Opinion
Index No. E2020001746
03-02-2021
S.M., Plaintiff v. M.M., Defendant
Michael D. Flowerday, Esq., Attorney for Plaintiff S.M., Rochester, New York Lacy Katzen, LLP, Laura K. Ashikaga, Esq., Attorney for the Defendant M.M., Rochester, New York
Michael D. Flowerday, Esq., Attorney for Plaintiff S.M., Rochester, New York
Lacy Katzen, LLP, Laura K. Ashikaga, Esq., Attorney for the Defendant M.M., Rochester, New York
Richard A. Dollinger, J.
In this matter, a couple have resolved all of these issues in their divorce proceeding except perhaps the most critical ones: custody, visitation and primary residence of their 26-month-old son.
The couple were married for less than three years. They share a home, which is located next door to the wife's mother, who doubles as their agreed daycare provider. The Court, early on in the preliminary phases of this matter, recommended, consistent with its usual procedure, that the parties initiate separate households, both to minimize potential conflicts between the parents and as a tool to evaluate the reaction of both the parents and the child to a post-separation environment. The couple instead continued to live together and, now as separation looms, the Court is asked to evaluate each parent's fitness when, to date, the couple have had the somewhat easier life of raising a child — albeit in a separate delegation of duties — but nonetheless, under the same roof in easy proximity to the child's daycare provider.
From this Court's perspective, the challenge posed in this instance is a difficult one. Neither parent, in testimony before the Court, was significantly critical of the other's parenting style. There was no evidence that either parent lacked fitness to be a fully-absorbed parent of the child. Instead, the proof focused really on three distinct aspects of the child's life and the interaction with the father.
The first phase involves the immediate post-partum period, when the mother took 10 weeks off work. The father, who works as an accountant, took two weeks off work at that time. He testified, largely without contradiction, that he administered to his wife and the child during this time. During this time, the wife took major responsibility for the child. She was breastfeeding the child and handled the nightly sleep disturbances that any infant creates. The mother testified that the father, during this time, provided only minimal assistance to the child and in the operation of the household. One dispute arose during this time involving the child's baptism. The couple could not agree on the godparents, with each preferring their own siblings or relatives. As a consequence, the child was not baptized, even though both parents testified that they wanted the child to be baptized.
The second phase of child-rearing was the period after the mother returned to work at the end of her 10-week leave. During this time, the child was taken daily to the house next door, where the grandmother provided care. The mother, who was working full-time, testified that she handled the late night childcare, prepared meals and handled the child's laundry with only minimal assistance from her husband. The mother testified that she took the child to the daycare next door and she remained in constant contact with her mother during the day.
However, the father was still involved and took time for his child. The proof at trial established that the father and mother had agreed that when the mother went back to work, the father would take off additional time to handle the transition for the child. The father testified that when the mother returned to work, he took off three weeks and took care of the child during that time, performing the daily ritual of activities that infant's require. There was no evidence that the child was not fully cared for during this three-week period.
The third phase of the interaction began after the mother commenced the divorce action in early 2020. In May 2020 — both parents remember the exact date — the husband began to take an every-other-day responsibility for the child. He would wake the child, prepare breakfast, take the child to daycare, retrieve the child from daycare and handle the evening meal and preparation for bedtime. The couple alternated days. They even went so far as to share, on a daily basis, the baby monitor, which allowed the parents to see the child sleeping. Simply put, depending on the day, each parent kept a watchful eye on the child at night. This pattern continued from May 2020 until the day of trial. The couple each also bought their own food for the child during this time and each of them bought clothes for the child. During this time, the father, with the mother's implied approval, took the child to meals at his parent's house and for full days on weekends.
There was a dispute over whether the couple agreed to this delegation of duties on a day-to-day basis. The father testified that they agreed to that arrangement, while living in the same house: the wife said there was no agreement. There were occasions when, as a result of the father's employment, the daily routine was altered for a short time but both parents agreed that this arrangement — alternating days of child care — had persisted for the last nine months. There was no evidence that the child had failed to adjust to this alternating-day routine with his father and mother but, as the mother and her counsel note, the transition was more easily accomplished — and the consequence to the child lessened — because the child went to bed each night and woke up in the same house with the same parents nearby.
As noted earlier, the remainder of the testimony was largely undisputed. The couple both engaged in screening and selecting the child's pediatrician and both parents attended doctors’ visits, with one possible exception when the father was unavailable. There was a dispute over sleeping: the mother insisted on an 8 pm bedtime and two naps each day to achieve a 14-hour per day sleep cycle for the child. The father took a slightly more flexible approach and slated bedtimes for sometime after 8 pm but no later than 8:30 pm. He testified that the child was often in bed by 8:10 pm or shortly thereafter.
On one issue, the mother waffled. Asked on cross examination whether the couple could co-parent, the mother initially said she could and then in re-direct changed her answer. She claimed she misunderstood the father's counsel's original question but, in this Court's view the initial phrasing of the father's counsel's question was straightforward and the answer succinct and unqualified. When questioned a second time on that issue by her own counsel in re-direct, the wife testified differently, claiming she could not co-parent with her husband. This Court, while recognizing the shift on this critical issue, does not overplay its significance. While the mother's opinion on whether she can co-parent may have changed during her testimony, the underlying evidence — the fitness of the father, the continued interaction of the parents, the lack of any seriously critical complaints about either parent's interactions with the child — is a more reliable gauge for evaluating the ability of these parents to share time with the child. The mother clearly changed her testimony on this critical issue but the Court declines to draw a more extensive inference from the mother's statement, especially when she is promoting what she strongly believes are the best interests of her child.
Similarly, the Court declines to draw any adverse inferences against either parent for the dispute over the baptism, the bedtime, the "agreement" over the daily rotation or the failure to agree on a visitation plan for the child, which occasioned the need for a hearing. The bed time dispute is, in the Court's judgment, insubstantial. The few-minute difference between the mother's asserted bedtime deadline and the father's more flexible deadline is not significant: after all, the actual sleep time is far more dependent on when the child falls asleep and not when put in their crib. The parent's disagreement on whether the daily rotation plan was part of an "agreement" is inconsequential: the undisputed fact is that the parents rotated care for the child, no one objected or sought to stop it while it was happening and there is no evidence that it adversely impacted the child. Both parents acted in accordance with that plan and their conduct evidences that they thought the child's best interests were served by the daily rotation for a period in excess of nine months.
The mother, in her stance before the Court, would seek to have this Court draw some adverse inference from the father's failure to take an equal role in the child's life until May 2020, after the divorce was filed. But, the fact is that, starting on that date, the father took over full responsibility for the child every other day. While he did not do it for some time, he has done it now for nine months and it appears his child continues to prosper. Finally, the failure to agree on the visitation plan is likewise of no significant consequence to this Court. Both parents want to be a big part of their child's life: both strongly support both their right of access and the right of the other parent. This Court declines to draw any adverse inference from their disagreement: instead, the Court draws the more positive conclusion — both parents want to be an integral part of their child's life.
Two non-party witnesses testified: the daycare providing grandmother and the father's brother. Both witnesses are easily credited. The grandmother described that her daughter frequently communicated with her about the child when he was in his grandmother's care and that she had less communication with the father. The Court can easily conclude that a mother will be communicating more frequently with her daughter — and less with her son-in-law -- when her daughter is engaged in a divorce proceeding and the Court declines to draw any broader inference from her testimony. The father's brother's testimony is accorded the same weight: he testified that the father nurtured his son in the setting with his extended family on a regular basis. This testimony, by a brother, is understood for its facial significance: the brother saw that the father was making his son happy. The Court notes that this testimony is consistent with what the Court would expect: there is no evidence of any deficiency in the father's contact with his son and the brother's testimony simply further affirms that fact.
Based on all these facts, this Court notes that joint custody is appropriate when both parties are fit and loving parents who desire to share in the upbringing of their children, providing they have demonstrated a willingness and ability to put their differences aside and behave in a "mature civilized fashion" for that purpose. Juneau v. Juneau , 206 AD2d 647 (3d Dept 1994) ; see also Braiman v Braiman , 44 NY2d 584, 590 (1978) ; Hendershot v Hendershot , 187 AD3d 1584 (4th Dept 2020) ; Matter of Talbot v Edick , 159 AD3d 1406 (4th Dept 2018). The court can also consider the continuity and stability of the existing custodial arrangement, including the relative fitness of the parents and the length of time the present custodial arrangement has continued. Joint custody is not appropriate if a couple are "so embattled and embittered" that they will be unable to cooperate to the extent necessary to provide their children with proper care. Matter of Monahan v Monahan , 178 AD2d 829, 830 (3d Dept 1991). In concluding that joint custody and decision-making is appropriate, the Court notes that there is ample evidence that the parents have made joint decisions. They selected the pediatrician, agreed on the maternal grandmother for child care, resolved many of the financial issues in this divorce and while there were disputes — the baptism issue in particular — there is no evidence of the friction and irritation that often characterizes custody disputes before this Court. Joint custody is appropriate for these parents.
Regarding the sharing of parenting time, this Court must consider "all factors that could impact the best interests of the child, including the existing custody arrangement, the current home environment, the financial status of the parties, the ability of each parent to provide for the child's emotional and intellectual development and the wishes of the child." Matter of Papineau v Sanford , 134 N.Y.S.3d 866 (4th Dept 2020). Based on the totality of these circumstances, this Court has little difficulty allocating equal time between these two parents. The couple have been allocating equal time, by their own admission, for nine months. While the mother suggests that the father's vigorous involvements with his child's case may be only recent, the time of the father's extended involvement is nonetheless more than a third of the child's life. This Court can conclude that this equal time sharing arrangement has worked thus far. The father has an extended family and he has worked to have his child involved in that extended family. With respect to the fitness of the parents, there is no evidence that either parent is unfit: their testimony unequivocally demonstrates their mutual sincere interest and affection for their child. With respect to the child's home environment, the Court is struck by the fact that the couple have not changed the child's home environment during the pendency of this action. The child wakes up each day in the same house with both his parents present. That arrangement will not survive their divorce. But, the evidence establishes that even when the father leaves the marital residence, he has experience in waking the child and taking care of the child's from dawn to dusk. He also has indicated he will reside, at least temporarily, with his parents in an extended family arrangement. This Court has no evidence that the father's family would not warmly welcome the child. Therefore, in considering this factor, the Court acknowledges that while the mother, staying in the home, may have, for some short time, a more welcoming environment for the child, this Court refuses to draw any adverse conclusion against the father, who has a demonstrated capability to care for his child and provide him with a loving and nurturing environment.
The proof also establishes that the parents each buy gifts to assist the young child in his emotional and intellectual development. The parents agree on the methods of discipline and the proper feeding of the child. Both parents read to the child. The child uses age appropriate language to refer to both his mother and father. Finally, as the evidence before the Court demonstrates, this couple have nearly equal incomes and there is no evidence suggesting that one of the parents cannot provide for the child in a post-divorce environment.
For all these reasons, this Court concludes that equal time for each parent is appropriate. The final questions is how to allocate that time. The mother will be retaining the marital residence, right next door the agreed daycare provider. The father intends, at least for near term, to return to his parent's house, about a 15-minute drive away. In this Court's view, the daily rotation makes little sense in this matter — the child will be sleeping in a different room every other night during the week. Fewer transitions and less travel each week seem apropos. Therefore, the father should have two consecutive days each week, followed by an alternate weekend. This format would involve a 2-2-3 plan in a two-week period: Monday/Tuesday with mother; Wednesday/Thursday with father; Friday/Saturday/Sunday with mother and the reverse order thereafter for the following week. The mother should be the primary residential parent for any other purposes. The Court declines to award any child support to be paid by either parent because a deviation from the Child Support Standards Act seems fair. First, the parents, have nearly equal incomes. Second, they have agreed to equally share the cost of health insurance and daycare, costs for food, books, toys and clothing and any further extracurriculars. Third, the couple will equally share any government benefits for the child including any federal stimulus money, any tax exemption or child tax benefits, if necessary on a year-to-year basis to create an equal sharing of these benefits. Finally, a review of the Child Support Standards Act criteria demonstrate that the shared time and shared financial accountability for the child warrants a deviation from that statutory scheme.
Based on the couple's stipulation and this decision, the Court believes that all the outstanding issues necessary to issue a judgment of divorce have been proven. The Court asks that counsel provide a copy of the signed stipulation, this decision and a completed judgment roll and this matter will be resolved.