Opinion
Docket No. V-5719-2019 V-6470-2019
11-15-2021
In the Matter of a Proceeding Under Article 6 of the Family Court Act, MARVIN F., Petitioner, v. JARAN H., Respondent.
The mother was represented by Charles A. Lawson, Esq., 26 Court Street, Suite 1708, Brooklyn, NY 11242, Telephone: 347-450-7321; lawsonpllc@gmail.com; the Father was represented by Tennille M. Tatum-Evans, Esq., 316 West 116th Street, Ste 3B, New York, New York 10026, tmt.evans@gmail.com.
The mother was represented by Charles A. Lawson, Esq., 26 Court Street, Suite 1708, Brooklyn, NY 11242, Telephone: 347-450-7321; lawsonpllc@gmail.com;
the Father was represented by Tennille M. Tatum-Evans, Esq., 316 West 116th Street, Ste 3B, New York, New York 10026, tmt.evans@gmail.com.
Javier E. Vargas, J.
Papers Numbered
Summons, Petition for Custody & Exhibits Annexed1
Summons, Petition for Custody & Exhibits Annexed2
Exhibits Admitted in Evidence3
Court Proceedings Recordings 4
Written Summations5, 6
Upon the foregoing papers, the evidentiary bench trial presided by the undersigned from November 20, 2019 to August 12, 2021, the exhibits admitted into evidence, counsels’ arguments, and for the following reasons, the Cross Petitions by Petitioner Marvin F. (hereinafter "Father") and Respondent Jaran H. (hereinafter "Mother"), for custody and visitation of the subject Child, are both granted in part and denied in part in accordance with the following decision.
I.
After meeting online in early 2016, the Father and Mother began a romantic relationship which lasted for almost two years. Both parents are college-educated businesspeople; the Father, originally from Los Angeles, California, completed college in Atlanta with a B.A. in Philosophy, and currently works as Senior Client Manager for American Express, while the Mother works as a Merchandising and Operations Manager at Tiffany & Co. in Manhattan. Their union procreated the subject Child of these proceedings, outside of marriage. Although upon learning of the pregnancy in July 2017 the Father was initially happy, he became somewhat concerned about its siring because there was some discrepancy as to the conception date. Yet, his suspicions promptly vanished, their relationship continued, and he started to accompany the Mother to her prenatal doctor's visits and was at the hospital at conception, immediately signing an Acknowledgement of Paternity (see Family Court Act § 561 ).
The couple's resiliency was tested early on the pregnancy when an amniocentesis test revealed that the baby had a chromosome abnormality apparently because of the advanced age of the Mother, who was around 40 years old at that time. There were discussions about ending the pregnancy, but they decided to keep the baby. Upon his successful birth via cesarean operation, the family briefly lived together, and the Father took care of her and the Child in a one-bedroom apartment that he rented across the street from the Mother's family's multistory brownstone residence in Brooklyn, New York. The Father moved across the street from Mother precisely to be close to her and her family. Unfortunately, the couple began experiencing difficulties and tried counseling, but it did not work, eventually resulting in the parties separating in May 2018. The Mother, who had taken maternity leave from Tiffany's, left with the Child to live fulltime at the house with her siblings and the Maternal Grandmother, Linda H. (hereinafter "Grandmother"), who had come from her residence in Virginia to visit and help with the birth of the Child. Shortly thereafter, the Mother went to Virginia with the paternal grandparents for three weeks to convalesce and learn about baby rearing, essentially excluding the Father from the Child's life.
In the first months of the Child's life, the Father was involved with and would see the Child three or four times a week in the morning prior to going to work, upon his return at night and on the weekends, but always in the presence of someone at the brownstone. The Mother involved the Father in feeding the Child, diapering him, and changing his clothes as she wanted him to "understand what to do to care for his son." Still, by September 2018, although he tried to get increased visitation with the Child, he was only given one hour per week at the Mother's home supervised by her or the Grandmother. The Mother had created a group chat and he was forced to speak to both the Mother and the Grandmother to ask about the Child and for visitation. When he would go to the Mother's house wanting to visit the Child by the last months of 2018, the Grandmother and Mother would instead make him help with the house chores, like fixing the crib, cleaning pads, doing the baby's laundry, assembling strollers, disassembling a basinet, and doing other things for the Child, without actually having any time alone with the Child.
By December 2018, the Father realized that the Mother was envisioning a life with the Child without him, and he decided to be more forceful in asking for visitation, but his requests were denied by the Grandmother, not even the Mother! From December 2018 to February 2019, he testified credibly as supported by documentary evidence that the Grandmother was monopolizing the Child and not letting him see him, but for a couple of hours during the weekend. In fact, he will see the Child more when Mother was not working than when she was working. Even though he wanted to spend the Childs’ first Christmas Day with him in 2018, the Grandmother and Mother announced they had their "family reunion" and they came to his residence for just one hour to get his gifts. He was not permitted to see the Child at all in his first New Year's Day of 2019, and only said good night on the second. He was not even permitted to see the Child in his own birthday, nor included in the decision to get a passport for the Child. Despite this shabby behavior, he did not want to push too much to get visitation or sound upset or aggressive because they will use that anger against him to further restrict visitation. He felt like he was being treated as a "friend of the family or neighbor" when visiting his own Child.
As a result, on March 4, 2019, the Father commenced the instant proceedings by filing a Petition against the Mother in Kings County Family Court, seeking joint legal custody and full visitation rights with the Child. The Mother promptly followed with her own Cross Petition for Custody on March 8, 2019, seeking sole legal custody. On March 29, 2019, both parties appeared with counsel before the Honorable Keith E. Brown, that day's Intake Judge at the Family Court. While the Father made an application for expanded supervised visits, the Mother refused the same from the inception of the proceedings, claiming that Father's supervised visits were not going well and that he did not know how to care for the Child. Nevertheless, on that date, the Court issued an Order of Visitation (Brown, J.) granting Father parenting time the next day between the hours of 10:00 a.m. and 2:00 p.m., and adjourned the case to April 4, 2019 to the Undersigned for a visitation hearing given the Mother's reluctance to give unsupervised visits to the Father.
Upon oral argument where the Mother raised several excuses as to why visitation should not happen, by Order dated April 4, 2019 (Vargas, J.), this Court rejected her arguments and granted the Father unsupervised day visits with the Child. At every court appearance, the Mother would raise a different excuse or pretext — that she was breastfeeding, that he did not know how to bathe or care for the Child, or that her nephew was sick - to prevent the Father from having additional visitation. On the next scheduled date, May 14, 2019, this Court again increased the Father visitation to overnight for at least one night per week, over the Mother's objections. Again, on the following court appearance of July 16, 2019, Father's visits were increased with an additional overnight visit during the week. Currently, the Father has alternate weekend visitation from Friday to Sunday as well as an overnight weekday visit when it's not his weekend. Additionally, the Father, who works from home during COVID, has the right of first refusal with regard to childcare so that he is to care for the Child when the Mother works or needs childcare, rather than having a paid caregiver, including the Grandmother.
II.
Based on the parties’ failure to reach a settlement agreement, the matter proceeded to trial before the Undersigned on November 20, 2019. The parties provided Opening Statements with the Father saying that both parties have the potential to be outstanding parents, but that the Mother has failed to foster and prevented the Father from exercising full visitation without supervision. The Father claimed that the evidence will show that the Mother works all holidays and weekends and cannot take care of the Child, leaving that responsibility to the Grandmother. Only Court intervention elicited visitation overnight with the Child, and he would like to have joint physical custody and legal custody. For her part, the Mother opened claiming that the parties broke up because Father was questioning the paternity of the Child and became depressed when there was a possibility that the Child may have special needs. She requested sole legal and physical custody with certain visitation for the Father.
The trial continued on November 21, 2019 and January 28, 2020 with Father's direct testimony. In addition to the factual recitation above, the Father credibly testified that only upon filing this proceeding did the Mother start affording him a little more visitation like three or four hours, but always at their residence with the Grandmother. Even though he had been visiting with the Child almost daily, the Father introduced in evidence an email dated March 4, 2019, wherein the Mother stated:
propose that you continue to visit [the Child] on a weekly basis as you continue to develop your parenting skills and develop a bond with [him]. These visits will give you an opportunity to feed, bathe and soothe [the Child], as well as play with him and put him to sleep. This frequency of contact will help [the Child] to remember you.
He could not spend any time alone with the Child until full court intervention. Trial dates scheduled for February 24, 2020, February 25, 2020 and February 26, 2020 were rescheduled as per application by the Father's counsel.
While the case was sub judice, in early March 2020, the terrible COVID-19 Pandemic descended upon the World temporary paralyzing nonemergency matters pending in all New York courts, and thereby requiring the implementation of virtual proceedings and conferences using Skype and then Microsoft Teams platforms. Subsequent trial dates scheduled for May 20, 2020 and June 3, 2020 were adjourned due to the Family Courts’ closure. All counsel and parties in the Family Court then became proficient and began utilizing the virtual computer format for their pending proceedings. Indeed, a conference was held virtually in this case via Teams before the Undersigned at home. Since trial courts have wide latitude and discretion regarding trial procedure (see CPLR 4011 ; Family Court Act § 165 ), the Undersigned continued presiding over the bench trial on a virtual basis without objection from either party (see C.C. v. A.R. , 69 Misc 3d 983, 988-989 [Sup Ct, Kings County 2020] ).
The trial next resumed on November 12, 2020 with the continuation and conclusion of Father's direct examination. He testified that Mother did not permit him to see the Child without supervision by the Grandmother, prompting him to commence this proceeding, only then he obtained more liberal visitation with the Child. The Grandmother was always controlling of when the Father would be able to see the Child, so he only saw him for a couple of hours per week. The Father introduced in evidence a text message from the Grandmother dated September 4, 2019, as follows:
Thanks for visiting [the Child] this morning[,] however I need to ask you not to make unannounced or uninvited visits. * * * Sorry you missed [a visit] but you can't make it up by popping in just anytime especially early mornings when the household is reading for the day. Thank you for understanding.
The Father testified that he was very frustrated and stopped asking for additional time because the Mother will only stay within the Court Order and did not want to deviate from the Order. He also maintained that the Mother would not consult with him about decisions regarding the Child, just telling him after the fact. At some point, still, the Mother told him to take a virtual tour of a school she was eyeing for the Child and both consulted about that.
Currently, the Father explained that he is getting visitation with the Child and taking him to the park, gym jamboree and the library for reading days. On cross examination, the Father acknowledged that he "teased" the Mother about the Child not being his during the pregnancy, but that he was there for the birth and the parties lived together for a while after birth, but then Mother moved back to her parents. Although at the beginning they did not provide much visitation, he saw the Child in the mornings and after work almost every day, but only after he complained. He only had "minimal contact" with Mother via text or email, telling her minor things like poopy, bed and other things about the Child. They have not had an in-depth conversation about the Child and his future.
The trial continued on January 27, 2021 with the Father's cross examination, redirect and re-cross. The Father again explained that he was busy working at American Express, could not take parental leave, but would come to see the Child early in the morning before work and after work. However, in September 2018, he said that the Grandmother would not permit him to see the Child and said that he was "disrupting his routine." His frustration grew because he felt like a "friend of the family" or "neighbor" visiting a friend's child. With that, the Father rested his case.
On March 10, 2021, the Mother commenced her case acknowledging that the Father would come to see the Child almost every day early in the morning before and after work and during weekends. She resides in a multigenerational home with her siblings, nephews and the Grandmother, who live on different apartment floors. She testified that in August 2018, they began to interview applicants for the position of a nanny to take care of the Child upon her planned return to work at Tiffany's. After several unsuccessful interviews, they decided to hire and financially remunerate the Grandmother as the Child's full-time nanny. The Mother then created a group chat for the Father to arrange for parenting time with her and the Grandmother. The Mother candidly acknowledged that she will "delegate a lot of parental authority to the Grandmother" as the primary caretaker, who will tell the Father when he could see the Child. The Mother was busy working around 38 hours a week, will return home after 5:00 p.m., bathe the Child, breastfeed him and get him ready for bed after singing to him. The Father will come sometimes in the evenings and during the weekends to visit with the Child.
However, the Mother testified that there came a point in January 2019 when she told him that he could not come in the mornings/evenings anymore and then he stopped visiting and decided to become a once-a-week visitor on Saturdays. She maintained that the Father's contact with the Child was inconsistent, disconnected and he would only come whenever he was available. The Mother testified that she consulted with a parenting coordinator, Dianne Hesseman, who suggested a "step up" access schedule for the Father, but she did not implement it right away because she was concerned about the Child's transition anxiety and sleeping patterns. She incredibly declared that the Father had never expressed concerns about the Grandmother and her control of the visitation access. Currently, the Mother stated that the Father is getting visitation with the Child, and they are working together in selecting his prekindergarten and doctors. On cross examination on March 31, 2021, the Mother testified that Father would text her early in the morning before work about the Child because "he wanted to be a caring father," but she only gave him a four-hour visit on Feb. 25, 2019 and no more because when the case started she was only giving him one hour per week and did not want to give him any visits while she was at work. Tellingly, the Mother explained that the Grandmother decided what times the Father could see the Child.
The next witness was the Grandmother who testified virtually on May 18, 2021, while at the same office location as the Mother and her counsel. The Grandmother testified that she is a college graduate who worked with the Department of Parks and Corrections in Richmond, Virginia, and now has a landscaping business and farmer's market, catering to several congress members and ambassadors in Washington, D.C. In 2018, she came to Brooklyn to be with the Mother for her birth because the Child had been diagnosed as missing a chromosome and she helped for four months to care for both the Mother and the Child. According to the Grandmother, the Father will come sometimes to visit, and she never prohibited him from coming. In August 2018, the Grandmother explained matter-of-factly that she became the Child's nanny without any objection by Father who paid her $20 per hour, which she repeatedly claimed to be much less than what she was making in the landscaping and farmer's market business. The Grandmother currently lives at the Mother's four-family home in one of the apartments and does not pay rent, but alleges that she helps in the mortgage of the house which is owned by the Mother and all her siblings.
The trial continued May 24, 2021 with the Grandmother testifying in a less than credible manner that she never stopped or prevented Father from having visits with the Child. To the contrary, she claimed that she will encourage visitation. Although her relationship with the Father was cordial at the beginning, she testified that upon the commencement of the court proceeding, he did not talk to her. He would come to pick up the Child without addressing her. She would still communicate with the Paternal Grandparents but only on special occasions or to express them happy holidays, but nothing further like she did in the past. Her direct examination was concluded. On June 22, 2021, the Father's cross examination of Grandmother commenced, wherein she again maintained that she never stopped or prevented Father from having visits with the Child. On a positive note, she testified that her relationship with the Father has been starting to warm up and be more cordial now.
Finally, on August 12, 2021, after the close of the Grandmother's testimony, both parties rested their cases and made an application to submit written summations, which application was granted by the Court. As per his written Summation, the Father argues that Mother did exercise some form of parental alienation which forced him to seek court intervention and supervision to be able to visit with the Child, his own son. Despite the parties’ rocky start, the Father maintain that both he and the Mother do not have an inimical relationship that would preclude joint custody, and he seeks meaningful and substantial contact with the Child. He proposes an award of joint legal and joint physical custody where the parents would alternate weeks with the Child with a mid-week dinner visits on Wednesdays for the parent who does not have the Child. The Father further proposes a detailed holiday schedule along with granting each parent two weeks of uninterrupted parenting time in the Summer.
On the other hand, the Mother's written Summations reflect that her primary concern ostensibly was to facilitate a healthy and meaningful relationship between the Father and Child. The main issue at the outset of this matter was transitioning the Child to spending more time with the Father which, with the assistance of the Court, was accomplished gradually over a period of several months. The Mother contends that she has been an excellent mother and fierce advocate for the Child as he is healthy, thriving and meeting all developmental milestones. As such, the Mother requests sole legal and physical custody and that she should make all major decisions regarding the Child, including school and education, religious instruction, and medical care. However, Mother is willing to consult with Father in advance of making any major decisions and plans to inform Father of all major decisions in writing via email or text message. The Mother proposed alternate weekend visitation with a Tuesday to Wednesday visit. In addition, Mother proposed a right of first refusal in the event either parent is unable to watch the child, as well as a detailed vacation and holiday schedule. After the written Summations were received by the Undersigned on September 15, 2021, this Court reserved decision.
III.
It is well-settled that the paramount consideration in any custody dispute is the best interests of the Child (see Eschbach v Eschbach , 56 NY2d 167, 171 [1982] ; see Matter of Khan v Potdar , ––– AD3d ––––, 2019 NY Slip Op 72783[U], lv denied 36 NY3d 902 [2020] ). "Factors relevant to the determination of custody include, but are not limited to: (1) which parent will best promote stability; (2) the nature of each home environment; (3) the past performance of each parent; (4) each parent's relative fitness, including his or her ability to provide for the child's emotional and intellectual development and overall well-being, to provide for the child financially, and to foster the child's relationship with the noncustodial parent; and (5) the child's desires" ( Matter of McFarlane v Jones , ––– AD3d ––––, 2021 NY Slip Op 02392 [2nd Dept. 2021] ); Matter of Cucciniello v D'Amato , 188 AD3d 1051, 1052 [2nd Dept. 2020] ; Matter of Recher v Velez , 143 AD3d 828, 829 [2nd Dept. 2019] ). Other factors are which parent would provide the opportunity for the Child to separate, individuate and grow into his own person (see Barbato v Barbato , 264 AD2d 792 [2d Dept. 1999] ), and the continuation of existing custodial agreements between the parties entered voluntarily prior to court intervention (Matter of Nehra v Uhlar , 43 NY2d 242, 251 [1977] ). Another significant factor in custody determinations is which parent will assure that the Child maintains a meaningful relationship with the other parent (see Scott M. v Ilona M., 38 Misc 3d 1216[A ] [Kings Sup Ct. 2013] ). The existence of any alienation of affection or interference with the relationship between a parent and the child ( Bliss v Ach , 56 NY2d 995 [1982] ; Barbato v Barbato , 264 AD2d at 792 ), "including willful interference with his or her visitation rights, is ‘an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the [offending party] is unfit to act as custodial parent’ " ( Matter of Bennett v Shultz, 110 AD3d 792 [2nd Dept. 2013], quoting from Entwistle v Entwistle , 61 AD2d 380, 384-385 [2nd Dept. 1978] ).
Joint custody is only appropriate between "relatively stable, amicable parents behaving in mature civilized fashion," who are capable of cooperating in making decisions on matters relating to the care and welfare of children ( Braiman v Braiman , 44 NY2d 584, 589-590 [1978] ; see Irizarry v Irizarry , 115 AD3d 913 [2nd Dept. 2014] ; Matter of Wright v Kaura , 106 AD3d 751 [2nd Dept. 2013] ). It is inappropriate, however, when the parties have demonstrated an inability to communicate and cooperate on those matters (see Matter of Lee v Fitts , 147 AD3d 1058 [2nd Dept. 2017] ; Matter of Opra v Fitzharris, 95 AD3d 1020 [2nd Dept. 2012] ). Shared physical custody may be appropriate where there is no concern regarding the living arrangements or fitness of either parent, and where there is a sound, substantial basis for a finding that a shared custody arrangement is in the best interest of the child (see Matter of Patricia RR. v. Daniel SS , 172 AD3d 1471 [3rd Dept. 2019] ). "The credibility findings of the Family Court after a hearing on the issue of custody will be accorded great weight on appeal, and its determinations regarding custody and parental access will not be disturbed unless they lack a sound and substantial basis in the record" (Matter of Eckstein v Young , 176 AD3d 813, 814-815 [2nd Dept. 2019] ; Matter of Jules v Corriette , 76 AD3d 1016 [2nd Dept. 2010] ).
Applying the foregoing principles to the matter at bar, the Court finds that it is in the Child's best interests for the Mother and Father to share joint legal custody with certain spheres of influence for each party (see Matter of Patricia RR v. Daniel SS , 172 AD3d at 1471 ). The evidence at the trial established that both the Mother and the Father love the Child, have a strong, positive and healthy relationship with him, and play an active role in his intellectual and emotional development. In particular, it is undisputed that the Mother has been the Child's primary caregiver on consent after she left the apartment they shared; she has taken him to well-child doctors’ visits and dentist's appointments; provided him with shelter, food and health care; enrolled him in extracurricular activities and registered him in prekindergarten. Both parents have stable employments, appropriate residences, and have provided continuous financial support for the Child.
It must be acknowledged that this is one of the rare cases in Family Court where neither parent is alleging that the other is an unfit parent. There are no allegations of domestic violence perpetrated by the parties, and there are no allegations of any neglect or abuse of the Child by either parent. Although the Father credibly testified that the Mother has been controlling and limited his access to the Child prior to court intervention, the parties have fortunately improved their relationship and do not have an inimical rapport that would preclude joint custody (see Janecka v Franklin , 143 AD2d 731 [2d Dept. 1988] ). To the contrary, the parties appear to be "relatively stable, amicable parents [who behave] in [a] mature [and] civilized fashion" (Matter of Lee v Fitts , 147 AD3d at 1059 ). In fact, the parents each testified that together they interviewed several nannies for the Child before deciding to hire the Grandmother, and that they recently evaluated and selected an educational institution that would work best for the Child (cf. Matter of George W.S. v Donna S., 187 AD2d 657 [2d Dept. 1992] ). As such, this Court is awarding them joint legal custody to share responsibility for and control of the Child's upbringing (see Matter of Charles N.N. v Jaclyn A.M., 193 AD3d 653[2nd Dept. 2021] ; Matter of Patricia RR v. Daniel SS , 172 AD3d at 1471 ).
This conclusion notwithstanding, the Court's determination as to who should have physical custody of the Child and would foster a positive relationship between the Child and the other parent, requires a more in-depth analysis (see Cunningham v Brutman , 150 AD3d at 815 ). Based on this Court's observation of the witnesses’ demeanor and behavior in court, it was the Father who credibly testified that he has continuously sought more visitation and access with the Child, as evidenced by his constant text messages and email exchanges between him and the Mother and Grandmother. Sometimes the Mother would acquiesce to some minimal access, while most times she or the Grandmother denied the Father's requests. He took advantage of the morsels of visitation time granted and consistently visited the Child in the Mother's home even when they made it into an uncomfortable situation. He was reduced to be the Child's playmate and only permitted to have supervised visits for almost a year.
Both the Mother and the Grandmother appeared less than credible in their testimonies. Both repeatedly professed their desire for the Father to have full visitation rights with the Child and that they never prevented his parenting time. However, it seems that the Mother forgot that this Court presided over numerous conferences between the parties and counsel where the Mother would consistently prevent and impose obstacles for the Father to have normalized visitation. It was like pulling teeth for the Father - and this Court - to work out any visitation with the Mother. Thus, this Court credits the Father's testimony that the Mother and Grandmother were both in cahoots in restricting his involvement with the Child.
Indeed, the Father testified - as corroborated by the Mother - that after the Child's birth in April to September 2018, he saw the Child almost daily. However, everything changed when the Grandmother moved in to help care for the Child and they set up the group chat, whereby he was forced to text/call and essentially beg to have parenting time and not "disrupt" the Child's routine. Even though he would text to see the Child almost daily, the reply text messages by the Grandmother read not like attempting to arrange parenting time, but like a list of tasks he had to do (buy something from the store, "bring your tools," "reset the stroller" and "dismantle the basinet"), and a concern with payment for her childcare services ("late fee and penalties to apply" if not paid on time). It was ironic that the Grandmother was essentially his employee, but she was dictating his chores and his visiting times with the Child. By the time the Father filed the instant Petition, he had been relegated to weekly visitation for one hour in the Mother's home supervised by her or the Grandmother. Any attempts he made to expand visitation or have it without the supervision of the Grandmother or the Mother, were denied.
The Mother and Grandmother attempted to rehabilitate their prior actions with their trial testimony. Especially so the Mother, whose testimony was suspiciously guarded and deliberative, thereby manipulating her responses to fit her narrative. Despite their guarded and careful testimony, their true feelings were revealed when the Mother would state, for instance, that she was only giving the Father "one hour per week" and "did not want to give him any visits while she was at work," and when the Grandmother would refer to the Father as the Mother's "special person" or "guest" or arranging for a "play-visit" for the Child, instead of recognizing him as the Father of the Child entitled to full visitation rights. Indeed, their insincerity is revealed by the mere fact that they went to trial for two years to prevent a full parenting access schedule for the Father, thereby spending - and making the Father waste - significant financial resources which should have been saved for the Child himself. These actions do not appear to be in the best interest of the Child or his future.
Nevertheless, it is undisputed that the Mother has been the primary caretaker of the Child since birth, who has continuously lived with him, and that the Father consented to such arrangement shortly after she left with the Child. There is testimonial and documentary evidence that the Mother sought to become a better parent with the help of the New York State Parent Education & Awareness Program, and a parenting coordinator in order to effectively involve the Father in the Child's upbringing and ease his (and her) transition anxiety. There is also documentary evidence that, as early as February 2019, the Mother sent the Father a parenting access proposal agreeing to share joint legal custody and visitation times with the Father. She has thereafter complied with the visitation Orders and provided more freedom for the Father to enjoy his parenting time with the Child. Just recently, she also consulted with the Father with respect to the Child's incipient education. Balancing all these factors, the Court hereby determines that the Mother should be awarded physical custody of the Child.
Turning then to the Father's application for parenting time with the Child. It is well settled that "[v]isitation is a joint right of the noncustodial parent and of the child" ( Weiss v Weiss , 52 NY2d 170, 175 [1981] ). "Absent extraordinary circumstances where visitation would be detrimental to the Child's well-being, [circumstances not present here,] a noncustodial parent has a right to reasonable visitation privileges" (Matter of Spampinato v Mazza , 152 AD3d 525 [2nd Dept. 2017] ). Here, the record reveals that the Father is loving and caring with the Child, his visitation has steadily increased with court intervention, and the Child enjoys the visits. The Father is capable of caring for and feeding the Child, changing his diapers and clothes, and putting him to sleep. He also stimulates the Child's intellectual abilities by playing with him and reading him stories. There has been no indication that the Child is neglected or suffered any harm while visiting with the Father. Hence, the Father is entitled to a full parenting schedule with the Child, especially given the fact that the Mother is hereby awarded physical custody.
IV.
In accordance with the foregoing, the Father's Petition for joint custody is granted in its entirety, the Mother's Petition is granted in part, and this Court issues the following Final Order of Custody and Visitation:
Custody: The parties shall have joint legal custody of the Child, with the Mother having residential or physical custody.
The Court finds that both parents are capable of consulting and sharing in the decision making, but that spheres of influence are more appropriate to facilitate the parameters of communication and to address all issues raised. Therefore, both parents shall share in all decision making of education, major medical issues, religious upbringing, residence and extracurricular activities. If the parties are unable to reach an agreement, after a full and ample consultation between them, the Mother shall have the final determination on major medical and religious issues, and the Father shall have the final determination concerning education and extracurricular activities.
The parties agree that they will each be responsible for, and entitled to, make day to day decisions about the Child when he is in their care. Neither parent may compel the other parent to make a particular determination about day-to-day issues.
"The Court cautions the parties that a parent should not attempt to create friction or disagreement in order to seek modification of the joint custody decision. If it can be determined that a party intentionally creates situations to interfere with joint custody continuously, it could negatively impact on any future custody determinations" (Matter of Scott M. v Ilona M. , 38 Misc 3d at 1216[A] ).
Parenting Time & Holidays: The Father shall have alternate weekend parental access with the Child from Friday pickup from school/daycare or at 2:00 p.m. until Sunday at 6:00 p.m. If the Father's weekend falls on a holiday weekend, then the Father shall have access continued until that Holiday Monday at 6:00 p.m.
The Father shall also be entitled to an overnight visit with the Child every Tuesday pickup from school/daycare and drop-off Wednesday morning at 8:00 a.m. or timely at school/daycare.
The Father shall pickup or drop off the Child for visitation at either the Child's school/daycare or curbside of the Mother's residence if the Child does not have school.
The parties shall alternate the holidays with each being entitled to an overnight visit on said holiday. In the event the Father has to work on particular holiday, then the Mother shall be entitled to stay with the Child on that day with the Father being entitled to the following holiday that occurs. This holiday schedule shall supersede the parenting time schedule in Paragraphs 5 and 6, above, which parenting time schedule shall resume immediately after conclusion of the holiday.
During odd-numbered years commencing in 2021, the Mother will have Thanksgiving Break from Wednesday before Thanksgiving until Sunday at 7:00 p.m. The Father will have Thanksgiving Break in even years. All these holiday break schedules shall supersede the parenting time schedule in Paragraphs 5 and 6, above, which parenting time schedule shall resume immediately after conclusion of the break.
During odd-numbered years commencing in 2021, the Father will have Christmas Break from December 24th to December 30th when the Mother will have the rest of the break. In even years, the Mother will have that same Christmas time.
Each parent will be able to have dinner with the Child on the respective parent's birthday if their birthday does not occur on their scheduled parenting time.
The parents will alternate birthday party planning for the Child and invite the other parent. The Mother will plan the Child's party in odd years and the Father in even years. In the event that the parent who is supposed to plan the Child's party declines, they must inform the other parent by March 1st. Both parents are to be invited to the Child's party.
During odd-numbered years, the Father shall have parenting time with the Child for the entire Presidents’ Week Break (which is defined as including the first, but not the second weekend attached to that break). During even numbered years, the Mother shall have parenting time with the Child for the entire Presidents’ Week Break.
During odd-numbered years, the Mother shall have parenting time with the Child for the entire Spring-Easter Break (defined as including the weekend attached to that break that includes Easter Sunday, but not the other weekend attached to that break). During even-numbered years, the Father shall have parenting time with the Child for the entire Spring-Easter. This holiday break schedule shall supersede the parenting time schedule in Paragraph 5 & 6, above, which parenting time schedule shall resume immediately after conclusion of the break.
The Father shall always be entitled to parenting time with the Child on Father's Day and the Mother shall always be entitled to parenting time with the Child on Mother's Day.
Neither parent shall enroll the Child in an activity during the other parent's parenting time unless with the written consent of said parent. Consent shall not be unreasonably withheld.
The parties shall have any other parenting time with the Child as agreed upon.
Vacations: Each parent shall be entitled to three (3) non-consecutive or consecutive weeks with the Child during summer vacation with the Child. Each party shall notify the other no later than June 1st of each year of what weeks they wish to have vacation with the Child during the summer. In the event of a conflict with scheduling a Summer visitation in this paragraph, Father's plans shall have priority in even-numbered years while the Mother's plans shall have priority in odd-numbered years.
The Parents are allowed to travel with the Child during their parenting time. For any travel involving one or more overnight stays outside of the Tri-State Area (New Jersey, New York and Connecticut), the party traveling must give the other party a basic itinerary for the trip in advance, including destination, mode of transportation (and carrier where applicable) and the name, address and telephone number of the location(s) where the Child will be staying while traveling. In the event that a party is going to travel outside the United States the party traveling must give the other party, at least three weeks in advance, a basic itinerary for the trip, including destination, mode of transportation (and carrier where applicable) and the name, address and telephone number of the location(s) where the Child will be staying while traveling. The party traveling must also be provided by the other parent, at least three weeks prior to traveling, the Child's passport, and any other documents and/or written consent needed to be able to travel with the Child. With respect to the Child's passport, the parties agree to signing all the necessary consent form so as to always keep the Child's passport current. The Mother shall always hold the Child's passport but must deliver it to the Father if he wishes to travel outside the United States pursuant to the terms of this agreement.
Right of First Refusal : Should one parent not be able to watch the Child on their respective parenting time, such parent must first contact the other parent to give them the opportunity to watch the Child prior to hiring a nanny/babysitter/Grandmother.
Child's Information : Each parent shall be entitled to complete, detailed information from any pediatrician, general physician, psychiatrist or psychologist, dentist, consultant or specialist or any other health care provider attending to the Child for any reason whatsoever, and entitled to be furnished with copies of any reports given by such health care providers, or any of them, to the other parent. Both parents shall be included in any emergency contact information given to health care providers. The import of this provision is to keep both parents involved in and informed of the Child's health care, an especially important goal, as, during the Child's parenting time with one parent, for the well-being and safety of the Child, that parent must be knowledgeable of any health care issues being dealt with by the other parent concerning the Child. Both parents shall be entitled to all information concerning the Child's health insurance.
Each parent shall be entitled to complete, detailed information from any teacher or school or educational institution or after school or supplementary program giving instruction to, or providing extra-curricular activities for the Child, or at which the Child may attend, and to be furnished with copies of all reports given by them, or any of them to the other Party. Both parents must be listed on the Child's Blue Card at school.
Both Parties shall be listed as parents of the Child in reference to any application, registration or filing which may be filed by or on behalf of the Child in reference to education, hospitalization, and/or any other institutionalized activity.
Miscellaneous : If either parent has any knowledge of any serious illness or accident or other serious circumstance affecting the Child's health, education, or general welfare, that parent will promptly notify the other of such circumstance.
The Mother shall not relocate beyond a 20-mile radius from her current residence with the Child without the Father's written approval or court order.
Each parent shall provide the other with a current address and telephone number and will notify each other within 72 hours of any changes to this information.
Both parties shall have liberal, private and reasonable electronic/telephonic access with the Child when he is with the other parent.
During the COVID Pandemic, the parents are to safeguard the Child's health by providing him with masks/cloth face coverings, engaging him in frequent handwashing, and practicing social distancing, as required by government regulations.
Neither party shall insult or disparage the other party in the presence of the Child, nor permit third parties to do so. Parties are to encourage and foster a healthy relationship with the Child and both Parents.
The foregoing constitutes the Decision, Order and Judgment of the Court, which concludes this matter.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.