Opinion
V-0000-00/00.
Decided December 17, 2007.
The matter before the Court concerns custody of two children, M., age 13 (d/o/b 00/00/00) and L. age 11 (d/o/b 00/00/00). M. and L. are the biological children of the parties herein, father W.S. and mother B.S. The current proceedings were commenced when the father filed a petition pursuant to Article 6 of the Family Court Act seeking a modification of an Order of Custody of the children after the mother relocated beyond the radius clause in their divorce stipulation. The mother subsequently filed her own petition.
The mother was originally represented by Heath S. Berger, Esq. of Steinberg, Fineo, Berger Fishcoff, P.C. That firm was relieved and the Court appointed the Nassau County Legal Aid Society to represent the mother. There came a time that Legal Aid requested to be relieved. In response to such Adam Small, Esq. was appointed for the mother. The father has been represented by Ilene J. Behar, Esq., of Hoffman Behar. William Sheekutz, Esq. was appointed law guardian.
The hearing on the issue of custody commenced on February 9, 2007 and ended on October 25, 2007 with multiple trial dates in between. There were also two in camera interviews with the subject children on April 18, 2007 and November 2, 2007.
BACKGROUND
Pursuant to a contented-to stipulation and the Judgment of Divorce the parties were divorced in 1998. As per the terms of their stipulation, the mother had sole custody of the two children and the father had certain rights of visitation. One provision of their stipulation was that the mother could not relocate outside of a fifty (50) mile radius with the children. Each party became involved with other long-term partners and each has had other children. The mother and her paramour, Mr. A.T., have been together approximately nine years and have two children out of wedlock. The father is remarried to T.S. and together they have one child. Each family unit lived in various areas of Queens and Long Island over the years until the mother moved, with her paramour, the subject children and her other two children to Pennsylvania on or about August, 2006. It is this move that has spurred the current litigation.
On September 15, 2006 the father filed a petition for custody of the two subject children. Despite being properly served with the custody petition, the mother did not appear in Court for over three court appearances. On the fourth court appearance, on December 21, 2006, the mother did appear in Court that morning, but then did not return to Court that afternoon, despite being told to do so by the Hon. Merik Aaron's court attorney. The mother claims her legal aid attorney informed her she could go home. As a result of her failure to return to Court on the afternoon of December 21, 2006, and the inability of the Court to reach her by telephone, Judge Aaron transferred custody of the subject children to the father. The father made arrangements for that order to be enforced in Pennsylvania, and on the next day, December 22, 2006, he obtained physical custody of the children in Pennsylvania and brought them to his home in New York. They have lived with him since that time.
During the trial each party called three witnesses. The father called himself, A.T. and Dr. Peter Favaro. The mother called herself, Probation Officer Sharne Wolfolk and T.S.
SUMMARY OF TESTIMONY PETITIONER'S CASE W.S.
The father testified briefly about the terms of his divorce and then about the mother's multiple residences since the divorce. According to his testimony the mother moved from Floral Park to Long Beach, then from one location in Long Beach to another location in Long Beach, then to Atlantic Beach before relocating to Pennsylvania. These moves took place within a four (4) year period of time, and the children were enrolled in the Floral Park, Long Beach, Lawrence, and Oley Valley school districts, respectively, during this time. He testified he was given no advance notice of the move to Pennsylvania which was over one hundred and forty miles from his home on Long Island. The father denies consenting to the move and confirmed the mother did not seek Court approval. After filing his custody petition, the mother did not show up for three court appearances. She then appeared on the fourth date but left in the afternoon. He gave the Court the mother's cell phone number but the mother's phone either was not on or she was not answering it. Judge Aaron then issued a temporary order of custody in favor of the father, which he brought to Pennsylvania and, with the assistance of the sheriffs there, obtained physical custody of his children. After bringing the children home, the father enrolled them in school and purchased new wardrobes for them. The children are involved in school activities including musical instruments. Mr. S. testified that the mother obtained visitation, but despite there being no provision for telephone contact, he allowed telephone contact anyway. However, these telephone conversations would often upset the children, so Mr. S. would listen in and also record the conversations. Mr. S. claims he informed the mother she was being recorded and asked her not to discuss the litigation with the children. The children were brought to a therapist and also to Dr. Peter Favaro for evaluation. Mr. S. then indicated to the Court what visitation he thinks the mother should have should he obtain custody, and, in the alternative, what visitation he would like should Ms. S. obtain custody.
On cross examination, Mr. S. testified he paid Dr. Favaro five thousand dollars for services including the possibility of testifying in court. Under the original divorce stipulation, Mr. S.'s visitation was twice weekly for a few hours each night. He did not have weekend, summer or vacation visitation at that time. At one time he brought a petition for visitation when Ms. S. moved from Floral Park to Long Beach. She did not inform him of where she was living in Long Beach and he went a period of time without seeing the children. The father testified the mother has always been a very good parent, a very loving parent and the children love her very much. Under further questioning he referred to the mother as "a great mother" as she encouraged them to thrive, got them involved in playing musical instruments and helped them become educational standouts. He acknowledged that prior to the move to Pennsylvania, he had no complaints at all with the mother's parenting, though he wanted an expanded relationship with the children. Regarding their happiness he said "They were happy. I wasn't happy with the living arrangements but they were happy." T. 2/9/07, p. 44, lines 13-14. Mr. S. further acknowledged that his original intent in bringing a petition to the Court after the Pennsylvania move was to have extended visitation. When asked if he wanted custody or expanded visitation he responded "What I want is the best for the children, that's what I'm looking for." T. 2/9/07, pp 47 and 48, lines 25 and 1.
Upon questioning by the law guardian, the father recounted an incident with the mother's paramour Mr. T. where, during a pick up of the children, Mr. T. drove directly at Mr. S.'s parked car and slammed on the brakes, almost hitting the car. Mr. T. began yelling at Mr. S., demanding child support money. The children witnessed this. He also testified to hearing the children on the phone with their mother and their mother encouraging the children to tell the judge they want to live in Pennsylvania.
During redirect, Mr. S.'s contact with Dr. Favaro was explained further. He said "The purpose of going to Peter Favaro was, my main concern was if I was making the right decision based on what the children wanted of whether they wanted to be with me or their mother. . .I wanted a further explanation if I was making the right decision. . ." T., 2/9/07, p. 54, lines 12-15, 18-19. Mr. S. further testified that while the visitation periods in the divorce stipulation were limited to two week nights, the stipulation also indicated "liberal visitation". Also, Mr. S.'s parents were providing child care and he saw the children often. The father then expanded on the incident in 2002 when the mother moved from Floral Park to Long Beach but did not inform him. He stated he originally filed papers in Supreme Court but the matter was referred to Family Court. In Family Court the mother then filed her own papers stating she found a crack vial in her daughter's coat and that Mr. S. was a crack addict. Her allegations resulted in supervised visitation and multiple drug tests. The end result of those proceedings was visitation was reinstated in its original form. Mr. S. testified that he and Mr. T. have had verbal confrontations where Mr. T. has called Mr. S. a bad person, stated that Mr. T. is the one raising his children, stated that he (Mr. S.) commits fraud, and stated that his children will look at him differently. These conversations happened more than once.
The Court had the opportunity to observe Mr. S. under direct and cross examinations, as well as during the course of the hearing. The Court found Mr. S.'s testimony credible and forthcoming. Nothing that occurred later in the trial in any way impugned Mr. S.'s credibility.
The next date for testimony was May 18, 2007. Adam Small, Esq. appeared on behalf of Ms. S. After the February 2, 2007 court date, Mr. Berger was relieved by Ms. S. Ms. S. was then appointed legal aid who then asked to be relieved. Mr. Small was appointed. While on the record on May 18, 2007, Mr. Small acknowledged he was not present for the first date of testimony. The Court was prepared to declare a mistrial and start the hearing over. Mr. Small indicated that was not necessary and he was not asking for a mistrial. The case therefore continued.
Dr. Peter Favaro
Dr. Peter Favaro testified about his lengthy and impressive credentials. Without objection, he was qualified as an expert in custody disputes and child psychology. Dr. Favaro was contacted by Mr. S. in January of 2007 and was retained for five thousand dollars. When asked what he was retained for, Dr. Favaro stated "Mr. S. first and foremost wanted my opinion as to the psychological and emotional well being [sic] of his children, and whether or not a professional person thought that it was in their best interests for the children to continue living with him while he was struggling through some conflicts with the mother of the children." T. 5/18/07, p. 18, lines 9-14. Dr. Favaro never spoke with Ms. S. Dr. Favaro stated that Mr. S. fared well during psychological testing except for seeming to place himself in a more favorable light, but qualified this by stating that this was typical in high conflict family law matters. Regarding the children, Dr. Favaro was quite impressed with them and felt they were sound psychologically and emotionally. The children informed him they wish to live with their mother. It was Dr. Favaro's opinion that these children would thrive with either parent, though they might not find living with their father "ideal".
The Court found Dr. Favaro credible, though the bulk of his testimony was of limited relevance. He did confirm the father's stated purpose of only seeking what was best for his children. That was the father's "primary concern". He also claimed to have heard tapes of the children's phone conversations with their mother where the mother had put "a substantial amount of pressure" on the children to say to others they didn't want to live with their father. However, due to Ms. S.'s failure to take part in the evaluation (which was her absolute right), the majority of the information Dr. Favaro had was based on what Mr. S. alone told him. Without having Ms. S. state "her side" to Dr. Favaro, his opinions on all issues other than his evaluations of the father and children themselves is of questionable use. That being said, the Court hopes the parents heard Dr. Favaro's sobering discussion on the effect high-conflict parenting situations have on children, particularly young women, including higher risk of emotional difficulty, educational difficulties, substance abuse problems and teenage pregnancy.
A.T.
The father's next witness was A.T., the paramour of B.S. On direct examination Mr. T. testified he and Ms. S. purchased the Pennsylvania house at the end of July, 2006. Though the deed and mortgage are in Ms. S.'s name, Mr. T. said he paid the down payment. He described his employment as vice president of sales for a specific company. When asked about his income he first stated "A base salary of under $100,000." T. 5/18/07, p. 64, line 17, but then stated his base salary was $75,000. He doesn't earn commissions, but expects bonuses. Ms. S. does not work outside the home. Mr. T. then testified about the multiple residences from Floral Park to Long Beach to Atlantic Beach to Pennsylvania. He indicated he and Ms. S. never married, by choice. They have lived together for about four years. Mr. T. refers to the subject children as his own children, repeatedly, but acknowledges he is not the biological father. The children sometimes call him "Dad" or "Daddy" and he does not discourage this. He is honored by it. Mr. T. described himself as a disciplinarian but denies any corporal punishment. Ms. S. is his "soulmate". Mr. T. denied having an altercation with Mr. S. where he drove up to him, slammed on the brakes and demanded child support money. There was an incident in a doctor's office where he became upset but he did not raise his voice or get into anyone's face. He also acknowledges becoming loud with the law guardian in this case, but not abusive. Further, he acknowledged calling Mr. S. a bad person and leaving a message on an answering machine warning the children not to let Mr. S. give them drugs. He told others, but not the children, he is a better father than Mr. S. He continued to refer to the children as his children:
Q. You keep referring to them as your children. They are not your children.
A. Who elected who said that?"
Q. They are not your children, are they sir?
A. They are my children. I have been with these kids for eight years, for the last eight years I have provided food, clothing, shelter, vacation, camp, karate, chorus, instruments. You want me to continue, because if I think there have probably another [sic] five hundred things, and if that is not what a nurturer and someone who cares for children does . . .
T. 5/18/07, p. 84, lines 12-22.
On cross examination Mr. T. testified he and the mother have been in an relationship for nine years and has been living with the mother and the children for four to five years. His relationship with M. is "phenomenal, tremendous". As an example, he helped M. get over her fear of dogs. He taught L. how to swim, how to ride a bicycle, about good and bad music. They discussed the news and music together, and he would regularly bring both children to, and pick them up from, school. On occasion he would assist with homework, though Ms. S. did that most of the time since she was a teacher. L. was involved in a number of school programs including Odyssey of the Mind, student council and violin lessons. While living in Long Beach, Mr. T. got both girls involved in karate. L. is an exceptional student and Mr. T. and Ms. S. had her tested to determine how gifted she was. Mr. T. paid for these tests, and it cost about ten thousand dollars.
Upon questioning by the law guardian (on the next court date), Mr. T. acknowledged Mr. S. is "100 percent the biological father". When asked what role Mr. S. should play, he said: "Oh, any. I welcome any role that, you know, a father should play the father role I play for my two children, Sophie and J." T. 7/26/07, p. 7, lines 19-21.
On re-direct examination, Mr. T. stated he, personally, never informed Mr. S. of the following things: that he taught L. how to ride a bicycle, concerts that the children participated in, about the Odyssey of the Mind program, that he took L. for psychological testing regarding her educational abilities, of whether the children should attend karate and when the karate sessions were or any other activities. He did believe Ms. S. talked to Mr. S. about some of the activities. He spent part of Father's Day, 2007 with the children. He has called CPS on the father three times since December 21, 2006 when custody was transferred. Mr. T. acknowledged that Mr. S.'s rights are superior to his.
The Court had the opportunity to observe Mr. T. on three separate hearing dates. The Court found Mr. T. to be of questionable credibility. The Court believes that Mr. T. was untruthful on a number of occasions. He was evasive, belligerent and rude. Despite repeated directives to listen to, and only answer the question asked, he continued to give non-responsive answers, instead choosing to state things he wanted say. His testimony spanned three court dates and despite being told on each court date repeatedly to confine his answers to the questions asked, he refused.
After Mr. T.'s testimony concluded, petitioner rested.
RESPONDENT'S CASE B.S.
Ms. S. testified she moved to Pennsylvania in early August, 2006. She stated the reasons for the move were:
I wanted to provide all my children with a better quality of life. I wanted to be able to give all their own rooms. I wanted to make sure the schools system was full of activities and programs for them. And I wanted to make sure they had a yard and just a beautiful community where they could have friends and I don't have to worry about them visiting their friends and basically just wanted to give them a [better] childhood.
T. 7/26/06, p. 25, lines 2-9.
She first told Mr. S. she wanted to move in May, 2006. His only expressed problem was having to drive for visitation, so she agreed not to make him do the driving. They had approximately three phone conversations about the relocation. His first reaction was he was happy for her. The second conversation, when she told him they had bought the house, he was nervous about the driving. Prior to that she had asked him to increase child support because she felt she could no longer afford New York. He refused. At one point they discussed making the move and visitation arrangements legal and Mr. S. was going to fax her papers, but never did. Ms. S. agreed she would drive the children most of the way for visitation and Mr. S. would only have to drive about thirty-three miles. The children lived with her from birth until December 21, 2006. Prior to December 21, 2006 she was primarily responsible for the children's medical and educational needs. She would inform Mr. S. of medical and educational issues. Regarding school activities, she would have the children call him and inform him. They shared responsibility for purchasing clothing, with Mr. S. taking the children shopping at the beginning of each school year and Ms. S. taking care of the clothing requirements during the year. Ms. S. purchased the school supplies. The children played musical instruments as well. They enjoyed their school and friends in Pennsylvania and were doing very well in school. Ms. S. testified she always stressed the importance of education to her children. From her perspective, Mr. T. and the subject children have a wonderful relationship, as do the subject children with their siblings who are the biological children of Ms. S. and Mr. T. Since living with Mr. S. the children have gotten sick often, requiring antibiotics, and Ms. S. could not remember ever having to give them medication previously. On the December 21, 2006 court date Ms. S. claims her then legal aid attorney told her she could go home after the lunch break, which is why she left.
On cross examination Ms. S. testified that she has a number of family members who live in New York, including her mother and siblings. When Ms. S. was living in New York with the children, they saw members of her family, including her mother often. During the time the children were in Pennsylvania, no members of Ms. S.'s family saw the children. Mr. S. also has family in New York, including his parents as well as two cousins of similar age to the subject children with whom they are close and see often. Regarding court dates she missed, Ms. S. testified she wanted to testify electronically for one and did not get notice of another. She denied ever telling the children to tell the law guardian that they wanted to live with her. Despite the fact that an affidavit she signed described the prior court proceedings as "comical" she claims that was a word her lawyer chose and not her opinion.
The cross examination continued on the next court date. Ms. S. testified that after her legal aid attorney told her she could go home on December 21, 2006, she did not confirm that with the court attorney. She did not remember if, after leaving Court on that day, she left her cell phone on or whether she had any messages when she returned home to Pennsylvania. Since 1998 to the present time, the children have been in four different school districts. Ms. S. acknowledged never seeking court approval to move to Pennsylvania but claimed she did discuss it with Mr. S. prior to the relocation. She denied telling the children not to tell their father about the move. Regarding the purchase of the new home, Ms. S. believes she went to contract and had a closing on the same day. The house and mortgage are in her name alone. The children lived in Pennsylvania for about five months. Ms. S. denied telling the father that if he wanted to visit with the children he would have to drive part of the way. Despite signing an affidavit that referred to Mr. T. as "volatile", she denied he was. She further denied a number of allegations concerning Mr. T. threatening Mr. S. However, Mr. T. has been "more a father" to the children than Mr. S. ever was. If Ms. S. obtains custody of the children, she believes Mr. S. should have alternate weekend visitation. Upon further questioning, Ms. S. denied putting pressure on the girls to say they wanted to live with her but then testified she couldn't recall the content of some of the phone conversations she had with them, including whether she told them to write their feelings down on paper. The issue of Father's Day, 2007 was raised again, and Ms. S. claimed Mr. S. had the children for "half the day" because he got them at 5:00 p.m. The Court the inquired about previous Father's Days:
THE COURT: What years has he not had the girls for Father's Day?
THE WITNESS: It is not in the divorce agreement.
THE COURT: What years has he not had the girls for Father's Day?
THE WITNESS: He never had them. He never asked.
THE COURT: Not if he asked. Has he ever had them for Father's Day?
THE WITNESS: No.
T. 8/22/07, p. 36, lines 12-22.
Ms. S. acknowledged that during a previous proceeding, a number of years ago, in response to Mr. S. claiming his visitation was being interfered with, she accused him of being a drug user. This resulted in Mr. S. having supervised visits for a period of time. However, Ms. S. acknowledged that she made no allegation about his drug use until he brought her to Court alleging interference with visitation. She stated she kept Mr. S. informed of the children's events. She testified she had a tape recording of Mr. S. acknowledging that he agreed to let her move to Pennsylvania but then changed his mind. However, she did not bring that tape to Court during this (or any other) Court date. Ms. S. was unwilling to state Mr. S. was a good father. "Based upon past experiences, I would say he has not really been in their lives long enough to make that assumption." T. 8/22/07, p. 56, lines 11-13.
On being questioned by the law guardian, Ms. S. said that Mr. T. was not the children's "real father" but he had more quality time with them "by choice". The children have reported problems to their mother since living with the father, such as strep throat, a viral infection, "chronic symptoms" and trouble using the bathroom. They also report problems with Mr. S.'s wife Tanya who is "disrespectful" to them and is also "embarrassing". Tanya doesn't treat her baby properly, doesn't feed him properly, doesn't care for him properly. She also dresses inappropriately, including walking around the house in a thong. If given custody, the mother said she would home school L.
Upon redirect, which commenced on a new court date, Ms. S. claimed the children told her that since the last court date Mr. S. had told the children if they write down the reasons why they wanted to live with their mother, he would let them do so. The children "frantically" started writing the letters, but then Mr. S. reportedly told the children to forget about it, he was "just feeling emotional".
The Court had the opportunity during direct and cross examinations, as well as during the course of the hearing, to observe the demeanor of Ms. S. The Court finds Ms. S.'s testimony barely credible. Her statements were self-serving in the sense that she accepted blame for nothing. Missing court dates, visitation problems, Father's Day issues all were someone else's mistakes, not hers. Her testimony tended to contradict itself and her memory was selectively porous at times. The Court had a hard time believing much of what she said.
Probation Officer Sharne Wolfolk
Officer Wolfolk appeared via subpoena from the respondent. She has been a probation officer for three years and is currently in the criminal division. Prior to being in the criminal division she was in the family division where she did investigations in custody, visitation, PINS and juvenile delinquency matters. She has completed approximately three hundred Investigation and Reports ("I R"). The parties in this case signed a stipulation, dated February 9, 2007, agreeing that the Nassau County Probation Department would perform an I R in this case. The stipulation was moved into evidence without objection. As part of her investigation, she met with the parties, Mr. T., MS. T.S. and the children. She also performed "local criminal clearance investigations" and local CPS investigations on the adults. None of the investigations indicated any criminal or CPS history for any of the people investigated. Officer Wolfolk testified that Mr. S. told her he would have probably consented to the relocation had Ms. S. discussed it with him first. He also told her the children were angry at him for removing them from their mother's custody. Ms. S. said Mr. S. had a drug problem during the marriage. Mr. S. denied this. The children told Officer Wolfolk they were uncomfortable with T.S., that she dressed inappropriately by wearing a t-shirt and thong, and she would yell at them. The children have a good relationship with Mr. T. and they miss their siblings J. and S. Officer Wolfolk did not believe, based upon her investigation, Mr. T. was a danger to the children. A home study was performed in Pennsylvania and the home was adequate. The children indicated they would like to return to the custody of their mother and have visitation with their father.
During cross examination Officer Wolfolk stated she had never seen Ms. S.'s home in Pennsylvania but that she personally saw Mr. S.'s home and it was sufficient. Officer Wolfolk only spoke with Mr. T. for one half hour and never saw him together with Ms. S. She did see Mr. S. and T.S. together and believed they had a good relationship. Officer Wolfolk spoke to the children, together, for approximately fifteen minutes and didn't speak to their teachers, therapist or grandparents. Neither Mr. T. nor Ms. S. were able to have criminal clearances performed in New York State (as opposed to Nassau County only) because they did not have themselves fingerprinted. Therefore, their criminal history in New York is not known. Officer Wolfolk agreed that Mr. S. never said he definitely would have consented to the Pennsylvania move if told beforehand, but that he would have considered it. According to Officer Wolfolk, probation did not find any compelling reason to change the original custody order granting the mother custody.
During questioning by the law guardian, Officer Wolfolk clarified the criminal clearance testimony. She testified that Mr. T. and Ms. S. could only have local criminal clearances performed since she never received their fingerprints. She did not know why she never received their fingerprints. She denied that the children were "extremely unhappy" living with their father, but would prefer to live with their mother. She did not believe the children were coached when they spoke to her.
During redirect, Officer Wolfollk stated that Ms. S. told her she tried to contact the person who does the fingerprinting more than once, but was never able to get in touch with him. Officer Wolfolk eventually learned that the person who did the fingerprinting had retired and "no one was doing fingerprinting at the time." The children were "stressed" because they were having trouble making friends at school and they missed their mother and siblings in Pennsylvania.
The Court notes that Officer Wolfolk's information was current as of May, 2007. The Court found Officer Wolfolk credible and did not believe her to be biased toward or against either party.
Tanya Berman Said
(The Court shall refer to this witness as "MS. T.S." to differentiate her from "Ms. S.", the respondent). T.S. married W.S. in 1999. The children learned they were married after the ceremony. They were married in Las Vegas, not necessarily on a whim but it wasn't planned. She didn't remember the children's reaction to the news, but noted that they were young at the time. She has one child with Mr. S., a boy who was fourteen months old at the time of her testimony.She is a stay-at-home mother and has a housekeeper/nanny who started assisting her when the baby was around one year old. The helper comes in a couple of times per week and does cleaning and, when necessary, watches the child. But her primary purpose is to clean the house. The helper never watches the subject children alone. Ms. T.S. and Mr. S. separated for a period of approximately one year a number of years ago, but after the marriage. "We just needed to just grow up a little bit. We got married pretty young, so we just needed some time apart." T. 10/25/07, p. 78, lines 13-14.The separation was not the result of any drug use by Mr. S. Mr. S. saw a mental health provider, but it was her therapist and he came along with her. She has introduced the subject children to others as her children and also as her stepchildren. She has cursed in front of the children after being hurt. She also once called L. a "bitch". It happened a few months after custody was transferred. The baby was cranky and Ms. T.S. was driving L. somewhere but had to stop at a store to buy her pants. L. was insisting on specific kind of pants and shoes. "And L. was just very rude to me, and it just happened it just came out of my mouth. It's the first time and the only time and the last time I've ever called her that." T. 10/25/07, p. 85, lines 15-18. MS. T.S. acknowledged it's not an appropriate way to speak to a child. She testified that L. can be difficult: "She is a little genius. She's very smart and sometimes she's a little smarter than I am when it comes to certain things and she's very quick and she's she's a wonderful child . Sometimes our personalities just clash." T. 10/25/07, p. 86, lines 12-15. MS. T.S. has not spoken to the children's teachers, guidance counselors or any school personnel. She stated this was because Mr. S. did not want her to. Mr. S. disciplines the subject children and does the cooking. The children tell her their mother is a better cook. She bought some cookbooks to get better. She has not spoken to the girls about the litigation, or the cost of Mr. S.'s lawyer. She admits the children have complained about the clothing she wears, stating her cleavage shows too much and her skirt is too short. She denied ever walking around the house in a thong. She was shocked when custody of the girls was transferred to Mr. S., and acknowledged it wasn't something she necessarily wanted. Prior to the transfer of custody Mr. S. was not "thrilled" with the visitation arrangements and wanted to see the girls more often. She now spends more time with the girls than Mr. S., though he takes M. to school each morning and takes L. to school some mornings. He cooks the girls' breakfast, makes their lunch and drives M. to school "because she insists on being driven." He sometimes walks L. to school. Mr. S. returns home from work between the hours of 5:00 p.m. and 8:00 p.m. Sometimes he works on weekends, but does that when the subject children are with their mother. Ms. T.S. and Mr. S. have lived in four different homes together since being married. The girls don't require help with homework often because they are smart, but when they do she helps them. Originally, the girls didn't like Merrick, but now they enjoy it. The girls appear happy to her. "They're happy. We go shopping, we have lunch together, we eat dinner together as a family, and we all play with junior, and they play with Chloe. Chloe is our dog. And they're smiling, they're happy." T. 10/25/07, p. 95, lines 22-25. MS. T.S. describes her current relationship with the girls as "very good."
During cross examination, Ms. T.S. testified she often walks L. to the bus stop, and that when the girls come home from school they all prepare lunch together. Sometimes they prepare dinner together, too. The girls will tell her what they want and they prepare it. When the girls are not with their mother, Mr. S., Tanya and girls eat dinner together six nights a week. Mr. S. sometimes does homework with them, and he tucks them into bed at night. They all go clothing shopping together. When not with their mother, the girls see their cousins almost every weekend. She and Mr. S. have attended the girls' concerts together. After calling L. a bitch, Ms. T.S. apologized to L. "for the whole week."
During questioning by the law guardian, Ms. T.S. stated she believed the girls' biggest problem with her was her cooking. They say it doesn't taste good. Maybe twice a week they have disagreements. T. gives her son candy and soda at times and the girls tell her it's not appropriate.
The Court had the opportunity to observe T.S.'s demeanor and appearance during direct and cross examinations. The Court found T.S.'s testimony quite credible, if not the most credible of all the witnesses. She was the only witness who freely acknowledged her faults and mistakes. She was very candid regarding her surprise when the girls suddenly came to live with her and in admitting it wasn't what she wanted at the time. The Court believed her and did not believe she tried to hide anything during her testimony and was never evasive.
IN CAMERA INTERVIEWS
The Court performed two in camera interviews of the subject children. The children were more expressive in the first interview than in the second. Their disposition in the second interview was more negative. The Court will not reveal the substance of these interviews, except to note that, as the law guardian repeatedly indicated during the trial, they stated, emphatically, they wished to return to living with their mother.
DISCUSSION
If not for the children's stated desire to return to their mother, the Court's decision in this matter would be simple and clear. Custody to the father and parenting time to the mother. The Court believes the mother and her paramour have undermined the father's relationship with the children and sees no reason why that would stop should she be the custodial parent. The father, on the other hand, seems to put the children's best interests first and was willing to give up custody for that reason. He would foster an ongoing relationship between the mother and the girls. The Court is not convinced Ms. S. would reciprocate. As proof, Mr. T. has regularly and publicly shown contempt for Mr. S. and Ms. S. has done nothing to prevent this from happening. Father's Day is another example. When asked why Mr. S. did not have his children with him for previous Father's Days, her response was that it wasn't in their agreement and he didn't ask. A mother who wished to foster a healthy, loving relationship with the children's father would not need to check (or rely upon) an agreement or be "asked" if the children should be with their father, as opposed to her paramour, on Father's Day.
In essence, this is a relocation case. While it is different from most in that custody was actually changed to the non-relocating parent prior to the trial, the analysis is the same. The issue of relocation is to be considered depending upon the facts of the particular case and what is in the best interests of the children. Tropea v. Tropea, 87 NY2d 727 (1996). In determining whether to allow a relocation, the Court must consider a number of factors including, but not limited to: the reasons in favor of and against the relocation, the quality of the relationships between the children and the custodial and non-custodial parents, the impact the move would have on the relationship and future contacts with the non-custodial parent, the extent to which the children's and custodial parent's financial, emotional and educational needs will be enhanced by the move, and the feasability of preserving a relationship between the children and the non-custodial parent should the move be allowed. Id. The Court must determine, based upon these and other factors, whether it has been established by a preponderance of the evidence that the relocation would be in the children's best interests. Id.
Regarding the financial, emotional and educational benefits of the move, the mother failed to present even a scintilla of evidence, outside her own self serving statements, in support of the notion that her new community was in any way superior to that which she left behind in New York. For example, the mother repeatedly referred to a program L. is currently involved in called Odyssey of the Mind. But it was never explained whether the school district in New York where they previously lived offered any similar programs. To the contrary, the testimony all indicated the children have always been excellent students and that they thrived in their schools in New York and Pennsylvania. Aside from the one program, the Court learned nothing else about the Pennsylvania school which would distinguish it from the school the children attended prior to moving, or that they now attend in the Merrick School District on Long Island. The Court was provided with no rankings showing where the Oley Valley School ranks in Pennsylvania, as opposed to the rankings of any of the school districts the children have attended in New York.
The Court must also take into account the mother's and Mr. T.'s constant moving, resulting in the children living in five different homes and four different school districts in a period of approximately four years. See Persaud v. Persaud, 170 AD2d 763 (3rd Dept. 1991). The Court finds the constant moving relevant for a number of reasons. The first is that the moving certainly added a degree of instability into these young girls's lives, jumping from residence to residence, at a rate of about one per year. The second reason is that, despite the mother professing her love for her current residence and community, the Court has no confidence that the pattern of moving will stop. The third reason is the lack of explanation for, and the Court's inability to understand, Ms. S.'s and Mr. T.'s motivation for moving the children into and out of so many school districts when they are both such gifted students. Constantly having to change schools certainly cannot be an enhancement of the educational experience. It is also a detriment to the children's ability to obtain those skills needed to foster sustaining and long lasting friendships with peers. In this line of reasoning, the Court is aware that, during the trial, it was pointed out that Mr. S. also moved somewhat regularly in his life. However, during each of his moves, he did not have custody of the subject children and was not uprooting them; just himself and his wife. There is nothing in the record to indicate Mr. S. would introduce this level of instability into the children's lives.
In Moorehead v. Moorehead, 197 AD2d 517 (2nd Dept. 1993), the Court discussed the importance of stability in children's lives. One of the holdings of that case was that maintenance of the status quo in children's lives, while not determinative, is a factor to be considered in custody matters. Unfortunately for these children, the status quo has been the constant changing of their living arrangements and schools. The Court believes the father would return stability of home and education to the children's lives.
Further, there was no evidence supporting the allegations that, for financial reasons, the mother was unable to afford to live in New York. The mother and her paramour testified that Mr. T. is the children's sole support in Pennsylvania. However, Mr. T. was vague about his income and employment and provided no support for that about which he testified. Mehaffy v. Mehaffy, 23 AD2d 935, 937 (3rd Dept. 2005), ("Although the father testified that his relocation plans were motivated by employment and financial considerations, he introduced no financial documentation or evidence regarding his existing employment or financial status to support finding a financial need to relocate and merely asserted that he had unspecified construction work "lined up in the new location"). The mother presented no evidence of what her expenses were while living in New York, and what they are now that she lives in Pennsylvania.
The financial issue raises another concern for the Court. It was clear from the testimony of Mr. T. that he was purposely evasive about his income, and it was equally clear that Ms. S. is somewhat ignorant of the family's finances, perhaps purposely so. For reasons that were never explained, despite the fact that Mr. T. is the family's only breadwinner, the family's assets testified to have been placed in Ms. S.'s name, including the house in Pennsylvania as well as the mortgage. Ms. S. and Mr. T. both testified that the move to Pennsylvania was necessary for financial reasons, yet Mr. T. boasted to spending ten thousand dollars on psychological and educational testing for L., not to mention over one hundred dollars per hour for horseback riding on Father's Day. These are contradictory notions that lead the Court to believe Mr. T. was hiding aspects of his finances and income. It appears to the Court that while the children were in the S./T. house, it is possible that they were being raised in an atmosphere of financial deceit.
There was also no proof that the move would enhance the girls' emotional stability. Dr. Favaro indicated, in his professional opinion, that the girls were currently in great emotional and psychological health. He further testified they would thrive in either parent's home.
One issue the Court found extremely persuasive was the children's connection to family members on both sides. Many live in New York while none live in Pennsylvania. This is an issue of great importance that this Court will not overlook. See Meier v. Key-Meier , 36 AD3d 1001, 1003 (3d Dept. 2007) (where relocation was denied because, among many other reasons "presence of extended family on both sides here in New York. . ."), Heisler v. Heisler , 30 AD3d 321 (1st Dept. 2006) (where relocation was allowed and the mother's "motivation to return to her roots in Baltimore, approximately three hours away, where there is a family environment offering greater emotional and financial support for raising the child, should not be discounted".), Zammit v. Novellino , 30 AD3d 534 (2nd Dept. 2006) (where relocation was disallowed because the father did not have a better job or home awaiting him in new location and he "did not have a large extended family to assist him there, as he does in New York."). Herein, the children have extended family, including grandparents on both sides, in New York. As opposed to seeing them regularly when everyone lived in New York, Ms. S. testified that during the five months the children lived with her in Pennsylvania they did not see members of her extended family once. On the other hand, Mr. S. testified the children see their cousins, with whom they are very close, every weekend they spend in New York. In Schreus v. Johnson, 27 AD3d 654 (2nd Dept. 2006), the Court allowed a relocation and one of the factors considered was that the father, the custodial parent, was moving to Florida near the maternal grandmother. Herein, Ms. S. moved away from the extended family members. It may be stating the obvious that closeness to extended family is in the children's best interests.
The Court finds that the children have a good relationship with both parents and believes the move will impact on the relationship with whomever the non-custodial parent will be. Clearly, there can be no midweek visitation with a distance exceeding a two-plus hour drive between the two residences. However, as this Court cannot force the return of a parent to Nassau County or its surrounding area, lack of midweek visitation, while not insignificant, will be made up through the parenting schedule. See Tropea, supra, Wisloh-Silverman v. Dono , 39 AD3d 555 (2nd Dept. 2007). Due to the Court's belief that the move will effect the non-custodial parent's relationship with the children regardless of whoever that is, this particular Tropea factor did not persuade or dissuade the Court to rule in favor of either party.
One of the issues the Court was most concerned about throughout these proceedings was the mother's paramour, Mr. T. Mr. T. was openly hostile not only to Mr. S., but to Mr. S.'s parentage. Mr. T. regularly referred to the subject children as his children. He created a hostile relationship with Mr. S. and had no problem letting the children see this. On one occasion, in the children's presence, he screamed at Mr. S., demanded Ms. S.'s child support money and was physically aggressive. Mr. T. stated that Mr. S. was a bad parent and a bad person and had no problem expressing this opinion to Mr. S. as well as others. The fact that Mr. T. very clearly dislikes Mr. S. is not the problem. The problem is he would not hide this opinion from the children. In a case of extreme brashness and parental entitlement, Mr. T. left a message on Mr. S.'s answering machine for the girls telling them not to let their father give them drugs. Such a statement was meant to undermine the father's relationship with his children and also may have planted in the children's minds that their father was a drug user, something for which no evidence whatsoever was presented. Mr. T.'s demeanor during this trial, the statements he has made, his actions toward Mr. S. all indicate his desire to ensure the girls do not respect their father. Add to this the three (3) CPS allegations made by Mr. T. against Mr. S., all of which were unfounded. It is likely these actions were intended to harass Mr. S. The Court is at a complete loss how a man with two children of his own could be so disrespectful toward another father, and at a greater loss as to how Ms. S. allowed this behavior and atmosphere to flourish.
Awarding Ms. S. custody would, in the Court's opinion, be placing the children in an environment which is hostile to their father. The Court could try to issue directives describing what behavior would be inappropriate in front of the children, but the mother has made it clear she does not honor court orders. This entire case began because the mother ignored the clear and specific terms of her divorce stipulation indicating she could not move outside of a fifty mile radius without written consent of the father or a court order. She sought and received neither, yet moved one hundred and forty miles away. The Court absolutely believes that the father was not aware of the move prior to its occurrence and also believes that, after the move, the mother dictated the terms of his visitation. This opinion is buttressed by the mother's complete disregard of the procedures and dictates of this Court during the early part of these proceedings. Her refusal to come to multiple court appearances indicates her failure to take the proceedings seriously. But to appear in Court on the morning of December 21, 2006, be told to come back in the afternoon and instead decide to leave before the afternoon session is indicative of a lack of respect for the Court and unadulterated hubris. Her story that a lawyer told her she could leave, even though the Court told her to come back, is simply impossible to believe. Further, her inability to explain why, after she left, she was unable to be reached on her cell phone adds to the Court's belief that this story is a total fabrication. Of course, the Court cannot know for sure why she chose to leave and make herself unreachable, but the Court is certain it has to do with her and Mr. T. finding the court proceedings nothing more than a nuisance right up until the moment the children were removed from their custody. And even then, problems persisted with getting them fingerprinted, their behavior toward attorneys involved in the case and still more missed court dates. All of which leaves the Court with the impression that neither Ms. S. nor Mr. T. would find an order of this Court something with which they needed to comply.
It is of paramount importance to this Court that these children have the benefit of a close relationship with both parents. It is clear the father is much more likely to foster an ongoing relationship between the children and their mother than Ms. S. would with the father. Green v. Gordon, 7 AD2d 528 (2nd Dept. 2004). To foster a relationship with the other parents requires the custodial parent to put the children's needs first. Lohmiller v. Lohmiller, 140 AD2d 497 (2nd Dept. 1988). Mr. S. has demonstrated he is willing to do so. In fact, Mr. S. was willing to forego his own rights to the extent that he was willing to give up custody of the girls voluntarily if he was told that it would be in the children's best interests. This is confirmed by Dr. Favaro's testimony and his assessment of Mr. S. On the other hand, the Court has not seen any such selflessness from the mother.
It is the Court's opinion after weighing all the Tropea factors, and other factors except the wishes of the children, that the father should be awarded custody. It is undisputed that the children wish to live with their mother. They love her and miss their siblings J. and S. The children's wishes are one factor to be considered by the Court, but are not determinative. Young v. Young, 212 AD2d 114 (2nd Dept. 1995), Darema-Rogers v. Rogers, 199 AD2d 456 (2nd Dept. 1993). In considering the children's wishes, the Court must take into account the children's ages, level of maturity and the extent to which they may have been pressured or influenced in regard to their choice. Eshbach v. Eshbach, 56 NY2d 167 (1982). "The desires of young children, capable of distortive manipulation by a bitter, or perhaps even well-meaning, parent, do not always reflect the long-term best interest of the children". Matter of Nehra v. Uhlar, 43 NY2d 242, 249 (1977).
At the time of the second in camera interview, the children were 13 and 10 years old. They are extremely bright and express themselves easily. The Court found their level of maturity to be beyond their years, and the testimony in the case supports this. They have strong opinions and have no problem expressing them, even if it means criticizing their stepmother's parenting skills, cooking or dress. However, it is clear to the Court that at some point they were pressured by the mother and Mr. T. This is clear from the testimony of the parties as well as Dr. Favaro. The Court cannot say for certain whether Ms. S. put direct pressure on the girls to say and do particular things, but it does seem clear that Ms. S. expressed to the children how upset she is without them. The Court does believe Ms. S. has expressed to the children how hurt she is that the children are now living with their father and how much she and Mr. T. miss them. The result of this could likely be the children feeling responsible for, and guilty about, their mother's unhappiness. At least this is what the Court believes happened. The children's expressed desire for their home, school and friends in Pennsylvania, a place where they lived less than five months, seemed couched in adult terms. The Court finds it strange that the same wishes, worded the same way, were expressed by the children in near identical terms in both in camera interviews, despite the fact they were done seven months apart.The same could be said for their criticisms of their stepmother. In the end, the Court found it strange that the children were so strongly attached to the home, school and friends in Pennsylvania when it was hours away, and essentially isolated, from the friends and family they had been surrounded by for their entire lives. For all these reasons the Court finds their stated desire to live with the mother was, at least in part, the result of pressure put on them by the mother and Mr. T.
The Court is aware that, in general, when there is an agreement between the parties dictating custody, that agreement is to be given preference. Eshbach v. Eshbach, supra. And while it is to be given due consideration, such consideration should not be given priority after weighing the best interests of the children. Eshbach v. Eshbach, supra. The Court also notes that the children have been living with their father for almost one full year at the writing of this decision. Since no action was ever taken to challenge that change of physical custody at the time the prior Judge made that decision, this Court finds the custody provision of the parties' divorce stipulation to be of even lesser importance.
Finally, the Court has also viewed the evidence in this case from the perspective of a modification petition, which is what the father filed originally. "The hearing court may order a change in custody if the totality of the circumstances warrants a modification in the best interests of the child." Ganzenmuller v. Rivera , 40 AD3d 756, 757 (2nd Dept. 2007), citing Friederwitzer v. Friederwitzer, 55 NY2d 89, 95, 447 NYS2d 893, 432 NE2d 765; Matter of Brian S. v. Stephanie P., supra {34 AD3d 685} at 686, 825 NYS2d 232). In this case, the totality of the circumstances includes the mother's unauthorized relocation, the mother's paramour undermining the father's authority and role to the children, the father's stability, the father putting the children's best interests before his own interests and the credibility of the father and his wife.
Accordingly, the Court finds that it would be in the children's best interests for their father to have sole custody of them. The father shall consult with the mother on all major decisions regarding health, education and general welfare. The parents should work together to reach consensus on these decisions, however if they cannot, the father shall have final decision-making power.
The mother shall have parenting time on alternate weekends on the same schedule they are currently using. The same pick up and drop off arrangements shall continue, with the parties meeting at Liberty Park. If the children are in a school district with three breaks during the year (winter, spring, Christmas/New Years), then the mother will have the children on two of the three breaks each year. The parties will alternate the Christmas break, so that when the father has the Christmas break the mother will have the winter and spring break that year. On the year the father does not have Christmas he will have the children for the Spring break. If the children are in a district with two breaks, the parents shall alternate each break. The mother shall have the children for the majority of the summer. The children will stay with the father from the end of school until July first. The children will go to the mother from July first until July twenty first. The children will stay with the father from July twenty-first until August first. The children will then go to the mother on August first until one week before school starts.
The parties will alternate all other major holidays. The mother shall have Mother's Day each year and the Father shall have Father's Day each year. To avoid the children being forced to spend even more time in the car going back and forth, if Mother's Day falls on the father's weekend, then that weekend will become the Mother's weekend and alternating will continue from there. While this may result in the mother getting two weekends in a row, the same rule will apply to Father's Day with the father getting that weekend even if it falls on the mother's weekend. If the children's birthdays fall midweek, the mother may have dinner with them, from 6:00 p.m. to 8:00 p.m. on the birthday if she drives to the father's home to pick them up. If the children's birthday falls on a weekend, then the regular weekend schedule will apply.
With the above custody and parenting (visitation) terms, the Court has tried to take into consideration that the children will spend many hours in a car driving back and forth, and attempted to limit that to the extent possible. Should the mother choose to move closer, or within a fifty mile radius of the father's home, the Court would be open to reconsidering these arrangements. This should not be read to mean that any such move would automatically result in a "change in circumstances" per se, though it might at the time it is considered.
Each parent shall allow the other parent liberal and unhampered phone contact with the children. Neither parent shall speak negatively about the other to the children, nor shall they do so in the children's presence. Each parent will ensure that no other person speaks negatively of the other parent to the children. The Court will view a violation of this provision very seriously.
The father shall have physical possession of the children's passports if they exist. Should either parent travel with the children outside the state of their residence, they must provide the other parent with the address of where he or she will be staying and phone numbers to be used only in the case of emergency. Each parent may travel internationally with the children, but the other parent must be given a minimum of one month notice, in writing, of any such travel. Should the mother need the children's passports and something in writing from the father allowing her to so travel, he shall so provide.
There shall be any other parenting time as is agreed upon by the parties.
Therefore, based on the foregoing, it is
ORDERED that W.S. shall have sole legal and residential custody of the children M.S. and L. S.; and it is further
ORDERED that the mother shall have parenting time (visitation) as described in this decision.
This constitutes the Decision and Order of the court.