Opinion
134701
05-21-2019
In the Matter of a Child Custody Proceeding Under Article 6 of the Family Court Act D.P., Petitioner, v. N.T., Respondent.
Lee Coppage, Esq., Bronx, New York, for Petitioner Joseph Donohue, Esq., Bronx, New York for Respondent Alexandra Roisman, Esq., Children's Law Center, Bronx, New York, for the subject child
Lee Coppage, Esq., Bronx, New York, for Petitioner Joseph Donohue, Esq., Bronx, New York for Respondent Alexandra Roisman, Esq., Children's Law Center, Bronx, New York, for the subject child Aija M. Tingling, J.
Petitioner filed a petition for visitation of the subject child under Article 6 of the Family Court Act. Petitioner is the father of the subject child (Age 15). Respondent does not oppose visitation between Petitioner and the subject child. Attorney for the child (AFC) does oppose visitation between Petitioner and the subject child. A trial was commenced on August 20, 2018 and continued on August 23, 2018, November 7, 2018, January 11, 2019, and January 22, 2019. The court also conducted an in camera interview of the subject child on August 21, 2018.
Summary of Arguments
Petitioner is seeking visitation with the subject child (now age 15). He is requesting liberal parenting time on weekdays and weekends, daily phone contact, summer parenting time, an alternating holiday schedule, and the ability to attend the subject child's school functions and extracurricular activities/events. Petitioner argues that absent substantial evidence that visitation will be detrimental to the child, a noncustodial parent is entitled to reasonable rights to visitation. Further, while the child's position should be considered on the matter, it is not a controlling factor when determining visitation between a noncustodial parent and child. Petitioner asserts that the only reason his relationship has changed with the subject child is due to a disagreement between himself and Respondent, which is an insufficient reason to deny him visitation. Petitioner argues that the court should award him visitation because it is in the child's best interest.
The terms "visitation" and "parenting time" are used interchangeably throughout this decision.
LaChere v. Maliszweski, 157 AD3d 696, 697, 68 N.Y.S.3d 503 (NY App. Div.), leave to appeal denied, 31 NY3d 908, 103 N.E.3d 1244 (2nd Dept. 2018).
Ross v. Ross, 86 AD3d 615, 928 N.Y.S.2d 303 (2nd Dept. 2011).
In Bond Sr. v. MacLeod, 83 AD3d 1304, 1306, 921 N.Y.S.2d 671 (3rd Dept. 2011), the court held that the one-time argument between the maternal grandmother and the daughter, in which the mother chose not to intervene, was not of such severity to justify termination of the mother's visitation rights.
Respondent does not oppose Petitioner's request; however, she is in support of what the child wants, and the child does not want parenting time with Petitioner. Respondent believes the child is old enough to make the determination as to the extent of his relationship with Petitioner. Respondent asserts that Petitioner's aggressive and threatening conduct has caused the subject child to become uncomfortable around him and decline visitation. Respondent argues that the parenting time between Petitioner and the subject child should only be ordered and occur if and when the subject child is ready.
AFC argues that the petition should be denied as visitation between Petitioner and the subject child is not in the subject child's best interest and would be detrimental to the child. AFC argues that the subject child has consistently expressed his position that he does not want any visitation and should not be forced to visit with Petitioner, a person he considers has demonstrated a lack of concern for his interests, or feelings for a long period of time prior to the commencement of these proceedings. AFC further argues that Petitioner fails to acknowledge his role in demise of the relationship between him and the child and instead blames Respondent and the child. AFC's position is that if the court is inclined to grant Petitioner any contact with the subject child, it should be written communication via cards, letters, email messages and gifts no more than four times per year, until the subject child is ready for additional contact.
"While the denial of visitation to a noncustodial parent is a drastic result, it is warranted where compelling reasons and substantial evidence show that visitation would be detrimental to the child." Gregory C. v. Nyree S., 16 AD3d 142, 790 N.Y.S.2d 130 (1st Dept. 2005).
Factual Background
On October 23, 2017, Petitioner filed a petition for visitation with the subject child. On November 27, 2017, Respondent filed a family offense petition against Petitioner and was granted a temporary full stay away order of protection on behalf of herself and the subject child.
After issue was joined on all petitions, on February 6, 2018, the court ordered supervised visitation through Comprehensive Family Services (CFS), over the objection of Petitioner. Only two visits occurred: in part because Petitioner was dissatisfied with the social worker's intervention in the therapeutic visits; in part because in Petitioner's opinion he did not require supervised visits, and; in part due to the subject child expressing his continued wishes not to visit with Petitioner.
On August 20, 2018, the Family Offense Petition was settled on consent, in lieu of trial, without any admission of guilt or wrongdoing. The parties agreed to a one-year, full stay away Final Order of Protection on behalf of Respondent and the subject child against Petitioner, subject to court ordered visitation.
Petitioner's Testimony
Petitioner testified that he filed the instant petition for visitation because he had been unable to see the subject child after August 2017, due to a "disagreement" between himself and Respondent concerning an older daughter he has with another woman. He believes that this proceeding is a result of Respondent' s alleged threat to "make his life hell."
Petitioner testified that prior to August 2017, he saw the child all the time. He testified that he was living with Respondent and the subject child and had been living with them "for as long as he knows." Petitioner testified that the majority of his interactions with the subject child were in the home and consisted of him attempting to lead the subject child in the right direction by providing fatherly advice and talking to him about gangs. Petitioner testified that he has an older son who was shot twice and survived, and he does not want anything bad to happen to the subject child. He has never exercised any physical or corporal punishment on the subject child and described his parenting style as caring but strict.
On the other hand, Petitioner also testified that he and the subject child did not spend very much one on one time together and would be in separate rooms in the home. They did not do any activities together such as go to the park or play basketball. Following the filing of the petition, Petitioner was granted supervised visitation with the subject child, which he "presumed" was supervised due to a temporary order of protection issued against him on behalf of the Respondent and subject child. While he was unhappy with having to visit the subject child in a supervised setting, he believes the visits went well.
Petitioner testified that he is seeking weekday and weekend parenting time with the child without micromanagement or interference from Respondent, in order to teach him how to be a man and avoid his own mistakes in not completing school or a basketball career. However, when asked for more specifics concerning a parenting time schedule, other than liberal phone access, Petitioner testified that he would want as much parenting time as the child wanted. He testified that his employment is flexible which will allow him to facilitate whatever visits are ordered by the court. He would like to enroll the subject child in a basketball league with which he is involved in or engage in any other activity the subject child may be interested in and to continue to foster a relationship between the paternal grandmother and Petitioner's two other children and the subject child.
On cross examination, Petitioner became evasive and combative. When questioned as to whether he lived with Respondent and the subject child, he would not provide any time frame as to when he lived with them. Upon further inquiry, he conceded that he kept belongings at Respondent's home and maintained access to Respondent's home, but that he had his own apartment elsewhere. Petitioner testified that he resides in a two-bedroom, two-and-a-half-bathroom apartment and if granted visitation he has sufficient space for the child.
Petitioner testified that prior to these proceedings, he saw the subject child four to five times a week when picking him up from school and by virtue of being in and out of the home. It was reiterated that they did not spend much time together outside of the home, except maybe going to the park to throw a baseball and his attempts to get the subject child into basketball. He was not present for the subject child's father and son basketball games in 2015, 2016 or 2017, stating he was not informed about them. He also testified that he missed some holidays, a birthday and graduation because of the temporary order of protection that was in place. Petitioner maintained that the supervised visits went well and that the subject child did not present "standoffish" to him. However, he did not believe there was a need for supervised visits as he believed there was no issue between himself and his son.
Petitioner testified that he is employed as personal security with flexible hours and his employer will make accommodations for him to spend time with the subject child. However, if he is unable to work he does not get paid.
Finally, Petitioner testified on cross-examination that if the subject child expressed he did not want visits, while he would want to know why, he would have to respect the child's wishes.
Respondent's Testimony
Respondent testified that Petitioner is the father of the subject child. There was no specific arrangement of visitation between Petitioner and the subject child and Petitioner would see the child whenever he felt like it.
Respondent testified that in August 2017, Petitioner appeared at the child's school, where he caused a scene and embarrassed the child. He then followed Respondent and child from the school to the Bronx throwing things at her vehicle. The incident led her to file a police report and ultimately file a family offense petition for an order of protection for herself and the child. Since the incident, she has observed the child after speaking with Petitioner on the phone with an expression of worry on his face. While, she is not opposed to Petitioner having visits with the child, she is in support of whatever the subject child wants.
On cross-examination, Respondent testified that Petitioner and the subject child had daily communication, but Petitioner did not live with them and Petitioner never took the child anywhere. When Petitioner visited her home, there was very little to no interaction between him and the subject child. If the child was in her room before Petitioner arrived, he would leave her room when Petitioner arrived. Petitioner would spend his time at her apartment in her room and the child would be in another room.
Overall, Respondent would communicate with Petitioner about the general needs of the child including extracurricular activities, however she could not provide specific dates or times when these communications would occur. She would also inform Petitioner where the child would spend weekends if the child went to her sister's home; but did not necessarily encourage the child to choose to spend the weekend with Petitioner instead. Communication between Petitioner and the child stopped because the child wanted it so.
Respondent has not discussed the case with the subject child. Respondent testified that she does not want any communication with Petitioner and she has not encouraged the child to call Petitioner; however, she has never discouraged the child from having visits with Petitioner, and has encouraged the child to go to the supervised visits.
Respondent testified that she has no objection to Petitioner having parenting time with the subject child, including daily phone contact, summers and alternating holidays and attendance at extracurricular events. However, she supports whatever the child wants. Respondent testified that she is willing to foster a relationship between Petitioner and the subject child, so long as the child wishes to have a relationship with Petitioner. Chava White — CFS Social Worker
Chava White was called as a witness by Respondent's attorney. She testified that she is employed by Comprehensive Family Services (CFS) as a social worker and conducts supervised and therapeutic visits between non-custodial parents and children. The agency employs approximately fifteen to twenty social workers and two supervisors. During her three-year tenure in the employment of CFS, Ms. White has supervised "hundreds" of visits.
Ms. White testified that visits are scheduled for and generally last for one hour. CFS has general guidelines for the conduct of visits in that the visiting parent is advised not to yell, curse, speak negatively about the other parent, and to refrain from discussing the court case or legal matters; all other topics of discussion during the visits are handled case by case at the discretion of the supervising social worker.
Ms. White explained that when supervised visitation is ordered through CFS, the visiting parent is instructed to arrive fifteen minutes prior to the arrival of the child(ren). The visit generally lasts for one hour, thereafter, the child leaves and the visiting parent waits fifteen minutes before leaving. The same arrival instructions were given to the parties in this case, except Ms. White would call Respondent to send the child upstairs for the visit after Petitioner's arrival due to Respondent's order of protection against Petitioner and Respondent's fear of seeing Petitioner outside.
Ms. White met with both Petitioner and the subject child individually for the intake process. Thereafter, she observed Petitioner's interaction with the subject child during two scheduled visits. Through her observations of Petitioner for the three aforementioned occasions, Ms. White described her observations of Petitioner's demeanor as frustrated, even requesting to end a visit early, leaving after approximately thirty-five minutes into the visit.
The reports Ms. White prepared following the visits were admitted into evidence.
The first supervised visit occurred on March 27, 2018, during which Ms. White felt the need to intervene and encourage Petitioner to change his manner of communication as it was berating and aggressive towards the subject child, who was soft spoken, hesitant and did not always make eye contact with Petitioner. Ms. White testified that Petitioner took her redirection well and attempted to discuss more "light-hearted topics."
Ms. White testified that during the second visit on May 3, 2018, Petitioner's demeaner continued to be verbally aggressive, angry and berating towards the subject child. Ms. White testified that there were times that she did not intervene out of fear it would escalate the situation based on Petitioner's aggression and anger. When she did interject by suggesting that the topics discussed may be inappropriate, Petitioner responded angrily, venting his frustration towards and about Ms. White and the court, indicating "he does not care what Ms. White, or the court says." Ms. White testified that felt she was unable to create an emotionally safe environment for the subject child during the second visit, who was soft spoken, did not make eye contact and appeared uncomfortable.
On cross-examination, Ms. White was asked whether she stated to Petitioner that "Family Court is a joke" to which Ms. White responded she does not believe she made the statement. Ms. White also testified that she became aware that Petitioner requested another supervisor for his visits with the subject child; however, she still supervised the second visit.
When questioned whether Petitioner received full visits with the subject child, Ms. White testified that the second visit began late because Petitioner was verbally venting and appeared angry, and as such she did not ask Respondent to bring the child to visitation area until she was certain Petitioner was calm. Ms. White testified that her main concern was the child's emotional safety and she intervened when she believed the child was uncomfortable.
Finally, Ms. White testified that both Petitioner and the subject child expressed not wanting to have visits at the CFS agency and that their time could be spent better elsewhere.
Rebuttal Witness
Petitioner was called as a rebuttal witness to Chava White's testimony. Petitioner testified that Ms. White did in fact state to him that "Family Court was a joke" and that he requested to be assigned a different visit supervisor after the first visit because he believed Ms. White to be unprofessional. However, he did not receive one.
While Petitioner acknowledged he was angry and expressed his frustrations to the child for failing to keep in contact with paternal relatives, he testified that Ms. White is biased. Petitioner testified that during his second visit and after asking for a new supervisor, Ms. White intervened every few seconds, taking issue with everything he discussed with the child. He also testified that CFS was unfair in allowing Respondent to arrive after him, instead of the same time he was told to arrive.
In Camera Interview
On August 21, 2019, the court held a Lincoln Hearing with the subject child. The court was able to assess the child's demeanor, maturity and credibility while discussing Petitioner's request for visitation.
Analysis:
The threshold issue is whether it is in the best interest of the subject child to have court ordered visitation with Petitioner.
It is within the sound discretion of the Family Court to issue an order of visitation between a non-custodial parent and child based on the child's bests interests. "[A] noncustodial parent should have reasonable rights of visitation, and the denial of those rights to a natural parent is a drastic remedy which should only be invoked when there is substantial evidence that visitation would be detrimental to the child" or some other extraordinary circumstances exists. Cervera v. Bressler, 90 AD3d 803, 934 N.Y.S.2d 500 (2nd Dept. 2011). Michael Evan W. v. Pamela Lyn B., 152 AD3d 414, 58 N.Y.S.3d 45 (1st Dept. 2017), leave to appeal denied, 30 NY3d 910, 94 N.E.3d 485 (2018)("generally, a child's best interest lies in being nurtured by both parents, and a noncustodial parent should have reasonable rights of visitation unless there is substantial evidence that visitation would be detrimental to the welfare of the child"). See e.g. Robinson v. McNair, 90 AD3d 759, 934 N.Y.S.2d 232 (2nd Dept. 2011)(court declined to order supervised visitation between the subject children and their mother who used excessive corporal punishment to discipline the children, had poor impulse control, and failed to contribute to the children's financial support).
See In re Amparo B.T., 118 AD3d 809, 987 N.Y.S.2d 199 (2nd Dept. 2014); see also Matter of Dennis D. [Justesen], 83 AD3d 700, 922 N.Y.S.2d 90 (2nd Dept. 2011).
See also McLean v Simpson, 82 AD3d 1101, 1102, 918 N.Y.S.2d 896, 897 (2nd Dept. 2011); Wispe v. Leandry, 63 AD3d 853, 854, 880 N.Y.S.2d 497 (2nd Dept. 2009)
Where the subject child is opposed to visitation with a non-custodial parent, an order of visitation should not be left at the discretion of the child and a visitation provision conditioned on the desires of the child tends to defeat the right of visitation. However, where the child is mature enough to express their wishes, the court may decline visits to the non-custodial parent. See Rosenblatt v. Rosenblatt, 129 AD3d 1091, 12 N.Y.S.3d 230 (2nd Dept. 2015) (relying on the in camera of the then 13 and 15 year old children, after determining the children were mature enough to express their wishes, the court was entitled to place great weight on their wishes, and declined to order visitation with the non-custodial parent). See also, Mera v. Rodriguez, 73 AD3d 1069, 899 N.Y.S.2d 893 (2nd Dept. 2010)(relying upon the in camera interview of the then—12—year—old child, assessed to be mature enough to express his wishes, the court held that therapeutic supervised visitation would be psychologically detrimental to, and not in the child's best interest).
William-Torand v. Torand, 73 AD3d 605, 606, 901 N.Y.S.2d 601, 602 (1st Dept. 2010).
Rosenblatt v. Rosenblatt, 129 AD3d 1091, 1092—93, 12 N.Y.S.3d 230, 232 (2nd Dept. 2015). See also Iacono v. Iacono, 117 AD3d 988, 989, 986 N.Y.S.2d 248, 249 (2nd Dept. 2014); Cervera v. Bressler, 90 AD3d 803, 806, 934 N.Y.S.2d 500, 504 (2nd Dept. 2011); Matter of Mohabir v. Singh, 78 AD3d at 1057, 910 N.Y.S.2d 917 (2nd Dept. 2010); Matter of Mera v. Rodriguez, 73 AD3d at 1070, 899 N.Y.S.2d 893 (2nd Dept. 2010).
On the other hand, courts have issued orders of visitation, despite a child's expressed desires not to visit with the non-custodial parent, in the absence of any substantial evidence that visitation would be detrimental to the child. See Hughes v. Wiegman, 150 AD2d 449, 541 N.Y.S.2d 57 (2nd Dept. 1989)(despite teenage children's wishes for no visitation with the non-custodial parent, the court held she was entitled to visitation, where expert testimony was presented that visitation under certain conditions would be beneficial to parties and there was no substantial evidence that visitation would be detrimental to welfare of children).
Herein, the court has had an opportunity to observe Petitioner's display of aggressive behavior and use of inappropriate language and mannerisms towards the opposing party, opposing counsel in open court, which is consistent with the position of the child as advocated by the AFC, the CFS reports, the testimony of Chava White and the testimony of Respondent.
This court also takes into account that despite the child's expressed wishes that he did not want any visits with Petitioner, he still appeared for court ordered supervised visits. It is also noted that during the pendency of the trial, at the request of Petitioner and over the objection of AFC, the court issued an order for unsupervised visitation for the Thanksgiving Holiday between Petitioner and the subject child. As reported by AFC and Respondent, after great angst, the subject child refused to appear for visit, despite fear that Respondent would suffer negative consequences if the visit did not occur. The actions of the subject child are consistent with the AFC's report, which have never waivered, despite the efforts of the court and parties to facilitate visits between the Petitioner and the child. Given his age and maturity and reasoning, which were assessed by the court during the in camera interview, the child's wishes should be taken into account by the court.
The court issued a temporary order of visitation granting Petitioner parenting time with the child on Friday November 23, 2018 from 12pm to 4pm, pick up and drop off at a nearby precinct.
Prior to the filing of the instant petition, Petitioner's relationship with the child was based on incidental contact when Petitioner came to the Respondent's home, or if Petitioner picked up the child from school. While the court is hopeful that Petitioner and the subject child can expand upon the relationship they previously shared, given the circumstances in this matter, this court is reluctant to force upon the subject child, a relationship he has chosen to pause for well-articulated reasons and which has appeared to cause him great stress and mental anguish. Petitioner conceded that he would want as much visitation time as the subject child wanted. Further, Petitioner acknowledged that if the subject child did not want visits, he would respect his wishes.
Holding
Considering all of the evidence before the court, the court places great weight on the wishes of the child. He is now 15 years old (14 when the petition was filed) and has displayed enough maturity to articulate his position to the court and his reasoning for same. Based on the foregoing the facts and circumstances of this case demonstrate that the mental and emotional effects of a court ordered visitation schedule between Petitioner and the subject child are not in the subject child's bests interests at this time.
IT IS HEREBY ORDERED that the petition for court ordered visitation is denied. Dated: May 21, 2019