Opinion
No. V–01187–15.
08-28-2015
In the Matter of a Proceeding under Article 6 of the Family Court Act STACEY M., Petitioner v. Sonja F., Respondent. In the Matter of a Proceeding under Article 6 of the Family Court Act Sonja F., Petitioner Stacey M., Respondent. In the Matter of a Proceeding under Article 6 of the Family Court Act Sonja F., Petitioner Stacey M., Respondent.
Kenneth M. Lasker, Esq., for Stacey M. David M. Civilette, Esq., for Sonja F. John J. Westman, Esq., for the Child.
Kenneth M. Lasker, Esq., for Stacey M.
David M. Civilette, Esq., for Sonja F.
John J. Westman, Esq., for the Child.
MICHAEL F. GRIFFITH, J.
The petitioner, Stacey M., and the respondent, Sonja F., have one child together, C. M., born in 2003, who is the subject of these proceedings. The father filed an initial petition for custody and visitation on May 27, 2015, alleging the mother was planning on moving out of the area. An Amended petition for custody was filed by the father on June 29, 2015. Thereafter, the mother filed her petition for custody and relocation on July 6, 2015, alleging she should have custody and that she be permitted to relocate with the child. A Temporary Order was filed June 19, 2015 and entered on August 3, 2015 by the Hon. Judith S. Claire, ordering that the child's residence shall not be removed from Chautauqua County without further order of the Court. A hearing was conducted on this matter on July 31, 2015 and August 11, 2015. Upon consideration of the proof presented by the parties, the documents in evidence, the in camera interview with the child, the written summations of John J. Westman, Esq., Attorney for the Child, dated August 12, 2015; the written summation of Kenneth M. Lasker, Esq., dated August 14, 2015; and from David M. Civilette, Esq., dated August 17, 2015, and due deliberation having been had, the following decision is rendered.
The parties are the parents of C.M., born in 2003. The parents were never married and separated when the child was nine years old. When they separated, the father moved into a trailer on the property, but eventually moved out in August, 2012. The parties had a voluntary, verbal access schedule in which the father had access every other weekend from Friday at 5:00 p.m., until Monday when the father brought the child to school, and every Wednesday at 5:00 p.m., until school on Thursday morning. The mother seeks to relocate the child from Cherry Creek, New York to Lake Placid, New York as a result of her hiring to be a principal in the Lake Placid, New York school system. She has already moved with her new husband and is seeking to have the child move there with her, which is opposed by the father.
The Court must review these petitions as an initial custody determination, notwithstanding the request for relocation by the mother. Therefore, it is not necessary to follow a strict application of the relevant factors to be considered in a relocation case as set forth in Matter of Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575, 665 N.E.2d 145 (see, Forrestel v. Forrestel, 125 A.D.3d 1299, 3 N.Y.S.3d 483 ). The Court may consider the effect of a parent's relocation as part of the overall best interests analysis together with the following factors to determine the best interests of the child: the stability of each parent's custodial plan; the quality of each parent's home environment; the ability of each parent to provide emotional and intellectual development; the financial status and ability of each parent to provide for the child; the continuity and stability of the existing custodial arrangement, and the relative fitness of each parent (see, Fox v. Fox, 177 A.D.2d 209, 582 N.Y.S.2d 863 ; Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 447 N.Y.S.2d 893, 432 N.E.2d 765 ; Canazon v. Canazon, 215 A.D.2d 652, 628 N.Y.S.2d 327 ).
Beginning with the continuity and stability of the existing custodial arrangement, the mother testified that while they were living together, the father's relationship with the child was minimal. The father would get home around 7:00 P.M. from work, eat, and then go to the garage to find busy work. Usually the mother and the child ate by themselves. She testified that she has long been the primary caretaker of the child in that she fed him, clothed him and generally took care of him, including providing his health insurance. The mother testified that she and her new husband are very family oriented as they try to eat together, along with her husband's daughter. She testified that when she was working in Pine Valley, a typical day would be getting up at approximately 6:00 A.M., clean up, have breakfast, and then the child would ride with her to school. She would stay with him until he performed his duties as Safety Patrol Student, and then at the end of the day he would stay with the her after school working on his homework. They would get home and eat about 5:30 P.M. The mother testified about her "cuddling" time with the child each night, which was important to her and the child. In the household currently are Dean, her husband, the subject child, and Dean's children. His daughter is almost 18 and his son is 20. His daughter will be attending Syracuse University this fall.
The father believes he has been an active participant in raising his son. He helped bathe, dress and feed him. They interact together in activities such as riding bikes, taking walks, and now they four-wheel and snowmobile. He admits that he has only attended one or two parent/teacher conferences, but he believed that since the mother was at school everyday, he did not believe it was totally necessary. The father did not allow the child to travel to Germany to meet his mother's family, nor go to Disneyland or otherwise allow the child to travel. The testimony revealed the mother is the child's primary caregiver, and she provides the continuity and stability necessary for the continued development of the child.
Turning to the parties home environment, the father has rented an apartment close to the mother's home before she moved to Lake Placid, where he has lived since the parties broke up. His apartment has two bedrooms, and one bath and very little yard. It is right next door to a bar with a patio, where several people congregate and smoke. The other side contains a grocery store. These places are very close together, but there is a playground three or four blocks away.
The mother and her husband are renting a home in Ray Brook, which is near Lake Placid. Her husband's son will have a separate apartment within the home. The Lake Placid area offers more exposure to different cultures, as there are two private schools and several European studies programs, as well as being the training area for the U.S. Olympic Team. Also, there is a state skiing program, together with many national events that occur there.
While both parents' homes are satisfactory to raise a child, the father's residence is quite small and the child sleeps in a loft area of the apartment. The father has never attempted to obtain a larger apartment despite the amount of time the father states the child is with him. However, the father stated he hoped to buy a house if the mother was not allowed to relocate. The mother, however, has a modern home for the child with social and cultural opportunities available to him in Lake Placid that are not available to him in Cherry Creek.
With respect to the ability of each parent to provide for the child's emotional and intellectual development, both parents are well educated and can provide for the child's intellectual development. The mother has a Bachelors degree from St. Bonaventure University, together with her Administrator's Certificate she earned in 2009. She applied for administrative positions in the Western New York area for almost five years, without success. The Lake Placid School system was the first offer she received, where she is now the Elementary School Principal. The father received his Bachelor's and RN degrees from SUNY Fredonia. His current job is as a Care Coordinator for the NYS Office of Mental Health, and he is working in the Buffalo Psychiatric Center.
The parties had a difficult relationship while they were together, as the mother testified to the father having anger issues. She testified to events with the child present, when the father blocked the mother's car, pounded on her hood and pulled on the window. He also refused to leave after dropping off the child and yelled at the mother's back door. Because of her fearfulness of the father, the mother installed a security system and slept with a crowbar in her bedroom.
There was testimony from Tyler Silagyi, who is a close family friend, that before the breakup, he noticed the child had a short temper, especially when he was doing projects. He noticed that was similar behavior to that of his father. He has noticed post-breakup, that the child is much calmer and does not lash out now. Lisa Kelly, a reading specialist at Pine Valley, testified that the child had caused problems in school before the breakup. He has become much more rational and thoughtful after the breakup. Ms. Kelly also testified that she and other teachers noticed the child was unclean after his overnight access with his father on Sunday and Wednesday evenings. The mother also noticed his uncleanliness. Further, the mother testified that the child has gained significant weight in the short time he has been staying with his father since July of this summer. It may be attributed to unhealthy eating habits in the home, or the fact that the child was not enrolled in any summer soccer program by the father, nor did he participate in the summer enrichment program he attended in the previous six years.
Turning to the financial status and ability of each parent to provide for the child, the father's current job as a Care Coordinator for the NYS Office of Mental Health pays him approximately $70,000 per year, which includes health insurance for himself. The mother would be making $52,713.00 per year pursuant to her former position with the Pine Valley Central School. Her husband testified that his income for 2014 was $50,997.69. As a result of her taking the position with the Lake Placid school system, the mother's income will be $82,000.00, an increase of $29,287.00. Additionally, her husband's income will be $62,000.00 per year working in Lake Placid, together with an additional side job working for a surveying company, which would result in over a 50% raise in his salary. The anticipated joint earned income would be approximately $160,000.00 per year, compared to their joint income of $105,562.00 in 2014.
It is clear both parties have the financial ability to provide for the child. However, it is clear the income of both the mother and her husband have improved dramatically with the move to Lake Placid. The mother testified she would be able to provide many more benefits to the child based upon this increased income, including, an educational fund, the ability to travel and substantial life improvements. The mother's job search for an administrative position began while they were still cohabitating with one another. The father admitted that he was not surprised she received an administrative position and was going to move, the surprise was that it was so far away.
The testimony revealed the father does not like paying child support on behalf of his son. The testimony was that the father paid child support until 2013 when the mother married. He stopped payment at that point and stated to the mother, "your husband could pick up the slack since you're with him." A support petition was filed to rectify the situation, and the father has since filed a modification of child support petition when he received temporary residential custody in July, 2015.
As previously stated, a strict application of the Tropea factors is not required in this case, as the mother's relocation is a factor to be considered in making a best interests determination. It is clear from the testimony that the mother will certainly have an economic enhancement by moving to Lake Placid. Notwithstanding that increase in income, the father remains very interested in maintaining a consistent and regularly available presence in the child's life. This is illustrated by the weekly and every other weekend access he has with him. It is obvious that the child's relocation to Lake Placid would reduce the contact he has with his father. The Court heard from the father and his relatives regarding the extended family the child enjoys in the Cherry Creek area. However, the Court was concerned with the lack of candor by the father and his siblings when testifying about the arrest of the child's paternal grandfather, for Resisting Arrest and Reckless Endangerment in the First Degree, together with his anger issues.
However, the visitation schedule as outlined by the mother for the child to be with the father on numerous extended weekend visits throughout the year in addition to extended summer and holiday visits, together with the offer of extended access to the child via Skype and an expressed willingness to provide transportation, does not deprive the father of the opportunity to maintain a close relationship with his son (see, Smith v. Bonvivino, 50 A.D.3d 806, 807, 854 N.Y.S.2d 659 ).
With respect to educational opportunities, the testimony revealed that the child is very intelligent with a bright future in front of him. Through no fault of either parent, and a trend for schools state-wide, the Pine Valley School District has reduced its teaching staff while increasing it's class size. The cuts have cost the advanced placement programs at Pine Valley. The Lake Placid and Pine Valley school districts are similar in size, however, the testimony is that Lake Placid has more athletic offerings and more classes to choose from, including advanced placement.
While each party no doubt loves the child and desires to provide the primary physical residence of him, the best interests of their son dictate that the primary physical residence be with the mother. The father testified he has no issues with the mother's ability to parent the child. The mother fostered, and facilitated the father's access with his son. The mother never unreasonably withheld the child from his father, and made sure his visits occurred. In fact, the mother offered extended access to the father but he never took advantage of this offer and refused extra time with his son. The father never asked for additional parenting time in the summer or during school breaks. The father never testified to any access he would provide the mother if he was to be the custodial parent. The mother is better able to allow the child to grow into his own person and provide the emotional and intellectual development he needs, while fostering a relationship with his father to complement his development. Upon consideration of the positive living situation in the mother's home in which the child has resided his entire life, his bond with his step-siblings, and the mother's good understanding of the child's developmental and emotional needs, the Court finds that the mother's petition for custody shall be granted in the child's best interests.
The Court also had the opportunity to speak with the child, together with his attorney, at the in camera interview. It was clear to this Court that the child has a warm relationship with his mother, she is active in school and he enjoys living with his mother. While he enjoys his visits with his father, his mother provides a more stable, structured home. Although not conclusive, the award of residential custody to the mother is in accord with the position advocated by the Attorney for the Child (see, Matter of Gregio v. Rifenburg, 3 A.D.3d 830, 770 N.Y.S.2d 490 ).
The next question is whether joint custody is appropriate in this relationship. It is well settled that joint custody involves the sharing by the parents of responsibility for and control over the upbringing of their children, and imposes upon the parents an obligation to behave in a mature, civilized and cooperative manner in carrying out the joint custody arrangement (Matter of Drummond v. Drummond, 205 A.D.2d 847, 613 N.Y.S.2d 717 ). The testimony in the matter reveals that the parties can share in this responsibility. While the Court recognizes that the parties do not have the best communication, they are able to work together for the benefit of their child. The mother has demonstrated the ability to provide visitation and access to the father before, and during these proceedings, to complement the child's development. An award of joint custody will promote the child's welfare.
NOW, THEREFORE, it is hereby
ORDERED, the parties shall share joint custody of C.M., with the primary physical residence of the child to be with the mother; and it is further
ORDERED, that in consideration of the child traveling in the evening and during the winter, the father shall have the following access during the child's school year;
Every Columbus Day weekend, commencing no later than noon on the Saturday before Columbus Day until Monday at noon;
Thanksgiving break from school beginning the Wednesday before Thanksgiving until the Sunday after Thanksgiving at noon;
Every Christmas recess from school, beginning at noon on December 26th through New Year's Day at noon;
Every Martin Luther King weekend, commencing no later than noon on Saturday until Monday at noon;
One half of every winter break, commencing no later than noon on Saturday until Tuesday at noon;
Every Easter recess from school commencing Saturday at noon until the following Sunday at noon;
In April or whatever month State Exams are given, commencing no later than noon on Saturday until Sunday at noon;
Every Memorial Day weekend commencing no later than Saturday at noon (or Friday if there is no school) until Monday at noon;
Every Father's Day from Saturday at noon until Sunday at noon;
Summer access as follows: Commencing the Saturday after the completion of school, the father shall have three consecutive weeks of uninterrupted access, thereafter the mother shall have three consecutive weeks of uninterrupted access, and then the father shall have the balance of the summer until no later than noon on the Saturday before school begins; and it is further
ORDERED, that at no time will the child be left alone at any time with the paternal grandfather, Horace E. Morey; and it is further
ORDERED, the mother shall provide all the transportation for all long weekend access periods, provided the father is current with his child support payments, and it is further
ORDERED, that the parties will have any other visitation as can be agreed and arranged between them, and it is further
ORDERED, that the father shall have access to all medical and educational records and that he have the right to receive copies of the same; and it is further
ORDERED, that if not already done so, the father will purchase a camera that is compatible with the mother's computer to facilitate skype access at a minimum of two times per week, together with phone access as the parties can agree, as well as text and email between the child and his father, and it is further
ORDERED, that the father shall have reasonable access to the child any time the mother is in Western New York with the child, with the understanding that the mother will provide the father advance notice of her intention to be in the Western New York area; and it is further
ORDERED, that neither parent shall make or permit to be made any unkind or disparaging remark about the other parent either to the child or in front of him; and it is further
ORDERED, the father's petition and Amended petition are dismissed.