Opinion
V-18421/18
07-02-2020
In the Matter of a Proceeding under Article 6 of the Family Court Act S.C.S., Petitioner, v. K.N.M., Respondent.
Attorney for the Father S.C.S., Christopher A. Carrion, Esq., Principal Attorney, 26 Court Street, Suite 313, Brooklyn, NY 11242 Attorney for the Mother K.N.M., The Mandel Law Firm by Howard A. Gardner, 370 Lexington Avenue, Suite 505, New York, NY 10017 Attorney for the Child, The Children's Law Center By Abigail Finkelman, 820 Concourse Village West, 5th Floor, Bronx, NY 10451
Attorney for the Father S.C.S., Christopher A. Carrion, Esq., Principal Attorney, 26 Court Street, Suite 313, Brooklyn, NY 11242
Attorney for the Mother K.N.M., The Mandel Law Firm by Howard A. Gardner, 370 Lexington Avenue, Suite 505, New York, NY 10017
Attorney for the Child, The Children's Law Center By Abigail Finkelman, 820 Concourse Village West, 5th Floor, Bronx, NY 10451
Ariel D. Chesler, J.
This custody dispute between the parties has existed since 2018 and has already entailed a trial before a Court Attorney Referee that spread out over many months in 2019, and an appeal which resulted in the reversal of the Referee's Order after trial and a remand to this Court for further proceedings (see S.C.S. v. K.N.M., 181 A.D.3d 528 [2020] ). Specifically, the First Department remanded the matter "so that a judicial determination can be made as to whether any further hearings are necessary, and to allow the parties an opportunity to seek confirmation or rejection of the Referee's findings of fact and legal conclusions" ( 181 A.D.3d at 530 ). In accordance with the Appellate Division decision, the Attorney for the Child (AFC) now moves to confirm the Referee's findings of fact and conclusions of law, and the mother moves to reject the Referee's findings and conclusions; the father supports confirmation of the Referee.
This Court is already familiar with the parties and issues raised in this dispute. While the appeal was pending, the First Department permitted the father to make an application for a temporary order of visitation. Such application, filed in October 2019, and subsequent applications were referred to and determined by this Court.
In determining the motion and cross-motion, the Court is faced with a number of issues to consider. These include whether to deem the Referee's Decision and Order to be a report, and if so, whether the "Report" is deficient in any way or whether it has support in the record. This Court must also consider whether a new hearing or new findings by this Court are necessary, and relatedly whether the hearing in front of the Referee was fair and comprehensive. Ultimately, in making these determinations the Court is mindful of judicial economy, delay of these proceedings, finality for the parties and subject child, and overall the best interest of the child.
In relation to the motion and cross-motion, the court has received and reviewed the following submissions: 1) The Attorney for the Child's Notice of Motion, Affirmation, and Exhibits; 2) The Attorney for the Child's Supplemental Exhibits; 3) The Father's Affirmation in Support, Memorandum of Law and accompanying Exhibits; 4) The Mother's Notice of Cross-Motion, Affirmation, and accompanying exhibits; and 5) The Attorney for the Child's Reply Affirmation. Notably, the exhibits include all the trial transcripts as well as all exhibits entered into evidence at trial, which this Court has reviewed.
PROCEDURAL HISTORY
In April 2018 and May 2018, the father and the mother each filed custody petitions for the subject child, their son N.M.S. In those proceedings, the father, mother, and mother's counsel executed an order of reference and stipulation agreeing that a Family Court Referee would "hear and determine the matter and any cross petitions and any supplemental petitions filed prior to its conclusion, as well as any future petitions and supplemental petitions with respect thereto."
During the initial appearance before the Referee on May 16, 2018, a temporary order of visitation was issued for the father. At that appearance, the mother's counsel stressed that the mother planned to relocate with the child to North Carolina where the mother's husband lives. The Referee directed that the mother could not relocate with the child without the father's permission or permission of the Court.
At the next court appearance on July 9, 2018, the father's petition was dismissed for failure to appear. The mother's counsel requested to proceed to inquest on the mother's petition but the attorney for the child requested an adjournment, noting that the father had been participating in the case. Once again, the mother's counsel stated that the mother's relocation to North Carolina was a "pressing" matter and that the mother wanted to "move on with her life." The Referee indicated that she would send a notice of inquest to the father before proceeding and that the mother could relocate if the father consented. Instead, the mother's counsel withdrew the mother's petition, adding "there are no orders of custody, and you know, people do as they will."
Four days later, on July 13, 2018, the father filed a new custody petition along with a writ of habeas corpus since in the interim the mother had suddenly moved with the child to North Carolina allegedly without notifying the father or obtaining his consent. While the writ was dismissed by another judge of this Court, a second writ filed by the father directed the child to be produced in New York on September 20, 2018. However, the second writ was ultimately dismissed on that date as all issues between the parties could be addressed in the pending custody proceeding.
On October 17, 2018, the mother filed another petition for custody. The parties appeared in front of the Referee again and various temporary orders of visitation were issued over the next few months.
A trial was held in front of the Referee between April and July 2019. On August 2, 2019, the Referee issued a Decision and Order after Trial awarding the parties joint legal custody and the mother physical custody on condition that she returned with the child to New York. If the mother did not return to New York, the order awarded the father physical custody of the child.
The mother appealed from the order on the ground that the Referee did not have jurisdiction to hear and determine the case because the mother never consented to having the Referee determine the second round of petitions filed by the parties. The First Department agreed and found that the Referee did not have jurisdiction to determine the matter, and that the parties' stipulation in the terminated proceedings did not extend to these new proceedings ( 181 A.D.3d at 529 ).
Notwithstanding that the First Department found the Referee lacked jurisdiction to determine the matters before her and exceeded her authority, the Court noted that a Family Court Judge has the right to refer the parties' dispute to a referee for a hearing and report, even without the parties' consent. The Court did not determine whether a new trial was necessary ( 181 A.D.3d at 529-30 ). As such, the Court remanded the matter to a Family Court Judge "so that a judicial determination can be made as to whether any further hearings are necessary, and to allow the parties an opportunity to seek confirmation or rejection of the Referee's findings of fact and legal conclusions" ( 181 A.D.3d at 530 ).
THE TRIAL
I. The Father's Testimony
At the trial, the father testified that he met the mother in 2007 and they dated for five years. The began living together in 2009 and, although they broke up in 2011, resided together until six or seven months after the child was born in July 2012. They then each moved into the homes of their parents.
After their son was born, the mother took maternity leave but then decided not to go back to her job as an administrative assistant at Berkley College. At that time, the father was an audio, video and lighting technician and mainly worked for "C Factor" but also for "Harlem Stage" and Lehman College. When the father was laid off from "C Factor" he continued the other jobs and did contract work. In 2015, he continued work as an independent contractor for various companies.
Since August 2018, he has worked as an audio technician at the Barclays Center and his work schedule varied depending on the time of each event. He worked approximately 36 hours each week and earned $25 per hour.
When the child was small, the father had a close relationship with him. Once the mother stopped breastfeeding when the child was about a year old or less, the child would stay with the father for half the week at the father's home in Queens. When the child was a baby, the father would take him on walks, listen to music, and go over flashcards.
At around the age of two the child began preschool. The father would find out what they were learning and "expound upon it" at home. The father did not know if the mother helped the child with his schoolwork either in New York or since moving to North Carolina.
At some time in 2015, the father helped the mother move to her own apartment in the Bronx. During that time, the father continued to live at the paternal grandfather's home and the child visited the father there on most weekends. The parents would arrange the details of visitation in advance and would take turns transporting the child.
When the child lived in New York, the father did not generally attend his medical or dental appointments because the mother would only inform him of the appointments one or two days in advance which was not enough notice. Although the father asked the mother to send him the child's medical records, she never complied.
In 2016, the father moved with his wife to their current four-bedroom home in Long Island which they owned. The house had a yard and the child had his own bedroom. After the father moved, the parents continued to share responsibility for visitation exchanges. The father saw the child either every weekend or every other weekend. But, in 2017 the mother told him that she "needed at least two weekends out of the month."
When the child visited him in Long Island, they would play soccer and baseball in the yard or go to the park. They also read books, did math, Spanish, and the child would help with house repair work. They also went swimming, and the father taught the child music and to play the guitar.
The father had been married to his wife for about one and half years. He thought his wife and the child had a great relationship. His wife would help the child learn and cooked with him. The father observed the child appearing happy when he was with his stepmother and they were affectionate with each other.
The paternal grandfather and his wife lived five minutes from the father's home and a paternal uncle, along with his wife and children, lived three miles away. Those family members saw the child almost every time he came to visit the father. The paternal grandfather had a "very special bond" with the child. The child also enjoyed spending time with his uncle and cousins; the child enjoyed working on cars with his uncle who was a "car genius."
During the parties' relationship, the mother told the father that she was curious about what it would be like to live out of state but made no specific plans or statements, and she hadn't lived or visited any of the states she referenced. After they separated, they spoke about the expense of living in New York, but nothing more specific.
On July 13, 2018, when the father called the mother to arrange picking up the child the following day, the mother informed him that she had gotten a job at a university in North Carolina and was "there now." Prior to that time, the father was unaware that the mother intended to move to North Carolina with the child. The mother had not discussed that trip with him and he had not consented to such a move. When the father expressed concern about a Category 4 hurricane predicted to hit the mother's area, the mother told him "everything was fine" but refused to tell him her exact location.
A recording of a telephone conversation between the parties on July 13, 2018 was entered into evidence. The mother is heard informing the father that she is in North Carolina, that she "jumped" on a job opportunity, that her move was "nothing new to the father," and that she got permission from "legal" to move after the parties' first set of petitions were dismissed. The father stated "So, you kidnapped my son, basically?" and expressed his surprise at her move.
During the conversation, the mother admitted that she knew her fiancé was a registered sex offender and did not explain why she did not inform the father about this fact. Instead, she minimized the concerns about him being a registered sex offender, claimed she investigated the case and had no concerns, and that she wouldn't let someone dangerous around her son.
The mother also described it as "nonsense" that she had to wait for the father to consent and agree for her to move on with her life. She stated "My life and me moving forward should not be contingent upon ... you saying yes or no."
After the mother moved, she asked the father to meet her and the child at a police precinct for the child's birthday on July 20, 2018. The father flew to North Carolina and met them at a "bouncy house place" for two hours. The mother did not let him cut cake with the child. After that visit, the father did not see his son until October 2018. During the interim, he spoke to his son for 20 to 30 minutes each night.
The father did not know whether his son had his own bedroom in the home in North Carolina; he had asked the mother for the name of the child's school, but she ignored the request. The father also did not have access to the child's medical records in North Carolina. The child had told the father the name of his school — Davis Drive Elementary School — and that school confirmed the child attended there after the father provided legal information from his lawyer. The father was not present for the child's first day of school although he had wanted to be there.
Although the school did not update the father at first on the child, after sending emails the father began receiving the weekly emails from the child's teacher. The father provided his name as an emergency contact for the child. The father also thought the child did not get the same amount of homework as he did in his school in the Bronx. The father, therefore, gave his son "extra work."
The father said it was "hard" not seeing his son as he "was used to seeing him every week," and he did not "feel like [he was] living a normal life." Everything was "through the phone," and there was no "continuity" between the things the father taught him each time he saw him.
The father was concerned that the mother yelled at their son or would "pop him or hit him." He had never seen her hit the child; he had never used corporal punishment. He was concerned that the mother had called their son a liar.
The father thought he should be granted custody because he would provide the mother with their son's medical information, and ensure she was listed as a contact at the child's school, even though she did not do those things for him. He thought he would be more transparent and allow the mother to come to his home in contrast with the mother who refused to tell him where she lived. Overall, he would be type of parent that would keep the other parent informed. If he were granted custody, the father planned to enroll the child in either the Hempstead public school system or a charter school in the area. He had been applying to both types of schools.
If the mother returned to New York with the child, the father wanted joint custody and a "50/50 situation" so that the child "could have both parents in his life." The father believed it was important to have a relationship with both of his parents.
II. S.B.'s Testimony
S.B., the father's wife, testified that she had met the father in 2015 and they had been married for a little over a year. She was employed as an Assistant District Attorney in Queens since 2014 and she knew the father was co-parenting with the mother. S.B. stated that she loved the child.
S.B. was often present when the child visited the father. In May 2016, she bought a home in Hempstead, Long Island and she and the father moved there. During the child's visits, they would all cook together, go swimming, and play with their dog.
During her observations of the father and child, S.B. saw that the child was "enamored with his father" and wanted to "emulate him." They were always laughing and having fun; they sang, played guitars, recorded songs together, and played soccer. The paternal grandfather, uncle and cousins lived nearby and had relationships with the child. They all attended a number of "family functions" together.
S.B.'s observations of the mother and child were more limited. She recalled that during Memorial Day 2016 or 2017, she and the father invited the mother over for a barbecue. During the party, the child urinated on himself which was "odd" and unusual; the mother had a "regular motherly reaction to that incident."
According to S.B., in 2016 the child visited the father every weekend. During those visits, they played, cooked, rode bikes and went to the park. In 2017, the child visited the father every weekend or every other weekend as well as for certain holidays. During that time, they read books, taught the child Spanish and played with the dog. They also spent time with S.B.'s family who lived nearby.
From January to July 2018, the child visited every other weekend. During those visits, they went swimming and visited family. S.B. believed the father and mother arranged visits by telephone. She noted that the mother did not permit the father to see his son for approximately two or three weeks after the father filed his first custody petition.
S.B. explained that once the child began Kindergarten in September 2017, he only visited the father every other weekend. And, while the parents shared holidays, such as Christmas, it was "always contingent upon what [the mother] would allow."
According to S.B., she had a "good relationship" with the mother prior to July 2018. For example, she invited the mother to the home in Long Island so she could see the child's room. S.B. had also been the mother's home several times to pick up the child, and also for his fifth birthday in 2017. The two had each other's phone numbers and the mother sometimes called S.B. if she had a problem or wanted to talk.
During the summer of 2017, the mother and S.B. discussed various jobs the mother was considering in Delaware, Maryland, Virginia and Pennsylvania. They talked about these options in relation to "career choices and where [the mother] wanted to go" but never discussed what the mother planned to do with the child.
Then, in November 2017, S.B. was present when the parents discussed the mother's desire to look at jobs outside of New York in front of the child. According to S.B., at some point the mother escalated the conversation, began screaming at the top of her lungs that she "could take [the child] out of the state whenever [she] want[ed] to," that there was nothing [the father] c[ould] do about it, and that she could do "whatever the fuck [she] want[ed] to." This caused the child to cry and the father to place his hands over the child's ears.
Later, when S.B. sent the mother a text about the incident, the mother apologized via text message, and then also apologized at length in person. This was the only time that S.B. was concerned about the mother's interactions with the child. Later, the child stated that the mother told him that the father was not paying for his school, which is also something the mother stated during the November incident. The mother claimed that the child was a "liar" for saying she said this.
In July 2018, the child was taken out of New York without notifying the father. The mother never informed the father of her new address or telephone number. S.B. helped the father to file petitions in court and in getting the mother served in North Carolina. The father also visited the child in North Carolina several times.
S.B. stated that if the father was granted custody of the child she would help to ensure that the child called his mother, would permit visits in the home and would do "whatever [was] needed ... to maintain that continuous relationship with his mother."
III. The Mother's Testimony
The mother testified that she met the father in 2007 and they began to live together in 2009. When they met, she was an administrative assistant at Berkley College. She continued to work there when the child was born in July 2012. While she planned to take only 12 weeks of maternity leave, she ultimately did not return to work because she was dissatisfied with the childcare providers she met and her request for an adjusted schedule was denied. However, she had saved sufficient money to pay her bills. In contrast, the mother described the father's work as "spread out" which she found stressful.
In 2006, the mother was convicted after she pleaded to Assault in the Third Degree, a class A misdemeanor, following an altercation with a friend who she punched and "accidentally" cut with a small knife. She was sentenced to a conditional discharge and to complete 80 hours of community service. She had not been arrested or charged with any crimes either before or since that incident.
The parties separated in January 2013 and the mother and her son moved to the maternal grandmother's home. At that time, the father's visits were maybe once every three weeks or whenever he wanted to "pop in." In fact, the mother "begged" him to visit more but the father had issues with the commute and wanted the mother to move to another part of the Bronx to make it easier for him. Mostly, the mother took the child to visit the father.
Although the maternal grandmother assisted the mother financially, the father did not provide her with consistent financial support so she could provide for their child. When she asked for financial help, he responded that he was not working a full-time job. On the other hand, the father took several international trips for up to six weeks at a time. When he returned, he visited the child every other week although there was no set schedule. The father also continued to take international trips including as recently as early 2017.
In April 2014, the mother began to work at the CUNY Graduate School or Public Health. She then enrolled the child in her health insurance plan. She remained in that position for four years and a few months; she earned between $51,000 and $53,000 annually.
According to the mother, in 2015 the father visited the child between every other week and once a month. Relatedly, because the father was traveling abroad, he saw the child sporadically. In 2016, the schedule was the same although the frequency of visits increased in mid-2016 to alternate weeks or once every three weeks.
During 2015 and 2016, the mother looked at a number of one-bedroom apartments in the Bedford Park area of the Bronx which cost $1,400 to $1,500 per month which was beyond her budget. Although the father suggested she look for a place in Queens or Brooklyn, sent her to a realtor, and offered to pay the difference between her budget and the actual cost of a one-bedroom apartment, the mother did not believe he would help her financially. He was not paying her regular child support; the father had given her money on two occasions in that time period.
The mother applied for an apartment in the Bronx in August 2015, was placed on a wait list, and was later accepted and moved into the apartment in March 2016. The mother's rent for that one-bedroom apartment was $1,250. At the time she moved, the father lived in Long Island and the child had not visited the father for one month. The mother also learned the father was dating his current wife when her son started saying her name a lot and she learned in court that they were living together.
According to the mother, she looked for employment outside New York during several periods — 2006 to 2007, 2013 to 2014, and "consistently" from 2017 onward. During 2013 and 2014, she looked for work in Maryland, Pennsylvania and Georgia. She included North Carolina in her search in 2017 because the job market there was less congested. Since 2017, she had applied to between 10 and 20 jobs in New York and between 15 and 25 jobs outside New York.
The mother wanted to leave New York because the rent was expensive and she wanted to be able to provide more for her son. In addition to jobs, she had looked at school systems, safety and the cost of living in various places. The locations she found also had sufficient childcare services. She also wanted to enroll her son in extracurricular activities; she could not afford such activities in New York. She had never asked the father to contribute to such activities because they argued whenever they discussed money.
The mother claimed she had discussed her wish to move out of New York with the father. In 2016 and 2017, he was against it. However, she applied to a job at Duke University in April 2017 but then turned down the offer. During the summer of 2017, the mother had a conversation with S.B. about furthering their careers while the father and child were nearby. The mother had told S.B. about her desire to move to the Maryland or D.C. area.
In November 2017, the mother told the father about the financial hardship, and that the child wanted his own room which she could not afford in New York City. She told the father she was looking to move to North Carolina and Maryland. The father responded that she was not going to move to either and that he was "going to hold [her] and [the child] here." He also told the mother she could not have another man living with the child.
At the time, the mother was dating someone who she met online — J.J. — who lived in North Carolina. J.J. had three children and he and the mother had visited each other once a month. The child had met J.J. and spent time with him. There was no thought of J.J. coming to live in New York; he and the mother were engaged in October 2017. The child told the father about this engagement and the mother later confirmed it. By November 2017, the father had met J.J. once or twice. In January 2019, the mother decided to separate from J.J.
In 2016-2017, the child attended daycare at Tender Tots; it cost $800 or $900 each month which the parties split equally. However, the father did not provide the mother with any other money. Further, while the father told her he would give her $300 per month but had only given her $600 in total. In October or November 2016, the child began to attend St. Brendan's school, a free universal Pre-K program where he stayed until June 2017.
Also, in October 2016, the mother filed for child support against the father. She had not done so previously because she knew of the father's financial struggles and unstable work. But when the father began to travel she thought he could afford to pay support. She withdrew that petition after the father told her he was in school and asked for time to provide support. And, although in 2017 the father promised to give her $200 per month, he only gave her one payment of $200. In 2018, the father was ordered to pay $50 in child support each week.
In 2017, the child began Kindergarten at the Bronx Charter School for Excellence which was 20-30 minutes from the mother's home. The mother took him to school in the mornings and the maternal grandparents picked him up on the afternoons. On Fridays, the father picked the child up in the afternoons during the months of May and June 2018. During that time period, the child visited his father every other weekend and the parties split the burden of transporting the child.
On July 12 or 13, 2018, the mother moved to Cary, North Carolina. She did not tell the father she was moving and only did so after she had moved. She didn't inform him because when she raised the idea in November 2017 it resulted in a big argument and she was "tired of arguing." During the recorded phone call between the parties, the mother stated she received permission to leave from "legal," by which she meant her attorney.
The mother did not have housing when she arrived in North Carolina and spent one night in a hotel with the child. The next day she met with a realtor, signed a one-year lease and moved into a house with four-bedrooms and a yard. It was located in a community with a pool and a "Neighborhood Watch." The child had his own bedroom in the home and the rent was $1,875.
The mother did not tell the father her address because the father was angry that she moved and she felt nervous. Yet, she acknowledged the father never made any physical threats, had never been violent with her, had never said he would come to the home, and she want afraid of him.
At some point in this time period the mother received a job offer from Duke University. When the salary offered didn't meet her expectations, she declined the offer and remained unemployed through August 2018. The mother began working for Carolina Restoration Services in August 2018, earning $57,500, along with medical and dental benefits for herself and the child. In May 2019, the mother began to work for Duke as a Human Resource Generalist earning $62,500 along with medical and dental benefits and various other employee discounts and benefits. She worked Monday to Friday from 8 AM to 4 or 4:30 PM and her commute was around 30 minutes.
Prior to her move, the mother had researched various school districts in the area. The child began attending Davis Drive Elementary School in August 2018. The mother told the father the child was starting school but did not advise him what school because "there was a lot of tension" and she "wanted to be safe at that time." At the time of trial, the child had completed the first grade and the mother was "pleased" with his performance in school.
The child also attended an afterschool program which cost $2,000 each year. Each day the mother would pick him up between 5:30 and 6 PM, cook dinner and help her son with his homework. The child would speak to his father after he took a bath each night and went to bed between 8 and 8:30 PM. The child also attended a soccer program.
From Fridays to Saturdays, when the mother observed the Sabbath, she read the Bible with her son, went to church events and the child spent time with friends. On Sundays, they attended church together. The mother became more observant in April or May 2018. She did not discuss the child's religious upbringing with the father and made decisions regarding his religious denomination without consulting the father. But, the father had never objected to her bringing the child to church.
On June 1, 2019, the mother and child moved to another three-bedroom home in the same area which only cost $1,700 each month. The child had his own room and the home was only two minutes from the child's school. In North Carolina, the mother had various childcare resources, including two neighbors, the child's afterschool program, and a "Drop and Care" Program.
The mother believed her life and her son's life were much better in North Carolina. She acknowledged she was happy with how the child performed in school in New York but was concerned about reports she received about his behavior. Yet, she never looked for other schools in New York. In North Carolina, the child was not sent to the Principal's officer or acting out in class.
The mother did not previously have any friends in North Carolina other than J.J. at the time she moved. In 2019, she learned she had distant family in North Carolina, which she had not been aware of, and had "not yet" seen them at the time of trial.
Before her move, the mother and father disagreed on "just about everything" including the schools and daycares she chose, "who should do what," who should conduct exchanges, when the child's bedtime should be, and whether the father could speak to the child after 8 PM. The mother had decided on the child's medical providers without consulting the father, but she would inform him about the child's appointments in advance. The parties also argued about her response to Hurricane Florence which hit North Carolina as her home was three hours from the coast.
The mother requested that the Court permit her to live in North Carolina with the child, permit the father to visit every month, as well as grant the father six weeks in the summertime, as well as time during spring break and on alternate major holidays. She suggested the visits alternate between North Carolina and New York, and offered to share the costs of the father's transportation for up to four visits. The mother was also willing to pay the cost of the child's flights but preferred it to be split 60/40 between the parents. The drive between New York and North Carolina took between 8 and 10 hours.
The mother was also seeking "joint custody" and would keep the father aware of everything happening in the child's life. However, she wanted final decision making to be left with her. On the other hand, if the father were granted custody, she would "have to move" back to New York. She acknowledged that her first petition asking for custody and to relocate had been dismissed and that she was not granted a final order of custody or granted permission from the court to move. Regardless, she moved without a job or a home.
SUMMATIONS
Counsel for the father argued that the mother had not demonstrated that there were improved educational opportunities, more affordable housing or better job options in North Carolina. He stressed that the mother also had removed the child from New York days after the first proceeding was dismissed and had moved without a job or home in North Carolina. Counsel insisted that the father had been involved in the child's life, and would be able to foster a relationship between the child and mother. He added that the mother placed her own needs and interest above those of the child.
Counsel for the mother argued that the mother had been the child's primary caretaker for nearly his entire life, and that the father was minimally involved and visited rarely, and had been away on many trips. He also argued that the father provided virtually no financial support to the mother and that the mother's money "went further" in North Carolina. He also asserted that the mother had not violated any court orders in moving to North Carolina and had acted in the child's best interest. Finally, he argued that child's best interest warranted granting the mother custody. However, he proposed joint legal custody with final decision-making to the mother.
The AFC argued that many of the facts were not in dispute, including that the mother was the primary caretaker and that the father and child had a close relationship. Moreover, there were no safety concerns as to either parent, and both parents were capable of caring for the child. Both parties also were amenable to joint legal custody.
Next, the AFC contended that although it was an initial custody determination and not a true relocation case, the desire of one parent to relocate is an important factor to consider. She then asserted that the mother had not demonstrated that North Carolina provided a better life for the child. Among other things, the mother had not presented evidence about the quality of the child's education and her employment was similar in New York and North Carolina. Moreover, the AFC maintained that the mother's action in moving to North Carolina without informing the father and refusing to tell the father her address or the name of the child's school were not consistent with the obligations of a custodial parent. Further, the mother had no urgent reason to move as she did not have a job or place to live in North Carolina when she moved.
The AFC, therefore, argued that there was caselaw supporting granting the mother custody on condition that she and the child return to New York. Thus, the AFC supported such an order requiring the mother to return to New York in a certain time frame, along with an order of joint legal custody. In addition, the AFC supported the father having two or three weekends a month should the mother move back to New York. In the event the mother did not move back to New York, the AFC supported granting the father custody.
REFEREE'S DECISION
In making her decision, the Referee first set forth the proper factors to consider in making a custody determination, citing FriederWitzer v. Friederwitzer (55 NY2d 89 [1982] ) and Eshbach v. Eshbach (56 N.Y.2d 167 [1982] ). She also correctly stated that where the matter concerns an initial custody determination and an issue of relocation is raised, the strict application of the Matter of Tropea v. Tropea (87 N.Y.2d 727 [1996] ) is not required and that the permission to relocate is but one factor to be considered in determining the child's best interest.
The Referee separately noted that she could consider the recommendation of the Attorney for the Child and recognized that the child's preference is not determinative but should be afforded great weight "when the child's age and maturity would make his or her input particularly meaningful."
The Referee then noted that she had the opportunity to observe the witnesses, hear their testimony and assess their credibility. The Referee also reviewed all the exhibits entered into evidence. The Referee adopted in its entirety the arguments put forth by the Attorney for the Child in her summation.
Based on the totality of the circumstances, the Referee found that it was in the child's best interest to grant the parties joint legal custody with final decision making to the mother, and physical custody to the mother "on condition that the mother returns with the child to New York to live in equal geographic proximity to the father's residence as her most recent prior residence in the Bronx by the start of the 2019-2020 school year." If the mother did not return with the child to New York by that time, the order granted physical custody to the father and final decision-making to the father.
In addition, depending on which scenario took place, the Referee set forth a parental access schedule providing for weekend, holiday, and vacation time with alternative arrangements.
LEGAL ANALYSIS AND DISCUSSION
I. Threshold Arguments
The parties raise a few threshold matters that must be addressed first. Initially, the father argues that because the mother did not appeal from any of the decisions made by the Referee during the trial or from the findings of fact and conclusions of law, she is prevented from making such arguments now. More specifically, the father asserts that the mother is limited by the law of the case doctrine, citing, inter alia, Hass & Gottlieb v. Sook Hi Lee (11 A.D.3d 230 [1st Dept. 2004] ).
The law of the case doctrine merely proscribes relitigation of an issue determined by a court of coordinate jurisdiction ( 11 A.D.3d at 231 ). As such, the mother is not prevented from making any arguments to this Court related to whether or not this Court should confirm or reject what the Referee did. Indeed, as the mother correctly points out, this Court has express authority to confirm, vacate, or modify the Referee's ruling (see CPLR 4403 ).
Next, the mother asserts the Referee's decision cannot be deemed a report because it did not meet the "statutory requirements" for a report. Specifically, she claims that the Referee did not set forth independent findings of fact but rather adopted the arguments of the Attorney for the Child.
However, in making her order, the Referee first noted that she had the opportunity to observe the witnesses, hear their testimony and assess their credibility. She also reviewed all the exhibits entered into evidence. The Referee also set out the proper controlling law and then adopted in its entirety the arguments put forth by the Attorney for the Child in her summation.
While it would have been better practice for the Referee to set out a detailed analysis of each factor she was considering in her custody determination, it is also understood by this Court that instead she employed a shortcut by adopting the summation of the AFC who had set forth various factors for consideration. The more significant issue is not the form of the Referee's order but rather whether viewing the record as a whole there is support for the Referee's determination.
Further, the decision from the First Department remanding this matter to this Court suggested that this Court may deem the Referee's order to be a report. In similar matters in which the parties did not consent to the Referee determining custody, an order from the Referee in fact determining custody has been deemed a report, and the matter remanded for further proceedings in front of a Judge (see Matter of Rose v. Simon , 162 A.D.3d 1048, 1049 [2d Dept. 2018] ).
Ultimately, any deficiencies in the Referee's decision and order or analysis can be considered by this Court, with the exception of the jurisdictional issue which has already been determined by the First Department. The crux of the matter is whether there is support in the record for the Referee's determination. This Court has been able to review the entire record, including all the testimony and all exhibits admitted at the trial. If appropriate, this Court may also make its own findings to make up for any deficiencies (see CPLR 4403 ).
Therefore, this Court deems the Referee's Decision and Order to be a Report and will consider all arguments made by the parties as to whether the Referee's conclusions are supported by the record evidence. To hold otherwise would necessitate a new hearing in this matter before even considering the substance of the report and conducting a full review of the record. Such a holding would be illogical and would ensure significant delay of a resolution in this case.
II. Evidence and the Quality of the Hearing
The mother raises some evidentiary issues for this Court to determine. In particular, the mother claims that the Referee improperly refused to admit the child's North Carolina school records into evidence. The objection to the school records by the AFC was based on the concern that they did not have an accurate certification.
The records, which have been submitted to this Court, appear to mainly corroborate the mother's testimony that the child did well at the school in North Carolina. That testimony however was never disputed at trial. In any event, regardless of whether these records were improperly kept out of evidence, the Attorney for the Child has no objection to this Court considering the records at this time. Accordingly, based on the lack of objection, the minimal probative value of the evidence on a non-disputed issue, and the lack of substantial prejudice to any party if this Court considers the records, this Court will proceed to consider the school records in determining these motions.
The mother also requests that this Court take judicial notice of Orders of Support and Findings of Fact issued on February 14, 2019 by a Support Magistrate of this Court which, among other things, imputed annual income to the father of $52,000, found that the father was intentionally underemployed, and ordered him to pay child support. The mother argues that these orders are relevant to the parties' relative financial circumstances, and also relate to the mother's need to relocate and lack of support from the father.
Although the mother could have asked the Referee to take judicial notice of these orders at trial and failed to do so, neither the father nor the AFC currently object to this Court taking judicial notice of the documents. Accordingly, because these orders are relevant to the parties' financial circumstances - a factor in a custody determination - and because there is no objection, this Court shall take judicial notice of them and consider them in deciding these motions.
Finally, the mother argues in the alternative that this Court should either vacate the Referee's order and grant her physical custody of the child in North Carolina, or should direct that there be a new custody hearing in this matter. As to the first request, this Court will consider all arguments regarding the Referee's order at length below. As to the request for a new hearing, the same is denied.
A review of the record shows that the parties were afforded a "fair and comprehensive hearing" (see Jan S. v. Leonard S. , 26 Misc. 3d 243, 250 [Sup. Ct., N.Y. Co. 2009] ). The parties were allowed to testify and present evidence, to cross-examine witnesses, and to make and preserve arguments to the Court. CPLR 4320[a] provides that upon the reference of a matter to a Special Referee, "the referee shall conduct the trial in the same manner as a court trying an issue without a jury." Nothing in the record indicates that the trial here was conducted improperly or that the Referee abused her discretion in making evidentiary rulings or otherwise.
Therefore, given that the hearing was fair and comprehensive, and that the record permits for a full review of the issues raised, directing a new trial would be a tremendous waste of judicial resources and would unnecessarily delay this case. Moreover, continuing the litigation may create continued "trauma and uncertainty" for the child (see Matter of Newton v. McFarlane , 174 A.D.3d 67, 76 [2d Dept. 2019] ), who is entitled to stability and finality.
III. Whether the Report Should be Confirmed
Courts in this State generally "will look with favor upon a Referee's report, inasmuch as the Referee, as a trier of fact, is considered to be in the best position to determine the issues presented." ( Namer v. 152—54—56 W. 15th St. Realty Corp., 108 A.D.2d 705, 706, 485 N.Y.S.2d 1013 [1st Dept. 1985], quoting Matter of Holy Spirit Assn. for Unification of World Christianity v. Tax Commn. of the City of New York , 81 A.D.2d 64, 438 N.Y.S.2d 521 [1st Dept. 1981] ). "It is well settled that the report of a Special Referee shall be confirmed whenever the findings contained therein are supported by the record and the Special Referee has clearly defined the issues and resolved matters of credibility." ( Nager v. Panadis , 238 A.D.2d 135, 135–36, 655 N.Y.S.2d 946 [1st Dept. 1997] ).
On the other hand, the court is not bound by the Referee's recommendation and his or her determination ( Jan S. v. Leonard S. , 26 Misc. 3d 243, 250 [Sup. Ct., New York County 2009] ). A judge has the discretion to "confirm or reject, in whole or in part ... the report of a referee." ( CPLR 4403 ). The Court may "make new findings with or without taking additional testimony; and may order a new trial or hearing ... Where no issues remain to be tried the court shall render decision directing judgment in the action." (Id).
No one factor is determinative of custody; rather, the Court is required to consider the totality of the circumstances in determining the best interest of the child. Among the factors to be considered are the respective age of the child, the financial circumstances, the home environment of each parent, the parental fitness of each parent, the preference of the child, the emotional bond between the child and each party, and the ability and willingness of each party to facilitate a relationship between the child and the other party (See Eschbach v. Eschbach , 56 N.Y.2d 167, 172 [1982] ). When applicable, the Court must also consider the length of time of any prior custodial arrangement and ensure stability for the children. (See Friederwitzer v. Friederwitzer , 55 N.Y.2d 89, 94 [1982] ).
In addition, where a relocation has taken place or is requested, the relocation is one factor to consider in determining what custody arrangement is in the child's best interests (see Arthur v. Galletti , 176 A.D.3d 412, 413 [1st Dept. 2019] ). This includes a consideration of the factors outlined in Tropea v. Tropea , 87 N.Y.2d 727, 739–41 [1996].
Here, the Referee set forth the proper legal standards and her findings are supported by the record evidence. Indeed, the various arguments put forth by the AFC, and adopted by the Referee, are in fact supported by the evidence. Many of the critical facts were not in dispute. These include that the mother was the primary caretaker, and that child had a close relationship with his father. In addition, it was undisputed that the mother moved to North Carolina without informing the father, and that she refused to tell the father her address or the name of the child's school. Further, the child, through his attorney, consistently expressed a desire to see his father more often. And, the determination that the child's best interests are served by granting the parties joint legal custody, and the mother physical custody on condition that she return to New York, was supported by the totality of the circumstances.
However, this Court recognizes the brevity of the Referee's decision, and the value of more specific findings, and thus will proceed to make more specific findings based on the record evidence. First, as noted, there was no conflicting evidence about which parent was the primary caretaker of the child. After the parties separated in 2012-2013, the child lived primarily with the mother, who ceased working for some time in order to care for her child. The length of time of this de facto custodial arrangement is significant and continuing the same would promote stability for the child. The mother was also primarily responsible for the child financially and, with the exception of splitting the cost of day care, the father's financial contributions were sporadic until 2018.
Next, the evidence demonstrated that both parties were competent and caring parents. They both showed concern about the child's education and well-being. The father brought the child swimming, taught him music and languages and supplemented his schoolwork. The mother expressed valid concerns about school discipline and took time to research school districts on behalf of her son. The mother also assisted the child with his homework and wanted to ensure he had access to extracurricular activities and childcare resources.
The evidence demonstrated that the parties' financial circumstances were similar. While the mother earns approximately $62,000 in her current university position, the father also has steady employment at Barclays Center and his income was in the $50,000 range based on his own testimony as well as his imputed income in the child support proceedings. Relatedly, the quality of the parties' homes were similar. In each case, the home contains multiple bedrooms and the child would have his own bedroom. Both homes are suburban and would give the child access to a yard and a nearby pool, and a similar lifestyle.
The evidence also showed that the child was bonded with his father, enjoyed spending time with him, and wanted to "emulate" him. In addition, the child was close to the father's wife as well as numerous relatives on the father's side of the family including the paternal grandfather, an uncle and cousins who live nearby to the father's home. These bonds are also a significant factor to consider.
There is some conflicting testimony about the frequency of the father's visits with the child over the years. Depending on the time period, the visits may have taken place as frequently as every weekend, or may have been three weekends a month or every other weekend. At other times the visits may have been less frequent. There were also certain time periods that the father was traveling and out of the country for weeks. However, what is clear is that the father was always involved and a consistent presence in the child's life.
The child, who was six years old at the time of the trial, also was consistent in his desire to see his father more often. The child is currently seven years old, nearly eight, and based on recent interviews with his attorney, continues to maintain his desire to see his father more often. He also was clear that he enjoyed his time with his father, enjoyed speaking to his father on the phone regularly, and was sad when he couldn't visit him, including during the height of the coronavirus pandemic. The child also expressed through his attorney that he wanted to see his father as much as possible, and stated that while North Carolina was "good" he preferred New York and would feel "great" if the mother moved back. The desires of the child, even given his young age, are entitled to some weight.
The evidence also established a number of things in connection with the mother's relocation. First, the mother may have contemplated moving for many years, and may have researched such moves and applied to various jobs, and may even have mentioned the idea of moving to the father and his wife over the years. However, it is also true that she never obtained the father's consent to move, never obtained the court's consent to a move, and suddenly moved in 2018 without informing the father. This move was taken without any regard to the father's rights, the child's bond with his father, or what may have been in the child's best interest.
Further, while the mother may have felt financially stressed in New York, she had stable employment in New York, earning over $50,000 annually, and had support from her mother in New York. At the time she relocated in 2018, she had not secured employment in North Carolina. Nor was she drawn to a specific, definite job opportunity. She also had not established a residence there at the time of the move. Nor did she have any family or other resources in the area. In fact, it appears the main motivation for her move was her then fiancée. Yet, her relationship with him ended in January 2019.
The mother's decision to relocate in this fashion and in these circumstances coupled with her refusal to inform the father of her address or the name of the child's school raises serious concerns about her ability to facilitate her son's relationship with his father. Further, it is also clear that the move had seriously impacted and unduly interfered with father's relationship with the child.
At the hearing, both parties proposed having joint legal custody. Although this Court has some concerns about how the parties communicate and could work together, given their willingness to enter such an arrangement, the Referee's determination in this regard has support.
Most important, the record evidence supports the Referee's determination that the totality of circumstances dictate that the best interest of the child lies in granting the mother physical custody, along with substantial parental access to the father, on condition that the mother return to New York (see Huston v. Jones , 252 A.D.2d 502 [2d Dept. 1998] [granting custody to mother on condition she relocate within a 50-mile radius of the father's residence] ).
The mother emphasizes the father's failure to provide more consistent child support as a factor for this Court to consider. Relatedly, she argues that her financial situation is far better in North Carolina inasmuch as her salary "goes further" there. This Court has taken judicial notice of the child support order and certainly agrees that supporting one's children financially is a critical obligation. There is no evidence that the father has not complied with the child support order once it was issued. Further, the difference in the mother's salary is not tremendous and she has not demonstrated that she could not earn that amount in the New York area where she already had steady employment.
In any event, the mother has not shown that her finances made her move to North Carolina necessary. The facts here are distinguishable from cases in which economic necessity truly warranted a relocation (see Matter of Quartey v. Van Buren , 169 A.D.3d 690 [2d Dept. 2019] ; Matter of Dianna P. v. Damon B.-D., 165 A.D.3d 470 [1st Dept. 2018] [the mother was "unable, despite an ongoing job search, to find full-time work in her field and has been unable to make ends meet for herself and the child" [in New York, but] "has obtained a full-time position in Georgia."] ). Nor has the mother shown that the relocation and the disruption it caused to the child's relationship with his father and other family was in his best interests.
The school records from North Carolina which this Court has considered also do not change the calculus. These records merely bolster the mother's testimony that the child did well in school in North Carolina. They do not establish a qualitative difference between the schools in New York and North Carolina. Further, the testimony established that the child was attending a charter school in New York and was also doing well.
The mother also argues that the Referee afforded undue weight to the child's preference. In this regard, the mother relies on language in the Referee's Order which prefaced a string citation of cases. Specifically, the Referee recognized that the child's preference is not determinative but should be afforded great weight "when the child's age and maturity would make his or her input particularly meaningful." The Referee went on to state that the Court may also consider the recommendation of the Attorney for the Child. Despite the admittedly confusing language in question, there is no indication that the Referee actually gave too much weight to the child's preference or that the child's wishes were the primary basis for the decision.
In any event, it is without question that the child's wishes are entitled to some weight. This Court agrees that the child's wishes should not dictate the outcome of this case. On the other hand, his wishes should not be ignored or minimized, and should be given some consideration especially since the child was able to verbalize his desires (see Koppenhoefer v. Koppenhoefer , 159 A.D.2d 113, 116 [2d Dept. 1990] ).
There is no merit to the mother's claim that the Referee utilized the wrong legal standard or treated this matter as if the mother were seeking to modify an existing order of custody so she could relocate. As noted above, the Referee set forth the proper standard and the AFC also argued in her summation that this was an initial custody determination and that relocation was an important factor to consider in that context. In fact, the Referee relied on the same precedent put forth by the mother on these motions (see Matter of Quartey v. Van Buren , 169 A.D.3d 690, 691 [2d Dept. 2019] ["Where, as here, the matter concerns an initial custody determination, the strict application of the Matter of Tropea v. Tropea (87 N.Y.2d 727 [1996] ) factors, relevant to relocation petitions, is not required, and therefore the mother's request for permission to relocate with the child to North Carolina is but one factor to be considered in determining what custody arrangement is in the child's best interests"] ).
While the strict application of Tropea factors may not be required, the mother's desire to relocate, and her actual relocation remains a significant factor, one that must be considered among the other factors in making the custody determination. In considering relocation as a factor, this Court must in turn consider the reasons for the move, any potential benefits of relocation to the child, and the effect of the move on the child's relationship with his father, and any other relevant related factors that may aid in its determination.
More specifically, the factors to consider related to relocation include: 1) "the impact of the move on the relationship between the child and the noncustodial parent"; 2) "the custodial parent's reasons for wanting to relocate and the benefits that the child may enjoy or the harm that may ensue if the move is or is not permitted"; 3) "economic necessity or a specific health-related concern"; 4) "the demands of a second marriage and the custodial parent's opportunity to improve his or her economic situation"; 5) "the noncustodial parent's interest in securing custody, as well as the feasibility and desirability of a change in custody"; 6) the child's "ties to the noncustodial parent and to the community"; 7) "the good faith of the parents in requesting or opposing the move"; 8) "the child's respective attachments to the custodial and noncustodial parent"; 9) "the possibility of devising a visitation schedule that will enable the noncustodial parent to maintain a meaningful parent-child relationship"; 10) "the quality of the life-style that the child would have if the proposed move were permitted or denied"; 11) "the negative impact, if any, from continued or exacerbated hostility between the custodial and noncustodial parents"; and 12) "the effect that the move may have on any extended family relationships" (see Tropea , 87 N.Y.2d at 739-40 ).
Among other things, this Court finds that the relocation has and would continue to have a large impact on the child's relationship with his father as well as with his extended family relationships in New York. Notably, the child had an extensive family network in New York and no such network in North Carolina and the child's ties to the father and the community here were strong. In addition, the father was willing to secure custody if necessary and granting the father physical custody is feasible.
The mother also failed to show that her relocation was required by economic necessity or that she could not advance her career in New York. Indeed, the mother had steady employment in New York and did not show she attempted to but could not get a higher paying job in New York. Rather, she only demonstrated her various efforts to obtain employment outside of New York. Nor did the mother present evidence that she attempted to locate more affordable housing in New York. In fact, the housing she located in North Carolina was ultimately more expensive than what she was paying in New York.
Next, the mother's move was not made in good faith and completely ignored her son's relationship with his father. The mother moved surreptitiously without either the consent of the court or the father and without a job or home in North Carolina. She did so strategically and intentionally when the father missed a court date and she withdrew her case in order to move forward with these plans. While the mother correctly argued that this move did not violate any court order, this Court can still consider the mother's decision making and conclude that she has a disregard for the father's role in her son's life and question whether she is truly capable of facilitating the child's relationship with the father (see Matter of Bush v. Lopez , 125 A.D.3d 1150, 1151 [3d Dept. 2015] ["the mother's abrupt departure for North Carolina raises concerns about her commitment to encouraging a relationship between the father and the child"] ). Further, the mother's refusal to disclose her location was in violation of her obligations and duties as a de facto custodial parent.
It is well established that it is in a child's best interest to have regular and meaningful contact with both of his or her parents. (see Zwillman v. Kull , 90 A.D.3d 774, 775 [2d Dept. 2011] ["The best interests of the child lie in being nurtured and guided by both parents. In order for the noncustodial parent to develop a meaningful, nurturing relationship with the child, visitation must be frequent and regular"] ). To be clear, this Court is not finding that the mother made no efforts to facilitate the relationship between the father and child. Certainly, she has ensured regular phone contact and has complied with various temporary visitation orders. However, her decision to relocate and the circumstances surrounding the move, as well as the impact the move had on the child's relationship with the father are still troubling.
The mother's proposal for the father's visitation could never replicate the father's former access to the child. After the mother moved the father's time with his son was extremely limited and there were large gaps in time during which no visits took place. The transportation and planning required to facilitate visits from North Carolina is clearly very different and more challenging. Even with a significant block of time in the summer and certain other school breaks it will be difficult to have the same type of relationship than when both father and son reside in New York. Moreover, the cost of travel adds an additional burden for this family.
The mother's reliance on various precedent where relocation was permitted is unavailing and the cases the mother relies on are distinguishable. For example, Matter of McMiller v. Frank (181 A.D.3d 1154 [4th Dept. 2020] ) does not aid the mother as the decision does not provide sufficient details about what the various facts and circumstances were in that case that supported the relocation. Similarly, reliance on Quartey, supra is misplaced because in that case the Court found that the reason for the mother's relocation to North Carolina was economic necessity, which is not the case here. In addition, in Quartey the other factors supporting the relocation were the child living with her half-sibling and the mother consistently fostering a relationship between the child and the father, factors not present here.
The mother also relies on various cases permitting relocation, where, among other things, the father had not paid child support (see e.g. Matter of Dianna P. v. Damon B.-D., 165 A.D.3d 470 [1st Dept. 2018] ; Matter of Nairen McI. v. Cindy J., 137 A.D.3d 694 [1st Dept. 2016] ). However, even accepting that the father had not provided child support for some years before a support order was issued, this factor does not outweigh the many other factors outlined above which weigh against relocation in this case. Further, in Matter of Nairen McI, the mother was only able to obtain employment in Tennessee, the child's academic performance had improved in her Tennessee school, the child preferred to remain in Tennessee, and there was a general improvement in the family's quality of life. No such factors are present here. Nor did the mother establish in this case that she was financially unable to remain in New York.
IV. CONCLUSION
Because the hearing conducted by Special Referee was fair and because the conclusions reached are supported by the record, and based on the additional detailed findings of this Court based on its own review of the record evidence, the Referee's findings and conclusions must be confirmed.
In sum, based on the forgoing, this Court confirms the Referee's determination to award the parties joint legal custody and the mother physical custody on condition she return to New York with the child to live in equal geographic proximity to the father's residence as her most recent prior residence in the Bronx, which the Court deems to be a 30-mile radius.
The Court makes the following additional findings and direction. The parties have entered into a stipulation covering parental access for the Summer of 2020, which this Court has incorporated into a temporary order of visitation. Pursuant to the order and stipulation, the father will have parenting time with the child in New York from June 19, 2020 until August 15, 2020. However, in light of this Court's confirmation of the Referee's determination, this order will supersede the temporary order of visitation and stipulation. This Court now orders the child to remain in New York at the conclusion of the summer time, to be enrolled in school in New York for the 2020-21 school year, and grants the father physical custody and final-decision making authority unless the mother returns to live in New York as directed by the start of the 2020-21 school year. In addition, neither party is to relocate the child's residence outside of New York without written consent from the other parent, or without an order of the court. Further, in the event the mother decides to remain in North Carolina, she will be responsible for the costs of transporting the child for her visits.
Due to the ongoing Covid-19 pandemic, there remain some travel and quarantine restrictions between New York and North Carolina. Therefore, the mother's upcoming July 19-20, 2020 visit for the child's birthday, shall be conducted electronically and not in person. The parents should continue to adhere to any travel restrictions and advisories due to the Coronavirus outbreak or any future travel concerns that may arise.
All other terms of the Referee's order, including the notification requirements, access to information requirements, phone access, and the alternate parenting time schedules provided depending on whether the mother moves back to New York are confirmed by this Court and should be followed by the parties. The parties are also permitted to modify the parenting schedule if they both agree to do so in writing.
Accordingly, it is
1) ORDERED that the AFC's motion is granted; and it is further
2) ORDERED that the mother's cross-motion is denied; and it is further
3) ORDERED that the parties are granted joint legal custody; and it is further
4) ORDERED that the father is granted physical custody and final-decision making authority unless the mother returns to live in New York as directed by the start of the 2020-21 school year. Neither party is to relocate the child's residence outside of New York. Further, in the event the mother decides to remain in North Carolina, she will be responsible for the costs of transporting the child for visits; and it is further
5) ORDERED that the child be enrolled in school in New York for the 2020-21 school year; and it is further
6) ORDERED that email copies of this order to counsel for the parties shall be deemed appropriate service.
This constitutes the decision and order of the court.