Opinion
06-30-2022
In the Matter of a Custody/Visitation Proceeding Article 6 of the Family Court Act v. A.L.A., Respondent. R.A., Jr., Petitioner,
Attorney for the Subject Child: Miechia Gulley, Esq. Attorney for Respondent Mother: Victor M. Urbaez, Esq.
Unpublished Opinion
File No. 2XXXXX
Attorney for the Subject Child: Miechia Gulley, Esq.
Attorney for Respondent Mother: Victor M. Urbaez, Esq.
Caroline P. Cohen, Judge
Background
Petitioner Father R. A., Jr. ("Petitioner") filed a petition seeking to modify the prior final custody and visitation order by granting him full legal and physical custody of the Subject Child N. A. ("the Subject Child").
2015 Final Order of Custody and Visitation
On or about April 16, 2015, Petitioner and A. L. A. ("Respondent," and together, "the parties") entered into a final order of custody and visitation on consent ("2015 Order"). The 2015 Order granted Respondent full physical and legal custody of the Subject Child. See 2015 Order, dated April 16, 2015. Petitioner had alternating weekend visitation from Friday at 6:00 p.m. to Sunday at 6:00 p.m. See id. The 2015 Order directed Petitioner to pick up and drop off the Subject Child curbside from Respondent's home. See id.
2020 Petition to Modify the Prior Final Order and Writ of Habeas Corpus
On or about September 2, 2020, Petitioner filed a petition to modify the 2015 Order, seeking sole custody of the Subject Child. The petition alleged that the Subject Child currently resided with him, that he would provide the Subject Child with a better home environment and is better equipped to provide for the Subject Child's emotional needs. Petitioner further alleged that the Respondent "told [the Subject Child] and [Petitioner] that she no longer wants [the Subject Child] living with her. [The Subject Child] feels uncomfortable living with [Respondent.]" See Petition, dated September 2, 2020.
The parties and the attorney for the Subject Child, Miechia Gulley, Esq. ("AFC"), appeared before Hon. Jacqueline Williams on September 30, 2020. During that appearance, Respondent stated that she no longer wished to have custody over the Subject Child. The matter was adjourned to the following month. Judge Williams issued an order permitting the Subject Child to reside with Petitioner until the following court date.
By way of counsel, Respondent filed a Writ of Habeas Corpus ("Writ") on or about October 28, 2020. Respondent also served and filed a motion seeking to dismiss the underlying custody petition for failure to state a cause of action. See Motion, dated October 28, 2020. In her affidavit, Respondent stated, "if I uttered any words or conducted myself in any way to infer or suggest that I consent to [Petitioner] having custody of [the Subject Child]" Respondent "unequivocally" does not consent. See id. Petitioner opposed the motion through counsel and alleged that Respondent repeatedly told the Subject Child that she no longer wanted custody of her, and the Subject Child no longer wanted to reside with Respondent. See Petitioner's Opposition to Respondent's Writ, dated November 10, 2020.
Oral arguments on the Writ and Respondent's motion took place on November 17, 2020. The AFC and Petitioner's counsel opposed the Writ, stating that returning the Subject Child to Respondent's home is not in the Subject Child's best interest, in that Respondent allegedly alienates the Subject Child from Petitioner, and Petitioner is better attuned to the Subject Child's emotional and intellectual needs. See Order, dated November 17, 2020. The AFC further argued that Subject Child does not want to reside with Respondent. See id. The Court ultimately granted the Writ based on the 2015 Order, as it gave Respondent, not Petitioner, full custody of the Subject Child. See id. The Court conferred with counsel and determined that Kings Court Family Court had jurisdiction over this matter despite the fact that Respondent resides in New Jersey.
The Court issued several different temporary orders regarding custody and visitation in advance of trial. On November 24, 2020, the Court ordered that Petitioner was to have weekend visitation with the Subject Child. See Order, dated November 24, 2020.
Petitioner was to pick up the Subject Child at Petitioner's parents' home in Brooklyn on Fridays at 6:00 p.m., and Respondent was to pick up the Subject Child from Petitioner's parents' home on Sundays at 6:00 p.m. See id.
At a conference on January 5, 2021, the AFC made an application for the most recent order to be revised to allow the Subject Child to spend some weekends with Respondent, as the Subject Child enjoys spending time with Respondent's side of her family. The Court revised the November 15, 2020 order to allow for such flexibility and ordered that the Subject Child could spend all or part of up to two weekends a month with Respondent. See Order, dated January 5, 2021. The Subject Child was to notify the parties 48 hours in advance of such a change. See id. At that conference, the AFC expressed concern that the parties were not communicating well. Additionally, the AFC and Petitioner and both expressed concern that Respondent used the Subject Child's cell phone to send text messages to Petitioner under the guise of being the Subject Child.
Respondent's counsel made an application to be relieved at this conference. The Court granted the application. The Court screened Respondent to ascertain if she financially qualified for the appointment of an 18b attorney and determined that Respondent was not eligible.
At a conference on February 10, 2021, parties and counsel endeavored to settle the petition. Petitioner's counsel proposed that Respondent retain physical and legal custody and Petitioner have weekend visits. Also under this proposal, the Subject Child could request partial or full weekend visits as she sees fit up to two weekends a month with Respondent. Respondent declined to settle, as she did not want to grant Petitioner the ability to have visits with the Subject Child every weekend. Abruptly, the Respondent then stated that she wanted to give Petitioner custody of the Subject Child. Respondent was argumentative and disruptive for the remainder of the appearance.
At a conference on July 16, 2021, parties and counsel discussed ongoing issues with visitation. The AFC represented that Respondent would not permit the visit to move forward if Petitioner was late to pick up the Subject Child. The AFC further alleged that Respondent would take the Subject Child's cellphone and not allow her to communicate with her father. Respondent refuted these allegations, alleged the AFC "lied," and demanded another AFC be appointed to represent the Subject Child. Respondent then alleged numerous reasons why the current AFC was unfit to continue representing the Subject Child. Respondent claimed that it was improper for the AFC to speak with Petitioner about the ongoing proceeding and the AFC did not actually speak to the Subject Child. Respondent further claimed the Subject Child did not actually want to visit Petitioner, then conversely that Subject Child wants to live with her and visit with Petitioner, that the AFC and Petitioner's counsel were working together to make changes against the Subject Child's wishes, and lastly that the AFC and Petitioner's counsel "just" want to take the Subject Child away from her.
Also at this appearance, the AFC stated that she learned Respondent filed a petition in New Jersey seeking custody of the Subject Child. Respondent neither affirmed nor denied this assertion. The Court issued an order requiring Respondent to produce any and all information regarding the commencement of a family court action seeking custody of the Subject Child in New Jersey. After application, the Court issued a revised visitation order, stating that the Subject Child has overnight weekend visitation with Petitioner at least two weekends a month, subject to the Subject Child being able to change the visitation schedule on 48 hours' notice. The Court further ordered Respondent to drop off the Subject Child at the paternal grandparents' home in Brooklyn on Fridays, and Petitioner drop off the Subject Child at Respondent's home in New Jersey on Sundays. See Order, dated July 16, 2021.
In or about July 2021, Court Attorney Marcia Schiff e-mailed Respondent and counsel a Trial Scheduling Order. The Trial Scheduling Order stated that witness lists, exhibits and exhibit lists must be exchanged by October 5, 2021. See Trial Scheduling Order, dated July 20, 2021.
In or about September 2021, Petitioner's counsel filed a notice informing the Court that Petitioner was proceeding pro se and was no longer represented by counsel. See Consent to Change Attorney, dated August 28, 2021.
Trial
The trial took place virtually because of the ongoing COVID 19 pandemic on November 19, 2021, December 1, 2021 and December 6, 2021. On the first day of trial, Respondent informed the Court that she retained counsel. Petitioner waived his right to counsel and was allocuted on the same. See Transcript, November 19, 2021, pp. 19-20.
The parties, counsel for Respondent, AFC and a Spanish interpreter were present for all days.
Evideniary Issues
On the first day of testimony, counsel for Respondent informed the Court that he sent copies of the proposed exhibits to the AFC, Petitioner, and Court Attorney Marcia Schiff. Counsel for the Respondent also stated that he uploaded the proposed exhibits to the Court's electronic filing system. See Transcript, November 19, 2021, pp. 9-11. The aforementioned was required pursuant to the Court's Trial Scheduling Order. See, Trial Scheduling Order, dated July 20, 2021. The Court informed Respondent's counsel that Ms. Schiff did not receive the proposed exhibits, and the proposed exhibits were not uploaded to the Court's electronic filing system. See Transcript, November 19, 2021, pp. 10-13. Petitioner also stated that he did not receive the proposed exhibits or lists, as required by the Trial Scheduling Order. The AFC confirmed that she previously received the proposed exhibits, exhibit list and witness list. See Transcript, December 1, 2021, pp. 12-13. The AFC also stated that the e-mail sent by Respondent's counsel included Petitioner's former counsel, who was relieved before exhibit lists, witness lists and exhibits were to be exchanged. See id at p. 12. The AFC further stated that Petitioner himself was not included on the e-mail. See id. Petitioner stated that he received an e-mail from the AFC replying to Respondent's counsel's initial e-mail, stating that Petitioner relieved his lawyer. See id at pp. 12-13.
Without objection from Petitioner or AFC, the Court repeatedly assured Respondent's counsel that he could still present evidence despite his possible failure to comply with the Trial Scheduling Order. See, e.g., Transcript, November 19, 2021, pp. 12-13; Transcript, December 1, 2021, pp. 13-14. The Court suggested that Respondent's counsel could simply circulate the proposed exhibits now or "share his screen" to present exhibits through Microsoft Teams. See Transcript, November 19, 2021, pp. 12, 13, 17. The Court further assured Respondent's counsel that his client was not prejudiced insofar as the Court will not review proposed exhibits in advance of their introduction at trial. See id. at 17; Transcript, December 1, 2021, p. 11.
On the second day of trial, approximately two weeks after the first day of testimony, Respondent's counsel confirmed that he still did not provide the proposed exhibits and lists to Ms. Schiff or Petitioner or upload the same to EDDS. See Transcript, December 1, 2021, pp. 6 - 11. On that date, the Court invited Respondent's counsel to e-mail the proposed exhibits to Ms. Schiff no less than four times. See id. at pp. 6, 7, 8, 11, 13-14. Again, neither the AFC nor Petitioner objected to Respondent's counsel's introduction of exhibits at trial.
Petitioner also did not circulate exhibits, exhibit lists and witness list as required by the Trial Scheduling Order. Respondent's counsel made repeated objections to Petitioner introducing exhibits into evidence because of Petitioner's failure to comply with the Trial Scheduling Order. See Transcript, December 1, 2022 at pp. 5-6, 8-10, 16- 21, 34. The Court repeatedly explained to Respondent's counsel that if Petitioner was precluded from entering evidence because he did not comply with the Trial Scheduling Order, then Respondent's counsel would also be precluded from entering evidence on the same grounds. See id. at pp. 18-21, 34-35. In response, Respondent's counsel stated that he "certainly support[s] that decision because all [he] can ask for as an attorney is for balance and fairness." Id. at p. 21. Respondent's counsel further stated that precluding either side from presenting evidence was "in the interest of balance." Id. at pp. 41-42. Petitioner agreed to proceed without being able to produce any evidence. See Transcript, December 1, 2022, p. 43. The Court gave Petitioner and counsel for Respondent the opportunity to present evidence on rebuttal, and both declined. See Transcript, December 6, 2022, pp. 42-43. At the end of the trial, the Court invited Respondent's counsel to make a motion regarding any evidentiary issues he wished to preserve. See Transcript, December 6, 2022, pp. 79, 87-89. Respondent's counsel did not file any such motion.
Testimony
Petitioner testified generally as to why it is in the Subject Child's best interest to reside with him. Petitioner argued that the Subject Child would be in "a better place mentally" in his custody, that the two are very close and speak every day. See Transcript, November 19, 2021, pp. 22-23, 34-35; see also Transcript December 1, 2021, p. 45. Petitioner stated that he has a bedroom ready for the Subject Child in his home and identified possible middle schools for the Subject Child. See Transcript, November 19, 2021, p. 34; Transcript December 1, 2021 at pp. 79-80. Petitioner stated that if he were to have full custody of the Subject Child, he would fully comply with the Respondent having visitation, including over the summer and during holidays. Petitioner further testified that he would permit the Subject Child to communicate with Respondent as often as the Subject Child sees fit. See Transcript December 1, 2021, pp. 89-90.
By way of counsel, Respondent presented a variety of arguments as to why Petitioner should not have full custody of the Subject Child. Respondent alleged that Petitioner improperly "detained" the Subject Child beyond an agreed two-week visit. See Transcript, December 1, 2022, p. 105, 155. Respondent permitted the Subject Child to extend her visit because the Subject Child wanted to spend more time with Petitioner. See id. The Respondent attempted to utilize the police to return the Subject Child to her, but the police refused to intervene based on the Subject Child's wishes. See id. The Subject Child resided with Petitioner for several months, at which time Petitioner was required to return the Subject Child to Respondent pursuant to a Writ of Habeaus Corpus. See id, and at p. 70.
Petitioner testified that he did not comply with the 2015 Order at other junctures as well. Petitioner stated that he did not visit with the Subject Child from February 2020 through June 2020. See Transcript, December 6, 2022, pp. 45-46. However, Petitioner explained that he did not visit with the Subject Child during this period because Respondent had COVID during that time, which concerned Petitioner because of his and his family members' underlying health conditions. See id. and at 32-33, 46. Petitioner also stated that he did not have in-person visitation with the Subject Child from September 2021 through December 2021. See Transcript, December 1, 2022, p. 59. Petitioner stated that he did not exercise his right to visitation rights from approximately September 2021 through December 2021 because he did not want to be put in the "position" of "being at the [Respondent's] house," as Respondent previously accused him of sexually harassing her. See Transcript, December 1, 2022, pp. 62-64, 72-73. Petitioner further testified that the drive from his home in Middletown, New York to Respondent's home in Trenton, New Jersey takes approximately two hours one way, and that such an extensive drive was taxing on his health, as he donated a kidney to his father in 2019. See id at pp. 72-73.
Respondent attacked the level of care and attention Petitioner provides to the Subject Child. For instance, Respondent testified that Petitioner only visited the Subject Child once when she was hospitalized for multiple days, whereas Respondent consistently visited with the Subject Child. See Transcript, December 1, 2022, pp. 48-50. Respondent also alleged that Petitioner puts the Subject Child in stressful situations, which caused her to shake. See Transcript, December 1, 2022, p. 133-135.
In response, Petitioner explained that when he visited the Subject Child in the hospital, Respondent then "got somebody from the hospital to say that we're not supposed to be there." Transcript, December 1, 2021, p. 87. As a result of this exchange, the Subject Child cried. See id. Petitioner further explained that Respondent had him removed from the hospital. See id. at p. 88. Respondent denied having Petitioner escorted out of the hospital or asking him not to return. See Transcript, December 6, 2022, pp 127-128.
By way of counsel, Respondent argued that the Subject Child should remain in her custody. Respondent testified that the Subject Child attended school in Hamilton Township, New Jersey from first grade on, and received "A's all the time" while residing with her. See Transcript, December 1, 2021, pp. 98, 102. Respondent left work early to assist the Subject Child with schoolwork. See id at pp. 103-104.
Respondent testified that she dedicated her life to taking care of the Subject Child. See Transcript, December 1, 2021, p. 150. Respondent stated that she worked at night for five years so she could personally pick up and drop off the Subject Child at school. See id. Respondent further testified that she provides the Subject Child with a safe place to live, her own bedroom and cares for her when she is sick. See id and at p. 108. Respondent further testified that her relationship with the Subject Child "improved quite a bit" since September 2021 and "[r]ight now, [they] have a good relationship." Transcript, December 1, 2021, pp. 107-108. Respondent testified that she tried to repair her relationship with the Subject Child by "help[ing] her out like always" and "giving her the love that I have always [given] her," and being "attentive with her things, her school, her homework." Transcript, December 1, 2021, p. 108.
Respondent testified that the parties split the Thanksgiving, Christmas and New Year holidays in 2019, 2020 and 2021, in compliance with the 2015 Order. See Transcript, December 1, 2021, pp. 151-152.
Respondent further testified that she provides Petitioner with the Subject Child's medical records. See Transcript, December 1, 2021, p. 152. Additionally, Respondent stated that she provided Petitioner with the Subject Child's school account number and password, which provides Petitioner access to the Subject Child's school records. See id. Respondent testified that she listed Petitioner with the Subject Child's school so that he could receive information on her grades and parent teacher conferences. See Transcript, December 6, 2021, p. 23.
Petitioner refuted Respondent's arguments as to why it is in the Subject Child's best interests for her to retain custody. Petitioner asserted that Respondent does not comply with the 2015 Order, therefore depriving him of visitation with the Subject Child. See Transcript, December 1, 2021, p. 81. Petitioner testified that he was "forced" to bring a custody and visitation petition because Respondent made him "battle" for time with the Subject Child. See Transcript, November 19, 2021, p. 22.
Petitioner alleged that Respondent "was alienating" him from the Subject Child. See Transcript, December 1, 2022, pp. 66-67. Petitioner argued that Respondent alienated him from the Subject Child by "reject[ing]" him when he attempted to pick up the Subject Child for scheduled visitation on between six and eight occasions from 2015 through 2020. See Transcript, December 1, 2022, pp. 66-69, 71.
Furthermore, Petitioner alleged that Respondent took the Subject Child to the Dominican Republic for a "couple of months," therefore denying him visitation. See id. at p. 81. Petitioner further alleged that Respondent did not properly notify him of the impending trip to the Dominican Republic, only alerting him at "4:00 in the morning" the day the Subject Child was due to leave. See id. Respondent later confirmed that she notified Petitioner regarding the Subject Child's travel plans by e-mail and less than 24 hours in advance. See Transcript December 6, 2021, p. 51. Respondent also testified that at times she required the Subject Child herself to address visitation issues, such as time spent abroad, with Petitioner. See id. at pp. 49-51.
Petitioner alleged that he attempted to speak with the Subject Child daily by calling Respondent's cell phone but was unable to do so. See Transcript, December 1, 2022, p. 67-68. Thereafter, Petitioner purchased a cell phone for the Subject Child to speak with her directly without the involving Respondent. See id. at p. 67.
Petitioner further alleged that Respondent "scream[s]" at the Subject Child and engages in "name calling." Transcript, November 19, 2021, pp. 34-35. Petitioner stated that Respondent is verbally aggressive with the Subject Child "all the time," and that this behavior "just got[ ] worse" the more mature and "outspoken" the Subject Child becomes. See Transcript, December 1, 2021 at p. 74. Petitioner alleged that this behavior "affects [the Subject Child] hugely." Id. at p. 73. Petitioner stated that after arguments between the Subject Child and Respondent, he "sit[s] down with [the Subject Child] in [a] closet calming [the Subject Child] down." See id. Petitioner additionally alleged that the Subject Child "starts shaking and starts getting very nervous" before returning to Respondent's home, as Subject Child "can't prepare herself on how [Respondent's] going to react to her again." Id. at p. 74.
Petitioner alleged that he does not have access to the Subject Childs's medical records, despite asking Respondent for them. See Transcript, December 1, 2022, pp. 76-77. Petitioner also testified that he is not listed as a parent with the Subject Child's school. See Transcript, December 1, 2022, pp. 77-79. Petitioner alleged that he previously requested information from Respondent regarding school conferences and events, but Respondent did not provide the information. See id. at 79.
Petitioner alleged that Respondent "filled" the Subject Child's room in her home with "stuff on top of her bed for six months." See Transcript, November 19, 2021, p. 34. Accordingly, Petitioner alleged that the Subject Child complains that she does not have her own room in Respondent's home. See id. Petitioner argued that Respondent's actions demonstrate her taking "mental[] possession" and "showing power" over the Subject Child. See id.
Respondent repeatedly interrupted the proceedings with commentary. See, e.g., Transcript, November 19, 2021, pp. 20, 21, 37, 38; Transcript, December 1, 2021, pp. 24, 27, 28, 113, 119, 123, 124; Transcript, December 6, 2021, pp. 65-66.
Furthermore, Respondent mother did not testify credibly regarding the commencement of a custody proceeding on her behalf in New Jersey. At trial, the AFC stated that she was served with a complaint for custody filed on behalf of Respondent in the Superior Court of New Jersey. See Transcript, December 1, 2021, p. 114. The AFC also stated that the document was purportedly signed by Respondent. See Transcript, December 1, 2021, p. 115. Petitioner also stated that he was served with the complaint two separate times. See Transcript, December 1, 2021, pp. 121-122. Respondent denied commencing any such proceeding, and then explained that her "lawyer [from New Jersey] sent in a document without [her] authorization." Transcript, December 1, 2021, p. 114. Respondent further alleged that that same attorney "drafted and mailed documents repeatedly without [her] permission," and forged her signature. See Transcript, December 1, 2021, p. 123.
Respondent's counsel argued that this Court does not have jurisdiction over this proceeding, as Respondent resides in New Jersey and Petitioner moved to Middletown, New York. See, Transcript, December 1, 2021, pp. 109-113. The Court advised Respondent Counsel that his predecessor raised the same issue and on November 17, 2020, the Court ruled on the record that Brooklyn, New York, is the proper jurisdiction. See id at p. 112.
Respondent testified inconsistently regarding whether she told the Subject Child that she did not want the Subject Child to live with her. See Transcript, December 1, 2021, p. 165. Respondent first stated that she did not tell the Subject Child that she did not want to her to live with her. See id. After the Court reminded Respondent that she was under oath and had to answer the question truthfully, Respondent admitted that she previously stated that she did not want the Subject Child residing in her home "beginning of the case." See id. at pp. 165-166. Respondent attempted to clarify that she made the statement because "she didn't have any knowledge about how this proceeding will go." See id. at p. 166. Upon further inquiry, Respondent stated that she told the Court that she did not want the Subject Child to live with her "several times," but clarified that she "didn't understand the process." See id. at pp. 168-169. Respondent also testified inconsistently regarding the Subject Child's grades. Respondent first stated that the Subject Child received "F's, D's and C's" when she resided with Petitioner, then later testified that the Subject Child received a final grade of A during that same period. See Transcript, December 1, 2021, pp. 98, 160. Lastly, Respondent initially denied using the Subject Child's phone to communicate with Petitioner. However, Respondent later clarified that she possibly texted Petitioner from the Subject Child's phone, but did so as herself. See Transcript, December 1, 2021, pp. 169-171.
The AFC alleged that Respondent refused to facilitate unfettered contact between her and the Subject Child. See Transcript, December 6, 2021, p. 66. The AFC stated that Respondent does not allow the Subject Child to speak with her privately, and further alleged that the Subject Child informed her that Respondent reviews all e-mail correspondence between her and her client. See id. at pp. 66-67. The AFC stated that on October 5, 2021, she e-mailed Respondent's counsel and Petitioner regarding these issues, and further stated that she was going to ask the Court for sanctions against the Respondent if this behavior continued. See id. Respondent's counsel stated that he did not receive an e-mail regarding these allegations from the AFC. See Transcript, December 6, 2022, p. 68.
An in camera interview between the Court, Subject Child and AFC took place on December 22, 2021.
Legal Analysis:
To modify a prior final custody or visitation stipulation or consent order, a petitioner must demonstrate a change in circumstances that necessitates revision to the previous order. See Lazo v. Cherrez. 121 A.D.3d 999, 1000 (NY A.D.2d Dep't 2014); see also Gurewich v. Gurewich, 58 A.D.3d 628, 629 (NY A.D.2d Dep't 2009), quoting Fallarino v. Ayala, 41 A.D.3d 714, 714 (NY A.D.2d Dep't 2007). The change in circumstances does not need to be "extraordinary," but instead simply must necessitate a change to serve the Subject Child's best interests. See Rivera v. Fowler, 112 A.D.3d 835, 836 (NY A.D.2d Dep't 2013).
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 (NY A.D.2d Dep't 2017); see also Eschbach v. Eschbach, 56 N.Y.2d 167, 174-175 (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 (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.
An additional factor which the Court must consider is whether the person seeking a change in custody will facilitate meaningful contact between the non-custodial parent and Subject Child. In fact, fostering a relationship between the Subject Child and the non-custodial parent is "one of the primary responsibilities of a custodial parent." Freeborn v. Elco, 188 A.D.3d 677, 679 (NY A.D.2d Dep't 2020). Conversely, interference with the relationship of a non-custodial parent and the Subject Child is antithetical to the Subject Child's best interests and even "raise[s] a strong probability that the offending party is unfit to act as custodial parent." Id. Accordingly, a change of physical custody is appropriate where the custodial parent interferes in the relationship between a non-custodial parent and the Subject Child. See Tori v. Tori, 103 A.D.3d 654, 655 (NY A.D.2d Dep't 2013).
Extreme interference by one parent in the relationship shared by the other parent and the Subject Child is a hallmark of parental alienation. An allegation of parental alienation requires additional careful analysis, as such a finding bears greatly on the best interests of the Subject Child. To this end the New York State Court of Appeals clearly stated that alienation of a child from one parent at the hands of the other "is an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the [offending party] is unfit to act as custodial parent." Bennett v Schultz, 110 A.D.3d 792, 793 (NY A.D.2d Dep't 2013) (internal quotations omitted).
The standard for parental alienation is high. Foremost, alienation is not only evaluated vis-a-vis the alleged bad actor's actions. The Court must evaluate whether the Subject Child wants to distance themselves from the allegedly alienated parent because of that parent's own actions. See Jurgielewicz v. Johnston, 114 A.D.3d 945, 945 (NY A.D.2d Dep't 2014), citing Barlow v. Barlow, 112 A.D.3d 817, 818 (NY A.D.2d Dep't 2013).
In such instances, parental alienation does not lie. Moreover, if the Subject Child simply wishes to maintain a relationship with the allegedly alienated parent, then there is no alienation. See John A. v. Bridget M., 16 A.D.3d 324, 330-31 (1st Dept 2005).
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 NY Misc. LEXIS 5120, 5 (Fam. Ct. Oswego Co. 2015), quoting Eschbach, 56 N.Y.2d at 172-173. Accordingly, a determination of custody and visitation "largely depend[s] upon the Family Court's assessments of the credibility, character, temperament, and sincerity of the parties." Edwards v Edwards, 161 A.D.3d 979, 979-980 (NY A.D.2d Dep't 2018).
The Court also must consider the wishes of the Subject Child. When the Subject Child is old enough to express needs or preferences regarding custody and visitation, it is incumbent on the Court to ascertain what the Subject Child's wishes are. See Koppenhoefer v. Koppenhoefer, 159 A.D.2d 113, 117 (NY A.D.2d Dep't 1990), see also Ayers v. Babcock, 187 A.D.3d 1179, 1180 (NY A.D.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.
The Family Court Act unequivocally states that a child involved in family court proceedings are to be represented by their own independent attorney. See Fam. Ct. Act § 241. The AFC is required to present the Subject Child's position to the Court, and zealously advocate for the same. In instances where the Subject Child is old enough to articulate a clear and reasonable position, the AFC will not substitute judgment for the Subject Child. See Clarence M. v. Martina M., 68 Misc.3d 457, 469 (Sup. Ct. NY Co. 2020). The AFC must act in the Subject Child's best interests, not the parents' best interests. See In Re Brittany W., 25 A.D.3d 560, 560 (NY A.D.2d Dep't 2006). Moreover, the AFC must operate independently from parental influence, as a "child is a person, and not a sub person over whom the parent has an absolute possessory interest. A child has rights too, some of which are of a constitutional magnitude." Bennett v. Jeffreys, 40 N.Y.2d 543, 546 (1976). A parent cannot interfere with the AFC's legal representation of a child, regardless of whether the AFC's position is contrary to the parent. See generally Zappin v. Comfort, 2015 NY Misc. LEXIS 3373, 19-26 (Sup. Ct. NY Co. 2015). In the event a party seeks to disqualify an AFC from further representing a child, the moving party must present "clear evidence of an actual or potential conflict of interest or demonstrate a failure to diligently represent the child." S.A. v. S.K., 977 N.Y.S.2d 670, 670 (Fam. Ct. Bronx Co. 2013); see also In Re Brittany W., 25 A.D.3d 560, 560 (NY A.D.2d Dep't 2006). Whether an AFC should be disqualified lies in the discretion of the Court. See In Re Marvin Q., 45 A.D.3d 852, 853 (NY A.D.2d Dep't 2007); see also In Re Brittany W., 25 A.D.3d at 560.
Application:
Upon consideration of information derived witness testimony and the in camera interview, the Court grants the petition in full. Petitioner demonstrated by a preponderance of the evidence that circumstances sufficiently changed such that it is in the best interests of the Subject Child for Petitioner to have legal and physical custody.
Foremost, Petitioner testified that he maintains a healthy relationship with the Subject Child. See Transcript, November 19, 2021, p. 23; see also Transcript, December 1, 2021, p. 45. Petitioner testified that he assists the Subject Child with her schoolwork. Transcript, December 1, 2021, pp. 77, 160. Petitioner further testified that he has a spacious and stable home, in which the Subject Child's stepmother and half siblings reside, ready for the Subject Child. See Transcript, November 19, 2021, p. 34; Transcript December 1, 2021 at pp. 79-80.
Petitioner's relationship with the Subject Child contrasts with the acrimonious relationship shared between the Subject Child and Respondent. Since the issuance of the 2015 Order, the Subject Child and mother appear to have endured an increasingly combative relationship. See Transcript, December 1, 2021, p. 74. Petitioner testified credibly regarding Respondent's actions towards the Subject Child, including name calling and screaming, and stated that such incidents increased in frequency over time. See Transcript, December 1, 2022 at pp. 34, 73-74. Petitioner alleged that this behavior negatively impacts the Subject Child insofar as she physically shakes and becomes nervous after such exchanges with Respondent. See Transcript, December 1, 2022 at pp. 73-74.
The Court finds the Respondent created an unstable environment by repeatedly stating that she wished the Petitioner to have physical custody of the Subject Child, only to later state that she wished to retain physical custody. See Court Conferences, dated September 30, 2020 and February 21, 2021; see also Transcript, December 1, 2021, pp. 165-166, 168-169. Also concerning to the Court is that Respondent denied stating that she wished Petitioner to have physical custody of the Subject Child, and only admitted making such statements after the Court reminded her that she was under oath. See Transcript, December 1, 2021, pp. 165-166. Such statements are cruel to the Subject Child and robs her of a sense of stability. Moreover, the fact that Respondent purportedly uses the Subject Child's room for storage further robs her of a sense of stability in Respondent's home. See Transcript, December 1, 2021, p. 34.
The Court is concerned that if Respondent was to retain custody of the Subject Child, she would not foster continued contact between the Subject Child and the Petitioner either through regular visits or telephone contact. For example, Petitioner alleged that Respondent did not permit him to visit with the Subject Child between six and eight times since the issuance of the 2015 Order. See Transcript, dated December 1, 2021 at pp. 66-69, 71. Furthermore, Petitioner alleged that Respondent did not allow him to speak to the Subject Child as frequently as he wished. See Transcript, December 1, 2021, p. 68. Thereafter, Petitioner purchased the Subject Child her own cell phone to speak to her daily. See id. at p. 67. However, the AFC and Petitioner and both expressed concern that Respondent used the Subject Child's cell phone to send text messages to Petitioner under the guise of being the Subject Child. See Transcript, dated December 1, 2022, pp. 170-171; see also Court Conference, January 5, 2021. The AFC further alleged that Respondent would take the Subject Child's cell phone to prevent the Subject Child from speaking to Petitioner. See Transcript, dated December 1, 2022, pp. 171-172; December 6, 2022, p. 91; see also Court Conference, July 16, 2021.
Moreover, Respondent's behavior through the duration of this proceeding concerns the Court and implies that Respondent exercises poor judgment in adversarial situations. Respondent failed to consistently comport herself at conferences and during trial. For example, Respondent repeatedly interrupted the Court, counsel and Petitioner at trial. See, e.g., Transcript, November 19, 2021, pp. 20, 21, 37, 38; Transcript, December 1, 2021, pp. 24, 27, 28, 113, 119, 123, 124; Transcript, December 6, 2021, pp. 65-66.
The Court found Respondent's testimony not credible regarding the commencement of a custody proceeding in New Jersey. More specifically, the Court finds Respondent's assertion that a lawyer from New Jersey drafted a complaint, forged her signature and served the complaint multiple times not believable. See Transcript, December 1, 2021, pp. 114, 121-123.
The Court found that Respondent testified inconsistently at several points during the pendency of this case. Respondent testified inconsistently regarding whether she told the Subject Child that she did not want the Subject Child to live with her (see Transcript, December 1, 2021, p. 165), the Subject Child's grades when she resided with the Petitioner (see Transcript, December 1, 2021, pp. 98, 160) and using the Subject Child's phone to communicate with Petitioner (see Transcript, December 1, 2021, pp. 169-171).
The Court is concerned that Respondent attempted to interfere with the Subject Child's communication and relationship with the AFC. For instance, when the AFC alleged that Respondent interfered with communication between the Petitioner and Subject Child, Respondent asked the Court to appoint a new AFC to the Subject Child. See Court Conference, July 16, 2021. Respondent then alleged that the AFC and Petitioner's then-attorney worked together to make changes against the Subject Child's wishes, and that the AFC and Petitioner's counsel "just" want to take the Subject Child away from her. See Id. These concerns persisted through trial, as the AFC alleged that Respondent refused to facilitate unfettered contact between her and the Subject Child. See Transcript, December 6, 2021, p. 66. The AFC stated that Respondent does not provide the Subject Child to speak with her privately, and further alleged that the Subject Child informed her that Respondent reviews all e-mail correspondence between her and her client. See Id.
Conclusion:
The Court finds that there were substantial changes in circumstances since the issuance of the 2015 Order. The Subject Child is a mature and articulate thirteen-year-old, whose relationship with the Respondent's deteriorated through the years. Respondent allegedly inappropriately screams and argues with the Subject Child, leaving her shaking and nervous. The Respondent also denied Petitioner visitation and allegedly interfered with the Subject Child and Respondent communicating as frequently as they wished. The deterioration of this relationship resulted in the Subject Child desiring to reside with Petitioner. At the time Petitioner filed the petition, the Subject Child resided in his home at the Subject Child's request. Petitioner credibly testified that he is caring and supportive of the Subject Child. Petitioner further credibly testified that he will foster a relationship between the Subject Child and Respondent were he to be the custodial parent. Lastly, Respondent demonstrated poor judgement by, for example, testifying inconsistently and incredibly.
BASED on all the above, It is hereby ORDERED, that the petition is granted in full, with Petitioner having full legal and physical custody of the Subject Child.
Visitation between Respondent and the Subject Child to be arranged between parties and counsel.