Opinion
No. 50* * */2013.
01-18-2017
D.C., Plaintiff, v. G.C., Defendant.
Bernstein & Jaffe by Steven Bernstein Esq., Brooklyn, for plaintiff husband. Ralph Porzio Esq., Staten Island, for defendant wife. The Children's Law Center by Teresa Grogan Esq., Staten Island, for the subject child.
Bernstein & Jaffe by Steven Bernstein Esq., Brooklyn, for plaintiff husband.
Ralph Porzio Esq., Staten Island, for defendant wife.
The Children's Law Center by Teresa Grogan Esq., Staten Island, for the subject child.
CATHERINE M. DiDOMENICO, J.
Procedural History
Plaintiff D.C. ("Husband" or "Father") commenced this action for divorce against Defendant G.C. ("Wife" or "Mother") by Summons and Verified Complaint filed on July 17, 2013. Wife filed an Answer with Counterclaims on February 13, 2014. A Preliminary Conference was held on September 4, 2013. The parties were married on July 9, 2010. There is one child of this marriage, M.C. (d.o.b.10/* */10) who presents with significant developmental delays and special needs. Defendant Wife has a son from a prior marriage (R.P. d.o.b.2/* */96) who also presents with special needs.
Plaintiff Father was represented throughout this matter by Steven Bernstein, Esquire. Defendant Wife was represented by DC 37, Marianna Squillace, Esquire, of counsel, until Ms. Squillace was substituted by Mr. Ralph Porzio, Esquire, on or about November 25, 2013. Ms. Teresa Grogan, Esquire, of the Children's Law Center was appointed to represent the subject child M.C..
By Order November 25, 2013, Dr. Stephen Billick was appointed to conduct a forensic examination of the parties in furtherance of the issues of custody and parental access. On joint application, this Order was vacated and Sophie Michelakou, Ph.D. was appointed to conduct this analysis (See SFO dated 2/11/14). On January 2, 2014, the parties withdrew their cross Family Offense petitions which were consolidated into this divorce action. Family Court had issued a Temporary Order of Protection in favor of Wife but declined to issue one in favor of Husband on his Petition. On January 2, 2014, Wife withdrew her Temporary Order of Protection against Husband. Husband's Family Offense Petition against R.C. remained in Family Court until it was withdrawn on January 7, 2014.
By Order dated May 15, 2015, the parties agreed that Husband would be granted a divorce on the grounds that the marriage had broken down irretrievably pursuant to Domestic Relations Law § 170(7). They also agreed to waive any claims for maintenance against the other. In resolution of the issue of equitable distribution, the parties agreed to keep all accounts titled in their own names, and to sell and equally share the net proceeds of the sale of the marital residence located at * * T. Drive, Staten Island, New York (the "former marital residence"). The parties further agreed to retain their own retirement and pension benefits rather than having QDRO's prepared as they had earlier agreed (See Orders dated 5/15/15; 11/10/14). In addition to resolving the issues of equitable distribution and maintenance, the parties entered into a Short Form Order wherein they agreed that child support would be awarded and calculated pursuant to the CSSA guidelines if either party was awarded sole custody after trial. (See SFO 5/15/15). On May 15, 2015, after inquest, a Judgment of Divorce was granted to Husband, but held in abeyance until all ancillary issues were decided after trial.
The Trial
The issues of custody, parental access and child support were tried before this Court on May 20, 2015, May 21, 2015, June 8, 2015; June 30, 2015, July 2, 2015, July 6, 2015, July 27, 2015, September 3, 3015, September 4, 2015, October 13, 2015, November 20, 2015, December 4, 2015, December 14, 2015, April 6, 2016, April 7, 2016, April 27, 2016, and May 4, 2016. Plaintiff Husband testified on his own behalf and called the following witnesses at trial: D.C. (his mother); F.R. (friend); R.C. (neighbor), and E.F. (service provider). Defendant Wife testified on her own behalf and called K.P. (friend) as a witness. Both parties submitted documents into evidence (Pl. Exs. 1–30; Def. Ex. A). Husband also attempted to introduce voluminous recordings that he surreptitiously made of Wife during the course of this divorce proceeding. For the reasons set forth on the record after a detailed analysis, four of these recordings were determined by this Court to be admissible as they were material and relevant to the issue of Wife's credibility.
The attorney for the child called Dr. Michelakou, the forensic evaluator, as a witness. All parties agreed that an in camera examination of the five-year-old subject child would not be conducted because her special needs inhibit her ability to be interviewed by this Court. Dr. Michelakou's report dated November 10, 2014 was received into evidence without objection (AFC Ex. 1). Judicial Notice was taken of various Orders entered into in this case (Jud.Not.1–21). At the conclusion of trial written summations were received from all parties. During the process of drafting this Decision it was determined that neither party has provided sufficient information regarding their 2014 incomes for the Court to determine child support. Rather than re-opening the trial, or dismissing their claims without prejudice, the Court issued a Short Form Order dated December 19, 2016 wherein both parties were given an opportunity to provide 2014 Tax returns and W2 documents. As previously noted, it was agreed by Short Form Order dated May 15, 2015 that any CSSA guidelines calculation would be based upon the "parties respective 2014 income tax returns and W2's."
During the pendency of this divorce action, numerous orders were issued on a pendente lite basis. On October 15, 2013, after initially crediting Husband's account of Wife's alleged interference with M.C.'s service providers, and with the support of the attorney for the child, this Court granted Husband temporary final decision making with regard to health and education of the subject child. (See SFO 10/3/15). However, at trial, Husband's allegations of interference by Wife were not substantiated. Further, it was established that Husband had actually misused the temporary authority granted to him by attempting to withhold information from Wife and by damaging her reputation with the service providers. The temporary authority granted to Husband was modified by Short Form Orders dated January 2, 2014, May 13, 2014, and December 14, 2015, all of which served to restore Wife's participation in the child's services.
The parties to this action cohabitated in the former marital home until on or about December 31, 2105 when that property was sold on consent. Following the sale, Husband relocated back into the home of his mother, Ms. D.C. ("Paternal Grandmother"). Wife relocated to a condominium that she recently had purchased. The parties currently live in close proximity to one another. In light of the fact that the parties would no longer be cohabitating, this Court was compelled to issue an Interim Parenting Order dated December 14, 2015. That Order provided that the parties would share decision making, and have alternating weekly residential custody of the child. This Court found a "week on, week off" schedule to be in the child's best interest until a full trial decision could be rendered as it preserved the equal access enjoyed by both parties when they resided together. It further substantially reduced the number of transitions for this special needs child and limited contact between the parents. At trial, both parties testified that despite the "equal access" provided by this interim Order, that they jointly did not want to continue this schedule of "shared custody" as a final order after trial. In their post trial summations, each party now seeks an order of sole legal and physical custody, with "alternate weekend" visitation for the other parent, together with a midweek visit. The attorney for the child seeks an order of sole legal custody to Wife with equal parenting time to be split between the parties.
Factual Findings
At trial, both parties attempted to show that they were the more fit custodial parent for the subject child M.C.. To this end, both parties testified to a litany of events that occurred during the course of their relationship and throughout this litigation. Many of these incidents were not critical to this Court's determination of custody and parental access. Rather than dignify each and every incident between the parties, this Court discusses herein only those significant findings of fact that weighed most heavily in this decision.
Plaintiff Husband
Plaintiff is 40 years old. He is a high school graduate who worked a number of jobs until he secured employment with the Department of Sanitation ("DOS") in 2005. He currently is stationed on Staten Island. He works five days a week from 6:00 am to 2:00 p.m. He usually has off Sundays and a rotating day during the week. Husband earned the gross sum of $79,069 from this employment in 2014.
The parties met in the winter of 2005 and began cohabitating in 2007. At the time the parties met, Wife's son R.C. was approximately eight years old. R.C.'s biological father had previously passed away. Husband initially got along well with R.C. and fulfilled the role of a "father figure." They spent time together doing a myriad of bonding activities including watching football games while wearing matching jerseys, going to the movies with R.C.'s friends, accompanying R.C. to his own baseball and football games, and dining out together. At all times, Husband was aware that R.C. had been diagnosed with Attention Deficit Hyperactive Disorder. In fact, Husband testified that he was intricately involved in advocating for R.C. with the Department of Education. He attended R.C.'s IEP meetings, met with R.C.'s service providers and assisted him with his homework. Based on this regular contact and the close positive relationship he had with R.C., Husband was familiar with R.C.'s special needs and the manifestations of his condition.
The parties initially cohabited in an apartment for a period of approximately two years. They subsequently purchased the former marital home, partially because it was located across the street from Husband's mother's home. Due to an undisclosed problem with the home, the parties and R.C. could not move into their new house immediately after closing. At Husband's suggestion, they moved in with his mother, Ms. D.C. ("Paternal Grandmother"). They remained living with Paternal Grandmother from January 2010 to September 2010, a period of approximately 9 months. R.C. was about 14 or 15 years old at that time. During this time, Wife became pregnant with the subject child M.C..
The parties moved into the former marital residence in late 2010. Despite mounting tension and hostility, they continued to reside together with M.C. throughout the course of this divorce proceeding until the marital home was sold in December of 2015. It appears to this Court that both parties were fearful that if they left the marital home it would provide an advantage to the other in this custody trial. During the course of these many months of contentious cohabitation, Husband refused to have meaningful conversations with Wife, even when she tried to engage him in topics germane to M.C.. Rather, Husband chose to keep volumes of "communication journals" to engage in written communication that could be used against Wife at a later date. In addition, on the rare occasion when the parties did engage in verbal communication, Husband secretly tape recorded the encounters. At trial Husband sought to introduce hundreds of these recordings into evidence. For the reasons detailed on the record, this Court admitted into evidence four of these proffered recordings as they were relevant to Wife's credibility.
Defendant Wife
Defendant Wife is 45 years old. Her son R.C. was born on February 24, 1996. Wife attended Drake Business School after graduating from high school. She also earned a certification in network systems and earned college credits in public administration. Since 2006, Mother has worked full time for New York City Transit as a telecommunications data associate. She earns about $62,148 gross per year. While Wife works primarily in Manhattan, she is also assigned to Staten Island from time to time. Since M.C. started school in September of 2015, Mother has been arriving home between 6:00 and 6:30 P.M.
The parties were married on July 9, 2010 and initially lived in an apartment. After approximately two years, Wife agreed to purchase a home located across the street from Husband's mother, Ms. D.C. Wife indicated at trial that she agreed to purchase this home in part because she desired to have a meaningful relationship with her new mother-in-law. However, after purchase, a termite infestation was discovered that made the home inhabitable. Accordingly, the parties and R.C. were forced to temporarily reside in Paternal Grandmother's home. During this time, Wife's relationship with Paternal Grandmother became strained. Luckily, within months of M.C.'s birth, Husband and Wife were able to move with subject child M.C. and R.C. into their own home. However, despite finally being able to cohabitate with his Wife and child as a family, Husband continued to spend a significant amount of time at his mother's house. Husband frequently left M.C. with Mother when she returned from work then went across the street to his mother's home where he remained for approximately five hours a night.
After the former marital home was sold, in December of 2015, Mother purchased a three-bedroom townhouse condo where she currently resides. Wife relocated within blocks of M.C.'s school and in close proximity to Husband's current residence. Wife's condo has a separate bedroom for Wife, R.C. and M.C..
The Subject Child
The subject child, M.C. was born on October 13, 2010. After an evaluation, a pediatric neurologist diagnosed M.C. with "Pervasive Developmental Disorder, not otherwise specified." Her current diagnosis is "Autism Spectrum Disorder." After the diagnosis of autism, the parties took M.C. for a second opinion. Upon review, Dr. Saidi Clemente M.D. agreed with the diagnosis and stressed the importance of early intervention services. M.C. subsequently received early intervention services in her home.
Husband selected an agency known as "Sunny Days" as M.C.'s service provider team. He scheduled M.C.'s services in the morning, allegedly to take advantage of her "peak performance" times. Wife asked for some weekend or evening sessions to enable her to be present. Services began in March or April of 2012 at the marital home, but were later moved in June or July of 2012 to Paternal Grandmother's home at Husband's request. Wife expressed her preference that services be rendered at a day care center so M.C. could benefit from socialization with other children. However, Husband refused to allow services to be rendered outside of his or his mother's home.
Wife received little information from Sunny Days about M.C.'s services, her treatment goals or her progress. She did not even know until Sunny Days terminated services that a daily log book of progress was maintained for M.C.. Wife also was not notified of monthly progress meetings that were being held without her knowledge at Paternal Grandmother's home. Neither Husband nor his mother shared this information.
At the time Sunny Days stopped servicing M.C., that agency was providing approximately nineteen hours a week of services to this child. They were replaced by "City Pro" an agency found by Husband. Husband once again set the service schedule primarily during Wife's work hours although she had requested that at least one or two of the appointments be made at a time when she could be involved. After early intervention services were concluded, M.C. began attending the Volunteers of America School where she continued to receive a wide array of services. She graduated from that school in July of 2015. After much disagreement between the parties, M.C. began attending P.S.* *. Mother objected to this setting as not suitable for M.C. for the reasons she explained at trial.
R.P.
R.P. is Wife's son from a prior union and therefore M.C.'s biological sibling. When R.C. was in the third grade, he presented with difficulties in processing information and was subsequently diagnosed with ADHD. He received special education services beginning at age 7. Wife has been actively involved with the coordination of all of his services, throughout his educational years. While it is true that early on in their relationship, Husband supported Wife in securing services, at all times, Mother was her child's principal advocate.
Husband claims that R.C.'s behavior deteriorated as Wife's pregnancy with M.C. advanced. According to Husband, R.C. engaged in inappropriate behavior directed toward everyone in the household including Paternal Grandmother. This behavior, according to Husband and his mother, included masturbating in the open, walking around in his underwear in the house, urinating outside the house, and threatening Husband with a knife.
Wife vehemently denied these alleged acts by R.C.. To the contrary, she claimed it was Husband who turned on R.C. the moment they moved into his mother's home. Rather than being the nurturing father figure Husband had been while they were dating, Husband turned into an authoritarian figure who was no longer accepting of R .C. or the manifestation of his disability. Similarly, according to Wife, Husband's mother had no tolerance whatsoever for R.C. or his disability. Over time, and particularly after the birth of the subject child M.C., Paternal Grandmother's intolerance for R.C. evolved into antipathy.
During the time when the parties lived with Paternal Grandmother, there were a number of incidents involving R.C.. In one incident, in October of 2010, Husband claimed that, in an angry rage, R.C. went into the kitchen and threatened him with a knife. Paternal Grandmother supported this account. Wife credibly testified that Husband and his mother's accounts were self-serving and exaggerated. She credibly testified that R.C. never pulled a knife out of the drawer nor banished it towards anyone. Moreover, she credibly explained that Husband provoked R.C.. R.C. had asked to go to his friend's house and Wife agreed to drive him. For no reason, Husband "forcefully vetoed" the plan. R.C. was upset by the fact that Husband's interfered and overrode his mother's decision. Because R.C. admitted contemplating grabbing a knife, Mother sent him to his room, grounded him from extracurricular activities for a month, and spoke to him about the incident. Paternal Grandmother capitalized on this incident in an effort to get R.C. out of her home.
Husband's alienation of R.C. continued after the parties moved into the former marital home. Over Wife's objection, Husband claimed R.C.'s room as "his territory" compelling R.C. to sleep for years on the coach. Husband took R.C.'s video games for his own use despite knowing how much those games meant to him. In November of 2012, in anticipation of R.C.'s return home, Husband placed a lock on M.C.'s bedroom to keep R.C. away. It was not until after Husband's lawyer was notified that Wife had reported this act as a fire hazard that the lock was removed from M.C.'s bedroom.
Paternal Grandmother also participated in the maltreatment of R.C .. R.C. was locked out of the house numerous times regardless of the weather conditions. While R.C. did not testify at trial, he did tell the forensic evaluator, Dr. Michelakou, that Paternal Grandmother was particularly mean to him when he was alone with her. On one occasion, Paternal Grandmother allegedly threatened that she would make him eat his own feces after he accidentally clogged the toilet. (See AFC Ex.1 pg.3). While the Court understands that this is a hearsay statement that was included in a forensic report, and therefore cannot be considered for its truth, it is still illustrative of the relationship between R.C. and Paternal Grandmother. Whether or not this allegation is true, the fact that it was told to Dr. Michelakou and included in her report, evidences the deeply troubling nature of their relationship.
The final straw occurred in May of 2012. Husband testified that, after an argument with Wife, R.C. became enraged and tried to push him over the second floor balcony of their home onto the floor below. Wife testified that Husband overreacted to something R.C. was doing and began screaming at him. As R.C. tried to leave the room, Husband blocked his exit. Mother heard a "big bang" and came running. Wife discovered that Husband had this 16–year–old disabled boy in a chokehold. Husband did not stop until Wife screamed that R .C. was being suffocated.
Unbeknownst to Wife, Husband called the police to report his version of what had occurred. Hours later, as they all lay sleeping, the police came to the home to arrest R.C.. After conferring with each party, particularly with Husband, the police decided not to arrest R.C. and arrested Wife instead. Wife, who as in her 9th month of pregnancy with M.C., was arrested in front of R.C., taken from her home in handcuffs, brought to the police station, booked, and forced to spent the night in a jail cell. The following day Husband dropped the charges while she was still in the precinct holding cell. At Husband's insistence, Wife immediately took R.C. to a psychiatric facility. He was released the next day.
After several months of pressure from Husband, and as she was exhausted from trying to protect her son, Wife capitulated to R.C.'s removal from the home in a misguided attempt to save her marriage. R.C. spent several months in between homes of friends and relatives. Wife credibly testified that Husband put her in the position of having to choose between "her spouse and her duty as a mother to R.C.". Ultimately, R.C.'s removal from the home did not substantially improve the marriage.
Husband claims that he could not tolerate Wife's alleged refusal to deal with the special needs of M.C. and R.C. and the marriage continued to deteriorate as a result. Family Court litigation was filed in May 2012 with Husband filing a Family Offense Petition against R.C. then withdrawing it months later. Ms. D.C. filed a Family Offense against Wife and Wife filed one against Husband. Husband commenced this divorce action against Wife on July 17, 2013.
K.P.
K.P. is a close friend of Wife. Ms. P. testified on Wife's behalf at trial. Following his removal from the former marital home, R.C. lived with Ms. P. and her family between in the summer of 2014 and again from April to September of 2015. Ms. P. testified that she had a good relationship with R.C.. He never yelled, cursed, or hit anyone in the house. He participated in all their family activities. In the summer of 2014, when R.C. first arrived at her house, he was "like a lost soul". He could not understand why Husband was so angry at him, why he could not do things that a child typically does, or why he had to leave his home. Notwithstanding R.C.'s long absences from the marital home, he looked forward to his frequent visits with his mother and less frequent visits with M.C.. Ms. P. was in the presence of M.C. and R.C. numerous times and observed a "loving and caring" interaction between them. She never saw R.C. act inappropriately towards M.C..
The Forensic Evaluator
Dr. Michelakou was appointed to conduct a complete forensic examination by Order dated February 11, 2013. As part of her evaluation, Dr. Michelakou interviewed various collateral sources. Dr. Michelakou's report, dated November 10, 2014, was entered into evidence without objection (AFC.Ex.1). Dr. Michelakou testified before this Court on June 30, 2015. All counsel stipulated that Dr. Michelakou was an expert in the field of "family law related forensic psychological evaluations."
Both parties cooperated with the forensic evaluator. Dr. Michelakou found that both parents were involved, understood and appreciated M.C.'s vulnerabilities, and were "fully aware of her needs." Dr. Michelakou found Husband to be more proactive in securing services, but noted that Wife was active in learning strategies to improve her parenting. Dr. Michelakou described Wife as presenting with language difficulties which causes her to misuse words and not express herself clearly. This condition was evident at trial when Wife was under the stress of cross examination.
Dr. Michelakou noted that the parents had very different perceptions on how to deal with M.C.'s autism. Wife was interested in the long term goal of having M.C. live independently notwithstanding her condition. Conversely, Husband appeared unwilling to encourage independence. This was exhibited during trial when the parties disagreed over where services for M.C. should be rendered. Wife preferred for M.C. to have the benefit of other children around in a congregate setting, while Husband insisted that services be rendered in private. Dr. Michelakou found that this, and other fundamental differences in perception, would likely preclude meaningful cooperation and communication between the parents. Dr. Michelakou noted that Husband undertook "efforts to silence [Wife] from decision making and marginalize her parental role." The doctor further noted that Husband engaged in "systematic attempts to denigrate her parental authority and to render her neglectful" (AFC Ex 1, pg. 67).
Custody of M.C.
When determining the appropriate custodial arrangement, the primary concern for the Court is the best interests of the child. See Matter of Islam v. Lee, 2014 N.Y. 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 (2d 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). In the absence of a child's ability to articulate a preference, the Court must consider the position set forth by the attorney for the subject child. See Matter of Wosu v. Nettles–Wosu, 132 AD3d 688 (2d Dept .2015).
A final award of joint custody is not a viable option where it is shown, as it has been here, that the relationship between the parties is too volatile and acrimonious to support such an arrangement. See Bliss on behalf of Ach v. Ach, 56 N.Y.2d 995 (1982). Joint custody is inappropriate where the parties are antagonistic towards one another and have demonstrated an inability to cooperate on matters concerning the child. See Matter of Lawrence v. Davidson, 109 AD3d 826 (2d Dept.2013). In this case, the evidence at trial makes it clear that the parties are unable to meaningfully communicate and collaborate regarding issues pertinent to parenting.
Accordingly, the Court is faced with the difficult determination of which parent would be the more suitable custodial resource for M.C.. In making this determination, the Court's primary consideration, amongst the other factors indicated below, is which parent presents as better able to foster the relationship between M.C. and the other parent, and between M.C. and her only sibling R.C .. See Matter of Feliccia v. Spahn, 108 AD3d 702 (2d Dept.2013).
Both of the parties to this action are gainfully employed and earn similar incomes. Both are physically and mentally capable of caring for this child. Neither parent has been the subject of any child protective proceedings, or credible allegations of abuse or neglect. While Husband attempted to portray Wife as neglectful of both M.C. and R.C., his testimony presented as exaggerated, self-serving, and not credible. The record instead supports a finding that both parties have been intricately and actively involved in all aspects of M.C.'s life since birth. Any limitation on the part of Wife's involvement with M.C. appears to have been caused by Husband's dominant personality and controlling behavior.
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). In this case, neither party seeks extension of the current "alternate week" schedule set into place when the parties jointly decided to sell the former marital home. While this schedule was crafted by the Court to allow each party equal parenting time, while limiting the number of exchanges for the special needs child, this Court respects the parties' jointly held position that a different parenting schedule would be in their child's best interests.
Factors Considered
1. Ability to Foster a Relationship with Non Custodial Parent/Parental Alienation.
Primary among the factors considered in making this custody determination, this Court has considered which parent is in a better position to facilitate and foster a meaningful relationship between the subject child and the non custodial parent. See Matter of Lawler v. Eder, 106 AD3d 739 (2d Dept.2013). "One of the primary responsibilities of a custodial parent is to assure meaningful contact between the child and the noncustodial parent." Alvarez v. Alvarez, 114 AD3d 889 (2d Dept.2014). In evaluating M.C.'s best interests this Court has given substantial time and thought to "the effect that an award of custody to one parent might have on the child's relationship with the other parent." Bliss on behalf of Ach v. Ach, 56 N.Y.2d 995 (1982).
At trial, Wife attempted to establish that Husband had waged a campaign of parental alienation against her. In support of this claim, Wife credibly testified to a number of actions and decisions by Husband that substantiate her concern that, if granted sole custody, Husband would continue to isolate her from M.C.'s life. Wife credibly testified as to instances in which Father withheld information from her about M.C., his cruel interactions with R.C., his support for (or enabling of) his mother's attitudes toward Wife and R.C., and times when he physically blocked Wife from caring for M.C. when the child was in distress.
The record is replete with examples of Husband's marginalization of Wife. In one such example, as argued by the attorney for the child, Wife did not have dinner with her own child for an extended period of time because Husband insisted on feeding the child at his mother's home before Wife returned from work. Husband also routinely disparaged Wife in front of M.C. calling her names and belittling her. From the time M.C. was diagnosed with autism at eighteen months old, Husband nominated himself an expert, and placed himself in charge of her care and her needs, making virtually all significant decisions with little consideration of any contrary views expressed by Wife. Rather than having meaningful discussion about Wife's concerns, Husband took advantage of Wife's somewhat timid nature, and simply "took charge." Husband perpetuated this situation by organizing M.C.'s services around his schedule, which allowed him to later argue that Wife was the less involved parent.
In this trial, Husband found it difficult to say anything positive about Wife's parenting of either of her children. Husband instead accused Wife of neglecting M.C. and posing a danger to her safety. He accused Mother of placing M.C. in a chokehold and force feeding her, failing to provide supervision to the point where M.C. suffered significant injuries, losing her in a shopping mall, and demeaning her by mocking her limitations. However, none of these allegations were substantiated by credible or corroborating evidence. Husband's allegations presented as exaggerated and not credible. As succinctly stated by Dr. Michelakou, Husband portrayed as "very dire " issues and circumstances and injuries that were actually "minor " and "typical of autistic children. " Moreover, he pressed his alleged belief that contact between M.C. and Mother should be limited notwithstanding the fact that numerous professionals failed to substantiate his claims, or share his concerns, including the Administration for Children's Services ("ACS").
In addition to his campaign of marginalization, Husband also went to great lengths to "trap" Wife and manufacture evidence for use in this litigation. Rather than working in conjunction with Wife for the benefit of M.C., Husband consistently attempted to document Wife's alleged missteps to use them against her. Husband examined and photographed M.C. after her return from time spent with Wife. Husband required that Wife refrain from verbal communication and instead write her thoughts down in a "communication journal" that he offered as evidence at trial. He further subjected Wife to hundreds of surreptitious recordings while in her own home. While Husband attempted to offer benign explanations for this "documentation," it appears that Husband compiled this arsenal to "catch" Wife saying something that could be used against her at trial.
Lastly, Husband's refusal to acknowledge that he contributed in any way to the demise of this marriage or to his relationship with R .C. reveals a stunning lack of insight. After consideration of the record before the Court, there is more than enough evidence to suggest that if Husband were awarded sole custody, he would be do his best to limit any meaningful relationship between Wife and the subject child. See Khan–Soleil v. Rashad, 111 AD3d 728 (2d Dept .2013) ; See also William S v. Tynia C., 283 A.D.2d 327 (1st Dept 2001). This finding is supported by Dr. Michelakou who noted, that Husband undertook efforts to "silence her from decision making and marginalize her parental role." (AFC Ex.1 pg.67).
Conversely, Wife was more willing to acknowledge certain positive attributes of Husband. When given the opportunity, she described him to the forensic evaluator as a loving parent who would not be neglectful of M.C.'s needs. She also admitted that Husband was a strong advocate for M.C.. While Husband would not concede to contributing in any way to the deterioration of his marriage or his prior relationship with R.C., Wife arranged for marriage counseling sessions to try and work through the issues. Moreover, when faced with marital strife, Wife capitulated and ultimately allowed for her own son to be relocated from the house in an attempt to placate her Husband.
Wife has also compromised in that she agreed for additional services for M.C. during her parenting time with the child. While Wife expressed that she was sad that those services resulted in loss of some of her time with M.C., she agreed, as those services appeared important to Husband. Finally, Wife also invited Husband to attend Sunday school with M.C.. Husband appeared to have no objection to M.C.'s participation, however, when he arrived at the class, he began videotaping M.C. in the presence of other children.
After consideration of the instances above, together with the balance of the record before the Court, and the observations of the Forensic Evaluator, it is clear that Wife presents as the parent far more likely to foster a relationship between the subject child and Husband. See Matter of David C. v. Laniece J, 102 AD3d 542 (1stDept.2013) ; See also Matter of Cisse v. Graham, 120 AD3d 801 (2d Dept.2014). Under the unique circumstances of this case, including the special needs of M.C., and considering the fact that both parties are otherwise competent, fit parents, the ability to foster a meaningful relationship is a factor entitled to considerable weight.
2. Access to Siblings.
In addition to consideration of which parent would be more likely to foster a relationship with the other, this Court has further considered which parent is likely to foster a relationship with the subject child's only sibling, R.P.. As "young brothers and sisters need each other's strengths and association in their everyday and often common experiences to separate them, unnecessarily, is likely to be traumatic and harmful." Matter of Michael B. (Lillian B.), 2016 N.Y. Slip Op 08101 (1st Dept.2016). "It has long been recognized that it is often in [a] child's best interests to continue to live with his or her siblings, and the courts will not disrupt sibling relationships unless there is an overwhelming need to do so." Cook v. Cook, 142 AD3d 530 (2d Dept.2016).
The credible evidence at trial establishes that if granted sole custody, Husband would not allow, no less, foster a relationship between M.C. and her only sibling, R.C.. Under the guise of being concerned for M.C.'s safety, Husband has taken the position that contact between these siblings should be eliminated, or severely limited and supervised. Husband's stated belief is that if R.C. was not removed from the home, he would find M.C. and the Mother dead one day. Husband persists in this long standing and impenetrable position even though no evidence has been offered to show that R.C. posed an actual danger. Moreover, with respect to issues concerning R.C., Husband's testimony was not credible.
While R.C. was not called as a witness at trial, he was interviewed by the forensic evaluator. When conducting her analysis, Dr. Michelakou considered Husband's concerns about R.C. and disagreed with his position. Dr. Michelakou did not conclude that R.C. was a danger to his sister in any way. As stated by Dr. Michelakou "Mr. C.'s account related to R.C.'s violent potential toward M.C. has no merit, and it is based on his negative attributions toward the youth as well as to hinder a relationship between the siblings" (emphasis added).When pressed at trial for specific instances of wrongdoing, Husband conceded that R.C. never actually acted violently or nastily toward M.C.. This overwhelming lack of evidence for Husband's position supports Wife's argument that Husband is exaggerating R.C.'s behavior in furtherance of his attempt to secure an award of sole custody.
After considering the testimony and evidence at trial, this Court finds that Wife is the only parent who would allow M.C. to have a meaningful relationship with R.C.. See Eshbach v. Eschbach, 56 N.Y.2d 167 (1982) ; See also Obey v. Degling, 37 N.Y.2d 768 (1975) ; Matter of Parrish P. v. Camille G., 140 AD3d 586 (1st Dept.2016). The importance of this sibling relationship was addressed by Dr. Michelakou when she testified that "when it comes to R.C., siblings relationships are very important because even when the parents are no longer around they can sustain each other and [Husband] gave no importance whatsoever to a relationship between R.C. and [M.C.]" (Tr. 6/30/15 pg.30). The fact that Husband would do his best to preclude a relationship between M.C. and her brother, while Wife would encourage the same is a factor that was afforded considerable weight by this Court in making its custody determination.
3. Access to Extended Family.
While certainly not determinative, a child's access to extended family is generally a factor that would benefit the parent who fosters and provides that access. See Matter of Blakeney v. Blakeney, 99 AD3d 898 (2d Dept.2012). During trial it was established that while Wife has no extended family in the New York area, Husband does, as he lives with his Mother. While this would typically be beneficial to Husband's claims, this Court finds that Husband's mother does not present as the most positive influence for M.C.. To the contrary, the record before the Court supports Wife's allegation that Paternal Grandmother contributed to the toxic dysfunction in this family unit, especially with respect to M.C.'s relationship with her brother R.C..
Husband called Paternal Grandmother, Ms. D.C., as a witness at trial. Paternal Grandmother claimed that she was not against the parties' marriage and wished that they had remained together. She further testified that her son has always lived with her except for the time he lived with Wife. Even when Husband lived with Wife, Paternal Grandmother confirmed that he continued to have dinner with her on most nights. Paternal Grandmother testified that she has two other grandchildren from Husband's brother, who is now deceased. Each of those children have different mothers with whom she has no relationship. In her mind, her "only living relatives" are Husband and the subject child M.C..
Paternal Grandmother credibly testified that sue Wife for custody of M.C. if her son was not granted custody, or if he could not care for the child, because she believes that she is a better caretaker than Wife. Paternal Grandmother further indicated that she believed that Wife was not capable of taking care of M.C. without her assistance.. The forensic evaluator found Ms. D.C. to be "an abrasive individual with loose boundaries who drives rather than placates the conflict between the parents" (AFC Ex. 1). Moreover, Paternal Grandmother's antipathy towards R.C. is evident from her trial testimony. Paternal Grandmother admitted that due to R.C.'s alleged misconduct in her home, she tried to avoid him as much as possible.
After observing Paternal Grandmother testify, this Court finds her testimony, like that of Husband, to be exaggerated, and not credible with respect to the events most significant to the Court. Sadly, this witness appears to have little empathy, patience or tolerance for R.C.'s special needs and the manifestation of those needs. Moreover, her treatment of R.C., as credibly testified to by Wife, may be viewed as intolerant and cruel. While it has not been alleged that Paternal Grandmother ever treated M.C. in a similar fashion, her treatment of R.C. and Wife are illustrative of Paternal Grandmother's character.
In short, far from being a resource for Wife as she attempted to adjust to the birth of M.C. and the needs of R.C. in a new blended family, Paternal Grandmother contributed to the familial discord. While Paternal Grandmother has certainly served as a support system for Husband, it has often been at the expense of Wife. In many ways Paternal Grandmother served to enable, intentionally or otherwise, Husband's attempts to alienate Wife. For example, Paternal Grandmother would routinely serve dinner for Husband and M.C. at or around 4:30 P.M., excluding Wife, while she was aware that Wife would return home from work at 5:00 P.M. Indeed, Paternal Grandmother has openly indicated that she feels that she is a better parent for M.C. than Wife, and that Wife could not care for M.C. without her assistance.
Notwithstanding the foregoing, Wife has indicated that she is not opposed to M.C. having a relationship with her grandmother. Accordingly, while all parties agree that M.C. will benefit from having a relationship with her grandmother, that benefit is greatly diminished by the fact that Paternal Grandmother is mistrusting of, and antagonistic towards, Wife. Therefore, the fact that Husband has access to an extended family is a factor afforded very little weight by this Court.
4. Education/ Care for Subject Child's Special Needs
On or about M.C.'s first birthday, Husband became very concerned about her physical and mental development, particularly her motor skills and speech. She was not walking, was barely crawling, her posture was weak and she need support standing, among other deficiencies. Husband made much at trial of Wife's alleged refusal to acknowledge the subject child's special needs. However, after listening to Husband, this Court finds his account of Wife's alleged denial of M.C.'s condition to be not credible. Rather than being in denial, as claimed by Husband, it appears that Wife was not immediately alarmed because she attended the child's regular doctor's appointments and because she knew that children develop at different rates. She also wondered whether M.C. could be responsibly diagnosed at such a young age.
This Court finds Husband's claims that Wife was in denial about the special needs of her children patently not credible. According to Husband, he was so alarmed by Wife's disregard for the needs of both of her children that he was compelled to "get on his knees and beg" for Wife's cooperation. However, Wife credibly testified that she was not in denial of M.C.'s needs, nor did she object to her child receiving services. It is undisputed that during the relevant timeframe, Wife was coping with the death of her parents, M .C.'s diagnosis, R.C. condition, Ms. D.C.'s interference, and a failing marriage. Against this background, it is not surprising that Wife's reaction to M.C.'s delays may was not have been swift enough for Husband. Moreover, even assuming that Wife was initially reluctant to accept the fact that her second child also presented with special needs, the Court does not find that allegation at all relevant to the current proceedings, as Wife has certainly been involved with M.C.'s care in the years since her initial diagnosis.
Husband further claims that Wife was obstructionist when dealing with M.C.'s providers, however, this allegation was not substantiated at trial. Instead, the record supports a finding that Husband would demean and marginalize Wife at service meetings. Husband also made it clear to the service providers that all decision making and information must go through him, even before this Court briefly granted him that authority. Husband refused to allow M.C.'s services to be delivered at times or places that were convenient to, or recommended by Wife. Rather, he insisted they occur at Paternal Grandmother's home.
Wife credibly testified that Husband attempted to exclude her from many of the appointments concerning M.C.'s care by deliberately scheduling them while she was working. Since Husband was less than forthcoming, Wife had no choice but to rely on the service providers for information concerning M.C.. However, as Husband gave M.C.'s providers the impression that Wife was not interested or involved, the professionals were often reluctant to respond to Wife's requests.
Fortunately, while M.C. still presents with significant deficits, both parties agree that she has made progress in her development over the years. She is now more verbal and more responsive to external stimuli. Notwithstanding these improvements, it appears that M.C. will likely need services for the foreseeable future.
As related to this custody decision, the Court finds that both parents are fit to care for the subject child's special needs such that neither party should be considered to have a clear advantage over the other in this sphere of decision making. However, it is worth noting that since the onset of services Husband has actively marginalized Wife's role, and then has attempted to allege that she is "less involved" at trial. While it is undisputed that Husband has been a zealous advocate for his child's services, Husband's belief that this somehow makes him a superior parent is misplaced. This Court finds that Wife is actually in a better position to make decisions regarding the subject child's service needs as she has established that she is the party who would be more willing to meaningfully confer with Husband and thoughtfully consider his opinions. In contrast, if granted decision making in the educational sphere, Husband would likely dismiss Wife's views, as he has done consistently. Accordingly, while it is admittedly a difficult decision, on balance, the Court finds that Wife is "better equipped to provide for the emotional and educational development of this special needs child." Matter of Moses v. Williams, 138 AD3d 861 (2d Dept.2016).
5. The Forensic Evaluation
During the course of these proceedings, a forensic evaluation was conducted by Dr. Sophie G. Michelakou. 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).
At the conclusion of her evaluation, Dr. Michelakou issued a thorough 76 page Report, which was admitted into evidence, without objection. (See AFC Ex. No. 1). In her Report, Dr. Michelakou finds that M.C. had been "exposed to parental conflict which poses a risk to her emotional adjustment long term". Dr. Michelakou further opines that Husband's bullying and denigration of Wife and the power balance between them was so severe as to constitute a form of domestic violence. She also found that R.C. had become the scapegoat for the conflict in this family and that he had been demonized by Father as a result. Despite these findings, at the conclusion of her Report she recommends joint physical custody, with joint decision making after meaningful consultation. In the event that the parties cannot agree, Dr. Michelakou recommends that each party be granted spheres of final decision making authority in accordance with their individual strengths. Dr. Michelakou also recommends that the Court order the parties to consult with a "parenting coordinator" in the event that they reach an impasse on a particular decision.
Husband correctly states that Dr. Michelakou recommends that final decision making be awarded to him in the spheres of "implementation of services and advocacy." However, for the reasons set forth herein, this Court disagrees with that recommendation. While it is true that Husband has historically been the primary decision maker in the sphere of M.C.'s services, this Court feels that he wrested that authority from Wife, over her objection, and has since abused the authority by marginalizing and alienating Wife. Moreover, as the "educational," "medical," and "special needs services" of this disabled child are inextricably woven, awarding spheres of decision making in this case is not practicable. This is particularly evident as there is little to no meaningful communication between the parents, and no reasonable prospect that this long standing obstacle will improve in the future. Given the history of the parties, and the unwavering attitudes of Husband, it is somewhat naive to believe that if given final decision making authority on the issue of M.C.'s services, that Husband would not abuse that authority and continue the pattern of marginalization that he maintained throughout the parties' marriage and throughout the course of this litigation.
In fact, the Court's concerns regarding Husband's abuse of decision making authority have already been realized in this case. On October 15, 2013, this Court issued an interim Short Form Order granting temporary decision making authority to Husband in the sphere of "health and education" including all decisions regarding M.C.'s services. This Order was issued with the support of the attorney for the child based, in part, upon claims that Wife was interfering with M.C.'s service providers and endangering the continuation of her treatment. Specifically, Husband claimed that Wife had previously accused some of M.C.'s service providers of having an "intimate" relationship with him which caused them to terminate their services to this child. Husband further alleged that Wife's interference was ongoing despite the fact that the service provider had been subsequently changed.
After hearing from Husband and one of M.C.'s service providers at trial, and with the benefit of hearing Wife's full version of what occurred, this Court finds that Wife was not reckless or baseless in questioning the lack of professional boundaries between Husband and the service providers. In essence, Wife became aware that she was being marginalized in relation to her child's care and she complained. At trial, it was established that Husband was the only parent advised as to the scheduling of meetings. He was further given information by the providers that was never given to Wife despite her requests to be kept informed about her child's treatment plans, goals and progress. Wife advised M.C.'s providers that she needed to have direct information from them because Husband and Paternal Grandmother were not keeping her adequately informed. Wife questioned the agency as to why she was not involved in discussions about M.C.'s progress, particularly since the agency knew services were being provided during the work day while Wife could not be present. While the alleged use of the word "intimate" may not have been the best choice as it suggested an unsubstantiated physical relationship, Wife certainly has a basis to complain about the "inappropriate" relationship that was developing between the service providers and Husband.
Rather than addressing Wife's legitimate concerns about information sharing, the service providers at issue abruptly quit, leaving M.C. without appropriate care for some time. At trial, Husband called the service provider "team leader," Ms. E.F., as a witness. Ms. F., testified that she could not remember Wife's "exact words" but alleged that Wife made a claim that Husband was having an "intimate" relationship with the service providers. As the word intimate made her uncomfortable, and as she was afraid that her reputation might be tarnished, Ms. F. and her team chose to terminate services rather than address Wife's concerns.
After the benefit of a full trial, this Court finds that Husband has exaggerated his claims of misconduct by Wife presumably to secure sole decision making as provided in this Court's Order dated October 15, 2013. Armed with that authority, Husband misused it to further marginalize Wife and to preclude her from receiving basic information about M.C.'s care and services. Husband showed the Order to the Department of Education who construed it to mean that Wife had to obtain information regarding M.C. from Husband. Husband then limited his conversations with Wife to a series of written "communication journals." While Wife admitted she did not respond to many of Husband's journal entries, she credibly explained that she believed it more appropriate to have an actual conversation about M.C. since they all lived in the same home. Moreover, when it came time to select a grade school program for M.C., Husband enrolled her in P.S.* * without consulting Wife. This was particularly troubling because both parties had been actively involved in selecting an appropriate school for M.C..
After consideration of the entirety of the trial record, this Court disagrees with the conclusion of the Forensic Evaluator to the extent that it recommends that Husband be granted final decision making in the sphere of M.C.'s services. Contrary to this recommendation, the Court finds that Wife is in the better position to make final decisions regarding services because she is the parent who is much more likely to thoughtfully consider Husband's position before making any final determination. Contrary to her ultimate recommendation, the forensic evaluator substantiated Wife's claim that Husband has taken various steps to alienate her. Dr. Michelakou referred to Husband's marginalization as "restrictive gate keeping." Based on this longstanding pattern of conduct, there is no basis for this Court to grant Husband any specific sphere of decision making.
In regard to parenting time, the Court tends to agree with the recommendation of the Forensic Evaluator that the parties should share significant time with the child. In fact, when faced with the necessity of having to make a mid-trial schedule of parenting time in light of the sale of the marital home, the Court issued an award of equal parenting time. See Order dated December 14, 2015. However, at trial both parties indicated that they were unhappy with the interim order of "split" parenting time, and both parties now seek a final award of sole physical custody with alternate weekend visitation afforded to the other party to be supplemented by a midweek visit. (See Plaintiff's and Defendant's Post Trial Summations). In light of his joint application to undo the interim Order, the Court finds that a final award of split parenting time would be inappropriate.
In conclusion, the Court agrees with much of the detailed reasoning set forth by Dr. Michelakou. The Court agrees that both parents wish to be actively involved in M.C.'s care, and that both parties are capable of being custodial parents. The Court further agrees with the evaluator's conclusion that R.C. is not a danger to M.C., but that the Paternal Grandmother has acted as an interloper against Wife. Finally the Court wholeheartedly agrees with the evaluator's determination that Husband has undertaken a pattern of alienating and marginalizing Wife. Accordingly, the Court agrees with the vast majority of the analysis provided by the evaluator, while not agreeing with her ultimate recommendation regarding decision making. For the reasons set forth at length herein, the Court finds that Wife has exhibited far better judgment in all relevant spheres of decision making.
6. The Attorney for the Subject 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). After an extensive and thoughtful analysis of the facts, together with the relevant case law, the Attorney for the Subject Child supports an award of legal custody (decision making) to Wife with an award of equal parenting time to both parents. (See AFC's Post Trial Written Summation). Considering the clear time and effort placed into the attorney for the child's thoughtful summation, her view has been given a fair amount of weight in the Court's Decision.
On the issue of decision making, the attorney for the subject child correctly argues that while Husband has "seized" decision making in relation to M.C.'s services, and did so with a "vengeance," his actions have created a situation where he has become a "one man show." (AFC Summation Pgs. 135–136). In furtherance of this longstanding pattern of behavior, when granted temporary decision making, Husband abused this authority by making unilateral decisions without involving Wife. After considering Husband's pattern of marginalization, the attorney for the child concludes that Wife should be granted "sole" decision making authority. The attorney for the child further correctly argues that an award of decision making to Wife is the only way to preserve a meaningful relationship between M.C. and her sole sibling R.C..
In regard to parenting time, the attorney for the subject child argues that both parents should be granted "equal" parenting time. As indicated above, the Court agrees with the proposition in theory, however when a split parenting schedule was put in place, both parties reacted by stating that they wanted it changed after trial. In light of both parent's stated wishes, the Court cannot reasonably consider an award of equally split parenting time.
Decision
After considering all the relevant factors indicated above, this Court finds that while both parents can adequately care for M.C., on balance, Wife is far more capable to address the subject child's needs and general well being. See Rosenberg v. Rosenberg, 2016 N.Y. Slip Op 08893 (2d Dept.2016). Unfortunately, Wife has another older special needs child who she has successfully advocated for and cared for some 20 years. This experience perhaps has made Wife more accepting, empathetic and patient when dealing with M.C.'s special needs. On balance, while Husband has established himself as well skilled at advocating for M.C., he has done so at the expense of Wife. The record at trial supports a conclusion that to award decision making to Husband would be to essentially remove Wife from the equation. In contrast, the Court is comfortable that an award of legal custody Wife will ensure that Husband's concerns will be thoughtfully considered before a final decision is made. The Court finds that Wife is better equipped to provide for the needs and emotional and educational development of this special needs child. See Matter of Moses v. Williams, 138 AD3d 861 (2d Dept.2016) ; See also, Matter of Smalls v. Payne, 64 AD3d 783 (2d Dept.2009).
Moreover, after listening to Husband's testimony and the testimony of his mother, this Court finds that Wife is the only parent capable of fully understanding this young child's right to have a loving and meaningful relationship with the non-custodial parent. Sadly, this Court concludes that if granted sole custody, Husband's antipathy for Wife fueled by the strong hostile and intolerant views of the paternal grandmother with whom Husband resides would significantly impair a meaningful relationship between M.C., and her mother. The duty to foster a relationship with the non-custodial parent becomes all the more important when dealing with a special needs child who may be somewhat inhibited in making independent determinations. Husband has established that he cares little for Wife's opinions, and that he feels that Wife is not an adequate parent. An award of custody to Husband would risk these misplaced opinions being imputed to M.C.. Accordingly, the Court finds that Wife is the parent who is far more capable of fostering a relationship between the subject child and the non-custodial parent. See Matter of Quinones v. Quinones, 139 AD3d 1072 (2d Dept.2016) ; See also, Matter of Wilson v. Bryant, 143 AD3d 905 (2d Dept.2016).
The same can be said about M.C.'s relationship with her only sibling, R.C.. Husband has expressed that he feels that any relationship between M.C. and her brother should be severely limited, and supervised as he is "dangerous." Paternal Grandmother, with whom Husband lives, has supported this position and taken active steps towards alienating R.C.. In contrast, Wife, the forensic evaluator, and the attorney for the child all take the position that M.C.'s relationship with R.C. should be fostered, not negated. After consideration of the record in its totality, the Court finds that no evidence has been offered to establish that R.C. is a danger to M.C.. In fact, the Court finds that R.C. and M.C.'s relationship should be encouraged and protected, and that only Wife is capable of ensuring that irreparable harm is not done to this sibling relationship. See Matter of Shannon J. v. Aaron P., 111 AD3d 829 (2d Dept.2013). It is well settled law that a "disruption of relationships between siblings should be avoided in the absence of an overwhelming need to do so." Matter of Stramezzi v. Scozzari, 106 AD3d 748 (2d Dept.2013).
After consideration of the above factors, and considering the fact that Wife presented as the more credible witness at trail, and moreover that Wife presents as the parent with the better temperament, an Order of sole, legal and physical custody to Wife is hereby granted. The Court finds that an award of Custody to Wife is in the subject child's best interest. See Matter of Clarke v. Wiltshire, 2016 N.Y. Slip Op 08358 (2d Dept.2016) ; See also, Patanella v. Keveney, 2016 N.Y. Slip Op 08208 (2d Dept.2016).
In furtherance of this Order of sole custody, and the resulting responsibility as the custodial parent to foster the child's relationship with the non-custodial parent, Wife is hereby directed to confer with Husband on all issues relating to the child's services, education, religion and medical matters. Wife shall, however, have final decision making authority with respect to these and all other major issues. Each party shall retain authority to make day to day decisions while they are with the child. Both parents shall have access to M.C.'s medical and educational records and to her service providers, medical providers and educators. Each parent shall be responsible for securing said information on their own. Both parties shall be entitled to attend all school, extracurricular and significant events in M.C.'s life, including group service provider meetings, at his or her own expense.
As there has been proven at trial a deliberate attempt by Husband to withhold critical information regarding services for M.C., Wife is free to pursue a "self-directed" approach and to determine the appropriate setting for delivery of services. To this end, this Court finds it to be in M.C.'s best interest for as many services as practicable not otherwise occurring in school to be rendered immediately after school in a congregate setting such as the current one, as opposed to the home of either parent. This will provide M.C. with an opportunity to socialize with other children, will allow services to be completed by the time parenting time commences so as to reduce stress on this child, will foster communication between each parent and service providers, and will not allow for interference by any party in the delivery of such services. It will also eliminate any duplication of services or inconsistency in treatment goals which could well occur if services are rendered in a congregate setting on Wife's time and in Husband's home on his time.
To this point, this Court finds that Husband has woefully failed to prove at trial the frequency and nature of services he claims are necessary for M.C.. He has also failed to prove that delivery of these services in a private home is in any way clinically necessary or beneficial as opposed to a congregate setting such as Kiddie Academy where she receives these services on Wife's time. He called no expert witnesses to this effect and offered no credible and relevant evidence to support his position.
Parenting Time
While Wife has been granted an Order of sole legal custody with final decision making, this does not end the Court's analysis. Husband shares a loving, close bond with the subject child which cannot be minimized despite his strong negative feelings toward Wife and her son R.C..
Both the forensic evaluator and the attorney for the child indicate their belief that an equal sharing of parenting time would be in the child's best interests, however, since at trial, both parties indicated that they believe that the current alternating week schedule is not in M.C.'s best interest, this Court is faced with the task of setting a new parenting schedule in accordance with the parties' stated wishes.
Accordingly, Husband shall have parenting time with M.C. alternate weekends from pick up at school or after completion of her services on Friday until drop off at school on Monday morning. In addition, Husband shall have overnight visits with M.C. every Monday from after school or completion of her services until drop off at school on Tuesday mornings. Husband shall also have parenting time every Thursday from the end of school or completion of her services, if any, until 8:00 p.m. All drop offs that do not occur at school shall by Husband to Wife's home, curbside. It is worth noting that this schedule of parenting time allows for more visitation than either party suggested for the other in their post trial summations.
When school is not in session, pick up and drop off shall be by Husband curbside at Wife's home at 8:00 a.m. so as to allow Mother to leave for work on time. Husband shall be awarded the time that the child would have otherwise been in school.
a. Holiday Time.
The parties shall alternate all of the major holidays and school vacations as set forth below. Holiday 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 completion of M.C.'s services (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.
The following holidays shall be alternated:
Children's Birthdays:even years: Mother odd years: Father
Thanksgiving: even years: Mother odd years: Father
Christmas Eve: even years: Father odd years: Mother Christmas Eve visit shall begin at 3 p.m. and end at 12 p.m. on Christmas Day.
| Christmas Day: | even years: Mother | odd years: Father |
| New Year's Eve: | even years: Mother | odd years: Father |
New Year's Eve visit shall begin at 3:00 p.m. and end at 12:00 p.m. on New Year's Day.
| New Year's Day: | even years: Father | odd years: Mother |
| Martin Luther King Day: | even years: Mother | odd years: Father |
| President's Day: | even years: Father | odd years: Mother |
| Good Friday: | even years: Father | odd years: Mother |
| Easter: | even years: Mother | odd years: Father |
| Memorial Day: | even years: Father | odd years: Mother |
| Fourth of July: | even years: Father | odd years: Mother |
| Labor Day: | even years: Mother | odd years: Father |
| Halloween: | even years: Mother | odd years: Father |
| Columbus Day: | even years: Father | odd years: Mother |
| Veteran's Day: | even years: Mother | odd 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 8:00 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 3:00 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 her services. 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 is responsible for notifying the other parent in writing when they intend to take the child overnight outside of the New York tri-state area (New York, New Jersey, Connecticut). If the child is 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 writing.
Child Support
By Short Form Order dated May 15, 2015, the parties agreed that child support would be awarded pursuant to the Child Support Standards Act in the event that "shared custody" was not awarded to each parent. The parties self defined "shared custody" as equal parenting time, despite the fact that neither party requested an order of equal parenting time during or at the conclusion of trial. The parties further agreed that if child support were to be calculated, it would be determined in accordance with the parties' respective 2014 incomes.
During the course of the drafting of this decision, it was determined that neither party had provided sufficient documentary evidence for the Court to property determine child support. Accordingly, by Short Form Order dated December 19, 2016, both parties were directed to supplement the trial record with copies of their 2014 tax returns and supporting documentation. Wife complied with this Order on or about December 20, 2016. Husband complied with this Order on or about December 23, 2016.
The Child Support Standards Act sets forth the method by which the "presumptively correct" amount of child support can be calculated. See Domestic Relations Law § 240 ; Family Court Act § 413. A three step process is required by the relevant statutes. The first step requires a calculation of the "combined parental income" up to a statutory cap, currently $143,000. See N.Y. Soc Serv L § 111–i(2)(b). The second step requires the Court to multiply the combined parental income by a specified percentage based upon the number of children. The third step is only triggered when the combined parental income exceeds the statutory cap. Once the statutory percentage is applied to the parties' combined income, and each parties' pro rata contribution to that amount is determined, the resulting sum is the presumptively correct amount of child support.
As indicated above, the Child Support Standards Act (CSSA) presumptively results in the correct amount of child support to be awarded to the custodial parent. As there is one child of this union, the correct statutory percentage to be applied to the combined parental income is 17%. See Matter of Peddycoart v. MacKay, 2016 N.Y. Slip Op 08974 (2d Dept.2016). Application of this percentage to the combined parental income will provide the appropriate level of support to meet the basic needs of the subject child.
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). In the present case, the parties stipulated that the Court should utilize the parties' respective 2014 incomes for child support purposes.
In 2014 Husband was employed with the New York City Department of Sanitation earning a gross sum of $79,069. From this gross income figure the Court is directed to subtract statutory deductions of FICA, Medicare, and local (N.Y.C) tax that were "actually paid." See Khaira v. Khaira, 93 AD3d 194 (1st Dept.2012). According to Husband's W2 documentation, he paid the sum of $4,902 in FICA, $1,147 in Medicare, and $2,512 in local tax for an adjusted W2 income of $70,508.
In 2015 Wife was employed by New York City Transit earning a gross sum of $62,148. From this gross income figure the Court is directed to subtract statutory deductions of FICA, Medicare and local (N.Y.C) tax that was "actually paid." See Khaira, Supra. According to Wife's W2 documentation, she paid the sum of $3,853 in FICA, $901 in Medicare, and $1,935 in local tax for an adjusted W2 income of $55,459.
Utilizing these figures, the combined parental income for purposes of calculating CSSA child support is $125,967. Utilizing this combined income, and the 17% applicable for one child, the parties' combined child support obligation would be $21,414 a year. Husband's pro rata share of this amount would be 56% and Wife's share would be 44%. Fifty-six percent of $21,414 is $11,992 which would be Husband's annual child support obligation. Accordingly, Husband is hereby ordered to pay the annual sum of $11,992 in child support, payable in monthly installments of $999 with a first payment commencing on or before the 31st of January 2017. Successive payments must be made on or before the last day of each successive month until the child attains the age of twenty one, or is otherwise emancipated as determined in the future by a Court of competent jurisdiction.
Retroactivity
Child support awards are generally retroactive to the first time that child support was affirmatively requested. See Crane v. Crane, 264 A.D.2d 749 (2d Dept.1999). However, at trial, neither party addressed the issue of retroactivity. A review of the Court's file indicates that Wife first requested child support in her Verified Answer which was served on July 25, 2013. However it is undisputed that the parties cohabitated with one another until late December of 2015. When calculating arrears, Husband would arguably be entitled to a credit for his contribution to payments made to third parties (including the mortgage and utilities) during the time the parties lived together. See Yunis v. Yunis, 94 N.Y.2d 787 (1999). However, the record before the Court is insufficient to determine what payments were made, to whom, and for what purpose.
Accordingly, as the Court is lacking sufficient information from which it can properly determine retroactivity, that issue is hereby denied, without prejudice, due to a failure of proof. In the event that Wife seeks a retroactive award, after consideration of the fact that the parties shared expenses, and the fact that Husband would be entitled to a credit for those expenses, she may file a post judgment application requesting the same.
Conclusion
For the detailed reasons set forth above, Wife's application for an award of sole legal and physical custody of the subject child M.C. is hereby granted. Wife's custody of M.C. shall be subject to Husband's parenting time as indicated herein. Wife's application for child support is granted in the amount of $11,992 a year, with the issue of retroactivity denied without prejudice to renewal.
Pursuant to the Inquest on the issue of grounds, and the grounds Order that was issued on September 4, 2013, Plaintiff Husband was granted a Judgment of Divorce on the ground that the parties' marriage had broken down irretrievably for a period of six months. See DRL § 170(7). All issues of maintenance and equitable distribution were resolved on consent by Short Form Order.
Defendant Wife is hereby directed to file a Judgment of Divorce in accordance with the rulings of this Court, together with Findings of Fact and Conclusions of Law. In addition, Plaintiff is hereby directed to file all necessary supporting documentation and file a Note of Issue if one has not been filed. This documentation is to be filed within 60 days of the date of this Decision.
This constitutes the Decision of the Court after trial, in the event that an application was made during or before trial, and not specifically addressed herein, that application is hereby denied.