Opinion
2017/08147
02-03-2021
MATTHEW A., Plaintiff, v. JENNIFER A., Defendant.
AFFRONTI & AFFRONTI, LLP, Francis C. Affronti, Esq., For the Plaintiff Matthew A., Rochester, New York KELLY WHITE & DONOFRIO, LLP, Donald A. White, Esq., For the Defendant Jennifer A., Rochester, New York LAW OFFICE OF DENISE R. MUNSON, ESQ., PLLC, Denise R. Munson, Esq., For the Children, Walworth, New York
AFFRONTI & AFFRONTI, LLP, Francis C. Affronti, Esq., For the Plaintiff Matthew A., Rochester, New York
KELLY WHITE & DONOFRIO, LLP, Donald A. White, Esq., For the Defendant Jennifer A., Rochester, New York
LAW OFFICE OF DENISE R. MUNSON, ESQ., PLLC, Denise R. Munson, Esq., For the Children, Walworth, New York
Richard A. Dollinger, J.
"In war, whichever side may call itself the victor, there are no winners, but all are losers." - Neville Chamberlain
In this matter, a couple continue a long fight over one-overnight visitation every two weeks between a father and his three sons. As documented in an earlier opinion of this Court, the couple, in their separation agreement, provided that the father had only alternate weekends and a once a week dinner visit with his sons. The agreement provided that the father, who lived a distance away from the marital residence, could seek additional time with his sons if he moved closer to the marital residence. He moved closer and asked, informally, for one extra overnight every two weeks: he sought to extend his alternate weekend from Fridays until Monday morning.
The dinner visit was undefined: the couple agreement stated that it would be difficult to schedule the dinner visit because of the children's activities and the couple agreed that the father had to give his wife one week's notice to spend a dinner visit with the children each week.
It is undisputed that the father moved closer and resides in Wayne County, where the mother resides. He moved on January 1, 2020, nearly three weeks before the mother filed the first application in the Wayne County Family Court in this matter. Undisputed text messages confirm that the mother knew the father had moved, which triggered the request for additional time, well before any filings in this matter.
When the father made that informal request after his move, a flurry of court proceedings began. The mother filed a proceeding in another county family court seeking to reduce visitation because the current visitation was against "the children's wishes." The father then moved in this Court for the additional overnight every two weeks and the mother opposed the application.
1. The Court's Prior Opinion
This Court, in a lengthy decision, granted the father's request, holding that the parents, in their agreement defining the best interests of their sons, concluded that the father, upon moving "closer" could seek extra time with his sons. Because this Court concluded that the "extra time" was envisioned at the time of the signing of the agreement and it was only a minor variation from a longstanding schedule, the Court granted the father's request for extended time without holding a hearing on whether the one extra night every two weeks residing with their father was in the children's best interests.
Before analyzing the issues raised by these competing motions, this Court, as referenced in the prior opinion, remains confounded by two facts: (1) alternate weekend visitation between the father and his sons occurred for months before he moved; and, (2) the father, in seeking to increase visitation, was merely requesting one additional overnight every two weeks. There was evidence that during the time that alternate weekend visitation with the father occurred prior to any legal actions, the children lobbied their father to return them to their mother's home earlier on Sunday evenings. The sons eventually asked their father to shorten the Sunday evening return and he did, returning them at times before the 6:30 pm return time set forth in the agreement. There is no evidence in this application — or in the prior applications — that the children had any difficulties visiting their father on alternate weekends when he lived much away than he does now. The only issue raised by the sons during the year of weekend visitation was the return time on Sundays and the father demonstrated flexibility in modifying the time at his son's request for more than a year. However, after the father moved closer, he told his sons that he would insist on the 6:30 pm return time set forth in the agreement. The children resisted and, thereafter competing applications — by the mother to restrict visitation and the father to add the additional overnight — were filed.
The second fact is also undisputed: the father's request for additional time was, as this Court earlier described, "modest." He did not seek to add any time except for two overnights a month — the extra Sunday overnight every two weeks. In practical terms, the sons would be in their father's house from 6:30pm on Sunday — the return time set forth in the agreement — until school the next morning. The "extra time" would consume at best three-to-five "waking hours" for interactions between the father and his sons once every two weeks.
The Court, after weighing those undisputed facts and in the absence of any credible evidence that the sons’ best interests would not be served by visiting with their father, granted the father's request because, as innumerable courts in New York have repeatedly said, visitation with a non-custodial parent "is presumed to be in the best interests of the child." The Court of Appeals has frequently commented:
In Weiss v Weiss (52 NY2d 170, 418 NE2d 377, 436 NYS2d 862 [1981] ), we held that "in initially prescribing or approving custodial arrangements, absent exceptional circumstances, such as those in which it would be inimical to the welfare of the child or where a parent in some manner has forfeited his or her right to such access, appropriate provision for visitation or other access by the noncustodial parent follows almost as a matter of course" ( id. at 175 [citation omitted]). Subsequent Appellate Division decisions have frequently referred to a rebuttable presumption that, in initial custodial arrangements, a noncustodial parent will be granted visitation. "[I]t is presumed that parental visitation is in the best interest of the child in the absence of proof that it will be harmful" ( Matter of Nathaniel T. , 97 AD2d 973, 974, 468 NYS2d 768 [4th Dept 1983] ) or proof that the noncustodial parent has forfeited the right to visitation.
Matter of Granger v. Misercola , 21 NY3d 86, 90 (2013). The citations to Granger v. Misercola are legion. See e.g., Matter of Angelina H. v Derrick I. , 187 AD3d 1357 (3d Dept 2020) (applying best interests analysis even when a parent is incarcerated) . Other courts have repeated the same refrain: visitation should be denied only where substantial proof reveals that visitation would be "harmful" to the child. Matter of Heather NN. v Vinnette OO. , 180 AD3d 57(3d Dept 2019).This Court concluded that there was no evidence that the extra one overnight every two weeks would be "harmful" to anyone of the three sons. There was no evidence of any harm: there was evidence of inconvenience because they would be away from their mother's residence, in which they primarily resided. There was also no evidence that the sons, during the year prior to filing of the mother's application, had been harmed by visiting their father when he lived much further away. In the absence of any harm in the extra overnight and the presumption in favor of visitation controlled, the Court, after describing the father's request as "modest" granted the father's application. The mother's suggestions that her son's objected to the extra visitation, while considered, was not considered dispositive because, as repeated court opinions advise, the children's wishes do not control. See Fox v. Fox , 177 AD2d 209 (4th Dept 1992) (the fact that the "children's wishes have changed," is insufficient to state a claim for a "change in circumstances"); William F.G. v. Lisa M.B. , 169 AD3d 1428(4th Dept 2019). In short, the mother never produced any reasonable evidence to overcome the presumption in favor of extra visitation and, in the absence of that evidence, this Court accorded the presumption its lawful application and granted the extra overnight every two weeks.
Even under the standard set forth in this case, the Court used factors such as whether regular visits occurred prior to the proposed change in visitation and whether the changes would disturb school and extracurricular schedules. Matter of Angelina H. v Derrick I. , 187 AD3d at 1360. In this matter, the father engaged in regular visitation with his sons before the mother filed her petition for a change and there was no credible evidence that the father's relocation, much closer to the marital residence, would disturb their school schedules or extracurriculars. There was no evidence that the father couldn't or wouldn't make sure the children attended school and participated in extracurriculars, especially soccer which the father enjoyed.
The mother's complaints, in he original application, focused on the fact that she was better at math than her husband and could help her sons on math problems and help them better with their homework. However, there was no evidence that they could not seek that help from their mother, while staying an extra overnight with their father, through electronic means — email, facetime or other tools.
Thereafter, when the children refused to participate in visitation with their father, who had joint custody, this Court imposed a series of "house rules" that barred the children's mother from facilitating or permitting the children — including teenagers — from participating in any activities without their father's permission until they engaged in visitation with their father. The Court also suspended the father's child support obligation because of the mother's interference with the visitation required by the agreement.
In the wake of the Court's determination, other motion practice ensued. The mother appealed. The plaintiff father moved for an order granting temporary trial and counsel fees for future appellate work and also sought fees under this Court's order. The mother changed counsel and new counsel immediately moved to re-argue and renew the Court's decision, claiming that the Court misinterpreted the couple's agreement because the agreement did not permit the Court to alter visitation without a hearing on the "best interests" of the children and further objecting to the Court's determination to hold the wife in contempt for violation of the prior court orders. The application also sought to remove the "house rules" imposed by the Court and end the suspension of the father's child support obligation. The attorney for the children also moved to suspend the father's visitation pending enrollment in a family therapy program, restrict his access to only therapeutic visitation, and for an order for the father to enroll in parenting classes and not to punish the child by withholding food. As if that was not enough of a commotion for the Court to unravel, the father then moved to strike the AFC's application for reasons that are analyzed below. The Court reserved decision on these competing motions and this decision follows.
The Court, in the prior decision, had awarded fees and costs and the father, through counsel, argued that he was entitled to the fees under the Court order, Section 238 of the Domestic Relations Law and the parties original separation agreement.
2. The AFC's Standing to Move to Suspend Visitation.
The AFC's application seeks, in large measure, to change the terms of the father's visitation, curtail the visitation guaranteed by the agreement, substitute therapeutic visitation and impose other visitation-related restrictions on the father. As part of that application, the AFC presented an affidavit from the couple's 14-year-old son. In addition, the AFC's affidavit relays hearsay statements from the other sons and claims that she "discussed" the father's affidavit about visitation to his sons and they claim, she averred, that his allegations regarding visits with his sons are untrue. The AFC's affidavit includes a series of other subjective and speculative conclusions including commenting that the father "does not sound like a parent that wants visitation with his children." She adds that she has "never come across a situation where a parent deliberately sabotages the visitation so as to make it unpalatable for the children." The AFC also contends that the sons strongly disagree with the father's characterization of visitation and "dread future visitation." The AFC affidavit also contains specific rebuttals of a series of behaviors engaged by the father based on the hearsay statements of the children. The affidavit from the couple's 14-year-old son is also hotly contested: the father, in a subsequent affidavit, disagrees, sharply, with its contents.
This observation is respectfully well beyond the acceptable comment by the children's attorney as it suggests that the attorney can judge the father's motivations with his children, when, as noted earlier, this entire proceeding originated in the father's request for more time with his children and his ex-wife's support for the children denying him that one extra night every two weeks with them.
This sentence is apparently an effort by the AFC to testify as to her experience and compare her prior experience to the facts of this case and particularly the father's conduct. In making that comment, she appears to be testifying as a fact witness or apparent expert, based on other experiences, none of which are before this Court. This sentence goes well beyond her advocacy for the children and is struck from the affidavit.
The father challenges the AFC's application, arguing that the AFC lacks standing to bring an application to suspend the father's visitation. The father argues that the children, in this matter, are the "subjects" of the proceeding and not "parties." FCA § 241 (minors defined as the "the subjects" of family court proceedings). He argues that only "parties" can bring motions. He notes that the Domestic Relations Law only grants parents the right to decide custody and visitation-related matters. DRL § 70(a). The father claims that other parts of matrimonial law reflect a legislatively-directed or common law intention not to have children involved in these proceedings, much less permitting children to directly intervene to alter an agreed parental custody or visitation plan. See e.g., CPLR 4109 (concerning in camera testimony in a disputed custody matters); Lincoln v. Lincoln , 24 NY2d 270 (1969). It is undisputed in the Fourth Department that an attorney for children does not represent a party to a divorce action or a subsequent modification action. The AFC suggests that AFCs can "pursue appeals" but the support cited by the AFC for that proposition identifies the AFC simply as involved in an appeal in which the parent was the appellant. See Little v. Little , 175 AD3d 1070 (4th Dept 2019) (AFC appeal was done in conjunction with mother's appeal). The better reasoned conclusion stems from the Fourth Department in Matter of Lawrence v. Lawrence :
... a child, while dissatisfied with the order, cannot force the mother to litigate a petition that she has since abandoned" (Matter of Kessler v Fancher , 112 AD3d 1323, 1324, 978 NYS2d 501 [2013] ). A child in a custody matter does not have "full-party status" (Matter of McDermott v Bale , 94 AD3d 1542, 1543, 943 NYS2d 708 [2012] ), and we decline to permit the child's desires "to chart the course of litigation" ( Kessler , 112 AD3d at 1324 )
Lawrence v. Lawrence , 151 AD3d 1879 (4th Dept. 2017).
Initially, in evaluating the standing of the AFC to bring this application on behalf of the children, the Court acknowledges that it is well settled that in order to have standing to challenge any contract, a nonparty to the contract must either suffer direct harm flowing from the contract or be a third-party beneficiary thereof. Logan-Baldwin v. L.S.M. Gen. Contrs., Inc. , 94 AD3d 1466 (4th Dept 2012). The Court of Appeals in Forman v. Forman , 17 NY2d 274 (1966) considered the third-party beneficiary rule's application to marital agreements indicating:
... children are often the actual third-party beneficiaries of provisions in separation agreements between the parents; and in cases of disability of one kind or another of one spouse to enforce his own legal rights against the other, some procedural facility for enforcement should be available to the children ... We ought not by a general rule of abnegation foreclose ourselves completely from allowing a remedy that may become appropriate, effective and just.
Forman v. Forman, 17 NY2d at 280. However, the Fourth Department has narrowly construed the Forman decision and limited the child's standing generally to enforce agreements involving support, college expenses or other financial issues. In Drake v. Drake , 89 AD2d 207 (4th Dept 1982), the Court concluded, after a review of the Forman holding, that:
From this may be distilled a simply stated general rule in New York that, barring unusual circumstances, children have no standing to enforce the periodic support provisions of their parents’ separation agreement, although they may enforce other specific provisions of the agreement clearly made exclusively for their benefit, such as a promise to pay college tuition or to make the child a beneficiary of a life insurance policy.
Drake v. Drake , 89 AD2d at 210. Importantly, as a follow-up to that conclusion, the Fourth Department added that children should only be able to enforce financial provisions made expressly for their benefit:
The distinction drawn comports with the rules of law applicable to third-party beneficiaries and further is rooted in considerations of public policy designed to promote familial harmony and foster the parent-child relationship.
Drake v. Drake , 89 AD2d at 212. Based on these precedents, the New York courts have not granted children standing, through an application by their attorney, to modify a contractual visitation agreement. Here, the visitation provisions in this agreement are designed to benefit the parents and are a result of parental bargaining. If New York's public policy, limiting children's standing under their parent's separation agreement is designed to "promote familial harmoney and foster the parent-child relationship," then permitting children, through their attorney, to seek to modify the visitation provisions of their parent's agreement because their "wishes have changed," would thwart that policy objective. Under these precedents, this Court cannot find any authority to give the AFC in this matter standing to modify the visitation agreement or, for that matter, to seek even a temporary modification when there is no hardship or risk of danger to the children.
The mother's counsel argues that the children here were within their rights to seek to suspend visitation to protect their "health, safety and welfare." However, there is no evidence that the children's health or safety was at risk at any time in this proceeding and their "welfare" — which presumably involves some aspect of their "best interests" — is presumed to be best served by visitation with their father.
This Court notes that the New York courts have granted AFCs standing in other contexts, especially paternity proceedings. The AFC cites Whitney v. Whtiney , 154 AD3d 1296(4th Dept) and Matter of Tariq C. v. Shlee B. , 177 Ad3d 1385 (4th Dept 2019) for the proposition that an AFC may move to dismiss a petition for modification of a prior custody order. The later case was a paternity proceeding under the Family Court Act and, in that instance, the AFC took no position on any custody-related issue and did not interfere with any agreed custody matters. The former case was also a family court matter involving a termination of custody rights. In neither instance was the AFC seeking to upend a prior visitation agreement, as the AFC seeks here.
A child is certainly an interested person in any proceeding concerning that child's paternity. Family Court Act § 522 permits an AFC to institute proceedings on the child's behalf for relief related to the child's paternity. See Matter of Elacqua v James EE. , 203 AD2d 688, (3d Dept 1994) ; Matter of Ettore I. v Angela D. , 127 AD2d 6,14 (2d Dept 1987).
In this Court's view, the AFC cannot have standing to suspend or change an established custody/visitation agreement. If the Court recognized the AFC's ability to bring that motion, then the children would have an equivalent role with that of their parents as "parties" in defining their best interests when New York permits only the parents — or the Court, if the parents cannot agree — to define those interests. In contrast, if this Court recognized that the AFC had standing to bring an action for suspension of visitation, could the Court entertain that application if both parents opposed it? The Court thinks the loud voice of the New York courts would answer that inquiry with a simple no.
In reaching this conclusion, this Court does not consign the AFC to a "meaningless role" in this litigation, as the AFC seemingly suggests. In the Third Department decision, cited by the AFC in defense of her role here, the Court said:
The purpose of an attorney for the children is "to help protect their interests and to help them express their wishes to the court" ( Family Ct Act § 241 ). There is a significant difference between allowing children to express their wishes to the court and allowing their wishes to scuttle a proposed settlement.
McDermott v. Bale , 94 AD3d 1542 (4th dept 2012). Similarly, the Fourth Department reiterated that sentiment:
although Family Court cannot relegate the AFC to a meaningless role, the AFC cannot veto a proposed settlement reached by the parties, particularly after the AFC, as here, was given a full and fair opportunity to list objections to the proposed arrangement on the record.
Matter of Erica X. v Lisa X., 180 AD3d 1187 (3d Dept 2020). The same logic dictates a similar result here. The AFC cannot seek to overturn a visitation and custody agreement and advocate to suspend visitation when it is contrary to the couple's written agreement. The mother, in seeking to support the AFC's application, argues that AFCs have previously brought applications seeking affirmative relief in custody cases. However, in Gelling v. McNabb , 126 Ad3d 1487 (4th Dept 2015), while the AFC brought a motion, the Court relied on father's affidavit to support the requested relief. In Whitney v. Whitney , 154 AD3d 1296 (4th Dept 2017) and Matter of Unczur v. Welch , 159 AD3d 1405 (4th Dept 2018), the appellate court never considered whether the AFC has standing to bring those motions. The mother's counsel acknowledges that an AFC can not bring an appeal without the support of one of the parents: if an AFC can't appeal, how can the AFC bring a motion to change the terms of an agreement when there is no evidence of parental unfitness or harm to the children? For all of these reasons, the AFC's application to modify or change the visitation is denied because the AFC lacks standing to bring that application.
While the AFC application cannot be considered as an effort to seek affirmative relief, the next step requires this Court to consider whether the affidavit from the couple's 14-year-old son can be considered, under any circumstances, by the Court. The child's affidavit deals exclusively with issues related to visitation. This Court has seldom encountered affidavits from children — even 14-year-olds -- in contested custody matters. Usually, the children are interviewed by the Court in camera. See Lincoln v. Lincoln , 24 NY2d 270 (1969). The purpose of the in camera interviews under the Lincoln doctrine is two-fold: one, to explore the child's preferences and, after trial, to corroborate testimony of any witnesses regarding disputed issues. See Rush v. Roscoe , 99 AD3d 1053 (3d Dep't 2012). In this case, the affidavit serves only the second purpose; i.e., to contradict the father's version of the father's interactions with his sons. To consider these factual assertions outside the context of a Lincoln hearing — without offering the father a choice as a joint custody parent to object to the affidavit or to seek the shelter of a Lincoln hearing — troubles this Court. First, the use of the affidavit runs afoul of the preference that the New York courts decide custodial questions of best interests based, primarily (if not exclusively) on the testimony of the adults and shelter the children from the dispute. Second, the admission of the affidavit from the child violates the spirit of the Court of Appeals decision in Lincoln v. Lincoln . Although the opinion is aged, it wisdom still resonates:
The presentation of the son's affidavits, at this stage, highlights the wisdom of the Lincoln hearing process. If the Court considers this affidavit, the child, would it seem, becomes subject to cross-examination by his father's counsel. In this Court's view, nothing could be more destructive of any family relationship then a father's advocate publicly cross-examining the son but the AFC's submission of this affidavit opens the door to that possibility.
In this Court's view, it requires no great knowledge of child psychology to recognize that a child, already suffering from the trauma of a broken home, should not be placed in the position of having its relationship with either parent further jeopardized by having to publicly relate its difficulties with them or be required to openly choose between them.
Lincoln v. Lincoln , 24 NY2d at 272. The Third Department, in case involving a child of the same age as the child here, noted:
it was clearly an abuse of discretion for the court to put the child in this awkward position, notwithstanding that her wishes were already known to her parents, .... We again emphasize that " ‘a child ... should not be placed in the position of having [his or her] relationship with either parent further jeopardized by having to publicly relate [his or her] difficulties with them’ " when explaining the reasons for his or her preference (Matter of McGovern v McGovern , 58 AD3d at 913 n 2, quoting Matter of Lincoln v Lincoln , 24 NY2d at 272 ). Given the circumstances of this case and the fact that—at her age her preference would be entitled to great weight, the record indicates that a Lincoln hearing would have limited the risk of harm and "would have been far more informative and worthwhile than ... an examination of the child under oath in open court"
Matter of Casarotti v. Casarotti , 107 AD3d 1336, 1338-39 (3d Dept 2013) ; Matter of Gerber v Gerber , 133 AD3d 1133, n.6 (3d Dept 2015) (it bears repeating that, in the context of a Family Ct Act article 6 [custody modification] proceeding, a Lincoln hearing is the preferred manner for ascertaining a child's wishes and a child—regardless of age—"should not be placed in the position of having his or her relationship with either parent further jeopardized by having to publicly relate his or her difficulties with them when explaining the reasons for his or her preference"); see also Matter of Battin v Battin , 130 AD3d 1265 (3d Dept 2015) (these considerations apply with equal force to children of all ages; indeed, it may be particularly important to ensure that older children have the opportunity to express their views in confidence, as their preferences are given great weight in custody proceedings). As the Court in Battin v. Battin concluded: "For the reasons stated above, calling a child to testify in a Family Ct Act article 6 proceeding is generally neither necessary nor appropriate; a Lincoln hearing is the preferred manner for ascertaining a child's wishes." Id. at n. 2.
The mother's counsel, seeking to persuade this court to consider the 14-year-old's affidavit, cites the Court to a recent Eighth Judicial District opinion which allowed a affidavit from a nine-year-old to be introduced to defeat a motion for summary judgment. Pena v. Board of Education , 2019 NY Misc LEXIS 3704 (Sup. Ct. Erie Cty 2019). However, in that instance, the child's affidavit was considered as testimony to substantiate the basis for a denial of summary judgment, a context that differs sharply from the substantive basis that the AFC intends for the child's affidavit here; i.e., to justify curtailing the father's visitation rights. The affidavit in Pena v. Board of Education did not challenge the parent-child relationship, as the affidavit before this Court does. This Court declines to follow the Pena v. Board of Education rationale here.
The mother's counsel also cites instances in which children have testified in child protection proceedings or under the Criminal Procedure Law. See e.g., Nassau County Dept of Social Services v. Marisol M. , 2008 NY Misc LEXIS 1226 (Fam. Ct. Nassau Cty 2008). The strong public policy rationale and explicit legislative sanctions for that testimony is not implicated here.
In this matter, the AFC, by introducing the son's affidavit, has thrust the child — and his brothers — directly into the line of fire in this matter. The submission of the affidavit, without consultation with the father, foreclosed the father's attempt to seek and argue for a Lincoln hearing with the Court and his children. The father's right as a joint custodial parent to be heard by the Court — and perhaps object to the son's testimony being set before the Court and all counsel — before his oldest son testified through the affidavit — is now foreclosed. In this Court's view, the AFC has undermined the father's custodial rights by pitting his son against him in a public forum and perhaps coincidentally, aligning the son solely with his mother's exercise of her joint custodial rights against those of his father. For all of these reasons, this Court concludes that the child's affidavit, interposed at this stage of the proceedings and attached to an ill-founded application by the AFC to change visitation, should not be a factor in this Court's decision on any aspect of the pending motions. This Court strikes the child's affidavit from the record of this proceeding and will not consider it in any context.
Finally, the father asks this Court to order the AFC to not discuss with the children any of the pleadings or other papers filed in this action. The father notes that the Court has, in prior orders, required that the parents not disclose any pleadings or other aspects of the litigation with the children, under the theory that both parents should shelter the children from the sharp exchanges and vicissitudes of the visitation dispute. The father alleges that the AFC has discussed his pleadings and affidavits in this matter with the children. In considering this request, the Court returns to the articulated role of the AFC to protect their interests and project their wishes to the Court. In this instance, the AFC has certainly accomplished the later: the Court is well-aware that the sons do not want to visit with their father. But, in seeking to expose the children to the guts of the parental conflict — discussing with them the exact content of affidavits, briefs or pleadings — the AFC would be enmeshing the children into their parents’ conflict and exposing them to the high stress and disagreements that persist. This Court cannot find any justification for exposure of these children to the pleadings, affidavits, briefs or any other aspect of their parents dispute, regardless of whether the parents convey that information or the AFC does.
This Court's colleague, Justice Jeffery Sunshine, the statewide coordinator of matrimonial matters, opined that exposing a 14-year-old child to a forensic report was inappropriate, despite the AFC's request to do so. Justice Sunshine intoned:
Not allowing the child to read the therapeutic supervised visitation reports in this case is not going to render the Attorney for the Child unable to take the child's position, instead it has possibly strained the relationship between the Plaintiff and the Child by giving the child the opportunity to try and hinder or manipulate the therapeutic visitation sessions. The Attorney for the Children has been a zealous advocate for the child and has made the child's wishes and voice heard in Court regarding the visitation and therefore in this case, not allowing the child to read the report or be given a copy of the report will not hinder the Attorney for the Children's ability to advocate for the child nor does it interfere with the child's constitutional right.
Clarence M. V. Martina M. , 68 Misc 3d 457, 470 (Sup. Ct. Kings Cty 2020). This opinion, while dealing with the more potentially intimate details of a forensic report, nonetheless identifies an important interest, already articulate by this Court in this case. The children here are already up to their ears in this dispute. But, despite that extensive emersion in this dispute, the Court intended to shelter them, as much as possible, from any additional consequences of the perennial squabble between the parents. It would thwart that goal to permit the AFC to make pleadings and other memorandum, available to the children or discuss the exact contents with them. Under these circumstances, this Court directs that the AFC may not provide any pleadings or other court documents to the children for their review, may not discuss the exact contents with the children and she may not permit the children to read or copy any of these documents.
This Court declines to make any determination of whether the AFC has previously presented court documents to the children. However, hereafter, she may not provide these documents or pleadings to the children, either for their review or copying.
The AFC does note one important issue that remains before the Court. Despite the Court ordering the family to therapy, the parents have failed to agree on a therapist. The Court is discouraged by this development. But, the father has now brought a motion to appoint the therapist and this Court will take that decision away from this couple, unless an agreement is reached before the return date.
While it appears that the failure to retain a therapist involves a dispute between the father and mother, the AFC takes only one-side in this dispute, claiming, in her argument before the Court, that the father is involved "in a present scheme" that includes thwarting the agreement on a therapist. The Court is struck by the fact that the AFC has no role in this issue: the parent decide who the therapist should be. The AFC, instead of remaining silent, has chosen to characterize the father's conduct and not comment on the mother's. Her description, seemingly tailored to impugning the father's conduct in selection of the therapist, raises questions about her objectivity in this entire process.
3. The Motion to Renew and Reargue
In support of her argument to renew, the mother argues that the Court erred in not holding a hearing on "best interests" before it granted the father an extra overnight every two weeks and furthermore that the Court prematurely determined that the mother, as a factual matter, violated the prior court orders, including the court-ordered "house rules."
The authority for the motion is found in CPLR 2221 which permits granting of the application if matters of fact or law were overlooked or misapprehended by the court in determining the prior motion, but, importantly, it "shall not include any matters of fact not offered on the prior motion." Home Insulation & Supply, Inc. v Iskalo 5000 Main, LLC , 2020 NY App. Div. LEXIS 8139 (4th Dept 2020)(motion for leave to renew must be ‘based upon new facts not offered on the prior motion that would change the prior determination,’ and ‘shall contain reasonable justification for the failure to present such facts on the prior motion’). In this instance, the mother, seeks to re-argue two findings by the Court: first, that the additional overnight every two weeks was in the best interests of the sons and that instead a hearing was required before this Court could reach that conclusion and, second, that the Court could not hold, under the contested facts before it, that there was clear and convincing evidence that the mother had violated the house rules order imposed by the Court.
A. The holding that the extra overnight was consistent with the agreement and the children's "best interests."
With respect to the Court's determination to grant the additional overnight every two weeks to the father, this Court notes that the mother introduces no new facts, nor calls attention to facts allegedly overlooked by the Court. This Court acknowledges that the agreement required a "best interests" analysis and under New York law, the Court applied a presumption in favor of visitation for the father that, in the absence of contrary evidence, did not require a hearing. The Court's order was based on the long-established premise in New York that parental access with a noncustodial parent is presumed to be in the best interests of the children. Matter of Parris v Wright , 170 AD3d 731 (2d Dept 2019) ; see also Weiss v. Weiss , 52 NY2d 170, 175 (1981) (appropriate provision for visitation or other access by the noncustodial parent follows almost as a matter of course). In deciding "best interests" for these children, this Court was required to examine factors such as each parent's relative fitness and past performance, ability to provide for the child's well-being and furnish a stable home environment, and willingness to foster relationships with the other parent. Matter of Paul Y. v Patricia Z., 2021 NY App. Div. LEXIS 103 (3d Dept 2021); Matter of Zaida DD. v Noel EE. , 177 AD3d 1220, 1220 (3d Dept 2019) ; Matter of Samantha GG. v George HH. , 177 AD3d 1139, 1140 (3d Dept 2019).
The agreement did not require a hearing prior to a determination of the "best interests" of the children.
In the application before the Court in the prior motions, there was no evidence that the father was ineligible for visitation under that standard. There was no evidence of parental "unfitness" on the part of the father. The mother never even suggested the father was ‘unfit’ for visitation. There was no evidence of any defects in the father's prior visitation with his children: no evidence of any poor behavior, denial of extracurriculars, or any impact on their academic standing, which appeared to be — and apparently continues to be — excellent. The undisputed facts indicated the children had visited with their father when he lived a long ways away without incident for more than a year. There was no evidence that the father could not provide for the children: in fact, he moved closer to better provide for them. There was no evidence that the father did not have a "stable home environment:" he had bought a house to accommodate his sons and apparently, each son had his own room. There was no evidence that the father was undercutting the children's relationship with their mother. There was also no dispute over the underlying facts alleged by the mother: the claims of late arrivals, tired children, scurrying to finish homework on Sunday might. The mother produced some other facts — she claimed that she needed to help her sons with their mathematics homework and the sons were incapable of doing homework at their father's new residence — to create a semblance of a claim that the extra time was against the children's best interests. These facts, in toto, were not seriously disputed by the father. This Court, in its original opinion, considered all of those facts alleged by the mother and concluded that none of them individually — or even collectively — even if true — suggested that the extra time with the father was against the children's best interests. In short, there was no evidence that the extended needed visitation — one more overnight every two weeks (the Court sounds like a broken record) would be "harmful" to the child's welfare, or that the right to visitation has been forfeited. Matter of Granger v. Misercola , 21 NY3d at 91 ; see Matter of Burgess v. Burgess , 99 AD3d 797, 798 (2d Dept 2012). The Court of Appeals has acknowledged that while hearings may be favored when disputed facts exist, they are not required when the Court encounters undisputed facts:
In the AFC's affidavit, she argues that the children were deprived of food when they first visited their father after the Court's "house rules" were imposed. She also asserts that the father did not play games with his sons and apparently removed their bedroom doors. The father disputes that version of his post-house rules visitation and, in particular, justifies the removal of the bedroom doors because his sons would come to his house and lock themselves in their rooms. However, all these conditions did not exist when the original application was made and the mother's only objection to increased visitation was the son's opposition.
We decline, however, to fashion a "one size fits all" rule mandating a hearing in every custody case statewide. However, where, as here, facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required. Accordingly, a court opting to forgo a plenary hearing must take care to clearly articulate which factors were—or were not—material to its determination, and the evidence supporting its decision.
S.L. v J.R. , 27 NY3d 558, 563 (2016). The Fourth Department, applying S.L. v J.R. , concluded that if a Court "clearly articulate[d] which factors were ... material to its determination, and the evidence supporting its decision" no hearing in a custody matter was necessary. Matter of Chromczak v Salek , 173 AD3d 1750 (4th Dept 2019) ; see also Matter of Vitucci v Radparvar , 173 AD3d 1191(2d Dept 2019) (undisputed facts before the court were sufficient in and of themselves to support the modification of the parental access provisions such that continuation of the fact-finding hearing was unnecessary); Matter of Knauss v Elman , 171 AD3d 1067 (2d Dept 2019) ; Matter of Long v. Donoghue , 167 AD3d 614 (2d Dept 2018) (no hearing needed because no unresolved factual issues), Matter of O'Hanlon v. Cornelius , 213 AD2d 406 (2d Dept 1995). In this Court's view, in the absence of any evidence suggesting that extra time with their father was against the best interests, this Court properly concluded that it "possessed sufficient information to render an informed determination as to the best interests of the child without the benefit of an evidentiary hearing." Matter of Mandal v. Mandal , 113 AD3d 769 (2d Dept 2014) ; see also Matter of Feldman v Feldman , 79 AD3d 871 (2d Dept 2010) (the Court faced a visitation issue, based on an agreement and concluded no hearing was necessary); Matter of Kadyorios v Kirton , 130 AD3d 732 (2d Dept 2015).
In that respect, nothing has changed throughout the pendency of this matter. The only evidence before this Court — both when the original opinion was issued and now — is that the children, while living with their mother as the primary residential parent, do not want to go to visit their father. There was no dispute about that fact: the father acknowledged it, the mother advocated it, the AFC championed it. But, that fact — without more — does not justify a hearing to determine the children's best interests under the agreement or as a matter of law, when New York favors visitation between parents and children.
B. Motion to Renew/Reargue the Findings of Contempt
In contrast to the claims for re-argument of the decision regarding best interest, the mother does challenge factual findings involved in the Court's prior determination regarding violations of the Court-imposed house rules. The mother claims that this Court failed to consider affidavits which challenged conclusions, drawn by the Court, that she had violated the requirements in the court's orders that she not sign up the children for extracurriculars until the children visited their father, that she refrain from having them visit with relatives and not permit them to engage in extracurriculars or other activities until they visited with their father. Among other determinations, the mother claims the Court misconstrued or did not consider the following facts:
(A) she claims the Court erred in concluding that she had "double checked with her sons" on their scheduling preferences after she had been served with the father's order to show cause, which contained certain restraints on the mother's discussing scheduling matters with her children;
(B) the mother challenges the Court's conclusion that she told her children that a judge in Wayne County was hearing their matter and that the letter was evidence that she had violated the court order barring her from discussing scheduling issues with her sons;
(C) she claims that this Court lacked clear and convincing evidence to find contempt because her transporting the oldest child to his work, even if it occurred, is not an "event" subject to the Court's "house rules,"
(D) she claims that she cannot be found in contempt for violating the order when the children's maternal grandmother signed the children up for soccer, an activity that the mother was barred from enrolling the children under the "house rules" edict; and,
(D) the mother did not convey the children to any birthday parties or other events with relatives and friends or otherwise violate any portions of the court orders.
The mother also argues that all the Court's findings are not proven by clear and convincing evidence as the law requires before a finding of contempt.
This Court acknowledges that the mother's affidavits, read again by the Court, do create additional issues of fact, the scope of which may have been misapprehended and which should be further analyzed and resolved before there can be any finding by clear and convincing evidence that the mother engaged in conduct that justified a finding of contempt under the Judiciary Law. The mother's claim that she did not "double check" with her sons after the service of the order to show cause but instead before it was served, does lead this Court to conclude that its finding of contempt may be challenged based on these controverted facts in the original application. Second, the Court's conclusion that the mother, in forwarding the children's letter to the family court judge in Wayne County, violated the prior ban on discussions with the children is based on the fact that letter was filed by the mother in this matter. This Court acknowledges that in reaching the conclusion that this conduct was contempt in violation of the order discounted the mother's express denials of this conduct. Because the issue was factually challenged, this Court can only conclude that a further hearing on that specific issue is required. The same holds true with the Court's conclusion regarding the mother taking the children to their maternal grandparents in violation of the order and the alleged Father's Day violation which the Court earlier found. These determinations, which the mother's original affidavits challenged, should be revisited through the hearing process to determine whether there is clear and convincing evidence to support them. For that reason, the Court grants the application to re-argue and renew on the issues related to contempt on these findings, vacates its earlier decision holding the mother in contempt for violation of the Court's prior orders as indicated, vacates any relief granted therein and will immediately set a date for a hearing on all the issues related to the mother's compliance with prior court orders.
In reaching this conclusion, the Court notes that the mother was aware that the father had moved by January 1, 2020 and was seeking additional time when she double-checked with the children on their wishes, even if before she was served with the order to show cause.
However, the visitation provisions in the separation agreement still require the Court to maintain the "house rules" articulated earlier. The agreement provided that the sons would visit their father on alternate weekends, regardless of where the father lived and regardless of whether the weekend visitation included the Sunday overnight. The AFC acknowledges — and there is no dispute at this time — that the children are not visiting their father and therefore, the "house rules" — designed to enforce the father's preferred method of disciplining the children if they failed to follow the agreed visitation schedule — remain in full force and effect. In the father's cross-motion, the father also raises issues involving the mother's current compliance with the "house rules" which allegations are again challenged by the mother. Those issues — the mother's compliance with the "house rules" — are left to a hearing as well.
Finally, the Court, at this point, rescinds the earlier award of attorneys fees which were premised on the now-vacated findings of contempt against the mother. However, it is undisputed that there is no evidence that the mother took any actions to compel her children to visit their father throughout this process until the Court imposed the "house rules" and furthermore, the mother, by conveying the child's letter to the Court, acted contrary to her obligations as a joint custodial parent, as explained in the Court's earlier opinion. Under those circumstances and because both the Domestic Relations Law and the couple's agreement provide for an award of attorneys fees, this Court, while vacating its prior order for fees based on a finding of contempt, nonetheless, awards the husband $5,000 in interim legal fees.
Based on all these facts, the Court holds:
(A) the AFC's application to suspend visitation is dismissed.
(B) The AFC's affidavit to the extent it expresses opinions regarding the conduct of the father is stricken.
(C) The son's affidavit is stricken from the record.
(D) The AFC is barred from revealing any pleadings, briefs or other Court documents to the children during the remaining portion of this proceeding
(E) The father's motion for fees and costs is denied without prejudice, except he is awarded $5,000 in interim legal fees to be paid within 20 days of the entry of this order.
(F) The mother's motion to reargue the Court's prior holding that an extra overnight for the father every two weeks was in the children's best interest is denied.
(G) The mother's motion to reargue the Court's decision holding the mother in contempt for violation of the court orders is granted for all matters relating to the episodes contained in the mother's attorney's affidavit before the Court, the prior order holding the mother in contempt is vacated, any penalties under that order are vacated and the matter is referred to an immediate hearing; and
(E) the father's request for a finding of contempt regarding other conduct of the mother relating to the "house rules" is also referred to a hearing.
This writing constitutes the decision of the Court.