Opinion
redacted
06-29-2020
R.M., Petitioner, v. C.C., Respondent.
Petitioner — Judith Richman Respondent — Jason Advocate Attorney for the Child — Jennifer Marshall
Petitioner — Judith Richman Respondent — Jason Advocate Attorney for the Child — Jennifer Marshall Judith D. Waksberg, J.
On or about July 20, 2019, Petitioner Father (hereinafter "father") filed a petition to modify the existing settlement pertaining to his son so as to grant him sole custody and to change the parental access schedule and for a forensic evaluation of the parents and the child. When the parties appeared in court in December 2019, an attorney for the child was assigned. On or about February 21, 2020, the Respondent Mother (hereinafter "mother") filed a motion to dismiss the petition. The attorney for the child submitted papers in response to the motion to dismiss on March 5, 2020. The father's reply papers were received on or about May 11, 2020. In addition to the voluminous papers filed with the court, the court takes judicial notice of all prior orders entered in this matter.
This is the second time the father has moved in this court for a modification of the custody order entered into by him and the mother in October 2013 and modified on consent in December 2013 and again in May 2014. In September, 2015, the father sought to modify the agreement, alleging that there had been a change of circumstances warranting modification and that he should be granted physical custody and sole decision-making authority for the child. At that time, the mother moved to dismiss the father's petition on the grounds that the facts alleged did not constitute a change of circumstances. The court granted the mother's motion at that time and dismissed the father's petition. That decision was affirmed by the Appellate Division which held that: "the father failed to show that there had been a change in circumstances which could support a finding that it was in the child's best interest to change physical custody, or legal custody, to himself and, thus, he failed to meet his threshold burden [citations omitted]." Merchant v. Caldwell, 149 AD3d 941, 941-942 (2d Dept. 2017).
In his latest petition, the father has again failed to meet his burden of establishing that circumstances have changed so as to require a modification in the best interests of the child. Naclerio v. Naclerio, 132 AD3d 679 (2d Dept. 2015) ("A party seeking the modification of an existing court-sanctioned visitation arrangement has the burden of demonstrating that circumstances have changed such that modification is required to ensure the continued best interests of the children"); Leichter-Kessler v. Kessler, 71 AD3d 1148, 1148-49 (2d Dept. 2010) ("Modification of an existing custody or visitation arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child").
The father's primary argument for the existence of a change in circumstances is that he and the mother cannot agree on anything, that their relationship is one of "high conflict," that the current parental access order is one that was negotiated when the child was two years old and he is now eight years old and that the mother makes decisions when the child is with her that the father does not agree with. In addition to his petition, the father annexes a long analysis of the situation provided by a forensic psychologist who urges a forensic evaluation of the parties and the child.
The court agrees that the father has shown that he and the mother have a "high conflict" relationship. The court does not agree, however, that a high conflict relationship indicates a change of circumstances such that modification is necessary for the best interests of the child. In the first place, the high conflict relationship between the parents is not new, as evidenced by the father's repeated attempts to wrest control of decision-making for the child through his various petitions. As this court noted in dismissing the father's petition in 2017, the matters raised by the father as evidence of the parents' failure to agree are minor matters that do not affect the child's best interests.
For example, the father complains of the mother's failure to bring the child to a lacrosse practice, that she did not take him to a basketball championship game, and the fact that she allows playdates and sleepovers during the week. The court finds that none of these complaints, annoying as they may be to the father and disappointing to the child, rise to the level of a change of circumstances requiring modification of the custody order.
The mother disputes the father's version of many of these events in her papers. However, for purposes of this motion to dismiss, the court accepts the father's allegations as true and reviews them in the light most favorable to him. Cruz v. Figueroa, 132 AD3d 669, 669 (2d Dept.. 2015) (affirming dismissal of mother's modification petition while accepting her evidence as true and affording her every favorable inference).
In his reply to the mother's affidavit which contended that the father had unilaterally stopped using their parent coordinator, the father stated that the parent coordinator was only enlisted for the purpose of settling the parents' disagreements about the child's education. The court fails to understand why the parent coordinator cannot also be used to manage the disagreements about extra-curricular activities that the father complains of in his petition.
Of greater concern to the court is the father's allegation that the parents' high conflict relationship is having a detrimental effect on the child's emotional health and possibly on his academic success. Indeed, in the affidavit of the psychologist annexed to the father's petition, the psychologist lays out the many negative effects that a high conflict relationship can have on a child. The court does believe that the high conflict between these parents is likely to affect the child's emotional and mental health and that it is likely to have negative effects on his health in the future. Unfortunately, changing the current custody order will not ameliorate those effects. The child's mother and father will remain his mother and father and he will continue to have a relationship with both of them, no matter who has custody. Changing the custody order to grant legal custody to either the father or the mother will not change the hostile dynamic between these two parents. Only a desire to act in the true interests of their child, which would mean overlooking minor decisions made by the other parent which do not satisfy one parent, and not acting in a way which makes the child feel that he is not free to love both parents, can work to give this child a childhood free of the stress he is now experiencing. This is not something that a court can order; it is only something that can be accomplished by the parents' desire to change their behavior for the sake of their child.
After discussing all the negative effects of a high conflict relationship on a child, the psychologist's affidavit notes that, "[a] skilled forensic evaluation would help uncover to what extent, if any, [the child] is experiencing these issues [resulting from the high conflict of the parents], which may lead to interventions to minimize their harmful effects." Affidavit of Joe Scroppo at 25. An evaluation of the child and a determination of what interventions would be helpful may very well be called for in this case. The parents (who are financially able to do so) are the ones who should be providing an evaluation of the child and appropriate follow-up interventions. The purpose of a forensic evaluation in court is not to evaluate the child's mental health for purposes of therapeutic interventions — that is the parents' responsibility. The purposes of a forensic evaluation is solely to aid the court in making a best interests determination.See Salamone-Finchum v. McDevitt, 28 AD3d 670, 671 (2d Dept. 2006) ("The decision whether to direct a psychological or social evaluation in a child custody dispute [to assist the court in addressing this issue] is within the sound discretion of the [Family Court]" (quoting Matter of Paul C. v. Tracy C., 209 AD2d 955, 955 (4th Dept. 1994))); Pacheco v. Morales, 5 AD3d 387 (2d Dept. 2004)("Pursuant to Family Court Act §§ 251 and 252, one of the tools that a court may use in determining what is in the best interests of a child is a forensic evaluation of any person within its jurisdiction or the parent of any child within its jurisdiction."). Assuming the child is indeed suffering from the parents' hostility, his ongoing mental and emotional health is in the hands of his parents who are capable of and should be providing appropriate therapy or treatment.
The attorney for the child submitted papers arguing for denial of the motion to dismiss, stating that it is now six years since the original agreement was made, the child is now older and he has expressed his wish to have more time with his father. The mere passage of time and the desire of an eight-year-old child to have more time with his father is not a sufficient basis for granting modification of an order of custody. If that were the case, then every custody order, whether agreed upon by the parties, or granted after trial, would be subject to modification after several years. There must be some showing that the passage of time has created a situation where modification is necessary to ensure the best interests of the child. See Thomas KK. v. Anne JJ., 176 AD3d 1354, 135 (3d Dept. 2019) (affirming Family Court dismissal of father's modification petition where father alleged that mother was unwilling to allow additional parenting time to him beyond what was set forth in the prior order and that the child needed his father's influence more since he was older); Kashif II. v. Lataya KK, 99 AD3d 1075, 1077 (3d Dept. 2012) ("the father's desire for additional visitation beyond the terms of the stipulated order, the mother's unwillingness to agree to it, without more, is insufficient to establish a change in circumstances").
That an eight-year-old boy would want to spend more time with his father than a two-year-old is understandable. However, the parenting access schedule was agreed upon between the parties. At the time the parents entered into their agreement, when the child was two years old, the expectation was that the agreement would hold throughout their son's childhood. The child's wishes, while always a factor to be taken into consideration, are not determinative. See LaChere v. Maliszweski, 157 AD3d 696, 697 (2d Dept.) leave to appeal denied, 31 NY3d 908 (2018) (affirming Family Court's order of therapeutic visits with mother despite children's opposition to them, holding that "[a]lthough a child's views should be considered, they are not controlling").
Other than the child's wishes, there is no showing that a change in the parenting agreement is necessary for the child's best interests. Children desire many things, some of which are practical and some which are not. The father has not made a showing that the child's desires or his age require a change in an order of custody that has been working for him.
The court would hope that, despite the parents' hostility towards each other, they would respect the child's wishes and desires to spend more time with the father and that they would agree on a revised parenting access schedule that would allow this. But this is a matter for the parents themselves to work out; it does not constitute a basis for modification of an agreed upon custody order.
As the court noted in its dismissal of the father's modification petition in 2017, despite the hostility of the parents, they are both able to care for the child and make decisions in his best interests. The minor matters raised by the father in his petition are not such as to affect the child's best interests. As the father has failed to make an evidentiary showing requiring a hearing, his petition for modification must be dismissed. Castagnini v. Hyman-Hunt, 123 AD3d 926 (2d Dept. 2014) (affirming dismissal of modification of custody petition without a hearing where father "failed to allege a sufficient change in circumstances"); Acworth v. Kollmar, 119 AD3d 676, 677 (2d Dept. 2014) (affirming dismissal of modification of custody petition where "the mother failed to make an evidentiary showing sufficient to warrant a hearing"); Kollmar v. Kollmar, 100 AD3d 712, 713 (2d Dept. 2012) (same).
Moreover, the fact that the parents find it difficult to agree on anything is not new. Thus, this failure to have a "meeting of the minds" as to their parenting is not a new circumstance, but one that has always existed. Modification is therefore not required. See Barbara L. v. Robert M., 116 AD3d 1101, 1102 (3d Dept. 2014) (affirming denial of modification petitions where "the parties have not made positive progress, but their respective conduct and the allegations against each other remain essentially the same as those underlying the prior determination").
"A party seeking the modification of an existing court-sanctioned child custody arrangement has the burden of demonstrating that circumstances have changed since the initial custody determination to the extent that modification is necessary to insure the child's best interests." Klotz v. O'Connor, 124 AD3d 662, 662-663 (2d Dept. 2015); see Robert SS. V. Ashley TT., 75 AD3d 780 (3d Dept. 2010); Matter of Passero v. Giordano, 53 AD3d 802 (3d Dept. 2008); Matter of Van Hoesen v. Van Hoesen, 186 AD2d 903, 903 (3d Dept. 1992) ("An alteration of an established custody arrangement requires a showing of a 'change in circumstances reflecting a real need for change in order to insure the continued best interest of the child' . . . "). The father has shown neither that circumstances have changed nor that modification is necessary to insure the child's best interests.
The father's application, and his desire to obtain sole custody of the child, rest on a false premise. The father has not shown in any way that the mother is unfit or that the parents' hostility has caused the order of joint legal custody to be unworkable. See Kelly v. Sanseverino, 278 AD2d 535, 536 (3d Dept. 2000) ("Absent some indication that [modification] will substantially enhance the child's welfare and that the custodial parent is unfit or less fit to continue as such, an established custody arrangement should not be disturbed"). Rather, he has demonstrated that the mother makes minor decisions that he is not in agreement with. Even if those decisions are disappointing to the child, he has not shown that the mother's actions are contrary to the child's best interests. The father assumes that after a trial, he will obtain sole custody and that that will solve all the child's problems. The court does not agree. If the father were to obtain sole custody, it would clearly solve the father's problems, but not those of the child. The mother would remain an important part of the child's life and she would continue to make certain day-to-day decisions for the child that the father would disagree with. An order of sole custody would not ameliorate the hostility between the parents. What is harmful to this child is not the actual decisions that each parent is making, but rather the tension and stress that the child feels as a result of his parents' hostility towards each other. A long-extended trial will only exacerbate those tensions, create more instability for the child, and ultimately add to the stress and anxiety he already feels.
The onset of the COVID-19 virus has wreaked havoc on society and the court system. It is unlikely at this point that a custody trial could be commenced or completed any time soon. Thus, this child will spend the next period of his life in a state of tension and anxiety — not knowing which of his parents will be granted custody and assuming that his life will change dramatically when that happens. The court does not see the value in putting the child through such trauma for the sake of eliminating conflict between the parents over such issues as lacrosse practice and sleepovers.
As petitioner has not made the necessary showing of a change of circumstances such that a modification of the custody is necessary to ensure the continued best interests and welfare of the child, his petition must be dismissed. See Merchant v. Caldwell, 149 AD3d 941 (2d Dept. 2017) (affirming dismissal of father's modification petition without a hearing where he failed to show "a change in circumstances which could support a finding that it was in the child's best interest to change physical or legal custody to himself"); Naclerio v. Naclerio, 132 AD3d 679 (2d Dept. 2015) (affirming dismissal of petition to modify custody without a hearing as a provident exercise of discretion); Resnick v. Ausburn, 123 AD3d 728 (2d Dept. 2014) (affirming order dismissing petition to modify custody order where petitioner failed to make an evidentiary showing of a change in circumstances sufficient to warrant a hearing); Pignataro v. Davis, 8 AD3d 487 (2d Dept. 2004) (affirming order dismissing petition for modification of custody order where petitioner failed to allege a change in circumstances).
Respondent mother's motion to require that petitioner father seek court approval before filing further petitions is denied. See Matter of Wieser v. Wieser, 83 AD3d 950 (2d Dept. 2011) (affirming denial of application to enjoin mother from filing further petitions where "mother did not abuse the judicial process by filing a petition to modify a visitation order and a petition for a violation of the order"). However, the Court will take into consideration the merits of the father's applications in determining any requests for counsel's fees. Notify parties. Dated: June 29, 2020 Honorable Judith Waksberg Judge, Family Court