Opinion
247639
11-20-2020
In the Matter of a Custody/Visitation Proceeding Article 6 of the Family Court Act, SAMANTHA G.S., Petitioner, v. JONATHAN G.B., Respondent.
Stephanie Pearl, Esq., Attorney for the Child Vivian M. Hewitt, Esq. for Petitioner Mother Amanda B. Shaffer, Esq. for Respondent Father
Stephanie Pearl, Esq., Attorney for the Child
Vivian M. Hewitt, Esq. for Petitioner Mother
Amanda B. Shaffer, Esq. for Respondent Father
Caroline P. Cohen, J.
Submissions on Order to Show Cause
Emergency Order to Show Cause; Affirmation of Amanda B. Shaffer, Esq.; Affidavit of Jonathan G. B.; Exhibits 1
Notice of Cross Motion and Opposition; Affirmation of Vivian M. Hewitt, Esq.; Affidavit of Samantha G. S.; Exhibits 2
Affirmation of Amanda B. Shaffer, Esq in Reply to Samantha G. S.'s Cross Motion and Opposition; Affidavit of Jonathan G. B.; Exhibits 3
Affirmation of Attorney for the Child Stephanie Pearl, Esq.; Exhibits 4
Reply Affirmation of Vivian Hewitt, Esq; Affidavit of Samantha G. S.; Exhibits 5
Upon the forgoing papers, arguments presented, evidentiary hearing and reasons set forth below, the court grants the Movant/Father Jonathan G. B.'s ("Movant") Order to Show Cause ("OTSC") in its entirety, in that the Subject Child, Emilio J. B. ("the Subject Child") is permitted remain living with the Movant in Utah.
Facts and Procedural History
The Movant and the Subject Child's mother Samantha G. S. ("the Respondent") (together "the Parties") divorced in or about 2010. The divorce decree, was entered in Texas, made on consent and registered with New York State. The divorce decree appointed each parent as "Joint Managing Conservators" of the Subject Child. See divorce decree, pp. 2-3. The divorce decree specifically gave the Movant the ability to "designate the primary residence of the [Subject] [C]hild without regard to geographic location." Id. , p. 3. Related, the divorce decree also contemplated the Parties living far distances from one another, in that it included provisions which addressed a visitation schedule in the event that the parties lived more than 100 miles apart and directed the Parties to split travel expenses. See Id. , pp 7-8, 5. Among other provisions, the divorce decree also stated that the Respondent "shall have possession" of the Subject Child when the Movant was dispatched for Temporary Duty Assignments ("TDY") or deployment with the military. See Id. , p. 5.
Accordingly, the Movant has had physical custody of the Subject Child since 2011. See Affidavit of the Attorney for the Child ("AFC"), Exhibit C at p. 1. Over the same period, the Movant was either employed by the Air Force or the Department of Defense, both while actively enrolled and as a private citizen. See Attorney's Affirmation in Support of the Reply, 11. The Movant and Subject Child moved numerous times because of different employment obligations and opportunities, notably six times within the past four years. See Attorney's Affirmation of Support of the Opposition and Cross-Motion, 5.
Custody and visitation with the Subject Child was the source of a significant amount of litigation between the Parties over the past several years. In the interest of brevity, this court will only discuss the petitions, motions, stipulations and orders that have direct bearing on the instant motion. The Respondent brought a petition for a Writ of Habeas Corpus in 2016, seeking the return of the Subject Child; the petition was subsequently dismissed. See Affirmation in Support by the AFC, 1. The Respondent brought at least two petitions in 2017 and one in 2018, all seeking various forms of custody and visitation rights with the Subject Child. See Petitions, dated October 2017 and August 2018. Both petitions sought sole custody of the Subject Child because of the Movant's alleged alienation. At conferences regarding these various petitions, counsel for the Movant argued that the Respondent was not taking advantage of her visitation rights and should not be afforded additional custody and visitation rights; the AFC stated that the Subject Child was amenable to seeing the Respondent but only with another party present, as the two had not seen each other for "several years." See Affirmation in Support by the AFC, 16, 19, 22, 25. Thereafter the matters were resolved by consent stipulation, which largely outlined the Respondent's parenting time and that the Parties were each responsible for half of the Subject Child's travel costs. See stipulation, dated October 3, 2018.
In or about February 2019, the Respondent filed an OTSC seeking a temporary order of custody citing the Movant's alleged alienation and his plans to move yet again with the Subject Child away from Florida. See OTSC, dated February 4, 2019. In response, the court issued a series of orders on February 13, 2019. One order required the Movant to reimburse the Respondent for difference in price of travel for the Subject Child if "the cost of the ticket from Texas to New York is greater that [sic ] the cost of the ticket from Florida to New York." Order, dated February 13, 2019. The other order issued on the same day stated that "Once the [Movant] moves to New Mexico, he is not to move the subject child [sic] without further order of the Court." Order, dated February 13, 2019. The court issued another order on July 17, 2019, directing the Respondent to have visitation with the Subject Child from July 19, 2019 to August 5, 2019, with the Movant to pay any difference in travel expenses.
While residing in New Mexico, the Movant's home was actually closer to an airport in Texas versus an airport in the state.
Despite the volume of litigation that the Respondent initiated, she only took sporadic advantage of her visitation rights. The Respondent frequently cited her inability to split travel expenses, which was agreed to in the divorce decree, as a reason. See Affirmation in Support by the AFC, 16, 19, 22, 25, 50.
Throughout the court proceedings, the Subject Child repeatedly stated through the AFC that he wished to reside with the Movant and visit with the Respondent. See Id. , 19, 34, 39. Despite the Subject Child's willingness to visit with the Respondent, he stated that he does not want to visit with the Respondent for extended periods because years passed since their last visit. See Id. , 16, 19, 22, 48.
Instant OTSC
This OTSC is brought by the Movant and seeks, among other relief, permission to move the Subject Child to Utah where the Movant secured new employment. This OTSC was brought pursuant to Judge Rupert Barry's 2019 Order which requires the Movant to seek permission of the court before moving the Subject Child. See 2019 Order.
A preliminary conference was held regarding the OTSC on September 21, 2020. The Movant, by way of arguments and submissions provided by his counsel and the AFC, made a prima facie showing that the proposed move to Utah is indeed in the Subject Child's best interests.
Based on the submissions and arguments, on September 24, 2020 this court issued an interim order which permitted the Movant to move the Subject Child from New Mexico to Utah. See interim order dated September 24, 2020. The interim order stated that counsel for the Respondent will file and serve papers in response to Movant's most recent opposition no later than October 5, 2020. See Id. Lastly, the interim order stated that a full evidentiary hearing to conclusively determine the OTSC will take place on October 15, 2020, with additional days to be selected as needed. See Id.
This court issued an interim order because of the time-sensitive and emergent nature of the Movant's OTSC. Movant's counsel's main argument for interim relief was that if it was not granted, it might result in the Movant losing the pending job offer and will therefore render his motion moot. As the Movant made a prima facie showing that the move was in the Subject Child's best interests, the court did not want to jeopardize the same with undue delay. However, before issuance of a final decision on this matter, all Counsel were provided an opportunity to be heard and file responsive papers.
To that end, the evidentiary hearing took place on October 15, 2020. All Counsel had the opportunity to present witnesses, but none were called. Accordingly, the hearing was entirely comprised of arguments presented by counsel.
At the conclusion of the hearing, the Respondent requested to speak on the record. The court declined the Respondent's application in the interest of parity, as there was not enough time to then allow the Movant then make statements on the record if he so desired. Despite the court's declination of the Respondent's application to speak on the record, counsel for the Respondent did not request an additional date for parties to speak on the record.
During the hearing, the court referenced the finding in the forensic report that the Movant did not alienate the Subject Child from the Respondent. However, the court ultimately did not consider the information and impressions included in the forensic report, as it was not introduced into evidence.
The Respondent opposed the proposed move because, amongst other reasons, it would not be in the Subject Child's best interests as it would be disruptive, especially in light of the fact that the Movant and his family moved frequently in the past. See Cross Motion and Opposition, Affidavit, 4, 18. The Respondent is further concerned that the Movant is attempting to alienate her from the Subject Child, and this move will further drive the two apart. See Id ., 19.
The Movant argued that moving the Subject Child from New Mexico to Utah was in his best interests because the Movant was offered new, stable employment with a Department of Defense. See OTSC, Movant's Affidavit, 16-17. The Movant argued that he was forced to look for another job because of the hostile and discriminatory environment he experienced at his office in New Mexico; to this end he filed a complaint with the Equal Employment Opportunity Commission. See OTSC, Movant's Affidavit, 14, 25-26, 33-34. The Movant described his employment in New Mexico as "likely" to be terminated if he did not leave for a new position first; the prospect of being terminated was especially devastating as his family is supported solely by his income. See Id ., 34. The Movant provided evidence of applying to jobs in New Mexico, as well as other areas where he and the Respondent both have family, to no avail. See Id . 11; see also , Exh. C.
The Movant further argued that this new position will hopefully be long-term and will enable his family to build a life in Utah. See Id ., 16. Moreover, the Movant plans to live in a home in central proximity to the Subject Child's school and other community resources. See Affidavit in Support by the AFC, 67. The Subject Child's involvement in school and athletic extracurricular activities will be furthered by living near the school. See Id . This contrasts with the area in which the Movant and his family currently resides, which is isolated and hinders the Subject Child's ability to spend time with friends and participate in school and athletic extracurricular activities. See Id .
The Movant further argued that the relocation to Utah would not hinder the Respondent and Subject Child's relationship. In fact, the Movant argues that the move will make travel easier, in that flights between Salt Lake City, Utah and New York City, New York, where the Respondent maintains she resides, are more plentiful, more convenient, and less expensive. See Movant's Affidavit of Support of Reply, 24. This contrasts with the flights to and from the Movant's prior residence in New Mexico, which required the Subject Child to travel to an airport in Texas and were more expensive than flights between Salt Lake City and New York City. See Counsel's Affirmation of Support of Reply, 6. Moreover, the Subject Child asserted that he speaks to the Respondent quite frequently, typically more than once a week, which will not be impacted by a move. See Affidavit in Support by the AFC, 72.
Both the Movant and the Subject Child purport to have a close relationship. See Movant's Affidavit in Reply to the Respondent's Cross Motion and Opposition, 20; Affidavit in Support by the AFC, 47, 70. The AFC stated that the Subject Child maintains that he is also close to his stepmother and stepbrothers. See Id . The AFC also stated that the Subject Child firmly stated that he wants to continue to reside with the Movant and wishes to move to Utah. See Affidavit in Support by the AFC, 47, 70.
The AFC relayed that the Subject Child recently expressed to her reticence to visit with Respondent because of her purported failure to comply with COVID precautions. See Id. , 48, 72. This is particularly concerning to the Subject Child as the Respondent is in the midst of a several-month visit to Florida, a "hot spot" for the illness. See Id . The Subject Child is particularly concerned about the Respondent's lack of compliance to conventional medical advice after he allegedly became very ill when she failed to timely take him to a doctor. The Subject Child explained that the Respondent stated that she "did not believe in doctors" and instead wanted to treat him with "natural remedies." Id. , 87. The Respondent denied allegations regarding her failure to comply with COVID precautions and failing to timely provide the Subject Child with medical care. See Reply to Movant's OTSC, Affidavit in Support, 17.
The Subject Child also expressed to the AFC concerns about visiting with the Respondent because of a domestic dispute that occurred between her and her sister, with whom the Respondent possibly resides during her extended visit in Florida. See Affidavit in Support by the AFC, 86. This dispute resulted in the Respondent's arrest for Domestic Battery. See Id . The Respondent concedes that she was arrested for an incident involving her sister but clarifies that no charges were pressed. See Reply to Movant's OTSC, Affidavit in Support, 23. The Respondent did not provide any additional details regarding the dispute. See Id.
Lastly, the Subject Child expressed to the AFC concerns about visiting the Respondent for extended periods, let alone reside with the Respondent, because of the aforementioned reasons and their lack of consistent visits in the past. See Affirmation in Support by the AFC, 37, 60.
Moreover, the AFC wholeheartedly supports the Movant's application for the Subject Child to move to Utah, as doing so will promote his best interests. See Affirmation in Support by the AFC, 2. The AFC recognizes the stability provided by the Movant and the Subject Child's stepfamily, to whom the Subject Child is close. See Id ., 90, 70. The AFC also believes that the move will provide stable employment to the Movant, which will "best promote [the Subject Child's] comfort and stability." Id. , 91. The AFC maintains that the Subject Child is exceedingly well-adjusted, regardless of the frequent moves, and does well in school and engaging in extracurricular sports. See Id. , 47, 70, 89.
The AFC also joined in the aforementioned concerns and raised additional reservations regarding the Subject Child residing with the Respondent. Specifically, the AFC is concerned about the lack of stability that life with the Respondent would offer the Subject Child, as it is unclear where exactly the Respondent resides. See Id. , 37, 60, 85, 86. Based on representations in the Respondent's own submissions to this court, the Respondent currently resides in Florida, despite the Respondent's contentions that she actually resides in New York City. Moreover, scant information is available regarding the Respondent's living arrangement in Florida, who purportedly temporarily resides with her parents. See Id. at 85-86. It is particularly unclear who resides in the familial home, including the whereabouts of the aunt who the Respondent had an altercation with, and what personal space the Subject Child would have in such a populated residence. See Id. , 86. It is also unclear when, if ever, the Respondent will return to New York City.
The Respondent stated in her Affidavit in Support of the Subject Child residing with her "I [am] willing to have [the Subject Child] reside with me while I am in Florida," (The Respondent's Affidavit in Support of the Opposition and Cross Motion, 15) and "I am willing to stay in Florida during the time that [the Subject Child] has school" (The Respondent's Affidavit in Support of her Reply, 28).
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The AFC also expressed concerns about the Respondent's ability to financially care for the Subject Child. It is not disputed that the Respondent has limited financial resources, and to this end often cannot afford to split travel costs to facilitate visits with the Subject Child, nor does she provide any form of financial child support. See Id. , 88. Accordingly, it is unclear how the Respondent will successfully support the Subject Child as well her other children.
Lastly, the AFC does not believe that the Movant uses frequent moves as a means of alienating the Subject Child from the Respondent. To this end, the AFC stated that "[i]ndeed, while 'alienation' is a convenient buzzword, the fact is that [Subject Child] is not an alienated child." Affirmation in Support by the AFC, Footnote 34. The AFC substantiates this belief by highlighting the fact that the Subject Child enjoys a relationship with the Respondent, which is largely maintained by telephone. The Subject Child even wants to visit with the Respondent, albeit for shorter periods than she would like, which is ultimately "which is not surprising given the relative lack of contact and relationship between the two over the years." Id .
Discussion
Where a prior custody order exists and is in effect, a party must show that there was a change in circumstances that demands a change to the prior custody arrangement to meet the Subject Child's best interests. See Kates v. Simpson , 180 AD3d 1043, 1043 (2nd Dept 2020).
After a finding that there was a change in circumstances, an evaluation must be conducted to determine what, if any, change to the existing custody arrangement should be made to meet the Subject Child's best interests. Tropea v. Tropea provides a lens through which to evaluate what is in the Subject Child's best interests when a party is seeking to relocate with the Subject Child. To this end, Tropea v. Tropea suggests a dynamic evaluation of a wide array of factors of varying weight, depending on the circumstances presented. See Tropea v. Tropea , 87 NY2d 727, 740-1, (1996). This flexible evaluation of whether the relocation is in the child best interests is preferred to a mechanical analysis of set factors. See Tropea v. Tropea , 87 NY2d 727, 740-1, (1996) ; see also Hammer v. Fielder , 185 AD3d 586, 586 (2nd Dept 2020), Kates v. Simpson , 180 AD3d 1043, 1043 (2nd Dept 2020).
Just this year, the Appellate Division, Second Department revisited Tropea v. Tropea and suggested the evaluation of the following factors; the court was careful to note that this list is not exhaustive:
(1) each parent's reasons for seeking or opposing the move;
(2) the quality of the relationships between the children and the custodial and noncustodial parents;
(3) the impact of the move on the quantity and quality of the children's future contact with the noncustodial parent;
(4) the degree to which the custodial parent's and children's lives may be enhanced economically, emotionally, and educationally by the move; and
(5) the feasibility of preserving the relationship between the noncustodial parent and children through suitable visitation arrangements. Follini v. Currie , 176 AD3d 1203, 1205 (2nd Dept 2020), citing Tropea , 740-741.
However, despite the flexibility of the analysis suggested by Tropea , the "rights and needs of the children that must be accorded the greatest weight." Schwartz v. Schwartz , 2020 NY App. Div. LEXIS 5326, (2nd Dept 2020), citing Tropea , 739. Second to the Subject Child's best interests, "the impact of the move on the relationship between the child[ren] and the noncustodial parent will remain a central concern." Follini v. Currie , 176 AD3d, 1205, citing Tropea , 739.
An allegation of parental alienation requires additional careful analysis, as such a finding has great bearing on what is in 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 AD3d 792, 793, 973 NYS2d 244 (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. Ultimately, what determines whether there is parental alienation is if, because of the offending parent's actions, the Subject Child no longer wants to have a relationship with the other parent. Said otherwise, even if a parent did allegedly engage in behavior to attempt to alienate the Subject Child from the other parent, if those actions were unsuccessful, then there is no alienation. See John A. v. Bridget M. , 16 AD3d 324, 330-31 (1st Dept 2005).
There is also no alienation in situations where the relationship between the Subject Child and the allegedly alienated parent deteriorates because of that same parent's actions. For instance, in 2019 the Appellate Division, Second Department determined that alienation was not present where "the deterioration of the relationship between the [allegedly alienated parent] and the [Subject Children] was due to the same parent's own conduct." Pandis v. Lapas , 176 AD3d 837, 840 (2nd Dept 2019). A similar conclusion was drawn where the court determined that a parent-child relationship deteriorated because of the allegedly alienated parent's "failure to make sufficient efforts towards improving [the] relationship," not because of alleged alienation. See Sanders v. Jaco , 148 AD3d 812, 813-814 (2nd Dept 2017).
Lastly, as a guiding principal, the court must take the desires of the Subject Child into account when determining matters of custody and visitation, as doing so is in the child's best interests. Eschbach v. Eschbach , 56 NY2d 167, 173-174 (1982). The Subject Child's age and maturity in part determines the weight the court will place on his or her wishes. See Hogan v. Hogan , 159 AD3d 679, 681 (2nd Dept 2018). Regardless of age or maturity, the Subject Child's wishes are not dispositive. See Id . Absent other circumstances, the Subject Child's mere preference for one parent over another does not indicate parental alienation.
Conclusion
In the instant matter, the parties' 2010 consensual out-of-state divorce decree established that the Movant can "designate the primary residence of the [Subject] [C]hild without regard to geographic location." Divorce decree, pp. 2-3. The divorce decree was subsequently entered in Kings County Family Court; thereafter Judge Barry issued an order which required the Movant to seek permission of the court before moving the Subject Child. See 2019 Order.
Because there is a preexisting custody order, the Movant must establish that there was a sufficient change in circumstances to require a change in the custody arrangement to meet the Subject Child's best interests. The court finds that the purported likelihood of the Movant losing his job in New Mexico, and subsequent job search which yielded one viable job offer in Utah, is a sufficient change in circumstances.
As the Movant established a sufficient change in circumstances, the Movant now bears the burden of showing that there must be a change to the Subject Child's custody arrangement in order to meet his best interests. See OTSC, Movant's Affidavit, 14. More specifically, the Movant must establish that moving the Subject Child from New Mexico to Utah along with the rest of his stepfamily is in the Subject Child's best interest. The Respondent/ fervently opposed the move on the grounds that it is the Movant's most recent bid in attempting to alienate her from the Subject Child, and would have a destabilizing effect on the Subject Child. See Cross Motion and Opposition, Affidavit, 4, 18.
The Movant's burden is now to prove that this relocation is in the Subject Child's best interests according to the factors set forth in Tropea . The Movant alleges that he was on the precipice of losing his prior job in New Mexico, which would be financially devastating as he alone financially supports his family. The Subject Child is very close to the Movant, his stepmother and stepbrothers, and wishes to remain living with them. See Movant's Affidavit in Reply to the Respondent's Cross Motion and Opposition, 20; Affirmation of the AFC, 70. The Subject Child is not as close with the non-custodial Respondent, but nonetheless regularly speaks with her by telephone, and would like to visit with her. See Affirmation of the AFC, 72, Footnote 34. The move to Utah will not hinder the Subject Child and Respondent's regular telephone calls and may make visits more accessible because of the lower cost and higher frequency of direct flights to and from Salt Lake City. See OTSC, Movant's Affidavit, 17-18. In this regard, the move might help to facilitate a stronger relationship between the two, rather than diminish it. Lastly, the Subject Child's life will hopefully be enhanced economically, emotionally, and educationally by the move. First, Movant anticipates his employment with a Department of Defense location in Salt Lake City, Utah to be stable and long-term. See OTSC, Movant's Affidavit, 16. Second, the Movant's new home is in central proximity to the Subject Child's school and other community resources, in contrast to the isolated area the family lived previously. See Affirmation of the AFC, 67.
The Subject Child is mature and at the dawn of his teenage years. Accordingly, this court is compelled to accord his wishes significant weight. The Subject Child's inclination to continue residing with the Movant and not the Respondent is based on reasonable logic; such factors include his close relationship with the Movant and their family, and his concerns about the Respondent purported failure to comply with COVID precautions and her violent history with his aunt, with whom the Respondent resides.
Based on the thorough analysis of the AFC, the Subject Child's preference to live with the Movant and simply enjoy a long-distance relationship with the Respondent is not indicative of alienation. As extensively discussed above, the Subject Child clearly desires to maintain a relationship with the Respondent, which is antithetical to an argument of alienation.
Based on the above, it is in the Subject Child's best interests to reside with the Movant in Utah. The Movant's new job will hopefully provide stable income and allow his family to be centrally located to Salt Lake City's amenities. Allowing the Subject Child to reside with the Movant in a new state may be a change but promotes a sense of stability in that he can remain residing with the family to whom he is closest. The Subject Child repeatedly voiced his preference to reside with the Movant and his family, and indeed has always resided with the Movant. To force a teen, even one as well-adjusted as the Subject Child, to move across the country to live with family members who he only sporadically visited with will undoubtedly have a destabilizing effect. Moreover, the Respondent's living circumstances are unclear at best and hint at instability. It is unclear whether the Respondent resides in New York City or Florida, what circumstances are present in the family home in Florida, including whether the aunt who the Respondent allegedly assaulted resides therein, what personal space would be available for the Subject Child in either the home in Florida or New York City, whether the Respondent complies with COVID precautions and lastly whether the Respondent's finances were stable.
Lastly, the move to Utah is not likely to impact the Subject Child's relationship with the Respondent, in that he will still be able to communicate with her by telephone and travel between the two will be easier. Accordingly, it is this court's sincere belief that the move to Utah will be a benefit to all parties.
For the foregoing reasons,
IT IS SO ORDERED that
1. the Movant's emergency OTSC to modify the February 13, 2019 order to allow him to move the Subject Child to Utah is granted,
2. the Respondent's cross motion for denial of the Emergency OTSC and for temporary custody of the Subject Child is denied and
3. visitation with the Respondent shall continue as provided in the 2015 divorce decree and agreed upon by the parties.