Opinion
V-174.
Decided January 18, 2011.
Joseph Zavaglia, Esq., for petitioner; Bryn Lovejoy-Grinnell, Esq., Frank H. Hiscock Legal Aid Society, for respondent; Laura Cardona, Esq., Attorney for the Children.
On August 10, 2010, J. L. ("the father") filed a family offense petition under Article 8 of the Family Court Act on behalf of the minor children C. S. A., L. D. L., and J. R. L. The father alleged the mother was guilty of reckless endangerment because she locked the children in a bedroom where a broken bulb from an overturned lamp caught fire and burned J's hand. He further alleged that the mother did not seek medical treatment and that he sought medical treatment the next day. He named E. L. ("the mother") as the respondent. A "type B" ex parte Temporary Order of Protection was issued on behalf of the children.
On August 13, 2010 the father filed a custody petition under Article 6 of the Family Court Act seeking modification/violation of the Order of Custody, dated July 14, 2010 concerning the minor children C. A., date of birth [redacted] 2003; L. L., date of birth [redacted] 2004; and J. R. L., date of birth [redacted] 2007. He named the mother as the respondent. His request for an ex parte order awarding him sole custody was denied.
On September 9, 2010, the mother filed a cross-petition seeking modification of the Order of Custody and naming the father as the respondent.
The proceedings were transferred to the Integrated Domestic Violence Court on August 14, 2010. Counsel was assigned to the father and to the mother and an Attorney for the Children was appointed. The family offense and custody matters proceeded to trial, and testimony was heard on October 27, 2010; October 28, 2010; December 3, 2010; December 6, 2010; December 10, 2010; December 13, 2010; December 20, 2010; and January 5, 2011. The Court conducted a Lincoln hearing on October 25, 2010 with C. and L. in the presence of the Attorney for the Children. Due to his age, J. R. did not attend the Lincoln hearing.
In accordance with Section 651 of the Family Court Act, the Court searched the statewide registry of orders of protection, the sex offender registry and the Family Court's child protective records and warrants. An existing Order of Protection and Temporary Order of Protection as well as a Child Protective Service "indicated report" were found against the mother. The attorneys for the parties and the child were notified in Court of the results of these searches and the results were factored into the domestic violence and parental fitness analyses in the custody decision.
BACKGROUND
On June 18, 2009, this Court signed a Judgment of Divorce in which the parents stipulated to joint custody of the minor children with physical custody to the mother and visitation to the father. On April 23, 2010, this Court presided over a post-judgment application by the father in which he sought to modify the physical custody provision to sole custody as he stated in his Supplemental Affidavit dated April 13, 2010 that the mother had denied him parental access and that he had taken a different job which allowed him to care for the children far more than he could before, including during the "normal" work day. On April 23, 2010, the parties and the Attorney for the Children agreed to a modification of the custody order so that the parents would have joint legal and shared physical custody. The Order provided for two-week rotating parental access on the following schedule, effective May 7, 2010:
The mother shall have the children from Friday at 5:45 pm until Monday morning when she will drop off the children at school and daycare.
The father shall have the children from Monday at 11:00 am when he will pick up J. at daycare and L. from school at 11:15 and C. at 3:15 pm until Tuesday at 5:45 when he will drop off the children at the daycare center where they will be picked up by the mother.
The mother will have the children from Tuesday at 5:45 pm until Wednesday morning when she drops them off at school and daycare.
The father shall have the children on Wednesday when the father picks up J. at 10:00 am at daycare and when he picks up the other children at the end of their school days until Thursday at 5:45 pm when he will drop them off at the daycare center where they will be picked up by the mother.
The mother shall have the children from Thursday at 5:45 pm until Friday morning when she drops them off at school and daycare.
The father shall have the children on Friday when the father picks up J. at 11:00 am at daycare and when he picks up the other children at the end of their school days until Sunday at 6:00 pm when the parties shall exchange the children at a public location agreed to by the parties.
The mother shall have the children from Sunday at 6:00 pm until Tuesday morning when the children will go to school and daycare;
The father shall then have the children from Tuesday morning at 11:00 am when he shall pick up the youngest child from daycare and pick up the other children at the end of school until Wednesday at 5:45 pm when he shall return the children to daycare;
The mother shall have the children from Wednesday at 5:45 pm until Thursday morning when she drops the children at school and daycare;
The father will have the children from Thursday morning at 10:00 am when he picks up the youngest child from daycare and the other children at the end of school until Friday at 5:45 pm when he shall return the children to daycare;
The mother shall have the children from Friday at 5:45 pm at which the 2-week rotating schedule shall begin anew.
The Order also detailed holiday visitation and contained additional terms and conditions.
FAMILY OFFENSE PETITION
At the conclusion of the father's case on December 13, 2010, the mother's attorney moved to dismiss the family offense petition and the custody petition. The Court denied the motion to dismiss the custody petition and granted the motion to dismiss the family offense petition for failure to state a cause of action. The Court found that the father did not meet his burden of proving the elements of reckless endangerment as defined in the Penal Law by a preponderance of the evidence. Accordingly, the Court dismissed the family offense petition with prejudice and vacated the Temporary Order of Protection.
VIOLATION PETITION
With respect to the father's violation petition, the Court finds that there is insufficient proof that the mother willfully violated the custody provisions of the current custody order. The Court finds that there is no pattern of denying the father access to the children; to the contrary, the mother voluntarily agreed to the shared parenting plan proposed by the father in April, 2010 when he sought to modify the divorce decree.
Although the evidence shows that she was late dropping off the children or picking the children up on many occasions, the Court also finds that these incidents were not willful in that the mother very credibly testified that she was under the impression that the father had agreed to modify the time schedule and on some occasions the distance of her work location to the drop off/pick up point would not permit her to adhere to the schedule in the current order. The Court notes that the current order is extremely complicated in its shared parenting schedule and does fault the mother, who was unrepresented by counsel, for agreeing in Court to a schedule that was unworkable given her work hours and the distance of her employment from the children's school or childcare location. The Court also faults the father for his unwillingness to work with the mother to overcome their difficulties. By his own testimony, the father has contacted law enforcement authorities on many occasions for matters that were not emergencies involving the children. What he seems not to have considered is the negative effect that exposing the children to police monitoring of a custody stipulation might have on his children.
The Court concludes that the mother did not willfully violate the parental access terms of the current order.
MODIFICATION OF ORDER
The Court finds that there is a need to modify the current custody arrangement as the evidence shows that the children, especially C., are demonstrating signs of stress and emotional upset under the current arrangement. In addition, the numerous calls to police made by the father concerning transfer of the children indicate that the parents are unable to communicate to the degree necessary for a shared custody arrangement. As the custody provisions in the current custody order as well as in the parent's divorce decree were stipulated, an analysis of the best interests of the children by the Court is now appropriate. The Court also notes that both parents agree that the custody order should be modified.
BEST INTERESTS ANALYSIS
In its analysis of the best interests of the child, the Court has examined a number of relevant factors. Friederwitzer v. Friederwitzer, 55 NY2d 89 (1982).
Although the parents stipulated to the current joint legal/shared physical custody plan, the weight to be given the existence of a prior custody arrangement depends upon the length of time it has been in existence and also on whether the arrangement resulted from a full hearing by a trial court or was the stipulation of the parties. The existing custody arrangement is of rather short duration as the current custody order was agreed to by the parties in April, 2010 in a Court proceeding in which the father had counsel and the mother was not represented. (Note: the Order was not submitted to the Court for signature until July, 2010.)
With respect to domestic violence, this Court finds that while the mother has been accused of acts of domestic violence against the father, her actions have not resulted in any criminal convictions. The Court takes judicial notice of an ACD granted to the mother by this Court in May, 2010 on a charge of Harassment in the Second Degree for violating the terms of an Order of Protection. The Court also takes judicial notice of a pending charge against the mother by the father who complained that on November 14, 2010 the mother "punched" his vehicle with her hand during the transfer of the children. In spite of the numerous calls the father has made to law enforcement concerning the mother, there is no credible evidence that she is a danger to the father or that he fears her. There is evidence that the children have witnessed these incidents and have been involved in the aftermath of the charges and allegations.
Although the mother has not sought an order of protection against the father, she testified very believably and graphically about physical and sexual abuse to her which occurred prior to the parties' separation and divorce. While there is no evidence that the father poses a current physical danger to the mother, it is the impression of this Court that she fears the father based upon her very credible testimony.
Accordingly, the Court finds that family violence has existed between the parents, but that the risk of future harm to the parents and children can be decreased or eliminated by a custody and parental access order with detailed, workable terms and conditions which minimize interactions between the parents.
The Court finds that each of these parents has flaws, but that neither parent is an "unfit" parent. However, as noted previously the children have been harmed by the parents' inability to behave in a civil and mature fashion when interacting.
The father shows no awareness that his hostility to the mother is damaging to the children. His testimony shows that he has been carefully preparing for at least a year to prove that the mother should not be the custodial parent. While the father's statements have a degree of truth, the Court finds that he has a pattern of exaggerating the mother's so-called deficiencies. For example, in his sworn family offense petition the father alleged that the mother "locked" the children in a bedroom in which a fire occurred and one of the children was burned. Yet in his testimony about the incident, he did not state that the children were locked in the room. He also implied that the mother was deficient in not seeking medical attention for their son J. whose hand was burned in the incident; yet when he took the child to the hospital, the medical staff treated the blisters on J's hand with burn ointment and a dressing, which is similar to the mother's home treatment. The Court notes that Child Protective Services "indicated" the mother for inadequate guardianship over this incident but did not seek to file neglect charges against her or advise the father to seek sole custody. In another investigation of the mother by Child Protective Services, the report of no food/improper living conditions was deemed "unfounded" although the mother was admonished to remove the excess clutter of the children's toys from her home.
The father also complained that he was turned away from medical providers at the time of the burn incident because the mother had let health insurance coverage lapse and because she owed medical bills. The mother showed proof of health insurance coverage for the children and testified credibly that she has been paying on certain overdue medical bills and will use her income tax refund to retire the final debt. She also credibly testified that the father does not obey the $160.00/week child support order and that she has been the sole support of the children although recently she received a check for $80.25 from the Child Support Collection Unit. She testified that the father last paid a co-pay for the children when they were still married. She stated that she has not contacted the Child Support Collection Unit or filed a support violation petition. This Court finds it outrageous that a parent who abdicates his financial responsibility toward his children complains about the other parent's medical debt restructuring. This also holds true for the father's complaints about the children's clothing. In passing, the Court notes that on the "emergency relief" page of the father's custody petition, in two places he seeks "relief of all support."
In addition, the Court is deeply suspicious about the origin of vulgar and threatening emails which the father claimed were sent by the mother. The Court finds the emails to be lacking in authenticity and also finds that they are a part of the father's campaign to thoroughly discredit the mother. In a similar vein, the Court does not believe the father's recent allegations that on November 30, 2010 he found a marijuana pipe in the pocket of his youngest son's coat at daycare and that his son told him he got the pipe from "mommy's purse." Although the father called the police, no charges were filed. The Court notes the credible denial by the mother that she was tested for drug/alcohol abuse at work in October, 2010 as a part of her promotion. The Court also places a strong reliance on the extremely credible testimony of the daycare teacher who stated that she would have noticed such a bulge in the child's lightweight coat when she helped the boy off with the coat and hung it up. Again, the Court strongly suspects that the father is attempting to place the mother in a negative position with the authorities and with the Court.
In contrast, the mother did not testify to the parental deficiencies of the father. Her testimony concentrated on a vindication of herself as a parent and also on what she has done as a parent and what she plans to do if she receives sole custody. She also stated that it was important for the children to have a relationship with the father. The Court notes that the facts show that the father has had a great deal of access to his children since the divorce in spite of his claims to the contrary.
The testimony shows that it is the mother who has taken the lead in providing health care support for the children. She credibly testified that the children are up to date with respect to immunizations and examinations and that she takes the children to the dentist. She also testified that she worked with the school and outside counselors to provide therapy for their son C. when he exhibited disturbing behavior at school and in the home, including taking Charles for emergency psychological treatment to C-PEP. The licensed school social worker testified very credibly that C. has caused disturbances on the school bus and in his first-grade classroom, including swearing, bullying, and talking of killings and shootings. The social worker testified that C. stated he "missed" his mother. The social worker testified that the mother obtained outside counseling for C. and she cooperated with her on a behavior plan for C.; when the worker contacted the father, however, he told her that he was too busy with work to get involved. She did state that later in the year, the father did "connect" with her. The social worker stated that she believes that the current visitation schedule is stressful for C. and that he does not get enough time with his mother. She stated that the mother was always concerned and supportive when she was called by the school. Therefore, the Court finds that it is the mother who has exhibited the appropriate concern for the children's educational and emotional development. ( Gugino-Toufexis v. Toufexis, 132 Ad2d 995.)
Although the father testified that he resides in the former marital residence with his current girlfriend, he also testified that he was terminated from his previous job with a transport company in June, 2010 and cannot drive a truck due to unspecified health reasons. He stated that he currently receives unemployment benefits. He stated that he is behind on his mortgage payment and also stated that his mother plans to move in with him. He stated that allegations in a recent support proceeding that he was "working under the table" were not true.
In contrast, the mother testified that she lives with the children in an apartment and has been employed with the same employer for the past 11 years as a sales representative. She stated that she recently received a promotion and now earns $19.51/hour. The mother provided credible testimony throughout this proceeding that she has been the primary financial support for the children since the parties' divorce. Accordingly, the Court finds that the mother can provide a more stable environment for the children. ( Fialkowski v. Fialkowski, 200 AD2d 668.)
In her closing remarks, the Attorney for the Children has recommended that the Court modify the current custody and grant sole custody of the children to the mother. She said that joint custody is not appropriate when the parents cannot get along, as evidenced by calls to the police and Child Protective Services. She also stated that the Court should consider the statements of the two oldest children who were present at the Lincoln hearing.
CONCLUSION
The Court finds that the testimony and proofs adduced at trial conclusively demonstrate that the parents do not interact civilly or communicate on a consistent basis. An award of joint custody is improper where, as here, the parents are so severely antagonistic and embattled that joint custody only enhances family chaos. ( Braiman v. Braiman, 44 NY2d 584.) Similarly, the parents have demonstrated that they are unable to cooperate to the degree necessary in a shared custody arrangement. Therefore, this Court denies the father's petition and grants the mother's petition and awards sole legal and physical custody of C. A., date of birth [redacted] 2003; L. L. date of birth [redacted] 2004; and J. R. L., date of birth [redacted] 2007, with parenting time to the father as contained in a separate Order of Custody and Visitation to be issued by the Court. Further, the Court believes that it is in children's best interests to minimize conflict between the parents through a parenting plan that minimizes the contacts between the parents.
Finally, this Court will take the unusual step of requiring the father to get the advance written permission of this Court prior to filling any legal proceeding in Family Court concerning custody or parental access. The mother testified very credibly that the father has filed a variety of petitions against her, and the Court takes judicial notice of these filings. She stated that she is the sole support of the children and is very concerned about the impact that time away from her job from repeated Court appearances may have on her continued employment. She also stated that her income is such that she does not usually qualify for assigned counsel. This Court has no intention of depriving Mr. L. from exercising his legal rights, but it appears that since his divorce he is conducting a thinly disguised campaign to eliminate his child support obligation. The Court has a duty to prevent the misuse of the justice system for such a purpose. ( Pignataro v. Davis , 8 AD3d 487 .)