Opinion
No. V–00642–12/14I.
09-10-2015
In the Matter of a Proceeding for Custody/Visitation under Article Six of the Family Court Act ERIC B., Petitioner, v. THERESA G., Respondent.
Eric B. by Courtney S. Radick, Esq., Theresa G. by Michael M. Bryant, Esq., and the child, BB by AFC Stephen W. Arnold, Esq.
Eric B. by Courtney S. Radick, Esq., Theresa G. by Michael M. Bryant, Esq., and the child, BB by AFC Stephen W. Arnold, Esq.
PROCEDURAL HISTORY
On October 6, 2014, Eric B. (here "the Father"), filed a Petition for Violation of an Order of Custody/Visitation and a Petition for Modification of an Order of Custody/Visitation against Theresa G. (here "the Mother") regarding the now thirteen year old minor child (here "BB"). The Order at issue was issued upon consent of the parties, on August 2, 2013, and duly entered on September 6, 2013 (here "the Order"). The Order granted, inter alia, joint legal and joint physical custody of BB with a three day on/three day off rotation of parenting time for the parties.
The matters came on for trial on February 10, 2015, April 9, 2015 and June 1, 2015. A Lincoln Hearing was held on June 23, 2015. At trial, the Father was represented by Courtney S. Radick, Esq., the Mother was represented by Michael M. Bryant, Esq., and BB was represented by Stephen W. Arnold, Esq. At the Lincoln Hearing, BB was present with his attorney, Stephen W. Arnold, Esq. Written closing arguments were due from counsel by July 22, 2015. All counsel submitted timely closing arguments and all were considered by the Court.
At trial, the Father called to testify: Lori N., a Walmart employee; Christopher S., a police officer with the Oswego Police Department; Diana A., an employee of Pathfinder Bank; Jennifer L., the Father's girlfriend; Daniel T., a neighbor of the Father's, and the Father testified on his own behalf. The Mother testified on her behalf and she called her mother, Marcella G. to testify. The Father also testified on rebuttal. Entered into evidence by the Father was a photo of BB with a Butterfly Knife, a photo of the Mother's jeep outside of "Gary's Bar" along with a screen shot of a phone that had been used to call the Mother at Gary's Bar when the photo was taken and BB's report card dated January 3, 2015.
LEGAL STANDARD
There are two (2) petitions before the Court; one for violation of the Order and one for modification of the Order. With regard to the violation petition, Family Court Act § 156 states the following:
"The provisions of the judiciary law relating to civil and criminal contempt shall apply to the family court in any proceeding in which it has jurisdiction under this act or any other law, and a violation of an order of the family court in any such proceeding which directs a party [ ... ] to do an act or refrain from doing an act shall be punishable under such provisions of the judiciary law, unless a specific punishment or other remedy for such violation is provided in this act or any other law."
The line between civil contempt and criminal contempt may be difficult to draw (compare Judiciary Law, § 753, subd. A, par. 3 [civil contempt], with Judiciary Law § 750, subd. A, par. 3 [criminal contempt] ) but the factor that elevates civil contempt to criminal contempt is the level of willfulness with which the conduct has occurred (see McCormick v. Axelrod, 59 N.Y.2d 574, 583 [1983] [citations omitted] ). The petitioner bears the burden of establishing that respondent willfully violated the order by clear and convincing evidence (see Matter of Seacord v. Seacord, 81 A.D.3d 1101, 916 N.Y.S.2d 664 [3rd Dept 2011] ).
In order for contempt to be found, there must have been an order of the Court which clearly expressed an "unequivocal mandate" (McCormick at 583, 466 N.Y.S.2d 279, 453 N.E.2d 508 ). It must then be determined that the party being held in contempt had knowledge of the order and, finally, that the order had been disobeyed (id.; see also Matter of Petkovsek v. Snyder, [appeal No.2], 251 A.D.2d 1085 [4th Dept 1998] [concerning civil contempt] and James W.D. v. Sandra C., 44 A.D.3d 423, 843 N.Y.S.2d 73 [1st Dept 2007], Matter of Glenn v. Glenn, 262 A.D.2d 885, 692 N.Y.S.2d 520 [3d Dept 1999] and Matter of Keator v. Keator, 211 A.D.2d 987, 622 N.Y.S.2d 338 [3d Dept 1995] [regarding civil and criminal contempt] ). "In addition, it must be established that the offending conduct 'defeated, impaired, impeded, or prejudiced' a right or remedy of the complaining party" (Matter of Petkovsek at 1085 [citations omitted] ).
With regard to modification of custody, it is clear that there can be no modification of a custody order without the moving party first establishing that there has been a sufficient change in circumstances warranting a change in custody and that the change is in the best interest of the child (see Matter of Vasquez v. Barfield, 81 A.D.3d 1398, 917 N.Y.S.2d 468 [4th Dept 2011] ; Matter of Scialdo v. Cook, 53 A.D.3d 1090, 862 N.Y.S.2d 238 [4th Dept 2008] ; Matter of Brown v. Marr, 23 A.D.3d 1029, 804 N.Y.S.2d 181 [4th Dept 2005] ; Matter of Francisco v. Francisco, 298 A.D.2d 925, 748 N.Y.S.2d 72 [4th Dept 2002] ; Dintruff v. McGreery, 34 N.Y.2d 887 [1974] ). However, "[a]n existing custody and visitation arrangement that is based upon a stipulation between the parties' is entitled to less weight than a disposition after a plenary trial' " (Matter of Brown v. Marr, 23 A.D.3d 1029, 1030, 804 N.Y.S.2d 181 [4th Dept 2005] [citations omitted] ).
Once it is established that there has been a sufficient change in circumstances, the Court must then decide what is in the best interest of the child. In determining what is in the best interest of the child, the Court must consider several factors, including:
"the quality of the home environment and the parental guidance the custodial parent provides for the child ..., the ability of each parent to provide for the child's emotional and intellectual development ..., the financial status and ability of each parent to provide for the child ..., the relative fitness of the respective parents, and the length of time the present custody arrangement has been in effect"
(Matter of O'Connell v. O'Connell, 105 A.D.3d 1367, 1368, 963 N.Y.S.2d 789 [4th Dept 2013], quoting Matter of Maher v. Maher, 1 A.D.3d 987, 767 N.Y.S.2d 179 [4th Dept 2003] ).
It is also important for the Court to assess " 'the willingness of each parent to foster a relationship with the other parent' " (Matter of Chilbert v. Soler, 77 A.D.3d 1405, 907 N.Y.S.2d 757 [4th Dept 2010], citing Kaczor v. Kaczor, 12 A.D.3d 956, 958, 785 N.Y.S.2d 573 [3d Dept 2004] ). Recent case law makes clear that "a concerted effort by one parent to interfere with the other parent's contact with the child is so inimical to the best interests of the child ... as to, per se, raise a strong probability that the interfering parent is unfit" (Ordona v. Cothern, 126 A.D.3d 1544, 1545, 6 N.Y.S.3d 860 [4th Dept 2015] [internal citations omitted] ).
The Court must weigh these factors, together with the express wishes of the child, and the "stability and companionship" of residing with siblings in determining what is in the best interests of the child ( Eschbach v. Eschbach, 56 N.Y.2d 167, 173 [1982] ; see Friederwitzer v. Friederwitzer, 55 N.Y.2d 89 [1982] ). The weight the Court gives each of these factors depends on the testimony presented, and the "character and sincerity" of the parties (Eschbach at 172–173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; see Matter of Pieri v. Rider, 195 A.D.2d 1013, 600 N.Y.S.2d 578 [4th Dept 1993] ). It should be noted that while the express wishes of a child are not controlling, they are entitled to a significant amount of weight, particularly if the age and maturity of the child makes his/her input meaningful (see Stevenson v. Stevenson, 70 A.D.3d 1515, 894 N.Y.S.2d 696 [4th Dept 2010] ). However, a child's wishes should be discounted when it appears that the child's preference is based upon one parent's lack of discipline (see McCrocklin v. McCrocklin, 77 A.D.2d 624, 430 N.Y.S.2d 320 [1st Dept 1980] ) or is based upon a parent "enforcing few limitations" (Forrest v. Forrest, 212 A.D.2d 475, 476, 623 N.Y.S.2d 214 [1st Dept 1995] ).
With regard to previous orders that granted the parties "joint legal custody," recent case law has made clear that "the continued deterioration of the parties' relationship is a significant change in circumstances justifying a change in custody" (Lauzonis v. Lauzonis, 120 A.D.3d 922, 924, 992 N.Y.S.2d 586 [4th Dept 2014] [internal quotation marks omitted] ). See also, York v. Zullich, (89 AD3d 1447, 1448 [4th Dept 2011] ["the deterioration of the parties' relationship and their inability to co-parent renders the existing joint custody arrangement unworkable] ); Ingersoll v. Platt, (72 AD3d 1560, 1561 [4th Dept 2010] ["the parties' acrimonious relationship and inability to communicate with each other renders the existing joint custody arrangement inappropriate"] ); Heintz v. Heintz, (275 A.D.2d 971, 972 [4th Dept 2000] ["given the inability of the parties to communicate with each other, joint custody is not appropriate"] ).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Violation:
While the violation petition sets forth several allegations, the two main issues of concerns were the allegations that the Mother withheld BB from the Father during the Father's parenting time and that, in spite of a very specific ordered provision that each party may contact the child one time during the other party's parenting time, the Mother contacted BB approximately 12 to 13 times per day when BB was with the Father.
The testimony of the Father, Jennifer L, the Mother and Marcella G., left no doubt that the Father was deprived of his parenting time with BB from on or about September 10, 2014 to October 31, 2014 when, with a strong warning from the Court that all Orders should be complied with, the Father was able to see BB. In short, it is undisputed that the Father was not able to see BB for 51 days and that one-half of that time was the Father's parenting time pursuant to the Order. What is in dispute is the reason why the Father did not see BB for 51 days. The Mother testified that BB did not go with the Father for 51 days because BB did not want to. Marcella G., BB's maternal grandmother who testified that she sees BB every day that BB is with the Mother, testified that on one occasion, she witnessed that BB did not want to go with the Father; again, on one occasion. When assessing the credibility of all of the witnesses who testified to this issue, as well as taking into consideration the in camera interview, the Court finds the Mother incredible with regard to the reason BB did not see his father after the first day and, therefore, finds that the Mother willfully violated the Order by withholding BB from the Father for a period of 51 consecutive days, half of which were the Father's parenting days.
All four requirements for a finding of contempt are present: there was a clear mandate in the Order as to when each parent had parenting time with BB; the Mother had knowledge of the Order; the Mother violated the Order and the Father's rights to parent BB, to the love and companionship of BB were clearly defeated, impaired, impeded, or prejudiced.
What is also undisputed, is that the Mother contacts BB when it is the Father's parenting time several times per day. By the Mother's own admission, she calls BB six or seven times per day when BB is with the Father. The testimony of the Father and Jennifer Losurdo, confirms that the numerous calls and/or text messages from the Mother to BB during the Father's parenting time severely impacts and impedes the Father and BB's time together. The Court finds the testimony regarding this issue to be credible and finds the Mother to have willfully violated the Order regarding this matter.
Finally, while not pled in the violation petition, the Court conformed the pleading to the proof with no objection, and, therefore, the Court also finds the Mother in violation of the Order in that the parties share joint legal custody of BB and the Mother kept BB out of school for a period of 40 days without the knowledge or consent of the Father. Additionally, the Mother enrolled BB in counseling which she attended weekly with BB and, by her own admission, the Mother never notified the Father that she was enrolling BB in counseling or that BB was attending counseling. Additionally, by the Mother's admission and the testimony of the Father, it is clear that BB has had numerous doctor's appointments with various providers that the Mother scheduled and took BB to without informing the Father of the appointments or the results thereof. Based upon the evidence before it, the Court finds that the Mother violated the Order by not informing the Father of BB's educational and medical status.
Modification:
The testimony of the Mother, the Father, Jennifer L. and Marcella G. made clear that the parties' relationship has deteriorated to the point that they cannot even speak with one another. The testimony established that in the rare event the parties do need to speak to one another, a screaming match inevitably ensues. There is no doubt that "the parties' acrimonious relationship and inability to communicate with each other renders the existing joint custody arrangement inappropriate" (Heintz at 972; see also Ingersoll at 1560). Furthermore, the same facts that created a finding that the Mother violated the Order are the very facts that must be relied upon to find a change in circumstances. The Mother withheld BB from the Father for 51 days; the Mother failed to inform the Father of BB's medical appointments; and, the Mother kept BB out of school for 40 days without informing the Father. While that parties may have been able to get along enough prior to the Order in order to agree to joint legal custody, it is clear that is no longer the case. The Court finds that there is a sufficient change in circumstances to warrant a change in joint legal custody.
With regard to physical custody, the Court finds that "the continued deterioration of the parties' relationship is a significant change in circumstances justifying a change in custody" (Louzonis at 924). The Father has met his burden by establishing a sufficient change in circumstances warranting a change in custody and that a change is in the best interest of BB (see Matter of Vasquez ), by establishing with credible evidence the Mother's actions of keeping extremely important information regarding BB from the Father and keeping BB himself from the Father. As a change in circumstances has been established, the Court must now assess what is in the best interest of BB.
Lori N. is an employee of Walmart in Oswego and has worked for Walmart for over 20 years. She is familiar with the parties from living in the same community but she does not have a relationship with any of them. Ms. N. testified that on an evening in late 2014 she was working at Walmart and witnessed an encounter between the Mother and BB. Ms. N. testified that Walmart was very busy with a lot of people in the store and the Mother was very loud and yelling at BB and arguing with BB, using profanity, including the "F-word" several times, with others in the store looking at them. The Court found Ms. N.'s testimony to be extremely credible. The testimony makes clear that the Mother does not stop and consider how a 12–year–old boy would feel being yelled at and spoken to like that in a public place where others can observe that behavior, including but not limited to, children that BB goes to school with or the parents of children he goes to school with.
The testimony and BB's report card established that the Mother kept BB out of school for a period of 40 days during the first quarter of the 2014/2015 school year. The Mother alleged that the school contained black mold and that BB was highly allergic to black mold. The Mother did not inform the Father that BB was not attending school. This period of time coincided with the period that BB was being kept from the Father. The Father testified that when he found out that BB was not going to school and the Mother's purported reason, the Father arranged with the Principal of the school to have air quality tests done at the school. Air quality tests and "smears" were done every day for three weeks and the results of those tests were that there was no black mold present in the school. BB then returned to school. The Court finds that BB was not happy not attending school for that period of time and that he was pleased to return to school. The Court found the Father's testimony regarding these issues to be credible and the Court found the Mother's testimony regarding these issues to be incredible. BB's report card established that BB is a very good student.
September 13, 2014 to October 31, 2014.
The testimony established that the Father is retired and that the Mother recently obtained employment working 35–36 hours per week. The testimony of Christopher S., from the Oswego Police Department and of Diana A., from Pathfinder Bank established that accounts at Pathfinder Bank were set up by the Father and his family for BB and that the Mother illegally accessed the accounts and depleted the funds and, in fact, created a negative balance, using those funds for her own purposes. The Mother admitted that she did so, had criminal charges brought against her and accepted a plea offer. The testimony also made clear that the Mother is most unwilling to foster a relationship between BB and the Father, and in fact, attempts to impede that relationship. It is clear that the Mother moved her residence in 2014 and did not inform the Father. With regard to these issue, the Court finds the Father and his witnesses' testimony to be credible and finds the Mother's testimony to be incredible.
Making clear to the Court that the Mother had no regard for the impact a poor credit rating may have on her minor son.
CONCLUSION
With regard to the Mother's violation of the Order, the Court must make clear that the Mother has come dangerously close to being incarcerated for a significant amount of time. The Court's concern for BB is the only reason that—this time—the Court will not impose the sanction of incarceration upon the Mother. The Court is also not going to award the Father attorney's fees. The Mother's attorney is assigned, indicating that she lives at or near the poverty level. While the Mother testified that she has new employment of approximately 35–36 hours per week, there is no testimony regarding her hourly wage. The Court is fearful that imposing the sanction of attorney's fees upon the Mother will mean that BB goes without; that is not the desired result. The Court will, however, be imposing a fine upon the Mother as more clearly set forth below.
With regard to modification of the Order with regard to legal custody, the Court is modifying the joint legal custody provision and granting the Father sole legal custody of BB. The Mother will have full access to records and providers of BB's medical, dental and educational providers but that access will be for information purposes only; not for decision making purposes. The specifics will be more fully set forth below. However, the Court must make clear that it will require the Father to schedule all of BB's medical, dental and educational appointments and bring BB to those appointments. The Father will also be required to inform the Mother of those appointments in a timely fashion so that she may attend, once again, for information purposes only. The Mother will be permitted to have BB attended to medically for emergency purposes only.
With regard to the modification of physical custody, the Court is modifying the physical custody provision from a three day on/three day off schedule to a week on/week off schedule, once again, at this time. The Mother's behavior has brought her dangerously close to having very limited parenting time with BB. The only reason the Court is not limiting that time now is because BB is very used to a 50/50 split with his parents and enjoys the time with his Mother and to make a tremendous change at this time may hurt him more than help him. However, the Mother herself indicated that she would be agreeable to "make up" time for the Father of the time that she kept BB from him; approximately, 25 days of his parenting time. Therefore, what the Court will be ordering is that the Father have physical custody of BB with the Mother to have parenting time with BB every other week from Friday evening at 6:00 p.m. to the following Friday evening at 6:00 p.m. However, given that the Father is entitled to 25 "make up days", regardless of whose parenting time it has been, the Father shall have his parenting time with BB beginning on Friday, September 18, 2015 at 6:00 p.m. and he shall have BB in his care until Saturday, September 26, 2015 at 6:00 p.m. The Mother shall then have her parenting time on Saturday, September 26, 2015 at 6:00 p.m. until Friday, October 2, 2015 at 6:00 p.m. This rotation shall continue for a period of one year where the Father shall have Friday at 6:00 p.m. until the Saturday, eight days later at 6:00 p.m. and the Mother having from Saturday at 6:00 p.m. until the following Friday at 6:00 p.m. so that the Father shall have the parenting time that was withheld from him without BB being the one paying a tremendous price for it.
The Court would like to call to the Father's attention, at this point, that BB is now a teenager. Before long he will be off beginning his own, young-adult life. The precious time with him now should be focused on him and not distracted by other relationships.
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In summation, the Court Orders the following:
1. That the Mother pay a fine of $250.00 to the Father's attorney, Courtney S. Radick, Esq., on behalf of the Father, within 30 days of this Decision;
2. The Father shall have sole legal custody and sole physical custody of BB;
3. The Father shall schedule all of BB's medical, dental and educational appointments and shall take BB to those appointments;
4. The Father shall notify the Mother of all of BB's scheduled appointments in a timely fashion so that the Mother shall be allowed to attend if she so wishes for informational purposes, not decision making purposes;
5. The Mother shall be allowed to have BB attended to medically when he is in her care for emergency purposes only;
6. The Mother shall have full access to all of BB's medical, dental and educational records and providers for informational purposes only and a copy of the final order shall serve as a release for the same;
7. For a period of 52 weeks, beginning on September 18, 2015, the Father's parenting time shall be from Friday at 6:00 p.m. to Saturday, eight days later, at 6:00 p.m., and the Mother's parenting time shall be from Saturday at 6:00 p.m. to Friday, six days later, at 6:00 p.m., every other week;
8. Beginning 52 weeks from September 18, 2015, the Father shall have parenting time from Friday at 6:00 p.m. until the following Friday at 6:00 p.m. every other week and the Mother shall have the alternate weeks from Friday at 6:00 p.m. to Friday at 6:00 p.m.;
9. The Holiday Schedule for parenting time shall be as follows:
a. For the remainder of 2015, the Father shall have all holidays with BB, specifically:
i. Thanksgiving—the Father's parenting time for the holiday shall begin on Wednesday, November 25th at 6:00 p.m. and shall continue throughout his parenting time that ends on Saturday, December 5th at 6:00 p.m.;
ii. Christmas/New Year—the Father's parenting time for the holiday shall begin on Thursday, December 24th at 6:00 p.m. and shall continue throughout his parenting time that ends on Saturday, January 2, 2016 at 6:00 p.m.;
b. Beginning in 2016 and in all odd years:
i. the Father shall have parenting time with BB for the Easter holiday beginning at 6:00 p.m. the Saturday prior to Easter through 6:00 p.m. on Easter Sunday;
ii. the Mother shall have parenting time with BB for the Thanksgiving holiday beginning at 6:00 p.m. the Wednesday prior to Thanksgiving through 6:00 p.m. on Thanksgiving day;
iii. the Father shall have parenting time for the Christmas holiday beginning at 12:00 p.m. on December 24th through 2:00 p.m. on Christmas Day; and
iv. the Mother shall have parenting time for the Christmas holiday beginning at 2:00 p.m. on Christmas Day through 6:00 p.m. on December 26th;
c. The schedule referenced in "b" above shall be reversed in all even years;
d. BB shall always be with the Mother on Mother's Day from 9:00 a .m. to 6:00 p.m.; and
e. BB shall always be with the Father on Father's Day from 9:00 a .m. to 6:00 p.m.;
10. The parties are to inform one another within 12 hours of any change in telephone numbers;
11. The parties are to inform one another a minimum of 48 hours in advance of any change in residence;
12. If either party travels outside of the State of New York with BB, that party shall provide the other with the destination location, itinerary and contact information prior to departure;
13. Neither party shall relocate BB's residence outside of Oswego County without the notarized, written permission of the other party or further Court Order;
14. There shall be such other and further parenting time as the parties may mutually agree;
15. The new order will supersede any prior order and all other terms from all previous orders shall be null and void.
The Court will prepare the Order.