but never around the girls. (December 16, 2011 Transcript at 109.) The witness also stated that the father was acting responsibly in designating another person to drive the children home after the father's rights party in 2011 because he had a couple of drinks. (December 16, 2011 Transcript at 109.)
The father testified that he did not take advantage of parenting time with his children during Christmas, 2009 because the Court only granted him “a few hours at a mall” and that this was inappropriate and would leave the children with the impression that he had done something wrong. (December 16, 2011 Transcript at 24.) With respect to the Santa Claus incident in 2009, the father stated that he was under a deadline to serve legal documents upon the mother and that sending the documents to the mother in a present delivered by a man dressed as Santa Claus was in “perfect taste” and avoided problems with process servers. (December 16, 2011 Transcript at 26; December 19, 2011 Transcript at 16–17.) He also admitted that in 2009 he placed an advertisement in the newspaper wishing his girls a Merry Christmas rather than sending it to their home. (December 16, 2011 Transcript at 25.)
The father testified that he is “not anti-woman” but rather “pro-father.” (December 13, 2011 Transcript at 108.) He stated that he has a record as an attorney of defending the civil rights of women (December 13, 2011 Transcript at 108) and that he is not against girls participating in sports. (December 13, 2011 Transcript at 75.) He admitted that he “has problems” with certain women such as the mother, her attorney, and certain judges. (December 13, 2011 Transcript at 106,107.)
With respect to his attitude toward the medical profession, the father testified that he has a background in human physiology, that he has not been ill for over thirty years, and that he is aggressively trying to get the children to follow the rules of nature. (December 13, 2011 Transcript at 75.) He stated that when he was in his twenties an eye doctor told him to get glasses but his eyes are fine even though he did not follow the recommendation regarding his eyes as they would become dependent on the glasses. (December 13, 2011 Transcript at 76.) He stated that the body can become too dependent on things like medication and eyeglasses. (December 13, 2011 Transcript at 76.)
With respect to the burn incident, [redacted] testified that she is a hair stylist at a salon in [redacted] and that girls were present with her in the salon at a time when the father was absent while putting something in the mailbox. (December 16, 2011 Transcript at 83, 110.) She testified very credibly that the girls were “fooling around,” that the older child pushed the younger child, and that the younger child burned her hand on a hot flatiron. (December 16, 2011 Transcript at 84–85.) The witness stated that the salon owner, who is a registered nurse, put ointment and a dressing on the burn. (December 13, 2011 Transcript at 84–87.)
With respect to the Golf Shack incident, the father admitted that he texted the mother that he was leaving the mall even though he did not actually leave. (December 16, 2011 Transcript at 65.) He stated that this was his way of “getting her to come and pick up the girls, given the limited period of time I have.” (December 16, 2011 Transcript at 65–66.)
The father made no allegations regarding the mother's emotional health but stated that she is lying about him and acting intentionally in a manner calculated to deprive him of his rights as a father. (December 19, 2011 Transcript at 70–71.) He also alleged that the mother did not notify him of an incident in December, 2011 when a fire erupted at the mother's home. (December 19, 2011 Transcript at 35–36.)
In response to the father's accusation, the mother testified extremely credibly that on December 17, 2011 some holiday decorations near her fireplace caught fire and that she extinguished the flames and called the fire department to check the home. (December 19, 2011 Transcript at 54.) The mother testified that no one was hurt, that she told the children to get out of the house when she saw the fire, and that the children were at a neighbor's home during the incident. (December 19, 2011 Transcript at 54.)
The Court takes judicial notice of a June 22, 2011 order directing the parties and the children to undergo a forensic psychological evaluation with the evaluation to be scheduled within thirty days of the date of the order. In their first appearance before this Court on September 20, 2011, the parties acknowledged that the evaluations had not taken place, and the parties and the Attorney for the Children stipulated that the children need not be evaluated. The mother stated that she had scheduled her first evaluation session to take place on October 14, 2011. The father stated categorically that he would not under undergo such an evaluation and that he could not afford the cost of the evaluation. Based upon its reading of the many petitions, motions, and other correspondence in this case, the Court did not believe that an evaluation of the mother was necessary. The Court was also concerned about the potential use of the mother's evaluation outside of the proceedings (see, for example, the father's threat in his April 24, 2011 petition to supplement [redacted]'s complaint concerning the mother with the state Department of Education and the allegation in [redacted]'s complaint that the mother was committing herself to an evaluation to prove her sanity, (petitioner's exhibit 17)). In addition, the Court did not want to inject another delay in a matter that had been trial ready for some time. Finally, the Court did not believe that there would be sufficient evidentiary worth in the father's evaluation if it were obtained under coercion; indeed, the Court is of the belief that the words and actions of the father during these proceedings have provided ample proof of his psychological state. DeWaal v. DeWaal, 249 A.D.2d 1003 (4th Dept.1998). Accordingly, on September 23, 2011 the Court vacated the forensic evaluation directive.
The Court finds that there is no evidence that the mother has psychological problems that impair her ability to parent the children. Indeed, throughout this proceeding the mother has, through her very credible testimony, impressed the Court with her emotional resiliency in dealing over the past few years with this very difficult custody dispute. The Court also finds that the mother did not act inappropriately when she did not notify the father of the fire at her residence in December, 2011 given the fact that there were no injuries and the fire was quickly extinguished.
With respect to the mother's allegations concerning the father's fitness as a parent, the Court finds that the father's words and actions indicate that he is often more concerned with his own public posture and needs rather than those of the children. The Court takes note of the number of times, by his own testimony, the father elected not to see his children. The swim meet incident in February, 2011 is particularly instructive in that it was the father's own choice not to see his children on that weekend or the following Thursday. The father's testimony that the mother ruined his plans for a skiing weekend with the children is severely undermined by his admission that he did not respond to the mother's repeated proposals for a switch in weekends or for makeup time. Such behavior belies the father's statement that time with the children is “everything” to him. In addition, the Court finds that it is inconsistent for the father to claim that “make up” or switches in parenting time is violative of the custody order when his testimony states that he has sought additional time with the children and that he drops off the children late because, in part, he is making up lost time.
The father is certainly free to spend time and effort in organizing a father's rights group or movement. Indeed, he was very eloquent and sincere in substantial portions of his testimony and legal arguments during the trial regarding his beliefs. However, the Court questions the motivation and judgment of a father who decides not to see his children on Christmas, 2009 but rather wishes his children Merry Christmas and publishes their picture in a newspaper advertisement that is also an advertisement for his father's rights group. The Court also finds that the father acted maliciously when he texted the mother that he had left the children alone at the mall. Unfortunately, the father fails to recognize these types of actions are incompatible with responsible parenting.
There are many indications that the father overreacts when events do not go his way and that, when criticized, he does not restrain himself from intemperate speech and written communications. This tendency was corroborated by [redacted], who was called as the father's witness, and who testified credibly that the father tends to react “loudly, violently,” and “maybe you [the father] let out a few coarse words.” (December 8, 2011 Transcript at 204.) This type of behavior has created havoc in the father's interactions with his family and interferes with his stated goal of securing equal parenting time with his children. Nevertheless, there is no credible evidence that the father has actually harmed anyone, absconded with the children, abused alcohol in the presence of the children, or left the children unattended. With respect to the gender bias allegation by the mother, the Court finds that there is insufficient proof that the father's stated dislike of certain women rises to the level of gender bias or that it has harmed the children although, again, the father at times does not appear to appreciate the damaging effects that his comments about his beliefs have on other individuals.The father's attitude toward the children's health is of some concern to the Court as his testimony did not reassure the Court that he would consult with medical professionals when needed or follow their instructions while the children are in his care. Accordingly, the Court will place decretal language in the custody order concerning this issue. With respect to the burn incident, the medical provider consulted by the mother treated the child with ointment and a bandage which was similar to the treatment given to the child when the event took place. Therefore, the Court finds no material or credible testimony in the record that the father acted inappropriately in not seeking additional medical care when his daughter burned her hand.
There was credible testimony that the father has had many worthwhile interactions with the children and the Court finds that he is sincere in his desire to have a greater influence in their lives. The Court also believes that the father's presence in the lives of his children is very important. However, the Court finds that the father's preoccupation with himself, his tendency to overreact, and his seeming unconcern of the feelings of others present a significant impairment to his fitness as a custodial parent.
3. Domestic violence
The mother alleged that the father threatened to kill her on April 3, 2011 and that he has threatened violence against the children and her in the past. She stated that on April 3, 2011when she confronted the father at her home after reading his text about Rio, he became enraged and said “I'll fuckin' kill you,” in front of the children, whereupon she fled into her home with the children. (December 7, 2011 Transcript at 117–120; December 13, 2011 Transcript at18–20.) She asked the Court to grant her a permanent restraining order. (December 8, 2011 Transcript at 188.)
[Redacted] testified that she worked in the father's law office from 2005 until November 4, 2009. (December 7, 2011 Transcript at 22.) She stated that on November 4, 2009, he became enraged with her and stated that the mother “deserved to die for ruining his life” and that “he might as well take everyone out with him.” (December 7, 2011 Transcript at 32–34.)
The father admitted that he texted the mother that he and the children were in Rio on April 3, 2011 but stated that she received the text when they pulled up to her residence to drop off the children and that she approached him and screamed that the police were on the way to arrest him. He admitted that he stepped next to her and “warned” her and that it was “possible” that he used “vulgar” language. He said that if he threatened her, it was in self-defense. (For this testimony, see December 16, 2011 at 75–78.)
With respect to the testimony of [redacted], the father stated that she was fired for cause and that she is lying about him because she is a disgruntled former employee. (December 7, 2011 Transcript at 42–43.)
The father made no recent domestic violence allegations against the mother but did refer to incidents that happened in past years. He also stated that he was withdrawing his request for an order of protection. (December 16, 2011 Transcript at 79.)
The Court finds no evidence of domestic violence based upon the testimony and proofs before it. There is little doubt that the history of the father's intemperate spoken and written words have caused concern to the mother and the children, but there is no evidence that his recent acts rise to the level of any of the enumerated offenses within the Family Court Act or that there is any evidence of physical violence. Swersky v. Swersky, 299 A.D.2d 540 (2nd Dept.2002). The mother's request for an order of protection is denied. Although the Court does not find that domestic violence plays a role in its overall decision in this case, it does recognize that the father's unwillingness to control his temper necessitates a custody order that minimizes any interactions between the parties. Again, the Court cautions the father that he must consider the effects of his spoken and written comments on others.
4. Parent/child relationship/Provision for child's development
The Court takes judicial notice of the May 7, 2010 order awarding the mother sole custody. The mother testified that, in addition day-to-day parenting, she and the girls participate in a number of activities such as skiing, sledding, attending community events such as local theater, playing games, eating dinner, and just spending time together. (December 8, 2011 Transcript at 134.)
The mother testified that she helps the girls with their homework and that she attends parent-teacher conferences at the school for each girl. (December 7, 2011 Transcript at 100–101, 104.) She testified that she is a member of the PTA and that she has been a room mother at school for the past two years. (December 8, 2011 Transcript at 137.) She stated that the older child is a good student getting grades of threes and fours on a one-to-four scale. (December 7, 2011 Transcript at 101.) She also stated that the younger child gets threes and fours on her report card, except in math, and has been tutored in math since last summer. (December 7, 2011 Transcript at 103–104.)
The mother testified that she permits each of the girls to participate in two activities per season.(December 9, 2011 Transcript at 386–387.) She stated that the girls enjoy Girl Scouts, swimming and other sports such as soccer, but that their father is not consistent in taking them to practices and games, causing them to withdraw from the activity or to be absent from certain athletic practices and games. (December 7, 2011 Transcript at 96–99; December 8, 2011 Transcript at 138.)
The mother testified that when the father has not shown up or has arrived late during the time frame from January 2010 to present, she observed the girls acting in a nervous manner, questioning whether their father would show up, and then their attitude would change to being irritated. (December 7, 2011 Transcript at 83.) The mother testified that when the girls are returned late on Thursdays, they are exhausted, hungry, and it is difficult for them to concentrate on homework. (December 7, 2011 Transcript at 93.) She also stated that the father has a pattern of not returning items such as jackets and backpacks. (December 7, 2011 Transcript at 106.)
The children's maternal grandmother [redacted] testified very credibly that she sees the children two times per week and that they play cards, games, sing, and color together. (December 7, 2011 Transcript at 63.) She stated that she has observed the mother cook for the children and help them with their homework. (December 7, 2011 Transcript at 64.) She testified that in September, 2011 she was babysitting for the children when the father returned them and both children were crying when they came into the home. (December 7, 2011 Transcript at 69.)
The father testified that he has interacted regularly with the girls since May of 2011. (December 16, 2011 Transcript at 63.) The father testified that he participates in activities with the girls such as skiing, hiking, and playing on a trampoline in his yard. (December 16, 2011 Transcript at 32–38.) He also stated that they enjoy going to malls and carnivals together. (December 13, 2011 Transcript at 84.) [Redacted] testified credibly that he and the father and their children enjoyed a boating trip on a lake near Old Forge in the summer of 2010. (December 8, 2011 Transcript at 231.) The father stated that his parenting time on Thursday was “not very useful to me because before you know it, and it's so easy to lose track, the two hours have expired.” (December 13, 2011 Transcript at 74.)
On cross-examination, the father admitted that he did not always take the children to their activities and stated he was under no obligation to do so, especially if it was his judgment that it was more important to spend quality time together. (December 13, 2011 Transcript at 88–91; December 16, 2011 Transcript at 151.) He testified that he has accommodated the girls' wishes on occasion, such as when they asked to attend a birthday party. (December 16, 2011 Transcript at 33.) The father stated that he is not involved in school activities because he wants to prevent any potential allegations by the mother of violations of orders. (December 16, 2011 Transcript at 143.) He stated that he does not know the name of one of his daughter's doctors and that he does not get involved so as not inflame the mother. (December 16, 2011 Transcript at 148.) He testified he does see the girls' report cards (December 16, 2011 Transcript at 153) and that on one occasion in the past he took one of the girls to an emergency room for an ear problem. (December 16, 2011 Transcript at 148.) As a part of this testimony, the father stated that he refers to himself “as the weekend fun guy because the greatest impact, as I see it, I can have on the children's life is to provide them with enjoyment; kind of like what children do on weekends, and that is most of the time that has been remanded for my purposes.” (December 13, 2011 Transcript at 73–74.)
The Court finds that the mother has a loving relationship with the children, oversees their daily needs, and provides them with a stable environment. The Court also finds that the mother scrupulously observes the parenting time allotted to the father. There is no indication that she provides additional parenting time to the father, other than occasionally, but the evidence shows that the hostility and suspicion between the parents is a factor in her decision making. Overall, the Court finds the mother to be an exemplary custodial parent.
The Court believes the father sincerely loves his children and that he wishes to spend additional time with them and have a greater influence on their lives. However, where there is such a difference in parenting styles, it would be injurious to the children to interfere with the stability that a sole custodial parent and decision maker affords. Although the father speaks very eloquently regarding the role of the father, there is no testimony that he has ever been the primary caretaker of his own children and he does not demonstrate the type of reliable and considerate conduct necessary in a custodial parent. Even with the limitations in parental access imposed upon him by the custody order, the Court finds that he chose not to avail himself of all of the time he could have spent with the children. The Court does not give much credence to the father's excuse of not wanting to violate an order or to inflame the mother, since his own testimony shows that he routinely violates the terms of the order and sends bothersome messages to her. Rather, it appears to the Court that the father wishes to have a relationship with the children based upon his own needs and, if his wishes are thwarted, his solution is to threaten to absent himself from his children's lives.
5. Defiance of process
The Court has made findings concerning violations of court orders elsewhere in this Decision. The Court also finds that the father gave inconsistent testimony regarding the necessity of obeying court orders. When cross-examined by the Attorney for the Children, the father stated that he did not have to obey court orders. (December 19, 2011 Transcript at 6.) In his redirect testimony, he later stated that he believed that “orders should be followed except in circumstances which render it impractical.” (December 19, 2011 Transcript at 29.) When answering a question posed by the Attorney for the Children concerning his lack of adherence to pick up and drop off times for the children, the father stated that it was “self help to some degree” on his part and his way of making up his lost parenting time. (December 19, 2011 Transcript at 26.) Subsequently, he testified that he did not consider his actions as self help but rather as his interpretation of an order or as his response to the delay in the resolution of petitions that he has filed. (December 19, 2011 Transcript at 41–42.)
The Court finds that the father has a pattern of disregarding the specifics of court orders regarding parental access and that he shows no evidence of caring about the negative effects of such behavior on others.
6. Wishes of the children/Recommendations of the Attorney for the Children
The Court conducted separate Lincoln hearings with each of the subject children. The children were very well-behaved and friendly and appeared to be well-adjusted.
The Attorney for the Child made the following recommendations as a part of his closing statement at the end of the trial: supervised parenting time for the father; the elimination of Thursday parenting time; a psychological evaluation of the father and counseling; retention of the three-county geographical restriction on the father; 24–hour notice to the mother if the father is going to exercise parental time; a 15–minute waiting time for parental access; and no overnight parenting time.(December 19, 2011 Transcript at 93–95, 99.)
7. Evaluation of parties' credibility
The Court finds that the mother was consistently very credible and reliable in her testimony. The mother presented as a calm and methodical witness although she was somewhat defensive during portions of the cross examination by the father.
The Court finds that the father was credible during portions of his testimony but that large portions of his testimony were also evasive or self-serving. The father presented as a charismatic but verbose witness who was very determined to explain his parenting and legal theories to the Court. For the most part, the father was able to preserve a calm demeanor although there were several instances when he had difficulty restraining himself, especially during his cross examination by the Attorney for the Children.
D. Conclusion
The Court, having reviewed the applicable law and having considered the testimony and proofs adduced at trial based upon a preponderance of the evidence now reaches the following conclusions in the best interests of the children.
There is a sound and substantial basis in the record to continue the award of sole legal custody of the children to the mother. There is no doubt that she has provided the children with a stable, loving home and fostered their medical, scholastic, and social development. She has also made the children available for interaction with their father under very difficult conditions.
The father seeks to have joint and shared custody of the children, after a one year period of time in which he is granted sole custody. However, a joint custody award by the court is improper where, as here, the parents are so severely antagonistic and embattled that joint custody only enhances family chaos. Braiman v. Braiman, 44 N.Y.2d 584 (1978) The Court finds that the parents do not interact or communicate in a civil manner and that their parenting styles are incompatible with respect to medical care and the importance of the children's activities. It is highly unlikely that these parents could agree on the decisions that must be made in the children's lives. Under these circumstances, the children would be placed in an injurious situation if joint custody were ordered. The parents have also demonstrated that they are unable to cooperate to the degree necessary in an arrangement in which physical custody is shared. Despite his request for custody, the father's testimony presents a picture of a parent who chooses not to be fully involved with his children. The father's words emphasize his rights as a father; in contrast, his actions ignore his duties as a parent.
The Court denies the request for supervised parenting time made by the mother and the Attorney for the Children. The Court is very aware that the father has been erratic in his exercise of time with the children and that he has acted in a manner which makes it very difficult for the mother to interact with him. However, there is no current evidence that the father is a danger to the children and, therefore, supervised visitation is not warranted. Gerald D. v. Lucille S., 188 A.D.2d 650 (2nd Dept.1992) (Wright v. Dunham, 13 AD3d 1138 (4th Dept.2004.)
It is the Court's belief that these children deserve to have a steady presence by their father in their lives, and the Court trusts that the father is sincere in his request for consistent parenting time. The record demonstrated that several hours of parental time on Thursday was not beneficial to the children or the father; accordingly, it will be vacated. The Court will grant the following parenting time to the father: the first and third weekends each month from 6:30 p.m. on Friday through Sunday at 4:30 p.m.; Father's Day from 9:00 a.m. until 4:30 p.m.; two consecutive weeks in the summer vacation for each of the parents; Thanksgiving Day in odd years from 9:00 a.m. until 4:30 p.m.; and Christmas Eve at 4:30 p.m. through Christmas Day at 4:30 p.m. in even years. The Court will prepare and issue a separate custody order with fuller details regarding parental access, taking into consideration specific requests made by the parties and the Attorney for the Children in their pleadings and in their testimony.
The Court will direct the mother to transport the children to and from their time with their father. The testimony shows, only too clearly, that the father is unable or unwilling to observe the parenting times specified in a custody order. There is also testimony that the mother has concerns about the transportation designees. It is not the intention of the Court to imply in any fashion that the mother is at fault for any part of the transportation issues. Rather, the Court wishes to ameliorate one of the most difficult problems with the current parental access order and provide greater stability to children's lives. Were the Court not convinced that the mother has accepted and embraced every facet of her duty as a custodial parent who places the interests of her children before her own, it would not impose this additional duty upon her.
The Court denies the request for a psychological evaluation and counseling for the father. Even if the father were forced into counseling, the Court believes that such an evaluation and/or counseling would have little, if any, therapeutic value.
The father's request for removal of the geographic restriction on his parenting time is granted. However, as specified in the custody order, he will be obligated to give 15 days' prior notice to the mother by certified, return receipt mail if he intends to remove the children from New York State for a period of two days or more and 30 days prior notice if the period is more than two days.
The father's request that the children call him every day is denied. If the either of the parents so chooses, he or she may provide the children with a cellular phone at his or her own expense and may telephone them every evening between the hours of 8:00 p.m. and 8:30 p.m. on that phone. Each parent should ensure that the children are available to take these calls whenever the children are with each of them, respectively.
The father's request for the removal of the Attorney for the Child is denied as there is no competent proof that the Attorney for the Children violated the standards of his profession. Matter of “Nicole VV,” 296 A.D.2d 608 (3rd Dept.2002). Attorney Koslosky has an established attorney-client relationship with the children and has represented their interests ably and well. The Court has observed the interaction between the father and the Attorney for the Child in their Court appearances and taken notice of the father's allegations contained in the petitions as well as in his correspondence to the Court (which is not a part of the trial record). The Court believes that the custody dispute has escalated somewhat into the realm of a personal dispute between the two. Some of the father's statements contained in his letters to the Court regarding the Attorney for the Children are offensive, intemperate, and unfounded. They go well beyond what is usual, even in heated exchanges which unfortunately are quite often routine in custody disputes. Should Attorney Koslosky desire to be relieved from his assignment at the present or in the future, the Court will regretfully accede to his request.
The father's request that his driver's license be reinstated is dismissed for lack of subject matter jurisdiction. If the suspension is connected with the non-payment of child support, Section 111–b of the Social Services Law, contains the appropriate procedure that must be followed before such an action comes before the Family Court.
The mother's request for financial reimbursement from the father when he does not appear or is late for parenting time is denied. The Court notes that the parties' divorce decree incorporates a similar mechanism but, absent an agreement by the parties, the Court has no authority to grant this relief.
The mother's request for an order prohibiting the father from filing future petitions unless he first gains permission of the Court is denied. The Court does not find that these petitions are wholly without merit. Weisner v. Weisner, 83 AD3d 950 (2nd Dept .2011). However, sanctions will be considered against any party who files frivolous or malicious custody pleadings in the future. The Court would prefer that the father limit his pleadings to matters properly before this Court and that both parties refrain from filing multiple petitions seeking identical relief. However, the Court is also cognizant that many of the pleadings were filed as a result of the delay in the resolution of the case due to required and necessary administrative transfers as well as the number by recusals of judges and judicial hearing officers.
The Court wishes to thank the parties and the attorneys for their cooperation throughout the trial. It is the hope of the Court that the parents will take this opportunity to commence a period of mutual civility at the beginning of a new year in the interests of their daughters.
ATTACHMENT A
I. Pending Petitions and summary of relief requested
V-[redacted]/10CMother's Violation Petition
Supervised visits for father until psychological evaluation and counseling completed;
Appoint mental health professional as third party;
Cancel father's next visit if he is more than 15 minutes late dropping off at this visit;
Give mother 24 hours' written notice if father cancels visit;
“Order of the visitation default fees for the last 6 months;”
With 1 week's notice, mother can reschedule visit if child has sports, religious, school activity;
Order directing father: serve papers only through sheriff; do not give out her address or phone number except to sheriff; only e-mail or text her re children's schedule or emergency; stay away from mother;
Children can call mother during visit; and
Father to notify court and mother of his address, e-mail and phone number.
V-[redacted]/11EMother's Modification/Violation Petition
Suspend father's parenting time until he completes a psychological/forensic evaluation;
Permit mother to cancel and reschedule father's parenting time if need to accommodate children's activities with 30 days' written notice; and
Grant mother at least 2 weeks' uninterrupted parenting time for vacations on written notice to father.
V-[redacted]/11FFather's Violation/Contempt Petition
Hold mother in contempt for willful failure to follow the following orders: 5/17/10, 9/17/07, and 2/16/11 with respect to parental access.
V-[redacted]/11GMother's Violation Petition
Suspend father's parenting time or order supervised parenting time until he completes a psychological/forensic evaluation; and
Grant an order of protection for mother and children.
V-[redacted]/11HFather's Modification Petition
Transfer custody of children to father, suspend all contact between the mother and the father/children, and reverse/suspend father's support obligations;
Grant father an order of protection directing mother to cease harassment, assault, fraudulent petitions and domestic incident reports, and related criminal behavior against the father and [redacted with any child exchanges to occur through a designated third party; and
Terminate William Koslosky as Attorney for the Children.
V-[redacted]/11IFather's Modification Petition
Grant protected telephone contact and meaningful overnight parenting time for father and suspend his child support obligations.
V-[redacted/11JFather's Modification/Violation Petition
Reverse the parenting periods and authority of the parties or, in the alternative, facilitate protected father's telephone contact, a summer period, meaningful child involvement, and overnight parenting time;
Suspend support obligations and vacate motor vehicle license restrictions; and
Terminate William Koslosky as Attorney for the Children.
V-[redacted]/11KFather's Modification Petition
Requested on the Order To Show Cause:
Reverse custody and parenting orders with a corresponding order of support;
Grant 2 weeks parenting time and suspend child support; and
Grant overnight visits during the week and weekends; winter, spring, summer vacation periods; remove geographic and driver license restrictions; enforce regular phone contact initiated by children.
Requested within the petition:
Modify judgment of divorce dated 9/17/07, orders dated 6/12/08 and 10/7/08; Decision After Trial dated 1/22/10 filed on 5/9/10, and Order of Support on Agreement dated 8/23/10;
Modify custody, reverse support obligations; and
Remove William Koslosky as Attorney For Children.
F-[redacted]/11CFather's Modification Petition
Suspend/vacate the child support order due to lack of visitation. [ Referred to Family Court judge by Support Magistrate Davies.]
F-[redacted]/11D(See Father's V-[redacted]/11K)
Reverse support obligations.
II. Pending Motions
V-[redacted]/10B, C, D/11EMotion by father
Issue an order punishing mother for willful violation of 5/24/10, 9/17/07, and 2/16/11 orders.
V-[redacted]/11F, H, I, J, K Motion to Dismiss by Attorney For Children
F-[redacted]/11C, D
Issue an order dismissing all of father's petitions and motions.