Opinion
XXXXX.
Decided March 5, 2010.
Cynthia Kasnia, Esq., Kasnia Kidd, PLLC, Attorneys for petitioner, Poughkeepsie, NY.
Ronald J. McGaw, Esq., Attorney for respondent, Poughkeepsie, NY.
Kelly Myers, Esq., Attorney for the child, Hyde Park, NY.
In this modification proceeding filed on June 16, 2009 pursuant to Article 6 of the Family Court Act, M. M. H (mother) seeks an order granting her sole custody of the parties' child, J. H, born October 27, 2000, as well as an order allowing her to move with J. (child) to North Carolina. The respondent, William D. H (father), opposes the application but does not seek custody as an alternative to the mother's relocation application.
Throughout these proceedings the parents and the child have been represented by counsel. At the fact-finding hearing held on January 4, 2010 only the mother and father testified. In addition, documents were received into evidence; the mother having submitted the child's school records and the father having submitted correspondence between himself and the child, photographs of himself and the child and documents regarding his unemployment. The Court took judicial notice of its own records, including all prior orders (see, Richardson, Evidence § 2-209, 11th edition ; Matter of Lane v. Lane , 68 AD3d 995 ; Matter of Terrance L., 276 AD2d 699).
On January 5, 2010, the Court conducted an in camera interview with the child ( Matter of Lincoln v. Lincoln, 24 NY2d 270).
Following the conclusion of the fact-finding hearing, the attorneys were given an opportunity to submit written summations, which the Court has reviewed and considered. Although the Court invited the attorneys to submit proposed visitation schedules, based upon the Court either allowing or disallowing the mother to move with the child, only the attorney for the child did so.
EVIDENCE AND FINDINGS
Based upon the evidence and the Court's assessment of the credibility and demeanor of the parties, the Court finds the following:
The parties have a long history before this Court and before the Supreme Court, Dutchess County. On August 25, 2003 the mother obtained an order of protection from this Court against the father which required that he attend substance abuse counseling and Alcoholics Anonymous meetings. The order was issued for a period of six months pursuant to an adjournment in contemplation of dismissal of the mother's family offense proceeding. The order also required that the father refrain from conduct such as assault, stalking, harassment, menacing, reckless endangerment, intimidation, threats or any other criminal offense against the mother.
The parties then separated in 2004 when the mother obtained an order of protection which ordered the father removed from the house. They were divorced by judgment of the Supreme Court, Dutchess County, dated September 26, 2007 (Amodeo, AJSC). During the pendency of the divorce proceedings, the parties entered into an order of custody on consent dated October 27, 2006, which provided, among other things, for joint custody of the child, with the mother having primary physical residence and final decision making authority with respect to all major matters affecting J.'s welfare. The father was granted custodial time on alternate weekends from Saturday until Sunday, and on Tuesday after school until 7:30 PM. All overnight visitation had to take place at the paternal grandparents home and had to be "generally supervised" by them. The father could only attend school functions at which the child was present if a supervisor was also present. The order further provides that the father not consume any intoxicating substances; that he provide the law guardian1 with a copy of his alcohol rehabilitation discharge papers; and that he not drive an automobile with the child in the car until further order of the Court and until he obtained a valid New York State driver's license.
"Law Guardian" is now referred to as the "attorney for the child".
The custody order also provides that neither party may move more than 25 miles from his/her current residence without giving the other party 90 days' notice.
The mother credibly testified that she agreed to this custody order on advice of counsel after being told that these provisions were standard and because she hoped that the father would successfully complete rehabilitation to address his alcohol and substance abuse issues.
As noted above, over the years, the mother had obtained several orders of protection against the father. On October 19, 2006, at the same time that the custody order was agreed to, an order of protection was issued by the Supreme Court in the divorce action. The order provided, inter alia, that the father was to have no contact with J., other than as was specified in the written custody order.
This Supreme Court order of protection expired on August 18, 2008. The mother did not seek to have it extended because the father was incarcerated when it expired and she did not feel she needed it. In March 2008, although the father was prohibited by the terms of this order of protection from having contact with J. at school, he showed up at the child's school, creating an incident. The child was embarrassed by what occurred and did not want to go back to school the next day.
A temporary order of protection was issued by this Court on July 30, 2009, pursuant to Family Court Act § 656 in favor of the mother and J.. This order was amended several times and expired on January 30, 2010.
The father has a long history of alcohol and substance abuse. In 1995 he was convicted of driving while intoxicated. Since 2003, he has spent time in the county jail and state prison. He has been on probation and is presently on parole. He has been in rehabilitation programs between seven and nine times. In October 2004, one week after being released from a rehabilitation program, he was arrested for a felony charge of driving while intoxicated. J. was in the car at the time and the father was also charged with endangering the welfare of a child. He pled guilty and was sentenced to 5 years on probation, with six months of electronic monitoring. He resided at his parents' home while on electronic monitoring. He violated the terms of his probation because he tested positive for alcohol and cocaine. In March 2007, the father was incarcerated in the Dutchess County jail for a period of six months. From October 2007 until May 2008 he was at Hope House, a rehabilitation facility. He drank while at the program and was expelled for not following the rules. He was thenre-sentenced to New York State prison where he remained until August 2009. The father has been on parole since August 22, 2009 and although one of the conditions of his parole is to refrain from drinking alcohol, when he testified in Court on January 4, 2010, he admitted to drinking as recently as December 2009.
During each of the periods of incarceration and rehabilitation, the father had no "in person" contact with his son, except when he was out on a "day pass" from a program. The father testified that he did not want J. to visit him while he was at any of the various rehabilitation programs or in jail. He did have contact through letters and by telephone.
During the substantial periods that the father was absent from his son's life, he never told J. where he was. He just said he was away and that he would be home soon. During these times the mother voluntarily allowed J. to have contact with the father's family, who would give the father updates about J.. The mother allowed this contact although there was no court order requiring her to do so.
In the last 5 years, the father has been physically available to his son for a total of about 13 months. By his own admission, the longest the father has maintained sobriety has been 11 months.
The father testified that he has fun when he visits with his son and likes to buy him presents. J. seems to enjoy seeing his father. Although the father described himself as a committed and involved father, he has in fact not been involved in the child's daily upbringing since the October 2006 custody order was issued. He has not been involved in the child's schooling or medical care. Indeed, for two years following entry of the order, the father had no contact with his son at all.
As to the father's financial support of J., the judgment of divorce obligates him to pay child support in the amount of $113. per week, as well as 40% of the child care expenses. At the time of the divorce settlement, the mother forgave child support arrears in the amount of approximately $20,000. She testified that she forgave the arrears because she wanted to be divorced.
The father is not presently employed although he asserted that he is looking for work. He previously worked as a construction project manager.
Since the father has been released from prison, he has paid only about $350. in child support.
His is currently about $15,000. in arrears. He recently filed a petition which at the time of trial was pending before the Support Magistrate asserting he does not have the ability to support his son and seeks to reduce his child support obligation and eliminate his child support arrears. The mother filed a petition alleging that the father has wilfully failed to obey the judgment obligating him to pay child support.
The mother is a registered nurse and earns approximately $60,000. per year. She works 45 hours per week. In 2008 she had to refinance her home so she could pay the attorneys fees she owed from the divorce and so she could replace the windows in the house. She presently has a mortgage of $285,000. and pays yearly property and school taxes of about $8,000. Additionally, she pays another $5,000. annually for day care expenses. During the summer, when school is not in session, the mother sends J. to a camp, which costs her $225. per week. The father is not contributing to the cost of day care, although the divorce judgment requires him to pay 40% of these costs.
The mother can no longer make the mortgage payments on her house which is presently in foreclosure. Whether or not she is allowed to relocate, she and J. will shortly be displaced from their home. Further, she will not be able to afford a house in the same school district the child presently attends, so even were she to stay in New York, J. will be changing schools. The house may not even be worth what the mother owes on it, given the current real estate market, and she stated that she may have to turn it over to the bank.
The child has been in therapy for various periods since 2004. One of the reasons has been to allow the child to address the issue of the loss of his relationship with his father caused by the father's absences when incarcerated or in a rehabilitation facility.
The mother seeks to move to an area in North Carolina near where her parents live, for several reasons. She believes it will result in a significant improvement in her financial situation. Her nursing license is portable; she has investigated the employment opportunities in North Carolina and believes it will be easy to find a job. There are five top hospitals in the North Carolina area to which she would like to move2. Although the mother has been in touch with nurse recruiters, she has not actually applied for a job because she did not have court permission to move. She testified credibly that she did not want to accept a job before obtaining permission from this Court to move. She did not feel it would be right to accept a position and then possibly have to tell an employer that she could not actually accept a job offer. Further, she did not know how long the court process would take, and would not have been able to keep a job on hold. She also indicated that in North Carolina she would be able to work fewer hours to earn the same salary, enabling her to spend moretime with her son.
The area the mother intends to move to is only about 20 minutes from South Carolina, where there are additional job opportunities for nurses.
The mother has no family support in New York and has received no help from the father in providing for J.'s needs. In North Carolina her parents will be able to assist her by providing day care, which would save her a substantial amount of money. They will also provide her with housing on a temporary basis, while she looks for a home to purchase. She testified that the housing costs are lower in North Carolina and that she could purchase a home for about $135,000. The taxes would be about $350. per year compared to the $8,000. she pays in New York.
The mother has investigated the schools in North Carolina and testified that there are more academic programs available to her son there than in his school here in New York. She has also spoken to two social workers about the impact of the move on J. and his ability to make friends.
If permitted to move, the mother suggests continued contact with the father by telephone and letter and visits during the summer and school vacations, supervised by the paternal grandparents.
The mother has another child from a prior relationship, M., who is 17½ years old and presently lives with her own father. M. will be starting college in the fall and if the mother relocates, M., will remain in New York with her father. M. will likely be going to college in New York and the mother will return at times to visit her.
The mother credibly testified that her plan to move is not motivated by a desire to "get away from the father" but rather based upon a need to improve her financial situation and because in North Carolina she would have the support of her extended family. There is absolutely no evidence that the mother has ever interfered with J.'s relationship with his father.
IN CAMERA INTERVIEW
After the conclusion of the fact-finding hearing, the Court conducted an in camera interview with J. in the presence of his attorney. The Court does not make a practice of describing in detail the content of its in camera interview with the child in these types of cases. However, the Court does note that during the interview, J. spoke mostly about his mother and volunteered little about his father or their relationship. While he seems to have mixed feelings about moving to North Carolina, he felt confident he would make new friends and could play more sports there, because of the weather. He suggested that he could communicate both with his father and his sister by telephone and by using a "web cam". He could visit his father at his paternal grandparents' home in the summer. He likes talking to his father on the telephone and he would like to go to a sports camp in New York in the summer. He has a positive relationship with both his maternal and paternal grandparents.
POSITION OF THE ATTORNEY FOR THE CHILD
The attorney for J. has taken a very active part in these proceedings and submitted a written summation. She also represented the child in the prior divorce proceeding and has extensive experience in family law. Her position, on behalf of J., is that he and the mother should be permitted to move to North Carolina. She points to the fact that given the father's history of alcohol abuse and incarcerations, he is neither a reliable resource for the child financially nor has he been an active, involved parent. The child will benefit from a move to North Carolina where he can be cared for by his maternal grandparents while the mother is working and where the mother's financial circumstances will be enhanced. Moreover, the mother's move will not adversely affect the child's relationship with his father which for long periods of time has been limited to telephone and letter contact, as a result of the father's own actions. Telephone and written contact clearly can continue. Further, she recommends that the father have visits with J. during school breaks and during thesummer, supervised by the paternal grandparents, as is presently the case.
APPLICABLE LAW
Where parties have entered in to a stipulation resolving custody, that stipulation will not be modified unless there is a sufficient change of circumstances since the time of the stipulation and unless modification is in the best interests of the child ( Roelofsen v. Tiberie , 64 AD3d 603 ; Matter of Said v. Said , 61 AD3d 879 ). There must be a showing of a change in circumstances such that modification is required to protect the best interests of the child as determined by a review of the totality of the circumstances ( Bonthu v. Bonthu , 67 AD3d 906 ). The need of a custodial parent to relocate may constitute such a change in circumstances if good cause is shown for the move ( Mooney v. Ferone , 34 AD3d 679 ).
Each relocation case must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is more likely to serve the best interests of the child ( Tropea v. Tropea, 87 NY2d 727). The custodial parent must establish good faith reasons for wanting to relocate. Factors to be considered include, but are certainly not limited to each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and non-custodial parents, the impact of the move on the quantity and quality of the child's future contact with the non-custodial parent, the degree to which the custodial parent's and the child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the non-custodial parent and the child through suitable visitation arrangements ( Martino v. Ramos , 64 AD3d 657; Wisloh-Silverman, 39 AD3d 555). A court must be satisfied by apreponderance of the evidence that the child's best interests would be served by permitting the relocation ( Mathie v. Mathie , 65 AD3d 527).
Joint custody involves the sharing by the parents of the responsibility for and control over the upbringing of their children, and imposes upon the parents an obligation to behave in a mature, civilized and cooperative manner in carrying out a joint custody arrangement ( Fedun v. Fedun, 227 AD2d 688; Matter of Drummond v. Drummond, 205 AD2d 847, 847-848). While total agreement on all issues is not essential ( Palmer v. Palmer, 223 AD2d 944, 945; Matter of Monahan v. Monahan, 178 AD2d 829, 830; see also Hight v. McKinney, 164 Misc 2d 983), a joint custodial arrangement is appropriate only in those cases involving "relatively stable, amicable parents behaving in a mature civilized fashion" and who have demonstrated an ability to communicate and cooperate with one another, at least as to matters involving the children. (see e.g. Braiman v. Braiman 44 NY2d 584; Reed v. Reed, 240 AD2d 824; Taber v. Taylor, 238 AD2d 696; Matter of De Losh v. De Losh, 235 AD2d 851, 854 ; Matter of Ellis v. Ellis, 233 AD2d 678, 680; Brown v. Skalwold, 228 AD2d 749; Forzano v. Scuderi, 224 AD2d 385; Matter of Davis v. Kostin, 208 AD2d 975, 976, Juneau v. Juneau, 206 AD2d 647, 648; Sooy v. Sooy, 101 AD2d 287, 288-289, aff'd sub nom., Matter of Louise E.S. v. W. Stephen S., 64 NY2d 946). When the parties' relationship becomes so acrimonious, embattled and embittered that a joint custody is no longer a workable option and is no longer in the best interests of the child, modification to sole custody is warranted ( Dhingra v. Puri , 62 AD3d 935 ; Pambianchi v. Goldberg ,35 AD3d 688; Granata v. Granata, 298 AD2d 527).
Consideration should be given to the effect which any inappropriate behavior of either parent may be having on the well-being of the children (See e.g. Dornbush v. Dornbush, 110 AD2d 808; Auffhammer v. Auffhammer, 101 AD2d 929; Anne D. v. Raymond D., 139 Misc 2d 718).
When the circumstances permit, children are usually best served when they are nurtured by and have significant contact with both parents ( Daghir v. Daghir, 82 AD2d 191, aff'd 56 NY2d 938; Olmo v. Olmo, 140 AD2d 191).
Finally, any custody determination depends to a very great extent upon the court's assessment of the demeanor and credibility of the witness and of the character, temperament and sincerity of the parties ( Louise E. S. v. W. Stephen S., 64 NY2d 946, 947; Canazon v. Canazon, 215 AD2d 652, lv denied, 86 NY2d 710; Kuncman v. Kuncman, 188 AD2d 517, 518).
DISCUSSION
Relocation cases, where a move by one parent to a distant location will necessarily impact the other parent's contact with their child, are never easy. The Court must focus on what will serve the best interests of the child, balancing the factors enumerated by the Court of Appeals in the Tropea, supra.
If required to remain in New York, the mother faces an untenable financial situation. Her house is in foreclosure; she is already working 45 hours per week and is unable to make ends meet financially; and, the father is not paying child support. He is in significant arrears and is without any serious prospects of employment at this time. She receives no assistance from him for the costs of day care and when school is out of session during the summer she has to pay a significant amount for J. to attend camp while she works. She has no family in New York to assist her.
At no time since 2004 has the father had unsupervised contact with J.. The father's "in person" contact with his son only resumed in August 2009, after he was released from state prison. Significantly, the father did not have to file an application to begin supervised visitation, as the mother herself assisted in arranging for the father to visit in a supervised setting. At the time the mother filed this application the father was still incarcerated and his contact with his son was limited to letter writing and telephone calls. The mother's application must be viewed in this context and against the backdrop of the father's lengthy history of alcohol and substance abuse, his failed attempts at rehabilitation, his long periods of absence from his son's life due to incarcerations and attendance in rehabilitation programs, his failure to support his son, his failure to be an involved parent in his child's education or medical care, and his limited supervised visitation.
If permitted to move, the mother will enjoy a lifestyle with fewer financial struggles, greater family support and more time with her child. Likewise, J. will benefit from his mother's financial security and availability and the regular contact with his maternal grandparents who will be providing child care.
The mother has never impeded or interfered with the child's relationship with his father. Based upon her past conduct and the Court's assessment of her credible testimony at trial, if allowed to move, the Court is confident that the mother will take steps to encourage a meaningful relationship between J. and his father.
Additionally, in considering the application to modify the parties' joint custodial arrangement, the Court is not presented with a situation in which both of the child's parents have actively shared in raising and caring for the child. Clearly, the joint custodial arrangement contemplated in the 2006 order has never been a reality. Since the parties separated, the mother has been the one to attend to all of the child's needs and has been the de facto sole custodian parent for more than half the child's life. Further, since entry of the consent order, the father has not exercised his joint custodial rights and obligations and has had only limited contact with J.. The father, by his own actions and admissions of his long history of alcohol and substance abuse and incarcerations, has not been available to care for and support his son emotionally, physically or financially. The parents' relationship has been acrimonious resulting in several orders of protection being issued against the father. The mother's hope and anticipation that, after the joint custody order was agreedto, the father would successfully address his alcohol and substance abuse issues has not been realized.
CONCLUSION AND HOLDING
Based upon the foregoing, the Court concludes that there has been a significant change in circumstances since entry of the consent order and that modification of the prior custody arrangement to award the mother sole custody is in the best interests of the child ( Mathie v. Mathie , 65 AD3d 527 ). The joint custodial arrangement agreed to by the parties is no longer appropriate or viable given the father's personal difficulties, parenting history and the breakdown in the relationship between the parties.
Further, based upon the totality of the circumstances and after weighing the appropriate factors set forth by the Court of Appeals in Tropea, supra, the Court finds by a preponderance of the evidence that the mother has established a good faith basis for relocation and that her move with the child to North Carolina will serve the long-term best interests of the child.
The Court has searched the statewide registry of orders of protection, the sex offender registry and the Family Court's child protective records and has considered the results of that search in making this determination.
The order of custody and visitation dated October 27, 2006 is modified as follows:3
Concomitantly with the decision, the Court is issuing a separate custody and situation order containing the provisions set forth herein.
1.The mother shall have sole legal and physical custody of the child, J. (DOB:
10/27/2000).
2.The mother may relocate with the child to the State of North Carolina.
3.The mother may not hereafter move from the State of North Carolina with the child without first giving the father at least 90 days' prior notice, in writing, by regular and certified mail, return receipt requested.
4.The father shall have visitation with the child as follows:
a. Two weeks during the summer vacation period observed by the school district the child is attending. The father shall notify the mother, in writing, by certified mail, return receipt requested, on or before April 1st of each year, specifying the weeks selected for visitation.
b. One week each school year during either of the child's winter or spring school recess in accordance with the child's academic school calendar. This week shall be selected by the mother and she shall notify the father of her selection in writing no later than October 1st of each year.
c. Transportation to and from all visitation shall be the responsibility of the mother, unless otherwise agreed by the parties.
d. The father shall have such other visitation as the parties may agree. If the mother is planning to be in New York, she shall give the father two weeks' notice and he shall be entitled to reasonable visitation during that period supervised by the paternal grandparents; any overnight visits shall be at their home.
e. Unless agreed to by the parties or pursuant to further order of the Court, all overnight visitation periods between the father and the child shall take place at the home of and be generally supervised by the paternal grandparents. If upon agreement the child will be anywhere other than the paternal grandparents' home for a period in excess of more than 24 hours, the mother shall be provided with the location and the telephone number where the child may be reached.
f. The father shall not consume any alcoholic beverages during periods of visitation.
The father shall not drive a vehicle with the minor child in the vehicle until such time as he has a valid New York state driver's license and further order of the Court.
5.The father may have written and/or e-mail communication with the child. If the
mother believes the communication is inappropriate, she shall forward the letter/e-mail to the attorney for the child for her review.
6.The father may have communication with the child through the use of a "web cam" at such times as the parties can agree provided both parties have access to such device.
7.Each parent shall have complete access to all health care records, information and providers concerning all matters relating to the mental and physical well-being of the child; each parent, while the child is in his or her care, shall inform the other of any illness, injury or condition which confines a child to bed for more than three days or which requires medical intervention; each parent shall sign releases or other documents necessary and/or required to permit the other to have access to health care information and/or providers.
8.Each parent shall have complete access to all school records and all personnel involved with the education of the child; a copy of all report cards shall be provided to the father within 48 hours of receipt; the mother shall sign releases or other documents necessary and/or required to permit the father to have full access to such educational records and/or providers.
9.Both parents shall be listed with all schools, day care providers, health care personnel and facilities, camps and similar individuals and institutions to receive all records and information from such individuals, institutions and agencies with respect to the child of the parties.
10.Each parent shall encourage the free exercise of the visitation/custodial rights of the other; neither parent shall do any act or make any statement which would directly or indirectly tend to defeat or make exercising visitation/custodial rights of the other parent more difficult; which would tend to disappoint the child; which is derogatory of the other parent; or, which would discourage the child from contact with the other parent. Neither parent shall allow, condone or encourage any other person to engage in any conduct which is contrary to the above provisions. In exercising custodial/visitation rights each parent shall consider the wishes, plans and activities of the child.
11.The child shall be provided with clean, adequate and suitable clothing for any scheduled visitation period and the same or comparable clothing shall be returned at the conclusion of the visit.
12.Neither parent shall expose the child to any conduct or activity which would endanger the physical, mental or moral well-being of the child.
13.Each parent shall keep the other advised of his/her current address and telephone number.
14.During any period that the child is with one parent, reasonable and peaceful telephone contact between the child and the other parent shall be allowed between the hours of 5:00 PM and 7:00 PM.
15.The appointment of the attorney for the child shall continue until October 1, 2010.
16.The father shall attend and successfully complete an alcohol treatment program and provide written proof of successful discharge to the attorney for the child.
17.The "BILL OF RIGHTS FOR CHILDREN WHOSE PARENTS ARE SEPARATED" attached hereto is made a part of this order and both parents shall respect and comply with each of those rights.
18.The terms of this order shall remain in effect until modified by this Court which specifically retains jurisdiction of this matter, unless another court has acquired jurisdiction pursuant to the terms of the Uniform Child Custody Jurisdiction and Enforcement Act or the Parental Kidnaping Prevention Act or any superseding legislation.
The foregoing shall constitute the decision and order of this Court.
NOTICE OF ENTRY
PLEASE TAKE NOTICE THAT the within is a true copy of an order entered in the office of the Clerk of the Family Court of the State of New York in the County of Dutchess on March 5, 2010.
NOTICE OF APPEAL
PLEASE TAKE NOTICE THAT the Family Court Act provides that an appeal may be taken from an order of this Court to the Appellate Division, Second Department. Section 1113 of the Family Court Act provides that the appeal must be taken no later than thirty (30) days after receipt of this order by appellant in court, 35 days from the date of mailing of the order to the appellant by the clerk of the court, or 30 days after service by a party or the law guardian upon the appellant, whichever is earliest.