Opinion
07-05-2023
In the Matter of a Custody/Visitation Proceeding Article 6 of the Family Court Act, N.K., Petitioner/Respondent, v. S.R., Respondent/Petitioner.
Joel Borenstein for N.K. Cindy Mendelson for S.R. David Polsky, Attorney for the Children. Caroline Piela Cohen, J.
Joel Borenstein for N.K.
Cindy Mendelson for S.R.
David Polsky, Attorney for the Children.
Caroline Piela Cohen, J.
Background
Parties S.R. (hereinafter referred to as "Ms. R") and N.K. (hereinafter referred to as "Ms. K" and jointly referred to as "the Parties") married in 2007. The subject children (hereinafter referred to as "SC1," "SC2" and jointly as "the Subject Children") are the biological children of Ms. R’s cousin. The Subject Children were released to Ms. R and Ms. K through kinship foster care. The Parties started fostering SCI in December 2009 and SC2 in March 2010. At this time, the Parties and the Subject Children resided in Binghamton, New York.
Shortly after the Parties started fostering SC2, they ended their romantic relationship. Ms. K alleged that shortly after their breakup, Ms. R moved to Brooklyn, New York while Ms. K remained in Binghamton, New York with the Subject Children. Ms. K further alleged that she primarily cared for the Subject Children from 2011 — 2014. Even though the Parties were no longer a couple, the Parties jointly adopted the Subject Children in 2014. Ms. R alleged that in 2015, Ms. K and the Subject Children moved from New York State without informing her of the same. Ms. K concedes that she moved with the Subject Children to Georgia, however, maintains that she informed Ms. R of her plans.
The Parties were married in Canada in 2004 but did not pursue a Canadian divorce after their relationship ended.
After Ms. K’s move in 2015, each party took the Subject Children into their care for extended periods without the other’s permission, and at times without prior notice. In turn, the Subject Children repeatedly moved back and forth between New York State, New Jersey, and Georgia.
In or around late 2016 or early 2017, a fire broke out in Ms. K’s home and caused major damage. Ms. K alleged that she asked Ms. R to temporarily care for the Subject Children. The Parties then agreed that Ms. R would care for the Subject Children in New Jersey, where she then lived. The Subject Children finished the remainder of the 2016 - 2017 school year and the entirety of the 2017 — 2018 school year in New Jersey. In Thanksgiving 2017, Ms. R and her then-partner had a domestic dispute that resulted in the involvement the police and a social services agency. The Subject Children and Ms. R spent part of the 2018 summer break in Brooklyn, New York. Ms. K visited Ms. R and the Subject Children in July 2018. During that visit, Ms. R alleged that Ms. K stated that she was going to take the Subject Children "to the store," however in actuality took the Subject Children back to live with her in Georgia. Ms. K concedes that she took the Subject Children to Georgia, however, maintains that she informed Ms. R of her plans.
In December 2018, Ms. R visited the Subject Children in Georgia. Ms. R alleged that at that time, the Subject Children lived in a motel, had limited food and were unkempt. After seeing the conditions that the Subject Children resided in, Ms. R then took the Subject Children to Brooklyn without notifying Ms. K. The Subject Children finished the remainder of the 2018 — 2019 school year in Brooklyn and continued attending school in Brooklyn through the entirety of the 2019 - 2020 school year. In May 2020, Ms. K visited Ms. R and the Subject Children in Brooklyn. Ms. R alleged that once again, Ms. K stated that she was going to take the Subject Children to the store, but instead took the Subject Children back to Georgia.
Ms. R now is employed as a travel EMT and lived in or around Tennessee for more than a year.
2020 Custody Petitions and Writ of Habeas Corpus
Ms. R filed a Writ of Habeas Corpus (hereinafter referred to as "Writ") on or about May 4, 2020, which sought the Subject Children be returned to New York and her care. The Court signed the Writ and required that the Subject Children be virtually produced. The Court did not require the Subject Children to be returned to New York State from Georgia because of the dangers posed by interstate travel because of the ongoing COVID 19 Pandemic. The Court dismissed the Writ as satisfied after the Subject Children were virtually produced and appeared to be safe. Thereafter, the Subject Children continued to reside in Georgia under Ms. K’s care. Ms. R filed for custody on or about June 8, 2020, and Ms. K later filed a cross-petition for custody.
Trial
A trial was conducted over twelve separate appearances, in addition to in camera interviews with the Subject Children.
Ms. R testified extensively regarding the care that she took of the Subject Children, particularly regarding the creation of a supportive home environment, enrollment in schools, academic achievements, extracurricular involvement, and community service. Ms. R’s testimony was supported by evidence and other witnesses’ testimony. Ms. R testified that Ms. K indiscriminately disrupted the Subject Children’s lives on multiple occasions by removing them from her home without discussing the same in advance. Ms. R further testified that Ms. K did not properly care for the Subject Children when they resided with her in the past. Ms. R cited examples of the Subject Children demonstrating poor personal hygiene, residing in transient locations such as motels and not properly supervising the Subject Children. Lastly, Ms. R alleged that Ms. K frustrated her visits with the Subject Children.
Ms. K testified, called third party witnesses and introduced evidence to demonstrate that she cared for the Subject Children for a longer period of time than Ms. R. Ms. K further argued that the Subject Children enjoy a safe and stable home with her. Ms. K argued that the Subject Children resided with her in Georgia for several years and are currently well-settled in school, enrolled in extracurricular activities and have friends. Ms. K further argued that Ms. R does not have a stable home, as evidenced by a domestic violence incident that occurred with an ex-partner several years ago. Ms. K also argued that Ms. R improperly took the Subject Children into her care without permission or planning. Lastly, Ms. K alleges that Ms. R frustrated her visits with the Subject Children.
At the conclusion of testimony, the court conducted an in camera interview with each Subject Child. Thereafter, counsel for Ms. R and counsel for the Subject Children submitted written closing statements. Counsel for Ms. R reiterated in her closing statement the arguments that were offered during trial. The attorney for the Subject Children stated in his closing statement that his two clients enjoy time with both parents and wish to remain close to both parents. The attorney for the Subject Children went on to state that his clients want to reside in Georgia with Ms. K and are currently comfortable with their school and friends. Counsel for Ms. K did not submit a written closing statement.
Legal Analysis:
[1, 2] The court must determine which party is awarded physical custody, legal custody and parenting time by carefully considering what is in the Subject Child’s best interests. The best interests of the Subject Child are evaluated by reviewing the totality of the circumstances. See Pagan v. Gray, 148 A.D.3d 811, 812, 48 N.Y.S.3d 750 (N.Y. App. Div. 2d Dep’t 2017); see also Eschbach v. Eschbach, 56 N.Y.2d 167, 174-175, 451 N.Y.S.2d 658, 436 N.E.2d 1260 (1982). Circumstances to be evaluated include the stability of the Subject Child’s life and relative fitness of the respective parents. See Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 94, 447 N.Y.S.2d 893, 432 N.E.2d 765 (1982). Other factors to be evaluated include
the nature and quality of the relationships between the child and each of the parties, the ability of each parent to provide for the child’s emotional and intellectual development, the parental guidance that the custodial parent provides for the child, and the effect of awarding custody to one parent on the child’s relationship with the other parent.
Pagan, 148 A.D.3d at 812, 48 N.Y.S.3d 750.
[3] The benefits of stability and continuity in the Subject Children’s lives are also factors that the Court takes into consideration. More specifically, if the Subject Children resided with a parent for an extended period and that parent is "not unfit" (Plitnick v. Oliver, 249 A.D.2d 399, 400, 670 N.Y.S.2d 364 (N.Y. App. Div. 2d Dep’t 1998)), the Court should consider the benefits of the keeping the Subject Children’s lives status quo. See McDonough v. McDonough, 73 A.D.3d 1067, —, 899 N.Y.S.2d 892 (N.Y. App. Div. 2d Dep’t 2010), quoting Larkin v. White, 64 A.D.3d 707, 710, 884 N.Y.S.2d 90 (N.Y. App. Div. 2d Dep’t 2009). This analysis does not impugn the suitability of the other parent. See Jacobs v. Jacobs, 117 A.D.2d 709, 711, 498 N.Y.S.2d 852 (N.Y. App. Div. 2d Dep’t 1986).
[4] The Court determines which party or parties hold legal custody of the Subject Children through a best interest analysis similar to the one undertaken when determining physical custody. Generally, joint legal custody is not awarded to parties who have an acrimonious relationship, as joint custody requires frequent and clear communication between parents. However, in instances where parties have a history of working poorly together, the Court can nonetheless award joint legal custody to both parents and denote "spheres of influence." Elizabeth S. v. Edgard N., 150 A.D.3d 585, 586, 56 N.Y.S.3d 51 (N.Y. App. Div. 1st Dep’t 2017), quoting Trapp v. Trapp, 136 A.D.2d 178, 181, 526 N.Y.S.2d 95 (N.Y. App. Div. 1st Dep’t 1988); Spheres of influence permit one parent to make the exclusive decisions in one area of the Subject Children’s lives, such as education, and the other parent to make exclusive decisions in another area, such as health care. Typically, a parent is given exclusive decision-making ability in areas they have an expertise or interest in. For instance, a court awarded a parent the ability to make educational decisions on behalf of a child because of her "her resourceful and proactive approach to the child’s education." Elizabeth S., 150 A.D.3d at 586, 56 N.Y.S.3d 51.
[5, 6] The Court also considers the wishes of the Subject Children when determining custody and visitation arrangements. See Koppenhoefer v. Koppenhoefer, 159 A.D.2d 113, 117, 558 N.Y.S.2d 596 (N.Y. App. Div. 2d Dep’t 1990), see also Ayers v. Babcock, 187 A.D.3d 1179, 1180, 131 N.Y.S.3d 234 (N.Y. App. Div. 2d Dep’t 2020). The Subject Child’s wishes are given great weight but are not controlling. See id. The Court will ascribe greater weight to Subject Child’s wishes "where their age and maturity would make their input particularly meaningful." Id.
[7] The weight given to the aforementioned factors depends on the "testimony presented, and the ‘character and sincerity’ of the parties." Eric B. v. Theresa G., 2015 WL 13022868, 2015 N.Y. Misc. LEXIS 5120, 5 (Fam. Ct. Oswego Co. 2015), quoting Eschbach, 56 N.Y.2d at 172-173, 451 N.Y.S.2d 658, 436 N.E.2d 1260. Accordingly, a determination of custody and visitation "largely depend[s] upon the Family Court’s assessments of the credibility, character, temperament, and sincer- ity of the parties." Edwards v. Edwards, 161 A.D.3d 979, 979-980, 75 N.Y.S.3d 596 (N.Y. App. Div. 2d Dep’t 2018).
Application:
[8] Ms. K demonstrated by a preponderance of the evidence that it is in the Subject Children’s best interests to continue physically residing with her. Ms. R will have substantial visitation as outlined below, as extensive visitation is also in the Subject Children’s best interests.
The record clearly demonstrates that both Parties love the Subject Children. Both Parties now have stable homes and provide ample care and support, However, both Parties also exercised poor judgment by impermissibly taking the Subject Children from each other’s care, at times without any preparation or forewarning, and without regard for the Subject Children’s plans or schedules. Moreover, both Parties failed to fully cooperate court ordered visitation. Because of the Parties’ acrimonious relationship and geographical distance, the Court cannot award joint physical custody.
Regardless that Ms. K may have taken the Subject Children to live with her in Georgia without notice to Ms. R, the Subject Children have now resided in Georgia for several years. The Subject Children are now 13 and 14 years old, are settled in school and have established groups of friends. The Subject Children clearly stated that they both wish to remain in Georgia and supported this request with sound and articulate reasoning.
The Court awards joint legal custody and allocates spheres of influence to each party, bearing in mind each party’s strengths.
Conclusion:
Based on the foregoing, the Court grants Ms. K’s petition in part and denies Ms. R’s petition in whole.
Ms. K is granted primary physical custody of the Subject Children.
Parties are to have joint legal custody of the Subject Children, with spheres of influence. Accordingly, Ms. K will have final decision-making ability regarding medical issues. It is important that Ms. K have the ability to make decisions regarding health care, as the Subject Children primarily reside with her, and such decisions can unfortunately be emergent in nature. Ms. R will have final decision-making ability regarding education, including schools, camps, tutors, and academic programs the Subject Children will be involved in, as she consistently demonstrated dedication to the Subject Children’s academic development. Ms. R can extensively research educational opportunities for the Subject Children through online resources and does not need to be in close geographic proximity to make sound decisions regarding the same. Ms. R is directed to inform each Subject Child’s school or schools that both Parties are to be listed as parents on all records and regarding her ability to make educational decisions on their behalf. Furthermore, Ms. R is to request that the school or schools notify her of all meetings, programs, reports or assessments involving the Subject Children.
Both Parties are to inform the other of significant medical or educational developments. Both Parties to have full access to all medical and educational records.
Ms. R is to have extensive parenting time with the Subject Children. When the Subject Children have parenting time with Ms. R, Parties will meet halfway between the Parties’ two homes to exchange the Subject Children, so long as Ms. R resides in her current area in Tennessee. Parties will provide their addresses to each other and select a midpoint via Google Maps to exchange the Subject Children no later than seven days before the parenting time is to commence. If Ms. R moves to a location that necessitates air travel, the Parties will equally split the cost of travel expenses.
Ms. R will have parenting time with Subject Children one weekend a month, Friday evening through Sunday evening, on two weeks’ notice. Ms. R is permitted to travel with the Subject Children during that time.
Ms. R will have parenting time with the Subject Children each summer for the last week of June, the entirety of July, through five days before the commencement of school in August.
Holiday schedule:
| Holiday | Ms. K | Ms. R |
|---|---|---|
| Thanksgiving week recess | Even years | Odd years |
| Christmas break, including the New Year's holiday | Odd years | Even years |
| Spring break | Even years | Odd years |
| SC2's birthday and/or birthday weekend | Odd years | Even years |
| SC1’s birthday and/or birthday weekend | Even years | Odd years |
Each party will have parenting time with the Subject Children on their birthday and/or birthday weekend.
Ms. R will have daily telephone or video contact with the Subject Children. Ms. K will not interfere with the same. Neither party can disparage the other to the Subject Children.
BASED on all the above, It is hereby ORDERED,
That Ms. K shall have physical custody of the Subject Children;
The Parties shall have joint legal custody of the Subject Children, with spheres influence as set forth above;
Ms. R shall have visitation/parenting time with the Subject Children as set forth above.