Opinion
Index No. 350080/2013
06-26-2023
S.D., Plaintiff, v. D.D., Defendant.
Counsel for Plaintiff Silva Thomas PC By: Donald Hayde, Esq. and Annmarie Sitar, Esq. Counsel for Defendant The Law Offices of Joseph H. Nivin, P.C. By: Joseph Harris Nivin, Esq. Counsel for the Child Fink & Katz, PLLC By: Philip Katz, Esq. And Nicole Riordan, Esq. Law Office of Nicole Riordan By: Nicole Riordan, Esq.
Unpublished Opinion
Counsel for Plaintiff Silva Thomas PC By: Donald Hayde, Esq. and Annmarie Sitar, Esq.
Counsel for Defendant The Law Offices of Joseph H. Nivin, P.C. By: Joseph Harris Nivin, Esq.
Counsel for the Child Fink & Katz, PLLC By: Philip Katz, Esq. And Nicole Riordan, Esq. Law Office of Nicole Riordan By: Nicole Riordan, Esq.
ARIEL D. CHESLER, J.
In this post-judgement proceeding, Plaintiff-mother (hereinafter "Plaintiff," "mother," or "S.D.") seeks a modification of custody and parenting time, and permission to relocate to North Carolina with the subject children. She also asks the Court to adjudge Defendant-father in contempt for failing to child support, for an award of support arrears, and for an award of counsel fees. The Defendant-Father (hereinafter "Defendant," "father," or "D.D.") seeks an order of joint custody, to revert to the parties' original 50-50 parenting time schedule, and for the Court to deny the mother's request to relocate the children to North Carolina.
For the reasons outlined herein, the court finds that it is in the children's best interests to modify custody to grant the mother final decision making authority after meaningful consultation with the father, to grant her primary residential custody and modify the access schedule, and to deny her request to relocate with the children to North Carolina. The financial related requests are denied without prejudice to further proceedings as directed below.
I. Procedural History
The parties married in 2009, separated in 2013, and by 2014, they executed, and this Court so-ordered, a Parenting Agreement which granted the parties joint legal custody and an equal parenting schedule of their two children, E.G.D. and A.W.D.. The Parenting Agreement, ultimately incorporated into the parties' Stipulation of Settlement ("Stipulation"), was executed on February 27, 2015. The parties were divorced on June 16, 2015. The Judgment of Divorce was signed and entered on June 19, 2015.
A protracted hearing was held virtually over many months between February 17, 2022 and November 30, 2022. On consent, both parties submitted sworn affidavits as their direct testimony. As part of their cases, both parties also on consent put forth a number of witnesses who submitted their direct testimony via affidavit; only a few were cross-examined on the record. Numerous exhibits were also submitted in evidence. Aspects of the relevant testimony of various witnesses are referred to in the decision where appropriate. The Court does not give significant weight to testimony from the unmentioned witnesses.
The forensic evaluation and report from Dr. Rodrigo Pizarro MD was entered as evidence and he also testified.
II. Trial Testimony & Evidence
A. Plaintiff's Testimony
S.D. is seeking to relocate with the children to North Carolina, to modify the custodial arrangement from joint to sole custody. The court finds her testimony to be generally credible; however, there were aspects of her testimony that were speculative and conclusory. At times her testimony may have been inaccurate such as when she insisted Defendant had placed A.W.D. in a freezing shower and then left her outside in freezing cold temperatures. Indeed, a number of witnesses who were present denied such a punishment ever took place.
Other aspects of her testimony seemed to be inconsistent such as when she claimed she still desired the father to relocate to North Carolina with her, even though they had a volatile and conflict prone relationship.
1. Custody
In her affidavit, Plaintiff notes that she has been the children's primary caregiver since birth and been the person to care for their physical, emotional, financial and psychological needs. She is the parent who would enroll them in school. She was a class parent for each of the girls and attended all the parent/teacher conferences. She scheduled the medical and dental appointments for the children and took them to these appointments.
She argues that over time, it has become increasingly more difficult to co-parent and make joint decisions with Defendant. She testified that his unilateral move to New Jersey in May 2020 makes it difficult to maintain a 50/50 schedule and this fact alone should be sufficient to modify the underlying parenting agreement.
Her affidavit states that he was abusive even before the marriage and it got worse after E.G.D. was born. Defendant can be verbally abusive and has called her a "cunt" or a "bitch," and he has been on medication for one reason or another his entire life. He has had verbal and physical outbursts with strangers sometimes requiring police intervention but always blames someone else. He plays mind games and has abusive and controlling tendencies with frequent criticism, denigration and other methods to make her doubt herself.
She testified that he has a habit of telling the children that they dreamed or imagined certain incidents to escape blame. For example, according to the mother, A.W.D. reported to her that the Defendant forced her into a shower of cold water and then immediately afterwards, made her stand outside on a cold December night for an undetermined period of time in the freezing cold in only her wet underwear and claimed that the child that she only dreamed that and it didn't happen. Both children reported to her that he has left them alone and will do this sometimes as a punishment. For example, the mother testified that in another incident, the father left A.W.D. on the rooftop alone as punishment for not falling asleep and the father again claims that the child imagined it.
During COVID, on his custody days, the girls would miss or be late to remote school with the girls reporting to her that he was on an important call and couldn't log them in timely. He was also late in dropping them off when in-person school resumed but would always blame someone else or some happenstance.
E.G.D. has a diagnosis of anxiety, dyslexia, unspecified depressive disorder and ADHD and receives an IEP from school. She has significant challenges with transitioning from mom to dad for visits. In October 2020, Defendant bought E.G.D. to Morristown medical Center Emergency Room claiming that she made a series of suicidal statements but the child "vehemently" denies making those statements and the hospital did not find her a danger to herself and released her. Plaintiff believes that the child's unhappiness is that she didn't want to be at her father's home and desired to see her mother instead. Afterward, both parties agreed to go to GenPysche for any further treatment, but they couldn't avail themselves of their services because they were not New Jersey residents; she did not terminate the follow up appointment as the father claims. There was no recommendation that she be required to take medication, but the father is "obsessed" with the belief that E.G.D. needs to be medicated. After they found what she believes was an appropriate therapist, she alleges that the father then shopped around for a second therapist (who would probably prescribe medications) and unbeknownst to mother the child had two at the same time.
"Life is not worth living anymore," "I wish I was dead," and, "Being dead is easier."
The mother received a temporary order of protection on behalf of A.W.D. against the father after she discovered a bruise on her arm when they came from a visit with the defendant. As a result, his visits were suspended, and a forensic evaluator was appointed. The mother notes that E.G.D. made significant improvements during the period of time when the father's visits were suspended; her social skills and academic performance improved drastically, and she never seemed happier and more confident in herself.
He filed criminal charges against her, based on an incident that happened 2 months prior, after her then-divorce attorneys sent him an introductory letter about her intent to divorce him. A.W.D. was only 10 months old at the time and was forcibly weaned from breastfeeding after that arrest. Over the next 6 months, she had to prepare for the criminal trial and was acquitted after 6 days of testimony. The next day, she had to file a writ of habeas corpus because she didn't know where the father was with the children and he hadn't shared his address with her.
The mediation and parenting coordinators ("PC") have not worked for them. The parties have had several PCs over the years and he would use the sessions to berate her, provide false information, and if it did not go his way, he would unilaterally discontinue the process. At no time did mediation resolve anything when they sought assistance to resolve a daycare selection issue, or medications for E.G.D. or the relocation issue. Most recently, the parties worked with Dr. Moserri as a parenting coordinator and when he made a recommendation for an alternate week schedule, she testified that she ceased participating believing that Dr. Moserri did not consider E.G.D.'s fragility during the transitions that are knowingly difficult nor some of the prior incidents that would make a 50/50 schedule too difficult to implement given the father's move to New Jersey.
She believes that Defendant is trying to influence the children and be the "fun" parent - giving them toys, candy, video games and a television in their room, which they don't have at their mother's house.
2. Relocation
Plaintiff testified that she has wanted to live in North Carolina since before the parties' first child was born and has always discussed it with him. The parties had discussed moving to North Carolina as early as December 2010 when she was pregnant with E.G.D.. Defendant continually engaged in this discussion and even looked for employment opportunities in North Carolina.
Cary, North Carolina is 15 minutes away from Raleigh, NC. It has a quaint downtown area with shops, restaurants, a movie theater, recreational parks, arcades, paint class centers and fountains. The proposed location has far more open space than NYC. The girls would have a yard to play in without the big city safety concerns of New York. The home would allow them to have their own bedrooms. The maternal grandmother would co-purchase a home with her, live with them and assist with raising the girls and providing childcare, making it even more economical than NYC. She testified that the public transportation of NYC is less safe and more chaotic than North Carolina. She includes an affidavit detailing some statistics regarding safety of NYC as compared to North Carolina in support of the move.
Her employer has a location for them to transfer her to and they advised her that she could keep her NYC salary and work in a hybrid capacity. K.E. submitted an affidavit to the court and was cross-examined on the record. K.E. serves as the Chief of Staff for plaintiff's employer. Although she is not her direct supervisor, she has worked closely with her over the years. In her role at the job, K.E. is aware that their employer would permit S.D. to continue her current position at a North Carolina office at her current NYC salary based on the caliber of S.D.'s quality workplace performance; K.E. is also the employee who prepared verification letters to permit S.D.'s continued employment in North Carolina.
The maternal grandmother testified on behalf of the mother to elaborate on the relocation plan. As an initial matter, the Court finds that, overall, the maternal grandmother ("M.C.") testified credibly. Her answers were generally honest and forthcoming. In some areas, such as her purported lack of awareness that other parts of the country may have affordable housing other than North Carolina, the court finds that the grandmother was incredible.
In her direct testimony by affidavit, M.C. testified that she is the maternal grandmother of the subject children, and always had a loving supportive relationship with S.D. and has not disparaged D.D. in the presence of the children.She notes that she has always been actively involved in the Children's lives since they were born, providing significant childcare for them when they were younger to cover school closures when their parents had to work, when they were sick, when they visited her in Florida, and when she visited them in New York. The mother and children stayed with her in Florida during COVID. She also testified in her affidavit that she has provided monetary support to S.D. whenever D.D. failed to pay child support or other expenses, especially over the past 5 years.
According to her, the parties have been discussing a relocation to North Carolina for approximately eight (8) years. Both of them told her that they believed a "suburban, less expensive and slower pace of life would be in the Children's best interests." She indicates a willingness to relocate from Florida to Cary, North Carolina to buy a home where she, Plaintiff and the subject children could comfortably live together. This way, she could be of financial assistance and share expenses and provide any needed childcare for the children.
Based upon her online searches of the homes in Cary, North Carolina, she and Plaintiff intended on purchasing a residence with 4 bedrooms and 2 bathrooms in the approximate amount of $450,000. She has listed her own Florida home for sale in attempts to be ready for such a relocation if this court should grant that request. She notes that she and S.D. would purchase the home together. She testified that she could make the down payment using the funds from her late husband's insurance policy in addition to the funds received from the sale of her current Florida home. She testified that although S.D. would not contribute to the down payment on the North Carolina home, they would share the financial responsibility for all rent/mortgage, utilities and other living expenses and that S.D. would have an interest in the property. In the event of an overlap between the purchase of a home in Cary, North Carolina and her Florida home, M.C. testified that she would be able to carry her share of the North Carolina home and the Florida home until the Florida home is sold.
On cross-examination, M.C. testified that there was a discussion with the father about moving to North Carolina, that he changed his mind in the Fall 2020 and that she and her daughter discussed moving without him. She testified that she does not know anyone in Cary, NC but has a relative in Asheville, NC. Notably, she testified that there was no real consideration into purchasing a home in the New York area (i.e., Long Island or Westchester). She viewed that as impossible to afford but that she would be willing to purchase a home with her daughter in New York if it is affordable. Given that her daughter was in charge, the grandmother testified that she did no independent research as to the affordability of closer homes in New York but is willing to support her daughter in whatever decision she makes. She also testified that she would be happy to fly the kids to see their father in New York.
Plaintiff says that it is economically necessary to relocate with the children because the father does not pay child support and living in New York is difficult and expensive and North Carolina has a lower cost of living. In her affidavit, the mother notes that North Carolina has one of the best school districts for E.G.D. and her special needs. Finally, on the issue of relocation, the mother would make efforts for meaningful contact between the father and their children if they moved. In her summation, she does request that the court consider a 50 - 65-mile radius for relocation, which she notes that the defendant testified that he would consider.
B. Defendant's testimony
The court finds the father's testimony to be somewhat credible; however, certain aspects of his testimony were self-serving. At other times, similar to the mother, his testimony was inaccurate or exaggerated. For example, he claimed to have suffered a "brain injury" following an incident with the mother. However, at the same time he admitted that the injury he was referencing was merely an alleged concussion and his medical records specifically showed "no evidence of acute traumatic intracranial injury."
1. Relocation
Defendant does not believe that a relocation of his children to North Carolina is in their best interest. He admits having discussions with Plaintiff about a move and he even traveled with her in summer 2015 to visit and explore the area. He notes that he wanted to responsibly plan and secure employment for himself and appropriate services for E.G.D. in North Carolina before he could consent to the relocation and that Plaintiff is upset he didn't blanketly agree. He testified that he did make efforts to secure employment in North Carolina but was unsuccessful. He testified that he and his wife have jobs in the northeast that require them to be in the office several times per week and it wouldn't be feasible for them to move.
He testified that a relocation would severely impact his ability to be with the children and frustrate the relationship that they have now.
He also testified that the mother had not indicated any plan to secure the appropriate services for E.G.D.'s special needs in North Carolina. He has looked at schools and he is concerned whether they are appropriate as they may be overcrowded, too competitive, and lower ranked than where the children currently attend.
In his summation, he questions Plaintiff's fixation on North Carolina as though no other zip code in the country exists to relocate to give the children the suburban pace of life she is demanding. He did testify that he could be amenable to a New Jersey, Westchester or Connecticut relocation and perhaps a 30-minute radius clause.
2. Custody
Defendant does not believe that the mother has met her burden to modify the existing parenting agreement. He wants to maintain a joint custody arrangement, with 50/50 parenting time and is willing to cooperate and continue making decisions, even with the use of parenting coordinators, as that would be in the children's best interest.
He testified that the mother should not have sole legal custody of the children. She claims that he is a neglectful parent but deflects from her own inadequate guardianship. For example, Plaintiff didn't want to change daycares even though A.W.D. had to get stitches twice from their apparent failure to supervise; the closeness of the daycare to her home kept Plaintiff from considering other safer options. When he had concerns about E.G.D. and wanted to get her therapy from Jewish Board, mother refused intake. He testified that he is the parent who initiated an IEP evaluation; the mother rejected that idea and believed it would be invasive. The mother is the parent who terminated E.G.D.'s GenPsyche therapy after the child made suicidal ideations. The children reported being given sleeping pills and being locked in their room at night which made A.W.D. soil herself. He testified the mother can be dismissive of the children's needs. For example, on one occasion he expressed concern about A.W.D.'s health, and the mother ignored him and it turned out that A.W.D. had pneumonia.
According to Defendant, the Plaintiff undermines rather than promotes his having a relationship with the children and giving her sole custody will only further alienate them from him. For example, the children reported that she called him "evil, homeless, mean and a loser." E.G.D. would call and say, "I don't love you; I only want to live with mommy" and he could hear Plaintiff in the background saying "it's okay, just tell him what we talked about." She would act strangely during the drop offs and would cry hysterically hugging the children and holding onto them until she got an emotional reaction out of the children.
When the family was visiting Sesame Place: he told the mother about his new girlfriend moving in with him and she got upset and threatened to leave him at Sesame Place, locked him out of the car and threatened to leave everyone there. The children were begging for her to let him in the car and she eventually did. But for his visit the next day, the children were 40 minutes late. The children expressed concern over mom being "sad and lonely" without them and that they should live with her given that the father had his girlfriend.
When the children were in remote schooling, although she denies it, he believes that Plaintiff changed the school log-in passwords. He had to reset it and it made them late to log in for school. While he may not have been perfect during the remote schooling with the Google checklist, the kids were attending school and getting their work in which can be corroborated by looking at the school's records rather than Google.
The father testified that he never left the children unattended on the roof. He submitted an affidavit from S.G.Z. who worked as the facilities manager of the high-rise apartment building. In that affidavit, she notes that none of the security cameras, which are constantly monitored by the staff, showed that he left either of the children unattended on the roof. There would have been an immediate dispatch and record of this. She also notes in her affidavit she had never seen him lose his temper, even in stressful situations such as the move-in, move-out and an unfortunate bed bug infestation in the building. He always appeared loving and appropriate with the children.
Defendant denies the shower incident where the mother alleges that he left A.W.D. in the cold in wet underwear. He testified that he had wrapped her in a blanket and took her to the foyer to calm her down. He submitted affidavits by A.L., his now wife, and both her parents, one of whom is a pediatrician, who were in the home at the time, affirming that he did not do this and that he was trying to calm her down from an argument the girls had with one another.
Defendant also denies hitting or holding A.W.D. so forcefully that it left a bruise on her arm. She may have been in an argument with her sister, doing yoga poses or bumped into things after running in her socks. He notes that there was a scheduled pediatrician visit the following week but instead of going there, the mother skipped the appointment and filed a motion accusing him of abuse.
He testified that he understands his children's needs. He is the parent who navigated the school to get E.G.D. an IEP, even when the mother initially didn't agree with him on that. When they resumed weekend overnight visits, he did a camp out with the girls and new wife in the living room to facilitate E.G.D.'s transition to his new residence. He submitted an affidavit from A.R., the children's nanny from summer of 2014 to fall of 2018 in which she notes that he was always patient with the children and their tantrums appropriately deflecting their attention to books and hugging them to calm them down. She notes that their basic needs were met and she never observed him being abusive to them. His New Jersey home has a decorated room for the girls and the children love it.
The father notes how much he loves his children and how much they love him. He is involved in school activities. He was chaperoning a school event and the girls were very happy and excited to see him; A.W.D. introduced him to her friends and E.G.D. ran up to him from across a field and they had a prolonged hug.
Even though she was acquitted of the criminal charges, he has a "brain injury" from the incident where she hit him with an oversized wooden spoon.
Defendant believes the children are influenced by their mother. For example, the girls once asked their mother for 50/50 time but she "shushed" them and gave them a stern harsh look. During COVID, when the children were with their mother and maternal grandmother for 52 days, the longest he had been away from them, the children would call him to say they didn't love him and wanted to live with their mother. In evidence is a picture A.W.D. drew, with the mother's assistance, stating "I hate daddy."
The father argues that Dr. Pizarro's report should be given no weight as it is outdated, contradictory and biased toward the mother and against him. Dr. Pizarro admitted that he did not review all the father's submissions because he had difficulty opening the documents. Additionally, the forensic evaluation is outdated and was conducted at a time when the father did not yet have overnight visits. The father has been exercising overnight visits for many months now and this is a factor that Dr. Pizarro testified that he would have to reconsider.
The father asserts that his willingness to continue to co-parent with the use of mediators and parenting coordinators should not be characterized negatively as Dr. Pizarro reports in his forensic evaluation. In fact, the mother's unwillingness to coparent and cooperate is evidenced by her refusal to work with Dr. Rami Mosseri, the parties former parenting coordinator. According to Dr. Mosseri's affidavit, he indicated a concern that the mother may have been coaching the children after E.G.D. recanted her wishes during a session. In fact, the mother disengaged from parenting coordination when the father did not consent to a relocation to North Carolina and she threatened to take legal action against him.
He testifies that the mother then filed the unproven, uncorroborated, and self-serving Order to Show Cause alleging child abuse. Defendant believes that the mother used his limited time with the children as a tactic to make her subsequent relocation motion stronger given that the parties did not have equal time with the girls due to the Order of Protection.
Defendant also testified that he does know that the children need stability, based on Dr. Pizarro's report, but he doesn't believe that changing the arrangement to give the mother sole custody and limit his 50/50 access is in their best interest. Accordingly, he would ask that this court leave the current arrangement in place with the parties sharing joint custody and having 50/50 parenting time with the children.
C. Dr. Rodrigo Pizarro Forensic Report
Dr. Rodrigo Pizarro conducted the forensic evaluation of this family. In evidence are his Curriculum Vitae and his forensic report, dated October 7, 2021. The parties stipulated that he was an expert in forensic psychiatry with a specialization in child custody. He was cross-examined on the record.
The court finds Dr. Pizarro's testimony to be credible, honest and truthful. Based on the initial parameters of the forensic appointment order, the court largely considers his report and testimony mostly as it relates to any modifications in the custodial arrangement rather than as any basis for or against relocation. In any event, Dr. Pizarro states that he did not make a recommendation as to the issue of relocation. In relevant parts, the father has an official diagnosis of ADHD, who also presents features of Antisocial Personality Disorder, PTSD, post-concussion syndrome and paranoia. Dr. Pizarro viewed these as consistent with the mother's description of his irritability and over-reactivity; all of which are "risk factors for difficulties in co-parenting and for poor reactions when dealing with frustration and challenging behaviors by the [children]."
1. High Destructive Conflict
In his report, Dr. Pizarro concluded that the parties are in High Destructive Conflict, which can present as mistrust between the parties, willingness to repeatedly return to court, ignore the effects on the children, denial or distortion of reality, rigid inflexibility, limited capacity for empathy, lack of insight into one's own behavior, identifying as the victim, a persistent drive to control others, viewing oneself as blameless, difficulty focusing on developing a parenting plan, lack of motivation to negotiate, etc.
Dr. Pizarro testified that of the two, the father would engage in behaviors consistent with high destructive conflict more than the mother. For example, the father's continued willingness to go to the courts for any issues, such as, medication for E.G.D., or child support payments, serve as additional examples of his high destructive conflict behavior.
According to Dr. Pizarro, both parties indicated being the victim of domestic violence in the relationship and discussing divorce even before A.W.D.'s birth. Both parties noted a need to amend the Parenting Agreement due to the acrimony and difficulty making decisions together, even after working with different mediators and therapists. The father's proposal of having a Parenting Coordinator with veto power rather than tie-breaking authority is consistent with his attempt to maintain an entanglement with the mother and trying to control her by continually needing to engage with an "army" of third party professionals. Dr. Pizarro elaborates that while a Parenting Coordinator could be helpful, one with veto power rather than tie-breaking power does nothing to enable the parties with decision making as the veto power "paralyzes" the parents and does nothing to move things forward; whereas a tie-breaking PC would be able to make a decision and permit forward movement in any stalemate.
Dr. Pizarro's view of the narratives presented by the parties regarding the criminal case are that the father's decision to file criminal charges against her, eventually leading to her arrest and criminal trial were weak and self-serving, showing a lack of empathy on the impact of arrest and separation of the mother with the girls, one of which was only 10 months old, demonstrative of a high destructive conflict dynamic.
It is important to note, that at the time of the forensic evaluation, the father was rather unstable, according to Dr. Pizarro, both with his fluctuating places of residence and with his then inconsistent employment and unemployment. However, Dr. Pizarro did testify on cross-examination that the underlying exposure to high destructive conflict are such that the parties cannot co-parent and the children would be better off in a primary home.
2. Gatekeeping
Dr. Pizarro explained that a parent's ability to facilitate a relationship with the other parent is referred to as gatekeeping. As explained in the forensic report, Positive Gatekeeping is related to the belief that the father's involvement with the children is important and that it is the mother's personal duty to facilitate it. Negative Gatekeeping is often related to the mother's perception of the father as not involved during the marriage or as incompetent with the children. Negative gatekeeping is often present in cases with a history of Domestic Violence , as "payback" for how the mother may have felt the father treated her or the children in the past, or when associated with strong "gender ideologies" in which the mother is the primary parent, and the father is a necessary but secondary parent. In some cases, Negative Gatekeeping can be protective or justified, if the other parent has significant deficiencies in their parenting, or if the children have significant needs that the other parent is not able to fulfill, referred to as Restrictive-Protective Gatekeeping.
As a concept, gatekeeping is usually termed from the perspective of the mother as it is, historically, the mother who is the custodial parent.
Dr. Pizarro notes that Domestic violence is a legal determination not a psychiatric one.
Here, Dr. Pizarro indicates that the mother exhibited some restrictive gatekeeping. For example, the mother initially respected the parties 50/50 schedule and the Parenting Agreement despite protests from E.G.D. about her father's home; protests which were present at the onset of the parties' separation, as reported to him by multiple outside sources. The mother only sought to modify, and restrict, the schedule after months of difficulties as the transitions became increasingly dysregulated overtime. Dr. Pizarro testified that this was an example of justified restrictive gatekeeping. The father's attempts to resume the 50/50 schedule indicated his failure to recognize that this was a small fragile child with significant transitioning challenges after spending months in Florida during the pandemic, struggling with readjusting to life in New York and that he had not created a home for the girls when they did visit him. Dr. Pizarro also notes that there came a time when the mother's restriction of the children became unjustified sometime in 2021 as the father was receiving too little access, especially regarding the child, A.W.D., who did not have the same anxieties or transitioning challenges as her sister E.G.D..
The mother has generally facilitated contact between the children and their father, even in the face of difficulties in the relationship. Dr. Pizarro reports that there is no indication to believe that the mother would be non-compliant with any future court-ordered parental access schedule.
3. Parental Alienation
Dr. Pizarro explains in his report the evolution of the concept of parental alienation and defines an "Alienated Child as a child expressing, freely and persistently, unreasonable negative feelings and beliefs (anger, hatred, rejection, and/or fear) towards a parent, with those negative feelings and beliefs being significantly disproportionate to the child's actual experience with that parent. Due to those unreasonable negative feelings and beliefs the child rejects a parent despite a prior history of a fairly good relationship with that parent."
Dr. Pizarro's forensic report notes that love, comfort and affection exist between the father and his daughters; they have clear bonds with one another. Nevertheless, the father believes that the mother has alienated the children against him. Dr. Pizarro testified on cross-examination that the mother did not engage in parental alienation behaviors. Rather, he viewed any reluctance for the child E.G.D. to spend time with her father as based on the child's own difficulties - her fragility and anxiety coupled with the mother's anxiety and the father's historical insensitivity. Contributing to E.G.D's difficulties were the compounded events of the COVID pandemic lockdown, the months spent full time with the mother, and the father's move to New Jersey with his then-girlfriend and her parents.
According to the forensic report and testimony, the mother has not engaged in and E.G.D. does not present the characteristics of an alienated child but rather she clearly, and as she has gotten older, more forcefully communicated her anxiousness with transitions, being away from her mother for long periods of time and that she needs a primary home. In contrast, the child A.W.D. has had little difficulty with the transitions to visit the father but does note that she finds her mother's home more comfortable, organized and stable. She also communicates that she feels she can trust her mother more with taking care of her needs.
4. Coercive Control
Dr. Pizarro noted that the father's narrative and behaviors were consistent with coercive control which he describes in his report as when one parent uses tactics of domination to exert control over or isolate the other parent through physical, emotional or financial exploits. It is a knowing and harmful course of conduct making someone feel subordinate and dependent, isolating the other from sources of support and it is rooted in a sense of entitlement. Coercive control is a subcategory to domestic violence and perpetrators of coercive control engage in narratives that make the other party "bad," undermine the other parent's ability to parent or fail to facilitate the relationship of the other parent with the children. In his report, Dr. Pizarro indicates that the father's narrative and materials portray the mother as a "terrible" person. Throughout his cross-examination, Dr. Pizarro noted how the father referred to the mother, as an abuser, deranged, crazy, dysfunctional, catatonic, grotesque, etc. Coercive controlling parents tend to be less warm, unempathetic, more authoritarian, less consistent, and angrier. According to Dr. Pizarro's testimony, the children have also described him as being somewhat scary, hot-tempered and insensitive.
The father's vacillation regarding the issue of relocation and his desire to utilize multiple 3rd parties to facilitate co-parenting are consistent with the coercive control dynamic where the other parent, the mother, could not move forward with her life. One of the recommendations for cases with a history of coercive control is to encourage minimal contact between the parents, no joint decision making and implementation of rules for maintaining distance between the parents.
5. Parental Denigration
Parental denigration occurs when one parent engages in criticism or bad-mouthing of the other parent to, or in the presence of, the children. According to Dr. Pizarro, the father's attitude toward the mother is very negative. Aspects of his negative commentary regarding the mother are documented in the children's medical records and therapists reports where the father has indicated that the mother is crazy, dysfunctional and has untreated mental disorder. Despite this conclusion that the father engaged in parental denigration with 3rd parties, Dr. Pizarro did note that he does not know for a fact of whether this occurred with the father to the children.
6. Forensic recommendations
Dr. Pizarro concluded that the parties are unable to co-parent. His report indicates that the mother reported significant difficulties in communicating and making joint decisions with the father and could not coparent with him. Dr. Pizarro also testified that that the father's belief that co-parenting is achievable with the assistance of mediators, parenting coordinators, therapists, and multiple other intermediaries is actually an indication that he (the father) too understands that the parties cannot effectively coparent between the two of them.
Regarding custody, Dr. Pizarro recommends that the children live primarily with their mother and that she should have ultimate decision-making authority with the father having visitation access with the children. Especially given E.G.D.'s special needs, Dr. Pizarro recommends that the mother be the primary home as E.G.D. needs a more stable home environment. His report does note that the mother is compliant with court orders such that facilitating a relationship with the other parent should not be a concern.
Dr. Pizarro made a series of recommendations regarding the schedule and type of access the father and the children should have which included some limitations on the number of overnight stays of the child E.G.D. with her father. Under cross-examination, Dr. Pizarro testified that even though the children are differently situated, with E.G.D. having more needs than A.W.D,, it is important to consider the sibling relationship and how differing schedules could affect that. The court will give Dr. Pizarro's recommendations some weight in conjunction with the other record evidence and what the children's own attorneys have proffered regarding custody and the father's parental access.
To be clear, the Court does not blindly follow Dr. Pizarro's recommendations and in some respects the Court is not following his suggestions. For example, while not making a recommendation as to relocation, Dr. Pizarro found that many factors supported a relocation. The Court disagrees with the assessment. As another example, Dr. Pizarro recommended limited time for the father and no suggested overnight visits with E.G.D..
The Court has also considered the critiques of the forensic set forth by Defendant, as well as the fact that Defendant's financial and housing stability, and his access with the children had changed significantly since the time of the report. On the other hand, the Court understands that a forensic evaluator may choose not to interview every collateral source. The Court also accepts that the evaluator may make determinations about the dynamics, interactions and relationships between the parties and the children. Such determinations, which they are tasked with reaching, does not evidence bias, as asserted by Defendant.
D. Attorney for the Children Summations
At the onset of this post-judgement litigation, the children had conflicting opinions such that they were assigned separate counsel. Mr. Philip Katz, Esq. represents the older child, E.G.D., and Ms. Nicole Riordan, Esq. represents the younger child, A.W.D..
1. AFC Position for E.G.D.
In his summation, AFC Katz argues that in the totality of the circumstances, the mother has made a sufficient showing of change in circumstance such that it is in the best interest of the child to modify custody. He notes that while both parties acknowledge in their testimony that E.G.D. has various diagnosis, including anxiety, dyslexia, unspecified depressive disorder, and ADHD, there were conflicting allegations by each parent related to her therapy. He argues that the very fact that the parties' divergent perspectives of what transpired between 2020 and 2021 regarding E.G.D., including her own medical needs and the domestic violence criminal proceeding, "are so grossly different is the very extraordinary circumstances that this Court should rely upon to find that extraordinary circumstances exist that justify a modification of the prior agreement."
AFC Katz argues that E.G.D. needs certainty with respect to her school and medical issues, which was not occurring in the height of the parties' dispute in 2020-2021. While E.G.D. trusts that her mother, the Plaintiff, can make final decisions with her best interests, she also wishes her father, the Defendant, to be meaningfully consulted in these decisions.
With respect to parenting time, AFC Katz argues that his client E.G.D. would, in an ideal world, like to split her time equally between her mother and father, but that she does not wish to change the current parenting time arrangement unless her father moves from New Jersey, to a location near her mother, so that her commute to school will not be excessively long.
AFC Katz argues that, in looking at the legal factors regarding to the mother's request to relocate, the mother's claim that the decision to relocate was an economic one is "belied" by the fact that she "failed to thoroughly explore options closer to New York that would have been less expensive than living in Manhattan."
Finally, AFC Katz argues that given E.G.D.'s developmental and mental health challenges, it would not be in her best interests to "uproot" her from her life in New York and relocate to North Carolina, where she would have to "start over, meet new friends, and lose the regular contact with her father that she wishes to continue uninterrupted."
Accordingly, AFC Katz argues that the plaintiff mother has made a sufficient showing that there is a significant change in circumstance such that the 2014 Parenting Agreement should be modified to maintain joint decision making but give the plaintiff mother final decision-making authority on all major decisions after meaningful consultation with the defendant father. AFC Katz also requests that this court enters an order such that his client is not to be relocated outside of New York City or to any location that would require his client to change her school, or that would interfere with the Defendant's parenting time schedule.
2. AFC Position for AWD
AFC Riordan argues that her client, A.W.D., enjoys her school and her home and neighborhood and despite the allure of more space and her own bedroom in North Carolina, she still expressed to her attorney that she would rather remain in NYC rather than relocate to North Carolina. Given that a relocation to North Carolina would decrease the amount of regular, daily parenting time that her client is seeking with her father, AFC Riordan would not support a relocation.
AFC Riordan notes that the mother's testimony that she has been the primary caretaker for the children since birth and has always taken care of their physical, emotional, psychological, and financial needs is corroborated by the documentary evidence, the affidavits of the Mother's witnesses, the report of Dr. Pizarro during trial, and by what her client, A.W.D., has expressed to her during several of their meetings together. Nevertheless, AFC Riordan notes that the father has always played a large role in the children's lives, and it would be fractured should the Mother and children be permitted to relocate to North Carolina. Furthermore, AFC Riordan's client has enjoyed the expansion of parenting time with her Father, has not articulated any recent safety concerns, and has expressed a desire for additional time with her father to the point of an "equal-ish" parenting schedule should he move back to NYC near her school.
AFC Riordan contends that the father's affidavit was largely "self-serving" in that he claimed he was the one who suffered abuse from the mother which led to the divorce and denied any and all wrongdoing with regard to the allegations of domestic violence. AFC Riordan also argues that his denial is completely discredited by the mother's acquittal after a full evidentiary hearing during the criminal court trial. She notes that while the father did minimize the allegations of corporal punishment made by her client, he cooperated with all steps necessary to get his relationship back on track with the children including supervised visitation with CFS.
AFC Riordan argues that the testimony and evidence proffered at trial indicate that the parties are unable to successfully co-parent and make joint decisions for her client, which was also supported by Dr. Pizarro's forensic evaluation report. Nevertheless, AFC Riordan does believe that after meaningful consultation with the father on all major decisions, the mother should be granted the authority to make the ultimate decision.
AFC Riordan also argues that this court should grant the mother sole physical and legal custody of A.W.D., but deny the application to relocate to North Carolina. She also argues that Defendant should have liberal unsupervised parenting time on a set schedule. Additionally, should Defendant continue to reside in New Jersey, the current schedule of one dinner visit per week should continue and the alternate weekends from Friday after school until Sunday afternoon be expanded to include the Sunday overnight with Defendant bringing the children to school on Monday morning. Finally, AFC Riordan notes that should Defendant choose to move back to New York City, to an area close to A.W.D.'s school, there should be an equal parenting time schedule.
III. Discussion & Analysis
The mother's written summation argues that she should be granted sole custody of the children and be permitted to relocate with them to North Carolina. In contrast, the father's written summation argues that this court should deny all aspects of her applications to relocate and modify the existing Parenting Agreement.
A. Custody
No parent has a prima facie right to custody over another parent and custody awards must be based only on the child's best interests and in promotion of the child's health and happiness. (Domestic Relations Law §70[a]). No one factor is determinative of custody; rather, the Court is required to consider the totality of the circumstances. Among the factors to be considered are the respective ages of the children, the financial circumstances, the home environment of each parent, the parental fitness of each parent, the preferences of the children, the emotional bond between the children and each party, the ability and willingness of each party to facilitate a relationship between the children and the other party, and any goal of keeping siblings together (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]).
"A custody or visitation order may be modified only upon a showing that there has been a subsequent change of circumstances and modification is in the child's best interests" (Matter of Santiago v Halbal, 88 A.D.3d 616, 617 [1st Dept 2011]). The first or "controlling 'material fact' is whether or not there is a change in circumstances so as to warrant an inquiry into whether the best interests of the children would be served by modifying the existing custody arrangement." (Robert OO. v. Sherrell PP., 143 A.D.3d 1083, 1084 [3d Dept 2016]; see also Sergei P. v. Sofia M., 44 A.D.3d 490 [1st Dept 2007]). Once a change in circumstances has been demonstrated, "the parent then must show that modification of the underlying order is necessary to ensure the child's continued best interests." (Matter of Menhennett v Bixby, 132 A.D.3d 1177, 1179 [3d Dept 2015]; see also Christopher H. v. Taiesha R., 166 A.D.3d 548 [1st Dept 2018]).
Here, there has been a sufficient change in circumstances to consider modification of the prior custody arrangements. Specifically, since the Judgment of Divorce, the following occurred: the father experienced unstable housing conditions and moved to New Jersey; the father experienced employment instability and lost his employment in 2018; in October 2020 the child E.G.D. experienced significant mental health challenges and the parties were unable to work together to handle those concerns; the parties had high level conflict which led to the father withholding the exchange of the children; an order of protection was issued and the father's parental access was severely limited for an extended period; the parties were unable to communicate or co-parent in a productive way regarding, inter alia, their schedule, extracurricular activities, finances, or the children's health. This was the case even when they turned to mediators or parent coordinators.
Since there can be no question that there have been many changes in circumstance, the Court proceeds to consider whether modification of the prior order is in the children's best interests. This trial's testimony from the parties, their witnesses and the forensic expert, Dr. Pizarro, all reveal that significant challenges in the parents' communication with one another exist such that a joint custodial arrangement is untenable. Paired with the father's move to New Jersey, and the inability to benefit from the mediators and parenting coordinators, all suggest that the underlying parental agreement must be reviewed for its efficacy and whether it is in the best interest of the children that the parties continue to engage in a joint custodial relationship.
In determining custody, the Court has considered a number of factors. First, it is significant to consider stability for the children. For the past two years, the mother has functioned as their primary parent and her home has been their primary home. In many respects the testimony demonstrated that this worked well for the children. The father has often exhibited instability in his life including relating to employment and housing. While those things appear to be stable now, the evidence raised concerns that he could experience instability in the future. Among other things, it is unclear whether there may be instability in his new relationship, or whether his home in New Jersey is a permanent one.
The Court also considers that the father no longer lives near the mother and there are many concerns raised about travel and commuting particularly with getting the children to school. These issues do not support the shared custody schedule that had been in place in the past.
Until recently, it was also the position of E.G.D. that she did not even want any overnights with her father. In other words, both children preferred to live with the mother. While things are in a better place now and overnights are occurring without issue, the trial evidence supports the benefit to the children of having a primary home. This is particularly the case given E.G.D.'s special needs and fragility. The Court also has concerns about the children's newly stated positions that they want equal time with the father. Indeed, that was not the case throughout this litigation and was not reported until the father began having overnights with the children again. Notably, concerns have been raised about the father influencing the children.
Relatedly, because of the cycle of conflict between the parties and the coercive control exhibited by the father, as explained by Dr. Pizarro, the parties cannot properly function or make decisions to the detriment of the children. It is clear to the Court that there must be one parent with final say on critical decisions for the children. The evidence established that the mother has been the primary parent and the children are comfortable with her. Modifying the prior custodial arrangement will also limit the children's exposure to the conflict and negative dynamic between the parents.
Critically, Dr. Pizarro opined that the Children's primary home should be with the mother. He explained that he does not recommend a shared parenting plan because the parties are "engaged in a dynamic of high destructive conflict, and that "because of that exposure to high destructive conflict, I thought it would be better for the Children to be in a primary home." Dr. Pizarro sees the Plaintiff "as the more stable parent and more capable parent to address the girls' needs." Dr. Pizarro also found that the father "has his own difficulties regulating himself when frustrated and his own difficulties managing his own life, both of which make him a poorer candidate in terms of addressing the girls' needs."
The Court has also considered the importance of keeping the siblings together for as much time as possible even though they had slightly different positions and A.W.D. was more flexible and less anxious. The Court has also taken the positions of the AFCs outlined above into account.
While the issues of child support require further proceedings and recalculations, and it may be accurate that the father was not obligated to pay support in 2016 and 2017, it is inexcusable and highly concerning that the father has not paid significant amounts of child support for years, has not been forthcoming regarding his income, and has not voluntarily worked out recalculation of his obligation with the mother. This is a fundamental failure to support the children and their material needs.
The Court also has concerns about the father's ability to facilitate time with the mother as seen in his withholding of the children. In contrast, the mother has complied with all orders of visitation. As Dr. Pizarro explained, the mother's limitation of the father's time was justified gatekeeping based on her concerns about his conduct with the children.
As it related to joint decision making, Dr. Pizarro opined that "for parents with their dynamic, a [parent coordinator] is not appropriate," and that the Defendant's position to maintain one [was] "impractical and costly, as ways to keep the mother burdened and entangled." The Court adopts these concerns and finds that the use of a PC is not practical or realistic for this family. Indeed, the parties were unable to coparent despite the utilization of mediators, therapists, and parent coordinators.
Further, Dr. Pizarro found that the father was the main contributor to the high conflict between the parties. And, he concluded that the father had engaged in coercive control, which is a form of domestic violence. This factor weighs in favor of granting final decision-making authority to the mother.
In addition, Dr. Pizarro raised concerns about the father's ADHD, the risks he has for a personality disorder, and relatedly his exhibiting behaviors that were calculated and self-centered, being exploitative, having a lack of remorse, and being unattuned to his own children. These weigh against the father having decision-making authority or even joint decision making with the mother.
Having considered all these factors, the Court adopts the protocol set forth in Plaintiff's Parenting Plan whereby for major decisions the mother will notify the father of same, the father will have 5 days to respond, the mother will consult with the appropriate professional related to the issue, and, in the event of a disagreement, the mother will make the final decision and notify the father in writing.
Accordingly, considering all the factors outlined above, this court grants the mother final decision-making authority and primary physical custody of the children to their mother.
Because there was record evidence supporting concerns about both parties denigrating the other to the children the Court will include a directive that both parties cease from such conduct.
B. Relocation
The parent seeking to relocate has the burden to establish the move is in the best interest of the child (see Koegler v. Woodard, 96 A.D.3d 454, 458 [1st Dept 2012]). This Court must consider the reasons for the move, any potential benefits of relocation to the children, and the effect of the move on the children's relationship with their father, and any other relevant related factors that may aid in its determination (see Matter of Tropea v. Tropea, 87 N.Y.2d 727, 736 [1996]).
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).
The Court is, of course, free to consider and give weight to all the factors that may be relevant to the determination. Fundamentally, "each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child" (Id. at 739). Moreover, while the respective rights of the custodial and noncustodial parents are unquestionably significant factors that must be considered... it is the rights and needs of the children that must be accorded the greatest weight" (Id. at 739).
1. Existing agreement and relocation clause.
The parties' existing Parenting Stipulation agreement on relocation states as follows:
The parties recognize that, in order to facilitate their shared parenting arrangement, particularly during the Children's younger years, i.e. through elementary school, it is preferable that they reside in proximity to one another. They will, therefore, use their best efforts to attempt, but not obligated to, live within thirty (30) minutes traveling time by car from each other's residence so that they may each transport the Children to and from school without the Children having to spend excessive travel time in a vehicle.
While the parties' agreement and residence provision are not dispositive (see e.g. Schwartz v Schwartz, 186 A.D.3d 1742 [2d Dept 2020]), agreements must mean something, and the Court certainly considers this as a factor against the move. Although the mother relies heavily on conversations that parties had in the past alleging extensive discussions and detailed plans to move everyone to North Carolina, the father has not consented to the relocation and the underlying agreement remains in effect.
2. Necessity to relocate.
The mother, and her employer's Chief of Staff, K.E., testified that the Plaintiff's job had a location in Raleigh, North Carolina, where the mother could keep her New York City salary, work in a hybrid setting and enjoy a lower cost of living. The mother and maternal grandmother both testified that they focused on a move to North Carolina as being the most economical location. The mother also notes that the father's failure to pay child support also supports an economic move to North Carolina where there is a lower cost of living. Additionally, the grandmother and mother both indicated that they could share expenses in North Carolina and financially support the relocation.
None of the testimony revealed that there exists a necessity to move because of a career opportunity requiring relocation. For example, the mother did not establish that she would be forced to move to North Carolina out of an inability to gain employment here or because her employer is requiring her to transfer to a North Carolina location. While it is convenient that her current employer offers the ability for her to be transferred to a North Carolina location where she can maintain her employment should she choose to move there, no such necessity exists.
The facts here are distinguishable from cases in which economic necessity warranted a relocation (see Matter of Quartey v Van Buren, 169 A.D.3d 690 [2d Dept 2019][father provided little financial support]; 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."]).
Notably, there was no testimony either to a health concern necessitating any move nor to the existence of family, nuclear or extended or otherwise, such that additional familial support exists in North Carolina.
3. Benefits the children may enjoy with a relocation vs. current stability and connection to New York
The mother's stated reasoning for relocating to North Carolina and wanting to have the children relocate with her included an employment opportunity for her, lower cost of living, better housing where the children would have a larger room and backyard to play in, appropriate educational opportunities for the children and an overall better quality of life as opposed to the any challenges faced with living in an inner-city environment. The mother testified that E.G.D.'s IEP needs would be met in the target area's North Carolina school district. The father, however, testified that that the target area's North Carolina school district has a lower ranking than the children's current school and would not serve the children well. While there may be more space in North Carolina than metropolitan New York City, the father argues that this is an insufficient basis to uproot their small children. Remarkably, there was little research into other relocation options closer to New York City, like Long Island or Westchester or Connecticut, where more space could be attained without significant disruption to the father's schedule with the children. Additionally, the AFCs have both indicated that their clients may very well enjoy more open space in a larger residence but that they both wish to remain in New York.
There was also significant evidence that the children had many important ties to New York, including their school, friends, doctors, and other professionals. As the record evidence established, stability is particularly important for E.G.D. who has special needs and an IEP at her school, and has anxieties and was described as fragile.
Ultimately, there was insufficient proof that the only appropriate schools, homes, or positive suburban environment available to the children was this one town located in North Carolina. There is no doubt that such benefits could be found in many suburbs of New York City.
4. Impact of relocation on the children's relationship with the noncustodial parent
While not determinative, the expressed wishes of the children are relevant. Both children have indicated their desire to spend more time with their father. There is no doubt that a move to North Carolina would frustrate this desire. Further, the children have expressed through their attorneys a desire to maintain, and even expand, their relationship with their father. This Court finds that the children's wishes should be given some consideration especially since the children, through their counsel, were able to verbalize their desires (see Koppenhoefer v. Koppenhoefer, 159 A.D.2d 113, 116 [2d Dept 1990]).
Moreover, there was testimony regarding the difficulty of exchanges between the parents while they are both located in the Tri-State area. There is a serious concern that a long distance move would exacerbate, and certainly not aid, the facilitation of time for the Defendant.
Taking into account the desires of the children, as indicated by their attorneys, that a move to North Carolina would be a disruption to their lives, as well as the other evidence regarding previous disruption to the father's time, the Court certainly considers this as a factor against the move.
5. Conclusion on relocation
After considering the totality of the circumstances and the various factors discussed herein, the court finds the mother has not met her burden on relocation. Permitting the children to relocate with her to North Carolina is not in the children's best interest. Her vague and conclusory testimony about the potential benefits achieved by a move to North Carolina are outweighed by the level of disruption the move would cause to the children's lives and are insufficient to justify relocating the children away from the stability they currently have. Accordingly, the portion of the motion seeking to relocate is denied.
In the alternative, the mother requests that the Court permit her to move 50-65 miles from her current residence so she can move to a suburban home and provide the children that lifestyle. While that range is in the Court's view a significant distance and would disrupt the stability and school continuity for the children, the father also was open to Plaintiff relocating to Westchester, Connecticut, or New Jersey. Accordingly, the Court will permit Plaintiff to move within 35 miles of her current residence.
C. Visitation
It is well settled that non-custodial parents have a right to visitation with their children, that such visitation is a joint right of the noncustodial parent and children, and that the noncustodial parent plays a valuable role in guiding and loving their children. (See Weiss v. Weiss, 52 N.Y.2d 170, 175 [1981]). Any parent who is awarded custody must be willing to facilitate a relationship between the children and the noncustodial parent. (See Matter of James Joseph M. v. Rosana R., 32 A.D.3d 725, 726 [1st Dept 2006]; Lohmiller v. Lohmiller, 140 A.D.2d 497, 498 [2d Dept 1988]).
Given the determination that the mother shall have primary residential custody, and is permitted to move within a 35 mile radius, the father's access must be reconsidered. The AFCs provided options for a visitation schedule between the children and their father. The Court will incorporate a number of these options into its final order of visitation in accordance with the directives below.
For some time, on consent of the parties, and by direction of the Court, the father has had alternate weekends and a midweek dinner visits with both children. It is now the determination of the Court that this schedule shall become permanent. Given the distance between the parties' homes, the issue surrounding exchanges and timely school drops offs, as well as the stability provided to the children by having one primary home, this new schedule will benefit the children.
Accordingly, the Court adopts the schedule set forth in Exhibit B to the Plaintiff's Proposed Custody and Parenting Plan. More specifically, the father shall have a midweek dinner visit on every Wednesday near Plaintiff's residence. He shall continue to have alternate weekends from Friday after school with pickup at the Plaintiff's residence, until Sunday at 6 PM with a return of the children to the Plaintiff's residence. All exchanges of the children shall take place outside the Plaintiff's residence, unless otherwise agreed to in writing by the parties.
The Court rejects that aspect of the parenting plan that would leave it to the children to decide how much time they want with their father. Nor does the Court make the visitation contingent on the approval of a therapist.
The parties shall continue to split holidays, school breaks, and shall each have weeks in the summer in accordance with their 2014 Parenting Agreement. The Court finds no basis to disturb the parties' equal access during such nonregular time periods. Both parents should be able to vacation and travel with the children. However, they must provide advance notice of at least two weeks of international travel and provide a full itinerary to the other parent. Similarly, for out of State travel, the parties shall provide each other a full itinerary. To the extent the above schedule change impacts the original holiday schedule, the parties are directed to alternate all holidays and school breaks.
Otherwise, the Court does not disturb any other aspects of the access schedule the parties agreed to in 2014, including birthdays, additional time with family, and whatever additional time the parties are able to agree on by mutual written consent. However, the parties shall conduct an annual calendar review and determine how holidays, school breaks, and other days will be split for the next year. Agreement on the calendar shall be reached by September 30th of each year.
Both parties shall continue to be entitled to regular, reasonable phone, video, and text access with the children. Both parties will also immediately inform each other of any changes in their addresses or contact information.
Additionally, the father is entitled to independent and direct access to the child's educational and medical records and to be notified by the mother of any significant decisions made for the child. It is expected that the mother will keep the father informed of significant changes in the children's lives. Finally, this court directs that the parties shall not disparage the other parent, or permit others to do so, in the children's presence.
IV. Child support & Contempt
There is no basis for a contempt finding related to child support as it cannot be determined that a lawful order expressing an unequivocal mandate was in effect and violated by Defendant (see El-Dehdan v El-Dehdan, 26 N.Y.3d 19 [2015]). Nor is there a basis for the entry of a money judgment as it is unclear what the correct level of support should have been in various years. However, the issue of child support will require further proceedings.
The parties' Stipulation provided for a fixed sum of $700 per month to be paid by Defendant to Plaintiff in 2015. For 2016 and 2017, the support obligation was to be calculated using 2015 tax returns. The parties also provided for certain "floor" income levels and a formula which ensured Defendant could not be the payee spouse. In addition, the agreement contemplated scenarios in which no support would be paid.
Based on the tax return information provided to the Court which demonstrates the Plaintiff had higher income in 2015, it seems that no direct support was owed for 2016 or 2017. However, for 2018 and thereafter the parties were permitted to seek a de novo determination of the basic child support obligation. Apparently, Plaintiff did not formally seek such a determination until this motion sequence in 2021.
Plaintiff explains that the parties never agreed on a new support level in 2018 or thereafter, although Defendant has voluntary paid some basic child support, including $400 per month most recently. Plaintiff also explains that it was difficult or impossible to get Defendant to cooperate in exchanging income or tax return information in order to recalculate support. In any event, ultimately the parties never agreed upon nor had a Court adjudicate a new level of support.
Accordingly, within 30 days of this Decision and Order, the parties shall exchange to each other all income tax returns, W-2 forms, 1099s and any other relevant proof of income for 2018, 2019, 2020, 2021, and 2022, along with proof of any payments of direct child support in those years. The parties and their counsel shall then appear for further proceedings in this Court on September 27, 2023, and shall provide copies of the above documentation to the Court. Within 14 days of this Decision and Order, the parties shall also advise this Court via email if the parties will agree to be referred to mediation on this issue.
V. Conclusion
ORDERED that the branch of the mother's motion seeking to relocate the children to North Carolina is denied; and it is further
ORDERED that the mother may move within 35 miles of her current residence; and it is further
ORDERED that the branch of the mother's motion seeking modification of custody is granted only to the extent set forth above; and it is further
ORDERED that the mother shall have final decision-making authority pursuant to the protocol set forth above; and it is further
ORDERED that the father shall have independent access to medical and educational records for both children and continues to have all rights under the 2014 Parenting Agreement unless specifically changed by this order; and it is further
ORDERED that the father shall have one dinner visit per week with the children, and alternate weekend overnight visits from Friday after school until Sunday at 6 PM, and other parental access as set forth above; and it is further.
ORDERED that the parties are permitted to modify this schedule on mutual consent in writing; and it is further
ORDERED that neither party shall disparage the other parent, or permit others to do so, in the children's presence; and it is further
ORDERED that the branch of the motion seeking to hold Defendant in contempt or for a money judgment is denied without prejudice as set forth above; and it is further
ORDERED that the parties shall appear for further proceedings on September 27, 2023 at 10:00am in-person at 60 Centre Street, Part 51/Courtroom 543, New York, NY 10007.
This constitutes the decision and order of the court.