Opinion
*****/13
05-22-2015
S.R., Plaintiff, v. W.R., Jr., Defendant.
For Plaintiff Wife/Mother: Cynthia A. Lee, Esquire 36 Richmond Terrace Staten island, New York 10301 For Defendant Father: Maria Novak, Esquire 16 Flagg Place Staten island, New York For the children: Ian Berliner, Esquire 42 Richmond Terrace Suite 300 Staten Island, New York 10301
For Plaintiff Wife/Mother:
Cynthia A. Lee, Esquire
36 Richmond Terrace
Staten island, New York 10301
For Defendant Father:
Maria Novak, Esquire
16 Flagg Place
Staten island, New York
For the children:
Ian Berliner, Esquire
42 Richmond Terrace
Suite 300
Staten Island, New York 10301
Catherine M. DiDomenico, J.
By Pro Se Summons and Verified Complaint filed April 16, 2013, Plaintiff Wife, S. R., commenced this action for divorce against Defendant Husband W. R. Husband filed an Answer with Counterclaims on or about May 3, 2013. Prior to the commencement of this divorce proceeding, cross custody petitions and a child support proceeding were filed in Family Court. (V00083/13; V00084/13; V01643/12; V01644/12 and F1624/12). These Family Court dockets were consolidated into this matrimonial case on joint application by Order dated October 3, 2013. Defendant Husband's criminal cases (docket numbers 40038M2013 and 40039M2013) were also transferred into this IDV Part by Transfer Orders dated March 6, 2013 and March 8, 2013 respectively.
On or about March 16, 2012, Father was arrested and charged Assault 3 (Pl 120.00 91)), and Harassment in the Second Degree (Pl 240.26(1)), for acts allegedly committed against Wife. While this criminal case was pending before this IDV Court, on or about January 3, 2013, Father was arrested again and charged with violating the terms of a Temporary Orders of Protection issued in favor of Wife. On January 14, 2014, in accordance with a negotiated plea arrangement, Husband withdrew his plea of not guilty and pled guilty on each docket to a violation of Disorderly Conduct ( PL 240.20(1)). Husband agreed to concurrent sentences of a one year conditional discharge, a two year Final Order of Protection in favor of Wife together with a $120.00 surcharge. Under the terms of the Final Order of Protection issued on each docket, Husband has been Ordered to stay away from Wife, her home, her place of employment and not to contact her or use third parties to contact her unless such contact is expressly permitted by Family or Supreme Court Order. Both Orders will expire on January 13, 2016.
On October 3, 2013 the parties agreed that Plaintiff Wife would be granted a divorce on the grounds that the marriage had broken down irretrievably pursuant to Domestic Relations Law Section 170(7). The parties further agreed to settle the issue of equitable distribution and to waive claims for maintenance and counsel fees (See Order dated October 3, 2013). At this trial the issues were limited to both parties' applications for sole custody of the two infant issue of this marriage N. R (age 6) and M. R. (age 5). Both parties also assert a cause of action for child support in the event that they are awarded custody.
Throughout these proceedings Wife has been self represented on all issues with the exception of custody and family offense. By Order dated November 21, 2013, Ms. Cynthia Lee Esquire, was appointed pursuant to the Judiciary Law to represent Wife on these issues. Husband was first represented by Ms. Valerie J. Camacho Esquire until May 1, 2014 when she was substituted by Mr. Ralph Casella Esquire. With Husband's consent, Mr. Casella was relieved on or about September 9, 2014. Husband represented himself at the start of this trial until he retained Ms. Maria Novak Esquire and Mr. Louis Klieger Esquire as his trial counsel. At all times, the subject children were represented by Mr. Ian Berliner, Esquire. By Order of the Family Court, Dr. Swadash Grant of Family Court Services was appointed as the forensic evaluator. Her report dated March 13, 2013 was admitted into evidence at trial without objection (Pl. Ex. 25). Dr. Grant testified in support of her report on October 23, 2014. No party objected to her qualification as an expert in the field of forensic psychology.
The Trial
The cross custody and child support claims were tried before the Court on. September 23, 2014; October 6, 2014; October 8, 2014; October 21, 2014; October 23, 2014; and December 10, 2014. Plaintiff Mother testified on her own behalf and called the following witnesses: (1) Christine N. the Assistant Principal of PS/IS 48; and (2) Dr. Swadash Grant. Wife offered twenty seven documents into evidence all but two of which were admitted. (Pl. Exs. 1-27). Husband testified on his own behalf and offered various documents into evidence, all of but one of which were admitted. (Def. Exs. A-H). Judicial notice was taken of, among other documents, all orders issued in this matrimonial proceeding and the related IDV criminal and family court dockets. Defendant Husband submitted questions for consideration at the in camera examination which was held on January 21, 2015. Written summations were received from all counsel.
Plaintiff Wife seeks an Order of Sole Custody of the two subject children together with an award of child support. The subject children currently reside primarily with Wife and visit with Husband. While strained at times, it appears from the record that the children generally have a loving relationship with both parents. While no serious allegations have been raised regarding misconduct between either parent and the children, at trial, Wife testified to a consistent pattern of domestic violence inflicted by Husband at various times during the marriage. These acts testified in detail by Wife included incidents wherein she was bitten, punched, slapped and shoved by Husband. Wife also testified as to various instances of attempted sexual misconduct on the part of Husband.
Husband also seeks an Order of Sole Custody of the two subject children. At trial, Husband claimed that he has always been the primary caretaker of the children and that he is better suited to be the children's custodial parent. He attempted to show that Mother does not provide the children with a suitable home environment and does not put the children's interest before her own including spending inordinate amounts of time with her boyfriend. Husband further insinuated that Wife may have a drinking and or drug use problem though no credible evidence of substance abuse was offered by either party at trial.
Factual Findings
Plaintiff Wife
Plaintiff Wife was born on September 6, 1983. She is currently 31 years old. Wife is currently employed as a para-professional for the New York City Board of Education earning approximately $25,000 a year.
The parties met in late 2006 at a rock music show that Husband was promoting. At the time Husband was working as a concert promoter. He would hire several rock bands to perform in a selected venue. As the attendance proceeds were often not enough to pay the contracted fee per band, Husband frequently ran short of funds. On several occasions, Wife gave Husband money from her paycheck to satisfy his contractual obligations to the performers. Husband's choice of career was a point of contention in the early stages of the parties relationship.
The parties married on April 19, 2008 after Wife learned she was pregnant with the subject child N.R. N. R. was born on September 11, 2008. M. R. was born a year later on September 12, 2009. The parties lived with Husband's parents to save money because Husband's income from concert promoting was not consistent. Prior to the birth of their first child, Husband was frequently angry and frustrated by his lack of business success. Wife credibly testified that from its inception, and even prior to the marriage, she was subjected to regular verbal abuse, demeaning behavior and physical violence.
After the birth of their first child, Husband became even more suspicious, controlling and aggressive. For example, he refused to allow Wife's mother to visit after N.R. was born and sought to isolate Wife from her relatives and friends. He wanted Wife to stay home at all times and would become very angry when she wanted to leave the home. He routinely accused Wife of cheating on him and became increasingly abusive. Husband's screaming at Wife often led to pushing and shoving. On separate occasions, Husband slammed Wife into a wall and punched her in the face. She had to call Husband's father to intervene on a number of occasions. Defendant's Father pulled Defendant off Wife a number of times and ordered Defendant to go take a walk and calm down.
Husband began to have problems at work. He complained that his colleagues at the police department were plotting against him, and talking negatively about him over police radios. Husband's psychiatric symptoms worsened. In July 2011, Wife, with the help of her neighbor Carol Walsh, took Husband to the emergency room located at a local hospital where a psychiatric evaluation conducted. Husband was admitted and released a few days later with detailed mental health follow up care instructions. Husband testified that he felt that he was tricked into going to the hospital. Husband asserts that he believed that the parties were going to marriage counseling that day.
Wife credibly testified that Husband failed to comply with the discharge instructions including all recommendations for treatment. He insisted nothing was wrong with him. However, his behavior became increasing aggressive, violent and bizarre. Wife could not bear this situation any longer. She was becoming increasing alarmed and fearful of Husband's unpredictable actions and his uncontrolled anger towards her. On or about April 16, 2012, after a particularly vicious act of domestic violence, Wife took the two subject children and whatever belongings she could carry, moved out of the marital residence and sought refuge at her mother's house.
2. Defendant Husband.
Husband was born on August 24, 1977. Husband attended Curtis High school but dropped out to work. He secured a GED then attended two years of college. He worked as a concert promoter. In December 2008, he joined the NYPD as Police Communications Technician, generally known as a 911 Operator. After Wife left the marital home with the subject children, he lived in the marital residence with his parents until December 2013 when the home was sold. Husband currently works five nights a week from 11:00 pm to 7 a.m. though his schedule varies. He claims to make approximately $47,000 a year and incurs mandatory overtime which increases his income. When asked who would watch these two young children while he was working, he testified that he would allow them to sleep at Wife's house while he was working.
Husband testified that, beginning about three years ago, in 2011, Wife began to spend more and more time away from him, was never satisfied with anything he did and threatened to retain a lawyer because of allegations of violence. He claims Wife abuses prescription drugs including Oxycontin which he claim she purchases unlawfully, filed false charges of domestic violence against him, and caused the physical altercations that occurred during the marriage. He further claimed that at times, Wife has put her own interest in spending time with her boyfriend ahead of her children's interest including a trip she took to Europe. None of these allegations were proved at trial. Wife admits she took a trip to Europe with her boyfriend but did so while the children were enjoying their parenting time with Husband.
Husband contends that Wife has exaggerated and misunderstood any academic or developmental problems N.R. may have. Husband claims that N.R.'s behavioral problems are more attributable to a lack of maturity for which a behavioral therapist would be more appropriate. Defendant claims that he attempted to stop the IEP analysis for N.R. because he was concerned that a stigma would attach if he received a classification of "Emotional Disturbance." N.R. was eventually classified as "Other Health Impaired."
3. The Subject Children.
The subject child N. R. was born on September 11, 2008. His brother M.R. was born on September 12, 2009. They reside primarily with their mother and visit with their father on every day from pick up at school until 4:00 when they are returned to their mother's home curbside. Husband also has overnight visits every other week from Thursday pick up at school until Saturday morning. These days were recently changed at Husband's request to accommodate his work schedule. (Tr.10/06/14, p.67, 68). M.R. has no special needs. Both children have attended PS/IS48 since the start of their education. At the time the children were interviewed in camera, M.R. was in kindergarten and N.R. was in first grade.
N.R. has special needs which are identified in his Individualized Education Plan (Pl. Ex. 22). He receives assistance from a full time paraprofessional to help address his impulsivity and reactive issues and maladaptive behaviors that have manifested in aggressive behavior toward other students. Ms. Kristine N., Assistant Principal of PS/IS 48, credibly testified that she agreed that N.R. was in need of the special services he was receiving and that his diagnosis appeared appropriate. She further testified that while she has dealt with both parents, she finds Wife to be much more accepting of N.R.'s special needs and more receptive to permitting services to be identified and provided to him. Husband, on the other hand, objected to the IEP evaluation and upon discovering that the school based team was analyzing this child, he refused to grant permission for this analysis to continue (Tr. 10/06/14, pp. 98-100, 114, 149, 157). On application to this Court, Wife was granted a Temporary Order of Custody with respect to the medical and educational needs of N.R. and M.R. (See Order dated September 23, 2014). Since that Order issued, N.R. has been issued an IEP, and services have been given to him. His academic and behavioral issues have improved since this child has had the benefit of mandated services.
Custody of N.R. and M.R.
When determining custody cases the primary concern is the best interests of the child. See Matter of Islam v. Lee, 2014 NY Slip Op 2045 (2d Dept. 2014). There is "no prima facie right to custody of the child in either parent." DRL §70[a]; DRL §240 [1][a]. When determining custody, the Court must consider the "totality of the circumstances" including the relative fitness of the parties and quality of their home environments. See Matter of Blanc v. Larcher, 11 AD3d 458 (2nd Dept. 2004). Factors to be considered include "the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status
and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent." See Salvatore v. Salvatore, 68 AD3d 966 (2d Dept. 2009); see also, McGovern v. Lynch, 62 AD3d 712 (2d Dept. 2009). The weight to be afforded to each of the various factors is within the discretion of the trial court and requires an evaluation of the testimony, character and sincerity of all of the parties involved. See Bourne v. Bristow, 66 AD3d 621 (2d Dept. 2009). While the children's preferences must be considered, they are not determinative, particularly where the children are of young age. See Granata v. Granata, 289 AD2d 527 (2nd Dept. 2001). Additionally, when domestic violence is proven by a preponderance of the evidence the Court must consider the effects of such violence upon the children. See Bressler v. Bressler, 122 AD3d 659 (2d Dept. 2014) .
A final award of joint custody is not a viable option in this matter because the relationship between the parents is too volatile and acrimonious to support such an arrangement. See Bliss on behalf of Ach v. Ach, 56 NY2d 995 (1982). The parties have had ongoing conflict during the marriage and since they separated. This conflict has compromised their ability to negotiate with each other regarding issues affecting the welfare of their children as detailed in the various emails admitted into evidence during trial. Joint custody is generally inappropriate where parties have demonstrated an inability to cooperate on matters concerning the children. See Matter of Lawrence v. Davidson, 109 AD3d 826 (2d Dept. 2013). The acts of domestic violence credibly testified to at trial also preclude an award of joint custody due to the possibility of future violence and the power imbalance that has existed between these parties prior to, and during, their marriage. See West v. Vanderhorst, 92 AD3d 615 (1st Dept. 2012).
Accordingly, the Court must determine which parent would be the more suitable custodial resource for the subject children. At trial, both parties testified as to a litany of events that occurred during the course of their relationship and throughout this litigation. Rather than address every dispute between the parties, this Court discusses herein only those significant events that weighed most heavily in this decision.
Domestic Violence
Wife credibly testified, in detail, to acts of domestic violence committed by Husband. When domestic violence is raised during a custody proceeding, and the allegations are proven by a preponderance of the evidence, the court must consider the effect of such violence. See Matter of Tejada v. Tejada, 126 AD3d 985 (2d Dept. 2015); Matter of Rena M. v. Derrick A., 122 AD3d 457 (1st Dept. 2014). Some of these incidents raised by Wife occurred prior to the birth of the children while others occurred later in their marriage in the presence of the children.
Wife credibly testified that the pattern of domestic violence started while the parties were dating. Husband would consistently berate Wife when she showed any reluctance to attend the "hard core" rock concerts that Husband was promoting. Husband also became angry and frustrated when he did not render profits from these events. Wife credibly testified that Husband got angry when she was reluctant to give him more money from her paycheck to support his concert promoting. On one such occasion, in a rage, Husband attacked Wife after an argument ensued about money. During this argument Husband grabbed her arms and began viciously biting her. He broke through the skin on her arm and caused her extreme pain. Husband screamed obscenities at Wife including calling her degrading names. The incident ended with Wife giving Husband the money he was demanding. (Tr. 9/23/14, p. 45-47).
Wife further credibly testified that, in January or February 2007, before they married but after they had just learned she was pregnant with N.R., the parties had another argument where Husband got violent. While Wife could not recall the details of how the argument started she remembered the details of the physical abuse because she was concerned for her pregnancy. Wife credibly testified that she was laying on the bed during the argument. Husband straddled Wife, held her down at her waist, and forcefully sat on her stomach causing her pain. Wife shouted "the baby, the baby" and tried to push him off her stomach. Wife feared for the safety of her unborn child given the "ton of weight" she felt as Husband forcefully sat placing his whole body weight on her abdomen. (9/23/14, p.50-51).
The next incident of domestic violence testified to by Wife occurred when N.R. was approximately two years old and M.R. was approximately one year old. On this date Husband was frustrated because Wife was going up and down the stairs carrying laundry and doing other housework while leaving the young children in his care. Husband started criticizing the way Wife was putting the laundry away. In addition, he was angry that he could not go out because she was forcing him to watch the children. An argument ensued in which Husband attacked Wife and punched her in the face. (Tr. 9/23/14, p. 53). This incident ended when Wife called out for help to Husband's father who was also present in the home. Husband's father pulled Husband off Wife. As a result of Husband's assault Wife was left with a bruise that extended from her left temple down to her left jaw line. (Tr. 9/13/14 pp 35-36). The children were home for the entirety of this incident.
In addition to physical violence, Wife credibly testified to a pattern of sexual misconduct on the part of Husband. In one such incident, when N.R. was about three years old and M.R. was two years old, Husband indicated that he wanted to have sex. When Wife rebuffed him, he came over to her side of the bed, ripped the covers off, and tried to rip her pajama pants off . Wife testified that while she was trying to fight him off she was hindered by the fact that she couldn't scream because the children were asleep in their beds in that same room. Wife indicated that she did not want them to wake up and see Husband attacking her. Wife tried to push him off telling him "no, no stop". Wife credits the fact that her pajama pants had a draw-string as the only thing that saved her from being forced into unwanted sexual intercourse. (Tr. 9/23/14 p. 54).
Eventually Wife was able to escape the bedroom and run downstairs into the dining room. Husband followed her, grabbed her by the neck and slammed her into the wall in the dining room. Wife lost consciousness. Husband left her there unaided. She woke up on the floor. Suffering terrific pain in her head, and crying violently, she sought refuge with her neighbors, Carol and Bill. Carol entered the house and told Husband to calm down. Wife returned to the house and blocked the bedroom door so Husband could not enter. Husband slept in the living room that night (Tr. 9/23/14, pp. 57-59). Wife credibly testified that neither the bedroom or bathroom doors had locks on them so she had no alternative but to barricade herself inside these rooms when Husband was in one of his "fits".
This was not the only instance of attempted sexual misconduct on the part of Husband. Wife credibly testified that on a regular basis, Husband would demand sex from her and when she refused, Husband would attempt to rip off her pajama pants leaving them shredded on the floor. Husband's advances would only stop if the children who slept in the same bedroom woke up. (see 9/23/14, p. 59).
Wife credibly testified that on April 16, 2012, at around 8:30 pm, she went to her mother's home to say goodbye to her brother who was relocating out of state then went out to shop for Easter gifts for the children. When she returned home at approximately 11:30 pm, Husband began screaming profanities at her for coming home late and for cheating on him. Husband forced himself into the bathroom, grabbed Wife, twisted her left wrist and arm behind her back and blocked her exit from the bathroom. Husband's grip was so tight it left his fingerprint marks on her arm and she felt like her shoulder was going to "pop out". Wife called Husband's father who rushed up the stairs to try and intervene. Husband and his father struggled until paternal grandfather was able to force his way into the bathroom and free Wife. While Husband was engaged in an argument with his father, Wife ran out of the bathroom and into the bedroom where the children were and barricaded the door. (Tr. 9/23/14, pp. 32),
The next day, Wife went to the school where she worked as a para-professional. The pain and injury to her arm was so severe she could not lift simple classroom supplies. When her colleagues expressed concern, she lied to them telling them she had injured herself. Her colleagues insisted that she go to the hospital as it appeared her arm was fractured.
At the emergency room, Wife initially lied to the medical staff claiming that she "picked up her child the wrong way" which caused her injury. After the x rays films were taken and reviewed by the hospital doctors, a social worker came to speak to Wife. Wife disclosed that Husband had attacked her and caused these bruises and that this was not the first time he had hurt her. Police responded to the hospital. Husband was ultimately arrested and ordered by the Criminal Court to stay away from Wife. While Husband was being processed, Wife gathered up the children and as many belongings as she could carry and quickly relocated.
Wife credibly testified that after each of the physical and sexual assaults detailed above, Husband would apologize and indicate that "it would never happen again" (Tr. 9/23/14, p. 53). Acknowledging that she lied as to the true nature of her injuries on many of these occasions, and that she was reluctant to involve the police, Wife explained that she wanted her marriage to work out for the children, wanted them all to be together and to "have that perfect family" (Tr. 9/23/14, p. 53).
At trial, rather than taking any responsibility for his actions, Husband chose to simply deny each and every incident of domestic violence detailed by Wife. (Tr. 10/8/14, pp.139;148); (Tr. 10/23/14 pp. 136-138;144). In addition, Husband went so far as to allege that he is actually the victim of domestic violence as he claims Wife once broke his finger while attempting to retrieve her cell phone which he admittedly took from her during an argument. (Tr. 10/8/14 pp. 149-150). The Court finds Husband's testimony to be patently incredible.
Despite Husband's claim that Wife is "making all of this up" the Court credits Wife's detailed account of violence and sexual misconduct on the part of Husband. The extensive pattern of domestic violence credibly testified to by Wife was specifically considered in this custody determination, and given significant weight. See Wissink v. Wissink, 301 AD2d 36 (2d Dept. 2002). The fact that some of these incidents occurred in the presence of the children is very troubling to this Court as is Husband's minimization and / or denial of his conduct. See Matter of Doyle v. Debe, 120 AD3d 676 (2d Dept. 2014); See also Matter of Felty v. Felty, 108 AD3d 705 (2d Dept. 2013). The Court notes that Wife is currently the protected party under two final Orders of Protection issued in conjunction with Husband's criminal pleas. These Orders which were issued on January 14, 2014 are set to expire on January 13, 2016.
Without diminishing the severity of Husband's conduct against Wife, there have been no allegations at trial that Husband is physically, or otherwise abusive to the subject children. See Matter of Myles M. v. Pie-Fong K., 93 AD3d 474 (1st Dept. 2012). In fact, while Mother has understandable concerns regarding Husband's behavior, she has not insinuated that he is an unfit parent, or a danger to his children. The pattern of domestic violence proven by Wife at trial has been specifically considered as a factor in awarding her sole custody of the children and final decision making in all applicable spheres. These findings however do not preclude an award of parental access to Husband particularly were, as here Wife is in favor of fostering the loving relationship these children have for their father. However, The acts of domestic violence committed by Husband against Wife clearly "demonstrate that [Husband] is ill-suited to provide the children with moral and intellectual guidance". Costigan v. Renner, 76 AD3d 1039 (2d Dept. 2010).
Similarly, the findings of domestic violence herein further necessitate a severe limitation of the communication and consultation that is generally preferable between parents. The record supports a finding that Wife should not be forced into in a situation where she is mandated to confer with Husband before making decisions. See KCF v. TLSF, 15 Misc 3d 1119(A) (Sup. Ct. Kings County). The power and control imbalance in this relationship is a clear indicator that Wife should be the sole and final decision maker for the subject children.
Education
Throughout the trial a significant amount of time was allotted to discussions regarding the subject child N.R.'s education. The record at trial supports a finding that Husband has been generally reluctant to accept that his child has behavioral issues significant enough to necessitate an IEP evaluation and the assignment of a para-professional. Husband's non-cooperation with the school's educational plan required this Court to issue an interim Order dated November 21, 2013 which authorized Wife to make all decisions regarding N.R.'s education. In contrast to Husband, Wife has been accepting of the school's IEP criteria and supportive of the educational plan for her son.
Accordingly, the record supports a finding that Wife is more sensitive and supportive of N.R.'s behavioral, social and academic needs. See Matter of Alfredo J.T. v. Jodi D., 120 AD3d 1138 (1st Dept. 2014); See also, Cornell C. v. Cynthia H., 13 AD3d 133 (1st Dept. 2004). This is apparent from her proactive and constructive involvement with his educators, the IEP team and other service providers. To the contrary, the little interaction Husband has had with PS/IS 48 personnel has been hostile and confrontational. From having an altercation with the parent of another student in M.R.'s class, to stopping N.R.'s IEP evaluation and refusing to attend related meetings, Husband has done little to meet the academic needs of these children.
Defendant's Mental Health Issues
In July 2011, Husband was evaluated as a result of paranoid ideation with suspicions that Wife was cheating on him and his co workers were conspiring against him. He was evaluated at Staten Island University Hospital, diagnosed with psychosis and discharged after a few days with a recommendation for outpatient treatment (Tr., 10/23/14, 72). Husband admitted that he failed to comply with follow up treatment but claims the follow up out patient treatment recommended by the hospital was actually "marriage counseling" which Wife refused to attend. Contrary to this position, the evidence at trial proves that Husband was recommended to attend outpatient psychotherapy treatment, and comply with medication, none of which involved Wife's participation. While Husband presented as stable at trial, and Wife does not allege that Husband is a danger to the children, Husband's mental health history, and more importantly his failure to adequately address the same, were factors considered by this Court. See Matter of Yearwood v. Yearwood, 90 AD3d 771 (2d Dept. 2011).
In contrast, there is no evidence in the record to suggest that Wife is in any way emotionally or mentally unstable. In conducting her forensic evaluation, Dr. Grant did not indicate any serious concerns regarding Wife's mental health, while she expressed some concerns regarding Husband's impulsivity and problems dealing with anger. After considering the trial record, specifically the recommendations of Dr. Grant, the Court has determined, that on balance, Wife presents as the parent better able to provide for the children's emotional stability and development. See Matter of Conforti v. Conforti, 46 AD3d 877 (2d Dept. 2007); See also, Plate v. Plate, 264 AD2d 447 (2d Dept. 1999).
Ability to Foster a Relationship with the Non-Custodial Spouse
In making its custody determination, the Court has also considered which parent is in a better position to facilitate and foster a relationship between the subject child and the non custodial parent. See Matter of Lawlor v. Eder, 106 AD3d 739 (2d Dept. 2013). Husband admitted that he is very distrustful of Wife and believes she is selfish. (Tr. 10/23/14 p.146). Moreover, Husband's trial testimony and the emails admitted at trial are replete with comments which tend to indicate that Husband harbors a fair amount of resentment towards Wife and her current romantic partner. In contrast, Wife's ability to foster a meaningful relationship between the children and their father, despite Husband's poor treatment of her, shows a profound understanding of the importance of a child having access to both parents despite the acrimonious nature of the relationship between those parents. See Daghir v. Daghir, 82 AD2d 191 (2d Dept. 1981). Wife's proven ability to foster a relationship between the subject children and their father, despite their father's conduct towards her, is a factor that has been specifically considered by this Court. See Matter of Lichtenfeld v. Lichtenfeld, 41 AD3d 849 (2d Dept. 2007). After consideration of the record, the Court finds that while neither party seems to be opposed to shared parenting time, Wife is the parent more capable of fostering a positive relationship between the subject child and the non-custodial parent. See Matter of Cobourne v. James, 35 AD3d 734 (2d Dept. 2006); See also, Matter of O'Loughlin v. Sweetland, 98 AD3d 983 (2d Dept. 2012).
The Position of the Attorney for the Child
While only one of many factors to be considered, the position taken by the subject child's attorney was also considered by the Court. See Matter of Guiracocha v. Amaro, 122 AD3d 632 (2d Dept. 2014); See also Matter of Conway v. Gartmond, 108 AD3d 667 (2d Dept. 2013). In this matter, the attorney for the subject child has indicated that his stated position is that "Mrs. R. should [have] sole legal and physical custody of my clients" (AFC Summation P. 3).
Separate and apart from the position set forth by the attorney for the subject child, the child's stated wishes must be considered by the Court. While not determinative, a child's expressed preference is a factor to be considered by the Court "particularly where the attorney for the child recommend[s] that the child's wishes be given weight, and where the [in camera] interview demonstrates the child's level of maturity " Matter of Ivory B. v. Shamecca D.B., 121 AD3d 674 (2d Dept. 2014).
The subject children appeared for an in camera examination on January 21, 2015. After a swearability hearing, the Court determined that both children, although of tender years, have a sufficient understanding of truthfulness such that they can give testimony under oath. While the Court will not reveal the content of the in camera examination, their testimony was considered by the Court in rendering this decision.
The Forensic Evaluator
During the course of these proceedings, a forensic evaluation to be conducted by Dr. Swadash Grant. The recommendation of the Forensic Evaluator was a factor considered by this Court in making its custody determination. "While the recommendation of a court-appointed evaluator is not determinative, it is a factor to be considered and is entitled to some weight." Matter of Doyle v. Debe, 120 AD3d 676 (2d Dept. 2014).
Dr. Grant conducted a complete forensic examination report which was provided to the Court in March 2013. Dr. Grant's report was entered into evidence without objection (Pl. Ex.25). Dr. Grant credibly testified that although Father loves the children, he allowed his anger for Wife to get in the way of proper decision making for them. He further refused to acknowledge any responsibility for any aspect of the conflicts that led to the demise of this marriage. He was dismissive of the incidents of domestic violence related by Wife claiming that these incidents never occurred or were caused by Wife.
Husband presented to Dr. Grant as "suspicious and mistrustful" based on his belief that people at work were conspiring against him and that someone had turned Wife against him (Tr., 10/23/14, p. 23). Dr. Grant was also concerned that the suspicious manner in which Father processed information would make less attuned and responsive to the needs of the subject children. (Tr.,10/23/14, p. 29, 43).
Dr. Grant recommended that Wife should be granted custody of the children with liberal access being granted to Husband (Tr.10/23/14, p. 18). Dr. Grant further recommended that Husband seek mental health services to resolve his preoccupation and anger for Wife because if left unresolved it could affect his relationship with the subject children:
" .W. R.'s anger towards the mother compromises his ability to separate issues related to N.R. and M.R. from unresolved anger towards the mother. Emotionally, he appears volatile and mistrustful. He also displays cognitive impulsivity generally in the direction of negative conclusions about how others regard him. This is likely to color his stance on issues related to N.R. and M.R.." (Forensic Evaluation, p. 6).
The email correspondence introduced by Wife into evidence at trial bears this out. For example, at times, Husband has refused to take the children for overnight visits so as to make it impossible for her to go out (Pet. Ex. No. 18); has refused to tell Wife where he lived and where the children would be sleeping unless Wife's attorney apologized to him. (Pet. Ex. No. 16).
In recommending that custody be awarded to Wife, Dr. Grant indicated that she has concerns regarding Husband's impulsivity problems, externalization of blame, and a deep felt anger towards Wife. Dr. Grant indicated that she thinks that Husband is "vulnerable to losing control" and that he possesses a "difficultly.. in negotiating with the mother." (Tr. 10/23/14 p.29). The Court shares Dr. Grant's concerns regarding Husband's interactions with Wife and the danger of him losing control when under stress. The Court has considered the contents of the forensic evaluators report, together with her trial testimony and afforded her recommendations some weight. See Matter of Felty v. Felty, 108 AD3d 705 (2d Dept. 2013); See also, Matter of Lynch v. Velella, 85 AD3d 1032 (2d Dept. 2011).
Stability
In determining the proper custodial arrangement for N.R. and M.R. the Court has considered the fact the subject children have admittedly been primarily in Wife's care since "on or about March 17, 2012." (See Husband's Custody Petition, Docket No. V83-84/13). While Wife did not have a written Order of temporary custody at that time, the children were in her primary care such that she had de-facto residential custody since at least that date. See Morgan v. Morgan, 148 AD2d 720 (2d Dept. 1989). While the parties initially had joint legal custody of the children, disagreements and arguments between the parties regarding decision making resulted in the Court issuing an Order on November 21, 2013 granting Wife sole decision making authority on issues relating to the N.R.'s schooling. Further acrimony between the parties resulted in the Court issuing a Temporary Order of Custody to Wife on September 23, 2014. By the terms of this Order, Wife was entitled to make all decisions regarding the subject children's education and health.
Along with the factors considered in any custody determination, the court must also consider the stability and continuity afforded by maintaining the present custodial arrangement. See Angelova v. Ruchinsky, 126 AD3d 828 (2d Dept. 2015); See also Cervera v. Bressler, 90 AD3d 803 (2d Dept. 2011)
Considering that N.R. and M.R. have has lived primarily with their mother throughout these proceedings, and they have been stable and safe in her care, the Court finds that stability and continuity will be best served by a final Order of Custody to Wife. See Melissa C.D. v. Rene I.D., 117 AD3d 407 (1st Dept. 2014); See also, Matter of Chase v. Matanda-Chase, 41 AD3d 475 (2d Dept. 2007). In this case, where neither parent is unfit to have access to the subject children, "the interests of the children would be best served by preserving that status quo and leaving the child in the custody of [their mother] " Matter of Peroglu v. Baez, 54 AD3d 416 (2d Dept. 2008). The Court notes that the current parenting schedule was not raised as a serious issue during the divorce proceeding as Husband currently enjoys significant parenting time with the children. The arguments in this matter have focused more upon legal custody and decision making, than physical custody and access.
In considering the factor of stability the Court has also considered the financial circumstances of both parties. While Husband testified that he is the party who provides the best financial stability for the parties, the Court notes that both parties are gainfully employed. While Husband currently earns more than Wife, the imbalance is not such that either party stands out as better equipped to provide for the children's "financial stability" especially after the payment of child support. See Matter of Conforti v. Conforti, 46 AD3d 877 (2d Dept. 2007).
After considering the documentary evidence submitted at this trial, the testimony of the witnesses as observed by this Court, and after considering Dr. Grant's thoughtful recommendations, the Court finds that Plaintiff Wife presents as the parent better fit to provide a stable, nurturing, environment for these children long term. See Matter of Andrews v. Mouzon, 80 AD3d 761 (2d Dept. 2011). Notwithstanding his significant weaknesses, there is no doubt that Husband loves his children. On balance, however, this Court finds that the acts of domestic violence committed by Husband against Wife, some in the presence of the children, coupled with his unresolved anger and impulsivity, would interfere with his ability to make good parenting decisions for these young children. There would also exist in this Court's opinion a substantial risk that if Husband were granted sole custody, he would not foster the relationship between these boys and their mother due to his anger towards Wife.
For the reasons set forth above, and after considering all the relevant factors presented by both parties at trial, including the recommendations of the forensic evaluator and the position of the attorney for the child, Wife is hereby granted an Order of sole physical and legal custody of the subject children herein subject to Husband's parenting time schedule as detailed herein. See Matter of Edwards v. Rothschild, 60 AD3d 675 (2d Dept. 2009); see also, Matter of Lovitch v. Lovitch, 64 AD3d 710 (2d Dept. 2009); Matter Osbourne S. v. Regina S., 55 AD3d 465 (1st Dept. 2008).
Husband is hereby authorized to have access to all significant records relating to the subject children, including but not limited to, those relating to their health and education. However, as the Court is concerned with the history of severe domestic violence between the parties, Wife shall only be required to advise Husband of significant events and decisions through email or other written communication. Husband is hereby advised to keep himself informed regarding his children's health and education and general wellbeing through direct access to the children's service providers, which information shall not be withheld by such providers. While Husband shall have unfettered access to his children's records, he shall not have decision making authority relating thereto.
Moreover, while it is generally preferable for parents to discuss major decisions, generally referred to as a "duty to confer," the history of domestic violence between the parties, together with the power imbalance associated therewith, makes such communication inappropriate in this case. Accordingly, Wife shall be required to inform Husband of major decisions that she makes regarding the subject children but she shall not be required to confer with Husband regarding those decisions.
Finally, in addition to the parenting plan set forth for Husband herein, both parties shall be permitted to attend all school, extracurricular and significant public events in the subject children's lives at their own expense subject to the terms of any Orders of Protection in effect.
2. Parenting Time
While Wife has been granted an Order of sole legal custody with final decision making, this does not end the analysis. Father shares a loving, close bond with the children which cannot be minimized despite his mistreatment of Wife.
At trial, neither party has raised a significant issue with the parental access schedule as it currently exists. The majority of the trial testimony was dedicated to facts relating to decision making, or legal custody, rather than physical custody. As there is no allegation that the current visitation schedule is not in the children's best interest and Husband concedes that he has been awarded a significant amount of parenting time under the interim visitation orders , the Court declines to change the existing parenting schedule, subject to the holiday and vacation schedule set forth below.
In Husband's written summation he indicates that he spends an even amount of time with the children. (See pg. 5)
Accordingly during periods when school is in session, Husband shall continue to have parenting time with the subject children every school day from pickup at school to drop off at maternal grandmother's house at 4 p.m. In addition, Husband shall continue to have overnight visitation with the subject children, on alternate weekends from Thursday after school to Saturday at 6 p.m. (Tr. 10/6/14 pp.67-68)
The Court notes that the schedule currently being followed by the parties does not contemplate the children's summer recess from school. Subject to the holiday and vacation schedule set forth below, on days that school is not in session due to summer recess Husband shall have a dinner visit with the subject children on Monday and Wednesday from 3:00 p.m. to 8 p.m. In addition to these dinner visits Husband shall continue to have his alternate weekends which shall run from Thursday at 3 p.m. to Saturday at 6 p.m. When school is not in session pickup and drop off shall be at maternal grandmother's residence.
When following the visitation schedule established herein, Husband is reminded of his obligation to comply with all the Final Orders of Protection currently in effect. As it may become necessary for the parties to communicate with one another for scheduling purposes, it is hereby Ordered that such communication shall be made by email or other writing. Communication between the parties in furtherance of the parenting time set forth herein or specifically related to the safety and welfare of the subject children shall not be deemed a violation of the Final Order of Protection unless such communication constitutes a Family Offense.
a. Holiday Time.
The parties shall alternate all of the major holidays and school vacations as set forth below. Parenting time shall commence at 11:00 a.m. on the first day of the holiday or vacation period and shall conclude 8:00 p.m. on the final day of the visit unless otherwise specified below.
Holidays that fall on school days such as Halloween and the child's birthday shall commence at school dismissal (or 3:00 p.m. if there is no school) and end at 8:00 p.m. Parenting time for Midwinter Recess, and Spring Recess shall include overnights for any weekday parenting time. The holiday and vacation schedule herein shall trump any period of normal visitation.
Mother's Day shall always be with Mother and Father's Day shall always be with Father. Each parent shall have a total of two non-consecutive weeks of vacation with the child during the months of July and August. One week shall be in July; the other week shall be in August. Each party shall designate by email their vacation weeks by May 1st of each calendar year or be subject to the other parent's designated weeks. Husband shall be granted first choice in the event that both parties seek the same weeks provided that he has timely designated his weeks in accordance herein.
However, as this Decision is being issued after May 1, 2015 the parties are directed to select their 2015 vacation weeks within 14 days of this Decision's date.
The following holidays shall be alternated:
Children's Birthdays:even years: Motherodd years: Father
Thanksgiving:even years: Motherodd years: Father
Christmas Eve:even years: Fatherodd years: Mother
Christmas Eve visit shall begin at 3 p.m. and end at 12 p.m. on Christmas Day.
Christmas Day:even years: Motherodd years: Father
New Years Eve:even years: Motherodd years: Father
New Years Eve visit shall begin at 3:00 p.m. and end at 12:00 p.m on New Years Day.
New Years Day:even years: Fatherodd years: Mother
Martin Luther King Day:even years: Motherodd years: Father
President's Day:even years: Fatherodd years: Mother
Good Friday:even years: Fatherodd years: Mother
Easter:even years: Motherodd years: Father
Memorial Day:even years: Fatherodd years: Mother
Fourth of July:even years: Fatherodd years: Mother
Labor Day:even years: Motherodd years: Father
Halloween:even years: Motherodd years: Father
Columbus Day:even years: Fatherodd years: Mother
Veteran's Day:even years: Motherodd years: Father
Midwinter Recess (February): the parent with the weekend directly preceding midwinter recess shall have parental access with the subject child until Wednesday of the vacation week at 3:00 p.m. The parent with the second weekend shall have the subject child from 8:30 p.m. Wednesday until Sunday at 8:00 p.m.
Spring Recess (April): the parent with the weekend directly preceding spring recess shall have the subject child until Wednesday of the vacation week at 3:00 p.m. The parent with the second weekend shall have the subject child from 4:00 p.m. Wednesday until Sunday at 8:00 p.m.
b. General Matters:
Each parent shall ensure that homework, if any, is completed and the child attends his school activities. The parent who is enjoying time with the children shall be responsible for arranging at least one phone conversation per day to allow the children to have daily phone contact with the other parent. It is the responsibility of the parent enjoying parenting time to arrange for child care, or to take off time from work, as may be appropriate in that parent's discretion. Each parent shall inform the other in writing if either or both of the children have missed school due to illness. Illness of a child shall not be a basis to withhold visitation absent hospitalization which shall be immediately communicated to the other parent.
Each parent is responsible for notifying the other parent in writing when they intend to take the children overnight outside of the New York tri-state area. If the children are to be taken out of the New York tri-state area, then an itinerary of the travel plans must be provided with contact information. The parenting time schedule delineated herein and may be modified or supplemented by such additional and further visitation as agreed upon by the parties in an email, text or other writing. Any unforeseen issues that arise regarding this schedule may also be communicated in writing.
Child Support.
By Family Court Petition dated April 12, 2012 Wife makes an application for child support for the subject children. (See F-01642/2012). This petition was consolidated into this matrimonial action by Order dated October 3, 2013. On May 22, 2012 the Support Magistrate to which the Petition was originally assigned issued an interim emergency award of support to Wife in the amount of $50 a week to be paid through the Support Collections Unit ("SCU'). On July 25, 2012, the Support Magistrate recalculated child support and issued a superseding Order of $500 bi-weekly child support also payable through SCU. There was no evidence adduced at trial
At trial, the parties spent very little time addressing the issue of child support. As per the trial record, Wife currently works as a paraprofessional for the New York City Department of Education. Husband works as a 911 operator for the civilian branch of the New York City Police Department. Both parties are W2 employees, and there was no evidence introduced at trial to indicate additional sources of income. In his summation, Husband argues that in the event custody is granted to Wife, the child support awarded to her should be reduced to reflect the almost even split in time that the children spend with him. He argues that a failure to downwardly modify the support award would cause a windfall to Wife and prejudice to him (Def. Summation, p. 5).
The Child Support Standards Act (CSSA) presumptively results in the correct amount of child support to be awarded to the custodial parent. Applying the statutory percentage of 25% (two children) to the combined parental income will provide the appropriate level of support to meet the basic needs of the subject children.
When determining child support under the guidelines the Court is directed to utilize the income as it was, or should have been, reported on the parties most recent tax return. See DRL '240(1-b)(b)(5)(i); See also, Matter of Lynn v. Kroenung, 97 AD3d 822 (2d Dept. 2012). However, there is authority to use more recent income information where available. See Eberhart-Davis v. Davis, 71 AD3d 1487 (4th Dept. 2010).
The most recent tax return provided by Husband is his 2013 tax return which indicates a gross income of $62,149. This tax return, submitted in conjunction with Husband's sworn Statement of Net Worth dated September 18, 2014 indicates that in addition to his W2 wages Husband earned the sum of $5,600 from "Gambling". There was no evidence adduced at trial regarding Husband's gambling income, or more specifically, if this income is consistent. Accordingly the Court will utilize Husband's W2 wages from that year, which amount to $62,053 as an indication of Husband's actual, recurrent income from his employment.
When determining child support, the Court must deduct payments of Social Security, Medicare and New York City taxes that have been "actually paid". See Kaufman v. Kaufman, 102 AD3d 925 (2d Dept. 2013). According to his 2013 W2 Husband paid $3,847 in Social Security tax, $900 in Medicare tax and $1,988 in local income tax. Accordingly, Husband's adjusted income for the purpose of CSSA calculations shall be $55,318.
The most recent tax return provided by Wife is her 2013 tax return which was annexed to her sworn Statement of Net Worth dated May 1, 2014. According to this tax return and the 2013 W2 associated therewith, Wife earned the sum of $24,760 from her employment with the New York City Board of Education.
When determining child support the Court must deduct payments of Social Security, Medicare and New York City taxes that have been "actually paid". See Kaufman v. Kaufman, 102 AD3d 925 (2d Dept. 2013). Wife's W2 indicates that she paid $1,535 in Social Security tax, $359 in Medicare tax and $549 in local income tax for an adjusted income of $22,317 for the purposes of calculating child support.
The combined parental income for purposes of calculating child support is $77,635. Applying the statutory percentage of twenty five percent (25%) to the combined parental income results in a combined child support obligation of $19,408. Husband's pro rata share of this guidelines child support obligation is 71%, Wife's pro rata share is 29%. Accordingly, Husband's child support obligation equates to $13,780 a year, $1,148 a month, $265 a week or $530 bi-weekly. For the reasons set forth above Husband is hereby Ordered to pay child support in the amount of $530 bi-weekly. This payment shall be made directly to Wife on or before the 24th of every month starting June 24, 2014.
This child support award may be revisited by a Court of competent jurisdiction upon a showing of "(i) a substantial change in circumstances; or (ii) that three years have passed since the order was entered, last modified or adjusted; or (iii) there has been a change in either party's gross income by fifteen percent or more since the order was entered, last modified or adjusted." See Mejia v. Mejia, 106 AD3d 786 (2d Dept. 2013).
1. Retroactivity
The award of child support Ordered herein shall be retroactive to the first time an application for child support was made. See Crane v. Crane, 264 AD2d 749 (2d Dept. 1999). Wife's application for child support was first made by Family Court petition dated April 12, 2012. That petition was consolidated into the present action for divorce on October 3, 2013.
Since the filing of Wife's petition, there have been two temporary orders of child support. The first, issued by Family Court on May 22, 2012 required Husband to make payments of $50 a week through the Support Collections Unit. The second Order, issued on July 25, 2012 raised that amount to $500 bi-weekly, or $13,000 a year. There has been no allegation at trial that Husband has failed to pay his Court Ordered support, which has been paid through the SCU since the issuance of the first Order. Accordingly, he is entitled to a credit for the child support payments made since the filing of Wife's petition. See Augustin v. Bullen, 112 AD3d 658 (2d Dept. 2013).
Accordingly, there are three relevant periods for the calculation of retroactive child support. The first such period is from the filing of the petition on April 12, 2012 to the issuance of the first Order on May 22, 2012. During that period of time, no temporary Order of support was in place, so Husband is responsible for one full month of retroactive arrears in the amount of $1,148. The second relevant period of time was from the first payment of temporary child support on May 25, 2012 to the second child support Order which became effective on July 27 2012. During this time period Husband made nine payments of $50 a week for a combined sum of $450. The retroactive child support award for those nine weeks amounts to $2,385($265 x 9 weeks). As he has paid $450 out of the $2,385, Husband currently owes arrears totaling $1,935 from May 25, 2012 to July 27, 2012. Finally, Husband has paid the bi-weekly sum of $500 since July 27, 2012 to the present for a total of 34 months. The retroactive child support award for those 34 months amounts to $39,032($1,148 x 34 months). As Husband has paid the sum of $1083 a month for those 34 months he is entitled to a credit of $36,822, leaving arrears in the amount of $2,210 ($39,032— $36,822).
According to the Family Court Order issued on May 22, 2012 the effective date of payment was May 25, 2012.
In total Husband owes the sum of $5,293 in retroactive arrears ($1,148+$1,935+$2,210). This amount shall be paid in monthly installments of $200 to be paid in addition to Husband's child support obligation each month until all arrears are paid. In the event that Husband wishes to pay off the balance in a lump sum payment he may do so at any time.
2. Children as Tax Dependents
The record is silent as to applications regarding who can claim the subject children as tax dependants. As both parties are employed, each shall be permitted to claim their children on their tax returns on an alternating basis with Husband being able to claim them on his 2016 taxes. See Kim v. Schiller, 112 AD3d 671 (2d Dept. 2013).
3. Additional Child Support Expenses
The record is equally silent in regard to additional child care expenses including unreimbursed medical expenses. The parties are hereby directed to split the cost of all reasonable and necessary unreimbursed medical and reasonable and necessary childcare expenses on a pro rata basis. See Cassano v. Cassano, 85 NY2d 649 (1995); See also, Leuker v. Leuker, 72 AD3d 655 (2d Dept. 2010). Husband's pro rata share shall be 71% and Wife's pro rata share shall be 29%. See Harris v. Harris, 97 AD3d 534 (2d Dept. 2012). As the custodial parent Wife shall have the obligation of sending Husband any bills to which she seeks financial contribution.
Motion Referred to Trial Court.
Motion Sequence No. 1 filed by Wife which seeks, amongst other relief, a Temporary Order of Visitation for Husband is resolved by the issuance of the parenting schedule set forth herein. All other aspects of this motion not resolved by this Decision are denied.
Conclusion
For the detailed reasons set forth above, Judgment of Divorce is granted to Plaintiff Wife on the grounds that the marriage has broken down irretrievably pursuant to DRL Section 170(7). Wife is granted a Final Order of Sole Custody of the two subject children. Husband is granted the extensive parenting time set forth herein. Husband is directed to pay the sum of $530 in bi-weekly child support and support arrears as delineated herein. It is this Court's hope that this decision will serve to provide a measure of stability in the children's life and limit the potential for more hostility and violence between these parents.
Plaintiff Wife is hereby directed to file a Judgment of Divorce together with Findings of Fact and Conclusions of Law, annexing this Decision.
This Constitutes the Decision of the Court
Dated:May 22, 2015
E N T E R:
__________________________________
HON. CATHERINE M. DIDOMENICO
Acting Justice Supreme Court