Opinion
V-22967-12/18F, V-06737-13/18E, V-30721-18/18A
08-22-2018
In the Matter of a Custody Proceeding Pursuant to Family Court Act Article 6, AMY C., Petitioner, v. IGOR V., Respondent.
The mother was represented by Anna Stern, Esq., 195 Plymouth St., Ste. 6/19, Brooklyn, NY 10201, Tel. (347) 491-4935 Father was represented by Paul M. Groner, Esq., 30 Wall St., 8th Floor, New York, NY 10123, Phone: (212) 709-8028 Child is represented by Ms. McSwain, Esq, from the Children's Law Center 44 Court St Fl 11, Brooklyn, NY 11201, Phone: (646) 493-5591
The mother was represented by Anna Stern, Esq., 195 Plymouth St., Ste. 6/19, Brooklyn, NY 10201, Tel. (347) 491-4935
Father was represented by Paul M. Groner, Esq., 30 Wall St., 8th Floor, New York, NY 10123, Phone: (212) 709-8028
Child is represented by Ms. McSwain, Esq, from the Children's Law Center 44 Court St Fl 11, Brooklyn, NY 11201, Phone: (646) 493-5591
Javier E. Vargas, J.
Papers Numbered
Summons, Petitions, Affidavit & Exhibits Annexed 1
Order to Show Cause, Affirmation & Exhibits Annexed 2
Answer in Opposition, Affirmation & Exhibits Annexed 3
Reply Affirmation in Support 4
Court Proceedings Transcripts 5
Upon the foregoing papers, the hearing held before the undersigned, the exhibits admitted in evidence and for the following reasons, the oral motion by the Children's Law Center and Respondent Igor V. (hereinafter "Father"), for the dismissal of the Petition by Respondent Amy C. ("Mother") to modify the Final Order of Custody and Visitation, is granted. The Order to Show Cause by the Mother to enjoin Father from relocating with the Child to New Jersey, is consolidated herein for determination and denied in accordance with the following decision.
By Petitions for Custody in March 2013, both Father and Mother commenced the instant long-standing cross proceedings for the custody of their Child, in Kings County Family Court. The Child was born out of wedlock, but the parties promptly executed an Acknowledgment of Paternity. While Father has continued to make allegations of long-term opiates drugs and alcohol addiction, depression and mental health issues against the Mother, she in turn made allegations of domestic violence, mental instability and drug abuse by Father. Even the maternal grandparents sought custody of the Child faulting both parents for their history of substance abuse and domestic violence issues. Given the existence of domestic violence, this matter was litigated in Kings County Supreme Court's Integrated Domestic Violence Part ("IDV") for several years before Justice Patricia Henry.
Early on, the IDV Part appointed the Children's Law Center to represent the Child and the Children's Law Center fully participated in the contentious proceedings. After a period of three years, a trial commenced in March 2015 and concluded in June 2016. At the conclusion of the trial, by a 106-page Decision and accompanying Final Order of Custody and Visitation, dated August 24, 2016, the IDV Part (Henry, J.) awarded sole legal and physical custody of the Child to Father subject to a full and detailed parental access to the Mother, including alternate weekend visitation with pick-ups and drop offs at the school, holiday visitation and five weeks during the summer. In relevant part, the Final Order states:
The Father [ ] shall consult with the Mother [ ] prior to making any and all major decisions regarding the health, education and welfare of the Child. The parties shall communicate their opinions regarding major decisions in writing, either through email, text message, or journal and shall respond to each other's inquiries promptly. The parties shall endeavor to reach a mutually satisfactory decision with respect to any major decision and the Father [ ] will, in good faith, fully consider the Mother's [ ] opinions. If the parties are unable to reach a consensus, they shall work with a parenting coordinator who they mutually choose and agree to, which parenting coordinator shall assist them in reaching a consensus. The cost of the parenting coordinator shall be borne solely by the Father.
* * *
Neither party may relocate beyond a 25-mile radius without the written consent of the other party or Court Order permitting the relocation.
The IDV Part Decision and Order were appealed and unanimously affirmed by the Appellate Division, Second Department last year (see Matter of Vaysman v. Conroy , 165 AD3d 954 (2nd Dept. 2018).
By Petition dated October 18, 2017, Father commenced a family offense proceeding on behalf of the Child against Mother, claiming that she "is locking the subject child in the basement without food or light" and that the Child "is frightened." The Family Court (Bourne-Clark, J.) issued a Temporary Order of Protection dated October 18, 2018, ordering Mother to stay away from the Child and not to communicate with her, except for court-ordered visitation, and to refrain from harassing, intimidating, assaulting, stalking or committing any family offense against the Child. Upon the appearance of all parties, the Temporary Order of Protection was modified to remove the stay away and instruct Mother not to commit any family offense against the Child. After several appearances and a Court Ordered Investigation by the New York City Administration for Children's Services (hereinafter "ACS"), the Father ultimately agreed to withdraw his Family Offense Petition against Mother and the TOP against her was vacated by the undersigned on May 5, 2018. Several Petitions, Supplemental Petitions and Motions for Enforcement and Modification by both parties ensued, which this Court denied and dismissed, without a hearing, by Decision and Order dated June 14, 2018.
Undeterred, by Petition for Modification dated December 8, 2018, Mother now seeks modification of the 2016 Final Order of Custody & Visitation so as to give her sole legal and physical custody of the Child, restrict the Father to supervised visitation and/or provide more parenting time to her. At the trial, Mother argued that Father "suffers from untreated mental illness" manifested by his engagement in a campaign of vengeful and bad faith behavior to alienate and interfere with her relationship with the Child. Specifically, Mother maintains that Father has called ACS and the New York City Police Department ("NYPD") on several occasions falsely, "outlandish[ly] and preposterous[ly]" accusing her of, among other things: repeatedly locking the Child in a basement area or room without light, food or water; having purposely hit the Child and broken her tooth with a television remote control; scratching the Child on her stomach while disciplining her; and having fallen asleep on the floor and being unresponsive in a drug stupor while cooking a butter sauce for the Child. Although the Father also filed several Petitions against Mother to permit him to relocate to Florida with the recently-retired paternal grandparents, he withdrew those applications for relocation.
Since there was no agreement reached between the parties and given the serious allegations delineated on the Petition, the Court presided over a trial spanning several months from February 11, May 8 and 9, July 17, to August 12, 2019. The first witness to testify was the ACS Child Protective Specialist, Ms. Tamara Longmore, assigned to conduct the relevant investigations of the family in July 2018, including allegations of bruising, lacerations and welts encountered on the Child as well as allegations of inadequate guardianship, lack of supervision and drug abuse by Mother. Specifically, Ms. Longmore testified about the incident in August 2018, wherein the Mother was accused of having hit the Child in her mouth with a television remote control. Her investigation found no bruising in any part of the Child's body or mouth, but a loose baby tooth, and the report was unfounded. Other incidents, which were reported by the Child's school not by the Father, including one where the Child had a "tiny scratch" on her "belly" with a scab, and another where the Child stated that the Mother fell asleep on the floor while cooking and could not be awaken. Ms. Longmore testified that she investigated and questioned all the appropriate parties, including visiting the NYPD, almost on six different occasions regarding these incidents and determined that all those reports against Mother were unsubstantiated and unfounded.
Ms. Longmore further testified that Mother was always very cooperative and forthright with her during the investigations, but that Father refused to permit her to speak to him or the Child, after finding out that earlier reports against Mother were unsubstantiated. Father also complained about the Child's hygiene while with the Mother, who allegedly aggravated a rash the Child had around her private areas. According to Ms. Longmore, Father was disrespectful. He accused her of being biased, not doing a thorough investigation and he wanted to speak to her supervisor. On cross examination, Ms. Longmore revealed that the Child had different versions of what happened on those occasions, sometimes she recanted and declared herself "confused" about the incidents. She confirmed that an NYPD's Officer was involved in the tooth incident, she interviewed her, and the NYPD conducted a welfare check of the Child.
Next to testify was the Mother, who testified in a sullen and monotone way, expressing her frustration and serious concerns about the Child's mood and behavior distancing herself from the Mother. She claimed that it has become difficult having a conversation with the Child because she does not want to be with Mother or go anywhere with her. Although the Child used to enjoy visiting with Mother and doing errands and grocery shopping, Mother complained that the Child no longer wants to do those things with her and "whines, pouts and hides under a blanket." Mother testified that the Child gets depressed, defensive and shoots down in her presence and home, especially after speaking on the telephone with the Father at her place; Child seems uncomfortable and "feels awkward" talking to her Father in front of her. Mother openly acknowledged her past problems with drugs and alcohol, but affirmed that she has been clean since 2016, and that she takes medication for depression and an "opiates antagonist." She has only taken some breaks in taking those medications because of the prescription regiment.
With respect to the allegations against her, Mother denied ever hitting the Child on purpose with the remote control, explaining that the Child was rough playing around on the couch running towards her and that she raised her hand with the remote control to protect herself and merely touched her with it. Although Mother recognized that the Child said "ouch, you hit me," the Child did not stop playing around and Mother did not take a look at her mouth or teeth. With respect to the belly scratch, Mother testified that she saw it, she did not cause it and upon asking the Child about how she got it, did not receive a response. Mother denied and did not remember any incident when she fell asleep while cooking. She testified that the Child had acted out in front of her by throwing apple sauce and a box of color pencils on the floor out of spite and that she disciplined the Child by putting her on timeout, making her sit on the basement stairs. Mother thinks that the Child is "uneasy," but that she will warm up to her if there was more visitation. On cross examination, Mother acknowledges that she rarely communicates with Father and only via email, because of his temper. She has never told Father about the Child's misbehavior towards her or about recommending therapy for the Child.
Prior to resting her case, Mother moved for an adjournment of the continuous trial to obtain the testimony of the elusive NYPD Officer who interviewed the parties after one of the incidents. During the trial, she also subpoenaed the backup documents and notes underlying the ACS's caseworker's unfounded investigations. This Court denied the Mother's late applications on the record based on, inter alia, the unexcused delay in offering that testimony and documents several months after the commencement of the hearing and the possibly cumulative nature of that evidence given the ACS caseworker's thorough testimony about the unfounded allegations. The Mother then rested her case.
In the interim, by email dated July 17, 2019, Father notified Mother that he has purchased a comfortable house in Holmdel, New Jersey, located within the 25-mile radius restriction ("21.17 miles to be exact"), and wanted to move there with the Child. According to Father:
The move is a wonderful opportunity for [the Child] and I. [She] will be moving from a 700 square-feet apartment to a 2,600 square-foot home. [The Child] will have her own room and a big backyard to enjoy and play in. The neighborhood is wonderful with lots of outdoor and indoor activities for [her] to enjoy. She will have plenty of friends.
I have been researching schools in the area. My first choice is Village Elementary School * * *. The school is rated as a top school with an excellent program and many activities; and the reviews are wonderful. I have viewed the campus and it is beautiful. Please check out the school and let me know your opinion. Thank you.
Mother has never timely responded one way or another to Father's email.
Instead, by Order to Show Cause dated August 5, 2019, Mother moves for an Order "enjoining, forbidding and restraining [Father] from relocating to Holmdel, New Jersey, with the subject Child." The Court (Vargas, J.) granted a temporary restraining order preventing the Father's move during the pendency of the trial. In support of her motion, Mother argues that the move will significantly reduce the quantity and quality of the Child's relationship and visitation with the Child, since it will take her over one hour of driving or two hours of public transportation to go back and forth to exercise her visitation in New Jersey. In opposition, Father maintains that the move is in compliance with the 2016 Final Order, would not curtail the Mother's visitation rights and will be in the best interests of the Child. For her part, the Attorney for the Child has not filed papers replying to the Motion, but affirmed on the record in open court that she is not opposed to the move as long as Father is required to provide all transportation for the Child's visitation with Mother to and from Brooklyn, NY
Upon the completion of the Mother's case, the Attorney for the Child joined by Father orally moved for the dismissal of the Petition on the grounds that Mother has failed to establish a sufficient change of circumstances to modify the 2016 Final Order. Despite all the allegations listed in her Petition about Father's malicious behavior, they argued that Mother has only concentrated her evidence and testimony on the ACS investigations conducted against her, which were all unfounded. The Attorney for the Child further argues that the Child is happy with the current custody and visitation arrangement. After hearing oral argument by all parties on both Motions, this Court reserved decision and hereby consolidates both for determination herein.
In order to modify an existing custody and visitation order in the absence of an agreement between the parties, a party "must show that there has been a sufficient change since the entry of the order such that modification is warranted to further the child's best interests" ( Matter of Rajakkannan v. Pradhan , — AD3d —, 2019 NY Slip Op 03791 [2nd Dept. 2019] ; see Matter of Henry v. Tucker, 157 AD3d 892, 893 [2nd Dept. 2018] ; Matter of Licato v. Jornet, 146 AD3d 787 [2nd Dept. 2017] ; Matter of Cusano v. Coitino , 155 AD3d 722, 723 [2nd Dept. 2017] ). "Hearings have been denied and modification requests dismissed, where the allegations were conclusory and unsubstantiated" ( Matter of Newton v. McFarlane , ––– AD3d ––––, 2019 NY Slip Op 04386 [2nd Dept. 2019] [citations omitted] ). "On a motion to dismiss for failure to establish a prima facie case, the petitioner's evidence must be accepted as true and afforded the benefit of every reasonable inference which may be drawn therefrom" (Matter of Awoleke v. Awoleke, 79 AD3d 743 [2nd Dept. April 20, 2018] ; see Matter of Ramroop v. Ramsagar, 74 AD3d 1208 [2nd Dept. 2010] ; Gonzalez v. Gonzalez, 262 AD2d 281, 282 [2nd Dept. 1999] ).
Applying these principles to the case at bar, the oral application by the Attorney for the Child and Father for the dismissal of Mother's Petition seeking modification of the Final Order, must be granted. As a threshold matter, the parties were required by Judge Henry's Final Order to engage the services of a Parenting Coordinator in order to resolve any dispute between them involving the "welfare of the child." It is undisputed that Mother has failed to even attempt to follow that procedure by providing proof that she contacted Father about her visitation concerns, or get the Parenting Coordinator. That procedure was set up by Judge Henry precisely to prevent the type of unrelenting and contentious litigation previously—and currently—engaged in by the parties. Aside from failing to comply with that precondition, Mother's evidence at the hearing, accepted as true and viewed in a light favorable to her, has failed to demonstrate a subsequent change in circumstances warranting a change in the custody and/or visitation arrangement.
To the contrary, the evidence at the hearing reveals that all the ACS allegations against Mother, albeit unfounded, were based on certain factual assertions candidly confirmed by Mother during her testimony explaining her version of the events. She confirmed, among other facts, that the Child hit herself with the remote control, that the Child had a "belly scratch" and that she disciplines the Child with timeout periods in another room. Instead of highlighting a positive relationship with the Child, Mother's mostly testified to a litany of complaints about her relationship with the Child, her disrespect and acting out during her parenting time. Mother continuously blames the Father for the Child's disrespect and misbehavior without recognizing her own likely role in such conduct. Tellingly, Mother acknowledged not asking the Child if she was hurt after the remote-control incident and affirmed that she pulled the Child from her legs making her fall to the floor on another occasion. This undisputed behavior coupled with her detached testimony at trial which primarily centered on her grievances against the Father rather than about the Child and plans about her future and well-being, demonstrated Mother's impassiveness to the emotions or best interests of the Child.
Neither parent is totally blameless, however. This Court finds that the incidents alleged by Father and the Child against Mother were taken out of context and greatly exaggerated, as evidenced by the fact that the Court-Ordered Investigations did not reveal any damming information against Mother, other than that the Child enjoys her visits. As recently expressed by the Appellate Division, Second Department:
The existence of custody litigation, by itself, can create trauma and uncertainty for the child, as well as trauma, uncertainty, and expense for the parents. Repetitive applications for modification brought by disgruntled litigants in order to harass or vex their former spouses or domestic partners are not unheard of. Litigation over established court-approved child custody and access arrangements can be unsettling and traumatic for children, particularly for children of sufficient age or maturity to comprehend, and worry, about potentially significant changes in their daily lives, such as what home they live in, what family members they live with, what schools they go to, what friends they have, and what activities they undertake. The prospect of having to be interviewed by a judge, consult with counsel, be examined by a forensic clinician, and deal with parents who are embroiled with each other in litigation, can create significant anxiety and stress, which, by itself, may be harmful to a child's development
(Matter of Newton v. McFarlane , 2019 NY Slip Op 04386 ). Just like in that case, Mother's unsubstantiated and conclusory allegations against Father are insufficient to warrant a change of the custody and visitation arrangement (see Matter of Chichra v. Chichra , 148 AD3d 883, 885 [2nd Dept. 2017] ; Matter of Ali v. Hines, 125 AD3d 851, 851-852 ). To the contrary, Judge Henry's initial determination to grant only parental access to Mother appears to have been—and continues to be—in the best interests of the Child (see Matter of Henry v. Tucker , 157 AD3d at 893 ; Matter of Torres v. Ojeda , 108 AD3d 570, 571 ), as advanced by the Attorney for the Child in expressing the Child's own requests. No change is, therefore, warranted and Mother's Petition must be dismissed.
Nor does Mother fare better in her Motion to enjoin and restrain Father from relocating with the Child to New Jersey. "It is the general policy of this State that a move by the custodial parent to a distant domicile will not be permitted when it would effectively deprive the noncustodial parent of regular access to the child" ( Blundell v. Blundell , 150 AD2d 321, 323 [2nd Dept. 1989] ; Zaleski v. Zaleski , 128 AD2d 865 [2nd Dept. 1987] ). Courts have allowed the relocation where the custodial parent intends to move to a city within a reasonable distance of their current residence (see Conte v. Conte , 176 AD2d 247 [2nd Dept. 1991] ). Thus, the relocation will be permitted if it does not effectively curtail the visitation rights of the noncustodial parent or deprive that parent of regular access to the child (Id. ; Blundell, supra at 324).
Here, Father intends to move to Holmdel, New Jersey, which is an area within a reasonable distance of only 21 miles from his current residence in New York City. By this move, this Court finds that Father is not in violation of the provision in the 2016 Final Order which prohibits relocation beyond a 25-mile radius. In fact, Father has complied with the order by relocating to a distance within the 25-mile radius (see Matter of Barnette v. Blair , 57 AD3d 893 [2nd Dept, 2008] ). Moreover, Father has agreed to transport the Child to and from her visitation with Mother which would not appear to be prejudicial to her or curtail her visitation rights (see Conte, supra at 249; Zaleski , 128 AD2d at 866 ). The Court thus finds that the record supports Father's relocation with the Child to New Jersey.
In accordance with the foregoing, this Court hereby grants Father and CLC's oral motion to dismiss the Mother's Petition for modification and denies Mother's Motion. However, Father is hereby ordered to provide the transportation for the Child to and from Brooklyn for all the Mother's visitation three weekends a month from Friday after school to Sunday at 5:00 p.m., commencing September 6, 2019, and her holidays and vacations. The foregoing constitutes the Decision and Order of the Court.